The Fifth District Appellate Court has reversed Madison County Associate Judge Clarence Harrison's decision to dismiss a complaint against a development company and realtor who allegedly sold multiple homes while knowing the property sat on an easement.

Justice Stephen L. Spomer authored the nine-page decision released Jan. 4.

"It is clear that the plaintiffs are alleging that, prior to their executing the real estate purchase contracts at issue, agents and employees of Hunter's Point Homes and Century 21 made representations to them regarding the ability of the plaintiffs to build in their yards and compliance of the existing structures with codes and easements," Spomer wrote.

"We believe these counts ... reasonably inform the defendants of the nature of the claims against them. The details of these representations can be borne out by discovery and we find no reason to affirm the dismissal of counts I through V on this basis."

The Appellate Court's ruling follows Harrison's dismissal of all claims against Hunter's Point Homes and its agents and employees.

The lower court had found the real estate developer and its employees did not intentionally misrepresent conditions to the buyers of property on Hunter's Point Drive in Granite City. The property allegedly encroaches on an easement.

The three plaintiff residents – Daniel J. Lusicic Jr.; Beryl L. Foreshee Jr. and Dorothy M. Foreshee; and Joshua C. and Lydia K. Olson – claim they were told they could build permanent structures, including garages and fences, in the backyard of their properties.

They were represented by Thomas Maag and Peter Maag of Wood River.

The property owners later discovered they could not construct the buildings because of the easement, according to the ruling.

The Fifth District overturned Harrison's decision to dismiss many counts of the complaint, including those that allege common law fraud and violations of the Consumer Fraud Act. Because the property's sellers implied that permanent structures could be built on the land, they were making misrepresentations to the plaintiffs, the justices found.

However, justices agreed with the circuit court's decision to dismiss the counts of promissory estoppel against the defendants.

"Promissory estoppels is unavailable when an enforceable contract between the parties exist," Spomer wrote.

In addition to Hunter's Point Homes, the plaintiffs named TLC Construction of O'Fallon, James D. Hettler, Jason C. Coleman, J. Coleman Enterprises, Tina Ziegler, Diana Naney and Century 21 Bailey and Co. as defendants.

T. Michael Ward of Brown & James in St. Louis represented Century 21 Bailey and Co.

Douglas Gruenke of Belsheim and Bruckert in O'Fallon represented Hunter's Point, Coleman and Hettler.

Justices James K. Donovan and Richard P. Goldenhersh concurred with Spomer.

Fifth District Appellate Court case number: 07-CH-921.

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