1324 W. Pratt Condo. Ass'n v. Platt Const. Group, Inc.

• Decision Date: 28 September 2010
• Docket Number: No. 1-10-0159.,1-10-0159.
• Citation: 936 N.E.2d 1093,344 Ill.Dec. 336,404 Ill.App.3d 611
• Parties: 1324 W. PRATT CONDOMINIUM ASSOCIATION, Plaintiff-Appellant, v. PLATT CONSTRUCTION GROUP, INC., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

936 N.E.2d 1093 404 Ill.App.3d 611 344 Ill.Dec. 336 1324 W. PRATT CONDOMINIUM ASSOCIATION, Plaintiff-Appellant, v. PLATT CONSTRUCTION GROUP, INC., Defendant-Appellee. No. 1-10-0159. Appellate Court of Illinois, First District, Second Division. Sept. 28, 2010.

Robert W. Brunner, Law Office of Robert W. Brunner, Chicago, for Defendants-Appellants.

No appearance for Plaintiff-Appellee.

Presiding Justice THEIS delivered the opinion of the court:

[344 Ill.Dec. 338, 404 Ill.App.3d 613]

This case arises from allegations of faulty construction of a residential building. Plaintiff 1324 W. Pratt Condominium Association appeals from an order of the trial court that dismissed two counts of plaintiff's complaint against defendant Platt Construction Group, Inc., that alleged breach of the implied warranty of habitability and negligence. For the reasons that follow, we affirm in part and reverse in part.

BACKGROUND

Between 2004 and 2005, defendant constructed an eight-unit residential building located at 1324 W. Pratt Boulevard in Chicago. Defendant constructed the building pursuant to a contract with a developer, 6801 N. Wayne, L.L.C. The developer sold the individual units as condominiums, and the owners of the units formed the plaintiff condominium association in order to represent their collective interests. Defendant and plaintiff never entered into any direct contract.

Defendant completed the building in March 2005, and the individual owners took up residence. For reasons not disclosed in the record, the developer was involuntarily dissolved on November 28, 2005. Plaintiff alleged that, at some point after the developer dissolved, the unit owners discovered water leaks around windows,

[344 Ill.Dec. 339, 936 N.E.2d 1096]

doors, ceilings, and vents in their units and common areas of the building. The leaks damaged not only the physical structure of the building but also unit owners' personal property, such as furniture and books. Water also seeped into the walls, causing mold to grow throughout the building. Plaintiff alleged that the increased moisture caused the unit owners to experience medical problems such as worsening asthma and flu-like symptoms. Plaintiff eventually retained a property inspector, who determined that the leaks were due to a faulty roof and other construction anomalies.

In September 2008, the Chicago area experienced a series of severe rainstorms. Plaintiff alleged that these storms substantially worsened the leaks in the building and exacerbated the mold problem. Plaintiff incurred significant costs in repairing the leaks and removing the mold from the building.

Plaintiff filed its original complaint against three parties on December 31, 2008: defendant, the developer, and the roofing contractor. The complaint recounted the above allegations and asserted numerous causes of action related to the allegedly faulty construction of the building. Four counts were directed against defendant, alleging negligence, breach of the implied warranties of good workmanship and habitability, and breach of contract under a third-party beneficiary theory. Plaintiff sought damages for repairs to the building itself, common areas, and individual units, as well as inspection and assessment costs for engineers and other construction experts.

On June 9, 2009, defendant filed a motion to dismiss all four counts against it under section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2008)), but only the counts for breach of the implied warranty of habitability and negligence are at issue on this appeal. Defendant argued in its motion that it could not be held liable under an implied warranty of habitability theory because the implied warranty only applies to "builder-vendors," that is, builders who not only construct a residential building but who are also involved in the sale of the residence to a purchaser. Defendant further argued that it could not be held liable in negligence because plaintiff was seeking solely economic damages. Defendant argued that the Moorman doctrine, as articulated in Moorman Manufacturing Co. v. National Tank Co., 91 Ill.2d 69, 61 Ill.Dec. 746, 435 N.E.2d 443 (1982), precludes recovery of such economic damages under a tort theory. Plaintiff responded that the implied warranty of habitability has never been limited to only builder-vendors, and that the policies underlying the warranty apply equally well to builders. Plaintiff further argued that the "sudden or dangerous occurrence" exception to the Moorman doctrine applies in this case because the water damage to the building resulted from the September 2008 storms, relying on Mars, Inc. v. Heritage Builders of Effingham, Inc., 327 Ill.App.3d 346, 261 Ill.Dec. 458, 763 N.E.2d 428 (4th Dist.2002) (holding that a single thunderstorm was a sudden and dangerous occurrence).

The trial court granted defendant's motion to dismiss on all four counts on September 11, 2009. Plaintiff filed a motion to reconsider the trial court's ruling on the counts for breach of the implied warranty of habitability and negligence. On December 8, 2009, the trial court issued a written opinion and order denying plaintiff's motion to reconsider. In its opinion, the trial court did not address plaintiff's arguments on the implied warranty of habitability theory, but it did address the negligence issue. The trial court rejected plaintiff's reliance on Mars and declined to find that

[344 Ill.Dec. 340, 936 N.E.2d 1097]

the September 2008 thunderstorms were a sudden and dangerous occurrence.

Because the trial court's order only disposed of plaintiff's claims against one defendant, it was not an appealable order and plaintiff could not immediately appeal without permission from the trial court. See 134 Ill.2d R. 304(a). On January 6, 2010, plaintiff moved for entry of a final judgment on the dismissal of the counts against defendant. Pursuant to Supreme Court Rule 304(a), the trial court entered an order of final judgment, noting that there was no just reason to delay an appeal of its order dismissing the implied warranty of habitability and negligence counts. Plaintiff filed a timely notice of appeal on January 13, 2010.

ANALYSIS

On appeal, plaintiff argues that the trial court erred in dismissing the implied warranty of habitability and negligence counts against defendant. First, plaintiff argues that the warranty applies to builders, not just to builder-vendors. Second, plaintiff argues that the sudden or dangerous occurrence exception to the Moorman doctrine applies to its negligence allegations.

We review an order of dismissal pursuant to section 2-619(a)(9) de novo, accepting as true all well-pled facts contained in the complaint and in any uncontradicted affidavits attached to the motion. See Coady v. Harpo, Inc., 308 Ill.App.3d 153, 158-59, 241 Ill.Dec. 383, 719 N.E.2d 244 (1999). The question on review is " 'whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law.' " Doyle v. Holy Cross Hospital, 186 Ill.2d 104, 110, 237 Ill.Dec. 100, 708 N.E.2d 1140 (1999), quoting Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 116-17, 189 Ill.Dec. 31, 619 N.E.2d 732 (1993).

We initially note that defendant did not file an appellee's brief on appeal. We have thoroughly reviewed both plaintiff's appellate brief and the record, and we find that the issues and claimed errors in this case are uncomplicated enough that we can reach the merits of plaintiff's contentions without defendant's opposing brief. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 133, 345 N.E.2d 493 (1976). Additionally, the record contains defendant's brief in support of its motion to dismiss, as well as its written reply to plaintiff's own brief opposing the motion. The issues that we are called upon to decide on appeal were well briefed in the trial court, and the absence of defendant's brief on appeal does not impede our review of these issues.

We first examine whether the trial court erred by dismissing the implied warranty of habitability count. The implied warrant of habitability is a "creature of public policy" that is designed "to protect purchasers of new houses upon discovery of latent defects in theirhomes." Redarowicz v. Ohlendorf, 92 Ill.2d 171, 183, 65 Ill.Dec. 411, 441 N.E.2d 324 (1982). Historically, the rule of caveat emptor governed sales of real property, and buyers could only rely on contract law in order to hold builders liable for defects in the construction of new homes. See Redarowicz, 92 Ill.2d at 180, 65 Ill.Dec. 411, 441 N.E.2d 324. This rule remained unchanged in the United States until 1957, when the implied warranty of habitability was first applied. See Redarowicz, 92 Ill.2d at 180, 65 Ill.Dec. 411, 441 N.E.2d 324, citing Vanderschrier v. Aaron, 103 Ohio App. 340, 140 N.E.2d 819 (1957).

The Illinois Supreme Court first recognized the warranty in the landlord-tenant context in

[344 Ill.Dec. 341, 936 N.E.2d 1098]

Jack Spring, Inc. v. Little, 50 Ill.2d 351, 280 N.E.2d 208 (1972), and later expanded the warranty to the sale of new homes in Petersen v. Hubschman Construction Co., 76 Ill.2d 31, 27 Ill.Dec. 746, 389 N.E.2d 1154 (1979). Since Petersen, the warranty has been steadily expanded over the years in order to serve the underlying public policy of protecting new homeowners. The class of plaintiffs with standing to sue for violation of the implied warranty has been expanded. See, e.g., Redarowicz v. Ohlendorf, 92 Ill.2d 171, 65 Ill.Dec. 411, 441 N.E.2d 324 (1982) (successive purchasers). The types of structures covered by the warranty have also been expanded. See, e.g., VonHoldt v. Barba & Barba Construction, Inc., 175 Ill.2d 426, 222 Ill.Dec. 302, 677 N.E.2d 836 (1997) (new additions to existing structures); Park v. Sohn, 89 Ill.2d 453, 60 Ill.Dec. 609, 433 N.E.2d 651 (1982) (home lived in by...