Coughlin v. Gustafson
Citation | 772 N.E.2d 864,265 Ill.Dec. 493,332 Ill. App.3d 406 |
Decision Date | 21 June 2002 |
Docket Number | No. 1-99-1691.,1-99-1691. |
Parties | William C. COUGHLIN and Pamela Coughlin, Plaintiffs-Appellants, v. Nuala GUSTAFSON, Defendant-Appellee. |
Court | United States Appellate Court of Illinois |
Timothy Gallagher, Chicago, for Appellants.
William J. Sneckenberg & Associates, Chicago, for Appellee.
This appeal arises from summary judgment entered in favor of defendant Nuala Gustafson and against plaintiffs William Coughlin and Pamela Coughlin on plaintiffs' four-count complaint which alleged breach of a real estate sales contract, violation of the Residential Real Property Disclosure Act (the Disclosure Act) (765 ILCS 77/1 et seq. (West 1998)), negligence in the removal of fuel oil tanks and cleaning of contaminated areas, and breach of implied warranties of habitability. Plaintiffs concede that summary judgment was proper as to count IV; therefore, we address only the propriety of summary judgment on counts I through III. The issues on appeal are: (1) whether the merger doctrine bars plaintiffs' breach of contract action; (2) whether the merger doctrine bars plaintiffs' action under the Disclosure Act; (3) whether there are genuine issues of material fact which preclude summary judgment on plaintiffs' action under the Disclosure Act; and (4) whether there are genuine issues of material fact which preclude summary judgment as to defendant's alleged negligence. For the reasons that follow, we reverse and remand for further proceedings.
On February 27, 1996, plaintiffs entered into a real estate sales contract with defendant to purchase defendant's home located at 129 South Old Creek Road, Palos Park, Illinois.
The contract contained, inter alia, a home inspection rider, which gave plaintiffs the right to have the property inspected by a certified home inspection service of their choice. The rider provided:
Also, attached to the contract was a rider entitled, "Rider # 5, Seller's Representations," which provided:
The language below the signature line on rider No. 5 states "Certification that roof and foundation are waterproof." The last paragraph on rider No. 5 provides: "Seller will provide written verification from the appropriate governmental authority that the tanks [oil] remaining in crawl space are not in violation of any ordinance or statute."
The contract also provides:
On March 10, 1996, a representative of HouseMaster of America, a home inspection service retained by plaintiffs, inspected the property. The report issued to plaintiffs included the following observations of the crawl space: Plaintiff William Coughlin attended the inspection and, on March 11, 1996, wrote a letter to defendant's attorney stating that he had personally been in the basement, had seen the oil residue, and had smelled the petroleum odor. Plaintiffs requested that defendant remove the fuel tanks and have any contaminated areas cleaned professionally prior to purchase. Plaintiffs gave defendant the name of E.R.I. General Contracting to perform the job and defendant subsequently engaged their services.
On May 23, 1996, Carl's Septic Service, Inc., inspected the septic system and issued a report finding, "[s]eptic field lines are leaking at ends." The parties agreed that defendant would place $1,000 of the proceeds of the sale in an escrow account to ensure the repair of the septic system. In a letter dated June 3, 1996, Carl's Septic Service, Inc., informed plaintiff William Coughlin that the cost of repairing the septic system would range from $8,000 to $9,000.
With regard to the roof, defendant stated at her deposition that she contacted a roofer to obtain certification that the roof was waterproof but he could not come out before the closing. She stated that she informed plaintiffs of this fact. She further stated that she did not agree to furnish certification after closing.
The closing took place on June 3, 1996. The record contains no evidence that plaintiffs gave written notice to defendant of any remaining deficiency. There is no evidence that plaintiffs exercised their right to declare the contract null and void, refused to go through with the closing, or objected to the closing in any way.
On June 2, 1997, plaintiffs filed a four-count complaint against defendant and E.R.I. General Contracting. Count I of the complaint alleged that defendant breached the terms of the written real estate contract by failing to provide certification that the roof and foundation were waterproof and that the septic system was in operating condition. Count II alleged that defendant failed to disclose material defects in the septic system, roof, and foundation in violation of the Disclosure Act (765 ILCS 77/1 et seq. (West 1998)). Count III alleged that defendant was negligent in her removal of the underground oil tanks and in cleaning the areas contaminated by fuel oil. Count IV alleged that defendant was guilty of violation of implied warranties of habitability. On January 12, 1999, defendant filed a motion for summary judgment as to all counts. On April 1, 1999, the trial court granted plaintiffs' oral motion to nonsuit E.R.I. General Contracting and, in addition, granted defendant's motion for summary judgment. As to counts I and II of the complaint, the trial court found as follows:
As to count III, the trial court found:
Summary judgment is proper only when the pleadings, together with any depositions, admissions, or affidavits on file demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (735 ILCS 5/2-1005(c) (West 1998)); Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992). Summary judgment is a drastic measure and should only be granted if the movant's right to judgment is clear and free from doubt. Purtill v. Hess, 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867 (1986). The standard of review on appeal from a grant of summary judgment is de novo. See Outboard Marine Corp., 154 Ill.2d at 102, 180 Ill.Dec. 691, 607 N.E.2d 1204.
Plaintiffs first contend that the trial court erred in granting summary judgment on count I of their complaint because defendant breached the written real estate contract by failing to provide certifications that the roof and foundation are waterproof and that the septic system is in proper operating condition. We find...
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