Kirkpatrick v. Strosberg

Decision Date08 August 2008
Docket NumberNo. 2-06-0724.,No. 2-06-0731.,2-06-0724.,2-06-0731.
Citation385 Ill.App.3d 119,894 N.E.2d 781
PartiesJohn KIRKPATRICK, William Smith, Mary Elizabeth Sentowski, and Gregory Caldwell, Plaintiffs-Appellants, v. David STROSBERG, Morningside Development Group, Inc., and Glen Astor Condominium Investors L.P., Defendants-Appellees. John Kirkpatrick, William Smith, Mary Elizabeth Sentowski, and Gregory Caldwell, Plaintiffs-Appellees, v. David Strosberg, Morningside Development Group, Inc., and Glen Astor Condominium Investors L.P., Defendants-Appellants.
CourtUnited States Appellate Court of Illinois

Frank J. DeSalvo, Todd M. Cowden, Law Offices of DeSalvo & Cowden, P.C., Wheaton, for Glen Astor Condominium Investors L.P., Morningside Development Group Inc., David Strosberg.

Justice McLAREN delivered the opinion of the court:

Plaintiffs, John Kirkpatrick, William Smith, Mary Elizabeth Sentowski, and Gregory Caldwell, buyers of luxury condominiums in Glen Ellyn, Illinois, appeal the trial court's judgment in favor of defendants, David Strosberg, Morningside Development Group, Inc., and Glen Astor Condominium Investors L.P., builders of the condominiums, on certain breach-of-contract and consumer-fraud claims. Plaintiffs also appeal the trial court's award of nominal damages to them on the consumer-fraud counts regarding a ceiling-height issue. Defendants appeal the trial court's judgment in favor of plaintiffs on certain breach-of-contract and consumer-fraud claims, the award of nominal damages in favor of plaintiffs on the consumer-fraud counts regarding the ceiling-height issue, punitive damages, and attorney fees. We affirm.

Plaintiffs filed their original 16-count complaint against defendants in May 2000, alleging breach of contract, bad-faith breach of contract, common-law fraud, and violations under the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1996)), relating to plaintiffs' purchases of luxury condominium units in Glen Ellyn. The matter eventually proceeded to trial on plaintiffs' third amended complaint alleging breach of contract, common-law fraud, and violations of the Consumer Fraud Act. Following a four-day bench trial, the trial court found for plaintiffs on their claims for breach of contract and consumer fraud, but found that plaintiffs failed to present a reasonable basis for calculating damages and, thus, awarded plaintiffs only nominal damages of $100 each. Further, the trial court awarded plaintiff Kirkpatrick $15,865 on his claim for breach of contract relating to his custom master bathroom. The trial court also found in found in favor of defendants and against plaintiff Smith on his claim relating to his need to recut his cabinetry and millwork. The trial court subsequently awarded plaintiffs $83,000 in attorney fees and $300,000 in punitive damages.

Defendant Morningside Development Group, Inc. (Morningside), is an Illinois corporation and general partner of defendant Glen Astor Condominium Investors, L.P. (Glen Astor), which is an Illinois limited partnership engaged in the construction of residential real estate in Glen Ellyn. Defendant David Strosberg is the president of Morningside. Plaintiffs entered into written purchase agreements with defendant Glen Astor for the purchase of luxury condominium units on the top floor of a six-floor condominium project known as Glen Astor Condominiums in Glen Ellyn, which agreements were executed in 1996 and 1997 and closed between August and December of 1997.

Plaintiffs alleged that, prior to entering into the written purchasing agreements, they reviewed sales brochures with copies of various floor plans indicating the square footage of their unit choices and also indicating that the units had nine-foot ceilings. Plaintiffs Kirkpatrick, Smith, and Sentowski testified that defendant Strosberg told them that their units would be constructed with nine-foot ceilings. After plaintiffs purchased their condominiums, they discovered that their units were not of the promised square footage and that their ceilings were only 8 feet 6 inches high. Further, plaintiffs testified that they reviewed floor plans that, in the cases of plaintiffs Caldwell, Smith, and Sentowski, were attached to and made a part of their contracts indicating the total square footage of their respective units. However, the total square footage of the finished units was less than the promised figures. Plaintiffs' expert appraiser, David Philips, testified to the exact deficiencies noted in his reports, which contained detailed measurements and calculations. Philips' report was ultimately entered into evidence at trial without objection.

Each of the written agreements contained the following language:

"5. Seller Improvements: a. Seller shall improve the parcel with a residential building including the premises substantially in accordance with the plans and specifications for the premises by Daniel LeNoble and Associates on file in Seller's Office ('architect's plans'), subject to change orders entered into by buyer and seller on Rider B after the date hereof, if any, and any specifications attached hereto as Rider D."

Rider B contained the following language:

"All dimensions on the attached marked-up floor plan dated ____ are approximate and subject to adjustments due to the actual location of piping, electrical, studs, steel bar joists, and other building components."

Defendants established that representations of ceiling height and square footage were based upon the architectural plans prepared by Daniel LeNoble and Associates, Inc., working within the parameters approved by the Village of Glen Ellyn.

Daniel LeNoble and Associates, Inc., prepared architectural drawings for a six-story building with each unit to have a ceiling height of approximately 8 feet 11 inches. During construction it was discovered that there was insufficient room to provide for 8-foot-11-inch ceilings on the top floor (all plaintiffs' units) of the condominium, due to the space required for the roof components. As a result, defendants' building superintendent, Michael Cucka, decided to lower the ceiling heights on the top floor by five or six inches.

Plaintiff Kirkpatrick also contracted defendants' architect Daniel LeNoble to design a custom master bath to be constructed by defendants in his unit. During construction of the sixth-floor units, Cucka learned that LeNoble's drawing failed to correctly indicate the mechanical components running through the chase (a hollow column running through the building and extending into the rooms) of the building. As a result, Kirkpatrick's bathroom had to be reconfigured at a cost of $31,730.

Plaintiff Smith also alleged breach of contract against defendants regarding custom kitchen millwork and cabinets that, because of the lower ceiling, had to be recut in order to fit. Smith testified that he relied on floor plans from defendants, which stated that the ceilings were nine feet high, to plan his custom kitchen millwork and cabinets. After cutting the wood for the millwork and cabinets, Smith took field measurements and discovered that the ceilings in his unit were only 8 feet 6 inches high. His millwork and cabinets had to be recut at a cost of $24,115.

On the issue of square footage, the trial court heard the testimony of each plaintiff; defendant David Strosberg; master appraisers Douglas Adams and David Philips; and architects Richard Cook and Daniel LeNoble.

Philips testified that his method of measuring the square footage of the units was the "paint-to-paint" method, which measured square footage from inside wall to inside wall. This method resulted in a smaller square footage than the method used by LeNoble. LeNoble testified that he measured from the outside wall to half of the demising wall, which is a commonly accepted way of calculating square footage.

The trial court determined that the difference in square footage was in fact due to a difference in measuring methodology and that the method used by LeNoble was appropriate and proper. The square footage dimensions depicted on the floor plans were exactly what each plaintiff received and, accordingly, the trial court denied plaintiffs' breach-of-contract, common-law-fraud, and Consumer Fraud Act claims regarding square footage.

The trial court also determined that plaintiff Kirkpatrick was entitled to damages relating to his master bathroom and that said damages should be apportioned 50% to the architect, Daniel LeNoble, as Kirkpatrick's agent, and 50% to defendant Glen Astor. Accordingly, the trial court awarded Kirkpatrick $15,865.

The trial court found that plaintiff Smith's claim for damages relating to recutting custom millwork due to the ceiling height was barred by the contractual language that required that he make field measurements prior to ordering materials. The contract between plaintiff Smith and defendants stated in Rider B:

"9. Seller shall not be required to review Buyer's architectural plans for the Buyer's improvements, and Seller shall not oversee Buyer's work on the premises. Seller makes no warranty whatsoever to Buyer that the premises and its components are complete or compatible with the Buyer's improvements. Buyers understand that all dimensions on the Seller's plans and specifications are approximate and subject to modification for actual field conditions. Field measurement is required to conform dimensions prior to ordering materials."

As to plaintiffs' breach-of-contract claims regarding the lower ceilings, the trial court found that there was a breach of contract in that the contracts provided for approximately 8-foot-11-inch ceilings, that plaintiffs received 8-foot-8-inch ceilings, and that, therefore, there were actual damages. The trial court stated that defendants'...

To continue reading

Request your trial
72 cases
  • Ner Tamid Congregation of N. Town v. Krivoruchko
    • United States
    • U.S. District Court — Northern District of Illinois
    • July 7, 2009
    ...breach. See City of Chicago v. Lehmann, 262 Ill. 468, 473-474, 104 N.E. 829 (1914); Kirkpatrick v. Strosberg, 385 Ill.App.3d 119, 323 Ill.Dec. 755, 894 N.E.2d 781, 792 (2nd Dist.2008)(evidence as to fair market value too far removed from date of breach where expert based opinion on data sev......
  • Abellan v. Lavelo Prop. Mgmt., LLC
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • September 4, 2019 entitled to be placed in the position he would have been in had the contract been performed." Kirkpatrick v. Strosberg , 385 Ill.App.3d 119, 323 Ill.Dec. 755, 894 N.E.2d 781, 792 (2008), citing Wilson v. DiCosola , 352 Ill.App.3d 223, 287 Ill.Dec. 331, 815 N.E.2d 975, 978 (2004). Recover......
  • The Forest Pres. Dist. Of Du Page County v. First Nat'l Bank Of Franklin Park
    • United States
    • United States Appellate Court of Illinois
    • June 30, 2010
    ...this argument through their failure to raise it in their opening brief. 210 Ill.2d R. 341(h)(7); Kirkpatrick v. Strosberg, 385 Ill.App.3d 119, 127, 323 Ill.Dec. 755, 894 N.E.2d 781 (2008). Even if this argument were not forfeited, it would be unsuccessful, as the Polach and Phillips apprais......
  • Kovac v. Barron
    • United States
    • United States Appellate Court of Illinois
    • March 7, 2014
    ...Id. ¶ 59 Where the evidence conflicts, it is the role of the trial court to resolve that conflict. Kirkpatrick v. Strosberg, 385 Ill.App.3d 119, 129, 323 Ill.Dec. 755, 894 N.E.2d 781 (2008). Trial courts view the demeanor of the witnesses and are in the best position to determine their cred......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT