Lasalle Nat. Bank v. Willis

• Decision Date: 14 December 2007
• Docket Number: No. 1-06-3619.,No. 1-06-3616.,No. 1-06-3564.,1-06-3564.,1-06-3616.,1-06-3619.
• Parties: LaSALLE NATIONAL BANK, as Trustee under Trust Agreement known as Trust No. A7710727006, and Michele Kosovich, Special Administrator of the Estate of Dolores Witt, Plaintiffs-Appellants and Cross-Appellees, v. John C. WILLIS, Defendant-Appellee and Cross-Appellant (Quality Excavation, Inc., Defendant). John C. Willis, Counterplaintiff-Counterdefendant, v. Quality Excavation, Inc., Counterdefendant-Counterplaintiff. LaSalle National Bank, as Trustee under Trust Agreement known as Trust No. A7710727006, and Michele Kosovich, Special Administrator of the Estate of Dolores Witt, Plaintiff-Respondents, v. John C. Willis and Quality Excavation, Inc., Defendants-Petitioner. LaSalle National Bank, as Trustee under Trust Agreement known as Trust No. A7710727006, and Michele Kosovich, Special Administrator of the Estate of Dolores Witt, Plaintiffs-Appellees, v. John C. Willis, Defendant-Appellant (Quality Excavation, Inc., Defendant). John C. Willis, Cross-Plaintiff, v. Quality Excavation, Inc., Cross-Defendant.
• Court: United States Appellate Court of Illinois

880 N.E.2d 1075

378 Ill. App. 3d 307

LaSALLE NATIONAL BANK, as Trustee under Trust Agreement known as Trust No. A7710727006, and Michele Kosovich, Special Administrator of the Estate of Dolores Witt, Plaintiffs-Appellants and Cross-Appellees, v. John C. WILLIS, Defendant-Appellee and Cross-Appellant (Quality Excavation, Inc., Defendant).

John C. Willis, Counterplaintiff-Counterdefendant, v. Quality Excavation, Inc., Counterdefendant-Counterplaintiff.

LaSalle National Bank, as Trustee under Trust Agreement known as Trust No. A7710727006, and Michele Kosovich, Special Administrator of the Estate of Dolores Witt, Plaintiff-Respondents, v. John C. Willis and Quality Excavation, Inc., Defendants-Petitioner.

LaSalle National Bank, as Trustee under Trust Agreement known as Trust No. A7710727006, and Michele Kosovich, Special Administrator of the Estate of Dolores Witt, Plaintiffs-Appellees, v. John C. Willis, Defendant-Appellant (Quality Excavation, Inc., Defendant).

John C. Willis, Cross-Plaintiff, v. Quality Excavation, Inc., Cross-Defendant.

No. 1-06-3564.

No. 1-06-3616.

No. 1-06-3619.

Appellate Court of Illinois, First District, Fifth Division.

December 14, 2007.

Donald L. Bertelle, Chicago, for Plaintiffs-Appellants and Cross-Appellees.

Robert C. Heist, Anne-Marie Foster, R. Conner & Associates, P.C., Chicago, for Defendant-Appellee and Cross-Appellant, Counterplaintiff-Counterdefendant,

John J. Daley, Gregory T. Glenn, Prusik Selby Daley & Kezelis, P.C, Chicago, for Defendant, Counterdefendant-Counterplaintiff.

Presiding Justice FITZGERALD SMITH delivered the opinion of the court:

John Willis bought property neighboring a house in Chicago owned by long-time resident Dolores Witt. He hired Quality Excavation, Inc., to demolish the structure on his property and to excavate the site. Work done on Willis's property allegedly used improper shoring and damaged Witt's house, forcing Witt to evacuate her home of nearly 80 years and, ultimately, to sell the property. These three consolidated cases arose from the property damage to Witt's house.

In the initial appeal, No. 1-06-3564, plaintiffs LaSalle National Bank, as Trustee under Trust Agreement known as Trust No. A7710727006 (Trustee), and Michele Kosovich, special administrator of the estate of Dolores Witt (collectively, plaintiffs), appeal from the circuit court's order barring and dismissing with prejudice claims for punitive damages against defendant and counterplaintiff-counterdefendant John Willis (defendant, or Willis). On appeal, plaintiffs contend that their claims for punitive damages survive Witt's death in order to sanction Willis's wrongful conduct and to provide a complete remedy. For the reasons that follow, we affirm the ruling of the circuit court.

The appeals in the cross-actions involve issues relating to motions in limine and they come before this court as permissive interlocutory appeals pursuant to Supreme Court Rule 308. 155 Ill.2d R. 308. In appeal No. 1-06-3616, defendant and counterdefendant-counterplaintiff Quality Excavation, Inc. (defendant or Quality), contends that the circuit court erred by not granting its motion in limine to bar Willis from pursuing a claim for punitive damages against it. The certified question in this appeal asks this court whether Willis may seek punitive damages when he did not obtain leave of the court in compliance with section 2-604.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-604.1 (West 2002)).

Finally, in appeal No. 1-06-3619, Willis contends that the court improperly ruled that the applicable measure of damages was the cost of repair to Witt's property. The certified question in this appeal asks if the proper measure of property damages to a structure that no longer exists is the reasonable expense of necessary repairs, as set forth in Illinois Pattern Jury Instructions, Civil, No. 30.17 (2005) (hereinafter IPI Civil (2005) No. 30.17), or if damages are correctly measured by the difference between the fair market value of real property immediately before the occurrence and its fair market value immediately after the occurrence, as set forth in Illinois Pattern Jury Instructions, Civil, No. 30.18 (2005) (hereinafter IPI Civil (2005) No. 30.18). We address each of these appeals in turn and answer the first certified question in the negative; in the second, we affirm the court's ruling by answering that the proper measure of damages is that provided in IPI Civil (2005) No. 30.17.

BACKGROUND

Factual Background

According to the pleadings, Dolores Witt inherited the property located at 2323 North Southport, in Chicago, from her parents and she was the owner of the property as the beneficiary of LaSalle National Bank Land Trust No. A7710717006, which held the legal title to the property. Witt, who was born in 1919, moved into the house at 2323 North Southport by 1922 and she lived there until she was forced to move in 2001.

In 1999, Willis bought the property located at 2325 North Southport, which was neighboring Witt's to the immediate north. In 2001, Willis acted as his own general contractor and caused the house at 2325 North Southport to be torn down. He replaced it with a $2 million residence for himself. Willis hired Quality to do the demolition of the then-existing house at 2325 North Southport and the shoring and excavation work preparatory to the construction of his new residence.

Starting in August 2000, Witt received various communications from Willis concerning his planned demolition and construction. First, Witt received a letter from Willis regarding the zoning on his property and seeking her consent to a zoning change that would allow him to build a three-story structure. In December 2000, Witt received a second letter from Willis, which was predated to November 2000. In that letter, Willis informed Witt that demolition and construction on his property would begin in the near future. That letter also concerned the new building's set back and a decrease in the side yard between Willis's property and Witt's property.

In January 2001, Witt received a letter from Willis's attorney, dated the previous month, seeking a "zoning exception" to reduce the size of Willis's front yard and the side yard between their properties. On January 16, 2001, Witt wrote a letter to the zoning department, objecting to Willis's request for an exception. Willis later told Witt that he would file suit against her for a purported encroachment of her house onto his property.

The following month, Willis hired Quality to demolish the then-existing house at 2325 North Southport and to excavate the property for a basement foundation. Defendants allegedly intended that the excavation would be deeper than Witt's house and less than 21 inches from her foundation. On February 2, 2001, the price for Quality's work on Willis' property did not include the cost of the shoring.

In March 2001, Witt received another letter from Willis, seeking her permission for a zoning exception and attempting to avoid legal action against her. In that letter, Willis promised that certain work, including the removal of the old walkway and steps, would be "performed with extreme care causing no harm to your property." Witt agreed to the zoning exception.

Later that month, John Barrett, the president of Quality, determined that shoring would be necessary to protect Witt's house before the excavation of Willis' property and that the shoring would have to be reinforced or braced. Toward the end of March, Willis and Barrett discussed various shoring methods and the need for reinforcement or bracing to protect Witt's house. Willis told Barrett that there was no need to protect Witt's house because he planned to buy the property and tear down the house on it. Willis insisted that a cheaper shoring method, without bracing, be used. Barrett warned Willis, who allegedly understood the consequences of proceeding in that manner, that it would result in damage to Witt's house but would prevent it from collapsing onto Willis' property. Willis assured Barrett that he would accept full responsibility and all liability for any damage to Witt's house resulting from the shoring method that he insisted be used.

Grace McNally, a co-owner of Quality, was asked by Barrett to prepare a document memorializing Willis' choice of shoring. On March 29, 2001, Willis signed a shoring agreement, in which he was referred to as "Developer." In the agreement, Willis acknowledged the advice he received from Barrett, that there might be a "possible shift" to the property, that the choice of shoring was based on that information, and that he, Willis, accepted "full responsibility and liability" for damage to Witt's house. In the shoring agreement, Willis also stated that he intended to assume ownership of the Witt property with "future plans to demolish" the house.

On or about March 26, 2001, Quality began demolition of the structure at 2325 North Southport. After the demolition was completed and before excavation began, Quality installed the unbraced sheet pile shoring as instructed by Willis. The manner in which the piles were driven into the ground allegedly caused vibrations that caused Witt's house to shake and vibrate. The shaking and vibrations, soil shifting, and loss of lateral and subjacent ground support damaged Witt's house in various ways; allegedly, it caused numerous cracks, fractures, and crevices to appear in the ceiling or walls of various rooms of Witt's house, as well as the separation of the back porch from the building. It also allegedly caused the foundation of the house to lean and the building to become "unstable, structurally unsound and in threat of collapse" unless costly repairs were made. Throughout the demolition, shoring, and excavation at 2325 North Southport, which was conducted by Quality at Willis' direction, debris allegedly was allowed to fall onto Witt's property or was intentionally moved onto her property.

In April...