Ollivier v. Alden
| Decision Date | 17 May 1994 |
| Docket Number | No. 2-93-0221,2-93-0221 |
| Citation | 262 Ill.App.3d 190,634 N.E.2d 418,199 Ill.Dec. 579 |
| Parties | , 199 Ill.Dec. 579 Jean-Pierre OLLIVIER, et al., Plaintiffs-Appellants, v. John ALDEN, Sr. et al., Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Richard J. Biondi, Wasneski, Biondi & Waldeck, Waukegan, for John Alden, Sr., John Alden, Jr., and Ronald R. Alden.
The plaintiffs, Jean-Pierre, Anne and Charles Ollivier, appeal from an order of the circuit court of Lake County rejecting their claims of breach of contract, breach of the implied warranty of habitability and fraudulent misrepresentation against the defendants, John, Sr., John, Jr., and Ronald R. Alden, in connection with the sale by the defendants to the plaintiffs of real estate in Waukegan.
On November 14, 1984, the plaintiffs entered into a written contract to buy a 132-year-old residence at 321 N. Utica Street, Waukegan, from the defendants. The dwelling had been extensively renovated by the defendants and was being used as a four-unit rental apartment building. The defendants disclosed to the plaintiffs at the time the contract was written that the dwelling had leaks in the roof and basement. The following typewritten provisions were added to the printed-form real estate contract:
The closing was set for December 19, 1984. On November 29, 1984, Charles Ollivier, a coplaintiff and attorney for the plaintiffs throughout this matter, wrote a letter to the defendants' attorney in which he requested the following modifications:
In response to Ollivier's letter, the defendants' attorney amended the guarantee contained in paragraph J to read:
"(J) Sellers guarantee that the roof and basement shall be free of leaks and that all utilities shall be in good working order at the time of closing; this guarantee shall not survive the closing for a period longer than 6 months thereafter." (Emphasis added.)
Additionally, the defendants added the following line to paragraph H of the printed contract: "That there shall be no unresolved tenant complaints at the time of closing."
The sale was closed pursuant to the amended contract on December 20, 1984. Thereafter, the defendants attempted on at least four occasions to fix the leaks referred to in the contract, but they were unable to do The plaintiffs filed a two-count complaint against the defendants on December 21, 1990, alleging breach of the implied warranty of habitability and breach of contract. On June 7, 1991, the plaintiffs filed an amended complaint to add a count alleging fraudulent misrepresentation.
[199 Ill.Dec. 582] so. In December 1985, the defendants refused to attempt any further repairs to the building. By 1986, paint which the defendants had applied to the original exterior pealed away, exposing some rotted wood. The plaintiffs also became aware of numerous other problems with the building.
On April 7, 1992, the defendants filed a motion for summary judgment (735 ILCS 5/2-1005 (West 1992)) as to count I, breach of the implied warranty of habitability, and count II, breach of contract, arguing that the four-year limit statute of limitations imposed by statute on all claims based on the construction of improvements to real property had expired. See Ill.Rev.Stat.1991, ch. 110, par. 13-214(a) ().
On April 30, 1992, the trial court granted the defendants' motion for summary judgment on counts I and II, denied the plaintiffs' motion to extend the time for discovery, and set a June 16, 1992, trial date on the remaining fraudulent misrepresentation count.
Following a further delay, a bench trial was conducted on August 26, 1992, after which the court found for the defendants. The plaintiffs filed a petition for a rule to show cause and vacate judgment on September 22, 1992. Following a hearing on December 15, 1992, the trial court denied the petition and determined that it was "frivolous and unfounded." On January 28, 1993, the trial court granted the defendants' motion for sanctions in the amount of $750.
On appeal, the plaintiffs make numerous allegations of error, several of which relate to matters of discovery and rulings by the trial court both before and after trial. The plaintiffs' primary claims are that the trial court erred by granting summary judgment as to counts I and II of their complaint and by determining after a bench trial that the defendants were not guilty of fraudulent misrepresentation. For the following reasons, we affirm the trial court's grant of summary judgment as to the implied warranty of habitability and its judgment on the fraud count. We reverse the grant of summary judgment as to one portion of the plaintiffs' breach of contract allegation, vacate the imposition of sanctions, and we remand for further proceedings consistent with this opinion.
Summary judgment is properly granted only if the pleadings, depositions, admissions and affidavits, if any, show 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 (West 1992)); Neofotistos v. Metrick Electric Co. (1991), 217 Ill.App.3d 506, 507, 160 Ill.Dec. 381, 577 N.E.2d 511.) When considering whether a genuine fact issue exists, the trial court must view the evidence in the light most favorable to the nonmoving party. (Neofotistos, 217 Ill.App.3d at 507, 160 Ill.Dec. 381, 577 N.E.2d 511.) On appeal, we have de novo review of a grant of summary judgment. Town of Avon v. Geary (1991), 223 Ill.App.3d 294, 299, 165 Ill.Dec. 798, 585 N.E.2d 194.
The trial court erred when it determined that the plaintiffs' claims were barred by the four-year statute of limitations on claims arising out of construction of improvements to real estate. (See Ill.Rev.Stat.1991, ch. 110, par. 13-214(a) ().) The renovation that the defendants undertook at the Utica Street property was not repairs or improvements contracted for by the plaintiffs. This case does not involve defective improvements or repairs; rather, it concerns the sale of real estate with an appurtenant structure. There is no factual basis of record to establish that the parties contracted for anything other than the sale, rather than the repair or improvement, of real property.
When the language of a contract is ambiguous, its meaning must be determined in an evidentiary hearing, and, thus, summary judgment is inappropriate. (Loyola Academy v. S & S Roof Maintenance, Inc.
[199 Ill.Dec. 583] (1992), 146 Ill.2d 263, 272, 166 Ill.Dec. 882, 586 N.E.2d 1211.) Conversely, when the language of a contract is unambiguous, the intent of the parties at the time the agreement was entered into must be determined from the language used in the agreement itself, not from the construction placed upon it afterwards by the parties. (Fitzwilliam v. 1220 Iroquois Venture (1992), 233 Ill.App.3d 221, 230, 174 Ill.Dec. 371, 598 N.E.2d 1003.) An ambiguity is not created merely because the parties disagree as to the meaning of a contract clause. People ex rel. Burris v. Memorial Consultants, Inc. (1992), 224 Ill.App.3d 653, 656, 167 Ill.Dec. 152, 587 N.E.2d 34
Whether an ambiguity exists is a question of law for the trial judge, not a jury, to determine. (Srivastava v. Russell's Barbecue, Inc. (1988), 168 Ill.App.3d 726, 732, 119 Ill.Dec. 562, 523 N.E.2d 30.) Therefore, if a contract unambiguously demonstrates that there is no factual dispute, summary judgment is properly granted. (Fitzwilliam, 233 Ill.App.3d at 237, 174 Ill.Dec. 371, 598 N.E.2d 1003.) Express warranties contained within contracts are to be construed consistent with the clear and natural import of the language used. Illinois Valley Asphalt, Inc. v. La Salle National Bank (1977), 54 Ill.App.3d 317, 320-21, 12 Ill.Dec. 28, 369 N.E.2d 525.
In the absence of an express clause in a contract, the contract for the sale of real estate is "merged" into the deed when it is delivered to the buyer at closing, and the deed supersedes all of the contract provisions. (Holec v. Heartland Builders, Inc. (1992), 234 Ill.App.3d 253, 255, 175 Ill.Dec. 558, 600 N.E.2d 489; see also Petersen v. Hubschman Construction Co. (1979), 76 Ill.2d 31, 27 Ill.Dec. 746, 389 N.E.2d 1154.) However, when an executory contract contains provisions that are collateral to and independent of the provisions of the subsequent deed, there is no merger, and the independent contract clauses survive the delivery of the deed. Holec, 234 Ill.App.3d at 255, 175 Ill.Dec. 558, 600 N.E.2d 489.
In the present matter, paragraph H provided that "there would be no unresolved tenant complaints at the time of closing." Paragraph K provided that the sellers would install drain spouts and gutters "prior to closing, and that the same shall be in working order at the time of closing." Thus, the...
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