Smith v. NVR, Inc.
| Decision Date | 16 April 2021 |
| Docket Number | 17 C 8328 |
| Parties | PAUL SMITH and DEBORAH SMITH, Plaintiffs, v. NVR, INC., Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
In this diversity suit against NVR, Inc., Paul and Deborah Smith allege that the home NVR constructed for them did not conform to its advertised and agreed-upon specifications. Doc. 46. On NVR's motion under Civil Rule 12(b)(6), the court dismissed some of the Smiths' claims under the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 ILCS 505/1 et seq., but allowed two of their ICFA claims and all of their breach of contract claims to proceed. Docs. 73-74 (reported at 2018 WL 6335051 (N.D. Ill. Dec. 5, 2018)). The court then denied the Smiths' motion for class certification. Docs. 113-114 (reported at 2019 WL 6838938 (N.D. Ill. Dec. 16, 2019)). A jury trial is set for August 2, 2021. Doc. 180.
Before the court is NVR's motion to exclude certain opinions of the Smiths' expert, James Collins, Doc. 145, NVR's motion for summary judgment on all of the Smiths' claims, Doc. 146, and the Smiths' motion for partial summary judgment on two of their claims, Doc. 149. For the reasons and to the extent set forth below, NVR's motion to exclude is granted in part and denied in part, NVR's summary judgment motion is granted in part and denied in part, and the Smiths' motion for partial summary judgment is denied.
Because the parties cross-move for summary judgment, the court must consider the facts in the light most favorable to the Smiths when considering NVR's motion and in the light most favorable to NVR when considering the Smiths' motion. See First State Bank of Monticello v. Ohio Cas. Ins. Co., 555 F.3d 564, 567 (7th Cir. 2009) () (internal quotation marks omitted). To the extent a disputed fact relates to both sides' motions, the court will set forth the parties' respective positions. At this juncture, the court does not vouch for either side's version of the facts. See Gates v. Bd. of Educ. of Chi., 916 F.3d 631, 633 (7th Cir. 2019).
NVR, which operates under the name "Ryan Homes," builds homes. Doc. 148 at ¶ 1; Doc. 162 at p. 1. The Smiths purchased a home from NVR, to be constructed in the Tall Pines subdivision in Plainfield, Illinois. Doc. 148 at ¶¶ 6-7; Doc. 151 at ¶ 2; Doc. 162 at p. 4. The parties' contract, which they call the "Purchase Agreement," stated that it was the "entire and final Agreement" and that any "other prior or contemporaneous agreements, representations, promises or terms (written or oral)" would be superseded. Doc. 148 at ¶¶ 8-9; Doc. 162 at p. 4. The Agreement further provided that any "oral statements or promises" not memorialized in the contract would be unenforceable. Doc. 148 at ¶¶ 10-11; Doc. 162 at p. 5. Additionally, it stated that the home NVR would build might differ from what the Smiths had seen in "advertisements and marketing information." Doc. 148 at ¶ 12; Doc. 162 at p. 5. In particular, the Agreement granted NVR "the right to substitute similar materials of substantially equivalent quality" and "the right to make changes in the Plans and Specifications for purposes of mechanical installations, building code and site requirements, and reasonable architectural designimprovements." Doc. 148 at ¶ 13; Doc. 151 at ¶ 4. The Smiths paid $235,400 for the home, including the land. Doc. 148 at ¶ 16; Doc. 162 at p. 6.
After conducting several building inspections, the Village of Plainfield issued a certificate of occupancy. Doc. 148 at ¶¶ 17-18; Doc. 162 at p. 6. A dispute soon arose as to whether NVR had properly constructed the Smiths' home to its specifications. In particular, the Smiths believe that the home was deficient as to: (1) the kitchen and bathroom cabinets; (2) the roofing shingles; (3) the HVAC system; (4) the water lines; and (5) the floor framing. Doc. 46 at ¶¶ 13-27.
Before buying the home, the Smiths received a brochure titled "Tall Pines at Grande Park Included Features." Doc. 148 at ¶ 20; Doc. 162 at p. 7. The Included Features brochure referenced "Timberlake Honey Oak or Maple Cabinetry" as an option for the kitchen cabinets and "Timberlake Natural Oak Vanity" as an option for the bathroom cabinets. Doc. 148 at ¶ 26; Doc. 162 at p. 8. After reviewing sample cabinet doors, the Smiths opted to upgrade to "Sonoma maple espresso" kitchen and bathroom cabinets for an additional cost of $4,790. Doc. 148 at ¶¶ 28-30, 35-36; Doc. 162 at pp. 8-9, 15; Doc. 168 at ¶ 17.
The "master selection sheet" incorporated into the contract, Doc. 148 at ¶ 31; Doc. 162 at p. 8, listed the following options for kitchen cabinetry, in addition to Sonoma maple espresso: Fairfield wheat, Scottsdale maple cognac, Scottsdale maple espresso, Tahoe Cherry Bordeaux, Sonoma "PTDLIN/MPLESP," Sonoma painted linen, Rushmore maple espresso, Rushmore cherry spice, Rushmore "PTDHAZ/MPLESP," Rushmore painted glaze hazelnut, Rushmore painted linen, and Rushmore "PTDLIN/STONE." Doc. 148-1 at 152. The bathroom cabinetry options were similar. Id. at 152-53. The master selection sheet noted a "TBD" selection for thecabinets, ibid., and the Smiths' eventual selection of Sonoma maple espresso cabinets appeared in a document titled "Change Order Addendum to Purchase Agreement," Doc. 148 at ¶ 34; Doc. 148-1 at 157; Doc. 162 at p. 9.
Before selecting those cabinets, the Smiths discussed cabinet options with several NVR sales representatives. Doc. 162 at p. 15; Doc. 168 at ¶ 14. Paul claims that he came away from those conversations thinking that the cabinets would be made of solid maple wood. Doc. 162 at p. 15. Neither the representatives nor the brochure, however, at any time used the phrases "solid wood," "all wood," or "solid maple wood" in reference to the cabinets. Doc. 148 at ¶¶ 27, 39; Doc. 162 at pp. 8, 10.
The Sonoma maple espresso cabinets that NVR installed were not made of solid maple wood, but instead had only a wood veneer. Doc. 162 at p. 3. When construction was complete, the Smiths met with an NVR representative for a "new home orientation." Doc. 148-1 at 165. After the meeting, Paul signed a report with a checkmark indicating that the cabinets were in "good condition." Doc. 148 at ¶ 40; Doc. 148-1 at 165; Doc. 162 at p. 10.
The Included Features brochure listed 30-year shingles as an included feature. Doc. 162 at p. 15; Doc. 168 at ¶ 16. NVR instead installed 25-year shingles on the Smiths' home. Doc. 148 at ¶ 21; Doc. 162 at p. 7. In 2019, the Tall Pines homeowners' association had the 25-year shingles replaced with 30-year shingles at no cost to the Smiths. Doc. 148 at ¶¶ 22-24; Doc. 162 at p. 7. The Smiths do not claim that this replacement was in any way related to NVR's alleged error in originally installing 25-year shingles rather than 30-year shingles.
The model home plans did not detail the specific furnace or air conditioning condenser models that NVR would install. Doc. 151 at ¶¶ 12-13; Doc. 160 at ¶¶ 12-13. In May 2016, NVR submitted a "Building Summary," Doc. 151-3, to the Village for review and approval. Doc. 151 at ¶¶ 14, 16-17; Doc. 160 at ¶¶ 14, 16-17. NVR's HVAC-related calculations suggested that it would install an 80,000-BTU furnace and a 3-ton air conditioning condenser. Doc. 151 at ¶¶ 14, 16-17, 20-21; Doc. 160 at ¶¶ 14, 16-17, 20-21. After reviewing the submission, the Village issued a building permit. Doc. 151 at ¶ 25; Doc. 160 at ¶ 25.
The HVAC system that NVR installed in the Smiths' home differed from the initial plans. Doc. 151 at ¶¶ 28-30; Doc. 160 at ¶¶ 28-30. Specifically, NVR installed a 60,000-BTU furnace rather than the 80,000-BTU model, and a 2.5-ton condenser rather than the 3-ton model. Doc. 151 at ¶¶ 31-34; Doc. 160 at ¶¶ 31-34. NVR told Paul that the deviations resulted from new HVAC calculations that NVR's contractor had performed after submitting the "Building Summary" to the Village, and that the Village had not reviewed or approved the new calculations. Doc. 151 at ¶¶ 37-38; Doc. 160 at ¶¶ 37-38.
The parties' Local Rule 56.1 statements and responses do not provide details on the water line dispute, but the complaint alleges that the water supply lines installed by NVR have a narrower diameter than the diameter indicated in the plumbing fixture calculations approved by the Village. Doc. 46 at ¶ 24. According to the Smiths, the narrower water lines are not of substantially equivalent quality to the wider lines. Ibid.
The plans for the model of home the Smiths selected included details for the floor framing (that is, the home's structural support). Doc. 151 at ¶ 7; Doc. 160 at ¶ 7. Those plans were set forth in NVR's submission to the Village. Doc. 151 at ¶ 22; Doc. 160 at ¶ 22. The floor framing installed by NVR differed from what had been shown on the construction drawings. Doc. 151 at ¶¶ 26-27; Doc. 160 at ¶¶ 26-27. The details of the deviations are complex and not germane to the pending motions.
The Smiths sued NVR on behalf of themselves and a putative class of similarly situated homebuyers. Doc. 1. The complaint asserted two counts under Illinois law, one for violating the ICFA and the other for breach of contract. Id. at ¶¶ 25-33. For convenience, this opinion treats the complaint as asserting five separate ICFA claims and five separate contract claims—one for each category of alleged construction deficiency.
The court dismissed the original complaint's ICFA claims in their entirety and its contract claims relating to the HVAC system, water lines, and floor framing. Docs. 44-45 (reported at 2018 WL 2718038 (N.D. Ill. June 6, 2018)). The Smiths filed an amended complaint,...
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