Swaw v. Ortell
| Decision Date | 20 December 1984 |
| Docket Number | No. 82-2345,82-2345 |
| Citation | 92 Ill.Dec. 49,137 Ill.App.3d 60,484 N.E.2d 780 |
| Parties | , 92 Ill.Dec. 49 Dennis L. SWAW and Melissa S. Swaw, Plaintiffs-Appellants, v. Raymond H. ORTELL, Judith A. Ortell (not parties to this appeal); Presley- Chicago, Inc., formerly Allied-Presley Company, a Delaware corporation, individually and as Successor in Interest to Allied Homes, Inc.; Fred Schmednecht; R.W. Robinson and Associates, Co., an Illinois corporation; Marvin H. Salisbury, Salisbury Engineering, Inc., a foreign corporation authorized to do business in the State of Illinois; Clyde D. Sana; Chicago Shoring and Underpinning, Inc., an Illinois corporation; Lloyd M. David; and the Village of Tinley Park, a municipal corporation, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Chester A. Lizak, Di Monte & Lizak, Chicago, for plaintiffs-appellants.
Stuart M. Widman, Wendy B. Kahn-Much, Shelist, Freed, Denenberg, Ament & Eiger, Chicago, for defendant-appellee Presley-Chicago, Inc.
Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (Kevin R. Sido, Stephen R. Swofford, Edward M. Crane, Chicago, of counsel), for defendant-appellee R.W. Robinson and Associates, Co.
Mitchell, Russell and Kelly, Chicago (Thomas J. Russell, Cyril J. Watson, Chicago, of counsel), for defendant-appellee Clyde D. Sana.
KcKenna, Storer, Rowe, White & Farrug, Chicago (Robert S. Soderstrom, Shaun McParland, Chicago, of counsel), for defendant-appellee Lloyd M. David.
Horace W. Jordan--Van Duzer, Gershon, Jordan & Petersen, Chicago and Edwin J. Richardson--Brunswick, Richardson & Pinzino, Vermont Street, Blue Island, for Village of Tinley Park.
Plaintiffs, Dennis and Melissa Swaw, sued several defendants seeking to recover on various theories for losses suffered when their home became uninhabitable due to structural defects. Plaintiffs filed their initial complaint on May 30, 1979, a first amended complaint on April 29, 1981, and a second amended complaint on August 25, 1981. Various defendants filed a Section 45 motion (Ill.Rev.Stat.1979, ch. 110, par. 45), now codified as Section 2-615 of the Code of Civil Procedure (Ill.Rev.Stat.1983, ch. 110, par. 2-615), requesting the court to dismiss them as to the second amended complaint. The court, on March 29, 1982 granted motions to dismiss the actions against defendants Presley, David, R.W. Robinson, Sana, and Tinley Park. On August 25, 1982, the trial court entered an order (1) denying plaintiffs' request to vacate the order dismissing the above mentioned defendants, (2) denying plaintiffs leave to amend their second amended complaint to file additional counts against defendants David and Salisbury, and (3) denying plaintiffs leave to file a third amended complaint.
Plaintiffs appeal from the trial court's order of August 25, 1982 and present the following issues for review: (1) whether plaintiffs in counts V, IX, X, and XII state a cause of action in negligence against Presley, David, Tinley Park, and R.W. Robinson, respectively; (2) whether the statute of limitations bars plaintiffs' actions against Presley, David, Tinley Park, and R.W. Robinson; (3) whether plaintiffs in count VI state a cause of action against Presley for breach of an implied warranty of habitability; (4) whether plaintiffs in count VII state a cause of action against Presley for breach of an express warranty of habitability; (5) whether plaintiffs in count IV state a cause of action against Sana for breach of a broker's duty to disclose material knowledge to a purchaser; and (6) whether the trial court abused its discretion in (a) denying plaintiffs leave to amend their second amended complaint to file additional counts against David and (b) denying plaintiffs leave to file a third amended complaint.
We affirm in part and reverse in part and remand.
We note that only the counts listed in plaintiffs' second amended complaint are before us. Plaintiffs have waived any objections to the trial court's rulings on former complaints filed by them. Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill.2d 150, 153-54, 70 Ill.Dec. 251, 252, 449 N.E.2d 125, 126.
The counts of the second amended complaint presented for review by plaintiffs are summarized as follows:
COUNT DEFENDANT THEORY OF RECOVERY
IV Sana Breach of broker's duty to disclose
V Presley Negligence--negligent in constructing
the house
VI Presley Implied warranty of habitability
VII Presley Express warranty of habitability
IX David Negligence--negligent in analyzing
soil at the cite where the house
was built
X Tinley Park Negligence--negligent in enforcing
its building codes
XII R.W. Robinson Negligence--negligent in
conducting soil tests at the cite
where house was built.
The record indicates that in 1978 plaintiffs purchased a house in the Bremen-Towne estates subdivision in Tinley Park, Illinois, from Raymond and Judith Ortell. Within a few months of purchasing the house, plaintiffs noticed cracks in the walls and foundation and also that the floors were sinking. The house was built in 1971 by Allied Homes, Inc. Presley-Chicago, Inc. (Presley), a defendant herein, is the successor in interest to Allied Homes as contractor and developer of residential dwellings. (For purposes of this litigation, Allied and Presley are one and the same.) Allied hired R.W. Robinson, a defendant herein, prior to development of the subject real estate to perform various tests on the soil to determine whether the area was suitable for the construction of residential dwellings. Shortly after the house was built, it became apparent that serious structural and foundation problems existed. Allied signed a contract for sale of the house in 1971. That contract was rescinded the same year because of the structural and foundation problems. Allied remained in possession of the house. Allied attempted to rectify the problems. The Village of Tinley Park, a defendant herein, refused to issue an occupancy certificate for the house until the problems were corrected. Allied hired Lloyd M. David, a defendant herein, and Chicago Shoring and Underpinning, Inc. to rectify the foundation problems existing in the house. David certified that the house was structurally sound. In June 1972, Allied sold the house to Mr. and Mrs. Raker. The Village granted a conditional certificate of occupancy for the house on July 12, 1972.
The major structural problems continued and Allied retained Paul G. Cassidy & Co. (Cassidy), a foundation specialist, to evaluate the situation. Cassidy informed Allied that the foundation of the house was seriously defective. Between December 1972 and January 1973, Cassidy attempted to correct the foundation problems without success.
In February 1973, the Village caused Allied to repurchase the house from Mr. and Mrs. Raker because of the continuing serious structural problems. In February 1974, Presley, the company that succeeded Allied as the owner and developer of the subdivision in which the house was built, leased the house to Mr. and Mrs. Allen. The structural and foundation problems continued.
In December 1975, Presley sold the house to the Ortells, "as is," for $36,500. The problems continued while the Ortells occupied the house. In 1977, Clyde Sana, a defendant herein, agreed to act as real estate broker for the Ortells to sell the house. In March 1978, as a result of Sana's efforts, plaintiffs purchased the house from the Ortells for $64,900. Shortly after moving into the house, plaintiffs noticed the structural problems. On May 30, 1979, plaintiffs filed suit against defendants mentioned herein.
General law--Pleadings
The purpose of pleadings is to present, define and narrow the issues and limit the proof needed at trial. Pleadings are not intended to erect barriers to a trial on the merits but instead to remove them and facilitate trial. (People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill.2d 300, 307-08, 58 Ill.Dec. 754, 758, 430 N.E.2d 1005, 1009.) Furthermore, the prime purpose of pleadings must never be hidden in a morass of technicalities. Parrino v. Landon (1956), 8 Ill.2d 468, 470, 134 N.E.2d 311, 313.
Indicating clearly what is required for sufficient pleading in Illinois, our supreme court stated as follows:
(People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill.2d 300, 308, 58 Ill.Dec. 754, 758, 430 [137 Ill.App.3d 67] N.E.2d 1005, 1009.)
The essential test of the sufficiency of the complaint is whether it reasonably informs the defendant of a valid claim under a general class of cases of which the court has jurisdiction. (Kramer v. McDonald's System, Inc. (1978), 61 Ill.App.3d 947, 956, 19 Ill.Dec. 21, 30, 378 N.E.2d 522, 531, aff'd (1979), 77 Ill.2d 323, 33 Ill.Dec. 115, 396 N.E.2d 504.) In determining the sufficiency of the complaint, the court must accept as true all well-pleaded facts and reasonable inferences drawn therefrom. (Morse v. Nelson (1977), 48 Ill.App.3d 895, 898, 6 Ill.Dec. 638, 640, 363 N.E.2d 167, 169.) No pleading is bad in substance where it reasonably informs the opposite party of the nature of the claim. (Ill.Rev.Stat.1979, ch. 110, par. 42(2).) Finally, a complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set...
To continue reading
Request your trial
-
Rose v. Franchetti
...v. Ledbetter Erection Corp., 133 Ill.App.3d 844, 849, 88 Ill.Dec. 863, 479 N.E.2d 476 (1985); see also Swaw v. Ortell, 137 Ill.App.3d 60, 73-74, 92 Ill.Dec. 49, 484 N.E.2d 780 (1985).6 The fraud claim here arises out of the defendant's alleged misrepresentations regarding the condition of t......
-
Century Universal Enterprises, Inc. v. Triana Development Corp.
...of fact. We conclude that here plaintiff meets the criteria for sufficiency in pleading fraud set out in Swaw v. Ortell (1984), 137 Ill.App.3d 60, 92 Ill.Dec. 49, 484 N.E.2d 780: "A complaint in fraud must allege (1) that a false statement of material fact was made as opposed to an opinion;......
-
Hirsch v. Optima, Inc.
...of the house" by the original owner. Redarowicz, 92 Ill.2d at 185, 65 Ill.Dec. 411, 441 N.E.2d 324. See Swaw v. Ortell, 137 Ill.App.3d 60, 72, 92 Ill.Dec. 49, 484 N.E.2d 780 (1984). In dismissing the warranty count, the trial court relied on the amount of time that had elapsed between the c......
-
Mittelman v. Witous
...an abuse of that discretion. The test of abuse is whether the decision furthers the ends of justice. (Swaw v. Ortell (1984), 137 Ill.App.3d 60, 74, 92 Ill.Dec. 49, 484 N.E.2d 780.) Specific factors in that determination are whether the proposed amendment would cure the defective pleading, w......