Zielinski v. Miller

• Decision Date: 29 December 1995
• Docket Number: No. 3-94-0782,3-94-0782
• Citation: 660 N.E.2d 1289,277 Ill.App.3d 735
• Parties: , 214 Ill.Dec. 340, 30 UCC Rep.Serv.2d 239 Mark ZIELINSKI et al., Plaintiffs, v. Harry MILLER, Jr., d/b/a Harry Miller, Jr. and Sons Builders, Defendant and Third-Party Plaintiff-Appellant, (Chris W. Knapp & Son, Inc., et al., Third-Party Defendants-Appellees).
• Court: United States Appellate Court of Illinois

Page 1289

660 N.E.2d 1289

277 Ill.App.3d 735, 214 Ill.Dec. 340,

30 UCC Rep.Serv.2d 239

Mark ZIELINSKI et al., Plaintiffs, v. Harry MILLER, Jr., d/b/a Harry Miller, Jr. and Sons

Builders, Defendant and Third-Party

Plaintiff-Appellant, (Chris W. Knapp &

Son, Inc., et al., Third-Party

Defendants-Appellees).

No. 3-94-0782.

Appellate Court of Illinois,

Third District.

Dec. 29, 1995.

As Modified on Denial of Rehearing Feb. 16, 1996.

Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois, No. 93-L-159; John A. Gorman, Judge Presiding.

John P. Fleming (argued), Quinn, Johnston, Henderson & Pretorius, Peoria, for Harry Miller, Jr.

David B. Mueller (argued), Cassidy Mueller, Peoria, for Chris W. Knapp Son, Inc.

David E. Jones (argued), John W. Howard, Brent A. Walters, Hinshaw & Culbertson, Peoria, for Peoria Brick Tile Company.

Thomas R. Davis, Miller, Hall & Triggs, Peoria, for Mark Zielinski, Marsha Zielinski.

Modified Upon Denial of Rehearing

Presiding Justice BRESLIN delivered the opinion of the court:

The plaintiffs, Mark and Marsha Zielinski, brought an action for breach of contract against defendant/third-party plaintiff-appellant Harry Miller, Jr. d/b/a Harry Miller Jr. & Sons Builders. Miller was the general contractor for the construction of the Zielinskis' single family home. Miller, in turn, brought an action against third-party defendants-appellees Chris W. Knapp & Sons, Inc., the masonry subcontractor on the project, and Peoria Brick & Tile Company, the supplier of bricks used on the exterior of the home. The circuit court granted the third-party defendants' motions to dismiss. Miller appeals. We affirm in part and reverse in part.

In 1988, the Zielinskis and Miller entered into a written agreement for the construction of a home. Under the terms of the agreement, the home's exterior was to be constructed of used red and orange bricks. Peoria Brick supplied the bricks and Knapp performed the masonry work on the home.

During the summer of 1992, the Zielinskis noticed the orange bricks were flaking, cracking and disintegrating. It was subsequently determined that the orange bricks were for interior use only. The Zielinskis brought suit against Miller in two counts, alleging breach of the implied warranty of habitability and breach of the implied warranty of reasonable workmanship and materials.

Miller then filed a third-party complaint against Knapp and Peoria Brick seeking indemnification for any damages resulting from the Zielinski action. In count I of his amended third-party complaint, Miller alleged that Knapp had orally agreed to provide all the masonry work on the Zielinskis' home. Miller maintained that Knapp had agreed to provide all masonry expertise with respect to the construction of the residence, including the choice of the appropriateness of the bricks and mortar to withstand the weather and elements on an exterior brick facade. Miller alleged further that all the wrongful acts alleged by the Zielinskis were solely attributable to the actions of Knapp. Miller maintained that Knapp was acting as his agent or independent contractor. Miller claimed that if he was found liable to the Zielinskis, then he was entitled to indemnity from Knapp under an implied contract of indemnity arising from their principle-agency relationship.

Count II alleged a breach of an oral contract by Knapp as the basis for indemnification. Count III asserted that Miller was entitled to indemnity because of Knapp's breach of the implied warranty of reasonable workmanship and materials.

Counts IV and V alleged that Miller was entitled to indemnification from Peoria Brick based upon an implied contract of indemnity and breach of oral contract, respectively.

Knapp and Peoria Brick each filed a motion to dismiss pursuant to sections 2-615 (735 ILCS 5/2-615 (West 1992)) and 2-619(a)(5) (735 ILCS 5/2-619(a)(5) (West 1992)) of the Code of Civil Procedure. Knapp's motion claimed that counts I through III failed to state a cause of action, and, alternatively, that if an action was properly stated, it was time-barred under section 2-725 of the Uniform Commercial Code (810 ILCS 5/2-725 (West 1993)). Peoria Brick's motion made the same arguments with respect to counts IV and V. The circuit court granted both motions with prejudice, but did not state the basis for its decision.

In reviewing the dismissal of actions pursuant to sections 2-615 and 2-619, the reviewing court must take all facts properly pleaded as true. (See Milder v. Van Alstine (1992), 230 Ill.App.3d 869, 172 Ill.Dec. 332, 595 N.E.2d 693 (section 2-615); Estate of Herington v. County of Woodford (1993), 250 Ill.App.3d 870, 189 Ill.Dec. 495, 620 N.E.2d 463 (section 2-619).) In reviewing the propriety of a dismissal for failure to state a cause of action, we must determine whether the complaint alleges sufficient facts to establish a cause of action upon which relief may be granted. (Faulkner v. Gilmore (1993), 251 Ill.App.3d 34, 190 Ill.Dec. 455, 621 N.E.2d 908.) On review of the grant of a motion to dismiss under section 2-619, we must review the law and the facts, and we may reverse if the trial court erred regarding the law or ruled against the manifest weight of the evidence. (See In re Estate of Silverman (1993), 257 Ill.App.3d 162, 195 Ill.Dec. 299, 628 N.E.2d 763.) Where the trial court does not specify the grounds upon which it relied in allowing a motion to dismiss, we must presume that it was upon one of the grounds properly presented. Smith v. Board of Education of East St. Louis School District No. 189 of St. Clair County (1977), 52 Ill.App.3d 647, 9 Ill.Dec. 862, 367 N.E.2d 296.

We will address first whether the implied indemnity counts of Miller's amended third party complaint (counts I and IV) state a cause of action upon which relief may be granted.

It is clear from Miller's arguments on appeal that counts I and IV seek to impose implied tort indemnity upon Knapp and Peoria Brick based upon the theory that Miller is being held vicariously liable for the wrongdoing of Knapp and Peoria Brick. Implied tort indemnity is a common law doctrine which shifts the entire responsibility for tort-related losses from a blameless tortfeasor to a truly culpable one. (See Smith v. Clark Equipment Co. (1985), 136 Ill.App.3d 800, 91 Ill.Dec. 520, 483 N.E.2d 1006.) Although the Joint Tortfeasor Contribution Act (740 ILCS 100/0.01 et seq. (West 1992)) has abolished implied tort indemnity in most instances, the doctrine remains intact in the context of quasi-contractual relationships involving vicarious liability. See American National Bank & Trust Company v. Columbus-Cuneo-Cabrini Medical Center (1992), 154 Ill.2d 347, 181 Ill.Dec. 917, 609 N.E.2d 285.

The doctrine of implied tort indemnity has no application to the case at bar. The Zielinskis' complaint seeks damages for Miller's alleged failure to perform its obligations under the parties' written contract. Since the underlying complaint thus sounds in contract, not in tort, there would be no occasion in this case to shift losses from one tortfeasor to another. Therefore, counts I and IV were properly dismissed.

We will next address whether the trial court was correct to dismiss the contract-based counts directed against Knapp (counts II and III).

Counts II and III seek relief based upon the same theory. Both allege the existence of an oral contract between Miller and Knapp whereby Knapp agreed to supply masonry materials and labor for the construction of the Zielinskis' house. Count II alleges that Knapp breached the contract by using unreasonably poor workmanship and defective materials. Count III alleges that the same conduct constituted a breach of the contract's implied warranty of reasonable workmanship and materials. Miller does not allege that the oral contract included an express provision through which Knapp agreed to supply reasonable workmanship and acceptable materials. Therefore, both counts seek recovery based upon the contract's implied warranties. Since count III best states this ground for recovery, we will consider the merits of that count and affirm the trial court's dismissal of the redundant count II.

One who contracts to perform construction work impliedly warrants to do the work in a reasonably workmanlike manner. (Dean v. Rutherford (1977), 49 Ill.App.3d 768, 7 Ill.Dec. 464, 364 N.E.2d 625.) Failure to do so is a breach of contract. (Vicorp Restaurants v. Corinco Insulating Co. (1991), 222 Ill.App.3d 518, 165 Ill.Dec. 50, 584 N.E.2d 229.) Under the doctrine of implied contractual indemnity, where one party's breach of contract causes a second party to breach a separate contract with a third party, the second party may shift its contractual liability to the first party. (Carrillo v. Jam Productions, Ltd. (1988), 173 Ill.App.3d 693, 123 Ill.Dec. 326, 527 N.E.2d 964.) Indemnity is justified in such instances because a party who breaches a contract can be held liable for damages which naturally arise from the breach, provided that such damages were reasonably within the contemplation of the parties as a probable result of the breach. Case Prestressing Corp. v. Chicago College of Osteopathic Medicine (1983), 118 Ill.App.3d 782, 74 Ill.Dec. 382, 455 N.E.2d 811.

It is reasonable to conclude from the facts alleged in count III that Knapp should have known that its breach would render Miller liable on his contract with the Zielinskis. Therefore, if Miller is held liable to the Zielinskis, and if Miller proves the allegations in count III, then Miller will be able to shift his liability to Knapp under the doctrine of implied contractual indemnity.

Knapp contends that count III alleges a contract for the sale of goods and is therefore time barred under section 2-725 of the Uniform Commercial Code. (See 810 ILCS 5/2-725 (West 1993).) We disagree.

The provisions of Article 2 of the Uniform Commercial Code apply only to transactions in goods....