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Goetz v. Vil. of Hoffman Estates





APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH M. WOSIK, Judge, presiding.


Plaintiffs appeal from an order of the circuit court of Cook County dismissing their amended complaint. Plaintiffs, three owners of residences in the Winston Knolls subdivision of the Village of Hoffman Estates, commenced this suit individually and on behalf of all other present and former owners in the subdivision. Plaintiffs sought compensatory and punitive damages for the alleged improper wiring of their homes. Defendants are Glow Electric, Incorporated, the Village of Hoffman Estates (hereinafter the Village), Edgar Rusch, and Centex Homes Corporation. Each of the defendants filed a motion to dismiss the amended complaint. They challenged certain deficiencies in the complaint including the question of whether the suit properly could be maintained as a class action. On August 15, 1977, the trial court entered the order of dismissal as to all defendants.

The amended complaint contained six counts. In each count plaintiffs sought to maintain the matter as a class action, alleging that the present and former homeowners and residents comprised a class of approximately 300 persons. Each count alleged that the named plaintiffs had encountered problems in their homes and that they had rewired their homes at a cost of over $1200 each. Plaintiffs also sought an unspecified amount of damages for fire and smoke damage to their homes. Plaintiffs further charged that other residents will encounter similar problems in the future and that, therefore, rewiring of all homes in Winston Knolls is necessary. Each count requested $360,000 representing the cost of rewiring the residences of all class members, plus an indeterminate sum to compensate for physical damage to plaintiffs' homes. Plaintiffs also sought court costs and attorneys' fees.

Counts I and II of the amended complaint were directed against Glow Electric, an electrical contracting company which installed the wiring in plaintiffs' homes. Count I alleged that Glow Electric negligently installed "aluminum conductors and improper receptacles" in plaintiffs' homes and that such installation was in violation of the applicable building code. Count II charged that the same acts and omissions ascribed to Glow Electric in count I were intentional. Count II in addition to the forementioned compensatory damages, requested $500,000 in punitive damages.

Counts III and IV named as defendants the Village and Edgar Rusch, a village inspector. Count III charged that Rusch failed to properly inspect the wiring installed in plaintiffs' homes and that he negligently approved such wiring even though it was not safe or suitable for residences in Winston Knolls and was in violation of the village building code. Count IV repeated the allegations of count III, but characterized them as wilful and wanton and requested punitive damages in the amount of $500,000.

Counts V and VI of the amended complaint were directed against Centex Homes as being in charge of home construction in Winston Knolls. Count V charged that Centex Homes negligently specified the type and quality of wiring used in the residences, failed to supervise the installation of the wiring, and failed to comply with the minimum standards of the village building code. Count VI alleged that Centex Homes materially misrepresented to plaintiffs that the homes it would construct in Winston Knolls would be identical to model homes shown to prospective purchasers including plaintiffs. It further alleged that in reliance upon those misrepresentations plaintiffs purchased homes and later discovered that the wiring was not identical to that used in the model homes. Count VI charged that the difference in wiring resulted in a decrease in the value of plaintiffs' homes. Plaintiffs, in addition to the costs of rewiring and repair of physical damage, again sought $500,000 in punitive damages.

The sole issue for our consideration is whether plaintiffs' amended complaint sets forth facts sufficient to support the maintenance of a class action.

• 1 Since this case was disposed of on defendants' motion to dismiss the complaint, all well-pleaded facts in plaintiffs' amended complaint must be taken as true. (Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill.2d 93, 187 N.E.2d 722.) The prerequisites for maintenance of a class action have been set forth in section 57.2 of the Civil Practice Act which provides:

"(a) An action may be maintained as a class action in any court of this State and a party may sue or be sued as a representative party of the class only if the court finds:

(1) The class is so numerous that joinder of all members is impractical.

(2) There are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members.

(3) The representative parties will fairly and adequately protect the interest of the class.

(4) The class action is an appropriate method for the fair and efficient adjudication of the controversy." (Ill. Rev. Stat. 1977, ch. 110, par. 57.2)

Although the foregoing statute was passed after the commencement of the present action, the statute is applicable here since it is procedural in nature. Steinberg v. Chicago ...

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