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Herlihy v. Dunbar Builders Corp.

OPINION FILED DECEMBER 31, 1980.

H. MURRAY HERLIHY ET AL., PLAINTIFFS-APPELLANTS,

v.

DUNBAR BUILDERS CORPORATION ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN F. HECHINGER, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Plaintiffs, unit owners of apartments in a condominium building, brought this class action against defendants, Dunbar Builders Corporation, Dunbar Corporation, and Dunbar Construction, Inc., seeking damages for alleged construction defects in certain common elements of the structure. Plaintiffs sought recoveries under the theories of breach of contract (count I), breach of an express and implied warranty (count II), and negligence (count III). (Count IV, which requested a mandatory injunction, was stricken and is not involved in this appeal.) The trial court granted partial summary judgment in favor of defendants on count II as to those matters concerning implied warranties and on count III. The court subsequently denied plaintiffs' motion to reconsider and vacate the order allowing partial summary judgment. The court also found that there was no just reason to delay enforcement or appeal of its orders.

The pleadings reveal the following pertinent facts: The named plaintiffs are original purchasers of condominium apartments in the Malibu Condominium, a 356 unit, high-rise building located in Chicago. Plaintiffs are also members of the Malibu Condominium Association, which governs, manages and administers the building. Dunbar Corporation, the successor in name to Dunbar Builders Corporation, is the developer-vendor of the Malibu. Dunbar Constructors Incorporated, a wholly owned subsidiary of Dunbar Corporation, is the general contractor.

During the years 1967 through 1969, plaintiffs purchased their apartment units from Dunbar Builders Corporation pursuant to standard form contracts. Each contract provided, in relevant part, as follows:

"WARRANTY

Seller shall deliver to Buyer at closing a certificate of warranty * * * covering construction of the Apartment Unit and Common Elements.

A purported disclaimer in the contract read:

"NOTICES — REPRESENTATIONS

No representations, warranties, undertakings or promises other than those expressed herein whether oral, implied or otherwise shall be considered part of this transaction."

At the closing, each purchaser received a certificate of warranty containing the following express warranty:

"DUNBAR BUILDERS CORPORATION warrants the workmanship and material in the apartment Unit for a period of one year from the date of tender of possession against defects arising out of faulty workmanship or material or failure substantially to comply with the plans and outline specifications described in your Purchase Contract. This warranty shall also apply to the Common Elements for a period of one year from the date that the first apartment Unit becomes occupied.

Dunbar shall correct defective work within a reasonable time after notice in writing is received during the warranty period. Such notification shall follow Dunbar's customer service policy. Latent defects are hereby defined as those defects which are not apparent upon substantial completion of the apartment Unit but become apparent within one year after such completion, or, in the case of the Common Elements, which become apparent within one year after completion of the affected portion of the Common Elements."

On October 1, 1973, plaintiffs brought the present action against defendants on behalf of themselves and all similarly situated owners of units in the Malibu. The class was later limited to parties who were original purchasers from the defendant developer.

In count I of their amended complaint, plaintiffs charged that, in violation of the duties and obligations imposed upon defendants by the contracts of purchase, defendants failed to construct the building in conformity with applicable plans, specifications, and industry standards. Among the alleged construction defects set forth were the following: corroding balcony concrete; cracking driveway pavement; crumbling retaining walls; unsafe anchoring of balcony railings; structurally defective concrete pedestrian ramp, loading dock, and stairs; improper and deficient caulking of windows, frames, sills, and balcony doors to control water leaking; improper tuck-pointing to eliminate water seepage; and inadequate heating, cooling and ventilation systems in the laundry room and other common elements. Plaintiffs alleged that, despite repeated demands, defendants refused to ...


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