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Swaw v. Ortell

OPINION FILED DECEMBER 20, 1984.

DENNIS L. SWAW ET AL., PLAINTIFFS-APPELLANTS,

v.

RAYMOND H. ORTELL ET AL., DEFENDANTS (PRESLEY-CHICAGO, INC., A/K/A ALLIED-PRESLEY COMPANY ET AL., DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Cook County; the Hon. Myron Gomberg, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

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, 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 site 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 site where house was built.

The record indicates that in 1978 plaintiffs purchased a house in the Bremen-Towne estates subdivision in Tinley Park 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 ...


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