The opinion of the court was delivered by: Bua, District Judge.
Plaintiff filed his original complaint against these
defendants and others in August 1983. In it he alleged a
breach of an implied warranty of habitability and a violation
of the Illinois Consumer Fraud Act. Plaintiff's claim arose
out of a defect in the foundation of a townhouse built by
defendants in 1969 and purchased by the plaintiff in 1980.
Plaintiff charges that these structural defects were caused by
the defendants' failure to properly construct the townhouse.
In fact, he alleges that the defendants knew the house was
built on highly compressible fill material and they concealed
the inadequate soil base with three to six inches of clay. As
a result, large cracks developed in the floor and walls of the
basement and excessive settlement occurred in the interior
floors and exterior patio.
After this Court granted defendants' motion to dismiss the
portion of the action under the Illinois Consumer Fraud Act,
the parties reached a partial settlement, 577 F. Supp. 971. In
May 1984 this Court, by agreement of the parties, ordered the
case dismissed without prejudice and retained jurisdiction for
six months to allow the parties to fulfill the terms of the
settlement agreement. The terms of the settlement agreement
are contained in the following five points:
1. Urban Investment and Development Company (UIDC) will
repair all defects in the foundation and structure and will
correct any above-ground damage caused by those repairs.
2. UIDC will pay plaintiff's currently unpaid expert fees.
3. UIDC will pay reasonable hotel expenses for plaintiff
during the period of foundation repairs.
4. The parties agree to continue negotiations as to:
(a) reimbursement/supervision of repairs to
townhouse above ground to correct prior existing
(b) (rendered irrelevant by UIDC repairing total
(c) all other costs and fees incurred by
5. Plaintiff agrees to "cease prosecution of all aspects of
his lawsuit . . . except for those unsettled claims outlined
in paragraph four," and if those claims remain unsettled and
go to trial, plaintiff agrees to release defendants from "all
liability pertaining to all foundation defects and repairs."
In November 1984, the plaintiff moved the Court to vacate
the dismissal order and set the matter for a pretrial
conference. However, no further settlement could be reached.
In February 1985, the plaintiff filed his Second Amended
Complaint. In Count I plaintiff alleges a breach of an implied
warranty of habitability and fraudulent concealment. As
damages he claims the cost of repair of the above-ground
portions damaged, loss of ...