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REICHELT v. URBAN INV. & DEV. CO.

June 27, 1985

DIETER W. REICHELT, PLAINTIFF,
v.
URBAN INVESTMENT AND DEVELOPMENT COMPANY, A DELAWARE CORPORATION; UNITED DEVELOPMENT COMPANY, AN ILLINOIS CORPORATION; CHICAGO TITLE AND TRUST COMPANY, AS TRUSTEE UNDER A TRUST DATED APRIL 2, 1968 AND KNOWN AS TRUST NO. 51875; AND BERT THOMAS D/B/A HOME INSPECTION CONSULTANTS, DEFENDANTS.



The opinion of the court was delivered by: Bua, District Judge.

ORDER

I. FACTS

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
  damage.
  (b) (rendered irrelevant by UIDC repairing total
  foundation)
  (c) all other costs and fees incurred by
  plaintiff.

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."

With their motion, defendants have filed an affidavit of UIDC Vice President David McCoy stating that the foundation repairs were completed and expert fees paid in accordance with the settlement agreement. Plaintiff has offered no contradictory evidence of malfeasance with regard to the work done by defendants.

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 ...


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