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05/06/88 Anthony Eichberger Et Al., v. Kenneth J. Folliard

May 6, 1988





523 N.E.2d 389, 169 Ill. App. 3d 145, 119 Ill. Dec. 781 1988.IL.698

Appeal from the Circuit Court of Lake County; the Hon. Charles Scott, Judge, presiding.


JUSTICE REINHARD delivered the opinion of the court. NASH and UNVERZAGT, JJ., concur.


Plaintiffs, Anthony and Frances Eichberger, filed suit in the circuit court of Lake County seeking damages allegedly arising out of the construction of their new home by defendant, Kenneth J. Folliard, d/b/a K.J.F. Builders. Defendant filed a counterclaim seeking damages for unpaid amounts on the construction contract. The trial court granted defendant's motion for directed verdict on plaintiff's action, and the jury returned a verdict in favor of plaintiff on defendant's counterclaim. Plaintiff appeals the granting of the directed verdict in favor of defendant, and defendant cross-appeals the jury verdict in favor of plaintiff.

The two issues presented in this appeal are whether the trial court erred in directing a verdict in favor of defendant and whether the jury verdict in favor of plaintiff was against the manifest weight of the evidence.

Plaintiffs filed the instant action in the circuit court of Lake County. Following dismissal of two counts of their second amended complaint, the remaining count of the second amended complaint alleged that defendant breached express warranties of the construction contract in that he failed to construct the home in a workmanlike manner and in conformance with local building codes. Defendant filed a counterclaim seeking as damages payment for the full contract price plus payment for extra work performed under the contract.

Plaintiffs purchased two adjacent lots in late 1983 or early 1984 for the purpose of having a home built on the lots. The lots abut a channel of water and are in a flood plain. There are various homes built on neighboring property on both sides of the channel.

In January 1984, plaintiff Anthony Eichberger contacted defendant after he learned that defendant was constructing a home on the opposite side of the channel. Plaintiff subsequently met with defendant for the purpose of discussing the construction of a home on plaintiffs' lots. Upon inquiry by plaintiff, defendant stated that he had been building in the area for approximately 10 years.

Following their initial meeting, plaintiff and defendant met on several occasions. Plaintiffs obtained building plans for a residence which they liked and asked defendant to change them to suit their desires. Eventually, defendant supplied plaintiff with modified building plans which both parties agreed would be used in building the home. On June 6, 1984, the parties entered into a written contract to build a home on plaintiffs' property. The contract contained the express warranty that "[we] agree to perform all work as shown on the drawing in a workmanlike manner." The contract, which was prepared by defendant, prescribed 24-inch-wide footings.

During the preparation of the land and the construction of the home, plaintiff made numerous visits to the construction site. Plaintiff testified on direct examination that he visited the site while it was being cleared and graded and that he felt the ground shake during the leveling process. He asked defendant, "Is this going to be suitable for a house?" to which defendant replied, "Don't worry about it. We put in an extra-wide footing, and you will have no problems with the house, you know, sinking or anything." Approximately three to four days later, plaintiff again visited the home site and expressed concern to defendant about the suitability of the soil for building a home. According to plaintiff, defendant responded that he was aware of building in the area and that the house might sink, and that is why they used extra-wide footings.

Construction on the home continued into August 1984. At that time, workers who were installing carpet and floor tile advised plaintiff that the floors were sloping in some of the rooms of the home. Plaintiff testified that the home was about 90% complete at this time. Plaintiff proceeded to check the floors with a carpenter's level and discovered a slope in all rooms of the home, with the most severe being a 3 1/2-inch slope in the front room.

Plaintiff contacted defendant the following day to advise him of the problem. Defendant responded that he was aware of the problem and would fix it. Plaintiff testified that defendant raised up the floor to level it, but that resulted in one of the walls being four inches shorter than the opposite wall. According to plaintiff, defendant took no other measures to remedy the sloping problem. Plaintiff also observed cracks in the foundation, cracks and slanting in the kitchen counter top, slanting of the oven and refrigerator, cracks in the wall board, cracks in ...

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