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01/09/89 Robert H. Schleyhahn Et Al v. Ken Cole

January 9, 1989

ROBERT H. SCHLEYHAHN ET AL., PLAINTIFFS-APPELLEES

v.

KEN COLE, INDIV. AND D/B/A COLE DEVELOPMENT, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

532 N.E.2d 1136, 178 Ill. App. 3d 111, 127 Ill. Dec. 307 1989.IL.6

Appeal from the Circuit Court of Sangamon County; the Hon. Richard J. Cadagin, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court. LUND and GREEN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

This case arises from a suit filed by the purchaser of a home against a builder-vendor in Sangamon County. The plaintiffs charged negligent construction and at trial the jury so found. On appeal, the defendant argues the statute of limitations had run, barring plaintiffs' action, and there was insufficient evidence to support the jury's verdict. We disagree.

On February 25, 1976, plaintiffs Robert and Patricia Schleyhahn contracted to purchase a house built by defendant Ken Cole. On April 12, 1976, the property was conveyed to plaintiffs and they continued to occupy the house at the time they filed suit.

In the spring of 1985, plaintiffs discovered a water spot on the interior south wall of the residence. After investigation, the plaintiffs found a crack in the brick veneer of this wall which they repaired. In May 1986, plaintiffs began to remodel their bathroom. In the course of removing the wallpaper in this room, they noticed the plasterboard of the south wall was discolored and deformed. Removing the damaged plasterboard, they discovered the studs and sheathing had rotted at the bottom of the wall and the plate, the horizontal wooden member on which the studs rest, had rotted away entirely.

In order to find where the water was entering, plaintiffs sprayed the exterior of the wall with water and were able to observe water running down the inside of the wall as a result. Further investigation revealed that the damage extended along most of the length of the south wall. On the advice of a contractor, plaintiffs replaced the south wall, including the brick veneer, sheathing, stud work, insulation, and wallboard.

Plaintiffs filed suit on August 19, 1986, alleging negligent construction. Defendant filed affirmative defenses including a statute of limitations defense. A jury trial began on December 16, 1987. Plaintiffs testified to their ownership and maintenance of the home, as well as to the discovery and repair of the damage. The brick mason who oversaw the repair of the south wall testified that many of the brick joints were not properly mortared and there were small holes in the brick veneer. Mortar had improperly been allowed to come in contact with the sheathing. This allowed moisture to seep from the brick veneer to the sheathing and from there into contact with the studs. He also testified the veneer had lacked weep holes to let out moisture, damage to the wooden members was confined to the bottom of the wall, and the rot discovered could only have occurred over a long period of time.

Plaintiffs' general contractor also testified to his examination of the south wall. There were numerous small holes in the wall, water had penetrated the brick veneer readily, and there were no weep holes or flashing at the foot of the wall. As a result, he had recommended the wall be replaced. During cross-examination, he stated that it was unlikely water from the gutters could have crossed the perforated soffit at the top of the wall and caused this type of damage.

Defendant presented the testimony of two experienced contractors. While neither had an opportunity to examine the wall of plaintiffs' home, they stated it was typical to have some mortar come in contact with the sheathing. It would be possible for water to back up in the gutter, run across the soffit, and down the interior wall but mortar touching the sheathing would not account for the damage to plaintiffs' home. On cross-examination, however, they stated that if water entered via the soffit, there would be visible damage to the upper part of the wall as well as the lower.

The jury returned a verdict for the plaintiffs in the amount of $6,938 on December 17, 1987. Post-trial motions were denied on February 2, 1988, and a notice of appeal filed on March 3, 1988.

On appeal, defendant argues the plaintiffs' action is barred by the limitation of 10 years in section 13-214(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13-214(b)). Plaintiffs counter the defendant failed to introduce evidence, to argue the issue to the jury and to ...


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