APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JAMES M. BAILEY, JUDGE PRESIDING. HONORABLE WARREN D. WOLFSON
Rehearing Denied December 2, 1994. Supplemental Dissent on Rehearing December 12, 1994.
Campbell, O'connor, Jr., Buckley
The opinion of the court was delivered by: Campbell
PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:
This is a consolidated appeal, arising from a lawsuit brought by plaintiffs, Washington Courte Condominium Association-Four, and others, claiming loss due to property damage to the Washington Courte Condominium Building Four. On June 20, 1991, following a jury trial, plaintiffs were awarded compensatory damages in the amount of $1,700,000 for breach of express and implied warranties and common law fraud in the sale of condominium units by Washington-Golf Corporation, (Washington-Golf), Raymond J. Adreani, Bruce Adreani, and Edmund J. Beaulieu (cumulatively, defendants.) On August 20, 1991, the trial court entered an order denying defendants' post-trial motions and denying plaintiffs' motion for attorneys fees and costs. In addition, the trial court entered judgment against all defendants on count V of plaintiffs' amended complaint for statutory fraud under the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1991, ch. 121 1/2, par. 261, et seq (now 815 ILCS 505/1 et seq. (West 1992)).) (Consumer Fraud Act).
On August 22, 1991, the trial court entered judgment against defendants nunc pro tunc as of August 20, 1991, in the sum of $1.7 million on count V of plaintiffs' fifth amended complaint, with the limitation that:
"The judgment amount of $1.7 million is not intended to be in addition to the $1.7 million judgment previously entered on the jury verdict in this cause. Plaintiffs shall be entitled only to a single recovery of $1.7 million by reason of the judgment on the jury verdict and the judgment in this order."
Defendants now appeal from the judgment rendered at trial, and from the trial court's order denying defendants' post-trial motions. Defendants contend that: (1) the fraud verdict was against the manifest weight of the evidence; (2) the trial court improperly allowed evidence at trial regarding defendants' purported negligence; (3) evidence regarding the sale prices of certain condominium units was improperly excluded; (4) the trial court improperly refused to give a jury instruction defining "clear and convincing evidence;" (5) plaintiffs' jury instruction No. 20 misstated the law and was improperly given to the jury; (6) the jury failed to consider plaintiffs' failure to mitigate damages; (7) the jury's damage award was excessive; and (8) the trial court erred in finding a violation of the Consumer Fraud Act. Defendants did not seek to stay enforcement of the judgment against Washington-Golf by posting an appeal bond on that entity's behalf, nor does the record indicate that any appeal bond was posted on behalf of Edmund Beaulieu.
Plaintiffs cross-appeal, arguing that the trial court erred in denying their claim for attorneys fees. While the appeal was pending, plaintiffs filed a motion with this court to strike certain portions of defendants' reply brief. The motion was taken with this appeal.
Defendants' second appeal is from two orders of the circuit court. The first, entered May 17, 1991, dismissed defendants' third-party complaint against third-party defendants Rabin LeNoble & Associates, (Rabin LeNoble), Zorak Rabin, Daniel LeNoble, Hans Rosenow Roofing Company (Rosenow) and A. Christmann and Company, Inc. (Christmann) (collectively "third-party defendants"), pursuant to section 2-619 of the Illinois Code of Civil Procedure, on the ground that it was barred by the then applicable two-year construction statute of limitations (Ill. Rev. Stat. 1983, ch. 110, par. 13-214.) The second order, entered June 24, 1991, denied defendants' petition for reconsideration of the trial court's order granting dismissal. For the following reasons, we affirm the judgments of the trial court.
On June 30, 1983, plaintiffs filed their original complaint against defendants, alleging property damage to Building Four as a result of water infiltration. In their five-count, fifth amended complaint, filed June 10, 1991, plaintiffs alleged that defendants: breached an express warranty that Building Four and the individual units would be free from defects in materials and workmanship (count I); breached the implied warranty of habitability (count II); failed to disclose defects in construction (count III): breached their fiduciary duty to disclose, remedy or repair alleged defects in the building (count IV); and violated the Consumer Fraud Act through their omissions and misrepresentations (count V).
Plaintiffs' fifth amended complaint contains the following allegations. In 1975, defendants Raymond Adreani (Ray), Bruce Adreani (Bruce), Edmund Beaulieu (Ed) and Michael Beaulieu (Michael) *fn1 formed Washington-Golf for the purpose of developing Washington Courte, a condominium complex in Niles, Illinois. In April 1977, defendants engaged Rabin-LeNoble as architects to prepare preliminary and working architectural and structural drawings for use by Washington-Golf in the construction of the Washington Courte development. Defendants then entered into a subcontract with Rosenow under which Rosenow was to furnish and install a roof on each building of the Washington Courte Development. Defendants also entered into a subcontract with Christmann under which Christmann was to furnish and install the brick and masonry on Buildings Two through Five. Between approximately February 1978 and May 1980, Washington-Golf, acting as the general contractor, developer, and owner of the tract, constructed the five 44-unit condominium buildings of Washington Courte. Building One was completed in late 1978. Buildings Two and Five were completed in mid-1979. Buildings Three and Four were completed in 1980.
In December 1979, prior to the completion of Building Four, defendants learned that other condominium buildings in the Washington Courte Development were experiencing severe water infiltration problems, cracked masonry, and window leaks.
On or about December 15, 1980, defendants began to market and sell units in Building Four. During 1981 and 1982, individuals began occupying their units in Building Four and reporting water infiltration problems to defendants. Defendants responded that all water leakage problems were minor and unit-specific, and that these problems had been or would be cured.
On November 30, 1982, the principals of Washington-Golf held a meeting, at which time the control of the Board was turned over to each individual condominium association in the Washington Courte Development.
In May 1983, plaintiffs engaged the services of a structural engineer who, after his investigation, concluded that Building Four contained various latent structural defects which resulted in substantial water infiltration into both the Common Elements and the Dwelling Units of Building Four.
In count III of their fifth amended complaint, plaintiffs alleged that defendants, Washington-Golf, Ray, Bruce, Ed and Michael, knowingly failed to disclose the existence of severe water infiltration problems, cracked masonry and window leaks in Building Four, which defendants knew to be pervasive and recurrent, provided false assurances to unit owners that all water leakage problems were minor and unit-specific and that these problems had been or would be cured, and that these misrepresentations and omissions were part of a plan or scheme to induce plaintiffs to rely on defendants in purchasing condominium units in Building Four. Plaintiffs further alleged that they reasonably relied on defendants' misrepresentations and omissions and thereby acted to their detriment in purchasing condominium units. Finally, plaintiffs alleged that they suffered damages in excess of $1,500,000.
Trial commenced on June 3, 1991. The trial lasted almost three weeks and included the testimony of 40 fact witnesses, five expert witnesses, the stipulated testimony of 14 fact witnesses and admission of over 250 exhibits.
A. Development of Washington-Courte
At trial, both Ray and Ed testified that they had experience in constructing and developing single family homes and multi-dwelling buildings. Ray testified that he had been in the construction business for 40 years, and that he was president of Norwood Builders, a general contractor that built 700-900 brick homes starting in the 1950s.
Ed is a licensed real estate broker and a union carpenter. Ed testified that he became a real estate developer in the late 1960s. Between 1970 and 1980, Ed operated his own company, Beaulieu & Sons, through which he developed another condominium complex in Niles and a commercial shopping center. In 1975, Ed obtained an option contract on 13 acres in Niles that eventually became the Washington Courte Development. Ed approached Ray about participating in the development of the property and together they formed Washington-Golf.
Washington-Golf Corporation consisted of Ed, President, and Ray, Vice-President and Treasurer or Secretary, each of them and their respective families holding 50% of the shares of the corporation. Bruce and Michael were also shareholders of Washington-Golf. Ed testified that the title of President did not connote any particular responsibility in the company, but that he was made President because it was his option that brought the property into Washington-Golf. Ed decided that Ray would act as the general manager, in charge of construction, and Bruce was responsible for sales and some marketing. Ed was responsible for the closings of the condominium units, and preparing the closing documents. Ed also participated in the preparation of the condominium declarations and bylaws.
Prior to construction of the development, defendants submitted two required property reports to the Village of Niles. These reports were also required to be distributed to prospective buyers. The reports stated in part:
"The Washington-Golf Corporation, the developer of Washington Courte, agrees with the stated purpose and intent of the Niles Ordinance and feels that full and complete disclosure by the developer is the best way to permit a prospective purchaser to make as complete an investigation of the condominium as he wishes."
The architectural plans (plans) for the entire development required "barrier walls," which incorporated "collar joints." Ray testified that a collar joint is the space between an outer wide course of brick masonry and an inner wide course of brick masonry. The plans required that the collar joints be filled solid with mortar.
Ray stated that the plans required a Cono-Lock exterior wall. Ray explained that Cono-Lock is a mesh wire approximately eleven and a half inches wide, one-eighth diameter criss-cross, which is installed above every second course of block, approximately every sixteen inches. Ray stated that the purpose of the Cono-Lock reinforcement is to hold together, along with the collar joint, the outer face brick and inner wall of concrete block. He stated that the collar joint bonds the block and brick together if its filled.
Ed testified that a solid filled collar joint is supposed to strengthen the wall. Art Christmann, the mason contractor stated that from his experience, it is only possible to fill the collar joints 85% full, but that he never raised the issue with the architect. Ed stated that all five buildings in the Washington-Courte development are designed and built the same way.
Ray and Ed testified that they each visited the project regularly to ensure that the condominium buildings were being constructed in accordance with the architectural plans. Based on Ray's signed agreement with the architects on behalf of Washington-Golf, the architects had no responsibility for on-site supervision of the construction of the development. Ray explained:
"I had maybe more experience than [the architect] did as far as buildings that are going up. I built buildings and he just drew buildings, I understood buildings much more. I started out as a carpenter myself."
Ray stated that he visited the construction site two to three times a week for about an hour during construction. Ray stated that he did not closely inspect the walls as they were being constructed to see if the collar joint was solid filled.
B. Water Infiltration Problems in Washington-Courte Plaintiffs' evidence at trial revealed that defendants were made aware of water problems at the Washington-Courte Development in December 1979 following a heavy rainstorm. While inspecting Building One, construction supervisor Raymond Spear (Spear) observed water entering above the windows and identified the mortar joints, the roof, and the windows as possible sources of water infiltration.
Spear testified that after he inspected Building One, he recommended to Ray, contrary to the requirements of the architectural plans, that the collar joint not be filled solid with mortar in the remaining buildings because he considered it to be a "conductor of water." However, Spear cautioned Ray that an unfilled collar joint could adversely affect the strength of the buildings.
On February 1, 1980, Herb Weinberg, the president of Washington-Courte Condominium Association-Two, (Association-Two) sent a letter to Ray complaining about "severe water leakage" in units that had occurred after a rainstorm on December 24, 1979. The letter indicated that Spear visited several units in Building Two with a caulker and informed unit owners that the water problem was not due to caulking.
A series of letters to defendants from the Associations at Buildings One, Two and Five followed through 1980, complaining of further water damage, cracking masonry and of defendants' failure to make the required repairs despite constant notification. On July 28, 1980, the presidents of Buildings One, Two and Five sent a letter to defendants demanding a meeting to discuss major problems in all of the buildings including:
"1. Water seepage through walls, over and around windows, patio doors and lentils [sic].
2. Water backup from down spouts resulting in apartment and common area flooding.
3. Standing water on roofs resulting in leakage."
On August 13, 1980, the president of Washington-Courte Association-Five (Association-Five) threatened to take "appropriate action" if defendants did not respond to the July 28, 1980, letter within ten days. On September 10, 1980, Washington-Courte Associations One, Two and Five sent a letter to defendants calling to defendants' attention the following additional problems: (1) water leakage through electrical outlets; (2) backup water from downspouts and through air conditioning condensation lines; and (3) leakage in unit ceilings on all floors. Ed testified that it was this letter threatening legal action that "possibly" prompted defendants to retain Bruce Ciborowski to perform repairs on the buildings.
Ray admitted that he first learned of water infiltration problem in Building One in December 1979; that he learned of water problems in Building Two in February 1980; and that he knew at least as of July 1980 that Building Five had water infiltration problems. Ed testified that he knew in 1980 that Buildings One, Two and Five had water infiltration problems. Ed stated that he would not have moved his parents into Building Five if he believed that the water infiltration problems he knew about could not be repaired.
Art Christmann testified that he completed the masonry work on Building Four in late spring of 1980. Christmann stated that he first learned about the water infiltration problems in Washington Courte during that year. Ray and Ed informed Christmann that Building Four in particular suffered from water leakage. In the spring or early summer of 1980, Christmann examined the buildings. Christmann stated that he observed problems in every building and believed that Building Four had the worst water problems.
Between September and December 1980, Ciborowski performed repairs for an aggregate cost of $30,000 on every building in Washington Courte. Ciborowski's treatment involved the application of a water repellant spray on the exterior masonry walls, caulking around windows, and minor roof repairs. Ciborowski provided a one-year guaranty on his repair work. Ray stated that even though Building Four was not yet occupied, they wanted to caulk and waterproof Building Four because "we weren't going to take any chances, that's for sure." Ray stated that the re-tuckpointing and waterproofing would "alleviate the problem" they were experiencing in the other buildings.
On September 10, 1980, Buildings One, Two and Five sent defendants a letter expanding the list of problems specified in their July 28, 1980, letter to include water leakage through electrical outlets and ceilings on all floors.
C. Involvement of the Village of Niles
Additionally, the Associations of Buildings One, Two and Five sought the assistance of Nicholas Blase, the Mayor of the Village of Niles. Subsequent to the heavy rainstorm of December 24, 1979, Association-One reported the problem to the Village of Niles, and Niles Building Director, Todd Bavaro inspected one of the apartments in Building One. In a letter to defendants dated June 17, 1980, Association-One stated:
"* * * Mr. Todd Bavaro, Niles Building Director and our Mr. Till, President of this Association, inspected one of the apartments affected and found a number of bricks cracked on the North wall of this building. Mr. Bavaro concluded that this was due to a construction fault, and that to avoid a similar occurrence, the North side of this building should be caulked and siliconized. " (Emphasis in original).
In response to Association-One's June 17, 1980, letter, Bavaro directed a letter to Association-One, dated June 19, 1980, wherein he stated:
"I would like to inform you regarding the one sentence in your letter stating, 'Mr. Bavaro concluded that this was due to a construction fault.' This sentence is erroneous, what was stated when I met with Gene Till was 'that due to settlement, the brick can in fact crack, allowing heavy rains to seep into the building and therefore, cause the apartments to have some water damage.'
Upon our inspection we have found that the entire building meets with the approval of this department, Building Commissioner and the Village of Niles and that the building is structurally sound and conforms to the blue prints as well as the Village codes."
Bavaro did not testify at trial.
On September 13, 1980, defendants and representatives of Buildings One, Two and Five met with representatives of the Village of Niles to discuss possible remedial measures for the continual leakage. The meeting culminated in a "Memo of Understanding," which stated in pertinent part:
"(1) The builders will, by no later than November , correct the situation which allows water to enter into the apartments, whether that be water through the brick itself, or water that comes through the downspouts, or air conditioning system, ceiling, electrical outlets, or through the window seams.
(2) A meeting will be set up with the architect, the weather shield company, the builders, and our Building Department, to discuss these problems so they can be corrected prior to the construction of the new buildings. Mr. Salerno [Niles Director of Building & Zoning] should set up this meeting.
(6) The roof should be checked as to why it is leaking into the floor below and this should be done within the next thirty days."
On or about October 11, 1980, Ray, Ed and representatives of the Village of Niles were informed by letter from the Boards of Directors for Buildings One, Two and Five, that although repairs had been started, all three buildings continued to experience water leakage problems. Ray admitted that Ciborowski's work did not prevent water infiltration during the one-year guaranty period.
D. Marketing of Building Four
Defendants began marketing units in Building Four in late 1980. The Washington-Courte Disclosure Binder for Building Four indicated that the units were priced ranging from $68,900 to $110,500. Ed and Bruce specifically handled Washington-Golf's marketing efforts. Ed stated that he participated in the closings on units sold in Building Four. He did not participate in the hiring of salespeople for Washington-Courte units, and to his knowledge there was no sales training program.
Ray testified that defendants "never told anybody to not say that the buildings leaked or anything like that," but also stated that he did not personally ever tell any of the sales staff about any water leaks in any of the buildings while they were selling units in Building Four. Ray stated that he did not instruct the sales people to inform prospective buyers about the work that had been done on Building Four or any of the other buildings.
Bruce testified that he hired all of the sales people for Washington Courte. Bruce stated that if people he spoke to asked about water infiltration problems in Building One, he mentioned that there were a few isolated cases, but he did not recall if anyone specifically asked about water problems. Bruce admitted that he knew that there were complaints about water infiltration in Buildings Two and Five prior to the closings on the units in Building Four. Bruce stated that he talked with the salespeople about explaining the water infiltration situation to prospective buyers, but admitted that prospective buyers were not told about the problems unless they asked.
Two unit owners, Dr. and Mrs. Strauss, testified that in 1981 they observed, prior to closing on their unit, water on the sill of an open window in Building Three. When they called the water to Bruce's attention, Bruce stated: "Well, the window's open. Some idiot must have left the windows open overnight and it rained last night. So that's why it was wet."
Bob Winkle, a salesperson for Washington-Golf, testified on defendants' behalf that he sold units in Washington-Courte during 1981 and 1982. Winkle sold approximately 20 to 30 units in Building Four. On cross-examination, Winkle stated that he was aware that there had been complaints about water problems in some of the other buildings in the complex, but he did not tell prospective buyers in Building Four about the water problems because he thought they were being taken care of and because they related to other buildings. Winkle stated that he was not aware of any major complaints from unit owners in Building Four while he was selling units. On redirect examination, Winkle stated that he checked a unit in Building Four after a heavy rainstorm "and there was no water that I could see in the unit, and it was not finished."
Sabatino Pavoni, a plaintiff unit owner in Building Four and self-employed insurance salesman, testified that he agreed to sell units for Washington-Golf in February 1983. At that time, eight or nine units remained to be sold in Building Four. Pavoni testified that he knew that three of the units he was supposed to sell were leaking. However, during the time he was selling units, Pavoni believed that the problems in Building Four were "window problems that needed caulking," because defendants had told him that the leaking problems were isolated window problems that would be corrected. Pavoni sold four units in Building Four between February and May 1983.
On May 17, 1983, after Pavoni learned of the Building Four's structural problems from John Frauenhoffer, the structural engineer hired by Building Four, Pavoni orally resigned his position as a salesperson for Washington-Golf. Pavoni submitted a written letter of resignation to defendants dated June 5, 1983. Pavoni cited incompatibility with Bruce as one reason for his resignation.
The evidence indicated that defendants purchased units in Building Four for their own purposes. Ray testified that he purchased a unit in Building Four for investment purposes. Bruce testified that he purchased a unit in Building Four in 1982 to live in with his wife and children. Bruce stated that at the time he moved his family into unit 511, he did not believe there were any structural problems with Building Four. Bruce believed that the existing water problems were isolated cases because the unit next door to his leaked, but his did not. David Jacobson, Ray's accountant, testified that he purchased a unit in Building Four in May 1984 at a discounted price. In addition, Ed testified that he bought three units in Building Five in 1979 for various family members.
E. Testimony of Unit-Owner plaintiffs regarding Water Damage in Building Four
Twenty-two plaintiff unit-owners testified on their own behalf. In addition, the parties stipulated to the testimony of four other residents of Washington Courte. Testimony disclosed that between August 1981 and March 1982, fifteen plaintiff purchase transactions closed in Building Four, the prices of units ranging from $70,900 to $107,500. All unit owners, with one exception, testified that prior to purchasing their units in Building Four, they were never told by defendants or any other sales people about water problems in Building Four or any other building in Washington Courte. All unit owners testified that had they known about water problems in Building Four, they would not have purchased their units.
Walburga and Ernst Wagner visited Building Four in late 1980 and met with Bruce and Winkle. The Wagners returned to visit Building Four three or four more times in four consecutive weeks. At no time did Bruce tell the Wagners about water infiltration problems in the development. The Wagners closed on unit 510 on August 1, 1981, paying $97,900, and moved into the unit on August 15, 1981. Mrs. Wagner stated that water leaked into their unit the first time it rained. The water came into the kitchen and living room, underneath the sliding doors, soaking the carpet. Mrs. Wagner called Bruce to report the problem and spoke to Bruce's secretary, Terry Rutkowski. Rutkowski told Mrs. Wagner that the problem would be taken care of, but no one came out to the Wagners' that day. Subsequently, the Wagners experienced water problems every time it rained, and reported the problems to Bruce. Bruce told Mrs. Wagner not to worry, that they "would take care of it." The Wagners sent letters of complaint to defendants during the one-year contractual express warranty period, on June 15, 1982, and August 9, 1982. Bruce gave Mr. Wagner a caulking gun and told him to caulk the windowsill. The leaking persisted despite Mr. Wagner's effort to caulk his own windows. Mrs. Wagner stated that they continue to experience water problems every time it rains.
Geraldine Jarol testified that she was shown unit 308 in Building Four by Fay Levin, a Washington-Golf salesperson. Ms. Levin did not tell Jarol anything about any water problems in any of the other buildings in the complex, or about any repair measures the defendants had taken on any of the buildings.
Jarol purchased unit 308 for $89,000. Jarol stated that prior to moving into her unit in August 1981, she had a conversation with a friend, Miriam Hessler, who lived in Building Five. Hessler told Jarol that she had water problems in her unit in Building Five, but that after the building was siliconized, she had no further problems. Jarol then went to the builders' office and spoke to Bruce about the water problems in Building Five, and Bruce responded that the problems had been "taken care of."
Jarol moved into her unit in Building Four on August 28, 1981. Within six weeks of her move, she experienced severe water leakage in her master bedroom, on the east wall of her unit, during a heavy rainstorm. Jarol described the water as "coming down almost in a sheet." At a later date, Jarol had water coming into the second bedroom, which faces north. On October 28, 1986, she experienced water problems in the living room through the ceiling.
Jarol called Bruce several times, and initially spoke to Rutkowski. Each time, Rutkowski told Jarol that her water problems would be taken care of. At various times, Jarol stopped Bruce in the building and complained to him. However, at the time of trial, Jarol was still experiencing water leakage in her unit whenever there was a strong rain combined with a strong wind.
Mark Miller bought unit 408 in Building Four for $89,000 in September 1981. Miller stated that when he was shown his unit by Winkle, he did not see any water problems, and no one at Washington-Golf told him about any water problems. He did not ask if there were any problems because it was a brand new building and he didn't think it would have any problems: "When you buy something that's brand new, you don't think you're going to have problems right away," Miller stated.
Miller first discovered water leakage in February 1983, coming from the ceiling, the closet and the baseboard in the master bedroom. Miller stated that because of the dampness, he has had two crops of mushrooms growing on the carpeting in his unit since 1983. Two of the mushrooms removed from Mr. Miller's unit were shown to the jury.
On cross-examination, Miller stated that he was aware that tuckpointing work was done on other buildings but not on Building Four.
Thomas Sidney purchased unit 201 for $92,500 and moved in in October 1981. Sidney testified that shortly after he moved into his unit, he observed water leaking through cracks in the balcony above this unit. Sidney reported this leakage to defendants, but nothing was ever done to rectify the problem.
Martin Gerhardt purchased unit 411 in Building Four for $107,500 and moved into his unit in August 1982. Gerhardt testified that Washington-Golf salesman Bob Winkle told him that "these were deluxe units, a quality building, the units were of excellent quality, etc." Neither Winkle nor anyone else told him anything about any water problems in Building Four or about any problems or water leaks, repairs, or temporary repairs in Buildings One, Two, Three or Five.
Gerhardt first noticed water problems in late spring, early summer of 1988. At that time, water streamed in through his master bedrooms, onto the windowsill. To date, he has wet spots in the plasterboard above the window. Gerhardt experiences these water problems whenever there is a "decent-sized fairly heavy rain."
On cross-examination, Gerhardt stated that he has observed water leaks and damage in 18 other units in Building Four. He agreed that since 1983, Building Four has not performed any remedial repairs.
Sabatino Pavoni testified that he moved into his unit in Building Four in August 1981 and first experienced water problems in September 1981. The water leaked through two bedroom windows and came down in "a sheet." Pavoni told Bruce, and Bruce said he would take care of the problem. Pavoni stated that Bruce told him that the window probably needed caulking. No action was taken by defendants, and two weeks later, Pavoni had the same leakage problem with the next big rain.
Pavoni stated that no one came to caulk the windows until the summer of 1982. While Pavoni had no water problems during the winter of 1981-1982, the caulking done during the summer of 1982 did not stop the water problems.
Unit owners Morris Eisman, Roger and Edna Peterson, Charlotte Dziacko and Marvin Weiner testified that they observed signs of water infiltration shortly after they moved into their units. Each reported the problems to defendants and were told by Bruce that their water problems were specific to their individual units and would be taken care of. Each unit owner testified that they currently have water problems in their units.
Several unit owners testified as to cold air penetration through sliding doors during the winter of 1981-1982 (Pavoni, Maynard Duboe, Sol Strauss, Aurelia Garcia, Sylvia Schwartz (stipulated) and Therese Plummer Paul (stipulated).) Plaintiff unit-owners also testified that they complained to defendants about wet electrical units, cracks in window sills and drafts through doors and windows.
F. Defendants' repair efforts
Ray testified that all five buildings were experiencing water infiltration problems in August 1982. Prompted by various complaints from unit owners, on August 6, 1982, defendants sent identical letters to Rosenow, Weather Shield Manufacturing, Inc., (the window manufacturer), and Christmann advising them of continued water leakage at Washington Courte and requesting their assistance in solving the problems. The letter stated in part:
"This letter will serve as notification that the water problem in our development still persists even though we have complied with suggestions you have made to solve this condition.
The last two rains, however, have caused continued leakage and damage to personal property, as it has done from the date of installation of your work; and from the date of the additional work which we have had you complete * * * You are being put on notice, because more work and more money is being spent by Washington-Golf Corp. in our continuing effort to alleviate this water problem. We are sure there will be many claims by owners for this damage. We must protect ourselves against these claims, as they could possibly be quite extensive * * * We do intend to take whatever measures necessary to solve this problem."
On October 21, 1982, Building Five sent a letter to defendants describing the unit owners "deep concern" over Washington-Golf's failure to solve the water infiltration problems existing for over two and a half years. The letter concluded with a threat of litigation. On October 27, 1982, defendants sent a demand letter to Ciborowski which stated in part:
"* * * We were told that this waterproofing and caulking would definitely alleviate our water problem. It has not. You were notified several times of continuing problems. An attempt was made by you on different occasions to assess and rectify this problem; but the problem still exists
On November 3, 1982, Building Two sent a letter to Mayor Blase and defendants advising them of ongoing water leakage in Building Two and "all other buildings." The letter stated that Building Two had contacted a structural engineer, Jake Ribar, who was to report on the structural problems at a condominium association meeting scheduled for November 10, 1982. The letter requested that defendants "engage Mr. Ribar immediately" to investigate the water problems in Building ...