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12/16/94 ROBERT TOMLINSON AND LORI TOMLINSON v.

December 16, 1994

ROBERT TOMLINSON AND LORI TOMLINSON, PLAINTIFFS-APPELLEES,
v.
DARTMOOR CONSTRUCTION CORPORATION, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE SAMUEL J. AMIRANTE, JUDGE PRESIDING.

Presiding Justice Cousins delivered the opinion of the court: Gordon and McNULTY, JJ., concur.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

In March 1986, plaintiffs, Robert Tomlinson and Lori Tomlinson, entered into a contract with defendant, Dartmoor Construction Corporation, for defendant to construct and sell a house to plaintiffs. On October 11, 1989, plaintiffs filed an action against defendant to recover for alleged defects in the house under a warranty and for attorney fees pursuant to a rider to the contract. At trial, plaintiffs sought to prove the existence of defects in the house and that, pursuant to the warranty and the rider, defendant was obligated to reimburse plaintiffs for taking steps to correct the defects. The trial court entered a judgment in favor of plaintiffs and awarded plaintiffs damages in the amount of $5,897 and attorney fees in the amount of $11,143.85. On appeal, defendant contends that the trial court erred in: (1) determining that plaintiffs successfully carried their burden of proving a defect without producing expert testimony on the issue of adefect; (2) permitting plaintiffs to proceed on issues not pled in the complaint; (3) determining that plaintiffs are entitled to an award of attorney fees for work done on issues upon which plaintiffs did not prevail; and (4) determining that plaintiffs successfully carried their burden of proof that they are entitled to reasonable attorney fees.

We affirm.

BACKGROUND

In pertinent part, the warranty provided for the following:

"DARTMOOR CONSTRUCTION CORP. warrants the dwelling constructed by DARTMOOR CONSTRUCTION CORP. on the above described block and lot (the 'Dwelling') against defects in the original material and workmanship for one (1) full year from the date of the closing of the purchase of the Dwelling or the date of occupancy by you, whichever occurs first (the 'Warranty Period') subject to the terms and provisions of this Warranty.

DARTMOOR CONSTRUCTION CORP. will repair or replace, at its option, and at no charge, any component of the Dwelling which shall be found to be defective. All claims for correction of defects must be made within the Warranty Period by written notice addressed and mailed to DARTMOOR CONSTRUCTION CORP., to the attention of the 'Customer Service Department'."

In addition, paragraph 12 of the rider to the contract states the following:

"12. The Seller shall be obligated to fully perform all of its obligations hereunder on or prior to Closing. In the event that the Seller has not fully performed all of the obligations hereunder prior to the Closing and the Purchaser elects to close this transaction, the Seller agrees that if all obligations of the Seller hereunder are not completed within 30 days after the Closing, *** the Buyer may complete such obligations of the Seller and the Seller agrees to reimburse the Buyer for the reasonable costs incurred by the Buyer in completing the Seller's obligations. If the Seller does not pay such costs to Buyer within 30 days of receipt of written notice of such costs, then the Seller agrees to pay any and all additional costs and expenses, including reasonable attorneys' fees incurred by the Buyer in collecting the amounts which the Seller has agreed to pay under this Paragraph."

Before taking possession of the house, both plaintiffs and a representative of defendant walked through the house at which time plaintiffs identified several defects in the house. At that time, defendant prepared a list of those and indicated that it would correct the defects. Plaintiffs took possession of the house in November 1986.

After taking possession of the house, plaintiffs discovered severaladditional defects in the house. Plaintiff Lori Tomlinson testified that the wooden floor in the study had a board that had a different shading than the other boards in the floor, air would enter the house through the kitchen because there was a gap between the molding and the frame of the kitchen sliding glass door, the screen to the kitchen sliding glass door continually fell off, water seeped through the wall and went down into the basement, rain leaked through the living room bay windows so that puddles would form on the living room floor, there was molding on the interior of the house that was chalky white, the exterior paint was chipping off and was exposing the bare wood, water leaked into two of the bathrooms, the floor tile in the children's bathroom began to come away and was spongy, stones in the fireplace were loose and would easily come off when lifted, the Jenn-Air range could not be used because the smoke vented into the basement rather than outside the house, the exterior bricks were not secure, and the front door was chipping. She also testified that she contacted defendant as these problems occurred and that defendant attempted to repair many of the defects, but was unable to do so.

After defendant failed to repair certain defects, plaintiffs advised defendant that they would hire their own contractor to work on those areas of the house with which they were dissatisfied. These areas included sealing windows, replacing the kitchen sliding door, repairing bay window installation, repairing fireplace bricks, and sealing the foundation to protect against leaks in the basement.

Plaintiff Robert Tomlinson testified that he sent several letters to defendant regarding the defects. In his letter to defendant dated October 5, 1987, he identified the following defects: wood under the bay window needed repair, nail in the staircase, screen coming off one prado door, "sheet good" in laundry room coming away from door, crack in wooden floor, paint on exterior, dent in the prado door, weather stripping coming off one greenhouse window, cracked ceramic tiles, shelf missing in kitchen, family room ceiling crack, fireplace still smokes, exterior moldings, hairline crack in bathroom toilet, basement leaking in two spots, molding in master bedroom cracked, stress cracks in all corners of tray ceiling, wrong size grid on sitting room door, crack in marble in the master bathroom, and cracked cap in powder room toilet. In a letter to defendant dated February 24, 1988, he identified the following additional defects: study floor, exterior paint, cedar bleeding, garage, front door, ceramic tile, fireplace, interior and exterior sliding door, woodwork not varnished, and basement leak. Plaintiff Robert Tomlinson also wrote three subsequent letters to defendant wherein he expressed his dissatisfaction with defendant's inability to correct the defects. In theseletters, he notified defendant of plaintiffs' intent to have the defects repaired by other contractors and that they would bill defendant for the repairs. Thereafter, one of defendant's employees, Pat Taylor, authorized plaintiffs to employ other companies to repair the defects in the house.

Michael Gibson testified that he was engaged in construction since 1971 and was currently doing business as GBS Construction in South Barrington, Illinois. He visited the house during the fall of 1990 and observed water leaking into the foundation because it extended past the exterior wall, loose stones on the northeast corner of the house, and loose stones in the fireplace. Mr. Gibson testified that he recommended that plywood be placed around the bay windows, that three pieces of copper flashing be constructed to cover the brick windowsills, and the repair of certain loose bricks in the northeast corner of the house. He also testified that he provided plaintiffs with an estimate for the replacement of the oak flooring in the den, drywall patching, tile replacement, and ...


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