Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

12/29/95 MARK ZIELINSKI & MARSHA ZIELINSKI v. CHRIS

December 29, 1995

MARK ZIELINSKI & MARSHA ZIELINSKI, PLAINTIFFS, AND HARRY MILLER, JR., D/B/A HARRY MILLER, JR. AND SONS BUILDERS, DEFENDANT, THIRD PARTY PLAINTIFF, APPELLANT,
v.
CHRIS W. KNAPP & SON, INC., AND PEORIA BRICK & TILE COMPANY, THIRD PARTY DEFENDANTS, APPELLEES.



Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois. No. 93-L-159. Honorable John A. Gorman, Judge Presiding.

As Modified Upon Denial of Rehearing February 16, 1996.

Honorable Peg Breslin, Presiding Justice, Honorable William E. Holdridge, Presiding Justice, Honorable Kent Slater, Justice. Presiding Justice Breslin delivered the opinion of the court: Holdridge, P.j., and Slater, J., concur.

The opinion of the court was delivered by: Breslin

PRESIDING JUSTICE BRESLIN delivered the opinion of the court:

The plaintiffs, Mark and Marsha Zielinski, brought an action for breach of contract against defendant/third-party plaintiff-appellant Harry Miller, Jr. d/b/a Harry Miller Jr. & Sons Builders. Miller was the general contractor for the construction of the Zielinskis' single family home. Miller, in turn, brought an action against third-party defendants-appellees Chris W. Knapp & Sons, Inc., the masonry subcontractor on the project, and Peoria Brick & Tile Company, the supplier of bricks used on the exterior of the home. The circuit court granted the third-party defendants' motions to dismiss. Miller appeals. We affirm in part and reverse in part.

In 1988, the Zielinskis and Miller entered into a written agreement for the construction of a home. Under the terms of the agreement, the home's exterior was to be constructed of used red and orange bricks. Peoria Brick supplied the bricks and Knapp performed the masonry work on the home.

During the summer of 1992, the Zielinskis noticed the orange bricks were flaking, cracking and disintegrating. It was subsequently determined that the orange bricks were for interior use only. The Zielinskis brought suit against Miller in two counts, alleging breach of the implied warranty of habitability and breach of the implied warranty of reasonable workmanship and materials.

Miller then filed a third-party complaint against Knapp and Peoria Brick seeking indemnification for any damages resulting from the Zielinski action. In count I of his amended third-party complaint, Miller alleged that Knapp had orally agreed to provide all the masonry work on the Zielinskis' home. Miller maintained that Knapp had agreed to provide all masonry expertise with respect to the construction of the residence, including the choice of the appropriateness of the bricks and mortar to withstand the weather and elements on an exterior brick facade. Miller alleged further that all the wrongful acts alleged by the Zielinskis were solely attributable to the actions of Knapp. Miller maintained that Knapp was acting as his agent or independent contractor. Miller claimed that if he was found liable to the Zielinskis, then he was entitled to indemnity from Knapp under an implied contract of indemnity arising from their principle-agency relationship.

Count II alleged a breach of an oral contract by Knapp as the basis for indemnification. Count III asserted that Miller was entitled to indemnity because of Knapp's breach of the implied warranty of reasonable workmanship and materials.

Counts IV and V alleged that Miller was entitled to indemnification from Peoria Brick based upon an implied contract of indemnity and breach of oral contract, respectively.

Knapp and Peoria Brick each filed a motion to dismiss pursuant to sections 2-615 (735 ILCS 5/2-615 (West 1992)) and 2-619(5) (735 ILCS 5/2-619(5) (West 1992)) of the Code of Civil Procedure. Knapp's motion claimed that counts I through III failed to state a cause of action, and, alternatively, that if an action was properly stated, it was time-barred under section 2-725 of the Uniform Commercial Code (810 ILCS 5/2-725 (West 1993)). Peoria Brick's motion made the same arguments with respect to counts IV and V. The circuit court granted both motions with prejudice, but did not state the basis for its decision.

In reviewing the dismissal of actions pursuant to sections 2-615 and 2-619, the reviewing court must take all facts properly pleaded as true. (See Milder v. Van Alstine (1992), 230 Ill. App. 3d 869, 595 N.E.2d 693, 172 Ill. Dec. 332 (section 2-615); Estate of Herington v. County of Woodford (1993), 250 Ill. App. 3d 870, 620 N.E.2d 463, 189 Ill. Dec. 495 (section 2-619).) In reviewing the propriety of a dismissal for failure to state a cause of action, we must determine whether the complaint alleges sufficient facts to establish a cause of action upon which relief may be granted. ( Faulkner v. Gilmore (1993), 251 Ill. App. 3d 34, 621 N.E.2d 908, 190 Ill. Dec. 455.) On review of the grant of a motion to dismiss under section 2-619, we must review the law and the facts, and we may reverse if the trial court erred regarding the law or ruled against the manifest weight of the evidence. (See In re Estate of Silverman (1993), 257 Ill. App. 3d 162, 628 N.E.2d 763, 195 Ill. Dec. 299.) Where the trial court does not specify the grounds upon which it relied in allowing a motion to dismiss, we must presume that it was upon one of the grounds properly presented. Smith v. Board of Education of East St. Louis School District No. 189 of St. Clair County (1977), 52 Ill. App. 3d 647, 367 N.E.2d 296, 9 Ill. Dec. 862.

We will address first whether the implied indemnity counts of Miller's amended third party complaint (counts I and IV) state a cause of action upon which relief may be granted.

It is clear from Miller's arguments on appeal that counts I and IV seek to impose implied tort indemnity upon Knapp and Peoria Brick based upon the theory that Miller is being held vicariously liable for the wrongdoing of Knapp and Peoria Brick. Implied tort indemnity is a common law doctrine which shifts the entire responsibility for tort-related losses from a blameless tortfeasor to a truly culpable one. (See Smith v. Clark Equipment Co. (1985), 136 Ill. App. 3d 800, 483 N.E.2d 1006, 91 Ill. Dec. 520.) Although the Joint Tortfeasor Contribution Act (740 ILCS 100/0.01 et seq. (West 1992)) has abolished implied tort indemnity in most instances, the doctrine remains intact in the context of quasi-contractual ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.