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09/30/96 FREDERICK AND ANN EICKMEYER v. BLIETZ

September 30, 1996

FREDERICK AND ANN EICKMEYER, PLAINTIFFS-APPELLANTS,
v.
THE BLIETZ ORGANIZATION, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Patrick E. McGann, Judge Presiding.

Released for Publication November 18, 1996.

Presiding Justice Tully delivered the opinion of the court: Cerda and Gallagher*, JJ., concur.

The opinion of the court was delivered by: Tully

PRESIDING JUSTICE TULLY delivered the opinion of the court:

Plaintiffs, Frederick and Ann Eickmeyer, brought this action in the circuit court of Cook County against defendant, the Blietz Organization, Inc., seeking to recover damages for the faulty construction of a house. Plaintiffs alleged Blietz breached its implied warranty of habitability, fraudulently concealed and misrepresented the underlying soil problems causing the "structural defects", and violated the Illinois Consumer Fraud and Deceptive Practices Act (815 ILCS 505 et seq. (West 1992)). After a bench trial, the trial court entered the judgment in favor of defendant. It is from this judgment that plaintiffs now appeal to this court pursuant to Supreme Court Rule 301 (155 Ill. 2d R. 301).

For the reasons which follow, we affirm.

FACTUAL BACKGROUND

The pertinent facts are as follows. Blietz Organization, Inc. and Bruce Blietz (collectively referred to as Blietz) constructed the one-level house in question in the winter of 1976. On April 1, 1977, Blietz sold the house to Anthony and Betty Fredericks, the original owners. The rear of the house, which includes the master and guest bedrooms, two bathrooms, two closets and a den, was constructed on a concrete slab. The interior floor slab does not rest on the foundation walls, but rather is supported by the soil under the concrete slab. Since the house was built in the winter, the soil upon which it was built was frozen. Climatological records indicate that during December of 1976 through February of 1977, the temperatures were extremely cold. Blietz indicated that precautions were taken before the floor slab was poured, such as installing temporary furnaces to keep the ground from freezing. The house is located in a unique subdivision of Lincolnshire, Illinois called Wood Creek Courts. The subdivision's distinctiveness is made up of dense wooded areas which surround the properties. Each residence there is subject to an environmental preservation declaration which controls what can and cannot be done with the trees and surrounding areas. In close proximity to the rear of the house are two large mature trees. This is important for defendant's expert's theory of soil desiccation.

On September 15, 1983, the house was purchased by the Eickmeyers. In 1984, one year later, the Eickmeyers noticed a slight unleveling of the floor in the south wall of the master bedroom, which resulted from a crack in the concrete floor. Ann Eickmeyer testified that she contacted Blietz in order to correct the problem. However, Blietz testified that he did not recall nor did Blietz have any record that he went to the Eickmeyers' home in 1984. The trial court concluded that Blietz did not go to the house in 1984.

In any event, in 1985, the Eickmeyers hired Kelly Construction Company in order to repair the cracks and level the floor. Kelly showed the Eickmeyers that the crack ran through all three rooms in the rear of the house, and that the slab had settled in that area approximately one-half inch. Kelly pulled back the carpeting about eight to nine feet in each room and leveled the floor. He also showed the Eickmeyers some previous leveling of the floor and the cracks in the foundation wall. Kelly installed three underpinnings on the exterior foundation walls in order to keep the floor from settling further. These repairs cost the Eickmeyers a total of $300. After this incident, the Eickmeyers did not question the Fredericks about any prior structural defects.

In 1987, plaintiffs had new carpeting installed. The people installing the carpet noticed cracks in the concrete and showed them to the Eickmeyers. The cracks were in the same area previously repaired by Kelly. It was evident that the floor slab had settled further. In order for the carpeting to appear leveled, the carpet installers had to place additional padding in certain areas near these cracks in the two bedrooms and the den. Around that time, the Eickmeyers noticed a separation of the tub from the tub surround in one of the bathrooms and saw cracks in some of the woodwork in their home.

By 1990, the Eickmeyers contacted Blietz. Blietz responded by arriving at the house. Although he did not conduct any tests on the soil, concrete, or on the structure of the house, Blietz did examine the interior and exterior of the house and looked at the concrete slab through a crawl space in the basement. Blietz noted that the floor slab had settled further. He observed some voids in the back-fill underneath the concrete slab. Blietz suggested to the Eickmeyers that they have the floor mudjacked in order to return it to its prior level. Mudjacking is a corrective procedure used to raise the concrete slab by pumping liquid cement through a series of holes cored in the slab to fill the voids. However, in the end, the Eickmeyers decided not to go with the mudjacking procedure due to the numerous problems that could result from that procedure. Instead, the Eickmeyers decided to pursue a more comprehensive solution to the problems.

In 1991, the Eickmeyers took bids to reconstruct the entire floor in the rear of the house. They accepted a bid from Lawrence Liotta of Liotta Construction Company for $67,000, of which $4,000 was unrelated to the settlement repairs. Liotta discovered the following problems: (1) the concrete slab which supported the floor had separated from the foundation and sunk approximately one-inch; (2) there were numerous voids between the concrete slab and the back-fill upon which the slab ought to have been resting; (3) the shower in one bathroom had a ten-inch void underneath the slab; (4) the bathtub in the master bathroom was being physically supported by the drain pipe; and (5) the interior walls had separated from their base plates on the floor and from the ceiling. Moreover, there were gaps between the floor and wall and between the rooms, and interior doors, cabinet doors and windows became unaligned.

Shortly thereafter, Liotta began repair work. The work included the cubing, removal and replacement of the entire 1100 square feet of the concrete slab, the underlying soil, all interior walls related thereto, and the heating and plumbing. Although it is disputed as to whether Liotta conducted soil tests, he postulated that the cause ofthe slab's settlement was related to frozen soil. Liotta believed that when the soil thawed, the pea gravel back-fill underneath the slab began to roll away like marbles which created the voids between the slab and the soil. It was not until Liotta opened the walls and chopped the concrete slab, that the Eickmeyers discovered the extensive repair work previously done by defendant. Plaintiffs theorize that defendant performed cosmetic work in 1977 in order to cover the underlying soil problems before the original owners moved in.

The trial court found that the settlement of the concrete slab was due in part to soil desiccation caused by the two large mature trees close to the rear of the house. Louis Walter Jr., a soils engineer testified that soil desiccation is the removal of moisture from clay soils, which results in the soil increasing in strength, but when the moisture content goes down, the soil shrinks, resulting in settlement. Walters further testified that continuing settlement for more than 10 years after a house is built is attributable to ...


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