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12/19/96 GEORGE VERNON AND NANCY K. BAKER v. JERRY

December 19, 1996

GEORGE VERNON AND NANCY K. BAKER, PLAINTIFFS-APPELLANTS,
v.
JERRY SCHUSTER D/B/A DIVERSEY HEATING AND PLUMBING, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 95 CH 614. Honorable Brent F. Carlson, Judge Presiding.

Released for Publication January 29, 1997.

The Honorable Justice Cerda delivered the opinion of the court. Greiman and Gallagher, JJ., concur.

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

Plaintiffs, George Vernon and Nancy K. Baker, appeal from the dismissal of their first amended complaint against defendant, Jerry Schuster, doing business as Diversey Heating and Plumbing (Diversey Heating), pursuant to section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 1994)). We reverse and remand.

I. Facts

Plaintiffs brought a count for negligence (count I), two counts for breach of contract (counts II and IV), and a count for breach of warranty (count III) in their first amended complaint, which alleged that the plaintiffs owned a building located at 953 W. Webster, Chicago, Illinois. Diversey Heating was a sole proprietorship previously operated by James Schuster. Diversey Heating was in the business of selling, installing, and servicing heating and plumbing systems. Beginning on October 20, 1993, Diversey Heating was operated by defendant; before that date, Diversey Heating was operated by defendant's father, James Schuster. James Schuster died on October 20, 1993.

Plaintiffs further alleged that in 1989 plaintiffs contracted with Diversey Heating to replace the boiler in the Webster building. Diversey Heating warranted for 10 years the "cast iron sextions [sic ]" of the boiler against cracking. In the course of installing the boiler, an employee of Diversey Heating sealed the boiler's blow-down valve with a pipe in a manner that prevented the valve from draining water from the boiler. In late October or early November 1993, defendant told Vernon that James Schuster had died and that Diversey Heating would perform preseason service on the boiler. In February 1994, the boiler stopped heating. Defendant told plaintiffs that the boiler could not be repaired and that Diversey Heating would not honor the warranty.

Plaintiffs further alleged that on James Schuster's death, defendant succeeded to the assets, rights, and obligations of Diversey Heating, that defendant continued to do business under the name of Diversey Heating, and that defendant received the benefits of the goodwill associated with the name of Diversey Heating. Jerry Schuster, doing business as Diversey Heating, allegedly was a continuation of James Schuster, doing business as Diversey Heating, and was a successor to the obligations of Diversey Heating.

Count II alleged that Diversey Heating breached its contract by failing to competently service the boiler in early November 1993. Count IV alleged that Diversey Heating breached its contract to install and service the boiler.

Defendant filed a motion to strike and dismiss the first amended complaint pursuant to section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 1994)). Defendant argued that Diversey Heating was not a legal entity and was not a party to the case.

Defendant's prior motion to dismiss the original complaint was supported by the affidavit of defendant, who swore that he owned Diversey Heating as a sole proprietorship since his father's death on October 20, 1993. Prior to that date, he was his father's employee. He did not do business as Diversey Heating prior to his father's death. At all times alleged in plaintiffs' complaint, defendant's business did not exist. Defendant did not state whether he purchased the assets of his father's business or inherited them.

The court dismissed counts I, III, and IV and denied the motion to dismiss count II, finding that count II was limited to events occurring after the death of James Schuster on October 20, 1993. The trial court also ...


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