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01/30/97 JOHN W. VONHOLDT v. BARBA & BARBA

January 30, 1997

JOHN W. VONHOLDT, JR., APPELLANT,
v.
BARBA & BARBA CONSTRUCTION, INC., APPELLEE.



The Honorable Justice Miller delivered the opinion of the court. Chief Justice Heiple, dissenting. Justice Nickels joins in this dissent.

The opinion of the court was delivered by: Miller

The Honorable Justice MILLER delivered the opinion of the court:

The plaintiff, John W. VonHoldt, Jr., brought the present action in the circuit court of Cook County against defendant, Barba & Barba Construction, Inc. The complaint alleged that defendant breached an implied warranty of habitability in its construction of a structural addition to an existing residence. Plaintiff was a purchaser of the residence after the addition had been made. On defendant's motion, the circuit court dismissed the action pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1994)), finding that plaintiff's second-amended complaint failed to state a cause of action upon which relief could be granted. On appeal, the appellate court affirmed the dismissal of plaintiff's complaint. 276 Ill. App. 3d 325, 657 N.E.2d 1156, 212 Ill. Dec. 811. We granted leave to appeal (155 Ill. 2d R. 315(a)) and affirm the judgment of the appellate court on grounds different from those relied on by the lower courts.

I. BACKGROUND

In August 1982, defendant constructed a multilevel addition to a single family residence in Glenview, Illinois. Before the addition, the residence consisted of approximately 2,300 square feet. After the addition, the residence consisted of approximately 3,200 square feet. More than 11 years later, on November 5, 1993, plaintiff purchased the residence.

Shortly after taking occupancy, plaintiff noticed a deflection of the wood flooring at the partition wall separating the master bedroom from an adjoining bathroom. This deflection created a depression in the floor plane. Plaintiff maintained that, due to the thickness of the carpet, the depression was nearly concealed. An investigation revealed that the addition was not constructed in accordance with the architectural plans approved by the Village of Glenview or the Glenview Building Code. Specifically, the partition wall between the master bedroom and the bathroom was constructed as a bearing element supporting a portion of both the roof and ceiling construction. This variance resulted in excessive stress on the floor joists and inadequate support for a portion of the roof and ceiling causing a greater than expected floor deflection.

The plaintiff instituted the present action on March 28, 1994, by filing a complaint in the circuit court of Cook County. Plaintiff sought recovery from the defendant for breach of an implied warranty of habitability. Defendant moved to dismiss the complaint pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)) for failure to state a claim upon which relief could be granted. On September 29, 1994, the trial judge dismissed plaintiff's amended complaint without prejudice.

Plaintiff filed a second-amended complaint on October 24, 1994, providing additional allegations in support of the breach of implied warranty of habitability count. Defendant again moved to dismiss the complaint pursuant to section 2-615. The trial judge granted defendant's section 2-615 motion and dismissed the complaint with prejudice, finding that defendant was not a builder-vendor and that there was an absence of privity between the two parties. Plaintiff subsequently appealed.

The appellate court affirmed the judgment of the circuit court. 276 Ill. App. 3d 325, 657 N.E.2d 1156, 212 Ill. Dec. 811. The appellate court noted the reasons for the adoption of the implied warranty of habitability between a builder and a purchaser and discussed extensions of the doctrine following its inception. 276 Ill. App. 3d at 327-28. The appellate court further acknowledged that there exist compelling arguments to extend the implied warranty to apply to a builder of a major structural addition of an existing home. 276 Ill. App. 3d at 328-29. The appellate court, however, observed that this court had always spoken in terms of a right of action against a builder-vendor. 276 Ill. App. 3d at 329. Thus, it refused to extend protection under the doctrine to a construction setting not involving a builder-vendor of a new residence. 276 Ill. App. 3d at 329. We allowed plaintiff's petition for leave to appeal. 155 Ill. 2d R. 315(a).

II. DISCUSSION

A. The Implied Warranty's Applicability to Additions

On appeal to this court, plaintiff contends that the appellate court erred in rejecting his claim of breach of an implied warranty of habitability. Plaintiff asks us to extend the implied warranty of habitability to a cause of action by a subsequent purchaser for damages against a builder constructing a later addition to a house. Defendant argues that the protection of the implied warranty of habitability should be limited to actions against builder-vendors and that plaintiff's action, if any exists, is time-barred. For the reasons expressed below, we find that the implied warranty of habitability extends to cases brought by subsequent purchasers involving subsequent additions to homes.

The implied warranty of habitability is a judicially created doctrine designed to avoid the unjust results of caveat emptor and the doctrine of merger. Petersen v. Hubschman Construction Co., 76 Ill. 2d 31, 39-40, 27 Ill. Dec. 746, 389 N.E.2d 1154 (1979). Initially, Illinois courts applied the doctrine to the sale of new homes to protect innocent purchasers who did not possess the ability to determine whether the house they purchased contained latent defects. Petersen, 76 Ill. 2d at 39-40.

In Petersen, this court held that the purchaser of a new home has a cause of action against a builder-vendor for damages resulting from latent defects in the construction of the new home. Petersen, 76 Ill. 2d at 39-40. Petersen stated the owner needs this protection because he is making a major investment, in many instances the largest single investment of his life. Petersen, 76 Ill. 2d at 40. Additionally, the owner usually relies on the integrity and skill of the builder, who is in the business of building houses. Petersen, 76 Ill. 2d at ...


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