The opinion of the court was delivered by: Presiding Justice Geiger
THE COURT OF APPEALS OF THE STATE OF ILLINOIS
The plaintiff, the Board of Directors of the Bloomfield Club Recreation Association, appeals from the October 4, 1996, order of the circuit court of Du Page County dismissing count I of its complaint pursuant to section 2--615 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--615 (West 1996)). Additionally, the plaintiff appeals from the trial court's January 16, 1997, order denying its motion to reconsider the dismissal of its complaint and denying it leave to file an amended complaint. In its complaint, the plaintiff had sought damages from defendants, the Hoffman Group, Inc. (Hoffman), and Ahmanson Developments, Inc. (Ahmanson), for an alleged breach of the implied warranty of habitability. We affirm.
The following facts are relevant to the Disposition of this appeal. The Bloomfield Club is a development comprised of single family homes, town homes, common areas, and common facilities located in Du Page County. The plaintiff, Bloomfield Club Recreation Association, is the governing body of the homeowners of the Bloomfield Club and is responsible for the maintenance, operation, and management of all common areas and common facilities. The defendants developed, constructed, and sold all of the housing units in the Bloomfield Club as well as the common areas and facilities.
Pursuant to the Declaration of Covenants created by the defendants, each homeowner has a right of easement for the use of, access to, and ingress and egress over all of the common facilities. The clubhouse, which is included among the common facilities governed by the plaintiff, is a freestanding building that contains various rooms including a library, a meeting/party room, an exercise room, an indoor pool, and restrooms. Each homeowner pays assessments for the taxes, insurance, maintenance, repair, and upkeep of the clubhouse.
On February 29, 1996, the plaintiff filed a two-count complaint against the defendants. Count I of the plaintiff's complaint alleged that the defendants sold the clubhouse to the association and had implicitly warranted that it was suitable for the uses and purposes for which it was intended. Count I further alleged that, in breach of this warranty, the defendants developed, constructed, and sold the clubhouse with inadequate design, workmanship, and materials. Specifically, the plaintiff alleged the following defects: (1) the installation of roofing shingles of inferior quality; (2) the improper installation of roofing shingles with an insufficient number of nails; (3) inadequate roofing ventilation; and (4) the improper installation of the "Desert Aire" system in the pool area. Count I alleged that the cost of repairing these defective conditions was $130,000. Count II of the complaint is not at issue in this appeal.
On May 15, 1996, Ahmanson moved to dismiss the plaintiff's complaint pursuant to section 2--615 of the Code. On May 23, 1996, Hoffman also moved to dismiss the plaintiff's complaint pursuant to section 2--615 of the Code. 735 ILCS 5/2--615 (West 1996). Both defendants argued that, based upon Hopkins v. Hartman, 101 Ill. App. 3d 260 (1981), the implied warranty of habitability does not apply to commercial construction, such as the clubhouse, that is unoccupied by the purchaser. Rather, the defendants argued that the implied warranty of habitability applies only to residences occupied by the homeowner.
On July 1, 1996, the plaintiff filed its response to these motions. Relying upon Petersen v. Hubschman Construction Co., 76 Ill. 2d 31 (1979), and Herlihy v. Dunbar Builders Corp., 92 Ill. App. 3d 310 (1980), the plaintiff argued that the implied warranty of habitability had been extended to apply to commonly held residential property such as the clubhouse. The plaintiff argued that the homeowners in the instant case relied upon the developer to properly construct the clubhouse so that it would be "reasonably suited for its intended use" as required by Petersen. Petersen, 76 Ill. 2d at 42. The plaintiff further argued that the alleged defects in the clubhouse were analogous to the defects alleged in Herlihy.
On October 4, 1996, following argument, the trial court entered an order granting the defendants' motion and dismissing count I of the plaintiff's complaint with prejudice. The trial court explained its ruling as follows:
"The [implied warranty of habitability] has been extended to defects in common elements of condominium properties under certain circumstances. No cited case specifically permits any particular common element defect to be used universally as a basis for a breach of implied warranty of habitability claim. However, the Court finds instructive the case of Herlihy vs. Dunbar Builders Corp. *** In that case, the reviewing court allowed a number of alleged defects be actionable. The Court conditioned the viability of those claims to circumstances wherein the defect `...may be found to interfere with a purchaser's legitimate expectation that the structure be reasonably suited for its use as a residence.' *** The Court's statement of potential extension to common elements, as restricted, is consistent with the Supreme Court rationale in Petersen v. Hubschman Construction Co. *** which created the doctrine.
In the instant case, construction defects are alleged to have occurred in a free-standing recreational building which was part of the condominium property. This Court does not find the Herlihy case to expand the use of the implied warranty of habitability to that extent. This Court does not find recreational use of "amenities" to be included within the concept of habitability of residential structures. Therefore, the Court finds as a matter of law that the doctrine of implied warranty of habitability does not extend to the clubhouse building, as alleged defects in that building are incapable of interfering with a purchaser's legitimate expectation that his residence be reasonably suited for its use."
On November 1, 1996, the plaintiff filed a motion to modify or reconsider the trial court's October 4, 1996, order dismissing its complaint. On November 12, 1996, the trial court entered an order continuing the plaintiff's motion and allowing the plaintiff to file a proposed amended complaint by December 3, 1996. On December 3, 1996, the plaintiff filed its proposed amended complaint, which included all the allegations contained in its original complaint but also alleged that the clubhouse contained rooms and facilities which could be found in a home. The proposed amended complaint further alleged that the Bloomfield Club Recreation Association homeowners became property owners "with the full and reasonable expectation that they would be able to use such facilities as their own and that such facilities would be or would have been properly constructed." The amended complaint also alleged that the homeowners had used the clubhouse facilities as if they were located within the walls of their own homes.
On January 16, 1997, following argument, the trial court denied the plaintiff's motion to reconsider and did not grant the plaintiff leave to file its amended complaint. The plaintiff filed a timely notice of appeal.
The plaintiff argues that the trial court erred in finding that count I of its complaint had not stated a cause of action for breach of an implied warranty of habitability. In the alternative, the plaintiff argues that the trial court abused its discretion in refusing to allow the filing of its amended complaint.
At the outset, we note that a section 2--615 motion to dismiss attacks only the sufficiency of the complaint and should be decided on the allegations set forth in the complaint. Perkins v. Collette, 179 Ill. App. 3d 852, 856 (1989). In considering a section 2--615 motion, all well-pleaded facts alleged in the complaint are taken as true. T&S Signs, Inc. v. Village of Wadsworth, 261 Ill. App. 3d 1080, 1083 (1994). Such motions should only be granted if it is clear that the plaintiff cannot prove any set of facts under the pleading which would entitle the ...