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Keuper v. Beechen

December 30, 1998

KEVIN R. KEUPER AND DEBORAH S. KEUPER, PLAINTIFFS-APPELLEES,
v.
BEECHEN, DILL AND SPERLING BUILDERS, INC., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 95--L--1138 Honorable Rodney W. Equi, Judge, Presiding.

The opinion of the court was delivered by: Justice Colwell

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Plaintiffs, Kevin and Deborah Keuper, brought this action against defendant, Beechen, Dill & Sperling Builders, Inc., seeking to recover damages sustained as a result of leaking windows in the new home that defendant built for plaintiffs. The parties entered into a settlement agreement that required defendant to replace the windows. After the trial court determined that defendant failed to replace the windows in a timely manner, it held defendant in indirect civil contempt and later entered a judgment that required defendant to pay compensatory damages to plaintiffs. Defendant appeals from the order awarding damages and contends, inter alia, that the trial court exceeded its authority when it awarded compensatory damages to plaintiffs in the contempt proceedings. We agree, reverse, and remand for further proceedings.

The relevant factual and procedural history is as follows. In November 1992, the parties entered into a contract for the construction of a residence and the sale of real estate whereby defendant agreed to construct a new house for plaintiffs on land provided by defendant, and plaintiffs agreed to pay defendant $572,945 for the house and land. The parties agreed that defendant was to obtain windows manufactured by the Rockwell Window Company, Inc. (Rockwell), and install the windows in the house. Defendant obtained windows manufactured by Rockwell and installed them in the house. Rockwell warranted the windows against defects, including moisture seal failure, for five years.

Plaintiffs took possession of the house in July 1993. Soon after they took possession of the house, plaintiffs discovered that the windows leaked.

On June 13, 1995, plaintiffs filed a complaint in the circuit court against defendant. The complaint sought damages that allegedly resulted from the leaking windows. The complaint was based on theories of intentional misrepresentation, consumer fraud, negligent misrepresentation, and breach of contract.

On September 4, 1996, the parties entered into a settlement agreement and release (settlement agreement). Under the terms of the settlement agreement, plaintiffs agreed to release defendant and defendant agreed to pay plaintiffs $25,000, remedy all outstanding warranty items, make all necessary repairs, and "replace all windows in the subject home with new Rockwell Windows with a five year transferable warranty to be provided by the manufacturer."

On October 1, 1996, the trial court entered an order ratifying the parties' stipulated dismissal of plaintiffs' action against defendant. The stipulated dismissal was based on the settlement agreement. In a subsequent order, the trial court incorporated the settlement agreement into the record and stated that it retained jurisdiction pending compliance with the settlement agreement.

On March 19, 1997, plaintiffs filed a petition for a rule to show cause, for sanctions, and for other relief. The petition sought to require defendant to show cause for its failure to comply with the terms of the settlement agreement. The petition also sought the assessment of costs and attorney fees against defendant.

On July 10, 1997, after a hearing on the matter, the trial court entered an order finding that defendant had breached the settlement agreement by failing to replace the windows in a timely manner. Based on its finding, the trial court held defendant in indirect civil contempt.

At a hearing on August 12, 1997, defendant acknowledged that it still had not replaced the windows. The trial court then advised defendant that if it had not replaced the windows by the next hearing the court would enter a judgment for damages in favor of plaintiffs. With respect to a possible damages award, the court advised plaintiffs' attorney to obtain affidavits to establish the cost of replacing the windows.

At a hearing on September 25, 1997, defendant acknowledged that it still had not replaced the windows. Plaintiffs then presented two estimates, supported by affidavits, of the cost to replace the windows. Based on the lower estimate, the trial court entered a judgment against defendant and in favor of plaintiffs in the amount of $76,918. The trial court noted that the cost estimates presented by plaintiffs were for windows that were not Rockwell windows. The court expressed concern that the estimates were for non-Rockwell windows because the settlement agreement specified that the replacement windows were to be Rockwell windows. Defendant objected to the use of the affidavits on the grounds that they were not sufficient to establish damages and that they were for windows not manufactured by Rockwell. The trial court advised defendant that it would vacate the judgment if defendant replaced the windows with Rockwell windows.

After the trial court entered an order denying defendant's motion to vacate the judgment, defendant filed a notice of appeal. We have jurisdiction of the appeal under Supreme Court Rule 304(b)(5). See 155 Ill. 2d R. 304(b)(5).

On appeal, defendant contends that the trial court erred when it entered judgment awarding compensatory damages to plaintiffs. Defendant asserts that the judgment was erroneous because (1) the trial court was without authority to award damages in contempt proceedings to parties in the underlying proceedings; (2) the evidentiary basis to establish the damages was ...


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