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Chris Timan and Teresa Timan v. Paul Ourada

June 27, 2012

CHRIS TIMAN AND TERESA TIMAN,
PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES,
v.
PAUL OURADA, INDIVIDUALLY AND D/B/A GQ QUALITY CONSTRUCTION, DEFENDANT-APPELLEE AND CROSS-APPELLANT MELLEN SEPTIC SERVICES, INC., REMAX ADVANTAGE REALTY, LARRY FALES, AND TICOR
TITLE INSURANCE COMPANY, DEFENDANTS



Appeal from the Circuit Court of Lake County. No. 08-L-227 Honorable Raymond J. McKoski, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Jorgensen

PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Schostok concurred in the judgment and opinion.

OPINION

¶ 1 Defendant, Paul Ourada, appeals from the trial court's judgment, following a bench trial, in favor of plaintiffs, Chris and Teresa Timan, on their breach-of-contract claim and the court's ruling on the parties' attorney fee petitions.*fn1 We affirm.

¶ 2 I. BACKGROUND

¶ 3 On April 27, 2007, plaintiffs purchased from Ourada, a general contractor, a new three-bedroom home at 20560 West Lakeview Avenue in Lake Villa for $305,000. Soon after the septic system was installed, raw sewage began seeping into the front yard. Plaintiffs subsequently filed a five-count complaint against defendants, four of which counts were pursued at trial against Ourada: rescission (count I); violation of the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2008)) (count II); breach of warranty of habitability (count III); and breach of contract (count IV).

¶ 4 The trial evidence reflected that, at the time of closing on plaintiffs' home purchase, a septic field, which was going to be installed in plaintiffs' front yard, had not yet been installed, because the installation area was wet. The parties agreed that plaintiffs could move into the home before the septic installation was completed. When they moved in on April 27, 2007, only the three concrete holding tanks were installed.

¶ 5 About May 9, 2007, the septic system installation was completed. Soon thereafter, plaintiffs experienced problems with the system. By May 28, 2007, the septic system began leaking raw sewage onto the driveway and, from there, to a road ditch. Chris Timan noticed raw sewage, which had an odor, when he was digging on the west side of the driveway (the septic field was east of the driveway and in the front yard). This sewage flowed to an area behind the house. On another occasion, when he was digging on the east side of the driveway, Chris noticed raw sewage flowing down the driveway and into a ditch. Chris installed a retaining wall (at the suggestion of a county employee) to prevent water from running down the driveway and into the ditch. This resulted in the water staying or sitting in the septic area, which, according to plaintiffs, has been constantly wet since the wall installation. Ourada testified that he had conversations with Bill Mellen, whom he had hired to install the septic system, and the health department to ascertain the cause of the problem and to come to a solution. Ourada, Mellen, and health department personnel suggested to Chris that use of the expansion field was an option, as did Greg Nerroth, a septic contractor whom Chris had contacted. Nerroth also suggested using the fields on alternating bases.

¶ 6 Chris testified that, on or about September 25, 2007, Ourada told him that the expansion field was the only option the health department would allow. Chris told Ourada that this option was not acceptable. Plaintiffs rejected using the expansion field because, when they purchased the home, they planned on using the expansion 20 years later or if certain problems arose in the future. Chris testified that, although using the expansion field now might be a solution to the current problem with the system, it is not a "fair" solution and deprives plaintiffs of the option of having another field available in the future should another problem arise. Plaintiffs have reduced their water usage and delayed expanding their family.

¶ 7 Some of the trial testimony addressed plaintiffs' allegations that Ourada hid from them and others the fact that there was a wetland on the property. The testimony also addressed the communications between the county health department (which issues septic permits) and the planning department (which issues building permits and assesses wetland issues). More than one year before he constructed plaintiffs' home, the wetland issue was brought to Ourada's attention by the planning department after he had applied for a site development permit. Prior to the installation of the septic system, Ourada was in the process of obtaining a fill permit from the Army Corps of Engineers to remove the property from a delineated wetland. Daniel Krill, a planning department wetlands specialist, had examined the property, and the planning department contacted Ourada about Krill's observation of a possible wetland. In February 2006, the county notified Ourada that he was required to obtain a wetland delineation report (which he obtained on April 27, 2006, from Hey & Associates and which delineated a wetland in the front yard). He could not recall if he showed it to plaintiffs. Ourada purchased the property after the report was prepared and after he was assured of obtaining a building permit. On June 21, 2006, the Army Corps of Engineers authorized Ourada to fill 0.06 acres of wetland located at the property address; this was a condition of obtaining a building permit. Ourada stated that he did not fill the wetland area. Ourada testified that he had no prior experience with wetlands on properties on which he had built homes. On June 7, 2007, after Mellen installed the system, the health department issued a certificate of approval for it.

¶ 8 Krill testified that he examined plaintiffs' property on March 16, 2006, and determined that there was a wetland on the property. The primary factor leading to this conclusion was the presence of wetland-adapted vegetation (i.e., the presence of vegetation that exists only when wetland conditions are present). Krill did not observe standing water or saturation when he inspected the property. Krill next contacted the Army Corps of Engineers, and it was subsequently determined that the Army Corps had jurisdiction. Krill explained that, at this point, his role ended. Krill explained that a property could lose wetland characteristics by being drained or filled in. Krill again inspected the property in February 2009. On this date, Krill concluded that the area was no longer a wetland, because the property had been modified by the construction of the house, the absence of wetland vegetation (i.e., the visible vegetation was a manicured lawn), and changed hydrology. Krill disagreed with Ourada's testimony that no fill was placed on the wetland.

¶ 9 Plaintiffs claimed that Ourada never informed them that their property contained a wetland, and they asserted that they never would have purchased property with a wetland (even if it had been filled in). Teresa Timan testified that Mellen told her that the lot was barely buildable, or ".2 on a buildable scale." She also stated that health department personnel told her that the soil test showed that the soil "was at the least buildable number." Plaintiffs added 15 loads of top soil to the front of their property, primarily around the peat filters and on the septic field, and near the back of the property to fill in around new sidewalks. Chris testified that very little of the soil they added to their property was spread on the septic field.

¶ 10 Preston Rea, an environmental consultant, testified on Ourada's behalf that he conducted an operational analysis of plaintiffs' septic system. He visited the property on April 22, 2009, and observed water discharging on the ground at the east side of the seepage bed. He also observed that the bed's gravel was saturated above the stone that was in the bed. Subsequent testing led Rea to conclude that there was a direct connection from the toilet in the residence to the discharge that was occurring in the yard. Thus, there was a hydrologic failure of the system.

ΒΆ 11 Gloria Westphal, who worked between 2005 and 2007 for the section of the county health department that reviewed septic plans, testified that she is also a certified professional soil classifier. She first saw plaintiffs' septic plans at about the time the system was installed and first became aware that the site contained a wetland after the plans were approved and the house was under construction. Before the plan review, the health department should have been made aware that the area was delineated as a wetland. If there was a wetland, "it should have been included on the [septic] drawings." Department rules provide that, where there is a delineated wetland, there must be a 50-foot setback between the septic field and the wetland. The department relies on information that applicants provide on their drawings and relies on it to be truthful. Although variances are allowed, they are not routinely granted. The installation of the septic field within a delineated wetland was a violation of county ordinance. Westphal further testified that most soils in wetland areas are not suitable for septic systems. She viewed plaintiffs' system three or four times and ...


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