Appeal from the Circuit Court of De Kalb County. No. 09-P-143, Honorable William P. Brady, Judge, Presiding.
Justices McLaren and Spence concurred in the judgment and opinion.
¶ 1 Theodore S. Fins, who filed a claim against the estate of decedent, Milan Krpan, appeals from an order dismissing as time-barred his claim for breach of the implied warranty of habitability of a house sold to him by decedent. He asserts that the estate's administrator, Maria Krpan, did not adequately support her limitations defense. We agree. Moreover, we find unpersuasive the administrator's alternative bases for affirming. We therefore reverse the dismissal and remand the cause.
¶ 2 I. BACKGROUND
¶ 3 Decedent died on October 9, 2009. He left a will that named his wife, Maria Krpan, as his executor (administrator). She filed a petition for probate of will and for letters testamentary on November 4, 2009, and the court that day ordered the issuance of letters of office.
¶ 4 On March 5, 2010, Fins mailed to the administrator a form "Claim on Contract." He asserted the breach of an implied warranty of habitability—the structure was not specified—and damages of $144, 850. The filing was a bare-bones statement of the amount that Fins asserted he was owed and was not in the form of a conventional pleading. It listed five specific problems that Fins claimed were covered by the warranty: (1) "Leaking/Unfit Windows, " (2) "Refinishing Unfit Deck, " (3) "Broken/Unfit Skylight, " (4) "Latent Defect/Roof Leak, " and (5) "Improper Interior Painting."
¶ 5 Fins did not file this form with the court, but rather, consistent with section 18-1(a) of the Probate Act of 1975 (Act) (755 ILCS 5/18-1(a) (West 2010)), mailed it to the administrator. (The form appears in the record as an exhibit to a later filing.)
¶ 6 The administrator filed a verified motion to dismiss the claim, arguing, among other things, that the claim was time-barred. This filing made clear that the administrator understood Fins' claim to relate to a house that Fins and his wife had purchased from decedent, who was the builder, on April 22, 2005. Fins filed a response, attached to which was his affidavit stating when he had "noticed" each problem.
¶ 7 After discovery, the administrator filed an amended motion to dismiss. Her motion cited section 2-619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5) (West 2010) ("[t]hat the action was not commenced within the time limited by law")) and section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2010) ("[t]hat the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim")) as bases for dismissal. She noted that the applicable limitations period for Fins' claim was four years; under section 13-214 of the Code (735 ILCS 5/13-214(a) (West 2010)), a party must bring an action based on a defect in construction within four years of the time the party reasonably should have known of the act or omission. She also asserted:
"Four of the alleged defects are of a nature that would be clearly evident, including improper interior painting ***, leaking unfit windows, *** need to refinish unfit deck, and broken/unfit skylight ***.
10. Even the fifth alleged defect, i.e., latent defect roof leak *** should have been evident after the heavy rains that occur annually."
She further argued that the implied warranty of habitability applies only to defects so severe that they make a residence uninhabitable. She then asserted:
"[N]one of the alleged defects would affect the habitability of the residence, and obviously they have not because, upon information and belief, Claimants [sic] have been residing herein [sic] since they took ...