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Board of Managers of 1120 Club Condominium Association v. 1120 Club, LLC

Court of Appeals of Illinois, First District, Third Division

October 26, 2016

BOARD OF MANAGERS OF THE 1120 CLUB CONDOMINIUM ASSOCIATION, Plaintiff-Appellant,
v.
1120 CLUB, LLC, an Illinois Limited Liability Company, and TRAPANI CONSTRUCTION COMPANY, INC., an Illinois Company, Defendants-Appellees, 1120 Club, LLC, Third-Party Plaintiff-Appellant,
v.
Trapani Construction Company, Inc., Legat Architects, Inc., and The Rise Group, LLC, Third-Party Defendants-Appellees; Trapani Construction Company, Inc., Fourth-Party Plaintiff-Appellant,
v.
MacDonald Construction Services, Inc., Kole Construction Company, Inc., Boyle Construction Company, Inc., Howard Concrete, Streich Corporation, and Stock Building Supply, Inc., Fourth-Party Defendants-Appellees.

         Appeal from the Circuit Court of Cook County, No. 12-L-7092; the Hon. Margaret Brennan, Judge, presiding.

         Reversed and remanded.

          Figliulo & Silverman, P.C., of Chicago (Michael K. Desmond, Gregory L. Stelzer, and Melissa N. Eubanks, of counsel), for Appeal appellant.

          LaBarge, Campbell & Lyon, LLC, of Chicago (Bruce W. Lyon and Kathleen J. Scanlan, of counsel), for appellee Trapani Construction Company, Inc.

          Cassiday Schade LLP, of Chicago (Joseph A. Giannelli and Michael D.Pisano, of counsel), for appellee Stock Building Supply, Inc.

          Condon & Cook, LLC, of Chicago (J. Scott Gillman, of counsel), for appellee MacDonald Construction Services, Inc.

          Law Office of David A. Izzo, of Chicago (Tod H. Rottman, of counsel), for appellee Kole Construction Company, Inc.

          Esp Kreuzer Cores LLP, of Wheaton (Adam S. Kreuzer and Jeffrey Barger, of counsel), for appellee Boyle Construction Company, Inc.

          HeplerBroom LLC, of Crystal Lake (Holly C. Whitlock, of counsel), for appellee Howard Concrete.

          Tribler Orpett & Meyer, PC, of Chicago (Michael J. Meyer and David E.Schroeder, of counsel), for appellee Streich Corporation.

          JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justices Lavin and Cobbs concurred in the judgment and opinion.

          OPINION

          PUCINSKI JUSTICE

         ¶ 1 This matter arises from claims by the plaintiff, Board of Managers of the 1120 Club Condominium Association (Board), that a condominium building developed and sold by defendant 1120 Club, LLC (LLC) and built by defendant Trapani Construction Company, Inc. (Trapani) suffered from a number of construction defects. In addition to being a direct defendant on the claims brought by the Board, Trapani was also a third-party defendant to claims brought by the LLC. In turn, in response to the claims brought by both the Board and the LLC, Trapani filed third-party and fourth-party claims against various subcontractors. This single civil case led to three separate appeals, which were consolidated.

         ¶ 2 After a somewhat convoluted procedural history, the trial court granted Trapani's motions to dismiss the claims brought against it by the Board and the LLC on the bases that the Board had elected to pursue recourse from the LLC and thus could not seek recourse from Trapani and that the LLC lacked standing to bring its claims. The grant of these motions resulted in the dismissal of Trapani's claims against the subcontractors. After the trial court entered Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) findings on the respective dismissal orders, the Board, the LLC, and Trapani brought these consolidated appeals. For the reasons that follow, we reverse and remand for further proceedings.

         ¶ 3 BACKGROUND

         ¶ 4 In May 2009, the Board instituted this action by filing suit against the LLC and 1120 Retail, LLC (Retail). The Board then amended its complaint. The Board's amended complaint alleged that the Board is the governing body of the 1120 Club Condominium development located at 1124 Lake Street, Oak Park, Illinois. The Board alleged that residential units and common elements of the building were damaged as a result of construction defects, including the installation of fiber cement siding rather than brick and architectural stone. The Board further alleged that the fiber cement siding was improperly installed and that it warped and/or failed, allowing water to penetrate the building, causing extensive damage to the common elements and residential units of the building. In addition, the Board alleged that the flashings around windows and doors were improperly designed and/or installed, resulting in water penetration into the building; mold and mildew infiltration into the residential units and common elements of the building; water damage to residential units from the water penetration on the fourth and seventh floors; and a lack of proper flashing at certain fourth-floor units and on the west wall of the swimming pool.

         ¶ 5 Against the LLC, the developer and seller of the development, the amended complaint alleged claims of breach of contract, breach of express warranty, consumer fraud, and negligent misrepresentation. Against both the LLC and Retail, the Board alleged breach of contract and sought an injunction related to the reimbursement of expenses the Board claimed it was due from the defendants.

         ¶ 6 On March 29, 2011, the LLC filed its third-party complaint against Trapani, alleging that Trapani and its subcontractors were responsible for the construction defects alleged by the Board. The LLC's third-party complaint sounded in breach of contract, express indemnification, and implied indemnification.

         ¶ 7 On May 11, 2011, the LLC filed a petition for Chapter 7 bankruptcy. Thereafter, the instant matter was placed on the stay calendar due to the bankruptcy.

         ¶ 8 In June 2012, the Board filed a motion seeking to have the case removed from the stay calendar on the grounds that the bankruptcy court had modified the stay to allow the Board to pursue its claims against the LLC to the extent of the LLC's available insurance. The trial court ...


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