Dyduch v. Crystal Green Corp.

582 N.E.2d 302, 221 Ill. App. 3d 474, 164 Ill. Dec. 94, 1991 Ill. App. LEXIS 1968
CourtAppellate Court of Illinois
DecidedNovember 22, 1991
Docket2-91-0118
StatusPublished
Cited by23 cases

This text of 582 N.E.2d 302 (Dyduch v. Crystal Green Corp.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dyduch v. Crystal Green Corp., 582 N.E.2d 302, 221 Ill. App. 3d 474, 164 Ill. Dec. 94, 1991 Ill. App. LEXIS 1968 (Ill. Ct. App. 1991).

Opinion

JUSTICE NICKELS

delivered the opinion of the court:

Plaintiff, Frank Dyduch, appeals the directed findings entered in favor of defendant, Crystal Green Corporation, on both counts of plaintiff’s complaint for negligence and breach of contract and from an order requiring plaintiff to pay defendant’s costs and attorney fees as a sanction for a discovery violation. Plaintiff contends that the directed findings were against the manifest weight of the evidence and the award of costs and fees was an abuse of discretion.

Defendant is a lawn-care business, and, in 1981, plaintiff hired defendant to provide certain lawn-care services at plaintiff’s home in Algonquin. In his complaint, plaintiff alleged that he had retained defendant to “examine, diagnose, treat, fertilize, and provide insect and weed control as recommended by [defendant for [plaintiffs lawn” and that defendant had appeared periodically each year to do so. In 1988 and 1989, plaintiff’s lawn was allegedly damaged by chinch bugs, sod worms and grubs. In count I, plaintiff alleged that defendant had a duty to inspect properly, diagnose and treat the lawn and that, in disregard of that duty, defendant negligently failed to conduct regular and thorough inspections, diagnose and treat insect infestations and apply insecticides as necessary. In count II, plaintiff alleged that defendant had breached its agreement to provide proper lawn maintenance.

There is no verbatim transcript of the trial, and the evidence is presented on appeal by means of a certified bystander’s report. Plaintiff testified at trial that in May 1981 defendant, through a representative, inspected and analyzed plaintiff’s lawn and quoted a price for service. At that initial inspection, defendant noted possible fusarium blight and sod webworm in the lawn. Plaintiff and defendant orally agreed that defendant would apply fertilizer and weed control four times per year, which occurred and for which service defendant paid until 1989. However, plaintiff declined disease and insect-control treatments available at an additional cost, with the exception of a single application of fungicide to treat the fusarium blight in June 1981. In 1982 and 1983, at plaintiff’s request, defendant applied additional weed-control treatment at no charge. Plaintiff testified that he “believed” that defendant was to maintain the lawn in an excellent condition.

In the summer of 1988, the City of Algonquin instituted a partial ban on lawn watering, and such watering was restricted to four hours per day on each of three designated days per week. Plaintiff observed that part of his lawn had become white and brown. He pointed this out to defendant during the late summer application of fertilizer and weed-control treatment. Defendant’s representative responded that many lawns were similarly affected due to the severe drought.

In May 1989, plaintiff again pointed out the condition of the lawn during the application of fertilizer and weed-control treatment. Defendant’s president, John Eckhardt, came out and inspected the lawn and opined that drought and fusarium blight had probably caused the damage. However, plaintiff had done some dethatching, laid new topsoil and reseeded part of the lawn prior to such inspection. In June, Steve Eckhardt again inspected plaintiff’s lawn, in response to plaintiff’s threat to cancel the service if defendant did not correct the problem, and again told plaintiff the problem was drought and fusarium blight. Plaintiff cancelled defendant’s service and contacted Paul Dones of Chemlawn, who in June 1989 did an analysis of the lawn and advised plaintiff that the lawn had been damaged by chinch bugs the previous year. The cost to repair the damage to plaintiff’s lawn was estimated to be $2,646, which included new topsoil, reseeding and resodding.

Chinch bugs are very difficult to identify, but Dones’ opinion was based on the pattern of damage and discoloration. However, he did not see any chinch bugs when he examined the lawn because chinch bugs are destroyed by heavy watering, and the area had experienced heavy rainfall in the spring of 1989.

Lawn service representatives, who apply fertilizer and other treatments, are required to take certain courses, pass a test, and be certified by the State, and such training should enable a certified applicator to recognize lawn problems. However, because applicators only see a customer’s lawn four times a year, the customer’s prompt notification of any problems or changes in his lawn is essential.

Defendant moved for directed findings as to both counts of plaintiff’s claim at the close of plaintiff’s case. Because the agreement between the parties was only for the application of fertilizer and weed-control and insect-control services were never requested by plaintiff, defendant asserted that plaintiff’s contract claim failed. Plaintiff similarly failed to establish negligence because defendant owed no duty to plaintiff, which duty was defined by the contract, and, therefore, plaintiff’s negligence claim failed. Plaintiff, on the other hand, argued that defendant had agreed to maintain, protect, and preserve plaintiff’s lawn and such agreement included identifying any insect problems. Plaintiff relied on defendant to keep him informed of problems with the lawn, and defendant breached its duty to detect insect damage, which breach proximately caused the damage to plaintiff’s lawn.

The trial court found that the only agreement that plaintiff had established was for fertilizer and weed-control services and not for insect control. Defendant did not have a duty to inspect the lawn for insect damage. The court granted the motion for directed findings as to both counts of the complaint. Plaintiff’s subsequent motion to reconsider was denied, and plaintiff filed his notice of appeal. Plaintiff contends that the court erred in entering directed findings because he presented a prima facie case for breach of contract and for negligence. We disagree.

Pursuant to section 2 — 1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1110) in all cases tried without a jury, a defendant may, at the close of plaintiff’s case, move for a directed finding or judgment in its favor. In ruling on a motion for a directed finding, the court must apply a two-part analysis, first determining as a matter of law whether a plaintiff has presented a prima facie case and entering judgment for the defendant if a plaintiff has failed to so do. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1110; Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154-55.) However, if a plaintiff has presented a prima facie case, the court must weigh the evidence, including any favorable to the defendant, pass on the credibility of the witnesses, draw reasonable inferences and generally consider the weight and quality of the evidence. (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1110; (Kokinis, 81 Ill. 2d at 154-55.) This weighing process may result in the negation of some of the plaintiff’s evidence, but if sufficient evidence remains to establish the plaintiff’s prima facie case, the court must deny the motion and proceed with the trial. (Kokinis, 81 Ill. 2d at 155; Buechin v. Ogden Chrysler-Plymouth, Inc. (1987), 159 Ill. App. 3d 237, 246.) The decision of the trial court to grant a defendant’s motion for a directed finding will not be reversed on review unless it is against the manifest weight of the evidence. Coryell v. Lombard Lincoln-Mercury Merkur, Inc. (1989), 189 Ill. App.

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Bluebook (online)
582 N.E.2d 302, 221 Ill. App. 3d 474, 164 Ill. Dec. 94, 1991 Ill. App. LEXIS 1968, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dyduch-v-crystal-green-corp-illappct-1991.