Martusciello v. JDS Homes, Inc.

838 N.E.2d 9, 361 Ill. App. 3d 568, 297 Ill. Dec. 522
CourtAppellate Court of Illinois
DecidedSeptember 26, 2005
Docket1-04-1495
StatusPublished
Cited by7 cases

This text of 838 N.E.2d 9 (Martusciello v. JDS Homes, Inc.) 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
Martusciello v. JDS Homes, Inc., 838 N.E.2d 9, 361 Ill. App. 3d 568, 297 Ill. Dec. 522 (Ill. Ct. App. 2005).

Opinion

PRESIDING JUSTICE CAHILL

delivered the opinion of the court:

Plaintiffs, Frank and Lisa Martusciello, appeal the dismissal of their architectural malpractice action against defendants, Larson Kramer and Associates, Ltd. (LKA), and Peter S. Kramer. The thrust of plaintiffs’ case is that the general rule barring economic damages for architectural services is subject to an exception established by our supreme court in Congregation of the Passion, Holy Cross Province v. Touche Ross & Co., 159 Ill. 2d 137, 162-64, 636 N.E.2d 503 (1994). We disagree and affirm.

Count I of plaintiffs’ complaint sounded in negligence and alleged they hired Kramer, either in his individual capacity or as an agent for LKA, to design a “luxury home.” JDS Homes, Inc. (JDS Homes), was hired to build the home. Plaintiffs alleged Kramer’s design of their home was not sufficient in detail, leaving JDS Homes to “[fill] in the blanks.” Plaintiffs alleged JDS Homes made “inappropriate or improper” decisions in filling in the blanks, resulting in defects to plaintiffs’ home. The defects included window breakage, drainage problems, water leakage, crumbling balustrades, improperly sloped stairs and porch and a poorly constructed deck. Plaintiffs sought recovery for economic losses in an amount necessary to repair the defects.

Counts II through VI of plaintiffs’ complaint alleged causes of action against JDS Homes and Sundek of Illinois, Inc. JDS Homes and Sundek are not parties to this appeal nor are plaintiffs’ claims against them relevant.

Kramer moved to dismiss count I of plaintiffs’ complaint under section 2 — 615 of the Code of Civil Procedure (Code) (735 ILCS 5/2— 615 (West 1996)). Kramer relied on the economic loss doctrine adopted by our supreme court in Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69, 86, 435 N.E.2d 443 (1982) (“[t]ort theory is appropriately suited for personal injury or property damage resulting from a sudden or dangerous occurrence,” while the “remedy for economic loss, loss relating to a purchaser’s disappointed expectations due to deterioration, internal breakdown or nonaccidental cause *** lies in contract”). The trial court agreed the economic loss doctrine barred plaintiffs’ claim against Kramer and granted the motion to dismiss.

LKA moved to dismiss plaintiffs’ claim against it under section 2—619(a)(9) of the Code (735 ILCS 5/2—619(a)(9) (West 1996)). LKA argued it was not in the business of providing architectural services for personal residences and had not been hired by plaintiffs to design their home. LKA attached an affidavit by Kramer, LKA’s president, attesting to this. Plaintiffs failed to submit evidence to the contrary and the trial court granted LKA’s motion. The court noted that, even if LKA had been hired by plaintiffs, their claim against it would be barred under the economic loss doctrine.

Plaintiffs moved to reconsider the trial court’s dismissal of count I or, in the alternative, for leave to amend their complaint to add two additional counts. Under count VII, plaintiffs would seek economic damages under a theory of negligence on the ground that no contract existed between plaintiffs and Kramer or LKA. Count VIII, to be pled in the alternative, would allege a contract existed between plaintiffs and Kramer and/or LKA, and that Kramer, either in his individual capacity or as an agent of LKA, breached the duties implied by the contract. In support of their breach of contract theory, plaintiffs attached a letter signed by Kramer detailing architectural services to be performed and the fee for such services. Plaintiffs also attached invoices prepared by Kramer.

The trial court denied plaintiffs’ motion to reconsider or for leave to amend their complaint. The court found the proposed count VII was deficient on the same ground as count I and was barred under the economic loss doctrine. The court found the proposed count VIII was insufficient as a matter of law because plaintiffs failed to attach a contract between the parties that set forth the duties alleged to have been breached.

Plaintiffs appeal under Rule 304(a) (155 Ill. 2d R. 304(a)) the dismissal of count I and the trial court’s denial of their motion for leave to amend the complaint to add counts VII and VIII.

We begin by addressing plaintiffs’ challenge to the trial court’s dismissal of count I against Kramer under section 2 — 615 of the Code. Our review is de novo. See Young v. Bryco Arms, 213 Ill. 2d 433, 440, 821 N.E.2d 1078 (2004) (we review de novo an order granting or denying a section 2 — 615 motion ).

In addressing the propriety of the trial court’s ruling, we must decide whether the economic loss doctrine applies to bar plaintiffs’ architectural malpractice claim against Kramer. Kramer argues 2314 Lincoln Park West Condominium Ass’n v. Mann, Gin, Ebel & Frazier, Ltd., 136 Ill. 2d 302, 555 N.E.2d 346 (1990), is dispositive of this issue. Plaintiffs maintain 2314 Lincoln Park does not apply in light of Congregation of the Passion, 159 Ill. 2d 137, 636 N.E.2d 503.

The court in 2314 Lincoln Park addressed whether economic damages can be recovered against an architectural firm under a theory of negligence. 2314 Lincoln Park, 136 Ill. 2d at 304. The plaintiff condominium association brought an action against an architectural firm for negligent design of a condominium building. 2314 Lincoln Park, 136 Ill. 2d at 304-06. The plaintiff sought economic damages to repair the defects to the property allegedly caused by the firm’s negligent design. 2314 Lincoln Park, 136 Ill. 2d at 305-06. The trial court certified the following question for interlocutory appeal:

“ ‘Should there be an exception to the rule set forth in Moorman which would permit [the] [p]laintiffs seeking to recover purely economic losses due to defeated expectations of a commercial bargain to recover from an architect or engineer in tort?’ ” 2314 Lincoln Park, 136 Ill. 2d at 306.

The supreme court answered the question in the negative. 2314 Lincoln Park, 136 Ill. 2d at 312. The court held a plaintiff may not recover economic losses against an architect under a theory of negligent design. 2314 Lincoln Park, 136 Ill. 2d at 316. “[S]uch a claim concerns the quality, rather than the safety, of the building and thus is a matter more appropriately resolved under contract law.” 2314 Lincoln Park, 136 Ill. 2d at 316-17.

Plaintiffs argue Congregation of the Passion limits the holding in 2314 Lincoln Park to cases where a contract existed between the defendant architect and the plaintiff client. That case concerned whether the economic loss doctrine applied to bar recovery of economic loss due to negligent accounting practices. Congregation of the Passion, 159 Ill. 2d at 157.

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Cite This Page — Counsel Stack

Bluebook (online)
838 N.E.2d 9, 361 Ill. App. 3d 568, 297 Ill. Dec. 522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martusciello-v-jds-homes-inc-illappct-2005.