Nisbet v. Yelnick

464 N.E.2d 781, 124 Ill. App. 3d 466, 79 Ill. Dec. 877, 1984 Ill. App. LEXIS 1856
CourtAppellate Court of Illinois
DecidedMay 22, 1984
Docket83-155
StatusPublished
Cited by9 cases

This text of 464 N.E.2d 781 (Nisbet v. Yelnick) 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
Nisbet v. Yelnick, 464 N.E.2d 781, 124 Ill. App. 3d 466, 79 Ill. Dec. 877, 1984 Ill. App. LEXIS 1856 (Ill. Ct. App. 1984).

Opinion

JUSTICE PERLIN

delivered the opinion of the court:

Plaintiffs filed in the circuit court of Cook County a two-count complaint against defendant for the latter’s alleged defective construction of plaintiffs’ residence. Count I alleged a breach of the implied warranty of habitability; count II alleged a breach of the express warranty contained in the contract entered into between the parties which provided, in part, “[defendant], being the seller herein *** does *** guaranty the aforesaid premises to be free from defects in materials and workmanship for the period of one year from and after the completion date of said residence.” The complaint alleged various defects in the home, including cracks in the foundation and walls, loose and cracked mortar, broken windows and doors.

After the trial, the jury returned verdicts in favor of plaintiffs on both counts of the complaint, awarding damages of $22,200 for the cost of repairing the home on count I and $5,000 for loss of use of the home on count II. Defendants bring this appeal.

On appeal, defendant contends that plaintiffs failed to introduce evidence demonstrating that defendant caused the defects in the home; that loss of use is not a proper measure of damages in this action; and that because plaintiffs, in fact, only alleged a single cause of action, the court erred in giving the jury two verdict forms and in entering judgment on two separate verdicts.

At trial, defendant was called by plaintiffs as an adverse witness. He testified: in September 1972 he entered into a written contract with .plaintiffs to build their new home. Pursuant to the contract, he oversaw the construction and supervised and coordinated the various subcontractors. Plaintiffs “never” mentioned any problem with cracks in the foundation “at the closing or one year after.” Defendant was not advised of any problems with the foundation until “four years after closing.” At that time defendant observed two cracks in the foundation wall which were “maybe an eight or sixteenth” of an inch wide. He saw some cracked bricks on the exterior of the home. Such cracks are not unusual. Defendant marked the cracks so as to be able to determine whether they moved. He returned several times to observe the cracks. He did not fix them. On cross-examination defendant stated that he stopped returning to plaintiffs’ home when plaintiffs sued him.

Plaintiff, Mr. Nisbet, testified: he first saw a crack in the foundation wall “approximately one month” after moving into the house. He called defendant who advised him that it was normal for a house to settle. After a few more months, more cracks appeared, and water began entering the home through the cracks. When defendant did not come out to the house, Nisbet dug around the foundation and tarred the cracks. This temporarily stopped the water seepage, but within several months water again entered the house through the cracks. Plaintiff identified several pictures of the cracks in the foundation and walls of the home.

Mr. Nisbet further testified that within one year of moving into the house, water and mud flooded into the basement and covered one-quarter of its surface. The basement floor began sinking in several places. These problems prevented plaintiffs from carrying out their plans to remodel the basement and to use it as a recreation room. Mice and insects entered the home through the cracks in the foundation. When advised of this condition, defendant came to the house and assured plaintiffs that he would correct the problems. He did not return again for almost a year and never corrected the defects. Thereafter doors and windows would not close; exterior walls began to crack and water continued to leak into the house. Plaintiffs could only use the basement to wash clothing and for storage.

Amelia Nisbet’s testimony was substantially similar to her husband’s.

Edward J. Sewers, a building contractor, testified that it would cost $22,500 to repair plaintiffs’ home.

Thomas E. Holser, a real estate appraiser, estimated that the market value of plaintiffs’ home, if in proper condition, was approximately $80,000 but because of the enumerated defects, its value was approximately $50,000.

R. Francis Staley, a consulting engineer called by defendant, testified that the cost of repair figure offered by Mr. Sewers was “excessive” but that Staley “couldn’t really give an accurate figure” of the total cost of repairing the home. However, he then estimated that cost to be approximately $10,000.

In closing argument, plaintiffs’ attorney asked the jury to award plaintiffs $22,500 for the cost of repairing the home (count I) and $2.50 per day for 2,888 days for their loss of use of the basement, for a total of $7,200 (count II). The jury returned verdicts of $22,200 on count I and $5,000 on count II.

Defendant argues that plaintiff failed to meet his burden of proof because “throughout the entire trial there was no evidence presented by plaintiff as to what caused the defects.” Plaintiffs respond that the facts presented to the jury supported a reasonable inference that the defects were, in fact, caused by defendant. Moreover, plaintiffs argue that they were not required to prove the specific cause of the defects.

The nature and extent of the defects in plaintiffs’ home were described in detail. The defects were identified by plaintiffs’ witnesses as being structural in nature. Causation, being a question of fact, may be established by, or inferred from, circumstantial evidence. (Walsh v. Dream Builders, Inc. (1970), 129 Ill. App. 2d 280, 264 N.E.2d 247; Livingston Service Co. v. Big Wheels, Inc. (1981), 96 Ill. App. 3d 591, 421 N.E.2d 1042.) In our opinion, the record discloses sufficient evidence from which the jury could attribute to defendant the defects which appeared soon after the home’s construction.

Defendant’s two arguments as to damages are related, and can be considered together. Defendant, citing Park v. Sohn (1982), 89 Ill. 2d 453, 433 N.E.2d 651, contends that in Illinois the sole proper measure of damages for an action for breach of implied warranty of habitability is the cost of correcting the defective conditions or, when the cost of repair is so great as to be disproportionate to the benefit to plaintiff, the correct measure of damages is the amount by which the defective conditions have reduced the value of the property. Defendant argues that because the sole measure of damages for this cause of action is as above stated, the trial court erred in instructing the jury with regard to damages for “loss of use” and in giving the jury verdict forms for both loss of use and cost of repair.

Plaintiffs answer that “loss of use” is a proper element in determining damages under the facts of this case and also that defendant has waived this allegation of error by failing to raise it below.

Our review of the record indicates that defendant did, in fact, raise this issue in the trial court, and we therefore find that the issue was not waived.

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Bluebook (online)
464 N.E.2d 781, 124 Ill. App. 3d 466, 79 Ill. Dec. 877, 1984 Ill. App. LEXIS 1856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nisbet-v-yelnick-illappct-1984.