Smith v. Jones

2025 IL App (5th) 231136

• Court: Appellate Court of Illinois
• Decided: February 18, 2025
• Docket: 5-23-1136
• Status: Published

Opinion

NOTICE 2025 IL App (5th) 231136 Decision filed 02/18/25. The text of this decision may be NO. 5-23-1136 changed or corrected prior to the filing of a Petition for IN THE Rehearing or the disposition of the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

JOHN SMITH and MISTIE TENNANT, ) Appeal from the ) Circuit Court of Plaintiffs-Appellants, ) St. Clair County. ) v. ) No. 22-LA-840 ) CHRIS JONES and C.A. JONES, INC., ) Honorable ) Kevin T. Hoerner, Defendants-Appellees. ) Judge, presiding. ______________________________________________________________________________

JUSTICE SHOLAR delivered the judgment of the court, with opinion. Justices Cates and Moore concurred in the judgment and opinion.

OPINION

¶1 Plaintiffs, John Smith and Mistie Tennant, appeal the St. Clair County circuit court’s

dismissal of their amended complaint against defendants, Chris Jones and C.A. Jones, Inc. On

November 1, 2023, the court granted defendants’ motions to dismiss and ordered plaintiffs to

mandatory binding arbitration. Plaintiffs appeal, arguing that (1) the court erred by dismissing

plaintiff John Smith from the case, on the purported basis that he was not a party to the contract,

(2) the court erred by finding plaintiffs did not plead sufficient facts in counts I and III to state a

cause of action, (3) the court erred by applying summary judgment standards to a section 2-619

(735 ILCS 5/2-619 (West 2022)) motion to dismiss, and (4) the court erred by ordering the parties

to mandatory binding arbitration. For the reasons that follow, we affirm in part and reverse in part.

1 ¶2 I. BACKGROUND

¶3 We limit our recitation of the facts to those relevant to our disposition on appeal. We will

recite additional facts in the analysis section as needed to address the specific arguments of the

parties.

¶4 On August 4, 2020, Mistie Tennant entered into a new home sale contract (sale contract)

with C.A. Jones, Inc. for the construction and sale of a new home. John Smith was not a signatory

to the original sale contract. In October 2020, the parties executed an addendum to the sale contract

that included a change order to add John Smith as a buyer. The sale contract included an “Express

and Implied Warranties” section, as well as a “Builder’s Limited Warranty” administered by

Professional Warranty Service Corporation (PWSC). The parties closed on the sale of the home in

December of 2020.

¶5 On October 4, 2022, plaintiffs filed their original complaint against C.A. Jones, Inc. and

Chris Jones. After hearing separate motions to dismiss filed by defendants, the circuit court

dismissed the complaint with leave to amend. Plaintiffs filed an amended complaint on May 4,

2023. The amended complaint consisted of four counts: count I alleged C.A. Jones, Inc. breached

an implied warranty of good workmanship; count II alleged Chris Jones breached an implied

warranty of good workmanship; count III alleged C.A. Jones, Inc. breached its implied warranty

of habitability; and count IV alleged Chris Jones breached its implied warranty of habitability. The

allegations in counts I and III against C.A. Jones, Inc. and in counts II and IV against Chris Jones

are substantially the same.

¶6 Defendants filed separate motions to dismiss plaintiffs’ amended complaint. In their

separate motions, both defendants moved to dismiss the plaintiffs’ amended complaint under

sections 2-615(a) and 2-619(a) of the Code of Civil Procedure (Code) (id. §§ 2-615(a), 2-619(a)).

2 Defendant C.A. Jones, Inc. supported its section 2-619 motion with the affidavit of its president,

Mike Needles, and included the addenda, change orders, and warranty documents. Defendant

Chris Jones supported his section 2-619 motion with his own affidavit and incorporated C.A.

Jones, Inc.’s motion to dismiss by reference.

¶7 The circuit court held a hearing on defendants’ motions to dismiss on October 11, 2023.

According to the court’s November 1, 2023, written order, the issues raised at the hearing included

(1) whether work “directed and supervised by Chris Jones” is a factual conclusion or a sufficiently

specific factual allegation to avoid dismissal, (2) whether sufficient specific facts of defects were

alleged to avoid dismissal under the section 2-615 standard, and (3) whether plaintiffs’ failure to

plead the notice of and failure of plaintiffs to pursue the warranty remedies is fatal to plaintiffs’

amended complaint.

¶8 Following the argument, the circuit court took the matter under advisement and ordered

the parties to submit proposed orders. The court issued a written order granting defendants’

motions to dismiss on November 1, 2023. Relevant to this appeal, in its written order, the court

found that plaintiffs failed to set forth any specific facts showing any connection between plaintiffs

and Chris Jones with respect to the sale contract. The court also found that plaintiff did not allege

any facts to describe how the alleged defects affect or detract from her use and enjoyment of the

home. The court’s order also ordered plaintiffs to mandatory arbitration as required by the warranty

program under the sale contract. Plaintiffs filed a timely notice of appeal on November 15, 2023.

¶9 II. ANALYSIS

¶ 10 As an initial matter, we note that plaintiffs’ brief does not clearly set forth the issues on

appeal and sporadically cites to relevant case law to support their contentions. “A reviewing court

is entitled to have the issues on appeal clearly defined with pertinent authority cited and a cohesive

3 legal argument presented.” Thrall Car Manufacturing Co. v. Lindquist, 145 Ill. App. 3d 712, 719

(1986). This court is “not a repository into which an appellant may foist the burden of argument

and research.” (Internal quotation marks omitted.) Velocity Investments, LLC v. Alston, 397 Ill.

App. 3d 296, 297 (2010).

¶ 11 The record on appeal does not contain either a bystander’s report or a transcript of

proceedings from the hearing from which plaintiffs appeal. Because the plaintiffs are the

appellants, it was their responsibility to provide us with a record sufficiently complete to support

their claim. As such, we must resolve any gaps in the record against the plaintiffs, and we must

presume that the circuit court’s decision was correct. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92

(1984).

¶ 12 Turning to the merits, on appeal, plaintiffs contend that (1) the circuit court erred by

dismissing plaintiff John Smith from the case, on the purported basis that he was not a party to the

contract, (2) the court erred by finding plaintiffs did not plead sufficient facts in counts I and III to

state a cause of action, (3) the court erred by finding defendant Chris Jones did not personally

supervise or direct the construction of the house, and (4) the court erred by ordering the parties to

mandatory binding arbitration. We consider each claim of error in turn.

¶ 13 A motion to dismiss under section 2-615(a) of the Code (735 ILCS 5/2-615(a) (West 2022))

challenges the legal sufficiency of the plaintiff’s claim, while a motion to dismiss under section 2-

619(a) (id. § 2-619(a)) admits the legal sufficiency of the claim but raises certain defects or

defenses outside of the pleading that defeat the claim. See Provenzale v. Forister, 318 Ill. App. 3d

869, 878 (2001). Our standard of review, under either section, is de novo. Solaia Technology, LLC

v. Specialty Publishing Co., 221 Ill. 2d 558, 579 (2006).

4 ¶ 14 Plaintiffs first argue that the circuit court erred by dismissing plaintiff John Smith from the

case, on the purported basis that he was not a party to the contract. In its November 1, 2023, order

granting defendants’ motions to dismiss, the circuit court found, inter alia, “that the Amended

Complaint should be dismissed as to Plaintiff John Smith because the allegations of Plaintiffs’

Amended Complaint are contradicted on their face by the Sale Contract attached to the Amended

Complaint as an exhibit.” The court reasoned that plaintiff John Smith was not a signatory to the

contract and therefore not in privity nor an intended third-party beneficiary. As such, the court

dismissed counts II and IV with respect to John Smith pursuant to section 2-615.

¶ 15 Alternatively, the circuit court dismissed plaintiffs’ claims under section 2-619. In their

motion to dismiss pursuant to section 2-619, defendants attached an affidavit of its president, Mike

Needles, along with additional documents. Those additional documents included the December

16, 2020, final walk through, which was signed by both plaintiffs; change orders to the home

purchase contract; and a copy of the PWSC warranty program. The change order, dated October

14, 2020, added John Smith to the sales contract. In dismissing under section 2-619, the court

found the warranty program contained a mandatory arbitration provision. As such, the court held

“Plaintiff John Smith, by agreeing to be added to the Contract, signed on to agree to those

provisions.”

¶ 16 On appeal, plaintiffs argue the circuit court’s order is inconsistent. We agree. The court

erred by dismissing plaintiff John Smith under section 2-615 and finding he was not a party to the

contract, but later, in the same order, finding John Smith was added to the contract and subject to

the mandatory arbitration provision. As such, we reverse the circuit court’s order with respect to

the dismissal of plaintiff John Smith.

5 ¶ 17 Next, plaintiffs contend that the court erred by dismissing counts I and III for failing to

plead sufficient facts. A section 2-615 motion to dismiss challenges the legal sufficiency of the

complaint based on defects apparent on its face. Marshall v. Burger King Corp., 222 Ill. 2d 422,

429 (2006). In ruling on a section 2-615 motion to dismiss, the court accepts as true all well-

pleaded facts and all reasonable inferences to be drawn therefrom as well as any exhibits attached

to the complaint. City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 364 (2004). The

allegations in the complaint must also be construed in the light most favorable to the plaintiff.

Marshall, 222 Ill. 2d at 429. “We have repeatedly stated, however, that Illinois is a fact-pleading

jurisdiction.” Id. (citing Weiss v. Waterhouse Securities, Inc., 208 Ill. 2d 439, 451 (2004)).

“While the plaintiff is not required to set forth evidence in the complaint (Chandler v.

Illinois Central R.R. Co., 207 Ill. 2d 331, 348 (2003)), the plaintiff must allege facts

sufficient to bring a claim within a legally recognized cause of action (Vernon v. Schuster,

179 Ill. 2d 338, 344 (1997)), not simply conclusions [citation].” Id. at 429-30.

¶ 18 In considering a motion to dismiss, “a court must disregard the conclusions that are pleaded

and look only to well-pleaded facts to determine whether they are sufficient to state a cause of

action against the defendant.” Beretta U.S.A. Corp., 213 Ill. 2d at 368. “If not, the motion must be

granted, ‘regardless of how many conclusions the count may contain and regardless of whether or

not they inform the defendant in a general way of the nature of the claim against him.’ ” Id. at 368-

69 (quoting Knox College v. Celotex Corp., 88 Ill. 2d 407, 426 (1981)).

¶ 19 As noted above, a motion to dismiss under section 2-615(a) challenges the legal sufficiency

of the plaintiff’s claim, while a motion to dismiss under section 2-619(a) admits the legal

sufficiency of the claim but raises certain defects or defenses outside of the pleading that defeat

the claim. Provenzale, 318 Ill. App. 3d at 878. In ruling on a section 2-615 motion to dismiss, the

6 court accepts as true all well-pleaded facts and all reasonable inferences to be drawn therefrom as

well as any exhibits attached to the complaint. Beretta U.S.A. Corp., 213 Ill. 2d at 364. The plaintiff

must allege facts sufficient to bring a claim within a legally recognized cause of action, not simply

conclusions. Marshall, 222 Ill. 2d at 429-30.

¶ 20 Under the section 2-615 dismissal standard, the circuit court considered the factual

allegations made by plaintiffs in the amended complaint and the attached contract. No other

documents or facts were considered. The court considered the allegations in the complaint in turn.

The court found the sale contract was signed only by plaintiff Tennant and a representative of C.A.

Jones. Further, the court found that plaintiff Smith was not a signatory nor a stated intended third-

party beneficiary of the contract and, therefore, had no agreement or privity with C.A. Jones. As a

result, the court dismissed counts I and III as to plaintiff Smith.

¶ 21 With respect to plaintiff Tennant, the circuit court found that the complaint failed to plead

sufficient specific facts to state a cause of action for breach of the implied warranty of good

workmanship. The court also found plaintiff Tennant failed to plead sufficient specific facts to

state a cause of action for breach of the implied warranty of habitability. As such, the court

dismissed counts I and III with respect to plaintiff Tennant.

¶ 22 Specifically, the circuit court found, in dismissing counts I and III, that plaintiffs failed to

allege the complained of defects did not meet the 1999 Illinois Quality Assurance Builder

Standards that are expressly a part of the sale contract nor how the defects failed to meet such

quality building standards. The court also found that plaintiff Tennant did not allege that she

notified defendant C.A. Jones, pursuant to the warranty provisions of the sale contract, and further,

she failed to allege that the warranty remedies provided under the warranty failed. The court also

found that plaintiffs failed to plead specific factual allegations describing how defects about doors,

7 doorknobs, or flooring were material defects and how those alleged defects detracted from the

overall workmanship of the home. Additionally, the court found plaintiffs did not plead any

specific facts to show how such claimed defects made the house uninhabitable.

¶ 23 Count I of the complaint alleges a breach of the warranty of good workmanship. Under the

implied warranty of good workmanship, “one who contracts to perform construction work

impliedly warrants to do the work in a reasonably workmanlike manner.” Harmon v. Dawson, 175

Ill. App. 3d 846, 849 (1988). “[T]he failure to so perform constitutes a breach of contract.” Id.

Count III of the complaint alleges breach of the implied warranty of habitability. In Illinois, the

“implied warranty of habitability” originated in landlord-tenant law and has since been applied to

the sale of newly constructed homes. See Petersen v. Hubschman Construction Co., 76 Ill. 2d 31

(1979). In Petersen, the supreme court held that an implied warranty of habitability protects the

first purchaser of a new house against latent defects that would render the house not reasonably fit

for its intended use. Id. at 39-40.

¶ 24 We agree with plaintiffs that the complaint alleged sufficient facts to state a cause of action.

When construed in the light most favorable to the plaintiffs, the allegations in the complaint bring

plaintiffs’ claims within the scope of the causes of action asserted. Jarvis v. South Oak Dodge,

Inc., 201 Ill. 2d 81, 86 (2002) (in reviewing the sufficiency of a complaint, we accept as true all

well-pleaded facts and all reasonable inferences that may be drawn from those facts). Here, the

complaint sufficiently alleged that plaintiffs notified certain persons of the alleged defects, that the

defects were not remedied, how the work failed to meet the 1999 Illinois Quality Assurance

Builder Standard, how the defects are material and otherwise affect habitability, and that all the

defects remained as of the date of filing. Specifically, counts I and III of the complaint alleged that

defendant C.A. Jones, Inc. failed to properly install doors, locks, doorknobs, flooring, and

8 subflooring. As such, we reverse the dismissal of counts I and III of plaintiffs’ complaint with

respect to both plaintiffs.

¶ 25 We next consider the dismissal of counts II and IV. In its November 1, 2023, order granting

defendants’ motions to dismiss, the circuit court found that plaintiffs failed to set forth any facts

showing any connection between themselves and defendant Chris Jones, with respect to the

agreement to build and sell a home. The court further found that plaintiffs did not allege any

separate agreement with defendant Chris Jones as an individual. The court reasoned that the

complaint alleges only that “Chris Jones is an Illinois citizen and resident” and that he supervised

and directed the construction of the home. The court found plaintiffs pleaded “no supporting

factual allegations on this issue” except for the “merely conclusory allegation.”

¶ 26 Additionally, the court found that plaintiffs’ complaint did not provide any facts or

documents that disputed defendant Chris Jones’ retirement and termination of the active operation

of C.A. Jones, Inc. prior to the execution of the contract. Attached to his motion to dismiss pursuant

to section 2-619(a), defendant Chris Jones provided an affidavit which specifically stated he retired

and relinquished any operational control of the day-to-day activity in C.A. Jones, Inc. The affidavit

stated he retired and relinquished control of C.A. Jones, Inc. in March of 2020. Plaintiffs’ pleadings

and affidavits did not provide any facts that dispute or otherwise contradict that defendant Chris

Jones retired in March of 2020, before the execution of the sale contract.

¶ 27 We agree and affirm the dismissal of counts II and IV. In its order, the circuit court stated

“[the issue] was addressed extensively at hearing.” As noted above, the record does not contain a

transcript or a bystander’s report from the hearing on defendants’ motions to dismiss. We must

resolve any gaps in the record against the plaintiffs, and we must presume that the trial court’s

decision was correct. Foutch, 99 Ill. 2d at 391-92. It is the appellants’ duty to provide a sufficiently

9 complete record of the lower court proceedings to support their claims on appeal. Midstate Siding

& Window Co. v. Rogers, 204 Ill. 2d 314, 318-19 (2003).

¶ 28 Lastly, we consider whether the circuit court erred by ordering arbitration under the sale

contract and warranty program. A circuit court’s order granting or denying a motion to compel

arbitration that was made without an evidentiary hearing and raises only a legal issue is reviewed

de novo. Guarantee Trust Life Insurance Co. v. Platinum Supplemental Insurance, Inc., 2016 IL

App (1st) 161612, ¶ 25. Here, while the circuit court conducted a hearing on the defendant’s

motion to dismiss, the record does not reflect that the court held an evidentiary hearing. The parties

do not dispute this standard of review. Therefore, our review is de novo. Moreover, whether the

right to arbitration has been waived by the filing of a dispositive motion is a legal question subject

to de novo review. Watkins v. Mellen, 2016 IL App (3d) 140570, ¶ 12.

¶ 29 “A motion to compel arbitration raises the sole and narrow issues of whether the parties

agreed to arbitrate the dispute.” Clark v. Foresight Energy, LLC, 2023 IL App (5th) 230346, ¶ 22

(citing Liu v. Four Seasons Hotel, Ltd., 2019 IL App (1st) 182645, ¶ 24). The circuit court’s

inquiry, when presented with a motion to compel arbitration, is whether the parties have a valid

arbitration clause. If so, the question becomes whether the issues in dispute fall within the scope

of the arbitration clause. Hartz v. Brehm Preparatory School, Inc., 2021 IL App (5th) 190327,

¶ 42.

¶ 30 Illinois considers arbitration to be a favored method of dispute resolution. Salsitz v. Kreiss,

198 Ill. 2d 1, 13 (2001). “However, arbitration is still a matter of contract and parties are ‘bound

to arbitrate only those issues they have agreed to arbitrate, as shown by the clear language of the

agreement and their intentions expressed in that language.’ ” Clark, 2023 IL App (5th) 230346,

¶ 23 (quoting Salsitz, 198 Ill. 2d at 13). “Their ‘agreement will not be extended by construction or

10 implication.’ ” Id. (quoting Salsitz, 198 Ill. 2d at 13). “A party’s course of action amounts to waiver

when it submits arbitrable issues to a court for decision on the substantive merits of the cause.”

Feldheim v. Sims, 326 Ill. App. 3d 302, 309 (2001).

¶ 31 Our research has revealed various instances where Illinois courts have held that a party

abandoned its right to arbitration by filing substantive pleadings prior to invoking an arbitration

clause. Applicolor, Inc. v. Surface Combustion Corp., 77 Ill. App. 2d 260, 267 (1966) (filing a

motion for summary judgment constitutes waiver of a subsequent right to invoke arbitration

clause); State Farm Mutual Automobile Insurance Co. v. George Hyman Construction Co., 306

Ill. App. 3d 874, 885 (1999) (summary judgment motion by defendant in response to breach of

contract claim waived right to arbitrate); Gateway Drywall & Decorating, Inc. v. Village

Construction Co., 76 Ill. App. 3d 812, 816 (1979) (filing an answer without asserting the right to

arbitrate constitutes waiver); Atkins v. Rustic Woods Partners, 171 Ill. App. 3d 373, 378 (1988)

(filing a motion to dismiss complaint for failure to state a cause of action without raising arbitration

clause constitute waiver). Alternatively, filing a motion contesting venue did not waive a

subsequent motion to compel arbitration. Brennan v. Kenwick, 97 Ill. App. 3d 1040, 1043 (1981).

Additionally, filing an answer including the affirmative defense of the arbitration agreement does

not constitute waiver. Kessler, Merci, & Lochner, Inc. v. Pioneer Bank & Trust Co., 101 Ill. App.

3d 502, 505 (1981).

¶ 32 Plaintiffs argue, inter alia, that defendants waived the right to arbitration by seeking

adjudication on the merits. Here, both defendants filed combined motions to dismiss under sections

2-615(a) and 2-619(a) of the Code. As noted above, in its motion to dismiss under section 2-615,

defendant C.A. Jones, Inc. argued that plaintiffs did not allege any facts showing that the items

complained about were not within the standards and tolerances described in the 1999 Edition of

11 the Illinois Quality Assurance Builder Standards. C.A. Jones, Inc. also argued that plaintiffs did

not plead any facts showing that they attempted to utilize the warranty provided by the contract

and that such attempts by C.A. Jones, Inc. to provide warranty corrections were unsuccessful.

Under section 2-619, C.A. Jones, Inc. argued that plaintiffs failed to submit their dispute to binding

arbitration, as required by the contract. Defendant Chris Jones, under section 2-615, argued that

plaintiffs failed to plead specific facts demonstrating how Chris Jones was personally involved in

the construction process. Under section 2-619, Chris Jones adopted C.A. Jones, Inc.’s binding

arbitration defense.

¶ 33 In support of their argument that arbitration was waived, plaintiffs assert “Defendant knew

it had its right to argue arbitration, and instead of relying on only same, asked the trial court to rule

on the merits of the underlying case. To that end, Defendant has waived its right to request

arbitration.” We agree. By filing motions to dismiss under sections 2-615 and 2-619 and asking

the court to dismiss the claims with prejudice, defendants have placed substantive issues before

the court. As such, the right to compel arbitration was waived. Atkins, 171 Ill. App. 3d at 379

(motion to dismiss based upon interpretation of partnership agreement waived right to compel

arbitration).

¶ 34 III. CONCLUSION

¶ 35 For the foregoing reasons, we reverse the November 1, 2023, order of the circuit court of

St. Clair County with respect to counts I and III. We affirm the order with respects to counts II and

IV. We reverse the court’s order with respect to arbitration and remand for further proceedings

consistent with this opinion.

¶ 36 Affirmed in part and reversed in part.

¶ 37 Cause remanded.

12 Smith v. Jones, 2025 IL App (5th) 231136

Decision Under Review: Appeal from the Circuit Court of St. Clair County, No. 22-LA-840; the Hon. Kevin T. Hoerner, Judge, presiding.

Attorneys Thomas G. Maag, of Maag Law Firm, LLC, of Wood for River, for appellants. Appellant:

Attorneys Sheldon D. Korlin, of Aegis Law, of O’Fallon, for for appellees. Appellee: