VanHoldt v. Barba & Barba Construction Co.

CourtIllinois Supreme Court
DecidedJanuary 30, 1997
Docket80342
StatusPublished

This text of VanHoldt v. Barba & Barba Construction Co. (VanHoldt v. Barba & Barba Construction Co.) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
VanHoldt v. Barba & Barba Construction Co., (Ill. 1997).

Opinion

NOTICE: Under Supreme Court Rule 367 a party has 21 days after

the filing of the opinion to request a rehearing. Also, opinions

are subject to modification, correction or withdrawal at anytime

prior to issuance of the mandate by the Clerk of the Court.

Therefore, because the following slip opinion is being made

available prior to the Court's final action in this matter, it

cannot be considered the final decision of the Court. The

official copy of the following opinion will be published by the

Supreme Court's Reporter of Decisions in the Official Reports

advance sheets following final action by the Court.

             Docket No. 80342--Agenda 22--September 1996.

   JOHN W. VonHOLDT, JR., Appellant, v. BARBA & BARBA CONSTRUCTION,

                            INC., Appellee.

                    Opinion filed January 30, 1997.

    JUSTICE MILLER delivered the opinion of the court:

    The plaintiff, John W. VonHoldt, Jr., brought the present

action in the circuit court of Cook County against defendant, Barba

& Barba Construction, Inc. The complaint alleged that defendant

breached an implied warranty of habitability in its construction of

a structural addition to an existing residence. Plaintiff was a

purchaser of the residence after the addition had been made. On

defendant's motion, the circuit court dismissed the action pursuant

to section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615

(West 1994)), finding that plaintiff's second-amended complaint

failed to state a cause of action upon which relief could be

granted. On appeal, the appellate court affirmed the dismissal of

plaintiff's complaint. 276 Ill. App. 3d 325. We granted leave to

appeal (155 Ill. 2d R. 315(a)) and affirm the judgment of the

appellate court on grounds different from those relied on by the

lower courts.

                              I. BACKGROUND

    In August 1982, defendant constructed a multilevel addition to

a single family residence in Glenview, Illinois. Before the

addition, the residence consisted of approximately 2,300 square

feet. After the addition, the residence consisted of approximately

3,200 square feet. More than 11 years later, on November 5, 1993,

plaintiff purchased the residence.

    Shortly after taking occupancy, plaintiff noticed a deflection

of the wood flooring at the partition wall separating the master

bedroom from an adjoining bathroom. This deflection created a

depression in the floor plane. Plaintiff maintained that, due to

the thickness of the carpet, the depression was nearly concealed.

An investigation revealed that the addition was not constructed in

accordance with the architectural plans approved by the Village of

Glenview or the Glenview Building Code. Specifically, the partition

wall between the master bedroom and the bathroom was constructed as

a bearing element supporting a portion of both the roof and ceiling

construction. This variance resulted in excessive stress on the

floor joists and inadequate support for a portion of the roof and

ceiling causing a greater than expected floor deflection.

    The plaintiff instituted the present action on March 28, 1994,

by filing a complaint in the circuit court of Cook County.

Plaintiff sought recovery from the defendant for breach of an

implied warranty of habitability. Defendant moved to dismiss the

complaint pursuant to section 2--615 of the Code of Civil Procedure

(735 ILCS 5/2--615 (West 1992)) for failure to state a claim upon

which relief could be granted. On September 29, 1994, the trial

judge dismissed plaintiff's amended complaint without prejudice.

    Plaintiff filed a second-amended complaint on October 24,

1994, providing additional allegations in support of the breach of

implied warranty of habitability count. Defendant again moved to

dismiss the complaint pursuant to section 2--615. The trial judge

granted defendant's section 2--615 motion and dismissed the

complaint with prejudice, finding that defendant was not a builder-

vendor and that there was an absence of privity between the two

parties. Plaintiff subsequently appealed.

    The appellate court affirmed the judgment of the circuit

court. 276 Ill. App. 3d 325. The appellate court noted the reasons

for the adoption of the implied warranty of habitability between a

builder and a purchaser and discussed extensions of the doctrine

following its inception. 276 Ill. App. 3d at 327-28. The appellate

court further acknowledged that there exist compelling arguments to

extend the implied warranty to apply to a builder of a major

structural addition of an existing home. 276 Ill. App. 3d at 328-

29. The appellate court, however, observed that this court had

always spoken in terms of a right of action against a builder-

vendor. 276 Ill. App. 3d at 329. Thus, it refused to extend

protection under the doctrine to a construction setting not

involving a builder-vendor of a new residence. 276 Ill. App. 3d at

329. We allowed plaintiff's petition for leave to appeal. 155 Ill.

2d R. 315(a).

                             II. DISCUSSION

          A. The Implied Warranty's Applicability to Additions

    On appeal to this court, plaintiff contends that the appellate

court erred in rejecting his claim of breach of an implied warranty

of habitability. Plaintiff asks us to extend the implied warranty

of habitability to a cause of action by a subsequent purchaser for

damages against a builder constructing a later addition to a house.

Defendant argues that the protection of the implied warranty of

habitability should be limited to actions against builder-vendors

and that plaintiff's action, if any exists, is time-barred. For the

reasons expressed below, we find that the implied warranty of

habitability extends to cases brought by subsequent purchasers

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