Andreoli v. John Henry Homes, Inc.

No. 3--97--0816


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


GERALD T. ANDREOLI and IRENE M. ) Appeal from the Circuit
ANDREOLI, ) Court of Du Page County
)
Plaintiffs-Appellants, ) No. 96--LM--3828
)
v. )
)
JOHN HENRY HOMES, INC., ) Honorable
) C. Stanley Austin,
Defendant-Appellee. ) Judge, Presiding.
_________________________________________________________________

JUSTICE INGLIS delivered the opinion of the court:

Plaintiffs, Gerald T. Andreoli and Irene M. Andreoli, appeal
the order of the circuit court of Du Page County that dismissed
their amended complaint as time-barred in favor of defendant, John
Henry Homes, Inc. We reverse and remand.
Plaintiffs contracted with defendant to design and build a
two-story home, which was completed in November 1986. In January
or February of 1996, plaintiffs noticed that the rear wall of the
home had begun to "buckle" in the middle and that the second story
had begun to "sag" into the first floor. On November 25, 1996,
plaintiffs filed a complaint against defendants for breach of
contract. The complaint was dismissed due to a one-year express
warranty provision in the contract. Plaintiffs filed an amended
complaint in March 1997, alleging that, because of the nature of
the defects in their home, defendant breached its implied warranty
of habitability. The trial court granted defendant s motion to
dismiss under section 2--619(a)(5) of the Code of Civil Procedure
(735 ILCS 5/2--619(a)(5)(West 1996)) on the basis that plaintiffs
complaint was barred by the statute of limitations. Plaintiffs
timely appeal.
Initially, we note that a motion to dismiss under section 2--
619 admits all well-pleaded facts. Geick v. Kay, 236 Ill. App. 3d
868, 874 (1992). Moreover, a reviewing court is not required to
defer to the trial court's judgment on a motion to dismiss, and,
therefore, we review the matter de novo. T&S Signs, Inc. v.
Village of Wadsworth, 261 Ill. App 3d 1080, 1083-84 (1994).
Plaintiffs contend that their action was timely filed under
section 13--214 of the Code of Civil Procedure (735 ILCS 5/13--214
(West 1996)). Section 13--214(b) provides:
(b) No action based upon tort, contract or otherwise may
be brought against any person for an act or omission of such
person in the design, planning, supervision, observation or
management of construction, or construction of an improvement
to real property after 10 years have elapsed from the time of
such act or omission. However, any person who discovers such
act or omission prior to expiration of 10 years from the time
of such act or omission shall in no event have less than 4
years to bring an action as provided in subsection (a) of this
Section. 735 ILCS 5/13--214(b) (West 1996).
Defendant contends that neither section 13--214 nor any other
statute of limitations applies to an action for breach of an
implied warranty of habitability because it is a judicially created
right, which only the judiciary can limit. Defendant asserts that
VonHoldt v. Barba & Barba Construction, Inc., 175 Ill. 2d 426
(1997), set the proper standard regarding the timeliness of an
action based upon breach of an implied warranty of habitability.
Defendant s argument is flawed. First, the statute of
limitations applies to all actions regardless of whether the action
is derived from statutory or common law. Indeed, it is well
established that common law prevails only if it is not regulated by
statute or rule of court. See, e.g., 735 ILCS 5/1--108(c) (West
1996)("As to all matters not regulated by statute or rule of court,
the practice at common law prevails").
Second, VonHoldt did not adopt a time limitations standard for
bringing an action for breach of an implied warranty of
habitability. In fact, the court never decided whether section 13-
-214 or the "reasonable time" standard, adopted by Redarowicz v.
Ohlendorf, 92 Ill. 2d 171 (1982), controlled the time limitation
because neither party briefed or argued it to the court. Rather,
the court found that under either theory, the repose section of 13-
-214 or the "reasonable time" standard of Redarowicz, the 11-year
gap between the time of the construction and the claim for damages
resulting from a latent defect barred the plaintiff from recovery.
VonHoldt, 175 Ill. 2d at 434.
In VonHoldt, the plaintiff purchased a residence after an
addition to the existing residence had been made. The court held
that the implied warranty of habitability extended to cases brought
by subsequent purchasers involving additions to homes. VonHoldt,
175 Ill. 2d at 432. Having determined that a cause of action
existed, the court proceeded to determine whether the plaintiff s
claim was time-barred. The court explained that under section 13--
214 the plaintiff s action was barred because the claim was
discovered more than 10 years from the date of construction of the
addition. VonHoldt, 175 Ill. 2d at 434. The court further found
that, under the "reasonable time" standard, the 11-year period
between the date of the act or omission causing the defect and the
time the action was brought by a subsequent purchaser was an
unreasonable time to hold a builder liable. The court could not
hold a builder to be a lifetime guarantor of construction,
susceptible to a claim for damages under the implied warranty of
habitability, beyond the foreseeable future. VonHoldt, 175 Ill. 2d
at 434.
We agree with plaintiff that section 13--214 applies to
actions based on the breach of an implied warranty of habitability.
Section 13--214 involves those concerned with the management and
supervision of "Construction-Design." It applies to "[a]ctions
based upon tort, contract or otherwise ***." 735 ILCS 5/13--214
(West 1996). Several courts have applied section 13--214 to
actions against persons involved in construction-related activities
based on allegations of the breach of the implied warranty of
habitability. See, e.g., Eickmeyer v. Blietz Organization, Inc.,
284 Ill. App. 3d 134 (1996); Schleyhahn v. Cole, 178 Ill. App. 3d
111, 114 (1989); see also Zielinski v. Miller, 277 Ill. App. 3d
735, 741 (1995) (implied warranty of workmanship and materials).
We also find that plaintiffs were not time-barred from
bringing their action. Section 13--214(b) provides that a
plaintiff must commence an action within four years from the time
the plaintiff knew or reasonably should have known of the builder s
act or omission. In any event, under this section, the discovery
must occur within 10 years. When the act or omission is discovered
prior to the expiration of the 10-year period, plaintiffs then have
four years to bring their action. 735 ILCS 5/13--214(b)(West
1996); Schleyhahn, 178 Ill. App. 3d at 114. Plaintiffs discovered
the defect in January or February 1996 and filed their complaint in
November 1996, within four years.
However, it remains to determine whether plaintiffs discovery
was made prior to the expiration of the 10-year period. Defendant
argues that the discovery occurred after the 10-year period because
plaintiffs home was constructed between the date the parties
contracted to buy the house, in December 1985, and the date of
final acceptance, in November 1986, and plaintiffs discovered the
alleged defect in January or February 1996. Plaintiffs contend
that the time should be accrued from the time construction was
completed or from the date of closing, in November 1986, when
plaintiffs gained possession of the house. We agree that the time
should accrue from the date of conveyance.
Although no case has specifically concluded that the time for
discovery should accrue from the time of completion and neither
party has cited to one, other cases have implied that accrual for
limitation purposes should begin upon the completion of the
project. For example, in Eickmeyer v. Blietz Organization, Inc.,
284 Ill. App. 3d 134 (1996), the court held that, according to
section 13--214(b), a plaintiff who brings an action against a
builder for breach of implied warranty of habitability must file
suit within 10 years from the time the house was built. In that
case, the house was constructed in the winter of 1976 and was sold
in April 1977. The court computed the statute from the date the
house was sold in 1977, finding that the suit should have been
filed by 1987 to avoid the time bar. Eickmeyer, 284 Ill. App. 3d
at 139. See also Zielinski v. A. Epstein & Sons International,
Inc., 179 Ill. App. 3d 340 (1989)(damages barred by statute of
limitations from time construction was completed). Additionally,
it is clear that purchasers of a new home would have no reason to
know of any alleged structural defects until they had possession of
and lived in their new home. See Axia Inc. v. I.C. Harbour
Construction Co., 150 Ill. App. 3d 645 (1986)(statute of
limitations begins to run when party becomes possessed with
sufficient information concerning its injury and the causes of the
injury; plaintiff possessed requisite information from date of
completion). We hold, therefore, that the time of accrual under
section 13--214(b) governing a purchaser s suit against a builder
to recover for latent defects in the purchaser s new house begins
from the date when the house is conveyed. Because plaintiffs
cause of action arose within 10 years from the date the house was
conveyed, it was timely filed.
Defendant argues that the filing of the complaint was the
first notification of a problem and that it was unreasonable for
plaintiffs to wait to file their complaint nine months after they
discovered the alleged defect. We do not find it relevant that
plaintiffs did not notify defendant of the defect until their
complaint was filed; there simply is no such requirement in the
statute. "The fact that plaintiffs did not immediately rush to the
courthouse should not redound to the benefit of defendant so long
as the plaintiffs discovery came within the statutory limitation
period and the action was commenced within the four-year grace
period." Schleyhahn, 178 Ill. App. 3d at 116.
In closing, we note that defendant also argues that
plaintiffs amended complaint was untimely because it was filed in
March 1997. Even if the relevant filing date did not occur until
March 1997, the amended complaint was still filed within four years
from the date of discovering the defect and within the applicable
10-year period of repose under section 13--214(b).
For the foregoing reasons, the decision of the circuit court
of Du Page County is reversed, and the cause is remanded for
further proceedings consistent with this opinion.
Reversed and remanded.
McLAREN and HUTCHINSON, JJ., concur.