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Martusciello v. JDS Homes9/26/2005
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) (" 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 foun
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