author: JUSTICE JIGANTI

text:
    OLD ORCHARD BANK & TRUST CO., Plaintiff, v. JOSEPH LEVIN et al., Petitioners-Appellees (Bank of Lincolnwood, Respondent-Appellant; Old Orchard Bank & Trust Co., Trustee, et al., Defendants).
    First District (4th Division)
    No. 83—1710
    Opinion filed May 17, 1984.

      Jill B. Berkeley and Ellen J. Barron, both of Dardick & Jadwin, of Chicago, for appellant.
    Barry A. Pitler, Philip L. Mandell, and Sigi M. Offenbach, all of Chicago, for appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

The central concern of this appeal is whether certain substantive arguments raised by the appellant, Bank of Lincolnwood, are barred by principles of res judicata and collateral estoppel. The Bank of Lincolnwood and the appellees, Joseph and Marlene Levin, have been involved in two separate lawsuits, the second of which is presently before this court. In supplemental proceedings to enforce the judgment following the first action, the trial court found that the Levins were entitled to homestead exemptions in their home in Wilmette, Illinois. (See Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1402.) The trial judge in the subsequent and now instant foreclosure action on the Wilmette property found that the Levins possessed homestead rights in the Wilmette premises, based upon the order entered by the court during supplementary proceedings in the first lawsuit. The Bank of Lincolnwood now raises a number of substantive issues concerning the propriety of granting homestead exemptions to the Levins and the constitutionality and retroactivity of an amendment to the homestead exemption statute. We find, however, that these matters are barred by principles of res judicata and collateral estoppel. We therefore shall not address the merits of the Bank of Lincolnwood’s substantive arguments.

The following chronology of events lays the backdrop for this appeal. Prior to 1979, a land trust was established under which the Levins possessed the beneficial interest and Old Orchard Bank & Trust Company, the land trust trustee (land trustee), possessed legal and equitable title. The res of the trust consisted of the Wilmette home and certain property located in Northfield, Illinois. Between 1979 and 1980, the land trustee executed a mortgage on the Northfield property and a note payable to the Bank of Lincolnwood. The Northfield property was later sold by the sheriff of Cook County after the land trustee defaulted on the note and the Bank of Lincolnwood obtained a judgment against the land trustee. While both the land trustee and the Levins were named as defendants in that lawsuit, the record before us is unclear as to the disposition of the case in regard to the Levins. The proceeds of the judicial sale of the Northfield property were insufficient to satisfy the Bank of Lincolnwood’s judgment in full and thus, a portion of the judgment remained unsatisfied.

In supplementary proceedings before Judge Cohen, the Bank of Lincolnwood filed a citation to discover assets as a judgment creditor of the land trustee. Although the facts surrounding the citation proceeding have not been included in the record before us, the parties agree that the proceeding disclosed that the Wilmette home was subject to sale in order to satisfy the debts and obligations of the land trustee. Judge Cohen allowed the Levins to intervene in the citation proceedings because they possessed a beneficial interest in the land trust which held both the Northfield and Wilmette properties. Subsequently, Judge Cohen ordered the land trustee to execute and deliver to the sheriff a trustee’s deed conveying its title and interest in the Wilmette premises. On July 27, 1982, Judge Cohen also entered a separate order which is crucial to the case now before us. In that order, the judge awarded the Levins a homestead exemption in the Wilmette premises by virtue of their beneficial interest in the land trust.

The Bank of Lincolnwood never appealed Judge Cohen’s order granting homestead exemptions in the Wilmette premises to the Levins. That specific order concerned absolutely no matter other than the Levins’ right to homestead exemptions. In this appeal, the Bank of Lincolnwood concedes that Judge Cohen’s order was final and appealable and makes no argument in that regard. The record reflects the Bank of Lincolnwood’s deliberate choice not to appeal Judge Cohen’s order, in part at least due to financial concerns.

Less than three months after Judge Cohen’s rulings, another circuit court judge, Judge Siegan, entered a judgment of foreclosure and sale on the Wilmette premises. This foreclosure action was brought after the land trustee defaulted on another note which had been executed in 1972. The action was brought by Old Orchard Bank, the holder of the note and trust deed. The Bank of Lincolnwood was a party to this action as well and was named as a judgment creditor of the land trustee. The Levins were also named as defendants in the case. Judge Siegan set a six-month period of redemption from the date of the sheriff’s sale. No redemption was ever made.

The sheriff conducted a sale of the Wilmette premises and the Bank of Lincolnwood was the high bidder at the sale. Judge Siegan entered an order approving the sheriff’s report of sale and distribution and further incorporated the sheriff’s report into his order. Both the order and the sheriff’s report stated that they were “subject to” Judge Cohen’s order of July 27, 1982. The July 27 order is the order previously discussed in this opinion which granted homestead exemptions in the Wilmette property to the Levins.

After the six-month redemption period had expired for the Wilmette premises, the Bank of Lincolnwood applied for the sheriff’s deed pursuant to its certificate of sale. Three days later, the Levins presented their petition for a protective order to Judge Siegan, seeking payment of their homestead exemptions in the Wilmette premises. Judge Siegan ruled that the Levins were entitled to their homestead exemptions and the Bank of Lincolnwood now appeals from Judge Siegan’s order.

“The doctrine of res judicata provides that ‘a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.’ ” (Housing Authority v. Young Men’s Christian Association (1984), 101 Ill. 2d 246, 251; People v. Kidd (1947), 398 Ill. 405, 75 N.E.2d 851.) Once res judicata has been established, it acts “ ‘as a bar against the prosecution of a second action between the same parties upon the same claim or demand ***’ ” and “ '*** is conclusive not only as to every matter which was offered to sustain or defeat the claim or demand, but as to any other matter which might have been offered for that purpose. ***’ ” Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 251-52; Barry v. Commonwealth Edison Co. (1940), 374 Ill. 473, 29 N.E.2d 1014.

In the case at bar, the Bank of Lincolnwood maintains that neither res judicata nor collateral estoppel acts as a bar to its arguments because the cases before Judge Cohen and Judge Siegan were “two completely distinguishable and separate actions, which bear no factual or legal resemblance to each other.” We disagree. The record in this case establishes that Judge Cohen specifically decided whether the Levins, as the owners of the beneficial interest in a land trust, were entitled to a homestead exemption in the Wilmette premises. The Levins and the Bank of Lincolnwood were both parties in the action before Judge Cohen and the court was one of competent jurisdiction. The propriety of granting a homestead exemption to the Levins was decided after Judge Cohen heard oral arguments and examined the briefs prepared by the Levins and the Bank of Lincolnwood. Judge Cohen’s July 27 order encompassed no matter other than the Levins’ right to homestead exemptions in the Wilmette premises. The Bank of Lincolnwood never appealed from Judge Cohen’s order. and, because the period has run during which the Bank of Lincolnwood could have filed its notice of appeal, Judge Cohen’s order is not appealable and the merits of his decision cannot be assessed by this court.

The action before Judge Siegan addressed the precise issue which was decided by Judge Cohen in his July 27 order: whether the Levins, as the owners of the beneficial interest in a land trust, were entitled to a homestead exemption in the Wilmette premises. The Levins and the Bank of Lincolnwood were both parties to the action before Judge Siegan; they were also both parties to the action before Judge Cohen. The Wilmette home was the identical property that was specifically addressed in regard to the Levins’ right to homestead exemptions by both Judge Cohen and Judge Siegan. Where the issue, the parties and the subject property were thus indistinguishable, we believe that the matter of granting homestead exemptions to the Levins was res judicata in the action before Judge Siegan. Furthermore, any ancillary issues which could have been raised before Judge Cohen but were not were also res judicata in the action before Judge Siegan. We therefore find that Judge Siegan properly found that he was bound by the July 27 order previously entered by Judge Cohen under the doctrine of res judicata.

Alternatively, even if the Bank of Lincolnwood could correctly maintain that the actions before Judge Cohen and Judge Siegan were legally and factually distinguishable, we believe that collateral estoppel would act as a bar to the Bank’s arguments. “The doctrine of collateral estoppel applies when a party or someone in privity with a party participates in two separate and consecutive cases arising on different causes of action and some controlling fact or question material to the determination of both causes has been adjudicated against that party in the former suit by a court of competent jurisdiction.” (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 252.) In the instant case the “material question” at issue was whether the Levins, as the owners of the beneficial interest in a land trust, were entitled to a homestead exemption in the Wilmette premises. This precise issue was decided by Judge Cohen in his July 27 order. We therefore believe that when the matter of the Levins’ homestead exemptions again arose before Judge Siegan, the adjudication of the same question before Judge Cohen was conclusive in the later action.

Under principles of collateral estoppel, “the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined and not as to other matters which might have been litigated and determined.” (Charles E. Harding Co. v. Harding (1933), 352 Ill. 417, 427, 186 N.E. 152, 155.) Significantly, in the case at bar, the Bank of Lincolnwood does not argue that Judge Siegan was asked to determine ancillary issues regarding the Levins’ right to homestead exemptions, such as the alleged waiver of their rights or the constitutionality and retroactive application of the homestead exemption statute, which had not been previously raised by the bank before Judge Cohen. Therefore, the above-quoted language, which illuminates the distinction between principles of res judicata and collateral estoppel, plays no part in the case now before this court. We consequently find that collateral estoppel acts as an alternative bar to the Bank of Lincolnwood’s arguments.

The final argument we must consider on appeal is the Bank of Lincolnwood’s contention that Judge Siegan improperly considered the Levins’ petition for a protective order more than 30 days after entry of his final judgment. On December 13, 1982, Judge Siegan entered his order approving the sheriff’s report of sale and distribution. The Levins presented their petition for a protective order on May 27, 1983, following the Bank of Lincolnwood’s application for the sheriff’s deed upon the expiration of the six-month period of redemption set by Judge Siegan. On June 17, 1983, Judge Siegan ruled that the Levins were entitled to homestead exemptions. The Bank of Lincolnwood now maintains that Judge Siegan did not have jurisdiction to “amend or modify [his] final judgment order of December 13, 1982” when he ruled that the Levins were entitled to homestead exemptions. We disagree with the Bank of Lincolnwood’s contentions.

We do not believe that Judge Siegan modified or amended his December 13 order when he later ordered that the Levins were entitled to homestead exemptions. Judge Siegan’s December 13 order specifically stated that it was subject to Judge Cohen’s order of July 27, 1982. The July 27 order awarded homestead exemptions to the Levins and was concerned solely with the issue of the Levins’ entitlement to those exemptions. Judge Siegan’s December 13 order further stated that the court would retain jurisdiction over the subject matter and the parties to the action for purposes of enforcing the order. We believe that when Judge Siegan ruled that the Levins were entitled to their homestead exemptions he was quite simply enforcing his earlier order of December 13. We therefore find that Judge Siegan’s ruling was proper and did not violate the provisions of the Code of Civil Procedure pertaining to motions after final judgment. See Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1203.

For the foregoing reasons, the order entered by Judge Siegan on June 17, 1983, pertaining to the Levins’ entitlement to homestead exemptions, is affirmed.

Affirmed.

JOHNSON and ROMITI, JJ., concur.

      As a practical matter, such arguments, even if offered by the Bank of Lincolnwood, could not properly be considered by this court on appeal. The Bank of Lincolnwood, as appellant, has chosen only to supply this court with the record of proceedings in the action before Judge Siegan and not with the record in the action before Judge Cohen. The only documents concerning the action before Judge Cohen which have been provided to this court by the appellant are certain exhibits which were attached to the Levins’ petition for a protective order in the action before Judge Siegan. Thus, we have no basis to consider the issues that were argued before Judge Cohen prior to the time he entered his July 27 order.


source: Caselaw Access Project

author: PRESIDING JUSTICE MEJDA

license: Public Domain

text:
    CONRAD HARRIS, Plaintiff-Appellant, v. BETHLEHEM STEEL CORPORATION et al., Defendants-Appellees.
    First District (5th Division)
    No. 83—1269
    Opinion filed April 13, 1984.
    Modified on denial of rehearing June 15, 1984.

      William J. Harte, Ltd., and Herbert E Stride, Ltd., both of Chicago, for appellant.

      George. W. Gessler and Barbara A. Frick, both of Rooks, Pitts, Fullagar and Poust, of Chicago, for appellees.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff appeals from an order of the circuit court which granted the motions for summary judgment of defendants Bethlehem Steel Corporation and Industrial Sling Company. Defendant Northern Engineering Corporation is not a party to this appeal. Plaintiff contends that the trial court erred in entering summary judgment against him because expert testimony cannot provide a basis for overcoming the sufficiency of allegations in the complaint. Plaintiff also argues that the expert’s opinion in the instant case did not eliminate all genuine issues of material fact set up by the complaint. For the reasons which follow, we affirm in part and reverse and remand in part.

Count I of plaintiff’s unverified second amended complaint alleged that defendants manufactured and distributed cable to plaintiff’s employer and that the cable was used on a crane to hold a metal block weighing between 400 and 500 pounds. Plaintiff alleged that the cable was designed and intended for this use and that the cable broke and severed, causing him personal injury. Count I of the second amended complaint sought recovery under a strict products liability theory, alleging in paragraph 7 three alternative factual bases for recovery. These were that the cable was defective at the time that it left the defendants’ possession and control in: (a) failing to support a load well within its capacity; (b) failing to carry such a load due to lack of metallurgy integrity; and (c) failing to withstand normal wear and tear in normal use so as to support a load well within its capacity. The defendants filed separate answers denying the material allegations of the second amended complaint.

Defendants’ motions for summary judgment set forth that the expert retained by plaintiff to inspect and study the wire rope testified in a discovery deposition that the cable was not defective and that, in his opinion, the accident was not caused by any improper or defective condition of that product. The motion included the deposition of Sheldon Mostovoy, which disclosed the following. He is an associate professor of metallurgical and materials engineering at the Illinois Institute Technology, and he examined several sections from the failed as well as the intact portions of the cable. His examination revealed that the wires comprising the cable contained ductible overload or tensile failures but no brittle failures. He stated that these failures were caused by “gross overload” rather than by metallurgical defects such as nicks, seams, gouges, or wires rolled in laps. Such defects could have caused a brittle failure, which Mostovoy characterized as a “snapping” type of failure characteristic of improperly manufactured cable. He indicated that the tensile failures which he found in the cable were caused by the deformation of the component wires under stress and their subsequent failure to assume their original shape. This caused a narrowing or “necking” of the wires which in turn diminished their strength leading to the break in the cable. Although Mostovoy stated that he found nothing to indicate that the manufacturer of the cable was responsible for the failure, he also noted that he had no knowledge of the specific physical properties of the specific wires. He stated “[f]or an example, if that wire was made from an improperly heat treated or improperly manufactured wire, then those tensile overloads might have come at loads that would be substantially below the ones that are claimed for that wire. And so I would have had to have done additional tests to verify that. I did not do them.” Mostovoy stated that additional testing would not change his opinion that the failure of the cable was due to an overload rather than a “defect” in the cable.

Plaintiff produced no documents or other depositions to contradict Mostovoy’s statements. The trial court entered summary judgment for defendants, and plaintiff has appealed.

Opinion

The rules governing summary judgments are well settled. “A defendant may, at any time, move with or without supporting affidavits for a summary judgment in his or her favor as to all or any part of the relief sought against him or her.” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005(b).) Further, “[t]he judgment sought shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1981, ch. 110, par. 2— 1005(c); see also Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 586-87, 272 N.E.2d 497.) Discovery depositions may be used in the context of summary judgment proceedings “ ‘for any purpose for which an affidavit may be used.’ (See 87 Ill. 2d R. 212(a)(4); see also Sierens v. Clausen (1975), 60 Ill. 2d 585, 328 N.E.2d 559; Moreno v. Joe Perillo Pontiac, Inc. (1983), 112 Ill. App. 3d 670, 676, 445 N.E.2d 1184.)” In re Estate of Myers (1983), 120 Ill. App. 3d 726, 731, 458 N.E.2d 1102.

Plaintiff asserts that summary judgment cannot be based on the opinion of an expert witness adduced at a deposition. Plaintiff notes correctly that a jury is not bound to accept the opinion of an expert on an ultimate issue. (Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill. 2d 118, 122, 273 N.E.2d 809.) From this rule plaintiff further posits that because the jury need not accept the opinion of the expert, that opinion is too inconclusive to form the predicate for a summary judgment. Defendants reply that the courts have affirmed summary judgments entered on the basis of the depositions of experts. (See, e.g., Wooding v. L & J Press Corp. (1981), 99 Ill. App. 3d 382, 425 N.E.2d 1055; Conrad v. Christ Community Hospital (1979), 77 Ill. App. 3d 337, 395 N.E.2d 1158; Coleman v. Verson Allsteel Press Co. (1978), 64 Ill. App. 3d 974, 382 N.E.2d 36.) In our view this is entirely proper. Although a jury is not bound to accept the testimony of an expert witness (Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill. 2d 118), the issue in summary judgment cases is not whether a jury would accept or reject the statement of the affiant or deponent but rather whether that statement is contradicted so as to create a genuine issue of material fact.

In the area of medical malpractice the uncontradicted affidavit of an expert witness is generally sufficient to support entry of summary judgment. (Bennett v. Raag (1982), 103 Ill. App. 3d 321, 327, 431 N.E.2d 48; see also Buck v. Alton Memorial Hospital (1980), 86 Ill. App. 3d 347, 359-68, 407 N.E.2d 1067 (Harrison, J., dissenting).) Of course, in medical malpractice cases, with few exceptions, the use of expert testimony is required in order to prove the standard of care which the defendant doctor must meet. (Bennett v. Raag (1982), 103 Ill. App. 3d 321, 326, 431 N.E.2d 48.) Plaintiff has offered no reason to distinguish between a case in which expert testimony would be required at trial with respect to an issue of fact and a case in which such testimony is merely permitted. Plaintiff has not argued that Mostovoy, whom plaintiff engaged as an expert, would be incompetent to testify as to his opinion at a trial of this matter. Accordingly, we hold that the trial court could properly consider Mostovoy’s expert opinion in ruling on the motion for summary judgment.

It is elementary that the issues are raised initially by the complaint and answer and that on a motion for summary judgment a party cannot rely on his pleading in the face of contradictory affidavits. (See Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376, 380-81, 313 N.E.2d 457.) In determining whether there exists a genuine issue of material fact, the court considers the entire record and construes the evidence strictly against the moving party and liberally in favor of the opponent. (Spancrete of Illinois, Inc. v. Brickman (1979), 69 Ill. App. 3d 571, 576, 388 N.E.2d 47.) If the party moving for summary judgment supplies evidentiary facts which, if uncontradicted, would entitle him to judgment, the opposing party cannot rely on his pleadings alone to raise issues of material fact. (In re Estate of Garbalinski (1983), 120 Ill. App. 3d 767, 770, 458 N.E.2d 1065.) Nonetheless, even though the party opposing the motion fails to file counteraffidavits, the movant should not be awarded summary judgment unless the affidavits establish the right to a judgment as a matter of law. (Spancrete of Illinois, Inc. v. Brickman (1979), 69 Ill. App. 3d 571, 576, 388 N.E.2d 47.) Thus, the consequence of failing to file counteraffidavits is that the statements in the affidavits supporting the motion stand as admitted. (Yusuf v. Village of Villa Park (1983), 120 Ill. App. 3d 533, 541, 458 N.E.2d 575.) It therefore follows that the statements in the affidavits relied upon as justifying summary judgment must avoid the theories of recovery set forth by the complaint.

Plaintiff contends that in the instant case Mostovoy’s deposition testimony, although uncontradicted, nevertheless does not entitle defendants to judgment. The question before us thus becomes whether the second amended complaint and the answer thereto created any issues of material fact which were not addressed by the uncontradicted statements in the deposition.

Our review of the record indicates that Mostovoy’s opinion that the cable in question contained no “defects” rebutted the allegation in subparagraph (b) of paragraph 7 that the cable lacked metallurgical integrity. Accordingly, plaintiff could not rely on his complaint to create a genuine issue of material fact but was obliged to present some factual basis that would arguably entitle him to a judgment upon the applicable law. (Yusuf v. Village of Villa Park (1983), 120 Ill. App. 3d 533, 540, 458 N.E.2d 575.) Because plaintiff failed to present a sufficiently contradictory factual basis by affidavit, deposition or other suitable method, summary judgment was properly entered for defendant on this allegation. See Bennett v. Raag (1982), 103 Ill. App. 3d 321, 327, 431 N.E.2d 48.

The expert also testified that the failure of the cable was due to “gross overload” which could have occurred at loads “substantially below” those claimed for the cable. Construing the deposition strictly against the movant and liberally in favor of the opponent, as indeed we must (Spancrete of Illinois, Inc. v. Brickman (1979), 69 Ill. App. 3d 571, 576, 388 N.E.2d 47; Heller v. Sullivan (1978), 57 Ill. App. 3d 190, 194, 372 N.E.2d 1036), it is apparent that Mostovoy’s conclusion that the cable was not “defective” was not tantamount to a conclusion that the cable was not in fact defective within the common meaning of that term, but only that the cable was relatively free from nicks, gouges, and laps in its infrastructure, which would be the result of improper manufacture. Mostovoy’s deposition indicated that these are not the only indicia of improper manufacture and that subsequent testing would be required to determine the cause of the tensile failure. Mostovoy stated that this could have been caused by improper manufacture. Where the facts admit of more than one conclusion, including a conclusion unfavorable to the movant, such facts cannot support summary judgment. (Martin v. American Legion Post No. 784 (1978), 66 Ill. App. 3d 116, 118, 383 N.E.2d 672.) Thus, the allegation of subparagraph (a) of paragraph 7 in the complaint that the cable failed to support a load well within its capacity was not contradicted by the expert’s opinion. Similarly, the allegation in subparagraph (c) of paragraph 7 that the cable was unable to withstand normal wear and tear was not addressed by the expert’s deposition testimony. “The purpose of a summary judgment proceeding is not to try an issue of fact but rather to determine whether there is an issue of fact to be tried [citations], and since the party opposing the motion has the right to trial by jury if there is a genuine issue of fact, the motion should be granted only when the right to it is clear and free from doubt.” (Beverly Bank v. Alsip Bank (1982), 106 Ill. App. 3d 1012, 1016, 436 N.E.2d 598.) Summary judgment was not appropriate for these two issues because genuine issues of material fact existed concerning them. Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005(c).

Defendants argue that summary judgment was properly entered by the trial court because the expert indicated that further testing would not change his opinion. The expert did state that further testing would not change his opinion, but it is clear from the record that by this statement he meant that further testing would not convince him that the cable severed due to a brittle failure rather than a tensile failure. Mostovoy did not indicate that a tensile failure could not be caused by improper manufacture and indeed he stated the opposite to be true. Construing the deposition against the movant (see Heller v. Sullivan (1978), 57 Ill. App. 3d 190, 194, 372 N.E.2d 1036), we conclude that the trial court erred in allowing the motion for summary judgment with regard to the two issues indicated.

Defendants contend that our holding conflicts with the holdings of Coleman v. Verson Allsteel Press Co. (1978), 64 Ill. App. 3d 974, 382 N.E.2d 36 and Mateika v. La Salle Thermogas Co. (1981), 94 Ill. App. 3d 506, 418 N.E.2d 503. Defendants mischaracterize these cases as placing the burden upon the opponent of a summary judgment motion to “come forward with facts, proof, supporting all of the allegations of the complaint.” (Final emphasis added.) In Coleman the defendant filed a motion for summary judgment based on an expert’s written opinion which concluded that the cause of the plaintiff’s injury was a third party’s substitution of control panels on the product. The court held that the plaintiff, who had not filed any affidavits indicating any other reasonably dangerous condition that had existed at the time the press left the defendant’s control, could not avoid summary judgment. The court did not hold, as defendants vigorously maintain, that summary judgments might be entered where uncontradicted facts do not refute all of the theories raised by the complaint. In Coleman, the preemptive nature of the defense set forth by the expert’s opinion, i.e., that the defective condition arose after the press left the defendant’s control, made it incumbent upon plaintiff to introduce some factual support for a conclusion that defendant might be liable to plaintiff. Similarly, in Mateika, plaintiff failed to produce any support for his contention that a defective condition existed in the propane tank at the time that it left defendants’ control.

As this court has indicated, it is the ratio decidendi of a case which forms the basis for application of principles of stare decisis. (Panchinsin v. Enterprise Cos. (1983), 117 Ill. App. 3d 441, 444, 453 N.E.2d 797.) “ ‘A judicial opinion, like a judgment, must be read as applicable only to the facts involved and is an authority only for what is actually decided.’ (People ex rel. Schuler v. Chapman (1939), 370 Ill. 430, 435, 19 N.E.2d 351, 354.)” (Community Renewal Society v. Department of Labor (1982), 108 Ill. App. 3d 773, 79, 439 N.E.2d 975.) The cases relied upon by defendants are distinguishable in that the uncontradicted facts in the instant case, namely, the absence of gouges, nicks, laps, or brittle failures, do not eliminate the viability of plaintiff’s two remaining factual theories of recovery. Thus, our holding does not, as defendants have suggested, do violence to the holdings in Coleman and Mateika.

For the foregoing reasons, the order granting summary judgment is affirmed as to the issue of liability predicated on subparagraph (b) of paragraph 7 of count I of the second amended complaint, and is reversed as to the issues of liability predicated on subparagraphs (a) and (c) thereof. The case is remanded to the trial court for further proceedings consistent herewith.

Affirmed in part; reversed and remanded in part.

LORENZ, J., concurs.


author: JUSTICE SULLIVAN

text:
    DOWNES SWIMMING POOL, INC., Plaintiff-Appellant, v. NORTH SHORE NATIONAL BANK, Trustee, et al., Defendants-Appellees.
    First District (5th Division)
    No. 83—1634
    Opinion filed May 18, 1984.
    Emalfarb & Goble, of Northbrook (Roger C. Goble, of counsel), for appellant.
    Selwyn Zun, Robert W. Gettleman, and James A. Geocaris, all of Chicago (D’Ancona & Pflaum, of counsel), for appellees.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Plaintiff appeals from a judgment for defendant J. Roderick MacArthur (MacArthur) on his counterclaim for the cost of completing and repairing a swimming pool partly constructed by it, contending that (a) having breached the contract by wrongfully terminating it, MacArthur was not entitled to a setoff for the cost of completing the pool; and (b) the trial court erred in awarding damages for breach of warranty where the express warranty relied upon was conditioned on payment in full of the amount due under the contract.

On November 22, 1978, plaintiff and MacArthur entered into a contract for the construction of a swimming pool at MacArthur’s residence for $29,749, the estimated construction period to be “20 to 25 working days and in no event later than 10 days beyond completion of enclosure.” The parties eventually agreed upon a June 8, 1979, completion date, but the construction was still incomplete on October 1, 1979, when MacArthur informed plaintiff that it was to cease work on the project, that he would hire others to complete it, and that the cost thereof would be charged against any balance due plaintiff. At that time, MacArthur had made payments totalling $29,566.62. Plaintiff billed MacArthur for the balance due under the contract and for alleged extras, deducting from the bill credits for work which it had not completed. When no further payments were made, plaintiff commenced the instant action seeking foreclosure of its mechanic’s hen or, in the alternative, recovery on the contract. In their answer, defendants asserted that plaintiff had breached the contract and was therefore not entitled to any recovery, and MacArthur counterclaimed for the cost of completing the pool and for damages allegedly caused by plaintiff’s defective materials and workmanship.

At trial, witnesses for plaintiff testified that construction began in November 1978, with excavation of the site and installation of a concrete shell, but it was understood that no work could be done during the winter months, and that construction would resume in the spring. According to those witnesses, it was originally planned that the pool would be enclosed, necessitating coordination of plaintiff’s work with that of the contractors hired to build the enclosure. However, on April 18, 1979, plaintiff was notified that MacArthur had decided not to enclose the pool, and his architect, Thomas Hickey (Hickey), requested that construction resume immediately, since MacArthur wanted the pool ready for use that summer. It was explained to MacArthur that plaintiff’s work had been scheduled with the understanding that the pool would be enclosed, that its workers were then occupied with other scheduled work, and that, while they would return to MacArthur’s project as soon as possible, it was doubtful that work thereon could recommence until sometime in May. On May 4, 1979, plaintiff’s representative met with MacArthur and Hickey, and it was agreed that plaintiff would complete the work by June 8, 1979, provided that other contractors were on schedule with their work. At that time, the only work remaining to be done by plaintiff was installation of tiles on the floor and sides of the pool, plastering, placement of the pool equipment, and testing of the system.

Plaintiffs witnesses also testified that further delays which were beyond plaintiff’s control prevented completion of the project by June 8. The contractor hired by Hickey to do the concrete deck work around the pool did not complete its work until the first or second week of July, preventing plaintiff from plastering the pool until the middle of that month. Early in June, MacArthur decided to add a spa, and the equipment therefor was ordered but could not be placed until sometime in August when MacArthur and Hickey finally decided where the spa and pool equipment would be housed. After numerous changes, an equipment room was completed in August, and by the end of August all of the pool equipment was installed therein, but it was impossible to make the final connections because the necessary utility lines, which were to be installed by another contractor, were not yet in place. In September, the spa was completed, and all that remained was installation of a pool cover and testing of the system when plaintiff was notified by Hickey that MacArthur was terminating the contract and intended to hire others to complete it. MacArthur was billed for the work done, including extras not covered by the written contract, and credits were given for the work not done; i.e., installation of the pool cover, some incomplete electrical work, and installation of a valve. MacArthur refused to pay the bill, and plaintiff was not notified of any problems with the work nor given the opportunity to correct them.

Witnesses for defendants testified that the pool was originally planned as an outdoor pool, and that the reference in the contract to “enclosure” meant the enclosure of the pool equipment, not enclosure of the entire pool. There was some discussion of enclosing the pool in the early months of 1979, but the idea was abandoned when it appeared that the cost would be prohibitive. At a meeting in May, plaintiff’s representative was informed that MacArthur wanted the pool completed as quickly as possible, and he was assured that it would be done by June 8; however, the pool was not completed as promised, and plaintiff failed to comply with repeated demands that workers be sent to finish the project. Whenever such a demand was made, workmen would appear for a day or two, then no further work would be done for two or three weeks, until MacArthur or Hickey called and again insisted that plaintiff return to the jobsite. These witnesses denied that plaintiff’s work was delayed by other contractors, by the unavailability of parts and equipment, or by minor changes which MacArthur requested.

Defendants’ witnesses further testified that because of plaintiff’s repeated delays and failure to comply with demands that it resume work, MacArthur terminated the contract and hired others to complete the work in the spring of 1980. An architect engaged to supervise the completion stated that when he first saw the pool in late January 1980, it was not covered, there was water standing in the deep end of the pool, and the plaster finish was cracked, blistered, and peeling on all four walls. The damage could not be repaired by patching, and it was necessary to chip and sandblast the original plaster and apply a new coat of plaster. Other witnesses testified that the damage to the plaster was the result of improper application thereof to the concrete shell. They explained that plaster should be applied as soon as possible after the gunite shell (a concrete mixture applied by spraying) is in place to ensure a clean undersurface and proper bonding. In their opinion, since the plaster was not applied until more than six months after the concrete was installed, plaintiff should have sandblasted the concrete and applied an acid wash prior to plastering, or should have used a heavy acid wash and applied a bonding agent. Those witnesses also opined that mixing the plaster with dye, which was added to achieve a dark surface, compounded the problem by weakening the bonding of the plaster to the concrete.

Defendants’ witnesses acknowledged that if a pool is not properly cared for through the winter months, by keeping it partially filled, cracks can develop as a result of the pressure placed on the concrete shell by the freezing of surrounding ground water. However, they asserted that the damage caused would be a cracking of the concrete shell with matching cracks in the plaster surface. When MacArthur’s pool was sandblasted, they discovered that only the plaster was cracked; the concrete shell was in good condition with the exception of a single crack in the floor of the pool at the deep end, an area which had been covered by water during the winter months. Furthermore, there was no difference in the condition of the plaster in areas which had been protected by water and those which had not. These witnesses also testified that it was necessary to make slight changes in the plumbing system designed by plaintiff; to install a different type of filter because the filter provided by plaintiff was inadequate; to reposition the equipment for easier access in servicing; and to provide a safety cover, diving board, missing pool cleaning equipment, a line to fill the pool, and lights. They also stated that when the equipment provided by plaintiff was tested, it was discovered that plaintiff had crossed some of the water lines, making it necessary to break open the concrete deck to repair them. Finally, when the pool was filled, several leaks appeared and had to be repaired.

In rebuttal, witnesses for plaintiff acknowledged that the gunite shell was not sandblasted prior to plastering, and that plaintiff had not applied a bonding agent. However, they asserted that such measures are necessary only when replastering an old pool, and offered the opinion that the damage to the plaster in the instant case was the result of MacArthur’s failure to properly winterize the pool by keeping it partially filled and covered.

The trial court found that plaintiff’s failure to complete the project by June 8, 1979, was excused by delays beyond its control in the work of another contractor as well as by the numerous changes in plan occasioned by MacArthur and Hickey, some of which occurred as late as August 23, 1979. It further found that plaintiff had provided labor and materials, including extras, having a net value of $39,509.40, resulting in an unpaid balance due of $9,942.78. With regard to MacArthur’s counterclaim, the trial court found that various items required by the contract were not completed, and that the defective plaster, the leaks, and other problems with the system were covered by an express warranty, which provided in relevant part:

“The pool structure is guaranteed against cracks which may cause leaks for a period of five years from the date of completion. The Contractor warrants other work performed under this agreement to be free from defects in material and workmanship for a period of one year from the date of completion. *** The Contractor also is not responsible for damage resulting from improper operation of the equipment, lack of care of the equipment, or improper winterizing of the pool and equipment. This warranty is contingent upon full payment of the amount required under the agreement.”

The trial court therefore allowed the following items as a setoff against the amount due plaintiff for the work performed:

Replastering: $10,399.00
Pool equipment changes: 2,550.00
Repairing crossed lines: 1,182.60
Repairing leaks: 1,006.85
Installing check valve and repairing leaks: 100.00
Starting boilers and checking system: 60.00
Total setoff: $14,228.45

Judgment was entered for MacArthur on his counterclaim in the amount of $4,295.67, and this appeal followed.

Opinion

Before reaching the merits of plaintiff’s appeal, we must address MacArthur’s contention that the issues presented here were waived by plaintiff’s failure to raise them before the trial court. He correctly asserts that while an appellee may defend a judgment by any argument and upon any basis appearing in the record, whether or not it was advanced at trial (Village of Arlington Heights v. National Bank (1977), 53 Ill. App. 3d 917, 369 N.E.2d 502), and we may affirm a correct decision for any reason appearing in the record, regardless of the basis relied upon by the trial court (U-Haul Co. v. Town of Cicero (1980), 87 Ill. App. 3d 915, 410 N.E.2d 286), an appellant may not raise as grounds for reversal on appeal any defense not interposed in its answer before the trial court (Mendelson v. Lillard (1980), 83 Ill. App. 3d 1088, 404 N.E.2d 964), even where it appears that the evidence presented would have supported that defense (Consoer, Townsend & Associates v. Addis (1962), 37 Ill. App. 2d 105, 185 N.E.2d 97).

Our function in reviewing a trial court’s decision is to determine whether it correctly decided the issues before it, and as we have noted, “[t]he issues are determined from the pleadings and the evidence. To have evidence without pleading an issue is just as fatal as pleading an issue and not supporting it with evidence. Both are essential and each must conform to the other.” (Consoer, Townsend & Associates v. Addis (1962), 37 Ill. App. 2d 105, 110, 185 N.E.2d 97, 99.) Quite simply, a trial court cannot err on an issue which has not been presented to it for decision; for that reason, defenses not raised are waived.

We have carefully examined plaintiff’s answer to MacArthur’s counterclaim, and note that it admitted therein that certain work and materials were not provided, denied that it left other work unfinished, and denied MacArthur’s allegation that its workmanship and materials were defective. The trial court found in MacArthur’s favor on these factual questions, and plaintiff does not dispute those findings on appeal. Instead, it now contends only that recovery on the counterclaim was barred by MacArthur’s breach of the contract, and that MacArthur could not recover on the express warranty because he failed to pay the full contract amount as required by the terms thereof. These issues, however, were not raised in plaintiff’s answer, and we are unable to determine whether they were even argued, since the record on appeal does not include any of the arguments made by counsel. Under these circumstances, it appears that we would be justified in deeming the issues waived. Nevertheless, we have considered plaintiff’s contentions and find them to be without merit, even assuming arguendo that MacArthur’s conduct in terminating the contract was unjustified.

Concerning the first of these contentions, namely, that MacArthur may not bring suit on the contract because he wrongfully repudiated it, plaintiff cites several cases holding that a party which breaches an agreement loses any benefits due it thereunder, and may not recover damages allegedly resulting from the other party’s failure to complete the contract. (See, e.g., Builder’s Concrete Co. v. Fred Faubel & Sons, Inc. (1978), 58 Ill. App. 3d 100, 373 N.E.2d 863; Robinhorne Construction Corp. v. Snyder (1969), 113 Ill. App. 2d 288, 251 N.E.2d 641.) Therefore, it posits, having breached the contract, MacArthur could not take advantage of the express warranty therein, nor was he entitled to recover any costs incurred in completing the work, since it had no duty to continue, nor could it have done so, once MacArthur terminated the contract.

If MacArthur’s counterclaim for a setoff in the instant case were predicated on a breach of contract theory, we would agree that application of the above rule might bar recovery of the cost of completing the work. However, we find the above cases distinguishable, since the damages sought here were allegedly incurred, not because MacArthur refused to allow plaintiff to finish the project, but because the work actually done was not completed in a good and workmanlike fashion. Thus, the damages were not a result of any breach by MacArthur in terminating the contract prior to completion, and he would not be barred from recovery by the rule that one may not recover damages caused by his wrongful repudiation of a contract. On the other hand, it does appear that MacArthur could not rely on the express warranty contained in the contract, which is “contingent upon full payment of the amount required” under the agreement, since it is undisputed that MacArthur failed to pay almost $10,000 of what would have been due under the agreement. Nevertheless, it is our view that the setoff allowed by the trial court was proper under other theories of law.

In this regard, we initially note that under either count of its complaint, plaintiff was entitled to recover only for the value of work actually done and materials actually provided. The first count, seeking foreclosure of a mechanic’s lien, was based on section 4 of “An Act relating to contractors’ and material men’s liens ***” (Ill. Rev. Stat. 1979, ch. 82, par. 4), which provides that, where the owner of the land has wrongfully breached the contract, “the contractor shall be entitled to enforce his lien for the value of what has been done, and the court shall adjust his claim and allow him a lien accordingly.” (Emphasis added.) Thus, plaintiff was entitled to a lien only for the work which it had performed. (See, e.g., Contract Builders Service Corp. v. Eland (1981), 101 Ill. App. 3d 366, 428 N.E.2d 178; Miller v. Reed (1973), 13 Ill. App. 3d 1074, 302 N.E.2d 131.) Similarly, under count II of the complaint seeking recovery on the contract, plaintiff was entitled to recover only for the work actually done. The parties’ contract provided:

“Contract price: *** $29,749.00 Payable 10% on acceptance, 15% on completion of excavation, 30% on placement of gunite shell, 25% on pouring of deck, balance due on completion, except in the event of stoppage by the Owner *** Owner shall pay this Contractor on billing for all work then performed and for all material then delivered.” (Emphasis added.)

The contract also has a liquidated damages provision, which states that “[i]n the event Owner(s) shall in any respect fail to perform the terms or prevent the performance of this contract, he (they) shall there upon be liable to the Contractor in the amount of any out-of-pocket expenses theretofore paid or incurred by the Contractor in reliance upon this agreement as liquidated damages for the Owner[’s] *** breach.”

Plaintiff apparently understood that it was not entitled to recover the full contract price, but only the value of work performed, since it made several deductions in the form of credits for uncompleted work when it presented the final bill to MacArthur for payment, and did not seek to recover therefor in this action. However, in addition to the work for which credits were given, it appears from the evidence, and from plaintiff’s admissions in response to the counterclaim, that other work and materials called for in the contract were not provided, and plaintiff made no adjustments therefor in its claim; in effect, it sought to recover for some items of work which it did not do. For example, under the contract, plaintiff was to furnish and install a diving board; to install lights; to furnish various pool maintenance items; to complete installation of the spa; and to start up and test the system. Plaintiff was not entitled to any recovery for these items, since it did not perform them, and further adjustments therefore should have been made by plaintiff in its claim. It did not do so, nor was any testimony presented from which the trial court could determine what portion of the amount sought was attributable to these unperformed items. The only evidence on value presented by plaintiff was the contract price, which represented the value the pool would have had if completed, not the value of what was actually done. Thus, the trial court had to rely on evidence presented by MacArthur with regard to the cost of completing the work in order to determine what plaintiff was entitled to recover for the work it did do. The setoff was proper, then, not as compensation to MacArthur for having to complete the work, but as an adjustment to plaintiff’s claim for the value of the work done, since under either theory that was all it could recover.

It is further our view that, contrary to plaintiff’s assertions, MacArthur was entitled to a setoff for the cost of repairing defects in the material and workmanship provided by plaintiff, regardless of the applicability of the express warranty contained in the contract. It has been said that “one who contracts to perform construction work impliedly warrants to do the work in a reasonably workmanlike manner” (Dean v. Rutherford (1977), 49 Ill. App. 3d 768, 770, 364 N.E.2d 625, 626-27), and that the failure to so perform constitutes a breach of contract (Mayfield v. Swafford (1982), 106 Ill. App. 3d 610, 435 N.E.2d 953). Under the common law, literal performance was required in order to sustain recovery on a contract, but that rule has been ameliorated in building and construction cases, with courts now holding that “if the owner got substantially the thing for which he bargained, he must pay for it, but he [is] allowed a credit as compensation for the deficiencies existing in what he got as compared to what strict performance would have given him.” (Watson Lumber Co. v. Guennewig (1967), 79 Ill. App. 2d 377, 397, 226 N.E.2d 270, 280.) The same rule has been applied in actions to foreclose a mechanic’s lien, allowing the defendant-owner a setoff for the cost of repairing defects in the work done. In Dean v. Rutherford (1977), 49 Ill. App. 3d 768, 770, 364 N.E.2d 625, 627, the court noted that “[t]he failure of a contractor to substantially perform the contract in a workmanlike manner entitles the owner against whom a mechanic’s lien is sought to a setoff for damages incurred by the failure to perform in a workmanlike manner.” Similarly, in J-M Builders & Supplies Corp. v. McIntyre (1978), 56 Ill. App. 3d 714, 372 N.E.2d 420, the court found that the contractor had substantially performed and was entitled to a mechanic’s lien, but allowed the plaintiff a setoff for the cost of correcting defects, stating that it “[had] examined the authorities cited *** and [found] no authority for the contention that a finding of substantial performance on the part of a builder precludes the giving of a credit for repairing defects. Just the opposite is the case in Illinois.” (56 Ill. App. 3d 714, 715, 372 N.E.2d 420, 421.) Moreover, at least one court has allowed recovery, not merely as a setoff to the contractor’s suit for a mechanic’s lien or breach of contract, but on an original action by the owner predicated on breach of an implied warranty of performance in a workmanlike manner. See Mayfield v. Swafford (1982), 106 Ill. App. 3d 610, 435 N.E.2d 953.

Here, plaintiff does not dispute the trial court’s finding that the defects in question were the result of poor workmanship or materials, and it is apparent from the above-cited cases that even if MacArthur could not rely on the express warranty contained in the contract, allowance of a setoff for the cost of repairing defects was proper, either under the doctrine of substantial performance, or on the theory that plaintiff had breached its implied warranty of good workmanship. We further note that it was this theory, not the express warranty, which was the basis for MacArthur’s counterclaim, and regardless of the reasoning employed, the trial court’s decision was proper and therefore will not be disturbed.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

LORENZ and WILSON, JJ., concur.

      This opinion was adopted as the opinion of the court prior to the death of Mr. Justice Wilson.


author: JUSTICE PERLIN

text:
    JOHN P. NISBET et al., Plaintiffs-Appellees, v. JOHN YELNICK, Defendant-Appellant.
    First District (2nd Division)
    No. 83—155
    Opinion filed May 22, 1984.

      Joseph A. Malek & Associates, of Chicago (Joseph A. Malek and Sean M. Lazzari, of counsel), for appellant.
    Louis F. Cainkar, Ltd., of Chicago (Vincent Cainkar and Michael G. Cainkar, of counsel), for appellees.
   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.

We agree with defendant that in an action for breach of the implied warranty of habitability, Illinois courts have generally held that the measure of damages is the cost of correction or, alternatively, the reduction in value of the property caused by the defects. (Park v. Sohn (1982), 89 Ill. 2d 453, 433 N.E.2d 651.) However, we are aware of no case which has rejected “loss of use” as an additional measure of damages in a factually appropriate case. Loss of use has been applied in at least one instance where the defects in the home were' so extensive that the entire home was, in fact, uninhabitable. (Durant v. Surety Homes Corp. (7th Cir. 1978), 582 F.2d 1081.) Further, our supreme court, in recognizing this cause of action in Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, 389 N.E.2d 1154, likened it to an action for breach of warranty under the Uniform Commercial Code. The code defines a buyer’s damages to include consequential damages resulting from the seller’s breach to include:

“(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and
(b) injury to person or property proximately resulting from any breach of warranty.” Ill. Rev. Stat. 1983, ch. 26, par. 2 — 715.

In Illinois damages for loss of use are generally allowed where plaintiff has been deprived of the use of personal property. The measure of damages in such instance is the reasonable rental value of similar property for the period of deprivation. (See Kalal v. Goldblatt Brothers, Inc. (1977), 53 Ill. App. 3d 109, 368 N.E.2d 671; Plesniak v. Wiegand (1975), 31 Ill. App. 3d 923, 335 N.E.2d 191; Krick v. First National Bank (1972), 8 Ill. App. 3d 663, 290 N.E.2d 661.) Our research reveals but one case in Illinois involving injury to a building in which loss of use damages were addressed; the court there indicated such was an appropriate measure of damages. City of Chicago v. Rust (1904), 117 Ill. App. 427.

As stated in Roark v. Musgrave (1976), 41 Ill. App. 3d 1008, 1011-12, 355 N.E.2d 91:

“It is hornbook law that an award of damages aims first and foremost at compensation. The goal is to place the injured party as nearly as reasonably possible in the same position that he would have occupied had injury not been inflicted. The measure of damages is peculiarly a question for the trier of fact, based on a proper consideration of all relevant facts. So-called ‘rules’ as to the proper measure of damages in a particular type of case are guides only, and should not be applied in an arbitrary, formulaic, or inflexible manner. [Citations.]”

Furthermore it has been held:

“When a landowner has shown that he has suffered compensable injury, we believe it is necessary to examine the exact interest harmed before answering the question of what amount is necessary to fully compensate for the harm.” Myers v. Arnold (1980), 83 Ill. App. 3d 1, 7, 403 N.E.2d 316.

In the instant case, while the damages for cost of repair will allow plaintiffs to make the necessary corrections to the home, this alone does not serve to place plaintiffs in the position in which they would have been but for the wrongful acts of defendant. It does not recompense plaintiffs for their loss of use of a substantial portion of their home for several years.

While proof of the measure of damages for the loss of use of a portion of a house may be difficult, such difficulty is not a sufficient basis to deny damages. “A party cannot be permitted to escape liability for his wrongful acts simply because the plaintiff’s damages are difficult to prove. The ‘best evidence’ which the nature of the subject matter will permit in such cases is sufficient to sustain a jury award. [Citations.] This is clearly the correct rule where the verdict of the jury is not excessive. [Citations.]” (Tri-County Grain Terminal Co. v. Swift & Co. (1969), 118 Ill. App. 2d 313, 322, 254 N.E.2d 311.) Absolute certainty concerning the amount of damages is not required to justify recovery where existence of the damages is established. The evidence need only tend to show a basis for computation of damages with a fair degree of probability. Posner v. Davis (1979), 76 Ill. App. 3d 638, 395 N.E.2d 133.

In our opinion, an award for damages for loss of use of a home, or portion thereof, in addition to damages for the cost of correcting the home’s defects, is proper when supported by the evidence.

Although more precise evidence relating to the value of the plaintiffs’ basement, such as evidence of the size of the basement in relation to the remainder of the home, or current apartment rental values in the area, might have been introduced here, we find the evidence presented by plaintiffs did provide a reasonable basis for the award of damages for loss of use of the basement. Plaintiffs testified to mortgage payments of $280 per month. In addition to the basement, the home has three bedrooms, living room and dining area. One reason for plaintiffs’ purchase of the home was having a basement room in which their two children, then six and three years old, could play. Plaintiffs testified that prior to buying the home, they paid a rental of $150 per month for an apartment.

At closing argument, plaintiffs’ attorney stated that in light of these figures, and the generally known rental cost of a modest motel room, a damage award of $2.50 per day — or approximately $75 per month — for plaintiffs’ loss of use of their basement would be reasonable. Based on this evidence, the jury determined that plaintiffs had suffered damages in the amount of $5,000 and rendered this award. We believe the damages here awarded, in light of the evidence, was not error.

For these reasons, the judgment appealed from is affirmed.

Affirmed.

STAMOS and DOWNING, JJ., concur.

      This approach has been adopted also in Washington State’s model statute. See Washington’s New Home Implied Warranty of Habitability — Explanation and Model Statute, 54 Wash. L. Rev. 185, 220 (1978).