Finke v. Woodard

This action was brought by plaintiffs, Gary and Teresa Finke, to recover damages and an order of rescission as a result of defects in a new home built and sold by defendant Elmer Woodard. Among the issues to be considered in this appeal are whether plaintiffs' suit is barred by section 13-214 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13-214) or laches, whether plaintiffs are entitled to rescind the sale, and the appropriate measure of restitution following a rescission of the sale. We affirm the award of rescission, but reverse and remand this cause for appropriate findings on the proper amount of restitution to which plaintiffs are entitled. At trial, plaintiffs testified that on April 23, 1977, they executed a purchase agreement with defendant for the sale of a new house under construction by him in Heather Hills subdivision near Champaign. Plaintiffs paid $52,050 for the house, moved in on June 16, 1977, and continued to occupy it at the time of trial. Plaintiffs testified that they began to experience problems with the home upon taking possession, leading them to file this lawsuit in which they sought recovery on theories of implied warranty of habitability, negligence, gross negligence, and fraud. The plaintiffs testified to a number of complaints within the home: the water conditioner was installed backwards causing filtering chemicals to be discharged, the dishwasher was improperly installed allowing water from the garbage disposal to drain into the dishwasher, a septic system malfunctioned forming a pool of effluent in the backyard, the interior walls of the house were weak and separated from the ceiling, nails continuously popped out in various locations in the house, doors would not close, a crack developed in the concrete floor of an outside storage shed, and a portion of the bathroom plumbing broke loose from its connection causing water damage to the floor and tile. The jury found for plaintiffs on theories of warranty, negligence, and gross negligence and returned a not guilty verdict on the fraud count. The jury also awarded plaintiffs both rescission of the sales contract and deed and damages.