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In March of 1996, Ronald and Donna Overton entered into a contract to purchase alot from Kingsbrooke Development, Inc. (Kingsbrooke). Unbeknownst to the Overtons,Kingsbrooke had placed a large quantity of fill dirt on the lot prior to the sale. After the sale,the Overtons disputed the suitability of the lot and requested their money back. Kingsbrookedenied the request. The Overtons proceeded to file suit and requested attorney fees. Priorto the trial, the claims against Kingsbrooke were severed from the remaining claims. Thecourt then granted a rescission of the contract based on a breach of an "implied warranty ofsuitability" and awarded damages to the Overtons, but it denied their request for attorneyfees. On appeal, Kingsbrooke argues that (1) the court's reliance on the implied warrantyof suitability was both contrary to Illinois law and against the manifest weight of theevidence and (2) granting the rescission was an abuse of discretion because it was notsupported by either the facts or the law. The Overtons argue that the court erred in notawarding attorney fees under either the language of the contract or the Consumer Fraud andDeceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1996)). We affirm thedecisions of the trial court.

Kingsbrooke, a corporation in the business of developing residential subdivisions,created Kingsbrooke Subdivision in Glen Carbon, Illinois, and sold lots in that subdivisionfor residential building. The Overtons purchased Lot 38 after viewing this lot with theirbuilder, Gregory Sheahan. They hired Burns Excavating to stake out and excavate. In itsinitial staking of the house, Burns Excavating made a mistake that was resolved afterKingsbrooke's engineer inspected the property.

When the Overtons began excavating for the basement, they found a large quantityof fill dirt on the lot. The fill dirt was throughout the lot; it contained brick, wood, and otherdebris and was more than 12 feet deep in some areas. To determine whether the lot in itsexisting condition was suitable for building, the Overtons hired SCI Engineering-a firm thatpractices geotechnical environmental engineering, construction services testing, and soilcompaction testing. SCI Engineering had previously done work for Kingsbrooke.

Mark Harmes, an engineer with SCI Engineering, was one of the engineers whoevaluated the Overtons' lot and testified at the trial. He stated that most residential structurescan tolerate an inch or two of settlement. Settlement beyond this increases the risk ofstructural damage. The prediction for the settlement of fill dirt, Harmes testified, is basedon the density level of the soil. Density testing measures the number of soil particles withinan amount of space by determining how many pounds of soil there are within a cubic foot. The field density then is stated as a percentage of the maximum laboratory value. Harmestestified that the acceptable engineering compaction standard was a 95% rate, which ensuresa settlement of less than an inch. Kingsbrooke, however, presented evidence that the Villageof Glen Carbon had approved its subdivision plans setting forth a 90% compaction densityrate. Several of the soil samples from the Overtons' lot showed compaction rates lower than95%, but all relevant rates were greater than 90%.

Harmes had also issued two reports detailing other observations based on the testingof the Overtons' soil. He noted that there was approximately 6 feet of fill dirt in the frontportion of the lot and approximately 20 feet in the rear. He also noted that the fill dirt hadbeen placed without engineering supervision and that no compaction tests had beenperformed. Based on his observations, Harmes concluded that the fill was not compactedproperly for the support of the proposed structure. He informed the Overtons that furthersteps would be necessary before they could construct a residence on that lot.

Harmes proposed two options to achieve a suitable building site. The first option,called an "engineered fill," required that the existing fill dirt be excavated, that foreign debrisbe removed, and that the dirt be dried and recompacted to a 95% density rate. The secondoption would be to extend the building's foundation down to virgin soil with piers.

After consulting with their builder, the Overtons decided to attempt an engineeredfill. However, the high moisture content of the soil made this option unworkable. TheOvertons abandoned the second alternative, piering, after a piering contractor refused thejob. At this point, Sheahan (the builder) withdrew from the project because of concernsabout the building site. The Overtons then requested a refund, which Kingsbrooke refused. The Overtons proceeded to sue for a breach of the warranty of habitability, a breach of theimplied warranty of fitness for a particular purpose, consumer fraud, and injunctive relief. Additionally, they amended the complaint to include a claim for rescission.

At the trial, David Foreman, who is one of Kingsbrooke's principals and has been inthe excavating business for years, stated that he personally did the excavating for thedevelopment. He described how he looks at the plans and "cuts and fills" the site accordingto those plans. The process involves moving dirt from the high places and filling in the lowplaces on the site to get the desired grade. Once the fill dirt is in place, he takes a compactorand runs over it multiple times until he thinks it is sufficiently compacted. Neither Foremannor anyone else at Kingsbrooke had an engineer do a soil density test to determine whetherthe fill had been compacted to a density rate that would be suitable for building a residence. Testimony from Kingsbrooke principals indicated that the firm was aware of thepotential problems created by the presence of fill dirt on a construction site. When Foremanwas asked what he discloses to buyers about the presence of fill dirt on a lot, he stated, "Idon't mention nothing unless they ask me, and I tell them, [']yes there is fill on there.['] " Headmitted that when a contractor finds out that a lot contains fill dirt, the contractor normallydoes something extra to prepare the site for construction. Kingsbrooke admitted that severalother homes on adjacent lots, built on fill dirt, required additional foundation support. Thesubdivision plans for Kingsbrooke were prepared by Sherril & Associates. John Dutton,vice president of Sherril & Associates and the project manager for this Kingsbrookedevelopment, stated that he would not build a house on a fill dirt area, even if it werecompacted, unless he could first get to virgin soil. Additionally, he stated that before hemade a decision whether to build a residence on a lot, he would want to know if 10 to 12feet of fill dirt were on it.

The Overtons had no experience in constructing homes. They never asked aboutwhether fill dirt was on the lot, nor did anyone at Kingsbrooke inform them of fill dirt onthe lot. No mention was made of the need for piering or other foundation support. DonnaOverton testified that she would not have entered into the contract if someone had informedher that piering or recompacting the soil would be necessary in order to build a house on thelot.

The Overtons requested attorney fees under the terms of the sales contract, whichKingsbrooke moved to strike. Prior to the trial, the claims against Kingsbrooke weresevered from the remaining claims. The court then granted a rescission of the contract basedon a breach of an "implied warranty of suitability" and awarded damages to the Overtons. The court denied the Overtons' request for attorney fees. Kingsbrooke appeals the grant ofthe rescission, and the Overtons cross-appeal the denial of attorney fees.

We first note that the parties assume, and we agree, that despite the trial court's usageof the phrase "implied warranty of suitability," its decision was actually based upon the"implied warranty of habitability." Thus, our analysis proceeds based on the doctrine of animplied warranty of habitability, not suitability.

We believe that a brief historical overview of the evolution of the implied warrantyof habitability is necessary to understand the territory. In the beginning, there was caveatemptor. Under the common law theory of "the buyer beware," the buyer often had noprotection against defects that his untrained eye could not catch. To avoid the unjust resultsof caveat emptor and merger, the theory of an "implied warranty of habitability" slowlybegan evolving to protect the buyer under such circumstances.

In Illinois, the "implied warranty of habitability" originated in landlord-tenant law andsince then has continually been expanded in its application. It was first expanded to the saleof new homes in Petersen v. Hubschman Construction Co., 76 Ill. 2d 31, 389 N.E.2d 1154(1979). The next year, the court in Tassan v. United Development Co., 88 Ill. App. 3d 581,587, 410 N.E.2d 902, 909 (1980), held that the warranty applied against a developer/sellerfor common areas of condominium owners' residences. But in Kramp v. Showcase Builders,97 Ill. App. 3d 17, 422 N.E.2d 958 (1981), the court refused to extend the warranty beyondthe builder/seller-buyer relationship, while at the same time holding that the warranty didapply to a defective septic system in a subdivision. Next, in Redarowicz v. Ohlendorf, 92Ill. 2d 171, 441 N.E.2d 324 (1982), the warranty was extended to a subsequent buyer, whodid not have privity with the original developer/builder. In Briarcliffe West TownhouseOwners Ass'n v. Wiseman Construction Co., 118 Ill. App. 3d 163, 454 N.E.2d 363 (1983),the court found that the buyers had specifically relied on the expertise of the builder/sellerand, the court expanded the warranty to common land. Soon after that, in Lehmann v.Arnold, 137 Ill. App. 3d 412, 484 N.E.2d 473 (1985), the court held that the impliedwarranty of habitability was not applicable to the sale of an unimproved, vacant lot. InVonHoldt v. Barba & Barba Construction, Inc., 175 Ill. 2d 426, 677 N.E.2d 836 (1997), thecourt again extended the warranty, this time to subsequent buyers for latent defects in anaddition to the home.

In the most recent Illinois Supreme Court decision analyzing the implied warranty ofhabitability, Board of Directors of Bloomfield Club Recreation Ass'n v. Hoffman Group,Inc., 186 Ill. 2d 419, 712 N.E.2d 330 (1999) (Bloomfield Club), the majority refused toapply the warranty to a commonly held clubhouse that contained defects in a residentialdevelopment because it did not affect the habitability of the individual parties' residences. In two separate dissents, however, three of the justices expressed their strong disagreementwith the majority because the opinion failed to follow the rationale of public protection setforth in Petersen. Also of interest to the instant case is that the Bloomfield Club courtdistinguished the Tassan case (which held that the warranty applies to a developer/seller)on the grounds that in Tassan, unlike Bloomfield Club, the defects interfered with thehabitability of common areas of the condominium residences. Bloomfield Club, 186 Ill. 2dat 429, 712 N.E.2d at 336.

Kingsbrooke argues both that (1) the application of an implied warranty ofhabitability in a case such as this would be contrary to Illinois law and (2) even if the impliedwarranty could be extended to this situation, the facts of this case do not support a findingof liability.

We do not view the application of an implied warranty of habitability to this case ascontrary to Illinois law. One of the underlying principles in Petersen is a concern for buyerswho, because their lack of expertise prevents them from determining whether the homes theybuy contain latent defects, depend on sellers who do possess the expertise to make thosedeterminations. Petersen, 76 Ill. 2d at 40, 389 N.E.2d at 1158. Although we recognize thatthis case does not involve an existing home, we still believe it to be appropriate for theapplication of the doctrine since the situation involves the habitability of a prospective homeunder construction. Further, Illinois courts have already extended the warranty to latentdefects in land. See Briarcliffe West Townhouse Owners Ass'n, 118 Ill. App. 3d at 167, 454N.E.2d at 365; see also Kramp, 97 Ill. App. 3d at 20, 422 N.E.2d at 960-61 (defects in septicsystem); Tassan, 88 Ill. App. 3d at 584, 410 N.E.2d at 906 (inadequate surface waterdrainage in the front of the building).

Kingsbrooke relies on the holdings in Lehmann and Kramp to support its contentionthat the doctrine of the implied warranty of habitability is not applicable to this case. In ouropinion, the holdings in both Kramp and Lehmann should be narrowly construed. Krampinvolved a faulty septic system allegedly caused by inadequate soil conditions. Theplaintiffs brought suit against the developer, although the developer was not the party whohad sold the land to the plaintiffs. The court held that the Petersen rationale would extendthe doctrine of the implied warranty of habitability to include defects in septic systemsarising from unsuitable soil conditions including subsurface conditions. Kramp, 97 Ill. App.3d at 19, 422 N.E.2d at 960. The court, however, refused to apply the doctrine to thedefendant developers. We believe that the crux of the Kramp holding derives from the factthat there was no seller-buyer relationship. "In the case at bar the record discloses that nobuilder-vendor to vendee relationship exists between the defendants and the plaintiffs. Instead it appears that there were several successors in title to the property[,] which waseventually built upon and sold by Showcase Builders, not a party to this appeal, to theplaintiffs." Kramp, 97 Ill. App. 3d at 21, 422 N.E.2d at 962. Likewise, Lehmann turns onthe factual scenario of a sale of unimproved land by the owner to a builder who then soldthe land to the plaintiffs. Under those circumstances the court held that it was unfair to holdthe original seller accountable under a theory of the warranty of habitability, since theplaintiffs had relied on the expertise of the builder rather than the expertise of the originalseller of the land. Lehmann, 137 Ill. App. 3d at 417, 484 N.E.2d at 477. We do not findeither Kramp or Lehmann controlling for our decision in this case. In the present case thereis no issue of accountability without dependency: Kingsbrooke is both the one who madeimprovements to the lot-which the Overtons contend amount to latent defects-and the onewho sold the lot directly to the Overtons. The court in Tassan reasoned that it was equitableto hold the developer/seller liable under the warranty when the same dependencyrelationship existed in Tassan and Petersen-in Tassan between the developer/seller and thebuyer and in Petersen between the builder/seller and the buyer. Tassan, 88 Ill. App. 3d at588, 410 N.E.2d at 908.

We, too, believe that the same public policy concerns apply for the protection of abuyer from a developer/seller as those that apply for the protection provided to buyers inPetersen and its progeny. We therefore hold that a buyer has a cause of action for a breachof an implied warranty of habitability against a developer/seller for latent defects inimproved land.

Alternatively, Kingsbrooke argues that if an implied warranty of habitability isapplicable to this case, the facts do not support liability. Kingsbrooke claims that it merelysold the Overtons a vacant lot and had no control over the construction on that lot. We donot agree with Kingsbrooke's claim that Lot 38 was just a vacant lot. Kingsbrooke hadsignificantly changed the lot by hauling in and moving dirt to fill in and level the low places. Kingsbrooke had literally designed and fashioned the topography of the lot, presumably forthe sole purpose of creating sales. These actions taken by Kingsbrooke altered the naturalstate of the lot and clearly qualify as improvements. See Briarcliffe West TownhouseOwners Ass'n, 118 Ill. App. 3d at 166, 454 N.E.2d at 365.

Kingsbrooke asserts that there is no support for the trial court's conclusion that theneed for additional foundation support is a latent defect. Kingsbrooke argues that the lotwas sold for the construction of a residence and that it was suitable for that purpose.

The developer impliedly warranted that the lot was suitable for normal residentialconstruction. The Overtons' expert testified that there was a need for additional foundationsupport, which is not considered normal construction. John Dutton, vice president of Sherril& Associates and project manager for this Kingsbrooke development, stated that he wouldnot build a home on fill dirt unless he could first reach virgin soil. Even though theOvertons visually inspected the lot before purchasing it, it was not possible to know theextent of the fill dirt by a visual inspection. "A latent defect has been defined as one which,in the circumstances of the case, could not have been discovered by the exercise of ordinaryand reasonable care." Tassan, 88 Ill. App. 3d at 590, 410 N.E.2d at 910. The Overtons werejust ordinary people with no expertise in home building; they had no reason to know orexpect that there was a substantial amount of fill dirt on the lot. Kingsbrooke, of course, hadthe information but chose not to reveal it to the buyers. Had Kingsbrooke disclosed theamount of fill dirt, the Overtons would have had no claim that there was a latent defect. Theamount of the fill dirt is what made it necessary to employ additional foundation support toreach virgin soil. We agree with the trial court's determination that the amount of fill dirtwas a latent defect in the property.

Rescission is an equitable remedy that may be appropriate when there has been abreach of the implied warranty of habitability. See Finke v. Woodard, 122 Ill. App. 3d 911,462 N.E.2d 13 (1984). Kingsbrooke argues that the trial court abused its discretion ingranting a rescission in this case because (1) the Overtons cannot claim that a mistake wasmade despite the exercise of reasonable care, (2) it is impossible to place the parties in statusquo ante, and (3) the Overtons cannot show that a substantial nonperformance or asubstantial breach occurred.

We disagree with Kingsbrooke's reliance on People ex rel. Department of PublicWorks & Buildings v. South East National Bank of Chicago, 131 Ill. App. 2d 238, 266N.E.2d 778 (1971), in support of its contention that the rescission was improper because theOvertons failed to prove that a mistake had occurred despite the exercise of reasonable care. South East National Bank of Chicago was decided before Petersen and is not an implied-warranty-of-habitability case. For a rescission, Petersen and its progeny do not require proofthat a mistake occurred. Under the implied-warranty-of-habitability theory, "reasonablecare" is a question of fact that relates to the determination of whether a defect is patent orlatent. The latter is one that could not have been discovered by reasonable care. Tassan, 88Ill. App. 3d at 590, 410 N.E.2d at 910. It seems clear to us that the Overtons did exercisereasonable care. Before purchasing the lot, they went with their builder, Sheahan, andinspected it. Both the Overtons and Sheahan testified that they did not know there was filldirt on the lot. The Overtons had no expertise in these matters. Even if we assume that theOvertons had reason to believe that there was some fill dirt on the lot, it was not the merepresence of fill dirt that the court found to be a defect. It was the amount of the fill dirt (upto 20 feet in some locations) that could not be determined from a visual inspection.

The trial court specifically addressed the issue of the difficulty of returning the partiesto their positions prior to the contract. The court stated that if attaining status quo ante isimpossible in this situation, it was an impossibility caused by Kingsbrooke. We agree. Kingsbrooke practiced a "don't ask, don't tell" sales approach. This was a risk thatKingsbrooke willingly undertook. The court also noted that it did not believe that theOvertons lost their right to a rescission because of any additional excavating they had doneon the property because money damages could remedy any damage to the property causedby the excavating. The court offset the $57,741.09 award to the Overtons by $2,000 toallow for any expense Kingsbrooke might incur in rehabilitating the lot. We find that thecourt adequately restored the defendant to the status quo. See Hakala v. Illinois Dodge CityCorp., 64 Ill. App. 3d 114, 121, 380 N.E.2d 1177, 1182 (1978).

Lastly, we believe that this was a substantial breach. Almost every witness thattestified, including those for Kingsbrooke, stated that they would want to know the amountof fill dirt on a lot before deciding whether to buy it. Donna Overton testified that she wouldnot have entered into the contract if she had known the extent of the fill dirt. Harmestestified that unless something further was done to improve the condition of the soil, thehome, once constructed, would be at risk for settlement and that settlement beyond one totwo inches could cause structural damage. Kingsbrooke's own project manager, JohnDutton, stated that he would not build on fill dirt unless he could get to virgin soil. Becauseof Kingsbrooke's failure to disclose the fill dirt, the Overtons were denied the ability to makean informed decision on whether they wanted to undertake the risk of future structuraldamage to their home or if they wanted to undertake the additional expense to prevent futureproblems. We rely strongly on the public protectionist policy in finding that this was asubstantial breach because of the importance of the purchase involved and the fact that thecontract would not have been entered into if the extent of the fill dirt had been disclosed. See Felde v. Chrysler Credit Corp., 219 Ill. App. 3d 530, 580 N.E.2d 191 (1991). A houseis the biggest, most important purchase that many people make in their lifetimes. While thiscase involves the property rather than the house itself, a house is only as solid as itsfoundation.

The Overtons argue that they should have been awarded attorney fees in this casepursuant to (1) the language of the contract and (2) the Consumer Fraud and DeceptiveBusiness Practices Act.

The contract provided: "The failure of either party to comply with the terms of thiscontract (including unreasonably withholding release of earnest money) will obligate thatparty to pay all damages, reasonable attorney's fees[,] and expenses incurred by the otherparty because of that failure." Kingsbrooke filed a motion to strike the portion of thecomplaint asking for attorney fees pursuant to the contract because it had complied with thecontract in selling the lot. The court allowed the motion to strike.

If a contract provides for awarding attorney fees, generally courts will enforce sucha provision. The Overtons argue that Kingsbrooke's contractual obligation was to sell aresidential lot to them. They claim that because Kingsbrooke did not convey a lot which wassuitable to build a home on, it failed to comply with the terms of the contract. As a result,they continue, the trial court erred in allowing Kingsbrooke's motion to strike. Kingsbrookecounters that the Overtons brought their suit under a breach-of-implied-warranty-of-habitability theory, not a breach-of-contract theory, and that Kingsbrooke satisfied the termsof the contract by conveying the deed to the property to the Overtons.

We agree with Kingsbrooke that the Overtons are not entitled to attorney fees, but wedisagree on the reason. The recovery of attorney fees is an inconsistent remedy in an actionfor the rescission of contract. The remedy of rescission necessitates disaffirming the contractto allow the parties to return to the status quo. Puskar v. Hughes, 179 Ill. App. 3d 522, 528,533 N.E.2d 962, 966 (1989). A party must elect a remedy based on the affirmance ordisaffirmance of the contract, but the election of one is the abandonment of the other. Newton v. Aitken, 260 Ill. App. 3d 717, 720, 633 N.E.2d 213, 217 (1994). In rescission,generally each party is required to return to the other the value of the benefits received underthe contract. Newton, 260 Ill. App. 3d at 720, 633 N.E.2d at 216. Additionally, theplaintiff's attorney fees are not a benefit conferred upon the defendant and thus are notappropriate for restitution.

Alternatively, the Overtons argue that the trial court abused its discretion in failingto award attorney fees under the Consumer Fraud and Deceptive Business Practices Act (815ILCS 505/1 et seq. (West 1996)). Trial courts may award reasonable attorney fees and courtcosts to the prevailing party in an action for actual damages arising from violations of theConsumer Fraud and Deceptive Business Practices Act. 815 ILCS 505/10a(c) (West 1996). The trial court made no express finding of any violations of that act. Thus, the Overtons,despite prevailing on their implied-warranty-of-habitability claim, were not the prevailingparty on their Consumer Fraud and Deceptive Business Practices Act claim. Consequently,they could not recover attorney fees. We conclude that the trial court properly denied theOvertons' request for attorney fees.

For the foregoing reasons, we affirm the decision of the trial court granting therescission of the contract and awarding damages to the Overtons based on Kingsbrooke'sbreach of the implied warranty of habitability. We also affirm the court's decision denyingattorney fees.

Affirmed.

WELCH and DONOVAN, JJ., concur.