                                     2019 IL App (1st) 172968

                                                                             SIXTH DIVISION
                                                                             MARCH 22, 2019

No. 1-17-2968

LENNY GOLDFARB,                                             )       Appeal from the
                                                            )       Circuit Court of
            Plaintiff-Appellant,                            )       Cook County.
                                                            )
       v.                                                   )       No. 16 L 347
                                                            )
BAUTISTA CONCRETE, INC.,                                    )       Honorable
                                                            )       Margaret Ann Brennan,
            Defendant-Appellee.                             )       Judge Presiding.

       JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.
       Justices Connors and Harris concurred in the judgment and opinion.

                                             OPINION

¶1     The plaintiff-appellant, Lenny Goldfarb (Lenny) appeals from a judgment in the circuit

court of Cook County finding that he lacked standing to bring his cause of action and granting

summary judgment in favor of the defendant-appellee, Bautista Concrete, Inc. (Bautista). For the

following reasons, we affirm the judgment of the circuit court of Cook County.

¶2                                     BACKGROUND

¶3     Lenny filed a complaint against Bautista alleging (1) breach of implied warranty of good

workmanship, (2) breach of implied warranty of habitability, (3) breach of contract/third-party

beneficiary, and (4) negligence. The complaint was related to a residential construction project at

1722 Chapel Court, Northbrook, Illinois (the property). Lenny alleged that he hired Phoenix

Construction Company (Phoenix)1 to be the general contractor on the construction project at the

property and that Phoenix subsequently hired Bautista as the subcontractor to perform the
       1
        Phoenix was not named as a party in this case.
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concrete work. Lenny further alleged in his complaint that due to Bautista’s “multiple breaches,”

numerous repairs had to be done on the construction project, causing Lenny to “suffer[ ] at least

$412,224.45” in damages.

¶4     After Bautista answered the complaint and the parties engaged in discovery, Bautista

filed a motion for summary judgment. Bautista’s motion argued that summary judgment should

be granted in its favor because (1) Lenny had no standing to bring a cause of action, (2) Lenny

and Bautista were never in privity of contract, (3) Lenny was not the intended beneficiary of the

contract between Bautista and Phoenix, (4) Lenny could not maintain a claim for breach of

implied warranty of habitability against a subcontractor when he had recourse against Phoenix,

and (5) Lenny’s negligence claim was barred by the economic loss doctrine.

¶5     Bautista’s motion for summary judgment attached a transcript of Lenny’s deposition. In

his deposition, Lenny admitted that while he occupied the property, his father, Grigory Goldfarb

(Grigory), was the property’s legal owner. Bautista’s motion further argued that Lenny admitted

in his deposition that there was never a written or oral contract between him and Bautista, and so

he therefore could not maintain a cause of action for breach of implied warranty of good

workmanship. Additionally, Bautista’s motion asserted that because Lenny had a potential claim

against Phoenix, and had not alleged that Phoenix was insolvent, he was barred from maintaining

a breach of implied warranty of habitability action against Bautista, Phoenix’s subcontractor.

Bautista’s motion also argued that Lenny could not maintain a breach of contract action because

he failed to allege any contract terms identifying him as the intended third-party beneficiary of




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the contract between Bautista and Phoenix. Finally, Bautista’s motion for summary judgment

argued that the economic loss doctrine 2 barred Lenny’s negligence claim.

¶6     Lenny’s response to Bautista’s motion for summary judgment admitted that his father,

Grigory, purchased the property and took out a $1 million loan for the construction project.

Lenny explained, however, that he and his father agreed that Lenny would make the loan

payments as he was the intended occupant and future owner of the property. He further explained

that he and his father agreed to split the costs of construction equally above and beyond the $1

million construction loan, which they expected to be approximately $150,000. Lenny argued that

he ultimately spent at least $650,000 of his own money on the construction project, nearly

$575,000 more than he expected to spend, largely due to Bautista’s actions. He argued that this

financial expenditure on the construction project gave him standing to bring his lawsuit. Lenny

also argued that there was at least a disputed question of fact regarding whether he was the

intended third-party beneficiary of the contract between Bautista and Phoenix because there was

conflicting deposition testimony regarding whether the contract was written or oral. Lenny

further claimed that Phoenix was indeed insolvent on the day he filed his complaint, allowing

him to maintain a breach of implied warranty of habitability claim against Bautista directly.

Finally, Lenny argued that his damages fell within a well-established exception to the economic

loss doctrine.

¶7     Following a hearing, the trial court granted Bautista’s motion for summary judgment and

dismissed Lenny’s complaint. The court ruled that because Lenny was not the property owner, he


       2
         The economic loss doctrine, also known as the Moorman doctrine in Illinois (see Moorman
Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69 (1982)), provides that a plaintiff may not recover
damages under a tort theory, such as negligence, for solely economic loss caused by the failure of a
defective product to perform as expected; rather, any recovery by the plaintiff for such loss must come
under a contract theory. State Farm Fire & Casualty Co. v. Welbourne, 2017 IL App (3d) 160231, ¶ 20.


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lacked standing to bring his lawsuit. The court explained that Lenny’s $650,000 towards the

construction project was a gift to his father, “as if Warren Buffet contributed money to the

construction,” and therefore did not confer standing. The court also found that Lenny was not a

third-party beneficiary to the contract between Bautista and Phoenix because he “could not

produce sufficient evidence to show that a contract existed or what its terms would be.” The

court noted that to assert an implied warranty of habitability claim against a subcontractor, the

contractor must be insolvent. However, the court explained that Lenny’s complaint could not be

amended to plead Phoenix’s insolvency because Lenny lacked standing. And the court further

held that because it had found that Lenny lacked standing, it did not need to reach Lenny’s

breach of implied warranty of good workmanship claim or Bautista’s arguments regarding the

economic loss doctrine.

¶8      Following the trial court’s entry of summary judgment in favor of Bautista, Lenny filed a

notice of appeal.

¶9                                      ANALYSIS

¶ 10    We note that we have jurisdiction to review this matter as Lenny filed a timely notice of

appeal. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. July 1, 2017).

¶ 11    On appeal, Lenny argues that the trial court erred by granting summary judgment in favor

of Bautista. Specifically, Lenny argues that although he is not the legal owner of the property, he

contributed $650,000 towards the construction project and is the intended future owner of the

property, which confers standing. Lenny further argues that there is a disputed question of fact

regarding whether he was a third-party beneficiary to the contract between Bautista and Phoenix

because there was conflicting deposition testimony as to whether the contract was written or oral.

He accordingly asks us to reverse the trial court’s order granting summary judgment.


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¶ 12   The purpose of summary judgment is to determine if a question of material fact exists.

Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). Summary judgment should be

granted only where the pleadings, depositions, admissions, and affidavits on file, when viewed in

the light most favorable to the nonmoving party, show that there is no genuine issue as to any

material fact and that the moving party is clearly entitled to a judgment as a matter of law. 735

ILCS 5/2-1005(c) (West 2014); Adams, 211 Ill. 2d at 43. “Although summary judgment is to be

encouraged as an expeditious manner of disposing of a lawsuit, it is a drastic measure and should

be allowed only where the right of the moving party is clear and free from doubt.” Wells Fargo

Bank, N.A. v. Norris, 2017 IL App (3d) 150764, ¶ 19. We review appeals from summary

judgment rulings de novo. Id.

¶ 13   Here, the trial court granted summary judgment on the basis of standing. The doctrine of

standing ensures that issues are raised only by those parties who have a sufficient legal stake in

the outcome of the controversy. Matthews v. Chicago Transit Authority, 2016 IL 117638, ¶ 39. A

party’s standing to sue must be determined at the time the lawsuit is filed; a party either has

standing at the time the lawsuit is brought or it does not. Deutsche Bank National Trust Co. v.

Gilbert, 2012 IL App (2d) 120164, ¶ 15.

¶ 14   Our supreme court in Sienna Court Condominium Ass’n v. Champion Aluminum Corp.,

2018 IL 122022, recently held that a claim for breach of the implied warranty of habitability is a

“creature of contract” that cannot be asserted by the purchaser of a home against a subcontractor

without a contractual relationship between the property owner and the subcontractor. Id. ¶ 30.

Considering that Lenny admitted that he is not the legal owner of the property and that he never

contracted with Bautista, it necessarily follows that he lacks standing to bring a claim for breach

of the implied warranty of habitability. It is irrelevant whether Phoenix is insolvent, whether


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1-17-2968


Lenny is the current occupant of the property, or whether Grigory intends to transfer the property

to Lenny in the future. Lenny never contracted with Bautista, 3 which our supreme court has now

clarified is a prerequisite for a breach of implied warranty of habitability claim. Additionally, it

is reasonable to extend that reasoning to the claim for breach of the implied warranty of good

workmanship, which applies to workmanship issues in construction contracts. See Board of

Directors of Bloomfield Club Recreation Ass’n v. Hoffman Group, Inc., 186 Ill. 2d 419, 431

(1999).

¶ 15      We also reject Lenny’s argument that there is a disputed question of fact regarding

whether he was a third-party beneficiary to the contract between Bautista and Phoenix. Although

there was conflicting deposition testimony as to whether the contract between Bautista and

Phoenix was written or oral, there was no testimony that Lenny was the intended third-party

beneficiary. Most importantly, neither a contract nor its terms was ever actually produced. And

this is important because there must be evidence of express terms in the contract identifying the

third-party beneficiary. 155 Harbor Drive Condominium Ass’n v. Harbor Point Inc., 209 Ill.

App. 3d 631, 647 (1991) (courts require an express provision because there is a strong

presumption that parties to a contract intend that the contract’s provisions apply to only them and

not to third parties).

¶ 16      Lenny makes several arguments regarding whether the financial contributions he made

towards the construction project were gifts to Grigory. However, we need not parse that issue, as

the context of those payments is immaterial. Lenny made the financial contributions to Grigory,

not Bautista. Lenny is therefore a stranger to the transaction between Bautista and Phoenix and

has no legal relationship to Bautista.

          3
           Although not relevant to our analysis, we note that Lenny never contracted with Phoenix, either.


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¶ 17   We note that Lenny argues that if Grigory and/or Phoenix were necessary parties to his

lawsuit, that the trial court should have joined them as parties. Lenny even goes so far as to

argue that because the court did not sua sponte join them as parties to his lawsuit, the court’s

order of summary judgment is null and void. We find this argument to be meritless, as there were

never any motions before the court to join Grigory and/or Phoenix to Lenny’s lawsuit. Moreover,

it is not the trial court’s responsibility to sua sponte join necessary parties to a lawsuit pending

before the court. It was Lenny’s lawsuit. He had the responsibility to sue the necessary parties. It

would have been inappropriate for the court to do so. Lenny does not and cannot explain how

this could have been procedurally accomplished.

¶ 18   Ultimately, the pleadings and depositions in this case demonstrate that Lenny is not the

legal owner of the property and never contracted with Bautista. He therefore lacked standing to

bring his lawsuit against Bautista. Accordingly, we affirm the trial court’s order granting

summary judgment in favor of Bautista and dismissing Lenny’s complaint.

¶ 19   We now address Bautista’s request for this court to impose sanctions against Lenny.

Bautista points out that shortly after the trial court granted summary judgment in its favor,

Grigory filed his own complaint against Bautista and Phoenix for the same damages alleged in

Lenny’s lawsuit. Bautista argues that because of the new, pending lawsuit by Grigory, Lenny’s

appeal is “frivolous” and Lenny should therefore be required to pay Bautista’s legal fees incurred

by defending this appeal.

¶ 20   Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994) provides:

               “If, after consideration of an appeal or other action pursued in a

               reviewing court, it is determined that the appeal or other action

               itself is frivolous, or that an appeal or other action was not taken in


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              good faith, for an improper purpose, such as to harass or to cause

              unnecessary delay or needless increase in the cost of litigation, or

              the manner of prosecuting or defending the appeal or other action

              is for such purpose, an appropriate sanction may be imposed upon

              any party or the attorney or attorneys of the party or parties. An

              appeal or other action will be deemed frivolous where it is not

              reasonably well grounded in fact and not warranted by existing law

              or a good-faith argument for the extension, modification, or

              reversal of existing law. An appeal or other action will be deemed

              to have been taken or prosecuted for an improper purpose where

              the primary purpose of the appeal or other action is to delay,

              harass, or cause needless expense.”

Imposition of sanctions under Rule 375(b) is left strictly to our discretion. Garlick v.

Bloomingdale Township, 2018 IL App (2d) 171013, ¶ 59.

¶ 21   Bautista has failed to provide any evidence that Lenny’s appeal was frivolous or pursued

in bad faith. Grigory’s separate lawsuit for damages does not support the theory that Lenny did

not reasonably believe that he could recover his own damages from Bautista. Although Lenny’s

appeal was unsuccessful, we cannot conclude that it is sanctionable. A losing argument is not

necessarily a sanctionable argument. We cannot say that Lenny knew or should have known that

his arguments could not and would not carry the day. Thus, we cannot say that the appeal was

brought in bad faith or that Lenny sought to harass, delay, or unnecessarily increase litigation

costs by initiating this appeal. Accordingly, sanctions would be improper. See Enbridge Energy

(Illinois), L.L.C. v. Kuerth, 2018 IL App (4th) 150519-B, ¶ 72 (Rule 375(b) sanctions are penal


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in nature and should only be applied to cases falling strictly within the language of the rule). We

therefore decline to impose sanctions against Lenny.

¶ 22                                         CONCLUSION

¶ 23   For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 24   Affirmed.




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