                            ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           In re Estate of Krpan, 2013 IL App (2d) 121424




Appellate Court              In re ESTATE OF MILAN KRPAN, Deceased (Theodore S. Fins,
Caption                      Claimant-Appellant, v. Maria Krpan, as Administrator of the Estate of
                             Milan Krpan, Deceased, Defendant-Appellee).



District & No.               Second District
                             Docket No. 2-12-1424


Filed                        September 13, 2013


Held                         A claim against a decedent’s estate for breach of the implied warranty of
(Note: This syllabus         habitability of a house claimant purchased from decedent was improperly
constitutes no part of       dismissed as untimely, since the matter forming the basis for dismissal
the opinion of the court     was not apparent on the face of the complaint, the administrator of
but has been prepared        decedent’s estate failed to present any evidence that the defects at issue
by the Reporter of           would have been apparent either immediately or, at the latest, “after the
Decisions for the            heavy rains that occur annually,” and despite the administrator’s
convenience of the           contention that the implied warranty of habitability applied only to
reader.)
                             defects making the residence uninhabitable, no precedent indicates that
                             the defects must be so severe as to cause the residents to vacate.


Decision Under               Appeal from the Circuit Court of De Kalb County, No. 09-P-143; the
Review                       Hon. William P. Brady, Judge, presiding.



Judgment                     Reversed and remanded.
Counsel on                 Peter Thomas Smith and Jeffrey A. Meyer, both of Smith & Meyer LLC,
Appeal                     of Sycamore, for appellant.

                           Richard D. Larson, of Richard D. Larson, P.C., of Sycamore, for appellee.


Panel                      JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
                           Justices McLaren and Spence concurred in the judgment and opinion.




                                             OPINION

¶1          Theodore S. Fins, who filed a claim against the estate of decedent, Milan Krpan, appeals
        from an order dismissing as time-barred his claim for breach of the implied warranty of
        habitability of a house sold to him by decedent. He asserts that the estate’s administrator,
        Maria Krpan, did not adequately support her limitations defense. We agree. Moreover, we
        find unpersuasive the administrator’s alternative bases for affirming. We therefore reverse
        the dismissal and remand the cause.

¶2                                       I. BACKGROUND
¶3          Decedent died on October 9, 2009. He left a will that named his wife, Maria Krpan, as
        his executor (administrator). She filed a petition for probate of will and for letters
        testamentary on November 4, 2009, and the court that day ordered the issuance of letters of
        office.
¶4          On March 5, 2010, Fins mailed to the administrator a form “Claim on Contract.” He
        asserted the breach of an implied warranty of habitability–the structure was not specified–and
        damages of $144,850. The filing was a bare-bones statement of the amount that Fins asserted
        he was owed and was not in the form of a conventional pleading. It listed five specific
        problems that Fins claimed were covered by the warranty: (1) “Leaking/Unfit Windows,” (2)
        “Refinishing Unfit Deck,” (3) “Broken/Unfit Skylight,” (4) “Latent Defect/Roof Leak,” and
        (5) “Improper Interior Painting.”
¶5          Fins did not file this form with the court but, rather, consistent with section 18-1(a) of
        the Probate Act of 1975 (Act) (755 ILCS 5/18-1(a) (West 2010)), mailed it to the
        administrator. (The form appears in the record as an exhibit to a later filing.)
¶6          The administrator filed a verified motion to dismiss the claim, arguing, among other
        things, that the claim was time-barred. This filing made clear that the administrator
        understood Fins’ claim to relate to a house that Fins and his wife had purchased from
        decedent, who was the builder, on April 22, 2005. Fins filed a response, attached to which
        was his affidavit stating when he had “noticed” each problem.

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¶7         After discovery, the administrator filed an amended motion to dismiss. Her motion cited
       section 2-619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5) (West
       2010) (“[t]hat the action was not commenced within the time limited by law”)) and section
       2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2010) (“[t]hat the claim asserted
       against defendant is barred by other affirmative matter avoiding the legal effect of or
       defeating the claim”)) as bases for dismissal. She noted that the applicable limitations period
       for Fins’ claim was four years; under section 13-214 of the Code (735 ILCS 5/13-214(a)
       (West 2010)), a party must bring an action based on a defect in construction within four years
       of the time the party reasonably should have known of the act or omission. She also asserted:
           “Four of the alleged defects are of a nature that would be clearly evident, including
           improper interior painting ***, leaking unfit windows, *** need to refinish unfit deck,
           and broken/unfit skylight ***.
                10. Even the fifth alleged defect, i.e., latent defect roof leak *** should have been
           evident after the heavy rains that occur annually.”
       She further argued that the implied warranty of habitability applies only to defects so severe
       that they make a residence uninhabitable. She then asserted:
           “[N]one of the alleged defects would affect the habitability of the residence, and
           obviously they have not because, upon information and belief, Claimants [sic] have been
           residing herein [sic] since they took title to the property on April 22, 2005.”
       She included with the motion no evidence relating to the nature of the defects.
¶8         As a final matter, the administrator argued that Fins’ averred notifications of decedent
       must have been oral and that the Dead-Man’s Act–section 8-201 of the Code (735 ILCS 5/8-
       201 (West 2010))–would bar Fins from testifying about any conversation with decedent (or
       any act that took place in his presence).
¶9         Fins filed a response to the amended motion. He asserted that the administrator had no
       source for personal knowledge of the nature of the defects. He submitted an affidavit
       (essentially similar to that which he filed in response to the original motion) in which he
       averred that he bought the house from decedent in April 2005. Further, he first noticed
       leaking windows in October 2006, problems with the skylight in February 2008, “problems
       with the paint deteriorating” (which a tradesperson had told him were associated with more
       general problems with the drywall) in “late 2006,” defects in the deck finish in “late 2006,”
       problems with the furnace in “spring 2008,” problems with the roof in “July or August of
       2008,” and “problems with the construction of the eves [sic] plate in the roof” in “summer
       of 2008.” He “notified the Decedent” of each problem at about the time he discovered it.
       Also attached to the response was a copy of the real-estate sales contract and an addendum
       already introduced by the administrator. The response also included another affidavit of Fins.
       According to the later affidavit, Fins did not know “the reason[s] for the defect[s] until later
       inspection[s] by tradesm[e]n.”
¶ 10       In a reply, the administrator supplied an affidavit of a contractor who had worked on
       Fins’ house. He averred that he had replaced the furnace and air-conditioning unit, which
       were in like-new condition, and that Fins had replaced them to improve efficiency.
¶ 11       Fins and the administrator argued the amended motion to the court. The administrator

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       focused first on whether the implied warranty of habitability applied to any of the defects of
       which Fins complained. The administrator noted that Fins and his wife had never moved out
       of the house, equating a breach of the warranty with a defect that makes the house
       uninhabitable. She also restated the statute-of-limitations argument.
¶ 12        Fins restated his claim that the defects were latent and had not caused noticeable
       problems until the times mentioned. The Finses were able to stay in the house because they
       paid for repairs.
¶ 13        On September 17, 2012, the court granted the motion to dismiss:
                “THIS MATTER coming on for Ruling on The Estate’s Amended Motion to Dismiss
            the claim filed herein by Theo S. Fins on March 5, 2010, and the court having reviewed
            the pleadings, the points and authorities submitted, and the arguments of Counsel, and
            being Fully advised in the premises;
                    It Is Hereby Ordered that the Estate’s Amended Motion to Dismiss is hereby
                granted.”
       In its oral ruling, it stated:
            “[G]iven this fact pattern, that I don’t think is significantly contested ***[,] applying the
            law to that fact pattern, I think defendant’s position is that the statute is [sic] run and I’m
            granting their motion.”
¶ 14        Fins filed a timely motion to reconsider. He asserted that the court had granted the
       motion as one under section 2-619 of the Code and that, under that section, the moving party
       has the burden of showing the existence of the defense raised as the basis for the dismissal.
       He argued that the administrator had not met that burden, as all she presented was the bare
       assertion that the defects could not have been latent. The court denied the motion, adding the
       clarification that the denial was with prejudice. Fins filed a timely notice of appeal.

¶ 15                                       II. ANALYSIS
¶ 16       On appeal, Fins argues that no basis existed for the court’s ruling that the statute of
       limitations had run on his claim. He asks that we reverse the dismissal and “reinstate the
       action.”
¶ 17       The administrator responds with three bases for affirming the grant of her motion. First,
       she argues that “to prevail *** [Fins’ pleadings] would have to contain well-pled facts which
       demonstrate that the alleged defects complained of were discovered by him during the 4-year
       period for filing the Claim.” Second, “[Fins] has attempted to [assert timeliness] not by filing
       an amended Claim, but rather by filing an ***Affidavit that he ‘noticed problems.’ ” Third,
       she asserts that Fins’ claim did not adequately plead a cause of action for breach of the
       implied warranty of habitability, because the problems claimed were not ones that affected
       the habitability of the house.
¶ 18       The court erred in granting the motion. The administrator did not meet her burden of
       providing facts to support her statute-of-limitations defense. Further, she is incorrect that an
       affidavit was an improper way to present facts supporting the claim’s timeliness. Finally, she
       is incorrect that a breach of the implied warranty of habitability requires defects so severe

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       that they force the resident to cease occupancy of the premises. Review of a section 2-619
       motion’s grant is de novo.1 Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d
       112, 116 (1993).
¶ 19       A brief initial note on probate-claim procedure might be helpful here to explain, among
       other things, why Fins did not initially file (nor was he required to file) a pleading that fully
       set out his claim. “Technical legal form is not required in presentation of a claim against an
       estate, and proceedings in probate court for the allowance of claims are not governed by the
       technical rules which apply to a formal suit at law.” In re Estate of Wagler, 217 Ill. App. 3d
       526, 529 (1991). A party with a claim against an estate makes that claim by filing a claim
       form with the representative (here, the administrator), the court, or both. 755 ILCS 5/18-1(a)
       (West 2010). The claim is not a pleading. E.g., Sheetz v. Morgan, 98 Ill. App. 3d 794, 800-01
       (1981). The Act does not require a well-pled claim, such as civil procedure would ordinarily
       require: the relevant section requires only that a claim “be in writing and state sufficient
       information to notify the representative of the nature of the claim or other relief sought.” 755
       ILCS 5/18-2 (West 2010).
¶ 20       The Act does not contemplate the use of dispositive motions of the kind that a litigant
       would use against a standard civil complaint. For instance, “[a] motion for judgment on the
       pleadings, applicable to a formal suit at law by section 2-615(e) of the Code *** [(now 735
       ILCS 5/2-615(e) (West 2010))], has no application to the adjudication of a claim against an
       estate, at least where the claim need only comply with section 18-2 of the Probate Act.”
       Wagler, 217 Ill. App. 3d at 529. However, in Wagler, where no party objected to the
       improper motion, the reviewing court simply addressed whether the trial court properly
       entered a judgment regarding the claim. Wagler, 217 Ill. App. 3d at 529. Similarly, here, as
       Fins does not assert that the administrator’s section 2-619 motion was procedurally improper,
       we will evaluate its merits as such.
¶ 21       Turning to the substance of this case, we now explain why the statute-of-limitations
       portion of the administrator’s motion to dismiss did not provide a proper basis for dismissal.
       When a defendant files a section 2-619 motion to dismiss, the defendant must support the
       motion with an affidavit showing the basis for dismissal unless the matter forming the basis
       for dismissal is apparent on the face of the complaint. 735 ILCS 5/2-619(a) (West 2010).
       Here, the administrator provided no evidence that the defects would have been apparent
       either immediately or, at the latest, “after the heavy rains that occur annually.” Therefore, the
       motion could be sufficient on this point only if the matter were apparent from the claim, or,
       to be procedurally generous to the administrator, from Fins’ other filings. But nothing about
       Fins’ claim reasonably establishes that the problems could not have developed with time.
       Thus, the court erred in granting the administrator’s motion on statute-of-limitations grounds.
¶ 22       The administrator suggests that Fins’ placing new assertions of fact in his response to the
       motion (rather than amending the claim) was improper. The administrator is incorrect about
       section 2-619 procedure:


               1
               This, of course, would not be so if the court had held an evidentiary hearing. Law Offices
       of Nye & Associates, Ltd. v. Boado, 2012 IL App (2d) 110804, ¶ 12.

                                                  -5-
           “If, upon the hearing of the motion, the opposite party presents affidavits or other proof
           denying the facts alleged or establishing facts obviating the grounds of defect, the court
           may hear and determine the same and may grant or deny the motion.” (Emphasis added.)
           735 ILCS 5/2-619(c) (West 2010).
       Moreover, a statute of limitations “is an affirmative defense which a defendant may, in its
       sole discretion, assert or waive.” Doe A. v. Diocese of Dallas, 234 Ill. 2d 393, 413 (2009).
       As timeliness is not an element of a claim, it is not a necessary part of a pleading, even under
       the stricter civil pleading requirements. Thus, the absence of an allegation that the claim is
       timely cannot be a defect in the pleading.
¶ 23       Finally, the administrator argues that the court could have granted the motion on the basis
       that the implied warranty of habitability applies only to defects that make a residence
       uninhabitable. The affirmative matter that the administrator raises as defeating the claim is
       that the Finses never stopped living in the house. The administrator is incorrect about the
       scope of the warranty. “The implied warranty of habitability has been adopted by our courts
       to protect purchasers of new homes upon discovery of latent defects.” Hirsch v. Optima, Inc.,
       397 Ill. App. 3d 102, 114 (2009). “The vendee has a right to expect to receive that for which
       he has bargained and that which the builder-vendor has agreed to construct and convey to
       him, that is, a house that is reasonably fit for use as a residence.” (Emphasis added.) Petersen
       v. Hubschman Construction Co., 76 Ill. 2d 31, 40 (1979); see also Stoneridge Development
       Co. v. Essex Insurance Co., 382 Ill. App. 3d 731, 746 (2008) (“The implied warranty of
       habitability protects the buyer against latent defects by providing a warranty that the house
       is reasonably fit to use as a residence.”). Contrary to the administrator’s assertion, no
       precedent suggests that covered defects must be so severe as to drive the residents to vacate
       the structure despite normal steps to correct the damage. Such a warranty would be
       remarkably limited: short of a significant gas leak or the like, at least some residents may
       tolerate even serious defects for at least some time.
¶ 24       The administrator also asserts that, in any event, the defects alleged by Fins do not go to
       the habitability of the house. However, a house that is reasonably fit for habitation must, at
       a minimum, offer reasonable safety and reasonable protection from the elements. The parts
       of the claim relating to defects in the roof and windows bear an obvious relationship to
       reasonable fitness for habitation. Therefore, that the defects fall outside the scope of the
       warranty is not apparent on the face of the claim or Fins’ other filings.
¶ 25       To be sure, the relationship to habitability of other claimed defects, particularly that of
       the interior paint, is murkier. However, the trial court (and, on appeal, both parties) treated
       Fins’ claim as standing or falling as a whole. We therefore will not address individual parts
       of the claim.

¶ 26                                  III. CONCLUSION
¶ 27      For the reasons stated, we reverse the dismissal of Fins’ claim and remand the cause.

¶ 28      Reversed and remanded.


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