                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




             1324 W. Pratt Condominium Ass’n v. Platt Construction Group, Inc.,
                                2013 IL App (1st) 130744




Appellate Court            1324 W. PRATT CONDOMINIUM ASSOCIATION, Plaintiff-Appellee,
Caption                    v. PLATT CONSTRUCTION GROUP, INC., Defendant-Appellee (EZ
                           Masonry, Inc., Defendant-Appellant).



District & No.             First District, Fourth Division
                           Docket No. 1-13-0744


Filed                      September 19, 2013


Held                       In a “construction defect” action arising from the discovery of leaky
(Note: This syllabus       doors, windows and ceilings in condominium units and common areas,
constitutes no part of     the appellate court, in answer to two certified questions under Supreme
the opinion of the court   Court Rule 308, stated that the relevant date for determining the
but has been prepared      insolvency of a general contractor for purposes of the exception in Minton
by the Reporter of         allowing a subcontractor to be pursued when a general contractor is
Decisions for the          insolvent is the date a complaint or the latest amended complaint is filed
convenience of the         against the general contractor, not the date construction was completed,
reader.)
                           and a condominium association may pursue a subcontractor when a
                           general contractor is, as in the instant case, insolvent but in good standing
                           with limited assets.


Decision Under             Appeal from the Circuit Court of Cook County, No. 08-L-014415; the
Review                     Hon. Ronald F. Bartkowitz, Judge, presiding.



Judgment                   Remanded.
Counsel on                 Joseph A. Bosco and Brian R. Kusper, both of LaRose & Bosco Ltd., of
Appeal                     Chicago, for appellant.

                           Robert W. Brunner, of Law Office of Robert W. Brunner, of Chicago, for
                           appellees.


Panel                      JUSTICE FITZGERALD SMITH delivered the judgment of the court,
                           with opinion.
                           Presiding Justice Howse and Justice Lavin concurred in the judgment and
                           opinion.




                                              OPINION

¶1          This is a construction defect lawsuit arising from the faulty construction of a residential
        condominium building built in 2005 at 1324 W. Pratt Boulevard, in Chicago, Illinois. The
        plaintiff-appellee, 1324 W. Pratt Condominium Association (hereinafter, the condominium
        association), seeks to recover damages from the general contractor, Platt-Construction
        Group, Inc. (hereinafter, Platt), and the masonry subcontractor, the defendant-appellant, EZ
        Masonry Inc. (hereinafter, EZ Masonry). This cause has already been before this appellate
        court twice. In this interlocutory appeal, we are asked to decide two questions of law certified
        by the circuit court pursuant to Illinois Supreme Court Rule 308 (Ill. S. Ct. R. 308 (eff. Feb.
        26, 2010)): (1) “whether the relevant date for determining the insolvency of a general
        contractor [Platt] for purposes of the exception set forth in Minton v. Richard Group of
        Chicago[, 116 Ill. App. 3d 852 (1983),] is the date that a [c]omplaint (or latest amended
        complaint) is filed against the general contractor, or when the construction is completed; and
        (2) whether [the condominium association] may pursue [its] claims against EZ Masonry in
        this cause when Platt *** is insolvent, but is in good standing with limited assets.” For the
        reasons that follow, we hold that the relevant date for determining the insolvency of a general
        contractor is not the date construction is completed but, rather, the date that an amended
        complaint is filed alleging the general contractor’s insolvency, and that in this particular
        situation, the condominium association may proceed against EZ Masonry since Platt is
        insolvent.

¶2                                       I. BACKGROUND
¶3          Since this cause originated about a decade ago, and includes voluminous motion practice,
        for purposes of brevity we set forth only the relevant factual background and procedural
        history. Between 2004 and 2005, the developer, 6801 N. Wayne LLC (hereinafter, Wayne),
        engaged in the construction of an eight-unit residential building located at 1324 W. Pratt

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     Boulevard in Chicago, Illinois (hereinafter, the building). In order to construct the building,
     Wayne hired Platt as its general contractor, and Platt in turn hired several subcontractors,
     including, relevant for this appeal, EZ Masonry. After Platt completed the building in March
     2005, Wayne sold the individual eight units as condominiums. On November 28, 2005,
     Wayne was involuntarily dissolved.
¶4       Soon thereafter, the unit owners discovered water leaks around windows, doors, ceilings
     and vents in their units and common areas of the building. The owners of the individual units
     formed the plaintiff condominium association to represent their collective interests. Starting
     in 2008, the condominium association filed a series of complaints against several defendants,
     attempting to recover damages caused by the construction defects. The first complaint was
     filed against Wayne, Platt and the roofing subcontractor (which is not a party to this appeal).
     The second amended complaint was filed on December 14, 2009, and named EZ Masonry
     as a defendant. Since then, relevant to this appeal, the litigation has proceeded against both
     Platt and EZ Masonry on, inter alia, a breach of implied warranty of habitability claim.
¶5       On June 9, 2009, Platt filed a motion to dismiss pursuant to section 2-619 of the Illinois
     Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2008)), arguing that it could not
     be held liable under an implied warranty of habitability theory because that warranty applies
     to only “builder-vendors,” i.e., builders that not only construct a residential building but are
     also involved in the sale of the residence to the purchasers. The circuit court agreed with Platt
     and granted its motion to dismiss on September 11, 2009. The condominium association
     appealed, and on September 28, 2010, we reversed the order of the circuit court, ruling that
     “the warranty applies to builders of residential homes regardless of whether they are involved
     in the sale of the home.” 1324 W. Pratt Condominium Ass’n v. Platt Construction Group,
     Inc., 404 Ill. App. 3d 611, 618 (2010) (Pratt I).1
¶6       After the cause was remanded to the circuit court, on December 20, 2010, the
     condominium association filed its third amended complaint alleging a breach of the implied
     warranty of habitability against, inter alia, Wayne, Platt and EZ Masonry. In January 2011,
     Platt and EZ Masonry both filed motions to dismiss pursuant to section 2-619 of the Code
     (735 ILCS 5/2-619 (West 2008)). EZ Masonry argued that while the general contractor
     (Platt) was solvent, it was improper to bring a claim for the breach of the implied warranty
     of habitability against a subcontractor, such as itself. In support of this contention, EZ
     Masonry cited Minton v. Richards Group of Chicago, 116 Ill. App. 3d 852 (1983). Platt
     argued that the individual condominium owners could not avail themselves of the implied
     warranty of habitability since they explicitly waived that warranty in their condominium
     purchase agreements. EZ Masonry orally joined in Platt’s argument regarding waiver.
¶7       On May 19, 2011, the circuit court granted Platt’s and EZ Masonry’s motions to dismiss
     based upon the waiver of the implied warranty of habitability, but specifically denied EZ
     Masonry’s claim that while Platt was solvent, the condominium association could not go
     forward with its claim against EZ Masonry. In doing so, the circuit court noted that Pratt I


             1
             EZ Masonry filed a separate motion to dismiss (735 ILCS 5/2-619 (West 2008)) on June
     17, 2010, but that motion was stayed until Pratt appealed the dismissal of its action against Platt.

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       modified Minton and extended the implied warranty of habitability to subcontractors without
       the need to first show that the purchaser had no recourse to the builder and/or vendor.
¶8          The case was appealed again to this court. On June 21, 2012, we reversed the circuit
       court’s decision, inter alia, holding that so long as Platt remained solvent, the condominium
       association could not proceed against EZ Masonry. 1324 W. Pratt Condominium Ass’n v.
       Platt Construction Group, Inc., 2012 IL App (1st) 111474 (Pratt II). In doing so, we
       explicitly rejected the reasoning of the circuit court and reiterated that our decision in Pratt
       I nowhere extended or modified Minton to include all subcontractors, regardless of the
       solvency of the builder-vendor.
¶9          On remand to the circuit court, on January 8, 2013, the condominium association filed
       its fourth amended complaint against Platt and EZ Masonry, again alleging a breach of the
       implied warranty of habitability. The allegations in the fourth amended complaint were
       identical to the allegations in the third amended complaint except for additional language
       asserting that Platt is insolvent. After limited discovery, on February 27, 2013, the circuit
       court held that “Platt is insolvent, but remains a corporation in good standing with limited
       assets.” The circuit court also held that the relevant date for determining the insolvency of
       a general contractor such as Platt is the date on which a complaint is filed against the general
       contractor; in this case, the fourth amended complaint, which was filed on January 8, 2013.
       The circuit court then certified two questions of law for interlocutory appeal pursuant to
       Illinois Supreme Court Rule 308, finding that as there were “substantial grounds for
       difference of opinion” as to these two questions and that answers to those two questions by
       this appellate court could “materially advance the ultimate termination of litigation.” Ill. S.
       Ct. R. 308 (eff. Feb. 26, 2010). As already noted above, the certified questions are as follows:
       (1) “whether the relevant date for determining the insolvency of a general contractor for
       purposes of the exception set forth in Minton v. Richard Group of Chicago[, 116 Ill. App.
       3d 852 (1983),] is the date that a [c]omplaint (or latest amended complaint) is filed against
       the general contractor, or when the construction is completed; and (2) whether [the
       condominium association] may pursue [its] claims against EZ Masonry in this cause when
       Platt *** is insolvent, but is in good standing with limited assets.”

¶ 10                                       II. ANALYSIS
¶ 11        We begin by setting forth the scope of review that we must apply in all Rule 308 appeals.
       It is well settled that absent a statutory exception or rule of the supreme court, courts of
       appeal have jurisdiction to review only final judgments entered in the circuit court. Walker
       v. Carnival Cruise Lines, Inc., 383 Ill. App. 3d 129, 133 (2008). Illinois Supreme Court Rule
       308, however, provides one such exception and permits for permissive appeal of an
       interlocutory order certified by the trial court as involving a question of law as to which
       “there is substantial ground for difference of opinion” and “where an immediate appeal may
       materially advance the ultimate termination of the litigation.” Ill. S. Ct. R. 308 (eff. Feb. 26,
       2010); In re Estate of Luccio, 2012 IL App (1st) 121153, ¶ 17 (citing Brookbank v. Olson,
       389 Ill. App. 3d 683, 685 (2009)). However, this rule is not intended to be a mechanism for
       expedited review of an order that merely applies the law to the facts of a particular case. In


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       re Estate of Luccio, 2012 IL App (1st) 121153, ¶ 17; see also Walker, 383 Ill. App. 3d at 133;
       Morrissey v. City of Chicago, 334 Ill. App. 3d 251, 258 (2002). Nor does it permit us to
       review the propriety of the order entered by the lower court. In re Estate of Luccio, 2012 IL
       App (1st) 121153, ¶ 17; see also Walker, 383 Ill. App. 3d at 133. Rather, we are limited to
       answering the specific question certified by the trial court. Moore v. Chicago Park District,
       2012 IL 112788, ¶ 9; see also Bajalo v. Northwestern University, 369 Ill. App. 3d 576, 580
       (2006) (“In [a Rule 308] interlocutory appeal, the court’s examination is limited to the
       questions certified by the trial court, and a reviewing court will ordinarily not expand the
       certified question under review to answer other questions that could have been included but
       were not.”). As with all questions of law, we review certified questions presented for
       interlocutory appeal under a de novo standard. Moore, 2012 IL 112788, ¶ 9; see also Bajalo,
       369 Ill. App. 3d at 580.

¶ 12                                         A. Timing
¶ 13        Turning to the merits, we first address what time should determine the
       viability/insolvency of the general contractor, so as to permit the aggrieved purchaser to
       proceed against the subcontractors. EZ Masonry argues that the proper time to determine the
       solvency of the general contractor (Platt) should be the date of the filing of the initial
       complaint, in this case December 31, 2008, and not, as the circuit court found, the date of the
       last amended complaint, January 8, 2013. EZ Masonry contends that there must be some time
       limit to the exposure of subcontractors in claims for the breach of the implied warranty of
       habitability based upon the insolvency of a general contractor. It further argues that in this
       case it is unfair to use the date of the fourth amended complaint to determine Platt’s
       insolvency, since that amended complaint was filed some 8 years after the construction of
       the building and 4½ years after the commencement of the litigation. We strongly disagree.
¶ 14        EZ Masonry’s argument ignores the public policy behind the judicial creation of the
       implied warranty of habitability. As we have articulated twice before in both Pratt I and
       Pratt II, the implied warranty of habitability is a “creature of public policy” that was
       explicitly designed by our courts “to protect purchasers of new houses upon discovery of
       latent defects in their homes.” Redarowicz v. Ohlendorf, 92 Ill. 2d 171, 183 (1982). The
       rationale for the application of the policy has been threefold. See Board of Directors of
       Bloomfield Club Recreation Ass’n v. The Hoffman Group, Inc., 186 Ill. 2d 419, 425-26
       (1999); VonHoldt v. Barba & Barba Construction, Inc., 175 Ill. 2d 426, 430-31 (1997);
       Redarowicz, 92 Ill. 2d at 183; Petersen v. Hubschman Construction Co., 76 Ill. 2d 31, 39-40
       (1979). First, purchasers of new homes “generally do not [have] the ability to determine
       whether the houses they have purchased contain latent defects.” Bloomfield Club, 186 Ill. 2d
       at 425. Second, “[t]he purchaser needs this protection because, in most cases, [he or she] is
       making the largest single investment of his or her life and is usually relying upon the honesty
       and competence of the builder, who, unlike the typical purchaser, is in the business of
       building homes.” Bloomfield Club, 186 Ill. 2d at 425. And finally, “[i]f construction of a new
       house is defective, its repair costs should be borne by the responsible builder-vendor who
       created the latent defect,” rather than the innocent and unknowing purchaser. Redarowicz,
       92 Ill. 2d at 183.

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¶ 15        On the basis of this rationale, our courts have steadily expanded the application of the
       warranty to serve the underlying public policy of protecting new homeowners and holding
       those responsible for the construction of the buildings accountable for latent defects in
       residences that they construct. See, e.g., Redarowicz, 92 Ill. 2d at 183 (expanding the class
       of plaintiffs with standing to sue for a violation of the implied warranty of habitability to
       successive purchasers); VonHoldt, 175 Ill. 2d at 430 (expanding the type of structures
       covered by the warranty to include new additions to existing buildings); McClure v.
       Sennstrom, 267 Ill. App. 3d 277 (1994) (expanding the warranty of habitability to include
       a house built on a preexisting foundation); Briarcliffe West Townhouse Owners Ass’n v.
       Wiseman Construction Co., 118 Ill. App. 3d 163 (1983) (expanding the warranty to a vacant
       common lot of a townhouse development); Herlihy v. Dunbar Builders Corp., 92 Ill. App.
       3d 310 (1980) (expanding the warranty to apply to common elements of condominiums);
       Park v. Sohn, 89 Ill. 2d 453 (1982) (expanding the class of potential defendants to include
       a builder-vendor that is not in the business of building); Hefler v. Wright, 121 Ill. App. 3d
       739 (1984) (expanding the class of potential defendants to include a builder that erected a
       house manufactured by another party); Minton, 116 Ill. App. 3d at 855 (extending the
       warranty to subcontractors where a builder-vendor is insolvent and the purchaser has no
       available recourse against it); Tassan v. United Development Co., 88 Ill. App. 3d 581 (1980)
       (extending the warranty to developers).
¶ 16        Adhering to these same public policy principles, in Minton, we specifically expanded the
       application of the implied warranty of habitability to subcontractors to “protect innocent
       purchasers” who had “no recourse to the builder-vendor and [had] sustained loss due to the
       faulty and latent defect in their new home caused by the subcontractor.” Minton, 116 Ill. App.
       3d at 855.
¶ 17        EZ Masonry’s position that insolvency of the general contractor should be determined
       on the date of filing of the initial complaint goes against the very public policy intended to
       protect “innocent purchasers” from latent defects that they are likely to find many years later.
       What is more, it ignores the reality that a general contractor may become insolvent after the
       filing of the initial lawsuit, and even perhaps as a result of that lawsuit. In fact, in Minton,
       wherein we expanded the warranty to apply to subcontractors responsible for the latent
       defects if no recourse could be had against the builder-vendor, the plaintiffs did not pursue
       their claim against the subcontractor in their original complaint. Minton, 116 Ill. App. 3d at
       853. Rather, they did so in their second pleading (their first amended complaint) and only
       after the general contractor was dissolved as a corporation and found to be insolvent. See
       Minton, 116 Ill. App. 3d at 853. Accordingly, we fail to see how EZ Masonry can argue that
       the proper date for determining insolvency of the general contractor is the date of the initial
       complaint. See Minton, 116 Ill. App. 3d at 853; see also Dearlove Cove Condominiums v.
       Kin Construction Co., 180 Ill. App. 3d 437, 440 (1989) (permitting the plaintiffs to amend
       their complaint alleging the breach of the implied warranty of habitability to include the
       subcontractors, over two years after the filing of the initial complaint against the general
       contractor, where the general contractor became insolvent; complaint was permitted to
       proceed against the subcontractors even though it was not filed within the applicable two
       year statute of limitations for such claims, since the original complaint against the general

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       contractor was timely filed); see also 15 Solomon Gutstein, Eileen Murphy & Joshua
       Gutstein, Illinois Practice § 13:64 (2d ed. 2012) (“If the builder-vendor is insolvent, a new
       cause of action [against the subcontractor] arises on the date of insolvency.” (Emphasis
       added.)).

¶ 18                            B. The Level of Insolvency Required
¶ 19       We next turn to the second certified question, i.e., whether the condominium association
       may pursue its claim against EZ Masonry, when Platt is “insolvent, but in good standing with
       limited assets.” EZ Masonry contends that it would be unfair to permit the condominium
       association to pursue its claim against EZ Masonry where Platt is a viable corporation that
       has succeeded in defending itself in this litigation for years. Citing to three decisions by this
       appellate court, Minton, 116 Ill. App. 3d at 855, Washington Courte Condominium Ass’n-
       Four v. Washington-Golf Corp., 150 Ill. App. 3d 681 (1986), and Pratt II, 2012 IL App (1st)
       111474, ¶¶ 35-40, EZ Masonry contends that there remains uncertainty as to whether the
       determining factor in whether a purchaser can proceed against a subcontractor is “solvency,”
       “no recourse” or “the viability” of a corporation. After a review of those cases, we strongly
       disagree.
¶ 20       The law in Illinois is clear. An innocent purchaser may proceed on a claim for the breach
       of the implied warranty of habitability against a subcontractor where the builder-vendor is
       insolvent. See Minton, 116 Ill. App. 3d at 855; see also Washington Courte, 150 Ill. App. 3d
       at 689; Pratt II, 2012 IL App (1st) 111474, ¶¶ 35-40; see also Dearlove Cove Condominiums,
       180 Ill. App. 3d at 440; see also Gutstein et al., supra § 13:63 (“The warranty has been held
       to bind a subcontractor who did defective work in a case where the builder-vendor dissolved
       without assets, although there was no privity between the owner and the subcontractor.
       However, the subcontractor is not bound by the warranty if the contractor is not insolvent.”
       (Emphasis added.)).
¶ 21       In Minton, the seminal case expanding the application of the implied warranty of
       habitability to subcontractors, the builder-vendor from whom the plaintiffs had purchased
       their home dissolved as an entity. Minton, 116 Ill. App. 3d at 853. Prior to the dissolution,
       the plaintiffs had demanded that the builder-vendor correct the peeling paint on the outside
       of their home and filed a complaint against it. Minton, 116 Ill. App. 3d at 853. The builder-
       vendor made no repairs, and when it dissolved, the plaintiffs pursued their breach of the
       implied warranty of habitability claim against the responsible subcontractor. Minton, 116 Ill.
       App. 3d at 853. The circuit court dismissed the plaintiffs’ claim against the subcontractor and
       the plaintiffs appealed, arguing that the implied warranty of habitability should be applied
       to a subcontractor of a builder-vendor where the builder-vendor was dissolved and is
       insolvent. Minton, 116 Ill. App. 3d at 854. The court in Minton agreed with the plaintiffs and
       held:
           “[W]here the innocent purchaser has no recourse to the builder-vendor and has sustained
           loss due to the faulty and latent defect in their new home caused by the subcontractor, the
           warranty of habitability applies to such subcontractor.” Minton, 116 Ill. App. 3d at 855.
       In coming to this decision, the court reasoned:

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           “Purchasers from a builder-vendor depend upon his ability to construct and sell a home
           of sound structure and his ability to hire subcontractors capable of building a home of
           sound structure. *** The plaintiffs here had no control over the choice of [the builder-
           vendor] to paint the eaves and windows of their home, and [the builder-vendor] was in
           the better position to know which subcontractor could perform the work adequately.”
           Minton, 116 Ill. App. 3d at 854.
¶ 22       Several years after Minton, in Washington Courte, 150 Ill. App. 3d at 689, our appellate
       court revisited the issue of whether the implied warranty of habitability can be extended to
       subcontractors. In that case, the plaintiffs did not present evidence that the general contractor
       was insolvent until six months after the subcontractor’s reply brief had been filed. Under that
       record, the appellate court held that “the allegation of insolvency [was] legally
       unsubstantiated and [was] a matter de hors the record.” Washington Courte, 150 Ill. App. 3d
       at 689. Accordingly, the court concluded that the Minton exception did not apply.
       Washington Courte, 150 Ill. App. 3d at 689. Contrary to EZ Masonry’s suggestion, nothing
       in Washington Courte negates the position that “insolvency” of the general contractor is the
       determining factor in establishing whether a purchaser can proceed against a subcontractor
       on a breach of implied warranty of habitability claim. See Washington Courte, 150 Ill. App.
       3d at 689 (“we reject plaintiffs’ allegation that Washington-Golf Corporation is insolvent on
       the grounds that the allegation of insolvency is legally unsubstantiated and is a matter de hors
       the record. Therefore, the issue is not properly before this court. [Citation.] As a result, we
       find the Minton exception inapplicable.” (Emphasis added.)).
¶ 23       Three years after Washington Courte, in Dearlove Cove Condominiums, 180 Ill. App. 3d
       at 440, we held that where a plaintiff timely filed his action against a general contractor for
       construction defects, and the general contractor subsequently became insolvent, under
       Minton, the plaintiff could proceed against the subcontractor even if he failed to file the
       complaint within the applicable statute of limitations so long as the action was timely filed
       against the general contractor. In that case, we reiterated that Minton stood for the
       proposition that a purchaser can proceed against a subcontractor if a builder-vendor is
       “insolvent.” See Dearlove Cove Condominiums, 180 Ill. App. 3d at 439-40 (“As long as the
       plaintiffs’ original action against the general contractor is timely, we believe that the
       plaintiffs should able to bring their action against the subcontractor within two years from
       the time at which the plaintiff knew or reasonably should have known of the existence of the
       right to sue. [Citation.] Thus, the plaintiffs had two years from the time they knew or should
       have known of the general contractor’s insolvency.” (Emphasis added.)).
¶ 24       Following the rationale in Minton, Washington Courte and Dearlove Cove
       Condominiums, in Pratt II, and under the record we had before us then, which included no
       allegations regarding Platt’s insolvency, we held that the condominium association could not
       proceed against EZ Masonry “while it still had recourse against Platt.” Pratt II, 2012 IL App
       (1st) 111474, ¶ 39. In doing so, we specifically held that unlike the developer, Wayne, Platt
       was solvent. See Pratt II, 2012 IL App (1st) 111474, ¶ 39.
¶ 25       Under the aforementioned precedent, which we find to be consistent, we hold and clarify
       that for purposes of determining whether a purchaser may proceed against a subcontractor
       on a breach of implied warranty of habitability claim, the court must look to whether the

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       general contractor is solvent. Insolvency simply means that a party’s liabilities exceed the
       value of its assets, and that it has stopped paying debts in the ordinary course of business. See
       Black’s Law Dictionary 799 (7th ed. 2007); see also 740 ILCS 160/3 (West 2010) (“(a) A
       debtor is insolvent if the sum of the debtor’s debts is greater than all of the debtor’s assets
       at a fair valuation. (b) A debtor who is generally not paying his debts as they become due is
       presumed to be insolvent.”). It is the burden of the purchaser to establish that the general
       contractor is insolvent before it can proceed against the subcontractor on such a claim. Once
       the purchaser becomes aware that the general contractor is insolvent, it must file an amended
       complaint, alleging the insolvency and seeking to proceed against the subcontractor.
¶ 26        In the present case, the circuit court held that Platt “is insolvent, but is in good standing
       with limited assets.” Under that record, and factual finding, which we have no basis to
       disturb,2 we are compelled to conclude that the condominium association may proceed with
       its breach of the implied warranty of habitability claim against EZ Masonry.

¶ 27                                   III. CONCLUSION
¶ 28       For the foregoing reasons, we remand to the circuit court for further proceedings.

¶ 29       Remanded.




               2
                 The condominium association asserts in its brief that during the limited discovery held on
       the issue of Platt’s solvency, Platt admitted that its liabilities are currently greater than the value of
       its assets, and that it has no assets other than a sign which is believed to have no market value, and
       one outstanding receivable for $3,500. Platt further listed its liabilities as: (1) money owed to
       subcontractors; (2) $90,000 owed on a line of credit; and (3) ongoing attorney fees related to this
       litigation. EZ Masonry asks that we strike this portion of the condominium association’s brief as it
       cites to an appendix, which was not properly submitted before this court as part of a supplementary
       supporting record, as is required under Illinois Supreme Court Rule 308 (Ill. S. Ct. R. 308 (eff. Feb.
       26, 2010)). We need not strike that portion of the brief, however, since we do not rely on these facts
       in coming to our conclusion, but rather merely rest our conclusion on the circuit court’s factual
       finding that Platt is “insolvent.”

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