Nos. 1-14-3849, 1-14-3953, & 1-15-0033 (cons.)

THIRD DIVISION October 26, 2016 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

BOARD OF MANAGERS OF THE 1120 CLUB ) CONDOMINIUM ASSOCIATION, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellant, ) ) v. ) No. 12 L 7092 ) 1120 CLUB, LLC, an Illinois Limited Liability ) The Honorable Company, and TRAPANI CONSTRUCTION ) Margaret Brennan, COMPANY, INC., an Illinois Company, ) Judge Presiding. ) Defendants-Appellees, ) ) (1120 Club, LLC, Third-Party Plaintiff Appellant, ) v. Trapani Construction Company, Inc., Legat ) Architects, Inc., and The Rise Group, LLC, Third- ) Party Defendants-Appellees; Trapani Construction ) Company, Inc., Fourth-Party Plaintiff-Appellant, ) v. MacDonald Construction Services, Inc., Kole ) Construction Company, Inc., Boyle Construction ) Company, Inc., Howard Concrete, Streich ) Corporation, and Stock Building Supply, Inc., ) Fourth-Party Defendants-Appellees). )

_____________________________________________________________________________

JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justices Lavin and Cobbs concurred in the judgment and opinion.

OPINION 1-14-3849, 1-14-3953, & 1-15-0033 (cons.)

¶1 This matter arises from claims by the plaintiff, Board of Managers of the 1120 Club

Condominium Association (Board), that a condominium building developed and sold by

defendant 1120 Club, LLC (LLC) and built by defendant Trapani Construction Company, Inc.

(Trapani) suffered from a number of construction defects. In addition to being a direct defendant

on the claims brought by the Board, Trapani was also a third-party defendant to claims brought

by the LLC. In turn, in response to the claims brought by both the Board and the LLC, Trapani

filed third-party and fourth-party claims against various subcontractors. This single civil case led

to three separate appeals, which were consolidated.

¶2 After a somewhat convoluted procedural history, the trial court granted Trapani’s

motions to dismiss the claims brought against it by the Board and the LLC on the bases that the

Board had elected to pursue recourse from the LLC and thus could not seek recourse from

Trapani and that the LLC lacked standing to bring its claims. The grant of these motions resulted

in the dismissal of Trapani’s claims against the subcontractors. After the trial court entered

Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) findings on the respective dismissal

orders, the Board, the LLC, and Trapani brought these consolidated appeals. For the reasons that

follow, we reverse and remand for further proceedings.

¶3 BACKGROUND

¶4 In May 2009, the Board instituted this action by filing suit against the LLC and 1120

Retail, LLC (Retail). The Board then amended its complaint. The Board’s amended complaint

alleged that the Board is the governing body of the 1120 Club Condominium development

located at 1124 Lake Street, Oak Park, Illinois. The Board alleged that residential units and

common elements of the building were damaged as a result of construction defects, including the

installation of fiber cement siding rather than brick and architectural stone. The Board further

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alleged that the fiber cement siding was improperly installed and that it warped and/or failed,

allowing water to penetrate the building, causing extensive damage to the common elements and

residential units of the building. In addition, the Board alleged that the flashings around windows

and doors were improperly designed and/or installed, resulting in water penetration into the

building; mold and mildew infiltration into the residential units and common elements of the

building; water damage to residential units from the water penetration on the fourth and seventh

floors; and a lack of proper flashing at certain fourth-floor units and on the west wall of the

swimming pool.

¶5 Against the LLC, the developer and seller of the development, the amended complaint

alleged claims of breach of contract, breach of express warranty, consumer fraud, and negligent

misrepresentation. Against both the LLC and Retail, the Board alleged breach of contract and

sought an injunction related to the reimbursement of expenses the Board claimed it was due from

the defendants.

¶6 On March 29, 2011, the LLC filed its third-party complaint against Trapani, alleging that

Trapani and its subcontractors were responsible for the construction defects alleged by the

Board. The LLC’s third-party complaint sounded in breach of contract, express indemnification,

and implied indemnification.

¶7 On May 11, 2011, the LLC filed a petition for Chapter 7 bankruptcy. Thereafter, the

instant matter was placed on the stay calendar due to the bankruptcy.

¶8 In June 2012, the Board filed a motion seeking to have the case removed from the stay

calendar on the grounds that the bankruptcy court had modified the stay to allow the Board to

pursue its claims against the LLC to the extent of the LLC’s available insurance. The trial court

granted the Board’s motion and removed the matter from the bankruptcy calendar.

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¶9 On August 24, 2012, the Board filed its second amended complaint. In the second

amended complaint, the Board dropped its claims against Retail, thereby removing Retail from

this action, and instead chose to bring claims against only the LLC and Trapani. More

specifically, it sounded in claims of breach of contract, breach of express warranty, consumer

fraud, and negligent misrepresentation against the LLC. Counts VI and VII of the second

amended complaint alleged claims of breach of implied warranty of habitability and breach of

implied warranty of good workmanship against Trapani.

¶ 10 Trapani moved to dismiss counts VI and VII of the Board’s second amended complaint

on the grounds that, under the holding of Minton v. Richards Group of Chicago,

(1983), the Board could not directly sue Trapani without first establishing that the LLC was

insolvent and the Board had no recourse against the LLC. According to Trapani, the Board could

not clear this procedural hurdle because it was pursuing the LLC’s insurance, indicating that the

LLC was not insolvent and that the Board had recourse against the LLC. The Board refuted these

contentions by arguing that the LLC was, in fact, insolvent because the insurance proceeds were

not property of the bankruptcy estate and because the holding of 1324 W. Pratt Condominium

Ass’n. v. Platt Construction Group, Inc.,

(2010) (Pratt I), permitted a direct

action against builders. On April 9, 2013, the trial court denied Trapani’s motion to dismiss.

¶ 11 In the meantime, Trapani filed its third-party complaint against subcontractors

MacDonald Construction Services, Inc., Kole Construction Company, Inc., Boyle Construction

Company, Inc., Howard Concrete, Streich Corporation, and Stock Building Supply, Inc.

(hereafter collectively referred to as the subcontractors), which it later amended. Trapani’s first

amended third-party complaint sought contribution from each of the subcontractors for their

portion of liability for the damages alleged by the Board. Trapani also brought counts for breach

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of contract, breach of express warranty, breach of implied warranty of workmanship, and breach

of contract to procure insurance against each of the subcontractors.

¶ 12 Certain subcontractors brought motions to dismiss Trapani’s first amended third-party

complaint. Some of them argued that it should be dismissed because the Board did not have a

cause of action against Trapani under Minton. On December 4, 2013, the trial court agreed and

granted the subcontractors’ motions to dismiss with prejudice based on the Minton arguments.

The trial court also sua sponte reversed its previous denial of Trapani’s motion to dismiss counts

VI and VII of the Board’s second amended complaint and entered an order dismissing the

Board’s claims against Trapani with prejudice. The trial court then dismissed all of the other

subcontractors with prejudice.

¶ 13 On January 3, 2014, the Board filed a motion to reconsider the trial court’s dismissal of

counts VI and VII against Trapani. In that motion, the Board argued that it had a claim against

Trapani independent of Minton and that, even if it did not, the LLC was insolvent, such that the

Board could pursue Trapani under Minton. Trapani and subcontractor Stock responded to the

Board’s motion to reconsider, arguing that the trial court’s dismissal was proper because Minton

did, in fact, govern the Board’s claims against Trapani, and the LLC was solvent.

¶ 14 While the parties were briefing the Board’s motion to reconsider, the LLC filed a motion

requesting that its third-party complaint against Trapani be removed from the bankruptcy

calendar and reinstated. The trial court granted the LLC’s motion. The LLC then requested leave

to file an amended third-party complaint. The trial court granted the LLC’s motion and also

reinstated Trapani’s third-party complaint and converted it to a fourth-party complaint. The

amended third-party complaint filed by the LLC contained three counts against Trapani (breach

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of contract, express indemnification, and implied indemnification) and a count of breach of

contract against The Rise Group, LLC (Rise Group), and Legat Architects, Inc. (Legat).

¶ 15 Legat filed a motion to dismiss the breach of contract claim against it in the LLC’s

amended third-party complaint arguing that the LLC failed to comply with all of the conditions

of their contract by failing to attend mediation. Legat also argued that pursuant to the contract

between Legat and the LLC, the LLC’s exclusive remedy was arbitration. It does not appear

from the record that Rise Group filed any responsive pleading to the LLC’s amended third-party

complaint.

¶ 16 On June 17, 2014, the trial court issued its corrected order denying the Board’s motion to

reconsider. In that order, the trial court explained that by electing to pursue the LLC’s insurance

proceeds, the Board foreclosed its opportunity to “bridge the lack of privity (under Minton)”

between the Board and Trapani and to seek recovery from any “down the line” contractors.

According to the trial court, the matter was one involving an election of remedies, as the Board

could choose to either recover the LLC’s insurance proceeds or use the Minton exception to

extract recovery from Trapani.

¶ 17 Trapani moved to dismiss the LLC’s amended third-party complaint on the ground,

among others, that the LLC lacked standing to bring the suit against Trapani, because upon filing

the bankruptcy petition, ownership of the claim transferred to the bankruptcy estate and could

only be pursued by the bankruptcy trustee. Likewise, a number of the subcontractors moved to

dismiss Trapani’s fourth-party complaint on the same basis, i.e., that the LLC lacked standing to

pursue its claim against Trapani. The LLC responded to these motions by arguing that it did have

standing because (1) its claim against Trapani did not belong to the bankruptcy estate because it

related to insurance proceeds, which were not property of the bankruptcy estate and (2) on

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September 4, 2014, after Trapani and the subcontractors filed their motions to dismiss, the

bankruptcy trustee assigned any claims against Trapani in the present matter to the LLC.

¶ 18 On November 13, 2014, the trial court granted Trapani’s motion and dismissed the LLC’s

amended third-party complaint with prejudice. As a result of the dismissal of the LLC’s third-

party claims, the trial court also dismissed with prejudice Trapani’s fourth-party complaint

against the subcontractors. The trial court found Legat’s motion to dismiss to be moot given the

dismissal of the LLC’s amended third-party complaint with prejudice. Although the order does

not mention Rise Group specifically, the order’s reference to the dismissal of “the entirety of [the

LLC’s] amended third-party complaint against all third-party defendants with prejudice”

indicates that the breach of contract claim against Rise Group was also dismissed with prejudice.

¶ 19 The LLC requested leave to file a second amended third-party complaint based on the

contention that it had standing by way of the bankruptcy trustee’s assignment. On December 3,

2014, the trial court denied the LLC’s request and instead entered Rule 304(a) findings as to its

orders dated December 4, 2013, June 17, 2014, November 13, 2014, and December 3, 2014.

¶ 20 The Board, the LLC, and Trapani each filed timely notices of appeal.

¶ 21 ANALYSIS

¶ 22 I. Appeal No. 1-14-3849 (Board v. LLC, et al.)

¶ 23 In its appeal, the Board contends that the trial court erred in dismissing counts VI and VII

of its second amended complaint by applying the doctrine of election of remedies. According to

the Board, the method and manner by which the trial court applied the election of remedies

doctrine constituted reversible error, and even if it did not, the trial court’s dismissal of counts VI

and VII is reversible because the Board has a cause of action against Trapani independent of

Minton. Because we agree with the Board’s latter contention, we reverse.

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¶ 24 An order of dismissal pursuant to a section 2-619 of the Illinois Code of Civil Procedure

(735 ILCS 5/2-619 (West 2014)) is reviewed de novo. Porter v. Decatur Memorial Hospital,

(2008). The section 2-619 motion admits as true all well-pleaded facts and all

reasonable inferences to be drawn from the facts.

In addition, all pleadings and supporting

documents must be construed in the light most favorable to the non-moving party.

¶ 25 The trial court’s order granting Trapani’s motion to dismiss does not explain the trial

court’s basis for its sudden reversal of its position. In denying the Board’s motion to reconsider,

however, the trial court concluded that the Board, in electing to pursue the LLC’s insurance,

foreclosed its opportunity to pursue recovery from “down the line” contractors under Minton.

Whether this constituted an erroneous application of the election of remedies doctrine, as the

Board argues, need not be determined here, as the Board’s cause of action against Trapani for

breach of the implied warranty of habitability lies not under Minton, but under Pratt I.

¶ 26 The purpose of the implied warranty of habitability is to protect homeowners from latent

defects in their homes that affect the habitability of those residences. Board of Directors of

Bloomfield Club Recreation Ass’n. v. Hoffman Group, Inc.,

(1999). Three

major policy considerations underlie the warranty of habitability: (1) purchasers today typically

do not have the ability to assess whether the home they purchased contains latent defects; (2) in

making what is most likely the single biggest investment of their lives, purchasers rely upon the

honesty and competence of the builder; and (3) if defects exist in the home, the cost of repairing

those defects should be borne by the builder who caused the defect. Pratt I,

-17 (citing Bloomfield Club,

, and Redarowicz v. Ohlendorf,

(1982)).

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¶ 27 To achieve this purpose and serve those policies, the class of potential defendants to a

claim for breach of the warranty of habitability has been expanded beyond the builder-vendor or

developer-vendor to include builders who are not involved in the sale of the residence. Pratt I,

. In Pratt I, the plaintiff condo association filed suit against the defendant

builder, the developer-vendor, and the roofing subcontractor after the unit owners discovered

leaks around their windows.

. Among the claims brought against the builder was a

claim for breach of the implied warranty of habitability, which the trial court dismissed on the

basis that it applied only to builder-vendors, i.e., builders that were also involved in the sale of

the residences.

. On appeal, this court reversed, holding that the implied warranty of

habitability is applicable to builders, regardless of whether the builders were involved in the sale

of the residence.

. We concluded that holding builders accountable for the latent defects

in homes they build and placing the costs of repairing those defects on the builder who created

the defects was consistent with the purposes of the implied warranty of habitability.

¶ 28 Here, the Board alleged that Trapani, as the general contractor, built the building and

residences at issue, and we take all well-pled allegations in the Board’s second amended

complaint as true. See Porter,

. Thus, Pratt I governs the question of whether

the implied warranty of habitability applies to Trapani. As discussed above, it does.

¶ 29 The trial court appears to have assumed, and Trapani and the subcontractors argue on

appeal, that the Board’s claims against Trapani are governed by Minton. In Minton, the warranty

of habitability was extended to subcontractors in those situations “where 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.” Minton,

. We later clarified

that to pursue a claim against a subcontractor, the plaintiff must demonstrate that the builder-

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vendor is insolvent (as opposed to showing a lack of recourse against the builder-vendor). 1324

W. Pratt Condominium Ass’n. v. Platt Construction Group, Inc.,

(Pratt III).

¶ 30 Trapani and the subcontractors attempt to expand Minton’s application beyond

subcontractors to all non-vendor contractors by arguing that the Board cannot pursue its claim

for breach of the warranty of habitability against Trapani because it cannot first show that the

developer-vendor, the LLC, is insolvent. Yet, the Minton court addressed only subcontractors,

not builders/general contractors, and we see no reason to expand Minton’s holding in light of the

existence of Pratt I. When this court determined in Pratt I that the implied warranty of

habitability applied to builders in general, it did not discuss the holding in Minton, much less

hold that claims for breach of the implied warranty of habitability against builders are only

actionable if the developer-vendor (or anyone else “in line” before the builder, for that matter) is

insolvent. Other than Minton, the parties have not cited, and we have not found, any case law

that requires a plaintiff to apply the implied warranty of habitability against potential defendants

in a specific sequence.

¶ 31 Nevertheless, Trapani and the subcontractors contend that Pratt I maintains the

insolvency requirement of Minton because the developer-vendor (the subcontractors erroneously

refer to it as the builder-vendor) in that case was involuntarily dissolved prior to suit and, thus,

there was no recourse against the developer-vendor, allowing the plaintiff to proceed against the

next in line, the builder. This distinction, however, does not change our analysis. First, as we

clarified in Pratt III, the relevant inquiry under Minton is insolvency, not availability of recourse.

Pratt III,

. Second, involuntary dissolution is not necessarily the

same thing as insolvency. Involuntary dissolution may occur under a number of circumstances,

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some of which may or may not include the company’s insolvency. See 805 ILCS 180/35-1(4)

(West 2014). Finally, this Court, in issuing its decision in Pratt I, did not consider the

developer’s involuntary dissolution or solvency status in reaching the conclusion that the implied

warranty of habitability applied to the builder. Accordingly, the fact that the developer in Pratt I

was involuntarily dissolved at the time of suit is a distinction without a difference.

¶ 32 As discussed above, the purpose of the warranty of habitability is served by allowing

plaintiffs to proceed against builders. The conclusion that the developer need not be insolvent

before a claim for breach of the implied warranty of habitability is brought against the builder

further serves that purpose, as it is the builder, even more than the developer, that is in a position

to prevent latent defects and that is most accountable for any defects that might occur. To require

a plaintiff to first pursue the developer before it can pursue the entity most responsible for any

defects, simply because the developer was the seller (or extended the warranty, as Trapani and

the subcontractors refer to it) is untenable.

¶ 33 The subcontractors also argue that if we were to accept the Board’s interpretation of Pratt

I, plaintiffs would be able to choose between bringing suit against the builder-vendor or the

general contractor. As a result, the subcontractors contend, the builder-vendor would be able to

escape liability, despite the fact that it was the entity that extended the warranty to the buyers.

Initially, despite the subcontractors’ contentions to the contrary, the LLC is alleged to have been

the developer-vendor of the properties at issue, as opposed to the builder-vendor. Trapani,

although admittedly not a vendor, is alleged to have been hired not only as a general contractor,

but also to construct the properties at issue, thus making it both a general contractor and a

builder. Accordingly, the contention that the Board is choosing between a builder-vendor and a

general contractor in this case is misleading.

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¶ 34 The real concern of the subcontractors seems to be in allowing the builder (and, in this

case, general contractor) to be pursued without vendor status, because the builder did not extend

the warranty to the purchaser. This concern, however, was already addressed in Pratt I when this

Court reiterated the Supreme Court’s statements that although the warranty of habitability has

roots in sale contracts, the warranty exists independently and does not require privity of contract.

Pratt I,

(citing Redarowicz,

). Because the implied

warranty of habitability is implied in law and not a product of a contractual agreement, to say

that the seller “extends” the warranty to the purchaser is a misnomer; the law extends the

warranty to the purchaser. See Redarowicz,

(referring to the implied warranty of

habitability as a “judicial innovation that has evolved to protect purchasers of new houses upon

discovery of latent defects in their homes”).

¶ 35 Because Pratt I permits a plaintiff to pursue a builder for breach of the implied warranty

of habitability regardless of the solvency status of the developer-vendor and because the holding

in Minton does not apply in this case, the trial court’s determination that the Board’s pursuit of

the LLC’s insurance precludes its pursuit of Trapani constituted error and warrants reversal. For

the same reasons, it is unnecessary to assess whether the trial court’s ruling qualified as a proper

application of the election of remedies doctrine or to entertain the subcontractors’ argument that

the holding in Minton should be revisited.

¶ 36 It should be noted that although Count VI of the Board’s second amended complaint

alleged breach of the implied warranty of habitability, count VII alleged breach of the implied

warranty of good workmanship. The Board requested reversal of the dismissal of both counts VI

and VII on the same grounds, and the trial court dismissed the two counts for the same reasons.

Neither Trapani nor the subcontractors objected to this request on the grounds that a different

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analysis applies to the Board’s claim for breach of the implied warranty of good workmanship.

Rather, Trapani and the subcontractors make no distinction between the two counts when

arguing that the trial court’s dismissal of the counts should be affirmed. Accordingly, any

contention that the two counts require separate and distinct analysis is waived, and we do not

offer any opinion on if and to what extent a claim for breach of implied warranty of habitability

differs from a claim for breach of implied warranty of good workmanship.

¶ 37 II. Appeal No. 1-14-3953 (LLC v. Trapani, et al.)

¶ 38 In its appeal, the LLC argues that the trial court erred in dismissing its amended third-

party complaint against Trapani for lack of standing and in denying its motion for leave to file a

second amended third-party complaint. Because we conclude that the bankruptcy trustee’s

assignment of the claim against Trapani to the LLC revested the LLC with standing nunc pro

tunc, we agree with the LLC’s former contention.

¶ 39 Trapani’s Motion to Dismiss did not identify whether it was brought pursuant to section

2-615 (735 ILCS 5/2-615 (West 2014)) or section 2-619 (735 ILCS 5/2-619 (West 2014)) of the

Illinois Code of Civil Procedure. Presumably, Trapani intended to bring its motion pursuant to

section 2-619, as such is the appropriate vehicle for arguing lack of standing. Glisson v. City of

Marion,

(1999). Orders dismissing a matter for lack of standing are reviewed

de novo.

¶ 40 The LLC argues that it did not lack standing to bring its third-party claim against Trapani

because (1) the insurance proceeds that were sought by the Board were not part of the

bankruptcy estate and any recovery obtained on the LLC’s amended third-party complaint would

simply offset the insurance companies’ liability, and (2) even if the insurance proceeds were

properly considered part of the bankruptcy estate, the bankruptcy trustee abandoned any claims it

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had against Trapani by assigning them to the LLC. Because we agree with the latter, we need not

address the former.

¶ 41 Although standing is typically determined from the allegations of the complaint on the

date that suit is commenced (People ex rel. Lee v. Kenroy, Inc.,

(1977)),

if a party to a lawsuit files for bankruptcy, that party is divested of standing to pursue the claim

(see Dailey v. Smith,

(1997)), even if suit has already been filed. This is

because once a bankruptcy action is instituted, all unliquidated lawsuits become part of the

bankruptcy estate and only the bankruptcy trustee has standing to pursue them.

. If,

however, the bankruptcy trustee abandons or assigns property, then the property reverts back to

the debtor in the same condition as if a bankruptcy trustee had never been appointed. Buller v.

Buller,

(1973); see also In re Dewsnup,

(10th Cir.

1990) (abandoned property “reverts to the debtor and stands as if no bankruptcy petition was

filed”); Mason v. Commissioner of Internal Revenue,

(9th Cir. 1980)

(“When the court grants a trustee’s petition to abandon property in a bankrupt’s estate, any title

that was vested in the trustee is extinguished, and the title reverts to the bankrupt, nunc pro

tunc.”).

¶ 42 It is undisputed that the bankruptcy trustee did not assign the claim against Trapani to the

LLC until after the LLC had filed its amended third-party complaint. In addressing the effect of

that subsequent assignment, the trial court stated as follows:

“I think the case law—you can’t come back and bring standing into play. You can’t—

you either have it at the time you file your suit or you don’t. You can’t come back and

say, well, I have it now so, you know, we’re all good. We can move forward.

-14- 1-14-3849, 1-14-3953, & 1-15-0033 (cons.)

You didn’t have it. It was a claim of the trustee. The trustee did not file it and

therefore it’s dismissed.”

Although this conclusion might be correct in a case where standing is affected by something

other than bankruptcy, it is not correct where standing was divested due to the filing of

bankruptcy and the claim is later abandoned or assigned by the trustee. Rather, once a claim is

assigned back to the debtor by the bankruptcy trustee, standing revests in the debtor, as if the

debtor had never lost standing in the first place. See Hoth v. Stogsdill,

(1991); see also Morlan v. Universal Guaranty Life Insurance Co.,

(7th Cir.

2002) (“And actually, despite the attention we’ve been paying to getting the sequence [of the

abandonment versus the filings in the underlying claim] right, the sequence doesn’t matter; for

when property of the bankrupt is abandoned, the title ‘reverts to the bankrupt, nunc pro tunc, so

that he is treated as having owned it continuously.’ ” (quoting Wallace v. Lawrence Warehouse

Co.,

, 394 n.1 (9th Cir. 1964))).

¶ 43 In Hoth, the plaintiff brought an action for legal malpractice while her bankruptcy action

was still pending. The defendants moved to dismiss her claim, arguing that the legal malpractice

claim belonged to the bankruptcy estate and that unless and until the bankruptcy trustee

abandoned the claim, the plaintiff lacked standing to pursue it. Hoth,

. The

trial court agreed and dismissed the plaintiff’s action with prejudice. After the trial court’s

dismissal, the bankruptcy court entered an order authorizing the bankruptcy trustee to assign to

the plaintiff whatever interest the trustee had in the legal malpractice claim. Relying on this

order, the plaintiff filed a motion to reconsider in the trial court. After the plaintiff filed her

motion to reconsider but before the trial court ruled on it, the trustee formally assigned the legal

-15- 1-14-3849, 1-14-3953, & 1-15-0033 (cons.)

malpractice claim to the plaintiff. Nevertheless, the trial court denied the plaintiff’s motion to

reconsider.

.

¶ 44 On appeal, the appellate court reversed the trial court’s dismissal of the plaintiff’s claim.

In doing so, the court observed that at the hearing on the plaintiff’s motion to reconsider, the

plaintiff presented to the trial court the bankruptcy court’s order authorizing the assignment of

the legal malpractice claim. According to the appellate court, that order made clear that the

plaintiff then had standing to pursue the legal malpractice claim.

. Therefore, the trial

court should have granted the plaintiff’s motion to reconsider and vacated its order dismissing

the plaintiff’s case.

.

¶ 45 Like in Hoth, the amended third-party complaint in this case was filed at a time when the

LLC arguably lacked standing. Also like in Hoth, the bankruptcy trustee did not assign the claim

to the LLC until after dismissal proceedings had been instituted. In fact, in Hoth, the assignment

did not occur until after the plaintiff’s case had already been dismissed with prejudice.

Nevertheless, upon the assignment from the trustee, the plaintiff in Hoth was revested with

standing, such that the proper action for the trial court was to vacate its dismissal and allow the

plaintiff to proceed with her complaint. Likewise, upon being presented with the bankruptcy

trustee’s assignment of the present claim to the LLC, the proper action for the trial court to take

was to deny the motion to dismiss and permit the LLC to proceed on its amended complaint.

¶ 46 Trapani argues that because the LLC lacked standing at the time it filed its amended

complaint, the amended complaint is a nullity and never legally in existence, i.e., void ab initio.

In support of this proposition, Trapani relies on Bavel v. Cavaness,

(1973).

That case, however, did not involve a situation where the plaintiff lacked standing to file suit, but

instead involved a suit filed against the estate of a deceased person, along with its executors and

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heirs. The court concluded that the suit was a nullity because the purported defendant—the

estate—did not fall within the definition of a “party,” i.e., a natural or artificial person who has

the capacity to be sued.

. In the present case, Trapani does not argue that the LLC does

not qualify as a “party” or lacks the legal capacity to sue or be sued, but instead argues only that

the LLC lacked standing to pursue the claims found in the amended third-party complaint. See

generally Aurora Bank FSB v. Perry,

(outlining the difference

between standing and capacity to sue and be sued). As discussed above, even if the LLC lacked

standing at the time it filed its amended third-party complaint, it regained standing through the

bankruptcy trustee’s assignment and, accordingly, the trial court should have denied the motion

to dismiss.

¶ 47 Because the trial court should not have granted Trapani’s motion to dismiss, there is no

need for us to address the question of whether the LLC should have been allowed to amend its

complaint in an attempt to cure the perceived standing defect.

¶ 48 III. Appeal No. 1-15-0033 (Trapani v. Subcontractors)

¶ 49 Trapani also appealed from the trial court’s decisions. Trapani’s appeal, however, is not

based on a claim that the trial court erred in dismissing the counts VI and VII of the Board’s

second amended complaint or the LLC’s amended third-party complaint. Rather, Trapani

appealed on the basis that if the Board and the LLC are successful in their appeals, Trapani’s

claims against the subcontractors should be reinstated. Because the resolution of Trapani’s

appeal depended entirely on the outcome of the Board’s and the LLC’s appeals, the parties

agreed that no briefing was necessary on Trapani’s appeal.

-17- 1-14-3849, 1-14-3953, & 1-15-0033 (cons.)

¶ 50 With respect to Trapani’s third-party claims stemming from the complaint filed by the

Board, the trial court’s order of December 4, 2013, indicates that Stock, Boyle, and Howard were

dismissed pursuant to the arguments regarding Minton in Stock’s motion to dismiss Trapani’s

amended third-party complaint. Then, after sua sponte reversing its previous ruling and granting

Trapani’s motion to dismiss, the trial court ordered that Trapani and all subcontractors be

dismissed with prejudice. Presumably, the dismissal of all subcontractors, even those who had

not filed a motion to dismiss, was a result of the dismissal of the Board’s claims against Trapani.

Because we have concluded that Minton does not apply to the present case and that the dismissal

of the Board’s claims against Trapani must be reversed, so too must the dismissal of Trapani’s

claims against the subcontractors.

¶ 51 Likewise, relying on the dismissal of the LLC’s amended third-party complaint against

Trapani, the trial court dismissed Trapani’s fourth-party claims against the subcontractors.

Because we conclude that the trial court’s dismissal of the LLC’s amended third-party complaint

against Trapani must be reversed, the trial court’s dismissal of Trapani’s fourth-party claims

against the subcontractors must also be reversed.

¶ 52 CONCLUSION

¶ 53 We conclude that the trial court erred in dismissing counts VI and VII of the Board’s

second amended complaint because the holding in Pratt I permits a plaintiff to bring a claim for

breach of implied warranty of habitability against a builder absent a showing that the developer-

vendor is insolvent. We also conclude that the trial court erred in dismissing the LLC’s amended

third-party complaint, because the bankruptcy trustee’s assignment of any claims against Trapani

cured any lack of standing that might have resulted from the LLC’s filing of bankruptcy.

-18- 1-14-3849, 1-14-3953, & 1-15-0033 (cons.)

Because the dismissals of the claims brought by the Board and the LLC must be reversed, so too

must the dismissal of Trapani’s fourth-party claims be reversed.

¶ 54 The judgment of the circuit court is reversed and the matter remanded to the Circuit

Court of Cook County for further proceedings consistent with this order.

¶ 55 Reversed and remanded.

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