Timan v. Ourada
972 N.E.2d 744
Ill. App. Ct.2012Background
- Plaintiffs Timan purchased a new home from Ourada for $305,000; septic system installation began after closing.
- Septic field failed; raw sewage leaked onto driveway and into a ditch, prompting a multi-count suit including breach of contract and related claims.
- At closing the septic field site was wet; expansion field was discussed as a potential fix by several experts and officials.
- Wetland delineation existed; health and planning departments noted wetland issues and related permit considerations.
- Trial court found breach of contract but dismissed rescission, consumer fraud, and implied warranty claims; damages awarded for the septic failure.
- Contractual fee-shifting provision awarded plaintiffs attorney fees; Ourada challenged the fee award on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there a breach of contract for a functioning septic system? | Timans argue Ourada failed to provide a functioning septic system. | Ourada contends expansion field use would have cured issues; plaintiffs prevented performance. | Yes; court found breach of contract and awarded damages. |
| Was the attorney-fee award proper under the contract? | Plaintiffs prevailed on breach and damages; fee provision should award fees. | Ourada prevailed on several counts and should recover fees; rescission was significant. | Yes; trial court did not abuse discretion; plaintiffs awarded fees consistent with contract. |
Key Cases Cited
- Gallagher v. Lenart, 226 Ill. 2d 208 (2007) (contract interpretation and standard of review for breach of contract)
- Henderson-Smith & Associates, Inc. v. Nahamani Family Service Center, Inc., 323 Ill. App. 3d 15 (2001) (elements of breach of contract; prevailing party concept for fees)
- Grossinger Motorcorp, Inc. v. American National Bank & Trust Co., 240 Ill. App. 3d 737 (1992) (prevailing party and fee-shifting considerations in complex litigation)
- Powers v. Rockford Stop-N-Go, Inc., 326 Ill. App. 3d 511 (2001) (prevailing party in multi-claim disputes; fee considerations)
- Tomlinson v. Dartmoor Construction Corp., 268 Ill. App. 3d 677 (1994) (fee shifting when not all claims prevail; better approach may award fees for breach claim)
- Barrows v. Maco, Inc., 94 Ill. App. 3d 959 (1981) (nonperformance due to own actions as defense to breach)