1541 North Bosworth Condominium Ass'n v. Hanna Architects , 2021 IL App (1st) 200594 ( 2021 )

2021 IL App (1st) 200594THIRD DIVISION
December 29, 2021
No. 1-20-0594
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
1541 NORTH BOSWORTH CONDOMINIUM )
ASSOCIATION, an Illinois Corporation, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) 16 L 9990
)
HANNA ARCHITECTS, INC., an Illinois Corporation; ) Honorable
and JOHN C. HANNA, an Individual, ) Diane M. Shelley,
) Judge Presiding
Defendants-Appellants. )
_____________________________________________________________________________
JUSTICE ELLIS delivered the judgment of the court, with opinion.
Justices McBride and Burke concurred in the judgment and opinion.
OPINION
¶1 The City of Chicago maintains a robust set of ordinances setting the standards for
construction and maintenance of buildings, collectively called the Chicago Building Code. For
nearly all construction or modification, the builder must apply for a permit. Under the standard
procedure, the party submits plans, which the Department of Buildings (Department) reviews for
compliance with the Building Code.
¶2 But there is an alternative route. By separate ordinance, the city authorized the
Department to create a “Self-Certification Permit Program” (SCPP). Under the SCPP, “qualified
architects and structural engineers [are allowed] to self-certify that plans filed with the
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department do not contain any false information and are in compliance with the requirements of
the Chicago Building Code.” This certification allows the builder to bypass the otherwise
mandatory Department review before obtaining a building permit.
¶3 Defendants John C. Hanna (Hanna) and his company, Hanna Architects, Inc.
(collectively, the Hanna defendants) designed and self-certified plans for construction of a 3-unit
residential condominium at 1541 North Bosworth Avenue in Chicago (the Building). Utilizing
these certified plans, the builder obtained a permit through the SCPP. After designing and
certification, the Hanna defendants had no more involvement with the Building’s construction.
¶4 Five years after the Building was constructed, a Halloween windstorm exposed a severe
defect in its design: it lacked a lateral structural support system to withstand wind loads (as
required by the Building Code). The homeowners, through their governing body, plaintiff 1541
North Bosworth Condominium Association, filed suit against various parties, including the
developer of the property, the general contractor, the marketer/seller of the property, and the
Hanna defendants.
¶5 All but one claim against the Hanna defendants were dismissed during motion practice
and are not at issue on appeal. But the circuit court found that the Association had an implied
private cause of action based on the Hanna defendants’ SCPP self-certification. After a bench
trial under this theory of an implied cause of action and only this theory, the circuit court
awarded the Association just over $1.5 million in damages.
¶6 Though the case ended with a judgment after trial, the Hanna defendants’ principal
argument on appeal is a purely legal one: whether the court correctly found an implied right of
action under a city ordinance and the SCPP program that was created pursuant to that ordinance.
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If the court erred, and no such implied right of action exists, plaintiff has no basis for judgment,
and we must reverse.
¶7 The Hanna defendants raise several arguments on this point. First, they simply claim that
neither the relevant city ordinance nor the Department’s SCPP program implied such a private
right of action. Second, they argue that the city lacked the constitutional authority to pass an
ordinance that can serve as the basis of an implied cause of action. Finally, they argue that
implying a cause of action here would effectively “eviscerate” the economic-loss rule, which
bars tort actions seeking purely economic damages, a doctrine our supreme court has applied to
suits against architects like defendants here.
¶8 We agree with the Hanna defendants that neither the city’s ordinance nor the SCPP
program itself implies a cause of action against the Hanna defendants. We thus reverse the circuit
court’s judgment.
¶9 BACKGROUND
¶ 10 Generally speaking, the City of Chicago has a standard review process for constructing
buildings in Chicago that requires permit applicants to submit their construction designs,
drawings and specification for review with the Department. The plans are then reviewed by
various design professionals with the city, including a structural engineer, to make sure they
comply with the Building Code.
¶ 11 At all relevant times, however, Chapter 13-32-031 of the Chicago Municipal Code
authorized the Commissioner of Buildings to create a program “authorizing qualified licensed
design professionals to self-certify plans.” Chicago Municipal Code § 13-32-031 (amended Sept.
6, 2017). The Department thus created the SCPP to allow qualified professionals to self-certify
that plans filed with the Department are “true and accurate” and comply with the Building Code.
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The SCPP, in other words, provided a bypass from the traditional, mandatory independent
review of plans before issuing a permit.
¶ 12 The Department promulgated administrative rules to implement the SCPP that first
became effective in October 2009. But the events giving rise to this lawsuit pre-date those rules
by over a year. During the relevant time period—mid-2008—the Department had yet to
promulgate any rules to implement the SCPP.
¶ 13 Despite the fact that it had not yet promulgated rules, it is undisputed that the Department
began implementing the SCPP at least as early as 2008—if in no other way, by requiring that the
self-certifying licensed professional execute a “Professional of Record Self-Certification
Statement.” It is the signing of this statement by the Hanna defendants that forms the backbone
of this action.
¶ 14 The Building at issue here, located at 1541 North Bosworth Avenue in Chicago, was
developed by a single-property LLC, which hired the Hanna defendants to design it. Hanna’s
design was a unique, open, staggered-floor plan that was similar to another of his buildings in
Chicago. The developer wanted to get the Building to market quickly and requested the Hanna
defendants submit the plans through the SCPP. The Hanna defendants complied.
¶ 15 The self-certification statements signed by the Hanna defendants and the developer were
forms provided by the Department (which, at the time the forms were drafted, still went by the
name “Department of Construction and Permits,” or “DCAP”).
¶ 16 In the “Professional of Record Self-Certification Statement” they signed, the Hanna
defendants certified that the information contained in the permit application was accurate and
was prepared by them; that they exercised a professional standard of care in the preparation and
submission of the documentation; that DCAP would rely upon the truth and accuracy of this self-
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certification statement; that they will take all remedial measures necessary to meet DCAP’s
requirements if DCAP determines that the plans do not conform to the law; and that they will
immediately correct any false statements made in the plans. They also certified that “the failure
to take any such corrective action may result in termination of [their] participation in the [SCPP]
and notification to the Illinois Department of Professional Regulation.”
¶ 17 The form signed by the developer was called an “Owner/Tenant Certification Statement.”
In that statement, the developer certified the following:
“I have authorized all professionals named on the attached plans and application by the
applicant {and consultant(s), if any} named herein. I agree to take the necessary measures
to correct any misrepresentation or falsification of facts made knowingly or negligently
by my agents, contractors, employees, or me. I also agree to take any remedial measures,
disclosed by the Department of Buildings and or applicant, licensed professionals or
subcontractors named herein, that are necessary to bring the attached plans and any
completed construction into conformity with all applicable provisions of the Municipal
Code of Chicago and other related state and federal laws and regulations.”
¶ 18 After designing the Building and certifying the SCPP application, the Hanna defendants
had no further involvement in the development of the Building.
¶ 19 Based on the documentation, including these self-certifications, the Department issued
the developer the building permit in mid-2008. The Building was completed in 2009, and all
units were sold by 2010. Each unit was then re-sold to the current owners between 2010 and
2014; that is to say, each of the unit owners comprising the plaintiff association are successive
purchasers.
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¶ 20 On Halloween 2014, Chicago experienced a major windstorm. According to the
testimony at trial, these gusts caused the Building to begin swaying, which in turn led to cracking
and serious structural damage. Because of the severity of the damage, plaintiff hired Clark
Baurer, a structural engineer, to assess the Building’s structural soundness. Upon review, Baurer
quickly determined that the Building was designed, and subsequently built, without a lateral
support system that complied with minimum wind pressure requirements of the Building Code.
¶ 21 According to various estimates, the remediation of this defect would cost the Association
between $500,000 and $1.5 million. While the cost of repair was heavily contested throughout
trial, there was no real disagreement about whether Hanna’s plans were deficient. In fact, Hanna
admitted that he did no structural calculations and went with a “gut feeling.”
¶ 22 To recover these damages, plaintiff filed suit against the entities involved in the design
and construction of the Building, including the developer, the general contractor, the
marketer/seller of the units, and the Hanna defendants. As to the Hanna defendants, in an
amended complaint, plaintiff alleged intentional and negligent misrepresentation, negligence,
and an implied private right of action under a city ordinance and its corresponding SCPP
program.
¶ 23 The misrepresentation and negligence claims were dismissed during motion practice, as
they were barred by the Moorman doctrine, in that plaintiff was seeking to recover purely
economic losses through a tort claim. See Moorman Manufacturing Co. v. National Tank Co., 91
Ill. 2d 69 (1982) (tort actions seeking purely economic loss cannot lie); 2314 Lincoln Park West
Condominium Ass’n v. Mann, Gin, Ebel & Frazier, Ltd., 136 Ill. 2d 302, 311-13 (1990)
(Moorman doctrine barred tort actions for purely economic loss against architect); Fireman’s
Fund Insurance Co. v. SEC Donohue, Inc., 176 Ill. 2d 160, 168-70 (1997) (unable to “find any
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substantive difference between architects and engineers for purposes of the economic loss rule,”
holding that Moorman barred tort actions for purely economic loss against engineers who design
building plans). These tort counts are not a part of this appeal.
¶ 24 As for its claim of an implied private right of action, plaintiffs alleged “the City of
Chicago Building Code” and the affirmative representations the Hanna defendants were required
to make in their Self-Certification Statement imposed duties on the Hanna defendants to
truthfully execute the Self-Certification Statement.
¶ 25 The Hanna defendants moved to dismiss the count claiming an implied cause of action,
arguing that the claim failed to meet the elements of a private right of action. They claimed that
neither the city ordinance authorizing the SCPP nor the SCPP program itself provided the basis
for an implied right of action. Plaintiff responded that its claim was brought “under the Code
provisions governing architect certification of Code-compliance, and applicable lateral structural
support requirements.” Plaintiff argued that the “Code was engaged to protect the safety of City
residents, and prevent the construction of unsafe and structurally deficient buildings.” At the
same time, they contend a private right of action is consistent with the SCPP and is necessary for
them to have an adequate remedy.
¶ 26 The circuit court entered a memorandum opinion denying the motion to dismiss the claim
for an implied cause of action. In that order, the court determined that:
“10. The City of Chicago’s Self-Certification Permit Program was established to
increase efficiency in plan certification while maintaining the inherent safety purposes
underlying Chicago’s building codes and regulations. Members of plaintiff condominium
association are tangentially members of the class for whose benefit the program was
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created, and a private right of action would be consistent with the underlying purpose of
the program.
11. Plaintiff’s alleged injuries are ones the program was designed to prevent, and
providing a private right of action is necessary to provide a remedy for Plaintiff, as the
remedies enumerated under the program only provide relief options for the City and paths
of admonishment against violating architects. As such, this court infers a private right of
action under the City of Chicago’s Self-Certification Permit Program and Plaintiff’s
Count V survives.”
¶ 27 Plaintiff filed a second amended complaint that re-pleaded Count V, the implied cause of
action. The Hanna defendants moved to dismiss it for nearly identical reasons, and the court
denied it without written order. At this stage, the only remaining claim against the Hanna
defendants was the implied cause of action. Because the Hanna defendants still insisted that
plaintiff could not state a claim for an implied cause of action, they sought to certify the
following question to this court, pursuant to Illinois Supreme Court Rule 308 (eff. Oct. 1, 2019):
“Whether a professional architect who submits plans and specification for the
improvement of real property to the City of Chicago through the City’s Self-Certification
Permit Program can be subject to liability under an implied private right of action for
failure to properly discharge the program’s requirements.”
¶ 28 The court denied that request, and the case proceeded to a bench trial. The evidence
presented mostly revolved around the scope of the Building’s deficiency and the cost of
remediating it. As we briefly mentioned above, there was no real question about whether
Hanna’s design lacked the required lateral wind supports; the Hanna defendants conceded that
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their submitted plans were not Code-compliant. (We need not go into further detail about the
evidence at trial, as it is unnecessary to our disposition.)
¶ 29 After trial, the court entered a memorandum opinion and judgment of $1,506,339.46 in
favor of plaintiff and against the Hanna defendants on count V, the implied cause of action. In
the judgment order, the court expanded on its basis for implying a cause of action:
“The ordinance’s sole remedy requires the correction of the plans. That, on its face, is
ineffective to remedy the construction of a faulty building based on plans that were
represented in compliance with the city’s wind loads. In this instance, not having an
implied right of action under the ordinance would render the ordinance ineffective as a
practical matter. As discussed earlier in this litigation, the plaintiff does not have
contractual remedies for this condition, tort remedies, or other statutory remedies as to
the defendant architect that approved the plans. Clearly, plaintiff is a group the ordinance
was designed to protect.
***
The remedy of simply requiring a defendant to correct the plans if brought to his attention
by the building department clearly is not itself going to guarantee compliance. The court
finds that it is necessary to imply a private cause of action in order to provide an adequate
remedy to protect the public from persons who recklessly self-certify their plans.”
¶ 30 The Hanna defendants timely filed their notice of appeal following the judgment order.
¶ 31 ANALYSIS
¶ 32 Before this court, the Hanna defendants claim that the circuit court should have dismissed
the sole count that proceeded to trial, which claimed an implied right of action under an
ordinance in the Chicago Municipal Code or the SCPP program implemented thereunder. They
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argue that a municipal ordinance cannot be the source for an implied cause of action, nor can a
program implemented pursuant to those ordinances. They further argue that allowing such a
claim here would eviscerate the Moorman doctrine and our supreme court’s application of
Moorman to lawsuits against architects. See 2314 Lincoln Park West Condominium Ass’n, 136
Ill. 2d at 311-13 (Moorman doctrine barred tort action against architect for negligent design).
And lastly and more simply, they argue that, even if a cause of action could be implied under
these circumstances, it should not have been. Our review of these legal questions is de novo.
Metzger v. DaRosa, 209 Ill. 2d 30, 34 (2004); Abbasi v. Paraskevoulakos, 187 Ill. 2d 386, 391
(1999).
¶ 33 We begin with the basics. A statute may provide for an express right of action to redress a
violation of its provisions. See, e.g., 210 ILCS 45/3-603 (West 2020) (under Nursing Home Care
Act, nursing home resident “may maintain an action under this Act for any other type of relief,
including injunctive and declaratory relief, permitted by law”); Fisher v. Lexington Health Care,
Inc., 188 Ill. 2d 455, 461 (1999). There is no claim here, however, of an express cause of action.
¶ 34 When a statute prescribing or proscribing certain conduct does not expressly provide for
a private right of action to redress violations of its provisions, a court will sometimes find an
implied private right of action in that statute. To find an implied right of action, a court must
determine that (1) the plaintiff is a member of the class for whose benefit the statute was enacted,
(2) the plaintiff’s injury is one the statute was designed to protect, (3) implying a private right of
action would be consistent with the purposes of the statute and the overall statutory scheme, and
(4) implying a private right of action is necessary to provide an adequate remedy for violations of
the statute. Metzger, 209 Ill. 2d at 36; Fisher, 188 Ill. 2d at 460. We will recognize an implied
right of action in a statute only if the plaintiff demonstrates all four of those factors. Abbasi, 187
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Ill. 2d at 396 (“Since the fourth factor of the [test] is not present, we do not recognize a private
cause of action under the Act.”).
¶ 35 Here, however, there is no statute at issue. Plaintiff points to no state law to support its
claim. Instead, to the extent plaintiff identifies any legislative enactment whatsoever—an issue
we will discuss below—it is a municipal ordinance, a provision of the Chicago Municipal Code.
¶ 36 Notwithstanding the protests of the Hanna defendants, there is some support for the
proposition that a court may imply a cause of action in a municipal ordinance. See Henderson
Square Condominium Ass’n v. LAB Townhomes, LLC, 2015 IL 118139, ¶¶ 74-75 (finding that
Chicago Municipal Code provided for express cause of action for violation of one of its
provisions, then suggesting, in dicta, without further discussion, that had it not been express, it
would have satisfied four-factor test for implied cause of action). The court in Henderson
seemed to assume that a cause of action could be implied in a municipal ordinance without
elaborating, and the brief discussion was unnecessary to the outcome, given that an express cause
of action existed. As far as the parties and we can discern, this is the only decision standing for,
or even suggesting the proposition that a municipal ordinance may serve as the basis for an
implied cause of action.
¶ 37 We do not see any particular reason why a municipal ordinance could not serve as a basis
for an implied cause of action. Like a statute, a municipal ordinance may expressly provide for a
cause of action to redress a violation of its provisions; that is not unusual at all. See, e.g.,
Chicago Municipal Code § 13-72-100 (amended Nov. 16, 2011) (providing for cause of action to
remedy violations of ordinance); Henderson Square Condominium Ass’n, 2015 IL 118139, ¶ 74.
So if a cause of action may be implied from a statute, it is not clear to us why the same could not
be implied from a municipal ordinance.
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¶ 38 But regardless of whether we accepted the proposition that a court could imply a cause of
action in a local ordinance, we must first stop and make this fundamental observation, so basic
that it should go without saying: the plaintiff must first identify the specific ordinance that was
violated. A court cannot imply a cause of action out of thin air; the plaintiff must identify the
legislative enactment that the defendant allegedly violated, so that the court can review the
language of that enactment, along with the overall statutory scheme in which that enactment is
contained, to determine whether that violation should be redressable by a private lawsuit. See,
e.g., Metzger, 209 Ill. 2d at 34-35 (in determining whether to imply private right of action in
certain provision of Personnel Code, supreme court began by reviewing language of particular
provision, then overall statutory scheme); Carmichael v. Professional Transportation, Inc., 2021
IL App (1st) 201386, ¶ 23 (in determining whether to imply private right of action in particular
statute in Illinois Vehicle Code, “we begin by discussing the statutory language we are asked to
interpret”).
¶ 39 Unfortunately, we are compelled to make this fundamental observation because plaintiff
has not been clear at all as to what ordinance in the Chicago Municipal Code, if any, it claims as
the source for its implied right of action. Throughout its lengthy argument in its brief on this
topic, plaintiff never once cites to, much less quotes from the language of, a particular municipal
ordinance that the Hanna defendants allegedly violated.
¶ 40 Much like it did before the trial court, in its brief on appeal, plaintiff alternates between
referencing one of three sources for its implied cause of action, almost interchangeably and often
in tandem: (1) the Chicago Building Code generally, (2) the SCPP program itself, and (3) the
self-certification statement that Hanna signed and submitted to the Department. Plaintiff opens
its argument on this topic with this: “The trial court properly allowed [plaintiff] to pursue a
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private right of action against Hanna arising from the false and reckless certifications it made to
obtain a building permit pursuant to the SCPP.” No mention of an ordinance, just the self-
certification statement and the SCPP program generally. Elsewhere, plaintiff writes that “[t]he
Unit Owners are members of the class that the Code and the SCPP were intended to protect,” and
plaintiff’s “injuries are ones that the Code and the certifications were designed to prevent.”
¶ 41 The closest thing to a municipal ordinance there is the reference to the Chicago Building
Code, which is not one but a vast series of ordinances contained within several different chapters
of the broader Chicago Municipal Code. See, e.g., Chicago Municipal Code § 1-4-90(h)
(amended Sept. 6, 2017) (detailing various chapters and sections of Chicago Building Code,
including all or portions of the Chicago Municipal Code’s Titles 13, 14C, 14E and 18; Chapters
2-22, 7-4, 7-28; article III of Chapter 11-4; Chapters 15-8, 15-12 and article I of Chapter 15-16;
section 8-4-090; and various other provisions).
¶ 42 But a violation of a duly enacted law, be it a statute or local ordinance, is specific to that
statute or ordinance. Someone who commits a criminal offense does not violate the Criminal
Code of 2012 writ large but a specific provision within it; an individual does not commit a civil
violation of an entire statutory scheme but a specific section within it. Without a violation of a
specific ordinance, plaintiff has nothing on which to base an implied cause of action.
¶ 43 The circuit court’s thinking seemed to shift during the litigation, as well. As previously
detailed, the circuit court, in initially denying the Hanna defendants’ motion to dismiss this
implied cause of action, relied on the SCPP program itself: “this court infers a private right of
action under the City of Chicago’s Self-Certification Permit Program.” Later, however, in its
memorandum opinion and order entering judgment in favor of plaintiff, the court ruled that it
was implying a right of action from the “self-certification ordinance,” meaning section 13-32-
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031 of the Chicago Municipal Code, the ordinance that gave the Department the authority to
create the SCPP. See Chicago Municipal Code § 13-32-031 (repealed at Chi. City Clerk J. Proc.
100799 (Apr. 10, 2019)).
¶ 44 That ordinance, in our view, is the only conceivable ordinance that could serve as the
basis for an implied cause of action here. We say that because it is the only ordinance, period,
that addressed the concept of self-certification. As noted above, at the time the Hanna defendants
signed the self-certification in 2008, the Department had yet to promulgate rules to implement
the program. So there were no rules governing the Hanna defendants’ conduct; there was only
the single ordinance giving the Department the authority to institute a self-certification program
(which, at the time in 2008, the Department did by issuing the self-certification statements that
the Hanna defendants and the property developer signed). Thus, notwithstanding the somewhat
evasive and murky way in which plaintiff presents its claim, it is clear that the only ordinance on
which it could rely for its claim of an implied cause of action is the self-certification ordinance
within the Chicago Municipal Code.
¶ 45 Working through the four-factor test for implied causes of action, the trial court wrote
that “plaintiff is a group the ordinance was designed to protect” and that the damage to plaintiff’s
building was “exactly what the certification was intended to protect against: Plans that do not
comport with the building-code requirements.” Regarding the third factor, the court found that
implying a cause of action would be “consistent with the underlying purpose of the ordinance,”
namely “truthfulness in the submission of the plans.” As to the fourth factor, the court found that
the existing remedies within the ordinance were insufficient, as “[t]he ordinance’s sole remedy
requires the correction of the plans,” which was small comfort to the plaintiff unit owners at this
late date.
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¶ 46 We begin our review with the language of this ordinance at the relevant time:
“The building commissioner shall have authority to institute the preliminary review
program, the customized review program, the superstructure permit program, the
developer services program, and other programs which may include programs
authorizing qualified licensed design professionals to self-certify plans presented to the
building commissioner pursuant to the requirements of Chapter 13-40 for compliance
with the requirements of this code, and, to issue permits and to assess fees thereunder
accordingly. Applications under these programs shall be in such form as shall be
prescribed by the building commissioner. The building commissioner shall have authority
to promulgate such rules and regulations as necessary for the implementation of these
programs, including, but not limited to, the establishment of eligibility criteria for
participation in such programs and auditing procedures.” (Emphasis added.) Id.
¶ 47 This ordinance is obviously a delegation of authority to the Department to create the
SCPP, prescribe forms for SCPP applications, and promulgate rules to implement the SCPP. A
legislative delegation of authority is necessary here because an administrative agency like the
Department has no authority absent that which the legislature provides it by law. See Prazen v.
Shoop, 2013 IL 115035, ¶ 36.
¶ 48 But that is all the ordinance does, merely delegate authority. It does not regulate or
outlaw any conduct by the parties (architects, engineers, developers, etc.) who submit the plans.
It contains no details whatsoever governing the program. It does not even mandate the creation
of the program—it merely says the Department “may” create one. Id. This ordinance, as
legislation often does, speaks in broad strokes and leaves the details to the administrative body to
implement.
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¶ 49 We cannot agree that we can imply a cause of action from this ordinance. First and
foremost, before even reaching the familiar four-factor test for implied causes of action, we do
not see how the Hanna defendants could be said to have violated that ordinance. Architects are
neither directed nor prohibited from doing anything under this ordinance. If this ordinance could
be said to direct any party, it is the Department, if it so chooses, to implement the SCPP. There is
no substantive provision of this ordinance for an architect to violate.
¶ 50 The absence of a violation of a statute (or ordinance) is a death knell for a claim of an
implied cause of action. The only reason to even consider implying a private right of action in a
statute or ordinance is to redress a violation of that enactment. See Carmichael, 2021 IL App
(1st) 201386, ¶ 33 (“[e]very implied-right-of-action suit involves a defendant’s alleged failure to
comply with the statute at issue” (internal quotation marks omitted)); see also Sawyer Realty
Group, Inc. v. Jarvis Corp., 89 Ill. 2d 379, 386 (1982) (“when a statute is enacted to protect a
particular class of individuals, courts may imply a private cause of action for a violation of that
statute”).
¶ 51 Even if we overlooked that fatal flaw, plaintiff cannot satisfy the four-factor test for an
implied cause of action that we reiterate here, that (1) the plaintiff is a member of the class for
whose benefit the statute was enacted, (2) the plaintiff’s injury is one the statute was designed to
protect, (3) implying a private right of action would be consistent with the purposes of the statute
and the overall statutory scheme, and (4) implying a private right of action is necessary to
provide an adequate remedy for violations of the statute. Metzger, 209 Ill. 2d at 36; Fisher, 188
Ill. 2d at 460; see Abbasi, 187 Ill. 2d at 396 (all four factors must be met to imply private right of
action in statute).
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¶ 52 We cannot find that plaintiff is a member of the class for whose benefit the ordinance was
enacted. The purpose of a self-certification program is obvious—to streamline and expedite the
permitting process, reduce bureaucracy, “cut red tape” as one might say. The architect or
engineer is allowed to circumvent the traditional departmental review of its plans in favor of self-
certification. Obviously, one would hope that safety and soundness of buildings would not be
sacrificed as a result—thus the self-certification. But we could not possibly find that the creation
of a deregulatory provision that removes government oversight from the permitting process is
aimed at enhancing safety; its purpose was obviously to make it quicker and easier for
contractors to obtain their permits.
¶ 53 In addition, even if we could construe this ordinance as having been “violated” by the
Hanna defendants’ false self-certification (we cannot), and even if we believed (as we do not)
that the plaintiff homeowners are part of the class for whose benefit this ordinance was enacted,
we are not as confident as the trial court and plaintiff that implying a right of action against the
architect is necessary to effectuate this SCPP program. Both the trial court and plaintiff have
noted that the self-certification that the Hanna defendants signed provided only for limited
remedies: that, in the event that the self-certified architectural plans were not Code-compliant,
the architect (1) could be expelled from the SCPP program and (2) would be required to correct
those plans. As both the trial court and plaintiff note, those remedies would be cold comfort to a
homeowner, post-construction, who is living in a house with structural defects.
¶ 54 (Of course, the language in the self-certification statement that the Hanna defendants
signed, containing promises and imposing those remedies, are not part of the municipal
ordinance. They were not even part of a promulgated rule at the relevant time. They were simply
forms the Department put together. So it is a bit clunky to even consider this language as if it
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were part of the ordinance, or even part of a greater scheme of ordinances, when it was neither.
This, in our view, only highlights that this ordinance is not a proper vehicle for an implied cause
of action. But both the trial court and plaintiff rely on the language in the self-certification
statements, so we will, too, for purposes of argument.)
¶ 55 With that caveat, we certainly understand, from a homeowner’s viewpoint, how those
remedies would not feel like any remedy at all. But we cannot agree, for two different reasons,
that an implied right of action under this ordinance is necessary to effectuate this ordinance.
¶ 56 First, the most recent decisions of our supreme court on this question have made it clear
that the focus should be on whether an implied right of action is necessary to enforce the
provisions of the statute, not on whether a particular plaintiff could recover from a particular
defendant. Consider most notably Metzger, 209 Ill. 2d at 32, where our supreme court considered
whether to imply a private right of action in section 19c.1 of the Personnel Code. See 20 ILCS
415/19c.1 (West 2002). That statute, a whistleblower provision, protected state employees who
reported employee misconduct from retaliation for that reporting, but it provided no express
cause of action for a whistleblower who experienced retaliation. Id.¶ 57 Metzger claimed that the court should imply a right of action under section 19c.1, in part
because the Personnel Code provided her only the remedy of filing a grievance, which was
inadequate to compensate her for the stress and other damages she suffered from the retaliation
when she was reassigned to an unfavorable position and experienced other abuse. Id. at 41. Our
supreme court, however, reasoned that the question was not whether Metzger, or even others like
her, could recover adequate damages; her argument “inappropriately focuse[d] on the claimed
right to compensation for her injuries rather than on whether adequate remedies are provided to
make compliance with the Personnel Code likely.” Id.18
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¶ 58 Likewise, in Abbasi, 187 Ill. 2d at 393, our supreme court declined to imply a private
right of action for the violation of a provision of the Lead Poisoning Prevention Act. The court
reasoned that an implied private suit was not necessary to enforce that provision, as the same
defendant could be held liable in a traditional negligence claim. In the court’s words, “a common
law negligence action effectively implements the public policy behind the Act. The threat of
liability is an efficient method of enforcing a statute.” Id. at 395.
¶ 59 In other words, the question is not whether a homeowner can obtain compensation from
the architect for a violation of this municipal ordinance, but whether adequate enforcement
mechanisms and remedies exist to deter violations of that ordinance without a private right of
action. And we find that adequate incentives exist to enforce this self-certification program.
¶ 60 For one, if we are to consider the self-certification statements here, as did plaintiff and
the trial court, we should at least also consider the self-certification that the developer signed,
which we mentioned previously. Unlike the architect, who is merely charged by its self-
certification statement to correct any non-compliant plans and perhaps face expulsion from the
SCPP program for making false or inaccurate statements, the developer certifies that he agrees
not only to “correct any misrepresentation and falsification of facts” made in the permit
submission but also to “take any remedial measures” to bring “any completed construction into
conformity with all applicable provisions of the Municipal Code of Chicago and other related
state and federal laws and regulations.” (Emphasis added.)
¶ 61 In other words, the buck stops with the developer—the owner of the property—who
agrees to take whatever measures to fix any defects stemming from non-compliant plans it self-
certified, including making changes to the building post-construction. After all, it is the
developer/owner who is granted the permit to build the property, not the architect, who is simply
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one of many professionals the owner hires to get the building constructed. And the Chicago
Municipal Code traditionally assigns blame for Building Code infractions on the property owner,
not someone the owner hired to do the work. As section 13-12-020 of the Chicago Municipal
Code, titled “Code Violations Liability,” clearly explained in relevant part at the time in
question:
“Unless otherwise expressly provided, the owner *** [of] a building or premises of
which there is a violation of the provisions of [the Building Code] shall be liable for any
violation therein *** and is subject to injunctions, abatement orders or other remedial
orders.” Chicago Municipal Code § 13-12-020 (amended Apr. 12, 2000).
¶ 62 So even if it were appropriate to consider the promises contained in the self-certification
statements signed by the Hanna defendants and the developer as part of the ordinance and its
overall scheme, they demonstrate that the City of Chicago does have an enforcement method to
redress the submission of non-compliant architectural drawings, even if that remedy does not
directly reach the architect. And it could well reach the architect indirectly; the developer/owner
will be held liable, at least by the city, for Code violations—and of course would be free to sue
the architect with whom it contracted to recover the cost of any remedial work to fix the
architectural defects. The fact that a homeowner may not directly sue the architect does not
change the fact that the city has a sufficient enforcement scheme to deter violations of the SCPP.
¶ 63 That dovetails into our second reason why we find that an implied cause of action against
the architect is not only unnecessary to effectuate the SCPP program but inappropriate here. In
deciding whether to judicially imply a cause of action in a statute, our supreme court and this
court have considered whether doing so would unsettle well-established common law.
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¶ 64 For example, we return to Metzger, 209 Ill. 2d at 44-45, where our supreme court
declined to imply a cause of action in the Personnel Code’s whistleblower statute. Metzger had
not been fired but merely reassigned to an unfavorable position. The supreme court noted that it
had only recognized a narrow class of common-law claims for workplace retaliation, and even in
those limited contexts, only when an employee was discharged. Id. at 44. The court emphasized
that it had “never recognized a common law tort for any injury short of actual discharge.”
(Emphasis in original.) Id. Thus, the court was not inclined to imply a private right of action for
workplace retaliation that fell short of discharge from employment: “ ‘[G]iven this court’s
reluctance to expand the common law in this area, we must also hesitate to imply such actions
under a statute without explicit legislative authority.’ ” Id. at 45 (quoting Fisher, 188 Ill. 2d at
468).
¶ 65 Likewise, in Thompson v. Tormike, Inc., 127 Ill. App. 3d 674, 675 (1984), this court
refused to imply a private right of action in a Chicago Municipal Code nuisance ordinance.
Thompson had slipped in a restaurant’s ice-covered parking lot and claimed that the parking lot
constituted a “nuisance” under that ordinance. Id. at 674-75. That ordinance contained no express
cause of action, but Thompson argued that we should imply one. We refused, among other
reasons, because allowing a private nuisance suit for not removing ice would run counter to
longstanding common law regarding the duties to remove snow and ice:
“[T]he law of Illinois is that a landowner has no duty to remove or take other precautions
against the dangers inherent in natural accumulations of snow and ice. [Citations.]
Liability will be imposed only where the injury occurred as a result of snow and ice
which is produced or accumulated by an artificial cause or in an unnatural way or by
defendant’s own use of the area concerned and creation of the condition. [Citations.]
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Were we to allow a private cause of action under a public nuisance theory, we would
defeat the established law in Illinois regarding liability for removal of snow and ice. We
refuse to do so.” Id. at 676.
¶ 66 A court’s reluctance to imply a private right of action, when doing so would unsettle
longstanding common law, is a critical consideration here. As we mentioned before and the
parties are well aware, because the doctrine played out in the pretrial litigation here, under the
Moorman doctrine, a home purchaser may not sue an architect in tort for poor design work that
results in purely economic loss, such as the cost to repair architecturally unsound construction.
See 2314 Lincoln Park West Condominium Ass’n, 136 Ill. 2d at 311-13 (Moorman doctrine
barred tort actions for purely economic loss against architect); Moorman, 91 Ill. 2d at 81 (tort
actions seeking purely economic loss cannot lie).
¶ 67 The reason is that “[t]he architect’s responsibility originated in its contract with the
original owner,” not the purchaser to whom the owner sold the home, and “if the purchaser buys
goods which turn out to be below its expectations, its remedy should be against the person from
whom it bought the goods, based upon the contract with that person.” (Internal quotation marks
omitted.) 2314 Lincoln Park West Condominium Ass’n, 136 Ill. 2d at 317. Thus, homeowners
must direct their claims for purely economic loss against those parties with which they have
contractual privity, with their claims sounding in breach of contract for breach of a contractual
duty. See Fattah v. Bim, 2016 IL 119365, ¶ 24 (“a [home] buyer’s desire to enjoy the benefit of
his bargain is protected by the law of contracts and is ‘not an interest that tort law traditionally
protects.’ ” (quoting Redarowicz v. Ohlendorf, 92 Ill. 2d 171, 177 (1982)).
¶ 68 Simply put, if a contractual relationship exists between the architect and the homeowner,
the homeowner may resort to contract law to redress a breach of that contractual duty, but a
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dissatisfied homeowner may not resort to tort law for redress against that architect. See 2314
Lincoln Park West Condominium Ass’n, 136 Ill. 2d at 315-16. In 2314 Lincoln Park West, the
architect was hired by the developer of the condo building and had no contractual relationship
with any of the unit owners who sued that architect. Id. at 305. And their tort claims were barred
by the economic-loss rule. Id. at 317-18. The unit owners were thus left without a remedy against
the architect.
¶ 69 The plaintiff unit owners here are no different. They were far removed from any
contractual relationship with the Hanna defendants, who were hired by the developer, who sold
the properties to the original owners, who then re-sold the properties to the current plaintiff
owners. So the plaintiff unit owners understandably did not even attempt to sue the Hanna
defendants for breach of contract. And their tort claims were dismissed before trial based on
2314 Lincoln Park West and its application of the economic-loss rule to architects. Thus, like the
unit owners in 2314 Lincoln Park West, they are without a remedy against the architect in either
contract or tort under the common law.
¶ 70 We thus agree with the Hanna defendants that, if we were to imply a cause of action in
the municipal self-certification ordinance as plaintiff requests, we would significantly unsettle
the common-law doctrines in this area. We would be creating a non-contractual cause of action
against an entity that the common law disallows. To paraphrase Metzger, given our supreme
court’s “reluctance to expand the common law in this area, we must also hesitate to imply such
actions under a [municipal ordinance] without explicit legislative authority.” Metzger, 209 Ill. 2d
at 45 (citing Fisher, 188 Ill. 2d at 468).
¶ 71 For all of these reasons, we find no basis to imply a private right of action in the
municipal self-certification ordinance.
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¶ 72 We would be remiss if we left this analysis with the impression that all is lost every time
a home buyer discovers significant structural defects. We emphasize that this lawsuit and the
trial, after numerous original defendants were dismissed, ultimately isolated one actor in this
narrative—the architect. It is not uncommon at all for a home buyer in a situation like this one,
faced with significant structural defects, to sue entities with whom they did have a contractual
relationship. And that is to say nothing of the implied warranty of habitability, which usually
runs with the property from the first purchaser of new construction to the second, allowing a
second purchaser to still reach the original owner/builder for breach of that implied warranty for
significant structural defects. See Fattah, 2016 IL 119365, ¶¶ 25-26; Redarowicz, 92 Ill. 2d at
184.
¶ 73 Here, it so happens, the developer of the property and the general contractor were
dissolved corporations when this lawsuit was filed. Plaintiff obtained a default judgment against
the latter, and it ultimately dismissed its claim against the developer for breach of implied
warranty of habitability because the original owner had waived that implied warranty, which
waiver extended as well to the second purchaser under Fattah, 2016 IL 119365, ¶ 35.
¶ 74 To call this a series of unfortunate events is an understatement. But as sympathetic as we
may be with the situation in which the plaintiff unit owners find themselves, we find no basis to
imply a cause of action in the municipal ordinance authorizing the SCPP. As that was the sole
basis on which plaintiff obtained judgment against the Hanna defendants, that judgment is
reversed.
¶ 75 Reversed.
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No. 1-20-0594
Cite as: 1541 North Bosworth Condominium Association v. Hanna
Architects, 2021 IL App (1st) 200594Decision Under Review: Appeal from the Circuit Court of Cook County, No. 16-L-9990;
the Hon. Diane M. Shelley, Judge, presiding.
Attorneys Thomas B. Orlando, Douglas J. Palandech, Joel B. Daniel, of
for Foran Glennon Palandech Ponzi & Rudolff PC, of Chicago, for
Appellants: appellants.
Attorneys Daniel S. Brennan, Carolyn L. Morehouse, of Laurie & Brennan
for LLP, of Chicago, for appellee.
Appellee:
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