Moldy apartment case meanders on; defendants claim court order ignored

Steve Korris Jan. 19, 2006, 11:52pm

Troy Bozarth

In a proposed class action suit over moldy apartments in Venice, Madison County Circuit Judge Andy Matoesian wants plaintiff attorney Lanny Darr to sort out claims against the owner of the apartments from claims against the manager.

At a Jan. 13 hearing on a defense motion to dismiss the suit, Matoesian told Darr to write a new complaint alleging separate counts against the owner of Bissel Apartments, BA 2003 Limited Partnership, and the manager, Independent Management Services.

Darr filed the suit last year for Kesha Manning and Claude Taylor, claiming that mold and fungus on surfaces and in the air jeopardized the health of residents and others.

Manning lived there. Taylor, a plumber, worked there.

Darr charged negligence and breach of implied warranty of habitability.

He proposed a class action, writing that there were more than 25 apartments.

Chief Judge Edward Ferguson assigned the case to Circuit Judge George Moran, but Darr moved for substitution. Moran granted it.

Moran had to grant it, for in Illinois any party in a case can move once for substitution without cause, provided the judge has not made a substantial ruling.

The defendants moved in June to dismiss. Attorney Matthew Jacober of Clayton, Missouri, argued that Manning had terminated her relationship with counsel.

Jacober attached a handwritten note with Manning's name on it, stating that she considered the case closed.

She changed her mind. In July, Darr submitted to the court an affidavit in which Manning said it was not her desire to terminate her relationship with counsel.

In August, the owner and the manager again moved to dismiss. Attorney Jill Sundberg wrote that there could be no implied warranty because Manning did not sign a lease.

Matoesian set a Sept. 28 hearing on the motion, but on that day Darr moved for leave to amend the complaint. Matoesian gave him 30 days to amend it.

Forty-three days later, the owner and the manager again moved to dismiss. Attorney Troy Bozarth wrote that plaintiffs had not amended the complaint in 30 days.

Bozarth wrote, "It is against the orderly administration of justice to allow a party to willfully disregard a Court order and to allow a case to meander through discovery without an operative complaint on file."

Five days later, Darr filed an amended complaint. It changed the charge of breach of implied warranty to a charge of negligent breach of implied warranty.

For the fourth time, the owner and the manager moved to dismiss. Bozarth wrote that even if the court allowed a late amended complaint, there still could be no breach of implied warranty if Manning signed no lease.

He wrote that the complaint alleged property damage but failed to state what property was damaged.

Matoesian heard the motion to dismiss Jan. 13. He signed an order denying the motion but instructed Darr to allege separate counts against the defendants.

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