Background
Plaintiff Raymond Winkler[i] hired defendant Danna Pools, Inc. (DPI) to construct an in-ground swimming pool at plaintiff’s home. The contract guaranteed DPI’s work would be free from defects in material and workmanship for 14 months from the date the pool was filled with water. It also expressly voided all warranties if maintenance, service, or warranty work was performed by anyone other than DPI. The pool was filled with water in July 2019.
During the 2019 season, defendant performed various services, including vacuuming, chemical testing, routine maintenance, and training plaintiff on proper pool maintenance and chemical levels. A maintenance ticket from that time included a note that plaintiff stated he knew how to maintain the pool and would be maintaining it himself. Defendant winterized the pool at the end of the season.
In April 2020, plaintiff discovered a crack in the foundation. DPI inspected the pool and recommended waiting until the end of the season to address the issue. Instead, plaintiff drained the pool and then identified additional cracks.
The parties exchanged communications regarding the cracks but were unable to resolve their dispute. Defendant claimed that plaintiff’s actions caused the damage to the pool and that plaintiff voided the warranty by declining DPI’s maintenance services for most of 2019; refusing to contract with DPI for opening, maintenance, and closing services for 2020; and ignoring DPI’s warnings about opening the pool with an existing crack.
Plaintiff sued for breach of contract, alleging DPI failed to honor the warranty and repair the pool. Defendant asserted affirmative defenses, including failure to mitigate damages and warranty invalidation.
Defendant argued that although plaintiff obtained an estimate to repair the cracks, no repairs were ever made. Defendant also argued that plaintiff caused the cracks by draining the pool.
Following a bench trial, the court entered judgment in favor of defendant. While the court found that plaintiff had established a breach of the warranty and that defendant caused the cracks, it also found that plaintiff failed to show that the condition of the pool prevented its full use. Because plaintiff failed to meet his burden of proof as to the assessment of damages, the court awarded him zero damages. Plaintiff appealed.
Analysis of Appellate Court Ruling
On appeal, plaintiff argued that he had met his burden and that the appropriate measure of damages was the cost of repairs, which plaintiff contended meant completely replacing the pool.
In reviewing plaintiff’s expert’s testimony, the appellate court noted that the expert failed to address whether repairing the cracks rather than replacing the pool would have been sufficient to cure the defect. Instead, plaintiff speculated in his appellate brief that repairs would have been ineffective.
The appellate court noted that “it is well-established that he is limited to that which is necessary to place him in the same position he would have been in had DPI adequately performed under the contract.” Id. at ¶ 25. The court stated that plaintiff can’t arbitrarily choose a remedy.
The appellate court held that without evidence of what was required to cure the claimed breach of contract, any finding by the court that total replacement of the pool was necessary would have been improperly based on speculation and conjecture.Id. at ¶ 26.
As an alternative, plaintiff asked the court to remand the matter for a determination of damages under the diminution of value standard. However, the appellate court again noted that plaintiff failed to present evidence showing how the alleged deficits could be remedied or what effect those deficits had on the pool’s value. The rationale for remanding the case for determination of damages under the diminution of value rule did not apply. Therefore, the appellate court affirmed the judgment of the circuit court.
[i] Illinois’ Third District Appellate Court, in Winkler v. Danna Pools, Inc., 2025 IL App (3d) 240424-U