{ "id": 564570, "name": "SWANN AND WEISKOPF, LTD., Plaintiff-Appellant, v. MEED ASSOCIATES, INC., Defendant-Appellee", "name_abbreviation": "Swann & Weiskopf, Ltd. v. Meed Associates, Inc.", "decision_date": "1999-04-29", "docket_number": "No. 1\u201498\u20143496", "first_page": "970", "last_page": "978", "citations": [ { "type": "official", "cite": "304 Ill. App. 3d 970" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "704 N.E.2d 740", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "301 Ill. App. 3d 919", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 257219 ], "year": 1998, "pin_cites": [ { "page": "925-26" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/301/0919-01" ] }, { "cite": "203 N.E.2d 710", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1964, "pin_cites": [ { "parenthetical": "equity aids the diligent, not the indolent" } ], "opinion_index": 0 }, { "cite": "55 Ill. App. 2d 9", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5283852 ], "year": 1964, "pin_cites": [ { "page": "20", "parenthetical": "equity aids the diligent, not the indolent" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/55/0009-01" ] }, { "cite": "498 N.E.2d 712", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "148 Ill. App. 3d 108", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3644301 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "116-17" }, { "page": "117" }, { "page": "117" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0108-01" ] }, { "cite": "455 N.E.2d 246", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "118 Ill. App. 3d 754", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5659528 ], "year": 1983, "pin_cites": [ { "page": "763" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/118/0754-01" ] }, { "cite": "549 N.E.2d 604", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "192 Ill. App. 3d 766", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2505357 ], "year": 1989, "pin_cites": [ { "page": "771" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/192/0766-01" ] }, { "cite": "674 N.E.2d 831", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "285 Ill. App. 3d 152", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295589 ], "year": 1996, "pin_cites": [ { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0152-01" ] }, { "cite": "525 N.E.2d 194", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "170 Ill. App. 3d 531", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3585866 ], "year": 1988, "pin_cites": [ { "page": "537-38" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/170/0531-01" ] }, { "cite": "501 N.E.2d 1339", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "150 Ill. App. 3d 645", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3502007 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "651" }, { "page": "653" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/150/0645-01" ] }, { "cite": "574 N.E.2d 869", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "limitations period against subcontractor began to run when general contractor learned of water problem from architect" } ], "opinion_index": 0 }, { "cite": "215 Ill. App. 3d 69", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5293967 ], "year": 1991, "pin_cites": [ { "page": "74-75", "parenthetical": "limitations period against subcontractor began to run when general contractor learned of water problem from architect" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/215/0069-01" ] }, { "cite": "643 N.E.2d 199", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "limitations period against subcontractor began to run when general contractors \"were aware of water problems\" and notified subcontractor" } ], "opinion_index": 0 }, { "cite": "267 Ill. App. 3d 790", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 333181 ], "year": 1994, "pin_cites": [ { "page": "830", "parenthetical": "limitations period against subcontractor began to run when general contractors \"were aware of water problems\" and notified subcontractor" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/267/0790-01" ] }, { "cite": "686 N.E.2d 626", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "292 Ill. App. 3d 589", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725044 ], "year": 1997, "pin_cites": [ { "page": "593-94" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0589-01" ] }, { "cite": "602 N.E.2d 16", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "234 Ill. App. 3d 871", "category": "reporters:state", "reporter": "Ill. 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App. 3d 899", "category": "reporters:state", "reporter": "Ill. 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MEED ASSOCIATES, INC., Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nConfronted with the claim that its contribution counts were barred by the statute of limitations, Swann & Weiskopf, Ltd. (Swann), offers two reasons why its action against Meed Associates, Inc. (Meed), should survive \u2014 the discovery rule and the equitable estoppel doctrine. Neither works. We affirm the trial court\u2019s order granting summary judgment to Meed.\nFACTS\nIn 1985, Swann agreed to provide design services for S.B. Holdings at the Libertyville Manor Extended Care Facility. Swann subcontracted Bernard Orzechowski (Orzechowski) and his company, Meed, to design a storm water removal system for the Libertyville project.\nIn 1998, Swann\u2019s project manager Jim Leyden (Leyden) testified at a deposition. Leyden said: Swann had hired Meed on several occasions and contacted Meed for civil engineering on the project because, \u201cMeed Associates performed high-quality engineering work.\u201d Meed\u2019s work included designing the \u201cmechanical, plumbing and storm water retention\u201d systems.\nShortly after the project was completed in 1989, S.B. Holdings notified Swann of the project\u2019s flooding problems. Swann dispatched Leyden and Orzechowski to investigate, and Orzechowski concluded earth mounds around the project site contributed to the flooding problems. When asked if he agreed with Orzechowski\u2019s opinion, Ley-den responded:\n\u201cMeed Associates knew the location of the earth mounds. It was brought to their attention as per our site plan and also on some *** previous correspondence that we\u2019ve talked about between the Village of Libertyville and Meed Associates.\n[Orzechowski] was required to include the calculations for water retention from any contributory area off of those earth mounds. That much I do know.\u201d\n\u201c[0]n or about October 12 of \u201889,\u201d Swann learned S.B. Holdings had hired an engineering firm, Albert Halff Associates (Halff), which \u201cwas questioning the design of the storm water removal system.\u201d In an October 12, 1989, letter from Halff to S.B. Holdings, which Swann representatives read that month, Halff was \u201ccritical\u201d of Meed\u2019s design of the storm water removal system. Halff concluded the eight-inch storm water pipe shown in the plans was insufficient to handle storm water at the project site.\nOrzechowski responded to Halff s October 12, 1989, letter with a December 14, 1989, letter to Swann:\n\u201c1. Storm water sewer sizes, slopes and materials meet all governing code requirements, at time of original plan and permit submittals.\n2. Storm water retention was in compliance with all governing codes at the time of original plan and permit submittals.\n3. Flooding problem [at the project site] was as a result of the earth mound ***. The earth mound resulted in the creation of rerouted storm water flow and possible blockage of water flow in the storm sewer system, due to soil erosion.\u201d\nOn April 18, 1990, S.B. Holdings filed a complaint against Swann in Lake County circuit court, alleging the storm water removal system was defectively designed. S.B. Holdings and Swann chose to arbitrate their case.\nAt a February 15, 1991, arbitration hearing, attorneys for S.B. Holdings and Swann discussed the design of the storm water removal system. According to S.B. Holdings\u2019 attorney, \u201cThe issues presented, however, in the claim are more directed towards the design of that [storm water removal] system than they are in the actual construction of that system.\u201d When asked by an arbitrator to summarize the issues in the case, S.B. Holdings\u2019 attorney repeated: \u201cThere is an issue related to the design of the storm water retention system ***.\u201d Swann\u2019s attorney, of course, was present.\nDuring the arbitration case, Orzechowski assisted Swann and its independent engineering expert, Kathleen Rafter (Rafter). The record does not reveal when Swann retained Rafter. Orzechowski still defended the design of the storm water removal system and his earth mound theory explaining the flooding problems. But Orzechowski subsequently retreated from his earlier opinions.\nIn a 1998 deposition, Orzechowski testified: Around March 12, 1994, Orzechowski spoke with Swann\u2019s attorney and mentioned he and Rafter had discovered a defect in his design of the storm water removal system.\n\u201cThe inadequacy of the sewer size was something that [Rafter] and myself, I\u2019d say, discovered at the same time.\nBefore that we had no reason to believe or \u2014 my assumption was that the initial flooding was as a result of this improper \u2014 the state just wasn\u2019t the same. It was not as per the plans. This [earth] mound in my mind was the contributing factor until I heard differently ***.\u201d\nBefore Rafter discovered his design defect, Orzechowski believed \u201cthe system designed was installed as per plan and was adequate.\u201d After Rafter\u2019s conclusions, Orzechowski acknowledged \u201ccertain portions of the storm water removal system were inadequately sized.\u201d\nIn July 1994, the arbitration panel ordered Swann to pay $477,239 to S.B. Holdings to remedy the flooding problem. On February 21, 1995, Swann filed a \u201cComplaint for Contribution\u201d against Meed. Meed responded with an affirmative defense based on the limitations period. Swann filed an amended complaint, adding a breach of contract count to its contribution count. Meed filed a summary judgment motion, again based on the limitations period. Swann responded, arguing the discovery rule and the estoppel doctrine saved its complaint from a limitations period defense. On August 17, 1998, the trial court granted summary judgment to Meed. This appeal followed.\nDECISION\nSummary judgment is appropriate if the record shows \u201cthat there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\u201d 735 ILCS 5/2\u20141005(c) (West 1994). Summary judgment \u201cis a drastic means of disposing of litigation and should only be allowed when the right of the moving party is clear and free from doubt.\u201d Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 271, 586 N.E.2d 1211 (1992), citing Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867 (1986). The trial court must construe the pleadings, depositions, admissions, and affidavits strictly against the moving party and liberally in favor of the nonmoving party. Loyola Academy, 146 Ill. 2d at 271.\nWe review de novo the trial court\u2019s decision to grant summary judgment. La Salle National Bank v. Skidmore, Owings & Merrill, 262 Ill. App. 3d 899, 902, 635 N.E.2d 564 (1994).\nSwann makes two contentions. First, Swann contends its complaint was filed within the limitations period because it did not discover its claim against Meed until Orzechowski acknowledged a design defect in March, 1994. Second, Swann contends even if it did not file its complaint within the limitations period, Meed is estopped from raising a limitations period defense.\n1. Discovery Rule\nSection 13\u2014204(b) of the Civil Practice Law provides:\n\u201cIn instances where an underlying action has been filed by a claimant, no action for contribution or indemnity may be commenced more than 2 years after the party seeking contribution or indemnity has been served with process in the underlying action or more than 2 years from the time the party, or his or her privy, knew or should reasonably have known of an act or omission giving rise to the action for contribution or indemnity, whichever period expires later.\u201d 735 ILCS 5/13\u2014204(b) (West 1994).\nSection 13\u2014214(a) of the Civil Practice Law provides:\n\u201cActions based upon tort, contract or otherwise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property shall be commenced within 4 years from the time the person bringing an action *** knew or should reasonably have known of such act or omission.\u201d 735 ILCS 5/13\u2014214(a) (West 1994).\nSwann\u2019s amended complaint contains two-counts: count I \u2014 \u201cContribution\u201d \u2014 and count II \u2014 \u201cBreach of Contract.\u201d Section 13\u2014204(b)\u2019s two-year statute of limitations applies to count I, and section 13\u2014214(a)\u2019s four-year statute of limitations applies to count II. We will analyze the four-year limitations period in section 13\u2014214(a) first, because if Swann\u2019s complaint was time-barred under the longer period, it also was time-barred under the shorter period.\nSection 13\u2014214(a) contains the \u201cdiscovery rule,\u201d which tolls the statute of limitations until the plaintiff knows or reasonably should know it has been injured and that this injury was wrongfully caused. See Knox College v. Celotex Corp., 88 Ill. 2d 407, 415, 430 N.E.2d 976 (1981); County of Du Page v. Graham, Anderson, Probst & White, Inc., 109 Ill. 2d 143, 153-54, 485 N.E.2d 1076 (1985). At that point, the plaintiff has an obligation to conduct further inquiries to determine whether it has an actionable claim. Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161, 171, 421 N.E.2d 864 (1981). Ordinarily, the date when the plaintiff has or should have the requisite knowledge to trigger the limitations period is a question of fact. Jackson Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 250, 633 N.E.2d 627 (1994).\nBut determining when the plaintiff possesses enough knowledge may be a question of law. Henderson v. Jones Brothers Construction Corp., 234 Ill. App. 3d 871, 873, 602 N.E.2d 16 (1992). \u201cSummary judgment on statute of limitations grounds is appropriate in the face of a plaintiff\u2019s assertion that the discovery rule applies only where it is apparent from the undisputed facts that the plaintiff knew or reasonably should have known of the injury and its wrongful causation\u201d within the limitations period. Hochbaum v. Casiano, 292 Ill. App. 3d 589, 593-94, 686 N.E.2d 626 (1997). In other words, summary judgment should be granted only \u201cif two conditions are met: the facts known by the plaintiff are not in dispute, and only one conclusion can be drawn from them.\u201d Skidmore, Owings & Merrill, 262 Ill. App. 3d at 903. These two conditions are met in this case.\nFirst, the facts known by Swann are not disputed. Swann learned of the project\u2019s flooding problems in October 1989 when S.B. Holdings contacted Swann representatives and when Swann representatives read Halff\u2019s October 12, 1989, letter to S.B. Holdings. S.B. Holdings filed a complaint against Swann on April 18, 1990, alleging the storm water removal system was defectively designed. And at a February 15, 1991, arbitration hearing on S.B. Holdings\u2019 complaint, S.B. Holdings\u2019 attorney identified the issues, including the design of the storm water removal system.\nThese facts clearly show Swann discovered Meed\u2019s potentially actionable conduct more than once between October 1989 and February 15, 1991. S.B. Holdings\u2019 initial contact, Halff\u2019s letter, S.B. Holdings\u2019 complaint, or the arbitration hearing each constituted \u201cdirect evidence or admissions of actionable conduct *** which activated the discovery period.\u201d Skidmore, Owings & Merrill, 262 Ill. App. 3d at 906. See Washington Courte Condominium Ass\u2019n-Four v. Washington-Golf Corp., 267 Ill. App. 3d 790, 830, 643 N.E.2d 199 (1994) (limitations period against subcontractor began to run when general contractors \u201cwere aware of water problems\u201d and notified subcontractor); Board of Library Directors v. Skidmore, Owings & Merrill, 215 Ill. App. 3d 69, 74-75, 574 N.E.2d 869 (1991) (limitations period against subcontractor began to run when general contractor learned of water problem from architect).\nOn the discovery rule issue, we find the case before us similar to AXIA, Inc. v. I.C. Harbour Construction Co., 150 Ill. App. 3d 645, 501 N.E.2d 1339 (1986). In AXIA, an office building began to leak shortly after completion in 1978. Within a year of completion, the building owner notified both the architect and the general contractor of the leaks. In 1983, the building owner hired a consultant to determine the cause of the leaks, and the consultant indicated design and construction deficiencies contributed to the leaks. The building owner sent copies of the consultant\u2019s report to the architect and the general contractor. The building owner filed a complaint in 1984, and the trial court dismissed its complaint as time-barred.\nOn appeal, the court held the building owner \u201cpossessed the requisite amount of information necessary to further inquire whether the problem was actionable\u201d when it notified the general contractor of the leaks in 1978. AXIA, 150 Ill. App. 3d at 651. Here, Swann possessed enough information \u201cto inquire further\u201d about Meed\u2019s allegedly defective design as early as October 1989, when Swann sent Leyden and Orzechowski to investigate the flooding problems.\nSecond, the facts show Swann failed to file its complaint within four years from the date it discovered Meed may have wrongfully caused its injury. Swann filed its first complaint against Meed on February 21, 1995, more than four years after the latest conceivable discovery date: the arbitration hearing summarizing the issues to include Meed\u2019s design of the storm water removal system.\nWe bear in mind this is a case where Swann sought from Meed only the amount of money it had been ordered to pay S.B. Holdings at the arbitration hearing. The claim of S.B. Holdings was based entirely on Orzechowski\u2019s defective design. If the design were not defective, Swann would not owe any money to S.B. Holdings. Under these circumstances, Swann had ample notice in 1989, 1990, and early 1991 of the desirability of filing its claim against Meed. Swann simply chose to ignore that notice.\nOnce Meed introduced sufficient evidence which, if uncontradicted, would entitle it to judgment as a matter of law, Swann then had to allege or present some facts that would create a fact issue concerning the date of discovery. See Freeport Memorial Hospital v. Lankton, Ziegele, Terry & Associates, Inc., 170 Ill. App. 3d 531, 537-38, 525 N.E.2d 194 (1988). While there is no need for Swann to prove its case at the summary judgment stage, given Meed\u2019s allegations and evidence, Swann was \u201crequired to present some factual basis that would arguably entitle [it] to a judgment in [its] favor.\u201d Flint v. Court Appointed Special Advocates of Du Page County, Inc., 285 Ill. App. 3d 152, 162, 674 N.E.2d 831 (1996). Swann did not do that, and the discovery rule cannot save its complaint from the limitations period. Swann\u2019s complaint is time-barred.\n2. Equitable Estoppel Doctrine\nHowever, Swann contends the doctrine of equitable estoppel saves its complaint, even if the discovery rule cannot.\nEquitable estoppel, in this context, prevents the defendant from employing a limitations period defense when the plaintiff reasonably relied on the defendant\u2019s words or conduct in delaying its complaint and the plaintiff suffered injury as a result of its reliance on the defendant\u2019s words or conduct. Senior Housing, Inc. v. Nakawatase, Rutkowski, Wyns & Yi, Inc., 192 Ill. App. 3d 766, 771, 549 N.E.2d 604 (1989). \u201cAlthough there is ordinarily no duty to apprise an adversary of his rights, one cannot justly or equitably lull his adversary into a false sense of security, causing him to subject his claim to the bar of the statute, and then plead the very delay caused by his course of conduct.\u201d Beynon Building Corp. v. National Guardian Life Insurance Co., 118 Ill. App. 3d 754, 763, 455 N.E.2d 246 (1983).\nThe defendant\u2019s words or conduct need not be intentionally fraudulent, misleading, or deceptive. York v. Village of Wilmette, 148 Ill. App. 3d 108, 116-17, 498 N.E.2d 712 (1986). Instead, this court must rely on less legal, more equitable concepts of \u201cconscience and duty of honest dealing\u201d in determining if the defendant\u2019s words or conduct should deny it the right to assert a limitations period defense. York, 148 Ill. App. 3d at 117.\n\u201c[T]he essential question presented is whether [the] plaintiff demonstrated that the words or actions of the defendant ] induced [the] plaintiff to reasonably rely to its detriment by failing to timely file this lawsuit.\u201d AXIA, 150 Ill. App. 3d at 653. In other words, we must decide whether we can say as a matter of law that Swann\u2019s purported reliance on Orzechowski\u2019s earth mound theory \u2014 in the face of S.B. Holdings\u2019 initial contact, Halffis letter, S.B. Holdings\u2019 complaint, and the arbitration \u2014 was unreasonable.\n\u201cThe party asserting the estoppel must have relied on the act or representation and because of that reliance refrained from commencing an action within the limitations period.\u201d (Emphasis added.) York, 148 Ill. App. 3d at 117.\nHere the record contains no evidence Swann withheld its complaint purely out of reliance on Orzechowski\u2019s earth mound theory. Although Orzechowski denied responsibility, asserting his earth mound theory to explain the flooding problems, Leyden testified Swann held Meed responsible for flooding problems based on the earth mounds: \u201c[Orzechowski] was required to include the calculations for water retention from any contributory area off of those earth mounds.\u201d\nThe record does not indicate the date Swann hired Rafter, but Swann\u2019s reliance on Orzechowski decreased when it consulted an independent engineering expert. And when Orzechowski finally conceded his design was defective in March 1994, Swann did not file its complaint for almost a year. See Schiller v. Kucaba, 55 Ill. App. 2d 9, 20, 203 N.E.2d 710 (1964) (equity aids the diligent, not the indolent). That is not being lulled into a false sense of security, it is ignoring one\u2019s own rights beyond the point of somnolence. See Butler v. Mayer, Brown & Platt, 301 Ill. App. 3d 919, 925-26, 704 N.E.2d 740 (1998).\nSwann has failed to present any evidence of its reliance on Or-zechowski\u2019s earth mound theory and protestations of innocence. Only one inference can be drawn \u2014 there is no equitable estoppel in this case. Swann\u2019s complaint against Meed was time-barred.\nCONCLUSION\nNeither the discovery rule nor the estoppel doctrine saves Swann\u2019s complaint from section 13\u2014214(a)\u2019s limitations period. Swann\u2019s complaint was time-barred, and summary judgment was appropriate.\nAffirmed.\nSOUTH, EJ, and HOFFMAN, J., concur.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "Steven G.M. Stein and Michael D. McCormick, both of Stein, Ray & Conway, of Chicago, for appellant.", "Stephen R. Ayres, of Mauck, Bellande & Cheely, of Chicago, for appellee." ], "corrections": "", "head_matter": "SWANN AND WEISKOPF, LTD., Plaintiff-Appellant, v. MEED ASSOCIATES, INC., Defendant-Appellee.\nFirst District (4th Division)\nNo. 1\u201498\u20143496\nOpinion filed April 29, 1999.\nSteven G.M. Stein and Michael D. McCormick, both of Stein, Ray & Conway, of Chicago, for appellant.\nStephen R. Ayres, of Mauck, Bellande & Cheely, of Chicago, for appellee." }, "file_name": "0970-01", "first_page_order": 988, "last_page_order": 996 }