{ "id": 5575704, "name": "ANTHONY DeMARCO et al., Plaintiffs-Appellants, v. GARY ECKLUND et al., Defendants-Appellees", "name_abbreviation": "DeMarco v. Ecklund", "decision_date": "2003-06-27", "docket_number": "No. 2\u201402\u20140218", "first_page": "225", "last_page": "230", "citations": [ { "type": "official", "cite": "341 Ill. App. 3d 225" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "274 Ill. App. 3d 519", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291696 ], "year": 1995, "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/274/0519-01" ] }, { "cite": "325 Ill. App. 3d 362", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 569911 ], "year": 2001, "pin_cites": [ { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0362-01" ] }, { "cite": "114 Ill. 2d 252", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542831 ], "year": 1986, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0252-01" ] }, { "cite": "109 Ill. 2d 143", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3127156 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "151" }, { "page": "151" }, { "page": "151-52" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0143-01" ] }, { "cite": "221 Ill. App. 3d 730", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5793965 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "735" }, { "page": "735" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/0730-01" ] }, { "cite": "188 Ill. 2d 186", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 536019 ], "year": 1999, "pin_cites": [ { "page": "191" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/188/0186-01" ] }, { "cite": "199 Ill. 2d 325", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58932 ], "year": 2002, "pin_cites": [ { "page": "352", "parenthetical": "\"predominant purpose\" test used to determine whether contract providing for both the sale of goods and rendition of services fell within article 2 of the Uniform Commercial Code" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0325-01" ] }, { "cite": "325 Ill. App. 3d 694", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570215 ], "year": 2001, "pin_cites": [ { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0694-01" ] }, { "cite": "114 Ill. 2d 252", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542831 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "261" }, { "page": "261" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/114/0252-01" ] }, { "cite": "221 Ill. App. 3d 730", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5793965 ], "year": 1991, "pin_cites": [ { "page": "735" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/221/0730-01" ] } ], "analysis": { "cardinality": 564, "char_count": 11284, "ocr_confidence": 0.771, "pagerank": { "raw": 1.3772285457099245e-07, "percentile": 0.6397751374694046 }, "sha256": "aa452bb83365f99194a8082e32d4ecfd01adc2bc024f29da81f900fd9c6211ad", "simhash": "1:9ceaeda2864a149d", "word_count": 1761 }, "last_updated": "2023-07-14T21:38:13.673521+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ANTHONY DeMARCO et al., Plaintiffs-Appellants, v. GARY ECKLUND et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE HUTCHINSON\ndelivered the opinion of the court:\nPlaintiffs, Anthony and Piera DeMarco, brought a legal malpractice action against defendants, attorney Gary Ecklund and his law firm, Schlueter, Ecklund, Olson, Barrett, Mayfield & Davitt, for failing to file a breach of contract lawsuit before it became time barred. In the contract at issue, plaintiffs sold real estate to a buyer, Bruce Swanson, with a provision requiring Swanson to construct a water detention area on the property by September 1, 1990. Swanson never built the detention pond, and plaintiffs retained defendants as counsel in March or April 2000. In response to the malpractice action, defendants argued that plaintiffs did not suffer damages because, when they retained defendants, the action was already time barred under section 13\u2014 214(a) of the Code of Civil Procedure (the Code), the four-year statute of limitations for construction of improvements to real property (735 ILCS 5/13 \u2014 214(a) (West 2000)). Plaintiffs responded that the trial court should apply section 13 \u2014 206 of the Code, the 10-year statute of limitations for written contracts (735 ILCS 5/13 \u2014 206 (West 2000)). The trial court granted defendants\u2019 motion for summary judgment, and plaintiffs timely appeal. We affirm.\nThe contract at issue provided for the sale of real estate to Swanson. Incorporated into the contract were the \u201cadditional contingencies, warranties, and representations\u201d of attached \u201cExhibit B.\u201d Paragraph five of the exhibit stated:\n\u201cThe buyer shall build, construct and erect at his sole expense, a Detention area located to the West of said premises located in DeMarco property, which shall be used for surface runoff from buyer\u2019s property, all of the DeMarco property, as well as that property sold by DeMarco to Sutherland Lumber Co. The construction of the Detention area shall be in accordance with Drawings and Specifications prepared by Willett, Hofmann & Associates, Inc. and the City of Rockford authorities. These covenants shall be binding upon the heirs, successors and assigns of the parties. Said construction shall be completed on or before September 1, 1990. The buyer shall not be responsible for maintenance of said Detention area.\u201d\nOn appeal, plaintiffs assert that the trial court erred when it granted summary judgment in favor of defendants because (1) the contract statute of limitations should govern the complete nonperformance of a contractual obligation, and (2) the construction statute of limitations requires actual engagement in its enumerated activities to apply. Summary judgment is appropriate when the pleadings, depositions, and affidavits show that no genuine issue as to any material fact exists and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2 \u2014 1005(c) (West 2000). We review a grant of summary judgment de novo. County of Lake v. Board of Education of Lake Bluff School District No. 65, 325 Ill. App. 3d 694, 698 (2001).\nWe disagree with plaintiffs\u2019 contention that the contract statute of limitations automatically governs the complete nonperformance of a contractual obligation. We decline plaintiffs\u2019 proposal to use a \u201cpredominant purpose of the contract\u201d test, which would result in the application of section 13 \u2014 206, because such a test is primarily applied to contracts involving the sale of goods. See Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 352 (2002) (\u201cpredominant purpose\u201d test used to determine whether contract providing for both the sale of goods and rendition of services fell within article 2 of the Uniform Commercial Code). When two limitations periods apply to an action, the more specific statute is generally effective. Tosado v. Miller, 188 Ill. 2d 186, 191 (1999). Section 13 \u2014 206 provides a 10-year limitations period for \u201cactions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing.\u201d 735 ILCS 5/13 \u2014 206 (West 2000). Section 13 \u2014 214 provides a four-year limitations period for \u201c[ajctions 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.\u201d 735 ILCS 5/13 \u2014 214 (West 2000). This case centers on Swanson\u2019s obligation to build a detention pond rather than the real estate purchase as a whole, so we find section 13 \u2014 214 more specific.\nWe also disagree with plaintiffs\u2019 argument that section 13 \u2014 214 does not apply because one must engage in designing, planning, supervising, observing, or managing construction before an act or omission arises out of the activity. Plaintiffs believe that, because Swanson failed to do anything about the detention pond, he never engaged in a construction-related activity and therefore cannot have an omission arising out of that activity. In Lombard Co. v. Chicago Housing Authority, 221 Ill. App. 3d 730 (1991), the reviewing court stated that it must determine \u201cwhether the particular activities the landowner has purportedly engaged in or failed to engage in, as the case may be, fall within the purview of the statute.\u201d (Emphasis added.) Lombard Co., 221 Ill. App. 3d at 735. The reviewing court further stated:\n\u201cAccordingly, we hold that although one of the main purposes of section 13 \u2014 214 is to prevent liability in perpetuity against persons involved in the design and construction of buildings, such as architects, contractors and engineers (see 80th Ill. Gen. Assem., House Proceedings, May 25, 1979, at 11), it also governs a landowner in a breach of contract action who is being sued for an act or omission of one of the specified construction-related activities or for actual construction.\u201d Lombard, 221 Ill. App. 3d at 735.\nFurthermore, the primary rule of statutory construction requires that the intention of the legislature should be determined and given effect. County of Du Page v. Graham, Anderson, Probst & White, Inc., 109 Ill. 2d 143, 151 (1985). Courts should first look to the language of the statute as the best indication of the legislature\u2019s intent. County of Du Page, 109 Ill. 2d at 151. If the language is unambiguous, courts must follow the plain meaning of the statute. County of Du Page, 109 Ill. 2d at 151-52. The plain meaning of section 13 \u2014 214 includes a person\u2019s \u201cact or omission\u201d in the construction of an improvement to real property, which brings Swanson\u2019s failure to construct the detention pond into its purview.\nContrary to plaintiffs\u2019 assertion, holding that section 13 \u2014 214 applies does not create a differentiation based upon a person\u2019s status rather than a person\u2019s activities. Rather, the court must look to the activity involved and determine whether it is a construction-related activity falling within section 13 \u2014 214. See People ex rel. Skinner v. Hellmuth, Obata & Kassabaum, Inc., 114 Ill. 2d 252, 261 (1986); Blinderman Construction Co. v. Metropolitan Water Reclamation District of Greater Chicago, 325 Ill. App. 3d 362, 369 (2001); Adcock v. Montgomery Elevator Co., 274 Ill. App. 3d 519, 524 (1995). Accordingly, the trial court properly granted summary judgment in favor of defendants.\nFor the foregoing reasons, the judgment of the circuit court of Winnebago County is affirmed.\nAffirmed.\nGILLEKAN JOHNSON, J, concurs.", "type": "majority", "author": "PRESIDING JUSTICE HUTCHINSON" }, { "text": "JUSTICE BOWMAN,\ndissenting:\nI respectfully dissent. I believe that the 10-year statute of limitations for written contracts (735 ILCS 5/13 \u2014 206 (West 2000)) rather than the 4-year statute of limitations for construction of improvements to real property (735 ILCS 5/13 \u2014 214(a) (West 2000)) should apply in this case.\nThe majority takes the position that section 13 \u2014 214 does not require one to engage in any construction-related activity as long as the subject matter of the contract centers upon an improvement to real property. However, this interpretation seems to circumvent the intention of the legislature. As the majority recognizes, one of the main purposes of section 13 \u2014 214 is to prevent liability in perpetuity against persons involved in the design and construction of buildings, such as architects, contractors, and engineers. Lombard Co. v. Chicago Housing Authority, 221 Ill. App. 3d 730, 735 (1991). Our supreme court has clearly stated that this statute \u201cprotects, on its face, anyone who engages in the enumerated activities.\u201d (Emphasis in original.) People v. Hellmuth, Obata & Kassabaum, 114 Ill. 2d 252, 261 (1986). Particular deference is given legislative classifications when those classifications are based upon activities rather than status. Hellmuth, 114 Ill. 2d at 261.\nHere, it is undisputed that Swanson engaged in none of the activities enumerated in section 13 \u2014 214. Nevertheless, the majority finds Swanson to fall within the purview of the statute. While I agree that the plain meaning of the statute includes a person\u2019s \u201cact or omission\u201d in the construction of an improvement to real property, I do not agree that the term \u201comission\u201d encompasses a complete lack of performance on a construction-related obligation. Therefore, I do not believe Swanson\u2019s complete failure to take any action with respect to the detention pond constitutes an \u201comission\u201d within the language of the statute. In other words, because Swanson never engaged in a construction-related activity, there can be no omission arising out of that activity.\nThe case law is clear that one must have engaged in the enumerated activities to be protected under section 13 \u2014 214. Thus, the appropriate focus in determining whether this statute applies is whether the activity engaged in constitutes the \u201cdesign, planning, supervision, observation or management of construction.\u201d 735 ILCS 5/13 \u2014 214(a) (West 2000). Indeed, the majority states that the court must first look to the activity involved and determine whether it is a construction-related activity falling within section 13 \u2014 214. However, as stated previously, there was no construction-related activity in this case. Hence, section 13 \u2014 214 does not apply.\nIn short, the fact that this real estate contract involved an improvement to real property does not automatically subject it to the four-year statute of limitations. Rather, the four-year statute of limitations should apply only when one has actually engaged \u201cin the design, planning, supervision, observation or management of construction.\u201d 735 ILCS 5/13 \u2014 214(a) (West 2000). Otherwise, it is the subject matter of the contract, rather than the \u201cactivity\u201d actually engaged in, which controls.\nWhile this is a case of first impression, I believe a more commonsense approach would be to interpret Swanson\u2019s total lack of performance as triggering the 10-year statute of limitations for written contracts. Therefore, I would reverse the judgment of the circuit court granting defendants\u2019 motion for summary judgment.", "type": "dissent", "author": "JUSTICE BOWMAN," } ], "attorneys": [ "Daniel E. Compton, of Brittain & Ketcham, EC., of Elgin, for appellants.", "Stephen R. Swofford and Thomas H. Boswell, both of Hinshaw & Culbertson, of Chicago, for appellees." ], "corrections": "", "head_matter": "ANTHONY DeMARCO et al., Plaintiffs-Appellants, v. GARY ECKLUND et al., Defendants-Appellees.\nSecond District\nNo. 2 \u2014 02\u20140218\nOpinion filed June 27, 2003.\nBOWMAN, J., dissenting.\nDaniel E. Compton, of Brittain & Ketcham, EC., of Elgin, for appellants.\nStephen R. Swofford and Thomas H. Boswell, both of Hinshaw & Culbertson, of Chicago, for appellees." }, "file_name": "0225-01", "first_page_order": 243, "last_page_order": 248 }