Appeal from the Circuit Court of Cook County; the Hon. James
L. Harris, Judge, presiding.
JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Plaintiff, Mary Louise Matayka, appeals from an order of the circuit court which dismissed her complaint against defendant, Augustine Melia and his construction company. The issues raised on appeal are (1) whether plaintiff's action was brought within a reasonable time after enactment of section 13-214 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13-214), which shortened the statutory period within which plaintiff could bring suit, and (2) whether section 13-214 of the Code of Civil Procedure violates the Illinois and United States constitutions.
The facts are not in dispute. On July 28, 1978, plaintiff and defendant Melia signed a real estate contract for plaintiff to purchase a single-family home which was being built by defendant's construction company. On December 7, 1978, the parties signed the final documents and executed the real estate closing. The final agreement included a rider to the original contract. The rider specified that defendant would make certain repairs and additions and correct certain defects in the house. It was expressly provided that defendant was to perform the work within 90 days of the date of closing, with some allowance made for delays due to bad weather. Plaintiff moved into the house shortly after the closing and demanded that defendant perform his obligations under the December 7, 1978, agreement. After several unsuccessful demands by plaintiff, a written demand was made upon defendant by plaintiff's attorney in July 1979. That correspondence is not a part of the record on appeal.
On November 19, 1980, defendant was advised in writing by plaintiff's attorney that unless he acted to begin performance of his obligation within seven days plaintiff would pursue her rights in "another manner." There is no indication that defendant responded to the letter and he did not perform.
There is no indication of any further communication between the parties and no action was taken until June 11, 1982, when plaintiff filed a four-count complaint. Count I alleged breach of a written contract; count II alleged negligence in constructing the house; count III alleged breach of express warranty; and count IV alleged breach of implied warranty of habitability.
Prior to plaintiff's complaint of June 11, 1982, the Illinois General Assembly enacted section 13-214 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13-214). That statute read as follows:
"Construction - Design management and supervision. As used in this Section `person' means any individual, any business or legal entity, or body politic.
(a) Actions 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 2 years from the time the person bringing an action, or his or her privity, knew or should reasonably have known of such act or omission.
(b) No action based upon tort, contract or otherwise may be brought 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 after 12 years have elapsed from the time of such act or omission. However, any person who discovers such act or omission prior to expiration of 12 years from the time of such act or omission shall in no event have less than 2 years to bring an action as provided in subsection (a).
(c) If a person otherwise entitled to bring an action could not have brought such action within the limitation periods herein solely because such person was under the age of 18 years, or developmentally disabled, or mentally ill, or imprisoned on criminal charges, the limitation periods herein shall not begin to run until the disability is removed.
(d) Subsection (b) shall not prohibit any action against a defendant who has expressly warranted or promised the improvement to real property for a longer period from being brought within that period.
(e) The limitations of this Section shall apply to all acts or omissions which occur on or after November 29, 1979.
(f) The limitations of this Section shall not apply to causes of actions arising out of fraudulent misrepresentations or to ...