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P. Ex Rel. Skinner v. Hellmuth

OPINION FILED AUGUST 13, 1985.

THE PEOPLE EX REL. SAMUEL K. SKINNER, CHAIRMAN OF THE CAPITAL DEVELOPMENT BOARD, PLAINTIFF-APPELLANT,

v.

HELLMUTH, OBATA & KASSABAUM, INC., ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County; the Hon. John L. Hughes, Judge, presiding. PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Plaintiff, the Capital Development Board (CDB), appeals from an order of the circuit court which dismissed its complaint against defendants, Hellmuth, Obata & Kassabaum, Inc. (HOK); Miller-Davis Company (Miller); Thorleif Larsen & Son, Inc. (Larsen), and United States Fidelity and Guaranty Company (USF&G). Defendants' motions to dismiss were brought pursuant to section 2-619(a)(5) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-619(a)(5)) in which it was alleged, inter alia, that plaintiff's action was not brought within the time limited by law as prescribed in section 13-214(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13-214(a)). The trial court determined that plaintiff, an agency of the State of Illinois, was subject to the statute and had not commenced this action within the two-year period there required. Plaintiff appeals.

The pleadings disclose that in November 1968, the board of trustees of Community College District No. 533 in Lake County entered into a contract with defendant HOK for architectural and engineering services for the design and construction of a building for the College of Lake County; the contract was thereafter assigned to CDB in March 1973. In May 1972, the Illinois Building Authority contracted with defendant, Miller, for construction of that building at a cost of $4,105,305, and that contract was assigned to CDB as the developer in September 1972. To secure its performance of the contract, defendant Miller obtained a performance bond from USF&G in the amount of the contract which named plaintiff, CDB, as the secured party. Miller also entered into a subcontract with Larson for construction of the building's masonry walls. Construction commenced and in July 1974, CDB issued certificates of substantial completion for the building.

The record also indicates that commencing in July or August 1975, and until March 1977, there were complaints about the construction, principally relating to water leaks in the masonry walls, and correspondence discussing the matter passed between the college district, CDB, Miller and HOK seeking resolution of the problems. After an on-site inspection in early 1976, HOK advised the college and Miller that there existed numerous deviations from the construction contract requirements and specifications, including use of improper materials and improper construction, which caused deterioration and leaking of the walls and windows of the building. In September 1981, CDB employed architects to investigate the moisture problem in the building masonry walls, and they reported design errors and construction defects by defendants. The problems then noted were essentially the same as those discussed in the 1975-77 correspondence between the parties.

This action for recovery of damages was commenced by CDB on June 7, 1983, against defendants who sought and were granted dismissal on the grounds it was barred by the two-year time limitation contained in section 13-214(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13-214(a)). The trial court found that plaintiff knew of acts or omissions by defendants causing damages by March 1977, yet did not commence this action until June 1983; it also rejected plaintiff's argument the statute was unconstitutional as special legislation, the court relying upon the authority of Matayka v. Melia (1983), 119 Ill. App.3d 221, 456 N.E.2d 353, which has so held.

Plaintiff, CDB, contends first that as an agency of the State of Illinois it is not subject to the provisions of section 13-214(a), as the statute does not expressly include the State within its terms and the common law maxim, nullum tempus occurrit reipublicae, protects the State and its agencies from running of a statute of limitations.

Section 13-214(a) of the Code of Civil Procedure provides:

"Sec. 13-214. Construction — Design management and supervision. As used in this Section `person' means any individual, any business or legal entity, or any 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." Ill. Rev. Stat. 1983, ch. 110, par. 13-214(a).

• 1 It is established that the State and its agencies, when in pursuit of public rights, are not barred by a statute of limitations unless specifically included within the terms of the statute. There is a policy to preserve public rights, revenues and property from loss due to the negligence of public officers. (Winakor v. Annunzio (1951), 409 Ill. 236, 249, 99 N.E.2d 191; Clare v. Bell (1941), 378 Ill. 128, 37 N.E.2d 812; People ex rel. Nudelman v. Superior Petroleum Co. (1939), 372 Ill. 546, 25 N.E.2d 30.) Plaintiff argues that if the legislature had intended this statute to apply to the State it would have expressly made reference to the State of Illinois, as it has done in other sections of the Code of Civil Procedure (see Ill. Rev. Stat. 1983, ch. 110, pars. 2-611 and 13-121), and did not do so here.

Words used in a statute are the best source of legislative intent and, absent some contrary indication, they will be given their plain and ordinary meaning. (People v. Zakarian (1984), 121 Ill. App.3d 968, 975, 460 N.E.2d 422.) Section 13-214 states, inter alia, that it is applicable to "any body politic." In People v. Snyder (1917), 279 Ill. 435, 440-41, 117 N.E. 119, the court determined that the term "body politic" denotes a politically organized, collective body of a nation or state and that the State of Illinois was such a body. See Union County Regional Board of School Trustees v. Union County Historical Society, Inc. (1977), 52 Ill. App.3d 458, 461, 367 N.E.2d 541.

We conclude the legislature intended by its terms to include the State of Illinois and its agency, CDB, within the scope of section 13-214(a).

• 2, 3 Plaintiff next contends the statute in question violates the prohibition against special legislation found in article IV, section 13, of the Illinois Constitution of 1970 because it contains an unreasonable classification of members of the construction industry. Plaintiff argues that Skinner v. Anderson (1967), 38 Ill.2d 455, 231 N.E.2d 588, is dispositive of this issue as it held an essentially similar statute invalid as special legislation on these same grounds.

Defendants seek to distinguish the present statute from that considered by the court in Skinner v. Anderson, noting section 13-214(a) has no limiting provision excluding owners, tenants or persons in possession, as did its predecessor, and that the present statute has a broader scope as it applies to "any person." Defendants further note section 13-214(a) has been held to meet constitutional standards by the First District of this court in Matayka v. Melia (1983), 119 Ill. App.3d 221, 456 N.E.2d 353.

A statute is presumed valid and the burden of establishing unconstitutionality rests upon the challenger. (Sayles v. Thompson (1983), 99 Ill.2d 122, 124-25, 457 N.E.2d 440; Scott v. Department of Commerce & Community Affairs (1981), 84 Ill.2d 42, 50, 416 N.E.2d 1082.) Special legislation is that which arbitrarily confers a benefit or exclusive privilege on a person or group to the exclusion of others similarly situated; special legislation differs from a violation of the right to equal protection in that the former discriminates in favor of a select group whereas the latter consists of arbitrary and invidious discrimination against a person or class of persons. (Illinois Polygraph Society v. Pellicano (1980), 83 Ill.2d 130, 137-38, 414 N.E.2d 458.) Under either type of inquiry, the court is required to determine whether the legislative classification is unreasonable in that it preferentially and arbitrarily includes a class (special legislation), or denies a benefit to a class (equal protection). (Illinois Polygraph Society v. Pellicano (1980), 83 Ill.2d 130, 138, 414 N.E.2d ...


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