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County of Du Page v. Graham

OPINION FILED SEPTEMBER 20, 1985.

THE COUNTY OF DU PAGE, APPELLEE,

v.

GRAHAM, ANDERSON, PROBST & WHITE, INC., ET AL., APPELLANTS.



Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County, the Hon. William E. Black, Judge, presiding.

JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 11, 1985.

The County of Du Page (county) filed an eight-count complaint in the circuit court of Du Page County alleging the defective design and construction of the Du Page County Administration Building and the resulting damage and deterioration. Named as defendants are the architectural firm of Graham, Anderson, Probst & White (the architect), Leonard Kendra, an architect and employee of that firm (Kendra), and Wil-Freds, Inc., a general contractor (the contractor). The county's action against the architect, set out in counts I, II, III and V, alleges negligence, breach of contract, fraud and constructive fraud. Counts IV and VI, against Kendra, allege fraud and constructive fraud. In counts VII and VIII, the contractor is charged with negligence and breach of contract. This appeal involves only the architect and the contractor.

The contractor moved to dismiss the negligence and contract counts based on the two-year statute of limitations set forth in section 13-214 of the Code of Civil Procedure (Ill. Rev. Stat., 1982 Supp., ch. 110, par. 13-214). The contractor also moved, in the alternative, that the negligence count be dismissed based upon the Moorman doctrine, which disallows recovery for solely economic loss under the tort theories of strict liability, negligence and innocent misrepresentation, finding that contract law provides the proper framework for such actions. (Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill.2d 69; Redarowicz v. Ohlendorf (1982), 92 Ill.2d 171.) In its motion to dismiss the negligence and contract counts, the architect also raised the limitations defense.

The trial court entered an order striking the contractor's and the architect's motions to dismiss based on section 13-214 of the Code, finding that it was not the intent of the legislature to abrogate the county's common law right of immunity from statutes of limitation. The trial court did grant the contractor's motion to dismiss the negligence count based on the Moorman doctrine. Following its denial of defendants' motions for reconsideration, the trial court entered an order identifying and certifying the following question of law for review pursuant to Supreme Court Rule 308 (87 Ill.2d R. 308): Did the trial court err in holding that section 13-214 does not abrogate common law governmental limitations immunity?

Defendants' Rule 308 applications for leave to appeal were denied by the appellate court. This court granted the petition for leave to appeal.

Initially we would note that the county, in its brief before us, contends that the court should not have granted the petition for leave to appeal because the appellate court did not abuse its discretion when declining to hear the Rule 308 appeal. Our decision to review this case is not predicated on an abuse of discretion by the appellate court. Rather, it is based on this court's authority to consider any issue determined to warrant review. (See Ill. Const. 1970, art. VI, sec. 4; 87 Ill.2d R. 315.) Thus we find the county's argument to be without merit.

In addition, the county contests the constitutionality of section 13-214, contending that it is special legislation in violation of article IV, section 13, of the 1970 Illinois Constitution. The county did not attack the constitutionality of section 13-214 before the trial court. Nor did it attempt to include that issue when it participated in the drafting of the certified question presented to the appellate court. Therefore, the issue is waived for purposes of this appeal. Further, because of the interlocutory nature of this appeal, we decline to expand upon the issue properly presented to this court in the petition for leave to appeal.

A review of the pleadings and supporting memoranda filed in the trial court reveals the following. In April of 1969, the county entered into a contract with the architect wherein the architect was to design and supervise the construction of the county's administration building. Based on the recommendation of the architect, the county entered into a contract with the contractor to construct the building. This work was substantially completed in April of 1974.

On April 11, 1974, the county sent a letter to the architect and Kendra, informing them of moisture problems exhibited in exterior masonry walls. Upon the advice of the architect, caulking and masonry repairs were performed in the damaged exterior brick areas. In April of 1978, after inspecting the exterior of the building and viewing the cracks in the exterior masonry walls, the architect, through its agent Kendra, sent a letter to the county explaining that the damage resulted from a "combination of final settlement of the foundation, if any, final positioning of the steel frame due to loading deflections and thermal expansion and contraction." Once again, based upon advice contained in the architect's letter, the county had the damaged areas caulked and repaired. In March of 1980, a brick from a brick lintel above a window dislodged and fell from the administration building. Several months later, Kendra, as an agent of the architect, sent the county a letter which suggested a course of action to allow the architect to determine the cause of the moisture and cracking. In October of 1980 the architect, through its agent Kendra, sent the county a letter which concluded that moisture was entering the walls of the administration building, thereby cracking the brick facing and separating it from the brick lintel. The county hired an independent architectural firm to ascertain the causes of the deterioration and masonry distress occurring in the exterior walls of the building. The county's complaint was filed September 7, 1982.

The defendants' motions to dismiss the contract and negligence counts contend that the county, as evidenced by its complaint and attached exhibits, was aware of construction problems as early as April 11, 1974, 7 1/2 years before suit was brought. Section 13-214 of the Code of Civil Procedure provides in relevant part:

"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 ...


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