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07/13/87 Ben Stelzer Et Al., v. Matthews Roofing Company

July 13, 1987





511 N.E.2d 421, 117 Ill. 2d 186, 110 Ill. Dec. 449 1987.IL.983

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Thomas R. Rakowski, Judge, presiding.


JUSTICE MORAN delivered the opinion of the court. JUSTICE GOLDENHERSH took no part in the consideration or decision of this case. JUSTICE SIMON, specially Concurring. JUSTICE MILLER joins in this special concurrence.


Plaintiffs, Ben and Eva Stelzer and Louise Meier, filed a two-count complaint alleging breach of contract against defendant, Matthews Roofing Company, Inc., in the circuit court of Cook County. Count I alleged breach of defendant's written 10-year guarantee given to plaintiffs' predecessor in interest in connection with installation of a roof. Plaintiffs sought damages in the amount of $2,800, the cost of replacing the roof. Count II alleged that "defendant's acts were willful, intentional, reckless and wrongful" and sought punitive damages in the amount of $10,000. Defendant filed a motion to dismiss, which was granted. However, plaintiffs were given leave to file an amended complaint.

Plaintiffs' amended complaint was in one count, seeking only to recover damages occasioned by defendant's breach of its written guarantee. Defendant answered and later served plaintiffs with interrogatories. Based on plaintiffs' answers, defendant moved for summary judgment on grounds that the action was not filed within two years of plaintiffs' discovery of defendant's alleged defective installation of the roof as required by section 13-214(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13-214(a).) After consideration of opposing memoranda, defendant's motion was granted. On plaintiffs' appeal, the appellate court reversed, holding that "plaintiffs' cause of action was not barred by section 13-214 of the Code of Civil Procedure, but was within the term as expressly provided in the contract of guarantee, and, therefore timely." (140 Ill. App. 3d 383, 386.) The case is before this court on defendant's appeal pursuant to Supreme Court Rule 315 (115 Ill. 2d R. 315).

Only one issue is presented. We are asked to decide if the time for commencing an action for breach of a written contractual guarantee is governed by section 13 -- 214(a) of the Code of Civil Procedure, which contains the limitations for actions concerning construction of or improvements to real property, or if the time for commencing such an action is governed by the length of the guarantee.

Defendant installed a roof on a building located at 8832 North Bronx, Skokie, Illinois. Work was completed in November 1974. The installation was undertaken for plaintiffs' predecessor in interest, R. R. Black. In connection with the installation, defendant gave Black a written guarantee, dated November 20, 1974, under which defendant "agree[d] to repair any leak in the roof at 8832 N. Bronx, Skokie free of charge for the term of ten (10) years, provided leaks are caused through fault with our work or material used."

Black sold the building to plaintiffs in April 1977. Along with the sale, Black assigned the guarantee covering the roof to plaintiffs. In January 1978, plaintiffs noticed that the roof leaked. Defendant was contacted and indicated that nothing could be done about the problem until the end of winter.

The next contact between the parties occurred on or about May 1, 1981, when plaintiff Ben Stelzer telephoned defendant. The record reveals that defendant was contacted because "the roof was improperly installed." On May 18, 1981, a representative of the defendant wrote to Ben Stelzer indicating that the roof needed to be replaced.

The record reveals no further contact between the parties. Plaintiffs proceeded to have the roof replaced by another contractor and filed the instant action for recovery of the cost of this replacement.

We believe, as did the appellate court, that the dispositive issue is whether or not retroactive application of section 13 -- 214 would operate to impair plaintiffs' contractual rights in violation of the constitutions of the United States and the State of Illinois. Before addressing ...

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