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05/19/88 the People Ex Rel. Samuel v. James M. Graham Et Al.

May 19, 1988

CAPITAL DEVELOPMENT BOARD, ET AL., PLAINTIFFS-APPELLANTS

v.

JAMES M. GRAHAM ET AL., DEFENDANTS- APPELLEES



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

THE PEOPLE ex rel. SAMUEL K. SKINNER, Chairman of the

524 N.E.2d 642, 170 Ill. App. 3d 417, 120 Ill. Dec. 612 1988.IL.790

Appeal from the Circuit Court of Sangamon County; the Hon. Richard E. Mann, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. LUND and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

In this appeal we consider the propriety of the trial court's dismissal of a 15-count complaint seeking damages for defects in the design and construction of the ill-fated Capitol Area Vocational Center (center).

Defendants James Graham, Paul O'Shea, August Wisnosky, and Thomas Hyde are Springfield architects associated with Graham, O'Shea and Wisnosky Architects and Planners, Inc. (now Graham, O'Shea, and Hyde Architects, Inc.). Defendants David Hoffman, Louis Saur, Thomas Eckelman, and William Obrock are St. Louis architects associated with the entities bearing their names. These two principal architectural groups formed a joint venture to provide professional services to the Capital Development Board (Board) in connection with design of the center. Defendant James Pearl was employed by the joint venture architects as project manager.

Defendants James Ahart and Wayne Grierson are engineers and members of Professional Engineers and Planners, a partnership, which was retained by the joint venture architects to advise and render structural and mechanical engineering services in the design of the structural member, and heating, ventilation, and air-conditioning systems.

Defendant Evans Construction Company (Evans) was the prime contractor. Defendant Aetna Casualty and Surety Company issued a performance bond covering Evans' work. Defendant Metal-Air Corporation (Metal-Air) was a roofing subcontractor hired by Evans.

Defendant L&L, Inc. , was the heating, ventilation and air-conditioning prime contractor. Defendant Fidelity and Deposit Company of Maryland issued a performance bond covering L&L's work. Defendant EMAC, Inc. , was L&L's subcontractor.

Construction began in late 1974 or early 1975. The building was completed and occupied in 1977. It was closed in 1982 because of serious structural defects.

Construction was divided into six components: the structural member system; the heating, ventilation and air-conditioning system; the roofing system; the floor topping system; the exterior wall system; and the site drainage system. Utilizing an experimental design concept involving the incorporation of massive amounts of concrete in the structure, these systems, assisted by computerized control, were to be integrated to produce an energy efficient facility capable of significantly reducing the level of energy required to heat and cool the premises.

Plaintiffs filed their original complaint on December 29, 1982. L&L and EMAC answered the complaint. The remaining defendants moved to dismiss based on the statute of limitations, failure to state a cause of action, and other technical deficiencies. Leave was granted and plaintiffs filed a first-amended complaint on July 8, 1983. In it they alleged they discovered the deficiencies in the design and construction of the center may have been wrongfully caused on May 25, 1982, when the Board received a preliminary report from an independent engineering consultant which advised of extraordinary problems the center was experiencing because of defects in the structural member system.

Counts I, VI and IX alleged breach of the respective contractual obligations of the joint venture architects and engineers, Evans, and L&L. Counts II, III, and IV alleged the tort of "professional" negligence against the joint venture architects and engineers, their agents and consultants, and all individually named defendants. Counts VII, X, XIII, and XV sounded in tort and alleged negligence in the

In response to renewed motions to dismiss by all defendants, the trial court dismissed counts II, III, IV, VII, X, XIII, and XV (negligence claims) with prejudice finding plaintiffs were precluded from recovery in tort for purely economic loss under the authority of Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443. Count V (fraudulent or negligent misrepresentation) was dismissed with leave to amend because multiple causes of action were pleaded. Counts XII and XIV (third-party beneficiary claims) were dismissed as conclusory with leave to amend. Counts VIII and XI (surety claims) were dismissed with prejudice on the theory the performance bonds did not obligate the sureties when the basis for recovery was not the failure of the contractor to complete the work but was, instead, an allegation the work was not of acceptable quality. Finally, defendants' motions to dismiss counts I, VI, and IX (primary breach of contract claims), which were predicated on the running of the statute of limitations, were denied because the court found a question of fact existed as to when plaintiffs discovered they had a cause of action.

Plaintiffs were granted leave to file the first amendment to the amended complaint on August 16, 1984, which divided count V into amended counts Va through Vi and alleged fraudulent misrepresentation. Previous references to negligent misrepresentation were eliminated.

A second amendment to the amended complaint was filed on October 18, 1984, realleging counts XII and XIV (third-party beneficiary claims). The new counts alleged the subcontractors fraudulently concealed the defective nature of the work they performed. Motions to dismiss were filed with respect to each amendment. The trial court granted the motions on counts Vd through Vi on July 19, 1985. Counts XII and XIV were again dismissed on November 13, 1986, and August 22, 1985, respectively.

On July 19, 1985, the court allowed plaintiffs' motion to file amendments to counts I, VI, and IX, expressly ruling all previous versions of those counts were abandoned. As amended, the contract counts added allegations of fraudulent concealment and misrepresentation by the architect and engineer group. On November 26, 1985, the court struck counts I, VI, IX, and Va through Vc. On plaintiffs' motion to reconsider, the court allowed plaintiffs 60 days to amend counts I, VI, and IX on February 19, 1986.

Counts VIII and XI (performance bond claims) were never amended or refiled although the original order of dismissal granted plaintiffs leave to do so.

No amendment consistent with the court's February 1986 ruling was filed and various defendants subsequently filed motions for final judgment. Plaintiffs filed a motion for substitution of counsel and a motion requesting an additional 60 days in which to file an amended complaint as to all parties and all theories of recovery, or, in the alternative, an extension for 30 days to file a motion to reconsider the dismissal of all original and amended counts because the new attorney assigned to the case had not yet familiarized himself with the pleadings and documentation.

The trial court denied plaintiffs' motion for further extensions and dismissed plaintiffs' action in its entirety with prejudice on December 18, 1986.

Initially we consider the question of whether the statute of limitations contained in section 13-214 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1983, ch. 110, par. 13-214) applies to the plaintiff Capital Development Board. The version of the statute in effect at the time the original complaint was filed states in pertinent 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 reasonably have known of such act or omission.

(e) The limitations of this Section shall not apply to causes of action arising out of fraudulent misrepresentations or to fraudulent concealment of causes of action." (Emphasis added.) Ill. Rev. Stat. 1983, ch. 110, par. 13-214.

See also Ill. Rev. Stat. 1983, ch. 110, par. 13-215 (applicable to fraudulent concealment).

Plaintiffs argue the definition of "person" which includes "any body politic" does not include the State or its agencies. We disagree. In People ex rel. Skinner v. Hellmuth, Obata & Kassabaum, Inc. (1985), 135 Ill. App. 3d 765, 482 N.E.2d 155, rev'd on other grounds (1986), 114 Ill. 2d 252, 500 N.E.2d 34, a similar argument was rejected by the appellate court. There, it was succinctly stated:

"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. [Citations.] [The Capital Development Board] 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 ...


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