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10/30/89 Senior Housing, Inc., v. Nakawatase

October 30, 1989





549 N.E.2d 604, 192 Ill. App. 3d 766, 139 Ill. Dec. 878 1989.IL.1711

Appeal from the Circuit Court of Cook County; the Hon. Odas Nicholson, Judge, presiding.


JUSTICE CAMPBELL delivered the opinion of the court. MANNING, P.J., and O'CONNOR, J., concur.


Plaintiff, Senior Housing, Inc., appeals from the dismissal of counts I and II of its lawsuit against defendant, Nakawatase, Rutkowski, Wyns & Yi, Inc., an architectural and engineering firm. Count I alleged that Nakawatase had negligently performed its contractual duties to plaintiff, and count II alleged that Nakawatase had breached the contract between the parties. The trial court granted Nakawatase's motion to dismiss on the ground that plaintiff had failed to timely file its claim within two years of the date the cause of action accrued. On appeal, plaintiff contends that: (1) the statute of limitations had not expired prior to plaintiff's filing of its complaint and (2) Nakawatase is estopped by its conduct from asserting the statute of limitations as a defense to plaintiff's claim. For the following reasons, we affirm in part, reverse in part and remand the cause for further proceedings.

The pleadings set forth the following. On December 21, 1981, plaintiff and Nakawatase entered into a contract (the Contract) for the development of a multi-unit residential building for the elderly, consisting of 59 one-bedroom units for the elderly and one two-bedroom living unit for the manager. The Contract stated that Nakawatase was to "develop all concept, schematic, design/development and construction documents for the project, normal submittals to DHUD and . . . provide construction observation during the construction of the project." The Contract further provided:

"1.4.9 The Architect shall be the interpreter of the requirements of the Contract Documents and the Judge of the performance thereunder by both the Owner and Contractor, and shall render written decisions on all claims, disputes and other matters in question between the Owner and the Contractor."

In addition to other provisions specifying the responsibilities of the parties, the Contract stated:

"8.2 As between the parties to this Agreement: as to all acts or failures to act by either party to this Agreement, any applicable statute of limitation shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than the relevant Date of Substantial Completion of the Work, and as to any acts or failures to act occurring after the relevant Date of Substantial Completion, not later than the date of issuance of the final Certificate for Payment."

The parties agree that the housing center was substantially completed on September 1, 1983.

Sometime in early 1984, plaintiff notified Nakawatase and the contractor that there were certain moisture problems resulting in numerous water and air leaks at windows and heat/vent/air-conditioning units every time it rained or the wind blew. Nakawatase and the contractor conducted an on-site inspection of the building and in a letter to plaintiff dated July 6, 1984, Nakawatase advised plaintiff that the contractor had been "instructed to re-caulk the windows in accordance with the drawings so that the joint will be caulked above and below the flashing and adhered to the shelf angle. This has been completed in the 04 and 06 bays on all floors and is being watched to determine if this has corrected the problem before re-caulking the entire building. The Contractor has promised to repair the entire building once it is determined that this course of action will correct the problem."

Subsequently, in January 1985, plaintiff notified Nakawatase and the contractor that the recaulking had not worked and the windows were leaking. A meeting was then held in late January at which Nakawatase, plaintiff and the window subcontractor discussed the failure of the recaulking to prevent water and air infiltration at the windows. It was discovered that the caulking had covered necessary weep holes above the windows which facilitate the relief of water build-up behind the walls. The window subcontractor agreed to correct the problems. Air infiltration problems were also to be corrected. During spring 1985, the contractor obtained the services of a subcontractor to do remedial caulking and to install plastic tube weeps. In addition, a masonry subcontractor applied a water repellant to a section of the building. Subsequently, plaintiff asked Nakawatase to prepare bids for the application of a water repellant sealer to the entire building. Nakawatase submitted a list of contractors to plaintiff, and bids were sent out to five contractors. The bids were opened in April 1986. The record does not indicate whether this work was ever done. In mid-April 1986, when the leakage problems still persisted, plaintiff commissioned an independent masonry consultant to inspect the housing center and to determine the causes of water and wind penetration. The consultant advised plaintiff, inter alia :

"Detail 1, A -- 17 of the original drawings will not allow water drainage. The detail as shown seals the forward edge of the flashing shown in the sealant bead ...

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