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02/16/95 TIVOLI ENTERPRISES v. BRUNSWICK BOWLING

February 16, 1995

TIVOLI ENTERPRISES, INC. PLAINTIFF-APPELLANT,
v.
BRUNSWICK BOWLING AND BILLIARDS CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Du Page County. No. 92-L-1340. Honorable Edward R. Duncan, Jr., Judge, Presiding.

The Honorable Justice Thomas delivered the opinion of the court: Inglis and Bowman, JJ., concur.

The opinion of the court was delivered by: Thomas

JUSTICE THOMAS delivered the opinion of the court:

The plaintiff, Tivoli Enterprises, Inc. (Tivoli), appeals from orders of the circuit court of Du Page County dismissing its amended complaint and first amended complaint filed against the defendant, Brunswick Bowling and Billiards Corporation (Brunswick), pursuant to section 2-619(a)(5) of the Code of Civil Procedure (Code) which provides for involuntary dismissal of actions not commenced within the time limited by law (735 ILCS 5/2-619(a)(5) (West 1992).) We affirm.

The record reveals the relevant facts to be as follows. Tivoli is an Illinois corporation which operates Tivoli Bowling Lanes (Tivoli Lanes), in Downers Grove, Illinois. Brunswick is a Delaware corporation licensed to do business in Illinois. On March 20, 1985, the parties entered into a Brunswick form contract entitled "Construction and Equipment Order" whereby Tivoli purchased from Brunswick material for the assembly, construction and installation of items consisting of 12 replacement bowling lanes with a synthetic surface called armor plate and equipment consisting of a lane cleaning tool. At that time, the bowling lanes at Tivoli Lanes were wooden. Brunswick performed a feasibility study and then delivered and installed the armor plate replacement lanes in July, 1985. The contract provided a one-year warranty on the newly installed lanes, through approximately June, 1986. By the end of 1985, Tivoli began experiencing problems with the lanes. Over the next several years, Tivoli repeatedly sought the assistance of Brunswick in remedying the problems, but the problems only worsened. In 1992, Tivoli consulted with Ted Wells, an expert in the repair and replacement of bowling lanes, regarding the problems with the lanes. Wells opined that the lane distortions were the result of moisture seeping between the original and synthetic replacement lane beds, and that Brunswick should not have installed the synthetic lanes in light of the atmospheric conditions at Tivoli Lanes.

On July 2, 1992, Tivoli filed a complaint against Brunswick for breach of contract. Brunswick filed a section 2-619(a)(5) motion to dismiss the complaint, claiming that the action was barred by the four-year statute of limitations applicable to breach of contract actions for the sale of goods. On August 19, 1992, the trial court granted Tivoli leave to amend its complaint and leave to respond to Brunswick's motion. The court also set a date for hearing on Brunswick's motion. On September 3, 1992, Tivoli filed an amended complaint against Brunswick for breach of contract. Thereafter, Tivoli filed a response to Brunswick's motion to dismiss to which Brunswick filed a reply.

On January 8, 1993, Tivoli filed a motion to compel Brunswick to file answers to interrogatories served by Tivoli. By order dated January 25, 1993, the trial court denied the motion to compel.

Hearing on Brunswick's motion to dismiss the amended complaint occurred on February 26, 1993. The trial court granted the motion and dismissed the amended complaint. The court again granted Tivoli leave to amend and file a first amended complaint.

Tivoli subsequently filed its first amended complaint for breach of contract, which for the first time included allegations of fraudulent concealment. Brunswick again filed a section 2-619(a)(5) motion to dismiss. Tivoli thereafter filed a response to the motion. Brunswick filed a reply and an affidavit of Warren C. Bradley, Brunswick's director of warranty administration. Tivoli then filed an amended counteraffidavit of Donald Hocking, manager of Tivoli Lanes, in support of its response. Hearing on Brunswick's motion to dismiss occurred on December 6, 1993, at which time the trial court issued an order granting Brunswick's motion and dismissing Tivoli's first amended complaint with prejudice. The court's order was entered on December 9, 1993, nunc pro tunc to December 6, 1993.

Tivoli filed a notice of appeal from the trial court's order dismissing its amended complaint, the order dismissing its first amended complaint and the order denying its motion to compel. Brunswick has filed a motion to strike a portion of Tivoli's reply brief. Brunswick's motion was taken with the case.

As a preliminary matter then, we must dispose of Brunswick's motion to strike a portion of Tivoli's reply brief. Brunswick contends that Tivoli requested reversal of the trial court's January 25, 1993 order denying Tivoli's motion to compel for the first time in its reply brief. Brunswick has moved to strike that portion of Tivoli's reply brief. Illinois Supreme Court Rule 341(g) requires that a reply brief "shall be confined strictly to replying to arguments presented in the brief of the appellee." (Emphasis added). (145 Ill. 2d R. 341(g).) Moreover, this court has previously stated its position that issues raised for the first time in the reply brief do not merit consideration on appeal. ( Britamco Underwriters, Inc. v. J.O.C. Enterprises, Inc. (1993), 252 Ill. App. 3d 96, 98, 191 Ill. Dec. 446, 623 N.E.2d 1036). Inasmuch as we find the issue of the reversal of the trial court's January 25, 1993 order to be presented for the first time in Tivoli's reply brief, we grant Brunswick's motion to strike that portion of the reply brief requesting reversal of said order.

We turn now to the merits of this appeal. Tivoli initially contends that the trial court improperly dismissed its cause of action against Brunswick. Tivoli's cause of action against Brunswick was predicated upon a breach of the contract executed by the parties on March 20, 1985. The breach of contract cause of action was first asserted in Tivoli's initial complaint which was filed on July 2, 1992, and was reasserted in Tivoli's amended complaint and first amended complaint. The trial court dismissed the amended and first amended complaints as untimely. Tivoli argues that its breach of contract claim as set forth in its first amended complaint was timely filed given that the basis for the claim had been fraudulently concealed by Brunswick. Brunswick, on the other hand, contends that there was no fraudulent concealment.

The statute of limitations which governs breach of contract actions for the sale of goods is set forth in section 2-725 of the Uniform Commercial Code-Sales (UCC) and provides that such actions must be brought within four years after the cause of action has accrued. (810 ILCS 5/2-725(1) (West 1992).) The cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. (810 ILCS 5/2-725(2) (West 1992).)

In its first amended complaint, Tivoli alleges that Brunswick breached the contract by failing to perform a proper feasibility study prior to delivering and installing the lanes in July, 1985. Therefore, section 2-725 of the UCC requires the claim to have been brought by July, 1989. In the instant case, Tivoli did not assert its breach of contract claim until July 2, 1992, approximately seven years after the cause of action had accrued. Thus, the trial ...


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