Appeal from Circuit Court of McLean County No. 96L49 Honorable Luther H. Dearborn, Ronald C. Dozier, Judges Presiding.
The opinion of the court was delivered by: Presiding Justice Cook
In September 1992, plaintiffs, Milton and Donna Guzman (Guzmans), sued defendant and third-party plaintiff, C.R. Epperson Construction, Inc. (Epperson), for breach of contract due to the alleged improper construction of their new home by Epperson. The Guzmans voluntarily dismissed their complaint without prejudice in March 1996 but refiled it in April 1996, alleging the same causes of action. In September 1996, Epperson filed a third-party breach-of-contract complaint against various subcontractors that it hired to help construct the Guzman home and later amended its complaint to add indemnity claims as well. In April 1998, the trial court dismissed Epperson's complaint against one subcontractor as barred by the statute of limitations and later dismissed claims against two others and granted summary judgment to a third. Epperson appeals. We reverse and remand with directions.
In 1988, the Guzmans contracted with Epperson to build a residence in Bloomington, Illinois. Epperson then contracted out work to various subcontractors, including third-party defendants MJE Construction, Inc. (MJE); Michael Hadden, d/b/a Hadden Concrete (Hadden); Hardesty Heating and Ventilating, Inc. (Hardesty); and Robert Georgi, d/b/a G&G Roofing (Georgi). On September 25, 1992, the Guzmans sued Epperson, claiming that their home had been constructed improperly, resulting in numerous structural defects. In March 1996, the Guzmans voluntarily dismissed their complaint but refiled it on April 12, 1996, alleging the same claims.
On September 4, 1996, Epperson filed a third-party breach-of-contract complaint against subcontractors MJE, Hadden, Hardesty, Georgi, and a fifth subcontractor that Epperson later voluntarily dismissed from the lawsuit. The complaint detailed the various problems for which each subcontractor was allegedly responsible, stating that the residence had flooded and leaked repeatedly in 1989 and 1990 and subsequently during periods of heavy rainfall. On February 10, 1997, Epperson amended its complaint to include express and implied indemnity claims. Epperson also added a claim against a sixth subcontractor, since deceased, who is not part of this litigation.
MJE and Hardesty then filed motions to dismiss the amended claims directed at them, arguing that Epperson admitted in its original complaint to having known of the alleged deficiencies as early as 1989 or 1990 and, therefore, had failed to file its complaint within the four-year limitations period of section 13-214(a) of the Code of Civil Procedure (Code) (735 ILCS 5/13-214(a) (West 1996)), which provides:
"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 4 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."
The trial court denied the motions. However, in a subsequent motion to dismiss, Georgi included an August 1996 letter from Epperson informing Georgi of the lawsuit, which stated that Epperson had tried unsuccessfully to resolve the matter since 1990. Epperson argued in response that it had not suffered any "injury" until the Guzmans sued it in April 1996 or, at earliest, when they originally sued Epperson in September 1992.-
Epperson further contended that section 13-204 of the Code (735 ILCS 5/13-204 (West 1996)) applied to its indemnity claims. Section 13-204, which was amended (Pub. Act 88-538, §5, eff. January 1, 1995 (1994 Ill. Laws 154, 157)) to specifically cover all actions for contribution and indemnity, provides:
"In instances where an underlying action has been filed by a claimant, no action for contribution or indemnity may be commenced more than 2 years after the party seeking contribution or indemnity has been served with process in the underlying action or more than 2 years from the time the party *** knew or should reasonably have known of an act or omission giving rise to the action for contribution or indemnity, whichever period expires later." (Emphasis added.) 735 ILCS 5/13-204(b) (West 1996).
Section 13-204(d) of the Code provides that this limitations period applies retroactively unless previously applicable statutes of limitations or repose rights had already expired. 735 ILCS 5/13-204(d) (West 1996).
In April 1998, the trial court granted Georgi's motion based primarily on Epperson's letter and determined that the limitations period of section 13-214(a) had expired by the end of 1994. The trial court rejected Epperson's contention that section 13-204, as amended, applied to Epperson's indemnity claims, finding that section 13-214(a) was previously applicable to the indemnity claims as well, and the limitations period for these claims had also expired in 1994. In November 1998, the trial court dismissed the claims against Hadden and Hardesty, granted summary judgment to MJE, and permitted the parties to take an immediate appeal under Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). This appeal followed.
As we consider on appeal whether the trial court erred in granting the subcontractors' motions to dismiss and for summary judgment, our review is de novo. Shull v. Harristown Township, 223 Ill. App. 3d 819, 824, 585 N.E.2d 1164, 1167 (1992); Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732, 735 (1993). Both parties distinguish Epperson's claims for breach of contract from its claims for indemnity and, accordingly, their respective limitations periods as well. However, we find for our purposes that all the claims in Epperson's amended complaint, regardless of the proposed theory of recovery, are in reality third-party actions seeking monetary relief should the Guzmans obtain a judgment against Epperson. All are, in essence, one cause of action. Therefore, we treat all ...