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J. S. Reimer, Inc v. the Village of Orland Hills

May 10, 2013

J. S. REIMER, INC., PLAINTIFF AND COUNTERDEFENDANT,
v.
THE VILLAGE OF ORLAND HILLS, OF MUNICIPAL CORPORATION,
DEFENDANT AND COUNTERPLAINTIFF AND THIRD-PARTY PLAINTIFF-APPELLANT (BARCLAY AND ASSOCIATES, THIRD-PARTY DEFENDANT-APPELLEE; )
ROBERT R. SLANKER AND ASSOCIATES, LTD., AN ILLINOIS CORPORATION, AND TESTING SERVICE CORPORATION, AN INDIANA CORPORATION, THIRD-PARTY DEFENDANTS).



Appeal from the an Illinois Circuit Court Cook County, Illinois. No. 05 L 0595 HonorableSanjay T. Tailor, Judge Presiding.

The opinion of the court was delivered by: Justice Taylor

JUSTICE TAYLOR delivered the judgment of the court, with opinion. Justices Howse and Palmer concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff Village of Orland Hills (Village) appeals from the trial court's grant of summary judgment for third-party defendant Jack Barclay & Associates (Barclay) pursuant to the four-year statute of limitations for actions concerning the design, management, or supervision of construction.

¶ 2 The Village hired Barclay to perform architectural services for the construction of a new community center building for the Village. The building was substantially completed by July 1, 2001. It is undisputed that the concrete floor of the building is sinking into the ground because it was built over peat, which is being compressed by the weight of the building.

¶ 3 The Village brought suit against Barclay on December 8, 2006, seeking damages for breach of contract and fraud. Barclay moved for summary judgment on grounds that the Village's suit was time-barred. The trial court granted its motion. The Village now appeals, contending that Barclay is estopped from raising the statute of limitations because of certain alleged misrepresentations that it made to the Village. For the reasons that follow, we affirm the judgment of the trial court.

¶ 4 I. BACKGROUND

¶ 5 The following facts are undisputed for purposes of this appeal. Barclay is engaged in the business of providing professional architectural services. On September 16, 1999, the Village entered into a written contract with Barclay to perform architectural and design services in connection with the construction of a new community center. The contract between the Village and Barclay, which was modeled upon a standard form contract produced by the American Institute of Architects, contains the following provision (hereinafter Article 9.3):

"9.3. Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have accrued and the applicable statutes of limitations shall commence to run not later than either the date of Substantial Completion for acts or failures to act occurring prior to Substantial Completion or the date of issuance of the final Certificate of Payment for acts or failures to act occurring after Substantial Completion."

¶ 6 Barclay submitted plans and specifications to the Village which, among other things, called for certain excavation work to be done. The Village then hired J. S. Riemer, Inc. (Riemer), to perform the specified excavation work. Riemer excavated the project site on August 10 and 11, 2000.

¶ 7 The community center was substantially complete by July 1, 2001. However, as shall be detailed further below, it was subsequently discovered that the concrete floor of the building was sinking into the ground because it was built over peat which had not been excavated prior to the construction of the building.

¶ 8 On January 18, 2005, Riemer brought suit against the Village because it had not been paid in full for its excavation work. (We need not discuss the details of this suit, since Riemer is not a party to the instant appeal, nor is its liability at issue here. The only parties to the instant appeal are the Village and Barclay.) On April 15, 2005, the Village filed a counterclaim against Riemer, alleging that Riemer improperly excavated the project site. The Village also filed counterclaims against Robert R. Slanker & Associates, the construction manager, and Testing Service Corporation (TSC), a company which the Village hired to perform tests on the soil at the project site.

¶ 9 On December 8, 2006, more than five years after the date of substantial completion for the building, the Village filed a third-party action against Barclay. This action is the subject of the instant appeal. The Village's second amended complaint, which frames the issues now before us, alleged the following. Under the terms of the parties' contract, Barclay agreed to prepare drawings, plans, and specifications for the construction of the building, and Barclay also agreed to inspect the construction work in order to make sure that it complied with its plans and specifications. As part of this work, Barclay ordered that various soil tests be performed on the site. These tests showed that the building site contained extensive deposits of peat. However, according to the Village, Barclay's plans and specifications for the building were defective in that they did not require the removal of all the peat from the site. Additionally, Riemer did not complete all the excavation work required by Barclay's specifications, and Barclay was allegedly informed of this fact, but Barclay nevertheless gave its approval for the pouring of the concrete floor.

¶ 10 The Village further alleged that in the late summer of 2002, the concrete floor of the building began separating from the foundation walls and appeared to be sinking into the ground. When asked by the Village to give its opinion on the cause of the sinking floor, Barclay told the Village that it was the fault of the excavator Riemer for not compacting the earthwork and fill under the floor. Barclay also called for measurements to be made at various times from November 2002 to February 2005, measuring the depths to which the floor was sinking. A report by the soil testing company in March 2003 stated that the floor was located over "underlying unsuitable soils." However, according to the Village, Barclay continued to deny that its design was defective and continued to blame Riemer for the problems with the building. The Village additionally alleged that, in reliance upon the expertise of Barclay, it pursued litigation against Riemer and against the construction manager but forbore to bring suit against Barclay.

¶ 11 Based upon these allegations, the Village's complaint sought relief against Barclay in three counts. The first count is for breach of contract. The second and third counts are for fraudulent concealment and fraudulent misrepresentation, based upon Barclay's alleged assertions that Riemer alone was to blame for the problems with the building.

¶ 12 Barclay moved for summary judgment, contending that the Village's suit was time-barred under section 13-214 of the Code of Civil Procedure (735 ILCS 5/13-214(a) (West 2010)), which provides a four-year statute of limitations for actions "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." Barclay also contended that it was not equitably estopped from raising the statute of limitations, because the Village had sufficient information to bring suit against Barclay within the period of limitations. Specifically, Barclay argued that the Village knew all of the following by March 2003: (1) Barclay's original plans called for the excavation of peat from the building site; (2) Barclay subsequently approved a change to that plan whereby the peat was not properly excavated; and (3) a March 19, 2003, report by TSC attributed the problems with the building to the fact that it was built over "unsuitable soils."

¶ 13 In support of its motion for summary judgment, Barclay attached the deposition testimony of John Daly, the Village manager, and Joseph Ennesser, the Village's building commissioner. Daly testified that a TSC soil report dated December 8, 1999, indicated the presence of peat at the project site. According to Daly, Barclay's original excavation plan involved the removal of all of the peat from the site. Pursuant to Barclay's plan, the bid for the excavation job called for the removal of six feet of unsuitable soil. Daly testified that Barclay assured the Village that it would oversee the construction efforts "at all critical times," including during the excavation.

¶ 14 As noted, the excavation of the project site took place from August 10 to 11, 2000. Daly testified that Riemer failed to excavate to the full six-foot depth specified in the bid. At this point in the deposition, counsel for Riemer showed Daly a letter, dated August 12, 2000, that the construction manager had sent to Daly. The letter stated: "The excavation went well, and by the end of the day, August 11, 2000, we had reached acceptable soils without entering into any additional unit costs for excavation." Daly said that he recalled reading the letter on or about that date. Prior to the issuance of that letter, Daly had told the construction manager that Barclay needed to approve the excavation work before proceeding with filling and compacting. "I want a signoff from Barclay," he said, "or you're not going to start anything." Daly testified that the construction manager confirmed that Barclay had indeed approved the excavation work at issue.

¶ 15 Daly additionally testified that the problems with the building floor first manifested in around late 2001 to early 2002. Upon Barclay's advice, the Village ordered various tests to be performed and submitted the results of those tests to Barclay. "Again," Daly stated, "we were relying on Barclay & Associates to guide us as they had from the onset with this project and to utilize their expertise in determining what actions to take throughout the entire process."

¶ 16 Barclay next presented the deposition testimony of Ennesser, the Village's building commissioner, which was largely in accord with Daly's deposition testimony. Ennesser stated that at a Village committee meeting prior to the excavation, he heard "the architects and everyone" saying that a lot of soil would have to be excavated from the project site. Subsequently, Ennesser observed the excavation work that had been done at the site. He stated that based upon the previous discussion, he had been expecting to see "quite a large hole in the ground," and he was concerned that it was not happening.

¶ 17 On or around August 11, 2000, Ennesser expressed this concern to Robert Slanker, the construction manager. "I asked him if the architect was aware of it," Ennesser stated. "He said he was." Ennesser then spoke with a Barclay architect named Leonard Sawosko, asking him why more soil was not being removed. Sawosko replied that subsequent testing showed that the current level of excavation was sufficient to support the floor. After that conversation, Ennesser said, "I just let it go because I assumed he was the man in control and knew what he was doing, and I kind of put my faith into him, so...." He testified that Barclay, as "the authority on the job," would have been authorized to make changes to the original specifications for excavation.

¶ 18 Ennesser additionally testified that at some point, he discussed with other Village personnel the possibility of receiving credit from Riemer because Riemer excavated less soil than the amount indicated in the bidding specifications. "They didn't do all of the work," he explained. "They didn't excavate as much as they were supposed to. *** [A]nd so I assumed that we should get a credit."

ΒΆ 19 Ennesser finally stated that in his opinion, the cause of the problems with the building was "bad soil" under the building slab. When asked how he came to that opinion, he replied, "Just because originally, I think as I stated before, the original soil borings showed that there was bad soil there. And the fact ...


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