Court of Appeals of Illinois, First District, Fifth Division
from the Circuit Court of Cook County No. 2017 P 003934
Honorable Karen L. O'Malley, Judge, Presiding.
Attorneys for Appellant: Le Roy E. Stevens Jr., of Stevens
and Stevens, of Chicago, for appellant.
Attorneys for Appellee: Lawrence M. Karlin, of Karlin
Associates LLC, of Chicago, for appellee.
PRESIDING JUSTICE HOFFMAN delivered the judgment of the
court, with opinion. Justices Rochford and Delort concurred
in the judgment and opinion.
HOFFMAN PRESIDING JUSTICE
1 The claimant, Paul D. Heck, appeals from an order of the
circuit court of Cook County which dismissed, as time-barred,
the claim he filed against the Estate of Thomas John Heck
Jr., deceased (estate), based upon a promissory note executed
by the decedent. For the reasons that follow, we affirm.
2 On June 14, 1988, Thomas John Heck Jr. executed a note
promising to pay the claimant $51, 000 at 7% interest
compounded annually (note). The note contains the following
payment terms: "Perpetual 90 day note[.] Borrower shall
make a single payment on demand within 90 days of demand
letter. If payment is not demanded or paid by borrower[, ]
this note will renew automatically in full force of the terms
until said note is paid."
3 On November 7, 2016, Thomas John Heck Jr. died. During his
life, the decedent never made a payment on the note and the
claimant never made a demand for payment. On December 8,
2017, the claimant made a written demand upon the estate for
payment of the note.
4 The estate did not pay the note, and on January 3, 2018,
the claimant filed a claim against the estate for $362,
886.62 due on the note, plus interest, attorney fees, and
costs. On May 14, 2018, Robert B. Heck, as executor of the
estate (respondent), filed a motion pursuant to section
2-619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS
5/2-619(a)(5) (West 2016)) to dismiss the claim as
time-barred. On October 15, 2018, the circuit court found
that the note is a demand note and, relying upon the 10-year
limitations period contained in section 13-206 of the Code
(735 ILCS 5/13-206 (West 2016)), granted the motion and
dismissed the claim as time-barred. This appeal followed,
invoking our jurisdiction under Illinois Supreme Court Rule
304(b)(1) (eff. Mar. 8, 2016).
5 In urging reversal, the claimant argues that the circuit
court erred when it determined that the note is a demand note
and that his claim is barred by a 10-year statute of
limitations. He maintains that the note renewed in perpetuity
and is not subject to a 10-year statute of limitations. We
6 Since the trial court dismissed the claimant's claim in
response to a motion pursuant to section 2-619 of the Code,
our review is de novo. Lawler v. University of Chicago
Medical Center, 2017 IL 120745, ¶ 11. In resolving
this appeal, we are required to construe the note and
determine the applicable limitations period; both of which
are issues of law subject to de novo review.
People v. Jackson, 2013 IL 113986, ¶ 15 (purely
legal questions are reviewed de novo); Northern Illinois
Medical Center v. Home State Bank of Crystal Lake, 136
Ill.App.3d 129, 142 (1985) (construction and legal effect of
an instrument raises a question of law); Travelers
Casualty & Surety Co. v. Bowman, 229 Ill.2d 461, 466
(2008) (the applicability of a statute of limitations to a
cause of action presents a question of law).
7 A note is a demand note if it states that it is payable on
demand, otherwise indicates that it is payable at the will of
the holder, or does not state a definite time for payment.
810 ILCS 5/3-108 (West 2016) (formerly Ill. Rev. Stat. 1987,
ch. 26, ¶ 3-108); see also Theodosakis v. Austin
Bank of Chicago, 93 Ill.App.3d 634, 637 (1981). The
note, which is the subject of this litigation, is not payable
on a certain date; rather, it is payable "on demand
within 90 days of a demand letter." The due date is
indefinite, and the obligation to pay is triggered by a
demand. We find, therefore, that the note is a demand note.
We are not persuaded by the claimant's argument that the
language describing the note as a perpetual 90-day note that
renews automatically until the note is paid is evidence that
the note is not a demand note or that the maker intended that
it not be subject to a 10-year statute of limitations. In
fact, this language of the note supports its characterization
as a demand note because a perpetual 90-day note that
continues to renew has an unlimited or indefinite due date. A
note with an indefinite due date is a demand note.
Theodosakis, 93 Ill.App.3d at 637.
8 The respondent based his motion to dismiss on the assertion
that enforcement of the note was barred by the passage of the
10-year statute of limitations contained in section 13-206 of
the Code in effect at the time that his motion was filed.
From a reading of the transcript of proceedings, it is
apparent that the circuit court also relied upon the current
version of the statute in granting that motion. The current
version of section 13-206 of the Code provides, in relevant
"[A]ctions on *** promissory notes *** shall be
commenced within 10 years next after the cause of action
accrued ***. With respect to a demand promissory note dated
on or after the effective date of this amendatory Act of
1997, if a demand for payment is made to the maker of the
demand promissory note, an action to enforce the obligation
of a party to pay the demand promissory note must be
commenced within 10 years after the demand. An action to
enforce a demand promissory note is barred if neither
principal nor interest on the demand promissory note has been
paid for a ...