Statute of Limitations

DeMarco v Ecklund, 341 Ill App 3d 225, 792 NE2d 404, 275 Ill Dec 173 (2nd D 2003).

Facts: Seller contracted to sell property to buyer. The contract contained a provision that required the buyer to construct a water retention pond on the property. The buyer never constructed the pond. Nine years later, the seller retained an attorney to sue the buyer. However, the attorney was unable to sue the buyer because the statute of limitations had already passed.

The seller then brought a malpractice action against the attorney for not filing the claim in time. The attorney argued that the statute of limitations had already passed, according to the four-year statute of limitations for construction of improvements to real property 735 ILCS 5/13-214(a), when the seller retained the attorney. The seller argued that the ten-year statute of limitations for written contracts 735 ILCS 5/13-206 should apply and thus the statute of limitations would not have already passed when the attorney was retained. The trial court found for the attorney and the seller appealed.

Holding: Affirmed. The statute of limitations for construction of improvement to real property should be applied and thus the attorney did not engage in malpractice.

First, the court stated that "[w]hen two limitations periods apply to an action, the more specific statute is generally effective." 735 ILCS 5/13-206 provides a ten-year limitations period for "actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing." 735 ILCS 5/13-214(a) provides a four-year limitations period for "[a]ctions 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." Because this case centers on the buyer's obligation to build a water retention pond rather than the real estate purchase as a whole, 735 ILCS 5/13-214(a) is more specific and thus should apply.

Second, the court stated that it is not necessary that a person engage in construction for 735 ILCS 5/13-214(a) to apply. The purpose of 735 ILCS 5/13-214(a) "is to prevent liability in perpetuity against persons involved in the design and construction of buildings, such as architects, contractors and engineers, it also governs a landowner in a breach of contract action who is being sued for an act or omission of one of the specified construction-related activities or for actual construction." Thus, the fact that the buyer did not build the pond is an "omission" that is governed by 735 ILCS 5/13-214(a). Because 735 ILCS 5/13-214(a) governed the case, the statute of limitations had already passed when the case was brought to the attorney. Therefore the attorney was not liable for malpractice.

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