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SECOND DIVISION
September 4, 2001

Plaintiff Blinderman Construction Company (plaintiff orBlinderman) appeals from the judgment of the circuit court ofCook County granting summary judgment in favor of defendant theMetropolitan Water Reclamation District of Greater Chicago(defendant or the District) on the grounds that plaintiff's claimis time barred. One appeal plaintiff argues that the ten-yearstatute of limitations for written contracts applies to its claimpursuant to section 13-206 of the Code of Civil Procedure (735ILCS 5/13-206 (West 1992), rather than the four-year statute oflimitations provided in section 13-214(a) (735 ILCS 5/13-214(a)(West 1992)). We affirm.

The essential facts of this case are not in dispute. Theparties entered into the contract at issue in this case on orabout April 28, 1983. Under the contract, which will be morefully set out in the analysis section of this order, Blindermanagreed to construct a laboratory building for the District forthe amount of $8,534,748. Blinderman was paid $8,852,611.84, forits work on the project.

In its verified two count complaint filed December 16, 1993,Blinderman contends that it is owed the additional amount of$3,268,774.79. This amount consists of $378,804.79, for "extrawork" due to certain "additions and deletions [which] were agreedon by the parties" and $2,889,970.00, for additional "extra work"performed "at the direction of the District," pursuant to "changeproposals." Count I alleged that the District breached thecontract by failing to pay for the extra work and changeproposals. Count II alleged that the District breached theimplied covenant of good faith and fair dealing by inducingBlinderman to engage in good-faith negotiations over the amountdue knowing that in the interim Blinderman was forbearing filingsuit and then falsely asserting that negotiations had ended yearsearlier.

On February 16, 1994, the District moved "to dismiss[Blinderman's] complaint" pursuant to section 2-619 of the Codeof Civil Procedure (735 ILCS 5/2-619 (West 1992)) on the groundsthat it was time barred under the limitations provisions ofsection 13-214 of the Code of Civil Procedure (735 ILCS 5/13-214(a) (West 1992)). That statute provides for a four-yearperiod of limitations for actions based on tort or contractagainst any person for an act or omission occurring in theperformance of certain activities related to construction (therelevant portions of section 13-214(a) will be set out in full inthe analysis section of this order). In its motion to dismissthe District argued that it was entitled to the protection ofsection 13-214(a) because the contract at issue "was for theconstruction of improvements to real estate and [therefore] comeswithin the" provisions of section 13-214(a). Blindermancontended that this action was governed by the ten-year statuteof limitations for written contracts pursuant to section 13-206(735 ILCS 5/13-206 (West 1992)). At a hearing on the motion todismiss on May 6, 1994, Judge Gillis ("the first judge") deniedthat motion, agreeing with Blinderman that the action was nottime-barred by section 13-214(a).

Apparently before an answer was filed, on July 18, 1994,Blinderman filed a first amended verified complaint whichincluded the same breach of contract claim as count I, butsubstituted a different cause of action in count II. The amendedcomplaint alleged in count II a violation of the Local GovernmentPrompt Payment Act (50 ILCS 505/1 et seq. (West 1992)). Blinderman contended that under the Prompt Payment Act any billfor goods or services provided by a contractor to a contractinggovernmental entity must be paid within 30 days of its approval. In its answer on December 20, 1994, the District raised thestatute of limitations as an affirmative defense. In its replyto the District's answer on January 17, 1995, Blindermancontended that the District was estopped from raising the statuteof limitations, apparently because of the protracted settlementnegotiations between it and the District as alleged in count IIof the original complaint.

The case proceeded through discovery, at the close of whichthe District moved for summary judgement on November 21, 1997. With respect to count I, the District once again contended thatit was time-barred by section 13-214(a) because the Districtparticipated in the construction of the project. In itsmemorandum in support of its motion, the District contended thatit "prepared all contract plans, specifications and drawings,including the detailed drawings for the project's process design,structural design, electrical design and electrical design-powerand electrical-design lighting." The District also contendedthat under the contract it is permitted to make "any changes tothe specifications and plans deemed necessary." The District'sengineer is vested with broad powers, including the power todirect that extra work be performed (unless its cost exceeds$5,000, in which case in the District's board must approve it). Additionally the District pointed out that under the contract thepower of the engineer extendes to the imposition of liquidateddamages unless the engineer determines that the delay was notBlinderman's fault. In the latter event, the completion datecould be extended to avoid the imposition of liquidated damages. The engineer also has the power to reject substandard materials,and to determine the amount of damages growing out of anyviolation of the contract. Additionally, in support of itsmotion for summary judgment with respect to count I, the Districturged that its conduct in settlement negotiations prior to thecommencement of Blinderman's suit did not estop it from raisingthe statute of limitations as a defense.

The District also urged that it was entitled to summaryjudgement on count II because the Prompt Payment Act claim wasbarred due to Blinderman's failure to fulfill a conditionprecedent. The District argued that its approval of the billwhich Blinderman claimed was not paid within 30 days as requiredby the Act was contingent on Blinderman's submitting a release,which Blinderman did not do.

One March 5, 1998, Judge Neville ("the second judge") deniedthe District's motion for summary judgment as to count I.⁽¹⁾ Heruled that while section 13-214(a) applied to this case, therewas an issue of fact as to whether the District was estopped fromraising it. On May 14, 1998, the trial court entered an ordergranting the District's motion for summary judgment on count II. Concomitantly, the court also granted the District's motion for abifurcated trial on count I. The first trial would determine ifthe District was estopped from raising the statute of limitationsas a defense to count I. If it was necessary, a trial on themerits of Blinderman's claim in count I would be held later.

A bench trial on the estoppel issue before Judge Henry ("thethird judge") began on November 4, 1999. After the evidence wasclosed, the District moved for a directed finding and its motionwas granted. Blinderman then moved for reconsideration of thesecond judge's ruling than section 13-214(a) applied to thiscase. This motion was denied. 

ANALYSIS

On appeal Blinderman contends, as it did below, that thestatute of limitations applicable to this case is section 13-206which provides for a ten-year limitation period. The Districtcontends that the four-year limitation period under section 13-214(a) is applicable to actions based on tort or contract foracts or omissions of persons engaged in the design, planning,supervision, observation, or management of construction. Weagree with the District.

Blinderman would urge that the provisions of section 13-214(a) were intended to apply to actions for recovery of damagesto incurred through defects in the construction work performed,whether under tort or contract whether occasioned by negligencein tort, or by breach of contract. Typically, such actions wouldinvolve things such as cracks in a foundation discovered wellafter construction is completed. Blinderman therefore urges thatthe statute be limited to the scope espoused by variouslegislators in the debates on its enactment. See generally, 81^stIll. Gen. Assem., House Proceedings, May 25, 1979 at 29-41. Suchan interpretation, however, does violence to the plain andunambiguous language of the statute.

Section 13-214(a) provides:

"Actions based upon tort, contract, or otherwiseagainst any person for an act or omission of suchperson in the design, planning, supervision,observation or management of construction, orconstruction of an improvement to real property shallbe commenced within 4 years from the time the personbringing an action, or his or her privity, knew orshould reasonably have known of such an act oromission." 735 ILCS 13-214(a)(West 1992).

When construing a statute, the intent of the legislaturemust be ascertained and given effect. General Motors Corp. v.Industrial Commission, 62 Ill.2d 106, 112, 338 N.E.2d 561,(1975). However, the "language used in a statute is the primarysource for determining this intent, and where that language iscertain and unambiguous, the proper function of the courts is toenforce the statute as enacted." 155 Harbor Drive CondominiumAssociation v. Harbor Point, Inc., 209 Ill. App. 3d 631, 642, 568N.E.2d 365, 372 (1991) (refusing to examine the legislativehistory of section 13-214).

Under its plain language, the provisions of section 13-214(a) extend to acts or omissions in the supervision ormanagement of construction. Thus, under these provision, section13-214(a) becomes applicable to actions for recovery of paymentsdue under the contract for work engendered by the District in itscapacity as supervisor and/or manager of construction. As wenoted above, the District, through its engineer, exercisedsupervisory and managerial control over the project. Forexample, there is no dispute as to the engineer's powers to orderextra work and to direct the time at which it is performed. Theengineer also had the power under the contract to imposeliquidated damages for delay, or to extend the period ofperformance so is to avoid the imposition of such damages. TheDistrict also prepared all the plans specifications and drawingsfor the design of the project and was authorized to order changesto those plans under the contract. Thus the action in theinstant case which seeks to recover for extra work performed as aresult of the acts or omissions of the District is subject to theexplicit provisions of section 13-214(a).

This result is consistent with the holding in Lombard Co. v.Chicago Housing Authority, 221 Ill. App. 3d 730, 587 N.E.2d 485(1991). Lombard did not involve a lawsuit for damages arisingfrom defects in construction; rather, it involved a suit formonies due to a building contractor for work which he performed. Under the facts of Lombard, the plaintiff building contractor washired by the defendant housing authority to erect an apartmentbuilding. The plaintiff incurred costs well beyond thosecontemplated in the contract and sued the defendant to recoverthem. The plaintiff alleged that it incurred the costs becausethe defendant failed to make the site available on time, failedto obtain zoning and building permits in a timely manner andfailed to approve "shop drawings" within the allocated timeperiod. Lombard, 221 Ill. App. 3d at 732, 587 N.E. 2d at 487.

The Lombard court held that the allegation that thedefendant failed to approve the shop drawings within theallocated time brought the defendant within the purview ofsection 13-214(a). Lombard 221 Ill. App. 3d at 735, 587 N.E.2dat 489. The court stated that:

"[A]lthough one of the main purposes of section 13-214is to prevent liability in perpetuity against personsinvolved in the design and construction of buildings,such as architects, contractors and engineers[citation], it also governs a landowner in a breach ofcontract action who is being sued for an act oromission of one of the specified construction relatedactivities or for actual construction." Lombard, 221Ill. App. 3d at 735, 587 N.E.2d at 489.

The court thus held that the plaintiff's lawsuit was barred bysection 13-214(a).

As in Lombard, the suit against the District in the instantcase invokes the liability of the District for actions takenwithin the scope of its managerial and supervisory function. Pursuant to the terms of the contract, the engenderment⁽²⁾ of extrawork and changes are within the purview of the District'sengineer. For example, article seven of the contract providesthat the "contractor shall perform such extra work as theengineer may direct in his written order" provided that extrawork in excess of $5,000 requires that the board authorize theengineer to order the work. The contract further provides that"[a]ll extra work shall be performed at such time as the engineerdirects." When extra work is required for which the price is notfixed in the contract "the engineer shall fix such prices for thework as he shall consider just and equitable, and the contractorshall abide by such prices." Article 5 of the contract alsoprovides for deviations from the contract. It states that theDistrict "reserves the right to make any changes in thespecifications and plans which may be deemed necessary." Thecontract further provides that the engineer will determine whatprice is to be paid for extra work if no lump sum prices arespecified for the work in the contract. It also provides thatminor changes will be made by the contractor without additionalcharge. The engineer has the power to determine what constitutesa minor change.

The application of section 13-214(a) espoused in Lombardwhich we have adopted in the case at bar is fully consistent withour supreme court's holding in Skinner v. Hellmuth, Obata andKassabaum, Inc., 114 Ill. 2d 252, 500 N.E.2d 34 (1986). In thatcase our supreme court held that determining when section 13-214(a) applies based on whether a defendant participated in theenumerated construction related activities is constitutionallypermissible. Section 13-214(a) therefore does not run aground asimpermissible special legislation and does not run afoul of oursupreme court's holding in Skinner v. Anderson, 38 Ill. 2d 455,231 N.E.2d 588 (1967).

The Hellmuth court rejected the contention that section 13-214(a) was impermissible special legislation, noting that thestatute in Anderson excluded from its ambit, inter alia, owners"based solely on the status of the defendant as an owner, tenantor possessor." Hellmuth, 114 Ill. 2d at 260, 500 N.E.2d at 37. Section 13-214(a), however, "does not exclude persons based ontheir status." Hellmuth, 114 Ill. 2d at 261, 500 N.E.2d at 37. Rather, it "protects, on its face, anyone who engages in theenumerated activities." Hellmuth, 114 Ill. 2d at 261, 500 N.E.2dat 37.

In the facts of Hellmuth, the plaintiff sued the defendantarchitects and contractors for defects in a building and alsosued a bonding company which guaranteed the performance of one ofthe contractors. Thus, since the defendant architect andcontractors in Hellmuth had engaged in the enumerated activities,they were entitled to the protection of section 13-214(a). Thecourt also held that because the bonding company did not engagein any of the activities enumerated in section 13-214(a) it wasnot entitled to the protection of section 13-214(a). The courtstated that the claims against the bonding company were groundedsolely on the issuance of a performance bond which "can not bedeemed to be engaging in the 'design, planning, supervision,observation or management of construction or construction' andthus does not appear to fall within the statute's protection." Hellmuth, 114 Ill. 2d at 263, 500 N.E.2d at 39. In our case too,the protection of section 13-214(a) apples to those parties whoare engaged in construction. However, the defendant in our case,unlike the bonding company in Hellmuth, was actively engaged inthe construction process and through these activities engenderedthe claim for which it was sued.

Blinderman's attempts to distinguish Lombard from the caseat hand are unpersuasive. Blinderman argues that Lombard isdifferent in that the claim there was not based on anythingexpressed in the contract but on an implied covenant not to delaythe work. This is a distinction without a difference. There isno question that section 13-214(a) applies on its face to actionsarising under the contract as well as duties not specified in thecontract. In point of fact, section 13-214 provides for actionsin tort, contract or otherwise. 155 Harbor Drive, 209 Ill. App.3d at 642, 568 N.E.2d at 372 (section 13-214 "is applicable ***because the claim involves an action based upon a warranty, whichis a contract, against persons who *** were *** involved in ***construction"). Under section 13-214(a) the key determination iswhether the defendant engaged in the construction activitiesenumerated under section 13-214(a) whether or not thoseactivities involved express contractual duties or, as in Lombard,implied duties. In both Lombard and the instant case, theplaintiff's cause of action was predicated on activitiesperformed by the respective defendants which were encompassedwithin the enumerated construction activities of section 13-214(a). Moreover, in both cases, there is a direct nexus betweenthe activities of the defendant and the plaintiff's cause ofaction in that the cause is predicated on the constructionactivities in which the defendant was engaged as enumerated insection 13-214(a).

Since such a nexus is present in this case, our decision isconsistent with Blinderman's suggestion that section 13-214(a)has historically been applied only to cases where the plaintiff'sinjury was a direct result of the defendant's engaging in theenumerated activities of "design, planning, supervision,observation or management" of construction. See, e.g., O'Brienv. City of Chicago, 285 Ill. App. 3d 864, 870, 674 N.E.2d 927,933 (1996); 155 Harbor Drive Condominium Association v. HarborPoint Inc., 209 Ill. App. 3d 631, 568 N.E.2d 365 (1991); ElsaBenson, Inc. v. Kalman Floor Co., Inc., 191 Ill. App. 3d 1016,,548 N.E.2d 485 (1989). Blinderman's claimed injury was a directresult of such activity.

Blinderman's reliance on Armstrong v. Guigler, 174 Ill. 2d281, 673 N.E.2d 290 (1996), is misplaced. In Armstrong, thecourt stated that "it is the nature of the plaintiff's injuryrather than the nature of the facts from which the claim ariseswhich should determine what limitations period shall apply." 174Ill. 2d at 286, 673 N.E.2d at 293. Blinderman thus contends thatthe nature of the injury in this case is the failure to pay,which in and of itself does not involve defendant's participationin the enumerated activities. Blinderman urges that under ouranalysis the choice of which statute to apply is a function ofthe facts from which the claim arises, in contravention ofArmstrong which looks only to the nature of the injury for whichrelief is sought. We disagree.

Armstrong involved the question of whether to apply in agiven case the ten-year statute of limitations for actions on awritten contract pursuant to section 13-206 or the five-yearstatute of limitations for all civil actions not otherwiseprovided for pursuant to section 13-205 (735 ILCS 5/13-205(West1992). With respect to that choice, the characterization of theaction is central, while the factual origin of each action issecondary. It was this consideration which generated the court'scomment upon which Blinderman now relies when it states that thenature of the injury controls. In our case, the choice betweenthe statutes prescribing the different periods of limitationlooks to the nature of the defendant's activities rather than tothe form of the action. 735 ILCS 5/13-214(West 1992). In thiscontext, it is not our supreme court's decision in Armstrongwhich controls, but our Supreme Court's decision in Hellmuth,stating that section 13-214(a) "protects, on its face, anyone whoengages in the enumerated activities." (emphasis in original) Hellmuth, 114 Ill. 2d at 261, 500 N.E.2d at 37.

Finally Blinderman cites two other cases (SantucciConstruction Co. v. City of Danville, 128 Ill. App. 3d 954, 471N.E.2d 1000 (1984); Berg and Associates, Inc. v. Nelsen Steel &Wire Co., 221 Ill. App. 3d 526, 580 N.E.2d 1198 (1991)) wherecourts applied section 13-206 to a defendant's failure to pay acontractor for extra work under a construction contract. Thosecases are not helpful since in neither case is any issue raised,or any analysis provided, as to which statute shall apply, or asto what the applicable limitations period should be. The centralissue in both cases concerned the date from which the period oflimitations began to run, whether from when the contract iscompleted or from the time when the final payment on the contractwas due. No consideration at all was given with respect to anyquestion as to which period of limitations applied. Thus we mustbe guided by Lombard and Hellmuth in which the choice of whichstatute of limitations to apply was the focal issue, raised,discussed and decided.

Blinderman next argues that Lombard should not be appliedretroactively to the case at bar. In support, Blindermancontends that prior to Lombard no court had applied section 13-214(a) to a "failure to pay" case. Blinderman thus concludesthat Lombard was a case of first impression whose resolution wasnot clearly foreshadowed. We disagree.

"[W]hether a ruling will be applied prospectively willdepend upon whether the decision to be applied non retroactivelyestablishes a new rule of law *** by deciding an issue of firstimpression whose resolution was not clearly foreshadowed." Bogseth v. Emanuel, 166 Ill. 2d 507, 515, 655 N.E.2d 888, 892(1995).

As we noted above, in Hellmuth our supreme court construedsection 13-214(a) to apply to "anyone who engages in theenumerated activities." Hellmuth, 114 Ill. 2d at 261, 500 N.E.2dat 37 (emphasis in original). Given this holding, and the plainlanguage of section 13-214(a), we cannot say that Lombard wasdecided as a case of first impression whose holding was notclearly foreshadowed.

Moreover, the cases cited by Blinderman to show that section13-206 applies to "failure to pay" cases are inapposite. As wediscussed above, Santucci, 128 Ill. App. 3d 954, 471 N.E.2d 1000,and Berg, 143 Ill. 2d 635, 587 N.E.2d 1011, do not address theissue of when section 13-214(a) applies. As we further notedabove, while Hellmuth addresses the issue of the application ofsection 13-214(a), its holding is consistent with our applicationof section 13-214(a) to this case. Finally we note that Strom v.Lipschultz, 5 Ill. App. 3d 308, 282 N.E.2d 257 (1972), isirrelevant to this issue because section 13-214(a) had not yetbeen enacted when it was decided.

For the reasons discussed above, the judgment of the circuitcourt of Cook County is affirmed.

Affirmed.

CAHILL, P.J. and McBRIDE, J. concur.

1. Although the order is silent as to which count it applies,it is apparent that it only applies to count I.

2. A review of the specific disputes from which thislitigation results demonstrates that this lawsuit arises from theDistrict's engaging in the enumerated construction-relatedactivities, similar to the process of approving "shop drawings"which brought the defendant CHA within the ambit of section 13-214(a) in Lombard. A number of the disputes over extra workinvolve the District's rejection of materials, services, orsubcontractors. For example, the District rejected a manholecover, a copper water line, the subcontractor for the project'stelephone systems and the finish on the sidewalk. Several of thedisputes center around alleged errors in the District's designplans and specifications for the project. For example, there aredisputes as to whether the District's drawings show waterproofingof concrete walls; whether the cracks in the masonry resultedfrom improper design of the project; the failure of theDistrict's drawings to show faucets, piping, grouting, lockingdevices; and numerous alleged inconsistencies in the District'sdrawings. There are also disputes over the condition of thebuilding site. There are further disputes as to whether certaindelays in the project were due to the District's conduct. Thereare further disputes as to whether the District authorized extrawork and as to the District's setting the value of certain extrawork as is its responsibility under the construction contract.