Johnston v. Tri-City Blacktop, Inc.

Citations: 577 N.E.2d 529; 217 Ill. App. 3d 388; 160 Ill. Dec. 399; 1991 Ill. App. LEXIS 1385Docket: 3-90-0756

Court: Appellate Court of Illinois; August 14, 1991; Illinois; State Appellate Court

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Roy M. Johnston, the plaintiff, appeals the Rock Island circuit court's decision that granted summary judgment on counts I, III, and V of his complaint against defendants Tri-City Blacktop, Inc. and Ken Curry Construction, Inc., while also dismissing count IV. The plaintiff owns the Kennedy Square Shopping Center, built in 1978, where the defendants were responsible for construction and materials. Shortly after completion, the parking lot began to deteriorate, leading to repairs by Tri-City under a one-year guarantee. However, when further deterioration occurred in 1980, Tri-City refused additional repairs, claiming the guarantee had expired.

Despite consulting architect Tim Downing, who advised against testing due to the age of the pavement, the plaintiff later sought engineering analysis. A Peoria engineering firm, in 1986, determined that substandard materials caused the deterioration. Following this, the plaintiff filed his complaint, alleging breach of contract and negligence against the defendants. Specifically, the trial court dismissed count IV, citing the Moorman doctrine, which precludes recovery of economic damages in negligence claims. Additionally, the court granted summary judgment on counts I, III, and V based on the two-year statute of limitations, which the appellate court affirmed.

Plaintiff appeals several issues, primarily contesting the trial court's dismissal of count IV, which sought repair and replacement damages from Curry for negligence in pavement construction. The plaintiff argues these damages, classified as economic damages, differ from the defective product scenario in *Moorman Manufacturing Co. v. National Tank Co.*, asserting that their case pertains to services rather than products. However, the court finds the present case aligns with *2314 Lincoln Park West Condominium Association v. Mann, Gin, Ebel and Frazier, Ltd.*, where the Supreme Court reaffirmed that claims for economic damages against architects are not exceptions to the *Moorman* doctrine.

Additionally, the plaintiff challenges the trial court's summary judgment favoring defendants on counts I, III, and V, citing the expiration of the two-year statute of limitations under section 13-214(a) of the Code of Civil Procedure. The court emphasizes that summary judgment is appropriate when there are no material fact issues and confirms that all parties were deposed before the judgment. The statute of limitations expired before the plaintiff filed the complaint, and while the statute was later extended to four years, it cannot be applied retroactively to revive a time-barred action unless stated otherwise by the legislature.

Plaintiff argues that the statute of limitations for his claim began in April 1986, when he learned from an engineer that the pavement materials were substandard. However, the trial court ruled that the statute began in April 1983, when the plaintiff should have recognized the unusual deterioration of the pavement. The plaintiff was aware that the expected lifespan of the blacktop was ten to fifteen years but experienced ongoing issues, starting with significant detachment of the blacktop in 1979, prompting him to contact Tri-City for repairs. The plaintiff suspected construction errors by Tri-City and, after consulting various contractors, realized there were serious problems with the asphalt. The court noted that lack of specific knowledge about the deterioration's cause is not critical. Citing Knox College v. Celotex Corp., the court stated that a person must eventually possess enough information to reasonably inquire about potential actionable conduct. The trial judge's decision regarding the statute of limitations for counts I, III, and V was affirmed, confirming the circuit court's ruling in Rock Island County.