Society of Mount Carmel v. Fox

Decision Date24 September 1975
Docket NumberNo. 73--417,73--417
Citation31 Ill.App.3d 1060,335 N.E.2d 588
PartiesSOCIETY OF MOUNT CARMEL, an Illinois Corporation, et al., Plaintiffs-Appellants, v. John F. FOX, Jr., d/b/a Fox and Fox, and Henry Bros. Co., an Illinois Corporation, Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Charles F. Scott, Julius Abler, Waukegan, for plaintiffs-appellants.

Snyder, Clarke, Dalziel, Holmquist & Johnson, Julian Johnson, Waukegan, for defendant-appellee.

THOMAS J. MORAN, Justice:

Plaintiff, Society of Mount Carmel, appeals the trial court's order granting defendant's motion for summary judgment.

In 1962, defendant, an architect, designed buildings and coordinated payments to contractors in the construction of the Mt. Carmel High School complex in Mundelein. The work was completed in 1963. Sometime thereafter, plaintiff noticed cracks, bulging, movement, and separation of the plaster, masonry, and walls throughout the school. Defendant examined the building and, on several occasions, assured the plaintiff that the problems were merely 'maintenance problems'. At considerable expense to plaintiffs, certain repairs were made. The cracks reappeared, however, and plaintiff was once again assured by defendant that such cracking was normal and the result of 'maintenance problems.' In March, 1969, the Lake County Contractors Association issued a report, based on an inspection of the school complex. The report concluded that the various difficulties with the structure were the result of faulty design. The specific cause was identified as the absence of expansion joints, necessary for buildings the size of the structures in question, and, according to the report, without the needed expansion joints the problems would persist due to the expansion and contraction of the buildings. This report allegedly was plaintiff's first knowledge that the cracking was the result of failure to include expansion joints rather than being merely a maintenance problem as defendant had indicated.

In February, 1970, plaintiff filed a complaint claiming that the defendant was negligent in failing to provide expansion joints. In answering, defendant alleged an affirmative defense contending that plaintiff had not, in accordance with Ill.Rev.Stat.1969, ch. 83, § 16, commenced the action within five years after the cause of action accrued. Thereafter, plaintiff amended the complaint stating that the time of discovery of defendant's negligence was March, 1969, when the Lake County Contractors Association issued its report. Upon defendant's motion, portions of the amended complaint were stricken, the trial court ruling that plaintiff's allegations as to time of discovery were irrelevant. In its supplemental reply to defendant's affirmative defense, plaintiff also claimed that defendant fraudulently concealed his negligence in failing to provide expansion joints. Defendant moved to strike the supplemental reply and this was granted. Thereafter, defendant moved for summary judgment asserting that the statute of limitations had run since the complaint was filed more than five years after construction was completed on the high school complex. This motion was allowed.

We have determined that in reaching our decision only one of the issues raised by plaintiff need be addressed, I.e., whether the statute of limitations began to run from 1963 when the building was completed (as defendant contends) or whether it began running from the time plaintiff discovered or should have discovered the defects complained of.

The question presented is a controversial one which has in the past resulted in contrary judgments by the courts. In recent years, however, the supreme court has greatly expanded the application of the discovery rule in determining when the statute of limitations begins to run, and has developed criteria for making this judgment. In Rozny v. Marnul, 43 Ill.2d 54, 68--73, 250 N.E.2d 656 (1969), an action against a surveyor who had made an inaccurate survey, the court held that a property owner's cause of action 'accrued' when a plaintiff knew or should have known of the error. The discovery rule was also applied to a products liability case in which plaintiff sued a manufacturer alleging injuries from an 'unreasonably...

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18 cases
  • M & S Indus. Co. v. Allahverdi
    • United States
    • United States Appellate Court of Illinois
    • August 9, 2018
    ...person from investigating further." Id. at 154, 92 Ill.Dec. 833, 485 N.E.2d 1076.¶ 48 Lastly, in Society of Mount Carmel v. Fox , 31 Ill. App. 3d 1060, 1060-61, 335 N.E.2d 588 (1975), the plaintiffs sued their architect for the faulty design of a school. The plaintiffs noticed cracks and de......
  • Moorman Mfg. Co. v. National Tank Co.
    • United States
    • United States Appellate Court of Illinois
    • December 30, 1980
    ...Division of Spartan Industries, Inc. v. Esko Roofing Co. (1976), 38 Ill.App.3d 905, 350 N.E.2d 10; Society of Mount Carmel v. Fox (1975), 31 Ill.App.3d 1060, 335 N.E.2d 588. We note that the balancing approach suggested in Rozny does not necessarily The defendants also argue that even if we......
  • Henderson Square Condo. Ass'n v. Lab Townhomes, LLC
    • United States
    • Illinois Supreme Court
    • November 4, 2015
    ...v. Skidmore, Owings & Merrill, 262 Ill.App.3d 899, 906, 200 Ill.Dec. 225, 635 N.E.2d 564 (1994) (same); Society of Mount Carmel v. Fox, 31 Ill.App.3d 1060, 335 N.E.2d 588 (1975) (same). In Graham, this court emphasized that under the discovery rule, the statute of limitations in constructio......
  • Nolan v. Johns-Manville Asbestos & Magnesia Materials Co.
    • United States
    • United States Appellate Court of Illinois
    • July 24, 1979
    ... ... Michael Reese Hosp. (1970), 46 Ill.2d 32, 262 N.E.2d 450; Society of Mt. Carmel v. Fox (1975), 31 Ill.App.3d 1060, 335 N.E.2d 588; Wigginton v. Reichold Chemicals, ... ...
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