Auster v. Keck
| Decision Date | 28 May 1976 |
| Docket Number | No. 47935,47935 |
| Citation | 63 Ill.2d 485,349 N.E.2d 20 |
| Parties | Michael AUSTER, Jr., et al., Appellees, v. George Fred KECK et al., Appellants. |
| Court | Illinois Supreme Court |
Snyder, Clarke, Dalziel, Holmquist & Johnson, Waukegan (Julian Johnson, Waukegan, of counsel), for appellants.
Max & Herman Chill, P.C., Chicago (Max Chill, Herman Chill, and Donald B. Garvey, Chicago, counsel), for appellees.
Philip F. Purcell, James N. Nowacki, and Martha E. Gibbs, Chicago (Isham, Lincoln & Beale, Chicago, of counsel), for amicus curiae Illinois Council of the American Institute of Architects.
In this case we are asked to decide when a cause of action for architectural malpractice accrues under section 15 of the Limitations Act (Ill.Rev.Stat.1973, ch. 83, par. 16), which provides:
'(A)ctions * * * to recover damages for an injury done to property, real or personal, * * * and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.'
In 1969 the plaintiffs, Michael Auster, Jr., and Anita Auster, bought a house in Highland Park from Edward K. and June Isaacson. The house had been designed in 1960 by the defendants, George Fred Keck and William Keck. On May 30, 1972, the plaintiffs filed their complaint, which alleged their purchase of the house and that portions of the ceilings thereafter collapsed; that the cause of the collapse was faulty design in 'that the insulation material which was in the ceiling was applied directly to the steel beams without an intervening vapor barrier; that the difference in temperature of the outside and inside caused moisture condensation to form, which caused the insulation material to break away from the roof and to fall.'
The complaint was in two counts. Both counts alleged the purchase of the house and the collapse of the ceilings. Count 1 did not mention the Kecks--it named only the Isaacsons as defendants. It alleged that they knew of the latent defect, but maliciously failed to inform the plaintiffs of it, and sought damages in the sum of $50,000. Amended count II of the complaint, which is all that is now before us, did not mention the Isaacsons and did not repeat the allegations of count I concerning their knowledge of the defect. It named only the Kecks as defendants. It alleged that the design was defective and that the defendants had created the design and approved the construction pursuant to that design. It also alleged a lack of knowledge on the part of the plaintiffs of the latent defects, and sought damages of $50,000.
The Kecks moved to dismiss amended count II on the ground that it appeared from the face of the complaint that no damage accrued until more than five years after the design and construction of the house and that the action against them was therefore barred by the statute of limitations. The circuit court of Lake County allowed the motion, and found that there was no just reason for delaying enforcement or appeal. The plaintiffs appealed, and the Appellate Court, Second District, reversed. (31 Ill.App.3d 61, 333 N.E.2d 65.) We allowed the Kecks' petition for leave to appeal.
In holding that the cause of action did not accrue until it had been discovered, the appellate court relied on several recent decisions of this court. (See Rozny v. Marnul (1969), 43 Ill.2d 54, 250 N.E.2d 656; Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, 261 N.E.2d 305; Lipsey v. Michael...
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Chicago Park Dist. v. Kenroy, Inc.
...appellate court also found that the limitation period had not been tolled by application of the "discovery rule" (see Auster v. Keck (1976), 63 Ill.2d 485, 349 N.E.2d 20; Tom Olesker's Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill.2d 129, 334 N.E.2d 160; Lipsey v.......
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Moorman Mfg. Co. v. National Tank Co.
...sometime after July 27, 1973 (i. e., within 5 years of the filing of the instant complaint on July 28, 1978). See Auster v. Keck (1976), 63 Ill.2d 485, 349 N.E.2d 20; Chicago Park District v. Kenroy, Inc. (1978), 58 Ill.App.3d 879, 15 Ill.Dec. 887, 374 N.E.2d 670, modified (1980), 78 Ill.2d......
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Nolan v. Johns-Manville Asbestos & Magnesia Materials Co.
...specific facts are not pleaded as to why discovery of the cause of action could not have occurred sooner, citing Auster v. Keck (1976), 63 Ill.2d 485, 349 N.E.2d 20; Kielminski v. St. Anthony's Hosp. (1979), 68 Ill.App.3d 407, 25 Ill.Dec. 55, 386 N.E.2d 326; and Chicago Park Dist. v. Kenroy......
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Chicago Park Dist. v. Kenroy, Inc.
...the facts necessary to explain why the "discovery" of its cause of action did not occur sooner. The recent case of Auster v. Keck (1976), 63 Ill.2d 485, 349 N.E.2d 20 suggests this requirement. In Auster, the court examined count II of a complaint filed in 1972 by plaintiffs-homeowners agai......