Champaign County Nursing Home, by Bd. of Sup'rs of Champaign County v. Petry Roofing, Inc.

• Decision Date: 08 August 1983
• Docket Number: No. 4-82-0756,4-82-0756
• Citation: 72 Ill.Dec. 594,117 Ill.App.3d 76,452 N.E.2d 847
• Parties: , 72 Ill.Dec. 594 The CHAMPAIGN COUNTY NURSING HOME, by the BOARD OF SUPERVISORS OF CHAMPAIGN COUNTY, Illinois, Plaintiff-Appellant, v. PETRY ROOFING, INC., a Corporation; English Brothers Company General Contractors; Isaksen & Matzdorff; Victor E. Isaksen and R.H. Matzdorff, d/b/a Isaksen & Matzdorff, Architects, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 847

452 N.E.2d 847

117 Ill.App.3d 76, 72 Ill.Dec. 594

The CHAMPAIGN COUNTY NURSING HOME, by the BOARD OF SUPERVISORS OF CHAMPAIGN COUNTY, Illinois Plaintiff-Appellant, v. PETRY ROOFING, INC., a Corporation; English Brothers Company General Contractors; Isaksen & Matzdorff; Victor E. Isaksen and R.H. Matzdorff, d/b/a Isaksen & Matzdorff Architects, Defendants-Appellees.

No. 4-82-0756.

Appellate Court of Illinois Fourth District.

Aug. 8, 1983.

[72 Ill.Dec. 595] Robert P. Moore, Robert A. Hoffman, Moore & Associates, Champaign, for plaintiff-appellant

Dobbins, Fraker, Tenant, Joy & Perlstein, Champaign, for Petry Roofing, Inc.; D. Cameron Dobbins, Champaign, of counsel.

Phebus, Tummelson, Bryan & Knox, Urbana, for English Bros. Co.; Hurshal C. Tummelson, Jeffrey W. Tock, Urbana, of counsel.

Carl M. Webber, Jerome J. Bromiel, Webber & Thies, P.C., Urbana, for Isaksen & Matzdorff.

MILLS, Justice:

A limitations period is shortened, but by virtue of a savings clause, the relevant statute is applicable only to acts or omissions occurring after its effective date.

Later, the savings clause is repealed.

May the holder of a claim which--but for the savings clause--is barred, successfully maintain an action on the claim which is filed some months after repeal of the savings clause?

No.

We affirm.

FACTS

Between May 1971 and September 1973, defendants, pursuant to contracts with plaintiff, designed and constructed an addition to the Champaign County Nursing Home. On or before April 1, 1978, employees of plaintiff discovered damage to the addition's roof, gutters and soffit. In July 1979, plaintiff became aware that the damage may have resulted from defects in the design and construction of the addition. On April 16, 1982, plaintiff filed suit against defendants, alleging that the damage to the addition was attributable to various acts of misfeasance and malfeasance on their part in design, construction, and supervision of construction. The circuit court dismissed the suit on December 29, 1982, holding that the action was barred by the applicable statute of limitations.

At the time that the damage was discovered, the relevant statutes of limitations prescribed a 5-year limitation period for actions premised on negligent damage to property and a 10-year limitation period for actions premised on written contracts. (Ill.Rev.Stat.1977, ch. 83, pars. 16, 17.) On November 29, 1979, a special statute of limitations relative to actions based on tort or contract and arising out of the negligent design, planning, construction, etc., of buildings became effective. This legislation prescribed a limitation period of 2 years from discovery of the relevant act or omission with a maximum limitation period of 12 years from the date of the act or omission. (Ill.Rev.Stat., 1980 Supp., ch. 83, par. 22.3(a), (b).) The statute further provided: "The limitations of this Section shall apply to all acts or omissions which occur on or after the effective date of this amendatory Act of 1979." (Ill.Rev.Stat., 1980 Supp., ch. 83, par. 22.3(e).) On September 16, 1981, the statute was re-enacted without the language just quoted. Ill.Rev.Stat.1981, ch. 83, par. 22.3.

The Code of Civil Procedure, as originally enacted, contained the language of the initial version of former section 21.3 of the Limitations Act (Ill.Rev.Stat., 1980 Supp., ch. 83, par. 22.3) and, thus, the savings clause contained in subsection (e) of former section 21.3 again became effective on July 1, 1982. (See Ill.Rev.Stat.1981, ch. 110, par. 13-214(e).) On July 13, 1982, however, section 13-214 of the Code was re-enacted without the savings clause. Ill.Rev.Stat., 1982 Supp., ch. 110, par. 13-214.

OPINION

The question of whether a statute operates retroactively, or has prospective effect only, is primarily one of legislative intent. (Moore v. Jackson Park Hospital (1983), 95 Ill.2d 223, 69 Ill.Dec. 191, 447 N.E.2d 408.) During the debate in the House of Representatives on the bill which re-enacted section 21.3 of the Limitations Act (Ill.Rev.Stat.1981, ch. 83, par. 22.3) without the savings clause, Representative Mautino, the bill's House sponsor, stated:

"Last year in the 81st General Assembly we passed Public Act 81-1169 [section 21.3] which set the statute limitation on construction and repairs on real estate. We put that statute of limitations, it's to be twelve years after the building and within a two year period for the filing fees [sic ]. What this legislation does is allow those buildings built before 1979 to come under the same provisions that we enacted under Public Act 81-1169, * * *.

* * *

* * *

The legislation [section 21.3] was passed by this General Assembly addressing those new buildings that were put up from 1979. I think the same provision should be enacted under the same statute of repose for those that were built before. I think it's only fair since we know that those buildings are in good shape. They've been standing for more than the 12 years, and it would only affect those that are not under the current law. * * * It's fair and it basically eliminates all those designs and records, etcetera, that some of the architects in buildings and engineers will have to maintain for a lifetime if, in fact, we don't do this." (Transcription of House Proceedings, May 18, 1981, at 244, 246.)

On the basis of these statements, it is apparent that the legislative intent was that the repeal of the savings clause act as an immediate bar to actions premised on defects in the design and construction of buildings constructed before 1979 which at that time would have been barred but for the savings clause. That the legislature intended the repeal of the savings clause to have immediate effect is also borne out by the deletion of the clause almost immediately after its erroneous inclusion in the Code of Civil Procedure.

Even where there is a clear legislative intent that a statute be given retroactive effect, however, the enactment will not be so applied when to do so would lead to unreasonable or unjust results. (Hathaway v. Merchants' Loan & Trust Co. (1905), 218 Ill. 580, 75 N.E. 1060.) Whether retroactive application of legislation is permissible is not dependent on such outmoded distinctions as whether vested or nonvested rights are affected, or whether a statute affects rights or merely affects remedies. Rather, such cases must be decided on the basis of whether basic concepts of justice, fairness and equity militate for or against the retroactive application of the statute to a particular class of persons. Generally, retroactive statutes which courts have declared invalid have been deemed "oppressive, impolitic, unjust, arbitrary, do substantial injury, are unreasonable, wanting in equity, [and] inconsistent with 'the prevailing views of justice.' " (Smith, Retroactive Laws and Vested Rights, 5 Tex.L.Rev. 231, 247-48 (1927).) In applying fundamental concepts of justice, fairness and equity to the issue of whether a particular statute of limitations should be retroactively applied to a given class of individuals, the most important inquiry...