Johnston v. Tri-City Blacktop, Inc.

577 N.E.2d 529, 217 Ill. App. 3d 388, 160 Ill. Dec. 399, 1991 Ill. App. LEXIS 1385
CourtAppellate Court of Illinois
DecidedAugust 14, 1991
Docket3-90-0756
StatusPublished
Cited by10 cases

This text of 577 N.E.2d 529 (Johnston v. Tri-City Blacktop, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnston v. Tri-City Blacktop, Inc., 577 N.E.2d 529, 217 Ill. App. 3d 388, 160 Ill. Dec. 399, 1991 Ill. App. LEXIS 1385 (Ill. Ct. App. 1991).

Opinion

JUSTICE McCUSKEY

delivered the opinion of the court:

The plaintiff, Roy M. Johnston, appeals the Rock Island circuit court’s orders granting summary judgment as to counts I, III and Y, and dismissing count IV of plaintiff’s complaint. We affirm.

Plaintiff owns the Kennedy Square Shopping Center in East Moline, which was built in 1978. Defendant Ken Curry Construction, Inc. (Curry), was the general contractor of the entire project, including the construction of the parking lot, driveways, and ramps. As the general contractor and pursuant to written contract, Curry was responsible for the acts and omissions of his employees, agents and the subcontractors involved in building the shopping center. Defendant Tri-City Blacktop, Inc. (Tri-City), supplied the materials and constructed the parking lot, pavement, driveways and ramps. Defendant Tim Downing was the architect of the project. Downing is not a party in this appeal.

Within a year following completion of the parking lot, certain areas began to crack and break. Plaintiff immediately notified defendants of this deterioration. In 1979, Tri-City repaired the deteriorated pavement pursuant to its written one-year guaranty. However, in 1980, Tri-City refused to undertake similar repairs without compensation. Tri-City contended the one-year guarantee had expired.

By 1983, the pavement continued to further deteriorate. Plaintiff then complained to Downing. Downing advised the plaintiff that because the parking lot had been in place so long, the removal and analysis of core samples would be of little value in determining the cause of the pavement’s deterioration. Based on this professional advice, as well as economic circumstances, plaintiff chose not to hire an engineer to remove and analyze core samples from the parking lot.

As time elapsed, continued deterioration occurred. In 1985, plaintiff contacted several local engineering firms to employ one of them to analyze and determine the cause of the deterioration. No local engineering firms could or would determine the cause of the deterioration. Plaintiff believed that since the firms he contacted were local, they did not want to criticize Tri-City. Plaintiff then hired a Peoria engineering firm, which indicated they could determine the cause of the deterioration by removing core samples from the pavement. In the spring of 1986, the Peoria engineering firm removed and analyzed core samples. They determined the materials originally used in the construction of the pavement were substandard. They concluded this caused the premature deterioration of the parking lot.

Plaintiff filed his complaint shortly thereafter. Count I contained allegations of breach of contract against Tri-City. Counts III, IV and V contained allegations of breach of contract, negligence and vicarious liability against Curry. Count II is of no consequence in this appeal.

The trial court dismissed count IV on the basis that plaintiff could not recover economic damages for Curry’s alleged negligence. In so ruling, the trial court applied the Moorman doctrine, which generally holds that economic damages are not recoverable in a negligence suit. We agree. Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443.

The trial court granted summary judgment in favor of defendants as to counts I, III and V on the basis the actions were barred by the two-year statute of limitations. We agree. Ill. Rev. Stat. 1983, ch. 110, par. 13 — 214(a).

Plaintiff raises several issues on appeal. Initially, plaintiff contends the trial court erred in dismissing count IV, wherein plaintiff sought to recover repair and replacement damages against Curry for his negligence in overseeing the construction of the pavement. These types of damages are generally regarded as economic damages. Economic damages are considered damages for inadequate value, costs of repair and replacement of the defective product, and consequential loss of profits. (Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d at 82, 435 N.E.2d at 449.) Plaintiff claims the trial court’s reliance on Moorman is misplaced because the present situation is distinguishable from Moorman. We disagree. Plaintiff claims Moorman involved a defective product, i.e., cracked storage tank, and this matter involves a service, i.e., construction of pavement.

The present case is analogous to the case of 2314 Lincoln Park West Condominium Association v. Mann, Gin, Ebel & Frazier, Ltd. (1990), 136 Ill. 2d 302, 555 N.E.2d 346. In 2314 Lincoln Park West Condominium Association, a condominium association sued the contractors and architect for defects in the design and construction of the building which caused plaintiff’s repair damages. The trial court properly dismissed the counts of the complaint pursuant to Moorman. The trial court then certified the following issue for interlocutory appeal:

“Should there be an exception to the rule set forth in Moorman which would permit Plaintiffs seeking to recover purely economic losses due to defeated expectations of a commercial bargain to recover from an architect or engineer in tort?” (136 Ill. 2d at 306.)

The supreme court held that a suit against architects seeking economic damages in tort is not an exception to the Moorman doctrine and will not lie in such circumstances. 2314 Lincoln Park West Condominium Association v. Mann, Gin, Ebel & Frazier, Ltd., 136 Ill. 2d at 313-14, 555 N.E.2d at 351.

Plaintiff next contends the trial court erred in granting summary judgment in favor of defendants as to counts I, III and V, based on the expiration of the applicable statute of limitations. We disagree. Summary judgment is an extraordinary measure which should only be granted when the movant’s right to judgment is clear and free from doubt as a matter of law. (Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.) The appropriate standard of review regarding summary judgment is to determine if the trial court properly decided there were no material issues of fact and that judgment was correct as a matter of law. All necessary parties in this case were deposed prior to the trial court granting summary judgment. We find the trial court correctly determined there were no issues involving material facts.

Based upon section 13 — 214(a) of the Code of Civil Procedure, the applicable two-year statute of limitations expired prior to plaintiff filing his complaint in this cause. (Ill. Rev. Stat. 1983, ch. 110, par. 13— 214(a).) There is no dispute that the applicable and appropriate statute of limitations was the two-year statute contained within section 13 — 214(a).

Section 13 — 214(a) provides:

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Bluebook (online)
577 N.E.2d 529, 217 Ill. App. 3d 388, 160 Ill. Dec. 399, 1991 Ill. App. LEXIS 1385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnston-v-tri-city-blacktop-inc-illappct-1991.