                                Illinois Official Reports

                                        Appellate Court



          15th Place Condominium Ass’n v. South Campus Development Team, LLC,
                                2014 IL App (1st) 122292



Appellate Court           15TH PLACE CONDOMINIUM ASSOCIATION, Plaintiff-
Caption                   Appellant, v. SOUTH CAMPUS DEVELOPMENT TEAM, LLC,
                          Defendant and Third-Party Plaintiff-Appellant (Fitzgerald Associates
                          Architects P.C., and Linn-Mathes, Inc., Third-Party Defendants-
                          Appellees).

District & No.            First District, Fourth Division
                          Docket Nos. 1-12-2292, 1-12-2301 cons.

Filed                     June 26, 2014

Held                       In an action by a condominium association against the developer of
(Note: This syllabus the project based on defects in the construction, the trial court properly
constitutes no part of the dismissed the developer’s third-party claims against the architect and
opinion of the court but the general contractor for breach of contract, breach of the implied
has been prepared by the warranty of good workmanship and implied indemnity on the ground
Reporter of Decisions that those claims were time-barred pursuant to the contract accrual
for the convenience of provision under which all causes of action were to accrue on the date
the reader.)               of substantial completion of the project, since the actions at issue were
                           filed beyond the expiration of the four-year limitations period
                           calculated from the dates of completion as determined according to
                           the contract; however, because the claim against the contractor for
                           express indemnity was based on the failure to indemnify, not for any
                           construction activities, the contract’s accrual provision did not apply,
                           and pursuant to the 10-year limitations period applicable to written
                           contracts, that part of the claim was timely, the dismissal thereof was
                           reversed and the cause was remanded for further proceedings.

Decision Under            Appeal from the Circuit Court of Cook County, No. 08-L-9839; the
Review                    Hon. Raymond W. Mitchell, Judge, presiding.

Judgment                  Affirmed in part and reversed in part; cause remanded.
     Counsel on               Michael J. Delrahim, Shelley Smith, and Glenn M. Kanter, all of
     Appeal                   Brown, Udell, Pomerantz & Delrahim, Ltd., of Chicago, for appellant
                              South Campus Development Team, LLC.

                              Thomas B. Orlando, Douglas J. Palandech, and Michael A. Kuiken,
                              all of Foran Glennon Palandech Ponzi & Rudloff PC, of Chicago, for
                              appellee Fitzgerald Associates Architects P.C.

                              Jeffrey H. Winick and Jeffrey B. Charkow, both of Harris|Winick
                              LLP, of Chicago, for appellee Linn-Mathes, Inc.



     Panel                    PRESIDING JUSTICE HOWSE delivered the judgment of the court,
                              with opinion.
                              Justices McBride and Palmer concurred in the judgment and opinion.



                                                OPINION

¶1         In this case, third-party plaintiff-appellant South Campus Development Team (SCDT)
       appeals the trial court’s order that dismissed with prejudice its third-party claims against
       third-party defendants Fitzgerald Associates Architects P.C. (Fitzgerald) and Linn-Mathes,
       Inc. (Linn-Mathes), on the grounds that the claims are time-barred. The third-party complaint
       contains claims of breach of contract, breach of the implied warranty of good workmanship,
       implied indemnity and express indemnity. The implied warranty of good workmanship and the
       express indemnity claims are only applicable to Linn-Mathes. In order to make a ruling in this
       appeal, we must determine three issues: (1) whether a cause of action accrual provision is
       enforceable to bar a third-party complaint against one of the contracting parties; (2) whether
       the trial court improperly resolved a disputed issue of fact when it ruled on a motion to dismiss;
       and (3) whether the 4-year limitations period applicable to construction-related activities (735
       ILCS 5/13-214(a) (West 2008)) or the 10-year statute of limitations period applicable to
       written contracts (735 ILCS 5/13-206 (West 2008)) applies to a general contractor’s written
       promise to indemnify an owner against claims of defects in construction.
¶2         For the reasons that follow, we affirm that part of the trial court’s order enforcing the
       accrual agreements and dismissing the breach of contract and implied indemnity claims as
       time-barred. We reverse the trial court’s judgment dismissing the express indemnity claim
       against Linn-Mathes and remand this case for further proceedings on that claim because we
       find the 10-year limitations period for written contracts is applicable.

¶3                                     I. BACKGROUND
¶4                             A. The Underlying Cause of Action
¶5       SCDT was the developer of two adjacent condominium towers located at 811 and 833
       West 15th Place in Chicago, Illinois (the project). SCDT contracted with Fitzgerald for

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       architectural services and with Linn-Mathes to be the general contractor for the project. Both
       contracts contain a cause of action accrual provision which states that all causes of action
       against Fitzgerald and Linn-Mathes are to accrue when substantial completion of the project is
       achieved. The terms of both contracts state how the date of substantial completion is
       determined.
¶6         The SCDT/Fitzgerald contract provides that Fitzgerald as the architect is to have the sole
       and exclusive responsibility to determine the date of substantial completion. Section 2.6.12 of
       the SCDT/Fitzgerald contract states:
                   “The Architect shall make site visits to determine the date or dates of Substantial
               Completion and the date of final completion, and may issue a final Certificate for
               Payment upon compliance with the requirements of the Contract Documents.”
¶7         Similarly, section 4.2.9 of the SCDT/Linn-Mathes contract contains the following
       provisions relating to dates of substantial completion:
                   “The Architect will conduct inspections to determine the date or dates of
               Substantial completion and the date of final completion, will receive and forward to the
               Owner, for the Owner’s review and records, written warranties and related documents
               require [sic] by the Contract and assembled by the Contractor, and will issue a final
               Certificate for Payment upon compliance with the requirements of the Contract
               Documents.”
       Further, section 9.8.4 of the SCDT/Linn-Mathes contract states: “When the Work or
       designated portion thereof is substantially complete, the Architect will prepare a Certificate of
       Substantial completion which shall establish the date of Substantial completion[ ] ***.” The
       SCDT/Linn-Mathes contract defines substantial completion in section 9.8.1 as follows:
                   “Substantial Completion is the stage in the progress of the Work when the Work or
               designated portion thereof is sufficiently complete in accordance with the Contract
               Documents so that the Owner can occupy or Utilize the Work for its intended use.”
           In April 2005, after a number of condominium units were sold, SCDT turned over control
       of the condominiums to its owners and the 15th Place Condominium Association (the
       Association). Following the turnover, the board of directors of the Association discovered
       numerous design and workmanship defects related to the balconies, masonry, and garage. The
       Association hired an engineering company that confirmed the presence of design and
       workmanship defects, and the Association filed a lawsuit against SCDT on September 4, 2008.
       The complaint included claims of breach of the implied warranty of fitness and habitability,
       breach of fiduciary duty, and negligence. The complaint alleged that SCDT knew or should
       have known that the defects existed; SCDT failed to have any of the defects fixed; and SCDT
       failed to disclose the defects to buyers.

¶8                                          B. Third-Party Action
¶9         On March 9, 2009, SCDT entered into a written tolling agreement with Fitzgerald and
       Linn-Mathes that tolled “any and all claims or causes of action” between the parties that “had
       not expired as of the date of this [tolling] Agreement.”
¶ 10       On June 21, 2011, SCDT filed a third-party complaint against Fitzgerald and Linn-Mathes.
       The third-party complaint alleged claims for breach of contract and, alternatively, implied
       indemnity against Fitzgerald, and claims for breach of contract, breach of implied warranty of

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       good workmanship, express indemnity and, alternatively, implied indemnity against
       Linn-Mathes.

¶ 11                                       C. Motions to Dismiss
¶ 12       On July 27, 2011, Fitzgerald filed a motion to dismiss the third-party complaint pursuant to
       section 2-619.1 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619.1 (West 2008)).
       In its motion, Fitzgerald argued that SCDT’s third-party complaint was time-barred or, in the
       alternative, SCDT’s implied indemnity claim had to be dismissed for failing to state a cause of
       action pursuant to section 2-615 of the Code. 735 ILCS 5/2-615 (West 2008). Fitzgerald
       argued in the motion that all causes of action SCDT had against it accrued on the date of
       substantial completion, which occurred on May 16, 2003 for the first tower and on October 11,
       2004 for the second tower. Applying those accrual dates to the four-year statute of limitations
       applicable to construction-related activity (735 ILCS 5/13-214(a) (West 2008)), Fitzgerald
       argued that SCDT’s claims against it were time-barred because Fitzgerald and SCDT did not
       enter into the tolling agreement until March 9, 2009, which was more than four years following
       the latest possible date on which substantial completion could have occurred, October 11,
       2004. Fitzgerald attached to its motion to dismiss an affidavit of Michael DeRouin, president
       of Fitzgerald and project manager of Fitzgerald at the time of the development project, stating
       that substantial completion had occurred on May 16, 2003 and October 11, 2004. The affidavit
       incorporated a letter and a certificate of substantial completion, which indicated the same dates
       of substantial completion, May 16, 2003 and October 11, 2004, respectively.
¶ 13       On December 5, 2011, Linn-Mathes also filed a motion to dismiss pursuant to section
       2-619(a)(5) of the Code (735 ILCS 5/2-619(a)(5) (West 2008)), or in the alternative, to dismiss
       pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2008)). Linn-Mathes also
       argued that under the provisions of the cause of action accrual agreement any claims SCDT
       had against it accrued on the date of substantial completion which occurred in May 2003 and
       October 2004. As such, Linn-Mathes argued: (1) the claims against it were barred by the
       four-year statute of limitations applicable to construction matters (735 ILCS 5/13-214(a)
       (West 2008)) and, as a result, all claims were time-barred when it entered into the cause of
       action tolling agreement in 2009; (2) SCDT failed to verify the third-party complaint; and (3)
       the claims alleged against Linn-Mathes failed to state a cause of action. Linn-Mathes also
       attached to its motion the affidavit of Michael DeRouin, which was identical to the affidavit
       attached to Fitzgerald’s motion to dismiss.
¶ 14       On December 27, 2011, SCDT filed its response. SCDT disputed the date of substantial
       completion and argued that the date of substantial completion occurred in 2006. SCDT
       attached the affidavit of Vincent Forgione to its response. In the affidavit, Forgione testifies
       that he “has not been able to locate certificates of substantial completion for Phase I and Phase
       II of the Project,” but that based on his “experience” and “SCDT’s schedule of contractor draw
       payments,” “[b]ecause substantial completion typically occurs after the general contractor has
       completed the majority of the work, based on the contractor draw schedule, substantial
       completion most likely occurred in early 2006.” SCDT also argued that it was unreasonable to
       interpret the contract to apply the contract accrual agreement to the implied indemnity claims
       because the limitation period applicable to the implied indemnity claims could expire before
       SCDT even knew it had a claim for implied indemnity. SCDT also argued that the express


                                                   -4-
       indemnity claim against Linn-Mathes was subject to the 10-year statute of limitations
       applicable to written contracts.
¶ 15       Fitzgerald filed a motion to strike the affidavit of Vincent Forgione, and Linn-Mathes
       joined in Fitzgerald’s motion. The motion argued that Forgione was not qualified to give the
       opinions in the affidavit, that his use of the term “substantial completion” was improper
       because his definition differed from the definition of “substantial completion” specifically
       contained within the contracts, and that his opinions within the affidavit were irrelevant and
       immaterial to the matters at issue.

¶ 16                                       D. Trial Court’s Ruling
¶ 17        On March 8, 2012, the trial court initially denied Linn-Mathes’ motion to dismiss, finding
       that the private contract limitations period that the parties had agreed upon in their respective
       contracts did not apply in this case because this was a third-party action. The court made a
       similar ruling with respect to Fitzgerald’s motion to dismiss and denied Fitzgerald’s motion to
       strike the affidavit of Vincent Forgione.
¶ 18        On April 12, 2012, Fitzgerald filed a motion seeking interlocutory appeal pursuant to
       Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010) regarding the trial court’s denial of the
       motions to dismiss. On April 24, 2012, at the hearing for Fitzgerald’s motion seeking
       interlocutory appeal, the trial court sua sponte decided to consider Fitzgerald’s motion as a
       motion to reconsider and provided SCDT an opportunity to file a supplemental brief.
¶ 19        On June 20, 2012, the trial court entered a written order reconsidering its March 8, 2012
       order and made a finding that the private statute of limitations accrual period in the parties’
       contracts applied to the third-party action. Therefore, because the court applied the four-year
       statute of limitations applicable to construction-related matters to the third-party claims, and
       determined that the date of substantial completion occurred on October 11, 2004 at the latest,
       thus triggering the running of the statute of limitations, SCDT’s third-party claims against
       Linn-Mathes and Fitzgerald had to be dismissed with prejudice because they were time-barred.
       Specifically, the court stated:
                “After reconsideration, the Court finds that Guzman is inapposite. Guzman addresses
                when the cause of action accrues for a claim of indemnity. The contract at issue in this
                case expressly addresses accrual. It states that causes of action between the parties
                accrue upon the substantial completion of the work. The contractual provision at issue
                contains no limiting language as to what causes of action might be encompassed. This
                language is sufficiently broad to include a claim for indemnity. In Guzman, the court
                was dealing with section 13-214 and interpreting how the discovery rule applied as to
                third party indemnity claims. It found that the discovery rule tolled the statute of
                limitation for indemnity action because the third party claim could not be determined
                before liability was established [on] the underlying claim. The contractual provision at
                issue here expressly eliminates the effect of the discovery rule. Instead of accruing at
                the point of discovery as most causes of action in Illinois do, the parties in this case
                pegged accrual of causes of action to the point of substantial completion.”
¶ 20        On July 9, 2012, the trial court modified its June 20, 2012 order to state that “there was no
       just reason for delaying the appeal of this order pursuant to Illinois Supreme Court Rule
       304(a),” and SCDT timely filed a notice of appeal.


                                                   -5-
¶ 21                                          II. ANALYSIS
¶ 22       In this appeal, we consider whether the trial court erred in dismissing SCDT’s third-party
       complaint against Linn-Mathes and Fitzgerald. Accordingly, we must determine: (1) whether
       the trial court erred when it determined the accrual agreements in the SCDT/Linn-Mathes and
       SCDT/Fitzgerald contracts are enforceable on third-party claims; (2) whether in ruling on the
       motion to dismiss the trial court improperly resolved a disputed issue of fact when it
       determined the dates of substantial completion; and (3) whether the 4-year limitations period
       applicable to construction-related activity or the 10-year limitations period applicable to
       written contracts applies to an express indemnity agreement contained within a construction
       contract.
¶ 23       Our review of a section 2-619 motion to dismiss (735 ILCS 5/2-619 (West 2008)) is
       de novo. Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 352 (2008).

¶ 24                                    A. Contract Accrual Agreements
¶ 25       We will first consider whether the contract accrual provisions apply to third-party claims
       between the contracting parties. SCDT’s contracts with both Linn-Mathes and Fitzgerald
       contain a cause of action accrual agreement that provides that all causes of action accrue on the
       date of substantial completion of the project. The accrual agreement appears in both the
       SCDT/Fitzgerald contract and the SCDT/Linn Mathes contract, with minor differences. SCDT
       argues that the accrual provisions do not apply to third-party claims and that its third-party
       claims against Linn-Mathes and Fitzgerald did not accrue until it was served with summons by
       the plaintiff in the underlying case. See Guzman v. C.R. Epperson Construction, Inc., 196 Ill.
       2d 391, 401 (2001). SCDT further argues it was unreasonable for the trial court to enforce the
       accrual agreement contained in the contracts because enforcing the accrual agreement clauses
       contained in the contracts at issue could result in a situation where the limitations period
       applicable to implied indemnity claims would expire before an actual case of implied
       indemnity had arisen. For the reasons that follow, we disagree with this argument and find that
       the trial court properly enforced the contract accrual agreement provisions at issue here.
¶ 26       The relevant language in the SCDT/Fitzgerald contract states:
                    “8.3 Causes of actions between the parties to this Agreement pertaining to acts or
                failures to act shall be deemed to have accrued and the applicable statutes of limitations
                shall commence to run not later than either the date of Substantial Completion for acts
                or failures to act occurring prior to Substantial Completion, or the date of issuance of
                the final Certificate for Payment for acts or failures to act occurring after Substantial
                Completion.”
       The relevant language in the SCDT/Linn-Mathes contract states:
                    “As to acts or failures to act occurring prior to the relevant date of substantial
                completion, any applicable statute of limitations shall commence to run and any
                alleged cause of action shall be deemed to have accrued in any and all events not later
                than such date of Substantial Completion.”
¶ 27       “It is well settled that a contractual limitation requiring suit to be brought within a specific
       period of time is valid if reasonable even though the period provided by general statute of
       limitations *** is longer.” Florsheim v. Travelers Indemnity Co. of Illinois, 75 Ill. App. 3d 298,

                                                    -6-
       303 (1979). A limitation period is enforceable even where it may bar a meritorious claim. See
       id. at 304. Further, “ ‘parties to a contract may agree upon a shortened contractual limitations
       period to replace a statute of limitations, so long as it is reasonable.’ ” Federal Insurance Co. v.
       Konstant Architecture Planning, Inc., 388 Ill. App. 3d 122, 126 (2009) (quoting Medrano v.
       Production Engineering Co., 332 Ill. App. 3d 562, 566 (2002)). Illinois public policy strongly
       favors the freedom to contract. Stevens v. Rooks Pitts & Poust, 289 Ill. App. 3d 991, 998
       (1997).
¶ 28        In Konstant Architecture Planning, Inc., the court upheld a contract clause regarding an
       accrual time for all statutes of limitations that is nearly identical to the one at issue here. In
       Konstant Architecture Planning, Inc., the accrual clause agreed upon by the parties stated:
                “ ‘Causes of action between the parties to this Agreement pertaining to acts or failures
                to act shall be deemed to have accrued and the applicable statute of limitations shall
                commence to run not later than either the date of Substantial Completion, or the date of
                issuance of the final Certificate for Payment for acts or failures to act occurring after
                Substantial Completion.’ ” Konstant Architecture Planning, Inc., 388 Ill. App. 3d at
                124.
       In construing these contract terms, the Konstant Architecture Planning, Inc. court noted that
       the court’s “primary objective is to give effect to the intent possessed by the parties at the time
       they entered the agreement.” Id. at 128. Accordingly, the Konstant Architecture Planning, Inc.
       court found the above accrual clause to be clear and unambiguous in that the parties contracted
       to create a date of accrual for all statutes of limitations that effectively eliminated the discovery
       rule. Id.
¶ 29        Here, like in Konstant Architecture Planning, Inc., we find that the terms of accrual
       agreement contained within both contracts were clear and unambiguous. Where there is no
       ambiguity in the contract terms, the parties’ intent must be drawn from the language of the
       written instrument itself. Quake Construction, Inc. v. American Airlines, Inc., 141 Ill. 2d 281,
       288 (1990). SCDT, Linn-Mathes and Fitzgerald, who were sophisticated parties entering into
       contracts involving more than $34 million in construction work, clearly intended to create an
       accrual date for all statutes of limitations in an effort to limit liability and eliminate the effect of
       the discovery rule. Had the parties intended to limit this clause in any way, they could have
       done so. However, as plainly written, the clause applies to any and all claims. Thus, the plain
       language of the clause in each contract makes it clear that the parties intended to limit
       potentially unlimited liability and eliminate the discovery rule by creating a fixed accrual
       limitations date for any and all causes of action, which began to run on the date of substantial
       completion.
¶ 30        SCDT argues that enforcing the accrual limitations clause in each of the contracts in this
       case will violate public policy as it had been found to do so in “cases dealing with automobile
       insurance policies that set the accrual date for uninsured or underinsured motorist claims at the
       time the accident occurred” and “cases involving employee benefit plans that set the accrual
       date at the date the claim for benefits was filed.” While courts will not enforce an agreement
       that is contrary to public policy, a contract should not be deemed illegal unless it is expressly
       contrary to the law or public policy. American Country Insurance Co. v. Cline, 309 Ill. App. 3d
       501, 506 (1999). The laws and public policy of the State of Illinois permit freedom of
       contracting between competent parties. Id. In addition, construction of a contact that renders
       the agreement enforceable rather than void is preferred. Id. at 507. As a result, the issue as to

                                                      -7-
       whether a contract is contrary to public policy depends on the facts and circumstances of the
       case. Id.
¶ 31       We do not find the public policy concerns recognized in uninsured/underinsured
       automobile policy claims and employee benefits claims have any bearing in this case where
       sophisticated parties contracted to and agreed to terms that trigger the running of all statutes of
       limitations on the date of substantial completion.1 The cases cited by SCDT all involve
       contracts between sophisticated and unsophisticated parties. Further, the terms of the contract
       at issue in each of the cases cited by SCDT were not negotiated and agreed upon by both
       parties, rather they were offered to the unsophisticated party in a take it or leave it manner.
       Here, as stated above, the contract terms regarding the accrual date for all claims were
       bargained for and agreed upon by sophisticated parties engaged in a multi-million dollar
       construction project. Accordingly, we find no good reason to disturb these contract provisions
       that were bargained for by sophisticated parties, and affirm the trial court’s finding enforcing
       the contractual accrual date in both the SCDT/Fitzgerald and SCDT/Linn-Mathes contracts.2

¶ 32                                B. Date of Substantial Completion
¶ 33        SCDT argues that the trial court erred in determining that substantial completion, the
       contract trigger date for the running of any statute of limitations, occurred on May 16, 2003
       and October 11, 2004. SCDT argues that it submitted a rebuttal affidavit in its response to the
       motion to dismiss and offered testimony that suggests that substantial completion occurred
       sometime in early 2006, thereby creating a genuine issue of material fact as to the date of
       substantial completion, i.e., the contract accrual date. If the cause of action accrued in 2006,
       SCDT had viable breach of contract claims against Linn-Mathes and Fitzgerald at the time the
       tolling agreement was signed in March 2009. As such, SCDT argues the trial court improperly
       decided a material question of fact when it determined the date of substantial completion of the
       two towers to be May 16, 2003 and October 11, 2004 respectively.
¶ 34        The purpose of a motion to dismiss under section 2-619 of the Code is to dispose of issues
       of law and easily proved issues of fact at the outset of a case. Zedella v. Gibson, 165 Ill. 2d 181,
       185 (1995); 735 ILCS 5/2-619(c) (West 2008). When ruling on a section 2-619 motion, the
       court admits as true all well-pleaded facts and the legal sufficiency of the complaint. King v.
       City of Chicago, 324 Ill. App. 3d 856, 859 (2001). If grounds for dismissal do not appear on the
       face of the pleading attacked, the motion shall be supported by affidavit, and the nonmoving
       party has the opportunity to file a counteraffidavit. 735 ILCS 5/2-619(c) (West 2008). The
       relevant question is whether there exists a genuine issue of material fact precluding dismissal,


           1
            Of note, none of the cases cited by SCDT state, or even suggest, that it is against public policy for
       two sophisticated parties to agree to contract terms that eliminate the effect of the discovery rule. In
       fact, as stated above, our courts have specifically found that this is permitted. See Konstant
       Architecture Planning, Inc., 388 Ill. App. 3d at 126.

           2
            We also find that SCDT’s reliance on Guzman in this argument misplaced, as the facts of Guzman
       dealt with the application of the default statute of limitations, which incorporated the discovery rule,
       and not a modified statute of limitations that sets a trigger date for all claims, like the one we are
       presented with here.

                                                       -8-
       or absent an issue of material fact, whether dismissal is proper as a matter of law. Fuller
       Family Holdings, LLC v. Northern Trust Co., 371 Ill. App. 3d 605, 613 (2007).
¶ 35       Here, Fitzgerald and Linn-Mathes attached to their motions to dismiss the affidavit of
       Michael DeRouin, the president of Fitzgerald and the project manager of Fitzgerald during the
       development project. In his affidavit, DeRouin testifies that he was “directly responsible for
       the architectural services provided” during the development project. Further, he testifies in his
       affidavit that the first tower was substantially completed on May 16, 2003 and the second
       tower was substantially completed on October 11, 2004. In support of these two dates,
       DeRouin attaches a letter that was written to SCDT on May 16, 2003 indicating that substantial
       completion had occurred with respect to the first tower, and a certificate of substantial
       completion that is signed by him and dated October 11, 2004 with respect to the second tower.
¶ 36       In SCDT’s response to the motions to dismiss, it attached a counteraffidavit of Vincent
       Forgione. Forgione is an employee of Frontier Management Corporation, which is an affiliate
       of SCDT. Forgione states in his affidavit that he “has not been able to locate certificates of
       substantial completion for Phase I and Phase II of the Project,” but that based on his
       “experience” and “SCDT’s schedule of contractor draw payments,” “[b]ecause substantial
       completion typically occurs after the general contractor has completed the majority of the
       work, based on the contractor draw schedule, substantial completion most likely occurred in
       early 2006.” Thus, Forgione uses the date of the final contractor draw payment, December
       2006, to predict when “the majority of the work” was completed to then estimate that
       substantial completion occurred in early 2006.
¶ 37       Here, all parties entered into contracts stating that the date of substantial completion would
       be determined by the architect (Fitzgerald) and would be reflected in a certificate of substantial
       completion. DeRouin’s affidavit states that Fitzgerald determined that the first tower was
       substantially completed on May 16, 2003, and the second tower was substantially completed
       on October 11, 2004. In support of these two dates, DeRouin also attached a letter that was
       written to SCDT on May 16, 2003 indicating that substantial completion had occurred with
       respect to the first tower, and a certificate of substantial completion that is signed by him and
       dated October 11, 2004 with respect to the second tower. As a result, Forgione’s affidavit,
       which estimates when substantial completion occurred based upon draw payments and when
       the final draw payment was made, does not contradict the testimony of DeRouin who testifies
       that substantial completion, pursuant to the contracts signed by the parties, was achieved on
       May 16, 2003 and October 11, 2004. Safeco Insurance Co. v. Jelen, 381 Ill. App. 3d 576, 583
       (2008) (where facts asserted in an affidavit are not refuted by counteraffidavit, the court will
       take those facts as true notwithstanding any contrary unsupported allegations in the plaintiff’s
       pleadings). Further, any evidence regarding when substantial completion may have occurred
       that does not comport with the terms that were contracted to by the parties is not material and
       cannot create a material issue of fact. Therefore, because we find that the Forgione affidavit did
       not contradict the evidence stated in the DeRouin affidavit and did not raise a genuine issue of
       material fact, it follows that there is no genuine issue of material fact and the trial court
       properly concluded the dates of substantial completion occurred on May 16, 2003 and October
       11, 2004. See Bloomingdale State Bank v. Woodland Sales Co., 186 Ill. App. 3d 227, 232
       (1989) (where there are no genuine issues of material fact, the court may grant a section 2-619
       motion to dismiss).



                                                   -9-
¶ 38                         C. Statute of Limitations on SCDT’s Claims
¶ 39       Since we have concluded that the trial court properly enforced the cause of action accrual
       agreement and also properly determined the date of substantial completion of the project to be
       May 16, 2003 and October 11, 2004, we can now determine whether the statute of limitations
       expired on SCDT’s claims against Linn-Mathes and Fitzgerald.

¶ 40                   a. Implied Indemnity Claims and Breach of Contract Claims
¶ 41       With respect to the implied indemnity claims, the applicable statute of limitations states
       that a party has two years from being served with process in the underlying action or two years
       from the date the party knew or reasonably should have known of an act or omission giving
       rise to the action for indemnity, whichever period expires later. 735 ILCS 5/13-204(b) (West
       2008). However, in this case, because of the existence of the cause of action accrual agreement,
       the two-year period began to run on the date of substantial completion. Because substantial
       completion occurred at the latest on October 11, 2004, the limitation period on SCDT’s claims
       for implied indemnity against the third-party defendants expired on October 11, 2006, well in
       advance of the March 9, 2009 tolling agreement, and are therefore time-barred. With respect to
       the breach of contract claims, which the parties agreed were governed by the four-year statute
       of limitations period applicable to construction-related activity, those claims are also
       time-barred as the statute of limitation on those claims expired on October 11, 2008, which
       again was prior to the March 9, 2009 tolling agreement. Accordingly, we affirm the judgment
       of the trial court dismissing the breach of contract and implied indemnity claims against the
       third-party defendants as being time-barred.

¶ 42                                    b. Express Indemnity Claim
¶ 43       SCDT argues that its express indemnity claim against Linn-Mathes was improperly
       dismissed by the trial court because it was governed by the 10-year statute limitations
       applicable to written contracts rather than the 4-year statute limitations applicable to
       construction matters. Section 13-206 of the Code states:
               “Except as provided in Section 2-725 of the ‘Uniform Commercial Code’, actions on
               bonds, promissory notes, bills of exchange, written leases, written contracts, or other
               evidences of indebtedness in writing and actions brought under the Illinois Wage
               Payment and Collection Act shall be commenced within 10 years next after the cause
               of action accrued ***.” 735 ILCS 5/13-206 (West 2008).
¶ 44       Linn-Mathes argues that the trial court properly determined that its express promise to
       indemnify SCDT for breaches related to the construction work is governed by the four-year
       statute of limitations applicable to construction-related activity, and that the trial court properly
       dismissed SCDT’s claim as time-barred under that statute. 735 ILCS 5/13-214(a) (West 2008).
       Section 13-214(a) of the Code states:
               “Actions based upon tort, contract or otherwise against any person for an act or
               omission of such person in the design, planning, supervision, observation or
               management of construction, or construction of an improvement to real property shall
               be commenced within 4 years from the time the person bringing an action, or his or her
               privity, knew or should reasonably have known of such act or omission.
               Notwithstanding any other provision of law, contract actions against a surety on a

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               payment or performance bond shall be commenced, if at all, within the same time
               limitation applicable to the bond principal.” 735 ILCS 5/13-214(a) (West 2008).
¶ 45       We agree with SCDT that the 10-year statute of limitations applies to its express indemnity
       claim. Our decision is based upon our supreme court’s ruling in Travelers Casualty & Surety
       Co. v. Bowman, 229 Ill. 2d 461 (2008), which found that a written agreement to indemnify was
       not one of the activities protected under the 4-year statute of limitations applicable to
       construction matters and was instead subject to the 10-year statute of limitations applicable to
       written contracts. See 735 ILCS 5/13-206 (West 2008).
¶ 46       In Travelers, Travelers Casualty & Surety Company (Travelers) filed suit against James A.
       Bowman and Barbara B. Bowman, the president and sole shareholder, respectively, of a metal
       working firm, Carlson, for breach of a written indemnity agreement relating to performance
       bonds. Travelers, 229 Ill. 2d at 464. The Bowmans became liable to Travelers under the
       indemnity agreement when Carlson failed to perform certain construction work. Id. Our
       supreme court found that the 4-year statute of limitations did not apply to Travelers’ claim and
       that the 10-year statute of limitations applied instead. Id. at 465. In coming to this conclusion,
       the court stated that “ ‘[t]he determination of the applicable statute of limitations is governed
       by the type of injury at issue, irrespective of the pleader’s designation of the nature of the
       action.’ ” Travelers, 229 Ill. 2d at 466 (quoting Armstrong v. Guigler, 174 Ill. 2d 281, 286
       (1996)). The court further stated that the “essence of any contractual action is found in the
       agreement’s promissory language” and “[a]s long as the gravamen of the complaint rests on
       the nonperformance of a contractual obligation, section 13-206 applies.” (Internal quotation
       marks omitted.) Id. at 467 (quoting Armstrong, 174 Ill. 2d at 291). In finding that the type of
       injury at issue in Travelers was contract related rather than construction related, the court
       stated:
                   “Here, the liability at issue emanates not from construction-related activity but,
               rather, from the breach of a contractual obligation to indemnify. ***
                   *** The Bowmans’ liability to Travelers does not, however, emanate from
               Carlson’s breach of the construction contracts. Rather, the Bowmans’ liability
               emanates from the refusal to perform their obligation of indemnification under the
               written indemnification agreement after claims were made against the underlying
               performance bonds.” Travelers, 229 Ill. 2d at 469-70.
       Further, in Armstrong, which was relied upon in Travelers, the court stated:
               “The essence of any contractual action is found in the agreement’s promissory
               language. Thus, it is only where liability emanates from a breach of a contractual
               obligation that the action may be fairly characterized as ‘an action on a written
               contract.’ The focus of the inquiry is on the nature of the liability and not on the nature
               of the relief sought.” Armstrong, 174 Ill. 2d at 291.
       In sum, the Travelers court concluded that “[b]ecause the claim at issue is based on a breach of
       express indemnification provisions in a written agreement, it is subject to the 10-year
       limitations period in section 13-206.” Travelers, 229 Ill. 2d at 476.
¶ 47       Here, like in Travelers, the express indemnity claim against Linn-Mathes arose from
       Linn-Mathes’ refusal to perform its obligation to indemnify SCDT pursuant to an express
       promise to indemnify SCDT contained in the contract between the parties. Because the nature
       of the claim was Linn-Mathes’ refusal to indemnify, any potential liability arises out of


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       Linn-Mathes’ failure to indemnify SCDT rather than any acts or omissions relating to
       construction-related activity.
¶ 48       Further, our supreme court has held that the four-year statute of limitations relating to
       construction matters protects only certain enumerated activities, specifically, “the design,
       planning, supervision, observation or management of construction.” (Internal quotation marks
       omitted.) People ex rel. Skinner v. Hellmuth, Obata & Kassabaum, Inc., 114 Ill. 2d 252, 261
       (1986); see 735 ILCS 5/13-214(a) (West 2008); see also Konstant Architecture Planning, Inc.,
       388 Ill. App. 3d at 125-26 (the four-year statute of limitations applicable in
       construction-related activities, “applies only if the defendant is being sued for its act or
       omission of one of the enumerated construction-related activities”). Indemnification is not one
       of those enumerated activities protected under the four-year statute of limitations. As such,
       section 13-214(a) does not protect Linn-Mathes’ actions or inactions as an indemnitor.
       Therefore, the 10-year statute of limitations applicable to written contracts applies to SCDT’s
       express indemnity claim against Linn-Mathes.
¶ 49       Linn-Mathes argues that the four-year statute of limitations governing construction activity
       should apply here because the express indemnity clause at issue is contained within the
       construction contract and is not its own separate contract. However, we see no requirement that
       express indemnity clauses must be contained in a separate written document in order to apply
       the 10-year statute of limitations for written contracts. To the contrary, as made clear in
       Travelers, “it is the nature of the plaintiff’s injury rather than the nature of the facts from which
       the claim arises which should determine which limitations period should apply.” (Internal
       quotation marks omitted.) Travelers, 229 Ill. 2d at 466 (quoting Armstrong, 174 Ill. 2d at
       286-87). The nature of SCDT’s claim against Linn-Mathes is indemnification, regardless of
       the fact that the indemnification clause is contained within the overall construction contract.
¶ 50       Further, while Linn-Mathes also argues that the holding in Guzman requires the four-year
       construction statute of limitations to be applied to the express indemnity claim at issue here, we
       cannot see how the holding in Guzman is applicable. Guzman only dealt with implied
       indemnity claims and not an express indemnity claim like the one at issue in this case. See
       Guzman, 196 Ill. 2d 391. As pointed out in Travelers, the Guzman court “was not presented
       with the issue of whether section 13-204 applied to an express indemnity agreement and it did
       not, therefore, examine that issue.” Travelers, 229 Ill. 2d at 476. Further, the Guzman court
       ultimately found that section 13-204 applied to the implied indemnity claims in that case, and
       our courts have held that “[s]ections 13-204(a) and 13-204(b) are not applicable when the basis
       for indemnity rests on a written indemnity agreement.” Travelers, 229 Ill. 2d at 473. Thus,
       because this appeal deals with an express indemnity claim, which was not addressed in
       Guzman and which is an entirely different animal than the implied indemnity claims that were
       addressed in Guzman, Guzman is inapplicable here.
¶ 51       Accordingly, we find that SCDT’s express indemnity claim against Linn-Mathes must be
       governed by the 10-year statute of limitations applicable to written contracts because the
       nature of that claim is for the failure to indemnify rather than any act or omission relating to
       construction activity. We therefore reverse the trial court’s finding that the four-year statute of
       limitations applies to SCDT’s express indemnity claim against Linn-Mathes and the dismissal
       of that claim. Since less than 10 years elapsed between the dates of substantial completion
       (May 2003 and October 2004) and the time the statute of limitations tolling agreement was
       signed in 2009 and the third-party complaint was filed in 2011, we reverse the dismissal of the

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       express indemnity claim as time-barred and remand this case to the trial court for further
       proceedings on SCDT’s express indemnity claim against Linn-Mathes.

¶ 52                                       III. CONCLUSION
¶ 53       For the above reasons, we affirm the trial court’s enforcement of the contractual accrual
       agreement and the dismissal of the implied indemnity and breach of contract claims against the
       third-party defendants because they are time-barred; we reverse the trial court’s dismissal of
       the express indemnity claim against Linn-Mathes and this case is remanded for further
       proceedings on that claim only.

¶ 54      Affirmed in part and reversed in part; cause remanded.




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