                           No. 2--05--0534                 filed: 1/24/06
______________________________________________________________________
________

                                             IN THE

                            APPELLATE COURT OF ILLINOIS

                           SECOND DISTRICT
______________________________________________________________________
________

PRATE INSTALLATIONS, INC.,         ) Appeal from the Circuit Court
                                   ) of Lake County.
     Plaintiff-Appellant,          )
                                   )
v.                                 ) No. 05--AR--352
                                   )
RICHARD THOMAS and REBECCA         )
THOMAS,                            ) Honorable
                                   ) Mary S. Schostok,
     Defendants-Appellees.         ) Judge, Presiding.
_________________________________________________________________________
____

       JUSTICE BOWMAN delivered the opinion of the court:

       Plaintiff, general contractor Prate Installations, Inc., brought suit against defendants,

homeowners Richard and Rebecca Thomas. Plaintiff alleged that defendants had failed to

pay for the removal and repair of their roof. Defendants moved to dismiss the case under

section 2--619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2--619(a)(5) (West

2004)), arguing that the action was time-barred. The trial court granted the motion and

dismissed the case. We reverse and remand.

                                     I. BACKGROUND

       Plaintiff filed a two-count complaint on March 1, 2005. The first count, entitled

"breach of contract," alleged the following. Plaintiff is a corporation engaged in the roofing

business. On October 19, 2000, the parties entered a written agreement whereby plaintiff
No. 2--05--0534

was to remove the existing roof on defendants' residence, supply and install a new shingle

roof, install an ice shield and new power fan, provide for a Dumpster, and remove and

replace ridge vents. In exchange, defendants promised to pay $8,660. The agreement

provided that any past-due balances would be subject to a 2.5% monthly service charge.

Plaintiff completed its obligations by October 31, 2000, on which date it first sent

defendants an invoice. Although plaintiff subsequently sent defendants numerous copies of

the invoice, defendants never paid any of the money due. Plaintiff sought damages

consisting of the contract price, service charges, and attorney fees and costs.

       Count II, entitled "account stated," alleged that an "account was stated in writing

between" the parties and showed a balance of $8,660 due to plaintiff. It further alleged that

despite plaintiff's numerous demands for payment, defendants had unreasonably and

vexatiously refused to pay. In count II, plaintiff sought damages of $8,660 plus costs and

prejudgment interest.

       Defendants moved to dismiss the case under section 2--619(a)(5) of the Code.

They argued that the cause was time-barred because plaintiff had failed to file suit within

the four-year limitations period governing the construction of improvements to real property (735

ILCS 5/13--214(a) (West 2004)). Plaintiff's response to defendants' motion to dismiss argued that

the 10-year limitations period for written contracts applied (735 ILCS 5/13--206 (West 2004)).

Specifically, plaintiff argued that section 13--214(a) did not apply because defendants were not

engaged in any of the construction-related activities listed in that section. The trial court granted

defendants' motion to dismiss, and this timely appeal followed.

                                          II. ANALYSIS




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No. 2--05--0534

         We first address the applicable standard of review. The trial court dismissed the case under

section 2--619(a)(5) of the Code, which allows for the involuntary dismissal of an action that "was

not commenced within the time limited by law." 735 ILCS 5/2--619(a)(5) (West 2004). Such a

dismissal is subject to de novo review. Haber v. Reifsteck, 359 Ill. App. 3d 867, 868 (2005).

         At issue in this case is which of two limitations periods governs plaintiff's action. Section

13--206 provides a 10-year limitations period for "actions on bonds, promissory notes, bills of

exchange, written leases, written contracts, or other evidences of indebtedness in writing." 735

ILCS 5/13--206 (West 2004). Section 13--214(a) provides a four-year limitations period for

"[a]ctions 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." 735 ILCS 5/13--214(a) (West 2004). This

limitations period is measured "from the time the person bringing an action, or his or her privity,

knew or should reasonably have known of such act or omission." 735 ILCS 5/13--214(a) (West

2004).

         On appeal, plaintiff argues that section 13--214(a) is not applicable to this case

because (1) defendants did not have any duties enumerated in the statute in connection

with the roof's removal and replacement, and, alternatively (2) plaintiff's activities

constituted maintenance rather than an improvement to real property. We agree with

plaintiff's first argument.

         One of the sponsors of the bill leading to section 13--214(a) stated that its purpose

was " 'to provide some relief for professionals, who are trying to exercise their sound

judgment in the design and construction of improvements to real property.' " Lombard Co. v.

Chicago Housing Authority, 221 Ill. App. 3d 730, 734 (1991), quoting 80th Ill. Gen. Assem.,


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No. 2--05--0534

House Proceedings, May 25, 1979, at 32 (statements of Representative Dunn). However,

our supreme court held that section 13--214(a) does not exclude persons based upon their

status but, rather, protects anyone who engages in the enumerated activities. People ex

rel. Skinner v. Hellmuth, Obata & Kassabaum, Inc., 114 Ill. 2d 252, 261 (1986). Thus, in

order for a landowner to be protected by the statute, the "landowner [must] actually

engag[e] in the professional planning, supervision or management of a construction project

or the construction of an improvement to the property." Lombard Co., 221 Ill. App. 3d at

735. The statute also protects a landowner who is being sued for failing to engage in an

activity enumerated by the statute. Lombard Co., 221 Ill. App. 3d at 735; see also DeMarco

v. Ecklund, 341 Ill. App. 3d 225, 228 (2003) ("plain meaning of section 13--214 includes a

person's 'act or omission' in the construction of an improvement to real property").

       Defendants argue that "[f]or [section] 13-214 to come into play, the action must be

based upon 'contract' and, [sic] the construction must be an 'enumerated activity' as set out

in the statute." According to defendants, the "facts set out in Plaintiff's complaint concede

that Prate performed a construction of an improvement to real property by replacement of

the damaged roof." (Emphasis added.)

       As defendants recognize, plaintiff, rather than defendants, arguably engaged in an

activity protected by the statute. Defendants are being sued for their alleged failure to pay

a bill rather than for their act or omission in the construction of an improvement to property.

Thus, defendants are not protected by section 13--214(a). See Blinderman Construction

Co. v. Metropolitan Water Reclamation District of Greater Chicago, 325 Ill. App. 3d 362,

370 (2001) ("[u]nder section 13--214(a) the key determination is whether the defendant

engaged in the construction activities enumerated under section 13--214(a)").



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No. 2--05--0534

       Defendants cite DeMarco, in which this court stated, "the court must look to the

activity involved and determine whether it is a construction-related activity falling within

section 13--214." DeMarco, 341 Ill. App. 3d at 228. However, we also stated in DeMarco

that the landowner must face suit for an act or omission in a construction-related activity in

order for section 13--214 to come into play. DeMarco, 341 Ill. App. 3d at 228; see also

Paschen Contractors, Inc. v. City of Kankakee, 353 Ill. App. 3d 628, 636-37 (2004) (section

13--206, rather than section 13--214, governed claim that the defendants had breached

their contract by failing to pay contractor additional compensation); cf. Blinderman

Construction Co., 325 Ill. App. 3d at 367 (section 13--214(a) applicable to recover payment

for work engendered by the defendant in its capacity as construction supervisor and/or

manager). As defendants are not being sued for their act or omission in a construction-related

activity, section 13--206's 10-year limitations period for written contracts applies. Plaintiff's March

1, 2005, complaint was, therefore, timely, and the trial court erred by granting defendants'

motion to dismiss.

                                        III. CONCLUSION

       For the foregoing reasons, we reverse the judgment of the Lake County circuit court

and remand the cause for further proceedings.

       Reversed and remanded.

       McLAREN and KAPALA, JJ., concur.




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