

                                             Docket No. 90340–Agenda 24–May 2001.
BELLEVILLE TOYOTA, INC., Appellee, v. TOYOTA
                                             MOTOR SALES, U.S.A., INC., et al., Appellants.
                                    Opinion filed March 15, 2002.
      JUSTICE FITZGERALD delivered the opinion of the court:
      Plaintiff, Belleville Toyota, Inc., sued defendants, Toyota  Motor  Sales,  U.S.A.,  Inc.,  and
Toyota Motor Distributors, Inc.  Defendants  are,  respectively,  the  authorized  importer  and  the
wholesale distributor of new Toyota vehicles in the United States. Plaintiff claimed that  defendants
breached certain dealership agreements by allocating to  plaintiff  less  than  the  full  number  of
Toyota vehicles to which plaintiff was entitled. Plaintiff  also  claimed  that  defendants’  conduct
violated the Motor Vehicle Franchise Act (Act) (815 ILCS 710/1 et  seq.  (West  2000)).  Following  a
jury trial, the circuit court of St. Clair County entered a  multi-million  dollar  judgment  against
defendants. On appeal, the  appellate  court  rejected  defendants’  numerous  claims  of  error  and
affirmed the judgment of the trial court. 316 Ill. App. 3d 227. We granted defendants’  petition  for
leave to appeal. 177 Ill. 2d R. 315. For the reasons discussed below, we affirm in part  and  reverse
in part the judgment of the appellate court and remand this matter to the circuit court  for  further
proceedings.

                                              BACKGROUND
      In 1973, Bill Newbold acquired an ownership interest in  a  Toyota  dealership  in  Belleville,
Illinois, and took over the dealership’s day-to-day operations. The dealership, doing business  under
the name Bill Newbold Toyota, was one of approximately  100  Toyota  dealerships  in  the  five-state
Chicago region. Bill Newbold, along with his son, Kent, operated the dealership  under  a  series  of
dealer agreements with defendants. The earliest of the dealer agreements at issue in this  litigation
was executed in June 1980, and provided for a six-year term. Under the 1980 agreement, plaintiff  was
required to submit orders for Toyota products on forms supplied by defendants.  In  the  event  of  a
shortage of Toyota products, the “unit allocation” provision of the contract required  that  vehicles
be allocated to plaintiff “principally on the basis of  sales  performance  during  the  most  recent
representative period of adequate supply.”
      In 1986, upon expiration of the1980 agreement, the parties entered into a new dealer  agreement
with a one-year term. In 1987, the parties entered into another  one-year  agreement,  and  in  1988,
entered into a six-year agreement. Under the 1986, 1987 and 1988 agreements, defendants were  to  use
their “best efforts” to provide Toyota products to plaintiff, subject to  available  supply.  In  the
event of a shortage, defendants were required to allocate Toyota products  among  its  dealers  in  a
“fair and equitable manner.”
      In June 1989, defendants notified plaintiff of their intent to open a new Toyota dealership  in
Collinsville, Illinois. In  response,  on  August  8,  1989,  plaintiff  filed  a  complaint  against
defendants under the Act, seeking  to  enjoin  them  from  establishing  a  Collinsville  dealership.
Plaintiff twice amended its complaint to  include  claims  for  breach  of  contract  and  additional
violations of the Act. Plaintiff alleged that defendants failed to allocate Toyota  vehicles  in  the
quantities  contractually  required  and  that  defendants  fraudulently  concealed  their   conduct.
According to plaintiff, defendants’ breach was not discovered  until  the  fall  of  1990.  Plaintiff
further alleged that, in violation of the Act, defendants’  allocation  of  vehicles  was  arbitrary,
capricious, in bad faith, and unconscionable; defendants concealed  their  arbitrary  and  capricious
allocation system; and defendants’ conduct was willful and wanton. The  trial  court  dismissed  with
prejudice plaintiff’s claim for injunctive relief and denied defendants’ motions  challenging,  inter
alia, the timeliness of plaintiff’s claims. In  1997,  following  several  years  of  discovery,  the
parties proceeded to trial.
      At trial, plaintiff maintained that, as the result  of  certain  import  restrictions  under  a
voluntary restraint agreement (VRA) between the United States and Japan,  there  was  a  shortage  of
Toyota vehicles during the 1980s. Plaintiff contended that, due to  this  shortage,  defendants  were
obligated, under the “unit allocation provision” contained in the 1980 dealer agreement, to  allocate
Toyota vehicles to the dealers based on “sales performance  during  the  most  recent  representative
period of adequate supply.” According to plaintiff, defendants failed to do so. In  the  alternative,
plaintiff maintained that,  even  absent  a  shortage  of  Toyota  vehicles,  the  allocation  system
defendants used, which they described to plaintiff as a “turn and earn” system, did not  comply  with
the 1980 agreement requiring an order system.  Plaintiff  further  maintained  that  defendants’  so-
called “turn and earn” system, which purportedly allocated cars based on how quickly a  dealer  moved
its inventory, did not function in this way. Rather, the vehicle allocation system was arbitrary  and
subject to manipulation, and was used in a discriminatory way, all in violation of the Act,  as  well
as the four dealer agreements at issue in the litigation. Plaintiff’s damage expert  estimated  that,
during the 1980s, plaintiff was shorted thousands  of  vehicles  by  defendants,  resulting  in  lost
profits of $5 million to $11 million.
      Defendants maintained at trial that there was no shortage of  Toyota  vehicles,  and  that  its
allocation system, which defendants referred to as a “balanced day  supply”  system,  was  clear  and
fair. Under a “balanced day supply”system, allocations are  made  based  on  a  dealer’s  past  sales
performance, rate of sales, and remaining inventory. Each dealer is  allocated  a  “days  supply”  of
vehicles, i.e., that number of vehicles needed so that  all  dealers,  theoretically,  exhaust  their
inventory on  the  same  day.  Defendants  also  maintained  that,  unlike  the  domestic  automobile
manufacturers, they never used a custom order system. Defendants also  asserted  that  plaintiff,  by
its conduct, waived any claims against defendants; plaintiff’s claims were barred by its  own  breach
of the dealer agreements; and pursuant to the parties’ course  of  performance,  defendants’  conduct
did not constitute a breach of the dealer agreements.
      After a two-week trial, which included testimony from 30 witnesses, the jury entered a  verdict
in favor of plaintiff, awarding damages of $2.5 million on plaintiff’s breach of contract count,  and
$2.25 million on plaintiff’s count under the Act.  The  trial  court  denied  defendants’  post-trial
motion. Based on the jury’s special finding that defendants’  conduct  was  willful  or  wanton,  the
trial court granted plaintiff’s motion for treble damages under the Act and entered judgment on  that
count in the amount of $6.75 million. See 815 ILCS 710/13  (West  2000)  (“Where  the  misconduct  is
willful or wanton, the court may award treble damages”). The trial court also  ruled  that  “judgment
on Count I [breach of contract] shall be deemed satisfied upon payment  of  an  amount  on  Count  II
[violation of the Act] which is equivalent to the judgment on Count I plus  interest.”  Finally,  the
trial court reserved ruling on plaintiff’s motion for attorney fees and costs under the Act (see  815
ILCS 710/13 (West 2000)) and for discovery sanctions, pending appeal, and made a Rule 304(a)  finding
of appealability (see 155 Ill. 2d R. 304(a)).
      The appellate court rejected defendants’ numerous claims of  error  and  affirmed  the  circuit
court judgment. We granted defendants’ petition for leave to appeal. 177 Ill. 2d R. 315.

                                               ANALYSIS
                                     I. Act’s Limitations Period
      Defendants first argue that plaintiff’s claim under the Act was barred based on  the  four-year
limitations period contained in the statute. 815 ILCS 710/14 (West  2000).  Defendants  contend  that
where, as here, a plaintiff’s cause of action is purely statutory, and the statute contains  its  own
“built-in” limitations  period,  compliance  with  the  limitations  period  is  an  element  of  the
plaintiff’s case and a jurisdictional prerequisite to the plaintiff’s right to sue. See  Pasquale  v.
Speed Products Engineering, 166 Ill. 2d 337, 366-67 (1995); Demchuk v. Duplancich, 92 Ill. 2d 1,  6-7
(1982). Defendants argue that because plaintiff failed to comply  with  the  limitations  period  set
forth in the Act, plaintiff’s cause of action under the statute was extinguished.
      Plaintiff initially counters that defendants’ position before this court is contrary  to  their
position at trial and, therefore, defendants are precluded from making this argument. See  McMath  v.
Katholi, 191 Ill. 2d 251, 255 (2000). Plaintiff also asserts that the  limitations  period  contained
in section 14 of the Act functions as an ordinary statute of limitations and is not a  jurisdictional
prerequisite to suit. See People v. Wright, 189 Ill. 2d 1, 8-10 (1999).
      Ordinarily, principles of waiver do not permit a party to complain of an error where to  do  so
is inconsistent with the party’s position taken in an earlier court proceeding. McMath, 191  Ill.  2d
at 255. Defendants’ argument, however, implicates the subject  matter  jurisdiction  of  the  circuit
court. The issue of subject matter jurisdiction cannot be waived. Currie v. Lao,  148  Ill.  2d  151,
157 (1992); People ex rel. Compagnie Nationale Air France v. Giliberto, 74 Ill. 2d  90,  105  (1978).
Therefore, the issue may be raised at any time. Berg v. Allied Security, Inc., 193 Ill. 2d  186,  188
n.1 (2000); Dubin v. Personnel Board, 128 Ill. 2d 490,  496  (1989).  Moreover,  this  court  has  an
obligation to take notice of matters which go to the jurisdiction of the circuit court  in  the  case
then before us. Eastern v. Canty, 75 Ill. 2d 566, 570 (1979); see In re Estate of Gebis, 186 Ill.  2d
188, 192 (1999). Accordingly, we will consider the issue of whether the limitations provision of  the
Act was an element of plaintiff’s case and a jurisdictional prerequisite to suit.
      Simply stated, “subject matter jurisdiction” refers to  the  power  of  a  court  to  hear  and
determine cases of the general class to which the proceeding in question belongs. People  v.  Western
Tire Auto Stores, Inc., 32 Ill. 2d 527, 530 (1965); Van Dam v. Van Dam, 21 Ill. 2d 212,  216  (1961);
14 Ill. L. & Prac. Courts §16, at 183 (1968); see also Faris v. Faris, 35 Ill. 2d  305,  309  (1966);
Restatement (Second) of Judgments §11 (1982). With the exception of  the  circuit  court’s  power  to
review administrative action, which is  conferred  by  statute,  a  circuit  court’s  subject  matter
jurisdiction is conferred entirely by our state constitution. Ill. Const. 1970, art. VI,  §9;  In  re
Lawrence M., 172 Ill. 2d 523, 529 (1996); In re M.M., 156 Ill. 2d 53, 65 (1993). Under section  9  of
article VI, that jurisdiction extends to all “justiciable matters.” Ill. Const. 1970,  art.  VI,  §9.
Thus, in order to invoke the subject matter jurisdiction of the circuit court,  a  plaintiff’s  case,
as framed by the complaint or petition, must present a justiciable matter. See People ex  rel.  Scott
v. Janson, 57 Ill. 2d 451, 459 (1974) (if a complaint states a case  belonging  to  a  general  class
over which the authority of the court extends, subject matter jurisdiction attaches);  Western  Tire,
32 Ill. 2d at 530 (the test of the presence of subject matter jurisdiction is found in the nature  of
the case as made by the complaint and the relief sought); Ligon v. Williams, 264 Ill.  App.  3d  701,
707 (1994) (court’s authority to exercise its jurisdiction and  resolve  a  justiciable  question  is
invoked through the filing of a complaint or petition).
      Our current constitution does not define the term “justiciable matters,”  nor  did  our  former
constitution, in which this term first appeared. See Ill. Const.  1970,  art.  VI,  §9;  Ill.  Const.
1870, art. VI, §9 (amended 1964). Generally, a “justiciable matter” is a controversy appropriate  for
review by the court, in that it is definite  and  concrete,  as  opposed  to  hypothetical  or  moot,
touching upon the legal relations of parties having adverse legal interests.  See  Exchange  National
Bank of Chicago v. County of Cook, 6 Ill. 2d 419, 422 (1955); Health Cost Controls  v.  Sevilla,  307
Ill. App. 3d 582, 587 (1999); City of Chicago v. Chicago Board of Education, 277 Ill.  App.  3d  250,
261 (1995). The legislature may create new justiciable matters by enacting legislation  that  creates
rights and duties that have no counterpart at common law or in equity.  M.M.,  156  Ill.  2d  at  65.
Through the legislature’s adoption of the Act in 1979, the  legislature  created  a  new  justiciable
matter. The legislature’s creation of a new justiciable matter,  however,  does  not  mean  that  the
legislature thereby confers jurisdiction on the circuit court. Article VI is clear  that,  except  in
the  area  of  administrative  review,  the  jurisdiction  of  the  circuit  court  flows  from   the
constitution. Ill. Const. 1970, art. VI, §9. The General Assembly, of course, has no power  to  enact
legislation that would contravene article VI. See Tully v. Edgar, 171 Ill. 2d 297, 308 (1996).
      Some case law, however, suggests that the legislature, in defining a  justiciable  matter,  may
impose “conditions precedent” to the court’s exercise of jurisdiction that cannot  be  waived.  E.g.,
In re Marriage of Fields, 288 Ill. App. 3d 1053, 1057 (1997); People ex rel.  Brzica  v.  Village  of
Lake Barrington, 268 Ill. App. 3d 420, 422-23 (1994); In re Estate of Mears, 110 Ill. App.  3d  1133,
1138 (1982). We necessarily reject this view because it is contrary  to  article  VI.  Characterizing
the requirements of a statutory cause of action as nonwaivable  conditions  precedent  to  a  court’s
exercise of jurisdiction is merely another way of saying that the circuit  court  may  only  exercise
that jurisdiction which the legislature allows. We reiterate, however, that the jurisdiction  of  the
circuit court  is  conferred  by  the  constitution,  not  the  legislature.  Only  in  the  area  of
administrative review is the court’s power to adjudicate controlled by the legislature.  Ill.  Const.
1970, art. VI, §9; Lawrence M., 172 Ill. 2d at 529; M.M., 156 Ill. 2d at 65; see also In  re  Custody
of Sexton, 84 Ill. 2d 312, 319-21  (1981)  (holding  that  statutory  affidavit  provision,  although
mandatory, was not “jurisdictional” in the sense that it could not be waived).
      The legislature’s limited role, under our current constitution, in  defining  the  jurisdiction
of the circuit court stands in stark contrast to the significant role  previously  exercised  by  the
legislature under our former constitution. See  Mears,  110  Ill.  App.  3d  at1134-38  (tracing  the
development of jurisdiction from a purely legislative concept embodied in the 1818  constitution,  to
the concept now in force under the 1970 constitution). Under  our  former  constitution,  adopted  in
1870, the circuit court enjoyed “original jurisdiction of all causes in law and equity.” Ill.  Const.
1870, art. VI, §12. The court’s jurisdiction over special statutory proceedings, i.e., matters  which
had no roots at common law or in equity, derived from the legislature. See People v. Graw,  363  Ill.
205, 208 (1936) (circuit court’s constitutionally derived  jurisdiction  did  not  apply  to  special
statutory proceedings); Selden v. Illinois Trust & Savings Bank, 239 Ill. 67,  74  (1909)  (court  of
general jurisdiction may have a special statutory jurisdiction conferred upon  it).  Thus,  in  cases
involving purely statutory causes of action, we held that  unless  the  statutory  requirements  were
satisfied, a court lacked jurisdiction to grant the relief requested. See, e.g., Martin  v.  Schillo,
389 Ill. 607, 609-10 (1945); People ex rel. Kilduff v. Brewer, 328 Ill. 472, 479-84 (1927); Sharp  v.
Sharp, 213 Ill. 332, 334-36 (1904).
      In 1964,  however,  amendments  to  the  judicial  article  of  the  1870  constitution  became
effective. These amendments radically changed the legislature’s role in determining the  jurisdiction
of the circuit court. See M.M., 156 Ill. 2d at 74 (Miller, C.J., concurring, joined by Bilandic,  J.)
(the sources and scope of the circuit court’s  jurisdiction  changed  “dramatically”  with  the  1964
amendments to the judicial article); Mears, 110 Ill. App. 3d at 1137 (a “revolution” was  wrought  by
the 1964 amendments to the juridical article); see also Steinbrecher v.  Steinbrecher,  197  Ill.  2d
514, 529-30 (2001) (discussing the  change,  under  the  1964  amendments,  from  courts  of  limited
jurisdiction to courts of general  jurisdiction  in  a  single  integrated  system).  Under  the  new
judicial article, the circuit court enjoyed “original jurisdiction of all  justiciable  matters,  and
such powers of review of administrative action as may be provided by law.”  Ill.  Const.  1870,  art.
VI, §9 (amended 1964). Thus, the legislature’s power to define the circuit court’s  jurisdiction  was
expressly limited to the area of administrative review. The current  Illinois  constitution,  adopted
in 1970, retained this limitation. See Ill. Const. 1970, art. VI, §9.
      In light of these changes, the  precedential  value  of  case  law  which  examines  a  court’s
jurisdiction under the pre-1964 judicial system is necessarily limited to the constitutional  context
in which those cases arose. See M.M., 156  Ill.  2d  at  74  (Miller,  C.J.,  concurring,  joined  by
Bilandic, J.)  (“terminology  employed  in  earlier  [pre-1964]  decisions  must  be  viewed  in  the
constitutional context in which those cases were decided”); People v. Valdez, 79 Ill.  2d  74,  84-85
(1980) (rationale of cases decided  under  1870  constitution  were  not  applicable  in  determining
whether circuit court had jurisdiction under 1970 constitution). Nonetheless, pre-1964 rules  of  law
continue to be cited by Illinois courts, without qualification, creating  confusion  and  imprecision
in the case law.
      Defendants in the present case rely on a rule of  law  that  has  its  roots  in  the  pre-1964
judicial system. Under this rule, as presently  articulated  by  this  court,  a  limitations  period
contained in a statute that creates a substantive right unknown to the common law, and in which  time
is made an inherent element of the right, is more than an ordinary statute of limitations;  it  is  a
condition of the liability itself and goes to the subject  matter  jurisdiction  of  the  court.  See
Wright, 189 Ill. 2d at 7-9; Pasquale, 166 Ill. 2d at 366-67, citing Fredman  Brothers  Furniture  Co.
v. Department of Revenue, 109 Ill. 2d 202 (1985); see also Demchuk, 92 Ill.  2d  at  6-7;  Wilson  v.
Tromly, 404 Ill. 307, 310-11 (1949); Smith v. Toman, 368 Ill. 414, 418-20 (1938); North Side  Sash  &
Door Co. v. Hecht, 295 Ill. 515, 519-20 (1920); Hartray v. Chicago  Rys.  Co.,  290  Ill.  85,  86-87
(1919). This rule of law may have been appropriate  under  the  pre-1964  judicial  system  when  the
court’s jurisdiction to hear and determine purely  statutory  causes  of  action  was  conferred  and
limited by the legislature, and the  failure  to  conform  strictly  to  the  statutory  requirements
prevented the court from acquiring subject matter jurisdiction. To the extent  this  proposition  has
any relevance today, it is confined to the area of administrative review–the only area in  which  the
legislature still determines the extent of  the  circuit  court’s  jurisdiction.  This  principle  is
illustrated in this court’s decision in Fredman Brothers.
      Fredman Brothers arose under our administrative review law. At issue  was  whether  the  35-day
period for filing an administrative appeal was jurisdictional. See Ill. Rev.  Stat.  1983,  ch.  110,
par. 3–103. We recognized a distinction between ordinary statutes of limitations and  statutes  which
both confer jurisdiction and fix a time within which such  jurisdiction  may  be  exercised.  Fredman
Brothers, 109 Ill. 2d at 209. We noted that where the court is in the exercise of  special  statutory
jurisdiction, “if  the  mode  of  procedure  prescribed  by  statute  is  not  strictly  pursued,  no
jurisdiction is conferred on the circuit court.” Fredman Brothers, 109 Ill. 2d at  210.  Because  the
circuit court was exercising special statutory jurisdiction under the administrative review  law,  we
concluded that the filing period was jurisdictional and that judicial review  of  the  administrative
decision was barred if the complaint was not filed within the time specified. Fredman  Brothers,  109
Ill. 2d at 211.
      Fredman Brothers also referenced the early rule that “ ‘statutes  which  create  a  substantive
right unknown to the common law and in which time is  made  an  inherent  element  of  the  right  so
created, are not statutes of limitation.’ ” Fredman Brothers, 109 Ill. 2d at 209, quoting Smith,  368
Ill. at 420. Such statutes, according to the opinion, “set forth the requirements  for  bringing  the
right to seek a remedy into existence,” and are “jurisdictional, not  mandatory.”  Fredman  Brothers,
109 Ill. 2d at 210. Plainly, Fredman Brothers’  reference  to  the  early  rule  regarding  statutory
causes of action was not necessary to decide the case. To the extent, however, that Fredman  Brothers
suggests that such rule still has vitality today,  it  is  limited  to  the  area  of  administrative
review, the context in which Fredman Brothers was decided and the only  context,  under  our  current
constitution, that such rule could apply. We observe, however,  that  Illinois  courts,  in  numerous
cases outside the administrative review area, have incorrectly cited Fredman  Brothers  as  authority
for the proposition  that  a  limitations  period  contained  in  a  statutory  cause  of  action  is
jurisdictional. See, e.g., Wright, 189 Ill. 2d at 7-9 (Post-Conviction Hearing  Act);  Pasquale,  166
Ill. 2d at 366-67 (Wrongful  Death  Act);  Denault  v.  Cote,  319  Ill.  App.  3d  886,  889  (2001)
(Residential Real Property Disclosure Act); In re Estate of Goodlett,  225  Ill.  App.  3d  581,  589
(1992) (Probate Act); People v. Ross, 191 Ill. App. 3d 1046, 1053 (1989) (section 2–1401 of the  Code
of Civil Procedure); Bradford v. Soto, 159 Ill. App. 3d 668, 674-75 (1987) (Dramshop Act);  see  also
JoJan Corp. v Brent, 307 Ill. App. 3d 496, 507 n.4 (1999) (citing Pasquale for the  proposition  that
the time limitation in the  Mechanics  Lien  Act  is  a  prerequisite  to  the  court’s  exercise  of
jurisdiction). Without calling into doubt the outcomes reached in these cases, we emphasize that  the
rule set forth in Fredman Brothers and earlier case law, under which time  limitations  in  statutory
actions are deemed jurisdictional, is not a rule of general applicability to all statutory causes  of
action. Rather, the rule is limited by the constitutional context in which it first arose.
      In contrast to Fredman Brothers, the present litigation did not arise under our  administrative
review law. The circuit court, therefore, was not exercising special statutory jurisdiction.  Rather,
the circuit court had jurisdiction to hear and determine plaintiff’s claim because it was  among  the
general class of cases–those presenting a claim under the Act,  a  justiciable  matter–to  which  the
court’s constitutionally  granted  original  jurisdiction  extends.  Even  if  plaintiff’s  complaint
defectively stated its claim under the Act, the  circuit  court  would  not  have  been  deprived  of
subject matter jurisdiction. Subject matter jurisdiction does not depend upon the  legal  sufficiency
of the pleadings. Scott, 57 Ill. 2d at 459; Western Tire, 32 Ill. 2d at  530;  14  Ill.  L.  &  Prac.
Courts §28, at 201-02 (1968); see also DeLuna v. Treister, 185 Ill. 2d  565,  579  (1999)  (technical
pleading requirements are not  jurisdictional).  Similarly,  subject  matter  jurisdiction  does  not
depend upon the ultimate outcome of the suit. A party may bring unsuccessful as  well  as  successful
suits in the circuit court.  Based  on  the  foregoing,  we  conclude  that  the  limitations  period
contained in the Act is not a jurisdictional prerequisite to suit.
      Our conclusion, while firmly rooted in our constitution, is also consistent with the  trend  of
modern authority favoring finality of judgments over alleged defects in validity. See In re  Marriage
of Mitchell, 181 Ill. 2d 169, 175-77 (1998), citing Restatement (Second)  of  Judgments  §12  (1982);
see also Fields, 288 Ill. App. 3d at 1060, citing  Restatement  (Second)  of  Judgments  §12  (1982).
Labeling the requirements contained in statutory causes of action “jurisdictional”  would  permit  an
unwarranted and dangerous expansion of the situations where a final judgment may be set  aside  on  a
collateral attack. See 3 R. Michael,  Illinois  Practice  §2.3,  at  21  n.39  (1989).  Even  if  the
statutory requirement is considered a nonwaivable condition, the same concern over  the  finality  of
judgments arises. Once a statutory requirement is deemed “nonwaivable,” it is on equal  footing  with
the only other nonwaivable conditions that would cause a judgment to be void,  and  thus  subject  to
collateral attack–a lack of subject matter jurisdiction, or a  lack  of  personal  jurisdiction.  See
Mitchell, 188 Ill. 2d at 174. As our appellate court  has  observed,  “[b]ecause  of  the  disastrous
consequences which follow when orders and judgments are allowed to be collaterally  attacked,  orders
should be characterized as void only when no other  alternative  is  possible.”  In  re  Marriage  of
Vernon, 253 Ill. App. 3d 783, 788 (1993); see also Mitchell, 181 Ill. 2d  at  177  (recognizing  that
numerous child support orders could be subject to collateral attack if the subject order  were  found
void based on trial court’s failure to strictly  follow  the  statute).  Our  concern  regarding  the
finality of judgments is all the more acute given the plethora of justiciable matters created by  our
legislature.
       Having  rejected  defendants’  argument  that  the  limitations  period  in  the  Act   is   a
jurisdictional  prerequisite  to  suit,  we  next  examine  defendants’  related  argument  that  the
limitations period is an element of plaintiff’s claim, which plaintiff  must  plead  and  prove  (see
Hamilton v. Chrysler Corp., 281 Ill. App. 3d 284, 287 (1996)), rather than  an  ordinary  limitations
period, which provides a technical defense to the claim (see Sundance Homes, Inc.  v.  County  of  Du
Page, 195 Ill. 2d 257, 267-68 (2001); Hartray, 290 Ill. at 87). Our determination of this issue is  a
matter of statutory construction. “[T]he  judicial  role  in  construing  statutes  is  to  ascertain
legislative intent and give it effect. To aid in accomplishing this, a court will seek  to  determine
the objective the legislature sought to accomplish and the evils it desired  to  remedy.”  People  v.
Scharlau, 141 Ill. 2d 180, 192 (1990); see also West American Insurance Co. v. Sal E. Lobianco &  Son
Co., 69 Ill. 2d 126, 129 (1977) (statutes of limitations, like other statutes, must be  construed  in
light of their objectives, quoting Geneva Construction Co. v. Martin Transfer & Storage Co.,  4  Ill.
2d 273, 289 (1954)). Because the language of a statute is the best  evidence  of  legislative  intent
(In re D.L., 191 Ill. 2d 1, 9 (2000)), our inquiry begins with the language of the Act.
      The Act regulates motor vehicle manufacturers,  distributors,  wholesalers  and  dealers  doing
business in this State. 815 ILCS 710/1.1  (West  2000).  In  pertinent  part,  the  Act  defines  and
declares  unlawful  certain  “unfair  methods  of  competition  and  unfair  and  deceptive  acts  or
practices.” 815 ILCS 710/4 (West 2000). Among those practices declared unlawful is any  action  by  a
manufacturer, wholesaler, distributor or dealer, with respect to a franchise,  which  is  “arbitrary,
in bad faith or unconscionable and which causes damage to any of the parties or to the  public.”  815
ILCS 710/4(b) (West 2000). The Act  also  makes  it  unlawful  for  a  manufacturer,  wholesaler,  or
distributor “to adopt, change, establish or implement  a  plan  or  system  for  the  allocation  and
distribution of new motor vehicles to motor vehicle dealers which is arbitrary or  capricious  or  to
modify an existing plan so as to cause the same to be arbitrary or capricious.” 815 ILCS  710/4(d)(1)
(West 2000). Significantly, section 13 of the Act provides that a franchisee or motor vehicle  dealer
“who suffers any loss of money or property”  as  a  result  of  the  employment  by  a  manufacturer,
wholesaler or distributor “of an unfair method of competition  or  an  unfair  or  deceptive  act  or
practice declared unlawful” by the Act, “may bring  an  action  for  damages  and  equitable  relief,
including injunctive relief.” 815 ILCS 710/13 (West 2000).
      Section 14 of the Act sets forth the limitations period applicable to actions for  damages  and
equitable relief:
            “§14. Limitations. Except as provided in Section  12,[1]  actions  arising  out  of  any
      provision of this Act shall be commenced within  4  years  next  after  the  cause  of  action
      accrues; provided, however, that if a person liable hereunder conceals  the  cause  of  action
      from the knowledge of the person entitled to bring it, the period prior to  the  discovery  of
      his cause of action by the person entitled shall be excluded in determining the  time  limited
      for the commencement of the action. If a cause of action accrues during the  pendency  of  any
      civil, criminal or administrative proceeding against a person brought by the United States, or
      any of its agencies under the antitrust laws, the Federal Trade Commission Act [15 U.S.C.  §41
      et seq. (2000)], or any other federal act, or the laws or to franchising, such actions may  be
      commenced  within  one  year  after  the  final  disposition  of  such  civil,   criminal   or
      administrative proceeding.” 815 ILCS 710/14 (West 2000).
      Section 14 does not  expressly  state  an  intent  by  the  legislature  that  the  limitations
provision be treated as an element of  a  plaintiff’s  cause  of  action.  In  addition,  section  14
provides that actions arising out of any provision of the Act “shall  be  commenced  within  4  years
next after the cause of action accrues.” (Emphasis added.) 815 ILCS 710/14 (West 2000). Such  accrual
language is typical of ordinary statutes of limitations. See Fredman Brothers, 109 Ill.  2d  at  209-
10. Moreover, section 14 provides for tolling of the  limitations  period  where  the  person  liable
under the Act “conceals the cause of action from the knowledge of the person entitled to  bring  it.”
815 ILCS 710/14 (West 2000). The doctrine of equitable estoppel is  also  typically  associated  with
ordinary statutes of limitations. See generally Jackson Jordan, Inc. v. Leydig,  Voit  &  Mayer,  158
Ill. 2d 240,  251-52  (1994);  Hagney  v.  Lopeman,  147  Ill.  2d  458,  462-66  (1992)  (discussing
concealment of cause of action sufficient to toll statute of limitations); Goodlett,  225  Ill.  App.
3d at 590 (recognizing that concepts of equitable estoppel,  tolling  and  waiver  usually  apply  to
statutes of limitations). Thus, the language of section 14 militates in favor of its treatment as  an
ordinary limitations period.
      Such treatment comports with the purpose of the Act. In general terms, the Act is intended  “to
promote the public interest and welfare,” “to prevent frauds, impositions and other abuses  upon  its
citizens, to protect and preserve the investments and properties of the citizens of this  State,  and
to provide adequate and sufficient service to  consumers  generally,”  through  regulation  of  motor
vehicle manufacturers, distributors, wholesalers and dealers. 815  ILCS  710/1.1  (West  2000).  More
particularly, section 13 of the Act is intended to protect  motor  vehicle  dealers  and  franchisees
from unfair and deceptive acts and practices employed by manufacturers, wholesalers, or  distributors
by creating a private right of action. 815 ILCS 710/13 (West 2000). Construction of section 14 as  an
ordinary statute of limitations, which provides a technical  defense  which  may  be  waived,  better
facilitates this purpose. See Knauz Continental Autos, Inc. v. Land Rover North  America,  Inc.,  842
F. Supp. 1034, 1037 (N.D. Ill. 1993) (the Act must  be  liberally  construed  to  honor  the  General
Assembly’s intent to protect automobile dealers). Accordingly, we reject  defendants’  argument  that
compliance with section 14 was an element of plaintiff’s claim.

                                    II. Continuing Violation Rule
      Defendants argue, in the alternative, that even if the limitations provision in the Act is  not
a jurisdictional prerequisite to suit, plaintiff’s claim under the Act  was  time-barred.  Underlying
defendants’ argument  is  their  contention  that  the  so-called  “continuing  violation  rule”  was
erroneously applied to toll the running of the four-year limitations period.
      Under the “continuing violation rule,” embraced by our appellate court, where a  tort  involves
a continuing or repeated injury, the limitations period does not begin to run until the date  of  the
last injury or the date the tortious acts cease. See Roark v. Macoupin Creek Drainage  District,  316
Ill. App. 3d 835, 847 (2000); Bank of Ravenswood v. City of Chicago, 307 Ill.  App.  3d  161,  167-68
(1999); Hyon Waste Management Services, Inc. v. City of Chicago, 214 Ill. App. 3d  757,  763  (1991);
City of Rock Falls v. Chicago Title & Trust Co., 13 Ill. App. 3d 359, 364  (1973).  The  trial  court
found that plaintiff had alleged a continuing course of conduct and, therefore, that  the  applicable
limitations period would run from the date defendants’  wrongful  conduct  ceased.  Relying  on  this
court’s decision in Cunningham v. Huffman, 154 Ill. 2d 398 (1993), the appellate court affirmed.  316
Ill. App. 3d at 243-44. Whether the limitations period set forth in the Act  is  subject  to  tolling
under a “continuing violation” rule is a question of law which we review de novo. See Woods v.  Cole,
181 Ill. 2d 512, 516 (1998).
      In Cunningham, we held that a medical malpractice claim is not barred by the statute of  repose
where plaintiff demonstrates that there was a continuous and unbroken course of negligent  treatment,
and that the treatment was so related as to constitute one continuing wrong. Cunningham, 154 Ill.  2d
at 406. The statute of repose provided that no action could be brought “more than 4 years  after  the
date on which occurred the act or omission or occurrence alleged in such  action  to  have  been  the
cause of such injury or death.”  Ill.  Rev.  Stat.  1989,  ch.  110,  par.  13–212(a).  We  found  it
improbable that the legislature intended the word “occurrence,” as used in the statute of repose,  to
be limited to a single event, in light of the unjust results that could follow  from  such  a  narrow
construction.
      “[I]f the word occurrence were interpreted to mean  a  single  isolated  event,  patients  who
      discovered that they were gravely injured due to negligent or unnecessary  exposure  to  X-ray
      radiation or administration of medication over a span  of  years  might  be  able  to  recover
      little, if any, in the way of damages. This would be so because a single dosage  of  radiation
      or medicine might be harmless, whereas treatment over time might be either disabling  or  even
      fatal. *** If the statute of repose were read to start on day one of the treatment in  a  span
      covering many years, a plaintiff could only seek recovery for the  final  four  years.  It  is
      conceivable that the damage caused in the last four years might  be  either  negligible  or  a
      small fraction of the harm caused over the continuum of  negligence;  thus,  the  recovery  of
      damages would be negligible  compared  to  the  actual  injury.  Surely,  the  law  could  not
      contemplate such an unjust result.” Cunningham, 154 Ill. 2d at 405-06.
      In the present case, the appellate court determined that the Cunningham analysis  also  applied
to plaintiff’s statutory claim. According to  the  appellate  court,  cumulative  medical  negligence
that, over time, results in injury that might otherwise be insignificant, is not  unlike  defendants’
willful and wanton violation of the Act that, over a period of years, results in a loss to  plaintiff
that at some point becomes intolerable. 316 Ill. App. 3d at 243-44.  The  appellate  court  concluded
that because defendants’ conduct was of a continuing nature, the limitations period was  tolled,  and
plaintiff’s claim was timely. 316 Ill. App. 3d at 244. We cannot agree.
      The Cunningham opinion did not adopt a continuing violation rule of  general  applicability  in
all tort cases or, as here, cases involving a statutory  cause  of  action.  Rather,  the  result  in
Cunningham was based on interpretation of the language contained in the medical  malpractice  statute
of repose. In the present case, plaintiff has not identified any language  in  the  Act  which  would
require a similar result. Moreover, we discern no “unjust results” in the present  case,  like  those
we sought to avoid in Cunningham, which would militate in favor of applying  a  continuing  violation
rule.
      In addition, defendants maintain  that  the  continuing  violation  rule,  as  applied  by  the
appellate court, is inconsistent with our discovery rule. Generally,  under  the  discovery  rule,  a
cause of action accrues, and the limitations period begins to run,  when  the  party  seeking  relief
knows or reasonably should know of an injury and that it was wrongfully caused.  Clay  v.  Kuhl,  189
Ill. 2d 603, 608 (2000); Knox College v. Celotex Corp., 88 Ill. 2d 407, 415 (1981). The Act  provides
that the four-year limitations period begins to run “after the cause of  action  accrues.”  815  ILCS
710/14 (West 2000).
      In its second amended complaint, plaintiff alleged that  defendants  concealed  their  wrongful
conduct and it was not until the fall of 1990 that plaintiff “discover[ed] its entitlement” to  bring
a cause of action under the Act.[2] Assuming, arguendo, the veracity of  this  statement,  under  the
discovery rule, the four-year limitations period would have commenced, at the latest, in the fall  of
1990. The appellate court, however,  determined  that,  under  the  continuing  violation  rule,  the
limitations period never commenced because defendants’ wrongful conduct  “never  stopped.”  316  Ill.
App. 3d at 244. Thus, the application of  a  continuing  violation  rule  in  this  case  tolled  the
limitations period indefinitely beyond the time that the discovery  rule  would  have  permitted.  We
find it unnecessary, however, to resolve the tension between the discovery rule,  on  the  one  hand,
and the continuing violation rule adopted by our appellate court,  on  the  other  hand,  because  we
conclude that the wrongful conduct at issue in this case did not constitute one continuing  violation
of the Act.
      In its second amended  complaint,  plaintiff  alleged  that  defendants’  allocation  of  motor
vehicles to plaintiff was arbitrary, in bad faith or unconscionable, all in violation  of  section  4
of the Act. Section 4 of the Act makes it unlawful for defendants to adopt  or  implement  a  vehicle
allocation system which is arbitrary or capricious (815 ILCS 710/4(d)(1) (West 2000)), or  to  engage
in any action with respect to plaintiff which is arbitrary, in bad faith or unconscionable (815  ILCS
710/4(b) (West 2000)). Although defendants argue that the only conduct at issue  is  this  litigation
was the one-time adoption of  their  vehicle  allocation  system  in  the  early  1970s,  plaintiff’s
complaint put at issue both the adoption of the system and the individual vehicle  allocations  under
that system. The evidence adduced at trial established that defendants made allocations to  plaintiff
two to four times per month. Each individual allocation was  the  result  of  discrete  decisions  by
defendants regarding the numerous  adjustable  parameters  that  drove  the  computerized  allocation
system.  Although  we  recognize  that  the  allocations  were  repeated,  we  cannot  conclude  that
defendants’ conduct somehow constituted one, continuing, unbroken, decade-long violation of the  Act.
Rather, each allocation constituted a separate violation of section 4  of  the  Act,  each  violation
supporting a separate cause of action. Based on the foregoing, we  agree  with  defendants  that  the
appellate court erred in  affirming  the  trial  court’s  application  of  the  so-called  continuing
violation rule.
      We reject, however, defendants’ related contention that plaintiff’s statutory claim was  barred
in its entirety. Because each allocation would have supported a separate cause of  action,  plaintiff
may recover damages for the four-year period prior to the filing of  its  complaint.  See  Meyers  v.
Kissner, 149 Ill. 2d 1, 10-11 (1992) (continuing private nuisance gave rise over and  over  again  to
causes of action, and limitations period merely specified the  window  in  time  for  which  monetary
damages may be recovered prior to the filing of the complaint); Hendrix v. City of  Yazoo  City,  911
F.2d 1102, 1103 (5th Cir. 1990) (where initial statutory violation outside the limitations period  is
repeated later, each violation begins the limitations period anew and recovery  may  be  had  for  at
least those violations that occurred within  the  limitations  period).  Plaintiff’s  second  amended
complaint, in which plaintiff first alleged a claim under the Act,  was  filed  July  20,  1992.  The
trial court determined, however, that plaintiff’s claim under the Act  related  back  to  plaintiff’s
initial complaint filed August 8, 1989. Defendants have not challenged the  trial  court’s  relation-
back ruling in this court. Thus, the relevant period for measuring damages under the Act is the four-
year period ending August 8, 1989. Before determining  whether  it  is  appropriate  to  remand  this
matter to the circuit court for a new trial limited to the issue of damages, we consider  defendants’
other claims of error.

                                III. Contract Claim Limitations Period
      Defendants argue that plaintiff’s claim for breach of the dealer agreements  was  barred  under
the four-year statute of limitations contained in article 2 of  the  Uniform  Commercial  Code  (UCC)
(810 ILCS 5/2–725 (West 2000)). The trial court determined that the UCC  did  not  apply,  implicitly
ruling that the 10-year limitations  period  for  written  contracts  governed  plaintiff’s  contract
claim. See 735 ILCS 5/13–206 (West 2000). This ruling, together with the trial court’s  determination
that the continuing violation rule governed plaintiff’s statutory claim, resulted in the  two  claims
being  essentially  co-extensive.  Thus,  the  appellate  court  found  it  unnecessary  to   address
defendants’ argument that the contract claim was time-barred.  The  appellate  court  explained  that
because the jury found for plaintiff on both claims, and because  the  trial  court  ruled  that  the
award on the breach-of-contract claim could be satisfied by a payment of the award on  the  statutory
claim, it was unnecessary to rule on the statute-of-limitations  defense  on  the  breach-of-contract
claim. 316 Ill. App. 3d at 242.
      As discussed in section II, however, we have rejected application of the  continuing  violation
rule to plaintiff’s claim under the Act, and have limited plaintiff’s recovery on that claim  to  the
four-year period prior to the filing of the complaint on August 8, 1989. If the  10-year  statute  of
limitations governs plaintiff’s contract claim, then the statutory claim and the contract  claim  are
no longer co-extensive, i.e., contract damages would be recoverable for several years in addition  to
those covered by plaintiff’s statutory claim, and payment of the award on the statutory  claim  would
not fully satisfy an award on the contract claim. Therefore, unlike the appellate court, we  find  it
necessary to address defendants’ argument and resolve whether plaintiff’s contract  claim  was  time-
barred. We review this legal issue de novo. See Woods, 181 Ill. 2d at 516.
      Plaintiff first alleged a breach of contract in its amended complaint filed January  30,  1991.
The trial court ruled,  however,  that  the  contract  claim  related  back  to  plaintiff’s  initial
complaint filed August 8, 1989. Defendants have not challenged that ruling in this  court.  Thus,  if
the four-year UCC limitations period applies, contract claims arising prior to August 8, 1985,  would
be time-barred.
      Plaintiff’s contract claim involved four successive dealer agreements, executed in 1980,  1986,
1987, and 1988. It is apparent that claims arising under the 1986, 1987, and  1988  agreements  would
not be barred by a four-year limitations period, i.e., claims under those three agreements could  not
have arisen prior to August 8, 1985, because the agreements were not  executed  and  did  not  become
effective until after that date. Only claims arising under the 1980 dealer agreement could be  barred
by a four-year limitations period. Thus, we confine our review to the 1980 agreement.
      The 1980 agreement contained a choice of law provision stating that California law  governs.[3]
Generally, choice of law provisions will be honored. Hofeld v.  Nationwide  Life  Insurance  Co.,  59
Ill. 2d 522, 528-29 (1975); see also Hartford v. Burns International  Security  Services,  Inc.,  172
Ill. App. 3d 184, 187 (1988). As to procedural matters, however,  the  law  of  the  forum  controls.
Marchlik v. Coronet Insurance Co., 40 Ill. 2d 327, 329-30 (1968); see also Cox v. Kaufman,  212  Ill.
App. 3d 1056, 1062 (1991). Statutes of limitations are procedural, merely fixing the  time  in  which
the remedy for a wrong may be sought, and do not alter  substantive  rights.  Fredman  Brothers,  109
Ill. 2d at 209; see also Cox, 212 Ill. App.  3d  at  1062.  Accordingly,  Illinois  law  governs  the
timeliness of plaintiff’s claim under the 1980 dealer agreement.
      The 10-year statute of limitations that generally governs claims on written contracts  contains
an express exception for actions governed by section 2–725  of  the  UCC.  735  ILCS  5/13–206  (West
2000). Section 2–725 of the UCC provides that “[a]n action for breach of any contract for  sale  must
be commenced within 4 years after the cause of action has accrued.” 810 ILCS 5/2–725(1) (West  2000).
“A cause of action accrues when the breach occurs,  regardless  of  the  aggrieved  party’s  lack  of
knowledge of the breach.” 810 ILCS 5/2–725(2) (West 2000).  Only  contracts  which  fall  within  the
scope of article 2 of the UCC are subject to the four-year limitations period. Article 2  is  limited
to “transactions in goods.” 810 ILCS 5/2–102 (West 2000).  Defendants  argue  that  the  1980  dealer
agreement was principally for the sale of goods and that the agreement  therefore  comes  within  the
ambit of article 2. Plaintiff contends, however, that the dealer agreement  is  a  personal  services
contract and is not governed by article 2.
      Where, as here, a contract provides both for the  sale  of  goods  and  for  the  rendition  of
services, Illinois courts apply the “predominant purpose” test in determining  whether  the  contract
falls within article 2 of the UCC. See Zielinski v. Miller, 277 Ill. App. 3d 735, 741 (1995);  Tivoli
Enterprises, Inc. v. Brunswick Bowling & Billiards Corp., 269 Ill. App. 3d 638, 646 (1995); Yorke  v.
B.F. Goodrich Co., 130 Ill. App. 3d 220, 223 (1985); Executive Centers of America,  Inc.  v.  Bannon,
62 Ill. App. 3d 738, 742 (1978); see also Ill. Ann. Stat., ch. 26, §2–102, Illinois Code Comment,  at
45 (Smith-Hurd 1992 Supp.) (“Illinois reviewing courts have taken what  may  be  called  a  ‘dominant
purpose’ view”). Under this test, if the contract is  predominantly  for  the  sale  of  goods,  with
services being incidental thereto, the contract will be governed by article  2.  Conversely,  if  the
contract is predominantly for services,  with  the  sale  of  goods  being  incidental  thereto,  the
contract will not fall within article 2. See Zielinski, 277 Ill. App. 3d at 741; Tivoli  Enterprises,
269 Ill. App. 3d at 646-47.
      Numerous jurisdictions have held that distributor and dealer agreements,  including  automobile
dealer agreements, are predominantly for the sale of goods and are thus  governed  by  the  UCC.  See
Sally Beauty Co. v. Nexxus Products Co., 801 F.2d 1001, 1005-06 (7th Cir. 1986)  (collecting  cases);
Old Country Toyota Corp. v. Toyota Motor  Distributors,  Inc.,  966  F.  Supp.  167  (E.D.N.Y.  1997)
(holding that Toyota dealer agreement was governed by the UCC); Paulson, Inc. v.  Bromar,  Inc.,  775
F. Supp. 1329, 1333 nn.1 through 16 (D. Haw. 1991) (collecting cases); Kirby v. Chrysler  Corp.,  554
F. Supp. 743, 749-50 (D. Md. 1982) (collecting cases and holding that direct  dealer  agreement  with
Chrysler was governed by UCC).
      Significantly, in Old Country Toyota, a federal district court analyzed  the  provisions  of  a
Toyota dealer agreement executed during the 1980s which, if not identical, is strikingly  similar  to
the one at issue here. The federal court concluded that the dealer agreement  was  predominantly  for
the sale of goods and was thus governed by article 2. Old Country Toyota, 966 F. Supp.  at  170.  The
federal court noted the prominence of the word “sales”  in  the  agreement’s  title,  “Toyota  Dealer
Sales and Service Agreement,” and stated that the “heart” of the agreement concerned  the  “Sales  of
Toyota Products to Dealers” (section VI), and “Promoting and Selling Toyota  Products”  (section  X).
Old Country Toyota, 966 F. Supp. at 169. Most of the  agreement,  according  to  the  federal  court,
reflected the intent to secure a continuum of sales–first from Toyota to the dealer, then on  to  the
public–and the fact that the dispute concerned Toyota’s allocation of vehicles  to  be  purchased  by
the dealer “underscore[d] that intent.” Old Country Toyota, 966 F. Supp. at 169.  The  federal  court
determined that the “unit allocation provision” in the agreement contained the core attributes  of  a
requirements contract (see 810 ILCS 5/2–306  (West  2000)),  under  which  Toyota  agreed  to  supply
vehicles to the dealer in the quantities and types ordered, subject to available supply. Old  Country
Toyota, 966 F. Supp. at 169. Finally, the  federal  court  determined  that  the  service  and  other
provisions in the agreement were collateral to the primary  purpose  of  facilitating  sales  between
Toyota and the dealer. The court stated:
      “Other than sales  and  sales  promotions,  the  Agreement’s  substantive  provisions  concern
      premises maintenance, accounting methods, maintenance of net  working  capital,  service,  and
      display of Toyota marks. The premises maintenance and accounting provisions  are  housekeeping
      matters with little bearing on the Court’s analysis. The Agreement does not  actually  address
      the only substantive matter not related to sales–the maintenance  of  net  working  capital–at
      all; the parties are directed to address that issue in a separate Working  Capital  Agreement.
      The trademark provision merely grants Old Country [the dealer] the right  to  use  the  Toyota
      mark, and then only in connection with ‘selling’  or  ‘offering  for  sale’  Toyota  products.
      [Citation.] Though the service provisions are substantial, their  overarching  purpose  is  to
      ‘protect the interests’ [citation] and ‘secur[e] and maintain[ ] the goodwill’  [citation]  of
      the buying public. Again, this is at bottom the language of sales.” Old Country Toyota, 966 F.
      Supp. at 170.
      We agree with the analysis of the federal court and similarly conclude  that  the  1980  dealer
agreement at issue in this litigation is governed by article 2 of the  UCC.  Accordingly,  the  four-
year limitations period set forth in section 2–725 applies to plaintiff’s contract claim.
      In an attempt to avoid the effect of a four-year  limitations  period,  plaintiff  argues  that
defendants’ wrongful allocations under the 1980 agreement should be considered one  breach  that  did
not become actionable until the  contract  expired  in  1986.  In  effect,  plaintiff  advocates  the
application of a “continuous breach” rule, not unlike the “continuing violation”  rule  on  which  it
also relied. The only authority cited by plaintiff is Berg & Associates, Inc. v. Nelsen Steel &  Wire
Co., 221 Ill. App. 3d  526,  532  (1991).  Berg,  however,  stands  only  for  the  proposition  that
construction contracts are  typically  considered  a  “single  endeavor”  and  that  the  statute  of
limitations for claims under the contract does not begin to  run  until  the  endeavor  is  complete,
rather than on the date the monetary installments are due on the contract. Berg, 221 Ill. App. 3d  at
532. The instant case does not involve a construction contract.
      Based on the foregoing, we conclude that any breach of the  1980  agreement  occurring  outside
the four-year UCC limitations period was  time-barred,  and  the  trial  court  erred  by  permitting
evidence of claims outside the four-year period.

                                    IV. Denial of Summary Judgment
      We next consider defendants’ contention that the trial court erred in denying their motion  for
summary judgment based on a mutual release of liability provision contained in  the  1986,  1987  and
1988 dealer agreements. The appellate court determined that the  release  issue  involved  a  factual
dispute and that the trial court’s denial of summary judgment merged with the judgment order and  was
not appealable. 316 Ill. App. 3d at 234.
      As a general rule, when a motion for summary judgment  is  denied  and  the  case  proceeds  to
trial, the denial of summary judgment is not reviewable on appeal because the result of any error  is
merged into the judgment entered at trial. See Labate v. Data Forms, Inc., 288 Ill. App. 3d 738,  740
(1997); People v. Strasbaugh, 194 Ill. App. 3d 1012, 1016 (1990);  Gaskin  v.  Goldwasser,  166  Ill.
App. 3d 996, 1013 (1988). The rationale for this rule is that review of the  denial  order  would  be
unjust to the prevailing party, who obtained a judgment after a more  complete  presentation  of  the
evidence. Strasbaugh, 194 Ill. App. 3d at 1016-17, quoting In re Marriage of Adams, 174 Ill. App.  3d
595, 607 (1988). Defendants contend, however, that their summary judgment motion  presented  a  legal
issue for determination by the court, rather than a factual issue for determination by the jury,  and
that under these circumstances, review of the denial of summary judgment is appropriate. See  Battles
v. La Salle National Bank, 240 Ill. App. 3d 550, 558 (1992).
      In their summary judgment motion, defendants argued  that  plaintiff  had  released  defendants
from all claims pursuant to section XXIII of the 1986,  1987  and  1988  dealer  agreements.  Section
XXIII provides that the parties release each other “from any and all  claims,  causes  of  action  or
otherwise that it may have against the other for money  damages  arising  from  any  event  occurring
prior to the date of execution of th[e] Agreement.” Significantly, section  XXIII  also  states  that
“the release does not extend to claims which either party does not  know  or  reasonably  suspect  to
exist in its favor at the time of execution of th[e] Agreement.”
      Whether plaintiff knew or should have  reasonably  suspected  that,  at  the  time  the  dealer
agreements were executed, it had a claim against defendants was an issue of  fact.  Accordingly,  any
error in the denial of defendants’ summary judgment motion was merged into the trial  result  and  is
not reviewable on appeal. See Labate, 288 Ill. App. 3d at 740; Strasbaugh, 194 Ill. App. 3d at  1016;
Gaskin, 166 Ill. App. 3d at 1013.

                                              V. Damages
      Defendants next argue that plaintiff failed to prove, with a reasonable  degree  of  certainty,
that it sustained any  financial  losses  or  lost  profits  due  to  defendants’  conduct  and  that
defendants are entitled to entry of judgment in their favor.  Alternatively,  defendants  argue  that
they are entitled to a new trial on damages. Defendants submit  several  bases  for  their  argument,
each of which the appellate court rejected. Before considering defendants’  several  contentions,  we
briefly review the testimony of plaintiff’s damage experts.
      Plaintiff’s principal damage expert, Dr. Lyman  Ostlund,  testified  regarding  four  different
damage models. In the first model, Ostlund sought to demonstrate that defendants’ vehicle  allocation
system, which defendants described to plaintiff as  a  “turn  and  earn”  system,  did  not  in  fact
function as a “turn and earn” system. According to Ostlund, although  defendants’  communications  to
dealers frequently referenced the need to increase their “turnover  rate”–a  concept  imbedded  in  a
“turn and earn” system–there was no relationship between the extent to which a  dealer  succeeded  in
having a high average turnover rate and the extent to which the dealer had a  strong  positive  sales
trend over time. If the allocation system was functioning as a “turn and earn”  system,  there  would
have been a strong statistical relationship between a dealer’s turnover rate and sales growth.  Based
on a 25-dealer sample  from  the  Chicago  region,  Ostlund  saw  no  relationship  between  the  two
variables. Ostlund calculated the  number  of  vehicles  plaintiff  would  have  been  allocated,  if
defendants’ allocation system had functioned as a “turn and earn” system, and  compared  that  number
to plaintiff’s actual allocation. The  difference,  which  Ostlund  termed  “lost  units,”  was  then
converted into lost profits.
      The second damage model was tied to plaintiff’s contention that there was a shortage of  Toyota
vehicles during the 1980s due to import restrictions under the VRA. Ostlund agreed  that  a  shortage
existed. Where a shortage of vehicles  existed,  vehicles  were  to  be  allocated,  under  the  1980
agreement, “principally on the basis of sales  performance  during  the  most  recent  representative
period of adequate supply,” and under later agreements, in a “fair  and  equitable  manner.”  Ostlund
determined that the “most recent representative period  of  adequate  supply”  was  the  period  June
1980–when the 1980 dealer agreement became effective and plaintiff moved into a new  facility–through
March 1981–when the VRA became effective. Ostlund determined  that  during  this  period  plaintiff’s
sales of 423 units represented 1.14% of Chicago region sales. Assuming plaintiff would have  achieved
the same 1.14%  of  Chicago  region  sales  in  subsequent  years  if  defendants  had  allocated  an
appropriate number of vehicles to plaintiff, Ostlund determined  the  number  of  vehicles  plaintiff
should have been allocated and compared that figure to the actual allocation.  The  lost  units  were
then converted into lost profits.
      The third damage model was  described  as  a  “penetration  rate”  model  and  was  related  to
plaintiff’s contention that it should have been treated comparably  to  the  Toyota  dealers  in  St.
Louis, Missouri. Expert witness  James  Little  testified  that  Toyota  dealers  in  the  St.  Louis
“Metropolitan Statistical Area,” which includes Belleville, Illinois, are part of  a  “geographically
integrated market” and that there was no economic  or  business  logic  in  placing  dealers  on  the
Illinois side in a different administrative  region  than  the  dealers  on  the  Missouri  side.  In
addition, Ostlund testified that Toyota dealers on the other side of the  river  in  the  “St.  Louis
Metro” area, as defined by Toyota, received a higher level supply of vehicles, resulting in a  higher
penetration rate within the import vehicle market. According to Ostlund, if more  vehicles  had  been
allocated to plaintiff, i.e., if defendant had been treated comparably  to  the  St.  Louis  dealers,
then it is reasonable to assume that the same penetration rate would have occurred in the  Belleville
market as occurred on average on the Missouri side. In his third  damage  model,  Ostlund  calculated
the penetration rate in the “St. Louis Metro” for each of  the  years  in  question,  and  calculated
plaintiff’s expected allocation of vehicles based on achieving  the  same  penetration  rate  in  the
Belleville market.  The  lost  units–the  difference  between  the  expected  allocation  and  actual
allocation–were then converted into lost profits.
      The fourth and final damage model was based on the concept of an order system, which  plaintiff
contended was the system required under the 1980 dealer agreement, in the event the jury found  there
was no shortage of Toyota vehicles. Through the fourth damage model, Ostlund  calculated  the  number
of vehicles plaintiff would have ordered and sold if an order system had  been  in  place.  The  lost
units were again converted into lost profits.
      Under each model, lost profits were calculated by multiplying the  number  of  lost  units  for
each year at issue by the contribution margin per unit. The  contribution  margin  was  derived  from
data contained in plaintiff’s financial  statements,  and  represented  the  difference  between  the
customer price and the dealer price, adjusted for plaintiff’s variable and fixed expenses,  including
sales  commissions,  delivery  expenses,  advertising,  inventory  maintenance,  personnel  training,
freight, supplies, salaries, payroll taxes, employee benefits, rent, utilities, and  over  two  dozen
other items. That figure was then adjusted to reflect the extent to which  additional  profits  would
have reduced plaintiff’s borrowing. The four models resulted  in  damage  calculations  ranging  from
$5,014,201 for the turnover model, to $6,818,506 for the order model. In addition, each damage  model
contained a separate damage calculation based on the assumption that plaintiff would have  reinvested
additional profits into the business. Ostlund’s reinvestment calculation produced a range of  damages
significantly higher: $6,327,434 to $11,119,872.
      In addition to the expert testimony of Ostlund and Little, computer  consultant  Robert  Benson
testified regarding defendants’ allocation system. Benson testified that the computer  program  under
which allocations were made was a parameter-based system. He identified  25  parameters  which  could
affect an allocation. Although Benson testified that the system could be  used  in  a  discriminatory
way, he could not determine whether, in fact, it was used to discriminate against  plaintiff.  Benson
further testified, however, that his inability to determine whether discriminatory use  occurred  was
the result of the lack of an “audit trail.” An audit trail would have allowed  an  allocation  result
to be traced back. In other words, of the 25 parameters which could be adjusted and manipulated  with
any allocation, it was impossible  to  determine  how  the  parameters  were  set  for  a  particular
allocation. Benson opined that, from a resource allocation perspective, it was unusual to  have  this
much ability to manipulate an allocation system and also unusual that no audit trail existed.
      The jury awarded plaintiff $2.5 million on its breach of contract claim, and $2.25  million  on
plaintiff’s claim under the Act.
      Defendants first maintain that plaintiff’s experts “admitted” that  they  could  not  establish
that defendants’ conduct caused any damage to plaintiff,  and  that  plaintiff’s  experts  could  not
quantify the number of vehicles plaintiff allegedly lost as a  result  of  any  act  or  omission  by
defendants. Thus, defendants argue that plaintiff’s evidence of  damages  was  pure  speculation.  We
disagree.
      The record does not support  defendants’  characterization  of  the  testimony  of  plaintiff’s
experts. Although computer consultant Benson could not conclude that the allocation program had  been
used in a discriminatory fashion, the plain thrust  of  Ostlund’s  testimony  was  to  the  contrary.
Further, Ostlund quantified plaintiff’s damages under each of his  four  damage  models,  translating
lost units into lost profits. That there  is  some  uncertainty  as  to  the  accuracy  of  Ostlund’s
projections is not fatal to plaintiff’s claims.
      Lost profits, by their very nature, will always be uncertain to some extent  and  incapable  of
calculation with mathematical precision. Midland Hotel Corp. v. Reuben H. Donnelley Corp.,  118  Ill.
2d 306, 315-16 (1987). For this reason, the law does not require that lost  profits  be  proven  with
absolute certainty. Rather, the evidence need only afford a reasonable basis for the  computation  of
damages which, with a reasonable of degree of  certainty,  can  be  traced  to  defendant’s  wrongful
conduct. Midland Hotel, 118 Ill.  2d  at  315-16.  Defendants  should  not  be  permitted  to  escape
liability entirely because the amount of the damage they have caused is uncertain. To do so would  be
to immunize defendants from the consequences of their wrongful conduct. See Vendo Co. v.  Stoner,  58
Ill. 2d 289, 310 (1974).
      Defendants also contend that plaintiff’s submission  of  eight  different  damage  awards  (two
different awards under four different models) demonstrates  the  speculative  nature  of  plaintiff’s
damage claim. According to defendants,  “[t]here  cannot  be  eight  different  ways  of  calculating
‘actual’ damages for the same injury with reasonable certainty.”
      We agree that each damage model calculated damages for the  same  general  injury–lost  profits
due to improper vehicle allocations. Plaintiff, however, presented more  than  one  theory  regarding
the allocations. Each damage model involved a different theory and, as discussed  above,  involved  a
different factual finding by the jury. Thus, the mere fact  that  eight  different  potential  awards
were submitted to the jury  does  not,  under  the  circumstances  of  this  case,  demonstrate  that
plaintiff’s damages were speculative.  Rather,  we  agree  with  the  appellate  court  that  because
different theories were involved, it was appropriate to submit different estimates of damages to  the
jury. See Arch of Illinois, Inc. v. S.K. George Painting Contractors, Inc., 288 Ill.  App.  3d  1080,
1082 (1997) (“The determination of which measure of damages to apply is usually a  question  for  the
jury”); Hills of Palos Condominium Ass’n v. I-Del, Inc., 255 Ill. App. 3d 448, 470-71  (1993)  (“only
the jury could determine which measure of damages to apply  because  the  alternative  measure  could
only be applied after a factual finding ***”); John Morrell & Co. v. Local Union 304A of  the  United
Food & Commercial Workers, 913 F.2d 544, 559 (8th Cir. 1990) (trial court did not err  in  permitting
expert to discuss eight damage models producing a range of lost  profits  from  $20  million  to  $35
million because the expert explained the different assumptions upon which each model was premised).
      Defendants  also  contend  that  there  was  no  historical  basis  for  certain  of  Ostlund’s
assumptions regarding the level of sales plaintiff would have achieved  under  the  different  damage
models, and that Ostlund’s use of similar  assumptions  has  been  rejected  by  another  court.  See
Thoroughbred Ford, Inc. v. Ford Motor Co., 908 S.W.2d 719 (Mo. App. 1995). In Thoroughbred Ford,  the
Missouri Court of Appeals held  that  the  plaintiff  dealership  failed  to  prove  with  reasonable
certainty that any damage occurred due to Ford Motor Company’s  alleged  misrepresentations  that  it
would relocate the dealership. In so  doing,  the  court  of  appeals  rejected  Ostlund’s  testimony
regarding lost profits at the new location because a  Ford  dealership  had  never  existed  at  that
location and there was no rational way to estimate anticipated future  profits  of  the  hypothetical
dealership. Thoroughbred Ford, 908 S.W.2d at 735-36. The  present  case,  unlike  Thoroughbred  Ford,
does not involve a  hypothetical  dealership.  Further,  the  record  reveals  that  the  assumptions
underlying Ostlund’s damage models were tested thoroughly on  cross-examination,  and  challenged  by
defendants’ own expert witnesses.
      Defendants argue that plaintiff also failed to establish damages with reasonable  certainty  in
that plaintiff failed to consider the numerous intersecting factors that affect  the  performance  of
an automobile dealership in general and that affected  plaintiff’s  performance  in  particular.  See
Midland Hotel, 118 Ill. 2d at 317. Ostlund testified, however, that his turnover model  captured  the
performance of plaintiff, because it reflected what the dealership should have received in  terms  of
vehicle allocations, commensurate with the dealership’s actual  performance,  i.e.,  its  ability  to
turn the product. Ostlund further testified that plaintiff’s actual performance was reflected in  the
contribution margin which considered what this dealer would make, if it sold one more unit, based  on
how it operates. That defendants are not in agreement with Ostlund’s conclusions  does  not  persuade
us that plaintiff’s damage evidence was unduly speculative.
      Finally, defendants argue that Ostlund’s “reinvestment theory” was a  thinly  veiled,  improper
attempt  to  secure  prejudgment  interest  and  inflate  its  claimed  damages.  See  Department  of
Transportation v. New Century Engineering & Development Corp., 97 Ill.  2d  343,  353  (1983)  (“this
court has consistently held that the right to interest must be found  in  the  contract  between  the
parties or in the statute”); Sterling Freight Lines, Inc. v. Prairie Material Sales, Inc.,  285  Ill.
App. 3d 914, 921 (1996) (plaintiff’s attempt  to  adjust  lost  profits  award  by  an  “inflationary
factor” was improper attempt to secure prejudgment interest). Plaintiff does not dispute that  it  is
not entitled to prejudgment interest. Rather, plaintiff maintains that  Ostlund  merely  provided  an
alternative damage award under each model based on the assumption that, had  plaintiff  received  all
the vehicles to which it was entitled, plaintiff would have reinvested any additional profits in  the
dealership. Ostlund made this assumption, however, despite knowledge  that,  historically,  plaintiff
had not reinvested all of its  profits  in  the  dealership.  Further,  Ostlund  testified  that  his
reinvestment theory took into account “the time value of money” and that he used  the  bank  rate  of
interest as the projected rate of return. Based  on  this  record,  we  agree  with  defendants  that
Ostlund’s alternative damage awards based on his reinvestment  theory  was  prejudgment  interest  in
another guise and should not have been submitted to the jury.
      We also agree with the appellate court, however, that any error did not rise to  the  level  of
reversible error. “New trials can be ordered only when the evidence improperly  admitted  appears  to
have affected the outcome. *** While we would like all trials to be conducted error free,  no  useful
purpose would be served by granting a new trial when the record  reveals  that  the  errors  did  not
change the result reached by the jury.”  J.L.  Simmons  Co.  ex  rel.  Hartford  Insurance  Group  v.
Firestone Tire & Rubber Co., 108 Ill. 2d 106, 115 (1985). Ostlund was  asked,  on  cross-examination,
to recalculate the damage awards, but without taking into account reinvestment of profits  and  other
items defendants questioned. The recalculation produced a  damage  range  of  $2.1  million  to  $3.7
million. The jury awards of $2.25 million and $2.5 million are  each  within  that  range.  Moreover,
they  do  not  approach  the  $6.3  million  minimum  award  under  Ostlund’s  reinvestment   theory.
Accordingly, we cannot conclude that the improper admission of this evidence affected the outcome  of
the trial. Even if it could be said that Ostlund’s  reinvestment  theory  improperly  influenced  the
jury’s damage award, as discussed below, this matter will be remanded to the circuit court for a  new
hearing on damages. We are confident that this  error–whether  harmless  or  not–will  not  recur  on
remand.

                                      VI. New Hearing on Damages
      Having determined that no issue raised by defendants requires reversal of the judgment  in  its
entirety, we return now to the issue of whether it is appropriate to remand this  matter  for  a  new
trial on damages alone, as defendants suggest. A court may order a new trial solely on the  issue  of
damages “where the damage issue is so separable and distinct from  the  issue  of  liability  that  a
trial of it alone may be had without injustice.” Paul Harris Furniture Co. v. Morse, 10 Ill.  2d  28,
46 (1956); see  also  Robbins  v.  Professional  Construction  Co.,  72  Ill.  2d  215,  224  (1978).
Notwithstanding some of the complexities of this case,  we  believe,  based  on  our  review  of  the
record, that the issue of damages is severable from the issue of liability. We therefore remand  this
matter to the circuit court for a new trial solely on the  issue  of  damages.  Consistent  with  our
discussion above, any damage award is limited  to  the  four-year  period  prior  to  the  filing  of
plaintiff’s complaint on August 8, 1989.




                                              CONCLUSION
      For the foregoing reasons, we affirm in part and reverse in part the judgments of  the  circuit
and appellate courts and remand this matter to the circuit court for further proceedings.

                                                              Judgments affirmed in part and reversed
                                                             in part; cause remanded with directions.

      JUSTICE FREEMAN, dissenting:
       The issue raised in this case is simply a question as to how the limitation  period  contained
in the Motor Vehicle Franchise Act (Franchise Act) (815 ILCS 710/14 (West 1992)) is to be  construed.
We are asked to determine whether that  limitation  period  may  be  tolled  by  continuing  acts  of
capricious allocation or continuing illegal modifications of dealer agreements. The  trial  judge  in
this case mistakenly believed that the period could be tolled in  that  manner.  Unfortunately,  that
erroneous ruling affected, detrimentally, the manner in which the parties tried the  case.  In  light
of that fact, I do not believe that defendants have changed  their  position  on  appeal,  nor  do  I
believe that plaintiff abandoned its fraudulent concealment position. In my view, the errors made  by
the circuit court necessitate a remand for a new trial in its entirety, and not just for damages,  as
the court today concludes. I therefore respectfully dissent.

                                          Factual Background
      The dispute at issue in this case grew from a  single-count  complaint  for  injunctive  relief
filed by plaintiff against defendants on August 8,  1989.  Plaintiff  is  a  Toyota  dealership,  and
defendants are Toyota distributors. Plaintiff sought,  pursuant  to  the  Franchise  Act,  to  enjoin
defendants from allowing a competing a dealership to open in nearby Collinsville.
      Plaintiff amended its complaint in January 1991 to include  a  breach  of  contract  claim  for
damages in addition to the injunctive relief previously sought. Plaintiff alleged that, on  or  about
February 12, 1975, it entered into a written Toyota “Dealer Sales  and  Services  Agreement”  with  a
predecessor to defendants. According to plaintiff, the 1975 agreement established  plaintiff’s  right
to sell and service motor vehicles in addition to related parts and accessories. The  agreement  also
included an allocation provision for the distribution of vehicles to the  dealership.  At  some  time
during the fall of 1978 or the winter of 1979, defendants came into existence and  assumed  liability
of the predecessor. Plaintiff claimed that from at least January 22, 1979, through June 1, 1986,  the
dealership agreement between defendants and plaintiff contained the same “unit allocation”  provision
as set forth in the 1975 agreement. Plaintiff alleged that defendants breached their agreement  with,
and their representations and promises to, plaintiff in that they failed to provide  and/or  allocate
Toyota products to plaintiff either in the quantities required under the allocation provision  or  as
defendants orally represented and promised to plaintiff.
      After the original count for  injunctive  relief  was  voluntarily  dismissed  with  prejudice,
defendants moved to dismiss the remaining breach of contract claim, arguing that it was  time-barred.
Defendants asserted that the action was governed by the  Uniform  Commercial  Code  (UCC)  (810  ILCS
5/2–725 (West 1992)) because a dealership contract such as the one at issue is  a  contract  for  the
sale of goods. As such, the four-year statute of limitations contained in the UCC acted  to  bar  the
claim.
      The circuit court had not ruled on defendants’ motion to dismiss  before  plaintiff  filed  yet
another amended complaint. This complaint contained three counts. The first count was for  breach  of
contract and essentially mirrored the count contained  in  the  first  amended  complaint.  Plaintiff
alleged that from January 29, 1979, through June 1, 1986, defendants failed to  provide  or  allocate
Toyota products to plaintiff in such quantities as required under the  allocation  provision  of  the
parties’ agreement. Moreover, plaintiff alleged that defendants fraudulently concealed their  actions
from plaintiff and plaintiff did not discover those actions until approximately the fall of 1990.
      In count  II,  plaintiff  alleged  that  defendants  interfered  with  plaintiff’s  prospective
economic advantage. In count III, plaintiff  alleged  that  defendants  violated  section  4  of  the
Franchise Act. According to plaintiff, from January 22,  1979,  through  June  1,  1986,  defendants’
allocation  of  motor  vehicles  to  plaintiff  was  arbitrary,  capricious,  in   bad   faith,   and
unconscionable, all  in  violation  of  the  Franchise  Act.  In  addition,  plaintiff  alleged  that
defendants concealed their arbitrary and capricious allocation system from plaintiff’s  knowledge  so
that plaintiff was unable to discover its entitlement to bring the cause of action until the fall  of
1990.
      On the same day that it filed its second amended  complaint,  plaintiff  filed  a  response  to
defendants’ outstanding motion  to  dismiss  the  amended  complaint.  In  that  response,  plaintiff
maintained that the UCC did not apply  to  its  claim  of  breach  of  contract.  The  circuit  court
eventually ruled as a matter of law that the breach of contract claim was not governed  by  the  UCC;
rather, the 10-year statute of limitations was applicable. The circuit  court  also  found  that  the
amended complaint related back to the first complaint filed in August 1989.
      Defendants thereafter filed a  second  motion  to  dismiss,  in  which  they  reiterated  their
contention that the four-year limitation contained in the UCC  applied  to  the  breach  of  contract
claim. Thus, defendants contended that even if the claim did relate back to the filing  date  of  the
original complaint (August 8, 1989), plaintiff was foreclosed from asserting breaches  that  occurred
prior to August 8, 1985. In addition, defendants argued that the question of  fraudulent  concealment
was irrelevant because under the UCC, lack of  knowledge  does  not  serve  to  toll  the  limitation
period.
      As to count III, which alleged Franchise Act violations, defendants argued that section  14  of
the Act contains a four-year limitation period  which  begins  to  run  after  the  cause  of  action
accrues. According to count III of the complaint, the last allocation alleged by  plaintiff  occurred
on or before June 1, 1986. Because plaintiff first asserted the claim  more  than  four  years  after
June 1, 1986 (July 20, 1992), the claim was barred in its  entirety.  Defendants  also  claimed  that
plaintiff failed to allege any facts showing fraudulent concealment. For  these  reasons,  defendants
argued that plaintiff was not entitled to relief under the Franchise Act.
      In response, plaintiff repeated its contention that the breach of contract claim  was  governed
by the 10-year statute of limitations. As to the Franchise Act violation,  plaintiff  contended  that
the claim was not time-barred due to the fact that defendants’  conduct  consisted  of  a  continuing
violation. Plaintiff contended that, under that doctrine, the limitations period began  to  run  upon
the cessation of the conduct. As a result,  the  claim  was  not  time-barred.  In  the  alternative,
plaintiff argued that defendants’ fraudulent conduct tolled the four-year limitation  period  because
defendants’ actions prevented plaintiff from discovering the violations until 1990.
      In ruling on the motion, the circuit court first found that all the claims related back to  the
date the original complaint was filed, August 9, 1989. Moreover, the court found that  plaintiff  had
alleged a continuing course of conduct and as matter of law “any Statute of Limitations  period  runs
from the date of the cessation of said continuous conduct.” As a result, the claims  were  not  time-
barred. This analysis applied to all claims, including those brought under the Franchise Act.

                                               Analysis
      The foregoing procedural history of this dispute reveals that defendants have  long  maintained
that (i) plaintiff’s Franchise Act claim is time-barred  and  (ii)  plaintiff’s  breach  of  contract
claim was governed by the statute of  limitations  contained  in  the  UCC.  These  contentions  were
repeatedly rejected by the trial judge. The record also reveals  that  plaintiff  alleged  fraudulent
concealment in its complaint and establishes that plaintiff knew of its statutory duty  of  pleading,
at least at one point in the early stages of the litigation. Indeed, the trial  judge’s  ruling  that
the continuing violation doctrine applied to the violations at issue caused plaintiff to abandon  its
effort to show how defendants had fraudulently concealed the violations of the  Franchise  Act  until
1990.
      Notwithstanding the above, the court today implies that defendants have changed their  position
on appeal and thus have waived their argument. See slip op. at 4. I do not believe  that  defendants’
position before this court is contrary to their position at trial. Defendants maintain here, as  they
did below, that plaintiff brought this the action too late to recover  statutory  damages  under  the
Franchise Act and too late to recover for any alleged breach of the dealership agreements  under  the
UCC. In fact, the court agrees with defendants to an extent, in holding that the  trial  judge  erred
in calculating the limitations period in both respects. Thus, there is simply no  reason  to  discuss
principles of waiver here nor is there anything  about  defendants’  argument  that  “implicates  the
subject matter jurisdiction of the circuit court.” Slip op. at 5.
      We granted leave to appeal in this case in order to decide  whether  the  continuing  violation
doctrine could be applied to actions brought under the Franchise Act. The question  concerns  whether
the language of section 14 of the Franchise Act is consistent with the  policy  considerations  which
underscore the continuing violation doctrine. I believe that the question is  a  fairly  narrow  one,
the resolution of which does not require the  court  to  expound  on  the  issue  of  subject  matter
jurisdiction. In addition to my belief that  the  court’s  discussion  (see  slip  op.  at  5-11)  on
jurisdiction is unnecessary, I also believe that it is wrong. The  questions  regarding  jurisdiction
were answered in this court’s opinion in In re M.M., 156 Ill. 2d 53 (1993). Today’s opinion,  at  the
very least, calls into question 30 years of  this  court’s  long-standing  precedent  and,  at  most,
flatly overrules that precedent. This is done despite the fact there is not any discernible  conflict
or confusion amongst the lower courts as to this matter nor is there any  other  reason  which  would
warrant this court to ignore stare decisis in the manner that it does. See Heimgaertner  v.  Benjamin
Electric Manufacturing Co., 6 Ill. 2d 152 (1955) (recognizing that doctrine of stare decisis  may  be
overturned only by a showing of good cause).
      Leaving aside the discussion about jurisdiction, I strongly disagree with the  court’s  holding
that the provisions in section 14 of the Franchise Act do not constitute an element of the  cause  of
action to be pled  and  proved  by  the  plaintiff,  but  act  rather  as  an  “ordinary  statute  of
limitations.” Slip op. at 14. I remind my colleagues in the majority that this  court  just  recently
reaffirmed the notion that the General Assembly is free to impose limitations and conditions  on  the
availability of relief under the statutory causes of actions that  it  creates.  In  re  Marriage  of
Kates, 198 Ill. 2d 156 (2001). Given that the Franchise Act provides automobile  dealerships  with  a
statutory cause of action against arbitrary and  unfair  allocations  made  by  distributors–a  claim
unavailable under our common law–it is not unreasonable that the legislature  chose  to  impose  time
requirements on the availability  of  this  legislatively  created  relief.  See,  e.g.,  Varelis  v.
Northwestern Memorial Hospital, 167 Ill. 2d 449, 454 (1995) (and  cases  cited  therein).  The  court
today appears to take the position that the changes that were wrought by the 1964 amendments  to  the
1870 Illinois Constitution did away with the legislature’s  right  to  impose  preconditions  to  the
statutory causes of actions that it creates. I disagree. Those changes did not in any way affect  the
legislature’s power to impose such limits or preconditions. See M.M., 156  Ill.  2d  at  75  (Miller,
C.J., concurring, joined by Bilandic, J.) We, as the highest court, have no  right  to  transform  an
element of the plaintiff’s case into an affirmative defense to be pled and proved by the defendant.
      Notwithstanding this court’s long-standing recognition of the legislature’s ability  to  impose
limits or preconditions upon the right to relief under a statutory cause of action, I do not  believe
that the plain language of the Franchise Act, as the court holds, compels  the  conclusion  that  the
four-year limitation period is an ordinary statute of limitation.  The  wording  of  the  statute  is
similar to language found in other legislatively created remedies. See, e.g., 235 ILCS  5/6–21  (West
2000); 740 ILCS 180/2 (West 2000). This court has construed  the  provisions  in  these  statutes  as
elements of the plaintiff’s case. Lowrey v. Malkowski, 20 Ill. 2d 280 (1960); Wilson v.  Tromly,  404
Ill. 307 (1949). I believe that the  same  result  should  obtain  here.  In  addition,  statutes  of
limitations that the legislature intends to be raised as affirmative defenses are  ordinarily  placed
by the General Assembly in the Code of Civil Procedure. See 735 ILCS 5/13–201 et  seq.  (West  2000).
Had the legislature intended for section 14 of the Franchise Act to serve as an affirmative  defense,
it would have added it to the limitations section of the Code of  Civil  Procedure,  particularly  in
light of the fact that this  court  has  historically  given  a  limitation  period  contained  in  a
statutory remedy a construction that places the burden on the plaintiff.
      Section 14 of the Franchise Act allows an aggrieved party to toll the four-year  limitation  if
it can establish that the alleged violations were concealed from the aggrieved party’s knowledge.  In
this case, plaintiff’s complaint alleged such conduct. However, the trial  court’s  ruling  that  the
section 14 limitation period was tolled by the continuing  violation  doctrine  made  the  fraudulent
concealment element of plaintiff’s claim irrelevant, and plaintiff, not  surprisingly,  presented  no
proof on the subject at trial. Nevertheless,  the  trial  court  allowed  recovery  even  though  the
statute’s requirement with respect to concealment was not  met.  Thus,  the  question  that  must  be
resolved here is whether the trial court was correct in tolling the four-year limitation  period  due
to the continuing violation doctrine. Defendants claim the court  erred  because  it  eliminated  the
concept of knowledge from the case. Plaintiff, on  the  other  hand,  argues  that  the  doctrine  is
applicable here under the facts of the case.
      The General Assembly enacted the Franchise Act in 1979 as part of its police power in order  to
promote, inter alia, service to consumers generally. 815 ILCS  710/1.1  (West  1992).  Under  section
4(d) of the Franchise Act, a motor vehicle distributor cannot “adopt, change, establish or  implement
a plan or system for the allocation and distribution of new motor vehicles to motor  vehicle  dealers
which is arbitrary or capricious or *** modify an existing plan  so  as  to  cause  the  same  to  be
arbitrary or capricious.” 815 ILCS 710/4(d)(1) (West 1992). Section 14 provides that
            “actions arising out of any provision of this Act shall be commenced within 4 years next
      after the cause of action accrues; provided,  however,  that  if  a  person  liable  hereunder
      conceals the cause of action from the knowledge of the person entitled to bring it, the period
      prior to the discovery of his cause of action by the person  entitled  shall  be  excluded  in
      determining the time limited for the commencement of the action.” 815 ILCS 710/14 (West 1992).
Thus, an aggrieved party has four years after the cause of action accrues to  bring  suit  under  the
Franchise Act, unless the violation was concealed.
      In my view, the statutory language makes clear that knowledge of the violation is essential  to
the time limitation contained in the  Franchise  Act.  That  the  sole  exception  to  the  four-year
limitation period is for concealment underscores the legislature’s desire that an action  be  brought
as soon as the person entitled to bring it has knowledge of the violation. An exception  based  on  a
theory of continuing violations takes the concept of knowledge out of  the  equation,  as  this  case
aptly demonstrates. “Where the language of a statute is clear and unambiguous, a court must  give  it
effect as  written,  without  ‘reading  into  it  exceptions,  limitations  or  conditions  that  the
legislature did not express.’ ” Garza v. Navistar International Transportation  Corp.,  172  Ill.  2d
373, 378 (1996), quoting Solich v. George & Anna Portes Cancer Prevention Center  of  Chicago,  Inc.,
158 Ill. 2d 76, 83 (1994).
      Moreover, had the legislature intended for continuing violations to serve as  an  exception  to
the four-year limitation period, it would have explicitly made it a part of the language  of  section
14. Our General Assembly has provided for such an exception to the limitation  periods  contained  in
several statutory causes of action.  See,  e.g.,  225  ILCS  425/9.5  (West  2000)  (“[a]  continuing
violation will be deemed to have occurred on the date when  the  circumstances  first  existed  which
gave rise to the alleged continuing violation”);  225  ILCS  457/120  (West  2000)  (“[a]  continuing
violation will be deemed to have occurred on the date when the circumstances last existed  that  gave
rise to the alleged continuing violation”). The absence of such language in section 14  reflects  the
General Assembly’s specific rejection of the doctrine as a basis for tolling  the  limitation  period
in Franchise Act cases. For these reasons, I agree with my colleagues in the majority that the  trial
court erred in applying the continuing violation doctrine to this case. Slip op. at  18.  However,  I
do not agree with their ultimate conclusion regarding the disposition of  this  case,  as  I  explain
below.
      As I read the court’s opinion, each improper allocation by  defendants  served  as  a  specific
violation of the Franchise Act. See slip op. at 18  (stating  that  “each  allocation  constituted  a
separate violation of section 4 of the Act, [with] each violation  supporting  a  separate  cause  of
action”). If this is so, I am confused by the court’s holding that  because  “each  allocation  would
have supported a separate cause of action, plaintiff may recover damages  for  the  four-year  period
prior to the filing of its complaint.” Slip op. at 18. Specifically, I  question  why  my  colleagues
are limiting plaintiff’s recovery to  the  four-year  period  prior  to  the  filing  of  plaintiff’s
complaint. If each allocation of Toyota products by defendants constituted a  separate  violation  of
the Franchise Act, plaintiff had, under the statute, four  years  from  the  date  of  each  improper
allocation to bring suit under the Franchise Act, unless it could show fraudulent  concealment.  Each
four-year “clock” began to run on the date  of  the  alleged  improper  allocations.  However,  under
section 14, each “clock” could be tolled if it could be shown that the person liable for the  conduct
“conceal[ed] the cause of action from the knowledge of the person entitled to  bring  it.”  815  ILCS
710/14 (West 1992). Plaintiff alleged in its second amended complaint that, from  January  29,  1979,
through June  1,  1986,  defendants’  allocation  of  motor  vehicles  to  plaintiff  was  arbitrary,
capricious, in bad faith, and unconscionable, all in violation of the  Franchise  Act.  In  addition,
plaintiff alleged that defendants concealed their arbitrary and  capricious  allocation  system  from
plaintiff’s knowledge so that plaintiff was unable to discover its entitlement to bring the cause  of
action until the fall of 1990. If, as the court holds, each allocation of  Toyota’s  products  served
to constitute a separate cause of action, i.e., the accrual of a cause of action, then under  section
14, plaintiff had four years from the date of each allocation to file  suit,  unless  prevented  from
doing so by fraudulent concealment. Thus, it is possible  that  plaintiff  can  pursue  recovery  for
alleged improper allocations prior to 1985. I fail to  see  why  any  potential  recovery  should  be
limited to the four-year period prior to the filing of plaintiff’s original  complaint.  The  court’s
remedy here is inconsistent with its premise that each allocation  serves  as  a  separate  cause  of
action.
      I believe that the trial judge’s erroneous application of  the  continuing  violation  doctrine
served to complicate this litigation. As noted, plaintiff, in its second amended  complaint,  alleged
that, because of defendants’ fraudulent concealment, it did not learn that it was entitled  to  bring
any statutory cause of action until the fall of 1990. After defendants challenged the  timeliness  of
the action, the circuit court ruled that plaintiff’s cause of action  under  the  Franchise  Act  was
timely filed as a matter of law. In so ruling, the circuit court  applied  the  continuing  violation
doctrine to this case with the  result  being  that  plaintiff’s  knowledge  of  the  violations  was
irrelevant. Thus, plaintiff had no reason to pursue its theory of fraudulent  concealment  at  trial.
Therefore, the erroneous ruling, in my  view,  prevented  plaintiff  from  proving  that  defendants’
fraudulent actions tolled the four-year limitation period for alleged violations  preceding  1985.  I
therefore cannot agree with the court’s conclusion that plaintiff “did  not  pursue”  the  theory  of
fraudulent concealment and abandoned it at trial. Slip op. at 17  n.2.  In  the  wake  of  the  trial
judge’s application of the continuing violation doctrine to this  case,  any  pursuit  of  fraudulent
concealment on plaintiff’s part was simply unnecessary.
      Due to the adverse effects of the trial judge’s ruling, defendants  were  also  harmed  because
they were unable to have the jury determine the question of when, if  ever,  plaintiff  knew  of  the
allegedly improper allocations. My review  of  the  trial  testimony  reveals  that  there  was  some
discrepancy as to when plaintiff,  through  its  representatives,  knew  of  the  improprieties  with
respect to the allocations, which presents a question of fact that can only be resolved by the  jury.
For these reasons, I am of the view that the trial judge’s erroneous pretrial rulings had an  adverse
effect on the litigation as a whole and that the correct approach here would be to remand the  matter
so that the case can be retried within the framework of the proper limitations periods. This  ensures
that both parties are allowed to present their theories of the case to the jury.  Parenthetically,  I
would note that in litigation such  as  this,  an  interlocutory  appeal  might  have  been  of  some
assistance to both the trial judge and the litigants in preventing the remand ordered today.  I  note
that the record contains an attempt by defendants for Rule 308 certification, a procedure which,  had
it been allowed, might have lessened  the  obfuscation  which  surrounded  the  construction  of  the
statute of limitations at issue. Suffice it to say, the circuit court’s  incorrect  ruling  that  the
continuing violation rule applied to this case caused much confusion as  to  proving  when  precisely
these alleged violations occurred.  It  resulted  in  an  absence  of  proof  concerning  plaintiff’s
knowledge of the alleged violations and defendants’ alleged  fraudulent  concealment  of  them.  This
view is only reinforced by this court’s holding that the circuit court  also  erred  in  finding  the
four-year UCC statute of limitations inapplicable to this action. Slip op. at 23. Time and  knowledge
were no longer issues in the trial that followed these rulings.
      After reviewing the record carefully, I cannot agree that a new trial on damages  is  all  that
is necessary to rectify these errors. As Justice Bilandic once noted while a member of our  appellate
court, “[a]fter a shirt or blouse is incorrectly buttoned, the solution is to unbutton it  completely
and start all over.” Morrey v. Kinetic Services, Inc., 133 Ill. App. 3d 1002, 1005 (1985).  The  same
must be said for the case at bar.

      JUSTICE McMORROW joins in this dissent.
-----------------------

     1Section 12 provides, inter alia, that certain disputes may be  submitted  to  arbitration.  815
ILCS 710/12 (West 2000). The provisions of section 12 are not at issue in this appeal.

     2The appellate court determined, and we agree, that plaintiff  did  not  pursue  his  fraudulent
concealment theory at trial. 316 Ill. App. 3d at 244. Thus, plaintiff’s  “discovery”  of  defendants’
wrongful conduct was not at issue.

     3The 1986, 1987, and 1988 agreements all provide that the agreement shall  be  governed  by  the
laws of the state where the dealer is located–Illinois.

