concurring in part and dissenting in part:
I concur with the majority’s conclusions on the following issues which defendants raised in their appeal from the judgment rendered at trial and the trial court’s order denying their post-trial motions: that the trial court did not abuse its discretion in refusing to allow evidence regarding the subsequent sales prices of certain condominium units; that plaintiffs’ jury instruction No. 20 was not improperly given to the jury; that the jury did not improperly fail to consider plaintiffs’ failure to mitigate damages when making its award; that the jury’s award was supported by the evidence; and that defendants waived the assertion that they were prejudiced when the trial court allowed plaintiffs to introduce certain evidence at trial which allegedly suggested that negligent acts were committed by defendants. I also agree with the majority’s finding on plaintiffs’ cross-appeal that the trial judge did not err in denying plaintiffs’ motion for attorney fees and costs.
I must dissent, however, from that portion of the majority opinion which affirms the findings of common law and statutory fraud against defendants. First, I believe that plaintiffs failed to show by clear and convincing evidence that defendants were guilty of fraud. Therefore, defendants were entitled to judgment notwithstanding the verdict on the common law fraud count and the judge erred in entering judgment in favor of plaintiffs under the Consumer Fraud Act. Second, I cannot agree with the conclusion that defendants were not prejudiced by the trial court’s refusal to give the jury an instruction on the "clear and convincing” standard. Defendants were clearly prejudiced by the failure to give such an instruction as illustrated by the fact that they were found liable for fraud where there was otherwise insufficient evidence to support such a conclusion. Finally, the majority’s decision to affirm the trial judge’s order dismissing defendants’ third-party complaint against the third-party defendants, Rabin LeNoble & Associates, Zorak Rabin, Daniel LeNoble, Hans Rosenow Roofing Co., and A. Christmann & Co., Inc., pursuant to section 2 — 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619 (now 735 ILCS 5/2 — 619 (West 1992))), on the ground that it was barred by the two-year construction statute of limitations, is contrary to the recently enacted amendment to section 13 — 204 of the Code of Civil Procedure, existing case precedent and common sense.
I. COMMON LAW FRAUD
Defendants’ liability for fraud was premised on the determination that they knew that the building had substantive defects when they sold units to plaintiffs and that they concealed this fact. Plaintiffs argued that defendants knew they could not correct the leaking problems and that all their efforts were really intended only to temporarily conceal the inherent structural defects in the building while they marketed units to unsuspecting buyers. In my opinion, however, this conclusion does not "hold water” and defendants were entitled to a judgment notwithstanding the verdict on the finding of common law fraud.
In order for a plaintiff to show that a misrepresentation rose to the level supporting a finding of common law fraud, plaintiff must demonstrate that (1) the false statement was one of material fact, (2) the defendant knew or believed that the statement was untrue, (3) the plaintiff believed the statement, relied on the statement and had a right to do so, (4) the defendant intended the plaintiff to act in reliance on the statement, and (5) plaintiff’s reliance on the statement led to his injury. (Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 48, 390 N.E.2d 393, 403.) The concealment or omission of a material fact also rises to the level of fraud if accompanied by scienter, deception and injury. (Dietrich v. Jones (1988), 172 Ill. App. 3d 201, 206, 526 N.E.2d 450, 454.) In other words, defendant must have concealed the material fact "with the intent to deceive under circumstances creating an opportunity and duty to speak.” (Wright v. Richards (1986), 144 Ill. App. 3d 450, 457, 494 N.E.2d 1269, 1274.) Although the intent to deceive may be shown by circumstantial evidence (Wright, 144 Ill. App. 3d at 457, 494 N.E.2d at 1274), all men are presumed honest and fraud must be proven "by such clear and convincing evidence that the mind is well satisfied the charge is true.” (Allensworth v. Ben Franklin Savings & Loan Association (1979), 71 Ill. App. 3d 1041, 1044, 389 N.E.2d 684, 687.) This standard requires proof greater than does the traditional civil standard of a preponderance of the evidence, but less than proof beyond a reasonable doubt. Munjal v. Baird & Warner, Inc. (1985), 138 Ill. App. 3d 172, 179, 485 N.E.2d 855, 861.
Whether the elements of fraud have been proven is a determination for the trier of fact which will not be disturbed unless contrary to the manifest weight of the evidence. (Munjal, 138 Ill. App. 3d at 179, 485 N.E.2d at 862.) A judgment is not against the manifest weight of the evidence, however, merely because there is sufficient evidence to support a contrary verdict or because the reviewing court, if it had been the trier of fact, would have reached a different conclusion. (Fleisher v. Lettvin (1990), 199 Ill. App. 3d 504, 509, 557 N.E.2d 383, 386.) The proper scope of inquiry is simply "whether there is sufficient credible evidence in the record to support the jury’s verdict.” (Dietrich, 172 Ill. App. 3d at 207, 526 N.E.2d at 454.) "Verdicts and judgments are only considered against the manifest weight of the evidence where a conclusion opposite to that reached by the jury is clearly evident or the jury’s verdict is palpably erroneous.” (Dietrich, 172 Ill. App. 3d at 207, 526 N.E.2d at 454.) In this case, the jury’s verdict on the issue of fraud cannot be sustained on any evidence in the record and is palpably erroneous.
The only place in the record to which plaintiffs cite in support of their contention that defendants knew that the subcontractors they hired to construct the buildings were not following the building plans and that they were not filling the collar joints with mortar was a portion of defendant Ray Adreani’s testimony. During cross-examination, plaintiffs’ counsel elicited the following testimony:
"PLAINTIFFS’ COUNSEL: And in fact you learned that in Building No. 4 that collar joint is not filled solid with mortar, right?
RAY ADREANI: That’s what you told me.
PLAINTIFFS’ COUNSEL: Is that the truth?
RAY ADREANI: Maybe it is in a couple of spots. Fine. Its [sic] hard to get the mortar all the way down 2 feet of block.” (Emphasis added.)
Contrary to plaintiffs’ assertions, this testimony does not support the conclusion that defendants knew the collar joint in building four was not filled solid with mortar. When asked whether he knew the collar joint was not filled solid with mortar, defendant responded, "That’s what you told me.” He did not say "yes.” His subsequent testimony that, "Maybe it is in a couple of spots,” was not an admission of knowledge of the fact. Defendant merely accepted plaintiffs’ counsel’s contention as possible, but did not say that he knew plaintiffs’ assertion to be the truth.
Additionally, no other evidence in the record even comes close to showing that defendants knew or believed that the building had inherent structural defects when they were selling the units. Nor can this knowledge be inferred from the problems with the buildings. Defendants were the developers and general contractors of the Washington Courte condominiums. As such, they subcontracted to others to design and construct the buildings. Frauenhoffer, plaintiffs’ own expert, testified that developers and general contractors customarily rely on architectural plans and that it is reasonable for a general contractor to do so. Additionally, the architectural plans, which called for all collar joints to be filled solid with mortar, were approved by the Village of Niles. (Although the letter from the Village of Niles building director specifically referred to building one, there was testimony in the record that the plans for all of the Washington Courte condominium buildings were identical.)
After several of the condominium buildings were constructed, cracks developed in the north wall of building one and there were incidents of water leaking problems in all the buildings. Although defendants apparently were slow in responding to complaints, they did take steps to correct the problems. After a meeting with the housing department of Niles in response to a complaint by the Building One Condominium Association, defendants agreed to apply "Camtex, which is the most effective and expensive product on the market, on the exterior north wall, and a possible solution to alleviate the problem.” The building director of the Village of Niles also wrote a letter to the Building One Condominium Association which stated that the cracked bricks in the north wall were not due to a construction fault, but that "due to settlements the brick in fact cracked allowing heavy rains to seep into the building and therefore caused the apartments to have some water damage.” The letter further asserted:
"Upon our inspection, we have found that the entire building meets with the approval of this department, the building commissioner, and the Village of Niles and that the building is structurally sound and conforms to the blueprints as well as the village codes.”
In late 1980, defendants hired Bruce Ciborowski to repair all the Washington Courte buildings by, inter alla, tuckpointing, waterproofing, and caulking. The cost of these repairs was approximately $30,000. The success of these repairs could not be determined, however, until the spring rains of 1981. Subsequently, during the spring rains of 1981, the water leaking problems continued. Defendants only undertook to make limited repairs during 1981. In late 1982, defendants contacted the roofing company, the architect and the mason in order to request their cooperation in remedying the water leakage problems. They also demanded that the mason reseal the buildings at his expense.
In November 1982, the Building Two Condominium Association requested that Jack Ribar, a structural engineer, investigate the water leakage problem and defendants agreed to hire Ribar to do so. Defendants informed building two that, due to cold weather, Ribar would commence his investigation in the spring and that they "would proceed to resolve this problem upon the advice of the engineer.” In the spring of 1983, the Building Four Condominium Association hired John Frauenhoffer, also a registered structural engineer, to investigate the water leakage problem.
On June 20, 1983, Ribar sent his preliminary findings to defendants. He stated that he had made nine inspections of building two since mid-November 1982. He also described the tests he had conducted and informed defendants of the tests he planned to conduct in the future in order to "pinpoint the major sources of water infiltration in this building.” Nowhere in the letter did Ribar raise the possibility or even intimate that the leaks were due to a structural defect in the building. At a building four association meeting on June 23, 1983, Frauenhoffer related his preliminary finding after two visits to the site that "there must be some structural defect inside that’s causing that much water to gain entrance that far into the wall.” Based upon Frauenhoffer’s preliminary conclusion, building four decided to file a lawsuit. On June 30, 1983, Washington Courte Condominium Association-Four filed its original complaint against defendants. Subsequently, on August 16, 1983, Ribar sent defendants his report in which he concluded that the building was defectively constructed as a result of faulty workmanship.
Based upon this evidence, it was not shown by clear and convincing evidence that defendants committed fraud by concealing their knowledge that the buildings were structurally unsound. Defendants had a right to rely upon the architectural plans and the fact that those hired to construct the buildings would follow the plans. The fact of water leakage and cracks in the outer walls of several buildings does not automatically lead to the conclusion that the buildings themselves were defective and that any attempts to correct the problems would be unsuccessful. In fact, after the leaks and cracks surfaced in building one, the Village of Niles conducted an investigation and concluded that the building was "structurally sound.” Additionally, Ribar, the structural engineer hired by defendants at the behest of the Building Two Condominium Association, did not conclude that the building was defective until two months after the litigation had begun. In his initial report in June, he did not even raise the possibility that the building was defective. Only Frauenhoifer concluded in his preliminary finding that building four "must be” structurally defective and this was just one week prior to the filing of plaintiffs’ complaint. Subsequently, after the complaint was filed, Frauenhoifer and his staff spent approximately 1,900 additional hours testing the condition of the building before Frauenhoifer could determine to a reasonable degree of engineering certainty the source of the problem. Clearly, the knowledge or belief that the building was structurally unsound cannot be attributed to the defendants at the time they were selling the units. The expert they hired did not even reach the conclusion that the cause of the problems was faulty workmanship until after the litigation had begun and after he had completed extensive tests over an 11-month period. Additionally, Frauenhoifer only came to his conclusion one week prior to the filing of the initial complaint in this case which was well after the last unit had been sold. Consequently, the determination that defendants committed fraud in concealing the structural defects in the building was not clearly evident and was against the manifest weight of the evidence.
I also do not believe that it is "clearly evident” that a finding of fraud can be supported by defendants’ failure to disclose to some potential buyers that there had been incidents of leakage in other units and buildings or by their assurances to other buyers that the problems were being repaired. Plaintiffs cite several cases in which homeowners have been found to have fraudulently represented to purchasers that water infiltration problems in their homes had been cured. (See Dietrich v. Jones (1988), 172 Ill. App. 3d 201, 526 N.E.2d 450; Munjal, 138 Ill. App. 3d 172, 485 N.E.2d 855.) In both cases, however, there was evidence in the records that the homes had experienced significant leakage problems over a number of years and the owners had been unable to correct the problems. In fact, the owners in these cases had ceased their attempts to fix the problems and, with the belief that the homes were in some manner structurally unsound, were concealing the problems in order to pass them off to unsuspecting purchasers. As the Munjal court stated, "[defendant’s] failure to disclose the full extent of the problem was an attempt to deceive plaintiffs in order to induce them to purchase the property for a value that did not include the defect.” Munjal, 138 Ill. App. 3d at 180-81, 485 N.E.2d at 863.
In light of the fact that defendants in the instant case had no reason to believe that the buildings themselves were structurally defective, they had no reason to believe that the measures being taken to control the leakage problems would be unsuccessful or that the leakage would affect the value of the units. Thus, plaintiffs failed to show that defendants knew or believed that their statements or omissions were untrue. Moreover, I do not believe that sufficient evidence was presented which tended to show that defendants made an effort to conceal water damage from either prospective purchasers or new owners. Mr. Pavoni, a plaintiff and a salesman of units in building four, testified that he was never told to deny water leakage problems and, at one point, was specifically told not to sell any unit with existing water damage. Consequently, defendants did not have a duty to disclose the possibility or fact of the leakage and that a finding of fraudulent concealment of these facts is not clearly evident. Therefore, defendants were entitled to a judgment notwithstanding the verdict on the common law fraud count.
II. STATUTORY FRAUD
I also believe that the trial court erred in finding a violation of the Consumer Fraud Act. The reasoning and conclusions I have set forth above equally apply in this case to preclude defendants’ liability under the Consumer Fraud and Deceptive Practices Act (the Act) (Ill. Rev. Stat. 1991, ch. 121½, par. 261 et seq. (now 815 ILCS 505/1 et seq. (West 1992))). The Act was intended to protect consumers against fraud, unfair methods of competition and unfair or deceptive acts or practices in the conduct of trade or commerce (Ill. Rev. Stat. 1991, ch. 121½, par. 261 et seq. (now 815 ILCS 505/1 et seq. (West 1992))), and section 2 of the Act (Ill. Rev. Stat. 1991, ch. 121½, par. 262 (now 815 ILCS 505/2 (West 1992))) was designed to provide broader protection for consumers than the common law action of fraud. (Harkala v. Wildwood Realty, Inc. (1990), 200 Ill. App. 3d 447, 453, 558 N.E.2d 195, 199.) As such, a plaintiff suing under the Act is not required to prove every element of common law fraud in order to recover. (Munjal, 138 Ill. App. 3d at 182, 485 N.E.2d at 864.) For example, under the Act, a plaintiff need not "show actual reliance nor diligence in ascertaining the accuracy of the misstatements.” (Munjal, 138 Ill. App. 3d at 182, 485 N.E.2d at 864.) Additionally, the good or bad faith of the seller is irrelevant (Munjal, 138 Ill. App. 3d at 182-83, 485 N.E.2d at 864; Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 495, 429 N.E.2d 1267, 1277), and a plaintiff can recover for intentional, negligent or even innocently made misrepresentations or omissions. Carl Sandburg Village Condominium Association No. 1 v. First Condominium Development Co. (1990), 197 Ill. App. 3d 948, 953, 557 N.E.2d 246, 250.
However, the Act "is not intended to be used as a vehicle for transforming nondeceptive and nonfraudulent statements or omissions into actionable ones.” (Kellerman v. Mar-Rue Realty & Builders, Inc. (1985), 132 Ill. App. 3d 300, 306, 476 N.E.2d 1259, 1263.) Consequently, not all innocent misrepresentations or omissions are actionable, but only those for which the law considers the seller to be culpable. (Gordon v. Dolin (1982), 105 Ill. App. 3d 319, 329, 434 N.E.2d 341, 349.) In other words, although the misrepresentation is made innocently in that the seller has no intent to deceive (Hoke v. Beck (1992), 224 Ill. App. 3d 674, 679, 587 N.E.2d 4, 8; Carl Sandburg Village, 197 Ill. App. 3d at 953, 557 N.E.2d at 250), the seller is still culpable under the Act because he has knowledge of the misrepresentation or omission or such knowledge can be attributed to him (see Hoke, 224 Ill. App. 3d at 679, 587 N.E.2d at 8) and the misrepresentation or omission is deceptive or unfair. (People ex rel. Hartigan v. Stianos (1985), 131 Ill. App. 3d 575, 581, 475 N.E.2d 1024, 1028.) The reason a seller will be liable under the Act for his misrepresentations or omissions even though he does not have an intent to deceive is because "the center of focus in such matters is not on the intent of the seller but, rather, on the effect that the unlawful conduct might have on the consumer.” Stianos, 131 Ill. App. 3d at 579, 475 N.E.2d at 1027.
In this case, defendants had a right to rely on the subcontractors to construct the buildings in conformance with the architectural plans. The plaintiffs were unable to show that defendants knew that the collar joints were not filled solid with mortar and, therefore, that the buildings were defective. Additionally, as stated above in the discussion of common law fraud, the fact of water leakage and cracks in several buildings is insufficient to attribute to defendants the knowledge that the buildings themselves were structurally unsound. The structural engineer hired by defendants did not conclude that the building was defective until two months after the litigation began and plaintiffs’ expert and his staff spent approximately 1,900 hours testing the condition of the building before he could conclude to a reasonable degree of engineering certainty the cause of the problem.
The failure to fill the collar joints solid with mortar is clearly a latent or hidden defect which could not be discovered through a normal inspection and defendants did not have a duty to undertake a complicated, lengthy and costly investigation for hidden or latent defects prior to selling the units. (See Harkala, 200 Ill. App. 3d at 454, 558 N.E.2d at 200.) Thus, I do not believe that defendants’ lack of knowledge of the defective nature of the building can be attributed to culpable, reckless or determined ignorance. (Hoke, 224 Ill. App. 3d at 679, 587 N.E.2d at 8; Crowder v. Bob Oberling Enterprises, Inc. (1986), 148 Ill. App. 3d 313, 316-17, 499 N„E.2d 115, 117-18.) The Act is intended to protect consumers from fraud and unfair or deceptive practices (Ill. Rev. Stat. 1991, ch. 121½, par. 261 et seq. (now 815 ILCS 505/1 et seq. (West 1992))) and not to allow recovery for non-fraudulent and nondeceptive statements or omissions. (Kellerman, 132 Ill. App. 3d at 306, 476 N.E.2d at 1263.) When a seller has made an untrue statement without knowledge of its falsity and without reckless or culpable ignorance, he has not committed common law or statutory fraud. He may ultimately be liable for breach of warranty or breach of contract, as is the case here, but he has not committed fraud.
III. "CLEAR AND CONVINCING” EVIDENCE INSTRUCTION
I recognize that, as a general rule, it is the duty of each party to tender to the court any desired jury instructions and that the decision whether to give the tendered instructions to the jury is within the trial court’s discretion. However, under the facts of this case, I believe defendants were prejudiced by the trial court’s refusal to give a jury instruction on the "clear and convincing” evidence standard.
There is a "real distinction” between the differing burdens of persuasion in different kinds of cases and, therefore, "it is essential that jurors receive a definition or description of the applicable burden of proof’ (Rikard v. Dover Elevator Co. (1984), 126 Ill. App. 3d 438, 441, 467 N.E.2d 386, 388) so long as the instruction would not mislead the jury. (In re Estate of Casey (1987), 155 Ill. App. 3d 116, 122, 507 N.E.2d 962, 966.) Otherwise, jurors may apply the wrong standard and improperly weigh the evidence to the "extreme prejudice of a litigant.” (Rikard, 126 Ill. App. 3d at 441, 467 N.E.2d at 388.) "Without basic instructions, each juror would be free to make his or her own interpretation of the law. Instructions provide jurors with a uniformity of approach in the application of the facts to the law.” Rikard, 126 Ill. App. 3d at 440, 467 N.E.2d at 387.
However, it has been suggested that the term "clear and convincing evidence” be left undefined because its definition is likely to mislead and confuse the jury. (Casey, 155 Ill. App. 3d at 122, 507 N.E.2d at 966.) There is no Illinois Pattern Jury Instruction which defines the "clear and convincing” standard and Illinois courts appear to have utilized as many definitions as there are attorneys to propose them. In P.A. Bergner & Co. v. Lloyds Jewelers, Inc. (1984), 130 Ill. App. 3d 987, 994, 474 N.E.2d 1256, 1261-62, rev’d on other grounds (1986), 112 Ill. 2d 196, 492 N.E.2d 1288, the appellate court catalogued a number of them and stated:
"[C]lear and convincing evidence has been variously defined as evidence which 'leave[s] the mind well satisfied [of the truth of a proposition]’ (Hotze v. Schlanser (1951), 410 Ill. 265, 269); evidence which 'strikes all minds alike as being unquestionable’ (Lines v. Willey (1912), 253 Ill. 440, 449); evidence which 'lead[s] to but one conclusion’ (Johnson v. Johnson (1953), 1 Ill. 2d 319, 324); 'more than a preponderance while not quite approaching the degree of proof necessary to convict a person of a criminal offense’ (In re Estate of Ragen (1979), 79 Ill. App. 3d 8, 14). There are also a number of cases which define clear and convincing evidence as proof which leaves no reasonable doubt in the mind of the trier of fact.”
However, although there is a plethora of "definitions” of the clear and convincing standard, it is universally accepted that the standard is properly described as more than a "preponderance” of the evidence, but less than the standard of "beyond a reasonable doubt.” Casey, 155 Ill. App. 3d at 122, 507 N.E.2d at 966; P.A. Bergner & Co., 130 Ill. App. 3d at 994, 474 N.E.2d at 1262.
In this case, defendant tendered the following two non-IPI jury instructions:
Defendant’s Instruction No. 1:
"Clear and convincing evidence means evidence which should leave no reasonable doubt in your mind concerning the truth of the matters at issue.”
Defendant’s Instruction No. 2:
"Clear and convincing evidence means evidence that produces in your mind an abiding conviction that the truth of the factual contentions are [sic] highly probable.”
The trial judge concluded that the term "clear and convincing evidence” was best left undefined and refused to give any definitional instruction.
Two cases which perfectly illustrate the problem with defining "clear and convincing” evidence are Casey (155 Ill. App. 3d 116, 507 N.E.2d 962) and P.A. Bergner & Co. (130 Ill. App. 3d 987, 474 N.E.2d 1256). In Casey, the appellate court held that the trial judge erred in instructing the jury that "clear and convincing evidence” was the degree of proof "which leaves no reasonable doubt in the mind [of] the trier of fact.” (Casey, 155 Ill. App. 3d at 122.) The Casey court reasoned that this definition was "misleading” and that "jurors applying this instruction are likely to be misled and erroneously apply the burden of proof applicable to a criminal case.” (155 Ill. App. 3d at 122.) On the other hand, the appellate court in Bergner held that the trial court did not err in defining clear and convincing evidence to the jury using reasonable doubt language. The Bergner court reasoned that this was a correct definition and whether to give such an instruction is within the trial judge’s discretion.
Although whether to give an instruction is within the discretion of the trial court, I believe that in this case the trial judge erred by failing to explain "clear and convincing evidence” to the jury. In Casey and the other cases brought to our attention on this issue, every claim presented to the finder of fact was to be decided under the "clear and convincing” standard. In this case, however, the jury was confronted with separate counts which needed to be decided under different burdens. Specifically, plaintiffs had the burden of proving their breach of warranty claims by a "preponderance of the evidence” while the fraud claims needed to be proven by the higher "clear and convincing” standard. The judge never instructed the jury, however, that clear and convincing evidence is a higher standard than the preponderance of the evidence. There is a "real distinction” between these burdens of persuasion, and the judge’s failure to explain this difference could seriously prejudice a litigant. I recognize that defendants did not tender such an instruction to the trial judge. However, in light of the fact that the jury was required to apply the "clear and convincing” standard to the fraud claim and, at the same time, decide several other counts under a lesser burden, I believe the trial judge had a duty to explain the difference in the burdens. Such an explanation was necessary in this case to ensure that the jury properly applied the facts to the law. Rikard, 126 Ill. App. 3d at 440, 467 N.E.2d at 387.
I must express my dismay at the fact that we can allow juries to decide issues which the law requires be proven by clear and convincing evidence without explaining this standard to them. Jurors are not "schooled” in the subtle differences in the legal burdens of persuasion which apply in different situations. Therefore, even accepting that "clear and convincing” is best left undefined, I cannot agree that it should be left undescribed. Although Illinois courts have not yet settled on a uniform definition of "clear and convincing evidence,” all courts agree that the standard is properly described as more than a "preponderance of the evidence” but less than the standard of "beyond a reasonable doubt.” In cases such as this where the plaintiffs’ burden of persuasion on their separate claims is different, an instruction which at least explains the distinction between these burdens must be given in order to assure that a jury does not apply its own interpretation of law to the extreme prejudice of a litigant. Additionally, I express my belief that such an instruction should be given in all cases where the standard to be applied to the facts is the "clear and convincing” standard irrespective of whether the jury is also deciding other issues under different burdens.
IV. DISMISSAL OF DEFENDANTS’ THIRD-PARTY ACTION
Finally, I must dissent from the majority’s finding that the trial court properly dismissed defendants’ third-party complaint against the third-party defendants, Rabin LeNoble & Associates, Zorak Rabin, Daniel LeNoble, Hans Rosenow Roofing Co., and A. Christmann & Co., Inc. (the Trades). The majority’s finding that defendants’ third-party action was barred by the two-year construction statute of limitations is contrary to the recently enacted amendment to section 13 — 204 of the Code of Civil Procedure, existing case precedent and common sense.
Plaintiffs filed their original complaint against defendants and the Trades on June 30, 1983. Defendants filed a counterclaim against the Trades on June 28,1985. Subsequently, the Trades were dismissed as direct defendants pursuant to the Moorman economic loss doctrine. (See Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443 (recovery for solely economic loss lies in contract and not tort).) Defendants then recaptioned their counterclaim as a third-party complaint. In July 1990, the Trades filed motions for summary judgment on the grounds that defendants’ third-party complaint was time barred by the construction statute of limitations in section 13 — 214(a) of the Code of Civil Procedure. On September 5, 1990, Judge Berman denied the summary judgment motions, finding that the statute of limitations for a third-party complaint seeking contribution or indemnity did not commence until the filing of the underlying action. Subsequently, on May 17, 1991, however, Judge Wolfson entered an order dismissing defendants’ third-party action pursuant to section 2 — 619 of the Code of Civil Procedure. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619 (now 735 ILCS 5/2 — 619 (West 1992)).) Judge Wolfson found that Judge Berman had erred and that section 13 — 214(a) applied to bar defendants’ third-party action for implied contractual indemnity and contribution.
Section 13 — 214(a) provides in pertinent part:
"(a) Actions based upon tort, contract or otherwise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property shall be commenced within 2 years from the time the person bringing an action, or his or her privity, knew or should reasonably have known of such act or omission.” Ill. Rev. Stat. 1983, ch. 110, par. 13 — 214(a).
This issue is moot, however, in light of the recently enacted amendment to section 13 — 204 of the Code of Civil Procedure. (Ill. Rev. Stat. 1991, ch. 110, par. 13 — 204 (now 735 ILCS 5/13 — 204 (West 1992)).) The relevant portions of the amendment provide in pertinent part:
"§ 13 — 204. Contribution and Indemnity.
(b) In instances where an underlying action has been filed by a claimant, no action for contribution or indemnity may be commenced more than 2 years after the party seeking contribution or indemnity has been served with process in the underlying action or more than 2 years from the time the party, or his or her privy, knew or should reasonably have known of an act or omission giving rise to the action for contribution or indemnity, whichever period expires later.
(c) The applicable limitations period contained in subsection (a) or (b) shall apply to all actions for contribution or indemnity and shall preempt, as to contribution and indemnity actions only, all other statutes of limitation or repose, [including those applicable to the underlying action].
(d) The provisions of this amendatory Act of 1993 shall be applied retroactively when substantively applicable, including all pending actions without regard to when the cause of action accrued; provided, however, that this amendatory Act of 1994 shall not operate to affect statutory limitations or repose rights of any party which have fully vested prior to its effective date.” (Emphasis added.) Pub. Act 88 — 538, eff. January 1, 1995 (amending 735 ILCS 5/13 — 204 (West 1992)).
Pursuant to the provisions of this amendment, defendants’ third-party action was timely filed and not barred by the construction statute of limitations. This amendment to section 13 — 204 provides that an action for contribution or indemnity must be filed within two years after the party seeking contribution or indemnity has been served with process in the underlying action or within two years from the time the party knew or reasonably should have known of the act or omission giving rise to the action for contribution or indemnity whichever period expires later. Assuming that defendants knew of the acts or omissions giving rise to their contribution and indemnity actions as early as 1979 as plaintiffs assert, defendants still filed their third-party complaint within two years of being served with process in the underlying action. Thus, their action was timely filed under the amendment. Since the amendment is to be applied retroactively, defendants’ third-party complaint should be reinstated.
Notwithstanding this amendment to section 13 — 204, the dismissal of defendants’ third-party complaint seeking contribution and implied contractual indemnity also was improper under the preamendment case law.
Prior to the amendment, it had been established law in Illinois that a statute of limitations applicable to a plaintiff’s underlying direct action applied to any third-party actions, regardless of the theory upon which the third-party action was based. (Antunes v. Sookhakitch (1992), 146 Ill. 2d 477, 491, 588 N.E.2d 1111, 1117-18; Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 458-61, 557 N.E.2d 873, 877-78; Caballero v. Rockford Punch Press & Manufacturing Co. (1993), 244 Ill. App. 3d 333, 337, 614 N.E.2d 362, 365; Rummel v. Yazoo Manufacturing Co. (1991), 222 Ill. App. 3d 526, 530, 583 N.E.2d 19, 21-22; Highland v. Bracken (1990), 202 Ill. App. 3d 625, 630, 560 N.E.2d 406, 410; La Salle National Bank v. Edward M. Cohon & Associates, Ltd. (1988), 177 Ill. App. 3d 464, 469, 532 N.E.2d 314, 319; Hartford Fire Insurance Co. v. Architectural Management, Inc. (1987), 158 Ill. App. 3d 515, 519-20, 511 N.E.2d 706, 709-10.) Additionally, courts agree that the right to a contribution action exists in inchoate form at the time of the injury and that it does not accrue until (a) the party seeking contribution makes payment or obligates himself to make payment; or (b) the party seeking contribution "is sued in an underlying direct action and given notice of the nature of the action upon which the contribution claim is based.” (Caballero, 244 Ill. App. 3d at 338, 614 N.E.2d at 365-66.) Therefore, numerous courts have held that the statute of limitations period for purposes of a third-party claim begins to run either on the date of the filing of the underlying complaint against defendant or on the date of service of process. (See Hayes, 136 Ill. 2d at 458-61, 557 N.E.2d at 877-78; Caballero, 244 Ill. App. 3d at 337, 614 N.E.2d at 365; Rummel, 222 Ill. App. 3d at 530, 583 N.E.2d at 21-22; Highland, 202 Ill. App. 3d at 630, 560 N.E.2d at 410; La Salle National Bank, 177 Ill. App. 3d at 469, 532 N.E.2d at 319; Hartford, 158 Ill. App. 3d at 519-20, 511 N.E.2d at 709-10.) In Henderson v. Jones Brothers Construction Corp. (1992), 234 Ill. App. 3d 871, 874, 602 N.E.2d 16, 19, this court affirmed the dismissal of a defendant’s third-party claim for contribution on the ground that the defendant failed to file within the applicable construction statute of limitations period contained in section 13 — 214 of the Code of Civil Procedure. (Ill. Rev. Stat. 1991, ch. 110, par. 13 — 214 (now 735 ILCS 5/13 — 214 (West 1992)).) We concluded, however, that the limitations period in section 13 — 214 was "triggered” when defendant received a copy of the summons and complaint. Henderson, 234 Ill. App. 3d at 874, 602 N.E.2d at 19.
Two of the cases we relied heavily upon in coming to our conclusion in Henderson were Hartford Fire Insurance Co. v. Architectural Management, Inc. (1987), 158 Ill. App. 3d 515, 511 N.E.2d 706, and La Salle National Bank v. Edward M. Cohon & Associates, Ltd. (1988), 177 Ill. App. 3d 464, 532 N.E.2d 314. In Hartford, defendants were sued for their alleged negligence in the design and construction of a school. They brought a third-party action for contribution nearly four years after the original action was filed against them. The Hartford court held that section 13 — 214 was "intended to encompass all actions against persons involved in the construction-related activities” (Hartford, 158 Ill. App. 3d at 518) and that the section’s two-year "discovery” period applied to bar defendant’s contribution claim. The Hartford court reasoned that "the latest date” on which defendant could be charged with discovery of the acts or omissions alleged in its counterclaim for contribution was the date on which the original action was filed by plaintiffs. 158 Ill. App. 3d at 520.
In La Salle, defendant was sued for the alleged negligent design and construction of an underground storm water detention basin. The La Salle court agreed with the Hartford court that "the 'trigger’ date for knowledge by a defendant of a potential claim for third-party relief is the date of filing of the underlying complaint.” (La Salle, 177 Ill. App. 3d at 471.) The La Salle court stated, however, that "it would [not] be inconsistent with the holding or rationale in Hartford for a court to consider, in an appropriate case, the date of service of the complaint upon a defendant rather than the date of filing of the complaint, particularly where the service date came much later than the date of filing.” 177 Ill. App. 3d at 471. See also Caballero, 244 Ill. App. 3d at 339, 614 N.E.2d at 366 (contribution claim untimely when applicable limitations period was two years and claim was filed more than five years after defendant was sued and given notice of the nature of the action upon which his contribution claim was based); Rummel, 222 Ill. App. 3d at 529-31, 583 N.E.2d at 20-21 (action for contribution accrued and statute of limitations began to run when plaintiff filed original complaint against defendant); Highland, 202 Ill. App. 3d at 630, 560 N.E.2d at 409-10 (contribution action accrued for purposes of statute of limitations on date action was filed against defendant); Bonfield v. Jordan (1990), 202 Ill. App. 3d 638, 642, 560 N.E.2d 412, 415 (contribution action accrued on date suit was filed against defendant).
Additionally, in Anixter Brothers, Inc. v. Central Steel & Wire Co. (1984), 123 Ill. App. 3d 947, 953, 463 N.E.2d 913, 918, the appellate court reasoned that a claim for implied contractual indemnity cannot be determined until the underlying liability and damages are determined. Therefore, the Anixter court held that the statute of limitations on an action for implied contractual indemnity does not begin to run "until the defendant has a judgment entered against him or until he settles the claim made against him.” 123 Ill. App. 3d at 953.
The majority relies upon Board of Library Directors v. Skidmore, Owings & Merrill (1991), 215 Ill. App. 3d 69, 574 N.E.2d 869. However, the reasoning and ultimate holding of the Library Directors court was incorrect and, therefore, I believe the majority’s reliance upon it is misplaced. In Library Directors, plaintiff filed its complaint against Wil-Freds on December 12, 1984. On July 22,1988, Wil-Freds brought its third-party complaint for indemnification against another defendant. The third-party defendant brought a motion to dismiss Wil-Freds’ indemnification claim for, inter alla, failure to bring the action within the applicable statute of limitations. The trial judge determined that Wil-Freds "discovered” the construction problems no later than 1979 and, therefore, the third-party claim was barred by the four-year construction statute of limitations.3
The appellate court first considered whether the statute of limitations in section 13 — 214 applied to Wil-Freds’ third-party claim for indemnity and, citing to La Salle and Hartford, properly concluded that it did. In coming to this conclusion that the construction limitations period applied, the Library Directors court quoted the language from La Salle and Hartford where these courts held that the statute of limitations began to run either when the complaint was filed (Hartford, 158 Ill. App. 3d 515, 511 N.E.2d 706) or when the complaint was served on defendant (La Salle National Bank, 177 Ill. App. 3d 464, 532 N.E.2d 314). Curiously, however, the court did not apply this reasoning and hold that the third-party complaint was timely filed within four years of the original filing. Inexplicably, the court instead then found controlling the case of Freeport Memorial Hospital v. Lankton, Ziegele, Terry & Associates, Inc. (1988), 170 Ill. App. 3d 531, 525 N.E.2d 194.
In Freeport, plaintiff brought an action against defendants for the alleged negligent design and construction of an addition to plaintiff’s hospital. The hospital addition was completed in 1976. Plaintiff filed its action in 1984. Plaintiff alleged in its complaint that it "did not know or have any reason to know of these defects caused by the negligence of defendants until the defects were discovered on September 18, 1983, during an inspection.” (170 Ill. App. 3d at 533.) The defendants filed motions to dismiss on the grounds that plaintiffs action was barred by the construction statute of limitations in section 13 — 214. In support of their motions, defendants attached the affidavit of one of plaintiff’s former administrators to the effect that he knew of the problems in 1978. Additionally, one of the architects testified by affidavit that plaintiff had complained of the problems and investigated them in early 1981. Plaintiffs did not dispute the facts set forth in defendants’ supporting affidavits and did not offer any countering affidavits. Accordingly, the Freeport court affirmed the dismissal of plaintiff’s complaint because it failed to allege facts showing that the cause of action was not and could not have been discovered earlier.
In Library Directors, the third-party defendant offered an affidavit of one of the architects and the deposition testimony of the plaintiff’s expert to the effect that the problems were apparent and Wil-Freds was aware of them as early as 1978. Wil-Freds’ response to the motion to dismiss did not include any counterevidentiary material. Following the reasoning of Freeport, the Library Directors court held that "[w]ith no evidence to the contrary in its responses to the motion to dismiss, the only conclusion available is that Wil-Freds knew or should have known of an actionable defect in 1978.” Library Directors, 215 Ill. App. 3d at 76.
The majority’s reliance upon Library Directors is misplaced because the Library Directors court, in coming to its conclusion, incorrectly followed the Freeport case. The Freeport decision was wholly inapplicable to the facts in Library Directors and the court’s reliance upon it resulted in an incorrect decision. Unlike in Library Directors, the Freeport case involved a direct action and not a third-party complaint. Therefore, whether Wil-Freds knew or should have known of the defect as early as 1978 was irrelevant because in a case involving a third-party complaint the statute of limitations period would begin to run either when the original complaint was filed (Hartford, 158 111. App. 3d 515, 511 N.E.2d 706) or when the complaint was served on defendant. (La Salle National Bank, 177 Ill. App. 3d 464, 532 N.E.2d 314.) In effect, the Library Directors court precluded the defendant from having the merits of his claim heard because he failed to file his third-party action two years before he was even sued. The purpose of a statute of limitations is to prevent stale claims (Freeport, 170 Ill. App. 3d at 537, 525 N.E.2d at 198), not to preclude claims before they are even ripe for adjudication.
In the instant case, defendants were sued on June 30, 1983. They brought their third-party claim on June 28, 1985. The Trades argue that defendants knew of the problems as early as 1979. According to the Trades’ argument, therefore, defendants are barred because they were required to file their third-party claims by 1981, two years before they were even sued. Such a result is irrational, "unfair to the defendant and would place an unreasonable and unjustifiable burden on the court system.” (Highland, 202 Ill. App. 3d at 633, 560 N.E.2d at 411.) By deciding this issue as it does, the majority is establishing a rule which requires a defendant to file any third-party claims prior to his even being sued. Such a rule will undoubtedly promote unnecessary litigation and create a "cottage industry” specializing in prophylactic lawsuits, perhaps declaratory in nature, on behalf of every potential defendant seeking to protect and preserve his third-party rights to a claim which has not yet and may not ever be asserted. Judges will be required to anticipate possible theories of liability and render decisions on potential third-party claims before the underlying facts or theories of liability have even been set forth. Determining the amount of damages in a third-party claim before a jury has even settled on defendant’s liability in an underlying action would most often be an unnecessary exercise in futility. And would any third-party damages obtained be required to be placed in escrow until the underlying action is concluded or, better yet, until the potential plaintiff himself fails to file within his statute of limitations? Consequently, for the reasons stated, I also must dissent from the majority’s finding that defendants’ third-party complaint against the Trades was properly dismissed.
SUPPLEMENTAL DISSENT ON REHEARING
The two-year limitations period in section 13 — 214 was amended in 1985 to four years. Ill. Rev. Stat. 1985, ch. 110, par. 13 — 214.