dissenting:
I respectfully dissent. I believe that the 10-year statute of limitations for written contracts (735 ILCS 5/13 — 206 (West 2000)) rather than the 4-year statute of limitations for construction of improvements to real property (735 ILCS 5/13 — 214(a) (West 2000)) should apply in this case.
The majority takes the position that section 13 — 214 does not require one to engage in any construction-related activity as long as the subject matter of the contract centers upon an improvement to real property. However, this interpretation seems to circumvent the intention of the legislature. As the majority recognizes, one of the main purposes of section 13 — 214 is to prevent liability in perpetuity against persons involved in the design and construction of buildings, such as architects, contractors, and engineers. Lombard Co. v. Chicago Housing Authority, 221 Ill. App. 3d 730, 735 (1991). Our supreme court has clearly stated that this statute “protects, on its face, anyone who engages in the enumerated activities.” (Emphasis in original.) People v. Hellmuth, Obata & Kassabaum, 114 Ill. 2d 252, 261 (1986). Particular deference is given legislative classifications when those classifications are based upon activities rather than status. Hellmuth, 114 Ill. 2d at 261.
Here, it is undisputed that Swanson engaged in none of the activities enumerated in section 13 — 214. Nevertheless, the majority finds Swanson to fall within the purview of the statute. While I agree that the plain meaning of the statute includes a person’s “act or omission” in the construction of an improvement to real property, I do not agree that the term “omission” encompasses a complete lack of performance on a construction-related obligation. Therefore, I do not believe Swanson’s complete failure to take any action with respect to the detention pond constitutes an “omission” within the language of the statute. In other words, because Swanson never engaged in a construction-related activity, there can be no omission arising out of that activity.
The case law is clear that one must have engaged in the enumerated activities to be protected under section 13 — 214. Thus, the appropriate focus in determining whether this statute applies is whether the activity engaged in constitutes the “design, planning, supervision, observation or management of construction.” 735 ILCS 5/13 — 214(a) (West 2000). Indeed, the majority states that the court must first look to the activity involved and determine whether it is a construction-related activity falling within section 13 — 214. However, as stated previously, there was no construction-related activity in this case. Hence, section 13 — 214 does not apply.
In short, the fact that this real estate contract involved an improvement to real property does not automatically subject it to the four-year statute of limitations. Rather, the four-year statute of limitations should apply only when one has actually engaged “in the design, planning, supervision, observation or management of construction.” 735 ILCS 5/13 — 214(a) (West 2000). Otherwise, it is the subject matter of the contract, rather than the “activity” actually engaged in, which controls.
While this is a case of first impression, I believe a more commonsense approach would be to interpret Swanson’s total lack of performance as triggering the 10-year statute of limitations for written contracts. Therefore, I would reverse the judgment of the circuit court granting defendants’ motion for summary judgment.