Opinion
3-22-0347
09-01-2023
EDWARD MCGOWAN and 55/30 ACQUISITIONS, LLC Plaintiffs-Appellants, v. FIRST MIDWEST BANK as Trustee under Trust No. 5693 dated June 2, 1992; CHICAGOLAND CENTER ASSOCIATION, INC.; THOMAS SEARLS; STEVE SEARLS; RICHARD SEARLS, JR.; RICHARD SEARLS, III; JOHN SEARLS; JACOB & HEFNER ASSOCIATES, INC.; and ILLINOIS-AMERICAN WATER CO., Defendants First Midwest Bank as Trustee under Trust No. 5693 dated June 2, 1992; Thomas Searls; Steve Searls; Richard Searls, Jr.; Richard Searls, III; John Searls; and Jacob & Hefner Associates, Inc., Defendants-Appellees.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit No. 21-L-200 Honorable John C. Anderson, Judge, Presiding.
JUSTICE BRENNAN delivered the judgment of the court. Justices Peterson and Albrecht concurred in the judgment.
ORDER
BRENNAN JUSTICE
¶ 1 Held: In this lawsuit arising out of a diversion of a sewer line onto plaintiffs' land, the trial court did not err in dismissing the claims against the defendants that constructed the sewer line as untimely and in dismissing the claim against the surveyor as barred by other affirmative matter defeating the claim. Affirmed.
¶ 2 Plaintiffs, Edward McGowan and 55/30 Acquisitions, LLC, sued: (1) First Midwest Bank, as Trustee under Trust No. 5693, dated June 2, 1992 (Trustee), and the beneficiaries of the trust-Thomas Searls, Steve Searls, Richard Searls, Jr., Richard Searls, III, and John Searls (collectively the Searls defendants); (2) Jacob &Hefner Associates, Inc. (J&H); (3) Chicagoland Center Association, Inc. (CCA); and (4) Illinois-American Water Company (American Water) for damages arising out of a diversion of a sewer line onto plaintiff's tract of land. The trial court granted the Searls defendants' and J&H's motions to dismiss the claims against them with prejudice and entered a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) that there was no just reason for delaying appeal. Plaintiffs timely appealed. For the reasons set forth below, we affirm.
¶ 3 I. BACKGROUND
¶ 4 The subject property is a 14.1-acre tract of unimproved land overlapping the boundary line between Joliet and Plainfield near I-55 and Route 30. On December 26, 2014, McGowan purchased the property from American Water for the purpose of multi-use development. A few months later, McGowan transferred the property to 55/30 Acquisitions, LLC, which he owns and controls (jointly plaintiffs). The Searls defendants constructed the sewer line at issue. J&H is a surveyor that plaintiffs hired to survey the subject property and that provided an "ALTA/ACSM Land Title Survey" (survey) in advance of the closing on the property.
¶ 5 Plaintiffs initiated this lawsuit on March 11, 2021. The initial complaint included counts for breach of contract, trespass, and fraudulent concealment against the Searls defendants and CCA and a count for negligence against J&H. The Searls defendants moved to dismiss the counts against them for failure to state a claim. The trial court granted the motion without prejudice and with leave to replead.
¶ 6 On November 23, 2021, plaintiffs filed a first amended complaint. Plaintiffs brought counts for quasi-contract, unjust enrichment, negligence, trespass, and nuisance against the Searls defendants and CCA (but no longer pled counts for breach of contract and fraudulent concealment against them) and a negligence count against J&H. Parenthetically, we note that plaintiffs continued to plead breach-of-contract and fraudulent concealment counts against American Water. The claims against CCA and American Water remain pending and are not at issue on appeal.
¶ 7 We recount the allegations set forth in the first amended complaint and the relevant procedural history.
¶ 8 A. First Amended Complaint
¶ 9 Plaintiffs alleged that, following their purchase of the subject property, "[i]n December 2019, 55/30's excavator discovered an underground structure on the property when a backhoe or other construction implement struck the concealed terminus of the Sewer Line." Further investigation determined that the "underground structure" was a sewer line that had been wrongfully diverted onto the property by the Searls defendants as detailed below. The adjacent, approximately 20-acre property is known as the Chicagoland Center Subdivision, is controlled by the Searls defendants, and is served by the property owners' association CCA (of which Richard Searls is corporate president).
¶ 10 Plaintiffs further alleged that, on March 13, 2020, they learned that the Trustee had entered into a March 11, 2003, written agreement with the City of Joliet (City), whereby the Searls defendants were required to construct an underground 36-inch diameter outflow storm sewer line as a condition of the City's approval of the plat of subdivision for the Chicagoland Center Subdivision. The agreement, attached as an exhibit to the first amended complaint, specified that, as a condition of approving the plat of subdivision, "in order to adequately provide for the drainage of stormwater from Chicagoland Center and other properties[,] it is necessary that the Owner construct an underground 36" inside diameter storm sewer line and related appurtenances between Essington Road and Mink Creek within the E.J.&E. [Elgin, Joliet and Eastern Railroad] right of way" and that "the parties have agreed to allocate costs and responsibilities of constructing said storm sewer facilities." The agreement further specified that, "[u]pon Completion of the Improvements[] all rights, title, and interest whatsoever in the Improvements shall transfer to and remain in the City."
¶ 11 On December 28, 2004, the City and Trustee allegedly "reported that the Sewer Line had been completed, inspected, and accepted by the [City's] Department of Public Works and Utilities." However, plaintiffs alleged, the Searls defendants "did not build the Sewer Line all the way to Mink Creek as the Agreement required and which the Trustee represented had in fact been done" and "[i]nstead, the Sewer Line was only extended a short distance along the EJ&E Right of Way and then diverted perpendicularly about 25 yards into [plaintiffs'] property, where it terminated and discharged its flow."
¶ 12 Plaintiffs alleged that the sewer line "was discharging, or had discharged, substantial amounts of water, other liquids and solid objects onto the Property, rendering the land unusable for the commercial purpose for which it was acquired." Moreover, the discharge from the sewer line "was and is causing wetlands to be created and expanded on the Property." Thus, plaintiffs were forced to "design and install a complex water management system and other appurtenances to accommodate and divert the Chicagoland Center Subdivision's drain water."
¶ 13 In their quasi-contract and unjust enrichment claims against the Searls defendants, plaintiffs alleged that, at their own expense, they were forced to do the job that the Searls defendants had promised to do, falsely claimed had been done, and for which the Searls defendants accepted payment from the City. Regarding the negligence claim, plaintiffs alleged that the Searls defendants undertook to build the sewer line, negligently constructed the line to terminate on the subject property and "intentionally concealed the fact that they had caused or allowed the Sewer Line to be diverted onto the Property, by, among other things, falsely representing to the City of Joliet that they had complied with the Agreement and that they had in fact extended the Sewer Line all the way to Mink Creek." And plaintiffs alleged that the discharge from the sewer line amounted to a trespass and nuisance on their property.
¶ 14 In their negligence claim against J&H, plaintiffs alleged that J&H was hired to survey the subject property in preparation for plaintiffs' purchase of the property, that J&H "intended that plaintiffs rely on their survey in deciding to complete their purchase of the subject property," and that it was J&H's "duty to exercise care, caution, and their expertise in the performance of the tasks to prepare, and in the preparation of, their subject survey herein." However, J&H failed to include on the survey "any and all underground structures," "easements and rights of way," and "all outflows of liquids or solid objects onto the subject property." Plaintiffs further alleged that, as a direct and proximate result of J&H's negligence, they "were caused great expense to correct the undisclosed discharge onto their property."
¶ 15 B. Procedural History
¶ 16 Both the Searls defendants and J&H moved to dismiss the first amended complaint. We recount the relevant portion of each motion in turn.
¶ 17 1. Searls Defendants' Motion to Dismiss
¶ 18 The Searls defendants filed a motion to dismiss the first amended complaint as untimely pursuant to section 2-619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5) (West 2020)). They argued that plaintiffs filed the lawsuit more than 16 years after the sewer line was alleged to be constructed. Thus, the lawsuit was barred by the 4-year statute of limitations and the 10-year statute of repose for claims based upon acts or omissions in connection with the construction of an improvement to real property. Id. § 13-214(a) and (b).
¶ 19 Plaintiffs responded that the limitations and repose periods set forth in subsections (a) and (b) of section 13-214 are inapplicable by virtue of subsection (e) of the statute, which provides that neither the statute of limitations nor the statute of repose applies to "causes of action arising out of fraudulent misrepresentations or to fraudulent concealment of causes of action." Id. § 13-214(e). According to plaintiffs, they sufficiently alleged that the Searls defendants engaged in fraudulent concealment under section 214(e) by the Trustee's alleged representation to the City that the Searls defendants had built the sewer line from Essington Road to Mink Creek.
¶ 20 Thus, plaintiffs advocated for application of the catchall statute of limitations set forth in section 13-205 of the Code (id. § 13-205). The statute requires that the lawsuit be commenced "within 5 years next after the cause of action accrued" and contains no repose period. Id. According to plaintiffs, because their excavator physically discovered the terminus of the sewer line in December 2019, the earliest that the 5-year statute of limitations would run is December 1, 2024. In addition, with respect to the trespass and nuisance claims, plaintiffs argued that the statute of limitations accrued each time the sewer line discharged on the subject property.
¶ 21 2. J&H's Motion to Dismiss
¶ 22 J&H filed a motion to dismiss its negligence claim pursuant to section 2-619.1 of the Code (id. § 2-619.1), arguing three bases for dismissal. First, J&H sought dismissal for failure to state a claim under section 2-615 of the Code (id. § 2-615) on grounds that plaintiffs sought to recover in tort for purely economic damages and that the claim was therefore barred by the Moorman (economic loss) doctrine. See Moorman Manufacturing Co. v. National Tank Co., 91 Ill.2d 69 (1982). J&H further argued that the negligent misrepresentation exception to the Moorman doctrine was inapplicable because plaintiffs failed to allege that they relied on the survey. To the contrary, the survey affirmatively showed a storm sewer manhole on the property.
¶ 23 Second, J&H sought dismissal under section 2-619(a)(9) of the Code (735 ILCS 5/2- 619(a)(9) (West 2020)) on grounds that the negligence claim was barred by other affirmative matter avoiding the legal effect of or defeating the claim, i.e., J&H's agreement with plaintiffs for survey services expressly excluded any underground investigation of utilities. Thus, J&H argued that it did not owe the duty alleged by plaintiffs.
¶ 24 As supporting exhibits, J&H submitted its proposal for survey services, the survey, and the affidavit of Carl J. Cook, a licensed land surveyor and J&H's Director of Surveying. Cook averred that, in December 2013, "Edon Construction Co., Inc." requested a proposal from J&H for survey services for the subject property. (While the parties do not explain this company's identity, the record reflects plaintiffs' reference to Edon Construction as "McGowan's contractor.")
¶ 25 Cook prepared J&H's proposal on December 17, 2013, quoting a lump sum fee of $2500. The proposal incorporated an "Attachment A," titled "Scope of Services," which provided:
"We will prepare an ALTA/ACSM Land Title Survey as shown on the attached exhibit A, survey to meet the Minimum Standard Detail Requirements established and
adopted in 2011 table 'A' items 1, 2, 3, 4, 7(a), 7(b1), 7(c), 8, 9, 11a, and 13. No underground investigations of the utilities will be performed. The survey will show or note title issues as provided by a current title commitment with supporting documents supplied by your office." (Emphasis added.)
¶ 26 The proposal further provided, "This proposal and Attachment 'A' represents the entire understanding between you and us with respect to the project and may only be modified in writing signed by both of us." Accordingly, the proposal directed that, "[i]f this satisfactorily sets forth your understanding of our agreement, we would appreciate you signing the enclosed copy of this letter *** and returning it to us." The proposal was agreed to and accepted on December 23, 2013.
¶ 27 Cook further averred that, in accordance with the proposal's terms, he personally surveyed the property on January 9, 2014, prepared the survey, and provided the survey to Edon Construction on February 3, 2014. In this regard, Cook specified that the title commitment documents supplied in accordance with the Scope of Services did not identify any easements for a storm sewer on the property.
¶ 28 In describing the content of the survey, Cook averred that the survey "depicted a storm sewer manhole on the Property near the Elgin Joliet and Eastern Railroad that Affiant observed at the time of Affiant's field work" and that plaintiffs' allegations of "water, other liquids and objects accessing the Property is in the same location of the storm sewer manhole depicted on the Survey." Cook also stated that, "[b]ecause J&H's Proposal did not call for any underground investigation, Affiant had no responsibility to determine whether there was an underground storm sewer underneath the Property and/or investigate what was connected to the storm sewer manhole that Affiant depicted on the Survey." In addition, Cook stated that the property "was covered in 12 inches of snow at the time of Affiant's field work" and that, after the survey was provided, "no one asked J&H to go back to resurvey the Property after the snow melted, complete an underground investigation for easements or asked for further clarification of the depicted storm sewer manhole."
¶ 29 J&H's third and final basis for dismissal, sought under section 2-619(a)(5), argued that the claim was time-barred. Namely, section 13-222(a) of the Code (id. § 13-222(a)) provides that "[n]o action may be brought against a Registered Land Surveyor to recover damages for negligence, errors, or omissions in the making of any survey *** more than 4 years after the person claiming such damages actually knows or should have known of such negligence, errors, or omissions." According to J&H, plaintiffs knew or should have known that there was underground storm sewer piping connected to the constructed storm sewer manhole reflected on the survey, which J&H furnished to plaintiffs on February 3, 2014. Thus, the limitations period expired four years later, on February 3, 2018-more than three years before plaintiffs sued J&H.
¶ 30 Plaintiffs responded to J&H's motion, addressing each basis for dismissal in turn. Regarding application of the Moorman doctrine, plaintiffs argued that another exception applied here-where a service professional, like a surveyor, has duties that arise independently of the contractual duties. Citing a professional land surveyor's statutorily defined standard of care to use "the same degree of knowledge, skill, and ability as an ordinarily careful and reasonable professional land surveyor would exercise under similar circumstances" (see 225 ILCS 330/4(k) (West 2020)), plaintiffs appeared to argue that J&H's failure to identify the terminus of the sewer line violated this standard of care.
¶ 31 Responding to J&H's argument that the negligence claim was barred by other affirmative matter, plaintiffs also argued that, regardless of whether J&H's duty was purely contractual, whether J&H breached the agreement by failing to identify the terminus of the sewer line was a question of fact. Plaintiffs attached as an exhibit the 2011 Table A "Minimum Standard Detail Requirements For ALTA/ACSM Land Title Surveys" referred to in J&H's Scope of Services. Citing item 11(a), plaintiffs argued that J&H was required to survey the "[l]ocation of utilities *** existing on or serving the surveyed property as determined by *** [o]bserved evidence." Plaintiffs also attached as an exhibit "Schedule B"-exceptions from coverage-of the title commitment, stating that it "does in fact appear to reference a" 'Possible Public Utility Easement Along the North Line of the Land.'" Plaintiffs argued that the exclusion of this easement from coverage under the title insurance policy "does not mean, as a matter of law, that it should have been excluded from the Survey."
¶ 32 Addressing the timeliness of their claim, Plaintiffs argued that J&H improperly cited section 13-222(a), "which applies only to causes of action accruing before the effective date of this amendatory Act of the 92nd General Assembly [January 1, 2002]" (see 735 ILCS 5/13-222(a) (West 2020)), and ignored the 10-year statute of repose set forth in section 13-222(b) (see id. § 13-222(b) ("In no event may such an action be brought if 10 years have elapsed from the time of the act or omission. Any person who discovers the act or omission before expiration of the 10-year period, however, may in no event have less than 4 years to bring an action.")). According to plaintiffs, because they did not discover that the sewer line terminated on their property until December 2019, the earliest that the 4-year statute of limitations would run is December 1, 2023, and the repose period would not run until February 3, 2024-10 years after J&H provided the survey.
¶ 33 According to plaintiffs, J&H improperly conflated knowledge of the sewer line's existence with knowledge of the location of its terminus. In other words, the depiction of the storm sewer manhole on the survey did not lead to the inescapable conclusion that the drainage system terminated there, particularly where the survey reflected several additional storm sewer manholes and sanitary manholes. Thus, plaintiffs argued that what J&H knew and what it should have communicated to plaintiffs were questions of fact precluding dismissal of the claim as time-barred.
¶ 34 3. Trial Court's Ruling
¶ 35 Following argument, on July 26, 2022, the trial court found that "both motions are well taken." At that point, plaintiffs' counsel requested a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) that there was no just reason for delaying appeal. Over the objection of the Searls defendants' counsel, the trial court granted the request. Accordingly, the trial court entered a written order granting the Searls defendants' and J&H's motions to dismiss the claims against them with prejudice and entered a Rule 304(a) finding. Plaintiffs timely appealed.
¶ 36 II. ANALYSIS
¶ 37 A section 2-615 motion to dismiss challenges the legal sufficiency of the complaint. 735 ILCS 5/2-615 (West 2020); Bjork v. O Meara, 2013 IL 114044, ¶ 21. "The essential question is whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, are sufficient to establish a cause of action upon which relief may be granted." Cochran v. Securitas Security Services USA, Inc., 2017 IL 121200, ¶ 11.
¶ 38 A section 2-619 motion to dismiss admits the sufficiency of the complaint but asserts affirmative matter or a defense outside the pleadings to defeat the claim. See 735 ILCS 5/2-619(a)(5) (West 2020) ("That the action was not commenced within the time limited by law."); id. § 2-619(a)(9) ("That the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim."); Bjork, 2013 IL 114044, ¶ 21.
¶ 39 When ruling on a motion pursuant to section 2-615 or section 2-619, a court must accept as true all well-pled facts and any reasonable inferences therefrom. Patrick Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31. Mere conclusions unsupported by specific facts cannot be accepted as true. Id. We review de novo orders granting section 2-615 and 2-619 dismissals. Bjork, 2013 IL 114044, ¶ 21. We may affirm on any ground evident in the record. See Norabuena v. Medtronic, Inc., 2017 IL App (1st) 162928, ¶ 36.
¶ 40 With these concepts in mind, we address the parties' arguments.
¶ 41 A. Searls Defendants
¶ 42 The parties dispute the governing statute of limitations. Plaintiffs argue that the limitations and repose periods for construction-related claims set forth in sections 13-214(a) and (b) do not apply because they alleged fraudulent concealment as an exception to these time periods, notwithstanding that they no longer alleged fraudulent concealment as a separate count against the Searls defendants. According to plaintiffs, their claims were timely under the 5-year statute of limitations set forth in section 13-205. The Searls defendants maintain that plaintiffs failed to sufficiently plead fraudulent concealment and that, regardless, plaintiffs' claims are untimely under section 13-205. We turn first to section 13-214.
¶ 43 Subsection (a) of section 13-214 sets forth the 4-year limitations period, as follows: "(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 4 years from the time the person bringing an action, or his or her privity, knew or should reasonably have known of such act or omission." 735 ILCS 5/13-214(a) (West 2020).
¶ 44 Subsection (b) of section 13-214 sets forth the 10-year repose period, as follows: "No action based upon tort, contract or otherwise may be brought 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 after 10 years have elapsed from the time of such act or omission. However, any person who discovers such act or omission prior to expiration of 10 years from the time of such act or omission shall in no event have less than 4 years to bring an action as provided in subsection (a) of this Section." Id. § 13-214(b).
¶ 45 Plaintiffs do not dispute that the construction of a storm sewer system is an "improvement to real property" under section 13-214. See Continental Insurance Co. v. Walsh Construction Co., 171 Ill.App.3d 135, 141 (1988). Plaintiffs also acknowledge that "there is no discovery date that could possibly save [their] claims if [subsections (a) and (b) of section] 13214 [are] found to apply to this case," given that this lawsuit was filed more than 16 years after the construction of the sewer line was alleged to be completed.
¶ 46 However, plaintiffs argue, as they did below, that the statute of limitations and statute of repose are inapplicable by virtue of the exception set forth in section 13-214(e), which provides that "[t]he limitations of this Section shall not apply to causes of action arising out of fraudulent misrepresentations or to fraudulent concealment of causes of action." 735 ILCS 5/13-214(e) (West 2020). According to plaintiffs, "[t]he basic facts of this case allege a concealed cause of action" and were thus sufficient to allege fraudulent concealment under section 13-214(e). We disagree, as explained below.
¶ 47 Initially, the Searls defendants point out that they successfully moved to dismiss the fraudulent concealment count against them alleged in the initial complaint. When plaintiffs replead, they did not reassert a fraudulent concealment count against the Searls defendants in the first amended complaint (meanwhile maintaining their fraudulent concealment count against codefendant American Water). Thus, plaintiffs abandoned the fraudulent concealment claim against the Searls defendants. See Foxcroft Townhome Owners Ass'n v. Hoffman Rosner Corp., 96 Ill.2d 150, 154 (1983) ("Where an amendment is complete in itself and does not refer to or adopt the prior pleading, the earlier pleading ceases to be a part of the record, being in effect abandoned and withdrawn.") (Internal quotations marks omitted.)
¶ 48 However, an assertion of fraudulent concealment under subsection (e) need not be set forth in a separately labeled count. See Cahnman v. Timber Court LLC, 2021 IL App (1st) 200338, ¶ 77 ("In the context of the statute of limitations, the fraudulent concealment is not a cause of action in and of itself but is 'an exception to the limitations period imposed on other, underlying causes of action.'" (quoting Doe No. 2 v. Boy Scouts of America, 2016 IL App (1st) 152406, ¶ 80)); see also Henderson Square Condominium Ass'n v. Lab Townhomes, LLC, 2015 IL 118139, ¶ 37 n.3 (declining to address the argument regarding the distinction between the tort of fraudulent concealment and the doctrine of fraudulent concealment of a cause of action and relying only upon case law regarding the latter in resolving the applicability of section 13-214(e)).
¶ 49 Of course, the Searls defendants' point is that plaintiffs' abandonment of what had been a separate fraudulent concealment count against them supports a holding that plaintiffs failed to plead fraudulent concealment as an exception to the limitations and repose periods in section 13214. Nonetheless, any abandonment of a separate fraudulent concealment count is not dispositive of the question we must answer-whether plaintiffs sufficiently pled that the Searls defendants fraudulently concealed the cause of action for purposes of section 13-214(e).
¶ 50 To establish fraudulent concealment, the plaintiff must plead and prove that fraud prevented discovery of the cause of action. Henderson Square, 2015 IL 118139, ¶ 36. Generally, the concealment "must consist of affirmative acts or representations calculated to lull or induce a plaintiff into delaying the filing of his claim or preventing him from discovering the claim." Id. ¶ 38. The affirmative acts that constitute the fraudulent concealment may be the same statements or omissions that form the basis of the cause of action. Id.
¶ 51 Plaintiffs' argument that they sufficiently pled fraudulent concealment centers on their allegation that "the Searls Defendants did not build the Sewer Line all the way to Mink Creek as the Agreement required and which the Trustee represented had in fact been done." According to plaintiffs, "fraudulent concealment by the Searls is clearly inferable at the very least from the allegations of wrongful diversion of the sewer line in contravention of municipal authorization and of the subsequent representations that the sewer project had been completed as authorized."
¶ 52 Absent from the first amended complaint, however, are any allegations that such representations were calculated to lull or induce plaintiffs into delaying the filing of their claims or prevent them from discovering the claims. See id. At most, the allegations, albeit conclusory, suggest a misrepresentation to the City. We cannot, as plaintiffs suggest, simply infer fraudulent concealment from allegations regarding improper construction and reporting of the sewer line. See Patrick Engineering, 2012 IL 113148, ¶ 31.
¶ 53 Plaintiffs, however, liken their allegations to those sustained in Henderson Square, 2015 IL 118139. There, in 2011, the plaintiff condominium association and its board brought various claims against the condominium developers for damages arising out of water seepage in various units. The construction, marketing, and conveyance of the units had been completed over 14 years earlier, in 1996. The plaintiffs subsequently experienced water leakage in their units and had repairs done, but the leaks persisted. Eventually, in 2009, the plaintiffs hired an engineer and contractor to investigate and fix the water problem, at which point extensive testing revealed that poor construction was the cause of the leakage. Id. ¶¶ 1, 7-10.
¶ 54 In holding that the trial court improperly dismissed the complaint as untimely, our supreme court held that plaintiffs' allegations were sufficient to allege fraudulent concealment so as to invoke the exception of section 13-214(e) to the limitation and repose periods of sections 13-214(a) and (b). Id. ¶ 48. Specifically, plaintiffs alleged that the defendants knew and intended the misrepresentations in the marketing information packet to be false and knowingly failed to comply with the plans and specifications in the packet, including the type and placement of the insulation. Id. ¶ 39. Plaintiffs also alleged that defendants" 'covered up the Units' deficiencies in brick and mortar,' cutting costs for the purpose of realizing greater profits from the city contract, and that these deficiencies could not have been discovered by plaintiffs 'without extensive testing and opening up the walls of the common elements and the Units.' "Id. The supreme court concluded that these allegations indicated "a scheme to defraud plaintiffs that began with the misrepresentations in the packet and which was designed and intended to operate after the cause of action arose to prevent its discovery," thereby alleging fraudulent concealment for purposes of section 13-214(e). Id.
¶ 55 Turning then to the 5-year limitations period in section 13-205 and application of the discovery rule, the supreme court held that plaintiffs' allegations were sufficient to raise a question of fact as to the time they knew or reasonably should have known that an injury occurred and that it was wrongfully caused. Id. ¶¶ 56, 59. The court reasoned that "it is possible that the minor repairs in the present case, coupled with the limited nature of the water infiltration experienced, was enough to reasonably delay plaintiffs' hiring of professional contractors to open up the wall and to discover the latent defects." Id. ¶ 59.
¶ 56 Plaintiffs argue that, like Henderson Square, they pled a "scheme to defraud" in that the Searls defendants allegedly failed to construct the storm sewer according to the terms of its agreement with the City and instead constructed the sewer line to terminate and discharge on plaintiffs' property, withheld this information from the City, and then acquiesced in approval of the nonconforming work. But the particularity of plaintiffs' allegations do not equate to the alleged scheme to defraud found in Henderson. Indeed, here, plaintiffs do not even identify the precise misrepresentations upon which they relied. Rather, they ask us to infer misrepresentations from the City's approval of the nonconforming work.
¶ 57 In addition, unlike the allegations in Henderson Square, there are insufficient allegations here that the Searls defendants knew and intended any such misrepresentations to be false or that they knowingly failed to comply with the specifications for the sewer line. Plaintiffs merely allege in conclusory fashion that the Searls defendants misrepresented and concealed that the sewer line did not extend all the way to Mink Creek. Moreover, these allegations refer to conduct directed toward the City, not toward plaintiffs. Accordingly, for the reasons discussed, plaintiffs fail to sufficiently allege that the alleged fraudulent concealment prevented discovery of the cause of action for purpose of section 13-214(e).
¶ 58 As a final matter, plaintiffs suggest that the nuisance and trespass claims are nonetheless timely under a continuing tort theory. Given the terms of the March 11, 2003, agreement between the Trustee and the City (attached as an exhibit to the first amended complaint), whereby all rights, title, and interest in the sewer line were transferred to the City, it is unclear on what basis plaintiffs could circumvent the statute of repose, and they have articulated no persuasive legal basis for doing so.
¶ 59 Plaintiffs conclude that, minimally, they should be given an opportunity to amend their claims. However, plaintiffs never filed a motion for leave to file a second amended complaint against the Searls defendants. Rather, at the close of the hearing on the motions to dismiss, plaintiffs' counsel requested a Rule 304(a) finding. Thus, the viability of their claims rests upon the sufficiency of the first amended complaint. See Hough v. Kalousek, 279 Ill.App.3d 855, 860 (1996) ("Because plaintiff never asked for leave to amend, the cause of action stands or falls based on the sufficiency of the stricken pleading.").
¶ 60 Given our holding that the claims against the Searls defendants were properly dismissed as untimely pursuant to section 13-214, we need not address plaintiffs' arguments that their claims were timely under the 5-year statute of limitations set forth in section 13-205.
¶ 61 B. J&H
¶ 62 As they did in the trial court, the parties dispute the applicability of the Moorman doctrine, whether the negligence claim was barred by other affirmative matter, and the timeliness of the claim. For the reasons set forth below, we hold that the negligence claim against J&H was properly dismissed on the basis that it was barred by other affirmative matter pursuant to section 2-619(a)(9).
¶ 63 To state a legally sufficient negligence claim, plaintiffs were required to allege facts establishing that J&H owed them a duty of care, J&H breached that duty, and that plaintiffs were injured as a proximate result of the breach. See Thompson v. Gordon, 241 Ill.2d 428, 438-39 (2011). The existence of a duty is a question of law for the court to decide. Id.
¶ 64 Here, the crux of plaintiffs' claim was that J&H's duty of care included the obligation to identify on the survey the underground sewer line and that it terminated and discharged on plaintiffs' property. Namely, plaintiffs alleged that, in December 2019, their excavator discovered an "underground structure" on the property when a construction implement struck "the concealed terminus of the Sewer Line" and that further investigation determined that the "underground structure" was a sewer line that had been wrongfully diverted onto the property. Plaintiffs alleged that J&H failed to include on the survey all underground structures, easements and rights of way, and outflows onto the property and that plaintiffs were caused great expense to correct the undisclosed discharge onto their property.
¶ 65 However, the survey agreement expressly excluded such services, providing "[n]o underground investigations of the utilities will be performed." In addition, the survey agreement contained an integration clause, which required that any modifications to J&H's scope of services be in writing and signed by both parties. No such modification was made. Accordingly, plaintiffs are bound by the terms of the survey agreement. See Air Safety, Inc. v. Teachers Realty Corp., 185 Ill.2d 457, 464 (1999) (an integration clause is designed to bind the parties to the terms of their written agreement).
¶ 66 Our supreme court's decision in Thompson is instructive. Thompson involved a negligence action against engineering firms following a fatal car accident on a bridge for which the engineers had provided the structural design plans for a rebuild project. The plaintiff alleged that the defendants were negligent in replacing the median barrier with the same type of barrier, rather than using an improved "Jersey" barrier that would have prevented vehicles from crossing over the barrier and into the oncoming lane of traffic. Thompson, 241 Ill.2d at 431-34.
¶ 67 In affirming the grant of summary judgment in the defendants' favor, the supreme court held that the scope of the engineers' duty was defined by the contract between the defendants and the developer for the project. Id. at 449-50. The plain language of the "Scope of Services" provision in the contract required structural design plans for replacement of the existing bridge deck, not plans to improve the bridge. Id. at 440-42. Accordingly, replacement of the median barrier with the same kind of barrier fulfilled the defendants' contractual obligation. Id. at 44243.
¶ 68 The supreme court rejected the plaintiff's argument that a "Standard of Care" clause in the contract imposed a duty to design an improved median. Id. at 449-50. The clause provided:" 'The standard of care applicable to ENGINEER's services will be the degree of skill and diligence normally employed by professional engineers or consultants performing the same or similar services. The ENGINEER will reperform any services not meeting this standard without additional compensation.' "Id. at 444. The supreme court reasoned that the clause did not impose an additional obligation on the defendants not provided for in the contract. Id. 449-50. Rather, the defendants were simply required to use the same degree of skill and diligence normally employed by professional engineers in designing the replacement of the bridge deck. Id. at 449 (citing Ferentchak v. Village of Frankfort, 105 Ill.2d 474, 482 (1985) (the degree of the engineer's skill and care depended on the contractual obligation, and the contract defined the scope of that duty)).
¶ 69 To impose the additional duty to improve the bridge to include the Jersey barrier would be contrary to the well-established legal principle that a court cannot modify existing contractual terms or add new terms or conditions to a contract. Id. Moreover, imposition of such a duty would contravene the presumption against imposing provisions that easily could have been included in the contract but were not. Id. In sum, the court concluded that "defendants' duty to plaintiff, and the scope of that duty, was circumscribed by the terms of defendants' contract with [the developer], which did not require defendants to consider and design an improved median barrier." Id. at 450; accord St. Paul Mercury Insurance v. Aargus Security Systems, Inc., 2013 IL App (1st) 120784, ¶ 60 ("Where a defendant is charged with negligence because of his failure to perform an act allegedly required by contract, the question of whether the defendant had a duty to perform the act is determined by the terms of the contract itself. The scope of the defendant's duties will not be expanded beyond that required by the contract.") (Internal quotation marks and citations omitted.))
¶ 70 Here, also, the terms of the survey agreement govern. Plaintiffs alleged that J&H failed to include on the survey the underground sewer line and its terminus on plaintiffs' property. However, the survey agreement expressly excluded underground investigations of the utilities. In addition, the survey agreement contained an integration clause, which required that any modifications to J&H's scope of services be in writing and signed by both parties. No such modification was made. Plaintiffs are bound by the terms of the survey agreement. See Air Safety, 185 Ill.2d at 464.
¶ 71 Plaintiffs argue that Thompson is distinguishable because there, "as engineers charged with building the bridge-something tangible-their duty was circumscribed by their contract," whereas, here, J&H, as a surveyor, "produced only intangible information to plaintiffs' contractor, upon which they knew they would rely in the course of his business as a developer." Thus, plaintiffs argue that J&H's duty extended beyond the terms of the contract.
¶ 72 As support for their argument that J&H owed an extracontractual duty, plaintiffs cite: (1) a portion of the declaration of public policy in the Illinois Professional Land Surveyor Act of 1989 (Surveyor Act) (see 225 ILCS 330/1 (West 2020) ("The practice of land surveying in the State of Illinois is hereby declared to affect the public health, safety, and welfare and to be subject to regulation and control in the public interest.")); (2) the standard of care as defined in the Surveyor Act (see id. § 4(k) ("' Standard of care' means the use of the same degree of knowledge, skill, and ability as an ordinarily careful and reasonable professional land surveyor would exercise under similar circumstances.")); and (3) the "Minimum Standards of Practice" for land surveyors set forth in the Illinois Administrative Code (see 68 Ill. Adm. Code 1270.56) along with "The Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys." They also cite Rozny v. Marnul, 43 Ill.2d 54, 67-68 (1969), in which our supreme court held that a land surveyor was liable under a theory of tortious misrepresentation to foreseeable third parties for an inaccurate survey.
¶ 73 Initially, we note that plaintiffs' argument rests upon application of the extracontractual duty exception to the Moorman doctrine. The Moorman doctrine, also known as the economic loss doctrine, bars recovery in tort for purely economic losses. Moorman Manufacturing, 91 Ill.2d at 91. There are exceptions to the doctrine, including where a service professional has duties to the client that arise independently of the contractual duties. Congregation of the Passion, Holy Cross Province v. Touche Ross &Co., 159 Ill.2d 137, 162 (1994). The extracontractual duty exception applies to breach of a professional duty that cannot be measured in contract terms because of its intangible nature. Id. at 162-63.
¶ 74 However, the point of J&H's section 2-619(a)(9) motion was that plaintiffs' negligence claim was barred by the terms of the survey agreement, not that the claim was barred by the Moorman doctrine. It would be illogical here to use an exception to the Moorman doctrine to create a duty specifically excluded by the parties' contract.
¶ 75 Regardless, nothing in the Surveyor Act, the regulations, or the decision in Rozny supports imposition of the duties alleged by plaintiffs or any inference that J&H violated a professional duty. As in Thompson, where our supreme court rejected the plaintiff's argument that the contractual standard of care clause imposed a duty to design an improved median, so too, here, the standard of care set forth in the Surveyor Act does not impose an additional obligation on J&H to include on the survey the underground sewer line and its terminus. See Thompson, 241 Ill.2d at 449-50. As discussed, the survey agreement expressly excluded such services. To impose the additional duty would contravene not only the principle that a court cannot modify existing contractual terms or add new terms or conditions to a contract, but also the presumption against imposition of a provision that easily could have been included in the contract but was not. See id. at 449.
¶ 76 In sum, plaintiffs' negligence claim is premised on underground services that were expressly excluded from the survey agreement. Accordingly, the claim is barred by other affirmative matter pursuant to section 2-619(a)(9).
¶ 77 Plaintiffs suggest that they should be given an opportunity to amend their claim, although, again, they never filed a motion for leave to file a second amended complaint against J&H. Plaintiffs also suggest that resolution of the arguments required discovery. However, as J&H points out, plaintiffs neither filed a counteraffidavit disputing the statements in Cook's affidavit nor filed an affidavit setting forth a need for discovery pursuant to Illinois Supreme Court Rule 191(b) (eff. Jan. 4, 2013). Accordingly, any such argument is forfeited. See Department of Financial &Professional Regulation v. Walgreen Co., 2012 IL App (2d) 110452, ¶ 21 ("If a party fails to file a Rule 191(b) affidavit in the circuit court, it forfeits any argument on appeal that additional discovery was needed and, therefore, the dismissal of its complaint was premature.").
¶ 78 In light of our holding, we need not address plaintiffs' additional arguments.
¶ 79 III. CONCLUSION
¶ 80 The judgment of the circuit court of Will County is affirmed.
¶ 81 Affirmed.