IN THE CIRCUIT COURT
THIRD JUDICIAL CIRCUIT OF
)
Plaintiff(s), )
)
v. )
KENNETH LUNG, Individually; ) Court No.: 92 L 1083
KENNETH LUNG as Agent and Employee )
of BOB THOMAS PAINTING;
ROBERT )
HARRIS THOMAS, Individually
and ) Honorable P.J. O*Neill
BOB THOMAS as Agent and
Owner ) Presiding
of BOB THOMAS PAINTING; and
ELECTRIC COMPANY. )
)
Defendant(s). )
RESPONSE OF
TO DISMISS OF DEFENDANTS’, KENNETH LUNG,
INDIVIDUALLY;
KENNETH LUNG AS AGENT AND EMPLOYEE OF BOB THOMAS
PAINTING; ROBERT HARRIS THOMAS, INDIVIDUALLY AND
BOB THOMAS AS AGENT AND OWNER OF
BOB THOMAS PAINTING
BACKGROUND AND PROCEEDINGS TO DATE
On
ARGUMENT:
DEFENDANT THOMAS’S MOTION IS INSUFFICIENT ON ITS FACE
TO
ESTABLISH THAT THOMAS PAINTING’S ACTIVITIES CONSTITUTE
EITHER “CONSTRUCTION” OR IMPROVEMENT TO REAL PROPERTY”
UNDER ILL. REV. STAT. CH. 735 PAR. 5/13-214.
Whether
THOMAS*S motion is presented under Ill.
Rev. Stat. Ch. 735 Par. 5/2-615 or 5/2-619 is not clear. However, as THOMAS*S motion raises Ill. Rev. Stat. Ch. 735 Par. 5/13-214 as
a statute of limitations defense, the matter must be examined under Ill. Rev.
Stat. Ch. 735 Par. 5/2-619. Williams
v. Board of Education 222
Review of THOMAS*S motion does not establish his painting activities
involve “the design, planning, supervision, observation or management of
construction, or construction of an improvement to real property” as required
by Ill. Rev. Stat. Ch. 735 Par. 5/13-214 (a). No facts are asserted by THOMAS
how his painting repairs constitute “an improvement to real property” within
Ill. Rev. Stat. Ch. 735 Par. 5/13-214 (a). In this regard, THOMAS must establish
in his motion that THOMAS PAINTING’S activities are in fact an improvement to
real property and not just painting repairs. See People v. Helimuth, Obata & Kassabaum
114
Aside from the insufficient showing in the motion itself, THOMAS has not established that the painting repairs he attempted provide him the protections afforded by Ill. Rev. Stat. Ch. 735 Par. 5/13-214 (a). The well established definition of an improvement to real property is found in Calumet Country Club v. Robert’s Environmental Control Corporation 136 Ill. App. 3d 610, 483 N.E. 2d 613, 616 (1st Dist., 1985). In Calumet, the landowner brought action against the installing contractor of a piping connection between a municipal water main and the buildings water system. The court defined the meaning of “improvement”:
“An “improvement” is an addition to real property
amounting to more than a mere repair or replacement, and which substantially
enhances the value of the property. (citations omitted)...Improvements include
buildings and substantial additions or changes to existing buildings”.
As the Calumet court
had before it, an insufficient record to establish whether the piping connection
was a substantial new addition to the building or merely in the nature
of a repair or replacement, the court remanded the issue to the trial court.
Similarly, in the recent opinion of St. Louis v. Rockwell Graphics (Supreme Court of Ill. Doc. # 72779) 1992 WL 297603, the court considered whether the installation of a new printing press was an “improvement to real property” under 13-214. Citing Hilliard v. Lumnus Co. 834 F. 2d 1352, 1354 (7th Cir., 1987) and Calumet Country Club v. Robert’s Environmental Control Corporation 136 Ill App. 3d 610, 483 N.E. 2d 613 (1st Dist., 1985) the court stated:
“Relevant criteria for determining what constitutes an
improvement to real property” include: whether the addition was meant to
be permanent or temporary, whether it became an integral component of the
overall system, whether the value of the property increased and whether the use
of the property was enhanced”. Slip. Op. at 5-6.
Based on the court*s opinion in St.
Louis, THOMAS has not shown how ordinary painting repairs either amount
to an “improvement” or can be defined as “construction activity”.[1] On the contrary, painting activities by their
very nature, are simply necessary repairs performed solely for ordinary maintenance
or cosmetic reasons. See Marriage of Katherine Ford 175 Ill App.
3d 870, 330 N.E. Ld2 556, 558 (4th Dist., 1988).
Reading the four page services
contract attached to Plaintiff*s
complaint, shows the work that THOMAS performed included painting, scraping,
and caulking of existing weathered surfaces. Carpentry was
specifically excluded. Reference is made to painting and scraping existing
windows and doors, not upgrading or replacing with new ones. Similarly,
sanding, caulking and finishing of existing surfaces was contemplated, not
constructing, modernizing or building new ones.
No reference is made to upgrading, bettering or otherwise, altering the
existing church property for new or further purposes. Hilliard v. Lumnus Company, Inc. 834 F. 2d 1352, 1354 (7th
Cir., 1987). Contemplated by THOMAS*S services
contract was a routine paint job, not substantial additions or renovations to
existing church buildings.[2]
CONCLUSION
It is THOMAS who bears the
responsibility to establish that his painting activities are protected under
Ill. Rev. Stat. Ch. 735 Par. 5/13-214. THOMAS*S motion
does not plead a basis upon which this court can find that his painting
services constituted either “construction activities” or construction of an improvement
to real property. Similarly, THOMAS*S Motion to
does not establish that his activities amounted to more than a mere repair or
replacement of existing church properties.
WHEREFORE, the Plaintiff, FIRST
PRESBYTERIAN CHURCH, respectfully requests this Honorable Court to deny the
Motion to Dismiss of Defendants, KENNETH LUNG, Individually; KENNETH LUNG as
Agent and Employee of BOB THOMAS PAINTING; ROBERT HARRIS THOMAS, Individually
and BOB THOMAS as Agent and Owner of BOB THOMAS PAINTING, and order them to
answer Plaintiff*s
Complaint at Law.
Respectfully
Submitted,
FIRST
PRESBYTERIAN CHURCH.
BY:
Attorney for Plaintiff
Lowell D. Snorf, III
LAW OFFICES OF LOWELL D.
SNORF, III
Telephone: (312) 984-0421
Attorney No.: 71148