BRUEL AND KJAER v. Village of Bensenville
969 N.E.2d 445
Ill. App. Ct.2012Background
- In 1999 Bruel & Kjaer entered a contract with the Village of Bensenville (and Suburban O'Hare Commission) to upgrade noise-monitoring and radar systems and provide annual servicing for $227,000.
- The agreement labeled Bruel as seller and the Village as buyer, and required delivery, assembly, installation, testing, and operation of the Equipment and System FOB at a designated site with title passing upon final payment.
- Exhibit A described software upgrades, system enhancements, and ongoing servicing; the contract also included extensive software development and engineering support as part of the consideration for the purchase.
- Plaintiff invoiced $227,000; January 2002 there was a formal approval and invoice, but the first invoice was not paid; in June 2004 the Village paid $50,000 and later made no further payments.
- The action was filed on November 12, 2010 for breach of contract; the Village moved to dismiss under section 2-619 arguing the four-year UCC 2-725 limitations applied; plaintiff contended the contract was predominantly services and thus governed by a ten-year period under 13-206, or that Mohamed’s unopposed affidavit showed factual disputes.
- The trial court held the contract predominantly for goods and thus the UCC four-year limitations applied, and the appellate court affirmed the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Predominant purpose of contract governs limitations | Plaintiff argues services predominate; 10-year limit (13-206) applies | Defendant argues goods predominate under Brandt and related cases; four-year UCC limit applies | Contract predominately for goods; UCC 2-725 applies and action time-barred. |
| Whether Mohamed affidavit created a material factual dispute | Unopposed affidavit shows disputed facts about goods vs. services | Affidavit restates contract terms and does not reveal a genuine dispute | Affidavit fails to raise a material factual issue; no jury needed. |
| Proper application of case law to mixed contracts | Cases like Dealer Management support treating software as potentially a service | Terms and context show goods-centric transaction; trial court correctly followed Brandt and related rulings | Transaction is a sale of goods; reliance on Dealer Management did not change result; dismissal affirmed. |
Key Cases Cited
- Brandt v. Boston Scientific Corp., 204 Ill.2d 640 (2003) (predominant purpose test; goods vs services; disposition on law)
- Dealer Management Systems, Inc. v. Design Automotive Group, Inc., 355 Ill.App.3d 416 (2005) (software on continuum; mixed contracts; goods may predominate)
- Nitrin, Inc. v. Bethlehem Steel Corp., 35 Ill.App.3d 577 (1976) (analyze contract to discern purpose; goods vs services)
- Zielinski v. Miller, 277 Ill.App.3d 735 (1995) (not primarily for sale of goods; distinguish contracts)
- Boddie v. Litton Unit Handling Systems, 118 Ill.App.3d 520 (1983) (construction-type contracts; services predominance)
- Continental Illinois National Bank & Trust Co. v. National Casket Co., 27 Ill.App.2d 447 (1960) (manufacture/installation of marquee; goods vs services)