*1 first сourt must the trial dispute, visitation perience a future mediation whether to determine dispute the nature of ascertain problem. resolve the might useful to be the circuit judgment reasons, we reverse foregоing
For the consis- proceedings for further County and remand court of Tazewell this order. tent with and remanded.
Reversed JJ„ McCUSKEY, concur. LYTTON al., Plaintiffs-Appellants, F. v. WALTER RALPH E. ARMSTRONG et al., Defendants-Appellees. GUIGLER et Third District No. 3 — 94—0626
Opinion June J.,
HOLDRIDGE, dissenting. (Thomаs counsel), Leiter, appel- for Group, E. The Leiter of Peoria lants. Elward, Gary D. Nel- Kendall, Covey, I. Brad A. William
Karen L. son, Heyl, Royster, all Allen, Peoria, Voelker & appellees for Walter F. Guigler and Russell V. Smith. P„ Bozеman, (John Neighbour, Noe, Harris, Patton & of Moline counsel), appellee Robert F. Smith. JUSTICE BRESLIN delivered opinion of the court: plaintiffs, Ralph and Armstrong Rema (Armstrongs), sued *2 defendants, the real estate brokers Guigler, Walter Russell Smith Smith, (the and Robert The Agency brokers), Bob Smith d/b/a for breach of an implied duty arising out of a listing written contract. The trial court held that Armstrongs’ the action fell within the five- year applicable statute of limitations to fiduciary duty. breaches of We hold that when a fiduciary relationship is in created a written document, for a claims breach of fiduciary duty governed are by the 10-year statute of limitations for written Accordingly, contracts. we reverse and remand. Armstrongs
The against years suit the brokers 9 and 10 months expiration after the listing of the They claimed that the brokers had failed to disclose regarding information the sale of propеrty the at issue and that the brokers had breached their duties loyalty fidelity and Armstrongs. to the The brokers filed motions to dismiss passage based on the of the statute of limitations. These mo- granted. tions were appeal,
On Armstrongs argue the 10-year pe- limitations (Code) riod found section 13—206 of the Code of Civil Procedure (735 (West 1992)) ILCS apply should because 5/13 —206 the contract which created the relationship between parties writing thе was in and duty because the Armstrongs of the brokers to the in the written contract as a matter of law. The brokers contend that the statute of limitations section 13—205 of (735 (West 1992)) the Code ILCS proper is because the 5/13 —205 еxact agent’s duty nature of the spelled was not out in the contract Armstrongs’ and because the essentially claims are claims for breach fiduciary duty. Initially, we must determine Armstrongs’ whether the claims are indeed fiduciary duty. claims for breach of
A real
listing agreement
estate
a principal
agent
creates
and
re
(See
lationship between
prospective
the broker and the
seller.
Arthur
& Co. v.
Drovers Nationаl Bank
80 Ill.
Rubloff
400
agent
principal
fiduciary duty
N.E.2d
An
its
owes
to treat
candor, care,
principal
loyalty
good
the
with the utmost
faith.
See Burdett v. Miller
them a to fidelity toward loyalty and act with Armstrongs’ property and to agency "an brief, Armstrongs that contend Armstrongs. In their good faith obligations in his agent perform to requires the contract Arm- Although the loyalty principal.” fidelity and and with fiduciary duty, breach of an action for this is not strongs claim that fidelity of which loyalty and duties of because the their claim fails agent fiduciary of the part parcеl they speak Armstrongs’ claims Thus, conclude that we must principal. its by the them fiduciary duty owed to for breach are claims brokers. 798, 271 App. 2d v. Doss cite Anderson The brokers Paints, Bank La Salle National Inc. v. and Luminall N.E.2d that рroposition for the 581 N.E.2d fiduciary duty years. five is for a breach of the statute of statement, these cases to we find quarrel with that we do not While duty implied as case was the distinguishable. neither be Moreover, parties agency contract. in a written a matter of law enforcing find, any the five- cite, case and we were unable to did not fiduciary duty when the fidu year limitations for breach statute of find Consequently, we by a written document. ciary was created Paints and Luminall reliance on Anderson the brokers’ misplaced. *3 of Armstrongs’ claims are for breach
Having determined impos- that the cases fiduciary duty having further determined distinguish- such claims are ing five-year of limitations on a statute bar, statute of now determine what the case at we must able from the when claims for breach of applies limitations a a matter law from written implied as by Circuit Court addressed the Seventh question A similar was Economy of Illinois law. involving application in a the Appeals case (7th Pile Co. Cir. Raymond Concrete Manufacturing Co. v. Fuse & an ac whether 1940), asked to determine Ill F.2d the court was reasonably good workmаn warranty of implied of an tion for breach for written contracts limitations governed by the statute of ship was held that The court contracts. period or the limitations on unwritten contract as of the written by part become implied warranties law Therefore, the expressly stated. surely if those warranties were as claim remove the could not implied that these warranties court held contracts. limitations to writtеn applicable 10-year from the statute of Fuse for Economy cited Supreme Court Subsequently, the Illinois is made is time a contract existing at the proposition the that the law part deemed a part contract and is treated as a of the contract though may even (Schiro it expressly not be referenced in the document.
v. W.E. Gould & Co. 18 Ill. 2d 165 N.E.2d opined The court that the reason parties for this rule is that the providеd would have for that which the implies they law if had not expression believed that such an unnecessary. Schiro, 18 Ill. 2d 544, 165 at N.E.2d at 290.
We find the Economy rationale of persuasive. Fuse and Schiro Consequently, we find that the law imposes fiduciary duty upon agent part becomes a of the written contract between the parties though even expressly the is not stated that contract. Thus, Armstrongs’ governed by 10-year cause of action was governing statute of limitations written contracts. Because the Arm- strongs 10-year filed their claim within period, we hold that the trial court in dismissing erred their claim preju- with dice. foregoing reasons,
For the judgment of the trial court of County Peoria is reversed and the cause is remanded for further proceedings. .
Reversed and remanded.
SLATER, J., concurs. HOLDRIDGE, dissenting: JUSTICE respectfully majority’s must opinion. dissent from the I believe five-year statute of limitations for in section 13— (735 (West 1992)) 205 оf the Code applies ILCS to actions 5/13 —205 fiduciary duty, regardless for breach of fiduciary duty of whether the arises from a written contract or not. would therefore affirm the or- dismissing plaintiff’s der of the trial court comрlaint by as barred statute of limitations. interpreting
Courts consistently Illinois laws on this issue have brought law, held that actions for breach of duties even relationship document, where the parties arises from a written subject nonetheless to the statute of limitations. Cooper Development 850; United Co. 122 Ill. Luminall Paints, Inc. v. La Salle National Bank 803; America, Havoco Corp. Ltd. v. Sumitomo America 971 F.2d *4 In Cooper squarely the court held on this issue: long ago 1892, judicially
"As an as it was determined that action implied undertaking, arising by agree- on an virtue of a written
89 and, ment, an contract an action on unwritten constitutes pe brought limitation consequently, must be within Louis, Ry. Co. Mountain & Southern (Knight v. St. Iron riod. 543.)” 110, App. 3d at (1892), 115, Cooper, 122 Ill. 30 N.E. 141 Ill. 858. on this issue than more instructive that Havoco is believe Raymond Concrete Pile Co. v.
Economy Manufacturing & Co. Fuse majority. Havoco the by the In Ill F.2d cited whereby Hav agency agreement into a written sales parties entered of The court agent for the sale coal. designated as its oco Sumitomo agency relationship be created found that the written contract "[ujnder Sumitomo, law, Hav as parties and that Illinois tween the [Cita a matter of law. agent, fiduciary a as oco’s owed Havoco granted (Havoco, The court tions].” 971 F.2d at district Sumitomo, holding claim for judgment that Havoco’s summary by five-year stat fiduciary time barred the Illinois breach (now (Ill. 110, par. ch. 13—205 ute of limitations. Rev. Stat. (West 1992)).) court, affirming the district ILCS 5/13 —205 court stated: reading plain and demonstrates "[A] [sections 206] 13—205 13— correctly applied fivе-year limitations court district
period. ten-year applies period in section 13—206 only indebtedness; on or written evidence of to actions written contracts other
a is such an ac- breach of clаim not torts, contracts, applies Section 13—205 all actions on oral tion. provided 'all civil actions for.’ A breach of fidu- and not otherwise ciary duty is for’ the Il- claim an action 'not otherwise Havoco, at linois statutes of 971 F.2d 1337. limitations.” Economy, Unlike dealt warranties fitness with contract, workmanship and in a construction Havoco concerns judice, implied duty as the matter sub type same of contract i.e., agency a fiduciary duty implied arising in law and from written and, reasoning in al- agreement. I Havoco is sound believe court’s though controlling, persuasive. not nonetheless dam plaintiffs punitive note in this action seek also general fiduciary duty. As a ages for willful and wanton breach rule, breach of contract. punitive damages not recoverable for (1978), 172, 187; Motorola, Hayes Moyni v. (Kelsay Inc. 74 Ill. 2d v. Comdisco, 423, 426; Inc. han Bank 829.) Lincolnwood purpose of contract The sole dam punitive damages ages compensate nonbreaching party, contract. Morrow v. are not for a "willful” breach of available even Associаtes, L.A. Inc. 112 Ill. 2d Goldschmidt general punitive damages An are not exception to the rule that *5 coverable for breach of contract causing when conduct punitive breach is also a damages tort аre recoverable. (McIntosh (N.D. Magna Systems, v. Inc. Ill. F. Supp. (applying law); Illinois St. Aged Ann’s Home For The v. Daniels damages Punitive are recoverable "where the breach to an independent amounts tort and arе al proper there legations malice, oppression.” wantonness or Bank Lincolnwood Comdisco, v. Inc. 829. appear plaintiffs
Thus it would attempting pick action, among and choose causes of remedies and statutes of limita- tions to suit their damages, needs. When it comes the complaint remedy tort, only seeks available in not in action for a breach of But, plaintiffs when the need to avoid the statute sounding tort, of limitations for actions their cause now becomes an action for beyond breach contract. The trial court saw logic plaintiffs smoke and mirror and would affirm the court’s ruling.
Accordingly, respectfully dissent. LEMNA, Plaintiff-Appellee MICHAEL Counterdefendant-Appellee, ASSOCIATION, Defendant-Appellant UNITED SERVICES AUTOMOBILE Counterplaintiff-Appellant. Third District No. 3 — 94—0647
Opinion June