Becharas v. Cummings
Annotate this Case
Sixth Division
Filed: 10/17/97
No. 1-96-3353
GEORGE S. BECHARAS, JR., ) Appeal from the Circuit
) Court of Cook County
Plaintiff-Appellant, )
) No. 95 L 7598
v. )
)
THOMAS N. CUMMINGS, ) Honorable
) Philip L. Bronstein,
Defendant-Appellee. ) Judge Presiding.
JUSTICE ZWICK delivered the opinion of the court:
Plaintiff brought this action which sought to enforce the
terms of a written promissory note executed by defendant in 1985.
Upon motion of defendant, the trial court entered summary
judgment in favor of defendant, finding that the statute of
limitations set forth in section 3-118 of the Uniform Commercial
Code (810 ILCS 5/3-118(a) (West 1994)) applied retroactively to
bar plaintiff's claim. Plaintiff has appealed this ruling.
Plaintiff alleged that prior to April 15, 1985, he loaned to
defendant sums of money on various occasions totaling more than
$20,000. On the above date, defendant executed a promissory note
in favor of plaintiff in the amount of $20,000, with interest at
the rate of 10%, compounded monthly. The promissory note
provided, in relevant part, as follows:
"One year after date, for value received, the
undersigned promises to pay to the order of George S.
Becharas, Jr. Twenty Thousand and no/100 Dollars at 555
West Cornelia, Chicago, Illinois 60657; with interest
at Ten (10%) percent per annum *** compounded monthly
after the date of this note until paid."
The promissory note also contained a confession of judgment
clause and a provision for reasonable costs of collection,
including reasonable attorney's fees.
On April 12, 1995, plaintiff filed his initial complaint
against defendant, seeking recovery under the note. On April 25,
1995, plaintiff obtained a judgment by confession, and on July
28, 1995, defendant filed a motion to open the judgment by
confession. Defendant also filed a verified answer, denying that
he had executed the promissory note or that he owed plaintiff any
money. On August 21, 1995, plaintiff filed an affidavit in
response, stating, inter alia, that the money had been loaned to
defendant to cover business expenses and that plaintiff had
demanded payment on the note in August 1989, but defendant had
refused to satisfy the debt.
The trial court subsequently entered an order opening the
judgment by confession, and plaintiff thereafter filed a first
amended complaint. Defendant filed a verified answer and
counterclaim, denying that he had executed the note.
On February 16, 1996, defendant filed a motion for summary
judgment, asserting that plaintiff's claim was barred by the
applicable statute of limitations. Defendant also filed an
amended verified answer and affirmative defense which raised the
statute of limitations. Plaintiff thereafter denied the
allegations contained in defendant's affirmative defense and
opposed the motion for summary judgment. The trial court granted
defendant's motion for summary judgment on August 23, 1996,
finding that section 3-118(a) of the Illinois Commercial Code,
effective January 1, 1992, applied retroactively to bar
plaintiff's claim and that plaintiff had not filed his action
within a reasonable time of the enactment of that statute.
Defendant withdrew his counterclaim, and plaintiff appealed the
entry of summary judgment in favor of defendant.
On appeal, plaintiff contends that the trial court erred in
finding that his cause of action was barred. In support of this
contention, plaintiff argues that the statute of limitations for
his claim is defined in section 13-206 of the Illinois Code of
Civil Procedure, which provides, in pertinent part, that actions
on promissory notes shall be commenced within 10 years after the
cause of action has accrued. See 735 ILCS 5/13-206 (West 1994).
Plaintiff asserts that because this statute of limitations was in
effect when the note was executed and when it came due, he had 10
years to file suit on the note. Plaintiff reasons that because
his claim would not have been barred under this statute until
April 15, 1996, his compliant filed on April 12, 1995, was
timely.
However, the trial court determined that the six-year
statute of limitations set forth in section 3-118(a) of the
Uniform Commercial Code governed plaintiff's claim.
Section 3-118(a), which became effective January 1, 1992,
states as follows:
"Statute of limitations. (a) Except as provided
in subsection (e), an action to enforce the obligation
of a party to pay a note payable at a definite time
must be commenced within 6 years after the due date or
dates stated in the note or, if a due date is
accelerated, within 6 years after the accelerated due
date." 810 ILCS 5/3-118(a) (West 1994).
Plaintiff asserts that the trial court erred in finding that
this provision applied retroactively to bar his claim. We
disagree.
Whether an amendment to a statute may be deemed to be
retroactive depends generally upon whether it relates to
substantive rights or whether it affects merely the remedy or a
matter of procedure. Dworak v. Tempel, 17 Ill. 2d 181, 187, 161 N.E.2d 258 (1959), citing Orlicki v. McCarthy, 4 Ill. 2d 342, 122 N.E.2d 513 (1954). As a general rule, amendments relating to
substantive rights must be applied prospectively (Dworak, 17 Ill.
2d at 187); however, amendments relating to the remedy or a
matter of procedure are generally applied retroactively (Orlicki,
4 Ill. 2d at 347-48). When a change in law affects only the
remedy or the law of procedure, a right of action will be
enforced under the new procedure without regard to whether it
accrued before or after the change in the law, and without regard
to whether or not suit had been instituted. In re Pronger, 118 Ill. 2d 512, 522, 517 N.E.2d 1076 (1987), citing Ogdon v.
Gianakos, 415 Ill. 591, 597, 114 N.E.2d 686 (1953).
It is established that statutes of limitation have
historically been classified as procedural in character, and are
to be applied retroactively. Orlicki, 4 Ill. 2d at 352-53.
However, shortened statutes of limitations will not be applied
retroactively to instantaneously bar an existing right of action.
Moore v. Jackson Park Hospital, 95 Ill. 2d 223, 230, 447 N.E.2d 408 (1983). To avoid this unjust result, courts have recognized
an exception which allows a plaintiff a reasonable period of time
to bring his action where a statutory enactment has shortened a
limitations period, or established one where one did not
previously exist, and where the plaintiff's cause of action arose
before the effective date of the statute. Mega v. Holy Cross
Hospital, 111 Ill. 2d 416, 420, 490 N.E.2d 665 (1986), citing
Hupp v. Gray, 73 Ill. 2d 78, 83, 382 N.E.2d 1211 (1978), and
Meegan v. Village of Tinley Park, 52 Ill. 2d 354, 359, 288 N.E.2d 423 (1972). The reasonable-period-of-time exception applies
equally to a new statute of limitations as to an amendment
shortening a prior statute. See Benton v. Vonnahmen, 288 Ill.
App. 3d 199, 203, 679 N.E.2d 1270 (1997); In re Marriage of
Ingram, 176 Ill. App. 3d 413, 419, 531 N.E.2d 97 (1988).
The critical period of time in such analysis is that time
between the effective date of the statute and the date on which
the preexisting cause of action would be barred under the new
statute. Benton, 288 Ill. App. 3d at 203; People ex rel. Skinner
v. Graham, 170 Ill. App. 3d 417, 432, 524 N.E.2d 642 (1988). The
fundamental question is whether the plaintiff filed his cause of
action within a reasonable time after the amendment. Benton, 288
Ill. App. 3d at 204; Graham, 170 Ill. App. 3d at 433. What
constitutes a reasonable period of time in which to commence an
action will depend on the facts of each case. Benton, 288 Ill.
App. 3d at 204; Sakellariadis v. Spanos, 163 Ill. App. 3d 1084,
1089, 517 N.E.2d 324 (1987).
In the case at bar, section 3-118(a) became effective on
January 1, 1992. Plaintiff's cause of action was barred under
that section as of April 15, 1992, three and one-half months
after the statute became effective. It has been held that if a
reasonable time remains under the new statute, the new period can
be applied, without more; if a reasonable time would not remain,
then one will be allowed. Mega, 111 Ill. 2d at 420-421; Benton,
288 Ill. App. 3d at 204.
Although the question of whether a plaintiff has filed his
claim within a reasonable time after the enactment of the statute
might generally be considered a question of fact and not
appropriate for summary judgment, where it is apparent from the
undisputed facts that only one conclusion can be drawn, the
question becomes one for the court. Benton, 288 Ill. App. 3d at
204. Such is the case here, and the trial court specifically
found that plaintiff failed to bring his action within a
reasonable time. More than 39 months elapsed between the
effective date of section 3-118(a) and the filing of plaintiff's
complaint. We agree with the trial court that no reasonable mind
could conclude that plaintiff filed his complaint within a
reasonable period of time after the enactment of the new statute
of limitations.
Because 39 months exceeds any reasonable period of time
required to avoid injustice and to effectuate the purpose of the
reasonable-period-of-time exception, we hold as a matter of law
that plaintiff's cause of action was barred by application of the
six-year statute of limitations contained in section 3-118(a) of
the Uniform Commercial Code. Accordingly, we affirm the entry of
summary judgment in favor of defendant.
For the foregoing reasons, the judgment of the circuit court
of Cook County is affirmed.
AFFIRMED.
THEIS, J., and QUINN, J., concur.
Filed: 10/17/97
No. 1-96-3353
GEORGE S. BECHARAS, JR., ) Appeal from the Circuit
) Court of Cook County
Plaintiff-Appellant, )
) No. 95 L 7598
v. )
)
THOMAS N. CUMMINGS, ) Honorable
) Philip L. Bronstein,
Defendant-Appellee. ) Judge Presiding.
JUSTICE ZWICK delivered the opinion of the court:
Plaintiff brought this action which sought to enforce the
terms of a written promissory note executed by defendant in 1985.
Upon motion of defendant, the trial court entered summary
judgment in favor of defendant, finding that the statute of
limitations set forth in section 3-118 of the Uniform Commercial
Code (810 ILCS 5/3-118(a) (West 1994)) applied retroactively to
bar plaintiff's claim. Plaintiff has appealed this ruling.
Plaintiff alleged that prior to April 15, 1985, he loaned to
defendant sums of money on various occasions totaling more than
$20,000. On the above date, defendant executed a promissory note
in favor of plaintiff in the amount of $20,000, with interest at
the rate of 10%, compounded monthly. The promissory note
provided, in relevant part, as follows:
"One year after date, for value received, the
undersigned promises to pay to the order of George S.
Becharas, Jr. Twenty Thousand and no/100 Dollars at 555
West Cornelia, Chicago, Illinois 60657; with interest
at Ten (10%) percent per annum *** compounded monthly
after the date of this note until paid."
The promissory note also contained a confession of judgment
clause and a provision for reasonable costs of collection,
including reasonable attorney's fees.
On April 12, 1995, plaintiff filed his initial complaint
against defendant, seeking recovery under the note. On April 25,
1995, plaintiff obtained a judgment by confession, and on July
28, 1995, defendant filed a motion to open the judgment by
confession. Defendant also filed a verified answer, denying that
he had executed the promissory note or that he owed plaintiff any
money. On August 21, 1995, plaintiff filed an affidavit in
response, stating, inter alia, that the money had been loaned to
defendant to cover business expenses and that plaintiff had
demanded payment on the note in August 1989, but defendant had
refused to satisfy the debt.
The trial court subsequently entered an order opening the
judgment by confession, and plaintiff thereafter filed a first
amended complaint. Defendant filed a verified answer and
counterclaim, denying that he had executed the note.
On February 16, 1996, defendant filed a motion for summary
judgment, asserting that plaintiff's claim was barred by the
applicable statute of limitations. Defendant also filed an
amended verified answer and affirmative defense which raised the
statute of limitations. Plaintiff thereafter denied the
allegations contained in defendant's affirmative defense and
opposed the motion for summary judgment. The trial court granted
defendant's motion for summary judgment on August 23, 1996,
finding that section 3-118(a) of the Illinois Commercial Code,
effective January 1, 1992, applied retroactively to bar
plaintiff's claim and that plaintiff had not filed his action
within a reasonable time of the enactment of that statute.
Defendant withdrew his counterclaim, and plaintiff appealed the
entry of summary judgment in favor of defendant.
On appeal, plaintiff contends that the trial court erred in
finding that his cause of action was barred. In support of this
contention, plaintiff argues that the statute of limitations for
his claim is defined in section 13-206 of the Illinois Code of
Civil Procedure, which provides, in pertinent part, that actions
on promissory notes shall be commenced within 10 years after the
cause of action has accrued. See 735 ILCS 5/13-206 (West 1994).
Plaintiff asserts that because this statute of limitations was in
effect when the note was executed and when it came due, he had 10
years to file suit on the note. Plaintiff reasons that because
his claim would not have been barred under this statute until
April 15, 1996, his compliant filed on April 12, 1995, was
timely.
However, the trial court determined that the six-year
statute of limitations set forth in section 3-118(a) of the
Uniform Commercial Code governed plaintiff's claim.
Section 3-118(a), which became effective January 1, 1992,
states as follows:
"Statute of limitations. (a) Except as provided
in subsection (e), an action to enforce the obligation
of a party to pay a note payable at a definite time
must be commenced within 6 years after the due date or
dates stated in the note or, if a due date is
accelerated, within 6 years after the accelerated due
date." 810 ILCS 5/3-118(a) (West 1994).
Plaintiff asserts that the trial court erred in finding that
this provision applied retroactively to bar his claim. We
disagree.
Whether an amendment to a statute may be deemed to be
retroactive depends generally upon whether it relates to
substantive rights or whether it affects merely the remedy or a
matter of procedure. Dworak v. Tempel, 17 Ill. 2d 181, 187, 161 N.E.2d 258 (1959), citing Orlicki v. McCarthy, 4 Ill. 2d 342, 122 N.E.2d 513 (1954). As a general rule, amendments relating to
substantive rights must be applied prospectively (Dworak, 17 Ill.
2d at 187); however, amendments relating to the remedy or a
matter of procedure are generally applied retroactively (Orlicki,
4 Ill. 2d at 347-48). When a change in law affects only the
remedy or the law of procedure, a right of action will be
enforced under the new procedure without regard to whether it
accrued before or after the change in the law, and without regard
to whether or not suit had been instituted. In re Pronger, 118 Ill. 2d 512, 522, 517 N.E.2d 1076 (1987), citing Ogdon v.
Gianakos, 415 Ill. 591, 597, 114 N.E.2d 686 (1953).
It is established that statutes of limitation have
historically been classified as procedural in character, and are
to be applied retroactively. Orlicki, 4 Ill. 2d at 352-53.
However, shortened statutes of limitations will not be applied
retroactively to instantaneously bar an existing right of action.
Moore v. Jackson Park Hospital, 95 Ill. 2d 223, 230, 447 N.E.2d 408 (1983). To avoid this unjust result, courts have recognized
an exception which allows a plaintiff a reasonable period of time
to bring his action where a statutory enactment has shortened a
limitations period, or established one where one did not
previously exist, and where the plaintiff's cause of action arose
before the effective date of the statute. Mega v. Holy Cross
Hospital, 111 Ill. 2d 416, 420, 490 N.E.2d 665 (1986), citing
Hupp v. Gray, 73 Ill. 2d 78, 83, 382 N.E.2d 1211 (1978), and
Meegan v. Village of Tinley Park, 52 Ill. 2d 354, 359, 288 N.E.2d 423 (1972). The reasonable-period-of-time exception applies
equally to a new statute of limitations as to an amendment
shortening a prior statute. See Benton v. Vonnahmen, 288 Ill.
App. 3d 199, 203, 679 N.E.2d 1270 (1997); In re Marriage of
Ingram, 176 Ill. App. 3d 413, 419, 531 N.E.2d 97 (1988).
The critical period of time in such analysis is that time
between the effective date of the statute and the date on which
the preexisting cause of action would be barred under the new
statute. Benton, 288 Ill. App. 3d at 203; People ex rel. Skinner
v. Graham, 170 Ill. App. 3d 417, 432, 524 N.E.2d 642 (1988). The
fundamental question is whether the plaintiff filed his cause of
action within a reasonable time after the amendment. Benton, 288
Ill. App. 3d at 204; Graham, 170 Ill. App. 3d at 433. What
constitutes a reasonable period of time in which to commence an
action will depend on the facts of each case. Benton, 288 Ill.
App. 3d at 204; Sakellariadis v. Spanos, 163 Ill. App. 3d 1084,
1089, 517 N.E.2d 324 (1987).
In the case at bar, section 3-118(a) became effective on
January 1, 1992. Plaintiff's cause of action was barred under
that section as of April 15, 1992, three and one-half months
after the statute became effective. It has been held that if a
reasonable time remains under the new statute, the new period can
be applied, without more; if a reasonable time would not remain,
then one will be allowed. Mega, 111 Ill. 2d at 420-421; Benton,
288 Ill. App. 3d at 204.
Although the question of whether a plaintiff has filed his
claim within a reasonable time after the enactment of the statute
might generally be considered a question of fact and not
appropriate for summary judgment, where it is apparent from the
undisputed facts that only one conclusion can be drawn, the
question becomes one for the court. Benton, 288 Ill. App. 3d at
204. Such is the case here, and the trial court specifically
found that plaintiff failed to bring his action within a
reasonable time. More than 39 months elapsed between the
effective date of section 3-118(a) and the filing of plaintiff's
complaint. We agree with the trial court that no reasonable mind
could conclude that plaintiff filed his complaint within a
reasonable period of time after the enactment of the new statute
of limitations.
Because 39 months exceeds any reasonable period of time
required to avoid injustice and to effectuate the purpose of the
reasonable-period-of-time exception, we hold as a matter of law
that plaintiff's cause of action was barred by application of the
six-year statute of limitations contained in section 3-118(a) of
the Uniform Commercial Code. Accordingly, we affirm the entry of
summary judgment in favor of defendant.
For the foregoing reasons, the judgment of the circuit court
of Cook County is affirmed.
AFFIRMED.
THEIS, J., and QUINN, J., concur.
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