Ardon Elec. Co. v. WINTERSET CONSTRUCTION

• Decision Date: 02 November 2004
• Docket Number: No. 1-03-0957.,1-03-0957.
• Citation: 289 Ill.Dec. 513,820 N.E.2d 21,354 Ill. App.3d 28
• Court: United States Appellate Court of Illinois
• Parties: ARDON ELECTRIC COMPANY, INC., an Illinois Corporation; Airy's, Inc., an Illinois Corporation, Carroll Seating Company, an Illinois Corporation; J & R Number One in Asphalt Co., Inc., an Illinois corporation; and Knippel Iron Inc., an Illinois Corporation, Plaintiffs-Appellants, v. WINTERSET CONSTRUCTION, INC., and The Village of Merrionette Park, Illinois, a Municipal Corporation, Defendants-Appellees.

820 N.E.2d 21

354 Ill. App.3d 28

289 Ill.Dec. 513

ARDON ELECTRIC COMPANY, INC., an Illinois Corporation; Airy's, Inc., an Illinois Corporation, Carroll Seating Company, an Illinois Corporation; J & R Number One in Asphalt Co., Inc., an Illinois corporation; and Knippel Iron Inc., an Illinois Corporation, Plaintiffs-Appellants, v. WINTERSET CONSTRUCTION, INC., and The Village of Merrionette Park, Illinois, a Municipal Corporation, Defendants-Appellees.

No. 1-03-0957.

Appellate Court of Illinois, First District, Second Division.

November 2, 2004.

Louis V. Kiefor, Calumet City, for Plaintiffs-Appellants.

Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., Chicago (Kenneth M. Florey, W. Grant Farrar, of counsel), for Defendant-Appellee The Village of Merrionette Park.

Justice GARCIA delivered the opinion of the court:

The plaintiffs, Ardon Electric Company, Inc., Airy's, Inc., Carroll Seating Company, J & R Number One in Asphalt Company, Inc., and Knippel Iron, Inc. (collectively plaintiffs), appeal the trial court's February 23, 2003, order dismissing their third-party-beneficiary claims directed against the defendant, Village of Merrionette Park (Village), as time-barred under section 2 of the Public Construction Bond Act (Bond Act) (30 ILCS 550/2 (West 1998)). Specifically, the plaintiffs argue the claims were based on a breach of contract and the Bond Act's statute of limitations does not apply. We agree and reverse.

I. Background

On December 1, 1999, the Village entered into a contract (general contract) with Winterset Construction, Inc. (Winterset), for the construction of a new police station in the Village. Thereafter, Winterset entered into contracts with the plaintiffs, as subcontractors, to perform the work required under its contract with the Village. The pleadings present no dispute that the plaintiffs completed the work in compliance with the contract but were not paid in full for their services. Winterset is not a party to this appeal.

The plaintiffs served notice of their claims for money due on the Village and Winterset and were advised by the Village that no payment bond was available. Individually, the plaintiffs sued the Village and Winterset, seeking multiple forms of relief. The dates each plaintiff entered into a contract with Winterset (Entered), the dates those contracts were completed (Completed), the dates each plaintiff filed a notice of lien (Notice), and the dates each plaintiff filed a complaint against the Village (Complaint) are outlined in the table below.

Entered Completed Notice Complaint Airy's: 09/27/2000 02/07/2001 05/21/2001 09/10/2001 Carroll: 09/18/2000 01/19/2001 10/26/2001 12/11/2001 Ardon: 05/28/2000 09/01/2001 10/23/2001 12/13/2001 Knippel: 04/04/2000 01/23/2001 11/15/2001 12/21/2001 J & R: 06/13/2000 05/23/2001 09/04/01 01/30/2003

These cases were consolidated with a case filed by Valley Security Company, which is not a party to this appeal.

The Village filed multiple motions to dismiss directed at those counts alleging breach of contract and breach of third-party-beneficiary contract. The Village claimed, through affidavits from Donald Wallin, architect of the police station, and Donald Peck, the Village's building commissioner, that it accepted the new police station as substantially complete on January 25, 2001, and that the station was 100% complete on February 10, 2001, when Wallin approved Winterset's last-payment request. The Village argued that because the plaintiffs either did not file their notice within 180 days after completing their work or file their complaints within 6 months following acceptance, their claims were time-barred under the Bond Act. Additionally, the Village argued that it did not, under the Bond Act, have a duty to require Winterset to obtain a bond.

On February 7, 2003, the trial court entered its findings of fact. The court found that (1) the Village failed to require Winterset to provide a payment bond; (2) all plaintiffs, except Ardon and J & R, failed to file a notice of claim with the Village within 180 days of completing their contract and therefore had no right of action under the Bond Act; (3) the Village accepted the police station no later than February 22, 2001; and (4) Ardon and J & R filed their complaints more than six months after the police station was accepted and therefore had no right of recovery under the Bond Act. On February 26, 2003, the court granted the Village's motions to dismiss the breach of contract and third-party beneficiaries counts. This appeal followed.

II. Analysis

Before we address the merits of the plaintiffs' appeal, we must first rule on the Village's motion to strike plaintiffs' notice of appeal. The Village argues that because the notice of appeal named five plaintiffs-appellants, but was only signed by one attorney, the notice violates Supreme Court Rule 303 (155 Ill.2d R. 303).

A. Motion to Strike Notice of Appeal

On March 26, 2003, the plaintiffs filed their notice of appeal. The notice asked this court to reverse the trial court's order dismissing plaintiffs' third-party beneficiary claims. Although each plaintiff was represented by a different attorney in the trial court, the notice of appeal was signed only by Louis V. Kiefor, trial attorney for Knipple. The Village argues plaintiffs are not properly before this court because (1) the notice of appeal designates five appellants but only one attorney signed the notice, and (2) the attorney did not indicate which appellant he represented.

Rule 303(b)(3) mandates that a notice of appeal "shall contain the signature and address of each appellant or appellant's attorney." 155 Ill.2d R. 303(b)(3). The introduction to the notice of appeal designates "Ardon Electric Company, Inc., Airy's Inc., Carroll Seating Company, J & R Number One in Asphalt Co., and Knippel Iron Inc.," as plaintiffs-appellants. Kiefor signed the notice as "one of the attorneys for plaintiff[s]-appellants."

It is clear from the notice of appeal that Kiefor signed it on behalf of all of the plaintiffs-appellants. The notice identified each plaintiff-appellant and each case number applicable to each plaintiff-appellant. Further, the notice of appeal asks that this court reverse the ruling of the trial court as applicable to each plaintiff-appellant and identified each paragraph of the trial court's order that applies to each plaintiff-appellant. Nothing in the notice of appeal suggests that Kiefor did not represent the interests of all of the plaintiffs-appellants when he filed the notice of appeal. We therefore find no violation of Rule 303.

The cases cited by the Village do not require a different holding. The court in U.S. Air, Inc. v. Prestige Tours, Inc., 159 Ill.App.3d 150, 151, 111 Ill.Dec. 164, 512 N.E.2d 68 (1987), found that "the record is confusing as to which of the 14 present plaintiffs are in fact appealing." The notice of appeal was signed by only one plaintiff; the other plaintiffs neither joined the appeal nor filed their own notice of appeal. Although only one plaintiff signed the notice of appeal, the appellate brief designated seven of the plaintiffs as plaintiffs-appellants. The court dismissed the appeal but its decision was not based solely on the plaintiffs' failure to sign the notice of appeal: the notice of appeal was untimely; the court found that the order being appealed was not final; and questions existed as to whether the plaintiffs were the proper parties to the action. U.S. Air, 159 Ill.App.3d at 153-55, 111 Ill.Dec. 164, 512 N.E.2d 68. Here, the plaintiffs' notice of appeal was timely and made clear that attorney Kiefor signed the notice on behalf of all of the named plaintiffs.

In People v. Krueger, 146 Ill.App.3d 530, 533, 99 Ill.Dec. 258, 495 N.E.2d 993 (1986), the appellate court held that it would consider the appeal only as to the pro se appellant who signed the notice of appeal. In Beneficial Development Corp. v. City of Highland Park, 239 Ill.App.3d 414, 416, 179 Ill.Dec. 1005, 606 N.E.2d 837 (1992), rev'd in part on other grounds, 161 Ill.2d 321, 204 Ill.Dec. 211, 641 N.E.2d 435 (1994),

the appellate court struck those portions of the appellant's brief that concerned parties not named in the notice of appeal. Although the attorney who signed the notice of appeal was the attorney of record for all the plaintiffs at trial, he signed the notice of appeal as the attorney for plaintiff-appellant Beneficial. The court held that the "notice of appeal clearly named Beneficial, and Beneficial alone, as plaintiff-appellant." Beneficial Development, 239 Ill.App.3d at 416,

179 Ill.Dec. 1005,

606 N.E.2d 837.

In this case, Kiefor signed the notice of appeal on behalf of all the plaintiffs-appellants. Rule 303(a) requires that the notice of appeal be signed by all appellants or by an attorney on behalf of the appellants. We therefore hold that all of the plaintiffs-appellants named in the notice of appeal are properly before this court and there is no need to grant leave to amend the notice. We now turn to the merits of plaintiffs' appeal.

B. Plaintiffs' Claims

The plaintiffs argue that the trial court erred in dismissing their third-party-beneficiary contract claims as time-barred under section 2 of the Bond Act. They contend that because Winterset did not secure a payment bond and the Village did not require them to do so, no bond existed upon which a suit could be commenced under the Bond Act. Because there was no bond to sue on, the plaintiffs argue that their claims must be viewed under statutes and case law governing third-party contracts. In the alternative, the plaintiffs argue that if section 2 of the Bond Act does apply, the police station was not completed on February 22, 2001.

1. Standard of Review

The trial court granted the Village's motions to dismiss the plaintiffs's claims under section 2-619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5) (West 2002)). A claim is properly dismissed...