G. H. Sternberg & Co. v. Bond

• Decision Date: 24 June 1975
• Docket Number: No. 74--389,74--389
• Citation: 30 Ill.App.3d 874,333 N.E.2d 261
• Court: United States Appellate Court of Illinois
• Parties: G. H. STERNBERG & CO., a corporation, Plaintiff-Appellee, v. Langhorne BOND (as Successor to William F. Cellini), Director of the Department of Transportation of the State of Illinois, Defendant-Appellant, General Insurance Company of America, a Washington Corporation, Defendant.

Page 261

333 N.E.2d 261

30 Ill.App.3d 874

G. H. STERNBERG & CO., a corporation, Plaintiff-Appellee, v.Langhorne BOND (as Successor to William F. Cellini) Director of the Department of Transportation of the State of Illinois, Defendant-AppellantGeneral Insurance Company of America, a Washington Corporation, Defendant.

No. 74--389.

Appellate Court of Illinois, Fifth District.

June 24, 1975.

Rehearing Denied Aug. 12, 1975.

William J. Scott, Atty. Gen. of the State of Illinois, for defendant-appellant, Dept. of Trans.; Jerrald B. Abrams, Asst. Atty. Gen., Chicago, of counsel.

Dailey & Walker, Granite City, for plaintiff-appellee.

KARNS, Justice:

This is an interlocutory appeal from an order of the Circuit Court of Madison County temporarily enjoining defendant- appellant Langhorne Bond from enforcing contract rights against plaintiff-appellee under a construction contract entered into between plaintiff and the State.The order also enjoined defendant from seeking to enforce rights under a performance bond issued by the General Insurance Company of America.General was named a partydefendant and was enjoined from performing duties and obligations it incurred on the bond.Defendant Bond is the Director of the Department of Transportation of the State of Illinois.The suit was originally brought against William F. Cellini, Bond's predecessor.Bond was substituted as a partydefendant and a temporary injunction was issued after Ex parte proceedings.This court reversed, holding that the injunction against Bond was void for lack of notice but commented on the probable unavailability of equitable relief on the facts alleged in the complaint.Sternberg v. Cellini, 16 Ill.App.3d 1, 305 N.E.2d 317(1973).The underlying facts of this litigation are contained in that opinion and need not be repeated here.On remand, plaintiff stood on its complaint, unamended, which charged that fraud and misrepresentation by Cellini occurred in the procurement of the contract and that the contract was impossible of performance.Defendant Bond stood on a motion to strike previously filed and a motion to reconsider the order denying that motion.Both motions alleged lack of jurisdiction in the circuit court.A hearing was held on the prayer for a temporary injunction but defendant refused to take part although counsel for defendant was present.The court denied the motion to reconsider and entered the temporary injunction.Defendant now appeals pursuant to Supreme Court Rule 307. Ill.Rev.Stat.1973, ch. 110A, par. 307.

Plaintiff-appellee argues in its brief that the appeal should be dismissed for want of an appealable order.In our earlier opinion in this case, we noted that a motion to reconsiderdefendant's motion to strike and dismiss the complaint for an injunction was still pending and ruled solely on the issuance of the injunction without notice to Langhorne Bond, successor to Cellini.On remand, a hearing on the injunction was held.Defendant, however, elected to stand on his motion to reconsider the denial of his motion to dismiss and took no part in the injunction hearing, nor challenged the sufficiency of the complaint to support injunctive relief.Thus, appellee argues, defendant cannot be heard to complain of the issuance of the injunction.The appeal, according to appellee, is from the denial of the motion to reconsider(included in the order granting the injunction) and is not appealable under Rule 307. Ill.Rev.Stat.1973, ch. 110A, par. 307.We note first that the notice of appeal specifies for review both the denial of the motion to reconsider and the issuance of the injunction.But appellee's argument contains some merit.Defendant's motion to strike raises the question of sovereign immunity.The motion to reconsider realleges immunity and adds as grounds the exclusive jurisdiction of the Court of Claims over the dispute in question.Nowhere in the record does defendant challenge the complaint for injunctive and equitable relief on the merits.Thus, if injunctive relief is a proper avenue of redress for plaintiff, defendant cannot now be heard to complain that an injunction should not issue on the merits of plaintiff's claim.Defendant did, however, at all times preserve the question of the jurisdiction of the circuit court.And it is upon that issue that we dispose of the case.

Appellant alleges that the action is in fact a suit against the State of Illinois and, as such, must be brought in the Illinois Court of Claims or not at all.Thus, appellant argues that the circuit court is devoid of jurisdiction.Plaintiff alleges that the suit is based on the fraud of William E. Cellini, former Director of the Department of Public Works and Buildings, in the procurement of the contract and that an injunction against his successor, Langhorne Bond, may properly issue from the circuit court.

The Illinois Constitution of 1870, Article IV, Section 26, provided: 'The State of Illinois shall never be made defendant in any court of law or equity.'The new constitution altered that section to read: 'Except as the General Assembly may provide by law, sovereign immunity in this state is abolished.'Illinois Constitution of 1970, Article XIII, Section 4, S.H.A.Ill.Rev.Stat.1973, ch. 127, par. 801, provides: 'Except as provided in 'An Act to create the Court of Claims . . .' filed July 17, 1945, as amended, the State of Illinois shall not be made a defendant or party in any court.'The Court of Claims Act provides several instances wherein the State may be sued.Ill.Rev.Stat.1973, ch. 37, par. 439.8.For our purposes, only one is material.Subparagraph b of paragraph 439.8 provides that the Court of Claims shall have 'exclusive jurisdiction' to hear 'all claims against the State founded upon any contract entered into with the State of Illinois.'

Plaintiff's complaint alleges fraud and misrepresentation against William Cellini in the procurement of the contract and that the contract is impossible of performance.This court stated in the earlier opinion that the allegations were but mere conclusions.On remand, plaintiff did not seek to amend the original complaint.We still believe that the pleadings state nothing but conclusions of law without sufficient facts to afford relief.At the hearing on the injunction, plaintiff's two witnesses attempted to establish irreparable injury in that...