John Burns Const. Co. v. City of Chicago
| Decision Date | 11 September 1992 |
| Docket Number | No. 1-89-1090,1-89-1090 |
| Citation | 601 N.E.2d 1024,234 Ill.App.3d 1027,176 Ill.Dec. 326 |
| Parties | , 176 Ill.Dec. 326 JOHN BURNS CONSTRUCTION COMPANY, Plaintiff-Appellant, v. The CITY OF CHICAGO, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Murphy & Boyle, Chartered, Chicago, for plaintiff-appellant.
Corp. Counsel of Chicago, Chicago, for defendant-appellee.
Plaintiff John Burns Construction Company appeals from a trial court order dismissing its complaint pursuant to section 2-615 of the Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-615) for failure to state a cause of action against defendant the City of Chicago, in this suit where plaintiff seeks damages for delay in a construction project due to the city's failure to timely acquire the necessary rights-of-way and easements. On appeal, plaintiff contends that the complaint states a cause of action for breach of contract, notwithstanding the contract's "no damages for delay" clause.
Plaintiff filed its complaint on September 4, 1986. On April 9, 1987, the city filed a motion to strike and dismiss, based on the no damages for delay clause and on the procedural ground that the contract required that all disputes be presented to the Purchasing Agent.
On May 19, 1987, the trial court struck the complaint with leave to amend in order "to bring this cause within any exception to the rule that no damages for delay clauses are enforceable."
On June 16, 1987, plaintiff filed a First Amended Complaint, adding allegations regarding the city's "reckless indifference" to its obligations, and breach of an "affirmative obligation."
On July 7, 1987, the city filed a motion to dismiss the First Amended Complaint. On October 9, 1987, the trial court struck the city's motion to dismiss, with leave to amend, in an agreed order.
On November 30, 1987, plaintiffs filed a Second Amended Complaint which was ultimately stricken with prejudice on motion of the city and which is the subject of this appeal.
The second amended complaint contains the following allegations. In August 1982, the city issued its requirements for bidding and specifications for a monolithic sewer construction project. Plaintiff, a general contractor, submitted a bid, and on February 3, 1983, the city awarded the contract to plaintiff. "The date for commencement of the project was established as February 14, 1983."
Plaintiff subsequently "submitted a critical path schedule to the city, which the city approved prior to the commencement date of the project." Plaintiff "believes the schedule shows that upon the commencement date, [plaintiff] would begin construction at the site of the Conrail property and that all of the sewer construction work was to be completed prior to December 1, 1983." The city "promised to acquire the necessary easements so as to allow plaintiff * * * complete access to the construction site upon the commencement date in order that [plaintiff] could proceed with its projected schedule of construction."
The complaint alleges further that the city "failed to acquire the needed easement to the Conrail property * * * until April 18, 1983, more than two months after the scheduled date of commencement." On February 17, 1983, at a "pre-construction meeting" held three days after the scheduled commencement date, the city first informed plaintiff that the easements had not yet been acquired.
The complaint alleges that plaintiff successfully completed the project on time despite the city's failure "to comply with the requirements of the contract."
Count I of the complaint alleges that the acquisition of the easements was "essential for [plaintiff] to begin construction in the manner contemplated in their critical path schedule." The city "had actual knowledge of [plaintiff's] overwhelming need to have access to the Conrail property by the commencement date." The complaint alleges further:
"19. That the city's failure to acquire the easements, given its knowledge and obligation under the contract, betokens a wanton and reckless indifference to the legal obligation of the city pursuant to the written contract.
20. That the city's wanton and reckless indifference toward its obligation to acquire the easements to the Conrail property is recognized as an exception to the enforceability of the exculpatory no-damage-for-delay clause contained in the contract.
21. That as a result of the city's reckless indifference to timely acquire the easements * * * [plaintiff] suffered damages including, but not limited to substantial increased material, leasing and labor costs, increased overhead and equipment costs, lost profits and other financial loss in the sum of Two Million Two Hundred Thousand Dollars."
Count II of the complaint alleges that the city had a "fundamental, affirmative duty, pursuant to an express written contractual duty * * * to acquire easements to the Conrail property, thereby allowing [plaintiff] to commence construction, at that site, immediately upon the commencement date of February 14, 1983," and that the city failed in this "fundamental obligation." The city's "failure to disclose or warn" plaintiff prior to February 17, 1983, of its inability to acquire the easements "betokens a wanton and reckless indifference to their legal obligations."
In the contract documents attached as an exhibit to the complaint, the "General Conditions" include a provision that "time is of the essence of contract." In regard to damages for delay, the contract provides:
"16. PROVISION RELATIVE TO DELAY.
Should the Contractor be obstructed or delayed in the commencement, prosecution or completion of the work under this contract by any act or delay of the City or by order of the Commissioner, howsoever issued, then the time herein fixed for the completion of said work will be extended for a period equivalent to the time lost by reason of such acts or delays of the City or orders of the Commissioner.
* * * * * *
It is further expressly understood and agreed that the Contractor shall not be entitled to any damages or compensation from the City, or be reimbursed for any loss or expense on account of any delay or delays resulting from any of the causes aforesaid."
In March 1988, the city filed a motion to dismiss the second amended complaint. An Agreed Order entered by Judge Hoffman on September 14, 1988, provided that defendant would withdraw its motion to dismiss plaintiff's second amended complaint. On September 26, 1988, the city filed a new motion to dismiss the second amended complaint, arguing only that the no damages for delay clause precluded recovery.
On January 23, 1989, the court entered an order striking the second amended complaint with prejudice and dismissing the cause. The court filed a Memorandum Opinion, stating that the "only delay caused to plaintiff was a 2 month pre-construction delay which is precisely the type of occurrence which Plaintiff agreed to exculpate the City from." Moreover, the court found that the "Second Amended Complaint is devoid of any specific allegations supporting the conclusion that Defendant was grossly negligent or acted in bad faith in acquiring the easement." The court held that plaintiff could not correct the deficiencies and had been afforded ample opportunity to do so.
On February 22, 1989, plaintiff filed an emergency motion for reconsideration, and a request for leave to amend the complaint. Plaintiff attached a third amended complaint which added count III, introducing "an additional recognized exception to the enforceability of the No-Damage-For-Delay clause," based on the city's alleged breach of a fundamental obligation under the contract to provide easements by the commencement date. On March 22, 1989, the court denied plaintiff's motion for reconsideration.
At the hearing on the motion for reconsideration, plaintiff argued that no discovery had yet been conducted, and that it had been trying to contact individuals involved in the construction in 1983. "To date, John Burns still doesn't know what happened." It argued further that even if discovery had been allowed, under a 2-615 motion, they could not have submitted any of the discovery. However, plaintiff argued that "with the aid of discovery," it could
On April 21, 1989, plaintiff filed a notice of appeal from the January 23, and March 22, 1989, orders.
OPINIONPlaintiff contends that its second amended complaint properly alleges a cause of action for breach of contract, and therefore the trial court erred in dismissing the complaint for failure to state a cause of action pursuant to section 2-615 of the Code of Civil Procedure. Ill.Rev.Stat.1989, ch. 110, par. 2-615.
An action should not be dismissed with prejudice unless it clearly appears that no set of facts could be proved under the pleadings which would entitle plaintiff to recover. (Central States, Southeast & Southwest Areas Pension Fund v. Gaylur Products, Inc. (1978), 66 Ill.App.3d 709, 713, 23 Ill.Dec. 487, 384 N.E.2d 123.) Where plaintiff has alleged the facts supporting his claim with as much precision as might reasonably be expected, facts rather than conclusions have been alleged. People ex rel. Scott v. College Hills Corp. (1982), 91 Ill.2d 138, 61 Ill.Dec. 766, 435...
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