Luise, Inc. v. Village of Skokie

• Decision Date: 06 September 2002
• Docket Number: No. 1-00-4213, No. 1-01-2556., No. 1-01-0857
• Citation: 335 Ill. App.3d 672,781 N.E.2d 353,269 Ill.Dec. 556
• Parties: LUISE, INC., an Illinois corporation, Plaintiff-Appellant, v. The VILLAGE OF SKOKIE, Defendant-Appellee (Szabo Contracting, Inc., and Peerless Insurance Company, Defendants). Berkeley Trucking Inc., an Illinois corporation, Plaintiff-Appellant, v. The Village of Skokie, and Fidelity & Deposit Company of Maryland, Defendants-Appellees (Szabo Contracting, Inc. and Peerless Insurance Company, Defendants).
• Court: United States Appellate Court of Illinois

781 N.E.2d 353

335 Ill. App.3d 672

269 Ill.Dec. 556

LUISE, INC., an Illinois corporation, Plaintiff-Appellant, v. The VILLAGE OF SKOKIE, Defendant-Appellee (Szabo Contracting, Inc., and Peerless Insurance Company, Defendants).

Berkeley Trucking Inc., an Illinois corporation, Plaintiff-Appellant, v. The Village of Skokie, and Fidelity & Deposit Company of Maryland, Defendants-Appellees (Szabo Contracting, Inc. and Peerless Insurance Company, Defendants).

Nos. 1-00-4213, 1-01-0857, 1-01-2556.

Appellate Court of Illinois, First District, Fifth Division.

September 6, 2002.

Rehearing Denied January 7, 2003.

Fagelhaber, LLC, Chicago (Edward L. Filer and Tina M. Bird, of counsel), for Appellant.

McKenna, Storer, Rowe, White & Farrug, Chicago (James P. Denardo, William S. Piper and Kristin D. Tauras, of counsel); and Corporate Counsel Village of Skokie (Barbara M. Meyer and Henry Mueller, of counsel), for Appellee.

Presiding Justice CAMPBELL delivered the opinion of the court:

This is a consolidated appeal. Plaintiff, Luise, Inc., an Illinois corporation (Luise), appeals from a final judgment of the circuit court of Cook County granting summary judgment in favor of defendant, the Village of Skokie, Illinois (Village), pursuant to section 23 of the Mechanics Lien Act (The Act) (770 ILCS 60/23 (West 2000)), in connection with subcontracting trucking work Luise performed on the Village's sewer project. In addition, plaintiff Berkeley Trucking, Inc., another subcontractor that performed on the same sewer project, appeals from entry of an order (1) dismissing Berkeley's lien foreclosure claim against defendants Szabo Contracting, Inc. (Szabo), the Village, and Peerless Insurance Company (Peerless), pursuant to section 2-619 of the Illinois Code of Civil Procedure (The Code) (735 ILCS 5/2-619 (West 2000)); and (2) dismissing Berkeley's claims for quantum meruit and unjust enrichment and third party beneficiary claims pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2000)). For the following reasons, we reverse the judgment of the trial court and remand this matter for further proceedings consistent with this opinion.

BACKGROUND

The following facts are relevant to this appeal. On March 17, 1997, Szabo entered into a contract with the Village to construct a storm sewer system for the Village, known as "Village of Skokie Storm Sewer & Detention Facilities, Phase J, Project SS97.2" (Skokie Project). The Skokie Project involved the installation of a new sewer line along several sections of Howard and Main Streets in Skokie. The work proceeded in two steps: The first step was the removal of the old sewer line, which involved, inter alia, the excavation and removal of the old sewer pipe and all associated construction and demolition debris. The second step was the installation of the new sewer pipe, including, but not limited to, the delivery and installation of sand and stone aggregate sub-base materials.

Szabo entered into a subcontract with Luise to perform "trucking," which included the hauling of debris from the site and the delivery of aggregate stone to the site. The work is described as follows in the subcontract agreement: "Subcontractor agrees to furnish at his own cost and expense trucking of material to job site and trucking of spoils."

Szabo entered into a separate subcontract with Berkeley, another trucking company, to provide "hauling, disposal and other services."

Neither Luise nor Berkeley was paid for its performance of its respective contracts with Szabo. On February 18, 1998, Luise sent out a verified notice of lien for the amount of $126,771.79, via certified mail to the Village. On May 4, 1998, Berkeley sent out a verified notice of lien for the amount of $254,107.28, via certified mail to the Village. At the time of service of the lien notices, the Village retained sufficient funds to pay the claims of Luise and Berkeley, having not yet paid Szabo. After November 8, 1998, the Village released funds in the amount of $571,668.29 to Szabo after obtaining a "Release of Lien Bond" from Fidelity & Deposit Company of Maryland (Fidelity).

Luise's Action

On April 3, 1998, Luise filed a verified complaint in seven counts, against the Village, Szabo, the City of Evanston (Evanston), USF&G Insurance Company (USF&G), and Peerless Insurance Company (Peerless). In count I, Luise sought foreclosure on a mechanics' lien filed on a project for Evanston (Evanston Project). Count II alleged breach of contract against Szabo for the Evanston Project. Count II sought recovery for a payment bond provided on the Evanston Project and count IV alleged breach of a third-party beneficiary contract for the Evanston Project. In count V, Luise sought foreclosure of the lien filed on the Skokie Project. In count VI, Luise sought judgment against Szabo for breach of contract for the Skokie Project, and count VII asserted an action for breach of the third-party beneficiary contract for the Skokie Project. On August 26, 1998, Luise filed an amended complaint adding a count for recovery on a payment bond provided by Peerless for the Skokie Project. The added count became count VII and the count for breach of the third-party beneficiary contract for the Skokie Project became count VIII.

On November 10, 1999, the trial court entered a default judgment against Szabo in connection with the counts relating to the Evanston Project and Evanston was ordered to pay $90,455.27 to Luise. On June 13, 2000, the trial court granted Luise leave to withdraw and nonsuit count VIII of its amended complaint against Skokie. However, during the course of the proceedings, Szabo filed for bankruptcy, and Luise's action was stayed. On June 19, 2000, the bankruptcy court entered an order modifying the stay and allowing Luise to proceed with its case as long as no recovery was sought from Szabo. On July 7, 2000, the court granted Luise's motion for voluntary dismissal of its action against Peerless.

On May 4, 2000, Luise filed a motion for summary judgment and a supporting memorandum as to count V of its amended complaint. On August 31, 2000, the Village filed a countermotion for summary judgment against Luise. The Village argued that the services provided by Luise on the Skokie Project are not lienable under section 23 of the Mechanics Lien Act (770 ILCS 60/23 (West 2000)). Judge Clifford Meacham heard oral arguments on the cross-motions for summary judgment on September 26, 2000. On November 1, 2001, Judge Meacham issued a memorandum opinion and order denying Luise's motion for summary judgment and allowing the Village's motion for summary judgment, based on a finding that the services provided by Luise on the Skokie Project were not lienable under section 23 of the Mechanics Lien Act. The order included Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)) language making it a final and appealable order. Luise filed a timely notice of appeal on December 1, 2001.

Berkeley's Action

Berkeley filed a verified complaint in five counts on August 3, 1998. In count I, Berkeley sought to foreclose a mechanics' lien on the Skokie Project. Count II alleged breach of contract against Szabo; count III sought recovery on a quantum meruit theory; in count IV, Berkeley sought recovery under a payment bond provided by Peerless; and count V sought recovery against the Village for unjust enrichment. On December 7, 1999, Berkeley filed an amended complaint adding Fidelity as a party pursuant to the "Release of Lien" bond provided by Fidelity.

On January 11, 2000, Berkeley's action was stayed pursuant to Szabo's bankruptcy proceedings. The bankruptcy court entered an order modifying the stay and allowing Berkeley to pursue its claims under the Mechanics Lien Act on March 31, 2000, subject to the provision that Berkeley could not enforce or collect any judgment or deficiency against Szabo in the lien foreclosure action.

On April 18, 2000, Fidelity filed a combined motion to dismiss seeking, in part, to dismiss count VI of Berkeley's amended complaint pursuant to section 2-615. After oral arguments on June 21, 2000, Judge Robert J. Quinn entered an order granting Fidelity's motion regarding count VI of Berkeley's amended complaint. The order of June 21, 2000, allowed Berkeley to file an amended complaint, and on July 12, 2000, Berkeley filed its second amended complaint, omitting count VI, which had contained allegations against Fidelity for recovery on the "Release of Lien" bond it provided.

On July 28, 2000, the Village filed a combined motion to dismiss seeking dismissal of count I (foreclosure of mechanics' lien) pursuant to section 2-619, and counts II (quantum meruit) and V (unjust enrichment) pursuant to section 2-615. On January 3, 2001, following oral arguments, Judge Quinn issued a written decision and order dismissing count I of Berkeley's second amended complaint. Judge Quinn found that the services provided by Berkeley on the Skokie Project are not lienable under section 23 of the Mechanics Lien Act. Judge Quinn also dismissed Berkeley's counts against the Village for quantum meruit and unjust enrichment. On January 8, 2001, the Village filed a motion to certify the court order of January 3, 2001, and Judge Quinn entered an order finding no just reason to delay enforcement of the order of January 3, 2001. Berkeley filed a timely notice of appeal of the dismissal of court I on March 1, 2001.

On February 9, 2001, Berkeley filed a third amended complaint, renewing count VI against Fidelity and amending the allegations contained within counts IV and V for quantum meruit and unjust enrichment. On June 26, 2001, Judge Quinn entered an order giving leave to Berkeley to withdraw paragraphs 39 and 41 of its verified third amended complaint which contained the allegations of quantum meruit and unjust enrichment. The order also granted the Village's motion to strike and dismiss counts IV and V for the reasons set forth in the prior orders of January 3,...