McGrath Heating & Air Conditioning Co. v. Gustafson

• Decision Date: 06 May 1976
• Docket Number: No. 61166,61166
• Parties: McGRATH HEATING & AIR CONDITIONING COMPANY, Plaintiff, Counter Defendant-Appellee, v. Allan GUSTAFSON, Defendant, Counter Plaintiff-Appellant. Allan GUSTAFSON, Third-Party Plaintiff-Appellant, v. Vincent McGRATH, Third-Party Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 223

348 N.E.2d 223

38 Ill.App.3d 465

McGRATH HEATING & AIR CONDITIONING COMPANY, Plaintiff, Counter Defendant-Appellee, v. Allan GUSTAFSON, Defendant, Counter Plaintiff-Appellant.

Allan GUSTAFSON, Third-Party Plaintiff-Appellant, v. Vincent McGRATH, Third-Party Defendant-Appellee.

No. 61166.

Appellate Court of Illinois, First District, Third Division.

May 6, 1976.

Greenbaum & Browne, Chicago, for defendant, counter plaintiff-appellant; Ernest D. Simon, Chicago, of counsel.

Barnard & Glassman, Ltd., Chicago, for plaintiff, counter defendant-appellee.

McGLOON, Justice:

Plaintiff, McGrath Heating & Air Conditioning Company, Inc., brought this action against Allan Gustafson, defendant, to recover for services and materials sold to defendant. Defendant filed an affirmative defense to the complaint, and a counterclaim to recover the cost of repairing the improperly completed work performed by plaintiff. Gustafson also brought a third party complaint against Vincent McGrath, his partner, for contribution. After a bench trial, the circuit court of Cook County entered judgment against Gustafson for $24,095.03, and dismissed the counterclaim and third party complaint. Gustafson appeals, raising three questions for our consideration: (1) whether an answer to a counterclaim and reply to affirmative defenses may be filed for the first time during the final argument; (2) whether the court properly dismissed the third party complaint; and (3) whether the trial court's judgment was supported by the evidence and pleadings.

We affirm.

The record reveals the following. Allan Gustafson was in the business of constructing apartment buildings at various sites in the Chicago area. McGrath Heating & Air Conditioning Company, an Illinois corporation, was employed to do work in certain of Gustafson's buildings under construction. McGrath Heating's amended complaint alleged that Gustafson did not pay for the work done by McGrath Heating, and that there was an agreement by Gustafson to pay McGrath Heating's usual and customary prices for the work completed. Gustafson's naswer denied that the agreement was for the customary prices because the agreement was for set sums. The answer contained an affirmative defense, which will be described fully, later in this opinion. Gustafson's counterclaim alleged that McGrath Heating performed its work so defectively that Gustafson had to spend $10,000 to repair the defective work. Furthermore, the second count of the counterclaim alleged that McGrath Heating overcharged Gustafson as to bills already paid. In his third party complaint, Gustafson alleged that he and Vincent McGrath were partners in the building business, and that if Gustafson is liable to McGrath Heating, a corporation, for work done for the partnership, Vincent McGrath an individual, should be required to contribute his share of the partnership's obligation.

Gustafson argues on appeal that the trial court erred in allowing plaintiff to file a reply to the affirmative defense and an answer to the counterclaim during the final arguments in the case, after the close of all evidence. Plaintiff's position is that such matters are within the sound discretion of the trial judge, and that discretion was not abused in this case because the tradiness of the filings was inadvertent, no new matters were raised in the late pleadings, and that there was no prejudice to Gustafson because evidence was introduced on the matters. Gustafson's brief in this court alleges that the late filings worked to his severe detriment, but does not elaborate and show he was prejudiced.

The trial court has discretion to permit the filings of tardy pleadings. (Illinois Supreme Court Rule 183.) In Greenlee Bros. v. Rockford Chair & Furn. Co. (1969), 107 Ill.App.2d 326, 333, 246 N.E.2d 64, 67, the court quoted the above statement of law and the wrote:

'We also note that the parties proceeded with discovery and that plaintiff made no motion to require an answer. While the defendant should have filed his answer in apt time, it does not appear that the plaintiff was prejudiced by the failure to do so.'

In the case at bar, defendant, counterplaintiff Gustafson proceeded to trial without either an answer to his counterclaim or reply to his affirmative defense, and presented evidence on the factual matters raised therein. No motions were made to require McGrath Heating's pleadings, or for default judgments. Gustafson does not show how he was prejudiced by the late filings, which raised no new matters. In the absence of any demonstrable prejudice to Gustafson, we hold that the trial court did not err in allowing the late filings of the answer to counterclaim and the reply to the affirmative defense.

Gustafson next argues on appeal that the trial court improperly dismissed his third party complaint against Vincent McGrath. As stated above, the third ...