McMahon v. City of Chicago

• Decision Date: 22 April 2003
• Docket Number: No. 1-02-0536.,1-02-0536.
• Citation: 273 Ill.Dec. 447,339 Ill. App.3d 41,789 N.E.2d 347
• Parties: Mark A. McMAHON, Plaintiff-Appellant, v. The CITY OF CHICAGO, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

789 N.E.2d 347

339 Ill. App.3d 41

273 Ill.Dec. 447

Mark A. McMAHON, Plaintiff-Appellant, v. The CITY OF CHICAGO, Defendant-Appellee.

No. 1-02-0536.

Appellate Court of Illinois, First District, Second Division.

April 22, 2003.

Richard D. Harris, Cameron M. Nelson and Brad R. Bertoglio, of Law Offices of Dick and Harris, Chicago, for Appellant.

Mara S. Georges, Corporation Counsel of the City of Chicago, Chicago (Lawrence Rosenthal, Deputy Corporation Counsel, Benna Ruth Solomon, Chief Assistant Corporation Counsel, and Valerie Quinn, Special Assistant Corporation Counsel, of counsel), for Appellee.

Justice CAHILL delivered the opinion of the court:

Plaintiff Mark A. McMahon appeals the dismissal of his complaint for breach of contract. He claims that the City of Chicago executed and then breached an oral contract with him to produce artwork for the "Riverwalk Gateway" project. We affirm.

Plaintiff has been a fine and commercial artist for 25 years. His work has been commissioned by the National Aeronautics and Space Administration (NASA), Smithsonian Institution, O'Hare International Airport, State of Illinois and numerous corporations. In May 1998, Janet Attarian, an architect employed by the City of Chicago Department of Transportation (CDOT), met with plaintiff and asked him to prepare a proposal to produce a 225-feet-long by 9-feet-high ceramic tile mural for the walls of the "Riverwalk Gateway," a tunnel beneath the Lake Shore Drive bridge across the Chicago River. Plaintiff submitted a proposal with a price of $317,521. On June 11, 1998, Attarian informed plaintiff that he had been awarded the contract at the quoted price and he should begin work immediately to meet the deadline of April 15, 1999. Attarian gave plaintiff a purchase order number, E-8-526. The next day, plaintiff sent an invoice for one third of the fee to CDOT and referenced the purchase order number. According to the complaint, plaintiff began working "feverishly" on the project. Attarian assisted plaintiff with special arrangements for his preparation of art materials, including "access to a bridge tender's facility so he could sketch from a unique vantage point."

On June 22, 1998, CDOT sent a memorandum to Michael Lash, the curator of public art in the city's department of cultural affairs. The memo was written by Attarian and signed by her supervisor, Stanley Kaderbek, the chief engineer and deputy commissioner of CDOT's bureau of bridges and transit. The memo addressed both the Riverwalk Gateway project and a separate public art project unrelated to this case. The memo said CDOT had "decided that an artist [for the Riverwalk Gateway project] who specialized in representational art would be best" and "Mark McMahon was chosen because his style met all the required criteria." The memo concluded:

"Since none of the artwork was part of the original scope of work[,] we presented our ideas and choice of artist[] to the Department of Planning, the Park District and the Mayor's Office. All Departments gave their approval.

It is our hope to involve the public through our chosen artists, thereby allowing us to complete the project in a timely manner. It is our hope that both projects will be out for bid by the end of this month. I have enclosed drawings showing the scope of the projects and proposed areas for tile. Input from your Department is greatly appreciated, and if you have any suggestions I would be happy to discuss them with you."

In early July 1998, CDOT instructed plaintiff to present his work to Michael Lash and the city's public art committee (the committee). On July 24, 1998, the project advisory panel, a subcommittee of the public art committee, met to select an artist. Eight artists including plaintiff were considered. Lash told the panel that plaintiffs samples were more extensive than those of the other candidates because of an effort to circumvent the city's official process for selecting art and "mainlining" the selection of plaintiff. Ultimately, artist Ellen Lanyon was selected for the Riverwalk Gateway project. Lash notified plaintiff that he had not been selected.

Plaintiff filed suit in the United States District Court for the Northern District of Illinois, alleging, inter alia, a violation of the Lanham Act (15 U.S.C. § 1125(a)(1) (1994)). In support of his federal claims, plaintiff obtained the depositions of Lash and Gilberto Quinones, a CDOT contract administrator. On October 6, 2000, the federal district court granted the city's motion for summary judgment as to plaintiffs claim under the Lanham Act, and dismissed plaintiffs remaining counts, declining to exercise supplemental jurisdiction over the state law claims.

On December 7, 2000, plaintiff filed a three-count complaint against the City of Chicago in the circuit court, alleging: (1) breach of contract; (2) deceptive business and trade practices; and (3) defamation and commercial disparagement. On March 22, 2001, the city filed a motion to dismiss the complaint under section 2-615 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-615 (West 2000)) for failure to state a cause of action. Plaintiff filed a response to the city's motion to dismiss, attaching selected pages from the Quinones deposition. Plaintiff claimed that the deposition provided a factual basis for his contention that some city officials were known to bypass the city purchasing agent and execute their own contracts. At a hearing on the city's motion to dismiss, the trial court declined to consider the Quinones deposition, finding that it was not relevant to a section 2-615 motion. On October 17, 2001, the trial court granted the city's motion to dismiss and gave plaintiff leave to replead a claim of equitable estoppel. Plaintiff declined to replead, and on January 17, 2002, the trial court entered a final order dismissing all plaintiffs claims.

On appeal, plaintiff asserts that his breach of contract claim should not have been dismissed under section 2-615 of the Code (735 ILCS 5/2-615 (West 2000)) because he sufficiently alleged the existence and breach of an oral contract.

A section 2-615 motion to dismiss attacks the sufficiency of a complaint on the basis that the plaintiff has not stated a cause of action upon which relief can be granted. Grund v. Donegan, 298 Ill. App.3d 1034, 1037, 233 Ill.Dec. 56, 700 N.E.2d 157 (1998). Whether the trial court erred is a question of law and the standard of review is de novo. Grund, 298 Ill.App.3d at 1037,

233 Ill.Dec. 56, 700 N.E.2d 157. The reviewing court takes all well-pleaded facts as true and interprets all well-pleaded allegations in the light most favorable to the plaintiff. Jackson v. South Holland Dodge, Inc., 197 Ill.2d 39, 44-45, 258 Ill.Dec. 79, 755 N.E.2d 462 (2001). A plaintiff cannot rely on mere conclusions of law or fact; the pleadings must be supported by specific factual allegations. Jackson, 197 Ill.2d at 52, 258 Ill.Dec. 79, 755 N.E.2d 462. If no set of facts can be proved that would entitle the plaintiff to relief, then dismissal is proper. Meng v. Maywood Proviso State Bank, 301 Ill.App.3d 128, 136, 234 Ill.Dec. 92, 702 N.E.2d 258 (1998).

Purchasing and public works contracts with Illinois municipalities are governed by Article 8, division 10, of the Illinois Municipal Code, which consists of a municipal purchasing act applicable to cities with populations of 500,000 or more. 65 ILCS 5/8-10-1 et seq. (West 2000). The Illinois Muncipal Code substantially limits the contracting power of municipal employees:

"No department, office, institution, commission, board, agency or instrumentality of any such municipality, or any officer or employe[e] thereof, shall be empowered to execute any purchase order or contract [involving amounts in excess of $10,000] except as herein specifically authorized, but all such purchase orders or contracts shall be executed by the purchasing agent in conformity with [this statute]." 65 ILCS 5/8-10-18 (West 2000).

"Municipalities are limited to only those powers which are given to them by constitution and statute, and a municipality cannot be bound by a contract that does not comply with the prescribed conditions for the exercise of its power." Ad-Ex, Inc. v. City of Chicago, 207 Ill.App.3d 163, 169, 152 Ill.Dec. 136, 565 N.E.2d 669 (1990). A purchase order or contract that does not comply with the Illinois Municipal Code "shall be null and void as to the municipality." 65 ILCS 5/8-10-21 (West 2000). See Stanley Magic-Door, Inc. v. City of Chicago, 74 Ill.App.3d 595, 599, 30 Ill.Dec. 499, 393 N.E.2d 535 (1979). The Chicago Municipal Code provides that the city's chief procurement officer has the powers and duties mandated by the Illinois Municipal Code. Chicago Municipal Code § 2-92-010 (amended September 4, 2002). "No contract shall be binding upon the city, nor shall any work contracted for be commenced * * * until the contract * * * has been duly executed." Chicago Municipal Code § 2-92-050 (amended July 19, 2000). A municipality's power to contract is limited by statute and the city cannot be bound unless statutory requirements are followed. Roemheld v. City of Chicago, 231 Ill. 467, 470-71, 83 N.E. 291 (1907) (where a statute or ordinance specifies how a city official can bind the city by contract, that method must be followed); DeKam v. City of Streator, 316 Ill. 123, 129, 146 N.E. 550 (1925) (a contract expressly prohibited by a valid statute is void; there are no exceptions); Haas v. Commissioners of Lincoln Park, 339 Ill. 491, 498, 171 N.E. 526 (1930) (where a charter prescribes how a municipal corporation is to enter into contracts, that method is exclusive and must be followed); Chicago Food Management, Inc. v. City of Chicago, 163 Ill.App.3d 638, 644-45, 114 Ill.Dec. 725, 516 N.E.2d 880 (1987) (where a city's agents are restricted by law as to the method of contracting, agreements executed by officials lacking authority are illegal and void).

A prospective...