Wilbur Waggoner Equipment Rental & Excavating Co. v. Johnson
| Decision Date | 09 June 1975 |
| Docket Number | No. 74--150,74--150 |
| Citation | 33 Ill.App.3d 358,342 N.E.2d 266 |
| Parties | WILBUR WAGGONER EQUIPMENT RENTAL & EXCAVATING COMPANY, Plaintiff-Appellant, v. Leonard JOHNSON et al., Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
David M. Duree, Bernard A. Reinert, St. Louis., Mo. (Kenney, Leritz & Reinert, St. Louis, Mo., of counsel), for plaintiff-appellant.
Edward Neville, East St. Louis, for Leonard Johnson and Refus Starks.
Robert H. Rice, State's Atty., St. Clair County, Belleville, for Lester J. Ruester and Western Surety Co., a corporation.
Kenneth J. Schuessler, East St. Louis, for Western Surety Co. etc.
Plaintiff appeals orders of the trial court dismissing its complaint for damages against the treasurer and superintendent of a school district and the Superintendent of Educational Service Region, and denying leave to file amendments to its complaint. This appeal considers the sufficiency of the complaint to state a cause of action against any of the defendants.
At the time pertinent plaintiff was a corporation engaged generally in the business of renting equipment and doing excavating work. Defendant Leonard Johnson was business manager and treasurer, and defendant Rufus Starks was the superintendent of School District No. 189 in East St. Louis, Illinois. Defendant Lester J. Ruester was the Superintendent of Educational Service Region for St. Clair County and defendant Western Surety Company, a corporation, was his bonding company. Defendants Johnson, Starks and Ruester are sued as individuals and not in their official capacity.
The pertinent paragraphs of plaintiff's complaint allege that on April 24, 1972 School District No. 189 entered into a contract with Romel Wilbon d/b/a Wilbon Wrecking and Excavating Company to furnish all labor, material and equipment for demolition and removal of Rock Junior High School in East St. Louis; between April 24, 1972 and May 26, 1972, at the request of Wilbon, plaintiff, on open account, furnished to Wilbon materials, labor, equipment and services per invoices attached, in the total amount of $6,022.97. On or about June 19, 1972 plaintiff notified the Board of Education of School District No. 189 of the sum due plaintiff and of its claim for lien upon the money, bonds or warrants due or to become due Wilbon under the contract, said notification was by written notice attached to the complaint as Exhibit 'F'; at the time of the service of the notice upon School District No. 189 the district was in possession of amounts due under its contract with Wilbon in excess of $6,022.97 and plaintiff's lien attached to said moneys, bonds and warrants and under 82 Ill.Rev.Stat. § 23 it became the duty of School District No. 189 to withhold money to pay the amount due plaintiff. The complaint further alleged that defendants Leonard Johnson and Rufus Starks as the business manager-treasurer, and superintendent, of School District No. 189 were under the supervision and control of defendant Lester J. Ruester, Superintendent of Educational Service Region for St. Clair County, who had a statutory duty to exercise supervision and control over School District No. 189; on about July 10, 1972 the defendants Johnson and Starks, while under the supervision and control of defendant Ruester, disregarded, violated and breached the plaintiff's lien right under 82 Ill.Rev.Stat. § 23 by paying Wilbon the remainder due him under the contract; defendant Ruester failed to discharge his duty as Superintendent of Educational Service Region for St. Clair County thereby breaching his condition of his official bond in that he did not properly supervise and control School District No. 189 and the defendants Johnson and Starks in the administration of the contract fund. It was further alleged that defendant Ruester and defendant Western Surety Company had posted a surety bond in the sum of $12,000 conditioned upon the faithful discharge of his duties by defendant Ruester. Plaintiff prayed for judgment against each defendant for $6,022.97 plus interest and costs.
Exhibit 'F' attached to plaintiff's complaint is written upon the printed letterhead of plaintiff and the body of the letter reads as follows:
East St. Louis, Illinois
Attention: Miss Carol Frye
Dear Miss Frye:
As per our telephone conversation of June 19, 1972, I am enclosing the outstanding invoices owed to me by Wilbon Wrecking Company for work at the Rock Junior High School.
I have called Mr. Wilbon several times but I have not been able to contact him. We hope you will take this (sic) invoices into consideration before making final payment to Wilbon Wrecking.
Sincerely,
Wilburn L. Waggoner
President'
WLW/mjk
Defendants Johnson and Starks moved for dismissal upon the ground that it appeared upon the face of the complaint that the notice was insufficient to comply with the applicable lien statute. Defendants Ruester and Western Surety Company filed separate motions to dismiss alleging the failure of the complaint to state a cause of action as to them.
Upon argument on the motions the court entered an order finding that the Exhibit 'F' notice of lien was insufficient and dismissed the complaint. The order recited that other issues raised in the motions to dismiss were not reached. Plaintiff thereupon filed a motion to set aside, or in the alternative, to amend the judgment order, and for leave to amend the complaint. The amendment to the order sought a ruling on other matters raised in the original motions to dismiss to empower the appellate court to consider them on appeal. The amendments to the complaint sought by plaintiff generally added more detail to the allegations regarding the duties of supervision and control by defendant Ruester. Following argument on the plaintiff's motions the trial court entered an order denying plaintiff's motion to vacate, or to amend the judgment and also for leave to amend the complaint. Plaintiff's notice of appeal was from both the orders above described and we thereby properly consider all issues disposed of by theose orders. Department of Transp. v. Galley, 12 Ill.App.3d 1072, 299 N.E.2d 810.
A motion to dismiss admits all facts well pleaded as well as all reasonable inferences therefrom favorable to plaintiff. (Johnson v. North Am. Life & Cas. Co., 100 Ill.App.2d 212, 241 N.E.2d 332.) However, an exhibit attached to a complaint controls, and a motion to dismiss does not admit allegations of a complaint in conflict with facts disclosed by the exhibit. (Sangamon County Fair and Agr. Ass'n v. Stanard, 9 Ill.2d 267, 137 N.E.2d 487; Gray v. First Nat. Bank of Chicago, 320 Ill.App. 682, 51 N.E.2d 797). Accordingly, in deciding the sufficiency of the notice of lien, Exhibit 'F' to plaintiff's complaint, we are not bound by the allegations of plaintiff's complaint regarding the sufficiency of notice of lien, but may consider the notice itself together with allegations of facts pertaining to the sufficiency of the notice and its service. When so considered the notice and its service must be termedinsufficient and we affirm the order of the trial court dismissing the complaint as to defendants Johnson and Starks.
The events antecedent to the filing of plaintiff's complaint make it plain that it was a subcontractor seeking to impose a lien upon public funds and obtain payment therefrom in accordance with Ill.Rev.Stat., ch. 82, sec. 23. The provisions of that statute require that the lien claimant shall notify the officials of the school district whose duty it is to pay the contractor of his claim by a written notice. It further provides that the lien claimant shall, within 60 days of filing such notice, commence proceedings by complaint for an accounting, making the contractor a party, and withint he same period notify the officials of the school district of the commencement of the suit. The statute imposes upon the officials of the school district, upon receipt of the first notice, the duty to withhold from sums due the contractor an amount sufficient to pay the lien for the period limited for the filing of suit. Upon the expiration of the 60 day period the sums withheld by the officials shall be released for payment to the contractor unless the...
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