APPEAL from the Circuit Court of Cook County; the Hon. JAMES
J. MEJDA, Judge, presiding.
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:
This is an appeal by the Illinois Building Authority from an order dismissing its third-party complaint.
In January of 1968, the plaintiff, Talandis Construction Corporation, entered into a contract with the Illinois Building Authority (Authority) to construct a small animal clinic and hospital for the use of the School of Veterinary Medicine at the University of Illinois at Urbana. Talandis commenced construction on February 26, 1968, pursuant to the terms of the contract with the Authority, and established progress schedules in order to comply with the required completion date of February 1, 1970. Shortly after work had begun, the University and the Authority determined to give consideration to the future construction of an additional, larger animal clinic to be placed immediately to the west of the facility being constructed by Talandis.
Plaintiff filed a complaint on August 13, 1971, alleging that the consideration of the proposed large animal clinic led to indecision over the final plans and specifications of the small animal clinic. The indecision allegedly caused delays and work stoppages which forced plaintiff to abandon its progress schedules and customary practices of construction. Substantial disarrangement allegedly ensued, making performance in an orderly manner impossible. As a result, Talandis sought damages for additional costs, overhead and profit.
Plaintiff alleges that the Authority breached or varied its contract in requiring the plaintiff to honor a stop order and numerous change orders issued by the Authority and its architect, the Perkins and Will partnership, in an attempt to coordinate the planning and construction of the proposed larger clinic with the facility being constructed by Talandis. Accommodations for such coordination were not allegedly contemplated in the original contract between plaintiff and the Authority.
The Authority filed a third-party complaint against the Board of Trustees of the University and the Perkins and Will partnership, alleging the latter to be an agent of the University. The essence of the Authority's complaint was that the University was primarily responsible for the delays in construction and therefore interfered with the plaintiff's timely and proper performance of its construction contract. The Authority sought indemnification from the University from any judgment entered against it in favor of the plaintiff.
The University responded with a motion to dismiss on the basis that the Authority's complaint was barred by the provisions of section 8(d) of "An Act to create the Court of Claims * * *" (Ill. Rev. Stat. 1973, ch. 37, 439.8(d)), in that the exclusive jurisdiction of any claim sounding in tort against the Board of Trustees of the University lies in the Court of Claims. The trial court granted the motion to dismiss, with leave to amend.
The Authority filed an amended third-party complaint based upon a similar theory of the University's interference with the contract between the Authority and the plaintiff. The University moved to dismiss and again the trial court dismissed the complaint with leave to amend.
The Authority filed a second amended third-party complaint, again alleging that the University had interfered with the proper performance of plaintiff's contract. The Authority also relied on a lease agreement between itself as lessor and the University as lessee of the property upon which the small animal clinic was being constructed. Paragraph 20 of the amended third-party complaint states:
"20. That if the allegations of the complaint are proven to be true, the Third-Party Defendant, BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, should be liable under the lease agreement to pay to the Third Party Plaintiff the amount of any judgment rendered herein against it and for the costs and expenses incurred, including attorney's fees and court costs."
The University responded with a motion to dismiss contending that the language of the lease did not require the University to indemnify the Authority should the Authority be found to have breached its contract with the plaintiff. From an order dismissing the second amended third-party complaint, the Authority appeals. The court found that there was no just reason to delay enforcement or appeal. We conclude that the trial court properly dismissed the second amended third-party complaint.
Two statutory provisions establish that any common-law tort claim against the Board of Trustees of the University must be filed in the Court of Claims. The enabling act of the University in part provides that the Board of Trustees shall:
"* * * be a body corporate and politic * * * have perpetual succession, have the power to contract and be contracted with, to sue and be sued, provided that any suit against the Board based upon a claim sounding in tort must be filed in the Court of Claims [this provision was added by amendment approved August 26, 1971], to plead and be impleaded, to acquire, hold, and convey real and personal property." Ill. Rev. Stat. 1973, ch. 144, par. 22.
The enabling act of the Court of Claims provides that the court shall have exclusive jurisdiction ...