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United Excavating & Wrecking v. Wroan & Sons

OPINION FILED NOVEMBER 4, 1976.

UNITED EXCAVATING & WRECKING, INC., PLAINTIFF-APPELLANT,

v.

J.L. WROAN & SONS, INC., ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of McLean County; the Hon. WENDELL E. OLIVER, Judge, presiding.

MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from two orders of the Circuit Court of McLean County. One, dated December 5, 1973, granted judgment in favor of defendant Wroan pursuant to Supreme Court Rule 219(c) (58 Ill.2d R. 219(c)). The order dismissed the complaint against Wroan with prejudice and assessed $100 against plaintiff for Wroan's attorney fees. A second order, dated July 11, 1975, granted Wroan's motion for summary judgment and awarded Wroan $88,827.77 due on the construction contract involved herein. This order certified, pursuant to Rule 304 (58 Ill.2d R. 304), that "* * * there is no just reason for delaying enforcement or appeal * * *."

This appeal concerns a construction contract to build the Olympia High School in McLean County, Illinois. The general contractor, Wroan, initially contracted to build the school for Community Unit School District No. 16. Wroan then entered into a subcontract with defendant Johnson, who was to handle the excavation and earth work at the construction site. Johnson, in turn, entered into a sub-subcontract with the plaintiff, who was to furnish labor and equipment for the earth work.

Plaintiff filed its complaint on August 4, 1971, alleging that it completed its work in a satisfactory fashion, but that it received no compensation pursuant to the sub-subcontract. Plaintiff accordingly prayed for an accounting by the defendants, judgment for $90,327.77 owed to plaintiff and a lien upon school district funds to be paid to the defendants.

On April 11, 1973, Wroan filed a motion to direct plaintiff's president, Richard Matusz, to appear on May 1, 1973, for a deposition in Bloomington, Illinois. The court granted the motion and also ordered Matusz to produce various books, records, correspondence, memoranda, contracts, with other relevant documentation at the time his deposition was to be taken. Upon motion of the plaintiff, on April 30, 1973, the order for the discovery deposition was vacated and the parties were ordered to reset the deposition date within three weeks, although Wroan did not serve notice of a new deposition date on plaintiff until June 4, 1973. On June 11, 1973, Wroan filed a motion to dismiss the cause of action against it for plaintiff's failure to cooperate in discovery. No hearing was held on the motion, but the parties reset Matusz's deposition for July 17, 1973, in Bloomington. Matusz appeared on that date, but he neglected to bring all of the court-ordered documentation from his home in Bedford, Ohio. Plaintiff's counsel offered to have Matusz return to Ohio, obtain the documents, and then return to Bloomington later that week to continue the deposition. Wroan's counsel rejected this suggestion and terminated the taking of the deposition.

On July 19, 1973, Wroan filed a motion requesting that the court enter judgment in its favor and that the court award attorney fees pursuant to the discovery sanctions of Rule 219(c). The court sustained the motion, in part, by assessing $100 attorney fees against plaintiff on September 13, 1973, and by ordering plaintiff's president, Matusz, to pay the assessment within ten days. Plaintiff complied with the order and, thereafter, Wroan filed a supplementary motion reiterating its original prayer for judgment in its favor dismissing the cause of action against defendant Wroan and for an award of $100 attorney's fees. On December 5, 1973, the trial court granted the motion "* * * with prejudice to Plaintiff * * *."

On May 16, 1975, the school district paid $90,327.77 to the clerk of the circuit court because it owed that amount to one or more of the parties.

On June 12, 1975, Wroan filed a motion for summary judgment alleging that it was entitled to $88,827.77 and praying that the clerk of the circuit court be ordered to release that amount out of the funds paid by the school district. The trial court granted Wroan's motion on July 11, 1975. The court fixed July 1, 1975, as the effective date of the order and found that "* * * there is no just reason for delaying enforcement or appeal * * *."

Plaintiff essentially raises two issues in this appeal: (1) whether the circuit court abused its discretion by entering the order of December 5, 1973, granting judgment in favor of Wroan pursuant to Supreme Court Rule 219(c); and (2) whether, after that order, Wroan had standing to move for the summary judgment that was granted on July 11, 1975.

• 1 We find that Wroan did not have standing to move for the summary judgment that was granted on July 11, 1975, and we hold that the order of summary judgment was improperly granted. Section 57(2) of our Civil Practice Act states:

"* * * [a] defendant may, at any time, move with or without supporting affidavits for a summary judgment or decree in his favor as to all or any part of the relief sought against him." (Ill. Rev. Stat. 1973, ch. 110, par. 57(2).)

In addition, section 57(3) of the Act states that:

"* * * [t]he judgment or decree sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law * * *." (Ill. Rev. Stat. 1973, ch. 110, par. 57(3).)

Wroan could have filed a motion to vacate or modify the December 5, 1973, order of dismissal at any time before final judgment (Richichi v. City of Chicago (1964), 49 Ill. App.2d 320, 199 N.E.2d 652; Supreme Court Rule 304(a) (58 Ill.2d R. 304(a)), but Wroan, being a stranger to the cause of action after December 5, 1973, lacked standing to move for the order of summary ...


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