APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Plaintiff, Hassett Storage Warehouse, Inc. (Hassett), appeals from the dismissal of its two-count amended complaint seeking declaratory judgment and other relief, and presents us with questions regarding the propriety of the dismissal. We affirm. The facts are as follows:
Several plaintiffs *fn1 originally filed a complaint seeking a temporary restraining order and permanent injunction to prevent defendant Chicago Board of Election Commissioners (Board) from taking action to remove voting machines and other election material from plaintiffs' warehouse, and letting a storage and cartage contract (for a geographic area "labeled Area D") pertaining to these machines and other election material to defendant-intervenor Empire Moving and Warehouse Corporation (Empire). It was generally alleged in the complaint that Empire did not satisfy certain specifications required by the sealed bid and that to award a contract for the storage and cartage of certain election equipment for the years 1976 through 1978 to Empire would violate the competitive bidding requirements of the Municipal purchasing act for cities of 500,000 or more population (Ill. Rev. Stat. 1975, ch. 24, par. 8-10-1 et seq.). Additionally, it was alleged, in an amended pleading, that Hassett Storage Warehouse, Inc., as contractor for those machines for over 20 years, as a bidder, and as a taxpayer, would suffer irreparable injury if the election equipment was transferred to Empire. Both the Board and Empire filed motions to dismiss the complaint. Empire also filed a brief in support of its motion. The motion and brief of Empire attacked the merits of the cause of action and the equitable jurisdiction of the court if it were found that there was a viable cause of action. Plaintiffs filed a motion for a temporary restraining order.
The trial court conducted a hearing on plaintiffs' motion for a temporary restraining order and on December 16, Judge F. Emmett Morrissey dismissed the complaint and granted plaintiffs 21 days to file an amended complaint. The court did not rule on the motion for a temporary restraining order.
The Area D contract for the storage and cartage of election equipment was awarded to Empire and on or about December 17, defendants Board and Empire removed all voting machines and other election materials from plaintiffs' warehouse for transport to and storage at Empire's facility.
On January 6, 1976, plaintiff Hassett filed an amended complaint for declaratory and other relief. The complaint alleged that the action of the Board in granting the Area D contract for the storage and cartage of election equipment to Empire violated the competitive bidding requirements of the Municipal purchasing act for cities of 500,000 or more population (Ill. Rev. Stat. 1975, ch. 24, par. 8-10-1 et seq.). In addition, Hassett alleged that Empire's proposal did not satisfy the material specifications of the sealed bid and its warehouse facility did not meet other material specifications required in the sealed bid. The complaint sought an order compelling the Board to have the contract rebid or to award the contract to Hassett. The complaint also requested money damages against the Board but sought no relief against Empire. The case was transferred to the law division where both defendants filed motions to dismiss.
At the hearing on defendants' motions to dismiss, Judge Arthur L. Dunne dismissed the amended complaint on the specific ground that there was no legal requirement for binding competitive bidding as to this contract. The court did not reach the question of whether Judge Morrissey's decision was res judicata.
The Board filed a motion to dismiss the appeal which was ordered taken with the case by this court.
We shall first address defendants' threshold argument contained both in their briefs and in defendant Board's motion to dismiss the appeal that Hassett's amended complaint is barred by the doctrine of res judicata. Defendants specifically contend that the dismissal of Hassett's complaint for injunction and other relief in the chancery division of the circuit court was a final and appealable order that adjudicated the rights in litigation on the merits. Hassett argues, however, that the order did not terminate the litigation between the parties on the merits, but was interlocutory. We think defendants' contention is untenable.
Hassett's complaint for injunction and other relief against the Board and Board members essentially contained allegations that (1) contested the action on the part of the Board in granting the Area D contract for the storage and cartage of election equipment to Empire, and (2) claimed that the Board in granting the contract violated the competitive bidding requirements of the Municipal purchasing act for cities of 500,000 or more population (Ill. Rev. Stat. 1975, ch. 24, par. 8-10-3). The complaint sought: (1) a temporary restraining order restraining the Board from both letting the Area D contract and removing any of the Area D voting machines from Hassett; (2) a preliminary injunction enjoining both; (3) a permanent injunction enjoining the Board from, inter alia, considering or approving Empire's bid on Area D; and (4) an order commanding the Board to let the Area D contract to Hassett.
Hassett's complaint did not designate Empire as a party defendant. Nevertheless, Empire sought and was granted leave to intervene as a defendant. Both the Board and Empire filed motions to dismiss Hassett's complaint. Empire's motion to dismiss and supporting brief was on the grounds that Hassett could make no complaint about the bidding procedures since the contract was not subject to the laws of Illinois requiring competitive bidding. Empire's motion to dismiss further attacked the court's equitable jurisdiction in the event the complaint was held to have stated a viable cause of action. The Board's motion to dismiss also contested the merits of Hassett's cause of action.
At the hearing before Judge Morrissey on Hassett's motion for a temporary restraining order, the court terminated the proceeding by dismissing plaintiffs' complaint. The order of dismissal stated:
"This cause coming on for hearing, and the Court having considered the pleadings filed in this cause, the briefs filed by Empire, and having heard the argument of counsel, and being further fully advised in the premises:
It is hereby ordered that the motions to dismiss the complaint filed by the defendants and the intervening defendant be and are granted. Leave is given plaintiffs to file an amended complaint at law within 21 days."
In the proceedings before Judge Morrissey the following remarks were made:
"The Court: Let me ask you the sixty-four dollar question. Could they (the Board) throw out all bids and grant the contract to Hassett tomorrow.