APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
M. COHEN, Judge, presiding.
PRESIDING JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 29, 1981.
Plaintiff, Demetri Konstantelos (hereinafter Taxpayer), filed a taxpayer's suit in the name and for the benefit of the city of Chicago to recover money belonging to the city which was allegedly paid without authority of law. (Ill. Rev. Stat. 1979, ch. 24, par. 1-5-1.) After the Taxpayer's suit was filed, the city filed its own suit involving the same subject matter against some of the same defendants named in the Taxpayer's suit. The two cases were consolidated. The Taxpayer's suit was later dismissed pursuant to a motion by defendants. Shortly thereafter, the city's suit was dismissed pursuant to a settlement agreement between the city and the defendants named in the city's suit. Neither the Taxpayer nor his attorney was given any details of the settlement. The Taxpayer appeals the dismissal of the Taxpayer's suit and the dismissal of the city's suit. We reverse the dismissals and remand.
The Taxpayer's suit named as defendants Duncan Parking Meter Maintenance Company; Jerome J. Robinson, president of Duncan Parking Meter Maintenance Company; Ted Mieczynski, vice-president of Duncan Parking Meter Maintenance Company; John Geocaris, deputy commissioner of streets and sanitation in charge of parking; and the treasurer of the city of Chicago. *fn1 The complaint charged that Duncan Parking had a contract to inspect the parking meters for the city and that it submitted a bill to the city for the inspection of 34,974 parking meters during the months of January and February 1979. The bill totaled $270,681. The complaint further alleged that the deputy commissioner signed city reports stating that the inspections were made by Duncan Parking twice a week during January and February. In addition, the complaint alleged that the deputy commissioner approved payment of the bill of $270,681, which was then paid by the treasurer. The complaint goes on to charge that there was a conspiracy by Robinson, Mieczynski and the deputy commissioner whereby the deputy commissioner was to pay all bills submitted by Duncan Parking whether or not Duncan Parking in fact performed services for the city. Also, the complaint charged that as a result of near-blizzard snow conditions during most of January and February 1979, it was impossible to have made the inspections which Duncan Parking claims were made, and that no actual services were rendered to the city in exchange for the payment of $270,681. The complaint also states that in light of the fact that weather conditions did not permit an inspection of the parking meters by Duncan Parking, the deputy commissioner's approval of the payment of the bill for $270,681 cannot be explained by mere administrative oversight and negligence. In addition to other relief, the complaint requested that Duncan Parking and the deputy commissioner provide a full and complete accounting of services rendered by Duncan Parking during the months of January and February 1979.
On April 23, 1979, Duncan Parking filed a verified answer in which it denied the allegations in the complaint as they pertained to it, and a motion to dismiss in which it denied that it had a contract with the city to inspect parking meters. On April 26, an order was entered giving the Taxpayer until May 17 to respond to Duncan Parking's motion to dismiss, and to ascertain the true identity of the corporation that actually entered into the contract with the city.
Starting that same day, April 26, the Taxpayer sought to obtain from the corportion counsel the true identity of the corporation and a copy of the contract for the inspection of parking meters. The Taxpayer had a conversation with an assistant corporation counsel in which he asked whether the corporation counsel would divulge the name of the corporation without the necessity of a subpoena. The Taxpayer was promised that the matter would be looked into and that the Taxpayer would be advised further. Thereafter, the Taxpayer called the corporation counsel's office on at least two occasions to ascertain the true name of the corporation and to obtain a copy of the contract. On each occasion, the Taxpayer was told that the matter would be looked into and that he would be further advised. Subsequently, the Taxpayer called the assistant corporation counsel a third time and was told that he should write a letter to the purchasing agent of the city requesting the name of the corporation and a copy of the contract. Such a letter was delivered by messenger on May 2. The letter states in part:
"RE: City of Chicago, ex rel. Demetri Konstantelos v. Duncan Parking Meter Maintenance Co., Inc., et al - 79 CH 2238
It is my understanding that you have a copy or copies of the contract regarding the inspection of parking meters by one of the corporations controlled by Jerome Robinson and Ted Mieczynski.
I represent the Plaintiff in the above cause, Demetri Konstantelos. He has brought a taxpayer's action seeking an accounting for the $270,681.00 paid by the City to the corporation that has the contract. In the suit, we named Duncan Parking Meter Maintenance, Inc. In response to the suit, it has filed an answer and a motion to dismiss. It has denied that it is a party to this contract. On April 26, 1979, Judge Cohen gave the Plaintiff 21 days within which to respond to the motion and ascertain the identity of the corporation that has signed the contract.
For that purpose, I am, by this letter requesting that you furnish me with a copy of that contract.
I would appreciate knowing whether you will voluntarily furnish me with such a copy by May 7, 1979. Otherwise I shall have to issue a subpoena.
A copy of this letter is being sent to Mr. Konstantelos and to * * * the Corporation Counsel's Office."
After the May 7 deadline, the Taxpayer again called the assistant corporation counsel and was told that he would be advised further regarding the matter. Having received no response, on May 10, the Taxpayer served a deposition subpoena for May 14 on the purchasing agent. However, on May 14, a contract was delivered to the attorney for the Taxpayer with a letter from the corporation counsel. The letter states in part:
"RE: Request for Contract relative to Cause No. 79 CH 2238, City of Chicago, ex rel. Konstantelos v. Duncan Parking Meter Maintenance Company, et al.
In response to your letter dated May 2, 1979, directed to [the] Purchasing Agent of the City of Chicago, requesting a copy of the contract regarding the inspection of parking meters, we are enclosing herewith a copy of said contract."
However, a review of "said contract" revealed that the contract furnished with the letter was not the correct contract, and it did not name the corporation that had the contract for the inspection of the city's parking meters.
Finally, on May 17, the last day the Taxpayer had to file a response to Duncan Parking's motion to dismiss, the assistant corporation counsel supplied the Taxpayer's attorney with the name of the corporation that had the contract for the inspection of the city's parking meters, i.e., Duncan Traffic Equipment Company. Thereupon, the Taxpayer set up a motion for May 24 to dismiss Duncan Parking as a defendant, and for leave to file an amended complaint naming Duncan Traffic Equipment Company as a defendant. On that same day, although the city was a party-plaintiff in the Taxpayer's suit and as such was represented by the corporation counsel, the corporation counsel filed a motion as attorney for defendant Geocaris to extend the time for that defendant to answer the amended complaint. *fn2
At that time, the Taxpayer's attorney again requested the corporation counsel to send him a copy of the contract involving Duncan Traffic Equipment Company's agreement to inspect the city's parking meters. The assistant corporation counsel stated that the contract would be furnished. The city did not send the Taxpayer's attorney the contract, but the corporation counsel filed a separate suit against Duncan Traffic and Robinson. Geocaris is not named as a defendant. The city's suit states that Duncan Traffic had a contract with the city whereby Duncan Traffic was to inspect, repair and maintain the city's parking meters. The complaint also states that the contract required Duncan Traffic to make approximately 360,000 inspections of parking meters per month and that the city was to pay Duncan Traffic a unit price per meter per rate of inspection. Although a copy of the contract was not attached to or made a part of the complaint, the complaint states:
"The contract further provides that:
Inspection shall mean the maintenance man on foot shall scrutinize the parking meter examining all external parts for cleanliness, looseness or damage turning handle to test the operative condition of the meter and checking the pedestal for plumb and tightness.
The Contractor shall establish and maintain a system for recording inspection, maintenance and repair service performed on a district and individual meter basis. The Contractor shall furnish daily to the Commissioner of Streets and Sanitation a report showing the districts in which the inspections were made * * *. Inspection, repair and maintenance records and material and parts record of the contractor, pertaining to this contract, shall be available for inspection, upon request, by the Commissioner of Streets and Sanitation."
The city's complaint also states that records furnished to the city by the First National Bank of Chicago indicate that at least 636 parking meters were not collected during the months of January and February 1979, *fn3 but that the records submitted to the city by Duncan Traffic indicate that full service was rendered by Duncan Traffic on those same parking meters during January and February 1979, and that the city paid Duncan Traffic for such alleged service. *fn4 The city's complaint charges that the services for these 636 parking meters, although paid for by the city, were not performed. The complaint also charges that the inspections and repairs of the city's parking meters reported by Duncan Traffic for the months of January and February 1979 were not performed by Duncan ...