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Vee See Construction Co. v. Luckett

OPINION FILED NOVEMBER 30, 1981.

VEE SEE CONSTRUCTION COMPANY, INC., PLAINTIFF-APPELLANT,

v.

HILLARY LUCKETT, INDIV. AND D/B/A LUCKETT CONSTRUCTION COMPANY, ET AL., DEFENDANTS. — (INTERNATIONAL FIDELITY INSURANCE COMPANY, DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. EUGENE R. WARD, Judge, presiding.

JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 4, 1982.

Plaintiff (Vee See) appeals from a judgment of the trial court entered in favor of it against International Fidelity Insurance Company (Fidelity) in the amount of $3,000. The issues presented for review are (1) whether the trial court had jurisdiction to vacate the first judgment for $15,000 against Fidelity; and (2) whether the judgment of $3,000 was against the manifest weight of the evidence. The pertinent facts follow.

Vee See entered into a contract with the Chicago Board of Education for rehabilitation of an elementary school. They then entered into a subcontract with Hillary Luckett for masonry work in the amount of $19,940. Luckett was required to furnish and did obtain a performance bond in the amount of $20,000, with Fidelity as surety and Vee See as owner.

Vee See filed its complaint on May 31, 1979, alleging that Luckett defaulted on its subcontract and Fidelity breached its performance bond, causing it to incur the costs in obtaining the completion of the work. Fidelity's attorney entered his appearance for both Luckett and Fidelity; however, only an answer on behalf of Fidelity was filed. Fidelity admitted the execution of the performance bond but stated that alterations or modifications of the original contract may constitute a waiver of responsibility by Fidelity.

On October 12, 1979, Vee See filed its motion to default Luckett. Notice was served upon Fidelity's attorney that on January 9, 1980, Vee See would move the court for prove-up instanter in the entitled matter. A judgment was entered on January 9, 1980, against Luckett and Fidelity in the amount of $15,000.

On April 24, 1980, the trial court held a hearing on Fidelity's motion to vacate the default judgment. Vee See objected on the ground that Fidelity's motion to vacate was filed more than two months after the 30 days permitted by section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 50(5)) and submitted the affidavit of Edward Atlas, attorney for Vee See. The affidavit indicated several communications with Fidelity's attorney regarding the judgment. A bystander's report on the proceedings indicated that the court requested counsel for Fidelity to produce a copy of its motion. Fidelity produced a copy of the motion bearing a filing date of February 8, 1980, whereupon the court allowed the motion to vacate and set trial for May 13, 1980. No proof of service was made upon Vee See of the filing by Fidelity of this motion on February 9, 1980.

At the hearing in May, the architect testified that Luckett was required to make repairs to the parapet, not contemplated in the original subcontract, but covered by a change order dated June 2, 1977, for an additional amount of $4,010. He indicated that upon inspection of Luckett's work in August 1978 and the finding that it was unacceptable, he, the building engineer and a Board of Education representative met with Luckett and informed him of the defects.

Vergil Herter, president of Vee See, testified that upon default of Luckett and Fidelity's refusal to complete the work, Vee See entered into a contract with Ray Anderson on November 9, 1979, in the sum of $13,000 for completion of Luckett's work. Herter stated that at the time Luckett went off the job, the work could have been completed for $3,000 to $4,000. The increase in cost was due to the job being uncompleted for two severe winters.

Vee See and Fidelity's exhibits detailed the pertinent communications between Vee See, Fidelity and American Bonding Agency, Inc. (Fidelity's representative in Chicago):

(1) Vee See letter to Fidelity dated October 6, 1978.

(2) Fidelity responded October 10, 1978, advising Vee See that American Bonding Agency would be handling the claim.

(3) Vee See letter to American Bonding dated October 13, 1978.

(4) Vee See letter to Luckett dated November 10, 1978, with copy to ...


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