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Village of Pawnee v. Knostman

OPINION FILED JUNE 16, 1983.

THE VILLAGE OF PAWNEE, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,

v.

GEORGE H. KNOSTMAN, JR., ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS.



Appeal from the Circuit Court of Sangamon County; the Hon. Richard E. Mann, Judge, presiding.

JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

The village of Pawnee seeks reversal of the circuit court's order dismissing, with prejudice, its complaint against Azzarelli Construction Company (hereinafter Azzarelli), for failure to comply with the court's orders respecting the furnishing of a bill of particulars to Azzarelli. (Ill. Rev. Stat. 1981, ch. 110, par. 37, now Ill. Rev. Stat. 1981, ch. 110, par. 2-607.) Pawnee filed a motion to vacate the court's dismissal orders, which was denied, and from the denial of its motion to vacate this appeal is taken. Defendant Azzarelli has filed a cross-appeal, seeking review over the court's denial of its motion to dismiss Pawnee's second amended complaint for failure to state a cause of action. Pawnee has filed a motion to strike the cross-appeal as untimely, which we have taken with the case.

The essential background facts must, of necessity, be stated at some length. Pawnee filed its original complaint against Azzarelli, George Knostman, Jr., and Fidelity & Deposit Company of Maryland. The suit grew out of Knostman and Azzarelli's work on Pawnee's sanitary sewer system in the early 1970's. Knostman was hired by Pawnee to plan and supervise the construction of a new sanitary sewer system. Azzarelli was contracted to do the construction on the system, pursuant to Knostman's plans and specification and under his supervision and control. The counts of the complaint against Knostman alleged that he fraudulently prepared pay estimates without examining the work to determine whether it met contractual specifications, that he negligently designed, supervised and inspected the system, and that he breached his contract to design, supervise and inspect the system. The complaint set forth 11 defects in the system which were alleged to be the result of Knostman conduct. One million dollars in damages were requested, the alleged costs of repairing the sanitary sewer system.

In the counts of the original complaint directed against Azzarelli, Pawnee alleged that Azzarelli was negligent in its construction of the system and that it breached its contract in failing to perform its contract in a workmanlike manner. Pawnee alleged that as a result of Azzarelli's negligence and breach of contract the system was defective, specifying the same 11 defects set forth in the counts against Knostman. The final count of the original complaint sought recovery against Fidelity, on its bond, for the same defects in the system.

After initial discovery and the filing of motions to dismiss by the defendants, Pawnee amended its complaint several times. Pawnee's second amended complaint, that is partially in issue before us, was filed on October 24, 1980. It contained two counts against Azzarelli in which it was alleged that Pawnee had a contract with Azzarelli which provided that the construction work would be done according to the plans and specifications prepared and furnished by Knostman. Construction was to be performed under Knostman's supervision and control. Count IV of the second amended complaint (hereinafter complaint) alleged that Azzarelli breached its duty to construct the system in a skillful and careful manner by constructing it in an unskillful and negligent manner. Count IV further alleged that the result of Azzarelli's unskillful, careless and negligent construction was a defective system. It specified the following defects:

"A. Numerous joints are open. B. Infiltration in the system is excessive. C. Vertical alignment is irregular. D. Structural failures exists [sic] in certain areas. E. Grade sags exist in certain areas. F. Cross connection exists between the sanitary sewer line and a storm sewer line. G. Certain unapproved materials were used. H. Certain pipes were placed incorrectly. I. Sand filter system does not function. J. Aeration system is inadequate. K. Chlorination system is inadequate. L. Existence of seepage through lagoon dikes."

Count V of the complaint, also against Azzarelli, alleged that the contract between Pawnee and Azzarelli provided that Azzarelli would perform the contract in a workmanlike manner. It also alleges that Azzarelli did not perform the contract in that it did not construct the system in a workmanlike manner, with the result that the system was not fit for the purpose to which it was intended. This was the result of the presence of defects, those being the defects set forth above as A through L.

Azzarelli responded with its motion to dismiss the second amended complaint, which, in pertinent part, argued that the complaint failed to state a cause of action and that conclusions, rather than facts, were alleged. On January 9, 1981, the court (Judge Richard Cadigan) denied Azzarelli's motion to dismiss, thus upholding the sufficiency of Pawnee's complaint against it. The court ordered Azzarelli to answer or otherwise plead within 30 days. Three days later, on January 12, 1981, Azzarelli filed a notice of demand for bill of particulars. In pertinent part, the defendant requested the following:

"COUNT IV

1. Furnish legible copies of the 13 pay estimates described in Paragraph 10 of Count IV.

2. Specify the information in each of the pay estimates which is false and untrue.

3. Specify the true facts with respect to the false and untrue information in each of the pay estimates.

4. With respect to claimant's allegation that this defendant performed its contract in an unskillful and negligent manner, state the date, place and precise conduct which ...


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