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George A. Fuller Co. v. Chicago College of Osteopathic Medicine

decided: October 14, 1983.

GEORGE A. FULLER CO., A DIVISION OF NORTHROP CORPORATION, PLAINTIFF-APPELLANT,
v.
CHICAGO COLLEGE OF OSTEOPATHIC MEDICINE, A CORPORATION, ET AL., DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 79 C 2890 -- George N. Leighton, Judge.

Bauer and Wood, Circuit Judges, and Gibson, Senior Circuit Judge.*fn**

Author: Wood

WOOD, Circuit Judge.

The plaintiff-appellant, George A. Fuller Company, a division of Northrop Corporation ("Fuller"), brought this action for tortious interference with contract against defendants-appellees, the Chicago College of Osteopathic Medicine ("CCOM"); CCOM's president, Thaddeus P. Kawalek; CCOM's vice-president, Robert W. Schaerer; and the architectural firm of Schmidt, Garden and Erikson ("SGE"). Jurisdiction is based on diversity of citizenship. The parties agree that the law of Illinois is controlling.

I. Facts.

This action involves both a construction contract between CCOM and Fuller whereby Fuller agreed to build a New Family Outpatient Clinic (the "project"), and the subcontracts between Fuller and numerous, unidentified subcontractors. SGE was the project architect. Due to disputes between the parties during the construction, CCOM and SGE terminated Fuller prior to completion.

Thereafter, CCOM filed suit against Fuller in the Northern District of Illinois under the caption Chicago College of Osteopathic Medicine v. George A. Fuller Company, ("Case No. 75 C 4161"), alleging that Fuller breached the construction contract by failing to carry the work forward in an expeditious manner, improperly supervising work on the project and submitting improper payment applications. Fuller denied the charges and counterclaimed against CCOM and SGE, alleging that they had breached the construction contract by delaying the project's progress, delaying or refusing to make certain payments allegedly due Fuller, and terminating Fuller.

In early 1979, Fuller sought leave to file an amended counterclaim in Case No. 75 C 4161. Count III of the proposed amended counterclaim was virtually identical to the complaint involved in this action. On July 11, 1979, prior to a ruling on its motion, Fuller filed the instant complaint under Docket No. 79 C 2890. Thereafter, Fuller was denied leave to file Count III of its amended counterclaim in Case No. 75 C 4161. Fuller did not appeal that ruling, but did seek leave to have Case No. 79 C 2890 consolidated with Case No. 75 C 4161. In its motion to consolidate, and at a later hearing, Fuller contended that its tortious interference theory set forth in the 1979 complaint was "based upon the same set of facts and transactions" and involved "essentially the same issues and evidence" as the contract theory asserted in its counterclaim in Case No. 75 C 4161. The defendants moved to dismiss the complaint in Case No. 79 C 2890.

On March 19, 1980, Judge Leighton granted the defendants' motions and dismissed Fuller's complaint, concluding the complaint was vague and failed to state a claim upon which relief could be granted. The dismissal was without prejudice to Fuller amending its counterclaim in Case No. 75 C 4161 and asserting, in proper fashion, any claims which it had against the plaintiff (CCOM) in that action. Fuller appeals from that dismissal having elected to stand on its complaint and not to file any claims in addition to those already filed in Case No. 75 C 4161.

CCOM's breach of contract claim against Fuller, and Fuller's contract claim against CCOM and its claims against SGE in Case No. 75 C 4161 were tried by a jury in November and December, 1980. Verdicts were returned in favor of CCOM and SGE and against Fuller on Fuller's respective claims against them, and against CCOM on its claim against Fuller. Judgments entered on the verdicts are now on appeal to this court.

Although this appeal raises several issues, we need only consider whether the complaint states an action for tortious interference of contract, due to our conclusion that it does not.

II. The Complaint.

For purposes of analysis, the complaint is summarized in detail as follows:

In 1973, Fuller and CCOM contracted for Fuller to construct a New Family Health Care Outpatients Clinic. SGE was architect and supervisor for the project. Fuller then contracted with numerous subcontractors with the knowledge of CCOM, SGE, Kawalek, and Schaerer ("defendants"). Complaint para. 9. Between 1971 and 1973, CCOM applied to the United States Department of Health Education and Welfare for federal grants to finance the construction and received approval for 75% of the construction price. Id. para. 13. In 1974, CCOM sought financing through a bond issuance in the amount of $35,000,000 to provide money for the clinic and, predominantly, for the construction of a teaching hospital -- a costlier project for which SGE also served as architect. Id. para. 15. Motivated in part, "to consummate the . . . bond financing and proceed with the ...


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