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Salisbury Plumbing & Heating v. Carpenter

OPINION FILED FEBRUARY 26, 1985.

SALISBURY PLUMBING & HEATING COMPANY, PLAINTIFF AND COUNTER-DEFENDANT-APPELLANT AND THIRD-PARTY PLAINTIFF-APPELLEE,

v.

KENNETH C. CARPENTER ET AL., DEFENDANTS AND COUNTERPLAINTIFFS-APPELLEES (FRED MCGILVRAY, INC., THIRD-PARTY DEFENDANT-APPELLANT).



Appeal from the Circuit Court of Marion County; the Hon. Michael R. Weber, Judge, presiding.

JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 2, 1985.

This suit involves a disputed construction contract involving three parties: Kenneth C. and Barbara Carpenter (Carpenter); Salisbury Plumbing and Heating Company (Salisbury), an Illinois corporation; and Fred McGilvray, Inc. (McGilvray), a Florida corporation.

On May 5, 1977, Carpenter entered into a contract with Salisbury in which Salisbury agreed to install a fire sprinkler system in a commercial building owned by Carpenter in Salem. On the same day, Salisbury entered into a separate contract with McGilvray in which McGilvray agreed to provide a fire protection system to fill Salisbury's obligation to Carpenter. The construction of the sprinkler system was completed in June 1977, but the system proved unacceptable to Carpenter. After an initial payment was made to Salisbury and McGilvray, Carpenter refused to make further payments.

On August 7, 1978, Salisbury filed suit against Carpenter in Marion County, and on July 20, 1981, McGilvray filed suit against Salisbury in Dade County, Florida. Subsequently, on September 27, 1982, Salisbury filed a third-party complaint against McGilvray in Marion County in response to a counterclaim filed by Carpenter against Salisbury in its suit against Carpenter in Marion County.

Salisbury retained a Florida law firm to appear and represent it in the Dade County litigation. Salisbury was served with process, filed an answer, and participated in pretrial proceedings in Florida.

The Florida case proceeded to trial before a jury in January 1983, and on February 4, 1983, judgment was entered on the verdict rendered in favor of McGilvray.

On February 14, 1983, McGilvray moved to file a supplemental answer in Marion County, pursuant to section 2-609 of the Civil Practice Law (Ill. Rev. Stat. 1983, ch. 110, par. 2-609). The proposed supplemental answer pleaded the Florida judgment as both an affirmative defense to Salisbury's third-party complaint and as a counterclaim against Salisbury for the amount of the judgment. On February 25, 1983, the trial court heard McGilvray's motion to file its supplemental answer and further considered McGilvray's motion for judgment on the pleadings. The trial court allowed McGilvray's counterclaim based on the Florida judgment but refused McGilvray's request that the Florida judgment be pleaded as an affirmative defense to Salisbury's third-party complaint. The trial court also denied McGilvray's request for judgment on the pleadings.

After the trial court denied McGilvray's motion to plead the Florida judgment as a defense against Salisbury's third-party action, the cause proceeded to trial. A bench trial was conducted and the trial court made the following rulings: (1) it denied Salisbury's action against Carpenter; (2) it granted judgment on Carpenter's counterclaim against Salisbury; (3) it granted judgment on Salisbury's third-party complaint against McGilvray; and (4) it denied McGilvray's counterclaim based on the Florida judgment against Salisbury.

The trial court's order included the following finding:

"24. Third Party Plaintiff, Salisbury, defendant in Case No. 81-12096 CA 02 in the Circuit Court of the Eleventh Judicial Circuit In And For Dade County, Florida, did not receive notice of the Florida proceedings in sufficient time to enable it to defend based on the following facts:

(a) This court entered an Order for Issuance For Writ of Injunction on January 14, 1983, restraining further proceedings in said Case No. 81-12096 CA 02 in the Circuit Court of the 11th Judicial Circuit, Dade County, Florida.

(b) Said Injunction Writ was issued by the Clerk of this Court on January 14, 1983.

(c) This Court on January 17, 1983, denied [McGilvray's] Motions to Dissolve Injunction and ...


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