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10/30/87 Certified Mechanical v. Wight & Company

October 30, 1987





515 N.E.2d 1047, 162 Ill. App. 3d 391, 113 Ill. Dec. 888 1987.IL.1614

Appeal from the Circuit Court of Du Page County; the Hon. William E. Black, Judge, presiding.


JUSTICE UNVERZAGT delivered the opinion of the court. DUNN and WOODWARD, JJ., concur.


Plaintiff, Certified Mechanical Contractors, Inc. , appeals from the judgment of the circuit court of Du Page County granting summary judgment to defendant, Wight & Co. (Wight), on count II of CMC's three-count complaint. Count I for libel arising from the preparation of an architectural report by Wight was dismissed, and Wight's motion for summary judgment on count III for libel arising out of the publication of a newspaper article was granted subsequent to the judgment entered here. CMC and Wight were engaged as general contractor and architect, respectively, by the Roman Catholic Diocese of Joliet (Diocese) for construction of a new parish center at St. Michael's Church in Wheaton, Illinois.

The essence of CMC's complaint in count II against Wight for intentional interference with contractual relations is that Wight, knowing of CMC's contract with the Diocese, wrongfully, maliciously and in bad faith interfered with that contract by causing the Diocese to order CMC to cease its operations on the project in order to allow tests to be conducted by Wight on the work performed by CMC. The results of the tests were reduced to a written report which outlined perceived construction problems in eight separate areas relating to the poured-in-place concrete work and was inherently critical of CMC's job performance. The initial cessation of work on November 9, 1983, was to last 10 days; CMC's work on the project did not resume until April 1984. CMC claimed damages as a result of Wight's alleged wrongful conduct.

Wight's first motion for summary judgment on count II was denied. Its renewed motion for summary judgment was granted, the court's opinion being that there had been no breach of the contract (i.e., CMC resumed its work on the project) and, therefore, one of the necessary elements of CMC's case was missing. Later, denying CMC's motion for reconsideration, the court opined that although CMC's contention that the delay of the construction contract may well have constituted a breach of the contract, it was the court's further opinion that Wight had a conditional privilege to advise the Diocese concerning the quality of the construction. The court stated it found no evidence, only speculation, which would support CMC's claim of malicious intent on Wight's part. The court subsequently also denied CMC's motions to make its judgment immediately appealable (107 Ill. 2d R. 304(a)) or for leave to amend count II. CMC brought the instant appeal after summary judgment was granted in Wight's favor on the remaining count III.

CMC contends the court erred in granting summary judgment on its intentional interference with contractual relations count because the record before the court raised the reasonable inference that Wight desired to injure it for reasons unrelated to and independent of its desire to properly advise the Diocese. CMC further contends it should have been allowed to amend count II. We affirm.

Initially, we address two motions filed by Wight and ordered to be taken with the case. In the first, Wight asks we dismiss CMC's appeal from the January 29, 1985, and December 16, 1986, orders of the trial court which, respectively, dismissed count I and granted summary judgment on count III. CMC filed neither an objection nor a reply to this motion and, in fact, concedes in its brief that the court's judgments as to counts I and III "are not being appealed." Accordingly, CMC's appeal from the court's judgments noted above is dismissed.

In its second motion, Wight asks we strike certain portions of CMC's "Statement of Facts" as violative of Supreme Court Rule 341(e)(6). (107 Ill. 2d R. 341(e)(6).) Insofar as that rule provides the facts necessary to an understanding of the case are to be "stated accurately and fairly without argument or comment," Wight finds CMC's "facts" are inaccurate recitations of the facts or are set forth in an improper editorial form containing Conclusions or argument. The four statements of "facts" Wight objects to are statements of opinion of CMC's president, Timothy Carlin. The statements were included in excerpts of his deposition attached to CMC's response to Wight's renewed motion for summary judgment, to wit: that it was apparent the project was going to be delayed due to Wight's "errors and omissions"; that the architect would be liable for additional costs if the project was delayed; that, therefore, Wight tried to convince the Diocese to remove CMC as general contractor; and that the report issued by Wight "contained gross misrepresentations and inaccuracies making appear incompetent." Wight also objects to CMC's reference to the pleadings in a separate suit filed by the Diocese against Wight and CMC.

CMC filed no objections to Wight's motion, but argues in its reply brief that Wight "[in] essence . . . again is seeking to exclude evidence "which it had objected to in the trial court, but on which objection the trial court had not ruled." CMC contends Wight's failure to secure a ruling on its objection waives it, citing Feldscher v. E & B, Inc. (1983), 95 Ill. 2d 360. CMC further contends this court should disregard Wight's attack on the credibility of Carlin's affidavit by reference to certain deposition testimony of Carlin which was presented to the court in connection with the court's subsequent consideration of count III, but which was not available to the court during consideration of count II, which is at issue here. In those deposition excerpts noted by Wight,

We agree with Wight that the complained-of excerpts from CMC's "Statement of Facts" must be stricken. The excerpts clearly are improperly set forth as facts, and, since they comprise a significant portion of CMC's 1 1/2 page "Statement of Facts," this court's ability to review the case has been hindered. (Cf. James v. Yasunaga (1987), 157 Ill. App. 3d 450 (court denied appellee's motion to strike appellant's statement of facts where the brief included proper record references, set forth other fairly innocuous representations of fact and violations were not so flagrant as to hinder or preclude review).) CMC clearly made no effort to provide this court with a fair statement of the facts, and we will not abide such blatantly derisive treatment. Cf. Midland Hotel Corp. v. Reuben H. Donnelley Corp. (1986), 149 Ill. App. 3d 53, 57-58, appeal allowed (1987), 113 Ill. 2d 576 (where, despite "a more argumentative statement of facts" than could be imagined, the court declined to grant the appellee's motion to strike appellant's statement of facts although it recognized that "at some point" sanctions would have to be imposed to prevent Supreme Court Rule 341(e)(6) from becoming a "pretend-rule").

CMC's contention Wight waived its objection to the statement is without merit. CMC does not provide record references for the "certain evidence" to which Wight allegedly objected at trial, nor does it state what that "certain evidence" was. As far as we can determine from the record, there is no identity between the deposition excerpts sought to be stricken here and the evidence Wight sought to have stricken in the trial court. Wight filed a written motion in the trial court on January 3, 1986, to strike as Conclusions of law paragraphs 7 through 10 of Carlin's affidavit, which was filed in support of CMC's motion for reconsideration. In those paragraphs, Carlin averred the work stoppage violated various provisions of the contract between itself and the Diocese and caused damages. On January 21, 1986, Wight filed a second written motion to strike those same paragraphs 7 through 10 and paragraph 11, as well as exhibits I through Q, all ...

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