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09/29/89 Accurate Communications, v. Transcontinental Freight

September 29, 1989

COMMUNICATIONS, INC., PLAINTIFF

v.

TRANSCONTINENTAL FREIGHT SYSTEMS, INC., DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT (ILLINOIS BELL



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

ACCURATE COMMUNICATIONS, INC., d/b/a B. & J.

Telephone Company, Third-Party, Defendant-Appellee)

545 N.E.2d 472, 189 Ill. App. 3d 699, 136 Ill. Dec. 948 1989.IL.1575

Appeal from the Circuit Court of Cook County; the Hon. David Lichtenstein, Judge, presiding.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. LORENZ, J., concurs. JUSTICE COCCIA, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

This is an action brought by plaintiff, Accurate Communications Systems, Inc., to recover monies due and owing from Transcontinental Freight Systems, defendant, for the installation of a telephone system at Transcontinental Freight Systems' place of business. Transcontinental Freight Systems filed a third-party complaint against Illinois Bell Telephone (Illinois Bell), in which Transcontinental Freight Systems sought indemnification from any money judgment found due to Accurate Communications Systems and damages for misrepresentation by Illinois Bell. Illinois Bell filed a motion to dismiss Transcontinental Freight Systems' third-party complaint pursuant to section 2-615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-615). Allowing Transcontinental Freight Systems to bring a separate lawsuit against Illinois Bell, the trial court dismissed Transcontinental Freight Systems' third-party complaint for failure to meet the joinder requirements of section 2-406(b) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-406(b)), which provides that "[w]ithin the time for filing his or her answer . . ., a defendant may by third-party complaint bring in as a defendant a person not a party to the action who is or may be liable to him or her for all or part of the plaintiff's claim against him or her."

Transcontinental Freight Systems appeals. The sole issue presented for review is whether the trial court erred in dismissing Transcontinental Freight Systems' third-party complaint. The facts are as follows.

Defendant and third-party plaintiff, Transcontinental Freight Systems, entered into a contract with plaintiff, Accurate Communications, Inc., for the purchase and installation of a telephone system at Transcontinental Freight Systems' place of business. The new telephone system was installed, but did not function properly. Illinois Bell admitted that the system would not function properly because of its incompatibility with the telephone system located in its central office.

Transcontinental Freight System made partial payment on the installation of the telephone system in advance, but refused to pay the $3,425.43 balance due under the agreement. Accurate Communications, Inc., then filed suit on the contract alleging that it had not been paid even though it installed the telephones and related wiring in a workmanlike manner and that Transcontinental Freight Systems did not pay for subsequent additional work and repairs for water damage after installation.

Denying Accurate Communications, Inc.'s allegations, Transcontinental Freight Systems then filed a third-party complaint against Illinois Bell seeking indemnity and damages. Illinois Bell filed a motion to dismiss pursuant to section 2--615 of the Illinois Code of Civil Procedure. In its motion, Illinois Bell argued that Transcontinental Freight Systems' third-party complaint failed to set forth or plead facts sufficient to support a cause of action. The trial court held that the cause of action was not properly brought as a third-party action pursuant to section 2--406 of the Illinois Code of Civil Procedure and dismissed the third-party complaint.

Section 2-406(a) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-406(a)) provides:

"If a complete determination of a controversy cannot be had without the presence of other parties, the court may ...


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