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03/14/95 STATE FARM FIRE & CASUALTY COMPANY v. M.

March 14, 1995

STATE FARM FIRE & CASUALTY COMPANY, AS SUBROGEE OF ADA THOMAS, PLAINTIFF-APPELLANT,
v.
M. WALTER ROOFING COMPANY, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE DONALD E. JOYCE, JUDGE PRESIDING.

Released for Publication April 13, 1995.

Presiding Justice Scariano delivered the opinion of the court: Hartman and McCORMICK, JJ., concur.

The opinion of the court was delivered by: Scariano

PRESIDING JUSTICE SCARIANO delivered the opinion of the court:

In 1988, the premises located at 4725 South Michigan Avenue in the City of Chicago were damaged as a result of a leaky roof. The owner, Ada Thomas, submitted a claim to her insurer, plaintiff State Farm Fire & Casualty Company, which paid $10,885.14 on the claim. Plaintiff, as Thomas' subrogee, subsequently brought a breach of contract action against defendant M. Walter Roofing Company, which had repaired Thomas' roof in 1984.

According to both parties, plaintiff filed suit on April 26, 1991 to recover its payment on Thomas' claim. A copy of that complaint doesnot appear in the record, although a receipt for service of summons dated April 26, 1991, is of record. Plaintiff filed an unverified amended complaint on June 19, 1991. In July 1991, defendant filed a motion to dismiss, contending that plaintiff's cause of action was barred by the statute of limitations. The motion acknowledged that defendant had entered into a contract with Thomas to re-roof the premises at 4725 South Michigan Avenue. The court granted the motion on July 15, 1991.

On August 16, 1991, plaintiff moved for reconsideration of the July 15 order, seeking to file a second amended complaint alleging breach of contract. The record contains no order in response to this motion.

However, in April 1992, defendant again moved to dismiss plaintiff's amended complaint. The motion, filed pursuant to section 2-615 of the Code of Civil Procedure, asserted that plaintiff failed to allege facts supporting its claims that defendant owed a duty to its subrogor pursuant to a contract and that it had not performed its work in a good and workmanlike manner.

On April 28, 1992, the trial court granted defendant's motion and granted plaintiff leave to file a second amended complaint. Plaintiff's unverified second amended complaint, filed on May 22, 1992, alleged breach of contract. Paragraph 2 of the complaint stated that "plaintiff's subrogor, Ada Thomas, owned the premises and contents located at 7935 S. Vernon, Chicago, Illinois." Paragraph 4 referred to the contract for roof repair that Thomas and defendant had entered into and stated that "copies *** are attached hereto and marked Exhibit "A" and incorporated herein." The contract stated that

"the seller hereby sells, and the buyer *** hereby purchases subject to the terms set forth below and upon the reverse side hereof, the following described goods and services which are to be furnished or used in the modernization, rehabilitation, repair, alteration or improvement of the real property located at the buyer's address *** at 4725 So. Michigan Chgo, [sic] Ill. ***."

The contract described the goods and services as "construct[ing] the entire roof at 4725 South Michigan." Defendant's unverified answer, which was signed by its attorney, admitted the allegations in paragraph 4.

On November 4, 1992, plaintiff filed its third amended complaint which was identical to its second amended complaint except that it added the allegation that the contents of Thomas' premises were damaged as a result of defendant's failure to adhere to the contract. The trial court issued an order on the same day, stating that"defendant's answer to First Amended Complaint [sic] shall stand as his answer to Second Amended Complaint [sic]." The court apparently intended to allow defendant's answer to the second amended complaint to stand as its answer to the third amended complaint.

The case went to trial on March 16, 1993. A transcript of those proceedings is not in the record, although the parties filed a "Stipulated Report of Proceedings" from which the following facts are gleaned. (See 134 Ill. 2d R. 323(c)(d).) Defendant was not present at the trial, but it was represented by counsel. Plaintiff asked its first witness, George Thomas, if he was familiar with "Plaintiff's Exhibit No. 1." Defendant objected, noting that the body of the complaint referred to 7935 South Vernon, whereas the exhibit referred to services performed at 4725 South Michigan. The judge sustained the objection on the basis that the exhibit was not relevant to the issues framed by the complaint.

Plaintiff then moved to amend its complaint to reflect the South Michigan address appearing in the exhibit. Plaintiff asserted that defendant investigated the loss one week after its occurrence, that defendant received plaintiff's expert's report which contained the correct address, and that the correct address was revealed at the deposition of plaintiff's witness, George Thomas, which was taken 11 days before trial. The trial judge asked defendant's attorney if he would withdraw his ...


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