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11/09/95 BOARD LIBRARY TRUSTEES VILLAGE WESTMONT v.

November 9, 1995

THE BOARD OF LIBRARY TRUSTEES OF THE VILLAGE OF WESTMONT, USE PLAINTIFF-APPELLANT, FOR THE USE AND BENEFIT OF OZINGA BROS., INC., PLAINTIFF-APPELLEE,
v.
CINCO CONSTRUCTION, INC., DEFENDANT.



In the Circuit Court of Cook County. Honorable Albert Green, Judge Presiding.

As Modified December 8, 1995. Released for Publication December 21, 1995.

The Honorable Justice Zwick delivered the opinion of the court: Egan, J., and Rakowski, J., concur.

The opinion of the court was delivered by: Zwick

MODIFIED UPON GRANTING OF MOTION TO CORRECT MISNOMER

The Honorable Justice ZWICK delivered the opinion of the court:

Plaintiff, Ozinga Bros., Inc. (Ozinga), was a subcontractor engaged by the defendant, Cinco Construction, Inc. (Cinco), in the construction of the Westmont Public Library Building. On April 2, 1992, Ozinga filed a two-count complaint in the circuit court of Cook County against Cinco. In its complaint, Ozinga named Cinco as a defendant and the Westmont Public Library Board (the Library Board), *fn1 the public body which had commissioned the library building, as a "useplaintiff." In Count I, Ozinga alleged that Cinco had failed to pay it $17,546.17 for services rendered on the project. Ozinga also alleged that the Library Board was holding funds that were then due to Cinco. Ozinga claimed a lien on any funds held by the Library Board pursuant to the terms of section 23 of the Mechanics' Lien Act (hereinafter referred to as section 23) (770 ILCS 60/23 (West 1994)). Count II was a breach of contract claim against Cinco.

On July 13, 1992, the Library Board filed a motion to transfer venue from Cook County to DuPage County pursuant to the terms of section 2-103(a) of the Code of Civil Procedure (735 ILCS 5/2-103 (West 1994)) (hereinafter we refer to the Code of Civil Procedure as "the Code"). This section of the Code provides that actions "against" a public, municipal, governmental or quasi-municipal corporation such as the Library Board must be brought in the county in which the government entity has its principal office or the county in which the transaction at issue or some principal part thereof occurred. The Library Board stated in the motion that Ozinga was preparing a summary judgment motion which established that Ozinga's cause of action was, in fact, an action "against" it. The Library Board argued that venue was therefore proper in DuPage County only, the county in which the Library Board was located. Ozinga vigorously opposed the motion, arguing that the Library Board was named merely a "use plaintiff" in the case and not as a defendant. The trial court denied the motion.

On August 3, 1992, Ozinga filed a motion for summary judgment against Cinco. The trial court granted the motion and retained jurisdiction over the case for purposes of an accounting.

On October 9, 1992, the Library Board answered written interrogatories tendered to it by Ozinga. In its answers, the Library Board stated that Ozinga had not perfected its statutory lien under section 23 until January 8, 1992, and that no funds were due or owing to Cinco at that time. Accordingly, the Library Board stated that it was not holding lien funds.

During subsequent discovery, on November 2, 1992, Ozinga filed a motion to disqualify the Library Board's attorneys because it was necessary, Ozinga alleged, for it to depose members of the law firm representing the Library Board in order for it to proceed with its case. The motion was denied by the court on April 12, 1993.

After discovery was completed, on June 24, 1993, the Library Board made a motion to dismiss the case pursuant to the terms ofsection 2-615 of the Code (735 ILCS 5/2-615 (West 1994)). The Library Board argued that section 23 made no provision for the pleading of a "use plaintiff" and that no cause of action had been stated against the Library Board in Ozinga's complaint. The trial court denied the motion on September 21, 1993, and denied a motion to reconsider on November 17, 1993.

On October 7, 1993, Ozinga filed a motion for summary judgment against the Library Board pursuant to the terms of section 2-1005 of the Code (735 ILCS 5/2-1005 (West 1994)). Although Ozinga did not dispute the fact that the Library Board owed no money to Cinco on the day Ozinga's statutory lien was perfected, Ozinga argued that discovery had established that the Library Board had made "improper payments" to Cinco's subcontractors and suppliers during the term of the construction contract. Ozinga argued that judgment should be entered against the Library Board because these payments were in violation of the Library Board's "fiduciary obligations to disburse funds to subcontractors on a pro rata basis and without preference." The court scheduled argument on the motion.

On March 21, 1994, just prior to oral arguments on Ozinga's summary judgment motion, counsel for the Library Board requested leave to file a motion for sanctions. The Library Board argued that it had incurred considerable expenses in defending against Ozinga's motion to disqualify the Library Board's attorneys and that Ozinga's subsequent summary judgment motion established that the motion to disqualify was not filed in good faith. The court summarily denied the Library Board's motion. The court then heard arguments on Ozinga's summary judgment motion and granted the motion in favor of Ozinga in the amount of $17,546.17.

The Library Board, on appeal, has argued that each of the trial court's rulings against it was erroneous. We are asked to review: (1) whether the trial court committed error in denying the Library Board's motion to transfer venue; (2) whether the trial court committed error in denying the Library Board's motion to strike and dismiss Ozinga's complaint; (3) whether the court committed error in denying the Library Board's motion for sanctions; and (4) whether the trial court improperly granted Ozinga's motion for summary judgment. ...


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