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02/02/96 SUPERIOR STRUCTURES COMPANY v. CITY SESSER

February 2, 1996

SUPERIOR STRUCTURES COMPANY, AN ILLINOIS CORPORATION, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,
v.
CITY OF SESSER, A MUNICIPAL CORPORATION, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT AND CROSS-APPELLEE, V. UNITED STATES FIDELITY AND GUARANTY COMPANY, THIRD-PARTY DEFENDANT.



Appeal from the Circuit Court of Williamson County. No. 92-L-18. Honorable William H. Wilson, Judge, presiding.

The Honorable Justice Kuehn delivered the opinion of the court: Welch J., and Maag, J., concur.

The opinion of the court was delivered by: Kuehn

The Honorable Justice KUEHN delivered the opinion of the court:

Plaintiff, Superior Structures Company (Superior), filed an action in Williamson County against the City of Sesser (Sesser) in two counts. Count I sought a sum of money owed pursuant to contract, and count II sought interest pursuant to the Local Government Prompt Payment Act (50 ILCS 505/1 et seq. (West 1992)). Third-party defendant United States Fidelity and Guaranty Company is not a party to this appeal.

In late summer 1991, Sesser sought bids to resurface 7.42 miles of Sesser city streets pursuant to Illinois Department of Transportation specifications. Superior submitted the low bid of $296,003 and was awarded the contract. The contract price was based upon the amount of asphalt required to complete the project.

Sesser is located in Franklin County. Sesser's mayor, Ned Mitchell, signed the contract in Franklin County allegedly on September 11, 1991. Superior is located in Williamson County. Superior's vice president, Erik Luckett, signed the contract on September 16, 1991.

Sesser's city engineer, Lawrence Lipe, served as Sesser's project engineer. The project was to be accomplished in two stages, with all work concluded within 30 days during September and October 1991. Pursuant to a notice to proceed, Superior began work on September 23, 1991. The first stage was completed near the end of September 1991. Sesser, through its project engineer, prepared a punch list. All punch list work had been completed, and so pursuant to the contract, Sesser's city engineer submitted a partial payment estimate. Superior was paid $91,991.92.

After the project was completed, some asphalt was left over. Sesser asked Superior to apply the remaining asphalt to additional Sesser city streets located in the area of Sesser City Hall. These additional streets were not listed in the original contract. Superior completed the additional streets and left the project on October 11, 1991. Sesser's city engineer submitted a second and final partial payment estimate in the amount of $181,376.87. The second partial pay estimate reflected the contract amount less a retainage of $14,387.83. After Superior left the job site, Sesser formulated a second and final punch list. The second punch list was mailed to Superior on October 24, 1991, 32 days after the project began. This punch list required the application of additional materials. Sesser was unwilling to compensate Superior for the additional materials required to complete the second punch list.

After the second periodic pay estimate was submitted to Sesser's mayor, the mayor, without consulting the city engineer, ordered compaction studies. The tests were performed by PSI, an engineering firm. The results were directly reported to the mayor on November 8, 1991, and November 27, 1991. PSI's studies revealed that certain locations tested did not meet contract specifications.

Sesser never paid Superior the balance owed on the contract. The mayor gave conflicting testimony regarding Sesser's refusal to pay Superior. The mayor testified that Superior's failure to complete the second punch list resulted in nonpayment. Alternatively, the mayor testified that Superior was not paid because of the compaction test results.

Trial was conducted in Williamson County in April 1994. On June 9, 1994, the trial court found in Superior's favor on count I and awarded Superior the full contract amount, $195,764.70, less a setoff in the amount of $9,244.00 representing the cost to complete the second punch list. The trial court found that Superior substantially performed the contract by October 31, 1991, and the court awarded prejudgment interest on the $186,520.70 from October 31, 1991, through June 9, 1994, at 5% annually. The trial court found in Sesser's favor on count II.

Sesser appeals and Superior cross-appeals from the trial court's judgment.

Initially, Sesser argues that the trial court erred in denying its motion to transfer the case from Williamson County to Franklin County. Sesser filed a motion to transfer the case on the basis of forum non conveniens. The trial court denied the motion. Upon a motion for reconsideration, Sesser argued that venue was never proper in Williamson County. The trial court denied this motion also.

The doctrine of forum non conveniens starts with the premise that there is more than one forum having jurisdiction and venue over the case. ( Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 364, 456 N.E.2d 98, 100, 74 Ill. Dec. ...


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