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05/30/96 C.D. PETERS CONSTRUCTION COMPANY v.

May 30, 1996

C.D. PETERS CONSTRUCTION COMPANY, INC., A CORPORATION, PLAINTIFF-APPELLEE,
v.
TRI-CITY REGIONAL PORT DISTRICT, DEFENDANT, AND KELLER CONSTRUCTION, INC., A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County. No. 95-CH-91. Honorable David Herndon, Judge, presiding.

The Honorable Justice Goldenhersh delivered the opinion of the court: Kuehn, J., concurs. Justice Chapman, dissenting:

The opinion of the court was delivered by: Goldenhersh

The Honorable Justice GOLDENHERSH delivered the opinion of the court:

Plaintiff, C.D. Peters Construction Company, Inc., filed a complaint for injunction and temporary restraining order against defendants, Tri-City Regional Port District (hereinafter Port District) and Keller Construction, Inc. (hereinafter Keller), to halt work on a railroad spur construction project. Although plaintiff submitted a lower bid, the Port District awarded the project to Keller. The temporary restraining order was sought in order to halt work on the railroad spur construction project until the dispute between plaintiff and the Port District over whether the bid was wrongfully awarded to Keller could be resolved. On the same day the complaint was filed, March 17, 1995, a temporary restraining order was entered by the trial court enjoining and restricting the Port District from conducting further work on the project for 10 days. In the same order, the trial court scheduled a hearing for March 23, 1995, to determine whether the temporary restraining order should be extended beyond 10 days. The initial order of the trial court was based on allegations contained in plaintiff's verified complaint. On March 21, 1995, Keller filed a motion to dissolve the temporary restraining order or, in the alternative, to modify the temporary restraining order to require plaintiff to post a bond. The Port District filed similar motions. On March 23, 1995, the trial court heard arguments on the motion to withdraw the temporary restraining order. Ultimately, the trial court denied plaintiff's request for a preliminary injunction and dissolved the temporary restraining order. On April 7, 1995, Keller filed a motion for statutory damages under section 11-110 of the Code of Civil Procedure (the Code) (735 ILCS 5/11-110 (West 1994)). Keller now appeals from the denial of its motion for damages, contending (1) that the trial court erred in denying its petition for damages because the language of section 11-110 provides that damages shall be awarded where the temporary restraining order has been dissolved, and (2) that the trial court erred in holding that the March 17, 1995, temporary restraining order was not wrongfully issued. Defendant Port District takes no part in this appeal. We affirm.

I

On August 20, 1994, the Port District published a bid notice for a railroad spur construction project. Plaintiff submitted a bid to the Port District in the amount of $786,445. Keller submitted a bid of $855,597.81. On December 29, 1994, the Port District awarded the bid to Keller. The Port District contends that it was required only to award the bid to the lowest responsible bidder. The Port District informed plaintiff that it had awarded the contract to Keller rather than plaintiff because plaintiff was unwilling to complete the project in a timely and efficient manner.

On January 26, 1995, plaintiff sent a letter to the Port District in which it protested the award of the bid to Keller. In the letter, plaintiff alleged that it had not been awarded the contract because of a lawsuit filed by James Peters, president of plaintiff, against Granite City. Plaintiff requested that the Port District rescind its contract to Keller, declare plaintiff the low and responsible bidder, and award the contract to plaintiff. Plaintiff also requested that no notice to proceed with work be issued to Keller until the protest of the award to Keller was fully resolved.

On March 17, 1995, plaintiff filed a complaint for injunction and a temporary restraining order. The complaint alleged that a notice to proceed with the project was issued to Keller by the Port District and work had begun. The complaint sought a temporary restraining order without notice and without bond. The temporary restraining order was sought in order to halt work on the project until the dispute between plaintiff and the Port District over whether the Port District wrongfully awarded the bid to Keller could be resolved. On the same day the complaint was filed, a temporary restraining order was entered by the trial court enjoining defendants for 10 days from conducting work on the construction project. At the same time, the trial court scheduled a hearing for March 23, 1995, to determine whether the temporary restraining order should be extended beyond the 10-day period.

On March 21, 1995, Keller filed a motion to dissolve the temporary restraining order or, in the alternative, to modify the temporary restraining order to require plaintiff to post a bond. Attached to said motion was the affidavit of Jerry Hamman, an employee of Keller, setting forth that the shutdown of the project required Keller to remove pieces of heavy equipment to another job site at a cost of $442.50. Hamman also attested to the fact that equipment idled due to the shutdown was costing Keller approximately $3,772 per day, and, if work was not soon resumed, Keller's only economically feasible alternative would be to remove the equipment to other sites. This would add an additional expense of moving such equipment back at a later date. Hamman stated that this redeployment would cause a delay, potentially exposing Keller to liquidated damages.

The hearing scheduled by the trial court for March 23, 1995, took place as scheduled. At that time the trial court took up the motion to dissolve. The trial court heard arguments and allowed James D. Peters to testify. Both defendants orally moved to dismiss the complaint for failing to identify any legal basis for the injunction. The motion was denied. At the close of the hearing, the trial court specifically stated:

"I think this particular plaintiff has a protectable interest and a right to some kind of relief if he has a cause of action. I'm not sure that this court is the proper place for an inquiry into the governance of Tri-City Port Authority, and whether they should or should not provide some kind of protest remedies or whatever. While we all may think that makes a lot of sense, I'm not sure I'm in a position to start telling them how to run their business.

But what is important probably for this particular hearing and at this particular stage is that it's the finding of the court after listening to evidence presented by the plaintiff that C.D. Peters Company has, in fact, failed to show an inadequate remedy at law, and particularly has failed to show a likelihood that they will prevail on the merits. Clearly we have damages that can be established if, in fact, there is a proper cause of action here."

The trial court also found no evidence that plaintiff suffered damage to its reputation due to loss of the contract and thus failed to meet its burden of showing irreparable harm. The trial court denied the request for a preliminary injunction and dissolved the temporary restraining order.

On April 7, 1995, Keller filed its verified petition for damages pursuant to section 11-110 of the Code. The verified petition set forth that due to entry of the temporary restraining order, Keller was shut down for six days and total damages of $20,296.50 had accrued during that time. Keller stated it was also required to incur attorney fees and expenses in connection with the preparation and presentation of its motion to dissolve, in the amount of $2,464.64. Keller sought total damages of $22,761.14. Plaintiff filed a motion to dismiss the petition for damages, and a memorandum in opposition to plaintiff's motion to dismiss was filed by Keller. On June 23, 1995, a hearing was held on ...


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