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Zygmuntowicz v. Pepper Construction Co.

June 25, 1999

VINCENT ZYGMUNTOWICZ, PLAINTIFF-APPELLEE,
v.
PEPPER CONSTRUCTION COMPANY, DEFENDANT-APPELLEE, AND MERCHANDISE MART PROPERTIES, INC., DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Buckley

Appeal from the Circuit Court of Cook County.

The Honorable Walter J. Kowalski, Judge Presiding.

the opinion of the court:

Vincent Zygmuntowicz (plaintiff), brought a negligence action against Pepper Construction Company (Pepper) and Merchandise Mart Properties, Inc. (Merchandise Mart). Pepper filed a third-party contribution action against plaintiff's employer, Metrick Electric Company (Metrick). Pepper ultimately settled with plaintiff and then filed a motion to apportion liability between it and Merchandise Mart. The court entered an order apportioning liability 70% to Pepper and 30% to Merchandise Mart. Merchandise Mart now appeals from the court's order and raises the following issues:

(1) whether the trial court can apportion liability and damages for negligence between two defendants absent a pending cross-claim for contribution;

(2) whether the statute of limitations on Pepper's claim for contribution has expired;

(3) whether the trial court can properly allocate liability without considering the involvement of all the parties who are potentially liable in tort;

(4) whether Pepper's admission that there was no evidence regarding who placed the particular mat in question at the location described by plain-tiff, or who was responsible for the mat, precludes the apportionment of any liability to Merchandise Mart; and

(5) whether there was an evidentiary basis supporting the apportionment of liability to Merchandise Mart. We hold that because Pepper never filed a claim for contribution against Merchandise Mart, the circuit court did not have the authority to apportion liability between the two defendants.

Plaintiff, an electrician employed by Metrick, was injured when he slipped and fell on a mat while working at the Merchandise Mart in Chicago, Illinois, on November 20, 1991. Metrick was a subcontractor of Pepper, and Pepper was the general contractor under a contract with Merchandise Mart. On November 16, 1993, plaintiff brought a negligence action against Pepper and Merchandise Mart. Count I of plaintiff's complaint asserts a cause of action in negligence against Pepper as the general contractor. Count II asserts a cause of action in negligence against Merchandise Mart as the owner.

Pepper filed its answer to plaintiff's complaint on January 4, 1994. Merchandise Mart filed its answer and affirmative defenses to the complaint on February 7, 1994. On March 13, 1995, Pepper filed a third- party complaint for contribution against Metrick, plaintiff's employer. No cross-claim was ever asserted by Pepper against Merchandise Mart.

Prior to trial, Pepper negotiated a settlement with plaintiff. Thereafter, on November 5, 1997, Pepper filed a notice of motion for apportionment of damages to be presented on November 10, 1997. Pepper's motion sought to apportion damages between itself and Merchandise Mart. Merchandise Mart filed its response on November 14, 1997. A hearing was conducted on November 17, 1997. At the hearing, the trial Judge acknowledged that there was no contribution claim filed by Pepper against Merchandise Mart and that there was no precedent for the apportioning of liability. Nevertheless, the trial court apportioned liability 70% to Pepper and 30% to Merchandise Mart.

Merchandise Mart raises several issues on appeal; however, the fundamental and dispositive issue is whether the circuit court had jurisdiction to apportion liability for the damages allegedly sustained by plaintiff in the absence of a cross-claim filed by Pepper against Merchandise Mart. We find that the circuit court did not have jurisdiction and, therefore, was without authority to apportion liability.

The Illinois Constitution of 1970 provides that circuit courts have "original jurisdiction of all justiciable matters" with a few limited exceptions. Ill. Const. 1970, art. VI, §9. The filing of a complaint or petition operates to invoke the court's authority to exercise its jurisdiction. Ligon v. Williams, 264 Ill. App. 3d 701, 707 (1994); see also 735 ILCS 5/2-201 (West 1992)("Every action, unless otherwise expressly provided by statute, shall be commenced by the filing of a complaint"). The purpose of the pleadings is to frame the issue or issues for the court and set forth the relief the court is empowered to order. Ligon, 264 Ill. App. 3d at 707. A party cannot be afforded relief, despite the admission of evidence supporting such relief, absent a corresponding pleading, such as a cross-complaint. See Bartsch v. Gordon N. Plumb, ...


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