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Brown and Kerr Inc. v. American Stores Properties Inc.

August 06, 1999

BROWN AND KERR, INC., PLAINTIFF AND COUNTERDEFENDANT-APPELLEE,
v.
AMERICAN STORES PROPERTIES, INC., AND TRAPANI CONSTRUCTION CO., INC., DEFENDANTS AND COUNTERPLAINTIFFS-APPELLANTS.



The opinion of the court was delivered by: Justice Greiman

Appeal from the Circuit Court of Cook County. The Honorable Clifford L. Meacham, Judge Presiding.

JUSTICE GREIMAN delivered the opinion of the court:

Defendants and counterplaintiffs American Stores Properties, Inc. (American), and Trapani Construction Co. (Trapani) appeal from an order granting partial summary judgment to plaintiff and counterdefendant Brown & Kerr, Incorporated (B&K), on B&K's claim for breach of contract. American and Trapani also appeal from the denial of their request for attorney fees as well as the denial of their motions to reconsider these rulings.

For the following reasons, we affirm.

On August 8, 1995, B&K filed a complaint against American and Trapani, alleging that in 1993 American contracted with Trapani for construction work at a store owned by American. Trapani then subcontracted with B&K for work on the project. B&K alleged that it completed performance on the subcontract in May 1994 and performed extra work in the amount of $12,889.77. B&K alleged that the additional items, "while possibly appearing on [the] overall plans," were not on the plans that Trapani provided to B&K to compute the base subcontract price. B&K alleged that a balance remained due on the subcontract of $19,864.83 and on the extra work in the amount of $12,889.77.

In addition to its allegation that it had performed all of the contractual and statutory obligations, B&K alleged that it recorded a mechanics lien with the county recorder in May 1995 and neither defendant had paid any part of the balance due. In count I, B&K requested judgment pursuant to section 28 of the Mechanics Lien Act (770 ILCS 60/28 (West 1996)) against American and Trapani and an award of interest, attorney fees, and expenses. In count II, B&K alleged a claim for breach of the subcontract against Trapani and requested a judgment, plus interest, attorney fees, expenses, and costs.

In their answer, American and Trapani denied that B&K had completed performance of all contract obligations and denied any performance of extra work. American and Trapani asked for judgment in their favor on count I and for Trapani's attorney fees. Trapani also requested judgment in its favor as to count II as well as costs and attorney fees.

In their counterclaim, American and Trapani alleged that because B&K refused to provide guarantees, sworn statements, and a final lien waiver and release as required by the contract, B&K was not entitled to any further payment. American and Trapani requested judgment in their favor and attorney fees.

B&K answered the counterclaim, admitting that it failed to provide the guarantees, but contending that this failure was only "in legitimate response" to Trapani's repudiation of its duty to unconditionally tender $16,671.60. B&K alleged that Trapani repudiated the contract by unequivocally stating that it would tender the uncontested portion only if B&K provided a final lien waiver and complete release of B&K's mechanics lien. B&K alleged that after the lawsuit was filed, Trapani requested the sworn contractor statement and a final lien waiver. B&K responded to Trapani's demands by tendering a partial waiver for the undisputed portion, a subcontractor's affidavit, a final waiver from B&K's supplier, a manufacturer's warranty, and its guarantee. However, Trapani did not accept the tender and continued to insist upon the waiver of all B&K's lien rights.

On September 27, 1996, the circuit court granted B&K's motion for partial summary judgment as to count II, stating:

"[T]here is no material issue of fact that plaintiff is owed the sum of $16,671.60 for work performed under the base subcontract. The basis for this finding arises not from contested legal or factual issues or from rights and duties grounded in contract, but from the correspondence between the parties and counsel. Obviously, there are significant areas of dispute, but there is no material factual dispute as to Trapani's liability to [B&K] for $16,671.60."

The circuit court denied B&K's motion for partial summary judgment as to count I of the complaint, the claim as to the mechanics lien, and granted American and Trapani's motion for judgment on the pleadings as to that count.

The court stated:

"Inasmuch as the lien is declared invalid, no waiver from [B&K] is necessary. Inasmuch as there are issues of material fact concerning backcharges and conduct that remain, the remainder of count II and the counterclaim are transferred to *** the First Municipal District, all mechanic lien issues having been adjudicated."

The circuit court also noted that because both sides won and lost, it would not consider the requests for attorney fees.

The circuit court denied the parties' motions for reconsideration on September 11, 1997. On January 21, 1998, the circuit court entered judgment for Trapani on the back charges issue in the amount of $1,022 and on July 8, 1998, the court denied the parties' motions for attorney fees. On July 27, 1998, American and Trapani moved for reconsideration of that order and on September 3, 1998, the court denied the motion.

On October 5, 1998, American and Trapani filed their notice of appeal. They contend that the circuit court erred in granting partial summary judgment to B&K on the breach of contract claim and in denying their requests for attorney fees.

B&K contends that this court does not have jurisdiction to review this case because American and Trapani filed two posttrial motions after final judgment was entered on January 21, 1998, and thus when Trapani and American filed their notice of appeal after disposal of the second motion, it was untimely. See Sears v. Sears, 85 Ill. 2d 253, 259 (1981) (second postjudgment motion filed more than 30 days after judgment is not authorized).

A notice of appeal must be filed "within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, *** within 30 days after the entry of the order disposing of the last pending post-judgment motion." 155 Ill. 2d R. 303(a)(1), quoted in P & A Floor Co., Inc. v. Burch, 289 Ill. App. 3d 81, 87 (1997).

"A final judgment is defined as 'one which fixes absolutely and finally the rights of the parties in the lawsuit; it is final if it determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment.'" Burch, 289 Ill. App. 3d at ...


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