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Guerino v. Depot Place Partnership

May 18, 2000

JAMES P. GUERINO ET AL. V. DEPOT PLACE PARTNERSHIP (THE CONCRETE DOCTOR, INC., APPELLEE, V. LEVY SHACKLEFORD ET AL.,
APPELLANTS).



The opinion of the court was delivered by: Justice Heiple

Agenda 13-January 2000.

In this complicated multiparty litigation, fourth-party defendant Semmerling Fence and Supply, Inc. (Semmerling), claims that fourth-party plaintiff, The Concrete Doctor, Inc. (Concrete Doctor), cannot state a cause of action for contribution under section 2 of the Joint Tortfeasor Contribution Act (the Act) (740 ILCS 100/2 (West 1996)) against Semmerling and other fourth-party defendants because Concrete Doctor's tort liability was extinguished, leaving only contractual liability as a basis for the action. In addition, fourth-party defendants Levy Shackleford, individually and doing business as Durabilt Fence Company (Shackleford); David Barton, individually and doing business as David Barton Fence Company (Barton); James Raupp (Raupp); and Waste Management of Illinois, Inc. (Waste Management), challenge the good faith of a settlement agreement between plaintiffs James and Katrina Guerino, defendant and third-party plaintiff Depot Place Partnership (Depot Place), and third-party defendant and fourth-party plaintiff Concrete Doctor. Because we agree with Semmerling that Concrete Doctor cannot state a claim for contribution against fourth-party defendants under the Act as a matter of law, we need not consider the good faith of the settlement agreement.

BACKGROUND

On March 23, 1993, plaintiffs filed an action in negligence against Depot Place. The complaint alleged that on April 5, 1991, James Guerino, an employee of Concrete Doctor, was injured by a falling I-beam, an integral part of a mechanical gate located on premises owned by Depot Place and leased to Concrete Doctor. Depot Place filed a third-party complaint against Concrete Doctor on February 5, 1996, seeking recovery on theories of liability under the Contribution Act, breach of contractual duties to inspect and maintain the premises under the lease, and indemnification based on an express indemnity provision in the lease agreement. Depot Place subsequently amended its third-party complaint to add contribution claims against Shackleford, Barton, Raupp, Waste Management and Semmerling. Depot Place alleged that each of the additional third-party defendants had some connection to the design, fabrication, construction, installation or maintenance of the allegedly defective mechanical gate.

All third-party defendants filed motions to dismiss Depot Place's claims as time-barred under the two-year statute of limitations for contribution actions. 735 ILCS 5/13-204(b) (West 1996). The trial court granted the motions to dismiss with regard to the contribution actions, but refused to dismiss Depot Place's third-party action against Concrete Doctor for breach of contract and indemnification, which was subject to a 10-year statute of limitations. The appellate court affirmed the trial court's dismissal of the third-party contribution claims. Guerino v. Depot Place Partnership, 292 Ill. App. 3d 1122 (1997) (unpublished order under Supreme Court Rule 23).

On April 18, 1997, Concrete Doctor filed a fourth-party complaint for contribution against Shackleford, Barton, Raupp, Waste Management and Semmerling (collectively, fourth-party defendants) pursuant to section 2 of the Contribution Act (740 ILCS 100/2 (West 1996)). Shortly afterward, on June 11, 1997, plaintiffs, Depot Place and Concrete Doctor reached a settlement agreement. Concrete Doctor moved for a finding that the settlement was in good faith so that it could proceed with its fourth- party contribution action. Waste Management and Barton both filed objections, but on July 23, 1997, the trial court found the settlement in good faith.

In September 1997, fourth-party defendants filed motions to dismiss Concrete Doctor's fourth-party contribution action under both section 2-615 and section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 1996)), arguing that Concrete Doctor could not state a claim for contribution in tort when the only claims against it sounded in contract. The trial court granted these motions on December 17, 1997.

In a consolidated appeal, the appellate court affirmed the trial court's finding of good faith as to the settlement, but reversed the trial court's dismissal of Concrete Doctor's complaint for contribution, thus reinstating the contribution action against fourth-party defendants. Nos. 2-97-1042, 2-97-1043, 2-98-0008 cons. (unpublished order under Supreme Court Rule 23). Fourth-party defendant Semmerling's petition for leave to appeal to this court, which argued that Concrete Doctor failed to state a cause of action under the Contribution Act, was denied. Guerino v. Depot Place Partnership (Levy Shackleford), 184 Ill. 2d 556 (1999) (leave to appeal denied). However, fourth-party defendant Waste Management's petition for leave to appeal, which argued that the settlement agreement was not reached in good faith, was allowed. Guerino v. Depot Place Partnership (Levy Shackleford), 184 Ill. 2d 556 (1999) (leave to appeal allowed). Shackleford, Barton and Raupp subsequently joined Waste Management's appeal. This court granted Semmerling's motion for leave to file a separate brief pursuant to Supreme Court Rule 318(a) (155 Ill. 2d R. 318(a)).

ANALYSIS

As a preliminary matter, Concrete Doctor argues that Semmerling may not now raise its claim that Concrete Doctor cannot state a cause of action against fourth-party defendants under the Contribution Act because this court denied Semmerling's petition for leave to appeal challenging the appellate court's reversal of the trial court's dismissal of Concrete Doctor's fourth-party contribution action. Concrete Doctor is incorrect.

First, we note that Waste Management's petition for leave to appeal, which was allowed by this court, requested review "for the reasons stated above and in the petition for leave to appeal filed by Semmerling Fence & Supply, Inc. (which is adopted and incorporated by reference herein)." Additionally, Semmerling's Rule 318(a) motion for leave to file its own brief, which was allowed by this court, specifically stated that it would focus on whether the trial court properly dismissed Concrete Doctor's fourth-party action for contribution. The fact that leave to appeal was denied carries no precedential value and in no way amounts to a consideration by this court of the merits of Semmerling's claims. See Relph v. Board of Education of DePue Unit School District No. 103, 84 Ill. 2d 436, 442 (1981); People v. Vance, 76 Ill. 2d 171, 182-83 (1979). This court's review may cover all matters properly raised and passed on in the course of litigation. Relph, 84 Ill. 2d at 442. Thus, the issues now raised by Semmerling are properly before this court.

Because we find Semmerling's claim that Concrete Doctor failed to state a cause of action under the Contribution Act dispositive, we shall address this issue first. Semmerling argues that, in reversing the circuit court's dismissal of Concrete Doctor's fourth-party complaint for contribution, the appellate court improperly relied upon section 2(a) of the Contribution Act, to the exclusion of section 2(b). According to Semmerling, because the only claims in Depot Place's third- party complaint which survived dismissal were based on Concrete Doctor's contractual obligations under its lease agreement with Depot Place, to which fourth-party defendants were not parties, Concrete Doctor is unable to state a claim under section 2(b) of the Act. Section 2 of the Contribution Act states:

"§2. Right of Contribution. (a) Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them.

(b) The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is liable to make contribution beyond his own ...


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