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Sacramento Crushing Corp. v. Correct/All Sewer

December 29, 2000

SACRAMENTO CRUSHING CORPORATION, PLAINTIFF,
V.
CORRECT/ALL SEWER, INC.; E.A. COX COMPANY; THE CITY OF CHICAGO, DEPARTMENT OF TRANSPORTATION, AND FIDELITY AND DEPOSIT COMPANY OF MARYLAND, DEFENDANTS
(CORRECT/ALL SEWER, INC., CROSS-PLAINTIFF AND COUNTERDEFENDANT, APPELLANT,
V.
E.A. COX COMPANY, CROSS-DEFENDANT AND COUNTERPLAINTIFF, APPELLEE.



Appeal from the Circuit Court of Cook County. 96 CH 198, 96 CH 12924, 96 CH 14213, 96 CH 2255, 96 CH 2441, 96 CH 3547, 96 CH 3549, 96 CH 3560, 97 CH 12500 The Honorable Cyril Watson, Judge Presiding.

The opinion of the court was delivered by: Justice Cohen

Defendant-Appellee E.A. Cox Company (Cox) served as general contractor on a road construction project (the project) for the City of Chicago Department of Transportation (the City). Defendant-appellant Correct/All Sewer, Inc. (Correct/All) was Cox's sewer subcontractor for the project. Defendant Fidelity and Deposit Company of Maryland (Fidelity) provided Cox's surety bond. Nine subcontractors and/or material suppliers filed complaints against Cox and Correct/All for mechanics' liens against public funds pursuant to section 23 of the Mechanics Lien Act (770 ILCS 60/23 (West 1998)) and for bond claims against Fidelity and Cox pursuant to section 1 if the Public Construction Bond Act (30 ILCS 550/1 (West 1998)). The trial court consolidated all nine cases into Sacramento Crushing Corporation v. Correct/All Sewer, Inc., 96 CH 198. Once consolidated, no order of severance was ever entered with respect to any of these cases.

Correct/All cross-claimed against Cox and Fidelity, asserting mechanic's lien and bond claims. Cox moved to reduce the amount of Correct/All's lien, seeking a summary determination under section 2- 1005(d) of the Code of Civil Procedure (735 ILCS 5/2-1005(d) (West 1998)) that Correct/All was not entitled to a separate pay item of $170,025.75 for "spoil removal" (waste hauling). In an order dated December 3, 1997 (the summary determination order), the trial court granted Cox summary determination as to the spoil removal issue. Correct/All's motion for reconsideration of the summary determination order was denied. Cox and Fidelity then moved for summary judgment under Section 2-1005(b) of the Code of Civil Procedure, requesting a ruling that Correct/All was owed nothing further on the project. On September 3, 1998, the trial court granted their motion (the first summary judgment order), finding that Correct/All was owed nothing further on the road construction project and ruling that Correct/All had no valid mechanic's lien or bond claims. On January 28, 1999, the trial court entered a Rule 304(a) (134 Ill. 2d R. 304(a)) finding with respect to the first summary judgment order. Correct/All filed its timely notice of appeal on March 2, 1999.

Cox counterclaimed against Correct/All to recover certain "backcharges" (i.e., money that Cox had spent on Correct/All's behalf). Cox moved for summary judgment against Correct/All on the issue of backcharges. On May 2, 2000, the trial court granted Cox's motion, entering judgment in favor of Cox in the amount of $312,346.02 plus costs (the second summary judgment order). The court also entered a Rule 304(a) finding with respect to this order. Correct/All's motion to reconsider was denied. The same day, the trial court entered an order dismissing with prejudice all claims and causes of action filed in the nine consolidated cases that had not been disposed of by prior order. Correc/All's motion to reconsider the second summary judgment order was denied. Correct/All filed its second timely notice of appeal on July 13, 2000.

Correct/All's first appeal, case no. 1-99-0882, is from the trial court's summary determination order and the first summary judgment order. Correct/All's second appeal, case no. 1-00-2313, is from the second summary judgment order and the denial of its motion to reconsider. Cox has moved on appeal for sanctions against Correct/All and its counsel, Mr. Lamont Cranston Strong (Strong). Cox has also moved for the reconsideration of our previous order consolidating this case with Correct/All's second appeal. Cox's motions are taken with the case. We affirm the judgment of the trial court, deny Cox's motion for reconsideration and grant Cox's motion for sanctions.

I. Summary Determination, Summary Judgment and the Motion to Reconsider

We note as a preliminary matter that there is currently an order of this court on file, dated October 3, 2000, consolidating this case (Correct/All's appeal under Rule 304(a) from the trial court's entry of summary determination and summary judgment in favor of Cox and against Correct/All on Correct/All's amended cross-claim) with case no. 1-00- 2313 (Correct/All's appeal from the trial court's entry of summary judgment in favor of Cox and against Correct/All on Cox's counterclaim for backcharges and from the denial of Correct/All's motion to reconsider). Cox has moved for reconsideration of the order granting consolidation. Case no. 1-99-0882 has already been fully briefed, and the issues in the two appeals are nearly identical. No briefs have yet been filed in case no. 1-00-2313; however, we require no briefs from the parties to guide our decision. As we will further discuss, the record on appeal in the second case, standing alone, affords us a sufficient basis to rule on Correct/All's second appeal. Cox's motion for reconsideration is denied.

Although the trial court entered no Rule 304(a) finding with respect to the summary determination order of December 3, 1997, that order was a step in the procedural progression leading to the summary judgment order of September 3, 1998. Therefore, Correct/All's notice of appeal was sufficient to grant this court jurisdiction over the summary determination order. 155 Ill. 2d R. 304(a); Ruane v. Amore, 287 Ill. App. 3d 465, 470 (1997).

Our review of the trial court's grant of summary judgment is de novo. Natale v. Gottlieb Memorial Hospital., 314 Ill. App. 3d 885, 888 (2000). Summary judgment is properly granted "where the pleadings, affidavits, depositions, admissions, and exhibits on file, when viewed in the light most favorable to the non-movant, reveal that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Natale, 314 Ill. App. 3d at 888. In its first appeal, Correct/All argues that the trial court's summary determination order reducing its claimed lien violated both an unspecified section of the Chicago Municipal Code and the separation of powers doctrine. Correct/All also argues that in entering the first summary judgment order in favor of Cox, the trial court further violated an unspecified section of the Chicago Municipal Code by assigning to one O'Malley (as a subcontractor of Correct/All) a portion of the funds owed to Correct/All by Cox. Correct/All has indicated in its second notice of appeal that it wishes to appeal the trial court's entry of the second summary judgment order in favor of Cox, as well as the denial of its motion to reconsider that ruling.

We need not address the substance of these arguments on appeal. The function of a reviewing court on appeal from a grant of summary judgment is limited to determining whether the trial court correctly concluded that no genuine issue of material fact was raised and, if none was raised, whether judgment as a matter of law was correctly entered. Malanowski v. Jabamoni, 293 Ill. App. 3d 720, 724 (1997). The record is quite clear that Cox supported both its summary determination and first summary judgment motions against Correct/All with detailed affidavits. The record is equally clear that in response to Cox's motion for summary determination, Correct/All filed a document purporting to be an affidavit from Mr. George Fed, the president of Correct/All, addressing the spoil removal issue only. However, that document was not signed by Mr. Fed, nor was it notarized; therefore, that document was not a valid affidavit and was not sufficient to raise a genuine issue of material fact for purposes of summary judgment. In re Marriage of Lewis, 213 Ill. App. 3d 1044, 1049-50 (1991) (Welch, J., dissenting). The record reflects that Correct/All filed no affidavits -- sufficient or otherwise -- in response to Cox's first motion for summary judgment. The suggestion that an issue of material fact exists, without supporting evidence, is insufficient to create one. In re Marriage of Palacios, 275 Ill. App. 3d 561, 568 (1995). In the face of supporting affidavits from the moving party, the non-movant must submit counteraffidavits (or refer to depositions or admissions on file) in order to raise an issue of fact sufficient to survive summary judgment. Werckenthein v. Bucher Petrochemical Co., 248 Ill. App. 3d 282, 288 (1993). Failure to file counteraffidavits in opposition to a summary judgment motion supported by affidavits is fatal. Fitzpatrick v. Human Rights Comm., 267 Ill. App. 3d 386, 391 (1994). Therefore, Correct/All failed to raise any genuine issue of material fact before the trial court in response to either the summary determination or the first summary judgment motion.

Similarly, the record in Correct/All's second appeal reveals that Cox's second summary judgment motion was also supported by detailed affidavits. The record is clear that although Correct/All eventually moved for reconsideration of the trial court's entry of summary judgment in favor of Cox, Correct/All again filed no response to the second summary judgment motion. As with its first appeal, Correct/All failed to raise any genuine issue of material fact before the trial court. Fitzpatrick, 267 Ill. App. 3d at 390.

Our determination that Correct/All failed to raise a genuine issue of material fact in response to these motions does not conclude our analysis. We must now determine whether judgment as a matter of law in favor of Cox was correctly entered. Malanowski, 293 Ill. App. 3d at 724. "A court of review's determination as to whether the record supports a grant of summary judgment is one of law *** and may be based on any grounds called for by the record. [Citation.]" In re Marriage of Palacios, 275 Ill. App. 3d 561, 568 (1995). Uncontested, sworn affidavits submitted in support of a motion for summary judgment must be accepted as true for purposes of deciding the motion, contrary assertions in an opponent's pleadings notwithstanding. Soderlund Brothers, Inc. v. Carrier Corp., 278 Ill. App. 3d 606, 614 (1995). Cox's affidavits, accepted as true, clearly demonstrate that Correct/All had been fully paid under the terms of its subcontract. The trial court first determined that under the terms of its subcontract with Cox, Correct/All was not entitled to a separate pay item for spoil removal. By its own terms, the subcontract states that final payment to Correct/All would be made "on [the] quantities allowed in the final estimate by the [City]." The City's final pay estimate included no separate line-item term for spoil removal. In fact, the specifications of the subcontract specifically state that compensation to Correct/All for spoil removal was to be paid under line items 4, 37 through 49, 52 through 67 and 70 through 76, all of which were included in the City's final pay estimate. All of these line items were included among the agreed items of work under the subcontract; therefore, spoil removal was included among the items of work that Correct/All agreed to perform, and Correct/All was not entitled to separate payment. The trial court correctly entered summary determination in favor of Cox on this issue.

Accepting as true the total amount that Correct/All claimed that it had earned, the trial court then subtracted from that figure the remaining credits due Cox, including certain payments made by Cox on Correct/All's behalf and payments of the lien claims of Correct/All's sub-subcontractors and material suppliers. This calculation showed that Correct/All was owed nothing further on the project. The court concluded that Cox was therefore entitled to judgment as a matter of law. There is ample support in the record for the trial court's conclusion. The trial court's grant of the summary determination and first summary judgment motions in favor of Cox is affirmed.

Similarly, Cox's affidavit in support of its second summary judgment motion, accepted as true, shows that the total amount due to Correct/All under the subcontract for line-item work and contract extras was $743,665.93. The trial court subtracted from this figure the sum of $1,056,011.95, which was the total of all past payments to Correct/All from Cox, all of the backcharges due to Cox from Correct/All (for material, labor and union pension benefits) and all of the mechanic's lien claims against Cox by Correct/All's subcontractors. The trial court calculated that Correct/All had been overpaid and that there was a balance due from Correct/All to Cox in the amount of $312,346.02. The trial court then entered ...


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