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Pickus Construction and Equipment v. American Overhead Door

December 21, 2001

PICKUS CONSTRUCTION AND EQUIPMENT, PLAINTIFF-APPELLEE
v.
AMERICAN OVERHEAD DOOR, DEFENDANT-APPELLANT



Appeal from the Circuit Court of Lake County No. 98-L-535 Honorable Barbara C. Gilleran-Johnson, Judge, Presiding.

The opinion of the court was delivered by: Justice Grometer

UNPUBLISHED

Defendant, American Overhead Door (AOD), appeals from a judgment of the circuit court of Lake County entered in favor of plaintiff, Pickus Construction & Equipment (Pickus Construction). Following a bench trial, the trial court awarded plaintiff $35,079. Defendant contends that the trial court's judgment was contrary to the manifest weight of the evidence. For the following reasons, we reverse.

Before turning to the merits of this appeal, we wish to address the parties' disregard of the supreme court rules concerning appellate briefs, which has needlessly hindered this court in reaching a decision. Both parties frequently ignore the rules pertaining to the citation of authorities. Rule 341(e)(7) states that arguments must be supported with citation to authority. 188 Ill. 2d R. 341(e)(7). Rule 341(d) provides that "[c]itations shall be made as provided in Rule 6." 188 Ill. 2d R. 341(d). Rule 6 mandates that "[c]itations of cases must be by title, to the page of the volume where the case begins, and to the pages upon which the pertinent matter appears in at least one of the reporters cited." 145 Ill. 2d R. 6. These rules are not mere suggestions; they are mandatory, and this court possesses the discretion to impose appropriate sanctions for violations. See Geers v. Brichta, 248 Ill. App. 3d 398, 400 (1993). We would be justified in finding a number of these arguments waived. See Chicago Title & Trust Co. v. Weiss, 238 Ill. App. 3d 921, 927-28 (1992) (noting violation of Supreme Court Rule 341(d), which incorporates Supreme Court Rule 6, can result in waiver of an argument). Had we exercised this prerogative, the result of this case might have been different. Defendant also raises some arguments for the first time in its reply brief, which we will not consider. See 188 Ill. 2d R. 341(e)(7) ("Points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing").

Further, both parties have violated numerous other supreme court rules. Despite the clear dictate of Supreme Court Rule 6 that "[i]t is not sufficient to use only supra or infra," plaintiff does so. 145 Ill. 2d R. 6. The covers of both defendant's main brief and reply brief do not name the trial judge entering the judgment under review, in contravention of Supreme Court Rule 341(b). 188 Ill. 2d R. 341(b). Defendant has also disregarded Supreme Court Rule 341(e)(2), in that its introductory paragraph does not contain a statement as to "whether any question is raised on the pleadings." 188 Ill. 2d R. 341(e)(2). Additionally, Supreme Court Rule 341(e)(7) provides that "[c]itation of numerous authorities in support of the same point is not favored." 188 Ill. 2d R. 341(e)(7). Nevertheless, plaintiff cites four cases which set forth the elements of promissory estoppel. None of the four citations indicate upon which pages these elements appear. Thereafter, plaintiff provides two cases in support of the proposition that " '[p]romissory estoppel' is a doctrine under which a plaintiff may recover without the presence of a contract." Both of these citations use only supra. Both parties, as well as all appellate counsel, are advised to pay close attention to these rules in the future.

BACKGROUND

Plaintiff is a construction company that was engaged as the general contractor on a project known as the Wheaton Public Works Project (Wheaton Project). James Pickus has been the company's vice-president of operations since 1990. In this position, he is involved in bidding and reviewing contracts between plaintiff and its various clients and subcontractors. Defendant is a company that is in the business of supplying and installing overhead doors. Larry Hooker has been its president for over 30 years. At the time of the events that form the basis of this suit, Trevor Murphy was employed by defendant as a salesman.

Plaintiff received plans for the Wheaton Project early in September 1997. Bidding on the project was to close on September 26, 1997. The parties dispute whether plaintiff invited defendant to submit a bid or defendant learned of the project from an independent source. Pickus testified that plaintiff does not send out specifications for a project with invitations; rather, it makes follow-up calls to see which subcontractors are interested and provides them with plans and specifications. Hooker testified that defendant learned of the Wheaton Project through the Dodge Report, a trade publication that lists upcoming projects. According to Hooker, when it learns of a project in this manner that it is interested in, it goes to the Dodge Room--apparently a facility maintained by the publishers of the Dodge Report--or directly to a general contractor to obtain plans. Hooker stated that defendant does not ignore specifications when bidding a job. The specifications for the Wheaton Project required the use of Fimble doors or a comparable alternative. Fimble is a manufacturer of overhead doors.

On September 22, 1997, plaintiff received defendant's first bid on the Wheaton Project by fax. In this bid, defendant proposed to supply 18 doors, of various sizes and types, at a cost of $76,895. The doors were classed as types A, B, C, and D. These different classifications apparently referred to the doors' sizes. Fourteen doors were type A, two were type B, one was type C, and one was type D. The bid did not indicate from which manufacturer defendant intended to procure these doors. This bid also included 18 operators. "Void" was written across this bid because it was superceded by later bids.

Plaintiff received a second bid from defendant on September 24, 1997, at 8:41 a.m. in the amount of $69,575. This bid consisted of three pages; however, only the first and third appear in the record. On the first page, type A doors are listed, but no quantity is shown. Type C doors are omitted. Thus, only three doors, two type B and one type D, are listed. Pickus testified that the second page of the bid listed two or three additional doors. Eighteen operators were also included in this bid. This bid has "void" written over it. At 8:57 a.m. of the same morning, defendant faxed plaintiff a corrected first page that listed the quantity of type A doors as 13. All bids contained a statement indicating that, because of potential price increases by suppliers, defendant would not hold prices for more than 30 days and a signed purchase order must be tendered.

On September 26, 1997, the date bidding on the Wheaton Project was to close, plaintiff received four additional bids from other overhead door companies. The lowest of these was from a company called Door Systems in the amount of $113,500. Pickus stated that, after receiving these bids, he became concerned about defendant's bid because it was considerably lower and telephoned Murphy to express his concern. Pickus testified to the following conversation with Murphy. He advised Murphy that he believed defendant's bid was erroneous. Both Pickus and Murphy opened plans to the Wheaton Project in their respective offices. They went over the plans to insure defendant's bid complied with them. Murphy assured Pickus that the bid was correct. Pickus also inquired as to whether the bid had been sent to other general contractors, and Murphy said that it had. Pickus told Murphy that he felt the bid was too low and that Murphy should advise all of the general contractors to whom it had been sent of this problem. Pickus explained that, if he did not use the bid and the other general contractors did, plaintiff would be at a competitive disadvantage relative to the other general contractors. Murphy stated the bid was correct and would be honored. Pickus informed Murphy that plaintiff would be using the bid and if it was awarded the project, it would forward a subcontract to defendant. Murphy replied, "Fine, I look forward to working with you" and added, "Good luck." Defendant disputes whether this conversation occurred. Plaintiff was awarded the project later the same day.

On October 1, 1997, defendant faxed plaintiff a new bid, lowering the price to $66,000. Plaintiff contends that there was some contact between plaintiff and defendant in the 30 days following the date defendant's last bid was received. Defendant disputes this contention. Outside of defendant's October 1, 1997, fax, the record does not divulge the nature of any such contact. It is undisputed that plaintiff did not forward a signed purchase order or any other writing indicating the acceptance of defendant's bid during this period.

Plaintiff contacted defendant early in November 1997 to set up a meeting to award defendant the contract for the overhead door system. The meeting took place on November 17, 1997. Pickus was called into the meeting as it was nearing completion. Murphy told Pickus that he had not figured the specified manufacturer, Fimble, into the bid and that defendant was no longer willing to enter into a contract based on its bid. Murphy stated that the door on which defendant had based its bid was equal or superior to the door identified in the plans and specifications for the project and that he would be able to get the architect to approve it. The architect, however, did not do so.

Subsequently, defendant submitted additional proposals using different doors. All were rejected by the architect. Finally, on May 13, 1998, defendant submitted a proposal using Fimble doors at a cost of $122,800. Pickus then spoke with Hooker about the matter. Hooker told Pickus that the only way it would perform the job was if plaintiff sent defendant a contract reflecting the May 13 ...


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