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G.M. Fedorchak and Associates, Inc. v. Chicago Title Land Trust Co.

January 7, 2005

G.M. FEDORCHAK AND ASSOCIATES, INC., PLAINTIFF-APPELLANT,
v.
CHICAGO TITLE LAND TRUST COMPANY, AS TRUSTEE U/T NO. 1105980 DATED MAY 28, 1998; GROUND ZERO ENTERTAINMENT COMPLEX, INC.; BROADWAY BANK; BRYAN HANSON; IVAN CICO, JR.; CHRISTOPHER F. SKILNIK; AND UNKNOWN OWNERS AND NON-RECORD CLAIMANTS; DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, No. 00-CH-1159. Honorable Herman S. Haase, Judge, Presiding.

The opinion of the court was delivered by: Justice Schmidt

The plaintiff, G.M. Fedorchak & Associates, Inc. (Fedorchak), contracted with defendant Ground Zero Entertainment Complex, Inc. (Ground Zero), to provide architectural designs for a development project. Ground Zero leased the real estate for the project from defendant Chicago Title Land Trust Company (Chicago Title). When Ground Zero failed to pay its bills for the architectural services, Fedorchak filed a mechanic's lien against Ground Zero and Chicago Title. Fedorchak later filed a seven-count complaint against Ground Zero, Chicago Title, and other defendants. In count II of the complaint, Fedorchak sought to foreclose the mechanic's lien. The trial court granted Ground Zero's motion under section 2--619 of the Code of Civil Procedure to dismiss counts II and III with prejudice. 735 ILCS 5/2--619 (West 2002). Later, the trial court granted Fedorchak's motion to voluntarily dismiss the remaining five counts of the complaint. On appeal, Fedorchak argues that the trial court erred in dismissing count II. We affirm.

[9]     BACKGROUND

Fedorchak is an architectural firm located in Indiana. Ground Zero is an Illinois corporation. During the proceedings in the Illinois trial court, Ground Zero filed for bankruptcy. The record supplied to this court consists of the common law record from the Illinois trial court and documents from Ground Zero's federal bankruptcy proceedings.

On February 23, 2000, Ground Zero and Fedorchak contracted for Fedorchak to provide architectural services concerning the construction of a night club, theater, restaurant, and sports bar on real estate in Mokena. According to Fedorchak, Ground Zero represented that it owned the real estate. Fedorchak and Ground Zero later entered into a second contract for Fedorchak to supply construction management services for the project.

Fedorchak subsequently learned that Ground Zero did not own the property, but rather, that defendant Chicago Title held the property in trust. Ground Zero leased the property from Chicago Title.

After Ground Zero failed to pay its bills to the architectural firm, Fedorchak filed a mechanic's lien against Ground Zero and Chicago Title on August 28, 2000. Fedorchak sought reimbursement for its architectural services. Fedorchak filed another mechanic's lien against the same defendants for reimbursement of its construction management services.

Fedorchak filed its seven-count complaint on September 18, 2000. In count II, Fedorchak sought to foreclose the mechanic's lien for architectural services. This appeal only concerns count II.

Fedorchak's complaint was accompanied by invoices it had sent to Ground Zero for its architectural services. The invoices concerned architectural work Fedorchak had done for Ground Zero from February 23 to August 7, 2000.

On October 23, 2000, Ground Zero filed a section 2--619(a)(2) motion to dismiss Fedorchak's complaint. In its motion, Ground Zero alleged that Fedorchak was not registered and its president, Gerald M. Fedorchak, Jr. (Gerald Jr.), was not licensed to practice architecture in Illinois at the time the parties entered into the contracts. Ground Zero contended that under Kaplan v. Tabb Associates, Inc., 276 Ill. App. 3d 320, 657 N.E.2d 1065 (1995), both contracts were void. Ground Zero reasoned that under Kaplan and section 2--619(a)(2), Fedorchak lacked the legal capacity to sue Ground Zero on any of the seven counts of the complaint.

Fedorchak filed its response to Ground Zero's motion on November 15, 2000. In the response, Fedorchak admitted that the architectural firm still was not registered to practice architecture in Illinois.

Fedorchak attached Gerald Jr.'s affidavit to its response. In his affidavit, Gerald Jr. stated that he and his father, Gerald M. Fedorchak, Sr. (Gerald Sr.), are the two principals of the architectural firm. Gerald Jr. submitted that at the time the contracts were formed, Gerald Sr. was licensed to practice architecture in Illinois. Gerald Jr. said that he applied for his Illinois architecture license on March 23, 2000, and subsequently received it. In his affidavit, Gerald Jr. stated, "The drawings prepared for the Ground Zero project were prepared by myself and my father, and bear my father's name and seal." In its response, Fedorchak argued that the holding of Kaplan was inapplicable to count II of its complaint.

Ground Zero filed a reply to Fedorchak's response on November 22, 2000. In its reply, Ground Zero contended that although Gerald Sr. was licensed in Illinois, his license was inactive at the time of the contract's formation. Ground Zero attached a page from the Illinois Department of Professional Regulation website. The page was not dated, but the text of the page contained the statement, "page format modified 09/28/00." The page showed Gerald Sr.'s license status as "Inactive," but did not indicate when the license had become inactive. According to this document, Gerald Sr.'s license had been issued on "03/15/1965." Gerald Jr.'s license was issued on "05/31/2000."

On December 8, 2000, the trial court partially granted Ground Zero's section 2--619 motion by dismissing counts II and III with prejudice. The court's order stated that the dismissal was "in accordance with the holding in Kaplan." On February 6, 2001, the court ...


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