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Delta Consulting Group, Inc. v. R. Randle Construction

August 23, 2007

DELTA CONSULTING GROUP, INC., PLAINTIFF/COUNTERDEFENDANT,
v.
R. RANDLE CONSTRUCTION, INC., AND RONALD S. RANDLE, DEFENDANTS/COUNTERCLAIMANTS.



The opinion of the court was delivered by: Reagan, District Judge

MEMORANDUM AND ORDER

Delta Consulting Group, Inc., ("Delta") filed a Complaint on June 23, 2007, against Defendants R. Randle Construction, Inc., and Ronald S. Randle (collectively, "Randle"). The Complaint contains four counts: action on account stated, breach of contract, quantum meruit and unjust enrichment. Under all counts, Delta seeks recovery in the amount of $81,552.16 plus interest at 9% as allowed by law and for costs.

Randle has counterclaimed against Delta for breach of contract. Randle seeks recovery in the amount of $370,000.00 plus interest at 9% as allowed by law, attorney's fees and costs.

Delta has filed a motion for summary judgment on all counts and counterclaims. For the following reasons, Delta's motion for summary judgment is granted in its entirety.

STATEMENT OF FACTS*fn1

Randle undertook a construction project for Belleville East Township High School District 201 ("the Project"). Disputes arose over the Project which caused delays to Randle's work and additional uncompensated work, thus causing Randle to sustain financial damages. Randle and Delta entered into an oral agreement by which Delta was to provide construction consulting services to Randle for the claim being advanced by Randle for delayed and uncompensated work. Delta proposed to perform the services necessary for preparation and presentation of the Request for Equitable Adjustment ("REA") to the School District (exclusive of a fee for "attendance at dispute resolution procedures") for a fee of $27,840.00. Pursuant to the parties' agreement, Delta produced an REA to be submitted to the School District, in the amount of approximately $1.6 million, in an effort recover Randle's alleged damages.

Having reviewed the REA, the School District met with Delta and Randle on February 24, 2004, and requested additional information and documentation. At Randle's request, Delta revised the REA to correct the deficiencies and produced a second REA requesting approximately $1.7 million. On March 5, 2004, after Delta's resubmission, a second meeting was held, at which Landmark Contract Management, which was negotiating for the School District, offered to settle the claim for $100,000.00. Neither of Delta's REAs was rejected, but, in each instance, Landmark requested additional information and documentation. No further negotiations were held, and, in June, 2004, Randle hired a law firm to pursue his claim. Randle made his last payment to Delta on March 9, 2004. Randle submitted no additional documents or information to the School District after retaining the law firm. His claims were settled for $450,000.

ANALYSIS

I. Standard of Review

Summary judgment is proper if the pleadings, depositions, interrogatory answers, admissions, and affidavits leave no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c). The moving party bears the burden of establishing both the absence of fact issues and entitlement to judgment as a matter of law. Santaella v. Metropolitan Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997). In determining whether a genuine issue of material fact exists, the Court reviews the record in the light most favorable to the non-moving party and makes all reasonable inferences in the non-movant's favor. Anderson, 477 U.S. at 255; Ulichny v. Merton Community School Dist., 249 F.3d 686, 699 (7th Cir. 2001); Miranda v. Wisconsin Power & Light Company, 91 F.3d 1011, 1014 (7th Cir. 1996).

Because the primary purpose of summary judgment is to isolate and dispose of factually unsupported claims, the non-movant may not rest on the pleadings but must respond, with affidavits or otherwise, setting forth specific facts showing that there is a genuine issue for trial. Oest v. IDOC, 240 F.3d 605, 610 (7th Cir. 2001); Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944, 950 (7th Cir. 2000).

II. An Account Stated Existed between Delta and Randle

Delta argues that it is entitled to summary judgment against Randle because Randle's failure to object within a reasonable time to Delta's statements of account, along with Randle's partial payment of the account, constituted an agreement as to the correctness of the balance due on the account, thus establishing an account stated. An account stated has been defined as "an agreement between parties who previously engaged in transactions that the account representing those transactions is true and the balance stated is correct, with a promise for the payment of the balance."Dreyer Medical Clinic, S .C. v. Corral, 591 N.E.2d 111, 114 (Ill. App. Ct. 1992) (citing Toth v. Mansell, 566 N.E.2d 730, 734 (Ill.App. 1990)). "It has also been defined as an agreement between two parties which constitutes a new and binding determination of the balance due on indebtedness arising out of previous transactions of a monetary character, containing a promise, express or implied, that the debtor shall pay the full amount of the agreed balance to the creditor." Motive Parts Co. of America, Inc. v. Robinson, 369 N.E.2d 119, 122 (Ill. App. Ct. 1977) (citing Canadian Ace Brewing Co. v. Swiftsure Beer Co., 149 N.E.2d 442, 446 (1958)). "The meeting of the parties' minds upon the correctness of an account is usually the result of one party rendering a statement of account and the other party acquiescing thereto." Id. (citing Pure Torpedo Corp. v. Nation, 63 N.E.2d 600, 602 (Ill. App. Ct. 1945). An account stated is established where a "statement of account is rendered by one party to another and is retained by the latter beyond a reasonable time without objection."Allied Wire Products, Inc. v. Marketing Techniques, Inc., 424 N.E.2d 1288, 1296-97 (Ill. App. Ct. 1981); Pure Torpedo, at id. The latter party, by retaining the statement without objection, is deemed to have recognized that the statement of the account is correct. Eastman Kodak Co. v. T-K X-Ray, Ltd., 1995 WL 571460, at *4 (N.D.Ill. 1995) (citing Allied Wire Products, 424 N.E.2d at 1296-97). "In this manner, the debtor and creditor have a meeting of the minds as to the accuracy of the account and have manifested their mutual assent to the agreement." Id. (citing Toth, 566 N.E.2d at 734-35).

Delta and Randle had engaged in previous transactions of a monetary character, containing an implied promise Randle would pay the full amount of the agreed balance to Delta. Specifically, on January 29, 2003, Delta submitted a preliminary budget for services to Randle. Doc. 56, Exhibit 1. The estimate for the first two phases, "Familiarization and Initial Assessment" and "Detailed Analysis and Report" was 224 man hours, for a total of $27,480.00. Id. The third phase, "Dispute Resolution," provided that preparation and/or attendance at dispute resolution procedures would be billed at hourly rates plus out-of-pocket expenses. Id. Randle paid a $5,000 retainer "to get [Delta] started with this assignment." Id.; see also Doc. 56, Exhibit 10.

Randle continued to pay Delta's invoices after they exceeded the preliminary budget amount of $27,480.00. See id. (7 checks totaling $67,622.19).*fn2 Thus, the parties mutually assented to Delta's continuing services.

It is unnecessary for the Court to "deem" that Randle recognized that the statement of account was correct. Randle acknowledged his awareness of the balance due to Delta on or about September 30, 2004, when he requested that Delta confirm a balance of $89,302.16 for his auditors. Doc. 56, Exhibit 7. On November 30, 2004, Delta responded that the balance due from Randle to Delta was actually less - $81,552.16. Thus, there is no question that Randle agreed as to the accuracy of the account. Additionally, Randle had retained the statement for more than four months, given that this ...


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