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The People Ex Rel. the Department of Labor v. Pedro Valdivia

August 16, 2011

THE PEOPLE EX REL. THE DEPARTMENT OF LABOR,
PLAINTIFF,
v.
PEDRO VALDIVIA, INDIVIDUALLY AND D/B/A ) V&A LANDSCAPING, DEFENDANT AND THIRD-PARTY PLAINTIFF- APPELLANT (PASQUALINO DIVITO, INDIVIDUALLY AND D/B/A CONSTRUCTION, INC., THIRD-PARTY )
DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Du Page County. No. 09-L-1345 Honorable Patnick John T. Elsner, Judge, Presiding.

The opinion of the court was delivered by: Justice Zenoff

JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Hutchinson and Birkett concurred in the judgment and opinion.

OPINION

¶ 1 The Department of Labor (Department) filed a complaint against defendant, subcontractor Pedro Valdivia, individually and doing business as V&A Landscaping (Valdivia), alleging that he violated the Prevailing Wage Act (Prevailing Wage Act or Act) (820 ILCS 130/1 et seq. (West 2004)). Valdivia filed a two-count third-party complaint against general contractor Pasqualino Divito, individually and doing business as Patnick Construction, Inc. (Divito), seeking the full amount of any judgment entered against Valdivia and in favor of the Department. Valdivia appeals from the trial court's dismissal of the second count. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 In June 2004, the Village of Woodridge, Illinois, accepted Divito's bid on its "Suburban Estates Water Main Improvements" project. The bid included a cost of $85,638 for "sodding, special." In September 2004, Divito entered into an oral agreement with Valdivia in which Valdivia would install the topsoil and sod for the project for $44,493.75. Valdivia completed his work on the project in November 2004. Valdivia paid his employees his standard wage and overtime rates. Divito paid Valdivia the agreed amount of $44,493.75.

¶ 4 On February 4, 2005, the Department sent Valdivia a letter stating that its audit showed that he failed to pay the prevailing wage to his employees on the project and demanding payment within 10 days on behalf of those employees. Valdivia's attorney responded with letters to both the Department and Divito, disclaiming any liability under the Prevailing Wage Act and asserting that Divito was liable for the back wages due to his failure to inform Valdivia of the Act's applicability to the project and his failure to post the prevailing wage rates at the jobsite.

¶ 5 On March 15, 2005, the Department sent Divito a letter stating that it would hold him responsible for Valdivia's failure to pay the back wages owed to Valdivia's employees. Divito's attorney responded by letter to the Department disclaiming any liability under the Prevailing Wage Act. On March 29, the Department sent Divito a letter indicating that it had a right to pursue a bond claim on his contractor bond for the project. The Department gave Divito 10 days to respond. Thereafter, the Department made no more contact with Divito.

¶ 6 On October 23, 2009, the Department filed against Valdivia a complaint alleging that Valdivia violated the Prevailing Wage Act by failing to pay the prevailing wage to his employees on the project. It sought payment of back wages of $78,185.55; a statutory penalty of $15,637.11; and statutory punitive damages of $14,386.04.

¶ 7 In addition to filing an answer and affirmative defense, Valdivia filed a two-count, third-party complaint against Divito, alleging that Divito violated section 4 of the Prevailing Wage Act by failing to notify Valdivia that the Act applied and by failing to post the prevailing wage rates on the jobsite (820 ILCS 130/4 (West 2004)). Count I, entitled "Violation of the Illinois Prevailing Wage Act," alleged that Divito's failure to comply with the Act's notice requirement subjected Valdivia to suit by the Department. Count II, entitled "Fraudulent Concealment," alleged that Divito knew that the Act was applicable to the project but did not notify Valdivia because Divito intended to induce Valdivia to enter into the landscaping contract for a price less than he would have agreed to had he known that he would be required to pay the prevailing wage. Both counts sought as relief Divito's payment of the full amount of any judgment entered against Valdivia in the underlying suit.

¶ 8 Divito filed a combined motion to dismiss the third-party complaint pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2010)). The trial court granted the motion with respect to count I, dismissing it with prejudice. It is not at issue in this appeal. The court denied Divito's motion with respect to count II. The court stated that count II, though entitled "Fraudulent Concealment," was essentially a claim for contribution under the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/1 et seq. (West 2010)). The court granted Divito leave to file a motion to reconsider or to provide supplemental authority as to count

II. Divito filed a motion to reconsider; Valdivia responded; and Divito replied. On August 19, 2010, the court heard argument and dismissed count II with prejudice. On September 2, the court entered an order modifying its August 19 order to include a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). Valdivia timely appealed.

¶ 9 II. ANALYSIS

¶ 10 Valdivia argues that he stated a claim for contribution in count II of his third-party complaint and that the trial court erred in dismissing it. After construing count II as a claim for contribution, the trial court dismissed it for failure to state a claim. A cause of action should not be dismissed for failure to state a cause of action "unless it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to relief." Tedrick v. Community Resource Center, Inc., 235 Ill. 2d 155, 161 (2009) (reviewing dismissal pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2010))). We take all ...


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