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Joseph Construction Company v. the Board of Trustees of Governors State University and

July 20, 2012


Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois Circuit No. 10-CH-3677 Honorable Barbara Petrungaro, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Schmidt

PRESIDING JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices Lytton and O'Brien concurred in the judgment and opinion.


¶ 1 This dispute involves work performed by plaintiff, Joseph Construction Company, for Governors State University. Plaintiff filed this action against defendants, the Board of Trustees of Governors State University (Governors State or GSU) and Tracy Sullivan, seeking, inter alia, to recover the balance allegedly due under a construction contract. Defendants brought a motion to dismiss plaintiff's complaint pursuant to section 2-619 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-619 (West 2010)). The trial court granted defendants' motion, leading plaintiff to file a motion to reconsider as well as a motion to amend its complaint. The trial court denied both motions and this appeal followed. Plaintiff claims the trial court erred in finding that plaintiff must prosecute its claims in the Court of Claims. We affirm.


¶ 3 Our recitation of the substantive facts of this matter, as with any case dismissed pursuant to section 2-619 of the Code, is almost entirely constrained to those facts contained within the complaint. On June 17, 2010, plaintiff filed a complaint alleging it is in the general construction business. Defendant Tracy Sullivan was an agent of Governors State whose duties included executing agreements for construction work.

¶ 4 On November 1, 2007, plaintiff entered into a written contract with Governors State, executed by Sullivan, for the performance of renovation work at GSU. In accordance with the terms of the contract, GSU issued its purchase order to plaintiff, directing plaintiff to proceed with work identified by the contract. Plaintiff alleges that on or about April of 2008, it had substantially completed all work required by the contract to the value of $1,564,231. The work included installation of a new wall and floor tile in the men's and women's shower rooms adjacent to the GSU swimming pool.

¶ 5 Plaintiff alleged that the scope of the work did not include demolition, modification or replacement of the existing subfloor, but merely the removal of the prior floor tile and the installation of new tile. Governors State informed plaintiff, after plaintiff completed its work, that certain areas within the shower rooms were experiencing puddling or pooling of water. Plaintiff claims to have performed requested remedial work, to the extent practicable, in a good and workmanlike manner.

¶ 6 Pursuant to the contract, in April of 2009, a nine-month inspection was conducted in an attempt to identify any items of warranty work that needed to be corrected. Following the inspection, additional corrective work was requested by GSU to address small areas of pooling water. Plaintiff agreed to perform, to the extent feasible, the corrective work.

¶ 7 On September 14, 2009, plaintiff submitted its request for final payment of the balance due under the contract. Defendant responded by sending a letter from Sullivan dated September 22, 2009, expressing an intent to withhold $49,000 from the final payment, purportedly to correct defective installation of the floor tile.

¶ 8 Plaintiff alleges that Sullivan's actions were "outside the scope of her authority as a State Official, as she is required, in her capacity as a procurement officer, to honor the terms of the parties' agreement, and not capriciously and arbitrarily withhold funds owed." The complaint states that GSU and Sullivan have failed and refused to make any effort to resolve this dispute and have ignored repeated requests to specify any additional corrective work which may be feasible.

¶ 9 Plaintiff alleged that the act of withholding funds amounted to conversion and further that it would be irreparably harmed if defendants were allowed to "continue to refuse payment of money owed *** and/or convert it to some other use, including destruction of [its] work." Plaintiff claimed to have no adequate legal remedy to prevent such harm in that it would be unable to prove its claim in any venue should defendants destroy or cause the destruction of its work. Finally, plaintiff alleged that since GSU continued to enjoy the benefit of its work, GSU and Sullivan would suffer no harm if the relief it requested was granted, especially given the fact that plaintiff "already has a performance and payment bond issued in connection with the construction contract" for the project.

¶ 10 Plaintiff requested that the trial court grant a preliminary and permanent injunction: (1) preventing defendants from destroying or contracting with others to destroy the tile work it installed; (2) ordering defendants to stop wrongfully withholding funds owed to it; and (3) without requiring it to post any additional bond. Plaintiff's complaint further sought a declaration that it was not in violation of the contract with GSU and that GSU, in fact, breached the contract. Finally, plaintiff included a breach of contract count in its complaint in which it sought to recover $75,673 in damages plus prejudgment interest.

¶ 11 Plaintiff attached a copy of the construction contract to the complaint. The contract contains a clause titled "Governing Law" that states "any claims brought against [GSU] must be brought in the Illinois Court of Claims in accordance with the Illinois Court of Claims Act (705 ILCS 505)."

¶ 12 Defendants filed a motion to dismiss pursuant to section 2-619 of the Code. 735 ILCS 5/2-619 (West 2010). In their motion, defendants state that plaintiff's claims were barred by sovereign immunity as "GSU is a statutorily-created university of the State of Illinois." As such, and given the nature of Sullivan's employment at the university, defendants argued that the State Lawsuit Immunity Act (745 ILCS 5/1 (West 2010)) and the Court of Claims Act (705 ILCS 505/8 (West 2010)) precluded any redress sought against defendants in the circuit court of Will County. Defendants also noted that the contract itself indicates that all claims brought thereunder must be initiated in the Illinois Court of Claims.

¶ 13 Plaintiff filed a response to defendants' motion averring, inter alia, that the contractual provision mandating claims be brought in the Illinois Court of Claims "has no bearing on this action" and that neither the Court of Claims Act (705 ILCS 505/8 (West 2010)) nor the State Lawsuit Immunity Act (745 ILCS 5/1 (West 2010)) barred prosecution of this matter in the circuit court. Defendants replied and the matter proceeded to a hearing on December 3, 2010.

¶ 14 On January 10, 2011, the trial court issued a written order granting defendants' motion to dismiss. On January 26, 2011, plaintiff filed a motion for leave to file an amended complaint, which included a copy of the proposed amended complaint. Rather than immediately ruling on the motion for leave to amend, the trial court entered a scheduling order. The scheduling order: (1) granted plaintiff "leave to file a separate motion to reconsider by February 4, 2011"; (2) gave defendants until February 25, 2011, to file a response to plaintiff's motion; (3) gave plaintiff until March 18, 2011, to file a reply to defendants' response; and (4) set the matter for a hearing on April 1, 2011.

¶ 15 The hearing on both plaintiff's motion for leave to amend its complaint and on its motion to reconsider took place as scheduled. Thereafter, the trial court entered an order denying plaintiff's motion to reconsider on May 4, 2011. By separate order dated June 1, 2011, the trial court denied plaintiff's motion for leave to file an amended complaint. Plaintiff filed a timely notice of appeal.


ΒΆ 17 We review de novo the circuit court's decision granting defendants' motion to dismiss under section 2-619 of the Code. Cortright v. Doyle, 386 Ill. App. 3d 895, 899 (2008). A section 2-619 motion for involuntary dismissal asserts affirmative matters such as defenses of preemption, sovereign immunity and absolute immunity which avoid or defeat a claim. Id.; see also Wolfe v. Wolf, 375 Ill. App. 3d 702, 705 (2007). When reviewing a section 2-619 dismissal, we ...

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