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K&K Iron Works, Inc. v. Marc Realty, LLC

Court of Appeals of Illinois, First District, Fifth Division

November 7, 2014

K& K IRON WORKS, INC., Plaintiff-Appellee and Counterdefendant,
v.
MARC REALTY, LLC, Defendant-Appellant, Kenneth Stefan Jones, Midwest Masonry, Inc., Plaintiffs; CMP Construction, Plaintiff-Counterdefendant; Lakeview Athletic Club, Cole Taylor Bank, Chicago Title and Trust Co., Walter Klein, Sr., Walter Klein, Jr., Unknown Necessary Parties, and Unknown Parties, Defendants; LPAC Broadway Realty, LLC and Klein Construction Services, Inc., Defendants-Counterplaintiffs

Appeal from the Circuit Court of Cook County. Nos. 08 CH 46647, 08 L 8886, 09 L 6760. Honorable Lisa R. Curcio, Judge Presiding.

Affirmed.

SYLLABUS

The trial court's denial of defendant's request for a continuance to obtain new counsel after allowing defendant's counsel to withdraw on the day a trial was to begin in litigation that had been proceeding for nearly five years was affirmed, notwithstanding defendant's contention that the " notion" that defendant could find new representation in 10 or even 21 days was " nothing less than chimerical," especially in view of the complex nature of the litigation, since defendant did not seek to obtain new counsel until the day of trial, the record did not support defendant's claims that the case was complex and that proceeding without counsel would result in a six-figure judgment against defendant, defendant had plenty of time to request a continuance to obtain new counsel before the trial date, and defendant did not present any reasoned argument that it was " harmed" by the denial of a continuance.

For Plaintiff-Appellee and Counterdefendant, Paul N. Bonadies and Justin DeLuca, Dahl & Bonadies, of Chicago.

For Defendant-Appellant, Richard D. Grossman, Law Offices of Richard D. Grossman, of Chicago.

JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice Gordon concurred in the judgment and opinion.

OPINION

Page 1191

McBRIDE, JUSTICE

[¶1] Defendant Marc Realty, LLC, appeals from the circuit court's denial of its request for a continuance after allowing defendant's attorney to withdraw on the day trial was set to begin, after approximately

Page 1192

five years of litigation. On appeal, defendant contends that circuit court abused its discretion when it allowed defense counsel to withdraw and subsequently denied defendant's motion for a continuance. We affirm.

[¶2] We will discuss the facts of the underlying litigation only to the extent necessary to understand the current appeal. According to the complaint filed by K& K Iron Works, Inc., and a counterclaim filed by Klein Construction Services, Inc., in 2005, LPAC Broadway Realty, LLC, owned property at 3212 North Broadway Avenue (property) in Chicago, Illinois. Marc Realty was a " member/manager" and an agent of LPAC. In July 2005, LPAC entered into a contract with Klein to serve as the general contractor for the construction of the Lakeview Athletic Club at the property.

[¶3] In September 2005, Klein entered into a contract with K& K which provided that K& K would provide labor and materials to " properly finish and install structural steel and miscellaneous iron" on the property for the sum of $1,345,000. K& K began performance on the project shortly after and had completed all work required by the contract in August 2007.

[¶4] In the interim, LPAC terminated Klein as the general contractor of the project. In July 2007, Klein assigned its subcontract with K& K to LPAC. Under the assignment, LPAC agreed to " assume and perform all of the obligations" of Klein under the September 2005 subcontract. K& K further alleged that Marc Realty also assumed the subcontract and that, after assuming the subcontract, Marc Realty " held itself out as construction manager and general contractor on the project, including monitoring work on the project and making direct payments to K& K and other subcontractors for work performed."

[¶5] In August 2008, K& K filed its complaint against Klein, LPAC, and Marc Realty, alleging a breach of contract claim against LPAC and Marc Realty (count I), quantum meriut as an alternative claim against LPAC and Marc Realty (count II), breach of contract against Klein (count III), and quantum meruit as an alternative claim against Klein.[1] K& K alleged that LPAC and Marc Realty owed K& K an additional $228,515.20 plus interest for the work performed. Bradley Staubus of Esposito & Staubus represented LPAC, Marc Realty, and Klein throughout the proceedings.

[¶6] In February 2009, Klein filed its answer to K& K's complaint. In June 2009, LPAC and Marc Realty filed a joint answer to K& K's complaint and filed separate amended answers to the complaint in December 2009. Marc Realty's amended answer generally denied the allegations in K& K's complaint.

[¶7] In July 2010, LPAC and Klein filed counterclaims and affirmative defenses against K& K. The circuit court dismissed LPAC and Klein's counterclaims and affirmative defenses in December 2010, and twice dismissed their subsequent amended counterclaims and affirmative defenses. Marc Realty never filed a counterclaim or any affirmative defense against K& K.

[¶8] In October 2011, LPAC and Klein filed their third amended counterclaim against K& K, alleging, in pertinent part,

Page 1193

delay damages resulting in lost profits estimated between $900,000 and $1,200,000.

[¶9] In November 2011, K& K filed an answer and affirmative defenses to LPAC and Klein's third amended counterclaim.

[¶10] In January 2012, K& K filed a motion for partial summary judgment against Klein as to Klein's third amended counterclaim, which the circuit court granted in March 2012.

[¶11] In December 2012, the circuit court entered a written order setting the case for trial on June 11, 2013. Oral discovery was to be completed on January 31, 2013, but the circuit court granted extensions of time for the parties to complete oral discovery in February and March 2013.

[¶12] In May 2013, the circuit court entered an order setting the matter for trial on October 1, 2013.

[¶13] In June 2013, K& K filed a motion for partial summary judgment against LPAC's third amended counterclaim as to the issue of delay damages based on lost profits, alleging that the terms of the subcontract agreement precluded LPAC from obtaining delay damages against K& K and that LPAC had failed to identify any " opinions or testimony that K& K was the cause of any delays on the project which would entitle LPAC to obtain delay damages" in its answers to the Supreme Court Rule 213 interrogatories.

[¶14] On September 12, 2013, the circuit court granted K& K's motion for partial summary judgment against LPAC's third amended counterclaim on the issue of delay damages, finding that LPAC " failed to disclose or identify any testimony related to lost profits sustained by it."

[¶15] On September 13, 2013, the circuit court entered a final trial order, which stated that trial would commence on October 1, 2013, at 10:30 a.m.

[¶16] On September 20, 2013, LPAC filed an emergency motion to reconsider the court's September 12 order and continue the trial to allow limited discovery. The same day, after hearing oral argument, the circuit court denied LPAC's emergency motion.

[¶17] On October 1, 2013, the circuit court entered an order continuing the trial to October 2, 2013, at 10:30 a.m. No transcript from the proceedings on October 1 was included in the record on appeal.

[¶18] On October 2, 2013, the parties reported that they had been unable to reach a settlement. The following exchange occurred:

" MR. BONADIES [counsel for K& K]: We worked for a long time yesterday, as you know, coming to a settlement or a stipulated judgment. We went back--both of us--to our office and drafted the stipulated judgment, with the indication that it was going to get either commented on, approved, something, with respect to the ...

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