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Gleeson Asphalt, Inc. v. City of Collinsville

Court of Appeals of Illinois, Fifth District

December 5, 2017

GLEESON ASPHALT, INC., Plaintiff-Appellee,
v.
THE CITY OF COLLINSVILLE, ILLINOIS, Defendant-Appellant.

         Appeal from the Circuit Court of St. Clair County, No. 16-L-231; the Hon. Christopher T. Kolker, Judge, presiding.

          Steven Giacoletto, of Giacoletto Law Firm, of Collinsville, for appellant.

          Stephen M. Kernan, of Cook, Ysursa, Bartholomew, Brauer & Shevlin, Ltd., of Belleville, for appellee.

          Panel JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion. Justices Chapman and Overstreet concurred in the judgment and opinion.

          OPINION

          GOLDENHERSH JUSTICE

         ¶ 1 This appeal arises from a complaint filed by plaintiff, Gleeson Asphalt, Inc., against defendant, the City of Collinsville, Illinois, in the circuit court of St. Clair County. Defendant subsequently filed a motion for transfer to proper venue, asserting plaintiff's action should be transferred to the circuit court of Madison County because defendant's principal office is located exclusively in Madison County and the transactions giving rise to plaintiff's cause of action occurred in Madison County. The trial court denied defendant's motion, noting plaintiff's pleadings alleged that part of the underlying occurrences giving rise to its cause of action occurred in St. Clair County. Defendant filed a timely notice of appeal. For the following reasons, we affirm.

         ¶ 2 BACKGROUND

         ¶ 3 Plaintiff filed a complaint against defendant on April 25, 2016, in the circuit court of St. Clair County, alleging defendant failed to pay plaintiff for a construction project completed in the city of Collinsville. The complaint indicates plaintiff is an Illinois corporation licensed and doing business in the State of Illinois (State), and defendant is a municipal corporation under the laws of the State whose boundaries encompass properties located in both Madison County and St. Clair County. The pertinent details of plaintiff's complaint are as follows.

         ¶ 4 The complaint asserted that on or about July 19, 2012, plaintiff was awarded a contract with the State for construction and improvements to South Clinton Street located in Collinsville, part of which street and improvements were located in St. Clair County (Clinton Project). The complaint indicates Oates & Associates, a civil and structural engineering firm licensed in Illinois, was employed by defendant as its project engineer.

         ¶ 5 After several delays to the project, plaintiff alleged defendant "acknowledged the delay and agreed [plaintiff] would have additional expenses due" via an e-mail dated May 3, 2013, signed by David Ogle. Ogle was an engineer employed by Oates & Associates. Plaintiff alleged Ogle's e-mail stated that defendant agreed to pay the additional expenses incurred by plaintiff due to the project being delayed and further stated it wished to handle plaintiff's claims for payment of additional expenses separate from plaintiff's existing contract with the State. The complaint indicated the work to be performed by plaintiff was still controlled by its contract with the State, which provided plaintiff was:

"to do all the work, furnish all materials and all labor necessary to complete the work in accordance with the plans and specifications hereinafter described, and in full compliance with all of the terms of this agreement."
Plaintiff alleged the additional expenses it incurred due to delays in the project totaled $159, 525.81. Plaintiff argued that, despite its compliance with the plans for the Clinton Project and the Illinois Department of Transportation's standard specifications for such construction, defendant failed to make any payments.

         ¶ 6 Defendant filed a motion to transfer venue to Madison County on June 7, 2016, alleging there was no transaction or some part thereof that occurred in St. Clair County that would provide the circuit court of St. Clair County with jurisdiction over plaintiff's cause of action. Defendant asserted plaintiff's complaint arises out of construction and improvements to South Clinton Street in Collinsville, Illinois, all of which is located in Madison County. Defendant's motion acknowledged defendant is an Illinois municipal corporation with corporate limits located in both Madison County and St. Clair County but noted its principal office is located exclusively in Madison County. Defendant further claimed there was no contract between plaintiff and defendant that would give rise to the allegations in plaintiff's complaint, and even if there was, any major public improvements contracted by defendant would have to be approved by defendant's city council at city hall, which is exclusively located in Madison County. Defendant also noted plaintiff's complaint alleged Oates & Associates was an agent of defendant and stated Oates & Associates is located entirely in Madison County.

         ¶ 7 Plaintiff filed a response to defendant's motion to transfer on August 23, 2016, asserting defendant's motion should be denied because at least some of defendant's wrongful conduct regarding the contract occurred in St. Clair County and all of defendant's tortious conduct occurred in St. Clair County. In support of its position, plaintiff noted the website of Oates & Associates, which again plaintiff claimed was an agent of defendant, disclosed it has an office in St. Clair County, and Oates & Associates sent e-mails directed to the offices of plaintiff in St. Clair County. Regarding defendant's claim that there was no valid contract between the parties, plaintiff argued defendant's communication through Ogle of Oates & Associates in the May 3, 2013, e-mail evidences the agreement between the parties to handle this portion of plaintiff's expenses separate from plaintiff's contract with the State. Plaintiff asserted defendant was at least a third-party beneficiary of that contract. Plaintiff further noted that defendant's street department is located in St. Clair County, and the director of defendant's street department, Rod Cheatham, sent a letter to plaintiff's office in St. Clair County regarding the Clinton Project. Plaintiff asserted the representations made by defendant's agents were directed to ...


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