Associates of Chicago v. State of Illinois

ORDER

HOLDERMAN, J. This matter comes before the Court upon motion of Claimant for partial summary judgment filed August 19, 1980, to which Respondent has made no answer nor response. [*625]

CIaimant’s motion requests the Court enter an order granting partial summary judgment for certain enumerated items totalling the sum of $35,522.37, plus prejudgment interest at the statutory rate from and after December 5,1975.

Claimant cites section 2 of “An Act in relation to the rate of interest” (Ill.Rev.Stat., ch. 74, par. 2) as its basis for requesting interest. Said statute provides, among other things, payment of five (5%)per cent interest per annum for all monies after they become due or money withheld by an unreasonable and vexatious delay of payment.

It appears from the record in this cause that there is not any dispute as to the amount claimed by Claimant and that this amount was due from December 5, 1975.

Award is hereby entered in favor of Claimant in the amount of $35,522.37, plus interest at the rate of 5%from December 5, 1975, to date of payment.

AMENDED ORDER

HOLDERMAN, J. This matter comes before the Court upon motion of Claimant for partial summary judgment filed August 19, 1980, to which Respondent has made no answer nor response.

Claimant’s motion requests the Court enter an order granting partial summary judgment for certain enumerated items totalling the sum of $35,522.37, plus prejudgment interest at the statutory rate from and after December 5,1975.

Claimant cites section 2 of “An Act in relation to the rate of interest” (Ill.Rev.Stat., ch. 74, par. 2) as its basis for requesting interest. Said statute provides, among other things, payment of five (5%)per cent interest per annum for all monies after they become due or money withheld [*626] by an unreasonable and vexatious delay of payment.

It appears from the record in this cause that there is not any dispute as to the amount claimed by Claimant and that this amount was due from December 5, 1975.

Award is hereby entered in favor of Claimant in the amount of $35,522.37.Interest is not allowable.

OPINION

HOLDERMAN, J. This is a claim filed alleging breach of a contract, which contract was for architectural, engineering and professional services between the Capital Development Board (CDB) and The Dearborn Associates (TDA) for the Benito Juarez High School project in Chicago, Illinois. The breach complained of is for non-payment of professional services rendered between March 25, 1975, and December 8, 1975. In its complaint, TDA sought an award for $75,159.62. On January 30, 1981, the Court of Claims entered an amended order granting partial summary judgment to Claimant in the amount of $35,522.57.

The remaining amount in dispute is $39,637.05.

There are two issues involved in this case: (1) Whether the project had been completed through the, design development phase at the time of Claimant’s termination; and (2) Whether interest on an award is allowed in the Illinois Court of Claims; On March 25, 1975, a contract was executed between the CDB and TDA for architectural and engineering services for the Benito Juarez High School in Chicago, Illinois. Under the contract, TDA was to provide services in seven phases on the project.

I On June 24, 1975, the contract was modified and the number of phases was reduced from seven to four. The first three phases of the project were deleted from TDA’s [*627] contract but the contract did provide that TDA was to perform certain services in conjunction with RMC, a Mexican architectural firm which had been hired as a design concept consultant, and the Turner Construction Company. The contract provided that CDB’s manual of procedures would be a part of TDA’s contract and would apply to its work. The purpose of the manual of procedures was to standardize the whole architectural process both in terms of services and fees.

On December 5, 1975, CDB wrote to TDA advising them that, pursuant to Article 8, par. 8.3 of the contract, TDA was terminated effective 15 days following receipt of the letter. The letter was received by TDA on December 8, 1975.

On December 18, 1975, TDA forwarded to CDB all drawings it had prepared to that date. These included 42 architectural sketches designated as “definitive design drawings .”

It is the contention of Respondent that when the contract was terminated, the design development phase of the contract was not completed.

It is Claimant’s contention that Respondent, through various agents, stated that the manual procedure did not apply to its work, and the rules of the manual were waived. Respondent denies. there was such a waiver and points out that while any evidence to such a waiver was oral, said waiver, by documents and notes, was not substantiated by the evidence.

This Court, in L. Balkin Builder, lnc. v . State (1939), 11 Ill. Ct. C1. 407, laid down the following rule: “Oral testimony inadmissible to vary terms of contract. In the absence of any fraud, parole testimony cannot be received to change, vary or alter the terms of a written contract.”

It is the opinion of the Court that the terms of the [*628] original contract cannot be changed by oral evidence as presented by Claimant in this cause.

It is the finding of this Court that Claimant was not compensated for work performed under the contract and that a fair value for said services rendered unpaid at the time of the termination of the contract is $15,000.00.

Claimant has requested interest for the failure of Respondent to make payments for work performed. This Court has previously held that interest on awards is not allowable. See Coach Corp. of Freeport v . State (1949), 18 Ill.Ct.Cl. 156; also Toombs 0. State (1977), 32 111. Ct.

C1. 205.

An award is hereby entered in favor of Claimant in the amount of fifteen thousand ($15,000.00) dollars, as full, final and complete settlement of all claims in this cause.

AMENDED OPINION

HOLDERMAN, J. This matter comes before the Court upon petition of Respondent for clarification filed January 5, 1983. Claimant did not respond to said petition.

In the Court’s opinion of December 6, 1982, an award was entered in favor of Claimant in the amount of $15,000.00. A re-reading of the facts in this case would indicate that such an award could be construed as allowing a case based upon a quantum meruit recovery. This Court has expressly disallowed recovery on quantum meruit basis. See Sunley v . State (1976), 31 Il1.Ct.Cl. 176, and Hofer v . State (1978),32 111.Ct.Cl. 745,751.

In order to clarify the situation, the Court hereby vacates its opinion of December 6, 1982, and dismisses said cause.

[*629] AMENDED AMENDED OPINION

HOLDERMAN, J. This matter comes before the Court upon a joint motion by Claimant and Respondent requesting an amended opinion be entered by this Court.

Said joint motion sets forth that it is the opinion of Claimant and Respondent that an award should be made based upon the express terms of the contract between the parties hereto, and further suggests that the award should be in the amount of $15,000.00.

An amended amended opinion is hereby entered granting claimant the amount of $15,000.00, based upon the contract between Claimant and Respondent.

( No . 77-CC-0515-Clai1n clisniissecl.)

JAMES T ARKOWSKI , Claimant, 0.T HE STATE OF ILLINOIS, Respondent.

Order on motion to strike filed April 17, 1978.

Order on motion to dismiss filed Scptc.mber 27, 1979.

Opinion filed April 14, 1983.

Order on motion to vucute dismissul fikdJtrne I , 1983.

ALICE NEFF BROWNE, for Claimant.

ARIES, HOYT 81 WILLIAMS, for Respondent.

NEcLIcENcE-e~emPnts of recovery. Before there can be recovery for clariiagc it must be shown that Claimant \vas free from contributory negligence and that there was iwgligence on part of State and that suc41 negligence \vas the proxiinate ciiiise of the accident. f IIcHwAYs-truffic signuls not muintuined-no negligence by Stote-cluim denied. Claim for injuries arising from traffic accident allegedly carisecl by [*630] Statr’s failrirc to maintain traffic signals cl,enied as there \viis no eviclence of ;iny nc~gligenceon part of State, no evidence that tlriver of aiitoniohilc corild not see stop sign that l i d been installed to replace inoperative traffic lights, ; i d no rviclence iis to whether State had notice of fact that raplacernent stop sign \viis not properly installed.

ORDER ON MOTION T O STRIKE COMPLAINT H OLDERMAN, J. This matter comes before the Court on a motion by Respondent to strike the complaint and objection to motion filed by Claimant.

Objection to motion is hereby overruled and motion to strike is granted and Claimant is hereby given sixty (60) days in which to file a new complaint.

ORDER ON MOTION TO DISMISS

HOLDERMAN, J. This matter comes before the Court upon motion to dismiss filed by Respondent.

Respondent’s motion sets forth that the Ford pickup truck which sustained the damages complained of was owned by Claimant’s son, James Tarkowski, and that on August 2, 1979, at a Court of Claims hearing, Claimant admitted that his son, James Tarkowski, signed the first amended complaint.

Respondent’s motion states that Claimant indicated, in a July 19, 1979, statement, that he was not in the truck at the time of the occurrence and, therefore, did not have any interest in said cause. Respondent further states that it assumed that because the complaint was signed “J. Tarkowski, Claimant Pro Se” it referred to Claimant, John Tarkowski, rather than his son.

Respondent’s motion is based on the grounds that Claimant did not have any interest in the subject matter of this lawsuit.

[*631] It is hereby ordered: That Respondent’s motion to dismiss be, and the same is, granted and this cause is dismissed.

OPINION

HOLDERMAN, J. On April 25, 1976, James Tarkowski was involved in an automobile accident on State Highway Route 14 at Rowhling Road. The traffic lights were inoperative and there was light snow on the ground and it was windy.

Temporary stop signs had been placed on the poles of the traffic signals at the time of the accident in question.

It is Claimant’s contention that Respondent failed to maintain the traffic signals at the scene of the accident. It is Claimant’s further contention that the stop sign was mounted on a pole by a single strap which allowed the sign to vibrate back and forth in the gusty wind and was very difficult to see because of its small size. The accident in question took place at 4:13 p.m.

This complaint was originally filed under the name of J. Tarkowski and was dismissed on Respondent’s motion on the grounds that, at the hearing before a commissioner on August 2, 1979, John Tarkowski testified that the property damage was actually sustained by his son, James Tarkowski, who signed the complaint, and that John Tarkowski had no interest in the subject matter and could not represent his son, James Tarkowski. On December 28, 1979, this Court vacated the order dismissing this claim and granted Claimant leave to secure an attorney. Claimant was still listed in the caption of the case as “J. Tarkowski.” On May 27, 1980, the commissioner entered an order requiring the full name of Claimant to be indicated on the caption of the cause and on other documents to be filed, and thereafter, in com[*632]pliance with this order, James Tarkowski has appeared as Claimant on all documents filed by Claimant.

On March 19, 1981, a hearing was conducted at which time John Tarkowski stated that this claim had been assigned by James Tarkowski to John Tarkowski “for collection” on October 2, 1979. At this time the commissioner noted that the claim had been filed on behalf of James Tarkowski and all documents filed had indicated the Claimant as James Tarkowski and that the claim might be denied on the grounds that John Tarkowski was not the Claimant of record. Thereupon, John Tarkowski renounced his ownership of the claim and orally moved the Court to amend the complaint to change the name of Claimant to John Tarkowski.

After the hearing and prior to a ruling on the motion to amend, Claimant filed, on April 6, 1981, a document signed by John Tarkowski “voluntarily returning” the claim to James Tarkowski. It was the opinion of the commissioner at the time of the hearing on March 19, 1981, that John Tarkowski was not the Claimant listed and therefore this claim might be dismissed as having been brought by the wrong party. The assignment of this claim was evidently done to excuse the necessity of a court appearance by James Tarkowski.

James Tarkowski, the owner of the truck involved in the accident and the driver of said truck, was not called to testify at the hearing. The evidence shows that an automobile collided with a Ford truck at the intersection and that a short time later a Ford truck was found by John Tarkowski having damage similar to the damage sustained by the truck involved in the accident.

There was no evidence of any negligence on the part of Respondent and there was no evidence submitted showing that the driver of the truck or the automobile [*633] could not see the stop sign. There was even a lack of evidence as to who was the driver of each vehicle. There was no evidence as to actual constructive notice of the defects in the traffic signal.

This Court has repeatedly held that before there can be a recovery, it must be shown that Claimant was free from contributory negligence and that there was negligence on the part of the Respondent and that such negligence was the proximate cause of the accident complained of. See National Bank of Bloomington v . State (1980), 34 1ll.Ct.CI. 23.

Claimant having failed in every respect to meet the requirements as above set forth, this cause is hereby dismissed.

ORDER ON MOTION T O VACATE DISMISSAL HOLDERMAN, J. This matter comes before the Court as a result of a communication from J. Tarkowski in the form of a letter in which he requests that the previous order of dismissal be vacated. The letter also states that due process requires a hearing on the facts.

The Court once again has reviewed the transcript and the file. The file discloses a hearing was held before a commissioner on March 19, 1981.

This cause arose as a result of an automobile accident on a State highway. At the hearing, the driver of Claimant’s car did not testify as to the facts surrounding the accident in question. The Court dismissed this case on the grounds that Claimant had not met the burden of proof required in accident cases such as this. This Court has consistently held that in cases such as the one at bar, Claimant must show the State was guilty of negligence, that such negligence was the proximate cause of the [*634] injury, and Claimant was free from contributory negligence. See National Bank of Bloomington v . State (1980), 34 I1l.Ct.Cl. 23.

It is the Court’s opinion that Claimant failed in his I)rirtl(w of proof; therefore, Claimant’s motion to vacate the order of dismissal is denied and the original order of tlisinissd is reaffirmed and this cause is dismissed.

( No . 77-CC-0908-Clainiant awiirded $12,000.00.)

M ARDEL CARLSON, Claimant, v. THE STATE OF ILLINOIS, Respondent.

OJJiniOll filed MCiy 31, 1983.

PHILLIP F. MAHER,for Claimant.

NEIL F. HARTIGAN, Attorney General (WILLIAM R. WALLIN,Assistant Attorney -General, of counsel), for Respondent.

STiPULATIoNs-court is not bound by stipubtionb. The Court of Claims has the duty and prerogative to adjudicate for itself issues of negligence, proximate cause and damages and in doing so is not bound by stipulations of the I);Lrtics, hut, at the same time, the Court is not mandated to reject stipulations, iior is it tlrsirous of creating controversy where none exists.

HOSPITALS AND INSTITUTIONS-dleUth Of heulth center pUtient-StipUkUtiOnclaim ullowed. Based on the fair and reasonable stipulation of the parties, an award was granted to the executrix of deceased based on wrongful death while deceased was patient in health center suffering from grand-mal seizures, and set-off was made for treatment rendered by State to decedent.

POCH,J. The Claimant, Mardel Carlson, as executrix of the estate of her daughter, Patsy Joyce Gunn, seeks a recovery based upon the wrongful death of her daughter [*635] against the State which treated her at both the Tinley Park Mental Health Center, a unit of the Department of Mental Health and Developmental Disabilities, and the Illinois Research Hospital, a part of the University of Illinois.

The Claimant and Respondent have entered into a joint stipulation settling this claim. This stipulation indicates that on September 9, 1975, Claimant’s decedent was readmitted as a patient at the Tinley Park Mental Health Center. On October 7, 1975, decedent started having grand-mal seizures and on the same day was transferred to the Illinois Research Hospital, where she died on October 11, 1975. The decedent’s death resulted from a 40-hour period of seizure activity.

Claimant also filed a suit in the circuit court of Cook County, No. 75 L 24002, against other institutions and individuals who had provided treatment to the decedent.

This claim was settled for $22,000. The State has filed a lien against the estate of the decedent in the amount of $10,000 for treatment rendered to the decedent.

The parties have further agreed that no further evidence will be introduced, and that the rights to a hearing and to file briefs have been waived.

Lastly, Claimant in consideration of the payment of the above stated amount, waives, releases and relinquishes any and all claims whatsoever, which are the subject of the instant complaint against the State of Illinois, and any department or agency or any individual acting as an employee or agent of the State of Illinois or any of its departments or agencies.

It is the prerogative and duty of the Court to adjudicate for itself the issues of negligence, proximate cause and damages, and in so doing, it is not bound by facts agreed upon by , the parties to the action. At the same [*636] time, the Court is not mandated to reject stipulations and agreed amounts of damages; nor is the Court desirous of creating a controversy where none appears to exist. (Kowaczek v. State (1979), 33 Ill.Ct.Cl. 70, 72.) Where the parties agree to compromise a claim, this Court should not and will not arbitrarily set aside an agreement absent an indication of possible fraud or duress on the part of one of the parties. (A G T Movers 0. State (1980), 33 111.Ct.Cl. 77, 79.) There is no such indication present here.

The Court has reviewed the facts set forth in the joint stipulation. It appears that the stipulation is accurate, and that it has been entered into legitimately. The Court is also of the opinion that an award of $22,000 less a set-off of $10,000 is a fair and reasonable amount for the settlement of this claim.

It is hereby ordered that the sum of $22,000 be awarded claimant, less a set-off of $10,000 resulting in a net award of $12,000.00 (twelve thousand dollars and no cents).