Tag: amended complaint

Implied-In-Fact Contract Claims and Motions to Reconsider – Illinois Law

In 1801 W. Irving, LLC v. Splitt Architects, Ltd., 2013 IL App (1st) 121357-U (September 12, 2013) a plaintiff developer sued an architect for breach of an oral contract and for implied indemnity in connection with the construction of a condominium building. 

The trial court struck all counts of the developer’s amended complaint and the developer appealed.

Held: Affirmed in part; reversed in part. 

Reasoning:

Breach of Oral Contract Claim

The court found the claimed oral contract was too indefinite to be enforced.  

Illinois requires that a contract’s material terms be sufficiently definite and certain so that the court can determine what the parties agreed to. ¶¶ 30-31.  

While certain nonessential terms can be missing, the parties’ failure to agree upon an essential term signals that mutual assent is lacking.

The court found several key terms were missing from oral contract including basic compensation terms.  For support, the court cited the developer’s deposition admission that the contract terms were in constant flux. ¶ 31.

Motion to Reconsider

The Court sustained the trial court’s denial of the developer’s motion to reconsider summary judgment for the architect.  A motion to reconsider’s purpose is to bring to the court’s attention (1) newly discovered evidence, (2) changes in the law, or (3) errors in the court’s prior application of law.  ¶ 33;

“Newly discovered evidence” means evidence that was not in existence at the hearing which generated the order being attacked.

Since the developer supported its motion to reconsider with its agent’s affidavit – an affidavit that wasn’t filed with its summary judgment response – the developer  didn’t meet the newly discovered evidence test and the Court correctly refused to consider the affidavit.  ¶¶ 28, 33-34.

Implied-in-fact contract

The Court did find there was an implied-in-fact contract between the developer and architect.

An implied-in-fact contract, unlike an express contract, results from the parties’ acts and conduct. 

A contract implied-in-fact is one where a contractual obligation is imposed by the court due to some “expression or promise that can be inferred from the facts and circumstances.”   ¶ 40

The Court found the developer adequately pled an implied-in-fact contract.  The allegations that the architect and developer worked together on the project for several years without incident reflected a tacit services-for-compensation arrangement. ¶ 22.

Take-aways: A valid breach of contract claim requires that material terms be sufficiently definite and that there is a meeting of the minds on them;

A motion to reconsider based on newly discovered evidence means that the evidence didn’t exist at the time the challenged order entered;

An implied-in fact contract can present a fallback theory to breach of an express contract (if no formal contract exists) where the parties’ conduct indicates a mutual relationship with reciprocal performance and compensation.

Misnomer vs. Mistaken Identity – More Than Semantic Hairsplitting?

The misnomer and mistaken identity doctrines apply where a plaintiff sues a defendant too late.

Misnomer occurs when the plaintiff has the wrong name of the right party (ex: I intend to sue Donald Trump but instead name “Ronald Trump” as Defendant). 

Mistaken identity is involved where the plaintiff has named the wrong party. (I sue and serve Marla Maples but later realize I should have served Mr. Trump all along.)

Misnomer is basically a spelling error and the proper party defendant’s name can be corrected at any time, even after judgment.  735 ILCS 5/2-401(b).  

With mistaken identity, Code Section 2-616(d) controls. 

Determining whether misnomer or mistaken identity applies turns on the intent of the plaintiff as established by his objective manifestations of that intent including who the plaintiff actually named in the original complaint.  Maggi v. RAS Development, Inc., 2011 IL App (1st) 091955, ¶ 23. 

In Maggi, a construction negligence case, the First District affirmed the trial court’s ruling that an amended complaint that named the right general contractor (but not until after the statute of limitations ran) – related back to the original complaint’s filing date. 

Maggi followed the US Supreme Court in Krupski v. Costa Crociere, 130 S. Ct. 2485 (2010) and held that the contractor should have known that it was the intended target of plaintiff’s suit; noting the relation-back test is what the defendant to be added knew; not what the adding plaintiff knew.

Code Section 2-616(d)’a three mistaken identity elements are:

(1) whether the original complaint was timely filed;

(2) the defendant to be added – within the time that an action might have been brought against him plus the time for service under Supreme Court Rule 103(b) – received notice of the commencement of the action such that (a) he will not be prejudiced in defending the case and (b) knew or should have known that but for mistaken identity, the action would have been brought against him; and

(3) the original and amended pleadings grew out of the same transaction.  Maggi, ¶ 35.

In finding the amended complaint against the general contractor related back to the original complaint, the Maggi Court analyzed factor (2) above and focused on whether the proper defendant knew or should have known that it would have been named a defendant but for plaintiff’s error and did not focus on what the plaintiff knew (or should have known) .  (¶ 37). 

The Court pointed to evidence that the general contractor defendant knew it was the intended target of plaintiff’s suit.  The plaintiff engaged in extensive discovery to determine the correct identities of the defendants and the general contractor didn’t produce the prime contract (which specifically confirmed the general contractor’s identity) until after the four-year construction repose period lapsed despite repeated requests from the plaintiff. (¶¶ 5, 38). 

Finally, Maggi emphasized that under the Supreme Court Krupski decision, the plaintiff’s speed in moving to amend a complaint (once it has proper defendant info in its possession) is not a factor to consider under Section 2-616(d).  ¶ 39. 

The take-away:

It’s clear that when determining whether a time-barred complaint relates back, the focus is on what the defendant knew or should have known, not on plaintiff’s knowledge, diligence or speed with which he tries to amend a pleading. 

Clearly, the courts are giving primacy to the policies of deciding cases on the merits over a defendant’s competing interest in repose and finality.  

My guess is that cases that follow Maggi and  Krupski will result in more denials of Section 2-619 motions to dismiss based on untimeliness grounds.