No. 3--04--0088
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2005
| G.M. FEDORCHAK AND ASSOCIATES, INC., Plaintiff-Appellant, v. CHICAGO TITLE LAND TRUST Defendants-Appellees. | ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) | Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, No. 00--CH--1159 Honorable Herman S. Haase, Judge, Presiding. |
JUSTICE SCHMIDT delivered the opinion of the court:
The plaintiff, G.M. Fedorchak & Associates, Inc.(Fedorchak), contracted with defendant Ground Zero EntertainmentComplex, Inc. (Ground Zero), to provide architectural designs fora development project. Ground Zero leased the real estate forthe project from defendant Chicago Title Land Trust Company(Chicago Title). When Ground Zero failed to pay its bills forthe architectural services, Fedorchak filed a mechanic's lienagainst Ground Zero and Chicago Title. Fedorchak later filed aseven-count complaint against Ground Zero, Chicago Title, andother defendants. In count II of the complaint, Fedorchak soughtto foreclose the mechanic's lien. The trial court granted GroundZero's motion under section 2--619 of the Code of Civil Procedureto dismiss counts II and III with prejudice. 735 ILCS 5/2--619(West 2002). Later, the trial court granted Fedorchak's motionto voluntarily dismiss the remaining five counts of thecomplaint. On appeal, Fedorchak argues that the trial courterred in dismissing count II. We affirm.
BACKGROUND
Fedorchak is an architectural firm located in Indiana. Ground Zero is an Illinois corporation. During the proceedingsin the Illinois trial court, Ground Zero filed for bankruptcy. The record supplied to this court consists of the common lawrecord from the Illinois trial court and documents from GroundZero's federal bankruptcy proceedings.
On February 23, 2000, Ground Zero and Fedorchak contractedfor Fedorchak to provide architectural services concerning theconstruction of a night club, theater, restaurant, and sports baron real estate in Mokena. According to Fedorchak, Ground Zerorepresented that it owned the real estate. Fedorchak and GroundZero later entered into a second contract for Fedorchak to supplyconstruction management services for the project.
Fedorchak subsequently learned that Ground Zero did not ownthe property, but rather, that defendant Chicago Title held theproperty in trust. Ground Zero leased the property from ChicagoTitle.
After Ground Zero failed to pay its bills to thearchitectural firm, Fedorchak filed a mechanic's lien againstGround Zero and Chicago Title on August 28, 2000. Fedorchaksought reimbursement for its architectural services. Fedorchakfiled another mechanic's lien against the same defendants forreimbursement of its construction management services.
Fedorchak filed its seven-count complaint on September 18,2000. In count II, Fedorchak sought to foreclose the mechanic'slien for architectural services. This appeal only concerns countII.
Fedorchak's complaint was accompanied by invoices it hadsent to Ground Zero for its architectural services. The invoicesconcerned architectural work Fedorchak had done for Ground Zerofrom February 23 to August 7, 2000.
On October 23, 2000, Ground Zero filed a section 2--619(a)(2) motion to dismiss Fedorchak's complaint. In itsmotion, Ground Zero alleged that Fedorchak was not registered andits president, Gerald M. Fedorchak, Jr. (Gerald Jr.), was notlicensed to practice architecture in Illinois at the time theparties entered into the contracts. Ground Zero contended thatunder Kaplan v. Tabb Associates, Inc., 276 Ill. App. 3d 320, 657N.E.2d 1065 (1995), both contracts were void. Ground Zeroreasoned that under Kaplan and section 2--619(a)(2), Fedorchaklacked the legal capacity to sue Ground Zero on any of the sevencounts of the complaint.
Fedorchak filed its response to Ground Zero's motion onNovember 15, 2000. In the response, Fedorchak admitted that thearchitectural firm still was not registered to practicearchitecture in Illinois.
Fedorchak attached Gerald Jr.'s affidavit to its response. In his affidavit, Gerald Jr. stated that he and his father,Gerald M. Fedorchak, Sr. (Gerald Sr.), are the two principals ofthe architectural firm. Gerald Jr. submitted that at the timethe contracts were formed, Gerald Sr. was licensed to practicearchitecture in Illinois. Gerald Jr. said that he applied forhis Illinois architecture license on March 23, 2000, andsubsequently received it. In his affidavit, Gerald Jr. stated,"The drawings prepared for the Ground Zero project were preparedby myself and my father, and bear my father's name and seal." Inits response, Fedorchak argued that the holding of Kaplan wasinapplicable to count II of its complaint.
Ground Zero filed a reply to Fedorchak's response onNovember 22, 2000. In its reply, Ground Zero contended thatalthough Gerald Sr. was licensed in Illinois, his license wasinactive at the time of the contract's formation. Ground Zeroattached a page from the Illinois Department of ProfessionalRegulation website. The page was not dated, but the text of thepage contained the statement, "page format modified 09/28/00." The page showed Gerald Sr.'s license status as "Inactive," butdid not indicate when the license had become inactive. Accordingto this document, Gerald Sr.'s license had been issued on"03/15/1965." Gerald Jr.'s license was issued on "05/31/2000."
On December 8, 2000, the trial court partially grantedGround Zero's section 2--619 motion by dismissing counts II andIII with prejudice. The court's order stated that the dismissalwas "in accordance with the holding in Kaplan." On February 6,2001, the court denied Fedorchak's motion to reconsider thedismissal of count II.
On June 21, 2001, Ground Zero filed for bankruptcy infederal court. By statute (11 U.S.C.