M&J Underground, Inc v. Village of Bourbonnais , 2022 IL App (3d) 210349-U ( 2022 )

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 210349-UOrder filed October 19, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
M&J UNDERGROUND, INC. ) Appeal from the Circuit Court
) of the 21st Judicial Circuit,
Plaintiff-Appellant, ) Kankakee County, Illinois.
)
v. ) Appeal No. 3-21-0349
) Circuit No. 19-L-157
VILLAGE OF BOURBONNAIS, )
) Honorable Adrienne W. Albrecht,
Defendant-Appellee, ) Judge, Presiding.
__________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court.
Justices Hauptman and Peterson concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The circuit court’s order granting defendant’s motion to dismiss plaintiff’s second
amended complaint with prejudice is reversed. The matter is remanded to the
circuit court for further proceedings.
¶2 Plaintiff, M&J Underground, Inc., executed a construction contract with defendant,
Village of Bourbonnais (the “Village”), after successfully bidding on the Village’s public
improvement project. Performance of the contract imposed additional unanticipated costs on
M&J for managing preexisting but unknown soil and water conditions on the project site. After
multiple delays and monetary disputes, M&J informed the Village that it was suspending work
on the project. The Village terminated the contract and hired a new contractor. M&J brought suit
in the circuit court for breach of contract. After allowing two amendments, the court dismissed
M&J’s second amended complaint with prejudice. M&J now appeals, specifically challenging
the dismissal of two counts in the second amended complaint.
¶3 FACTS
¶4 On June 8, 2018, M&J entered into a written contract with the Village to provide
underground utility construction services in connection with an improvement project. M&J was
chosen as the project contractor after submitting a bid proposal and contract offer, which the
Village accepted. During the bidding process, there was no easement that allowed either the
Village or M&J on the designated project site. Instead, Tyson Engineering, Inc., prepared soil
boring specifications for the Village. The boring results were not reflective of the actual soil
conditions because they had been taken at elevations significantly higher than the surface of the
project site and did not show any water conditions for the site specified.
¶5 Under the contract, M&J would furnish labor, equipment and materials for its
construction and installation of a lift station, sanitary sewer along US Route 45/52 (the
“highway”). The work was to be completed by May 15, 2019. The contract also expressly
imposed certain requirements and restrictions on M&J in relation to its performance of the work:
(1) M&J had sole responsibility for knowledge of the ground conditions on the project site,
including doing soil borings if necessary; (2) M&J could not rely on any soil borings provided by
the Village as a convenience, nor could the need to obtain easements be used to excuse delays;
(3) M&J had full control over the means and methods of performing the job; and (4) any extra
work that was not approved in advance by a written change order would not be compensated.
The completed work to be performed was valued at $1.8 million.
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¶6 After M&J’s bid and proposal were accepted, the contract was prepared by the Village
and executed by the parties, M&J immediately began encountering multiple impediments to its
performance. At the outset, work on the project was delayed for six months because the Village
had not secured an easement critical to its performance. The Village eventually secured
authorization for M&J to begin performance, and the work started on January 9, 2019. Soon
after, performance was halted again after M&J discovered an unforeseen subsurface water
condition. This condition required an engineering review of the soil and hydraulic conditions, the
securing of an excavation permit from the Illinois Department of Transportation (“IDOT”), and
the performance of soil boring tests. These unanticipated activities imposed additional costs on
M&J and further delayed performance on the project.
¶7 The project continued to be plagued by problems and the delays persisted. During the
delays, M&J continued to provide the labor, equipment, supplies and materials necessary to
perform the work as required by the contract. It also continued discussions with representatives
of the Village who repeatedly told M&J that its change orders were being processed and led
M&J to believe that the Village would pay for the additional costs and expenses related to the
water conditions. On March 4, 2019, the Village finally signed Change Order No. 1, approving
payment to M&J of $94,100 for these costs accrued in January and February 2019 due to the
water condition.
¶8 Assured that its costs would be covered, M&J continued performing under the contract.
A portion of the work required it to bore under the highway. The contract provided that boring
would be performed by a method known as “augered [sic] jack and bore,” which required
installing horizontal casing platforms under the highway and simultaneously excavating the soil
with rotating cutting head. Because of the water conditions, M&J believed that this method
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would result in a collapse of and damage to the highway. It retained a soil engineer to review the
conditions and advise it on how to proceed. The engineer determined that the project could not
be performed using the method prescribed in the contract. M&J advised the Village and
contacted IDOT, which stated that the permit issued to the Village only allowed excavation by
the augered jack and bore method. IDOT explained that it was not aware of the water conditions
when it issued the permit and advised M&J that no dewatering would be allowed under the
highway. M&J advised the Village of this decision. The Village explained that the choice of
means and methods of completing the project was up to M&J, which would be responsible for
any additional cost for completing the project.
¶9 On September 30, 2019, the Village informed M&J that going forward, M&J would be
solely responsible for any additional costs in connection with performing its contractual
obligations. M&J ultimately ceased performance on the project and the Village advised M&J on
October 30, 2019, that it would be retaining a replacement contractor. M&J filed its initial
complaint, alleging breach of contract. The Village filed a motion to dismiss the initial complaint
and M&J twice amended the complaint. M&J’s second amended complaint is the one at issue in
this appeal. It alleged six counts including a breach of contract claim (count I) and a request for
accounting (count VI).
¶ 10 In count I, M&J alleged that the Village “breached the covenant of good faith and fair
dealing by making certain representations but then acting in a completely contrary manner.” It
contended that the Village’s representative told M&J that change orders were being processed
and advised M&J to proceed with performance. M&J also contended that the Village failed to
provide it with accurate information regarding soil conditions and boring requirements. M&J
argued that inaccurate boring information resulted in the delays. In count I, M&J claimed that
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because of the Village’s behavior, M&J incurred (1) labor and equipment costs of $583,354; (2)
delay costs of $209,658.80; and (3) costs for additional time and lost production of $34,000.
¶ 11 In count VI, M&J requested that the circuit court grant it an accounting of certain
accounts. Specifically, M&J listed accounts for three different entities: (a) those of M&J to prove
the purchase and delivery of materials to the construction site; (b) those of the Village; and (c)
those of the replacement contractor hired by the Village. M&J contended that an accounting is
necessary because the “accounts [are] of a complex nature.” M&J alleged that certain equipment
and materials were delivered to the worksite and M&J received no payment for them. M&J
argued that an accounting is necessary to determine what happened to the delivered materials.
¶ 12 The Village filed a motion to dismiss the second amended complaint. It argued that M&J
failed to establish a breach of contract and that M&J could not maintain an equitable claim of
accounting in a case raising a legal claim. The circuit court granted the motion and dismissed the
second amended complaint with prejudice. M&J now appeals the circuit court’s dismissal.
¶ 13 ANALYSIS
¶ 14 A motion to dismiss pursuant to section 2-615 attacks the sufficiency of the complaint
and raises the question of whether the complaint states a claim upon which relief can be granted.
Tielke v. Auto Owners Insurance Co., 2019 IL App (1st) 181756, ¶ 22. The resolution of the
motion involves only a question of law, and therefore this court’s review is de novo. Id. This
court will affirm the dismissal based on the pleadings only if we find “ ‘no set of facts can be
proven which would entitle the plaintiff to the relief sought.’ ” Vogt v. Round Robin Enterprises,
Inc., 2020 IL App (4th) 190294, ¶ 14 (quoting Cwikla v. Sheir, 345 Ill. App. 3d 23, 29 (2003)).
On appeal, M&J challenges the dismissal of count I and count VI of the second amended
complaint, arguing that it alleged sufficient facts stating a cause of action for breach of contract
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and for an accounting. For the reasons that follow, we reverse the dismissal order and remand the
matter for further proceedings.
¶ 15 A. M&J’s Breach of Contract Claim
¶ 16 To prevail on a breach of contract claim, M&J must plead and prove that: (1) a contract
exists; (2) it performed its obligations under the contract; (3) the Village breached the contract;
and (4) it sustained damages as a result of that breach. International Supply Co. v. Campbell, 391
Ill. App. 3d 439, 450 (2009). The parties agree that a contract existed. However, they disagree on
whether M&J performed its contractual obligations. M&J argues that it substantially performed
its obligations until unanticipated water conditions required additional costs and rendered
performance impracticable. In Illinois, “ ‘[s]ubstantial performance of a contract means
performance in all the essential elements necessary to the accomplishment of the purpose of the
contract.’ ” W.E. Erickson Construction v. Congress-Kenilworth Corp., 115 Ill. 2d 119, 126
(1986) (quoting People ex rel. Peterson v. Omen, 290 Ill. 59, 65 (1919)). The question of
whether a party has substantially performed under the contract is a question of fact. Evans &
Associates, Inc. v. Dyer, 246 Ill. App. 3d 231, 240 (1993).
¶ 17 The contract required M&J to furnish labor, equipment and materials for the construction
and installation of a sanitation sewer station. Relevant to the issue of substantial performance, the
contract stated that M&J had full control over the means and methods of performing the work
necessary for completing the project. Immediately after performance began, M&J determined
that water conditions under the highway required M&J to perform a portion of the work by
boring under the highway. Performance was, however, halted because the contract required that
boring would be performed by the “augered jack and bore,” which would result in a collapse of
and damage to the highway.
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¶ 18 Performance had begun offsite and continued until M&J was denied access to the project
site because the Village failed to secure a critical easement. Once the easement was secured,
performance resumed and was not halted again until the water conditions imposed further
engineering difficulties and associated costs. M&J advised the Village of the circumstances and
kept it informed of the developments. M&J also sought the Village’s advice in determining how
to proceed. Throughout their discussions, the Village repeatedly led M&J to believe that the
Village would pay for the additional costs and expenses related to the water conditions.
¶ 19 The Village contends that it did not breach its obligations because M&J had full control
over the means and methods of performing the job. However, M&J never had full control over
the methods required for complete performance. The contract—and the Village’s independent
agreement with IDOT—prescribed the “augered jack and bore” method for completing the
installation. In addition, the Village contends that M&J had sole responsibility for knowing the
site’s soil conditions and could not rely on information provided to it as a convenience. M&J
argues it did not have access to the project site until after a critical easement was obtained, and it
had no option but to rely on the specifications from the Village’s engineering consultants. When
the soil conditions made the prescribed method dangerous, IDOT informed M&J that the Village
was limited to this single, impracticable boring method. The company notes that IDOT also
prohibited M&J from dewatering the soil along the highway.
¶ 20 In light of these material factual disputes, we cannot say that there is no set of facts that
could state a claim for breach of contract which, if proven, would entitle M&J to relief. We,
therefore, conclude that the circuit court erred in dismissing count I of the second amended
complaint with prejudice.
¶ 21 B. M&J’s Accounting Claim
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¶ 22 We now turn to M&J’s cause of action for accounting of the Village’s accounts and
documents. To state a cause of action for an accounting, “ ‘the complaint must establish that
there is no adequate remedy at law and one of the following: (1) a breach of a fiduciary
relationship between the parties; (2) a need for discovery; (3) fraud; or (4) the existence of
mutual accounts which are of a complex nature.’ ” Tufo v. Tufo, 2021 IL App (1st) 192521, ¶ 93
(quoting Landers v. Fronczek, 177 Ill. App. 3d 240, 245 (1988)). M&J contends that accounting
is required because there is a need for discovery. The Village responds that discovery is not
necessary because M&J alone knows what was delivered and what it has not been paid for. In
short, the Village argues that only the plaintiff’s accounts need to be examined to determine the
existence of unpaid receivables.
¶ 23 In its second amended complaint, M&J alleged that it ordered and paid for certain
equipment and materials, which were delivered to the worksite and for which M&J received no
payment from the Village. M&J does not know whether the Village has incorporated those
materials into the improvements relating to the project or whether replacement materials were
purchased and substituted. Regardless, M&J alleged that the materials and supplies that were
delivered to the project site have never been paid for by the Village. In order to assess and
support the validity of any claim for payment, M&J needs to know what the Village has done
with those materials. In light of these material allegations, we cannot say that there is no set of
facts that could state a claim for accounting which, if proven, would entitle M&J to the relief it
seeks. We, therefore, conclude that the circuit court erred in dismissing count VI of the second
amended complaint with prejudice.
¶ 24 CONCLUSION
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¶ 25 The judgment of the circuit court of Kankakee County is reversed and the matter is
remanded for further proceedings.
¶ 26 Reversed and remanded.
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