The opinion
ILLINOIS OFFICIAL REPORTS
Appellate Court
Joseph Construction Co. v. Board of Trustees of Governors State University,
2012 IL App (3d) 110379
Appellate Court JOSEPH CONSTRUCTION COMPANY, Plaintiff-Appellant, v. THE
Caption BOARD OF TRUSTEES OF GOVERNORS STATE UNIVERSITY and
TRACY M. SULLIVAN, Defendants-Appellees.
District & No. Third District
Docket No. 3-11-0379
Rule 23 Order filed June 19, 2012
Motion to publish
allowed July 20, 2012
Opinion filed July 20, 2012
Held Plaintiff construction company’s action against defendant state university
(Note: This syllabus to recover the balance due on a contract for renovation work at the
constitutes no part of university was based on a breach of the contract, regardless of plaintiff’s
the opinion of the court “artful pleading” which sought injunctive and declaratory relief, and
but has been prepared sovereign immunity applied because defendant was an arm of the State,
by the Reporter of the “prospective injunctive relief exception” to sovereign immunity did
Decisions for the not apply, and the action had to be litigated in the Court of Claims.
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Will County, No. 10-CH-3677; the
Review Hon. Barbara Petrungaro, Judge, presiding
Judgment Affirmed.
Counsel on John R. O’Brien (argued), of Chicago, for appellant.
Appeal
Lisa Madigan, Attorney General, of Chicago (Alexis A. Widlak and
Clifford W. Berlow (argued), Assistant Attorneys General, of counsel),
for appellees.
Panel PRESIDING JUSTICE SCHMIDT delivered the judgment of the court,
with opinion.
Justices Lytton and O’Brien concurred in the judgment and opinion.
OPINION
¶1 This dispute involves work performed by plaintiff, Joseph Construction Company, for
Governors State University. Plaintiff filed this action against defendants, the Board of
Trustees of Governors State University (Governors State or GSU) and Tracy Sullivan,
seeking, inter alia, to recover the balance allegedly due under a construction contract.
Defendants brought a motion to dismiss plaintiff’s complaint pursuant to section 2-619 of
the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-619 (West 2010)). The trial
court granted defendants’ motion, leading plaintiff to file a motion to reconsider as well as
a motion to amend its complaint. The trial court denied both motions and this appeal
followed. Plaintiff claims the trial court erred in finding that plaintiff must prosecute its
claims in the Court of Claims. We affirm.
¶2 BACKGROUND
¶3 Our recitation of the substantive facts of this matter, as with any case dismissed pursuant
to section 2-619 of the Code, is almost entirely constrained to those facts contained within
the complaint. On June 17, 2010, plaintiff filed a complaint alleging it is in the general
construction business. Defendant Tracy Sullivan was an agent of Governors State whose
duties included executing agreements for construction work.
¶4 On November 1, 2007, plaintiff entered into a written contract with Governors State,
executed by Sullivan, for the performance of renovation work at GSU. In accordance with
the terms of the contract, GSU issued its purchase order to plaintiff, directing plaintiff to
proceed with work identified by the contract. Plaintiff alleges that on or about April of 2008,
it had substantially completed all work required by the contract to the value of $1,564,231.
The work included installation of a new wall and floor tile in the men’s and women’s shower
rooms adjacent to the GSU swimming pool.
¶5 Plaintiff alleged that the scope of the work did not include demolition, modification or
replacement of the existing subfloor, but merely the removal of the prior floor tile and the
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installation of new tile. Governors State informed plaintiff, after plaintiff completed its work,
that certain areas within the shower rooms were experiencing puddling or pooling of water.
Plaintiff claims to have performed requested remedial work, to the extent practicable, in a
good and workmanlike manner.
¶6 Pursuant to the contract, in April of 2009, a nine-month inspection was conducted in an
attempt to identify any items of warranty work that needed to be corrected. Following the
inspection, additional corrective work was requested by GSU to address small areas of
pooling water. Plaintiff agreed to perform, to the extent feasible, the corrective work.
¶7 On September 14, 2009, plaintiff submitted its request for final payment of the balance
due under the contract. Defendant responded by sending a letter from Sullivan dated
September 22, 2009, expressing an intent to withhold $49,000 from the final payment,
purportedly to correct defective installation of the floor tile.
¶8 Plaintiff alleges that Sullivan’s actions were “outside the scope of her authority as a State
Official, as she is required, in her capacity as a procurement officer, to honor the terms of the
parties’ agreement, and not capriciously and arbitrarily withhold funds owed.” The complaint
states that GSU and Sullivan have failed and refused to make any effort to resolve this
dispute and have ignored repeated requests to specify any additional corrective work which
may be feasible.
¶9 Plaintiff alleged that the act of withholding funds amounted to conversion and further
that it would be irreparably harmed if defendants were allowed to “continue to refuse
payment of money owed *** and/or convert it to some other use, including destruction of
[its] work.” Plaintiff claimed to have no adequate legal remedy to prevent such harm in that
it would be unable to prove its claim in any venue should defendants destroy or cause the
destruction of its work. Finally, plaintiff alleged that since GSU continued to enjoy the
benefit of its work, GSU and Sullivan would suffer no harm if the relief it requested was
granted, especially given the fact that plaintiff “already has a performance and payment bond
issued in connection with the construction contract” for the project.
¶ 10 Plaintiff requested that the trial court grant a preliminary and permanent injunction: (1)
preventing defendants from destroying or contracting with others to destroy the tile work it
installed; (2) ordering defendants to stop wrongfully withholding funds owed to it; and (3)
without requiring it to post any additional bond. Plaintiff’s complaint further sought a
declaration that it was not in violation of the contract with GSU and that GSU, in fact,
breached the contract. Finally, plaintiff included a breach of contract count in its complaint
in which it sought to recover $75,673 in damages plus prejudgment interest.
¶ 11 Plaintiff attached a copy of the construction contract to the complaint. The contract
contains a clause titled “Governing Law” that states “any claims brought against [GSU] must
be brought in the Illinois Court of Claims in accordance with the Illinois Court of Claims Act
(705 ILCS 505).”
¶ 12 Defendants filed a motion to dismiss pursuant to section 2-619 of the Code. 735 ILCS
5/2-619 (West 2010). In their motion, defendants state that plaintiff’s claims were barred by
sovereign immunity as “GSU is a statutorily-created university of the State of Illinois.” As
such, and given the nature of Sullivan’s employment at the university, defendants argued that
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the State Lawsuit Immunity Act (745 ILCS 5/1 (West 2010)) and the Court of Claims Act
(705 ILCS 505/8 (West 2010)) precluded any redress sought against defendants in the circuit
court of Will County. Defendants also noted that the contract itself indicates that all claims
brought thereunder must be initiated in the Illinois Court of Claims.
¶ 13 Plaintiff filed a response to defendants’ motion averring, inter alia, that the contractual
provision mandating claims be brought in the Illinois Court of Claims “has no bearing on this
action” and that neither the Court of Claims Act (705 ILCS 505/8 (West 2010)) nor the State
Lawsuit Immunity Act (745 ILCS 5/1 (West 2010)) barred prosecution of this matter in the
circuit court. Defendants replied and the matter proceeded to a hearing on December 3, 2010.
¶ 14 On January 10, 2011, the trial court issued a written order granting defendants’ motion
to dismiss. On January 26, 2011, plaintiff filed a motion for leave to file an amended
complaint, which included a copy of the proposed amended complaint. Rather than
immediately ruling on the motion for leave to amend, the trial court entered a scheduling
order. The scheduling order: (1) granted plaintiff “leave to file a separate motion to
reconsider by February 4, 2011”; (2) gave defendants until February 25, 2011, to file a
response to plaintiff’s motion; (3) gave plaintiff until March 18, 2011, to file a reply to
defendants’ response; and (4) set the matter for a hearing on April 1, 2011.
¶ 15 The hearing on both plaintiff’s motion for leave to amend its complaint and on its motion
to reconsider took place as scheduled. Thereafter, the trial court entered an order denying
plaintiff’s motion to reconsider on May 4, 2011. By separate order dated June 1, 2011, the
trial court denied plaintiff’s motion for leave to file an amended complaint. Plaintiff filed a
timely notice of appeal.
¶ 16 ANALYSIS
¶ 17 We review de novo the circuit court’s decision granting defendants’ motion to dismiss
under section 2-619 of the Code. Cortright v. Doyle, 386 Ill. App. 3d 895, 899 (2008). A
section 2-619 motion for involuntary dismissal asserts affirmative matters such as defenses
of preemption, sovereign immunity and absolute immunity which avoid or defeat a claim.
Id.; see also Wolfe v. Wolf, 375 Ill. App. 3d 702, 705 (2007). When reviewing a section 2-619
dismissal, we construe all pleadings and supporting documents in a light most favorable to
the plaintiff. Cortright, 386 Ill. App. 3d at 899.
¶ 18 While plaintiff breaks its claim into numerous subcategories, it basically makes three
claims of error. First, plaintiff claims the trial court erred in holding that the contractual
provision stated above is a valid and enforceable forum selection clause mandating that all
actions on the contract originate in the Court of Claims. Second, plaintiff argues that its
claims for injunctive and declaratory relief are not subject to the jurisdiction of the Court of
Claims or barred by principles of sovereign immunity. Somewhat bootstrapped to this
argument is plaintiff’s claim that the circuit court has jurisdiction over contract claims
against GSU. Finally, plaintiff argues that the trial court erred in denying its motion for leave
to amend his complaint.
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¶ 19 I. Forum Selection Clause
¶ 20 Plaintiff argues that the “parties’ contract does not confer jurisdiction of Joseph’s claims
for injunctive and declaratory relief upon the Court of Claims.” As such, plaintiff claims that
trial court erred in holding the contractual provision titled “Governing Law” was a valid and
enforceable forum selection clause. This provision states:
“GOVERNING LAW: Notwithstanding anything in the Contract or purchase order to the
contrary, this Contract shall be governed by the laws of the State of Illinois without
reference to conflict of laws principles. The parties acknowledged that GSU is a State
entity and as such any claims brought against it must be brought in the Illinois Court of
Claims in accordance with the Illinois Court of Claims Act (705 ILCS 505).”
¶ 21 Defendants argue the trial court was correct in holding the contract contains a valid and
enforceable forum selection clause. They do not directly respond to plaintiff’s assertion that
two private parties cannot confer jurisdiction on a court where the legislature has limited it.
Instead, defendants analyze the issue by citing to hornbook case law regarding the
enforceability of forum selections clauses: that being, that courts look to “(1) the law that
governs the formation and construction of the contract; (2) the residency of the parties; (3)
the place of execution and/or performance of the contract; (4) the location of the parties and
their witnesses; (5) the inconvenience to the parties of any particular location; and (6)
whether the clause was equally bargained for.” IFC Credit Corp. v. Rieker Shoe Corp., 378
Ill. App. 3d 77, 86 (2007). To be fair to the defendants, in other parts of their brief, they
argue that the Court of Claims’ authority to decide this matter is premised on the State
Lawsuit Immunity Act (745 ILCS 5/1 (West 2010)) as well as the Court of Claims Act (705
ILCS 505/8 (West 2010)).
¶ 22 While referring to the “Governing Law” clause reproduced above, the trial court
specifically held “the forum selection clause will be upheld” when disposing of plaintiff’s
count for breach of contract. Plaintiff specifically argues that, while “parties to a contract are
generally free to choose the forum in which disputes arising thereunder will be litigated,
courts have only that jurisdiction which is conferred upon them either by legislation, or by
the state constitution.” We agree.
¶ 23 Plaintiff and defendants could no more confer jurisdiction on the Illinois Court of Claims
via contract or agreement than they could confer jurisdiction on this court by agreeing to
litigate all matters here. “When a court’s power to act is controlled by statute, the court is
governed by the rules of limited jurisdiction and the court must proceed within the strictures
of the statute ***.” (Internal quotation marks omitted.) In re A.H., 195 Ill. 2d 408, 416 (2001)
(quoting In re M.M., 156 Ill. 2d 53, 66 (1993)).
¶ 24 We hold the trial court erred when finding the contract contained an enforceable “forum
selection clause.” This error, however, does not end our analysis as defendants sought
dismissal of plaintiff’s complaint on numerous other grounds. We still must analyze
defendants’ claims that principles of sovereign immunity and the Court of Claims Act bar
plaintiff’s action.
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¶ 25 II. Sovereign Immunity/Court of Claims Act
¶ 26 Sovereign immunity in Illinois exists pursuant to statute and mandates that the State or
any department of the State cannot be sued in the circuit court or any other court without the
State’s consent. Association of Mid-Continent Universities v. Board of Trustees of
Northeastern Illinois University, 308 Ill. App. 3d 950, 952 (1999). Our legislature enacted
the State Lawsuit Immunity Act (745 ILCS 5/1 (West 2010)), which provides that the State
shall not be made a defendant or party in any court except as provided in the Court of Claims
Act (705 ILCS 505/1 (West 2010)). Id.
¶ 27 The general rule that an agency of the State may not be a defendant in a circuit court
action, as State agencies are considered to be arms of the State itself, is not absolute.
Williams v. Davet, 345 Ill. App. 3d 595, 599 (2003). “[T]he determination that a claim is one
against the State does not depend upon the State agency being named as a party. [Citation.]
The determination depends instead on the issues involved and the relief sought.” (Internal
quotation marks omitted.) Rockford Memorial Hospital v. Department of Human Rights, 272
Ill. App. 3d 751, 756-57 (1995). “[I]n determining whether sovereign immunity applies to
a particular case, substance takes precedent over form.” Id. at 757.
¶ 28 Sovereign immunity exists only if the defendant is an arm of the State, the plaintiff’s
action constitutes a present claim that could subject the State to liability and no exception
exists. C.J. v. Department of Human Services, 331 Ill. App. 3d 871, 876-77 (2002). The
Court of Claims Act provides that the Court of Claims has exclusive jurisdiction to hear
certain matters, including “[a]ll claims against the State for damages in cases sounding in
tort, if a like cause of action would lie against a private person or corporation in a civil suit”
(705 ILCS 505/8(d) (West 2010)) as well as all “claims against the State founded upon any
contract entered into with the State of Illinois” (705 ILCS 505/8(b) (West 2010)).
¶ 29 The gravamen of plaintiff’s arguments regarding why neither principles of sovereign
immunity nor the Court of Claims Act bar this action is twofold. First, plaintiff suggests that
GSU is not the “State.” As such, neither principles of sovereign immunity, the Court of
Claims Act (705 ILCS 505/1 (West 2010)) nor the State Lawsuit Immunity Act (745 ILCS
5/1.5 (West 2010)) bars this action. Second, should we find that GSU is “the State,” plaintiff
submits that the circuit court is the proper venue to resolve the specific claims it has made
against GSU. Accordingly, we begin our analysis by determining whether GSU is, in fact,
the State for purposes of this lawsuit.
¶ 30 A. Is GSU the State?
¶ 31 In a word: yes.
¶ 32 Plaintiff acknowledges the significant body of law which holds, for the purposes of the
State Lawsuit Immunity Act and Court of Claims Act, that our public universities are “the
State.” See Ellis v. Board of Governors of State Colleges & Universities, 102 Ill. 2d 387
(1984); Management Ass’n of Illinois, Inc. v. Board of Regents of Northern Illinois
University, 248 Ill. App. 3d 599 (1993); Peters v. Board of Trustees of Southern Illinois
University, 351 Ill. App. 3d 1143 (2004); Association of Mid-Continent Universities v. Board
of Trustees of Northeastern Illinois University, 308 Ill. App. 3d 950 (1999); Williams v.
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Medical Center Comm’n, 60 Ill. 2d 389, 393-94 (1975); Hoffman v. Yack, 57 Ill. App. 3d 744
(1978). Nevertheless, plaintiff poses a number of theories why, for the purposes of this
action, GSU is not the State. The path taken by plaintiff to arrive at this conclusion passes
through a number of legislative enactments. Plaintiff’s argument is based, in part, on GSU’s
enabling statute and, in part, on language of the Court of Claims Act.
¶ 33 Plaintiff notes that our legislature reorganized certain public universities through Public
Act 89-4, effective January 1, 1996. That act effectively dissolved the Board of Governors
of State Colleges and Universities, which governed GSU and other state universities. The act
also created acts that are compiled in chapter 110 of the Illinois Compiled Statutes. These
acts are the current enabling statutes for numerous universities like GSU (110 ILCS 670/15-1
et seq. (West 2010)) and Northeastern Illinois University (110 ILCS 680/25-1 et seq. (West
2010)) to name just two.
¶ 34 Analyzing GSU’s enabling statute, plaintiff notes that section 15-40 of the Governors
State University Law allows GSU to “enter into contracts and to sue and be sued.” 110 ILCS
670/15-40 (West 2010). Moreover, section 15-10 of the Governors State University Law
“created a body politic and corporate which shall be styled the Board of Trustees of
Governors State University.” 110 ILCS 670/15-10 (West 2010).
¶ 35 Plaintiff further notes that section 8(d) of the Court of Claims Act states that the Court
of Claims “shall have exclusive jurisdiction to hear *** (d) All claims against the State for
damages in cases sounding in tort *** and all like claims sounding in tort against *** the
Board of Trustees of Governors State University.” 705 ILCS 505/8(d) (West 2010).
However, section 8(b) of the Court of Claims Act merely confers jurisdiction to the Court
of Claims for all “claims against the State founded upon any contract entered into with the
State of Illinois.” 705 ILCS 505/8(b) (West 2010). Plaintiff draws specific attention to the
fact that section 8(b) refers only to the State of Illinois and does not identify GSU or any
individual arm of the State.
¶ 36 With those statutes as a backdrop, plaintiff asserts that once Public Act 89-4 became
effective, “GSU, along with all of the other state universities that had previously operated
under the auspices of the Board of Governors of State Universities, *** became financially
independent entities, bodies politic and corporate with the power to sue and be sued, except
that tort claims against each of them must be brought in the Court of Claims.” Plaintiff
questions why, if this language in GSU’s enabling statute fails to create an entity separate
from the State, did the legislature feel it necessary in section 8(d) of the Court of Claims Act
to confer exclusive jurisdiction for both “claims against the State” and “the Board of Trustees
of Governors State University” when tort suits are brought?
¶ 37 Ultimately, plaintiff submits that the language in GSU’s enabling statute, coupled with
the fact that the Court of Claims Act references both “the State” and GSU in section 8(d) but
only “the State” in section 8(b), leads to the inescapable conclusion that GSU is not “the
State” within the meaning of the Court of Claims Act prohibition against bringing breach of
contract claims in the circuit courts. We disagree and find that GSU is an arm of the State
of Illinois.
¶ 38 Plaintiff’s arguments are a new version of one previously rejected, albeit before Public
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Act 89-4 became effective. In Raymond v. Goetz, the plaintiff filed a breach of contract
action. Raymond v. Goetz, 262 Ill. App. 3d 597 (1994). The University of Illinois filed a
motion to dismiss alleging the circuit court lacked subject-matter jurisdiction to hear any
contract claim against the University. Id. at 598. The Raymond court summarized the
plaintiff’s claims as follows:
“Raymond first contends one need only look to the enabling legislation to determine
whether an action may be brought against the entity in the circuit court. Since the
University’s enabling legislation provides the University is empowered to contract and
to sue and be sued, provided that tort claims against the University be brought in the
Court of Claims [citation], Raymond contends that by implication contract claims against
the University need not be brought in the Court of Claims but may be brought in the
circuit court.” (Emphasis in original.) Raymond, 262 Ill. App. 3d at 600.
¶ 39 The enabling statute at issue in Raymond stated that the University of Illinois “shall be
a body corporate and politic [and] *** have power to contract and be contracted with, to sue
and be sued, provided that any suit against the Board based upon a claim sounding in tort
must be filed in the Court of Claims.” Ill. Rev. Stat. 1991, ch. 144, ¶ 22; Raymond, 262 Ill.
App. 3d at 600. Similarly, the language herein which plaintiff claims renders GSU as
something other than an arm of the State comes from its enabling statutes which state that
there “is hereby created a body politic and corporate which shall be styled the Board of
Trustees of Governors State University” (110 ILCS 670/15-10 (West 2010)) which “shall
have power to enter into contracts and to sue and be sued, provided that any suit against the
Board based upon a claim sounding in tort must be filed in the Court of Claims” (110 ILCS
670/15-40 (West 2010)).
¶ 40 The Raymond court noted that numerous courts, including our supreme court in Ellis v.
Board of Governors of State Colleges & Universities, 102 Ill. 2d 387 (1984), previously
rejected arguments suggesting “a distinction ought be made between tort and contract actions
filed against State colleges and universities based upon the language of their enabling statutes
and the Court of Claims Act.” Raymond, 262 Ill. App. 3d at 602. The Raymond court relied
heavily on our supreme court’s decision in Ellis. The Ellis court stated, “It is clear that since
we have decided that the Board is an arm of the State and must be sued in the Court of
Claims, whether the plaintiff’s cause of action sounds in tort, or in contract ***, the Court
of Claims has exclusive jurisdiction.” Ellis, 102 Ill. 2d at 394-95.
¶ 41 Ellis, Raymond and their progeny clearly hold that our state colleges and universities are
“the State” for purposes of sovereign immunity and must be sued in the Court of Claims
despite the fact that their enabling legislation says they have the power to contract, sue and
be sued. We acknowledge that Public Act 89-4 dissolved the Board of Governors of State
Universities and created a number of individual governing bodies and that those governing
bodies may have slightly different authority and autonomy than did the Board of Governors
of State Universities. Nevertheless, we find nothing in Public Act 89-4 which renders GSU
anything other than an arm of the State or that renders the holdings of Ellis or Raymond
inapplicable to GSU. Moreover, as stated by the Fifth District in Peters v. Board of Trustees
of Southern Illinois University, 351 Ill. App. 3d 1143 (2004), a post-Public Act 89-4 case,
“There are numerous decisions finding that a state university and its board of trustees are
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arms of the State.” Id. at 1146 (citing Williams, 60 Ill. 2d at 393-94); Ellis, 102 Ill. 2d at 393;
Hoffman v. Yack, 57 Ill. App. 3d 744 (1978).
¶ 42 B. Proper Venue for Claims Made Against GSU
¶ 43 Having found that GSU is an arm of the State, we must determine whether the specific
claims against GSU can be brought in the circuit court. We hold they cannot.
¶ 44 Plaintiff acknowledges, in its reply brief, that determining whether GSU is an arm of the
State would bring “us to the central issue in this case, *** whether the Illinois Court of
Claims has exclusive jurisdiction over a breach-of-contract claim against a state university.”
While the plaintiff qualifies that statement with the suffix “after the enactment of P.A. 89-4,”
as noted above, we find nothing in Public Act 89-4 that changes the applicability of
principles of sovereign immunity or its application to our state universities and colleges.
¶ 45 We hold the Court of Claims has exclusive jurisdiction over this breach of contract action
against GSU. Again, the Ellis court stated, “It is clear that since we have decided that the
Board is an arm of the State and must be sued in the Court of Claims, whether the plaintiff’s
cause of action sounds in tort, or in contract ***, the Court of Claims has exclusive
jurisdiction.” Ellis, 102 Ill. 2d at 394-95.
¶ 46 Plaintiff notes, however, that count I and count II of its complaint were not contract
claims but, instead, equitable claims seeking injunctive and declaratory relief. The trial court
found these claims did nothing more than restate a breach of contract claim. We agree.
¶ 47 Count I of plaintiff’s complaint claims plaintiff performed all work “in accordance with
contract specifications” and that plaintiff “submitted its request for final payment of the
balance due to it under the terms of the aforementioned Construction Contract, a true and
correct copy of which is attached hereto.” Plaintiff further alleged defendant Sullivan acted
“outside the scope of her authority” by failing “to honor the terms of the parties’ agreement”
and by “capriciously and arbitrarily withhold[ing] funds owed.” Therefore, plaintiff requested
the court enter an order, inter alia, prohibiting defendants from “withholding funds from
[plaintiff’s] final payment. Count II of the complaint, titled “Declaratory Judgment,” asked
the court to declare that plaintiff “has performed its contract with GSU as aforesaid, that
GSU is in breach thereof, and that [plaintiff] is entitled to the balance due under the terms
of the parties’ agreement.”
¶ 48 Courts have disfavored the use of “artful pleading” to “disguise plaintiff’s endeavors”
(Village of McCook v. Illinois Bell Telephone Co., 335 Ill. App. 3d 32, 39 (2002)) which are
“designed to cloak the cause in the attire of equity” (Sundance Homes, Inc. v. County of
Du Page, 195 Ill. 2d 257, 282 (2001)). Other courts have found that when “the gravamen of
the complaint is breach of contract,” a “prayer for injunctive relief” is “ ‘nothing more than
a thinly disguised breach of contract action.’ ” Northrop Corp. v. AIL Systems, Inc., 218 Ill.
App. 3d 951, 954-55 (1991); see also Franz v. Calaco Development Corp., 322 Ill. App. 3d
941 (2001).
¶ 49 Similarly, we find as did the trial court that the plaintiff’s counts seeking injunctive and
declaratory relief do nothing more than restate its breach of contract claim. The prayer in the
first count asks for the court to prohibit defendant from “wrongfully withholding funds from”
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plaintiff. The declaratory count seeks a declaration that “GSU is in breach” of the contract
and that plaintiff “is entitled to the balance due under the terms of the parties’ agreement.”
¶ 50 This entire action is premised and founded upon the construction contract between
plaintiff and GSU. As GSU is an arm of the State, this breach of contract action must be
litigated in the Court of Claims. 705 ILCS 505/8(b) (West 2010). Again, when determining
whether sovereign immunity applies to a particular case, “substance takes precedent over
form.” Rockford Memorial Hospital, 272 Ill. App. 3d at 757. The substance of plaintiff’s
claim is nothing more than a breach of contract action.
¶ 51 Finally, we acknowledge the “prospective injunctive relief exception” to the doctrine of
sovereign immunity. This exception, however, is only properly “invoked where a plaintiff
seeks to enjoin a State agency or official from taking actions in excess of his statutory or
constitutional authority.” Rockford Memorial Hospital, 272 Ill. App. 3d at 755; see also
Landfill, Inc. v. Pollution Control Board, 74 Ill. 2d 541, 552 (1978). The “actions in excess
of” defendant’s statutory authority identified by plaintiff in this case involve defendant
Sullivan paying another contractor money that plaintiff believes it is entitled to under the
construction contract.
¶ 52 Again, artful pleadings can allow any plaintiff to suggest that a state employee acts
outside the scope of his or her employment when disbursing funds to which the plaintiff feels
entitled. Such skilled pleadings, however, are simply not sufficient to defeat the Court of
Claims’ jurisdiction. “When the state employee allegedly breaches a duty that arises solely
by virtue of his state employment, sovereign immunity will bar in circuit court an action that
is founded on that breach.” Brandon v. Bonell, 368 Ill. App. 3d 492, 505 (2006) (citing
Currie v. Lao, 148 Ill. 2d 151, 159 (1992)). Sullivan’s “duty” to disburse funds associated
with this construction project clearly arises “solely by virtue” of her state employment. We
find the prospective injunctive relief exception to the doctrine of sovereign immunity does
not confer jurisdiction on the circuit court even though plaintiff alleged Sullivan would be
acting outside the scope of her duties if she were allowed to disburse funds to another
contractor.
¶ 53 III. Leave to Amend
¶ 54 Plaintiff argues the trial court erred in denying its request to amend its complaint.
Plaintiff further claims that we should review the matter de novo as “the trial court’s order
denying Plaintiff’s Motion for Leave to File an Amended Complaint contains no explanation
thereof whatsoever.” Plaintiff cites no authority to support its contention that our review is
de novo when the trial court fails to indicate in the written order why it denied plaintiff’s
motion for leave to amend. Moreover, plaintiff has failed to produce transcripts from any of
the hearings below, rendering the record on appeal less than complete despite the fact that
plaintiff’s motions were argued during at least two hearings.
¶ 55 In Kolacki v. Verink, 384 Ill. App. 3d 674 (2008), this court recited well-settled principles
of law which hold “[t]rial courts are encouraged to freely and liberally allow a party to amend
the pleadings. 735 ILCS 5/2-616 (West 2006); [citation]. A party’s right to amend, however,
is not absolute or unlimited. [Citation.] The test is whether allowing the amendment would
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further the ends of justice. [Citation.] In determining whether to allow a party to amend a
pleading, a trial court should consider the following factors: whether the amendment would
cure a defect in the pleadings; whether the other party would be prejudiced or surprised by
the proposed amendment; whether the proposed amendment is timely; and whether there
were previous opportunities to amend the pleadings. [Citation.] A trial court has broad
discretion in ruling upon a motion for leave to amend the pleadings and its decision in that
regard will not be reversed on appeal absent an abuse of discretion. [Citation.]” Id. at 680-81.
¶ 56 Attached to plaintiff’s motion for leave to amend is a copy of the proposed amended
complaint. The amended complaint contained similar allegations and counts as the original,
merely amending the prayer for injunctive and declaratory relief. Plaintiff claims its proposed
amendments cured any potential defects as it removed its prayer for an order prohibiting
defendants from “wrongfully withholding funds” and merely “sought to maintain the status
quo.” The proposed amended complaint retained the request for a preliminary injunction
preventing defendants from destroying or contracting with other parties to destroy plaintiff’s
work. It removed the request to prohibit defendants from “wrongfully withholding funds
from plaintiff” to one seeking to prevent GSU “from utilizing funds allocated to the contract
with [plaintiff] to have work performed by others.” Similarly, the amended claim for
declaratory relief replaces a request for a judgment “establishing that [plaintiff] has
performed its contract with GSU ***, that GSU is in breach thereof, and that [plaintiff] is
entitled to the balance due under the terms of the parties’ agreement” with a request for
declaration “establishing that [plaintiff] has substantially performed its contract with GSU
as aforesaid, that GSU may not withhold, or attempt to spend, $49,000 on the basis of the
alleged defects in the shower room floors, and that GSU may not take any further corrective
action without first advising [plaintiff] of some feasible corrective action that GSU believes
is within the scope of the parties’ agreement, affording [plaintiff] a reasonable opportunity
to perform same.”
¶ 57 Defendants argue that the denial of plaintiff’s motion for leave to amend was proper as
this matter, at its essence, is a contract dispute. Defendants characterize the amended
complaint as another artful pleading through which plaintiff attempts to obtain money
damages resulting from an alleged breach of contract by equitable means. The trial court
agreed with defendants’ characterization and so do we. Plaintiff’s amendments do not change
the nature of this action which, at its heart, is a contract dispute that must be brought in the
Court of Claims. As the proposed amendments did not “cure” the defects in plaintiff’s
complaint, we hold the trial court did not abuse its discretion when denying plaintiff’s
motion for leave to file an amended complaint. Again, when determining whether sovereign
immunity applies to a particular case, “substance takes precedent over form.” Rockford
Memorial Hospital, 272 Ill. App. 3d at 757.
¶ 58 CONCLUSION
¶ 59 For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.
¶ 60 Affirmed.
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