Set Envtl., Inc. v. Power Cartage, Inc.

225 N.E.3d 632

2022 IL App (1st) 211403

SET ENVIRONMENTAL, INC., Plaintiff-Appellee,

v.POWER CARTAGE, INC., Defendant-Appellant.

No. 1-21-1403

Appellate Court of Illinois, First District, SIXTH DIVISION.

Filed December 30, 2022

Appeal from the Circuit Court of Cook County. No. 20 L 00927, The Honorable Margaret A. Brennan, Judge, presiding.

Jason Orleans, Bradley A. Bertkau, and Nicky M. Priovolos, of Orleans Canty Novy, LLC, of Chicago, for appellant.

William H. Ransom, of Newman Ransom LLC, of Chicago, for appellee.

OPINION

JUSTICE ODEN JOHNSON delivered the judgment of the court, with opinion.

¶ 1 Defendant Power Callage, Inc. (Power), appeals the trial court’s grant of summary judgment in favor of plaintiff Set Environmental, Inc. (Set). This appeal arises from a work authorization form drafted by Set and signed by Power, for a cleanup by Set of a fuel spill from a Power truck on a highway near Sugar Gove, Illinois. On appeal, Power argues that the trial court erred in finding that no genuine issue of fact exists such that a trial was not needed. Power argues that Set’s work authorization form was not a valid contract because (1) it lacked essential material terms, (2) it was unconscionable and, hence, void, and (3) it was signed under duress. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

¶ 2 BACKGROUND

¶ 3 Set filed a complaint on January 22, 2020, in the circuit court of Cook County, alleging that it is an Illinois corporation with offices in Cook County, that it provides environmental services, and that Power is an Illinois corporation with offices in Chicago. The complaint set forth only one count, which was for breach of contract.

¶ 4 Set’s verified complaint alleged that on August 30, 2019, Power contacted Set about a clean-up at or near I-88 in Sugar Grove, Illinois, and that Power hired Set for the clean-up pursuant to a written contract, which Set attached to its complaint as exhibit A. Set alleged that it performed the work and sent Power a bill for $114,597.26, which Set attached to the complaint as exhibit B. Set alleged that Power paid nothing and, thus, Set sought the amount of the bill, plus attorneys’ fees, costs, and interest.

¶ 5 The first part of exhibit A is a form entitled "Set Work Authorization," which is five pages long and appears to be signed by Chris Fogu on August 30, 2019. The next two pages of exhibit A contain a list of fees per hour or per shift for a variety of possible services, personnel, and equipment. The bottom of each page of the list contains the initials "C.F." and the date "8/30/19." The last two pages of exhibit A are a two-page document entitled "Addendum to Standard and Emergency Schedule of Fees." The bottom of each page of the addendum appears to bear Fogu’s initials and the date.

¶ 6 The three documents in exhibit A—the authorization, the list of fees, and the addendum—are forms that contain blank spaces for only the customer’s name, address, and initials. The forms do not contain blank spaces to fill in: the site or address of where the work was to be done, the type of incident which led to the need for services, a description of the contemplated work at the site, the date of the trigging incident, or the expected schedule or time frame for completion of work.

¶ 7 The subtitle of the first document in exhibit A, which is the "Authorization" form, states that it is for both "Emergent and Non-Emergent Work." The first line of the form begins: "The undersigned authorized agent (the ‘Owner') as owner or authorized agent as represented by signing this agreement for the titleholder of the area, surrounding area or any contaminated area that appears to be related (hereafter, the ‘Premises’) authorizes ***." Neither party alleges that Fogu or Power was the owner of, or owner’s agent for, I-88. Next, the form states that the " Own- er’ " authorizes Set "to undertake any and all work required to estimate, evaluate and restore the surface, subsoil, any structures or waters located at or near the Premises." No address or road is identified for the "Premises."

¶ 8 Paragraph A of the "Authorization" form is entitled "Continuing Work Authorization" and it states in relevant part: "Set is further authorized to continue with restoration and remediation of the Premises after the date of this authorization, with such continuing work to be agreed upon according to Set’s scope or by any subsequent written revised scope, the terms of which shall be agreed upon between Sot and Owner or as directed by any legal authority as soon as possible." The "Authorization" form ends by stating that it "constitutes the entire Agreement between the parties" and no addition or modification may be made unless in writing and signed by both parties. While the form is signed by Fogu on behalf of Power, the signature line for Set is blank.

¶ 9 The next two documents in exhibit A, which are the list of fees and the addendum, do not contain any blank spaces, except for spaces at the bottom of each page for initials and the date. Like the first document, the subsequent two documents do not contain a space in which a site location could be filled in, or in which any other identifying project information could be inserted. The fees list states that it contains the fees for: "Emergency Response Services/Specialty Field Services/Compressed Gas Cylinder Services/Customized Waste Management."

¶ 10 exhibit B contains two invoices totaling $114,597.26, which is the amount that Set sought in its complaint. The first of these two invoices, dated October 9, 2019, is for $44,042.35, and states that it contains the "[c]harges for emergency response services provided for a diesel spill clean up¹ beginning on August 30, 2019." The invoice states that it includes a number of different "field ticket[s]," with a separate field ticket for each day. The ticket for August 30 is $1413; for September 4, $936; for September 6, $207; for September 12, $115; for September 13, $520; for September 17, $230; for September 20, $791.30; for September 28, $29,512.65; for September 26, $4822.80; and, for September 27, $5494.60.

¶ 11 The second of these two invoices, dated December 12, 2019, states that it is for $70,554.91 and that it contains the "[c]harges for a diesel spill cleanup beginning on August 30, 2019." It also includes a number of different field tickets. The first ticket, entitled "analytical review," does not have a date and is for $115. There are two tickets for October 9; the first is $2640.90; the second is $563.50. The ticket for October 10 is $1431.85; for October 16, $414; for October 17, $138; for November 6, $460; for November 14, $16,600.50; for November 15, $945; for November 19, $172.50; for November 26, $201.25; for November 27, $172.50; for December 3, $27,630.79; for December 4, 2019, $3276.10; for December 6, $4024.75; and, for December 10, $11,768.36.

¶ 12 Lastly, exhibit B contains a third invoice, which is labeled "Proposal Only," and is dated January 9, 2020. The "Proposal Only" invoice, which is for $33,176.55, has a note handwritten across the bottom that says: "Not to exceed proposal to complete work in Spring of 2020." Under the note is an empty signature line, and under the empty signature line are the words "Customer Approval" and "Date."

¶ 13 On April 6, 2020, Power filed a verified answer with affirmative defenses. Power admitted that it contacted Set to perform certain work at or near the location described in Set’s complaint but denied the remaining allegations or asserted that it had insufficient knowledge to respond. Power also alleged affirmative defenses of duress, unconscionability, and no meeting of the minds. The answer was verified and signed by Chris Fogu.

¶ 14 In Power’s answers to Set’s interrogatories, which were signed by Fogu and dated July 30, 2020, Power stated that Power’s driver was involved in the subject spill. In Power’s response to Set’s request to produce documents, Power attached an e-mail from David Cozzi, a senior environmental analyst with Set, to "Chris," dated Monday, October 21, 2019. The e-mail stated, in full:

"Attached is a finalized PARTIAL invoice for the emergency response and subsequent remediation efforts to clean up the diesel fuel release from August 30th. This invoice covers charge[s] from August 30-Sept. 30. Additional charges to be invoiced in October will be T&D of the remaining roll-off boxes, analytical review/reporting, and any other onsite work performed.

Now that I have your authorization to proceed with the balance of the clean up by first applying for the Tollway Authority land closure permit, I will keep you posted."

The attachment consisted of a five page document entitled "Invoice Preview" that was dated September 25, 2019, and ended with a grand total of $38,540.86.

¶ 15 Set moved to dismiss Power’s affirmative defenses for lack of specificity, among other things.² On September 21, 2020, Power filed a response, and, on September 28, 2020, Set filed a reply. However, on November 13, 2020, Power filed amended affirmative defenses with greater specificity. The verified amended defenses were signed by Fogu.

¶ 16 In its verified answer, Power alleged the following. A tractor trailer operating under Power’s "dispatch" was involved in a vehicle "incident," resulting in a fuel spill that "created an emergency situation requiring immediate action." An Illinois state police officer on the scene "demanded" that Power "remediate the fuel spill promptly" and recommended that Power contact Set, which Power did. When Power asked Set to provide price estimates and information regarding the work to be done, Set said that it would not provide such information prior to visiting the site and that it would not visit the site unless Power executed Set’s contract. With respect to Power’s first affinnative defense of duress, Power claimed that Set knew or should have known that...