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SECOND DIVISION
NOVEMBER 02, 2004

The plaintiffs, Ardon Electric Company, Inc., Airy's, Inc.,Carroll Seating Company, J & R Number One in Asphalt Company,Inc., and Knippel Iron, Inc. (collectively plaintiffs), appealthe trial court's February 23, 2003, order dismissing theirthird-party-beneficiary claims directed against the defendant,Village of Merrionette Park (Village), as time-barred undersection 2 of the Public Construction Bond Act (Bond Act) (30 ILCS550/2 (West 1998)). Specifically, the plaintiffs argue theclaims were based on a breach of contract and the Bond Act'sstatute of limitations does not apply. We agree and reverse.

I. Background

On December 1, 1999, the Village entered into a contract(general contract) with Winterset Construction, Inc. (Winterset),for the construction of a new police station in the Village. Thereafter, Winterset entered into contracts with the plaintiffs,as subcontractors, to perform the work required under itscontract with the Village. The pleadings present no dispute thatthe plaintiffs completed the work in compliance with the contractbut were not paid in full for their services. Winterset is not aparty to this appeal.

The plaintiffs served notice of their claims for money dueon the Village and Winterset and were advised by the Village thatno payment bond was available. Individually, the plaintiffs suedthe Village and Winterset, seeking multiple forms of relief. Thedates each plaintiff entered into a contract with Winterset(Entered), the dates those contracts were completed (Completed),the dates each plaintiff filed a notice of lien (Notice), and thedates each plaintiff filed a complaint against the Village(Complaint) are outlined in the table below.                

 These cases were consolidated with a case filed by ValleySecurity Company, which is not a party to this appeal.

The Village filed multiple motions to dismiss directed atthose counts alleging breach of contract and breach of third-party-beneficiary contract. The Village claimed, throughaffidavits from Donald Wallin, architect of the police station,and Donald Peck, the Village's building commissioner, that itaccepted the new police station as substantially complete onJanuary 25, 2001, and that the station was 100% complete onFebruary 10, 2001, when Wallin approved Winterset's last-paymentrequest. The Village argued that because the plaintiffs eitherdid not file their notice within 180 days after completing theirwork or file their complaints within 6 months followingacceptance, their claims were time-barred under the Bond Act. Additionally, the Village argued that it did not, under the BondAct, have a duty to require Winterset to obtain a bond.

On February 7, 2003, the trial court entered its findings offact. The court found that (1) the Village failed to requireWinterset to provide a payment bond; (2) all plaintiffs, exceptArdon and J&R, failed to file a notice of claim with the Villagewithin 180 days of completing their contract and therefore had noright of action under the Bond Act; (3) the Village accepted thepolice station no later than February 22, 2001; and (4) Ardon andJ&R filed their complaints more than six months after the policestation was accepted and therefore had no right of recovery underthe Bond Act. On February 26, 2003, the court granted theVillage's motions to dismiss the breach of contract and third-party beneficiaries counts. This appeal followed.

II. Analysis

Before we address the merits of the plaintiffs' appeal, wemust first rule on the Village's motion to strike plaintiffs'notice of appeal. The Village argues that because the notice ofappeal named five plaintiffs-appellants, but was only signed byone attorney, the notice violates Supreme Court Rule 303 (155Ill. 2d R. 303).

A. Motion to Strike Notice of Appeal

On March 26, 2003, the plaintiffs filed their notice ofappeal. The notice asked this court to reverse the trial court'sorder dismissing plaintiffs' third-party beneficiary claims. Although each plaintiff was represented by a different attorneyin the trial court, the notice of appeal was signed only by LouisV. Kiefor, trial attorney for Knipple. The Village arguesplaintiffs are not properly before this court because (1) thenotice of appeal designates five appellants but only one attorneysigned the notice, and (2) the attorney did not indicate whichappellant he represented.

Rule 303(b)(3) mandates that a notice of appeal "shallcontain the signature and address of each appellant orappellant's attorney." 155 Ill. 2d R. 303(b)(3). Theintroduction to the notice of appeal designates "Ardon ElectricCompany, Inc., Airy's Inc., Carroll Seating Company, J&R NumberOne in Asphalt Co., and Knippel Iron Inc.," as plaintiffs-appellants. Kiefor signed the notice as "one of the attorneysfor plaintiff[s]-appellants."

It is clear from the notice of appeal that Kiefor signed iton behalf of all of the plaintiffs-appellants. The noticeidentified each plaintiff-appellant and each case numberapplicable to each plaintiff-appellant. Further, the notice ofappeal asks that this court reverse the ruling of the trial courtas applicable to each plaintiff-appellant and identified eachparagraph of the trial court's order that applies to eachplaintiff-appellant. Nothing in the notice of appeal suggeststhat Kiefor did not represent the interests of all of theplaintiffs-appellants when he filed the notice of appeal. Wetherefore find no violation of Rule 303.

The cases cited by the Village do not require a differentholding. The court in U.S. Air, Inc. v. Prestige Tours, Inc.,159 Ill. App. 3d 150, 151, 512 N.E.2d 68 (1987), found that "therecord is confusing as to which of the 14 present plaintiffs arein fact appealing." The notice of appeal was signed by only oneplaintiff; the other plaintiffs neither joined the appeal norfiled their own notice of appeal. Although only one plaintiffsigned the notice of appeal, the appellate brief designated sevenof the plaintiffs as plaintiffs-appellants. The court dismissedthe appeal but its decision was not based solely on theplaintiffs' failure to sign the notice of appeal: the notice ofappeal was untimely; the court found that the order beingappealed was not final; and questions existed as to whether theplaintiffs were the proper parties to the action. U.S. Air, 159Ill. App. 3d at 153-55. Here, the plaintiffs' notice of appealwas timely and made clear that attorney Kiefor signed the noticeon behalf of all of the named plaintiffs.

In People v. Krueger, 146 Ill. App. 3d 530, 533, 495 N.E.2d993 (1986), the appellate court held that it would consider theappeal only as to the pro se appellant who signed the notice ofappeal. In Beneficial Development Corp. v. City of HighlandPark, 239 Ill. App. 3d 414, 416, 606 N.E.2d 837 (1992), rev'd inpart on other grounds, 161 Ill. 2d 321, 641 N.E.2d 435 (1994),the appellate court struck those portions of the appellant'sbrief that concerned parties not named in the notice of appeal. Although the attorney who signed the notice of appeal was theattorney of record for all the plaintiffs at trial, he signed thenotice of appeal as the attorney for plaintiff-appellantBeneficial. The court held that the "notice of appeal clearlynamed Beneficial, and Beneficial alone, as plaintiff-appellant." Beneficial Development, 239 Ill. App. 3d at 416.

In this case, Kiefor signed the notice of appeal on behalfof all the plaintiffs-appellants. Rule 303(a) requires that thenotice of appeal be signed by all appellants or by an attorney onbehalf of the appellants. We therefore hold that all of theplaintiffs-appellants named in the notice of appeal are properlybefore this court and there is no need to grant leave to amendthe notice. We now turn to the merits of plaintiffs' appeal.

B. Plaintiffs' Claims

The plaintiffs argue that the trial court erred indismissing their third-party-beneficiary contract claims as time-barred under section 2 of the Bond Act. They contend thatbecause Winterset did not secure a payment bond and the Villagedid not require them to do so, no bond existed upon which a suitcould be commenced under the Bond Act. Because there was no bondto sue on, the plaintiffs argue that their claims must be viewedunder statutes and case law governing third-party contracts. Inthe alternative, the plaintiffs argue that if section 2 of theBond Act does apply, the police station was not completed onFebruary 22, 2001.

1. Standard of Review

The trial court granted the Village's motions todismiss the plaintiffs's claims under section 2-619(a)(5) of theCode of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5) (West2002)). A claim is properly dismissed under section 2-619(a)(5)where "the action was not commenced within the time limited bylaw." 735 ILCS 5/2-619(a)(5) (West 2002). A section 2-619motion to dismiss admits the legal sufficiency of the plaintiff'scause of action and we review such a dismissal de novo. VanMeter v. Darien Park District, 207 Ill. 2d 359, 367-68, 799N.E.2d 273 (2003).

2. Bond Act

Section 1 of the Bond Act (30 ILCS 550/1 (West 1998))provides:

"Except as otherwise provided by thisAct, all officials, boards, commissions oragents of this State, or of any politicalsubdivision thereof in making contracts forpublic work of any kind to be performed forthe State, or a political subdivision thereofshall require every contractor for such workto furnish, supply and deliver a bond to theState, or to the political subdivisionthereof entering into such contract, as thecase may be, with good and sufficientsureties. The amount of such bond shall befixed by such officials, boards, commissions,commissioners or agents, and such bond, amongother conditions, shall be conditioned forthe completion of the contract, for thepayment of material used in such work and forall labor performed in such work, whether bysubcontractor or otherwise."

Section 2 explains:

"Every person furnishing material orperforming labor, either as an individual oras a sub-contractor for any contractor, withthe State, or a political subdivision thereofwhere bond or letter of credit shall beexecuted as provided in this Act, shall havethe right to sue on such bond or letter ofcredit in the name of the State, or thepolitical subdivision thereof entering intosuch contract *** for his use and benefit,and in such suit the plaintiff shall file acopy of such bond ***, certified by the partyor parties in whose charge such bond ***shall be, which copy shall, unless executionthereof be denied under oath, be prima facieevidence of the execution and delivery of theoriginal; provided, however, that this Actshall not be taken to in any way make theState, or the political subdivision thereofentering into such contract, *** liable tosuch sub-contractor *** to any greater extentthan it was liable under the law as it stoodbefore the adoption of this Act." 30 ILCS550/2 (West 1998).

Any party seeking to enforce a claim for labor or materials hasno right of action unless the party files a verified notice ofthe claim with the officer, board, bureau, or department awardingthe contract, "within 180 days after the date of the last item ofwork or the furnishing of the last item of materials." 30 ILCS550/2 (West 1998). Additionally, no action of any kind shall bebrought more than six months after the State or politicalsubdivision accepts the building project or work. 30 ILCS 550/2(West 1998).

In East Peoria Community High School District No. 309 v.Grand Stage Lighting Co., 235 Ill. App. 3d 756, 758, 601 N.E.2d972 (1992), the school district and a general contractor enteredinto a contract for work to be completed on the high school. Thegeneral contractor hired subcontractors to perform work on thecontract but failed to pay them in full. The subcontractors suedthe school district to collect those amounts not paid by thegeneral contractor. The subcontractors argued that under theBond Act the school district had a duty to require the generalcontractor obtain a payment bond and that they were third-partybeneficiaries of the contract between the school district andgeneral contractor.

The East Peoria court explained that the provisions of theBond Act are read into all public works contracts between apublic entity and a general contractor. The Bond Act is remedialand "is liberally construed to effectuate the General Assembly'sintent to encourage and protect artisans, materialmen, andtradesman." East Peoria, 235 Ill. App. 3d at 759-60, citingChicago Housing Authority v. United States Fidelity & GuarantyCo., 49 Ill. App. 2d 407, 410, 199 N.E.2d 217 (1964). The courttherefore held that the Bond Act mandated that the schooldistrict require the general contractor to obtain a payment bond. East Peoria, 235 Ill. App. 3d at 760.

The East Peoria court also held that the subcontractors werethird-party beneficiaries of the contract between the schooldistrict and the general contractor, explaining that "[a]s apolicy matter, it would be meaningless here to read the Bond Actrequirements into the [general contract] without reading inthird-party rights to enforce that statute." East Peoria, 235Ill. App. 3d at 761. In addition, the court held that thesubcontractors were third-party beneficiaries under the actualcontract between the school district and the general contractor. The contract required that the general contractor: (1) "promptlypay all amounts due" the subcontractors upon receipt of anypayment, (2) "develop and implement a procedure for the review,processing, and payment of applications" by subcontractors forprogress and final payment, and (3) submit satisfactory evidencethat all indebtedness had been paid before the public entitycould issue the final payment. See East Peoria, 235 Ill. App. 3dat 761. The court explained that "these promises regardingpayment show that the parties anticipated that subcontractors'services would be provided on credit and that the parties wantedto make express arrangements for payment to them." East Peoria,235 Ill. App. 3d at 761-62.

In Shaw Industries, Inc. v. Community College District No.515, 318 Ill. App. 3d 661, 667-69, 741 N.E.2d 642 (2000), theappellate court distinguished the holding in East Peoria. Shawwas a subcontractor hired by the general contractor, PrairieState Associates, Inc. (PSA), to complete work on a contractbetween PSA and Prairie State College. Shaw filed a complaintagainst the college alleging a breach of contract arising fromthe college's failure to require PSA to procure a payment bondpursuant to the Bond Act. The college moved to dismiss thecomplaint, arguing, inter alia, (1) Shaw could not assert abreach of contract claim because Shaw was not in privity ofcontract for the contract issue, and (2) Shaw was barred by the180-day statute of limitations set out in section 2 of the BondAct. The trial court granted the motion to dismiss. ShawIndustries, 318 Ill. App. 3d at 664.

The appellate court affirmed and held that the contractbetween PSA and the college did not contain any provisionsindicating that the contract was entered into for Shaw's directbenefit. The court distinguished the holdings in both EastPeoria and Western Waterproofing Co. v. Springfield HousingAuthority, 669 F. Supp. 901 (C.D. Ill. 1987), explaining that ineach of those cases, the contracts entered into by the partieswere entered into for the direct benefit of a third party. ShawIndustries, 318 Ill. App. 3d at 668-69. Although "no issueexists in the instant case that a third-party beneficiarycontract action can be asserted by an unpaid subcontractoragainst a public entity where such public entity has failed toprocure from the general contractor a payment bond as required bythe Bond Act," the court held that Shaw was not a directbeneficiary under the contract. Shaw Industries, 318 Ill. App.3d at 669. Therefore, in the view of the Shaw Industries court,Shaw's cause of action was limited to the protection offered bythe Bond Act, and accordingly, the provisions of the Bond Actcontrolled.

The Shaw Industries court went on to explain that eventhough the college failed to procure a payment bond as mandatedby section 1 of the Bond Act, Shaw was required to comply withthe six-month statute of limitations mandated by section 2 of theBond Act. Shaw Industries, 318 Ill. App. 3d at 672. The courtexplained:

"Shaw's third-party beneficiary action ispredicated solely upon section 1 of the BondAct (30 ILCS 550/1 (West 1998)). However,the Bond Act must be read as a whole. Inparticular, section 1 of the Bond Act must beread in conjunction with section 2 of theBond Act (30 ILCS 550/2 (West 1998)). Section 2 sets forth the procedure which mustbe followed by a person seeking to enforceliability under section 1 of the Bond Act. Compliance with the limitations period insection 2 of the Bond Act is a jurisdictionalrequirement. [Citation.] Shaw failed tocomply with the six-month limitations periodto file suit in section 2 of the Bond Act. Accordingly, the trial court did not err indismissing the plaintiff's complaint withprejudice." Shaw Industries, 318 Ill. App.3d at 671-72.

In A.E.I Music Network, Inc. v. Business Computers, Inc.,290 F.3d 952 (7th Cir. 2002), the Seventh Circuit declined tofollow the holding in Shaw Industries when considering a similarcomplaint under the Bond Act. The Seventh Circuit held that thestatute of limitations in section 2 of the Bond Act wasapplicable only to a suit on the bond; where no bond wasprocured, a suit on the bond was impossible. A.E.I. MusicNetwork, 290 F.3d at 954. Instead, the "natural remedy" was abreach of contract claim by the subcontractor against the publicentity. The court held that because the bond requirement insection 1 of the Bond Act is read into every constructioncontract of a public entity to give the subcontractor a remedy,the doctrine of third-party beneficiaries entitled thesubcontractor to sue for breach of contract. Pursuant to section13-214 of the Code, the plaintiff had four years to file itscomplaint. A.E.I. Music Network, 290 F.3d at 955.

The Seventh Circuit suggested that the applicability ofsection 2's statute of limitations "has divided Illinois'sintermediate appellate court." A.E.I. Music Network, 290 F.3d at954. The court explained that under Shaw Industries the 180-daylimitation was applicable because the suit, however captioned,was necessarily a suit to enforce the Bond Act, while East Peoria"implies that the 180-day period is inapplicable, because thecourt described the subcontractor's suit against the agency as athird-party-beneficiary suit for breach of contract rather thanas a suit under the Bond Act." A.E.I. Music Network, 290 F.3d at954.

Initially, we point out that the court in East Peoria didnot consider whether the statute of limitations in section 2 ofthe Bond Act applied to the subcontractor's suits. The court wasasked to determine whether the Bond Act mandated that the publicentity require the general contractor to obtain a payment bond. The court answered that question in the affirmative, which boththe Shaw Industries and A.E.I. Music Network courts recognized. The court was also asked to determine whether the subcontractorswere third-party beneficiaries of the contract between the publicentity and the general contractor. The court answered thatquestion in the affirmative. The court held that pursuant to theBond Act, the subcontractor was a third-party beneficiary to thecontract; additionally, the subcontractors were third-partybeneficiaries to the contract based on specific provisions of thecontract.

Like the plaintiffs in East Peoria, plaintiffs in this caseare third-party beneficiaries pursuant to the Bond Act and underthe provisions of the general contract. Whether a party is a third-party beneficiary depends upon the intent of the partiesto the contract and is determined on a case-by-case basis. A.J.Maggio Co. v. Willis, 316 Ill. App. 3d 1043, 1051, 738 N.E.2d 592(2000). "The right of the third party benefitted by a contractto sue thereon rests upon the liability of the promisor, and thisliability must appear from the language of the instrument whenproperly interpreted and construed." Metro East SanitaryDistrict v. Village of Sauget, 131 Ill. App. 3d 653, 657, 475N.E.2d 1327 (1985).

The plaintiffs point out that the contract between theVillage and Winterset, on its face, directly benefitted a numberof parties, including themselves as subcontractors. The contractspecifically provided for subcontractors and gave the Village theright to object to one or all of the subcontractors. Thecontract also required the subcontractors to preserve and protectthe rights of the Village under contract.

In addition to those provisions, the contract containsprovisions similar to those found in the contract in East Peoria. Section 9.3.1 of AIA Document A201-1997, which was incorporatedinto the general contract, provided that at least 10 days beforeeach progress payment, Winterset was required to submit to thearchitect an itemized application of payment for operations. Thecontract required that if the Village or architect so required,the application was to be supported by data substantiatingWinterset's right to payment, including as copies of requisitionsfrom subcontractors and material suppliers. Under section 9.3.3Winterset

"further warrants that upon submittal of anapplication for payment all work for whichcertificates of payment have been previouslyissued and payments received from the[Village] shall, to the best of [Winterset's]knowledge, information and belief, be freeand clear of liens, claims, securityinterests or encumbrances in favor of[Winterset], subcontractors, materialsuppliers, or other persons or entitiesmaking a claim by reason of having providedlabor, materials and equipment relating tothe work."

Section 9.6.2 states that Winterset "shall promptly pay eachsubcontractor, upon receipt of payment from the [Village], ***the amount to which said subcontractor is entitled," and section9.10.2 conditions final payment upon, inter alia, an affidavitfrom Winterset that payrolls, bills for materials and equipment,and other indebtedness connected with the police station had beenpaid or satisfied.

Under the contract it is clear that Winterset owed certainduties to the plaintiffs. However, the contract also providedthat the Village was not obligated to ensure the subcontractorswere paid. Section 9.4.2 explained that the issuance of acertificate of payment was not a representation that thearchitect had "reviewed copies of requisitions received fromsubcontractors and material suppliers and other data requested bythe [Village] to substantiate [Winterset's] right to payment, ormade examination to ascertain how or for what purpose [Winterset]has used money previously paid on account of the contract sum." In fact, section 9.6.4 specifically states that the Village didnot "have an obligation to pay or to see to the payment of moneyto a subcontractor except as may otherwise be required by law."

Despite these provisions, the plaintiffs, as subcontractors,were direct third-party beneficiaries under the contract. Asdirect third-party beneficiaries, the plaintiffs had a common-lawright to sue for breach of contract. See East Peoria, 235 Ill.App. 3d at 760 ("if a contract is entered into for a directbenefit of a third person not a party thereto, such third personmay sue for breach thereof"). However, the plaintiffs' claimsagainst the Village were predicated solely upon the Village'sfailure to comply with section 1 of the Bond Act.⁽¹⁾ In theircomplaints, the plaintiffs make no claims that the Villageviolated any provisions of the general contract. Therefore,pursuant to Shaw Industries, the plaintiffs were required toadhere to the statute of limitations in section 2 of the BondAct.

Although this court is not bound by federal decisions (seeEickmeyer v. Blietz Organization, Inc., 284 Ill. App. 3d 134,141, 671 N.E.2d 795 (1996)), we can look to these decisions aspersuasive authority (Ramette v. AT&T Corp., 351 Ill. App. 3d 73,83, 812 N.E.2d 504 (2004)). This court may follow a federaldecision if we find the analysis to be "'reasonable andlogical.'" Ramette, 351 Ill. App. 3d at 83, quoting Mekertichianv. Mercedes-Benz U.S.A., L.L.C., 347 Ill. App. 3d 828, 835, 807N.E.2d 1165, 1170 (2004).

In A.E.I. Music Network, the Seventh Circuit felt compelledto reconcile the implied conflict between the holdings in EastPeoria and Shaw Industries. A.E.I Music Network, 290 F.3d at954. Although the subcontractors in both of the cases brought abreach of contract suit based on their status as third-partybeneficiaries, the Shaw Industries court held that the claim,however captioned, was a suit to enforce the Bond Act, while theEast Peoria court treated the suit as a breach of contractaction. The Seventh Circuit determined that if presented withthis question, the Illinois Supreme Court would follow theholding in East Peoria. With due regard to our colleagues on theShaw Industries court, we agree with the Seventh Circuit. To theextent that the plaintiffs' breach of contract claims arepredicated on their common-law rights as third-partybeneficiaries under the general contract, the statute oflimitations set forth in the Bond Act does not apply.

The Bond Act grants "[e]very person furnishing material orperforming labor" the "right to sue on such bond *** in the nameof the State, or the political subdivision thereof entering intosuch contract." 30 ILCS 550/2 (West 1998). "Provided, however,that any person having a claim for labor, and material asaforesaid shall have no such right of action unless he shall havefiled a verified notice of said claim *** within 180 days afterthe date of the last item of work ***." 30 ILCS 550/2 (West1998).

The Shaw Industries court held that because Shaw'sunderlying action was predicated solely on the Bond Act and was,in effect, a suit to enforce the requirements of the Bond Act,Shaw had to comply with the statute of limitations in section 2. However, the Seventh Circuit points out that the 180-day statuteof limitations is applicable to a "'claim for labor, and materialas aforesaid.'" (Emphasis added.) A.E.I Music Network, 290 F.3dat 954, quoting 30 ILCS 550/2 (West 1998). That claim is theright to sue on the bond. In this case, plaintiffs did not sueon the bond, but sued as third-party beneficiaries to enforce theBond Act, which was read into the general contract. We agreewith the Seventh Circuit that where a bond was not procured, aparty's remedy cannot be a suit on a nonexistent bond.

The Village breached the general contract when it failed torequire Winterset to furnish, supply and deliver a payment bond. "The requirement of posting a bond found in section 1 of the BondAct is read into every construction contract of a public entity,[citation], precisely to give the subcontractor a remedy; andthus it became a term of the contract." A.E.I. Music Network,290 F.3d at 955. As direct third-party beneficiaries, plaintiffshad the right to sue on the contract. We therefore determinethat the statute of limitations in section 2 of the Bond Act doesnot control the outcome of this case. We, therefore, reverse thetrial court's order dismissing plaintiffs' third-party-beneficiary claims against the Village as time-barred under theBond Act.

III. Conclusion

For the reasons stated, we reverse the judgment of the trialcourt.

Reversed.

BURKE, P.J., and HALL, J., concur.

1. Airy's third-party-beneficiary claim was based on theVillage's violation of the Mechanics Lien Act (770 ILCS 60/23(West 1998)), although the trial court treated the claim as if itwas brought under the Bond Act.