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Bd. of Educ. v. Del Bianco & Assoc.

OPINION FILED JANUARY 17, 1978.

THE BOARD OF EDUCATION OF COMMUNITY CONSOLIDATED SCHOOL DISTRICT NO. 54, PLAINTIFF-APPELLEE,

v.

DEL BIANCO AND ASSOCIATES, INC., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE FIEDLER, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

This appeal arises from a judgment entered by the circuit court of Cook County, pursuant to a jury trial, in favor of plaintiff Board of Education of Community Consolidated School District No. 54 and against defendants Del Bianco and Associates, Inc. and Stahelin Construction Co., Inc. Plaintiff's action sounded in contract and the jury returned verdicts against defendants Del Bianco and Stahelin in the sums of $125,000 and $50,000 respectively. Defendant Del Bianco is the sole appellant. *fn1

On March 1, 1963, plaintiff and defendant entered into a standard form of agreement between owner and architect pursuant to which defendant would perform the professional architectural services necessary to the construction of a junior high school in Schaumburg, Illinois. This agreement, subsequently to be analyzed in detail, specified, inter alia, the basic architectural services to be rendered by defendant. In return for the rendering of these services, defendant was to be paid six percent of the project construction cost and other sums for extra services performed (if, as stated in the agreement, performed due to unusual circumstances).

The junior high school was constructed and in 1965 plaintiff observed a deficiency in the walls of the school building. This deficiency was diagnosed as efflorescence, a condition of deterioration caused by moisture within the walls. The efflorescence was evidenced by salt deposits appearing on the exterior of the walls, causing a white discoloration.

The efflorescent condition of the building walls gradually worsened and in January of 1971 plaintiff filed suit against defendant for breach of contract and negligence. Count I of plaintiff's complaint alleged that defendant failed to perform its contractual obligations, resulting in various structural defects in need of redesign and reconstruction. The defects alleged were cracked mortar joints, efflorescence, cracked bricks, improperly sealed walls, presence of excess wetness in portions of the premises, improperly separated steel joints and the installation of improper and defective building materials. Plaintiff alleged $50,000 in contract damages. Count II repeated the allegations of count I but contained a prayer for $50,000 in damages due to defendant's negligence.

Subsequent to the filing of plaintiff's action, a lengthy procedural chronology ensued. Defendant first responded to the complaint by filing an answer, denying the allegations contained in the complaint. On February 18, 1972, the case was dismissed for want of prosecution, said case coming to be heard on the no progress call. However, the cause was reinstated for status call on May 14, 1972, pursuant to the vacation of the February 18, 1972 order.

Defendant then filed a motion to dismiss count II (the negligence count) of plaintiff's complaint. Defendant's motion noted (1) that actions for damage to real property must be filed within five years after the action accrued (Ill. Rev. Stat. 1971, ch. 83, par. 16); (2) that the cause of action accrued and the limitations period commenced to run when the building was completed, citing Simoniz Co. v. J. Emil Anderson & Sons, Inc. (1967), 81 Ill. App.2d 428, 225 N.E.2d 161, and (3) that plaintiff's action, alleging defendant's negligence, filed in 1971, was commenced more than five years after the construction of the building and was, therefore, barred. On March 1, 1974 the circuit court granted defendant's motion, dismissing count II with prejudice and continuing the cause as to all remaining issues and parties.

Trial of plaintiff's contract action commenced September 9, 1975. Immediately thereafter a series of amendments to the complaint were filed by plaintiff. On September 10, 1975 plaintiff filed an amended complaint in which plaintiff in count I prayed for $65,000 in damages plus costs and in count II sought to recover $150,000 in punitive damages due to defendant's alleged wilful misrepresentation. Plaintiff, on the same date, then filed an amendment to the amended complaint, pursuant to which plaintiff demanded judgment against defendant in the sum of $245,000. On September 18, 1975, a second amendment to the amended complaint was filed alleging (1) that defendant prepared an architectural design permitting certain walls to be constructed without proper waterproofing at the top thereof; (2) that defendant prepared specifications calling for mortar unfit for use in the Chicagoland geographical area; and, (3) that defendant designed unpitched rowlock windowsills which would not allow the shedding of water. Defendant answered this amendment on September 18, 1975.

The jury trial of plaintiff's contract action against defendant continued until September 19, 1975, at which time judgment was entered against defendant in the amount of $125,000. Defendant made a post-trial motion for vacation of the judgment and on January 7, 1976, this motion was denied. It is from the judgment entered in favor of plaintiff and against defendant that defendant Del Bianco appeals.

Defendant initially contends that the circuit court improperly allowed plaintiff to prosecute his action on a breach of contract theory. Defendant notes that plaintiff's amended complaint states that defendant "failed to prepare architectural design documents in accordance with good architectural practices" and submits that such allegation characterizes an action founded upon negligence as opposed to contract principles. Plaintiff's original count II, sounding in negligence, had been stricken as not filed in a timely fashion. Accordingly, defendant argues that the trial court erred in refusing to direct a verdict in favor of defendant at the close of plaintiff's case based upon the applicable statute of limitations.

• 1, 2 We find no merit in defendant's contention. Whenever an employment contract exists including duties to be performed in the course of employment which constitute the subject of the contract, a breach of a duty in the course of employment may authorize recovery in tort or in contract. (Stanley v. Chastek (1962), 34 Ill. App.2d 220, 180 N.E.2d 512.) Furthermore, it is clear in Illinois that where both a tort and a contract cause of action arise out of the same fact situation, the plaintiff is free to proceed with the theory of his choice. (Ledingham v. Blue Cross Plan (1975), 29 Ill. App.3d 339, 330 N.E.2d 540, rev'd on other grounds (1976), 64 Ill.2d 338, 356 N.E.2d 75.) Consequently, while plaintiff's complaint contains "words of negligence" we are unable to conclude that the use of such terminology precluded plaintiff's action in contract.

During the trial, S. Guy Fishman, a registered architect in the State of Illinois, testified as an expert witness on behalf of plaintiff. Fishman indicated that he visited the site of the junior high school at the request of Marvin Lapicola, assistant superintendent of finance of Community Consolidated School District No. 54. Fishman, in order to determine the cause and extent of the deteriorated condition of the school walls, examined the construction, took photographs, and completed a written report. He testified that replacing the walls damaged by efflorescence would cost $125,000. Fishman's estimate, at trial, was based upon his inspection of the construction and a sheet of computations made one week prior to trial. The document containing the computations was not revealed by Fishman until cross-examination. Plaintiff's counsel was unaware of the computations. Defendant objected to such testimony as "surprise" and testimony from documents not produced. The trial court overruled defendant's objection. The jury subsequently returned a verdict against defendant in the amount of $125,000. Defendant submits that Fishman's testimony had a prejudicial effect on this verdict.

• 3 While Fishman's testimony may have impressed the jury, we are unable to hold that such testimony was improper or had prejudicial effect. Fishman, testifying as an expert, was able to base his opinion on personal observation (Richards v. Village of Edinburg (1968), 97 Ill. App.2d 36, 239 N.E.2d 479) and conclusions drawn therefrom. His testimony was subject to cross-examination by defendant. Accordingly, the jury was entitled to believe or disbelieve such testimony, properly admitted into evidence by the trial court.

At the close of the evidence and during the course of the conference on jury instructions, defendant tendered and the trial court refused ...


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