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Corbetta Constr. v. Lake Cty. Public Bldg. Com.

OPINION FILED SEPTEMBER 21, 1978.

CORBETTA CONSTRUCTION COMPANY OF ILLINOIS, INC., PLAINTIFF AND COUNTERDEFENDANT-APPELLANT AND APPELLEE,

v.

LAKE COUNTY PUBLIC BUILDING COMMISSION, DEFENDANT AND COUNTERCLAIMANT AND THIRD-PARTY-PLAINTIFF-APPELLANT AND APPELLEE. — (GANSTER & HENNIGHAUSEN, INC., THIRD-PARTY-DEFENDANT-APPELLANT AND APPELLEE.)



APPEAL from the Circuit Court of Lake County; the Hon. FRED H. GEIGER, Judge, presiding.

MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 20, 1978.

Corbetta Construction Co. of Illinois, Inc. (Corbetta), plaintiff-counterdefendant, and Ganster and Hennighausen, Inc. (Ganster), third-party defendant, each appeal from judgments entered against them on the verdict of the jury in favor of defendant-counterplaintiff-third-party-plaintiff Lake County Public Building Commission (Commission); the Commission appeals from a portion of the judgment entered against those parties alleging it is inadequate.

These three appeals evolve from disputes between the Commission, as owner, Corbetta, as general contractor, and Ganster, as architect, over the construction of the Lake County Courthouse complex in Waukegan. Ganster was engaged by the Commission in 1961 for its architectural services in designing the courthouse and allied structures and grounds. These included an administration and office building, a jail building, underground parking garages and plazas. The first phase of construction of this extensive complex consisted of an administration building, an office building and the north plaza and is not a concern of this appeal. Corbetta worked on a portion of the first phase and, in 1967, was awarded the general contract for construction of the second phase at a price of $3,957,300. This included the courthouse, the jail building and a large plaza adjacent to the courthouse on its west side. For a better understanding of the issues involved in this appeal we will describe that construction insofar as it is pertinent.

The west plaza occupied a large, rectangular area approximately 214 feet long on its north-south axis and ranged in width from 81 feet to 124 feet as it extended east and west. It was bounded on the east by the courthouse building, on the north by a rotunda, on the west by the administration building and steps to the street and on the south by the jail building. The plaza was designed to serve as an area in which public events, such as band concerts, could be held and it also formed the roof over underground parking and other facilities. It was supported from below by concrete columns and beams and its eastern edge rested upon a poured concrete beam affixed to the base of the west wall of the courthouse building. That area has been designated in the building plans and specifications as the "K-line" and we will so refer to it here. To provide for the natural expansion and contraction of the concrete and stone plaza which would occur with temperature variations, its design included a one-inch wide expansion joint running through it entirely around its periphery and for two one-inch wide expansion joints running east and west across and through the depth of the plaza. To prevent water leakage the plans and specifications called for the installation of a pliable, waterproof filler known as a Saraloy strip in the east-west expansion joints and, for waterproofing where the plaza adjoined the courthouse, the area designated as the K-line, the plans provided for a waterproof membrane to extend from within the plaza floor up the side of the building for approximately five inches to the bottom of a large, L-shaped angle iron which formed a shelf upon which the exterior stone walls of the building rested. To avoid a sharp turn in the waterproof membrane where it changed direction from the horizontal in the plaza floor to the vertical up the courthouse wall, a pressure-treated wood cant strip was to be installed to shape and support the 45° turn. The one-inch gap remaining between the plaza surface and the bottom of the angle iron supporting the exterior wall of the courthouse was to be waterproofed by filling and caulking.

The jail building is a four-story structure of which the first floor is glass-walled. An overhang, or soffit, formed by the extension of the second floor outward five feet beyond the first floor walls, extends around the building at the level of the second floor and slabs of limestone were installed horizontally under these soffits. The walls of the upper three floors are constructed of cement block and faced with brick; the cement blocks were set directly on the concrete slab of each floor and the face brick comprising the exterior walls rested on shelves bolted to the outer end or face of the concrete floor slabs. These shelves consisted of rightangle pieces of steel of which each leg measured four inches with the vertical legs being bolted to the concrete slab on each floor and the horizontal leg providing a base for the face brick. The first course of brick on each floor was laid on the horizontal leg in a bed of mortar and the exterior brick wall was then built up to the next floor. Because the face of a concrete slab is normally not vertical, metal shims must be installed behind the shelf angles to make the horizontal leg of the shelf-angle level and the walls erected upon them plumb. These shims are horseshoe-shaped and to perform their leveling function must be installed behind the shelf angle with the prongs, or open end, facing down. Corbetta commenced construction of the second phase of the courthouse complex in July 1967 and completed the plaza portion in January 1970 when it was turned over to the Commission. The plaza began to leak in the spring of 1970, particularly through the flashing along the K-line and through the east-west expansion joints with water entering the garage and data processing areas below. Inspection by the Commission, Ganster and Corbetta revealed that the waterproof membrane had not been extended up beyond the plaza surface to the shelf angle at the K-line and that the cant strip designed to support it as provided for in the plans and specifications had been omitted. The inspection also revealed that the two east-west expansion joints through the plaza floor had been completely cemented over and that the Saraloy strip designed to seal the joints and prevent leaks had been omitted.

Corbetta worked further on the plaza and towards the end of 1970 represented to the Commission that all corrections necessary to comply with the plans and specifications in these areas had been completed. By January 1971, however, the leakage problem reappeared and the slate paving stones forming the surface of the plaza and their mortar bed began to crack and crumble. In August 1971 two of the soffit stones, each weighing about 1200 pounds, came loose from underneath the overhang on the second floor of the jail building and one of them fell to the ground.

In the fall of 1971, after litigation had begun and while Corbetta and Ganster were disputing between themselves whether the plaza leaked by reason of faulty design or faulty construction, the walls of the jail began to tilt outward at the top on each floor throughout the building. Gaps were observed on the interior of the building where the ceilings met the walls and bulges in the exterior walls were visible on the outside of the building. The Commission employed structural engineers to examine the walls and openings were made at various locations on the south, west and north exterior walls for that purpose. (The east wall was not opened for examination.) It was determined that the exterior brick walls tilted outward from the vertical up to three-quarters of an inch at their tops on each floor and that the interior cement block walls had also tilted and pulled away from the ceiling and ductwork at numerous places throughout the building. The engineers noted that the base legs of the shelf angles supporting the outer brick walls were not horizontal but tilted downward as much as three-eighths of an inch and that most of the shims behind the vertical legs of the shelf angles had been installed upside down (prongs up) thus causing the horizontal leg of the shelf angles to tilt downward and the walls to tilt out. Also noted were cracks in the walls, loose shelf-angle bolts and excessive face brick overhang on the shelf angles of up to two inches, all contrary to the requirements of the plans and specifications.

In April 1971 Corbetta informed the Commission that it was Ganster's improper design of the plaza and the flashing at the K-line which was causing the problems and proposed that alternate construction methods be undertaken in these areas at extra cost to the Commission. On May 21, 1971, the Commission, however, caused a "3-day notice and schedule of work to be performed" to be served upon Corbetta, as was provided in their contract. It demanded that Corbetta "replace and correct" defective work performed by it on the plaza and attached a schedule listing 10 specific corrections to be made to conform the work to the plans and specifications. Corbetta did not work further on the project but instead initiated this action against the Commission by filing a petition for declaratory judgment against it in which it alleged that it had completed the work properly in accordance with the contract and that the problems in the plaza were the result of defective design and faulty specifications of the architect Ganster. That complaint prayed that the trial court determine whether the defects in the construction were the result of faulty workmanship or the failure of Corbetta to follow Ganster's specifications and, if not its fault, to assure Corbetta it would be paid for any corrective work it might perform. Shortly thereafter Corbetta also notified the Commission it would repair the plaza under new plans and specifications of its own design for an additional cost of $117,400. At this stage Corbetta had already received from the Commission all of the $3,957,300 contract price except for a $28,292 retention of which Corbetta also sought recovery in its declaratory judgment action.

Thereafter the Commission filed its counterclaim against Corbetta to recover damages for plaza defects (subsequently amended to include damages for jail building defects) and filed a third-party complaint against Ganster seeking damages for breach of contract and negligence, alleging Ganster's failure to properly design and supervise the construction as required by the Commission's contract with it.

So the matter stood for approximately three years while the parties sparred over the financial responsibility for correcting the obvious defects affecting the plaza and jail building. During this period of impasse Corbetta declined to make repairs without additional payments beyond the contract price insisting it was Ganster's faulty design which caused the defects. Ganster, on the other hand, insisted that the problems existed solely because of Corbetta's defective work and failure to follow the plans and specifications prepared by Ganster. In January 1972 the Commission sought a court order in this case requiring Corbetta to do all work necessary to install the plaza in accordance with the original plans and specifications and providing that the final responsibility for the work was to be determined at a later trial, but Corbetta would not agree to do so and the court refused to enter the order.

This case finally went to trial on March 12, 1974, with the trial court proceeding first with the Commission's counterclaim. At the conclusion of the three-week trial, the jury returned its verdict against both Corbetta and Ganster assessing the damages as follows: $240,000 against Corbetta and $100,000 against Ganster for damages relating to the plaza and $1,300 against Corbetta and no damages against Ganster for damages to the jail. The trial court dismissed Corbetta's declaratory judgment action and all three parties appealed.

CORBETTA'S APPEAL

We will consider first the issues as they relate to Corbetta's appeal. It contends that it performed its contract and the Commission suffered no damages by it; that the trial court abused its discretion in not proceeding first with the declaratory judgment action; that the judgment for damages to the plaza was excessive; and that it was error to deny Corbetta's petition for change of venue.

Corbetta's argument that it performed its contract with the Commission appears to be premised on its assertion it was always ready and willing to remedy the construction defects as, indeed, it was required to do by its contract, but was prevented from doing so by the Commission. During the long standoff between Corbetta and the Commission, while the defects remained uncorrected, it was the Commission's general position that Corbetta was to proceed and make whatever corrections in the construction were necessary to bring it into strict compliance with the plans and specifications. Corbetta, on the other hand, first claimed that it had so constructed the building and then shifted to a position that the design and specifications prepared by Ganster were defective and that other methods of corrective work must be undertaken at extra cost. Essentially, Corbetta contends the plans and specifications could not be followed because of their defects and, as the Commission had not informed them of any alternate means to correct the defects in the construction, that it had no obligation to do anything.

Corbetta relies upon what it describes as a fundamental rule of law that a contractor must be given an opportunity to correct any deficiencies in his performance before he can be charged with damages. (Risinger v. Cheney (1845), 7 Ill. 84; Vermont Street M.E. Church v. Brose (1882), 104 Ill. 206; Lehmann v. Warren Webster & Co. (1904), 209 Ill. 264, 70 N.E. 600; Spiro v. Cable (1928), 248 Ill. App. 343.) Corbetta contends it had no liability to the Commission because the Commission prevented Corbetta from correcting the construction defects.

• 1 It is apparent, however, that Corbetta's argument must fail. Its primary position throughout was that it had performed as required by the contract and that the problems in the plaza were attributable to design errors by Ganster. Although the evidence clearly established that Corbetta's construction at the K-line was not in accordance with the plans, that it had entirely omitted the east-west expansion joints necessary to the design of the plaza and, further, had used a mortar mix different from that provided for in the specifications, which had crumbled, Corbetta was still unwilling to conform these areas to the contract except at extra cost. The Commission specifically informed Corbetta of the defects causing damage to the plaza in its notice to Corbetta in 1970 and demanded the remedy of those defects be carried out as provided in the building plans and specifications upon which Corbetta's contract was based. Corbetta would not do so. The Commission was entitled to insist upon strict compliance by Corbetta with the plans and specifications and to recover its damages sustained by reason of the contractor's failure to do so. (See Robert G. Regan Co. v. Fiocchi (1963), 44 Ill. App.2d 336, 194 N.E.2d 665, cert. denied (1964), 379 U.S. 828, 13 L.Ed.2d 37, 85 S.Ct. 56; 17A C.J.S. Contracts § 515 (1963).) Corbetta's assertion that it stood ready to correct all construction defects but was prevented from doing so by the Commission is not supported by the evidence. It was only ready and willing at extra cost to the Commission to rebuild the plaza pursuant to different specifications than those it had agreed to in its contract. The understandable refusal of the Commission to accede to Corbetta's proposal cannot fairly be characterized as preventing it from correcting its construction errors.

Corbetta next contends it was error for the trial court to proceed with the Commission's counterclaim first rather than Corbetta's complaint for declaratory judgment. Although this action was first commenced on June 9, 1971, by Corbetta's complaint in declaratory judgment, little effort was thereafter made by any of the parties to bring the case to trial. On August 17, 1973, the trial court on its own motion set a trial date for March 11, 1974, and entered orders requiring the parties to complete depositions and to be ready to proceed at that time. The trial judge recommended to the parties that the issues as presented by the Commission's counterclaim would go forward first and that each of the other parties would thereafter have an opportunity to present all relevant evidence directed to the declaratory judgment action. Corbetta's counsel did not object to this procedure at that time. After the conclusion of the trial by jury as it related to the issues as formed by the Commission's counterclaim, the court heard further evidence relating to the declaratory judgment matter during an additional two days of trial. Thereafter, the trial court considered all of the evidence relating to that issue and dismissed the complaint for declaratory judgment finding that the issues raised thereby had been determined by the verdict of the jury.

Corbetta now contends the trial court should have considered the merits of its declaratory judgment action first so as to avoid accrual of damages by permitting Corbetta to perform any necessary corrective work under the "protection" of the court which would thereafter determine which party was responsible for the cost of such work.

The issues to be resolved in both the declaratory judgment action and the Commission's counterclaim were essentially the same except that the former, as proposed by Corbetta, would consider liability and damages separately. In its action Corbetta claimed it had performed its contract in accordance with the plans and specifications and in a good workmanlike manner and prayed that it be paid for any corrective work undertaken by it. The Commission's counterclaim raised the other side of these same issues by alleging Corbetta failed to conform to the ...


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