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Plepel v. Nied

OPINION FILED APRIL 20, 1982.

JOSEPH K. PLEPEL, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,

v.

ALEX NIED, A/K/A ALEX NIEDZIALEK, DEFENDANT AND COUNTERDEFENDANT-APPELLANT AND CROSS-APPELLEE. — (LYONS SAVINGS & LOAN ASSOCIATION, DEFENDANT AND COUNTERPLAINTIFF-APPELLANT AND CROSS-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. FRANKLIN I. KRAL, Judge, presiding.

JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 1, 1982.

In an amended two-count complaint against several defendants, including Alex Nied (Nied) and Lyons Savings & Loan Association (Lyons), plaintiff Joseph K. Plepel (Plepel) sought foreclosure of a mechanic's lien on Nied's property, contract damages and certain other relief. Both counts alleged, inter alia, that plaintiff orally contracted with Nied to perform architectural services between June 23 and September 20, 1976, in connection with property located at 40th & Harlem Avenues in Stickney, Illinois, which was then beneficially owned in part by Nied, who subsequently caused the sale of the property to Lyons.

Count I of the amended complaint sought to foreclose on Plepel's original and amended claim for an architect's lien in the amount of $19,249.50, the claims having been attached and incorporated as Exhibits A and B. Count II prayed for judgment on a breach of oral contract theory, claiming damages in the same amount. Subsequent to the commencement of Plepel's actions, Lyons filed a counterclaim against Nied seeking to be indemnified for all expenses, attorney fees and liabilities that it potentially could incur as a result of Plepel's complaint against it and an amended counterclaim consisting of count II seeking to have Nied deposit $25,000 as security, among other things. After a protracted bench trial, on January 13, 1981, the trial court awarded Plepel $13,416.44 plus statutory interest and costs on counts I and II of the complaint. Subsequently, the court allowed Lyons $3,693 for attorney fees and costs on its counterclaim. Default judgments, which had been theretofore entered on February 14, 1980, against two trusts apparently holding legal title to the property, were reduced from $19,249.50 plus interest and costs, to $13,416.44. The February 14, 1980, order contained appropriate language as to finality and appealability (Ill. Rev. Stat. 1977, ch. 110A, par. 304(a)); however, no appeal had been taken from its provisions.

Nied appeals the judgment for Plepel and the allowance of fees on the counterclaim; Lyons appeals the judgment for Plepel; and, Plepel cross-appeals, seeking an increase in the amount of the judgment on count II entered in his favor. The principal issues raised on appeal include whether: (1) Plepel sustained his burden of proof, either on the mechanic's lien or breach of contract count; (2) Plepel could recover on either an express or implied contract, or quantum meruit theory; (3) certain documents were properly admitted into evidence; (4) the award of damages and interest was excessive and against the manifest weight of the evidence; and, (5) an agreement executed by Nied's attorney provided for the allowance of attorney fees as sought in Lyons' counterclaim against Nied. In Plepel's cross-appeal, the issues raised are whether: (1) the award of damages was inadequate and against the manifest weight of the evidence; and (2) the trial court had jurisdiction to reduce the amounts of the final judgments previously entered.

For the reasons which follow, we affirm the judgment as to Lyons' counterclaim; reverse and remand for a new trial as to counts I and II of the amended complaint; and reverse that part of the judgment which amends earlier judgments entered against the trustees possessing legal title to the real estate.

Evidence relevant and material to the issues raised on appeal will be discussed in the body of the opinion.

I

Although out of chronological development, consideration of Plepel's cross-appeal at the outset will help clarify the issues presented for our consideration, since it deals with the threshold issue of whether or not an "express" contract existed. Plepel urges that there was sufficient evidence to support both the mechanic's lien judgment on count I and the judgment for damages on his breach of oral contract in count II based upon an express oral contract. As to count I, Plepel concedes that he cannot claim a lien in excess of that set forth in his recorded claim for lien as against Lyons, a subsequent purchaser by virtue of section 7 of the Illinois Mechanic's Lien Act (Ill. Rev. Stat. 1979, ch. 82, par. 7). He maintains, however, that he was entitled to damages under count II in excess of the amount awarded: his damages should have been computed in accordance with the purported express contract which existed between Plepel and Nied calling for architectural fees of 6% of the final construction costs of $560,000 or $33,600, less the $1,100 amount previously paid to him. He maintains that the trial court's finding that a final design never crystallized and that final construction costs were never determined is against the manifest weight of the evidence.

A. The Contract

The evidence in the record, including Plepel's testimony, Nied's admissions and other testimony, clearly establishes that a contractual relationship existed between Plepel and Nied whereby the former was to render architectural services to the latter. The trial court so found. Less patent are the issues of whether there was a breach of its terms and, if so, whether Plepel sufficiently proved the damages he seeks.

B. The Breach

Plepel claims that the terms of the contract called for payment to him of 6% of the "total cost of construction" in return for his drafting of architectural plans for Nied's proposed improvement. He testified that such plans were in fact drawn, represented by plaintiff's Exhibits 10 and 12 in evidence. His drawings were not completed to the point where they could be submitted for mechanical drawings because of changes being requested. The trial court sustained objections to plaintiff's offer to prove the "cost" of mechanical and electrical drawings yet to be completed.

Mrs. Barbara Miller, then secretary of Lyons and, at the time of trial, its president, testified as an adverse witness under section 60 (Ill. Rev. Stat. 1979, ch. 110, par. 60), that Nied applied to Lyons for a loan and that the loan application was accompanied by plaintiff's Exhibit 10. She ordered an appraisal of the property and, after changes in Exhibit 10 recommended by the appraiser were made, Lyons' loan committee approved the loan "conditionally." The loan was never granted, she asserted, because the conditions were never fulfilled. Arthur Gouvis, an architect, testified that Plepel's plans constituting plaintiff's Exhibit 12 were suitable for bid documents although they lacked ...


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