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W.h. Lyman Const. Co. v. Village of Gurnee

OPINION FILED FEBRUARY 27, 1985.

W.H. LYMAN CONSTRUCTION CO., PLAINTIFF-APPELLANT,

v.

THE VILLAGE OF GURNEE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County; the Hon. William D. Block, Judge, presiding.

JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:

This is the second time this case is before this court. (See W.H. Lyman Construction Co. v. Village of Gurnee (1980), 84 Ill. App.3d 28, 403 N.E.2d 1325.) In this appeal, plaintiff claims the trial court erred: (1) in granting the village's motion for summary judgment on count II of plaintiff's third amended complaint; (2) in granting the village's motion for a directed verdict on count I of the third amended complaint; and, (3) in permitting defendant Baxter and Woodman to participate in the proceeding below when there were no claims pending against it.

Plaintiff, W.H. Lyman Construction Company (Lyman), was the successful bidder on a sanitary sewer project advertised by the village of Gurnee (village). Lyman's bid was computed on the basis of certain plans and specifications prepared for the village by the engineering pervising engineer for the project on behalf of the village. Following pervising engineer on behalf of the village for the project. Following completion of the project, Lyman filed a complaint, and later an amended complaint, against the village and Baxter and Woodman, alleging that the village had breached its implied warranty of accuracy and sufficiency of the plans and specifications provided to plaintiff, and that Baxter and Woodman acted negligently in designing certain manhole bases and in administering the contract. As a result, Lyman alleged it was required to expend a significant amount over and above the stated amount of the contract, and sought damages in the amount of $675,000. In the first appeal, this court reversed part of the lower court's dismissal of plaintiff's amended complaint.

Upon remand to the circuit court of Lake County, plaintiff filed its third amended complaint containing two counts against the village and one count against Baxter and Woodman. Count I alleged that the village breached its implied warranty of accuracy and sufficiency of the plans and specifications pertaining to the construction of the manhole bases. Count II sought to recover from the village certain expenses incurred by plaintiff in providing additional granular bedding material over and above the amount specified in the contract. Finally, count III alleged negligence against Baxter and Woodman in designing the manhole bases and in administering the contract. During the course of the proceedings below, the village filed a cross-claim against Baxter and Woodman alleging that if the village was found liable to plaintiff, then Baxter and Woodman was liable to the village based on the contract between the village and Baxter and Woodman. The village's subsequent motion for summary judgment on the cross-claim was granted, and Baxter and Woodman was ordered to indemnify the village should the village be found liable to plaintiff.

Subsequently, the village moved for summary judgment on count II of plaintiff's third amended complaint, relating to damages for the extra bedding material supplied by plaintiff. The motion alleged, in part, that the extra bedding was necessary to maintain the grade level of the pipe and was due to the soil conditions on the site, which this court held were the responsibility of the plaintiff. (See W.H. Lyman Construction Co. v. Village of Gurnee (1980), 84 Ill. App.3d 28, 33, 403 N.E.2d 1325.) The motion also stated that any alleged promise made by John Loete, an employee and engineer for Baxter and Woodman, to pay for the extra bedding was unenforceable as being without consideration and beyond the scope of his authority. After reviewing the pleadings, depositions, and affidavits in the record, and considering the arguments of counsel, the court granted the village's motion for summary judgment on count II. Additionally, plaintiff moved to voluntarily dismiss count III of its complaint and Baxter and Woodman as a defendant. The motion was granted over the village's objection.

The case proceeded to trial on count I of the third amended complaint, which alleged a breach by the village of its implied warranty of the accuracy and sufficiency of the plans and specifications relating to construction of the manhole bases. Baxter and Woodman also took part in the trial. According to the plans and specifications, 10 manholes were to be installed on the project. The manhole base for each was a reinforced concrete structure approximately six feet in interior diameter, with a hole on either side, and an eight-inch wall thickness. The holes in the structures were several inches larger than the outside diameter of the 42-inch reinforced concrete pipe which was to be inserted into the holes at the manhole base. The dispute in count I focused upon the meaning of certain language in the contract which stated:

"Spaces around and under all pipes entering at the bottom of manholes shall be filled with concrete from the outside."

During trial, these spaces were referred to as "annular spaces." The contract also required that the pipe and manholes be installed to a certain line and grade, but was silent as to how this was to be accomplished while filling the annular spaces around the pipe with concrete. Accordingly, plaintiff devised a method whereby brick and mortar were placed in part of the annular spaces around the pipe so as to hold it to the specified line and grade. Then, the concrete was poured into the remainder of the annular spaces. According to plaintiff, the brick and mortar also served to prevent the concrete from flowing back into the manhole bases. When this work was completed, it was discovered that there were leaks in the manhole bases. Plaintiff expended significant amounts in order to rectify the problem.

At the close of the plaintiff's case, the village moved for a directed verdict on count I, alleging that the plans and specifications required that the entire annular space be filled with concrete and that plaintiff's use of brick and mortar was a departure from the plans and specifications. The village further argued that, having departed from the plans and specifications, the plaintiff warranted its work and could not complain of design deficiencies. The trial court granted the village's motion for a directed verdict, finding that the contractual provisions relating to the filling of the annular spaces were unambiguous, that plaintiff did not follow the plans and specifications in that it failed to fill the entire annular space with concrete, and that plaintiff thereby constructed the manholes at its peril and warranted the project as constructed.

• 1 Plaintiff first contends that the trial court erred in granting the village's motion for summary judgment on count II of plaintiff's third amended complaint, pertaining to extra granular bedding material. The contract between the village and Lyman provided, in relevant part:

"BEDDING OF PIPES:

Granular bedding materials shall be uniformly placed and compacted to support the bottom quadrant of all pipes. Bedding materials shall be placed with minimum thicknesses of 4-inches under pipe barrels and 2-inches under bells." (Emphasis added.)

Plaintiff alleged in count II of the complaint that during the course of construction, John Loete, the Baxter and Woodman resident engineer for the village, directed plaintiff to place more than four inches of granular bedding material beneath the pipe. It was also alleged that plaintiff complied with these directions and with a provision of the contract which required that the "Contractor shall proceed to make such changes [in the work] without causing delay." The count further stated that plaintiff was directed by Loete to maintain records of the amounts of additional granular bedding material used, and was assured that the village would pay for such additional material. Finally, count II alleged that the village was aware that extra bedding material was used, and that plaintiff was then informed by Baxter and Woodman that no additional payment would be made.

In its motion for summary judgment, the village alleged that it was the soil conditions that necessitated the use of the extra granular bedding material, that such conditions were the responsibility of the plaintiff, that plaintiff never submitted any proposed change or claim for payment of the extra material, that Loete was without authority to promise payment for the additional material, and that any alleged promise by Loete was contrary to the terms of the contract. Attached to the village's motion were excerpts from the depositions taken by George Lyman, president of Lyman, and Roger Doolin, plaintiff's foreman; these depositions were incorporated by reference into the motion. In their depositions, both Lyman and Doolin stated that Lyman had encountered difficulty in getting a firm bed for the laying of the pipe and that in order to get the firm bed, additional bedding material had to be used. Lyman further stated in his deposition that in a job such as this one, four inches of bedding material was not a usual amount for the laying of the sewer pipe, but that eight inches to two feet would usually be required in ground conditions such as those here. He also stated that Lyman had laid pipe under similar conditions numerous times before, and if additional bedding material was used over and above the amount called for in the specifications, it was always a subject of additional compensation. Finally, during his deposition, Lyman stated that in the instant case, there was ...


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