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03/09/87 Ruth Ann Levan Et Al., v. Dallas Richter

March 9, 1987





Construction Company, Inc., Defendant and


504 N.E.2d 1373, 152 Ill. App. 3d 1082, 105 Ill. Dec. 855 1987.IL.268

Appeal from the Circuit Court of St. Clair County; the Hon. James K. Donovan, Judge, presiding.


JUSTICE KASSERMAN delivered the opinion of the court. JONES and WELCH, JJ., concur.


Plaintiffs, Ruth Ann Levan, Jane Levan, Bert Levan, and Alma Levan, filed a four-count complaint against defendants, Dallas Richter, Jr., d/b/a Richter Swimming Distributors, Inc., and Bauer Brothers Construction Company, Inc., alleging breach of a contract to construct an in-ground swimming pool. The complaint alleged, inter alia, that Richter failed to complete the swimming pool in accordance with contract specifications and that the swimming pool was rendered unusable due to Bauer Brother's negligent installation. Bauer Brothers filed a cross-complaint alleging that because Richter directly supervised and controlled the construction of the swimming pool by Bauer Brothers, Bauer Brothers should be indemnified by Richter for any judgment in the Levans' favor against Bauer Brothers.

Richter filed a two-count cross-claim, alleging: (1) that since Bauer Brothers controlled the manner by which the swimming pool was installed, Richter should be indemnified by Bauer Brothers for any judgment in plaintiffs' favor against it; and (2) that Richter was entitled to damages from Bauer Brothers due to Bauer Brothers' failure to complete the swimming pool. Richter also filed a two-count counterclaim against plaintiffs, alleging: (1) that Richter performed the contract and is entitled to the contract price; and (2) alternatively, that Richter is entitled to 50% of the contract price pursuant to a penalty provision contained in the contract. After a bench trial, the circuit court of St. Clair County entered judgments: (1) in favor of plaintiffs and against Richter and Bauer Brothers in the amount of $6,688.60; (2) in favor of Richter on Bauer Brothers' cross-claim; and (3) in favor of Richter on its cross-claim against Bauer Brothers for indemnification. In addition, Richter was awarded $4,190.18 against Bauer Brothers due to Bauer Brothers' failure to complete the swimming pool. Plaintiffs and Bauer Brothers appeal from these judgments. The facts relevant to each appeal will be set out in conjunction with our Discussion as to each appeal.

On June 6, 1978, the Levans entered into a written construction contract with Richter. This contract provided that in exchange for $12,873, Richter would install a rectangular B-Mark in-ground swimming pool on the Levans' property. Richter warranted that the pool would be free from defects in material or workmanship for a period of one year from the date of completion. The Levans paid Richter $1,300 as a down payment. Richter subsequently entered into an oral contract with Bauer Brothers to construct the Levans' pool. Construction began approximately one week later.

Shortly after excavation began, ground water was encountered at a depth of 6 to 7 feet. Ruth Ann Levan testified that Richter and Bob Weiters, a Bauer Brothers representative, assured her that a "solid" pool could be constructed at the present location. The fact that these assurances were given was corroborated by Richter. In reliance upon these assurances, the Levans had 50 truckloads of dirt and gravel delivered to the site and agreed to increase the dimensions of the pool from 20 by 40 feet to 23 by 42 feet and to increase the depth in the shallow end from 36 inches to 42 inches and the depth in the deep end from 8 feet 6 inches to 8 feet 7 inches. With the exception of the dirt and gravel, the cost of this larger pool was apparently to be borne by Richter.

On Friday, July 12, 1978, the pool was completed and filled with water. By the next morning the water level had dropped over an inch and by the second day by one foot. On Monday, Bauer Brothers drained the pool and broke a hole in the poured concrete floor to determine the cause of the leak. This hole in the pool floor revealed that the floor of the pool at this point was approximately 3 to 4 inches thick. The contract between the Levans and Richter and the B-Mark Pools construction manual specifically provided that such concrete floor was to be at minimum 6 to 8 inches thick. Moreover, the hole in the pool floor revealed that wire mesh reinforcement which was to have been incorporated into the concrete floor in accordance with the B-Mark Pools construction manual was not present. It was further established that several steel rods were to have reinforced and attached the fiber glass walls of the pool to the concrete floor in accordance with the procedure set forth in the B-Mark Pools construction manual. Such rods were not used in construction. The parties acknowledge that the pool cannot be repaired. Richter testified that at the time of the trial in 1984, an identical pool would cost at least $25,000.

Since the plaintiffs were entitled to expect that the swimming pool for which they contracted would hold water (cf. Park v. Sohn (1982), 89 Ill. 2d 453, 433 N.E.2d 651), the pool's failure to hold water was a breach of contract. Consequently, the only question to be resolved is the determination of which defendant is responsible for the breach and the determination of the proper amount of plaintiffs' damages. The evidence concerning the damages of plaintiff was as follows.

Arnold Czechowicz, vice-president in charge of building for Keeley Brothers Construction Company, estimated that in 1980 it would have cost $7,600 to remove all vestiges of plaintiffs' pool and restore the site to its original condition; however, due to increased labor costs, Czechowicz estimated that the 1984 removal and restoration cost had increased 20 to 25%. Although he did not provide a breakdown of the costs upon ...

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