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08/24/88 Fence Rail Development v. Nelson & Associates

August 24, 1988





528 N.E.2d 344, 174 Ill. App. 3d 94, 123 Ill. Dec. 799 1988.IL.1295

Appeal from the Circuit Court of Du Page County; the Hon. Edwin L. Douglas, Judge, presiding.


JUSTICE INGLIS delivered the opinion of the court. NASH and WOODWARD, JJ., concur.


Fence Rail Development Corporation (builder) contracted with Nelson & Associates, Ltd. (architect), for architectural drawings for a single-family residence to be constructed in Naperville. Builder requested plans based on a "Georgian" style house. However, architect furnished initial drawings at the time the foundation was to be poured for a "Brookside" foundation. Builder sued architect in negligence for failure to properly perform his work in a professional manner. Architect counterclaimed for unpaid fees. A bench trial was held in which the court found for builder and entered judgment for $9,506.43 on the complaint. The trial court found for the architect on the counterclaim and entered judgment for $1,103.85 for unpaid fees. Only the judgment as to builder's complaint was appealed. We reverse.

Builder is an Illinois corporation and in the business of building single-family residences. Builder is owned and operated by Thomas W. Mitz (Mitz), who has 41 years of experience in the construction business. Builder has built between 200 to 250 residences since 1980 of which approximately 100 were built in the City of Naperville, Illinois.

Architect is a professional corporation owned and operated by Walter E. Nelson (Nelson). Architect retained all the original plans for builder's homes. For each of architect's revisions of builder's homes, architect would charge a royalty fee and/or a fee for time spent by architect on the revisions. Besides Nelson, architect employed three draftsmen and a secretary.

On March 26, 1986, builder verbally agreed with David and Rita Kane to construct a residence at 1609 Kirby Court in Naperville, Illinois, and accepted a check from the Kanes for $1,000 to preserve the lot and begin work on the design. The Kanes contracted for builder's Georgian II style home with a rear sunroom and other minor modifications. On April 3, 1986, builder and the Kanes executed a written construction agreement.

Mitz then met with Nelson to obtain architect's architectural services relating to the modifications of builder's Georgian II style plans. Mitz and Nelson discussed the style and design of the home builder wanted, and Nelson made notations and markings on an existing Georgian style house plan. Nelson knew that builder's order was for a Georgian style home with a rear addition. Architect's fee for this service was $1,500 plus expenses. At the same meeting, Mitz and Nelson also informally discussed a Brookside style house. The word "Brookside III" was written and then scratched out from the Georgian foundation plan which was present at their meeting. Nelson knew builder's current order was not for a Brookside style house. Nelson admitted that there was confusion in his office as to whether this job was for a Brookside home or a Georgian home.

On April 17, 1986, builder received a building permit from the City of Naperville to build the Georgian style home for the Kanes at 1609 Kirby Court. Within the following week plaintiff had the subject lot excavated. During the last two weeks of April and the first week of May 1986, Mitz contacted architect's office every two to three days for the sole purpose of obtaining foundation plans. Mitz stopped by Nelson's office about six times and called another six times during that interval. Mitz personally spoke with Nelson once or twice about his need for foundation plans. It had been raining, and Mitz was concerned that the walls of the excavation would collapse before the concrete foundation could be poured. Nelson did not recall these conversations or know if Mitz had been speaking with any other personnel of architect's office.

About May 7, 1986, Nelson informed Mitz that he would "red-line" two sets of drawings which could be used to pour the concrete foundation. Nelson does not recall that conversation or any of the other conversations and events relating to the subject job. Nelson does not deliver red-lined drawings for construction purposes as part of his usual and customary procedure. On May 8, 1986, Nelson's secretary informed Mitz that the foundation drawings were ready. Mitz contacted Elliot Construction Company to have a concrete crew ready at the jobsite the following day.

On the next day, Mitz drove to defendant's office and requested the foundation drawings for the subject job. Defendant's secretary handed Mitz a brown, sealed envelope. Mitz immediately drove the envelope to the jobsite and handed it to the concrete crew superintendent. Inside the brown envelope were two identical red-line drawings which had been prepared by Nelson. The drawings contained the rear sunroom addition and other modifications requested; however, Nelson's red lines were drawn on a Brookside foundation plan instead of a Georgian foundation plan. Nelson recalls preparing red-lined foundation plans with a rear addition for the job but does not recall what he did with them. The Brookside style foundation is two feet shorter than the Georgian style foundation.

Nelson could not recall ever preparing a Brookside style plan with a rear addition similar to this job. Mitz stated that he had never before built a ...

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