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09/07/88 Steve L. Shaw Et Al., D/B v. Bridges-Gallagher

September 7, 1988

STEVE L. SHAW ET AL., D/B/A SHAW BROTHERS PACKING COMPANY, PLAINTIFFS-APPELLEES

v.

BRIDGES-GALLAGHER, INC., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

528 N.E.2d 1349, 174 Ill. App. 3d 680, 124 Ill. Dec. 241 1988.IL.1349

Appeal from the Circuit Court of Edwards County; the Hon. Bruce D. Irish, Judge, presiding.

APPELLATE Judges:

JUSTICE CALVO delivered the opinion of the court. HARRISON, P.J., and LEWIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CALVO

Plaintiffs, Steve and Charles Shaw as partners in the Shaw Brothers Packing Company, and defendant, contractor Bridges-Gallagher, Inc., entered into a contract for the construction of a slaughter and meat processing plant. Defendant then hired a subcontractor, McDevitt Roofing, to install the roof of the plant. Defendant completed construction of the plant in 1980, but the roof subsequently leaked. Plaintiffs filed suit against defendant to recover the cost to replace the roof. After a bench trial, the court awarded plaintiffs $18,250. On appeal, defendant argues that the amount of damages awarded to plaintiffs was improper. Defendant presents three issues: (1) whether plaintiffs presented sufficient evidence to establish a proper basis for computing damages; (2) whether the damages awarded to plaintiffs must be reduced to reflect the use and benefit plaintiffs received from the roof; and (3) whether defendant established its defenses of waiver and estoppel, thereby precluding judgment for plaintiffs. For the reasons set forth below, we affirm the judgment of the trial court.

The parties do not dispute that the roof as installed did not comply with the specifications in the contract. The contract provided for a flat roof with two layers of one-hinch thick fiberboard covered with tar and tarpaper made from asbestos. The roof as constructed contained two layers of three-quarter inch fiberboard covered by tar and tarpaper made from organic materials. The price for the roof specified in the contract was $7,959. The parties, through their various expert witnesses, provided four widely varying estimates of the cost to remedy the defects in the roof. Ralph Knigge, defendant's expert, testified that the roof could be patched and retarred for a cost of about $1,400. Knigge also testified that it would cost $10,586 to install a new roof over the existing roof. Plaintiffs' expert, Ralph Shelton, testified that the cost to remove the existing roof and construct a new roof would be $19,000. Shelton also testified, however, that the cost to build a new roof over the existing roof would be approximately $16,500 or $17,000. The court awarded plaintiffs $18,250, but did not specify what this amount included. The record and the parties indicate that the trial court's award probably included $17,000, as testified to by Shelton, for repairing the roof, and $1,250, also testified to by Shelton, for designing the new plans to construct the new roof.

Defendant contends that the trial court should have awarded damages based on the difference in value between the roof specified in the contract and the roof actually constructed. Because plaintiffs did not present any evidence on the value of the roof actually constructed, defendant argues that plaintiffs can only recover nominal damages. Defendant also argues that Shelton's testimony consisted of mere speculation, and thus did not provide a sufficient basis for an award of damages.

When a builder has provided less than full performance, the correct amount of damages is the cost of correcting the defective condition. (Park v. Sohn (1982), 89 Ill. 2d 453, 464, 433 N.E.2d 651, 657; Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 674, 356 N.E.2d 565, 570.) "If, however, the defects could be corrected only at a cost unreasonably disproportionate to the benefit to the purchaser, or if correcting them would entail unreasonable destruction of the builder's work," the measure of damages then should be the difference between the value of full performance of the contract and the value of performance actually received or, in other words, the amount by which the defects have reduced the value of the property. Park, 89 Ill. 2d at 464-65, 433 N.E.2d at 657; Brewer, 42 Ill. App. 3d at 674, 356 N.E.2d at 570.

We hold that the trial court correctly awarded damages on the basis of the cost to repair the roof, rather than the diminution in value of the roof specified in the contract. Correcting the defects would not involve unreasonable destruction of defendant's work inasmuch as the new roof would be constructed over the old one. Moreover, no one testified that the construction of the new roof would in any way harm the rest of the building. Defendant argues, however, that the cost of replacing the roof would be unreasonably disproportionate to the benefit received by plaintiffs because the roof specified in the contract only cost $7,959, while the new roof would cost $17,000. Plaintiffs, on the other hand, contend that the cost to repair the roof in 1987 is not disproportionate if that cost is compared to the $504,989 construction price of the entire building. Plaintiffs also point out that the price of the roof and the building in the contract were determined in 1980, while the cost to repair or replace the roof was determined in 1987. We agree with plaintiffs that the cost to repair the roof is not disproportionate considering the value of the building as a whole. In addition, the contract price of the roof cannot be accurately compared to cost to replace the roof inasmuch as those two figures represent values seven years apart, and inasmuch as the cost to repair a roof would naturally be more in 1987 than in 1980 due to inflation.

We find Witty v. C. Casey Homes, Inc. (1981), 102 Ill. App. 3d 619, 430 N.E.2d 191, which defendant cites for support, distinguishable from the case at bar. The Witty court found that the correct measure of damages in that case was the diminution of value of the building caused by the defect. In Witty, the building contractors used a different kind of brick than was called for in the contract. The court found that the cost-of-repair method for computing damages would be improper because the $50,000 cost to replace the brick would be grossly disproportionate to the $54,566 cost of the building and because replacing the brick would seriously damage other parts of the building. As we have said, in the case at bar, repairing the roof would not harm the rest of the building and would not be grossly disproportionate to the cost of the building or the original cost of the roof. Thus, the trial court properly determined that the appropriate measure of damages was the cost to repair the roof.

Defendant also contends that the trial court improperly based its award of damages on an expert's speculation. A trial court's assessment of damages will not be overturned unless it is against the manifest weight of the evidence. (Pathman Construction Co. v. Hi-Way Electric Co. (1978), 65 Ill. App. 3d 480, 490, 382 N.E.2d 453, 461; Society of Mount Carmel v. Fox (1980), 90 Ill. App. 3d 537, 543, 413 N.E.2d 480, 485.) That assessment "may be upheld if it falls within the range of estimates given by expert witnesses." Society, 90 Ill. App. 3d at 543, 413 N.E.2d at 485.) "Absolute certainty as to the amount of damages is not required" (Society, 90 Ill. App. 3d at 543, 413 N.E.2d at 485), and "the evidence need only tend to show a basis for the computation of damages with a fair degree of probability" (Posner v. Davis (1979), 76 Ill. App. 3d 638, 645, 395 N.E.2d 133, 138). Damages, however, cannot be based on mere speculation or conjecture. Posner, 76 Ill. App. 3d at 645, 395 N.E.2d at 138.

We hold that Shelton's testimony provided a sufficient basis for the court's award of damages. Shelton testified, "If I were to have my company come in and bid the roof . . ., I would first off have to give an offhand guess because I'd -- I'd have to get the pencil and paper out and get very accurate to give the bid but an educated guess would be between sixteen five and $17,000.00." Defendant argues that this testimony proves that Shelton's estimate was no more than a guess. Shelton, however, qualified as an expert in roof repair, having had six years of experience in the area. He examined or repaired plaintiffs' roof five different times between 1983 and 1986, so he was quite familiar with the particular roof in question. George Ridgway testified as to how the new roof could be constructed over the old roof. Although Shelton based his estimate on Ridgway's design of how the repair would be performed, Shelton was present in court and heard Ridgway's testimony. Having worked in the Edwards County area, Shelton was familiar with the costs of labor and materials in that area. In addition, Shelton's estimate only allowed for a $500 deviation.

The evidence presented at trial also revealed that merely patching the roof would not solve the leakage problem. Shelton testified that the insulation was too thin so the field of the roof sat lower than the scuppers which provided drainage off of the roof; thus, the water on the roof could not drain properly. Furthermore, Knigge's estimate of $10,586 may have been too low. Knigge testified that he obtained that price from a union contractor in St. Louis, Missouri. Knigge admitted that the price did not ...


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