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February 10, 1994


Appeal from the Circuit Court of Will County, Illinois. No. 91 CH 11593. Honorable William R. Penn, Judge, Presiding

Present - Honorable Kent Slater, Presiding Justice, Honorable Peg Breslin, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Slater

PRESIDING JUSTICE SLATER delivered the opinion of the court:

This is a breach of contract action concerning a construction contract entered into between plaintiff, Michael Oldenstedt, and defendant, Leopardo Construction, Inc. Plaintiff filed a complaint against defendant and others to foreclose a mechanics' lien, alleging breach of contract. The suit was filed in the name of plaintiff's corporation, M. J. Oldenstedt Plumbing Co., Inc. Defendant filed a counter-claim against plaintiff alleging breach of contract. Following a bench trial, the court entered a judgment in favor of defendant against plaintiff individually in the amount of $79,038. Plaintiff appeals, and we affirm.

During the summer of 1991, K-Mart Corporation built a new K-Mart store in Bollingbrook, Illinois. Defendant acted as the general contractor during construction, and plaintiff was a subcontractor of defendant. In March, 1991, plaintiff received certain drawings describing the site utilities (the water main, storm sewer and sanitary sewer) and interior plumbing. Plaintiff agreed to install the site utilities and interior plumbing for $709,500. This bid was communicated to defendant sometime in early May in a phone conversation between plaintiff and Randy Butler, defendant's estimator. Butler told plaintiff that the bid was acceptable and that plaintiff would receive a written subcontract agreement in the mail.

The written contract was drafted May 15 and received by plaintiff on or about May 22. The contract set out the details of the job and plaintiff's responsibilities. The contract apparently contained certain addendums which called for more work to be done by plaintiff. Plaintiff had not contemplated this additional work when submitting his bid. The contract also required plaintiff to comply with defendant's work schedule. Specifically, the agreement stated that plaintiff was required to:

"Supply adequate man power, material and equipment at all times to meet [the] project schedule. * * * Cooperate with the Contractor in scheduling and performing the work to avoid conflict, delay in or interference with the work of the Contractor, other subcontractors, or the Owner's own forces."

Plaintiff signed the contract agreement on or about May 28, but he never delivered it to defendant. However, Louis Cusimano, the principal in charge and project manager for defendant, testified that he had several conversations with plaintiff concerning the written contract during the project. Plaintiff told Cusimano that he had signed the contract and promised to return the executed agreement.

The subcontract agreement called for plaintiff to begin the project on May 27. Plaintiff began the interior plumbing portion of the project on or around this date. According to defendant's work schedule, plaintiff's work was to be completed on July 18. Plaintiff testified that he did not know about this schedule until the middle of June. However, defendant presented testimony that the progress schedule was posted on the wall of the meeting room in defendant's trailer on the job site, and that plaintiff and his partner, George Walker, were in the trailer several times each week. Moreover, plaintiff attended weekly progress meetings during which the job schedule was discussed.

Not long after plaintiff began work on the project, Cusimano and Peter Gronset, the project superintendent, became concerned that plaintiff was working too slowly. Plaintiff did not begin the site utilities work until June 13. Cusimano had numerous conversations with plaintiff at the job site concerning the pace of plaintiff's work. On June 19, June 27 and July 2, Cusimano sent letters to plaintiff stating that plaintiff was in breach of the subcontract agreement by failing to work expeditiously and without delay, and that plaintiff would have to increase progress.

On July 17, Cusimano and Gronset met with Walker because it was clear that plaintiff would not finish his work by July 18 as required by the schedule. The purpose of the meeting was to establish a new schedule for the site utility work. The new schedule gave plaintiff until August 10 to complete his work. Cusimano testified that when he visited the site 10 days later on July 27, plaintiff was already 12 to 14 "crew days" behind schedule. A "crew day" is the amount of work which can be accomplished by one crew in one day. By the last week of July, plaintiff had at least two crews working the site each day.

When plaintiff fell behind the new schedule, Cusimano contacted Elmwood Sewer & Water to supplement plaintiff's crews. Cusimano testified that when Elmwood came to the job site on July 29, plaintiff's crews positioned their equipment to block Elmwood's ability to work. This was disputed by plaintiff. That afternoon, Cusimano delivered a termination letter to plaintiff. The letter stated that plaintiff had breached the contract and that the contract was therefore cancelled.

Following the termination of the contract, defendant hired Elmwood Sewer & Water to complete the site utility work and Cecchin Plumbing & Heating to complete the interior plumbing. Defendant presented evidence that these two companies had to do substantial remedial work to correct deficient work performed by plaintiff, as well as complete the project. Cusimano testified that defendant paid Elmwood $350,000 for labor and materials. Defendant paid Cecchin approximately $86,500.

Plaintiff testified that he had completed 85% of the project when he was terminated. He argued that the value of his work was $667,010. Albert Sarno of Elmwood testified that plaintiff had completed approximately 42% of the site utility work, the major component of the project. Gary Ginter, a licensed engineer, testified that plaintiff had ...

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