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05/31/94 JOHN D. BIELECKI v. PAINTING PLUS

May 31, 1994

JOHN D. BIELECKI, BRIGID M. BIELECKI, AS BENEFICIARIES OF STANDARD BANK & TRUST COMPANY NUMBER 8639, DATED SEPTEMBER 2, 1983, PLAINTIFFS-COUNTERDEFENDANTS-APPELLEES/CROSS-APPELLANTS,
v.
PAINTING PLUS, INC., AN ILLINOIS CORPORATION, DEFENDANT-COUNTERPLAINTIFF-APPELLANT/CROSS-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE THOMAS J. O'BRIEN JUDGE PRESIDING.

As Modified on Denial of Rehearing July 25, 1994. Released for Publication August 2, 1994.

Campbell, O'connor, Jr., Manning

The opinion of the court was delivered by: Campbell

MODIFIED ON DENIAL OF REHEARING

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Defendant, Painting Plus, Inc., (PPI) appeals from an order of the circuit court of Cook County entered June 23, 1992, denying its post-trial motion to vacate the court's order of April 22, 1992. The order of April 22, 1992, granted various relief to plaintiffs, John D. Bielecki and Brigid Bielecki, as beneficiaries of Standard Bank Trust No. 8639, (Bieleckis), regarding a real estate sales contract for the construction of a luxury home. Plaintiffs cross-appeal, requesting an award of attorneys fees. For the following reasons, we affirm the judgment of the trial court.

The record reveals the following relevant facts. On October 22, 1990, Plaintiffs filed a two count complaint against defendant, seeking declaratory relief and specific performance of a contract for construction of a luxury home. On April 5, 1991, plaintiffs amended their complaint to include a count alleging breach of contract.

In count I, plaintiffs alleged that on May 12, 1988, they entered into a real estate sales contract for the purchase of Lot 50 in the Crystal Tree subdivision located in Orland Park, Illinois. Plaintiffs agreed to purchase Lot 50 from defendant for $100,000, and to employdefendant to construct a "French Chateau" model home on Lot 50 for $360,000. On September 7, 1988, plaintiffs paid defendant $100,000 for the purchase of the Lot 50, and defendant conveyed Lot 50 to plaintiffs.

The contract provides that the cost of construction is based upon construction of a single family residence of approximately 4,000 square feet at $90 per square foot. The contract further provides for adjustment to the cost of construction as follows:

"1. * * * Price is based on a 4,000 square ft. home at $90.00 per square ft. Actual square footage and price is dependent upon finished print, and date the construction begins."

Attached to the contract is a "Construction Exhibit" which provides in pertinent part:

"2. Before any construction work, the plans and specifications must be first reviewed and approved by the Crystal Tree Architectural Committee. Seller will assist, but cannot guarantee such approvals. The contract price (estimated on the first page) will be rebid when Purchaser's plans are complete and before submission to the committee. Purchaser must approve the rebid amount. If Purchaser's approval is not received and Purchaser elects to void this agreement, then the money previously paid to the Seller shall be returned, less $10,000.00 to cover Seller's assistance and services in assisting the architect and in presenting Purchaser's plans and specifications.

If, after revisions as may be required by the Crystal Tree Architectural Committee, the cost of this contract shall, (when rebid to accommodate these revisions), exceed 10% of the price approved on the rebid plans, and Purchaser may elect to void this agreement, in which case $15,000.00 shall be retained by Seller and the balance of any money theretofore paid by Purchaser will be returned to Purchaser."

Prior to the preparation of the plans and specifications, plaintiffs requested an additional 680 square feet be added to the French Chateau model, bringing the total square footage to 4,680 square feet. Plaintiffs further ordered additional contract extras totalling approximately $38,520 over and above items originally specified in the contract, but that did not substantially impact the costs of construction on a square footage basis. Plaintiffs offered to pay defendant for the additional 680 square feet ordered in accordance with the terms and provisions of the Contract.

Plaintiffs alleged that the Crystal Tree Architectural Committee reviewed and approved the architect's plans and specifications without change, and consequently, no revisions or additional costs to the construction of the home were required by the Crystal Tree Architectural Committee.

On or about March 30, 1990, defendants demanded that plaintiffs execute an Addendum to the Real Estate Construction Contract (Addendum). The Addendum proposed that defendant would construct the French Chateau model for a total cost of $750,528. Plaintiffs stated that the French Chateau model provided for in the contract is substantially similar to the French Chateau model provided for in the Addendum, and that after contract adjustments for an additional 680 square feet was made at an additional cost of $61,200 (680 square feet at $90 per square foot), and an adjustment made for contract extras totalling $38,520, the net increase in the cost of construction as proposed in the Addendum was approximately $191,800. Plaintiffs alleged that the additional costs demanded by defendant in the Addendum were grossly excessive and unwarranted by the changes in the scope of construction.

The contract provided that defendant commence construction of the French Chateau model between April 1, 1990, and September 1, 1990, and complete construction within one year from the date construction began. Plaintiffs alleged that despite this contractual requirement, and repeated demands by plaintiffs, defendant refused to commence construction for the price stated in the contract, and therefore materially breached the terms and provisions of the contract.

Plaintiffs requested that the court construe the contract and determine the contract prices for construction of the French Chateau model, and declare that defendant is in material breach of the construction contract.

In count II, plaintiffs requested specific performance of the construction of the French Chateau model in accordance with the terms and conditions of the contract, and in the alternative, compensatory damages in the amount of $200,000 plus costs.

In count III, plaintiffs alleged damages in excess of $100,000, by virtue of defendant's numerous breaches of the real estate sales contract, and requested a judgment against defendant, as well as costs and other additional relief.

In response, defendant filed an answer and the affirmative defenses of "no final contract," stating that no final contract existed between the parties, and "satisfaction," stating that defendant has complied with the real estate contract, therefore the agreement that does exist between the parties has been satisfied. In addition, defendant filed a two count counterclaim, alleging that plaintiffs breached the real estate sales contract and that plaintiffs obtained copies of the architectural plans from defendant through misrepresentation.

A bench trial commenced before the trial court on March 11, 1992. Joseph Anthony Bell, president and sole shareholder of PPI, testified as an adverse witness in the plaintiffs' case in chief. Bell initially testified that no "hard date" was ever set for construction of the plaintiffs' home on Lot 50, and that he did not know that the plaintiffs wanted to build the French Chateau model home on Lot 50.

Plaintiffs' counsel showed Bell exhibit 16, the architectural plans prepared by Anderson Associates Architects, Inc. The plans depicted the front, side, and rear elevations of the French Chateau model, and included a basement recreation room which was to house an indoor swimming pool. The plans showed a total building area of 5,343 square feet, including 780 square feet for the recreation area. Bell stated that he prepared an estimate of the cost of construction for the home as shown on the plan, including the recreation area, for $895,600, not including the $100,000 price of Lot 50, which he submitted to plaintiffs in January 1990. Bell stated that plaintiffs did not approve the bid, but instructed him to take the pool/recreation area out and rebid the house.

Bell stated that on March 30, 1990, he submitted a rebid Addendum for construction to the plaintiffs for a total of $750,520, including $100,000 for Lot 50. Bell agreed that the square footage of the floor plan without the recreation area totalled 4,563 square feet, and that PPI was billed $3,000 for revising the architectural plan to remove the recreation area. He stated that he offered the plaintiffs a discount to $740,000 if they signed the contract within 15 days. Bell agreed that the new bid price divided by 4,563 square feet, calculated to a charge of $140.37 per square foot.

Bell stated that plaintiffs never signed the rebid proposal. Plaintiff's counsel showed Bell plaintiffs' exhibit 11, a "sworn contractor's statement," which Bell prepared in response to plaintiff's inquiries as to defendant's method for the pricing of the home. The document listed 37 categories of construction. Bell stated that the document was a "bidding tool," but not a "sworn contractor's statement." Bell referred to the document as "just some of my notations."

Bell admitted that the document failed to specifically identify the subcontractors that were to perform the construction duties, but did assign corresponding dollar values to each category of construction. For example, Bell designated a category for "lumber and materials," totalling $95,000. Bell explained that although the total bid for lumber by Schilling Brothers Lumber was listed as $90,600.70, he raised it to $95,000 as a "contingency" in case he needed additional lumber at the site, explaining that "at this particular point in time, lumber was extremely volatile." Bell further explained, "I made the number up for the lumber, I made the number up for the trim, due to my experience."

Attached to the document for the purpose of backing up the cost of construction were proposals from various subcontractors, including Schilling. Schilling's proposal was doubled by defendant in its bid. For example, Bell's proposal for material and labor for oak stairs totalled $13,500. In addition, the proposal by Schilling called for a circular stair allowance of $10,279.99.

Bell explained the discrepancy by stating that he does not usually get lumber from Schilling because it "is at an extremely far distance from the property," and that "Schilling does not bid it in accordance with the requirements of Orland Park." He stated that he usually gets lumber from "Batty" in Orland ...


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