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06/20/95 ALLSTATE CONTRACTORS v. MARRIOTT

June 20, 1995

ALLSTATE CONTRACTORS, INC., PLAINTIFF-APPELLEE,
v.
MARRIOTT CORPORATION ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Irwin J. Solganick, Judge, presiding.

The Honorable Justice McCORMICK delivered the opinion of the court: Scariano, P.j., and Hartman, J., concur.

The opinion of the court was delivered by: Mccormick

JUSTICE McCORMICK delivered the opinion of the court:

Plaintiff Allstate Contractors, Inc., brought an action for breach of a construction subcontract between itself and defendant Bulley & Andrews, Inc., and foreclosure of a mechanic's lien against property owned by defendant Marriott Corporation. *fn1 Defendant Bulley & Andrews, Inc., counterclaimed for damages allegedly incurred in completing performance of plaintiff's contract. After trial, the jury returned a verdict in favor of plaintiff on the complaint and counterclaim, and awarded $328,000 in damages. Upon defendants' post-trial motion, the trial court ordered a remittitur of the damages to $114,540.81. The trial court also entered judgment on count II of the complaint, against defendant Marriott Corporation, for a lien on the property in the amount of $114,540.81. On appeal, defendants contend as follows: (1) the trial court erred in allowing plaintiff's rebuttal witness, William Golding, to testify as an expert because plaintiff had not disclosed him as an expert pursuant to Supreme Court Rule 220 (134 Ill. 2d R. 220); (2) the trial court erred in denying defendants' motions for judgment notwithstanding the verdict and for a new trial; (3) the trial court abused its discretion in refusing to tender to the jury defendant Bulley & Andrews' proposed instructions Nos. 14, 16 and 18; (4) the trial court should have entered a remittitur lower than $114,540.81 based on defendant Bulley & Andrews' incurred costs to complete performance under plaintiff's contract; and (5) the trial court erred in entering judgment of the foreclosure of the mechanic's lien against defendant Marriott. *fn2 For the reasons set forth below, we affirm the judgment of the circuit court.

Defendant Bulley & Andrews was hired as the general contractor for the construction of the Marriott Courtyard Hotel in Arlington Heights. Bulley & Andrews hired plaintiff as subcontractor to furnish cement for the foundations, floors, walks and curbs. The total amount of the contract between plaintiff and defendant Bulley & Andrews was $243,000. The contract provided that if plaintiff, as subcontractor, failed to remedy any defects in performance after five days' written notice, Bulley & Andrews could terminate the contract. The contract also stated that after termination, the subcontractor would not be entitled to further payment until completion of the work. In the event the cost of completion of the subcontractor's unfinished work exceeded the general contractor's expense, the subcontractor would be responsible for paying the difference.

Problems arose between plaintiff and Bulley & Andrews. On July 17, 1985, the following mailgram was sent to plaintiff from Bulley & Andrews:

"IT HAS BEEN DECIDED BY BULLEY & ANDREWS THAT DUE TO THE QUALITY OF THE CONCRETE SLAB POURS IN THE 'B' WING, THE REMEDIAL WORK NECESSARY TO TAKECARE OF THE PROBLEMS MUST BE RESOLVED BY NOON, FRIDAY, JULY 19, 1985. IN ADDITION, IT MUST BE TURNED INTO ACTION BY 8:00 A.M. MONDAY, JULY 22, 1985. IF THE PREVIOUS IS NOT FOLLOWED, BULLEY & ANDREWS WILL TAKE THE NECESSARY ACTION TO MAKE SURE THAT THESE PROBLEMS ARE RESOLVED IMMEDIATELY. ON THE SLABS IN QUESTION ('B' WING), THE CONCRETE TOLERANCE WILL BE NO MORE THAN �", REPEAT �". FUTURE SLABS IN TOLERANCE WITH SPEC. SECTION #3300, PAGE 20. BULLEY & ANDREWS WILLIAM J. METZ SENIOR PROJECT MANAGER."

Bulley & Andrews later terminated plaintiff on August 2, 1985, sending the following mailgram:

"AS OF THIS DATE BULLEY & ANDREWS IS TERMINATING YOUR CONTRACTUAL RESPONSIBILITIES FOR THE CONCRETE WORK AT THE ABOVE STATED JOB, DUE TO LACK OF COOPERATION, PLANNING & COORDINATION & PERFORMING TIMELY PLACEMENT & QUALITY OF YOUR CONCRETE WORK.

THREE PRESENT ISSUES BROUGHT THIS TO A HEAD: 1. LACK OF EXPOSE AGGREGATE FIELD MOCK-UP 2. NOT STARTING THE SLAB WORK IN THE LOWER LOUNGE AREA OF THE D WING ON SCHEDULE. 3. THE QUALITY OF LAYOUT OF CONCRETE IN RESPECT TO ROOM EDGES.

BULLEY & ANDREWS WILLIAMS [sic] J METZ SR PROJECT MANAGER.

Plaintiff brought an action for breach of a subcontract and foreclosure of a mechanic's lien in June 1986. On defendants' motion, the trial court dismissed plaintiff's three-count complaint for failure to comply with section 2-606 of the Illinois Code of Civil Procedure (735 ILCS 5/2-606 (West 1992)), which requires that the document on which a claim is based be attached to the complaint. Plaintiff filed an amended complaint in February 1987.

Count I of the amended complaint alleged that pursuant to the contract, there remained due and owing plaintiff the amount of $114,540.81, representing $86,900 on the original contract of $243,000 between plaintiff and Bulley & Andrews and $27,640.81 for "extras" (additional work agreements to the contract). Count II of the amended complaint alleged that Bulley & Andrews owed plaintiff $114,540.81 on the contract. Count III alleged that Bulley & Andrews had made certain representations that induced plaintiff to enter into a contract with Material Service Corporation, plaintiff's ready-mix concrete supplier, and that Bulley & Andrews disregarded those representations and paid "a sum of money *** directly to Material Service Corporation." Count III prayed for $114,540.81 in compensatory damages and $100,000 in punitive damages. Upon defendants' motion, count III was later dismissed.

Bulley & Andrews answered the complaint and filed affirmative defenses stating that plaintiff's performance was incomplete and defective, that a setoff was due for the costs Bulley & Andrews incurred to complete plaintiff's performance, and that plaintiff had failed to pay its subcontractors or provide sufficient workmen on the work site. In addition, defendants filed a counterclaim in which defendant Bulley & Andrews alleged that plaintiff breached their ...


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