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05/24/96 R.W. DUNTEMAN COMPANY v. VILLAGE LOMBARD

May 24, 1996

R.W. DUNTEMAN COMPANY, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,
v.
THE VILLAGE OF LOMBARD, DEFENDANT-APPELLANT AND CROSS-APPELLEE.



Appeal from the Circuit Court of Du Page County. No. 91-MR-0577. Honorable Bonnie M. Wheaton, S. Keith Lewis, Judges, Presiding.

Rule 23 Order Redesignated Opinion and Ordered Published May 24, 1996. Released for Publication July 11, 1996.

The Honorable Justice Rathje delivered the opinion of the court: Doyle and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Rathje

The Honorable Justice RATHJE delivered the opinion of the court:

Defendant, the Village of Lombard (Village), appeals from a judgment entered by the circuit court of Du Page County awarding $111,845 to plaintiff, R.W. Dunteman Co. (Dunteman). Dunteman cross-appeals from the denial of its request for prejudgment interest. We affirm in part and reverse in part and remand.

By way of background, the parties had entered into a construction contract, the terms of which provided that Dunteman would remove and replace a section of roadway located within the Village. A dispute arose as to whether certain work performed by Dunteman was to be compensated at the "pavement removal" rate provided in the contract or at the "special excavation" rate which was the lower of the two rates. The engineer in charge of the work determined that the "special excavation" rate applied, which decision prompted the instant suit.

Dunteman filed a single-count complaint for declaratory judgment. After the Village answered the complaint, Dunteman moved for summary judgment. Judge S. Keith Lewis granted the motion and made the following findings:

"A. A valid and binding contract existed between the parties which is certain in its terms and unambiguous with respect to the work required by [Dunteman].

B. All work in the nature of--

removing and disposing of all existing structures, base, and stabilized sub-base, including resurfaced pavement by this Declaratory Judgment order is classified as 'Pavement Removal' and not 'Special Excavation.'

C. [Dunteman] performed certain work, in an undetermined quantity, in the nature of Pavement Removal and shall be paid according to the contract at the unit price set forth therein for that amount of material removal classified as 'Pavement Removal.'"

The order further provided that Dunteman was to submit a statement to the Village setting forth the quantity of material it removed that was classified as "pavement removal" under the terms of the Judge Lewis' order. The Village was to respond with any objection to the said quantity and the basis for the objection.

Dunteman then served upon the Village a request to admit facts. Dunteman also filed an amended complaint. Count I sought a declaratory judgment as to classification of the work performed. Count II alleged a breach of contract and sought damages based upon the Village's failure to pay Dunteman for the removal of the "pavement structures."

In its response to the request to admit facts, the Village admitted that Dunteman removed the entire surface area of the "Work Area." The Village admitted that there may have been as much as 16,930 square yards of surface area. The Village further admitted that Dunteman removed pavement structures, base, and stabilized sub-base, including resurfaced pavement.

A bench trial was held before Judge Bonnie M. Wheaton. Following the trial, Judge Wheaton made the following findings: that the determination of the engineer as to the payment rate was not binding upon the parties; that the contract price for pavement removal was $10 per square yard; that 16,525 square yards of pavement were removed from the work area; and that Dunteman was entitled to be paid for the removal of the specified surface area, that being 16,525 square yards, at the rate of $10 per square yard.

After subtracting the amounts previously paid by the Village, judgment was entered for Dunteman in the amount of $111,845. Judge Wheaton denied Dunteman's request for prejudgment interest.

This appeal and cross-appeal followed.

The Village contends, first, that Judge Wheaton erred in determining that the engineer's decision as to the payment rate was not binding on the parties in this case. Dunteman responds that engineering decisions made pursuant to contract provisions similar to the one at issue ...


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