The opinion of the court was delivered by: Justice Greiman
Appeal from the Circuit Court of Cook County
Honorable Clifford L. Meacham, Judge Presiding.
This appeal follows a bench trial of consolidated actions in the mechanics' lien section of the circuit court of Cook County. The controversies arise out of a construction contract between Fieldcrest Builders, Inc., the general contractor, and Gregory and Jenine Antonucci, the homeowners, for the extensive renovation of and addition to their single-family residence in Glenview, Illinois. B & D Custom Homes, Inc. (B & D), a carpentry subcontractor, and Mayfair Lumber Company (Mayfair), a material supplier, also asserted mechanics' liens.
On October 16, 1998, the trial court entered judgment in favor of Fieldcrest on its quantum meruit count in the amount of $84,148.25, after allowing setoffs for certain claims of the Antonuccis. The trial court also allowed the total lien claim of Mayfair and allowed, in part, the lien claim of B & D. Later, on January 25, 1999, the trial court ordered the Antonuccis to pay costs ($5,673.28) to Fieldcrest. The Antonuccis then filed the instant appeal and, in turn, Fieldcrest filed a cross-appeal.
On direct appeal, the Antonuccis raise five issues as to whether (1) the judgment in favor of the general contractor (Fieldcrest) includes the principal amounts claimed by two subcontractors (B & D and Mayfair); (2) the trial court erroneously failed to deduct from Fieldcrest's judgment the $10,000 paid by the Antonuccis when the construction contract was executed; (3) Fieldcrest's quantum meruit damages should exclude the amounts attributed to overhead and general conditions; (4) the trial court erred in not awarding certain alleged remedial and delay damages; and (5) the trial court erred in taxing costs against the Antonuccis.
For all of the reasons that follow, we remand the matter to the circuit court to find whether the amounts claimed by B & D and Mayfair were included within the amount awarded to Fieldcrest and to determine whether it failed to credit the Antonuccis in the amount of $10,000, i.e., the amount paid at the time the parties entered into the contract. We affirm the trial court's order relating to the damages awarded to Fieldcrest for overhead and general conditions. We affirm the trial court's decision as to the amount of remedial damages awarded to the Antonuccis and the denial of damages for delay. We reverse the order awarding costs to the Antonuccis.
On cross-appeal, Fieldcrest asserts that the trial court erred in denying its claim for a mechanic's lien, failing to award attorney fees under section 17 of the Illinois Mechanic's Lien Act (Act) (770 ILCS 60/17 (West 1994)), and denying its motion for reconsideration for leave to file an amended complaint against Roxanne Malo, alleging tortious interference with contract. We affirm all of the trial court's rulings challenged by Fieldcrest.
In addition, B & D filed a separate brief in this appeal to assert that the Antonuccis waived any issue regarding the validity of the money judgment or mechanic's lien in favor of B & D because the Antonuccis failed to argue the efficacy of B & D's awards in their appellate brief. In its brief, B & D thoroughly detailed the arguments and issues presented by the Antonuccis on appeal, none of which challenge the efficacy of the awards to B & D. Accordingly, the Antonuccis have waived the issue on appeal pursuant to Supreme Court Rule 341(e)(7) (177 Ill. 2d R. 341(e)(7)), which mandates that "[p]oints not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing."
From March 1993 through May 1994, the Antonuccis prepared to have extensive renovations done on their home. Preparations included the hiring of an architect to draw up the plans, the submission of bids by contractors, the modification of the plans to meet the approval of the village, applying for and obtaining building permits from the village, obtaining a construction loan with Harris Bank, and establishing a construction loan escrow trust and disbursing agreement with Chicago Title Insurance Company. Eventually, on April 2, 1994, the Antonuccis and Fieldcrest entered into a building construction agreement in the amount of $846,978. The work was to commence in May 1994 and be completed by March 1995.
On May 2, 1994, after vacating their home, the Antonuccis delivered their house to Fieldcrest for commencement of the project. Throughout the course of the project, problems and concerns developed between Fieldcrest and the Antonuccis. Ultimately, on August 20, 1994, the Antonuccis gave notice to terminate the contract based upon Fieldcrest's alleged breach of the contract, including substandard construction work, lack of proper insurance and failure to maintain a clean and environmentally safe jobsite. On August 22, 1994, Fieldcrest ceased work on the project. Subsequently, the Antonuccis hired another general contractor to complete the project and remediate the allegedly defective work done by Fieldcrest.
Fieldcrest's position regarding the problems encountered on the project was that the drawings and specifications for the project contained deficiencies, inaccuracies and incomplete areas. Errors, such as improper dimensions, caused the architect and others to visit the project site on numerous occasions to resolve the problems and resulted in additional labor and time on the part of Fieldcrest. Fieldcrest also maintained that the deficiencies of the drawings, the delays by the Antonuccis in making certain decisions, and the numerous additional changes made by the Antonuccis increased the costs of the project.
The Antonuccis maintained that Fieldcrest was to blame for the problems on the project, arguing in general that Fieldcrest's workmanship was poor and its performance was deficient. In particular, the Antonuccis contended that the original demolition contractor hired by Fieldcrest engaged in disorderly conduct at the site and then abandoned the project without having performed the work; the house was left open and fixtures were stolen; Fieldcrest had no employees and provided no supervision or oversight of the project; questions arose concerning the supervisor's attention to the work as well as the regularity of his presence on the site; job logs to detail the progress of the project on a daily basis were not prepared correctly, were incomplete, or have been lost; the site was filled with debris; and the quality of the work performed by Fieldcrest was woefully inadequate.
The turning point for the Antonuccis came after a rainstorm during the evening of August 12, 1994, causing water damage to the house because Fieldcrest failed to tarp the open portions of the Antonuccis' home.
The monetary dispute between the parties is premised on the draw requests issued by Fieldcrest to the Antonuccis for progress payments. There is no dispute as to the content of these draw requests and as to the failure of the Antonuccis to pay the second and third draw requests.
The first draw request, dated June 28, 1994, was submitted by Fieldcrest for the amount of $122,500. In July 1994, Chicago Title released funds to Fieldcrest in the amount of $112,500, i.e., $10,000 less than the bill. The $10,000 item that was not paid was listed on the first draw request as a charge for "overhead & fee."
The second draw request, dated August 2, 1994, was never paid by the Antonuccis. The total amount in the second draw request was $97,463, which included the $10,000 amount left unpaid from the first draw request. The second draw request included a contractor's sworn statement, itemizing the work performed, the amount due, and the contractor or subcontractor involved.
The third draw request is dated August 30, 1994, i.e., 10 days after the Antonuccis terminated their contract. The total amount of the third draw request was $198,007, representing the amount unpaid from the second draw ($97,463) and the amount attributed to the work subsequent to the second draw ($100,544). The Antonuccis never paid the third draw request.
In October 1994, the Antonuccis filed a two-count complaint in the law division against Fieldcrest, alleging breach of contract and consumer fraud (case No. 94 L 13633). In December 1994, Fieldcrest filed its answers, affirmative defenses, and counterclaims to the Antonuccis' complaint. In this pleading, Fieldcrest asserted two counterclaims, alleging anticipatory breach of contract and seeking relief under quantum meruit. In its quantum meruit counterclaim, Fieldcrest alleged that between the period April 2 and August 22, 1994, it provided labor, materials and services in the amount of $305,571, and the Antonuccis had paid only $112,500, leaving a balance of $183,071. *fn1 Also in December 1994, Fieldcrest recorded its claim for a mechanic's lien in the amount of $183,071 and filed a complaint in the chancery division to foreclose its recorded mechanic's lien in the amount of $183,071 (case No. 94 CH 11482).
By order dated February 3, 1995, the Antonuccis' complaint at law was consolidated into Fieldcrest's chancery action. The order further provided that the cases would proceed in the chancery division.
In February 1995, the Antonuccis filed their first amended complaint, alleging breach of contract and consumer fraud. In June 1995, Fieldcrest filed its amended complaint, seeking to foreclose its mechanic's lien. Fieldcrest alleged that Antonuccis owe "$183,071, which includes in excess of $17,000 for extra work performed by Fieldcrest at the request and direction of the Antonuccis, pursuant to the" three draw requests. Fieldcrest stated that it recorded its claim for a lien in the same amount ($183,071). After reciting the three draw requests, Fieldcrest stated that, to date, the Antonuccis paid $112,500.
By order dated October 16, 1995, the court renamed the Antonuccis' first amended complaint and exhibits thereto to the Antonuccis' counterclaim. Fieldcrest, in its answer to the Antonuccis' counterclaim, admitted that the Antonuccis "initially paid Fieldcrest $10,000 as an advance under the parties' contract. Further answering, however, Fieldcrest states that in a subsequent draw request, the Antonuccis withheld these same funds from payment to Fieldcrest."
Mayfair recorded a subcontractor's notice and claim for lien against Fieldcrest and the Antonuccis in the amount of $34,388.32, on October 11, 1994. On January 27, 1995, the court granted Mayfair's petition to intervene in Fieldcrest's chancery action and to file its appearance, answer and counterclaim. On June 8, 1995, Mayfair filed its amended counterclaim seeking a mechanic's lien on the Antonuccis' premises (count I) and seeking judgment against Fieldcrest in the amount of $34,388.32 (count II). Mayfair alleged that on June 23, 1994, Fieldcrest entered into an oral contract with Mayfair to furnish and deliver building materials and supplies to the Antonuccis' project and that Mayfair completed its tasks on July 29, 1994. In its interrogatory answers, filed on December 17, 1996, Mayfair stated that it had not received any payment and alleged a lien in the amount of $34,042.78. To its answers, Mayfair attached copies of its invoices to Fieldcrest.
B & D filed a mechanic's lien against Fieldcrest in the amount of $44,158, on November 18, 1994. On February 6, 1996, the court granted B & D's petition to intervene. In its answer, affirmative defenses and counterclaim to Fieldcrest's complaint, B & D asserted that on June 15, 1994, Fieldcrest subcontracted with B & D to furnish certain rough carpentry services for the Antonuccis' project for a price of $52,500. By an additional written change order, B & D's cost increased by $7,780. B & D performed the terms of its subcontract. Fieldcrest submitted a sworn contractor's affidavit to the Antonuccis about September 26, 1994, stating that Fieldcrest had subcontracted with B & D for rough labor in the amount of $60,280 and had paid B & D the sum of $16,127. B & D asserted counterclaims for foreclosure of its mechanic's lien (count I ) and breach of contract (count II). In its answer, Fieldcrest admitted the contract with B & D and the change order. Fieldcrest further admitted the sworn contractor's affidavit of September 24, 1994, but observed that it had paid B & D the sum of $16,122, not $16,127.
In January 1998, concurrent with the bench trial, the court entered judgments in favor of Mayfair and B & D against Fieldcrest only. Specifically, on January 9, 1998, the court entered judgment in favor of Mayfair against Fieldcrest for the sum of $34,042.78, together with costs, for the purposes of Mayfair's count II of its amended counterclaim. Later, on January 21, 1998, the trial court entered judgment in favor of B & D against Fieldcrest in the amount of $37,158 on ...