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J.B. Esker & Sons, Inc. v. Cle-Pa's Partnership

October 10, 2001


Appeal from the Circuit Court of Bond County. No. 94-CH-8 Honorable Ann Callis, Judge, presiding

The opinion of the court was delivered by: Justice Goldenhersh


J.B. Esker & Sons, Inc. (plaintiff), filed a complaint for the foreclosure of a mechanic's lien against Cle-Pa's Partnership (defendant). Defendant filed an answer and a counterclaim. The matter went to trial. Plaintiff was awarded $938 and defendant was awarded $26,145. After a later hearing, defendant was awarded $13,532 in attorney fees and $3,730.77 in costs. Defendant appeals, contending that the trial court improperly declined to award expert witness fees and the full amount of attorney fees. We reverse in part and remand.


On June 1, 1993, the parties entered into a contract wherein defendant agreed to pay plaintiff $238,870 to perform concrete and paving construction for a Grandpa's store in Greenville, Illinois. The contract contained the following clause:

"15.4 ATTORNEY'S FEES. Should either party employ an attorney to institute suit or demand arbitration to enforce any of the provisions hereof, to protect its interest in any matter arising under this Agreement, to collect damages for the breach of the Agreement, or to recover on a surety bond given by a party under this Agreement, the prevailing party shall be entitled to recover reasonable attorney's fees, costs, charges, and expenses expended or incurred therein."

On August 4, 1994, plaintiff filed a complaint seeking the foreclosure of a mechanic's lien against defendant. According to the complaint, defendant defaulted on the final balance due in the amount of $33,403.

Defendant filed an answer, affirmative defenses, and a counterclaim. In its two affirmative defenses, defendant alleged that charges for additional work claimed by plaintiff were not done with change orders as required by the contract and that defendant was entitled to keep the withheld amount, as the contract allowed defendant to keep 10% of its payment until the completion of an inspection and the acceptance of the work by defendant. In its counterclaim, defendant alleged that as a result of unworkmanlike performance by plaintiff, defendant anticipated having to take up a portion of the tile laid on the concrete and level the concrete floor.

The bench trial extended over a period of six days. The trial commenced on January 21, 1998, and was recessed on January 22, 1998. The trial resumed on March 30, 1998, and continued until recessed on April 1, 1998. The trial concluded on June 22, 1998.

Defendant presented the testimony of Dr. W. Gene Corley, structural engineer of Construction Technology Laboratories, Inc., Skokie, Illinois, who testified during two days of the trial. Dr. Corley had traveled to the store, inspected the site, and conducted a series of measurements and tests. He wrote a report on his findings and was deposed on two separate occasions. At the trial, Dr. Corley's testimony included the observations he made on his inspection and a repair estimate of $193,000. Defendant claims that Dr. Corley spent 156.3 hours on the case and that the amount of his bill was $22,925.25.

Over defendant's objection, plaintiff presented the testimony of William Gould, former vice-president of Paul Apt Floor Coverings. Gould testified that in 1994, Paul Apt Floor Coverings presented a repair estimate of $26,145. Gould testified that defendant did not authorize repair work on the estimate.

Plaintiff contended that additional expenses were incurred during construction because the ground was soft and wet. Plaintiff asserted that as a result of the conditions it had to construct an access road, use a concrete pump, and repair a curb. Plaintiff submitted documents regarding the additional work, including an invoice of $938 for curb repair.

At the close of the evidence, the court took the matter under advisement. On October 28, 1998, the court entered an order. The court noted that, including the amount to be paid under the original contract and the additional work performed, the amount requested by plaintiff was $259,291.50. The court stated that defendant paid $224,928.50, which left $34,301 unpaid. The court found that the curb repair was done at the request of defendant, and the court awarded plaintiff $938. However, the court found that plaintiff failed to prove that defendant was responsible for any other additional work performed outside the contract. In regard to the balance remaining under the contract, the court found that plaintiff's performance was defective and that defendant properly withheld 10% from the bill. The court stated, "Judgment is hereby rendered on behalf of Defendant, Cle-Pa's[,] on the Complaint for Mechanic's Lien."

The court awarded defendant $26,145 on the counterclaim. The court stated, "[T]he cement work performed by [P]laintiff breached the contract for construction; however, it is the further finding of this court that the Defendant's request to Plaintiff for continuing the construction[,] despite the knowledge of the faulty concrete, contributed to [the] further inadequacy of the concrete and the eventual damage to the floor of the Grandpa's Store." The court declined to award defendant the amount sought on the counterclaim. The court found that defendant had failed to mitigate damages and had failed to present evidence on diminution of value. The court was also critical of Dr. Corley's testimony, stating:

"Although this court finds Defendant['s] expert testimony to be credible on the issue of lack of adequate manpower on the floor pours, this court finds the remainder of said testimony on the issue of damages not to be credible for the following reasons: [t]he labor rates he used are utilized in union agreements; he did not obtain any estimates from flooring contractors in the Greenville area for removal nor [sic] repair of the tile; [and] he used a labor unit cost of $3.00 per ...

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