United States District Court, N.D. Illinois, Eastern Division
December 6, 2004.
RAYMOND JOHNSON, Plaintiff,
LEE AND RUTH WATTENBARGER, Defendants.
The opinion of the court was delivered by: WILLIAM J. HIBBLER, District Judge
MEMORANDUM OPINION AND ORDER
This dispute arises out of a series of contracts for home
construction and repair work between Raymond Johnson and Lee and
Ruth Wattenbarger. Unfortunately for the parties, the business
relationship soured Johnson claims that the Wattenbargers
required changes to the contract, failed to move a utility pole,
and delayed in approving work and the Wattenbargers claim that
the work was not done or was not done correctly and the
Wattenbargers terminated the contract in May 2000. (Def.Ex. 11).
Johnson then sued the Wattenbargers, alleging breach of contract
(Count I), breach of oral contract (Count II), tortious
interference with business relationships (Count III), tortious
interference with contracts (Count IV), intentional infliction of
emotional distress (Count V), and loss of profits, wages and
income (Count VI). After the Court dismissed Counts III, V, and
VI,*fn1 the parties filed cross-motions for summary
judgment. The Wattenbargers seek partial summary judgment,
arguing that they are entitled to summary judgment on Counts II
and IV. Johnson seeks summary judgment on his entire claim. For the reasons set forth
herein, the Wattenbargers' motion for summary judgment is GRANTED
in part and Johnson's motion for summary judgment is DENIED.
In May 1999, Raymond Johnson contracted with Lee and Ruth
Wattenbarger to perform remodeling work on their home, consisting
primarily of the demolition of the existing garage and the
completion of an addition to the Wattenbargers' home and a new
garage. (Def. Exs. 1-3). Prior to entering the contract, Johnson
and the Wattenbargers negotiated the price to be charged for the
work Johnson was to complete. (L. Wattenbarger Dep. at 6). The
contract called for the Wattenbargers to pay Johnson $3,000 in
advance, $4,500/week for six weeks (the estimated time for
completion of the project), and $20,000 upon completion of the
project. (Def. Ex. 2). The parties incorporated into the contract
blueprints of the Wattenbargers' home with notes detailing the
work to be done. (Def. Ex. 1). The parties also created (and
signed on the same day as the initial contract) a two-paged
typewritten written addendum to the contract that modified some
of the notes on the blueprints and adding some guarantees to the
contract. (Def. Ex. 3). Among the provisions of the addendum is
an agreement that "All payments to contractor, including
materials will not exceed agreed amount." (Def. Ex. 3).
It is not entirely clear from the parties submissions what
happened next. Suffice it to say, that despite the fact that the
work was to begin no later than June 9, 1999 and was estimated to
take no more than six weeks (or until July 21, 1999), the work
had not yet been completed by September 1999. On September 15,
1999, Johnson called the utility company to inquire about
relocating a utility pole, necessary to complete the project.
(Pl. Ex. F1). Johnson argues that Defendants were to have made
this call, and that their failure to make it is the cause of the
delay. (Johnson Dep. at 78). Despite this snafu and the delay it caused, the parties
nevertheless entered into a second contract on September 30,
1999. (Def. Ex. 4). The second contract called for Johnson to
install new siding on portions of the Wattenbargers' home. (Def.
Ex. 4). The Wattenbargers agreed to pay Johnson $6,250 in advance
for materials necessary to complete the project, $3,125 after
Johnson removed the old siding, wrapped the house, and finished
the trim and gutter work, and $3,125 upon satisfactory completion
and inspection of the work. (Def. Ex. 4).
By December 1999, Johnson still appeared to be working on the
initial project and the parties entered into a third written
contract. (Def. Ex. 5). In that contract, Johnson agreed to
finish a ten-foot by ten-foot surface of the Wattenbargers'
driveway in exchange for $5,120, $2,000 of which would be paid in
advance. (Def. Ex. 5). It appears that some time in March 2000,
the parties added a hand-written addendum to this third contract,
noting that "all payments have been made by owner [the
Wattenbargers] . . . and that no liens have been filed against
the homeowners now or in the future." (Def. Ex. 5). The
handwritten note suggests that the last check issued on March 1,
2000 for $1,289. (Def. Ex. 5).
But by May 2000, the relationship between the parties reached a
breaking point. The Wattenbargers blame Johnson for failing to
complete work outlined in the May 1999 and September 1999
contracts. (Def. Ex. 11). Johnson blamed the Wattenbargers for
delays related to the utility pole (Pl. Ex F1, Johnson Dep. at
78) and for other unnamed "intentional delays" (for which he
points to no support in the record). The Wattenbargers terminated
the contracts and this lawsuit followed.
Summary judgment is appropriate when the record shows "that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 91 L. Ed.2d 265 (1986). All facts and inferences are viewed in the light most
favorable to the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In considering cross-motions for summary judgment, the Court must
construe all inferences in favor of the party against whom the
motion under consideration is made. Allen v. City of Chi.,
351 F.3d 306, 311 (7th Cir. 2003). However, the party opposing
summary judgment must go beyond the pleadings and set forth
specific facts showing that there is a genuine issue for trial.
Anderson, 477 U.S. at 250. And neither "the mere existence of
some alleged factual dispute between the parties," Anderson,
477 U.S. at 247, nor the existence of "some metaphysical doubt as
to the material facts," Matsushita Elec. Indus., Co. v. Zenith
Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L. Ed. 2d 538
(1986), is sufficient to defeat such a motion. Further a party
cannot manufacture a conflict by submitting an affidavit that
contradicts an earlier deposition. Piscione v. Ernst & Young,
L.L.P., 171 F.3d 527, 532 (7th Cir. 1999).
The Court turns first to Johnson's motion for summary judgment
on Count I, which merits little discussion. Johnson argues that
there is no dispute that he completed the work described in the
May 1999 and September 1999 contracts. But contrary to Johnson's
claims, there clearly is a dispute: Lee Wattenbarger's affidavit
describes numerous examples of work that was not completed and
Robert Witt testified that Johnson's work was not performed in a
workmanlike manner. The Wattenbargers have submitted evidence to
demonstrate either that the work was not done or that it was not
done correctly, and thus summary judgment in favor of Johnson on
Count I is not appropriate and his motion is DENIED.
Next, the Court examines the parties' motion for summary
judgment on Count II Johnson's claim for $33,000 due to the
breach of the oral contract with the Wattenbargers to use their home as a referral. None of the three contracts signed by
the parties contains a reference to any referral discount being
offered by Johnson to the Wattenbargers. Furthermore, at his
deposition, Johnson repeatedly stated that the three contracts
contained the parties' entire agreements. (Johnson Dep. at 27,
28, 31). Now, Johnson attempts to manufacture a conflict with his
deposition testimony by claiming that the parties did have other
agreements besides the three written agreements, one of which was
an agreement for Johnson to give the Wattenbargers a discount on
the price of the contract in exchange for using their home as an
on-going referral. (Johnson Affidavit ¶¶ 1-3). But a party cannot
manufacture a conflict with a self-serving affidavit that clearly
contradicts prior deposition testimony, and paragraphs one
through three of Johnson's affidavit are therefore stricken.
Amadio v. Ford Motor Co., 238 F.3d 919, 926 (7th Cir. 2001).
Johnson points to no other evidence other than his affidavit to
support his claim that the parties had an oral contract for a
But even were the Court to accept the evidence Johnson puts
forth in his affidavit, the parol evidence rule also bars
Johnson's claim that he and the Wattenbargers had a referral
agreement. The parol evidence rule generally precludes evidence
of understandings not reflected in the contract, reached before
or at the time of its execution, which would vary or modify its
terms. W.W. Vincent and Co. v. First Colony Life Ins. Co.,
351 Ill. App. 3d 752, 757-58, 814 N.E.2d 960, 966 (2004). The
threshold question for the parol evidence rule is whether the
contract is integrated in other words, is the contract the
final and complete expression of the parties' intent. Hessler v.
Crystal Lake Chrysler-Plymouth, Inc., 338 Ill.App.3d 1010,
1019-20, 788 N.E.2d 405, 412-13 (2003). Although none of the
written contracts at issue here contain an integration clause,
the parties negotiated prior to drafting the contract, have
drafted detailed contracts, specifying in detail the price to be
paid, the work to be done, the manner in which the work was to be done, and
the time-frame within which the work was to be completed, and
have signed these contracts. Given that the parties signed a
negotiated instruments that contain the essential terms of their
agreement, it is clear that the parties intended the contracts to
be the final and complete expressions of their agreement.
Geoquest Productions, Ltd. v. Embassy Home Entertainment,
229 Ill.App. 3d 41, 45, 593 N.E.2d 727, 730 (1992) (written documents
that contain the essential terms of an agreement and express the
parties' intent to be bound are integrated); Weber v. DeKalb
Corp., Inc., 265 Ill.App.3d 512, 518, 637 N.E.2d 694, 699 (1994)
(looking to the four corners of the document and the
circumstances of the case to determine whether the document was
integrated). As noted earlier, none of the three written
contracts mention a referral agreement. To the contrary, among
the terms of the contract was a clause that states the price to
be paid by the Wattenbargers would not exceed $50,000. Johnson's
claim of a prior oral agreement to provide a discount in exchange
for a referral by the Wattenbargers alters the essential meaning
of the contract and therefore evidence of this agreement is
barred by the parol evidence rule. Therefore, the Court GRANTS
the Wattenbargers' motion for summary judgment on the portion of
Count II related to the referral agreement and DENIES Johnson's
motion for summary judgment on Count II. Johnson also includes a
claim for breach of an oral contract for $6,020 of additional
work made subsequent to the writing, which is therefore not
barred by the parol evidence rule and this portion of Count II
survives the summary judgment motions.
Last, the Court examines Count IV of Johnson's complaint. In
Count IV, Johnson alleges that the Wattenbargers tortiously
interfered with other contracts held by Johnson by intentionally
causing delays that resulted in the breach of other contracts
that he would have obtained. Under Illinois law, to establish a
cause of action for tortious interference with contract, a
plaintiff must prove: (1) the existence of a legally enforceable contract
between the plaintiff and a third party; (2) the defendant's
knowledge of that contract; (3) the defendant's interference and
unjustified (i.e. malicious) inducement of a breach; (4)
defendant's wrongful conduct caused a subsequent breach by the
third party to the contract; and (5) damages to the plaintiff
resulting from the breach. Kehoe v. Saltorelli, 337 Ill. App. 3d 669,
676-77, 786 N.E. 2d 605,
612 (2003); Fieldcrest Builders
Inc. v. Antonucci, 311 Ill. App. 3d 597, 611, 724 N.E.2d 49, 61
(1999). Johnson's claim fails because he cannot establish the
fourth element of this claim.
The Wattenbargers argue that Johnson cannot even establish that
he had contracts with third parties. The Court disagrees. Johnson
claims that he had contracts with EMJ Development (Keith Beal)
and Lori Dexter to perform construction work at their residences.
During his deposition, Johnson testified that he could not reach
an agreement with Beal regarding the start date of the work and
that the starting date was an integral part of the agreement.
(Johnson Dep. at 87-88). But Johnson also testified that he had
an oral contract with Beal and Dexter. Although Johnson later
contradicted himself, stating that he had "no contract" with Beal
and that he had only negotiated towards a contract, his
deposition testimony does create a dispute as to whether a
contract with Beal did exist. (Johnson Dep. at 82, 88-89).
Similarly, Johnson also contradicts himself when pressed about
his oral contract with Dexter, stating that Dexter told him he
could have the job if he gave her a start date, but that he was
unable to do so and so she contracted with someone else. (Johnson
Dep. at 93). On summary judgment, Johnson changes his tune yet
again. Now he claims that both Beal and Dexter agreed not only to
Johnson's estimate regarding the price to be paid for the
construction work but also that they agreed to a start date,
submitting both Beal's and Dexter's affidavits in support. (Pl.
Exs. B1, C1). Although Defendants' argue there is no dispute of
material fact as to whether Johnson had contracts with third parties, the facts
clearly are in dispute (if only because Johnson sings several
different tunes). Johnson testified at his deposition that he had
an oral contract with Beal. And Johnson submitted affidavits from
both Beal and Dexter evidencing an agreement and understanding.
Although the Court finds the evidence submitted by Johnson at
summary judgment questionable, particularly given the fact that
it wholly contradicts portions of his deposition testimony, it is
not the Court's task at summary judgment to weigh evidence or
make credibility determinations. McGreal v. Ostrov,
368 F.3d 657, 677 (7th Cir. 2004).
However, Johnson cannot establish that the Wattenbargers caused
the third parties to breach the contracts. Johnson claims that
the Wattenbargers intentionally caused delays during the work on
their home so that he could not work on Beal's and Dexter's
projects. In support, Johnson points to his affidavit, in which
he states that the Wattenbargers required him to work solely on
their project before working on other projects. (Johnson Aff. ¶
2c). But nothing in the written contracts between the
Wattenbargers and Johnson imposes such a restriction on Johnson,
and the parol evidence rule bars any extrinsic evidence of this
fact. Johnson points to no other facts to suggest that the
Wattenbargers interference induced a breach. But there is more.
Johnson, in fact, dooms his own claim. In his affidavit, Johnson
states that the delays caused by the Wattenbargers "caused me
to cancel my contracts with Keith Beal and Lori Dexter." (Johnson
Aff. ¶ 13) (emphasis added). In order to establish a claim for
tortious interference with contracts, a plaintiff must show that
the defendant's conduct caused the third party to breach a
contract with the plaintiff. Kehoe, 786 N.E.2d at 612;
Fieldcrest Builders Inc., 724 N.E.2d at 61. Here, Johnson
admits that this did not happen because he, and not Beal and
Dexter, canceled the contracts. Defendants' Motion for Summary
Judgment with regard to Count IV is therefore GRANTED. Plaintiff's Motion for Summary Judgment is DENIED in its
entirety. Defendant's Motion for Summary Judgment on Counts II
and IV is GRANTED in part as specified herein.
IT IS SO ORDERED.