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Stark Excavating, Inc v. Carter Construction Services

March 28, 2012

STARK EXCAVATING, INC.,
PLAINTIFF-APPELLANT,
v.
CARTER CONSTRUCTION SERVICES, INC., DEFENDANT-APPELLEE.



Appeal from Circuit Court of Champaign County No. 06L181 Honorable Jeffrey B. Ford, Judge Presiding.

The opinion of the court was delivered by: Justice Cook

JUSTICE COOK delivered the judgment of the court, with opinion.

Justice Pope concurred in the judgment and opinion.

Presiding Justice Turner concurred in part and dissented in part, with opinion.

OPINION

¶ 1 On September 23, 2010, plaintiff subcontractor, Stark Excavating Inc. (Stark), filed a third-amended complaint against defendant general contractor, Carter Construction Services, Inc. (Carter), alleging breach of contract for nonpayment of the following: (1) extra work for winter protection of the work site, (2) other authorized extras, and (3) retainage. The complaint also included quasi-contractual claims, under the theories of quantum meruit and unjust enrichment, for recovery of winter protection costs. On October 18, 2010, Carter filed a motion to dismiss Stark's third-amended complaint pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2008)). In February 2011, by stipulation of the parties, the court dismissed that portion of count I seeking payment for other authorized extras and retainage. Previously, on February 24, 2009, the trial court granted partial summary judgment in favor of Carter as to Stark's claim for payment for extra work for winter protection of the premises. Following a hearing, on March 29, 2011, the court granted Carter's motion to dismiss and dismissed Stark's suit with prejudice.

¶ 2 Stark appeals, arguing that the trial court erred in granting summary judgment to Carter on Stark's contract claim for winter protection work. Stark also asserts that the court erred in dismissing with prejudice Stark's claims for payment for winter protection work under the theories of quantum meruit and unjust enrichment. We reverse and remand.

¶ 3 I. BACKGROUND

¶ 4 In summer 2005, Carter and Menards, Inc., entered into negotiations to expand the warehouse for Menards' Champaign, Illinois, store. Carter was to serve as the general contractor for the project.

¶ 5 On July 25, 2005, Stark submitted a written proposal to perform concrete, excavation, trench backfill, and site utility work for the expansion project. The bid was for $1,113,590 and specifically excluded "winter protection of concrete or subgrade" and "winter heat." "Winter heat" refers to chemicals added to the concrete mixture by the materials supplier. "Winter protection of concrete or subgrade" refers to steps taken at the jobsite such as warming the subgrade, using heated enclosures or tents, and covering the concrete with insulation blankets or loose straw.

¶ 6 Later that summer, Menards put the project on hold. As a result, Carter requested that Stark review its bid to account for the delay. On August 18, 2005, Stark sent a letter to Carter stating that if the project was to begin in mid-September an additional $2,000 would be needed to perform the concrete work. In the letter, Stark explained that the increase was necessary to "heat and protect the late season concrete."

¶ 7 In October 2005, Menards approached Carter about performing the project during the winter months. As a result, Carter held a meeting with the low-bid subcontractors to discuss the new start date for the project. A representative from Stark attended the meeting. At the meeting, the subcontractors were given the opportunity to submit revised bids. On October 10, 2005, Carter entered into a contract with Menards for the warehouse expansion project.

¶ 8 In a letter dated October 11, 2005, Stark submitted a revised bid for the project. The letter includes an up-charge for winter heat of the concrete, but does not discuss the cost of performing winter protection work. The letter provides in relevant part:

"2) Due to the two-month delay in beginning this project, all concrete utilized for this job will be subject to a winter heat charge by the material supplier. The up-charge associated with this change will be $12,100.00. The $2,000 figure included in my letter dated August 18, 2005 was given based upon a mid September start." (Emphasis in original.)

¶ 9 On October 17, 2005, Stark and Carter entered into a subcontract agreement. Stark agreed to furnish all materials and perform all work necessary to complete the following projects for the warehouse expansion: earthwork, excavating, trench backfill, concrete work, and site utility. The projects were to be completed as per the quote submitted by Stark on October 11, 2005. Paragraph "eighth" of the contract sets forth requirements for the approval of extra work. The paragraph provides in relevant part:

"No extra work additions, deductions, or changes shall be made in the work, nor shall there be any charges for premium time, except upon written order signed by Carter Construction Services, Inc., which order shall specify the amount of additional compensation or credit if any."

¶ 10 Subsequent to the making of the contract, Stark expressed concern to Carter regarding the necessity of performing winter protection work. In a December 2, 2005, letter, Stark stated the following:

"It is the intent of Stark Excavating to fully comply with our contractual obligations per our Subcontract agreement dated October 17, 2005, our proposal dated July 25, 2005, supplemental proposal dated August 18, 2005, and supplemental proposal dated October 11, 2005. ***

***It is our position to move forward with the necessary steps to maintain the project schedule, however, we intend to document all additional costs that fall outside of our contractual obligations as outlined by the aforementioned documents. Upon completion of the disputed work, we intend to resolve our claim as provided by the terms of our subcontract agreement."

¶ 11 In a letter dated December 6, 2005, Carter stated that it would not sign any work orders not preapproved by Menards. The following day, Stark responded that it would not expect Carter to sign work orders for winter protection but "upon completion of the dispute[d] work we intend to resolve our claim as provided by the terms of our subcontract agreement." In his deposition testimony, David Stark, Jr., a project manager for Stark, claimed that the winter protection measures were taken because Kenneth Carter, the chief executive officer of Carter, threatened to remove Stark from the job if it was not quickly completed. Kenneth Carter did not deny this conversation occurred. He merely testified in his deposition he did not recall threatening to remove Stark from the job. Kenneth Carter testified at his deposition he believed Stark was contractually obligated to perform the winter protection measures. In addition, he testified Carter's contract with Menards dated October 10, 2005 (which does not appear to be part of the record), states: "Winter conditions are included in the base bid." By January 2006, Stark had finished pouring the concrete slab for the warehouse.

ΒΆ 12 On August 29, 2006, Stark filed a claim against Carter for breach of contract for nonpayment of the following: (1) extra work for winter protection of the premises, (2) other authorized extras, and (3) retainage. Stark sought $171,262.49 for extra work for winter protection, $6,813.50 for authorized extras, and $126,573.73 for retainage. In response, Carter filed a motion to dismiss under section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2008)). The trial court denied Carter's ...


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