Court of Appeals of Illinois, First District, Fifth Division
TRAPANI CONSTRUCTION COMPANY, INC., an Illinois Corporation, Plaintiff-Appellee,
THE ELLIOT GROUP, INC., an Illinois Corporation; ARLINGTON MARKET, LLC, an Illinois Limited Liability Company; and PARKWAY BANK AND TRUST, INC., Defendants (The Elliot Group, Inc., an Illinois Corporation, Defendant-Appellant).
from the Circuit Court of Cook County, No. 09-CH-51534; the
Hon. Franklin U. Valderrama, Judge, presiding.
S. Bellas and Misty J. Cygan, both of Bellas & Wachowski,
of Chicago, for appellant.
Michael J. Wall and John D. Silk, both of Rothschild, Barry
& Myers LLP, of Chicago, for appellee.
JUSTICE REYES delivered the judgment of the court, with
opinion. Justices Lampkin and Burke concurred in the judgment
1 Defendant The Elliot Group, Inc. (defendant),
real estate developer, appeals on order of the circuit court
of Cook County entering judgment in favor of and awarding
$257, 764.70 to plaintiff Trapani Construction Co., Inc.
(plaintiff), a general contractor. On appeal, defendant
asserts the trial court erred in finding a contract implied
in fact existed between the parties because (1) defendant
never accepted plaintiff's offer to provide construction
services, (2) an unsigned draft contract dated July 5, 2007,
required defendant's acceptance by signature, and (3)
defendant sufficiently disclosed to plaintiff it was acting
as an agent of Arlington Market, LLC (Arlington Market), the
owner of the property. For the following reasons, we affirm.
2 I. BACKGROUND
3 In early July 2007, plaintiff sent a draft contract to
defendant indicating plaintiff would provide construction
services to defendant on the property located at Kensington
Road and Dryden Road in Arlington Heights, Illinois (the
property), for a project known as the "Arlington Market
Site Work" (the project). Defendant was listed as the
project owner but did not sign the contract. Nevertheless,
plaintiff commenced and completed the work pursuant to the
terms of the contract. During the course of plaintiff's
performance, payments totaling $2, 042, 846.50 were approved
and made to plaintiff based on its payment requests to
defendant. Plaintiff, however, was not paid in full and
requested defendant pay the remaining $257, 764.70 for its
work performed on the project. Defendant refused.
4 On December 22, 2009, plaintiff filed a three-count
complaint against defendant, Arlington Market, and Parkway
Bank & Trust Co. (Parkway Bank),  alleging foreclosure of
mechanic's lien (count I), breach of contract (count II),
and unjust enrichment, in the alternative (count III). Count
I was dismissed by the trial court, and as a result Parkway
Bank was dismissed from the case. On April 22, 2014, a bench
trial commenced on counts II and III. On April 23, 2014,
plaintiff dismissed its claim against Arlington Market and
proceeded against defendant alone. At the conclusion of
plaintiff's case-in-chief, defendant moved for a directed
verdict. The trial court denied defendant's motion on
count II. Plaintiff voluntarily dismissed count III with
prejudice. Thereafter, on May 7, 2014, plaintiff filed a
one-count amended complaint alleging that defendant's
refusal to pay the remaining $257, 764.70 constituted a
breach of contract implied in fact.
5 No transcript of the bench trial appears in the record on
appeal. The parties, however, stipulated to a bystander's
report that summarized the trial proceedings pursuant to
Illinois Supreme Court Rule 323(c) (eff. Dec. 13, 2005),
which was certified by the trial court. The following facts
were adduced at trial.
6 A. Plaintiff's Evidence
7 Plaintiff presented the following evidence. Plaintiff had
performed work for defendant as a general contractor on other
construction projects prior to this project. On these
occasions, plaintiff had performed under an unsigned contract
and was paid in excess of $18 million by defendant for its
work. Similarly, plaintiff performed under an unsigned
contract and was paid in full by defendant for its work on a
separate building, which was another part of this project.
8 On March 1, 2007, plaintiff submitted a proposal to
defendant to provide construction services for this project.
The proposal indicated plaintiff had "[e]specially
prepared" the proposal for "Mr. Lou Elliott, The
Elliott Group." Thereafter, plaintiff sent five draft
contracts to defendant indicating plaintiff would provide
construction services to defendant for the work at
issue. Defendant was listed as a contracting
party in all five draft contracts. None of the draft
contracts were ever executed.
9 The last draft contract forwarded to defendant by plaintiff
was dated July 5, 2007. Plaintiff's witnesses testified
defendant had provided plaintiff with landscape drawings and
civil drawings for the work at issue and that the drawings
were attached to and made part of the draft contract dated
July 5, 2007. Plaintiff's proposal was also attached to
the draft contract as a "contract document."
10 Plaintiff's witnesses testified that, in early July
2007, plaintiff commenced performing on the work at
issue. Plaintiff's witnesses further
testified the project specifications were provided by
defendant and prepared by third parties hired by defendant.
The project specifications indicated they were prepared at
the request of defendant or the Elliott Home Builders.
Plaintiff's witnesses asserted plaintiff performed
pursuant to the terms and specifications of the draft
contract dated July 5, 2007, and the attached documents.
11 Plaintiff's witnesses also testified plaintiff
followed the procedures set out in the draft contract dated
July 5, 2007, to obtain payment. The payments were made
periodically. For each payment request plaintiff sent to
defendant during the course of plaintiff's performance,
plaintiff submitted to defendant a contract activity report,
a certificate for payment, an application and certification
for payment, an application and certificate for payment, and
lien waivers. All documents listed defendant and plaintiff as
the contracting parties and defendant as the project owner.
Payments totaling $2, 042, 846.50 were approved and tendered
to plaintiff based on the payment requests addressed to
defendant. The contract amount on the draft contract dated
July 5, 2007, matched the amounts on the payment requests and
lien waivers plaintiff submitted to defendant.
12 Maria Weisbruch (Weisbruch), plaintiff's employee,
testified she prepared the documents for the payment
requests. She stated that Mark Elliott, the president of
defendant, would review the payment requests and other
related documents with her. Weisbruch further testified
defendant would "meticulously review" the payment
requests and would often require changes in them before
plaintiff was paid. David Cartwright (Cartwright),
plaintiff's senior vice president, testified defendant
discussed the payment requests with plaintiff.Defendant did not
deny receiving these documents or that payments were tendered
to plaintiff based on these documents.
13 Plaintiff's witnesses also testified plaintiff entered
into subcontracts with subcontractors to perform the work
required by the draft contract dated July 5, 2007. Each
subcontract identified defendant as the project owner and was
observed by defendant.
14 Plaintiff also obtained certificates of insurance for the
work at issue and named defendant as an additional insured.
All certificates were sent to defendant. Further, defendant
was identified as the project owner in certificates of
insurance obtained by third parties who were hired by
defendant to work on the same project. Cartwright testified
plaintiff was required to obtain the certificates of
insurance before it could commence work on the project.
15 Plaintiff's witnesses also testified that during the
course of plaintiff's work at issue, 16 written change
orders were approved by defendant. Each change order
identified defendant as the "owner." Change order
No. 16 was signed by Jon Elliott under "The Elliott
Group, Inc., Owner." Weisbruch testified plaintiff could not
have performed without defendant's approval of the change
16 Plaintiff's witnesses testified construction progress
reports were sent to defendant weekly during plaintiff's
performance until January 18, 2008. Further, plaintiff and
defendant exchanged "numerous" e-mails and
correspondences regarding the work at issue. Thereafter,
plaintiff was not paid in full for its work and requested
defendant to pay the remaining $257, 784.50 it was owed.
Defendant refused. Mark Elliot testified in an affidavit that
Arlington Market and defendant do not contest the amount of
work that was performed by plaintiff.
17 Plaintiff's witnesses further testified defendant
never disclosed to plaintiff that it was acting as the agent
of Arlington Market. Plaintiff's witnesses also testified
defendant never corrected the subcontracts, certificates of
insurance, change orders, construction progress reports, and
the documents for payment requests including lien waivers,
which listed defendant as the project owner.
18 B. Defendant's Evidence
19 Defendant presented the following evidence. Defendant is
an Illinois corporation engaged in the business of real
estate development and consulting. In 2004, defendant entered
into a contract to purchase the property. Defendant
petitioned the Village of Arlington Heights to develop the
property for the project, which the Village of Arlington
20 Thereafter, Arlington Market was formed to own, develop,
manage, and sell the property. It was common practice in the
residential development industry to establish a
"single-purpose LLC" to own the property. In
February 2007, defendant assigned its contract for purchase
of the property to Arlington Market. On February 28, 2007,
Arlington Market obtained a loan from Parkway Bank to finance
its purchase and development of the property. On that same
day, Arlington Market purchased the property. Arlington
Market had no employees and employed defendant to ...