2022 IL App (1st) 201043-U No. 1-20-1043 Order filed January 20, 2022 Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ ADVANCE IRON WORKS, INC., ) Appeal from the ) Circuit Court of Plaintiff and Counterdefendant-Appellant and ) Cook County. Cross-Appellee, ) ) v. ) No. 13 CH 21554 ) SCHAEFGES BROTHERS, INC., ) ) Honorable Defendant and Counterplaintiff-Appellee and ) Michael F. Otto, Cross-Appellant. ) Judge, presiding.
JUSTICE LAMPKIN delivered the judgment of the court. Presiding Justice Reyes and Justice Rochford concurred in the judgment.
ORDER
¶1 Held: (1) The jury’s verdict in favor of the general contractor on the subcontractor’s breach of contract claim was not against the manifest weight of the evidence, which showed that the general contractor had performed its obligations under the contract and the subcontractor breached the contract by failing to perform. (2) The jury’s verdict in favor of the subcontractor on the general contractor’s counterclaim for damages was not against the manifest weight of the evidence, which showed that the general contractor failed to prove the damages it sustained as a result of the subcontractor’s breach. No. 1-20-1043
¶2 This is an appeal and cross-appeal from a jury verdict in a breach of contract case that the
subcontractor, plaintiff/counterdefendant Advance Iron Works, Inc. (plaintiff), filed against the
general contractor, defendant/counterplaintiff Schaefges Brothers, Inc. (defendant). The jury
returned a verdict (1) in favor of defendant on plaintiff’s breach of contract claim, finding that
plaintiff had failed to perform under the contract, and (2) in favor of plaintiff on defendant’s
counterclaim for damages allegedly incurred by hiring replacement subcontractors. The trial court
entered judgment on the jury’s verdict.
¶3 On appeal, plaintiff argues that it is entitled to a new trial because the verdict is against the
manifest weight of the evidence. Plaintiff also argues that the trial court abused its discretion by
barring plaintiff’s expert witness from testifying against certain opinions of defendant’s expert and
excluding evidence regarding a contract provision between defendant and the owner of the project.
¶4 On cross-appeal, defendant argues that it is entitled to either a new trial or judgment in its
favor on its damages counterclaim because the jury’s verdict ignored defendant’s damages as
established by the evidence.
¶5 For the reasons that follow, we affirm the judgment of the circuit court.1
¶6 I. BACKGROUND
¶7 This dispute arose from a contract between plaintiff, a steel fabrication and erection
subcontractor, and defendant, the general contractor awarded a contract by the Chicago Park
1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order.
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District (Park District) to build two boathouse buildings. Under their signed written subcontract,
plaintiff agreed to detail, fabricate and erect the steel for the two buildings for $554,000, plus
compensation for changes or additions in the scope of work authorized in writing by defendant.
The architect had made several design changes that affected the steel work, and plaintiff sought a
price adjustment for the extra work. Plaintiff began a portion of the work while the parties tried to
negotiate the price adjustment. After several weeks, the parties failed to reach an agreement on the
price adjustment, and plaintiff informed defendant that plaintiff was placing a “hold” on
performing any additional work due to nonpayment of its invoices. Shortly thereafter, defendant
terminated the parties’ contract, stating that plaintiff failed to comply with the terms and
obligations of the contract and, therefore, was in material breach thereof. Defendant hired two
replacement subcontractors and completed the boathouse project.
¶8 In September 2013, plaintiff sued defendant, alleging defendant breached the parties’
contract by failing to pay for the work plaintiff performed under the contract, by interfering with
plaintiff’s ability to perform the remainder of the contract, and by terminating the contract without
proper cause. Plaintiff alleged it substantially performed under the parties’ contract. Plaintiff
further alleged it suffered damages in the amount of $234,161, which included $63,006 for work
performed prior to the termination of the contract, late payment charges of 2 percent per month,
and $171,155 for lost profits due to lost work production. Plaintiff alternatively raised a claim for
unjust enrichment against defendant where plaintiff performed work valued at $63,006 without
defendant providing compensation for that benefit.
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¶9 Defendant filed an answer, affirmative defenses and a counterclaim against plaintiff to
recover the damages defendant sustained when it incurred increased costs after it was forced to
hire replacement subcontractors. In its answer, defendant denied breaching the contract and
contended that it terminated plaintiff for nonperformance. Defendant raised the affirmative
defenses that plaintiff breached the contract by (1) failing to comply with its scope of work and
fabricate, furnish and install all required structural steel as required by the contract, (2) failing to
provide accurate and complete information in its change order requests, which delayed the
progress of the project and caused defendant to sustain monetary damages that otherwise would
not have been incurred, (3) failing to provide additional supporting information as requested by
defendant and the Park District, which was a condition precedent to the change order requests
being approved and which delayed the progress of the project and caused defendant to sustain
monetary damages, (4) failing to obey and respond to defendant’s directives, which established
milestone dates for the completion of plaintiff’s scope of work and delayed the progress of the
project and caused defendant to sustain damages, and (5) stopping work prior to September 1,
2012, which delayed the progress of the project and caused defendant to sustain damages.
¶ 10 In response, plaintiff denied defendant’s affirmative defenses and denied liability for any
of defendant’s alleged damages.
¶ 11 The parties tried their claims before a jury for nine days in November 2019, and
approximately seven of those days were devoted to testimony. The court and jury heard extensive
testimony from five witnesses on the contested factual issues. Hundreds of pages of project and
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post-project correspondence, documents, emails and standards were discussed before the jury, and
the majority of those documents were admitted into evidence.
¶ 12 The evidence presented to the jury showed that, on April 2, 2012, the Park District issued
for bidding architect drawings for a boathouse construction project to a select prequalified pool of
general contractors and subcontractors. Defendant solicited proposals from a series of trades,
including steel fabrication. However, before the Park District awarded the project to any general
contractor, the architect, on April 17 and 18, 2012, issued revised drawings and specifications that
affected the steel work and were designated as Addendum 1 and Addendum 1 Supplement,
respectively. These revisions were called addendums because they were issued before the Park
District awarded the general contract. On April 25, 2012, plaintiff bid the steel fabrication and
erection work for $438,000, and defendant accepted plaintiff’s bid.
¶ 13 On May 10, 2012, the Park District awarded the project to defendant.
¶ 14 On June 6, 2012, plaintiff submitted an updated estimate to account for the April 17 and
18 design changes on the steel work. This bid included pricing based on the Addendum 1 and
Addendum 1 Supplement, which plaintiff asserted brought the total value of the work to $554,860.
¶ 15 On June 8, 2012, the architect issued further design changes labelled “Bulletin 1”; the
Bulletin designation referred to design changes that were issued after the general contract was
awarded to defendant. Thereafter, the architect issued further design changes on June 14, 2012, in
Bulletin 2; on June 29, 2012, in Bulletin 3; and on July 9, 2012, in Bulletin 4.
¶ 16 Meanwhile, on June 14, 2012, defendant issued a letter of intent to plaintiff, confirming
that it intended to hire plaintiff for $503,000 and would send a contract by June 18, 2012. This
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letter instructed plaintiff to start preparing anchor bolts and setting plates based on the Bulletin 1
drawings. On June 15, 2012, Bulletin 2 was provided to plaintiff. On June 21, 2012, plaintiff,
defendant and the architect met to discuss the Bulletin changes. On July 2, 2012, Bulletin 3 was
provided to plaintiff.
¶ 17 Plaintiff and defendant revised the draft contract and then signed their written construction
contract on July 11, 2012. The contract specified that the price of the described work was $554,000.
Moreover, the described work included the Addendums but did not include the design changes
from Bulletins 1 through 4. The contract stated that an allowance of $51,000 had been included in
the $554,000 amount for the Addendum 1 design changes. The contract acknowledged that
plaintiff would submit change order requests for defendant’s approval based on the Bulletins
issued by the architect concerning further design changes.
¶ 18 The scope of plaintiff’s work under the contract consisted of three aspects: (1) detailing,
which includes the preparation of shop drawings, (2) fabrication, which involves the cutting and
preparing of the steel as specified on reviewed and approved shop drawings, and (3) erection of
the steel. The steel could not be fabricated until plaintiff produced the shop drawings and submitted
them to the architect or structural engineer for their review and approval.
¶ 19 In a July 11, 2012 email, defendant instructed plaintiff to prepare shop drawings based on
the drawings of Bulletins 1 through 3. In response, plaintiff’s principal, Robert Sutphen, stated that
he would prepare the shop drawings based on Bulletin 1 only, even though the direction was for
Bulletins 1, 2, and 3.
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¶ 20 On July 13, 2012, plaintiff issued a purchase order to a detailer whom plaintiff had hired
to prepare the shop drawings. A detailer takes the owner’s and architect’s drawings and
specifications and works with the fabricator to develop a computer model from which shop
drawings and erection drawings can be generated. The shop drawings indicate where the fabricator
needs to cut, drill or weld the steel in the fabricator’s shop and where the fabricator needs to make
connections to hold the steel in place when it is erected at the job site. Plaintiff’s instructions to
the detailer pertained only to Bulletin 1 and indicated that Bulletin 2 was on hold.
¶ 21 On July 14, 2012, plaintiff issued change order requests to defendant regarding price
increases due to the design changes in Bulletins 1 and 2. On July 15, 2012, plaintiff issued change
order requests regarding Bulletins 3 and 4. Defendant, however, did not approve plaintiff’s change
order requests. After the Park District and architect asked plaintiff for more detail to justify its
price increases, plaintiff submitted two revised requests by July 26, 2012. As revised, the sum of
plaintiff’s change order requests was $460,916.20, which, when added to the $554,000 base
contract price, meant that plaintiff was seeking $1,014,916.20 for its work on the project.
¶ 22 On August 8, 2012, plaintiff submitted erection drawings to defendant for review, but
defendant treated them as shop drawings and rejected them.
¶ 23 Meanwhile, the Park District and architect reviewed plaintiff’s change order requests and
had multiple discussions over several weeks with defendant concerning the matter. Defendant
conveyed that information to plaintiff. As weeks went by, defendant tried to work with plaintiff
and respond to the questions being raised by the Park District and the architect. The Park District
and architect asked plaintiff to provide its bid documents, i.e., the calculations plaintiff used to
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prepare its bid for the project. Plaintiff, however, refused to provide that information despite an
offer of a confidentiality agreement.
¶ 24 The Park District concluded that the design changes under the Bulletins were not as
substantial as plaintiff claimed and much of the pricing that plaintiff was requesting as extra work
was actually work that had already been included in the original construction documents plaintiff
had reviewed when it made its initial bid. Specifically, a few of the two buildings’ 35 columns
were lengthened, which changed some of the dimensions, but the buildings’ footprints did not
change. The Park District ultimately authorized an additional $301,779 for the steel work based
on the Bulletin design changes, and that offer was made to plaintiff on August 25, 2012. Plaintiff
rejected that offer and sent defendant correspondence on August 27, 2012, confirming plaintiff’s
refusal to accept the Park District’s offer. The Park District, architect and defendant never
approved and authorized plaintiff’s proposed pricing for the full scope of the work, including the
extra work described in the Bulletins.
¶ 25 On August 28, 2012, which was about seven weeks into the project, plaintiff sent defendant
an email confirming that the basic work of making the shop drawings was not complete. As of that
date, the drawings were only 90 percent complete with respect to building A and 70 percent
complete with respect to building B. Plaintiff had designed, fabricated, and delivered portions of
its scope of work that had been approved by defendant. Plaintiff also had sent defendant a total of
five invoices requesting payment for its completed work and for prepayment of materials for
subsequent work. The only shop drawings plaintiff completed related to the anchor bolts and
setting plates, which would be used at the base of a column as part of the foundation, and the only
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steel that was fabricated was the anchor bolts and setting plates. The shop drawing preparation for
that work represented less than 5 percent of the total contract, and the fabrication of the anchor
bolts and setting plates represented less than one percent of the total contract. Plaintiff never
performed any erection work.
¶ 26 On September 5, 2012, plaintiff sent defendant an email that confirmed the limited work
plaintiff had completed and informed defendant that plaintiff was placing a “hold” on performing
any additional work due to nonpayment of plaintiff’s invoices. In a letter dated September 27,
2012, defendant terminated the parties’ contract, stating that plaintiff failed to comply with the
terms and obligations of the contract and, therefore, was in material breach thereof. The letter
advised plaintiff that defendant agreed to pay plaintiff’s “actual out of pocket costs for material
purchased and time expended as of September 21, 2012, along with associated overhead and profit
for this work.”
¶ 27 Plaintiff argued to the jury the evidence established that plaintiff did all the work it possibly
could do under the July 11 contract because, even though the architect’s design revisions prevented
the progress of the job, plaintiff still priced those revisions and began generating the drawings,
which were almost complete but could not be finalized until the parties resolved the pricing
dispute. Plaintiff also argued that defendant and the Park District were trying to take advantage of
plaintiff by failing to pay plaintiff’s invoices, withholding approval for plaintiff’s pricing of the
extra work and forcing plaintiff to do the extra work without sufficient compensation. Plaintiff
argued that defendant breached the contract by terminating plaintiff without cause before the
completion of the work.
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¶ 28 Defendant argued to the jury the evidence established that plaintiff had underbid the
project, failed to honor their contract by performing the work for the agreed amount of that
contract, and tried to use the extra work as an opportunity to recapture some money plaintiff
believed it had “left on the table” when it made its erroneous bid. Defendant argued that plaintiff
tried to force the issue and obtain its pricing by “slow walking” the project, failing to cooperate
and failing to perform.
¶ 29 The jury rendered a verdict on plaintiff’s breach of contract claim in favor of defendant,
finding that defendant proved it had performed its obligations under the contract and plaintiff had
breached the contract by its failure to perform. Regarding defendant’s damages counterclaim, the
jury rendered a verdict in favor of plaintiff, finding that defendant did not prove it sustained
damages resulting from plaintiff’s breach.
¶ 30 Thereafter, defendant moved the court to either award defendant damages on defendant’s
counterclaim or conduct a new trial limited to the damages issue. Defendant argued that the jury
ignored the evidence that proved defendant incurred damages when it hired replacement
subcontractors after it terminated plaintiff for failure to perform.
¶ 31 Also, plaintiff moved the court for either a judgment notwithstanding the verdict or a new
trial, arguing that (1) the trial evidence overwhelmingly favored plaintiff on the issue of
performance, and (2) the trial court committed reversable error when it barred plaintiff’s principal
from addressing certain opinions of defendant’s expert witness and barred evidence about terms
of the contract between defendant and the Park District regarding the resolution of disputes on a
time and material basis.
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¶ 32 On September 3, 2020, the trial court heard argument on the parties’ posttrial motions and
denied both motions. The court stated that the evidence supported the jury’s verdict on plaintiff’s
breach of contract claim where the day after the contract was signed, defendant directed plaintiff
to use Bulletins 1 through 3 for the shop drawings but plaintiff instead instructed its detailer to
prepare the shop drawings using only Bulletin 1. The court also ruled that no error occurred
regarding the exclusion of certain evidence. Finally, the court stated the jury was well within its
discretion in reviewing the evidence, evaluating whether defendant made a sufficient showing of
its exact damages, and concluding that defendant failed to meet its burden of proof.
¶ 33 Plaintiff timely appealed, and defendant timely cross-appealed.
¶ 34 II. ANALYSIS
¶ 35 A. Breach of Contract
¶ 36 Plaintiff argues the trial court abused its discretion when it denied plaintiff’s motion for a
new trial because the jury’s conclusions that plaintiff failed to perform under the contract and
defendant did not breach the contract were not supported by the evidence. Plaintiff argues the clear
evidence showed that defendant did not instruct plaintiff to proceed to prepare shop drawings
based on Bulletins 1 through 3 until August 13, 2012. Furthermore, plaintiff’s contract stated that
plaintiff would perform changes and additions in the scope of work only upon prior written
authorization from defendant with terms about compensation, and the evidence established that the
parties never agreed about the compensation for the extra work specified in Bulletins 1 through 4.
Also, defendant did not sign any of plaintiff’s four change order requests. Plaintiff argues the
evidence showed that defendant breached because defendant did not pay any of plaintiff’s five
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invoices, did not pay any part of the $554,000 on a monthly basis, did not prepay 10 percent of the
contract price, and did not prepay the mill order even though defendant authorized the mill order.
¶ 37 It is within the sound discretion of the trial court whether to grant a motion for a new trial,
and the trial court’s decision will remain undisturbed absent a clear abuse of that discretion.
Villa v. Crown Cork & Seal Company, 202 Ill. App. 3d 1082, 1089 (1990); see also In re Marriage
of Carpenter, 286 Ill. App. 3d 969, 973 (1997) (an abuse of discretion occurs where no reasonable
person would take the view adopted by the trial court). When such a motion is presented, the
relevant inquiry is whether the verdict rendered is against the manifest weight of the evidence.
Knight v. Haydary, 223 Ill. App. 3d 564, 573 (1992). “A verdict is against the manifest weight of
the evidence when an opposite conclusion is clearly apparent or when the jury verdict appears to
be arbitrary and unsupported by the evidence.” Id. “A court of review must consider the evidence
in the light most favorable to the appellee when determining whether a jury verdict is against
the manifest weight of the evidence.” Id.
¶ 38 “The issue as to which party breached the contract is a question presented to the trier of
fact, and its finding will not be disturbed unless it is contrary to the manifest weight of the
evidence.” Neibert v. Schwenn Agri-Production Corp., 219 Ill. App. 3d 188, 190 (1991).
To recover for breach of contract, a party must prove (1) the existence of a valid and enforceable
contract, (2) performance by the party, (3) breach of the contract by the opposing party, and
(4) damages to the party resulting from the breach. W.W. Vincent & Co. v. First Colony Life
Insurance Co., 351 Ill. App. 3d 752, 759 (2004).
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¶ 39 Regarding the issue of plaintiff’s performance, the record shows that on July 11, 2012, the
same date the parties’ contract was signed, plaintiff failed, despite defendant’s direction, to prepare
the shop drawings based on the most current Bulletins. Specifically, plaintiff’s principal Sutphen
admitted that plaintiff was in possession of Bulletins 1 through 3 prior to signing the contract with
defendant on July 11, 2012, and that plaintiff had received from defendant on July 11, 2012,
direction to prepare the shop drawings based upon the drawings of Bulletins 1 through 3. Sutphen,
however, responded to defendant’s direction by stating that plaintiff would use only Bulletin 1 to
prepare the shop drawings. Furthermore, plaintiff’s noncompliance was shown in plaintiff’s July
13, 2012 purchase order to its detailer, which had instructions that pertained only to Bulletin 1 and
indicated that Bulletin 2 was on hold.
¶ 40 Plaintiff’s performance failure persisted throughout its presence on the project. As late as
August 28, 2012, the shop drawings still were not complete. The boathouse buildings were
designed with a steel membrane, and the evidence showed that the structural steel was an integral
and material component of the buildings. Plaintiff’s failure to perform delayed the construction
schedule and overall project because the buildings could not be constructed until the structural
steel was fabricated and erected. Moreover, plaintiff’s fabrication was limited to partial anchor
bolts and setting plates.
¶ 41 Plaintiff had the burden to prove performance and failed to sustain that burden because, as
Sutphen admitted, plaintiff did not fabricate, furnish and install all the required structural steel.
“A failure to perform is a material breach where the covenant not performed is of such importance
that the contract would not have been made without it.” United States Fidelity & Guaranty
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Company v. Old Orchard Plaza Ltd. Partnership, 284 Ill. App. 3d 765, 776 (1996). A material
breach of contract constitutes the “failure to do an important or substantial undertaking set forth in
a contract.” Mayfair Construction Company v. Waveland Associates Phase I Ltd. Partnership,
249 Ill. App. 3d 188, 202-03 (1993). Whether a material breach of contract has been committed is
a question of fact. Mohanty v. St. John Heart Clinic, S.C., 225 Ill. 2d 52, 72 (2006).
¶ 42 Plaintiff claims it had a valid excuse for suspending work when its invoices were not paid
within thirty days. However, a “party who materially breaches a contract cannot take advantage of
the terms of the contract which benefit him, nor can he recover damages from the other party to
the contract.” Dubey v. Public Storage, Inc., 395 Ill. App. 3d 342, 361-62 (2009). “A contractor
whose work amounts to less than substantial performance may not recover on the contract. Under
such circumstances, a contractor may recover under a quasi-contractual theory for the reasonable
value of its services rendered less any damages suffered by the purchaser.” W. E. Erickson
Construction, Inc. v. Congress-Kenilworth Corp., 132 Ill. App. 3d 260, 264 (1985).
¶ 43 Here, the jury learned that defendant paid plaintiff and its detailer for the limited work that
could be verified. Thus, the evidence established that plaintiff was fully compensated for the
nominal work it performed.
¶ 44 The evidence establishes that plaintiff was provided with all the information about the
drawings, answers to its questions and the direction to proceed. Plaintiff, however, still refused to
produce the shop drawings, which prevented the fabrication and erection of the structural steel.
¶ 45 The jury heard the testimony of the witnesses and viewed the evidence presented. It was
the jurors’ prerogative to draw reasonable inferences and ultimate conclusions from that evidence.
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See Finley v. New York Central R.R. Co., 19 Ill. 2d 428, 436 (1960). An election between
conflicting evidence and the assessment of credibility of the witnesses were properly questions for
the jury’s resolution. Brooks v. City of Chicago, 106 Ill. App. 3d 459, 464 (1982). The verdict will
not be altered merely because the jury could have found differently. Lee v. Grand Trunk Western
Railroad Company, 143 Ill. App. 3d 500, 512 (1986). We have reviewed the record and find the
jury’s verdict to have been properly supported by the evidence. Thus, we have no basis upon which
to disturb its findings.
¶ 46 B. Excluded Evidence
¶ 47 Plaintiff argues that it is entitled to a new trial because the trial court made serious and
prejudicial errors concerning the exclusion of evidence. Specifically, plaintiff challenges the
court’s rulings that (1) barred Sutphen from expressing certain opinions that were critical of some
of the enumerated opinions of defendant’s expert, Kenneth Floody, and (2) precluded plaintiff
from making any reference to the provisions of defendant’s contract with the Park District.
¶ 48 “Generally, a reviewing court will not reverse a jury verdict due to error in the admission
of evidence unless there has been a denial of real justice. [Citation.] Not every error requires
reversal; where it appears that an error did not affect the outcome in the trial court, or where the
reviewing court can see from the entire record that no injury has been done, the judgment will not
be disturbed. [Citation.]” Schuchman v. Stackable, 198 Ill. App. 3d 209, 228 (1990).
¶ 49 First, plaintiff argues the trial court abused its discretion when it precluded plaintiff’s
expert, Sutphen, from expressing his disagreement with the portion of Floody’s 22 itemized
opinions that did not involve his use of RSMeans, a database of cost estimates for many facets of
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construction projects. Plaintiff argues the court’s ruling prevented plaintiff from responding to
Floody’s primary opinions. Furthermore, according to plaintiff, defendant cleverly avoided any
reference to RSMeans during Floody’s trial testimony and used only the portion of his 22 opinions
that did not mention RSMeans. Plaintiff contends it disclosed Sutphen’s contrary opinions to
preserve its right to have him respond at trial to Floody’s opinions and explain why Floody was
wrong. Plaintiff argues that this error was extremely prejudicial to plaintiff and warrants a new
trial.
¶ 50 According to the record, the court set the trial date for November 4, 2019; ordered plaintiff
to disclose its experts by September 3, 2019, and present them for deposition by September 24,
2019; and ordered defendant to disclose its experts by October 15, 2019, and present them for
deposition by October 31, 2019. The parties waived the local rule that required completion of
discovery within 60 days before trial.
¶ 51 Defendant disclosed Floody on October 15, 2012, and disclosed 22 opinions held by
Floody, which mentioned his use of RSMeans methodology as a basis to support some of his
opinions. On October 21, 2012, plaintiff requested leave to serve a rebuttal disclosure the day of
Floody’s October 29, 2019 deposition. The trial court granted plaintiff leave but ruled that the
scope of the rebuttal was limited to issues pertaining to RSMeans.
¶ 52 After Floody’s deposition, plaintiff, pursuant to Supreme Court Rule 213 (eff. Jan. 1,
2018), served second supplemental answers to defendant’s Rule 213(f)(3) interrogatories. Part of
this disclosure was a rebuttal of Floody’s use of the RSMeans database, but the disclosure also
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stated that Sutphen disagreed with Floody’s 22 opinions and elaborated in 22 items on the basis
for Sutphen’s disagreement.
¶ 53 On October 30, 2019, defendant moved the court to bar plaintiff’s rebuttal opinions other
than RSMeans or in the alternative grant defendant leave to serve surrebuttal opinions and continue
the trial. Defendant argued the 22 itemized portion of the disclosure was not proper rebuttal
because it was not limited to the issue of the RSMeans methodology, was disclosed too close to
trial, and was not raised when plaintiff sought leave to disclose rebuttal opinions. At the November
1, 2019 hearing on the parties’ pretrial motions, plaintiff argued that its disclosure had been
erroneously designated as rebuttal and did not actually constitute a rebuttal.
¶ 54 The trial court granted defendant’s motion, struck everything from plaintiff’s disclosure
unrelated to RSMeans, and clarified that Sutphen would be able to testify to any timely disclosed
opinions.
¶ 55 A court’s evidentiary rulings are not reviewable on appeal unless properly preserved.
Thornton v. Garcini, 237 Ill. 2d 100, 106 (2009). When the court makes its rulings before trial in
response to the parties’ motions in limine, the rulings are interlocutory and remain subject to
reconsideration throughout trial. Cetera v. DiFilippo, 404 Ill. App. 3d 20, 40 (2010). Although
plaintiff raised this issue in his posttrial motion, that was not sufficient to preserve the issue for
appeal. Cf. Simmons v. Garces, 198 Ill. 2d 541, 569 (2002) (denial of the complaining party’s
pretrial motion to exclude evidence was not sufficient to preserve the issue for appeal, the
complaining party also must make a contemporaneous objection at trial when the evidence is
introduced to allow the trial court the opportunity to revisit its earlier ruling). Plaintiff’s failure to
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ask the court to reconsider its interlocutory ruling during the trial results in forfeiture of the issue
on appeal. Palm v. Lake Shore Drive Condominium Ass’n, 2013 IL 110505, ¶ 26 (forfeiture applies
when an issue is not raised in a timely manner).
¶ 56 Although plaintiff contends the trial court’s ruling eviscerated plaintiff’s ability to respond
to Floody’s primary opinions, plaintiff’s appellate brief does not specify the opinions, testimony
or evidence encompassed by the Rule 213 disclosure that plaintiff did not present at trial. Nor does
plaintiff cite to the trial record to show which aspects of Floody’s testimony were not addressed
by Sutphen. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020); Hall v. Naper Gold Hospitality LLC,
2012 IL App (2d) 111151, ¶ 12 (“failure to provide proper citations to the record is a violation of
Rule 341(h)(7), the consequence of which is the forfeiture of the argument”). Furthermore, at trial,
plaintiff did not attempt to recall Sutphen as a rebuttal witness when the defense rested. Similarly,
plaintiff did not request or submit an offer of proof as to the opinions, testimony or evidence it
wanted to present but thought were barred by the trial court’s ruling. Consequently, plaintiff has
forfeited review of this matter.
¶ 57 Forfeiture aside, the record shows that Sutphen testified at length on direct and cross-
examination to all aspects of plaintiff’s theory of the case and the contested issues. We conclude
that the trial court did not abuse its discretion by barring Sutphen from testifying regarding his
untimely disclosed opinions.
¶ 58 Next, plaintiff argues the trial court abused its discretion when it excluded evidence about
the terms of the contract between defendant and the Park District (the Owner’s Contract), which
provided that defendant and the Park District’s disagreements on price proposals would result in
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the work being paid on a “time and material basis.” The Owner’s Contract also provided that
defendant was responsible for all of the work performed by the subcontractors as if defendant had
performed the work using its own forces, and defendant must “require the subcontractors to
communicate with the Park District through [defendant] only.” Plaintiff argues that these
provisions meant that when defendant did not obtain approval from the Park District for plaintiff’s
pricing proposals concerning the design changes, defendant was required to handle the pricing
dispute on a time and materials basis, and it was irrelevant that plaintiff had excluded the Owner’s
Contract in plaintiff’s subcontract with defendant.
¶ 59 According to the record, the court granted defendant’s motion in limine to bar plaintiff
from arguing or submitting evidence regarding the general conditions of the Owner’s Contract.
The general conditions included a provision that if the Park District and defendant could not “agree
on a price based on a proposal, then the work shall be paid on a time and material basis.” The trial
court excluded any reference to the Owner’s Contract because Sutphen’s revisions to plaintiff’s
subcontract with defendant had excluded the general conditions, including the time and material
provisions, of the Owner’s Contract, and plaintiff’s contract with defendant did not contain a
comparable provision. Plaintiff cites no relevant authority to support its implication that it is
permitted to claim relief under the Owner’s Contract even though plaintiff expressly excluded the
Owner’s Contract, and plaintiff’s suggestion that defendant, independent of any contractual
obligation, was required to either approve plaintiff’s pricing of the extra work or pay plaintiff on
a time and material basis finds no support in the record.
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¶ 60 We conclude that the trial court did not abuse its discretion when it excluded any references
to the excluded provisions of the Owner’s Contract.
¶ 61 C. Damages Counterclaim
¶ 62 Defendant argues that the evidence established the damages claimed in defendant’s
counterclaim and the trial court erred when it denied defendant’s posttrial motion to either award
damages on the counterclaim based upon the evidence or grant a new trial on the counterclaim
limited to the issue of defendant’s damages. Defendant contends the jury’s verdict on the
counterclaim ignored the evidence about the dollar value of defendant’s damages.
¶ 63 Defendant states that it was forced to hire two subcontractors, a steel fabricator and a steel
erector, as replacements after defendant terminated plaintiff for nonperformance. Hiring the
replacement subcontractors increased defendant’s costs, which defendant absorbed, by
$252,401.51. Defendant’s principal, Ken Schaefges, testified about how the damages were
calculated. Specifically, the actual dollar value of the payments defendant made to the replacement
subcontractors totaled $1,108,186.51. From that sum, defendant subtracted $554,000 (the value of
plaintiff’s base contract) and $301,779 (the value that the Park District deemed an appropriate
payment for the extra work reflected in Bulletins 1 through 4). The net balance was $252,401.51,
representing the value of defendant’s alleged damages due to plaintiff’s failure to honor its
contractual obligations.
¶ 64 The determination of damages is a question of fact that is within the discretion of the jury.
Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d 218, 247 (2006). When reviewing a question
of the adequacy of damages, the court must consider the record as a whole. Snelson v. Kamm,
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204 Ill. 2d 1, 37 (2003). “A new trial on the question of damages only is appropriately granted
where (1) the jury’s verdict on the question of liability is amply supported by the evidence, (2) the
question of damages and liability are so separate and distinct that a trial limited to the question of
damages is not unfair to the [opposing party], and (3) the record suggests neither that the jury
reached a compromise verdict, nor that, in some other identifiable manner, the error which resulted
in the jury’s awarding inadequate damages also affected its verdict on the question of liability.”
Hollis v. R. Latoria Construction, Inc., 108 Ill. 2d 401, 408 (1985). When reviewing whether the
jury reached a compromise verdict, the court considers whether the verdict on the issue of liability
was amply supported by the evidence. Vacala v. Village of LaGrange Park, 260 Ill. App. 3d 599,
617-18 (1994).
¶ 65 The court stated the jury was well within its discretion in reviewing the evidence and
evaluating whether defendant made a sufficient showing of its exact damages. Defendant
submitted the lien waivers of the replacement subcontractors and deducted their final prices, but
the evidence did not establish what the final price would have been if plaintiff had performed the
contract. The jury was not required to assume that plaintiff’s final price would have been based on
their base contract amount of $554,000 plus the $301,779 the Park District deemed an appropriate
payment for the extra work reflected in Bulletins 1 through 4 because, although everyone agreed
that the Bulletins did change the cost of the project, they did not agree about or resolve how much
plaintiff should have been paid for the changes in the work shown by the Bulletins. The jury was
not persuaded that defendant’s damages had been established with specificity, and that conclusion
was consistent with the record.
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¶ 66 III. CONCLUSION
¶ 67 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 68 Affirmed.
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