Atria v. Geist

380 N.E.2d 1187, 64 Ill. App. 3d 88, 21 Ill. Dec. 11, 1978 Ill. App. LEXIS 3274
CourtAppellate Court of Illinois
DecidedSeptember 15, 1978
Docket77-118
StatusPublished
Cited by6 cases

This text of 380 N.E.2d 1187 (Atria v. Geist) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atria v. Geist, 380 N.E.2d 1187, 64 Ill. App. 3d 88, 21 Ill. Dec. 11, 1978 Ill. App. LEXIS 3274 (Ill. Ct. App. 1978).

Opinion

Mr. JUSTICE BOYLE

delivered the opinion of the court:

Anthony Atria, d/b/a New Look Decorators, plaintiffcounterdefendant-appellee, hereinafter, plaintiff, filed a complaint against Herbert Geist and Millicent Geist, defendants-counterplaintiffsappellants, hereinafter collectively referred to as the. defendants and individually as Mr. Geist and Mrs. Geist, to collect *2,000, which was the remainder left unpaid on a *12,600 flat fee contract to decorate and paint certain portions of the interior and exterior of a residence owned by the defendants at 955 Lake Road, Lake Forest, Illinois. Plaintiff also averred that defendants owed, him *1,470 for extras to the contract, or, in the alternative, *850. Defendants filed an answer to plaintiff’s complaint which alleged that plaintiff’s performance under the contract was incomplete and improper and denied that any extras were ever agreed to by the parties. In addition, defendants filed an amended counterclaim for damages of *8,031.50 allegedly brought about by plaintiff’s improper workmanship. The trial court entered judgment in favor of plaintiff on his complaint in the amount of *2,800 plus plaintiff’s costs of suit and also denied defendants’ counterclaim in its entirety. Defendants appeal from the entry of this order.

On appeal, two issues need to be discussed: (1) Whether the trial court erroneously barred certain expert testimony; and (2) Whether there is a sufficient basis in the record to sustain the trial court’s judgment. After a review of the record and briefs, we affirm the judgment of the circuit court of Lake County.

A recitation of the material facts is necessary for an understanding of our decision.

On March 3, 1973, plaintiff, a sole proprietor painting contractor, toured the defendants’ 20-room home in Lake Forest, Illinois, with Mrs. Geist and submitted an estimate of *12,600 for the painting of defendants’ home. Plaintiff’s estimate included *8,400 for the exterior work and *4,200 for interior work pursuant to Mrs. Geist’s specifications and requests and which sum was agreed to by Mrs. Geist in the aggregate amount of *12,600. The plaintiff began work on the premises on May 1, 1973, at which time he consulted with Mr. Geist, who requested a clarification of the work to be done. Plaintiff toured the premises with Mr. Geist, who gave plaintiff permission to commence work. Mr. Geist then signed a document admitted at trial as plaintiff’s exhibit No. 2, which set out the specifications and estimates for plaintiff’s painting services and materials for defendants’ home, excluding the cost of wallpaper. Plaintiff and his employees proceeded to perform the work under the contract from May through November 18, 1973. On approximately November 8, 1973, plaintiff and Mrs. Geist went from room to room concerning the work remaining to be done, and Mrs. Geist signed a document prepared by plaintiff which specified the work remaining. Prior to November 18,1973, defendants had paid plaintiff *10,600 for his work, which left *2,000 remaining to be paid on the contract. Thereafter, plaintiff prepared an itemized list of “extras” in the amount of *1,470 which he presented to Mr. Geist at their final meeting on November 18,1973, together with plaintiff’s demand for final payment of *2,000 on the contract. Plaintiff testified that Mr. Geist examined the fist of extras, stated that he wanted to settle the matter, and offered plaintiff *2,850 as a compromise sum. Plaintiff said he would return at a later time to finish various items Mr. Geist had requested during this discussion that were not yet completed. At this time, plaintiff gave Mr. Geist a waiver of lien in the amount of *13,450 and testified that Mr. Geist promised him that he would put a check for *2,850 in the mail to the plaintiff the next day. Plaintiff testified, however, that he never received the promised check.

Raymond C. Olson, an estimator in painting and decorating for the Theodore Ebert Company, testified for the defendants that he had approximately 15 years’ experience as an estimator in the painting and decorating field. In all of the 15 years excepting the last 2, Mr. Olson had combined his duties as an estimator with being a painter or superintendent. Mr. Olson did not have any formal education in chemistry, and his qualifications as an expert consisted entirely of the above experience. Defense counsel, at this stage of the trial, tendered Mr. Olson to the court as an expert at estimating for the purpose of propounding certain hypothetical questions concerning the cause of paint failure in plaintiff’s work at defendants’ home. Plaintiff objected to Mr. Olson’s qualifications as an expert. Plaintiff’s objections to Mr. Olson’s ability as an expert were based on his lack of knowledge of the chemical components of paint. Additionally, plaintiff averred that Mr. Olson’s testimony was tainted and hearsay because Mr. Olson had sought outside assistance from the Pittsburgh Paint Company in rendering an opinion on the paint chip samples that were submitted, and this information was to be part of the basis of Mr. Olson’s answer to hypothetical questions. The trial court sustained plaintiff’s objection on the ground that an insufficient foundation had been laid to qualify Mr. Olson to testify concerning paint failure. Defense counsel then proceeded to question Mr. Olson pertaining to the various jobs in which he had participated in his capacity as an estimator. Thereafter, defense counsel renewed his request to qualify Mr. Olson as an expert. Plaintiff objected and the trial court again sustained plaintiff’s objection on the basis that it was not satisfied that Mr. Olson was an expert in the particular area of paint failure in order to permit him to answer a hypothetical on that subject. Thereafter, defendants’ counsel made an offer of proof that Mr. Olson’s answer to the hypotheticals presented would be that the failure of the loggia (a roofed, open gallery) was due to improper preparation and that the failure of other interior and exterior painting and decorating work at defendants’ home was due to improper preparation and, in some instances, improper material.

Mr. and Mrs. Geist testified in their own behalf for the defense. Mrs. Geist attested to her dissatisfaction with plaintiff’s work in terms of his painting preparation and application, which she said she communicated to the plaintiff on numerous occasions. Her testimony, however, in all other respects was in substantial congruity with plaintiff’s affirmations.

Mr. Geist testified that plaintiff stated at their initial meeting that he would give Mr. Geist satisfaction and that his word was his bond. Mr. Geist asserted that he made various complaints to the plaintiff concerning the quality of his work, and as a result held back approximately *2,000 when plaintiff requested final payment in August of 1973. Mr. Geist observed that at their last meeting on November 18, 1973, plaintiff demanded the remaining payment due under the contract and also submitted a bill in the sum of *1,470 for a list of extras that plaintiff had completed over and above what the parties had agreed. Mr. Geist remarked that the parties finally compromised and he agreed to pay plaintiff *2,000 plus *850 for the extras if plaintiff would promise to return in no less than a week and finish the remaining work. Plaintiff then left, but Mr. Geist changed his mind approximately an hour later after conversing with Mrs. Geist. Instead of sending plaintiff a check for the compromised sum of *2,850, Mr.

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Bluebook (online)
380 N.E.2d 1187, 64 Ill. App. 3d 88, 21 Ill. Dec. 11, 1978 Ill. App. LEXIS 3274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atria-v-geist-illappct-1978.