Holmstrom v. Kunis

581 N.E.2d 877, 221 Ill. App. 3d 317, 163 Ill. Dec. 723, 1991 Ill. App. LEXIS 1884
CourtAppellate Court of Illinois
DecidedNovember 7, 1991
Docket2-91-0074
StatusPublished
Cited by61 cases

This text of 581 N.E.2d 877 (Holmstrom v. Kunis) 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
Holmstrom v. Kunis, 581 N.E.2d 877, 221 Ill. App. 3d 317, 163 Ill. Dec. 723, 1991 Ill. App. LEXIS 1884 (Ill. Ct. App. 1991).

Opinion

JUSTICE DUNN

delivered the opinion of the court:

Defendants Paul Kunis and Thomas Spangler own the partnership that was the general contractor under a contract to build a home for plaintiffs, Mark and Geri Holmstrom. Defendant Travis Gravitt owned the company that subcontracted to install the sewer connection for plaintiffs’ home. Plaintiffs sued all three defendants for breach of contract, alleging primarily that defendants did not install the sewer connection in a good and workmanlike manner. Plaintiffs obtained a default judgment against Gravitt and a judgment after a bench trial against Kunis and Spangler.

Defendants appeal, arguing that (1) the default judgment against Gravitt barred any judgment against Kunis and Spangler on the same contractual obligation; (2) plaintiffs failed to prove that defendants installed the sewer connection other than as directed by local officials; and (3) the trial court applied an improper measure of damages. We affirm.

Count I of plaintiffs’ complaint, as finally amended, alleged the following facts. On or about May 1, 1987, defendants Kunis and Spangler, doing business as P.E.C. Construction, entered into a written agreement with plaintiffs to build a single-family home on plaintiffs’ land in Clarendon Hills. As general contractors, Kunis and Spangler agreed to perform the construction, including connection of the sanitary sewer system, in a good and workmanlike manner. Plaintiffs performed all of their obligations under the contract, but Kunis and Spangler breached the contract by failing to connect the sewer properly. Count I of the plaintiffs’ complaint prayed that Kunis and Spangler be held jointly and severally liable on the construction contract.

Count II of the complaint alleged that Kunis and Spangler subcontracted the sewer connection work to Travis Gravitt and Tri-Plex Construction, Inc. (Tri-Plex). Because Gravitt and Tri-Plex knew or should have known that this subcontract was for the plaintiffs’ benefit, they were jointly and severally liable to plaintiffs for breaching this contract by failing to connect the sewer properly.

Plaintiffs’ original complaint sought damages of $51,340.72 plus attorney fees and costs. Of the $51,340.72, $26,340.72 represented what plaintiffs were forced to pay Du Page County (the county) for proper connection for the sewer service, and the remaining $25,000 represented damages from plaintiffs’ inability to secure financing for the property.

Plaintiffs obtained a default judgment against Gravitt for $26,340.72. After obtaining this judgment, but before trial, plaintiffs amended their complaint to increase the damages sought from $51,340.72 plus attorney fees and costs to $75,057.68 plus attorney fees and costs and interest at 8% on the amount owed to the county.

Before trial, Kunis and Spangler moved to dismiss the complaint, arguing that the cause of action against them merged into the default judgment against Gravitt. The court denied the motion, and the case went to trial.

Mark Holmstrom testified that he owned and resided at the property in dispute. In 1986, intending to build a new residence, he purchased the lot. Because he planned at first to be his own general contractor, he obtained a building permit and sewer permit from the county. The next year, he decided to hire P.E.C. as general contractor. Holmstrom and P.E.C., represented primarily by Kunis, negotiated the written building contract. When Holmstrom signed the contract, it was his understanding that P.E.C. would, as general contractor, hire all subcontractors and obtain any bonds or permits necessary from then on.

The building, including the sewer hookup, was completed in or around November 1987. About a month and a half after the initial hookup, Holmstrom learned that there was a problem with the sewer connection, necessitating reexcavation of the street. After the reexcavation work was finished, plaintiffs received written notice from the Du Page County Sanitary District that the water to plaintiffs’ residence would be shut off unless they paid their bill. Holmstrom notified Kunis and Spangler about the problem. They assured him that they would resolve the matter, but to his knowledge they never did. Also, P.E.C. had not repaired other problems with the house, including a leaky roof and a broken door lock.

Early in 1988 Holmstrom obtained a construction loan on the premises. Originally the loan was to last three months, with interest payments monthly. Holmstrom ended up paying about $18,200 interest over 18 months. The bank would not close the loan because the county had placed a lien on his house. The lien was still there at the time of trial. Early in 1988, Holmstrom applied for a mortgage at 9.875% interest. He obtained the mortgage in October 1989. By then he had to agree to pay 10.5% interest. Plaintiffs deducted the interest payments on the loan and mortgage in figuring their Federal income tax liability for 1988 and 1989.

The county sent plaintiffs a bill for $26,342.72, representing the cost of repairing damage to the sewer system from the reexcavation. Plaintiffs signed an agreement with the county by which they acknowledged owing the money and promised to pursue their legal remedies against all defendants. The county promised not to terminate plaintiffs’ sewer or water service. On December 12, 1989, plaintiffs and the county agreed further that if by January 1, 1990, plaintiffs had not successfully collected from any of the defendants, interest of 8% per annum would begin to accrue on the amount due. As of the trial, plaintiffs had paid none of the money due under the agreement.

Holmstrom had no personal knowledge of what caused the problems with the sewer connection. The county did not inform him in advance of any potential problems with the sewer.

Edward Worth, county sewer inspector with the Du Page County public works department, testified that on November 5, 1987, he attempted unsuccessfully to inspect the connection from the main sewer line to plaintiffs’ residence. He arrived at the site at 1:30 p.m., about an hour before the scheduled time. He discovered that Tri-Plex had covered the connection with stone. He therefore could not see the connection at all. Worth spoke to Dan Thomas and to someone from Tri-Plex, asking them to reexcavate so that he could inspect the connection. The two, testified Worth, “hemmed and hawed,” telling Worth that it would cost too much to reexcavate. Worth replied that he could not accept the connection unless he inspected it personally. At that point Thomas represented that he was the builder and would accept full responsibility for the connection if Worth would allow them to keep filling in the hole. Worth acquiesced.

Worth subsequently heard that the connection was malfunctioning. Sewage was backing up into the residence. Eventually, using a videotape of the inside of the sewer main, Worth determined that the problem was with the connection to plaintiffs’ residence.

Worth was present at the reexcavation in January 1988. When the connection was uncovered, he saw that a piece of pipe was sticking into the sewer main. Worth saw no saddle of any kind around the pipe, though there may have been some concrete to hold the pipe in place.

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Bluebook (online)
581 N.E.2d 877, 221 Ill. App. 3d 317, 163 Ill. Dec. 723, 1991 Ill. App. LEXIS 1884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holmstrom-v-kunis-illappct-1991.