Mor-Wood Contractors, Inc. v. Ottinger

562 N.E.2d 1247, 205 Ill. App. 3d 132, 150 Ill. Dec. 444, 1990 Ill. App. LEXIS 1705
CourtAppellate Court of Illinois
DecidedNovember 8, 1990
Docket2-89-1320
StatusPublished
Cited by12 cases

This text of 562 N.E.2d 1247 (Mor-Wood Contractors, Inc. v. Ottinger) 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
Mor-Wood Contractors, Inc. v. Ottinger, 562 N.E.2d 1247, 205 Ill. App. 3d 132, 150 Ill. Dec. 444, 1990 Ill. App. LEXIS 1705 (Ill. Ct. App. 1990).

Opinion

JUSTICE REINHARD

delivered the opinion of the court:

After a bench trial conducted by the circuit court of Lake County, plaintiff, Mor-Wood Construction, Inc. (Mor-Wood), was awarded $30,170.50 under the theory of quantum meruit for the reasonable value of services it performed in partially constructing a home for defendants, Craig and Heike Ottinger (the Ottingers).

The Ottingers now appeal from the judgment entered below, and they raise four issues on appeal: (1) whether the trial court erred in determining that the parties’ conduct evidenced a.rescission of the contract rather than a unilateral abandonment on the part of MorWood; (2) whether there was sufficient evidence of the reasonable value of the work performed by Mor-Wood to support an award under quantum meruit; (3) whether the trial court erred in failing to apply the actual cost measure of recovery; and (4) whether the trial court’s calculation of damages failed to reflect credits due the Ottingers.

The dispute between the parties arose after they entered into a contract whereby Mor-Wood was to construct a single-family home for the Ottingers. The action below commenced with Mor-Wood’s filing of a three-count complaint against the Ottingers. Count I sought foreclosure of a mechanic’s lien; count II alleged a breach of contract; and count III sought recovery under quantum meruit. The Ottingers filed a two-count counterclaim against Mor-Wood. Count I of the counterclaim sought recovery for Mor-Wood’s failure to complete construction of the home and for defective workmanship; count II sought recovery under a theory of fraudulent inducement. The Ottingers also filed a third-party complaint against Frank Morvay and Tim Morvay, officers of Mor-Wood, alleging fraudulent inducement. The Ottingers voluntarily dismissed the third-party complaint and count II of the counterclaim before judgment.

The facts adduced at trial can be summarized as follows. In June 1987, the Ottingers purchased an undeveloped parcel of property in the Village of Hawthorn Woods (the Village). On June 30, 1987, J. & W. Trenching Service, Inc., filed with the Lake County Health Department (the Health Department) an application for a permit to build a septic system for the property on the Ottingers’ behalf. The site plan accompanying the application, which was based on a plan originally made for the prior owner of the property, showed a proposed septic field to the west of the planned home. The site plan also showed a proposed drainage swale to be cut on the southwest portion of the lot. The Health Department issued the Ottingers a septic permit on approximately July 21,1987, based on J. & W.’s application.

In July 1987, the Ottingers retained an architect to draw up plans for the construction of a single-family home on the property. The architect’s site plan shows that the house was to be set slightly counterclockwise on the lot instead of being perfectly square within it. The site plan also shows that the lot was to be graded to create a valley or swale sloping away from the southwest corner of the home.

The Ottingers and Mor-Wood began negotiations for a contract for construction of a house on the property. The Ottingers gave MorWood three sets of the architect’s plans and the application for the septic permit on August 17, 1987. On August 30, 1987, the parties entered into a contract under which Mor-Wood was to completely grade the property and construct the home pursuant to the architect’s plans and specifications for a price of $152,500. The work was to be completed by February 1, 1988. Two of the contract’s provisions are relevant here. Section 9.4 states:

“If the Contractor fails to correct defective Work or persistently fails to carry out the Work in accordance with the Contract Documents, the Owner, by a written order, may order the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated.”

Section 20.2 provides:

“If the Contractor defaults or persistently fails or neglects to carry out the Work in accordance with the Contract Documents or fails to perform any provision of the Contract, the Owner, after seven days’ written notice to the Contractor and without prejudice to any other remedy he may have, may make good such deficiencies and may deduct the cost thereof *** from the payment then or thereafter due the Contractor or, at his option *** may terminate the Contract and take possession of the site and of all materials, equipment, tools, and construction equipment and machinery thereon owned by the Contractor and may finish the Work by whatever method he may deem expedient, and if the unpaid balance of the Contract Sum exceeds the expense of finishing the Work, such excess shall be paid to the Contractor, but if such expense exceeds such unpaid balance, the Contractor shall pay the difference to the owner.”

Mor-Wood retained Lake-Cook Trenching as a subcontractor for the project, and Lake-Cook applied to the Health Department for a new septic permit on September 21, 1987. Accompanying the application was a site plan showing the septic field to the south of the home instead of to its west, and the plan did not reveal a swale as indicated on the architect’s plans. The planned home was depicted as sitting square within the lot rather than being turned slightly counterclockwise. The permit was issued on October 21, 1987. Tim Morvay testified that, while the lot was being graded, Craig Ottinger insisted that the swale be cut even though Morvay indicated that it would traverse the septic area. The excavator who cut the swale testified that it was cut at Ottinger’s insistence and over Tim Morvay’s objection. Morvay testified that the Health Department was then called to examine the site to determine if the swale cut necessitated reevaluation of the septic field.

At some point thereafter, a Health Department inspector visited the jobsite, and, as a result of his inspection, the inspector sent a letter to the Ottingers on November 6, 1987, stating that the septic permits were revoked as of that day. The letter gave the following reasons for revocation: (1) soil in the lot had been damaged by the traffic of heavy equipment; (2) unacceptable fill had been placed and compacted in the septic area; (3) the swale as cut interfered with septic lines and reduced the available septic absorption area; and (4) the house had been placed 10 feet south of the location indicated on the plans submitted to the Health Department, further reducing the available septic area. Tim Morvay testified that, after he learned of the letter, he discussed the septic problems with Ottinger and ordered a new soil test to be taken.

On November 17, Tim Morvay met with Craig Ottinger to pick up a check for partial payment under the contract, and Ottinger issued a check to Mor-Wood in the amount of $52,431. Sometime on November 17, the Village posted a “stop work” order on the Ottingers’ property because of the revoked septic permits. Later that day, Ottinger discovered the stop-work order on the property, and so he stopped payment on the check. Ottinger testified that he telephoned Frank Morvay to inform him that he was stopping payment of the check, but he denied firing Mor-Wood. Frank Morvay testified that Ottinger was “very upset” when he called on November 17.

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Cite This Page — Counsel Stack

Bluebook (online)
562 N.E.2d 1247, 205 Ill. App. 3d 132, 150 Ill. Dec. 444, 1990 Ill. App. LEXIS 1705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mor-wood-contractors-inc-v-ottinger-illappct-1990.