Oldenburg v. Hagemann

565 N.E.2d 1021, 207 Ill. App. 3d 315, 152 Ill. Dec. 339, 1991 Ill. App. LEXIS 16
CourtAppellate Court of Illinois
DecidedJanuary 9, 1991
Docket2-89-1325
StatusPublished
Cited by32 cases

This text of 565 N.E.2d 1021 (Oldenburg v. Hagemann) 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
Oldenburg v. Hagemann, 565 N.E.2d 1021, 207 Ill. App. 3d 315, 152 Ill. Dec. 339, 1991 Ill. App. LEXIS 16 (Ill. Ct. App. 1991).

Opinion

JUSTICE DUNN

delivered the opinion of the court:

Defendant, Ralph Hagemann, doing business as Ralph’s Lathing and Dry Wall (Hagemann), appeals from a judgment of the circuit court of Winnebago County awarding $23,306.54 to plaintiff, Walter Oldenburg, doing business as Walter Oldenburg Plastering Contractor (Oldenburg). On appeal, Hagemann contends that certain comments made and questions asked of witnesses by the trial judge were improper and that the trial judge erred by barring the testimony of an expert witness he wished to call. Oldenburg cross-appeals and argues that he was entitled to an award of prejudgment interest on the underlying judgment. We affirm.

Prior to the instant disputes, Oldenburg and Hagemann worked together as subcontractors for many years on a number of construction projects in northern Illinois and southern Wisconsin. The disputes in this case arose from two construction projects in which the parties were engaged as subcontractors. The first of these was for construction in a municipal building in Beloit, Wisconsin. The second was a project at Fort Atkinson High School.

Oldenburg alleged in count I of his second amended counterclaim that in May 1982 his bid for the Fort Atkinson High School project was accepted. Taking 12 subsequent change orders into account, the contract price was $192,184, of which Hagemann was to be paid $104,446. Hagemann failed to complete the work he agreed to perform. At the time Hagemann terminated work on the project, he had been paid $50,200. Oldenburg was forced to expend $67,431.51 in order to complete the work and, therefore, sought $13,185.51.

Oldenburg alleged in count II that his bid to perform certain construction work on the Beloit Municipal Building project was accepted in June 1982. Taking five subsequent change orders into account, the price was $199,193.89, including a credit of $19,614.93 for exterior studding supplied by the general contractor. Of this amount, Hagemann was to be paid $132,193.82. Hagemann was paid a total of $142,314.85 for this project by Oldenburg and was thereby overpaid in the amount of $10,121.03, which he refused to return to Oldenburg.

In counts III and IV, Oldenburg basically repeated the allegations of count II. Oldenburg stated in count III that the $10,121.03 overpayment should be restored to him in equity and good conscience. In count IV, Oldenburg alleged that Hagemann held the overpayment in trust.

Hagemann filed a four-count counterclaim against Oldenburg. Count I alleged that a total of $151,608.75 was due him on the Beloit Municipal Building project and that $9,293.90 of this sum remained to be paid. Count II alleged that Hagemann was still owed $1,199.50 for a project at Beloit College. The trial court directed a verdict in Hagemann’s favor on this count, and it is not at issue here. Hagemann alleged in count III that he was not furnished with adequate specifications for the Fort Atkinson High School project, and he was owed a sum in excess of $15,000.

Count IV of the counterclaim was dismissed prior to trial, as was Hagemann’s third-party complaint against architect Richard Johnson. These dismissals were affirmed by this court in an earlier appeal (Oldenburg v. Hagemann (1987), 159 Ill. App. 3d 631) and are not at issue here. While the third-party complaint was still pending, Johnson, the third-party defendant, filed interrogatories requesting the name of any expert witness Hagemann intended to call at trial. Hagemann filed a response on March 12, 1986, in which he stated he would call David Jenkins, an architect, who. would testify about bidding procedures and the responsibilities of contractors, subcontractors, and architects in connection with bids and the materials to be used on jobs.

At a pretrial conference on April 21, 1989, the trial judge asked the attorneys for Hagemann and Oldenburg whether they intended to call any expert witnesses to testify at trial. Hagemann’s attorney responded, “No.” At a subsequent pretrial hearing on May 12, 1989, Hagemann’s attorney advised the court and opposing counsel that he intended to call David Jenkins as an expert witness and that his previous statement that he did not intend to call any experts was a mistake. Oldenburg’s counsel filed a motion to bar Jenkins from testifying pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220). The trial court granted the motion on the basis that Jenkins was not properly disclosed under the rule.

James Heidt testified that he was vice-president of Klobucar Construction Company, general contractor for the Beloit Municipal Building project. Heidt received a bid from Oldenburg of $220,000 on September 22, 1981, for light gage steel framing, lathing work, drywall work, acoustic ceiling tile, fireproofing, and insulation work. Oldenburg’s bid became a part of Klobucar’s bid proposal to the City of Beloit, which awarded the contract to Klobucar.

On March 8, 1982, Heidt had a meeting with Oldenburg and Hagemann to discuss the project. The three agreed to reduce the price for the project to $212,000. The $8,000 reduction occurred primarily because Oldenburg’s bid included $27,500 as the cost of purchasing studs, but Klobucar had already purchased such studs from Bostwick Company for $19,614.93.

Heidt testified that Klobucar originally assigned the purchase order from Bostwick in the above amount to Oldenburg at the March meeting by agreement. Bostwick subsequently demanded payment from Klobucar, however, and Klobucar paid the sum that was due. Klobucar then credited the $19,614.93 payment against the amount due to Oldenburg. As a result of several other change orders, which are orders varying the contract price because of modifications in the work to be performed as the project progresses, the final amount due Oldenburg was $199,193.19.

Kenneth Kline testified that he was president of Corporate Construction, Limited, the contractor on the Fort Atkinson High School project, from 1975 until 1988. Kline’s company received and accepted a bid of $142,071 from Oldenburg and Hagemann to perform subcontracting work on the project. After several change orders were issued, the price was modified to $192,184. Work commenced in June 1982 on the project. Oldenburg did plastering while Hagemann did some lathing and installed acoustical ceiling tile.

According to Kline, Hagemann failed to show up at the project site one day in April 1983 and refused thereafter to work on the project. Oldenburg finished the work Hagemann had failed to complete. Kline testified that Hagemann demanded an extra $10,000, which he did not receive. Kline also testified that section 9500 of the project manual called for the installation of fire-rated ceiling tile.

Richard Johnson testified that he was a design architect for the Fort Atkinson High project. His office prepared the project manual and several addenda regarding the project. According to Johnson, section 9500 of the project manual stated that fire-rated ceiling tile would be necessary in some areas. Addendum one specified where such tile would have to be installed. Johnson only gave the manual and addenda to the prime contractors, not to Oldenburg or Hagemann.

Johnson testified further that some time before the work commenced, Hagemann went to his office with ceiling tile samples.

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Cite This Page — Counsel Stack

Bluebook (online)
565 N.E.2d 1021, 207 Ill. App. 3d 315, 152 Ill. Dec. 339, 1991 Ill. App. LEXIS 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oldenburg-v-hagemann-illappct-1991.