Winkler v. Danna Pools, Inc.

2025 IL App (3d) 240424-U

• Court: Appellate Court of Illinois
• Decided: April 15, 2025
• Docket: 3-24-0424
• Status: Unpublished

Opinion

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).

2025 IL App (3d) 240424-U

Order filed April 15, 2025 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

RAYMOND WINKLER, ) Appeal from the Circuit Court ) of the 18th Judicial Circuit, Plaintiff-Appellant, ) Du Page County, Illinois, ) v. ) Appeal No. 3-24-0424 ) Circuit No. 20-L-1430 DANNA POOLS, INC., ) ) Honorable Defendant-Appellee. ) David E. Schwartz, ) Judge, Presiding. ____________________________________________________________________________

PRESIDING JUSTICE BRENNAN delivered the judgment of the court. Justices Hettel and Peterson concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: The trial court’s finding that plaintiff failed to prove damages in connection with defendant’s breach of contract was not against the manifest weight of the evidence. Affirmed.

¶2 Plaintiff, Raymond Winkler, appeals from the trial court’s judgment for defendant, Danna

Pools, Inc. (DPI), following a bench trial. Winkler argues that the court’s finding that he failed to

adequately prove the damages suffered in connection with DPI’s breach of contract regarding the construction of the swimming pool at Winkler’s residence was against the manifest weight of the

evidence. For the reasons set forth below, we affirm.

¶3 I. BACKGROUND

¶4 In February 2019, the parties entered into a contract providing that Winkler would pay DPI

$98,000 for DPI’s construction of an in-ground swimming pool at his residence. The payments

were to be made in installments at different stages of construction. Section 4 of the contract

provided, in relevant part, as follows:

“DPI guarantees its work to be free from defects in material and workmanship for a period

of (14) Months from the date pool is filled with water. *** If maintenance, service, or

warranty work is performed by anyone other than DPI ***, all warranties and guarantees

will be voided.”

The pool was filled with water in July 2019, and Winkler enjoyed it for the season.

¶5 A July 9, 2019, maintenance ticket shows that DPI provided vacuuming services and

conducted a chemical test on the pool. A July 15, 2019, service work order details that DPI

performed maintenance on the pool, delivered a customer maintenance kit, trained Winkler in

customer maintenance, showed Winkler “how to test water using test kit and salt strips” and

explained the appropriate chemical levels, and demonstrated how to clean the pump basket. The

work order also includes a note that Winkler “stated he knew how to maintain pool and would be

maint[ain]ing his own pool.” A corresponding maintenance ticket from the same day shows that

another vacuuming service and chemical test were performed by DPI, as well as “additional time

going over with [Winkler] how to use test kit, equipment, and vacuum.” Maintenance tickets dated

July 26, 2019, and September 17, 2019, reflect additional vacuuming and chemical tests by DPI.

A service work order dated September 17, 2019, shows that DPI addressed Winkler’s concern that

2 scale was blowing out of the return pipes and the heater was making a noise. And finally, a

November 22, 2019, invoice shows that DPI winterized Winkler’s pool at the end of the season.

¶6 In April 2020, Winkler pulled back the cover of the pool in anticipation of its opening, at

which time he noticed a crack in its foundation. Winkler testified that Daniel Kamide, DPI’s sole

shareholder, inspected the crack and suggested that DPI open the pool anyway and address the

problem at the end of the season. Realizing that his 14-month warranty would expire by the end

of the season, Winkler did not agree and, instead, drained the pool himself, revealing additional

cracks. The parties communicated about the cracks over the course of the next three months, with

DPI ultimately taking the position in a July 9, 2020, letter that Winkler “[k]nowingly voided the

warranty” in section 4 of the contract; “[r]efused [DPI’s] maintenance for most of 2019”; [r]efused

to contract with [DPI] to perform the opening, closing, maintenance and service for 2020”; and

“[i]gnored the warning about opening the pool with a hairline crack.” DPI asserted that Winkler’s

actions caused the damage to the pool and denied any liability. In its letter, DPI noted that it

“discussed assisting Winkler but he has rebuffed anything but a new pool.”

¶7 On December 10, 2020, Winkler filed a complaint against DPI for breach of contract.

Specifically, Winkler alleged, inter alia, that DPI failed to honor its 14-month warranty and repair

the pool. Winkler claimed that he hired a contractor who informed him that, if only the plaster

needed repair, the cost of repair would be $40,000, but that “[i]f the cracks extended through the

concrete/gunite material[,] more extensive repairs would be required that could cost in excess of

$100,000.”

¶8 DPI denied that it breached the contract and asserted two affirmative defenses: (1) failure

to mitigate damages and (2) invalidation. In support of failure to mitigate, DPI argued that, despite

obtaining estimates to repair the cracks, Winkler did not take any action to repair them. As to

3 invalidation, DPI alleged that, in violation of section 4 of the contract, Winkler serviced his own

pool when he opened it for the 2020 season and, in doing so, “drained the pool without checking

and removing the hydrostatic valve located within main drain at bottom of pool which caused

pressure to the pool resulting in the crack(s).” DPI also claimed that Winkler improperly used

chemicals in the pool during 2019 because he did not have a DPI maintenance contract and,

therefore, DPI was “not responsible for the check cracking.”

¶9 In response to the affirmative defense of failure to mitigate damages, Winkler clarified,

inter alia, that, while “he spoke to an engineer and a pool contractor regarding the cracks[,]” he

never received an estimate to repair them. Regarding invalidation, Winkler denied that he

“serviced” the pool within the meaning of section 4 of the contract and denied causing the cracks.

¶ 10 The bench trial commenced on April 8, 2024. Winkler testified to his discovery of the

cracks and his subsequent communications with Kamide. He further testified that he understood

that DPI training him to vacuum the pool and test the chemical levels meant that he was allowed

to so without voiding the warranty. He also confirmed that he put the necessary chemicals into the

pool himself. However, contrary to DPI’s notes on the July 15, 2019, service work order, Winkler

denied that he told DPI that he was going to maintain his own pool. He further denied refusing

DPI’s maintenance services in 2019, being offered a written service contract, or taking any actions

that were not permitted under the warranty. Winkler testified that, prior to DPI’s July 9, 2020,

letter, Kamide suggested that the cracking could have been caused by DPI’s receipt of improper

cement but that it needed to be “engineered” to be sure. This was not done. On cross-examination,

Winkler testified that, as of the date of trial, he had not had any work done on the cracks but that

he had an engineer and a pool contractor come to his residence in 2020. He testified that he did

4 not have the soil surrounding the pool or the concrete itself tested. He confirmed that he used the

pool from 2020 to 2023 and hoped to use it in 2024 as well.

¶ 11 Kamide was called as an adverse witness by Winkler, and his testimony included the

following. In July 2020, DPI concluded that hydrostatic pressure caused the cracks. He explained

that the cracks were primarily in the pool floor, which is where the most pressure existed. He also

testified that improper chemical levels contributed to the cracking and that Winkler voided the

warranty by adding chemicals to the pool independently and otherwise maintaining it himself. He

said that Winkler declined DPI’s verbal offers to provide maintenance services because Winkler

had had a pool for 20 years prior and could manage it on his own. Kamide testified that customers

can skim, vacuum, and test the chemical levels in their pools without voiding their warranties;

however, they are not allowed to actually pour chemicals into the water. Customers must call DPI

to add the chemicals in order to maintain the warranty.

¶ 12 Winkler next called his expert witness, Jinan Yan, a licensed professional engineer with a

focus in geotechnical engineering. Yan described his focus as being “soil and foundations.” He

testified that, while he had never completed concrete work for a residential pool, he had extensive

experience in foundational work for residential and commercial buildings.

¶ 13 Yan testified that if a concrete structure cracks, it is generally for one of two reasons: (1)

the underlying soil is not compacted to 95% density, or (2) the concrete’s water content is too high.

First, if the soil is improperly compacted, it will be too weak to support the structure. This can

cause uneven settlement and create a void beneath the concrete, resulting in cracking. The

compaction level is tested in the field during construction using a nuclear gauge, and the results

are usually recorded in the field notes. Second, concrete that is too moist is significantly weakened

and prone to cracking. The water content of the concrete is also tested in the field during

5 construction using a slump test, the results of which are recorded in the field notes. Concrete that

does not pass the slump test should be rejected. Yan testified that the field notes should be

maintained by general contractors to protect themselves from liability and indicated that he did not

review any of DPI’s construction records prior to formulating his opinion.

¶ 14 When a crack is discovered after a structure is built and there are no field notes relating to

construction, Yan testified that it is “very tough” to look under the concrete and determine the

cause of the crack. However, it may be possible to do so with either a concrete coring cylinder or

a ground penetrating radar (GPR). The concrete coring cylinder method involves removing a core

of the existing concrete through a drilling process and inspecting the core. The resulting hole is

then filled with new concrete. The GPR method, on the other hand, scans beneath the concrete for

the existence of a void but will not produce accurate results if rebar or other metal material exists

that might affect the scan. Yan recalled that he attempted to utilize the GPR method for Winkler’s

pool, but the results were inconclusive because there were too many rebars. He confirmed that the

concrete coring cylinder method was not used on Winkler’s pool.

¶ 15 Yan noted that the continuous crack across the entire pool indicated weakened soil or a

structure failure. Therefore, while he had no specific data or test results to rely upon, his opinion

was that a crack of this nature was caused by either improper compaction of the soil or poor quality

concrete. He testified that the hydrostatic valve would not have caused the cracks.

¶ 16 Winkler rested his case, and DPI moved for a directed verdict, arguing that there was

insufficient evidence to prove causation and damages. The court denied the motion. DPI rested its

case without calling any witnesses.

¶ 17 The parties submitted written closing arguments. Winkler sought $98,000 in damages to

replace the pool, which he described as a “conservative” figure because it excluded the cost of

6 demolishing the existing pool and diminution of the value of his property. DPI argued, inter alia,

that Winkler failed to establish an appropriate measure of damages or that repairs were necessary

at all. In his rebuttal to DPI’s closing argument, Winkler claimed for the first time that the pool

was leaking water, albeit not substantially. He asserted that replacement of the entire structure is

necessary to ensure that the cracks do not reappear.

¶ 18 On May 30, 2024, the court entered judgment for DPI and read its findings and ruling into

the record. A corresponding written order was entered the same day. Finding both parties’

testimonies to be credible, the court noted that it was undisputed that DPI installed the pool and

that its foundation was cracked. The court credited Yan’s expert testimony that the cracks were

caused by “poor quality cement or lack of compaction of the underlying backfill.” The court found

that the cracks were attributable to DPI, that breach of warranty was established, and that none of

Winkler’s independent maintenance on the pool voided the warranty or caused the cracks. The

court continued,

“However, the analysis does not end there. The real question is the assessment of

damages. On this issue, the plaintiff has the burden of proof. There are two possible ways

to prove damages[:] costs of repair or replacement of the pool. (The court also notes that

plaintiff and his family have had full use of the pool since 2019 and aside from the

appearance presented no evidence that they were prevented from enjoying the pool).

However, if correction of the defects would entail an unreasonable destruction of the

builder’s work, the proper measure of damages is the reduction in value of the property.

Park v. Sohn, 89 Ill. 2d 453 [(1982)].

The plaintiff presented no evidence as to the cost of repair, leaving replacement as

the only remedy. However, except for arguing that ‘any remedy would require replacement

7 of the existing pool’ there was also no evidence provided as to the cost. Additionally, based

on the testimony of plaintiff himself it is clear that the pool does NOT need to be replaced.

It has been fully functional from the beginning and there is no evidence that a simple repair

of the cracks could not be undertaken. Plaintiff’s expert witness offered no opinion as to

the need for replacement.

There was no evidence presented that the cracks are in any way preventing the

plaintiff and his family from full use of the pool. No one testified that anyone has been

injured by the cracks or has been unable to use the pool. In his [rebuttal to DPI’s closing

argument], counsel alludes to a ‘slow leak’; this was not testified to by any witness. Had

there been testimony that the cracks were causing anything other than a cosmetic problem

the need for replacement might arguably be appropriate. To asses [sic] the full cost of a

new pool to defendant (even, as plaintiff suggests, eliminating the cost of the removal of

the pool) would be excessive when there has been no evidence as to the cost of a simple

repair of the cracks.

***

The only other possible measure of damages would be the diminution in value of the

property. Although plaintiff mentions this element of damages in his closing argument, no

testimony was presented on this issue.”

The court awarded Winkler zero damages, and this appeal followed.

¶ 19 II. ANALYSIS

¶ 20 On appeal, Winkler argues that the court’s finding that he failed to present sufficient

evidence of damages was against the manifest weight of the evidence. He argues that the

appropriate measure of damages is the cost of repairs (in this case, replacement). In support, he

8 reasserts his argument that merely repairing the cracks would not resolve the issue, suggesting the

possibility of a reoccurrence of the existing cracks and the potential for new cracks. He contends

that his damages are proven through the original contract price—$98,000. Alternatively, Winkler

requests that, in the event we conclude that the pool’s cost and the destruction of the pool are

disproportionate to the benefit he received, we remand the case for a determination of damages

when measured by the diminution of value to his property.

¶ 21 An award of damages following a bench trial will not be disturbed unless it is against the

manifest weight of the evidence. King v. Find-A-Way Shipping, LLC, 2020 IL App (1st) 191307,

¶ 28. “A decision is against the manifest weight of the evidence only when an opposite conclusion

is apparent or when the findings appear to be unreasonable, arbitrary, or not based on the

evidence.” Eychaner v. Gross, 202 Ill. 2d 228, 252 (2002). To disturb a damages award, “we must

find that the trial judge either ignored evidence or that its measure of damages was erroneous as a

matter of law.” King, 2020 IL App (1st) 191307, ¶ 28.

¶ 22 “The proper measure of damages for a breach of contract is the amount of money necessary

to place the plaintiff in a position as if the contract had been performed. [Citation.] However, the

claimant should not be placed in a better position, providing a windfall recovery.” In re Illinois

Bell Telephone Link-Up II, 2013 IL App (1st) 113349, ¶ 19. Damages are not intended to penalize

the breaching party. Meade v. Kubinski, 277 Ill. App. 3d 1014, 1022 (1996). Damages are an

essential element of a breach of contract claim, and a plaintiff’s failure to adequately prove them

will entitle a defendant to judgment as a matter of law. In re Illinois Bell Telephone Link-Up II,

2013 IL App (1st) 113349, ¶ 19.

¶ 23 Generally, when a builder fails to fully perform under a contract, damages should be

calculated by the cost of correcting the defects. Young v. Wilkinson, 2022 IL App (4th) 220302,

9 ¶ 87. “However, two exceptions exist: (1) when the defects can only be corrected at a cost

unreasonably disproportionate to the benefit to the purchaser or (2) when correcting the defects

would entail an unreasonable destruction of the builder’s work.” Id. If either of these exceptions

apply, damages should be measured by the “amount by which the defects have reduced the value

of the property.” Id. Plaintiffs have the burden “not only to establish that [they] sustained damages

but also to establish a reasonable basis for computation of those damages.” Naiditch v. Shaf Home

Builders, Inc., 160 Ill. App. 3d 245, 267 (1987). Notwithstanding, the plaintiff need not prove the

amount of damages with absolute certainty. Shaw v. Bridges-Gallagher, Inc., 174 Ill. App. 3d 680,

684 (1988).

¶ 24 In his opening appellant brief, Winkler argues that Yan’s testimony supports that the cracks

would reappear if they were merely filled, thus necessitating replacement. However, the cited

testimony reflects only Yan’s explanation that improper soil density may have caused the cracks.

At no point in his testimony did Yan opine as to what would happen if the cracks were repaired

rather than the entire pool replaced. In fact, Yan’s testimony never addressed what corrections

would or would not be suitable to fix the cracks. Nor did any other witness or documentary

evidence address this question. Instead, Winkler speculates as to the ineffectiveness of repairing

the cracks in his pleadings, his rebuttal to DPI’s closing argument, and his brief on appeal,

notwithstanding that no supporting evidence was presented at trial.

¶ 25 Winkler does not cite any authority that allows a damages award in a breach of contract

action where there was no evidence produced at trial to establish what corrections are necessary to

remedy the breach. Winkler cannot arbitrarily select a remedy; rather, it is well-established that he

is limited to that which is necessary to place him in the same position he would have been in had

DPI adequately performed under the contract. See In re Illinois Bell Telephone Link-Up II, 2013

10 IL App (1st) 113349, ¶ 19 (“The proper measure of damages for a breach of contract action is the

amount of money necessary to place the plaintiff in a position as if the contract had been

performed. [Citation.] However, the claimant should not be placed in a better position, providing

a windfall recovery.”). Any other approach would risk providing Winkler with an impermissible

windfall and penalize DPI.

¶ 26 Winkler asserts that, notwithstanding his failure to present any expert testimony or

documentary evidence, total replacement is necessary. He essentially argues that the court should

have applied its common sense to conclude that any other remedy would be insufficient because

the cracks would reappear. However, without evidence in this regard, the court could not

reasonably determine what corrections are warranted when cracks appear due to poor quality

concrete or improper compaction of the underlying soil. For example, if the cracks were caused

by settling from improper compaction of the soil, the court would have no way to know whether

the pool would continue to settle and form additional cracks, or if it has already settled into its

final position and merely filling the cracks would make Winkler whole. Accordingly, without

evidence of what was necessary to cure DPI’s breach of contract, any conclusion by the court that

total replacement of the pool was necessary would have been improperly based on speculation and

conjecture. See Razor v. Hyundai Motor America, 222 Ill. 2d 75, 108-09 (2006) (jury’s personal

familiarity with vehicles was insufficient to allow them to independently calculate the diminished

value of the vehicle based on the vehicle’s defect, reasoning that it would require them to engage

in improper speculation and conjecture); see also Bowman v. Zimny, 256 Ill. App. 3d 386, 390-91

(1993) (“[A]n assessment of damages made without the necessary level of certainty will be

considered to be against the manifest weight of the evidence.”). Consequently, Winkler failed to

11 prove a reasonable basis for the calculation of damages, and DPI was entitled to judgment as a

matter of law.

¶ 27 In the alternative, Winkler asks that we remand the case for a determination of damages

under the diminution of value standard. In support, Winkler relies on Mayfield v. Swafford, 106

Ill. App. 3d 610, 616 (1982), for the proposition that the failure to award him any damages would

penalize him and reward DPI. In Mayfield, homeowners sued a contractor for faulty construction

of their swimming pool. Id. at 611. At trial, the court heard evidence of the cost of repairs through

an engineer’s detailed testimony of the corrections necessary and the estimated cost thereof, as

well as a pool installer’s testimony that the pool needed to be replaced entirely. Id. The trial court

awarded the homeowners cost of repair damages that represented more than 150% of the contract

price, which the reviewing court determined on appeal to be disproportionate to the benefit the

homeowners received from the contract. Id. at 611, 615. Additionally, the repairs would have

required a substantial reconstruction of the whole facility. Id. at 615. As such, the court determined

that both exceptions to the general measure of damages applied and that the diminution of value

measure of damages should be considered. Id. Noting that the homeowners did not present any

evidence of the diminished value of their property at trial, the court held that it would be a “harsh”

result to use this fact to enter judgment for the contractor outright. Id. at 616. Instead, the court

remanded the case for a hearing on the diminution of value with instructions that the homeowners

would be entitled to the lesser of the two measures of damages. Id.

¶ 28 Unlike the homeowners in Mayfield who presented (1) detailed testimony about what

course of action would correct the deficits in their pool, and (2) the estimated cost of repairs,

Winkler failed to present any evidence that falls within the first category. Accordingly, we are

unable to determine the necessary cost of repair and compare it to the benefit received by Winkler

12 or whether the repairs would require an unreasonable destruction of the pool. Thus, the Mayfield

court’s rationale for remanding the case for a determination of damages under the diminution of

value rule simply does not apply here. Moreover, case law disfavors remanding a case and allowing

the trial court to hear additional evidence where the parties were afforded the full opportunity to

present their cases and it is not alleged that the trial court wrongly refused evidence or that the trial

was otherwise unfair. See Midwest Software, Ltd. v. Willie Washer Manufacturing Co., 258 Ill.

App. 3d 1029, 1056 (1994) (citing Meeker v. Gray, 142 Ill. App. 3d 717, 726 (1986)); cf. Razor,

222 Ill. 2d at 109-10 (remanding where the failure to present evidence of a reasonable basis to

calculate damages was attributable to the trial court’s improper exclusion of evidence). Simply

put, remand to assess damages under these circumstances is inappropriate.

¶ 29 III. CONCLUSION

¶ 30 For the reasons stated herein, we affirm the judgment of the circuit court of Du Page

County.

¶ 31 Affirmed.