Mayer Paving & Asphalt Co. v. Carl A. Morse, Inc.

Citations: 365 N.E.2d 360; 48 Ill. App. 3d 73; 8 Ill. Dec. 122; 1977 Ill. App. LEXIS 2546Docket: 76-96, 76-473 cons.

Court: Appellate Court of Illinois; March 30, 1977; Illinois; State Appellate Court

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Mayer Paving and Asphalt Company (Mayer) filed a lawsuit against Carl A. Morse, Inc. of Illinois through its division Diesel Construction Company (Diesel) and Jupiter McClurg, Inc. (Jupiter), seeking payment for extra work related to a contract for constructing tennis courts at the McClurg Court apartment complex in Chicago. Diesel and Jupiter counterclaimed, alleging defective work and materials. After a jury trial, the jury awarded Mayer $3,900 against Diesel and Jupiter jointly, $14,400 against Jupiter alone, and $1,200 to Diesel and Jupiter on their counterclaim. Post-trial motions by Diesel and Jupiter were denied, and they appealed, arguing Mayer failed to prove its claims, the counterclaim's damage assessment was too low, errors in jury instructions, prejudicial remarks by Mayer's counsel, and improper denial of their post-trial motions. Additionally, they sought to have costs for reproducing case excerpts apportioned between the parties. The Illinois Appellate Court affirmed the trial court's judgment and denied the motion for cost apportionment.

Key facts include that Mayer subcontracted for the construction of two rooftop and three indoor tennis courts for a contract price of $35,000, later amended to three rooftop courts, and was paid $43,000 for the work. Mayer claimed $4,500 for repairs to damage caused by other trades, receiving $2,250 from the jury. Additional claims for construction-related changes included $550 for a drainage trough and $1,100 for repairs to soft spots on the courts, both awarded against Diesel and Jupiter. The case also noted that Diesel had previously indicated the work was not meeting the required standards.

Jupiter opted to install a cushioned playing surface on the interior courts, deviating from the contract specifications. Mayer was contracted to complete the interior courts for $14,400, contingent on approval from the sports center director. Mayer claims this payment as an extra, while Jupiter contends the work was unsatisfactory and lacked necessary approval. The jury ruled in favor of Mayer for the full amount claimed.

In a counterclaim, Diesel and Jupiter alleged that Mayer provided defective work, necessitating repairs by other contractors, resulting in damages of $53,000 due to lost profits and reputation. A witness testified that repairs cost $30,060, mainly for a carpet surface not specified in Mayer's contract, and lost court time amounted to $3,000 to $4,000. The jury awarded Diesel and Jupiter $1,200.

On appeal, Diesel and Jupiter argued Mayer failed to prove entitlement to additional payments for specific repairs. They cited legal precedent requiring clear evidence that the work was outside the contract, ordered by the owner, agreed to be paid for, not voluntarily provided, and not necessitated by the contractor's default. They asserted Mayer did not fulfill contractual obligations to inspect and report on surface conditions prior to beginning work, which they argued barred recovery for the soft-spot repairs and trough construction. Mayer countered that the roof's construction prevented adequate inspection and claimed the owner directed and agreed to pay for the extra work. Defendants also argued Mayer failed to prove entitlement to payment for damages attributed to other trades.

Defendants assert that Mayer's contract required it to protect its work, making the subsequent repair work part of the contract rather than an extra. The project manager for Diesel confirmed his role in coordinating trades. Mayer testified that after laying the surface on the indoor courts, it was not called back for several months, during which time unauthorized activity occurred on the courts, resulting in damage. Despite being warned to keep off the surface, footprints were found when Mayer returned. The parties acknowledged damage caused by defendants' actions, which included storing flower pots and scaffolding. Diesel instructed Mayer to record the time for patching and agreed to cover the repair costs.

Defendants claim Mayer failed to prove entitlement to the $14,400 for relevelling, cushioning, and resurfacing the courts, arguing the award contradicted the evidence. However, it was shown that after resuming work in 1972, Jupiter chose a cushioned surface different from the original contract specifications but allowed Mayer to proceed with this installation, agreeing to the $14,400 payment contingent on Max Davidson's satisfaction. Mayer's testimony indicated he coordinated with Davidson regarding final touches on the courts, which included an additional coat of color.

The cost breakdown presented by Mayer totaled $14,400, comprising $7,500 for the color system and $7,000 for cushion material. The court found that Mayer met the burden of proof for extras as outlined in relevant case law. The jury's awards for various repairs, including $14,400 for the indoor courts, were deemed consistent with the evidence. Defendants argued that a $2,250 award related to other damage claims indicated a compromise verdict, but the court upheld the jury's discretion in determining damages based on the presented evidence. Lastly, defendants contended that the counterclaim award implied Mayer breached the contract, but the court referenced that substantial fulfillment of construction contracts does not negate the owner's obligation to pay for services rendered, subject to appropriate deductions.

Defendants claim the jury's award of $1,200 from their $53,000 counterclaim is inconsistent with the evidence presented. Both sides provided testimony regarding the repairs of the indoor courts after Mayer's work, and the court emphasizes that findings by the trier of fact are upheld unless they are clearly against the weight of the evidence. Defendants submitted a contract from another firm for resurfacing the courts at a cost of $30,060, which included a $1,500 charge for resurfacing, although the primary work involved carpeting not specified in Mayer's contract. The jury, having heard all evidence, is credited with effectively evaluating the credibility of the testimonies. 

Defendants contest a jury instruction related to contract modification and waiver, claiming it was misleading and prejudicial. The instruction stated that written contracts can be modified by oral agreements or waived. Case law supports that oral modifications are permissible in written contracts if the party allowing changes does not insist on written evidence. Evidence indicated that the extras for which Mayer received judgment were approved by defendants and based on oral agreements. Therefore, the court found no error in the jury instruction.

Defendants also object to remarks made by plaintiff's counsel during closing arguments, alleging these distorted testimony. Although specific remarks are not detailed, the trial judge instructed the jury to disregard any unsubstantiated statements. The court noted that while trial errors can occur, the key issue is whether such errors significantly impacted the trial's outcome. After reviewing the overall context, the court did not identify reversible error stemming from the closing argument.

Defendants sought a judgment notwithstanding the verdict or, alternatively, a new trial, contending that the trial court erred in denying this motion. Such a motion argues that the evidence is insufficient to support the verdict for the opposing party. A key distinction exists between the trial court's role in evaluating the evidence's weight and that of a reviewing court, which must consider the trial judge's firsthand observations of witnesses and arguments when denying a motion. The reviewing court's standard for overturning a verdict is higher than that of the trial judge, who can set aside a verdict if he believes the plaintiff has not met the burden of proof. The reviewing court, however, does not consider the preponderance of evidence in the same manner. The court concluded that the jury's verdict, supported by the trial judge, was not against the manifest weight of the evidence, thus affirming the denial of the motion. Additionally, defendants requested the court to address a misunderstanding regarding the costs of reproducing record excerpts, which totaled $885.80 for 697 pages. They believed there was an agreement to share costs based on the number of pages requested, but no formal discussion had occurred. The court noted that the excerpts must include all necessary pleadings and indicated that the stipulation between counsel did not show any unnecessary portions. Consequently, the defendants' motion regarding the costs was denied, and the judgments from the circuit court of Cook County were affirmed.