Evans and Associates, Inc. v. Dyer

• Decision Date: 07 June 1993
• Docket Number: No. 2-92-0964,2-92-0964
• Parties: , 185 Ill.Dec. 900 EVANS AND ASSOCIATES, INC., Plaintiff-Appellee, v. Sandra DYER, f/k/a Sandra Schwander, Defendant-Appellant (Russell Schwander, et al., Defendants).
• Court: United States Appellate Court of Illinois

Page 770

615 N.E.2d 770

246 Ill.App.3d 231, 185 Ill.Dec. 900

EVANS AND ASSOCIATES, INC., Plaintiff-Appellee, v. Sandra DYER, f/k/a Sandra Schwander, Defendant-Appellant (Russell Schwander, et al., Defendants).

No. 2-92-0964.

Appellate Court of Illinois,

Second District.

June 7, 1993.

Rehearing Denied July 20, 1993.

Grief, Bus & Blacklidge, Dalton P. Grief (argued), Grief, Bus & Konewko, West Chicago, for Russell Schwander, et al.

John R. Bush (argued), Kupisch, Hunt, Carbon, Kaiser & Bush, Bensenville, for Evans & Associates, Inc.

Presiding Justice INGLIS delivered the opinion of the court:

In this case, defendant, Sandra Schwander (now Sandra Dyer), appeals from a judgment rendered in a bench trial by the circuit court of Du Page County. The court awarded $22,719.83 to Evans and Associates, Inc. (the contractor), in its suit to recover sums it alleged were due for the construction of a custom home for Sandra and her then-husband, Russell Schwander (the buyers), in Bartlett, Illinois.

At trial, the parties disputed whether the home was built in a workmanlike manner. On appeal, Sandra argues (1) that the trial court should not have permitted the contractor's vice-president, Michael Evans, to testify as an expert because there was no disclosure of the basis of his opinion; (2) that an exhibit regarding the structural integrity of certain beams installed in the home's great room should not have been admitted; (3) that the court should have allowed the buyers' architect to testify that the contractor did not comply with the building plans; and (4) that the trial court erred in refusing to grant their motion for judgment in their favor, made after the close of the contractor's case in chief.

TRIAL PROCEEDINGS

The contractor's first amended complaint alleged causes of action for breach of contract, foreclosure of a mechanics' lien (see Ill.Rev.Stat.1991, ch. 82, par. 1 et seq.) and recovery under the theory of quantum meruit. At trial, the contractor called Russell Schwander and Michael Evans as witnesses. The buyers called their architect, Ed Faron, Sandra Schwander, Michael Evans, and Geri Mazel, a Du Page County records office employee.

Russell Schwander testified as an adverse witness (see Ill.Rev.Stat.1991, ch. 110, par. 2-1102) that he and his then-wife Sandra hired the contractor to build them a home for $35,500 plus costs of labor and materials. He stated that two beams in the home's great room were installed upside down and had cracked entirely through their length. The roof in that area had also begun to crack. There was a hole in the garage floor about the size of a half-dollar and approximately 15 footprints in the garage floor. Additionally, the pipes in the guest bathroom would freeze, a stone sill in front of the front door was missing, and water gathered where the patio joined the house. Two trapezoid windows in the great room were too close to the fireplace, and a room above the garage was built incorrectly, resulting in a greater floor-to-ceiling height in the room and an inadequate floor-to-ceiling height in the garage. This inadequate height in the garage caused the garage door opener to be installed directly against the garage ceiling instead of hanging a distance away from the ceiling, and caused the tops of the garage windows to reach the garage ceiling. Further, the garage overhang was bowed. Finally, a second pour of the foundation was required and the home thereafter had seepage problems in the basement.

Russell also stated that the home's defects never threatened his health or safety and that he had lived in the home until marital problems with his wife spurred his move. He acknowledged that the plans for the home were drawn with a different building site in mind. He also stated that he had not paid the contractor the full price agreed upon. Russell further testified that he had talked with the supplier of the support beams and was informed that although the beams were installed incorrectly, the supplier would warrant the structural characteristics of the beams as installed. Russell admitted that he had received a copy of a letter written by a third person to the supplier stating that the beams were structurally sound.

The contractor then called its vice-president, Michael Evans. Evans had been a general contractor for five years and had received a bachelor's of science degree in He also stated that the reason the trapezoid windows in the great room were too close to the fireplace was that the buyers had changed the plans from a brick fireplace to a stone one, which jutted out farther than a brick one would have and correspondingly shrank the distance between the sides of the fireplace and the adjacent windows. Evans admitted that the pitch of the patio did not conform to the plans, that having two foundation pours did not conform to the plans, that the garage overhang was bowed, and that the room above the garage did not conform to the plans. Evans also testified as to the amounts due his company and various subcontractors.

[185 Ill.Dec. 903] architecture from Iowa State University. He testified that he had signed a contract with the buyers and had not been fully paid. He further testified as to the manner in which the house was constructed, the problems encountered along the way and his attempts to solve those problems with the buyers. He admitted that two of the beams in the great room were installed upside down.

The buyers then made a motion for a directed finding. This motion was denied, and the buyers began their case by calling their architect, Ed Faron. Faron testified that he drew the plans for the buyers but did not have "substantial interaction" with Evans during construction. The trial judge allowed Faron to testify about his services and his observations when he visited the site, but did not allow him to testify as to whether the house as constructed deviated from the plans because Faron was not disclosed as an expert witness pursuant to Supreme Court Rule 220 (134 Ill.2d R. 220).

Sandra Schwander then testified for the defense about the progress of her home's construction. She also identified photographs showing alleged defects in the home and testified about some of the defects earlier listed by Russell Schwander. Specifically, Sandra stated that the great room had windows which were to open and shut with a crank. The windows cranked open but had to be both cranked from the inside and pushed from the outside in order to close. She stated that the windows did not achieve a complete seal when closed. Sandra also testified that the beams in the great room cracked loudly in cold weather. It was also Sandra's testimony, with regard to the bowed garage overhang, that she and Russell had changed the plans for the overhang, but that the change was necessitated by the deviation from the plans when the room above the garage was constructed. Sandra further explained her negotiations with the contractor to address her concerns.

Michael Evans was called as an adverse witness by the buyers. (See Ill.Rev.Stat.1991, ch. 110, par. 2-1102.) He elaborated on some of the problems he encountered during construction and explained how the subcontractors were paid. Evans also testified about amounts unpaid by the buyers at the time of trial and identified various final lien waivers.

Finally, Sandra Schwander testified that she did not recall receiving the final lien waivers but that she did remember receiving a statement from the contractor together with certain invoices.

Following closing arguments, the trial judge rendered judgment for the contractor on the breach of contract and mechanic's lien claims. The judge then found the quantum meruit claim moot. Sandra timely appealed.

ANALYSIS

1. THE LETTER

We address first the issue of whether the trial court should have admitted a letter written by an alleged structural engineer to the supplier of the beams that were admittedly installed upside down in the great room. At trial, Russell Schwander testified that he received a copy of the letter from Evans, and Russell agreed with the contractor's attorney's characterization of the letter as stating that "the beams were installed properly and meet all requirements, both county, state and federal, for the support of the roof in [his] home." Mr. Schwander also agreed that he received a certificate signifying that the supplier or manufacturer would, again in the words of the contractor's attorney, "warranty the structural characteristics of the beams installed at [his] home." Michael Evans testified that the same letter set forth that its writer, John Frederick, was an Illinois registered engineer.

Sandra contends that the letter should not have been admitted because (1) it was not disclosed pursuant to Supreme Court Rule 220(c) (134 Ill.2d R. 220(c)) as the basis for Evans' expert opinion; (2) it was hearsay; (3) it was irrelevant; and (4) no proper foundation was laid.

The contractor argues that the letter was properly admitted for the purpose of explaining expert testimony by Michael Evans regarding the structural integrity of the beams. The contractor further argues that it presented a proper foundation for admission of the letter as a business record under Supreme Court Rule 236. 134 Ill.2d R. 236.

First, we disagree with the parties that Michael Evans testified as an expert regarding the structural integrity of the beams. We have closely reviewed the testimony given by Mr. Evans and nowhere were qualifications presented that would have allowed him to express an opinion on structural engineering issues. Moreover, Evans never explicitly stated that, in his opinion, the great room beams were sound. At one point in the trial, Evans stated, without explanation, that the beams were not defective. At another point, Evans merely noted that the beams had been checked out by the alleged engineer who had written the letter to the supplier and that the buyers had received a...