Garver v. Ferguson

• Decision Date: 24 July 1978
• Docket Number: No. 77-362,77-362
• Citation: 380 N.E.2d 401,63 Ill.App.3d 453,20 Ill.Dec. 423
• Parties: , 20 Ill.Dec. 423 Bill R. GARVER, Petitioner-Appellant, v. Roy D. FERGUSON and R. Gene Cobbel, d/b/a Ferguson-Cobbel Construction, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 401

380 N.E.2d 401

63 Ill.App.3d 453, 20 Ill.Dec. 423

Bill R. GARVER, Petitioner-Appellant, v. Roy D. FERGUSON and R. Gene Cobbel, d/b/a Ferguson-Cobbel Construction, Respondents-Appellees.

No. 77-362.

Appellate Court of Illinois, Fifth District.

July 24, 1978.

Hoagland, Maucker, Bernard & Almeter, Alton, for petitioner-appellant; James K. Almeter, Alton, of counsel.

Cox & Bassett, P.C., Wood River, for respondents-appellees; William M. Cox, Jr., Wood River, of counsel.

WINELAND, Justice.

Appellant, Bill R. Garver, appeals from an order of the Circuit Court of Madison County confirming an arbitrator's award of $26,400 in favor of the appellees, Roy D. Ferguson and R. Gene Cobbel, d/b/a Ferguson-Cobbel Construction.

Appellant, as owner-architect, entered into a construction contract for a single family vacation home on Holiday Shores, Madison County, Illinois. Almost immediately disputes arose between appellant and appellees over whether appellees were constructing the house in accordance with the plans and specifications of the construction contract. Said contract also provided "that all Work will be of good quality, free from faults and defects and in conformance with the Contract Documents. All Work not so conforming to these standards may be considered defective." The disputes were primarily between Garver and Cobbel as Ferguson was seldom at the construction site.

The first dispute between the parties arose over the manner in which the concrete was poured. Appellant wanted a monolithic pour of the walls. Cobbel admitted the pour was a "piecemeal pour," but that said pour was necessitated by adverse weather conditions. One wall developed a slope face, because some of the forms slipped when the concrete was poured. Cobbel replaced the wall. Subsequently leakage occurred in the basement, and one basement wall had started to crack. Cobbel stated that he would plug the hole in the wall but did not do it as the contract was terminated. Garver maintained that the holes were where appellees thought that the utility lines would go through; however, the utility lines did not go through those holes. Cobbel, on the other hand, testified that Garver showed him where the holes were to be made. A dispute as to the type of waterproofing used on the walls arose. Cobbel admitted that the type of waterproofing applied was not the type specified in the construction contract. Architects, engineers, and contractors filed affidavits in support of Garver. After the contract was terminated, Bode Construction Company completed the project. Frank Bode's affidavit stated that he had to rewaterproof certain portions of the basement.

The second disagreement arose over the disposition of excess materials. The contract specified that excess materials were to be the property of the owner. Cobbel interpreted the contract to mean that only materials which could not be used on other construction projects became property of the owner. Other excess materials became the property of the appellees. The affidavits stated that if the contract specifically provided that excess materials belonged to the owner, the accepted interpretation of that provision is that all of the excess material belonged to the owner.

The third area of dispute involved the roof of the house. Garver stated that the roof sheeting did not meet contract specifications. Cobbel first stated that he could not procure roof sheeting which met the specifications of the contract. Later Cobbel stated that he thought the roof sheeting met the specifications of the contract. The contract further provided that the roof flashing was to be factory coated brown or bronze and to be of the same material as the gutters. The flashing, which was installed by the appellees, was .013 thickness. The affidavits stated that the flashing was not thick enough and was of little value to prevent water from intruding on the interior of the home.

Section 14.2.1 of the contract provided that if the contractor is guilty of a substantial violation of a provision of the contract documents, this, after giving seven days written notice, terminated the employment of the contractor. When appellees proceeded to install shingles over the defective flashing, Garver ordered them to stop work pursuant to another section of the contract. The contract between the parties was subsequently terminated.

In addition to the main areas of disputes noted above, the affidavits of the contractors, engineers, and architects, who inspected the home after the contract was terminated, stated that the overall quality of workmanship was poor. The framing methods did not provide a structural continuity which developed the full strength capacity of the component parts much less the structural system as a whole. The floor to floor dimension was off approximately one inch which necessitated a reworking of the circular stairs. The north wall leaned too far into the brick work and had to be pulled back. The balcony deck was not attached to the house with galvanized bolts as specified but attached with nails which produced rust streaks after a rain. The bathtub was not installed according to the manufacturer's specifications. The bathtub and shower area was not properly insulated. The sliding door sill flashing discharges its water into the wall construction which will cause rot in the interior wall.

When Garver terminated the contract, he and affiant Rapp estimated that the project was approximately 30% to 40% complete. Appellees estimated that their work was 70% complete. Garver attempted to obtain bids for completion of the home, but he was unable to obtain any bids as various contractors would not estimate the amount of time and materials they would need to correct the defective workmanship of appellees. Bode Construction completed the house on a time and material basis and billed Garver $47,040.56.

Pursuant to the construction contract, appellees submitted their claim for $45,000 against the appellant to arbitration. Appellant counterclaimed for $18,211.30. By stipulation of the parties, the matter proceeded to arbitration by a two person panel. Said arbitrators were Jack Bland and Angelo Corrubia, neither of whom had previously served as an arbitrator.

Illinois has enacted the Uniform Arbitration Act (Ill.Rev.Stat.1975, ch. 10, par. 101 Et seq.). Ill.Rev.Stat.1975, ch. 10, par. 112 limits the basis on which an arbitration award may be vacated. Appellant argues that the award should be vacated on the grounds that the arbitrators exceeded their powers under the contract and that Arbitrator Corrubia was prejudiced against appellant, although Corrubia was selected as a neutral arbitrator. We need only discuss the first issue.

The contract between the parties provided:

If the Contractor . . . is guilty of a substantial violation of a provision of the Contract Documents, then the Owner, upon certification by the Architect that sufficient cause exists to justify such action, may, without prejudice to any right or remedy and after giving the Contractor and his surety, if any, seven days written notice, terminate the employment of the Contractor and take possession of the site and of all materials, equipment, tools, construction equipment and machinery thereon owned by the Contractor and may finish the work by whatever method he may deem expedient.

A final disposition of differences between parties in an easier, more expeditious, and less expensive manner than by litigation is the object of arbitration; therefore, whenever possible the court construes awards so as to uphold their validity. (Sweet v. Steve's Cartage Co. (3rd Dist. 1977), 51 Ill.App.3d 913, 8 Ill.Dec. 724, 365 N.E.2d 1110). However, an arbitrator must not exceed his power (Ill.Rev.Stat.1975, ch. 10, par. 112(a)(3)) and is confined to an interpretation and application of the contract; he does not sit to dispense his own brand of justice. An arbitrator may, of course, look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the contract. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. (Ill.Rev.Stat.1975, ch. 10, par. 112(a)(3); United Steelworkers v. Enterprise W & C Corp. (1960), 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424, Belardinelli v. Werner Continental, Inc. (1974), 128 N.J.Super. 1, 318 A.2d 777).

By the terms of the contract, appellant had the right pursuant to the contract to terminate construction and did so terminate. Appellees never contested that appellant had the right to terminate or improperly terminated the contract. The transcript of the arbitration hearing establishes that Arbitrator Corrubia did not consider this right of termination in his award. Toward the end of the arbitration hearing, Corrubia stated: "It is true that and you've (appellant) established that they do have deficiency in the construction. A lot of the stuff you're (appellant) talking about though, could have been corrected by them if they'd (appellees) have finished the house. You (appellant) can't deny that . . . what I'm saying is that it was possible and plausible, wouldn't you say, Jack (Bland) that they would have corrected some of the deficiencies like around the vent and things like that where they cut framing that they would have done some of the corrective work themselves." At another point in the hearing, Corrubia stated: "They (appellees) already admitted that they were going to pull them (shower and bathtub plumbing) and insulate behind them, so I think that (the incorrectly installed bathtub and shower) is irrelevant." Finally,...