Haid v. Tingle

• Decision Date: 20 June 1991
• Docket Number: No. 1-90-0964,1-90-0964
• Citation: 162 Ill.Dec. 99,219 Ill.App.3d 406,579 N.E.2d 913
• Parties: , 162 Ill.Dec. 99 David HAID, Plaintiff-Appellant, v. William F. TINGLE and Frederick A. Scelzo, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 913

579 N.E.2d 913

219 Ill.App.3d 406, 162 Ill.Dec. 99

David HAID, Plaintiff-Appellant, v. William F. TINGLE and Frederick A. Scelzo, Defendants-Appellees.

No. 1-90-0964.

Appellate Court of Illinois First District, Fourth Division.

June 20, 1991.

Rehearing Denied Oct. 24, 1991.

Barsy, Joseph & Lichtenstein; Joseph and Myers, Chicago, (Burton Joseph, Jack Joseph, and Michael P. Myers, of counsel), for plaintiff-appellant.

Richard J. Belmonte, Chicago, for defendants-appellees.

Justice McMORROW delivered the opinion of the court:

Plaintiff appeals from the trial court's order of a remittitur of a portion of the jury verdict for plaintiff in a contract action for payment of architectural fees and expenses.

In February 1983, defendants engaged plaintiff, an architect, to design a medical office building to house their ophthalmology practice. Plaintiff drafted a written agreement in letter form, which defendants signed in May 1983. Pursuant to paragraph 14 of the agreement plaintiff's fee was to be 10% of the total cost of construction. Paragraph 15 provided that, in the event of termination of the agreement by either party, plaintiff's fee would be based upon the time expended on the project, calculated at hourly rates of $75 for plaintiff's services and $45 for the services of his staff. On August 29, 1983, following the receipt of several bids, defendants gave plaintiff written notice of their decision to terminate the agreement. In a letter dated August 30, 1983, plaintiff sent defendants a "final statement for Architectural services and reimbursable expenses." The amount of the statement was $25,572.70. Below the typed portion of the statement itemizing the charges, plaintiff handwrote the following:

"Arch. services based upon 80% of fee as calculated on 10% fee of lowest bid rec'd. This amount (80%) is conventional for the allocation of fees thru bidding--see A.I.A. [American Institute of Architects] form attached."

The A.I.A. standard form agreement to which plaintiff referred contained a table of recommended percentages of compensation payable to an architect for each separate phase of the project, from the schematic design phase through the completion of construction. The percentage recommended for work through the bidding phase was 80%.

Defendants did not make payment on this statement. On September 29, 1983, plaintiff sent a second statement for fees and expenses, which was calculated on hourly rates of $75 for 177 hours of work by plaintiff and $45 for 838 hours of his staff's time, plus expenses. The total amount of the second billing statement was $53,818.70.

Plaintiff filed suit against defendants on October 12, 1983, for nonpayment of fees and expenses. Attached to the complaint were a copy of the written agreement, defendants' letter terminating the agreement, weekly time sheets of work performed by plaintiff and his staff, a copy of the lowest bid received for construction of the building, and the August 30 billing statement of $25,572.70. Defendants filed an answer, in which they asserted as affirmative defenses that (1) plaintiff had failed to provide them with a budget estimate of the project costs or obtain their approval before proceeding with the project, both of which were conditions precedent to their performance of the agreement; (2) plaintiff procured the agreement by fraud, in that he falsely and knowingly misrepresented the actual, final cost of the building; and (3) there was a mutual mistake of fact as to the actual, final cost of the building.

During jury deliberations, the jury sent a note to the trial judge asking whether, if they found in plaintiff's favor, they were limited to awarding either $25,572.70 or $53,818.70. A response was prepared, but the jurors completed their deliberations before it was delivered to them. The jury awarded plaintiff $53,818.70. Defendants filed a post-trial motion alternatively requesting judgment notwithstanding the verdict (judgment NOV), a new trial or a remittitur reducing the amount of the judgment to $25,572.70. Plaintiff filed a response in opposition to defendants' motion and a motion to amend the judgment to add prejudgment interest.

Following a hearing on the post-trial motions, the court determined that the jury verdict was excessive and that a remittitur of the excess was appropriate. The court then denied defendants' motion for judgment NOV or a new trial "except to the extent of such remittitur," and denied plaintiff's motion for prejudgment interest. The written order prepared by plaintiff's counsel further recited that it was "a final order disposing of all controversies between all the parties [and] is entered without prejudice to the right of either party to appeal." On April 3, 1990, plaintiff filed a notice of appeal from the entry of the remittitur and the denial of his motion for prejudgment interest.

OPINION

We consider first defendants' contention that this court lacks jurisdiction to hear this appeal. Defendants argue that Illinois law is clear that a plaintiff who consents to a remittitur waives his right to appeal from the sufficiency of the judgment. Defendants maintain that plaintiff acquiesced to the order of remittitur and is therefore barred from appealing it.

A plaintiff has the right to a trial by jury on all issues, including damages. (Augustine v. Kaufman (1949), 338 Ill.App. 591, 88 N.E.2d 378; Rasmussen v. National Tea Co. (1940), 304 Ill.App. 353, 26 N.E.2d 523.) The assessment of damages is primarily a function of the jury (Johanek v. Ringsby Truck Lines, Inc. (1987), 157 Ill.App.3d 140, 109 Ill.Dec. 283, 509 N.E.2d 1295; McElroy v. Patton (1970), 130 Ill.App.2d 872, 265 N.E.2d 397), and the trial court ordinarily will not substitute its judgment for that of the jury (Jensen v. Richardson (1968), 93 Ill.App.2d 237, 235 N.E.2d 397; Roewe v. Lombardo (1966), 76 Ill.App.2d 164, 221 N.E.2d 521).

However, if after considering all the evidence, the trial judge concludes that the jury verdict is excessive, the judge may not allow the verdict to stand but must act to correct the injustice; and the failure to do so is, itself, error. Johanek, 157 Ill.App.3d 140, 109 Ill.Dec. 283, 509 N.E.2d 1295; Hedrich v. Borden Co. (1968), 100 Ill.App.2d 237, 241 N.E.2d 546; Illinois Law & Practice (I.L.P.), Damages, sec. 199 (1968); see also, Bucher v. Krause (7th Cir.1952), 200 F.2d 576, 586, paraphrasing the United States Supreme Court in Arkansas Valley Land & Cattle Co. v. Mann (1889), 130 U.S. 69, 9 S.Ct. 458, 32 L.Ed. 854, ("[i]t is hornbook law" that "it is as much the duty of the court, if it should clearly appear that the jury committed a gross error, or acted from improper motives, or have given excessive damages in relation to the person or the injury, to interfere to prevent a wrong as in any other case").

One of the means by which a court can correct an excessive verdict is to order a remittitur. A remittitur is an agreement by the plaintiff to relinquish, or remit to the defendant, that portion of the jury's verdict which constitutes excessive damages (Anderson v. Greyhound Lines, Inc. (1975), 34 Ill.App.3d 643, 339 N.E.2d 465; I.L.P. Damages, sec. 199 (1968)); and to accept the sum which has been judicially determined to be properly recoverable damages (Bart v. Union Oil Co. (1989), 185 Ill.App.3d 64, 132 Ill.Dec. 848, 540 N.E.2d 770). The only alternative to a remittitur in a case where the verdict exceeds the damages properly proven (Bart v. Union Oil, 185 Ill.App.3d 64, 132 Ill.Dec. 848, 540 N.E.2d 770; Briante v. Link (1989), 184 Ill.App.3d 812, 132 Ill.Dec. 922, 540 N.E.2d 844), and/or where the verdict can be accounted on the sole basis that the jury acted from some improper motive (Andres v. Green (1955), 7 Ill.App.2d 375, 129 N.E.2d 430), such as passion or prejudice (McElroy v. Patton (1970), 130 Ill.App.2d 872, 265 N.E.2d 397) is for the trial judge to order a new trial (see e.g., Albin v. Kinney (1880), 96 Ill. 214; Bart v. Union Oil, 185 Ill.App.3d 64, 132 Ill.Dec. 848, 540 N.E.2d 770; McElroy v. Patton, 130 Ill.App.2d 872, 265 N.E.2d 397; Barango v. Hedstrom Coal Co. (1956), 12 Ill.App.2d 118, 138 N.E.2d 829; Andres, 7 Ill.App.2d 375, 129 N.E.2d 430; Knowles v. National Plate Glass Co. (1939), 301 Ill.App. 128, 21 N.E.2d 913).

A remittitur is not an agreement between or among the parties (Banks v. Chicago Grain Trimmers Association (1968), 390 U.S. 459, 88 S.Ct. 1140, 20 L.Ed.2d 30; J.I. Case v. McCartin-McAuliffe (1987), 118 Ill.2d 447, 114 Ill.Dec. 105, 516 N.E.2d 260 (requiring the consent of both parties would render remittiturs indistinguishable from voluntary settlements); McElroy, 130 Ill.App.2d 872, 265 N.E.2d 397). Neither is a remittitur ordinarily to be interpreted as a concession by the plaintiff that the damages were excessive. Jensen v. Richardson (1968), 93 Ill.App.2d 237, 235 N.E.2d 397; Andres v. Green, 7 Ill.App.2d 375, 129 N.E.2d 430.

Although a trial court may refuse to enter judgment on a verdict unless a portion of the verdict is remitted, the court does not have the authority to reduce the damages by entry of a remittitur if the plaintiff objects or does not consent. Plaintiff's consent is essential. (E.g., Foster v. Springfield Clinic (1980), 88 Ill.App.3d 459, 43 Ill.Dec. 604, 410 N.E.2d 604.) The trial court must afford the plaintiff the choice of agreeing or refusing to the entry of a remittitur, with the proviso that the plaintiff's refusal to agree to the entry of a remittitur will result in the ordering of a new trial. These principles are firmly established in this State, and have been enunciated in a multitude of decisions spanning well over 100 years. E.g., McCausland v. Wonderly (1870), 56 Ill. 411; North Chicago Street R.R. Co. v. Wrixon (1894), 150 Ill. 532, 37 N.E. 895; Knight v. Seney (1920), 290 Ill. 11, 124 N.E. 813; National Malleable Castings Co. v. Iroquois Steel & Iron Co. (1929), 333 Ill. 588, 165 N.E. 199; McElroy v....