Meade v. Kubinski
| Decision Date | 16 February 1996 |
| Docket Number | No. 3-94-0348,3-94-0348 |
| Citation | 277 Ill.App.3d 1014,661 N.E.2d 1178,214 Ill.Dec. 733 |
| Parties | , 214 Ill.Dec. 733 Francis W. MEADE and Marjorie E. Meade, Plaintiffs/Counter-Defendants/Appellants, v. Gerry KUBINSKI and Peggy Kubinski, Defendants/Counter-Plaintiffs/Appellees, and Heritage Material, Inc., Intervenor/Appellee. |
| Court | United States Appellate Court of Illinois |
Joseph M. Cernugel, Block, Krockey, Cernugel and Cowgill, P.C., Joliet, Edward Petka, Plainfield, for Francis W. Meade, Marjorie E. Meade.
Randal J. Miller, Dunn, Martin Miller, Ltd., Joliet, for Heritage Material, Inc., Gerry Kubinski, Peggy Kubinski.
This matter involves a dispute over a written lease between the plaintiffs/counter-defendants, Francis and Marjorie Meade (the Meades) as lessors, and the defendants/counter-plaintiffs, Gerry and Peggy Kubinski (the Kubinskis) as lessees of a seven acre tract of farm land for use in the Kubinskis' gravel crushing operation.
In their complaint, the Meades alleged that the Kubinskis breached the lease in failing to pay royalties on certain materials processed on the leased property, and in failing to return the property in as good a condition as it was before the Kubinskis took possession. The Kubinskis filed a counter-complaint alleging that the Meades had improperly terminated the lease. Heritage Materials, Inc. (Heritage Materials), a corporation owned by the Kubinskis, intervened as an interested party in the counter-complaint.
Following a bench trial, the trial court found that the Kubinskis had breached the lease and assessed damages of $43,980 for unpaid royalties and $30,000 for the failure to restore the property to the condition it was in prior to taking possession. The trial court also entered judgment against the Kubinskis on their counter-complaint. The Meades appeal the measure of damages awarded by the trial court on each count; the Kubinskis and Heritage Materials appeal the denial of their counter-claim. We affirm in part, reverse in part, and remand this cause to the trial court.
The Meades owned a 160 acre farm in Channahon Township in Will county, which they had farmed since 1954. The Meade farm consisted overall of highly productive Brenton, Warsaw, and Lorenzo silt loam soil of a thickness of two to three feet. For more than 30 years the farm had produced crops of corn, wheat, soybeans, and tomatoes. In the ten years immediately prior to the Kubinski lease, however, the land had been used only to grow cattle feed and to pasture cattle.
The Kubinskis owned a 160 acre tract immediately south of the Meade farm, which they purchased with the intention of developing as a residential lake community. Prior to purchasing their property, the Kubinskis initiated discussions about leasing a small tract of property from the Meades where they would process and sell the gravel removed in digging the lake on their own property.
Several meetings between the parties took place over approximately a year. At one meeting, the parties apparently reached a verbal agreement for the Kubinskis to remove material from their property, transport the material to the seven acre tract leased from the Meades, and process the material into gravel. It was also agreed at this meeting that the Meades would receive 50 cents for each ton of gravel processed and sold from the leasehold. Other terms of the agreement were still unresolved. Subsequent After additional discussions and consultations with their attorneys, a written lease, drafted by the Meades' attorney, was executed on November 6, 1989. The lease provided that the Kubinskis would use the seven acre plot for a gravel crushing operation in return for which they would pay the 50 cents per ton royalty for all gravel processed and sold on the Meade leasehold. In addition, the lease contained a yield up clause in substantially similar form to the one submitted originally by the Kubinskis.
[214 Ill.Dec. 736] to this oral agreement, the Kubinskis submitted a written lease agreement to the Meades. The lease contained a "yield up" clause calling for the property to be returned "in as good condition as when the same were entered upon * * * loss of fire or inevitable accident and ordinary wear excepted." The Meades submitted a revised written lease, and negotiations continued
Shortly thereafter, the Kubinskis incorporated Heritage Materials and began the gravel crushing operation. It soon became apparent to the Kubinskis that the gravel they were crushing on the Meade property was not of sufficient quality to be commercially viable. At some point in 1991, the Kubinskis changed their method of processing material into gravel by starting a washing operation, a process by which dirty stone is cleaned by pumping water under pressure through the material. The Kubinskis claim that they informed the Meades of this change in operations. The Meades, however, deny being so informed.
The washing operation created a residue by-product known as "slimes," a talcum-powder like substance with very poor draining properties. The Kubinskis initially stored the slimes in silt ponds on the leased property; however, due to the large amounts of slimes the silt ponds quickly became filled, and slimes then began to run off onto the Meades' adjacent pasture land, causing some of his cattle to become ill. Additional silt canals were then built in an attempt to handle the run-off. The presence of slimes, which had a gelatinous consistency, prevented the proper drainage of the soil for agricultural purposes.
In order to accomplish the washing operation, the Kubinskis stripped the topsoil from the subject property and placed it in "windrows" on or near the property. The Meades' expert testified that this native topsoil was subsequently removed from the site and replaced with a course clay material with a mixture of rock and gravel. This topsoil was unavailable when the time came for the Kubinskis to return the property.
In July 1991, the Meades filed for a temporary injunction to stop the washing operation, contending that it had been commenced without their permission and was a breach of the lease. They also filed for an accounting, for forcible entry and detainer, and an action for trespass. The Kubinskis counter-claimed for breach of lease, alleging that the Meades' refusal to permit washing operations constituted a breach, and further alleging substantial loss of profits as a result of the breach. Even after the lawsuit was filed, however, the Kubinskis continued to process and wash gravel on the subject property for several months.
Eventually, an agreed order was entered halting the gravel washing operation. The Kubinskis admitted that they owed the Meades $43,980 for materials processed on the subject property between the time the complaint was filed and the time the agreed order was entered. The Meades contended, however, that the Kubinskis removed an additional 143,572 tons of material for which the Meades received no compensation. The Kubinskis maintained that the 143,572 tons was unprocessed leftover waste product that could not be sold and therefore no royalty was owed when that material was removed from the leasehold. The Kubinskis acknowledged that the material could have been processed and sold had the Meades not stopped the processing operations, and the Meades would have been due royalties. Instead, the Kubinskis were allowed to truck the material off the premises for processing elsewhere. The Meades contended that the questioned materials were processed on the leasehold and that they were therefore entitled to compensation.
The Meades first maintain on appeal that the trial court erred in determining the amount of damages owed to them in the form of unpaid royalties. They contend that they were entitled to royalty payments for the 143,572 tons of material that was removed from the leasehold at the time the property was surrendered by the Kubinskis. They also contend that they are owed royalties on several thousand tons of gravel allegedly removed by the Kubinskis when a well and silt canals were dug on the subject property. The Meades also maintain that approximately 20,000 tons of topsoil were removed from the subject property by the Kubinskis for which the Meades received no compensation.
The question of the amount of damages due under a contract is generally a question of fact for the trial court, and it is well-settled that a reviewing court may not disturb a trial court's finding as to damages unless it is against the manifest weight of the evidence. (Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill.2d 266, 66 Ill.Dec. 643, 443 N.E.2d 569; Dale v. Luhr Brothers, Inc. (1987), 158 Ill.App.3d 402, 110 Ill.Dec. 756, 511 N.E.2d 933.) To uphold a contention that a damage award is contrary to the manifest weight of the evidence, it must be found that the trial court ignored the evidence or that its measure of damages was erroneous as a matter of law. Vee See Construction Co. v. Luckett (1981), 102 Ill.App.3d 444, 447, 58 Ill.Dec. 149, 430 N.E.2d 91.
The written lease stated that the Kubinskis would pay 50 cents for every ton of "processed gravel sold from the premises." The question to be answered by the trier of fact was whether the disputed material was "processed gravel sold from the premises." The trial court determined, based upon the evidence, that the disputed material was not processed gravel but was instead unprocessed waste material. This is a pure question of fact and thus the trial court's determination will be overturned on review only if it is clearly erroneous, i.e. unsupported by the evidence.
Our review of the record reveals that the trial court's decision was supported by the evidence...
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