A.W. Wendell and Sons, Inc. v. Qazi, 2-92-1410

• Decision Date: 29 December 1993
• Docket Number: No. 2-92-1410,2-92-1410
• Citation: 254 Ill.App.3d 97,626 N.E.2d 280,193 Ill.Dec. 247
• Parties: , 193 Ill.Dec. 247 A.W. WENDELL & SONS, INC., Plaintiff-Appellee, v. Masood A. QAZI and Yazmin Qazi, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 280

626 N.E.2d 280

254 Ill.App.3d 97, 193 Ill.Dec. 247

A.W. WENDELL & SONS, INC., Plaintiff-Appellee, v. Masood A. QAZI and Yazmin Qazi, Defendants-Appellants.

No. 2-92-1410.

Appellate Court of Illinois,

Second District.

Dec. 29, 1993.

Rehearing Denied Feb. 3, 1994.

Edward P. Freud, Todd M. Porter (argued), Ruff, Weidenaar & Reidy, Ltd., Chicago, David L. Coghlan, O'Donnell, Murtaugh & Coghlan, Lombard, for A.W. Wendell & Sons, Inc.

Robert Steinbock-Sinclair, Oak Brook, Keith E. Roberts, Sr., Robert R. Verchota Justice McLAREN delivered the opinion of the court:

(argued), Donovan & Roberts, P.C., Wheaton, for Masood A. Qazi and Yasmin Qazi.

The plaintiff, A.W. Wendell & Sons, Inc., filed suit against the defendants, Masood A. Qazi, M.D., and Yazmin Qazi, for breach of contract for the nonpayment of extras on a construction contract. The Qazis responded by filing affirmative defenses alleging that Wendell failed to substantially perform under the contract by failing to construct the home in a workmanlike manner and by failing to properly supervise and direct all work on the project. After a bench trial, the trial court found the Qazis failed to sustain the burden of proving their affirmative defenses. Judgment was entered in favor of Wendell and against the Qazis for $152,185.32, which included a reduction of $1,750 that Wendell owed to the Qazis for minor repairs to the home. On appeal, the Qazis request this court to reverse the trial court's judgment and enter judgment in their favor, or, alternatively, to reverse or vacate the judgment and remand for a new trial before a different judge. The Qazis assert that the trial court erred by: (1) finding that Wendell sustained its prima facie case of recovery for extras on the construction contract, including engineering fees; (2) finding that the doctrine of res judicata barred the Qazis from asserting their affirmative defenses; (3) finding that the Qazis failed to sustain their burden of proving Wendell had a duty to supervise the marble installation; (4) allowing evidence to be introduced on the issue of Wendell's contractual obligation to supervise the marble installation in light of the court's prior ruling granting partial summary judgment in favor of the Qazis on the same issue; and (5) barring the Qazis' expert witnesses as a sanction for violating Supreme Court Rule 220. For the following reasons, we affirm in part, reverse in part, and modify in part.

On August 5, 1987, the Qazis entered into a contract with A.W. Wendell & Sons, Inc., to design and construct a single-family residence located in an exclusive area of Oak Brook, Illinois, known as the Midwest Club. The contract price of the home was $881,967. Article 10 of the construction contract between Wendell and the Qazis provided that Wendell would act as general contractor on the project. As general contractor, Wendell agreed to "supervise and direct the work" on the home and assumed responsibility for acts and omissions of "all Subcontractors, their agents and employees and all other persons performing any of the Work under a contract with the Contractor." Article 11 defined a "Subcontractor" as "a person who has a direct contract with the Contractor to perform any of the Work at the site."

Although Wendell's role as general contractor encompassed its responsibility to hire subcontractors, article 12 of the contract reserved the Qazis' right to enter into separate contracts with subcontractors of their own choice. Subsection 12.3 of article 12 specified that "[a]ny costs caused by defective or ill-timed work shall be borne by the party responsible therefor."

Wendell's pricing sheet for the home listed Walsh Tile Company as the proposed subcontractor for marble work. However, the Qazis exercised their rights under article 12 by entering into a separate contract with a marble installer of their own choice known as Marble Supply International, Inc. Qazi forwarded a copy of the contract to Wendell. Thereafter, Wendell listed Marble Supply on its statements which indicated names of the subcontractors furnishing labor and materials on the home.

The Qazis prepared to move into the home in August 1989. When the protective coverings placed on the floors during construction were removed, the Qazis discovered that a substantial portion of the marble flooring was cracked and chipped. The existing floors needed to be replaced with new marble.

On January 18, 1990, the Qazis filed a four-count complaint in the circuit court of Cook County against Wendell and others seeking a judgment declaring that they were not obligated to make further payments on the home until the defective work was remedied (hereinafter referred to as On June 1, 1990, Wendell filed a motion to dismiss the complaint in Qazi I pursuant to section 2-619(a)(3) of the Code of Civil Procedure on the ground that there was another action pending between the same parties for the same cause, namely, Wendell's Du Page County suit to foreclose the mechanic's lien, for breach of contract, and other relief. (735 ILCS 5/2-619(a)(3) (West 1992).) Alternatively, Wendell moved to transfer venue to Du Page County to consolidate Qazi I with his suit to foreclose the mechanic's lien. The motion to transfer was granted. (735 ILCS 5/2-1001 (West 1992).) Upon transfer, the circuit court of Du Page County gave Qazi I its own number and failed to consolidate it with Wendell's suit to foreclose the mechanic's lien.

[193 Ill.Dec. 252] Qazi I ). On March 9, 1990, Wendell recorded a lien on the property under the Mechanics Lien Act in the circuit court of Du Page County for the nonpayment of $149,288.58 due for extras on the construction contract. On May 30, 1990, Wendell filed a complaint to foreclose the mechanic's lien, for breach of contract, consumer fraud, common-law fraud, and conspiracy.

Thereafter, Wendell filed a motion in the circuit court of Du Page County to dismiss the Qazis' complaint in Qazi I for failure to state a cause of action. (735 ILCS 5/2-619 (West 1992).) Wendell's motion was granted on December 7, 1990, by Judge Black on the basis that Wendell could not be liable for breaching a contract to which it was not a party. The Qazis filed several motions to vacate the dismissal order and transfer the cause to the law division for consolidation with Wendell's suit to foreclose the mechanic's lien. The final motion to reconsider the dismissal order was denied in September 1991. The Qazis' appeal of that order remained pending during the trial in the instant case.

Prior to trial, the Qazis filed a motion for partial summary judgment to establish Wendell's contractual obligation to cure defects in the marble installation and chimney foundation. (735 ILCS 5/2-1005(d) (West 1992).) The trial court entered partial summary judgment against Wendell on the issue of liability for the condition of the fireplace. The court further entered partial summary judgment in favor of the Qazis concerning Wendell's contractual obligation to supervise. The trial court also granted Wendell's motion to bar the testimony of the Qazis' expert witnesses as a sanction for violating the disclosure requirements of Supreme Court Rule 220 (134 Ill.2d R. 220).

Aside from Wendell's cause of action for breach of contract, all of the various counts of Wendell's complaint against the Qazis were either voluntarily dismissed or dismissed with prejudice pursuant to motion by the Qazis prior to trial. Thus, the trial solely concerned Wendell's cause of action for breach of contract. As an affirmative defense, the Qazis asserted that Wendell was contractually obligated to perform all work on the project in a workmanlike manner and that Wendell breached the agreement by failing to properly supervise and direct the work and correct any resulting defects. Specifically, the Qazis asserted that Wendell failed to provide adequate support structures for the marble flooring; that the flooring had extensive cracks and damages; that the living room floor tilts and sways when walked upon; that Wendell failed to install working fireplaces; and numerous other unrelated allegations.

At trial, Steven Wendell testified that he is a licensed architect and builder employed by his family business, A.W. Wendell and Sons, Inc. As architect and general contractor on the Qazis' home, Wendell received a fee for "overhead and supervision" equal to 12 1/2% of the contract amount due to each subcontractor, plus an additional 12% for extras. Mr. Wendell admittedly charged this fee for overhead and supervision on subcontracts between the owner and the contractor, including the contract between the Qazis and Marble Supply. Mr. Wendell rationalized that "[i]f the owner, for example, decided to buy his own lumber, decided to do his own concrete, if I did not have that provision [of charging a fee for overhead and supervision], he could just take my fee away to nothing." Mr. Wendell testified that he did not oversee the marble installation by Marble The Qazis filed a motion to reconsider a prior ruling barring the use of expert testimony. As an offer of proof, counsel for the Qazis indicated that Howard Stearn, an architect, would offer his opinion concerning the adequacy of the flooring as installed. Keith Kissner, a general contractor who owns a marble company, would specify the costs necessary to repair and reinstall the marble flooring in the Qazis' home. The court denied the Qazis' motion to reconsider, reiterating that it barred the expert testimony as a sanction for violating the disclosure requirements of Supreme Court Rule 220 (134 Ill.2d R. 220).

[193 Ill.Dec. 253] Supply and conversed with the installers solely to furnish storage areas and heat and light for the workers.

Following closing arguments, the trial court found that Wendell substantially performed all of the work required under the contract in a good and workmanlike fashion. On July 7, 1992, judgment was entered in...