{ "id": 5288286, "name": "NATIONAL UNDERGROUND CONSTRUCTION COMPANY, INC., Plaintiff-Appellant, v. E.A. COX COMPANY, Defendant-Appellee", "name_abbreviation": "National Underground Construction Co. v. E.A. Cox Co.", "decision_date": "1991-06-25", "docket_number": "No. 1\u201490\u20141009", "first_page": "130", "last_page": "137", "citations": [ { "type": "official", "cite": "216 Ill. App. 3d 130" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "491 N.E.2d 795", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "142 Ill. App. 3d 703", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3452621 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0703-01" ] }, { "cite": "171 N.E.2d 427", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "28 Ill. App. 2d 273", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5217693 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-2d/28/0273-01" ] }, { "cite": "436 N.E.2d 12", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "106 Ill. App. 3d 537", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3032082 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/0537-01" ] }, { "cite": "498 N.E.2d 697", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "148 Ill. App. 3d 158", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3642458 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0158-01" ] }, { "cite": "523 N.E.2d 30", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "168 Ill. App. 3d 726", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3511787 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/168/0726-01" ] }, { "cite": "534 N.E.2d 575", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "179 Ill. App. 3d 325", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2607008 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/179/0325-01" ] } ], "analysis": { "cardinality": 715, "char_count": 16489, "ocr_confidence": 0.775, "pagerank": { "raw": 1.12900416995132e-07, "percentile": 0.5753377899638165 }, "sha256": "eb9d068c1747b87bbae9029e7c04d5524a2639ea0d4f76275fa917b23008fefa", "simhash": "1:fa526356a489c7f1", "word_count": 2643 }, "last_updated": "2023-07-14T16:24:26.558535+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NATIONAL UNDERGROUND CONSTRUCTION COMPANY, INC., Plaintiff-Appellant, v. E.A. COX COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE COCCIA\ndelivered the opinion of the court:\nPlaintiff National Underground Construction Company, a subcontractor, appeals from a circuit court order entering summary judgment in favor of defendant E.A. Cox Company, a general contractor, in this suit based on a cause of action for breach of contract alleging that defendant owes plaintiff an additional fee for the \u201cextra\u201d work performed by plaintiff in making adjustments to catch basins in a sewer construction project. On appeal, plaintiff contends that the court erred in granting summary judgment and the cause should be remanded for further hearing regarding whether or not plaintiff is entitled to an additional fee for its \u201cextra\u201d work.\nOn November 21, 1986, plaintiff filed a complaint for declaratory judgment and other relief, alleging that it is a subcontractor for the construction of underground improvements. Defendant is a general contractor for construction. On January 13, 1984, defendant entered into a contract with the City of Chicago for a construction project. On February 23, 1984, defendant entered into a written contract with plaintiff as subcontractor to perform certain work. Plaintiff alleged in its complaint that defendant was to pay it $356,539.12 for \u201cits work under the contract and for extra work,\u201d and that the \u201cparties agreed that [defendant] was to pay $70,218.68 for the performance of the extra work.\u201d\nThe complaint alleges that plaintiff was actually paid \u201cfor all work performed by it except for the sum of $6,310.87, which [defendant] retained pending receipt of payment from the City of Chicago to [defendant], and the sum of $33,354.44 representing extra work, performed by [plaintiff] in accordance with the agreement by [defendant] to pay for the installation of frame and lid settings, hereinafter described, for the resurfacing on the 55th Street job.\u201d\nPlaintiff alleged further that the installation of the frame and lid settings for the 55th Street resurfacing job was \u201cextra work, not in-eluded in the original cont[r]act of February 23, 1984,\u201d and that $33,354.44 was due for that work.\nThe complaint requests a declaration of the rights of the parties: \u201cthat [defendant] agreed to pay [plaintiff] for the extra work performed by [plaintiff] for the sum of $33,354.44 consisting of the installation of the frame and lid settings for the 55th Street resurfacing job\u201d; that the price was reasonable; and that defendant also owed plaintiff $6,310.87. Plaintiff also requested an accounting from defendant for the $33,354.44, if received from the city, and the placement of such funds into a trust.\nFrank Rizzo, president of plaintiff, explained at an October 10, 1989, deposition that the project consisted of performing certain sewer work which involved building catch basins. A catch basin is a precast concrete structure set into the ground. On top of the concrete structure is a cast iron frame. Later, after road work has been done, the catch basin must be adjusted to the new grade of the street. Then the frame is set, and the lids are put into place. In that frame, a lid or grate must be placed. The concrete structure is placed in the ground at the beginning of the road job.\nThe relevant portion of the subcontract reads:\n\u201cSection 1. The Subcontractor [plaintiff] agrees to furnish all necessary materials and/or to furnish all labor, tools, equipment, and supplies necessary to perform all work in the construction of [the project] *** in accordance with the terms and provisions of the Contract between the Owner and the Contractor, dated January 13, 1984, including all the General and Special Conditions, Drawings and Specifications and other Documents forming or by reference made a part of the Contract between the Contractor [defendant] and the Owner, all of which shall be considered part of this Subcontract by reference thereto, and the Subcontractor agrees to be bound to the Contractor and the Owner by the terms and provisions thereof.\nSection 2. It is agreed that the materials to be furnished and/or work to be done by the Subcontractor are as follows: SEWER WORK AS SPECIFIED BELOW AS PER PLANS AND SPECIFICATIONS OF THE CITY OF CHICAGO.\nItem No. 10 \u2014 Catch Basins ***.\nItem No. 18 \u2014 Trench Backfill ***.\nItem No. 19 \u2014 Storm Sewers ***.\nItem No. 24 \u2014 Filling Existing Catch Basinsf.]\n* * *\nItem No. 25 \u2014 Removal of Existing Inlets ***.\u201d\nThe relevant specification for Item 10 in the contract between the city and defendant reads as follows:\n\u201cITEM 10 CATCH BASINS, k FOOT DIAMETER\nThis item shall consist of constructing new City of Chicago\nstandard catch basins at locations shown on the Plans ***.\n* * *\nBasis of Payment. This item will be paid for the Contract unit price each for CATCH BASINS, 4 FOOT DIAMETER, which price shall include all excavation, backfill and the setting and adjusting of all frames and lids. New frames and lids for catch basins will be paid for separately under Item 35 *** and Item 36 ***.\u201d\nSpecification for item 35 provides that \u201cThe installation of the frame will be paid for as part of the various construction items involved.\u201d Specification for item 36 provides that \u201cNew lids will be counted in place for payment at the Contract unit price per pound for CITY OF CHICAGO STANDARD MANHOLE AND CATCH BASIN PERFORATED OR SOLID LIDS, which price shall include the furnishing and transportation of the lid to its place of use on the project.\u201d\nOn December 4,1989, defendant moved for summary judgment.\nIn response to defendant\u2019s motion for summary judgment, plaintiff submitted the January 11, 1990, affidavit of F.M. Aduana, the City of Chicago\u2019s resident engineer overseeing the project. Aduana stated that defendant failed to provide grades as required under the contract with the city. As a result, \u201cthe catch basins were installed not according to the proposed grade, and adjustments had to be made.\u201d Aduana states further that the city rejected defendant\u2019s bill for the extra work because the error was defendant\u2019s responsibility, not the city\u2019s. Attached to Aduana\u2019s affidavit are his notes detailing his extensive problems in attempting to get defendant to provide proper grading. \u201cI repeatedly told [Cox] that if the elevations were not right, I will require them to correct them at no extra cost to the City.\u201d\nPlaintiff also submitted the January 6, 1990, affidavit of Gene Currie, construction superintendent for defendant on the jobsite, reciting facts about an oral contract. Defendant\u2019s president, John LeFevour, asked plaintiff to install frames and lids, although plaintiff \u201cwas not awarded the contract for frame and lid item.\u201d The affidavit states further:\n\u201cAt that time, E.A. Cox was faced with [the] problem of improper grade elevations and there was controversy between the City of Chicago and E.A. Cox as to who was to blame for the improper elevation. ***\n*** John LeFevour *** approached Frank Rizzo, president of [plaintiff], who was doing the catch basin work, and in my presence asked Frank Rizzo if he would make the adjustments and install the frames and lids on the catch basins because the curb and gutters gangs were being held up and it was necessary that the concrete be poured as soon as possible. Mr. LeFevour told Frank Rizzo to keep \u2018time\u2019 so [plaintiff] would be paid for its work.\u201d\nPlaintiff also submitted the January 5, 1990, affidavit of Rizzo, which states nearly identical facts regarding the oral agreement.\nBoth parties attached to their trial court briefs in the summary judgment proceeding a bill which defendant submitted to the city, on behalf of plaintiff, on August 7, 1984, requesting payment for the extra work. It states: \u201cEnclosed is the extra bill for the re-adjustment of the new catch basins to changed grades that were given after catch basins were installed.\u201d Attached to the letter were plaintiff\u2019s bills for the extra work.\nOn February 9, 1990, the court granted defendant\u2019s motion for summary judgment. On March 12, 1990, the court denied plaintiff\u2019s motion for reconsideration. On April 9, 1990, plaintiff filed a notice of appeal.\nSummary judgment is proper where no genuine issues of material fact exist, and in determining whether the moving party is entitled to summary judgment, the court must strictly construe all pleadings, depositions, admissions, and affidavits against the movant and liberally in favor of the opponent. (Vincent DiVito, Inc. v. Vollmar Clay Products Co. (1989), 179 Ill. App. 3d 325, 534 N.E.2d 575.) Construing a contract as a matter of law is suitable for summary judgment where other facts are not in dispute. Srivastava v. Russell\u2019s Barbecue, Inc. (1988), 168 Ill. App. 3d 726, 523 N.E.2d 30; LaSalle National Bank v. Illinois Housing Development Authority (1986), 148 Ill. App. 3d 158, 498 N.E.2d 697.\nIn the present case, the interpretation of specification item No. 10, which forms a part of the contract between plaintiff and defendant, may be determined as a matter of law. Item No. 10 clearly states that the basis of payment \u201cshall include all excavation, backfill and the setting and adjusting of all frames and lids\u201d of the catch basins. The contract does not indicate that plaintiff would receive extra payment for adjustments it made.\nPlaintiff also argues, apparently in the alternative, that Rizzo\u2019s testimony implies that the grades given to him must be the correct grades, and that other affidavits and evidence before the court indicated the grades were not correct. Plaintiff maintains that its liability \u201cwas contingent upon the implied condition that [defendant] furnish the correct grades,\u201d and the implied condition that if incorrect grades were given, plaintiff would not be liable for the costs it expended in \u201ccorrecting [defendant's] mistakes. To do so would unjustly enrich [defendant], by enabling it to apply for relief with unclean hands.\u201d\nPlaintiff then argues what is possibly another alternative theory, i.e., that defendant \u201ctricked\u201d Rizzo into doing extra work by creating \u201ca device or scheme to defraud,\u201d where defendant\u2019s president, John LeFevour, promised Rizzo that defendant would pay extra if plaintiff would perform the extra work of adjusting for defendant\u2019s errors in placing the grade too low.\nIn regard to these additional alternative arguments, we note that a court\u2019s first step in deciding a motion for summary judgment is to analyze the pleadings in order to define the contested issues. (Fryison v. McGee (1982), 106 Ill. App. 3d 537, 436 N.E.2d 12; Mastercraft Lamp Co. v. Mortek (1960), 28 Ill. App. 2d 273, 171 N.E.2d 427. See generally 4 R. Michael, Illinois Practice, Civil Procedure Before Trial \u00a739.6, at 256 (1989).) Only after completing that initial step will the court go behind the pleadings to determine whether a factual issue exists.\nThe complaint here alleges:\n\u201c4. On or about February 23rd, 1984, National entered into a written contract with Cox, as a subcontractor, for the performance of certain work described therein, a copy of which is attached hereto as Exhibit A.\n5. For its work under the contract and for extra work National was to be paid the sum of $356,539.12. The parties agreed that Cox was to pay $70,218.68 for the performance of the extra work.\n6. National performed all work pursuant to the terms of the said contract and agreements for extra work, in accordance with the plans and specifications pertaining to the performance of all said construction work. All work performed by National was inspected and approved as being performed in compliance with the plans and specifications, and in accordance with the terms and agreements existing by and between the parties.\n7. National was paid for all work performed by it except for *** the sum of $33,354.44 representing extra work, performed by National in accordance with the agreement by Cox to pay for the installation of frame and lid settings, hereinafter described, for the resurfacing on the 55th Street job.\u201d\nThe complaint does make a reference to some \u201cagreements for extra work.\u201d Here, the complaint merely refers to the installation of the frames and lids, which we have already found is part of the written contract; and a confusing reference to an agreement to pay $70,218.68 for \u201cextra work\u201d and failure to pay $33,354.44 for \u201cextra work.\u201d The complaint would serve plaintiff better if it contained factual allegations indicating the existence of an oral contract, or oral modification of the written contract. It should contain sufficient factual allegations of the existence of a contract, including whether it was written or oral, facts regarding an offer, acceptance and consideration, along with allegations of plaintiffs performance of all contractual conditions required of it, the fact of defendant\u2019s alleged breach, the existence of damages, and sufficiently definite terms, if the contract was oral, to make it enforceable. (See Wait v. First Midwest Bank/Danville (1986), 142 Ill. App. 3d 703, 491 N.E.2d 795.) Nevertheless, we find the allegations sufficient to raise the issue of whether \u201cextra work\u201d was done which did not fall within the contract terms, i.e., work which fell within the terms of a subsequent oral modification of the contract. Because we are remanding on other grounds, we suggest that plaintiff make use of the opportunity to replead these allegations to conform with the proof it has included in the record.\nIn looking beyond plaintiff\u2019s complaint to define the issues raised in this suit, we conclude that the record reveals the existence of genuine issues of material fact which preclude summary judgment. We highlight facts in the record that support the conclusion.\nFirst, the affidavit of Currie, the construction superintendent for defendant admits that due to improper grade levels, \u201cadjustments had to be made.\u201d LeFevour, president of defendant, \u201capproached Frank Rizzo *** and in my presence asked Frank Rizzo if he would make the adjustments ***. Mr. LeFevour told Frank Rizzo to keep \u2018time\u2019 so [plaintiff] could be paid for its work.\u201d\nSecond, in regard to whether defendant Cox promised to pay plaintiff extra for the additional work required due to the grading problems, Rizzo\u2019s deposition and affidavit set out several conversations in which LeFevour and Currie instructed Rizzo to do the extra work, and \u201ckeep time and material and cost\u201d records so plaintiff would get paid an additional sum.\nThird, the existence of factual issues on these points is further supported by the letter which defendant sent to the city, seeking additional payment for the extra work caused by the improper grade levels and the unanticipated need for more adjustments to the catch basins.\nFourth, Aduana\u2019s affidavit states that under defendant\u2019s contract with the city, \u201cCox Company was required to provide the grades\u201d but it \u201cdid not provide the grades.\u201d As a result, \u201cthe catch basins were installed not according to the proposed grades and adjustments had to be made.\u201d The city rejected Cox\u2019s \u201cbills for such adjustments *** as not being the City\u2019s responsibility, but Cox\u2019s responsibility.\u201d Aduana\u2019s notes details Cox\u2019s error further.\nFinally, in regard to whether defendant Cox set proper grades, defendant concedes in an answer to plaintiff\u2019s interrogatory that: \u201cGrades were to have been set by Cox. Because of the mistakes in the City\u2019s plans, the City supplies all grades on the subject project.\u201d Correction of the grades was then required and \u201cwas performed by the City of Chicago.\u201d\nThus, although the complaint is inartfully drawn, the record contains strong evidence of material fact questions. We find that there are sufficient factual questions to withstand defendant\u2019s motion for summary judgment.\nFinally, although the complaint seeks the $6,310.87 which represents the contract amount of 10% to be retained by defendant until the city makes its final payment, plaintiff has not argued that issue before this court. Thus, the court need not address the question.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with the holdings contained herein.\nReversed and remanded.\nSCARIANO, P.J., and HARTMAN, J., concur.", "type": "majority", "author": "JUSTICE COCCIA" } ], "attorneys": [ "R.S. Maione, of Chicago, for appellant.", "Thomas G. Moffitt, of McCracken & Walsh, of Chicago, for appellee." ], "corrections": "", "head_matter": "NATIONAL UNDERGROUND CONSTRUCTION COMPANY, INC., Plaintiff-Appellant, v. E.A. COX COMPANY, Defendant-Appellee.\nFirst District (2nd Division)\nNo. 1 \u2014 90\u20141009\nOpinion filed June 25,1991.\n\u2014 Rehearing denied July 30,1991.\nR.S. Maione, of Chicago, for appellant.\nThomas G. Moffitt, of McCracken & Walsh, of Chicago, for appellee." }, "file_name": "0130-01", "first_page_order": 152, "last_page_order": 159 }