{ "id": 126342, "name": "ACTION CONSTRUCTION AND RESTORATION, INC., et al., Plaintiffs-Appellees and Cross-Appellants, v. WEST BEND MUTUAL INSURANCE COMPANY, Defendant-Appellant and Cross-Appellee", "name_abbreviation": "Action Construction & Restoration, Inc. v. West Bend Mutual Insurance", "decision_date": "2001-05-10", "docket_number": "No. 2 \u2014 00\u20140383", "first_page": "181", "last_page": "185", "citations": [ { "type": "official", "cite": "322 Ill. App. 3d 181" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "104 Ill. 2d 311", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3146208 ], "weight": 6, "year": 1984, "pin_cites": [ { "page": "312-13" }, { "page": "316" }, { "page": "316" }, { "page": "316" }, { "page": "316" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0311-01" ] }, { "cite": "204 Ill. App. 3d 662", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2575492 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "672" }, { "page": "672" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/204/0662-01" ] }, { "cite": "279 Ill. App. 3d 735", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 75239 ], "year": 1996, "pin_cites": [ { "page": "740-41" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/279/0735-01" ] } ], "analysis": { "cardinality": 435, "char_count": 9883, "ocr_confidence": 0.755, "pagerank": { "raw": 6.266971028859095e-08, "percentile": 0.38660651644169214 }, "sha256": "0982ac5dce2dc58e818ac005e660b6007375d95dc0e61e52ff30e63e83f7cbdb", "simhash": "1:7983441b5b88523d", "word_count": 1577 }, "last_updated": "2023-07-14T19:05:07.459628+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ACTION CONSTRUCTION AND RESTORATION, INC., et al., Plaintiffs-Appellees and Cross-Appellants, v. WEST BEND MUTUAL INSURANCE COMPANY, Defendant-Appellant and Cross-Appellee." ], "opinions": [ { "text": "JUSTICE CALLUM\ndelivered the opinion of the court:\nPlaintiffs, Action Construction & Restoration, Inc., and James Pickens, sued defendant, West Bend Mutual Insurance Company, for breach of oral contract, common-law fraud, equitable estoppel, and promissory estoppel. The breach of oral contract and common-law fraud counts were tried before a jury, and the jury found in Action\u2019s favor on both counts. On appeal, West Bend argues that (1) the jury\u2019s verdict on the contract and fraud counts was not supported by the evidence, (2) the trial court erred in denying West Bend\u2019s motion for a new trial based on newly discovered evidence, and (3) the trial court erred in denying West Bend\u2019s request for remittitur. In its cross-appeal, Action argues that the trial court erred in (1) denying Action\u2019s request for punitive damages, attorney fees, and statutory interest and (2) reducing the jury\u2019s verdict from $479,732.39 to $450,615. Because we conclude that the jury\u2019s verdict on the oral contract count is legally inconsistent with its verdict on the common-law fraud count, we reverse and remand for a new trial.\nBACKGROUND\nOn March 29, 1997, a fire destroyed most of the factory owned by Burmac Metal Finishing Co. Burmac\u2019s factory was insured by West Bend. An adjuster for West Bend hired Action to secure the building and perform some preliminary board-up work. According to Action\u2019s president, James Pickens, the West Bend adjuster then directly hired Action to perform whatever work was necessary to \u201cget Burmac back in operation.\u201d In the end, Action performed restoration work totaling more than $450,000.\nWest Bend vehemently denies directly hiring Action for anything other than the preliminary board-up work. According to West Bend, Action was hired by Burmac, which expected to pay Action with the proceeds of its West Bend insurance coverage. As it turns out, West Bend denied Burmac\u2019s fire loss claim and refused to pay Action directly for any of the work performed.\nAction then sued West Bend for (1) breach of oral contract, (2) comm\u00f3n-law fraud, (3) equitable estoppel, and (4) promissory estoppel. The jury found in Action\u2019s favor on the contract and fraud counts and entered a $479,732.39 verdict. After entering judgment on the jury\u2019s verdict (which the trial court reduced to $450,615), the trial court also found in Action\u2019s favor on both estoppel counts and entered an $18,897.28 judgment. This timely appeal followed.\nANALYSIS\nTo prove breach of contract, Action had to prove (1) the existence of a valid and enforceable contract, (2) substantial performance by Action, (3) a breach by West Bend, and (4) resulting damages. See Klem v. Mann, 279 Ill. App. 3d 735, 740-41 (1996). For an oral contract to be valid and enforceable, its terms must be definite and consistent. Trittipo v. O\u2019Brien, 204 Ill. App. 3d 662, 672 (1990). When it appears that the language used or the terms proposed are understood differently by the parties, there is no meeting of the minds and no contract exists. Trittipo, 204 Ill. App. 3d at 672.\nHere, the jury was instructed not only on breach of contract but also on West Bend\u2019s affirmative defenses. One of West Bend\u2019s affirmative defenses was that \u201cno oral contract was created because as a condition precedent to an enforceable contract Burmac had to have insurance coverage.\u201d The jury not only returned a verdict in plaintiffs favor but also answered the following special interrogatory in the negative:\n\u201cDid Plaintiff know or should it have known that Defendant\u2019s obligation to pay Plaintiff for restoration and construction services was contingent upon an obligation on the part of Defendant to pay insurance benefits under its policy with Burmac?\u201d\nThus, by finding in Action\u2019s favor on the breach of contract claim, the jury necessarily found that Action and West Bend had a meeting of the minds and that West Bend\u2019s obligation to pay was in no way contingent upon the availability of Burmac\u2019s insurance coverage.\nOn the common-law fraud count, the jury was instructed that Action had the burden of proving, among other things, that \u201cthe defendant, through its agent, made \u201c[a] false statement of fact and knowingly concealed or withheld from the plaintiff material facts with the intent to deceive the plaintiff and induce the plaintiff to perform certain restoration and construction work.\u201d The jury was further instructed:\n\u201cPlaintiff *** claims that the defendant, through its agent, knowingly concealed or withheld from [it] the following facts:\n(a) That defendant\u2019s willingness to pay plaintiff for the restoration and construction work was contingent upon the terms of the defendant\u2019s insurance agreement with Burmac; and\n(b) That there was an insurance coverage problem that might limit or preclude a claim for insurance benefits by Burmac.\u201d\nThe jury not only returned a verdict in Action\u2019s favor on the common-law fraud count but also answered the following special interrogatory in the affirmative: \u201cDid any employees or agents of defendant intentionally conceal any material facts?\u201d Thus, by finding in Action\u2019s favor on the common-law fraud count, the jury necessarily found that West Bend\u2019s willingness to pay was contingent upon valid insurance coverage for Burmac and that West Bend intentionally withheld this fact when it hired Action to perform the restoration and construction work.\nThe inconsistency is now apparent: The jury found both that (1) Action and West Bend had a meeting of the minds and that West Bend\u2019s obligation to pay was in no way contingent upon the availability of Burmac\u2019s insurance coverage (breach of contract); and (2) West Bend\u2019s willingness to pay was contingent upon valid insurance coverage for Burmac and that West Bend intentionally withheld this fact when it hired Action to perform the restoration and construction work (common-law fraud). These two findings are legally inconsistent. The two parties could not have had a meeting of the minds if West Bend fraudulently concealed a material fact. Conversely, if the two parties truly reached a meeting of the minds and payment was never contingent upon coverage, West Bend\u2019s concealment of the coverage dispute could not be fraudulent.\nThe difficulty is compounded by the fact that the evidence alternatively supports both verdicts. There is certainly evidence from which the jury could have concluded that West Bend hired Action directly and that West Bend\u2019s promise to pay was never contingent upon coverage (breach of contract). Likewise, there is evidence from which the jury could have concluded that West Bend led Action to believe that payment was not contingent upon coverage, all the while knowing that it would pay Action only if coverage was available (common-law fraud). Unfortunately, neither law nor logic permits the evidence to support both verdicts simultaneously.\nThis case is remarkably similar to Wottowa Insurance Agency, Inc. v. Bock, 104 Ill. 2d 311 (1984). In Wottowa, the plaintiff sued the defendants for both breach of guaranty and fraud. In the breach of guaranty count, the plaintiff alleged that the defendants personally guaranteed certain corporate obligations and then refused to honor that personal guarantee when the corporation folded. In the fraud count, the plaintiffs alleged that the defendants signed the personal guaranty with no intention of honoring it, thereby inducing the plaintiff to extend credit to the corporation that it otherwise would not have extended. The jury returned a verdict in the defendants\u2019 favor on the breach of guaranty count and in the plaintiffs favor on the fraud count. Wottowa, 104 Ill. 2d at 312-13.\nThe supreme court faced three issues: (1) whether the guaranty in question was a personal or corporate obligation; (2) whether the verdict in the defendants\u2019 favor on the breach of guaranty count could stand; and (3) whether the trial court should have directed a verdict or entered a judgment notwithstanding the verdict in the defendants\u2019 favor on the fraud count. Before reaching these issues, however, the supreme court observed that, by ruling in the defendants\u2019 favor on the breach of guaranty count, the jury necessarily found that the guaranty in question was a corporate, rather than a personal, obligation. Wottowa, 104 Ill. 2d at 316. The court then continued:\n\u201cIt is logical to conclude, therefore, that once the jury determined by its verdict that the guaranty agreement was not a personal obligation, but rather a corporate obligation, the allegation of fraud under count II had to fail. However, under [the fraud count], the jury found that the defendants \u2018fraudulently induced the plaintiff into further extensions of credits by executing the attached Guarantee Agreement without any intention of personally guaranteeing the obligations\u2019 of the two corporations. Such findings are irreconcilably inconsistent.\u201d Wottowa, 104 Ill. 2d at 316.\nHaving sua sponte found the jury\u2019s verdict legally inconsistent, the supreme court set aside the jury verdict and ordered a new trial. Wottowa, 104 Ill. 2d at 316.\nLike the supreme court in Wottowa, we are faced in this case with a jury verdict that is legally inconsistent. We therefore have no choice but to set aside that verdict and order a new trial. See Wottowa, 104 Ill. 2d at 316.\nAccordingly, the judgment of the circuit court of Winnebago County is reversed, and this cause is remanded for a new trial.\nReversed and remanded.\nRAPP and GROMETER, JJ., concur.", "type": "majority", "author": "JUSTICE CALLUM" } ], "attorneys": [ "John W. France and Ronald A. Barch, both of Cicero & France, P.C., of Rockford, for appellant.", "David L. Martenson, of Martenson & Blair, of Rockford, for appellees." ], "corrections": "", "head_matter": "ACTION CONSTRUCTION AND RESTORATION, INC., et al., Plaintiffs-Appellees and Cross-Appellants, v. WEST BEND MUTUAL INSURANCE COMPANY, Defendant-Appellant and Cross-Appellee.\nSecond District\nNo. 2 \u2014 00\u20140383\nOpinion filed May 10, 2001.\nRehearing denied June 14, 2001.\nJohn W. France and Ronald A. Barch, both of Cicero & France, P.C., of Rockford, for appellant.\nDavid L. Martenson, of Martenson & Blair, of Rockford, for appellees." }, "file_name": "0181-01", "first_page_order": 199, "last_page_order": 203 }