Duce Construction Company Inc. v. Carlson Bros Inc
2:17-cv-02173
C.D. Ill.Sep 23, 2019Background
- Duce Construction subcontracted with Carlson Bros. to perform earthwork and utilities at two Champaign, IL projects.
- Parties agree Carlson owes Duce $261,852.41 for work under the original subcontract; Duce also seeks an additional $85,871.75 for extra work.
- Duce says Carlson’s project manager orally directed Duce to perform extra work without following the contract’s written change-order procedure; Duce continued to avoid schedule delays.
- Carlson deposited $261,852.41 with an escrow agent; escrow will not release funds until Duce signs a lien waiver, which Duce refuses because of the $85,871.75 dispute.
- Both sides moved for partial summary judgment: Carlson sought judgment that no interest/fees are owed and that the written change-order clause bars recovery; Duce sought judgment for the undisputed amount plus interest/fees and for the extra-work claim.
- The court denied both motions, leaving factual questions (e.g., oral modification, entitlement to interest/fees) for later resolution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to interest and attorney fees on $261,852.41 | Duce: contract allows interest and fees for amounts over 30 days past due; escrow hasn't released funds so Duce hasn’t been paid. | Carlson: it timely deposited the funds with escrow; because Duce didn’t provide required final waivers, no amount is "due" under the contract so interest/fees don’t apply. | Denied summary judgment to both. Court: contract’s final-waiver precondition means no contract-based interest/fees have accrued; non-contractual remedies (statutory/equitable prejudgment interest or fees) remain possible but were not decided now. |
| Recovery for $85,871.75 in extra work (oral modification vs written change-order clause) | Duce: Carlson orally modified/enforced waiver of written change-order requirement by telling Duce to continue to avoid delay. | Carlson: the subcontract’s written change-order provision precludes recovery absent a signed, prior written change order. | Denied summary judgment to both. Court: Illinois law permits enforceable oral modifications even when contract forbids them; existence and terms of any oral modification are factual issues for the trier of fact. |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard)
- Gracia v. Volvo Europa Truck, 112 F.3d 291 (summary judgment evidence burden in Seventh Circuit)
- Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176 (movant can win by showing opponent lacks evidence on issue)
- Tadros v. Kuzmak, 277 Ill. App. 3d 301 (Illinois law permits oral modification despite contract prohibition)
- A.W. Wendell & Sons, Inc. v. Qazi, 254 Ill. App. 3d 97 (same)
- Berg & Associates, Inc. v. Nelsen Steel & Wire Co., 221 Ill. App. 3d 526 (same)
- E.A. Cox Co. v. Road Savers Int'l Corp., 648 N.E.2d 271 (questions about modification/waiver are factual)
- Maher & Assocs., Inc. v. Quality Cabinets, 640 N.E.2d 1000 (existence of modification by conduct is question of fact)
- Household Fin. Servs., Inc. v. Coastal Mortg. Servs., Inc., 152 F. Supp. 2d 1015 (factual nature of oral-modification inquiry)
- Platinum Tech., Inc. v. Federal Ins. Co., 282 F.3d 927 (availability of prejudgment interest under non-contractual theories)