Lead Opinion
delivered the opinion of the court:
This аppeal follows a bench trial of consolidated actions in the mechanics’ lien section of the circuit court of Cook County. The controversies arise out of a construction contract between Fieldcrest Builders, Inc., the general contractor, and Gregory and Jenine Antonucci, the homeowners, for the extensive renovation of and addition to their single-family residence in Glenview,
On October 16, 1998, the trial court entered judgment in favor of Fieldcrest on its quantum meruit count in the amount of $84,148.25, after allowing setoffs for certain claims of the Antonuccis. The trial court also allowed the total lien claim of Mayfair and allowed, in part, the lien claim of B&D. Later, on January 25, 1999, the trial court ordered the Antonuccis to pay costs ($5,673.28) to Fieldcrest. The Antonuccis then filed the instant appeal and, in turn, Fieldcrest filed a cross-appeal.
On direct appeal, the Antonuccis raise five issues as to whether (1) the judgment in favor of the general contractor (Fieldcrest) includes the principal amounts claimed by two subcontractors (B&D and Mayfair); (2) the trial court erroneously failed to deduct from Fieldcrest’s judgment the $10,000 paid by the Antonuccis when the construction contract was executed; (3) Fieldcrest’s quantum meruit damages should exclude the amounts attributed to overhead and general conditions; (4) the trial court erred in not awarding certain alleged remedial and delay damages; and (5) the trial court erred in taxing costs against the Antonuccis.
For all of the reasons that follow, we remand the matter to the circuit court to find whether the amounts clаimed by B&D and Mayfair were included in the amount awarded to Fieldcrest and to determine whether it failed to credit the Antonuccis in the amount of $10,000, i.e., the amount paid at the time the parties entered into the contract. We affirm the trial court’s order relating to the damages awarded to Fieldcrest for overhead and general conditions. We affirm the trial court’s decision as to the amount of remedial damages awarded to the Antonuccis and the denial of damages for delay. We reverse the order awarding costs to the Antonuccis.
On cross-appeal, Fieldcrest asserts that the trial court erred in denying its claim for a mechanic’s lien, failing to award attorney fees under section 17 of the Illinois Mechanics Lien Act (Act) (770 ILCS 60/17 (West 1994)), and denying its motion for reconsideration for leave to file an amended complaint against Roxanne Malo, alleging tortious interference with contract. We affirm all of the trial court’s rulings challenged by Fieldcrest.
In addition, B&D filed a separate brief in this appeal to assert that the Antonuccis waived any issue regarding the validity of the money judgment or mechanic’s lien in favor of B&D because the Antonuccis failed to argue the efficacy of B&D’s awards in their appellate brief. In its brief, B&D thoroughly detailed the arguments and issues presented by the Antonuccis on. appeal, none of which challenge the efficacy of the awards to B&D. Accordingly, the Antonuccis have waived the issue on appeal pursuant to Supreme Court Rule 341(e)(7) (177 Ill. 2d R. 341(e)(7)), which mandates that “[pjoints not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”
From March 1993 through May 1994, the Antonuccis prepared to have extensive renovations done on their home. Preparations included the hiring of an architect to draw up the plans, the submissiоn of bids by contractors, the modification of the plans to meet the approval of the village, applying for and obtaining building permits from the village, obtaining a construction loan with Harris Bank, and establishing a construction loan escrow trust and disbursing agreement with Chicago Title Insurance Company. Eventually, on April 2, 1994, the Antonuccis and Fieldcrest entered into a building construction agreement in the amount of $846,978. The work was to commence in May 1994 and be completed by March 1995.
On May 2, 1994, after vacating their home, the Antonuccis delivered their house to Fieldcrest for commencement of the
Fieldcrest’s position regarding the problems encountered on the project was that the drawings and specifications for the project contained deficiencies, inaccuracies and incomplete areas. Errors, such as improper dimensions, caused the architect and others to visit the project site on numerous occasions to resolve the problems and resulted in additional labor and time on the part of Fieldcrest. Field-сrest also maintained that the deficiencies of the drawings, the delays by the Antonuccis in making certain decisions, and the numerous additional changes made by the Antonuccis increased the costs of the project.
The Antonuccis maintained that Fieldcrest was to blame for the problems on the project, arguing in general that Fieldcrest’s workmanship was poor and its performance was deficient. In particular, the Antonuccis contended that the original demolition contractor hired by Fieldcrest engaged in disorderly conduct at the site and then abandoned the project without having performed the work; the house was left open and fixtures were stolen; Fieldcrest had no employees and provided no supervision or oversight of the project; questions arose concerning the supervisor’s attention to the work as well as the regularity of his presence on the site; job logs to detail the progress of the project on a daily basis were not prepared correctly, were incomplete, or have been lost; the site was filled with debris; and the quality of the work performed by Fieldcrest was woefully inadequate. The turning point for the Antonuccis came after a rainstorm during the evening of August 12, 1994, causing water damage to the house because Fieldcrest failed to tarp the open portions of the Antonuccis’ home.
The monetary dispute between the parties is premised on the draw requests issued by Fieldcrest to the Antonuccis for progress payments. There is no dispute as to the content of these draw requests and as to the failure of the Antonuccis to pay the second and third draw requests.
The first draw request, dated June 28, 1994, was submitted by Fieldcrest for the amount of $122,500. In July 1994, Chicagо Title released funds to Fieldcrest in the amount of $112,500, i.e., $10,000 less than the bill. The $10,000 item that was not paid was listed on the first draw request as a charge for “overhead & fee.”
The second draw request, dated August 2, 1994, was never paid by the Antonuccis. The total amount in the second draw request was $97,463, which included the $10,000 amount left unpaid from the first draw request. The second draw request included a contractor’s sworn statement, itemizing the work performed, the amount due, and the contractor or subcontractor involved.
The third draw request is dated August 30, 1994, i.e., 10 days after the Antonuccis terminated their contract. The total amount of the third draw request was $198,007, representing the amount unpaid from the second draw ($97,463) and the amount attributed to the work subsequent to the second draw ($100,544). The Antonuccis never paid the third draw request.
In October 1994, the Antonuccis filed a two-count complaint in the law division against Fieldcrest, аlleging breach of contract and consumer fraud (case No. 94 L 13633). In December 1994, Fieldcrest filed its answers, affirmative defenses, and counterclaims to the Anto-
nuccis’ complaint. In this pleading, Fieldcrest asserted
By order dated February 3, 1995, the Antonuccis’ complaint at law was consolidated into Fieldcrest’s chancery action. The order further provided that the cases would proceed in the chancery division.
In February 1995, the Antonuccis filed their first amended complaint, alleging breach of contract and consumer fraud. In June 1995, Fieldcrest filed its amended complaint, seeking to foreclose its mechanic’s lien. Fieldcrest alleged that Antonuccis owe “$183,071, which includes in excess of $17,000 for extra work performed by Field-crest at the request and direction of the Antonuccis, pursuant to the” three draw requests. Fieldcrest stated that it recorded its claim for a lien in the same amount ($183,071). After reciting the three draw requests, Fieldcrest stated that, to date, the Antonuccis paid $112,500.
By order dated October 16, 1995, the court renamed the Antonuccis’ first amended complaint and exhibits thereto to the Antonuccis’ counterclaim. Fieldcrest, in its answer to the Antonuccis’ counterclaim, admitted that the Antonuccis “initially paid Fieldcrest $10,000 as an advance under the parties’ contract. Further answering, however, Fieldcrest states that in a subsequent draw request, the Antonuccis withheld these same funds from payment to Fieldcrest.”
Mayfair recorded a subcontractor’s notice and claim for lien against Fieldcrest and the Antonuccis in the amount of $34,388.32, on October 11, 1994. On January 27, 1995, the court granted Mayfair’s petition to intervene in Fieldcrest’s chancery action and to file its appearance, answer and counterclaim. On June 8, 1995, Mayfair filed its amended counterclaim seeking a mechanic’s lien on the Antonuccis’ premises (count I) and seeking judgment against Fieldcrest in the amount of $34,388.32 (count II). Mayfair alleged that on June 23, 1994, Fieldcrest entered into an oral contract with Mayfair to furnish and deliver building materials and supplies to the Antonuccis’ project and that Mayfair completed its tasks on July 29, 1994. In its interrоgatory answers, filed on December 17, 1996, Mayfair stated that it had not received any payment and alleged a lien in the amount of $34,042.78. To its answers, Mayfair attached copies of its invoices to Fieldcrest.
B&D filed a mechanic’s lien against Fieldcrest in the amount of $44,158, on November 18, 1994. On February 6, 1996, the court granted B&D’s petition to intervene. In its answer, affirmative defenses and counterclaim to Fieldcrest’s complaint, B&D asserted that on June 15, 1994, Fieldcrest subcontracted with B&D to furnish certain rough carpentry services for the Antonuccis’ project for a price of $52,500. By an additional written change order, B&D’s cost increased by $7,780. B&D performed the terms of its subcontract. Fieldcrest submitted a sworn contractor’s affidavit to the Antonuccis about September 26, 1994, stating that Fieldcrest had subcontracted with B&D for rough labor in the amount of $60,280 and had paid B&D the sum of $16,127. B&D asserted counterclaims for foreclosure of its mechanic’s lien (count I) and brеach of contract (count II). In its answer, Fieldcrest admitted the contract with B&D and the change order.
In January 1998, concurrent with the bench trial, the court entered judgments in favor of Mayfair and B&D against Fieldcrest only. Specifically, on January 9, 1998, the court entered judgment in favor of Mayfair against Fieldcrest for the sum of $34,042.78, together with costs, for the purposes of Mayfair’s count II of its amended counterclaim. Later, on January 21, 1998, the trial court entered judgment in favor of B&D against Fieldcrest in the amount of $37,158 on count II of B&D’s counterclaim (breach of contract) and reserved ruling on count I against the Antonuccis (mechanic’s lien).
A bench trial commenced on January 7, 1998. As previously ordered by the court, the Antonuccis’ complaint filed in the law division against Fieldcrest was consolidatеd with Fieldcrest’s lien foreclosure action filed in the chancery division. The trial court ordered that counts I and II of Fieldcrest’s counterclaim in the law divisions case (94 L 13633), for anticipatory breach of contract and quantum meruit, would be deemed counts II and III, respectively, of Fieldcrest’s amended complaint in the lien foreclosure case (94 CH 11482).
At trial, the court heard the testimony of numerous witnesses involved in the Antonuccis’ project, including: (1) Gregory Antonucci, the homeowner; (2) Steve Page, the architect hired by the Antonuccis; (3) Joseph Dakis, the president and owner of Fieldcrest; (4) Sylvester “Buddy” Neal, the project supervisor retained by Fieldcrest; (5) Kenneth Veach, a nonlicensed engineer; (6) William Zanoni, the president of the insurance company that covered the Antonuccis (Glenview Insurance Agency, Property and Casualty Insurance Cоmpany); (7) Anthony Padula, a former plan examiner for the Village of Glenview who was involved in the building permits for the Antonuccis’ project; (8) Dennis Lungren, the owner of Distinctive Design Luxury Homes (DDL), a company that worked on the Antonuccis’ project after termination of the Fieldcrest contract; (9) Steve Favelli, an employee of Task Force Incorporated, a demolition business that worked on the Antonuccis’ project after Fieldcrest left; (10) Hal Olson, the credit manager of Mayfair; (11) Daniel Gíbala, the president of B&D; and (12) Bernice Gíbala, vice-president of B&D. In addition, hundreds of exhibits were presented and many were admitted during the course of the trial.
After trial, the court issued a thoughtful 19-page opinion and order that contained numerous findings of facts, including, in pertinent part, that: (1) on August 12, 1994, water penetrated the property, causing damage; (2) Fieldcrest’s conduct gave rise to the right to terminate the contract by the Antonuccis; (3) Fieldcrest breached the contract; (4) Fieldcrest is entitled to the reasonable value of its services less the injury suffered due to the breach; (5) the Antonuccis proved a setoff in the amount of $28,442.75; (6) Fieldcrest was due $84,148.25; (7) B&D proved and is entitled to a lien in the amount of $35,767; and (8) Mayfair proved and is entitled to a lien in the amount of $34,042.78. The trial court entered judgment as follows: (1) a judgment in the amount of $84,148.25 in favor of Fieldcrest on its quantum meruit count; (2) a mechanic’s lien against the property in the amount of $47,855.75 in favor of Mayfair ($34,042.78 in principal and $13,812.97 in statutory interest, plus costs); and (3) a mechanic’s lien against the property in the amount of $49,966.01 in favor of B&D ($35,767 in principal and $14,199.01 in statutory interest, plus costs).
On appeal, the resolution of the parties’ primary disputes turns on whether the trial court’s findings and judgment are against the manifest weight of the evidencе. E.g., Midwest Environmental Consulting & Remediation Services, Inc. v. Peoples Bank,
On direct appeal, the Antonuccis first assert that the judgment in favor of Fieldcrest includes the principal amounts claimed by B&D and Mayfair and, thus, the Antonuccis would be paying twice for the same services if they were obligated to pay both Fieldcrest and the two subcontractors’ mechanic’s liens. The Antonuccis, referring to the pleadings and record, maintain that Fieldcrest sought recovery for amounts unpaid in the second draw request, which included the entirety of the claims by Mayfair and B&D.
The general rule provides that a judgment is to be construed like other written instruments with the determinative factor being the intention of the court as gathered from all parts of the judgment itself. In re Marriage of Plymale,
Our consideration of the language of the judgment itself in conjunction with our thorough examination of the record in the present case does not resolve the issue of double payment. The trial court order clearly established three separate awards for Fieldcrest, Mayfair and B&D, individually. However, the trial court did not itemize or indicate in its findings what labor and material was included in the $226,123 value attributed to “Fieldcrest and its subcontractors.” The trial court expressly found that “[p]rior to breaching the contraсt, Fieldcrest and its subcontractors had performed substantial work and supplied significant material. The value of labor and material supplied is found to be $226,123.” There is no dispute that Mayfair and B&D were Fieldcrest’s subcontractors and their work was performed within the time period of the draw requests for which Fieldcrest sought payment. The trial court order, albeit lengthy and precise, fails to identify the exact source of its finding except that the total value allowed to Fieldcrest and its subcontractors is $226,123. Arithmetical contortions from the figures provided in the various pleadings, exhibits, and other portions of the record do not reveal the source of or equate with the $226,123 figure. Accordingly, we remand the matter to the trial court to enter a definitive finding as to whether the $226,123 figure includes or excludes the principal amounts claimed by Mayfair and B&D.
Second, the Antоnuccis assert that the trial court inadvertently failed to credit them with a $10,000 payment that was made to Field-crest upon execution of the construction contract. Fieldcrest, however, contends that it credited the $10,000 deposit payment by deleting it from its draw requests.
The record conclusively reveals that the Antonuccis paid Field-crest $10,000, on April 19, 1994, as earnest money in accordance with the terms of the construction contract. Even assuming that Fieldcrest indeed credited the Antonuccis for $10,000 in its second draw request, the order of the trial court does not credit the Antonuccis for that amount. The record affirmatively shows that the amount was paid by the Antonuccis; however, there is no direct reference to it in the trial court order. Thus, we remand the issue to the trial court for a definitive finding as to the $10,000 credit due to the Antonuccis.
In Interlake, the defendant argued, and this court agreed, that the trial court improperly applied a quantum memit measure of damages to the contractor Burns by including “all of Burns’ costs on its itemized statement except overhead and handling charges, less what Inter-lake had already paid.” Interlake,
Under a theory of quantum meruit, the measure of recovery is the reasonable value of the plaintiffs services. Evans & Associates, Inc. v. Dyer,
Fourth, the Antonuccis assert that the failure of the trial court to award damages for allegedly remedial work done by DDL ($24,016) and for delay in completion of the project (approximately $3,561 in hotel and relocation expenses) was against the manifest weight of the evidence and constitutes reversible error. We disagree.
The measure of damages is a question of fact to be decided by the trier of fact. Meade v. Kubinski,
Regarding remedial damages, “[i]t is well settled in Illinois that the measure of damages for a breach of contract when a builder has provided less than full performance
In addition, a homeowner also may be entitled to recover damages for delay in the construction of a residence. Ambrose v. Biggs,
The party seeking the damages bears the burden of establishing the proof of the alleged damages with reasonable certainty. Premier Electrical,
In the present case, the trial court most certainly did not ignore the evidence presented by the Antonuccis for the purposes of claiming remedial and delay damages.
As to damages for remedial work, the trial court awarded the Antonuccis a setoff in the amount of $25,942.75 for the work performed by Task Force. Beyond the setoff for the charges of Task Force, however, the trial court found that the Antonuccis’ “proof is inadequate to determine which costs incurred by the Antonuccis reflect correction of Fieldcrest’s defеctive work and which costs relate to completion of the original work. Failure to separate these costs renders the evidence incompetent to establish damages for this element.” The primary proof offered by the Antonuccis to demonstrate additional remedial damages for the work performed by DDL was through the testimony of Dennis Lungren, the owner of DDL and the person who prepared a list of alleged remedial work. Lungren’s testimony essentially revealed that he did not know what tasks performed by DDL were remedial in nature as distinguished from new jobs. We find that the trial court’s finding on remedial damages is not against the manifest weight of the evidence.
As to the alleged delay damages, paragraph 45 of the trial court’s findings states, in pertinent part, that “[t]he Antonuccis have not proved the delay damages' asserted in their amended counterclaim. *** Moreover, there is evidence of delays occurring during the time Gregory Antonucci and/or Malo served as general contractors and Page was construction manager.” The record includes evidence that the Antonuccis caused delays in Fieldcrest’s work during the course of the project and the Antonuccis made no attempt to separate, explain or identify what delays could be attributed to Fieldcrest. Furthermore, we reject the Antonuccis’ argument that the project was delayed when they terminated Fieldcrest from the project in August and were unable to find a replacement until December. Neither the Antonuccis nor independent research provides any legal authority to support the Antonuccis’ position that delay damages are mandated, as a matter of law, where the homeowner terminаtes the general contractor. Thus, we hold that the trial court’s finding that the Antonuccis did not sufficiently prove delay damages is not manifestly erroneous.
Fifth, the Antonuccis assert that the trial court erred in granting, in part, Fieldcrest’s bill of costs against the Antonuccis in the amount of $5,6673.28. Fieldcrest,
On cross-appeal, Fieldcrest asserts that the trial court erred, as a matter of law, in extinguishing its mechanic’s lien, notwithstanding the trial court’s findings that Fieldcrest breached the contract, did not substantially perform the contract and failed to perform in a workmanlike manner. As acknowledged by the parties at oral argument, there is no case law directly on point to resolve this issue.
In its conclusions of law, the trial court held that “[a] party must show substantial performance to enforce a lien” and “[g]iven that Fieldcrest has been found to have breached the contract, said lien may not be foreclosed, and is herewith ordered extinguished and held for naught.” We agree.
The long-established precept provides that mechanic’s liens are created purely by statute and are in derogation of the common law. Koester v. Huron Development Co.,
The special remedy afforded to contractors under the Act is in addition to ordinary common law remedies for the enforcement of the contract out of which the lien arises. Midwest Environmental Consulting & Remediation Services,
The burden is on the lien claimant to prove every element necessary to establish the lien. Delaney Electric,
Normally under the Act, the contractor must completely perform the contract to enforce its lien for the value of what has been done. E.g., Contract Development Corp.,
Notwithstanding the general rule, a contractor still can enforce a mechanic’s lien by proving that he substantially performed the contract in a workmanlike manner. Evans & Associates, Inc. v. Dyer,
Where substantial performance of a contract in a workmanlike manner is established, a contractor is entitled to enforce his mechanic’s lien for the amount attributed to the work furnished under the contract, subject to any deductions by way of setoff for completing and correcting the work. Mani Electrical Contractors,
“When a builder does not substantially perform under a contract, he is limited to claiming damages under a theory of quantum meruit. These damages are equal to the reasonable value of his services minus the amount of damages suffered by the buyers.” Evans & Associates,
It would be inconsistent with the language of the Act, the attendant legаl principles, arid the holdings in the judicial opinions to entitle a contractor to a mechanic’s lien where he did not substantially perform the contract in a workmanlike manner and, indeed, was found to have breached the contract. In light of these facts, we hold that a contractor is not entitled to a mechanic’s lien and is limited to recovery in quantum meruit only.
Next, Fieldcrest asserts that it is entitled to recover its attorney fees under section 17 of the Act (770 ILCS 60/17 (West 1994)). In light of our holding that Fieldcrest is not entitled to a mechanic’s lien under the Act, this issue is moot.
Lastly, Fieldcrest asserts that the trial court abused its discretion in denying its motion for reconsideration for leave to file an amended complaint against Roxanne Malo to allege a cause of action for tortious interference with an existing contractual relationship.
A trial court’s ruling to dеny leave to file an amended complaint is a matter of discretion and will not be reversed absent an abuse of discretion. Board of Directors of Bloomfield Club Recreation Ass’n v. Hoffman Group, Inc.,
The elements required to state a cause of action for tortious interference with contract are (1) the existence of a valid and enforceable contract between the plaintiff and another; (2) the defendant’s awareness of the contractual relationship between the plaintiff and another; (3) the defendant’s intentional and unjustifiable inducement of a breach of the contract; (4) a breach of contract by the other caused by the defendant’s wrongful acts; and (5) damage to the plaintiff. Grund v. Donegan,
In its order denying Fieldcrest’s motion to reconsider and for leave to file an amended complaint, the trial court, in its conclusions of law, stated that “[t]he finding that Fieldcrest breached makes proof of the element impossible as to the Antonuсcis.” We agree with the trial court. A required element of this tort is that the defendant (in this case, Malo) engaged in wrongful conduct, causing the other party to the contract (here, the Antonuccis) to breach the contract with the plaintiff (here, Fieldcrest). Failing to satisfy the breach element of the tort necessarily would defeat Fieldcrest’s action against Malo. See Hirsch,
The dissent chronicles all of the alleged conduct of Ms. Malo, but does not do so with reference to the allegations of the proposed amended complaint which Fieldcrest sought to file. Further, even if the trial court erred in denying the motion to file the amended complaint, it does not follow that the trial court’s findings as to fact and law relating to the nonperformance of Fieldcrest and the imposition of a mechanic’s lien ought to be set aside. The dissent does not address the specific findings of the trial court that Fieldcrest failed to perform its obligations under the contract. The trial court was well aware of Ms. Malo’s activities in connection with the project and made specific findings regarding the same. Instead of giving the appropriate deference to the trial court, the dissent engages in speculation that all of the problems between the parties can be laid at Ms. Malo’s doorstep.
For all of the foregoing reasons, we affirm in part, reverse in part and remand the matter to the trial court.
Affirmed in part and reversed in part; cause remanded.
QUINN, J., concurs.
Notes
We recognize that $305,571 minus $112,500 is $193,071, not $183,071. The figures stated above, however, are the figures stated in Fiеldcrest’s pleading.
Dissenting Opinion
dissenting:
The record in this case compels this dissent from the majority decision, for the reasons that follow.
The record reveals that the undertaking of demolition and construction services by Fieldcrest for the Antonuccis was troubled, difficult, badly investigated and poorly planned by the Antonuccis and their consultants, ab initio. No fewer than three plan sets were required before this project ever got off the ground and, even then, numerous modifications to the plans had to be prepared. There were deficiencies in the drawings prepared by the Antonuccis’ architects and engineers, including missing and inaccurate dimensions, concerns
In addition, the record demonstrates the continuing interference, in practically every phase of the demolition and construction proсess, by Malo to the extent that the circuit judge was forced to concede in his conclusions of law:
“She was not a mere bystander, friend, financier, and facilitator. She was in fact intimately involved as agent, as bid solicitor, as bank, as a party who entered contracts, as one who directed bank action, prepared contractor statements, and received and transmitted funds. On the trial record, her involvement exceeded that of either Antonucci. Had she been more truthful about the nature and extent of her role, she may have avoided the extent of her participation. Having chosen to mislead plaintiff and the Court, her complaints [about the unfairness of the action against her] *** all ring hollow. She has herself to blame.”
Having thus concluded, the court nevertheless finds that Fieldcrest was not entitled to plead intentional interferеnce by Malo, inducing or causing a breach or termination of the relationship or expectancy because Fieldcrest breached the contract.
That Fieldcrest sought discovery with respect to making Malo a third-party defendant throughout this protracted litigation, and was obstructed from doing so until nearly the end of the trial proceedings, is fully borne out by the record. Lack of diligence in seeking third-party defendant status for Malo was not attributable solely to Field-crest, which should have been allowed to do so under section 2 — 616 of the Code of Civil Procedure (735 ILCS 5/2 — 616 (West 1994)). Field-crest was entitled to attempt proof of its theory, that its breach of any material aspect of the contract with the Antonuccis, if any, was caused by the conduct of Malo, and Antonucci under Malo’s direction and control.
Malo’s alleged conduct, of which Fiеldcrest complained, was not just run-of-the-mill petty annoyances, but serious obstruction and intervention. For example, after the Antonuccis entered into a construction loan trust and disbursing agreement with Chicago Title & Trust Co. and closed their construction loan with Harris Bank of Glencoe, Fieldcrest submitted to the Antonuccis draw request No. 1, for which the Antonuccis swore completeness of the work to July 16, 1994, and Fieldcrest was credited with the requested amount. Structural problems thereafter developed, based upon improper assumptions made by the Antonúccis’ experts. Unforeseen structural supports had to be placed by Fieldcrest, which representatives of Harris Bank inspected and found “consistent with the draw request,” and noted further that “extensive demolition of the existing structure has been completed at this point [and] framing and concrete work for new portions of the building have begun.” There were no objections by the Antonuccis to this finding. Nevertheless, Malo, claiming to represent the Antonuccis’ interests, instructed the Harris bank to withhold $10,000 from the first draw, which Fieldcrest claims represented the Antonuccis’ earnest money deposit required under the contract.
Thereafter, Malo met with Dakis оf Fieldcrest and the Antonuccis on August 20, 1994, who sought to have Fieldcrest sign an agreement to terminate the construction and demolition contract, which Field-crest refused to do. The Antonuccis on that date then unilaterally terminated the contract, although Fieldcrest sought to finish its obligations under the agreement. The contract provided that the Antonuccis would have the right to terminate the contract if Fieldcrest failed to complete the work satisfactorily prior to March 1, 1995. The Antonuccis submitted no evidence that Fieldcrest could not have met the March 1 completion date.
Significantly, the Village of Glenview never cited the project for any violations or fines, nor did it shut down the job or issue stop work orders. No complaints or other claims of problems appear in the village building department files.
Malo allegedly was not through with the рroject. She thereupon instructed the bank that the second draw submitted by Fieldcrest was not to be honored, purportedly acting on behalf of the Antonuccis. She further notified the bank that the Fieldcrest contract was being terminated unilaterally by the Antonuccis and that arbitration “is being sought with litigation probably being pursued as a means of remedy.” Malo then advised the bank that “Roxanne Malo will, with the assistance of the architect, act as the general contractor until such time as a contract may be signed with a new builder to correct the structural deficiencies and complete the project.”
Fieldcrest’s draw request No. 3 was submitted thereafter for the balance due and owing from the Antonuccis, which also was not honored. There was evidence that Malo, either individually or doing business as Concepts by Mauro, entered into subcontracts as agent or on behalf of the Antonuccis to complete work on the project with seven different companies or suppliers. Further, she was alleged to have received direct payments from draws No. 2 and No. 3, exceeding amounts paid by her to subcontractors.
It is clear from the foregoing that considerable ventilation of the allegations should be undertaken at a trial on the issues raised in the proposed third-party complaint.
Accordingly, I dissent from the disposition presented by the majority and would reverse the denial of Fieldcrest’s motion for reconsideration and leave to file an amended complaint against Malo which, if sustained by further evidence, could well affect the decision to deny the mechanic’s lien to which Fielderest appears to be entitled, as well as appropriate relief against Malo.