Gettings v. The Estate of Higgins

1

2024 IL App (4th) 230436-U

BRETT WILLIAMS GETTINGS, Plaintiff-Appellee, v. THE ESTATE OF ROBERT MICHAEL HIGGINS, Defendant-Appellant.

No. 4-23-0436

Court of Appeals of Illinois, Fourth District

March 20, 2024

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Jersey County No. 19L31 Honorable Allison Lorton, Judge Presiding.

JUSTICE ZENOFF delivered the judgment of the court. Justices Doherty and Lannerd concurred in the judgment.

ORDER

ZENOFF, JUSTICE

¶ 1 Held: The appellate court affirmed the trial court's denial of defendant's motion for judgment notwithstanding the verdict or for a new trial where (1) defendant conceded the issue of contract formation and invited the claimed jury instruction error raised on appeal (2) defendant's concession and invitation of error relieved plaintiff of the burden to present evidence of contract formation, and (3) the court committed no abuse of discretion.

¶ 2 Defendant, the Estate of Robert Michael Higgins (Estate) appeals following a jury verdict in favor of plaintiff, Brett Williams Gettings, in Brett's breach of contract action against the Estate. The Estate argues that the trial court erroneously denied its motion for judgment notwithstanding the verdict (JNOV) because Brett presented no evidence of a valid, enforceable contract, and the court erroneously instructed the jury. The Estate further argues that the court should have granted a new trial because the jury's verdict was against the manifest weight of the evidence and the result of an unfair trial. We affirm.

¶ 3 I. BACKGROUND

¶ 4 The following facts were adduced at trial. Additional facts will be provided in the analysis section as needed to address the issues on appeal.

¶ 5 Brett and Michelle Gettings operated a grain farm in Fieldon, Illinois. In 2013 and 2014, the Gettings were planning to build a new shed on their property, as one of their other sheds was failing. In winter 2014-2015, the Gettings decided that they wanted a 60-foot by 120-foot shed with (1) a 15-foot "lean-to overhang," (2) a concrete apron leading up to the main overhung door with two other overhung doors on the side, and (3) "an office *** slash possibly apartment on the [southwest] corner." They also wanted a heated concrete floor, though they were not "positive" about its thickness. Additionally they wanted a wash pit with a drain in the floor.

¶ 6 The Gettings entered into an oral agreement with Higgins for the construction of the shed. Higgins was Brett's friend and operated a company called OL' Duke Farm Structures. On January 20, 2015, the Gettings secured a loan in the amount of $324,000, with $112,000 to be used to pay off an existing loan and $215,000 as a new line of credit for the shed.

¶ 7 On February 23, 2015, Higgins sent a letter to the Gettings' banker, Chris Simon of the Bank of Calhoun County (Bank). The letter was on OL' Duke Farm Structures letterhead and had a subject line that provided, "Proposed Budget for Gettings 60' by 120' building." In the body of the letter, Higgins indicated that he was providing a "proposed budget for the new shop Brett wants to build." The letter relayed that the shed would have the following specifications:

"1) 60' x 120' x24' [ sic ] tall at the eave.

2) 15' x 120' open overhang (no post) closed at each end.

3) 4" Insulation, walls, ceiling in shop area. None in the overhang area in rear of building.

4) Doors; 2-3070 walk doors, 1-30' x 20', 1-24' x20' [sic], 1-16'x16' [sic] roll-up overhung doors

5) Concrete; trench footing, walls, piers, 8" concrete slab with 1/2" rebar 2" O.C. ea. direction."

The letter also included the following itemized costs and requests for initial payments:

"Arco/OL' Duke Building - $69,998.00

OL' Duke Labor - $31,500.00

OL' Duke Concrete - $88,700.00

OL' Duke Doors - $18,000.00

O[L]' Duke Office - $9,000.00

Total $217,188.00

30% down to order building from Arco Building wired or check $20,998.00

10% Mobilization, overhead to start project to OL' Duke wired or check $21,718.80"

¶ 8 Higgins also prepared a drawing, dated February 23, 2015, that depicted a 60-foot by 120-foot shop with heated floors represented by wavy lines, overhead doors, a floor drain, an office on the southeast of the building, and a 15-foot overhang.

¶ 9 On February 25, 2015, the Bank disbursed $20,998 to Arco Buildings and $21,718 to OL' Duke Farm Structures to initiate the construction of the building. On April 24, 2015, a disbursement in the amount of $52,824 was made to Spirco Manufacturing for the building, which was delivered that day.

¶ 10 Higgins began construction of the building in May 2015. However, the crew Higgins had hired was inexperienced. Higgins soon asked Kenneth Grizzle to correct several mistakes made during the initial phase of construction. By July 2015, Higgins asked Grizzle for additional, more substantial help. Grizzle, who had some project management experience, agreed. Over the next several months, the Bank disbursed, inter alia, $15,000 for the "Partial erection of metal building" and $46,350 for "Red steel erection labor" and "Concrete labor." Throughout this time, the Bank also paid invoices to vendors for such items as materials for a water line and concrete. Soon, the Gettings became concerned because the funding for the building was "[r]unning out." Additionally, Higgins's health was deteriorating such that by the summer, he was unable to work a full day or venture far from his truck due to the heat. As a result, Grizzle spent some days at the site by himself. Grizzle noted that he was "disappointed" with Brett because, even though Brett knew "we were struggling" and were "really shorthanded," he did not check on the workers' welfare, provide help, or show concern.

¶ 11 By December 2015, all work on the shed ceased. At that time, the walls of the structure were not completed, and seams were incorrectly made. This left gaps that needed to be repaired. Additionally, the structure had no roof or doors, there was no concrete on the apron, and the office was not complete. Portions of the building and building materials were exposed to the elements through the winter. This caused concrete in portions of the floor to sink, insulation to sag, panels intended for use on the roof to become discolored, and tin to be blown off the building.

¶ 12 Over the next several months, the Gettings communicated with Higgins and asked on several occasions when he would return to finish the shed. Higgins responded that his health issues had prevented him from working and that he was "trying to keep alive to finish this job and stay around for my kids." Despite additional communications with Higgins, no work was conducted on the shed until September 2016, when the Gettings hired other contractors to complete the building. Among the new hires were (1) William Scott, who conducted repairs and completed the building for $15,750, (2) Behrens Home Improvement, which framed the walls of the office for $9850, (3) B &P Construction, which installed metal siding and the roof of the office and apartment for $6900, and (4) Helitech, which repaired concrete flooring that had shifted for $2627.50. The Gettings incurred additional costs of $19,557.93 for more office framing materials and $35,400 for the overhead doors that had not been purchased previously. According to Scott, he was paid an initial fee to commence the completion of the building on September 30, 2017, and he received a final payment on October 6, 2017, at which time the building was completed.

¶ 13 On December 31, 2019, after Higgins passed away, Brett initiated the instant action against the Estate for breach of contract. The Estate admitted that Higgins created the proposed budget, which listed a sum of $217,188, but denied that an oral contract was accepted by Brett and Higgins or that any agreement contemplated heated floors or the office. As affirmative defenses, the Estate asserted, inter alia, that any damages claimed by Brett should be offset by amounts not contemplated by the proposed budget, including (1) an increase in building material pricing, (2) the addition of a heated floor, office, and apartment, which "increased the cost of construction as budgeted," (3) Brett's purchase of building materials at a higher cost than proposed in the budget, (4) Brett's failure to purchase overhead doors before they increased in price, (5) Brett's failure to mitigate damage to building materials left exposed to the elements, and (6) Brett's failure to purchase and install overhead doors once it became apparent that Higgins's health prevented him from continuing the construction of the building.

¶ 14 At trial, the parties contested, inter alia, whether the purported oral agreement between the Gettings and Higgins was sufficiently definite to be enforceable, considering that the proposed budget letter did not mention several items the Gettings claimed were contemplated by the oral agreement. During their testimony, the Gettings claimed that, although the proposed budget did not mention features such as heated floors, a wash bay, a concrete apron, or a two-story office and apartment attachment, they were nevertheless contemplated in the oral agreement and included in the budget. Brett testified that the budget proposal did not "mention a lot of things," but "it was still the original plan was [ sic ] to have heated floors and a wash bay." He further testified that "[j]ust because [the budget proposal] doesn't mention it doesn't mean it wasn't there."

¶ 15 At the conclusion of Brett's case-in-chief, the Estate moved for a directed verdict, arguing, in part, that no enforceable...