Pepper Constr. Co. v. Palmolive Tower Condos., LLC

2021 IL App (1st) 200753

194 N.E.3d 991

PEPPER CONSTRUCTION COMPANY, Plaintiff and Counterdefendant-Appellant and Cross-Appellee,

v.PALMOLIVE TOWER CONDOMINIUMS, LLC; ABN AMRO Mortgage Corporation, Inc. ; Alzenstein, Neal; Almeida, Jill F.; Almeida, Richard J. ; American Brokers Conduit, f/k/a American Home Mortgage Co.; Anning-Johnson Co. ; Antares Iron and Copper, Inc. ; Asher Brothers Company, Inc., ATG Trust Company, as Trustee of Trust Agreement No. 10261 Dated 7/25/2006; Ballas, Peter G., as Trustee of the Peter G. Ballas Revocable Trust Dated 5/23/2003; Bank of America; Bank United FSB; Barrett, Marilyn E.; Barry, Marcella; Barry, Robert; Barry Thomas Plumbing, Inc. ; Barsanti Woodwork Corporation; Bergdahl, Linda J.; Berglund Construction; Bernhard Woodworks, Ltd.; Big Beaver and Crooks, Ltd., LLC; Birkel, Martin P.; Blazer, Judith E. and Henry E. Fuldner, as Trustees of the Judith E. Blazer Living Trust, Dated 10/21/1996; Booth, Laurence; Booth, Patricia; Bourbon Tile and Marble, Inc.; Boysen, Rowena; Break Thru Enterprises, Inc.; Buckley, Mortimer; Burkard, Jeffrey ; Bynoe, Linda Walker; Bynoe, Peter; Cabrera, Maria; Calkins, Catherine B.; Calkins III, Russell W.; Camino Modular Systems USA, Inc. ; Capitol Glass; Charles Schwab Bank ; Chicago Bancorp Inc.; Chicago Financial Services, Inc.; Chicago Title and Trust, Co. ; Citibank; Citi Mortgage, Inc. ; Colco Services, Inc.; Cole Taylor Bank; Column Financial, Inc.; Combs, Mark E.; Connaughton, James T.; Connellan, John; Countrywide Home Loan ; Creative Industries Terrazzo; Custom Stainless; Daw, James F.; Delaney, Madeleine; Deleers Millwork Inc. ; Deleeuw, Debra Anne Sylvan; Deleeuw, Robert ; Demirjian, Charles ; Dimauro, Alexander; Douglas Iron Works, Inc.; DP 159e. Walton, LLC, R.A.; Draper and Kramer Mortgage ; Earhart, Barrie, as Trustee of the Barrie M. Earhart Revocable Trust Dated 2/24/2003; Elsman, Cynthia; Elsman Jr, James L.; Elsman III, James L.; Elsman, Janice M.; Eztech Manufacturing, Inc. ; Feeney, Louise; First Franklin ; First Midwest Bank; Flooring Resources Corporation; The Gaslight Companies; Georges, Christos ; Georges, Maria ; Georgis, Mary Lou; Germont, Joy; Glaros, Willis H.; Glickman, Ross B. ; Glickman, Suzanne A.; Grand Appliance and TV; Grunberg, Ted; Gurtz Electric Company; Harris Na; Hawkins, James B. ; Hawkins, Mary Pat; Henkel, Frances C.; Henkel, Michael C. ; Hill Mechanical Corporation ; Hourihane, Kristina K.; Hourihane, Patrick D.; International Marble and Granite Supply, Inc.; J. Kapcheck and Company; John Caretti and Company; Johnstone, Lisa A.; Johnstone, Michael B.; Jones, Herbert A. ; Jones, Kimberly M.; JP Morgan Chase Bank; K7K Iron Works, Inc.; Kehoe, Thomas G.; Laforce Hardware and Manufacturing Company/Wisconsin; Gregory J. Landis, as Trustee of the Gregory J. Landis Declaration of Trust Dated 9/14/1998; Lecoque, Jay K.; Lilie, Harold J.; Loeffler, Kelly L.; Loomis, Brian S.; Lyn-Den, Inc.; Makam, Padmini S.; Makam, Satyaprakash N.; Manson, Julie N.; Aria Mazer Living Trust, Dated 9/23/2005; Rick Mazer Living Trust, Dated 9/23/2005; Mazer Construction Company;, McGrath, Kristina; McGrath, Michael; Menendez, Alicia S. ; Midwest Woodwork and Veneering, Inc. ; Miller, Susan H.; MK Industries, Inc.; Moore, Helen; Moore, Wayne; Mortgage Electronic Registration; Murad, Nadia; MABS Investments, LLC, R.A.; National City Mortgage ; National Electrical Benefit Fund; Nayer, Rajeev; Nayer, Ritu; Northstar Fire Protection ; Marla Nyberg Declaration of Trust, Dated 12/1/1998; Oak Brook Bank; O'Connell, Cormac; Palmolive Building Base, LLC; Park National Bank; Pappas, Nicholas J.; Parenti and Rafaelli Ltd. ; Pedersen, Myrna E.; Frank S. Perry, as Trustee of the Frank S. Perry Trust Dated 1/17/2002; Pimentel, George B.; Pimentel, Zana; Poliform, Prince; Cynthia Prochnow, Douglas L.; Rampy Resnick, Nancy; Resnick, Phillip ; Rosen, Brian; Ross, Maria; Ross, Richard; Rozran, Dawn F.; Rozran, Jack L.; Rubenstein, Marc A.; Beth S. Rubin Revocable Trust 3/7/2007; Ines Morroni Sardo, Trustee of the Ines Morroni Sardo Trust, Dated 12/17/2004; Shimer, Robert J.; Showerworks; Shutter, Jennifer M.; Shutter, Jon D.; Marcy Simon, as Trustee of the Marcy Simon Trust, Dated 9/19/1999; Spech, Larry; Sprecher, Jeffrey C. ; Stevenson, Chase; Stevenson, John; Stewart, Jay S.; Stewart, Judith D. ; Stringfellow, James; The Northern Trust Company of Illinois; The Private Bank Mortgage Company ; Tidy International; Tirapelli, Ronald; Travers, Suzanne; Trinity Roofing Services, Inc. ; The VAV2005 Trust, Dated 8/8/2005; Vorwaller, Ava M.; Vorwaller, Gregory S.; Wallack, Lewis; Washington Mutual Bank ; Weaver, Amy J.; Weaver, Richard G.; Wells Fargo Bank; Weiner, Barbara A.; Willmot, Peter S.; Wittenmyer, Eric; Woodfield Planning Corporation; Nonrecord Claimants; and Bourbon Marble, Inc., Defendants

(Bourbon Marble, Inc., Defendant and Counterplaintiff-Appellee and Cross-Appellant).

No. 1-20-0753

Appellate Court of Illinois, First District, SIXTH DIVISION.

Filed September 17, 2021

Rehearing Denied October 25, 2021

Gino L. DiVito, John M. Fitzgerald, Jordan E. Wilkow, and Jonathan S. Kim, of Tabet DiVito & Rothstein LLC, of Chicago, and Bruce W. Ficken (pro hac vice) and James M. Kwartnik (pro hac vice), of Cozen O'Connor, of Philadelphia, Pennsylvania, for appellant.

Ethan E. Trull, Keith E. Edeus, Seth A. Horvath, and Elizabeth Z. Meraz, of Nixon Peabody LLP, of Chicago, for appellee.

JUSTICE CONNORS delivered the judgment of the court, with opinion.

¶ 1 This appeal concerns a dispute between a general contractor for a construction project, Pepper Construction Company (Pepper), and one of its subcontractors, Bourbon Marble, Inc. (Bourbon). Beginning in 2004, Pepper, Bourbon, and other subcontractors worked on an interior build-out of approximately 96 condominium units in a building owned by Palmolive Tower Condominiums, LLC (Palmolive), and located at 919 North Michigan Ave in Chicago. The project was rife with problems, and Pepper and Bourbon stopped working on the project in March 2007. Pepper and the subcontractors participated in arbitration proceedings against Palmolive. Eventually, Pepper settled with Palmolive, and only issues between Pepper and Bourbon remained. In the circuit court proceedings leading to this appeal, Bourbon pursued breach of contract and unjust enrichment claims against Pepper. After a bench trial, the trial court entered judgment for Bourbon on both claims. Bourbon was awarded $271,687.87 for the breach of contract claim, $400,131.92 for the unjust enrichment claim, and $3,657,984.08 in attorney fees and costs. Pepper appealed, and Bourbon cross-appealed. We affirm in part, reverse in part, and remand for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 The parties’ arguments on appeal span the long history of this case. We recounted some of the following facts in a previous opinion, Pepper Construction Co. v. Palmolive Tower Condominiums, LLC , 2016 IL App (1st) 142754, 405 Ill.Dec. 748, 59 N.E.3d 41 ( Pepper I ), and provide additional background below.

¶ 4 A. Joint Interest and Liquidating Agreement and Arbitration Proceedings

¶ 5 Before the arbitration proceedings, Pepper, Bourbon, and other subcontractors entered into a joint interest and liquidating agreement (JILA), which sought to provide a coordinated and joint strategy against Palmolive. According to the JILA, Pepper's and the subcontractors’ damages were overwhelmingly caused by Palmolive. Pepper and the subcontractors agreed "that the most efficient and cost effective method of recovering amounts due from [Palmolive] is to present all Subcontractors’ claims as part of [Pepper's] claims in the Arbitration." Pepper would include the subcontractors’ claims in Pepper's presentation against Palmolive, and the subcontractors accepted "full responsibility for the presentation of evidence in support of their claims." Each subcontractor agreed to

"accept as their sole and exclusive compensation for its Subcontractor Claim as part of the Arbitration Proceeding, the amount negotiated by it in settlement or as determined by the Arbitrators to be due and owing each Subcontractor from [Palmolive], [Pepper], and/or each other with the exception of any backcharges or other open issues between and among [Pepper] and the Subcontractors."

Pepper would not settle all or any part of its claims against Palmolive that related to or impacted any subcontractors’ claims without the participation of and express advance written authorization from the affected subcontractor.

¶ 6 The JILA included provisions about sharing information, but those arrangements were not to be construed "to affect each Party's separate and independent representation by counsel." Pepper and the subcontractors were "free to engage independent outside counsel and/or consultants for any purpose." However, that engagement was solely at the expense of the party retaining the counsel or consultants.

¶ 7 Each subcontractor retained responsibility, including financial responsibility, for proving its entitlement and quantification of its claim and the accuracy of its portion of Pepper's claim submitted in the arbitration. As general contractor, Pepper had "overall responsibility for all matters asserted" in the arbitration and retained "final decision making authority over the procedural aspects and presentation of all matters submitted" in the arbitration. Still, each subcontractor would "present its own claim in the Arbitration and assume all financial responsibility for doing so."

¶ 8 The JILA provided as follows for how an arbitration award would be distributed:

"With respect to any amount recovered from [Palmolive] or from any of the Parties hereto by an award in the Arbitration (the "Reasoned Award"), [Pepper] agrees that such amounts will be distributed as provided in the Reasoned Award issued by the Arbitrators. The Parties agree that such a Reasoned Award will act as res judicata as to each Party's claim against [Palmolive] and

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