III. DISCUSSION

Batteast claims that governing contract requires, among other
things, that PBC obtain architect certification for any expenses
incurred to complete the Project after Batteast’s termination.
Batteast contends that without this predicate act, PBC cannot
prevail on its counterclaim as a matter of law. Specifically,
Batteast points to testimony indicating that the Project architect
was not involved in reviewing or approving the payment applications
from the replacement contractor (or any of the subcontractors)
after Batteast was terminated from the Project.

PBC responds in three ways. First, PBC contends that it is
premature to require architect certification hecause the Project is
still not complete, and thus final costs are unavailable. Second,
PBC claims that “it is never too late to present an architect
certificate in order to secure payment.” Third, PBC argues that
any absence of certification is excused by Batteast’s own
fraudulent conduct. Specifically, PBC claims that Batteast
“willfully” submitted false schedules of values and statements that
have “completed frustrated any attempt to comply with architect
certification of excess completion costs.”

Batteast replies by contending that it is not premature to
require architect certification because the Project was
substantially complete as of May 2002. Batteast further notes that

PBC never raised this timing issue until the present motion.



not certified by the project architect on the same grounds Batteast
and Employers seek to bar PBC’s damage claims.” Second, PBC
requests that the trial of its third party complaint and
counterclaim be severed. Because PBC has not noticed these
purported motions (nor has the Court set briefing schedules), the
Court will not consider the merits of PBC’s contentions here, as

these issues are not properly before the Court.

CONCLUSION
For the reasons set forth above ons are DENIED.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

soc | oo


together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” FED. R. Civ. P. 56(c). A fact
is “material” if it could affect the outcome of the suit under the
governing law; a dispute is “genuine” where the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The burden is initially upon the movant to demonstrate the
absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). In assessing the movant’s
claim, the court must view all the evidence and any reasonable
inferences that may be drawn from that evidence in the light most
favorable to the nonmovant. Miller v. Am. Family Mut. Ins. Co.,
203 F.3d 997, 1003 (7th Cir. 2000). Once the moving party has met
its burden, the nonmoving party “may not rest upon the mere
allegations” contained in its pleading, but rather “must set forth
specific facts showing that there is a genuine issue for trial.”
FED. R. Civ. P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914
F.2d 107, 110 (7th Cir. 1990); Schroeder v. Lufthansa German
Airlines, 875 F.2d 613, 620 (7th Cir. 1989). The nonmovant “must
do more than simply show that there is some metaphysical doubt as
to the material facts.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986).



Moreover, Batteast points to interrogatory responses to show that
the last payment purportedly related to excess completion costs was
in June 2002, more than 19 months ago. Thus, according to
Batteast, the undisputed facts show that PBC had the ability to
have the totality of excess costs certified well before the present
Motions.

Batteast also argues that its accounting practices are
irrelevant to PBC’s counterclaim. Specifically, Batteast claims
(in somewhat conclusory fashion) that the architect certification
clause is “necessary in part because of the potentially infinite
ways that PBC might decided to complete the work,” and has “no
connection” to the way that Batteast accounted for its pre
termination work.

PBC appears to be raising a contractual defense akin to the
doctrine of wrongful prevention, which generally holds that
nonperformance may be excused where expected performance was
prevented by the other party to a contract. See, e.g., Barrows v.
Maco, Inc., 94 Ill. App. 3d 959 (1st Dist. 1981). PBC advances the
argument that Batteast’s purported fraudulent concealment of
certain subcontracts made it impossible to determine the “true
plan, if any, Batteast had for completing the work within the
adjusted contract price” and that therefore the “Architect cannot
certify that work performed by subcontractors or substitute

contracts is within the scope of work under Batteast'’s contract.”


"Minute Ofer Form (06/97)

United States District Court, Northern District of Illinois

Seesenainge | HanyD.Leinenveber | Sarto

CASE NUMBER 02 C 683 DATE 3/16/2004
CASE Batteast Construction Company vs. The Public Building Commission
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

qd) o Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

@) Oo Answer brief to motion due. . Reply to answer briefdue___-

(4) a Ruling/Hearingon____sset for at

(5) Qa Status hearingfheld/continued to] [set for/re-set for]on__—ssetfor att

© a Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor__—ssat__—.

) o Trial[set for/re-set for]on__at

(8) Qa [Bench/Jury trial] [Hearing] held/continued to saat

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) CLocal Rule 41.1 OFRCP41(a\(1) CFRCP41(a)(2).

(10) MM [Other docket entry) ENTER MEMORANDUM OPINION AND ORDER: Batteast Construction’s
Motion for Partial Summary Judgment on Public Building’s Counterclaim and Employers Insurance of
Wausau’s Motion for Summary Judgment on the Third Party Complaint are denied.

dl) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open cour.
No notices required. umber of notices
WV | Notices mailed by judge’s staff.
Notified counsel by telephone. MAR 9g, 2004
Docketing to mail notices. .
Mail AO 450 form. to NN
yynod Laisia “sn end dein
Copy to judge/magistrate judge wag
a wt date mail
courtroom gesziid Lhe
WAP deputy's eG Gh
initials
Date/time received in . ae
central Clerk's Office aig deputy nial



In essence, PBC’s argument appears to be that Batteast so
obfuscated the nature of work that it did (or did not do) that
PBC'’s architect could not disentangle which costs were indeed
excess costs for purposes of certification.

In support of this argument, PBC attaches affidavits from
Kevin Gujural and Douglas Farr. The affidavits filed with the
Court were not executed, and thus are a nullity for purposes of
defeating summary judgment. PBC also submits a series of invoices
that purportedly reflect undisclosed contracts in violation of the
governing contract here. Although the evidentiary support offered
here by PBC to defeat summary judgment here is a bare minimum, it
nonetheless is sufficient to allow the issue to go to trial for at
least two reasons... First, the plain terms of the contract do not
specify precisely when the architect certification is required, and
therefore it is possible that, as PBC contends, an architect
certification could be still be timely at the present time.
Summary judgment cannot dispose of contractual ambiguities. See
Metalex Corp. v. Uniden Corp. of America, 863 F.2d 1331, 1333 (7th
Cir. 1988). Second, PBC’s defense requires a fact-intensive
inguiry of Batteast’s purported wrongful prevention of performance.
This too is not an issue amenable to summary judgment.

On a final note, PBC embeds two separate procedural requests
in its response brief to the Motions. First, PBC moves for

“summary judgment barring all evidence of Batteast’s damages claims


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

BATTEAST CONSTRUCTION COMPANY, F l L E D

INC.,
MAR 1 6 2004

Plaintiff, MOOSE
Sie £0 JUDGE HARRY D. LEINENWEBER
AR 18 2004 US.distRICT CouRT JUDGE

v.

THE PUBLIC BUILDING COMMISSION :

OF CHICAGO,
Defendant. Case No. 02 C 683
THE PUBLIC BUILDING COMMISSION Hon. Harry D. Leinenweber
OF CHICAGO,
Counterplaintiff,

v.

BATTEAST CONSTRUCTION COMPANY,
INC.,

Counterdefendant,
and
EMPLOYERS INSURANCE OF WAUSAU,

Third Party Defendant.

MEMORANDUM OPINION AND ORDER

Before the Court is Batteast Construction Company’s Motion for
Partial Summary Judgment on PBC’s Counterclaim and Employers
Insurance of Wausau’s Motion for Summary Judgment on the Third-
Party Complaint (collectively, the “Motions”). For the following

reasons, the Motions are denied.

ae



I. INTRODUCTION

These Motions arise out of a construction project gone awry.
Batteast is a construction contractor that was awarded a lump-sum
contract to build the Midwest Center for Green Technology Project
(the “Project”). Employers provided the performance bond covering
Batteast’s work. The Public Building Commission of Chicago (“PBC”)
terminated Batteast’s contract on May 30, 2001, before completion
of the Project. (The parties differ sharply in the purported
reasons for the termination of the contract, and such reasons are
not pertinent to the present Motions.) Batteast claims that the
termination was wrongful and seeks to recover amounts it claims
were due pursuant to the contract. PBC, in turn, filed a
counterclaim seeking recovery of the costs to complete the Project
that were over and above the contract amount. (PBC also filed a
third-party complaint against Employers that contains essentially
equivalent allegations as its counterclaim, but seeks recovery from
Employers as a surety.)

The Motions seek summary judgment on PBC’s claim for costs
over and above the initial contractual amount because PBC failed to
obtain certification from the Project architect of these additional
expenses.

II. LEGAL STANDARD
Summary judgment is appropriate if “the pleadings,

depositions, answers to interrogatories, and admissions on file,