FIRST DI VISI ON JULY 12, 2010

No. 1-09-0076 DOORNBOS HEATING AND AIR CONDI

TIONI NG, ) Appeal from the INC., an I llinois Corporation, ) Circuit Court of ) C oo k C ou nt y. Plaintiff and Counterdefendant-Appellee, ) ) v. ) ) JAMES D. SCHL

ENKER, M. D., S.C., a

n Illi nois ) Corpora tion, KATH

LEEN ELI ZABETH SCHL ENKER, ) as Trustee of the Kathleen Elizabeth Schlenker ) Declaration of Trust Dated November 10, 1992, ) ) No. 02CH19211 Defend ants and C ounterpl aintiffs -Appella nts )

. and Third-Party Plaintiffs ) ) ) (Facilities Design, L

td., an Illinois Corporation, ) Do n C ha gn on , d /b /a Te am Co mp an y, ) The Hon orable ) Robert J. Quinn, Third-Party De fendants). ) Jud ge Pres idin g.

JUSTICE PATTI deliver ed the opi nion of the

court: NATURE OF THE CASE AND I SSUES PRESENTED FOR REVIEW Follo wing a b ench t rial, the tr ial co urt en tered j udgmen t in fa vor of Doorn bos He ating & Air Conditi oning, I

nc. (Doornbos), on the mechanic’s lien clai m that Door

nbos file d again st defendants James Schlenker (Schlenker) and Kathlee n Elizabeth Schlenker, as trustee of the1-09-0076

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Kathleen Elizabeth Schlenker Declaration of Trust Date d November 9, 1992, (Trust) (Schlenker and Trust will collectively be r eferred to as Owners), as we ll as on the breach of contract counterclaim filed by

the Owners. The Owners appeal the c ircuit court’s judgment, arguing: ( 1) Doornbos’ claims are barred by section 6 of the Mechanics Lie n Act (Act) (770 IL

CS 60/1 et seq

. (West 2006)); (2) Doornbos failed to prove that it substantially performed pursuant to the contract; (3) Doornbos failed to prove its claim for extras by clear and convincing evidence and failed to prove the amount of damages to which it was e ntitled; (4) the trial court erred in finding in favor of Doornbos on the Owners’ breac h of contract counterclaim; and (5) the trial cour t erred in granting Doornbos’ motion in limine barring the Owners from prese nting evidence pertaining to delay damag es. For the reasons contained here in, we affirm the judgment of the circuit court. STATEMENT OF FACTS The Trus t is the owner in fe e simple of the prope rty located at 6311 Wes t 95th

Street in Oak Lawn, I

llinois, which originally consisted of a one-story medica

l center (hereinafter the Property). I

n 1997, the Trust authorized Schlenker, lessee of the Property , to commence a construction project (Project) to expand the existing medical facility located on the Property

. The Project initially called for a one-story a

ddition with a surgery

center located in the basement of the facility, but wa s later expanded to consist of a three-story addition with a surgery

center located in the lowe

r level. Becau se the Pro

ject invo lved the c onstruct ion of a su

rgery center , it was subject to the requirements of the I llinois Department of Public Health (IDPH), which ha s stringent ventilation and fire protection standards for building s containing such amenities. Don Changnon, d/b/a Team Company (Changnon), was hired to be the ge neral contractor of the1-09-0076

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Project, and Facilities Design, L td. (Facilities), was retained as the Project’s ar chitect. On July 15, 1998, Doornbos submitted a $75,000 budget estimate for the Project’s heating, ventilation and air conditioning (HVAC) sy stem. On January 5, 1999, Doornbos submitted a $89,850 revised budget estimate, accounting f or the provision of HVAC services for the basement-level surgery center. Finally , on May 15, 2000, Doornbos submitted a final sc opeof- work estimate, which encapsulated Doornbos’ unde rstanding of the necessary HVAC services required for the expanded scope of the Project. Door nbos’ prior scope-of-work estimates were merged into the May

15, 2000, estimate, which formed the basis for the parties’ contra ct. Pursuant to the May 15, 2000, written contra ct, Doornbos agreed to provide the nec essary labor and materials to construct the HVAC sy stem for the Project in exchange for pay ment of $493,208. In a

ddition to providing

labor an d materia ls, the contract c alled fo r Doornb os to “design the complete [HVAC] syste m, provide drawings, submittals and schedules for approval.”

Initially , Doornbos provided the HVAC services contemplated by its contract and received timely

payment there for. Ultimately, howeve r, problems developed between the Owners and Doornbos. Accordingly , on September 19, 2002, Doornbos recorded a mecha nic’s lien clai m with the Co ok County

record er of de eds and f

iled a ve rified c omplaint to

forecl ose its lien in the circuit court of Cook County on Octobe r 21, 2002. In its complaint, Doornbos allege d that it “furnished all of the materials, services, labor, and e quipment required” by the contract as well as additional labor and materials totaling $100,909, bringing the total value of the labor and materia ls that Doornbos provided to $5 91,117. D oornbos f urther a lleged that it com

pleted its1-09-0076

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work on the Project on July 17, 2002. As of that date, Door nbos had received partial pay ment pursuant to the con

tract, b ut was still

owed $53, 013.65. A ccordin gly , Doornbo s sought t

o forecl ose its mec

hanic’s lien total ing $53, 013.65 an d recoup the attor ney fees an d costs associated with the commencement of bringing its action in the circuit court. On Febr uary 4, 2003, th e Owners filed an answer to Doornb os’ compl aint to for eclose i ts mechanic’s lien. In per

tinent part, the Owners admitted that they had not paid the amount demande d by

Doornbos

but denie d the mate

rial alle gations

advanc ed in Door

nbos’ com

plaint to forecl ose its lie

n. Moreov er, the Owners a sserted a breac h of contr act coun terclai m again st Doornbos , contend

ing that Doornbos

breached its con

tract wh en it: “(a) Failed to install a collecting sy stem for the condensation from the conde nsor c oils on th e roof, causi ng wate r to po ur dow n and d amage ceiling tiles; (b) Caused the condensing unit to run in reverse, putting additional wear and tear on the unit and interfering with its efficiency; ( c) Installed ductwork in violation of existing codes; (d) I nstalled ducts in the operating room which caused the ce iling to have too little clearance; (e) Multiple VAX boxes to not operate; (f) Fail[ed] to install the shut down alarm system; (g

) Fail[ed] to install adequate heating coils in the operating room; (h)Fail[ed] to

install an adequa te exhaust

fan in the

operati ng room; (i) Fai l[ed] to insta

ll dampers in the ve

rticle du cts; (j) F ail[ed] to ins tall dampers accord ing to ma nufactu rer’s sp ecifica

tions; (k)Fail[ed] to provide a dequate ventilati on in the c omputer r oom; [and] (l ) Fail[ed

] to1-09-0076

1 The Owners also filed actions against Fa cilities and Changnon. These actions procee ded indep endently

and neith er Fac ilities nor Changnon is a par

ty to this appe al. 5 provide control of air conditioning units.” The Owne

rs furthe r alleg ed that a s a direct and proxima te cause of Doorn bos’ bre ach of c ontract , they incurre d damages in excess of $500,000. 1 Thereafter, the parties eng aged in discovery and the cause ultimately

proceeded before a bench trial. Prior to trial, Doornbos filed a motion in limine to bar the Owners from seeking delay damage s becaus e they

failed to specific ally

allege that they suffer ed those d

amage s in their breach of contract counterc laim. The circuit court granted Doornbos’ motion and trial

comme nced o n Jun e 4, 20 07. Tr ial t estim ony reveal ed the follo wing: Robert Doornbos, Doornbos’ owner, testified that his company was in the business of providing HVAC ser

vices. A lthough he was not a mecha nical en gineer , Robert h ad previ ously designe d HVAC sy

stems, expla

ining tha t he would

produce “conce pt drawin gs,” wh ich he wo uld tu rn o ver to th e ar chi tec t o r en gin eer res pon si bl e fo r ov ers eei ng a giv en c ons tru cti on p roj ect . In July 1998, Schlenker requested Door nbos to provide a budget estimate of the costs associated with installing an HVAC system in his medical building. T hereafter, Schlenker reque sted Robert to provide

an estima

te for HV AC work f

or a base ment-lev el surg ery

center . In ma

king his request, Schlenker advised Robert that the HVAC work would nee d to be IDPH compliant and that Robert would need to factor in those requirements in designing the basement’s HVAC system. Robert indicated that he was not familiar with surgery areas or ID PH codes and that any plan he w ould desig

n would be

based on his prior H

VAC exper

ience r ather th an his fa

miliarity1-09-0076

6

with specific codes. Because of the IDPH issues, Robert recommended that Schlenke r hire a mechanical engineer for

the Project. On Januar

y 5, 1999, foll owing th

is conversation, Do ornbos submitted ano ther esti mate comprising the HVAC work to be performed in the base ment of the Project. In making the estimate , Robert r

elied on a document , “Table

A,” that S chlenke

r provide d him reg arding

the air flow exchanges required for the rooms in the surg ery ce nter. He explained, however, that the sizes of the

basemen t level ro oms chang ed during the cour se of the

Project, which ulti

mately affected the air flow exchang e rate requirements, rendering them different from the ones he had used in pr oviding t he Januar y 19 99 estimat

e. Rober t specifi cally

excluded a

n engin eer’s s tamp of approval in the January 1999 scope-of-work estimate, and he explained that this exclusion served to reiterate conversations he had w ith Schlenker and the Project’s architect, Albert Kerelis , that he w as not a me chanica l engine er and c ould not be responsi ble for u ltimately designing an HVAC system that was compliant with IDPH requirements. Robert did not recall the date on which Doornbos commenced wor k on the Project but knew his company wa s on the construction site in April 1999. By tha t time, Robert had completed drawings for the surg ery ce nter as well as for other parts of the building and ha d tendere d them to Ke

relis for review; however , he had not rece ived any formal a pproval o f his drawings. Don Changnon, the ge neral contractor, however, instructed D oornbos to commence work even though the drawings Rober t provided had not been approved. Changnon informed Robert that any alter

ations in the plans would be addressed on an as-needed ba sis. Doornbos ultimately provided work in addition to that contemplated by the January 1999 scope- of-work1-09-0076

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based on the instructions Changnon provided. During the course of the Project, Robert continued to inquire w hether his drawings had been approved by

the IDPH, but he never re ceived a copy of any appr

oved plans from Kerelis. He also sought feedback from Ke relis on various issues but did not receive the direction he sought. Robert explained that he sent Kerelis a fax dated January 12, 2000, inquiring about the fire dampers that the Project required. Ker elis, however, failed to provide any drawings or formal direction addressing Robert’s questions. Robert voiced his conc erns about the Project including the surgery

center and his lack of familiarity with IDPH codes to Changnon, but was advised to continue the work. Doornbos submitted its final scope of work on May 15, 2000, which included additional work and merged the wor k contemplated by the pr

ior estimates it had submitted on the Project. Vario us pro blems arose d uring t he cou rse of t he Pro ject, inclu ding p lumb ing, fi re rati ng, and foundational

issues. There we

re also problems that arose related to the HVA C sys tem, including the installation of the fire dampers. Robert indicated that Chang non provided Doornbos employee s with directions as to the placement and installation of the fire dampers, but the IDPH determined that they had not been properly

installed. Doornbos addressed the concerns of the I DPH and Schlenker

agree d to pay

Doornbos

for the a dditional t

ime and ma

terial it u sed to remedy those issues. I

n addition to the fire dampers, problems arose with the ductwork in the surgery center, and the ductwork was subsequently moved at Schlenker’s request. The modification affected the air flow in the surg ery ce nter, which Doornbos corrected. In November 2 001, two in spector s from the IDPH came out at Schlen ker’s r equest to1-09-0076

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inspect the Project, the progress of which was f airly advanc ed. One of the inspectors had a discussion with Robert about issues concerning the HVAC sy stem, specifically the duc twork and fire da mpers. Rob ert talke d with Schle nker fol lowing th

e inspec tion and Sc

hlenker expresse d his dissatisfaction with Kerelis’ performance, authorized Robert to do the wor k necessary

to bring the HVAC syst

em into co mpliance

with the I

DPH requ

irements , and ag

reed to c ompensat

e Do or nb os ac co rd in gl y. Throughout the Project, Doornbos initially received timely

payments for the la

bor, materials, and extras it provided; however, in July 2002, there was a balance totaling approximately $53,000 that Doornbos was owe d and Robert refused to provide any additional work unless the balance was paid. At no time did Robert receive any indication from Ke

relis or Ch an gn on th at th e w or k D oo rn bo s p ro vi de d o n t he Pr oj ec t w as un sa ti sf ac to ry. Robert acknowledged that the Project had not y et passed IDPH inspection when Doornbos walked off the Project and that Doornbos did not provide any corrective work on the Project after July 2002. He fur ther acknowledged that he did not conduct any independent research to determine which codes we re applicable to the HVAC sy stem Doornbos installed on the Project. Although he believed the Project require d the expertise of a mechanical enginee r, Robert did not employ one to assist him with drawing up plans f or the HVAC system. He explained, however, that pursuant to his understanding with Schlenker and Ke relis, his designs were sim ply prelimina

ry measure s that wer

e subjec t to the ap

proval of Kerelis . Pursuan

t to his understanding, it was Kerelis’ responsibility , as the Project’s architect, to ensure that the HVAC system conformed to the a pplicable codes. At no time did he receive any documents from1-09-0076

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Kerelis officially

approving his HVAC design despite that fact that he requested official approvals during the course of the Project. With respect to Doornbos’ mechanics lien, $100,900 included “extras.” Robert acknowledged that Doornbos did not receive any cha nge order forms signed by Schlenker authorizing the work it performed. Moreover, he indica ted that Doornbos’ lien claim contained a calculation error, and the correc t lien amount was $50,113.65 rather than the $53,113.65 sum specifie d in the lie

n it reco rded with

the Cook Cou

nty record er of de eds. Albert K erelis, p residen t of Fac ilities, the

archite ctural f

irm hired to overse e the Proj ect, testified that he was initially approa ched by Schlenke

r in 1997 regarding the Project, the sc ope of which ch anged

over time . As the a

rchitect of the Pr

oject, Ke relis indi cated he

was resp onsible for the complete design of the building, including the structural, mechanical, electrical, a nd plumbing aspects of the building. Although he sug gested that Schlenker employ a mechanical engineer, Schlenker indicated it was too expensive. Ac cordingly , Kerelis prepared record drawings for the Project, which he submitted to the I DPH for approval. It took time to obtain the requisite approva l, and in th e interim , constru ction com menced on the Proje ct. I

n prepar ing his plans, Ke relis obta ined “sho p drawin gs” fr om Doornb os, who ha

d a “desi gn-buil d” contr

act, regarding the HVAC sy

stem. Kerelis indicated to Schlenker that he had expected to rece ive sealed drawings by

a mechanical engineer due to the expanded scope of the Project, but Schlenker advised him to proceed. According ly, Kerelis re viewed and redrew the design, the reby assuming responsibility for the H VAC system. Much of the phy sical installation of the HVAC system occurr

ed prior to obtaining IDPH appr oval, which Kerelis indicated was an unusual1-09-0076

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practice. Following the IDPH’s inspec tion in which various design and installation deficiencies were discovered, Schlenker employ ed another architect to bring the Project into compliance and Kerelis learned he had been ter minated as the Project’s architect. Kerelis acknow ledged that there were issues concerning the placement and installation of the fire dampers on the Project and that he had provided direction as to the installation locations. He acknowledg ed that he did not have muc h prior experienc e workin g with the IDPH and that t he drawings he s ent to the IDPH for appr oval did no t contain

fire da mper loc ations. I

n Kereli s’ opinion , Doornbo s perfor med its work in a workman

like mann er. At no

time durin

g the Pro ject did Sc

hlenker indicate to Kerel is that he was unsatisfied with Doornbos’ work. Gary Powers, a

license d mechan

ical eng ineer, t estified that he ha s designed mecha nical, electrical, and plumbing systems for commercial and industrial buildings, and indicated that after completin g a set o f building

plans, he would, in h

is standa rd prac tice, se al and as sume responsi bility for them. Powers op ined that when a c onstruct

ion proje ct proce eds withou t a mechanical engineer, the a rchitect would be responsible for sealing and sta mping the plans. Powers indicated that he reviewed the desig n plans associated with the Project and observed that they were sta mped by Albert K erelis on August 1 8, 2002. H e noted, h owever , that Ker

elis’ stamp only

appear ed on the f

irst pag e of the p lans and i ndicate d that, in mo st cases , every page in a building plan is usually stamped. Sometime in 2000 or 2001, he was contacted by Robert Doornbos, who requested an estimate for Powers’ mec hanical engineering e

xpertise on the Project. Powers provided Doornbos with an estimate, but his services were not re tained. Powers1-09-0076

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testified that because there was no mechanic al engineer associated with the Project, it was the responsi bility of the ar chitect t o design the Proje ct’s mec

hanical sys tem. James Schle

nker tes tified on h

is own beh alf and a

cknowle dged that his wif e, Kathle en, in trust, owned the Pro

perty and that i t was lea sed by

his medica

l practic e. I

n 1997, he

decided to expand the Property and Door nbos submitted a bid on the Project. Doornbos submitted several additional estimates as the Project increased in scope. The first proposa l, dated July 15, 1998, referenced the Illinois Administrative Code provisions governing construction projects like the one contemplated by

Schlenker. In its January 5, 1999, proposal, Doornbos specifically excluded an eng ineer’ s stamp of a

pproval. The fina

l proposa l, dated M ay

15, 2000, was submitte d at a point whe re Door nbos had a

lready complete d more tha

n half of the HVAC work on the

Project, and the provision regarding the e xclusion of an engineer’s stamp of approval was re moved from the agreement. On or about the time Doornbos submitted its final scope of w ork, Schlenker and Robert co nversed and Rober

t indicate d that he had employ ed a mechanical

engine er who wo

uld ensure t hat the work Doorn

bos provid

ed met ap plicable code re quireme

nts. Based on Schlenk

er’s und erstand ing of D oornbos’ contract, Doornb os was re sponsible for designing an HVAC sy stem that would meet the approval of the I DPH. Nobody from Doornbos ever ind icated that the fir

m was unfa

miliar wit h state c odes or w as not qua lified to design and install the Project’s HVAC sy stem. During the course of the Project, some of the

wo rk Do or nb os pr ov id ed wa s f ou nd no t t o b e i n c om pl ia nc e w it h a pp li ca bl e c od es . S pe ci fi ca ll y, there were issues pertaining to the ce iling height, ductwork, and fire dampers. In March 2002, payment disputes arose

between Schlenker and Doornbos, and Doornbos eve ntually stopped1-09-0076

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providing work on the Project on July 17, 2002. When Doornbos wa lked off the jobsite in 2002, the HVAC system had not bee n completed and it failed to provide him with instructions regarding the sy

stem’s operation. Schlenke r acknow ledged that he di d not mainta

in a daily presenc e at the jo

bsite and did not know of

the commu

nication s betwee

n Changn on, his pro

ject mana ger, K erelis, h is archit ect, and Doornbos personnel. Schlenker opined it was a mistake to proce ed with the Project before obtaining the IDPH’s appr oval of the building plans. Although Kerelis provided stamped plans to the IDPH, Schlenker believed it wa s merely to fac ilitate IDPH approval and that Doornbos was ultimately responsible for the design and code compliance of the H VAC system. He acknowledged that Changnon sig ned off on all of the invoices, dated up until July 16, 2002, that Doornbos submitted, but Schlenker believed Changnon was simply certifying

that the work for which Doornbos was seeking pay ment was completed, not that the work complied with code requirements. Accordingly, even though Changnon signed off on Doornbos’ invoices, Schlenker indicated he did not believe he had to pay Doornbos until the Project was code-compliant. Despite t his belief , in a lette r dated July

17, 2002, Sc

hlenker offere d to make a

partial p ay

ment to Doornbos if it agreed to recommence work on the Project. Ly nn Manley, a staf

f architect with the Illinois Depar tment of Public Health, testified that he corr esponde d with Ker

elis abou t the Proje ct and its c omplianc e with I DPH code s. Upon his review of the plans Kerelis submitted, Manley observed that they

lacked fire damper locations. IDPH officia ls conducted a cou

rtesy inspection of the Pr

oject on N ovember

21, 2001, t

o evalua te the progress of the Project and its compliance with I DPH codes. In a letter da ted November 26,1-09-0076

13

2001, Manley discussed issues with the fire dampers and air filters, which amounted to code violations. The Project, as evaluated by IDPH inspectors in November 2001, would not have passed code inspection. IDPH pe rsonnel conducted another inspection of the Project on Marc h 13, 2002, and documented problems that had not been corrected following the initial inspection, as well as new deficiencies, and established a plan of correction for Schlenker to follow to bring the Project into compliance. The IDPH’ s final inspection of the Project took place on July 2, 2003, and surveyors confirmed that the requisite corrections had been ma de. Accordingly , in a letter dated July 9, 2003, the I DPH provided Schlenker with a letter formally approving the Project for occupancy . Manley ac knowledged that it was fairly unusual for a construction project to requir e two y ears to o btain I DPH appr

oval and o

pined tha t the rea son the pr

ocess in t his case was so lengthy

was because the Project’s architect and designers lacked health car e construction experience. Pursuant to his experience, responsibility for the design of a construction project falls upon the architect when a mechanica l engineer is not employ

ed, and Manley

did not believe that there was a mechanical engineer associated with Schlenker’s Project. Manley acknowl edged

that the d

eficien cies obse rved dur ing the prelimina

ry IDPH inspections of the HVAC system we re not unusual and indicated that it is common to find construction irregularities prior to a final inspection. Moreove r, the deficiencies I

DPH personnel discover ed on the P roject d

id not per tain solel y to the HVAC syst

em; rathe r, HVAC pr

oblems only comprised approximately one-third of the total problems discovered. Joginder Makhija, president of D&M Associates, a mec hanical and electrical consulting engineering firm that specia lizes in preparing mechanical plans on health car e construction1-09-0076

14

project s, testifi ed that he

was cont acted in August 2 002 and a sked to he lp the Proj ect conf orm to IDPH requirements. Makhija re viewed sketches of the mechanical sy stems and conducted a walk-through of the surger y center . The sketches he reviewed were not the kind he would expect to find for a construction endeavor like the one contemplate d by the Project. Afte r conducting his revie w, Makhija

made re commenda

tions as to h

ow to bring

the Proje ct into co mpliance with the IDPH. I

n particular, he made recommendations to alter the a ir flow and correct the ductwork. In his opinion, this construction project was one in which a mec hanical contractor should have been employe d to seal the mechanical drawings and submit them for a pproval. Al le n H ow ar d, a r et ir ed el ec tr ic al co nt ra ct or an d o wn er of Un io n E le ct ri c C om pa ny, testified that Schlenker employe d his company to desig n and install the electrical sy stem for the Project. Howard had famili arity with desig

n-build c ontract s, where in a contr actor is r esponsibl e for designing a sy

stem that is required, based on the facility that is being constructed, and indicated that Union Electric had such a contract on the Projec t. Accordingly , Howard selected the materials to install and the location installations. As the Project’s electrical system designbuilder, Howard was ultimat ely responsi ble for the sy stem and it s complian ce with a pplicabl e codes and regulations. His company conducted research on the applicable code provisions prior to starting work and prepared a line dr awing of the proposed electrica l system, which was then delivered to Al Kerelis, the Project’s architect. Howa rd acknowledged that Kere lis compiled the line drawing into a drawing that was submitted for I DPH approval, but indicated that he nonetheless retained ultimate responsibility f or the Project’s electrical system. Howard knew Doornbos was the HVAC contrac tor for the Project and assumed Doornbos1-09-0076

15

had a simil ar desig

n-build c ontract

with resp ect to the

Project’ s HVAC sy

stem; howe

ver, he d id not know who bore responsibility for e nsuring that the HVAC sy stem complied with the applica ble code s. Howar

d acknow ledged that the e lectric al sy stem was i mpacted when pro blems were discovered with the HVAC sy stem, specifically c

hanges to the electrical sy stem had to be made as a result of remedies undertaken w ith respect to the ductwork, air exchange ra tes, and fire dampers. Although he knew electrica l equipment had to be moved when fire damper locations were altered, Howard had no knowle dge as to the person responsible for the initial fire da mper location s. He also

acknowl edged

that he ha

d little co mmunicati on with Ke relis, who was only present at the Project site once a month. Ken Rutkie

wicz, owne

r of Red Ca

bbage Consulting , a busine ss that provides ele ctronic and computer services for small businesses, testified that Schlenker re tained his services on the Project to install the

computer

network and data sys tems for t

he buildin

g. I n addition , sometime in 2001 or 2002, Schlenker approached him to assist with the computerized HVAC control system, even thoug

h, pursuant to his understanding, the sy stem was the responsibility of Doornbos. Doornbos personnel had failed to explain to Schlenker how to run the computerized HVAC system. Schlenker r equested Doornbos to provide Rutkiewicz with the tools, software, and manua

ls neces sary

to unders tand the syst

em but Rutki ewicz wa s never provided t hose materia ls. In April 2002 , the sy

stem was n

ot opera tional and Rutkiewi cz was co mpelled to contact the manufacturer of the sy stem. When Doornbos left the Project in July 2002, Rutkiewicz worked to make the system ope rational. Various elements throughout the building had not been properly

wired to the central processing sy stem. Rutkiewicz acknowledged that he1-09-0076

16

was not familiar with Doornbos’ contractual responsibilities and was thus unawar e whether the work he performed fell within the scope of Doornbos’ contract. Dennis King, an HVAC professional, testified that in the fall of 2002, Schlenke r obtained the serv ices of h is family ’s compa

ny, Around th e Clock, to

provide H

VAC work on the Proje ct. He was aware that Doornbos was the initial HVAC contra ctor on the Project, but indicated it was no longer working on the Project when Ar ound the Clock arrived at the jobsite. Around the Clock was brought onto the Project because it needed to pa ss IPDH inspection and there wer e issues concerning the fire dampers in the sur gery center. At the time it commenced work, the sys tem was op erational, but Sch lenker d id not have

control o f the sy

stem. King

took his direction from Joginder Makhija regarding the corrective work. There we re some missing fire dampers as well a s some tha

t had bee n installe d imprope

rly . After A

round the Clock fini shed its work on the Property, the IDPH conducted a fina

l inspection and the Property passed the inspection. King acknowledged that he was not familiar with Doornbos’ contractual responsibilities and was thus unaware if the work Around the Clock perf ormed was work that Doornbos was supposed to have completed pursuant to its contract. Brian B erg, a

mechani cal engineer sp ecializin g in HVA C work, te stified a s the Owne rs’ retaine d expert wi

tness. He inspecte d the Proje ct site in 2 004 and r eviewe d design

document s associated with the Project. Based on his review of the pla ns sealed by Ke

relis, the mechanical drawings incorporated therein we re not prepared by

the architect. In his opinion, Doornbos violated the Illinois engineering licensing requirement by offering to provide enginee ring services to design the Project’s HVAC sy stem without using the services of a licensed eng ineer.1-09-0076

17

Doornbos was not qualified to certify that the HVAC system was installed in ac cordance with the applicable codes. Moreover, there we re deficiencies in Doornbos’ design a nd installation of the HVAC system. Berg acknowledg ed that he did not observe any of the work that Doornbos provided on the Proje ct and tha

t he was u

nfamilia r with the contractual rela

tionship Schlenker

had with Kerelis and Facilities Design. He wa s never informed that Kerelis sealed the Project’s mechanical designs and admitted that an arc hitect who seals plans and assumes responsibility f or a construction design is ultimately responsible for that design and for all defe cts resulting from that desig n. Berg indicate d, howeve

r, that a contractor’s re sponsibilit y to comply with appli cable codes is not alleviated merely because an architect assumes re sponsibility for a design. After hearing the afore

mentioned testimony, the circuit court f iled a written order entering judgment in favor of Doornbos on its mecha nic’s lien claim. In its order, filed on Decemb er 18, 20 08, the co urt obser ved: “The main dispute between the parties centers a round whether the plaintiff was resp onsible, c ontract ually , to desig

n and build

the HVAC syst

em in conformance with Illinois Depa rtment of Public Health (IDPH) code s concerning proper compliance . If Doornbos, the HVAC contra ctor[,] was responsible for designing and building the H VAC system in conformanc e with the applicable codes, then Plaintiff would be the party who breach [ed] the con

tract an d would be

responsi ble for a ny c osts incur

red to bring the sy stem to code. If the owners[’] design professional or general1-09-0076

18 contractor was r

esponsibl e for ma

king sur e the con struction

complied with applica ble code s, then the

HVAC subc ontract

or would b e entitle d to recovery for his labor and materials, including extras, for providing a n HVAC s ystem con formi ng [to ] the sealed plans provi ded by the design professional.” In its disposition, the circuit court found that Schlenker’s testimony lacked credibility a

nd that Doornbos’ version of the facts was more cre dible. The court then observed that the Act is to be liberall y c onstrued

and serv es a rem edial pur pose and found tha

t Doornbo s had comp lied with the Act’s notice and filing requirements and ha d met its burden of proof on its mechanic’s lien claim. Accordingly , the court entered judgment in favor of Door nbos on its mechanic’s lien claim in the amount of $50,013.65 plus interest, which amounted to $25,678.53, and costs. The court also entered judgment in favor of Door nbos on defendants’ counterclaim, finding that the Owners f ailed to prove the

materia l alleg ations as serted in

their bre ach of c ontract

claim. Th

is appeal followed. ANAL YSIS On appeal, the Owners first contend that the trial court e rred in finding in favor of Doornbos on its mechanic’s lien claim because it failed to comply with section 6 of the Act (770 IL CS 60/6 (West 2000)), which requires that work for which a mechanic’ s lien is sought be completed within three ye ars after the commencement of the wor k. Although the date of the final contract was May

15, 2000, the Owners observe that pursuant to the testimony of Robert Doornbos , his compa

ny c ommence d work on t he Projec t some time

in April 19 99. Bec ause1-09-0076

19

Doornbos left the Project site on July 17, 2002, the Owners a rgue that the work for which Doornbos asserts a lien was n

ot completed within

three y ears of its commen

cement a nd, thus, section 6 of the Act serves to bar its claim. The Act is a comprehensive statutory enactment that sets forth the rights, remedies, and responsibilities of the parties to construction contracts, including property owners, contractors and subcontractors. Cordeck Sales, Inc. v. Construction Sy stems, Inc. , 382 Ill. App. 3d 334, 353 (2008) ( Cordeck

Sales I ). The purpose of the Act is to permit contractors and subcontra ctors that furnish la bor and ma

terials, thereby

increa sing the

value or condition

of a prop erty , to asser

t a lien upon that property a

nd recover the monetary

benefits the party

has conferred upon the property’s ow

ner. Weather

-Tite, I nc. v. Uni versity of St. Fra ncis , 233 Ill. 2d 385, 391 (2009); see also Inter-Rail Systems, Inc. v. Ravi Corp. , 387 Ill. App. 3d 510, 516 (2008). Bec ause the remedies provided for in the Act are statutory and in derogation of common law, a lien-claimant must strictly comply

with the technical requirements of the Act in order to be e ligible for relief. Cordeck Sales, I , 382 Ill. 3d at 353; see also Tefco Construction Co. v. Cont inental Co mmunity Bank & Trust Co. , 357 Ill. App. 3d 714, 719 (2005) (“While the Act should be construe d liberall y a s a reme dial one, being in derog ation of c ommon law, it is strict ly c onstrued

with reference to the requireme nts upon which the right to a lien depends”). One of the technical requirements with which a lien c laimant must comply is section 6 of the Act, w

hich prov ides: “In no event shall it be nece ssary to fix or stipulate in any contract a time for the completion or a time for pay ment in order to obtain a lien1-09-0076

20 under thi s act, pr

ovided, that the wor

k is done or

materia l furnishe d within three ye ars from the commencement of said work or the c ommencement of furnishing said material.” 770 I LCS 60/6 (West 2002). Based on the plain languag e of section 6, “the 3-y ear period commences with the beginning of work for which the mechanic’s lien is asserted and not with the date upon which the contract for such work was entere d into.” (Emphasis added.) Robb v. Lindquist , 23 Ill. App. 3d 186, 188 (1974); see also Cordeck Sales, Inc. v. Construction Sy stems, Inc. , 394 Ill. App. 3d 870, 877 (2009) ( Co rde ck S ale s II ) (rec ognizing that “ ‘the work’ to be comp leted in a ccorda nce with the time lim

its of section 6 is the

work for which lie n enforc ement is so

ught”) . Accor

dingly , if the work for which a lien claimant asserts a lien is completed within three years, se ction 6 does not preclude foreclosure of its mechanic’ s lien. See, e.g. , Co rde ck S ale s II , 394 Ill. App. 3d at 877; Robb , 23 Ill. App. 3d at 188-89. Here, the parties agre e that Doornbos submitted its initial scope of work bid on the Project on July

15, 1998, a

nd a revi sed bid on Ja

nuary 5, 1999, bo th of whic

h were me

rged in to the final bid it submitted on May 15, 2000. Moreover, the re is no dispute that Doornbos commenced work in April 1999 and terminated its work on the Project on July 17, 2002. Accordingly , Doornbos provided HVAC work, pursuant to contract, on the Project for approximately three y

ears and three months. While Doornbos undisputably provided labor and materia ls over a three- ye ar time sp an, it initi ally receiv ed reg

ular time ly p ay

ments for the work it provided . Ind

eed, ove r the thre e-y

ear per iod, Door nbos provided HVA C labor an d materia ls totaling $591,117; however, it did not assert a lien for all of the work complete d over that period.1-09-0076

21

Rather, Doornbos’ lien was only for $50,013.65. Moreover, the record re veals that as of February 28, 2000, Doornbos provided HVAC labor and materials totaling $317, 033, and wa s paid this amount on May 13, 2000. Accor dingly, the wor

k for which Doornbos asserted its lien did not commence until after the February 28, 2000, invoice date and terminated within three years on July

17, 2002. The Owners cite to no relevant controlling author ity that the time requirement of se ction 6 of the Act applies to all the labor and materials furnished pursuant to contra ct and is triggered by the commence

ment of any wor

k that is furnished. Instead, as we ha ve observed above, Illinois court s have em

phasized t

hat the th ree-y ear re quireme

nt specif ied in section 6 appl ies to the labor and materials provided by the lien contractor for which the lien is being sought

. Co rde ck S ale s II. , 394 I ll. App. 3d at 877; Robb , 23 I ll. App. 3d at 188-89 . Here, Doornbos is not asser ting a lie n for all t he labor and mate rials it pr ovided du ring the course o f the Proj ect; rather, the materials and labor for which it asser ts a lien includes work commenced after February 28, 2000. Because the labor and work for which Doornbos asserts its lien was completed by July

17, 2002, within three yea rs of its commencement, we find that section 6 of the Act does not serve as a bar to its mechanic’s lien c laim. The Owne

rs next con

test the c ircuit co

urt’s judg ment in fa

vor of Do ornbos on

its mechanic’s lien claim, arguing tha t Doornbos failed to prove that it substantially per formed under the contract. The Owners contend tha t the record shows that the HVAC work Doornbos provided was substa

ntially defect ive and ob serve th at the Pro ject had not rece ived I

DPH approval when Doornbos terminated its work on the Project. Accor dingly, the Ow

ners argue that1-09-0076

22

the circuit court’s finding that Doornbos met its burden of proof with re spect to its mechanic’s lien claim was against the manifest weight of the evidence. It is the burden

of the pa rty seeking to enfor ce a mec hanic’s lien to sat

isfy the eleme

nts necessary to establish the lien. Tefco , 357 I ll. App. 3d at 718-19 ; Fieldcrest Builders, I nc. v. Antonucci , 311 Ill. App. 3d 597, 609 (1999). Specifically , the lien claimant must establish and show that: (1) the lien claimant had a valid contract; (2) with the proper ty owner, the owne

r’s agent, or somebo dy a

uthorized by t he owner to contra ct for pr operty improveme

nts; (3) to furnish labor services or materials; and (4) the lien claimant pe rformed pursuant to the contract or had a valid excuse for its nonperformance. Tefco , 357 I ll. App. 3d at 719; Fieldcr

est , 311 Ill. App. 3d at 609. Al

though the gene

ral rule require s a mecha

nic’s lie n claiman t to establ ish full performance of the contract to enf orce a lien for the value of the work or services performed, a lien claimant may still enforce a lien by proving

substantial performance. Fieldcr est , 311 I ll. App. 3d at

610; Mani Electrical Contractors v. Kioutas , 243 Ill. App. 3d 662, 667-68 (1993). Substantial performance is “ ‘honest and faithful perfor mance of the contract in its material and substantial parts, with no willful departure from, or omission of, the essential elements of the contract.’ ” Mani , 243 Ill . App. 3d at 6 68, qu otin g Folk v. Central National Bank & Trust Co. , 210 I ll. App. 3d

43, 46-47 (1991). I

ndeed, “ [a] building

contract may

be held to

be substa ntially perfor med, although the

re may be some om

issions or d

eviation s from the

contract, or some defects in the material or workmanship, when these ar e not due to bad faith, do not impair the structure as a whole, [and] are remediable without doing mate rial damage to other parts of the building.” Philip Carey Manufacturing Co. v. Weyg andt , 143 Ill. App. 297, 298 (1908). What1-09-0076

23

constitutes substantial performance depends on the circumstance s of each case ( Mani , 243 I ll. App. 3d at 668), and it is the lien claimaint’s burden to establish substantial performance ( Fieldcr est , 311 Ill. App. 3d at 610). Whether a lien claimant satisfies its burden is a question of fact, a nd the tria

l court’s determination as to

whether the contr actor su bstantial ly p erforme d will not be disturbed unless its finding is against the manifest weight of the e vidence. Mani , 243 I ll. App. 3d at

668; Evans & Associates, I nc. v. Dyer , 246 Ill. App. 3d 231, 240 (1993). A trial court’s factual finding is aga inst the manifest weight of the evidence only when a contrary conclusion is clearly a

pparent. Mani , 243 Ill. App. 3d at 668. Here, w e do not conclude that the cir cuit cour t’s findin g that D oornbos sa

tisfied its burden of proof regarding its lien claim and established substantial performance was ag ainst the manifest weight of the ev idence. The rec ord reve als that th e Projec t commenc ed befor e Kere lis’ building plans were approved by the IDPH. As a result, a number of code violations were discovered during I

DPH inspections, some of which pertained to the HVAC work that Doornbos provided. In particular, the re were issues concerning the location and installation of the fire dampers and placement of ductwork. There is no evidence, however, that these defec ts were due to bad faith or were not remediable. I ndeed, at trial, Al Kerelis acknowledge d that he provided direction as to the fire damper locations. Moreover, a lthough some of the dampers were installed upside down, Kerelis indicated that they would still function because the spring dampers did not depend on gravity . In Kerelis’ opinion, Doornbos’ only error was the incorrect place ment of ductwork in one of the surgery rooms; however, Doornbos relocated the ductwork to the designated location and Robert testified that it did not charge the Owners for the relocation.1-09-0076

24

Indeed, Kere lis opined that Doornbos provided its work in a workmanlike manner and indicated that Schlenker never indicated that he was unsatisfied with Doornbos’ HVAC services. While the Owners categorize the problems with the HVAC work as “ substantial,” and emphasize that the Project had not received the requisite I DPH approval when Doornbos walked off the construction site, IDPH staff a rchitect Ly

nn Manley testified that the de ficiencies observe d with res

pect to th e HVAC sy

stem durin

g the I DPH inspec

tions wer e not unusu

al; rather , it was common to find such irr egular ities. Mor

eover, t he Projec t was plag

ued with defects and the HVAC problems comprised only one-third of the construction problems found by IDPH inspectors. Acc ordingl

y, w hile ther e were defect s, there

is no evide

nce that the defe cts were not remediable or that they stemmed from the bad faith of Doornbos. I t was the trial court’s responsi bility to draw c onclusion s rega rding th e eviden

ce and w itness cr edibility , and bec ause there is e vidence to support

a finding that Door

nbos substa

ntially perfor med under

the contr act, we conclude that the judgment is not against the manife st weight of the evidence. See, e.g. , Mani , 243 Ill. App. 3d at 670. The Owners next dispute the trial court’s damage award. First, they contend that Doornbos failed to prove its claim for extras by clear and convincing evidence . The Owners observe that Doornbos’ contract price wa s $493,208 but that it received pay ment of $541,103.35 by the time it terminated its work on the Project, whic h was $47,895.35 in excess of the contract price, and recorded a lien for $53,013.65, the reby see king to recover a total of $100,909 in extras. The Owners, however, arg ue that Doornbos failed to prove the necessary elements to recover extras.1-09-0076

25

The issue of damages is a question of fact a nd, accordingly , a trial court’s finding of damages will not be disturbed on appeal unless it is against the manife st weight of the evidence. Fieldcr est , 311 Ill. App. 3d at 607. A damage award is against the manifest weig ht of the evidence only

where it is apparent that “ ‘the trial court ig nored the evidence or that its measure of damages was erroneous a s a matter of law.’ ” Fieldcr est , 311 Ill. App. 3d at 607, quoting Meade v. Kubinski , 277 Ill. App. 3d 1014, 1018 (1996). The party seeking damages must prove its damages to a reasonable deg ree of certainty , and accordingly the evidence it presents must not be remote, speculative, or uncertain. Carey v. Ame rican Family

Brokerage, I

nc. , 391 Ill. App. 3d 273, 277-78 (2009). Absolute certainty with respect to the damage amount, however , is not required. Kirkpatrick v. Strosberg , 385 Ill. App. 3d 119, 130 (2008); see also Norther n Illi nois Emergency

Physicians v. L andau, Omahana & Kopka, L td. , 216 Ill. 2d 294, 307 (2005) (recognizing that damage s are speculative only if their existence is uncertain, not if the amount itself is u ncerta in). Rathe

r, the pla intiff ne ed only

present evidenc e that ten

ds to show a

basis with which to compute the damages with a fair deg ree of probability

. La Sa

lle Natio nal Trust , N.A. v. Board of Directors of the 1100 Lake Shore Drive Condominium , 287 Ill. App. 3d 449, 457 (1997). When a contractor seeks “extras,” it is his burden to prove, by clear and convincing evidence, that: (1) the extra work performed or materials furnished was outside the scope of the original contract; (2) the extras were f urnished at the owner’s request; (3) the owner , by words or conduct, agreed to compensate the contractor for the extra work; (4) the contrac tor did not undertake the extra work voluntarily ; and (5) the extra work was not made necessary through the1-09-0076

26

fault of the contractor. Wilmette Partners v. Hamel , 230 I ll. App. 3d 248, 264 ( 1992); Athens v. Prousis , 190 Ill. App. 3d 349, 356 (1989). With respect to the first element, whether the extra work fell outside the scope of the contract, the par

ties ag ree tha t the extra s for whic

h Doornbo s charg ed the Ow ners per tained to corrective work that Doornbos performe d to comply with I DPH requirements and included alterations to fire dampers, ductwork and replac ement of an exhaust fan. The Owners contend, however, that this work fell within the scope of the contract, which pr ovided for duct and fire damper work. The Owners, however , ignore the provision in the parties’ contract that provided: “Any additiona l work to me et code req uiremen ts , changes in building use or unforsee n obstacles will be extra.” (Emphasis added). Accordingly , pursuant to the contract, the work Doornbos provided to meet IDPH require ments fell outside the contract and constituted extras. We also fin

d that Doo rnbos showed that th e corre ctive wor k was not a

voluntar y a ct; rather, it was undertaken at Schlenker’s r equest and he agreed to compe nsate Doornbos, thereby satisfying the se cond, third, and fourth elements. The Owners observe tha t the record contains no signed change order

s; however, we note that Schlenker, in a letter dated Ma y 30, 2002, authorized Robert Doornbos to provide all of the work necessary to get the Project approved by the IDPH. Although the letter doe s not detail the extra work Schlenker was authorizing Doornbos to provide , Doornbo s submitted work tick

ets reg arding

the labor and mate rials it furnished that were signed by Don Changnon, Schlenker’s gene ral contractor. Doornbos thus showed th at the wor

k it provid

ed was r equeste d and auth

orized by Schlenke r personally

as well as throug h his age nt.1-09-0076

27

Turni ng to t he fin al ele ment, wheth er or no t the e xtra work w as mad e neces sary thro ugh the fault of the contractor, the Owners ar gue that the corrective work wa s necessitated by Doornbos’ own initial defective performance. We disag ree. Al Kerelis testified that he assumed responsibility for the Project’s de sign, including the HVAC sy stem, and acknowledged that he provided direction as to the installation of the fire dampers. He furthe r indicated that work commenced on the Project without the IDPH’s a pproval of the Project’s design at Schlenker’s urging, which was an unusual pra ctice. Robert Doornbos confirmed Kerelis’ ac count and indicated that his company wa s instructed by Don Chang non to commence and continue work without IDPH approval because any altera

tions in the plan would be addressed on an as-needed basis. Doornbos thus established that the deficiencies in the work it provided, which nece ssitated subsequent corrective work, was the result of the dir ection it received from Kerelis and Changnon. Accordingly

, we find that the record supports a finding that Doornbos, by clear and convincing evidence, established its claim for extras. The Owne

rs next dispu

te Doorn bos’ dama

ge awa rd by arguin g that D oornbos f

ailed to prove, by cle ar and convincing evidence, the a mount of the damages to which it was entitled. Specifically, they

contend that Doornbos failed to explain how it computed the balance it alleged it was owed for the HVAC services it provided on the Project. The Owners observe that Robert Doornbos could not explain which specific work comprised the $50,013.65 lien. Here, there was extensive testimony presented at trial regarding damages and the sum which Doornbos sought to recover. At trial, Doornbos indicate d that its lien claim contained a calculation error. I

nstead of the $53, 013.65 amount specified in its lien, it stipulated at trial, that1-09-0076

28

the corr ect sum wa s $50,013. 65. I n support o f its lien c laim, Door nbos prod uced invo ices, handwritten notes, and testimony per taining to the materials and labor it provided on the Project. Based on the invoices, handwritten notes, and testimony , the record reveals that Doornbos was seeking: $27,975.49, the amount due pursuant to an unpaid invoice dated F ebruary 11, 2002, $13,918 for work performed under the original contract; $13,638 for fire damper work; and $4,740 for a new exhaust fan for the surge ry cente r, bringing the total to $56,271.49. After

accoun ting for a $6,215 c

redit for redesig ns and re builds tha t Doornbo s provide d the Owne rs, it appears that the a

ctual lie n amount to

which Doornbos wa s entitled was $50,0 56.49, wh

ich is $42.84 more than the sum it stipulated to at trial and, thus, it was the Owners rather than Doornbos who benefitted from any potential calculation error. We are mindful, however, tha t da ma ge s n ee d n ot be pr ov en wi th ma th em at ic al ce rt ai nt y ( Kirkpatrick , 385 Ill. App. 3d at 130) and that the plaintiff need only present evidence to allow the trial court to compute damag es wi th in a f ai r d eg re e o f p ro ba bi li ty ( La Sa lle Natio nal Trust , 287 Ill . App. 3d at 4 57). A ltho ugh the Owne rs are c orrect

that Rober

t could not

recall t he speci fic work

and eac h of the ma

terials that comprised his c ompany ’s lien cl aim, we ob serve th at damag es are only uncerta in if their existence is uncertain, not if the amount is uncertain. Norther n Illi nois Emer

gency Phys icians, 216 I ll. 2d at 30 7; Kirkpatrick , 385 Ill. App. 3d at 130. Ultimately , we find Doornbos provided, and the trial court considered, evidence with which to c alculate Doornbos’ damages to a

reasona ble deg ree of probabilit

y, a nd acco rdingly

, we do not

find that t

he damag e awar

d is against the manifest weight of the evide nce. The Owners next dispute the trial court’s judgment in favor of Doornbos on its brea ch of1-09-0076

29

contract counterclaim, arguing that the trial court erred in interpreting the pa rties’ contract. Specific ally , they

assert that pursua

nt to the pla

in langu age of the contr act, Doornbos ag

reed to design and build the Project’s HVAC sy stem, and thus was liable for its design flaws. Moreover, the Owne rs arg ue that th e trial c ourt’s jud gment ig nored the fact tha t Doornbo s was con

tractua lly obligat ed, but fa iled to inst

all, the H VAC sy stem in a w orkmanlik e manner and fail ed to comp ly with indust

ry standar ds. When an ag

reemen t betwee n two par ties is re duced to a

written c ontract , that wri ting is presumed to reflect the intention of the parties. Paul B. Episcope, Ltd. v. L aw Offices of Campb ell &

Di Vin cenz o , 373 Ill. App. 3d 384, 391 (2007). I n construing a contract, it is the court’s primary objectiv e is to asc ertain a nd give effec t to the inte

nt of the p arties that is expressed in the written agreement. Addison Insurance Co. v. Fa y , 232 Ill. 2d 446, 455 (2009). If the written ag

reement is unambiguous, then the court must construe the parties’ intent fr om the writing itself as a matter of law and eff ectuate its plain and ordinary meaning. Buenz v. Frontline Transportation Co. , 227 I ll. 2d 302, 3 08 (2008) ; Episcope , 373 Ill. App. 3d at 391. A contract term or provision is considered ambiguous if, due to the indefiniteness of the lang uage, it can be subject to multiple interpretations. Clarendo n Americ a In surance

Co. v. Aar

gus Sec urity Systems, I

nc. , 374 I ll. App. 3d

591, 596 ( 2007); Episcope , 373 Ill. App. 3d at 389. I n the event of a contractual ambiguity , the court may c onsider extrinsic evidence to resolve the uncertainties present in the written agreement. CFC Investment, L .L.C. v. McL ean , 387 Ill. App. 3d 520, 527 (2008). The interpretation of a contract pre sents a question of law and is thus subject to de novo review. Gallagher v. L enart , 367 Ill. App. 3d 293, 301 (2006). The court’s f inding as to whether1-09-0076

30

a breach of contract occur red, however, is a question of fact that will not be disturbed on appea l unless it against the manifest weight of the evidenc e. Covinsky v. Hannah Marine Corp. , 388 I ll. App. 3d 478, 483 (2009). Here, the Owners cite to th e followi ng lang uage in the part ies’ May 15, 2000, c ontract

to argue that Door

nbos was c ontract

ually responsi ble for d esignin g the HV AC sy stem in conformance with applicable codes and wa s thereby liable f or the its design flaws: “Doornbos will design the complete sy stem.” The Owners argue that this provision is unambiguous a nd that the trial court thus erred in considering extrinsic evidence a nd finding that Doornbos was not the party ultimately

responsi ble for the HVAC de sign and was not in breach o f the par ties’ agreement when the desig n did not comply with I

DPH codes. The Owners’ argument, howeve r, is premised on an incomplete citation to the relevant contractual lang

uage. In its

entirety , the cont ract pr ovides: “ Doornbos

will desig

n the comp lete sys tem, provide draw

ings, submittals and schedu les for approval .” (Emphasis added.) The contract, however, does not specify to whom Doornbos was to obtain approval of its design. Based on the indefiniteness of this provision, the trial court considered trial testimony to resolve the ambiguity, a

nd we do not conclude that the trial court erred in doing so. Moreover, we do not find that the trial court erred in finding that Al Kere lis was ultimately responsible for desig ning an HVAC system that complied with re levant codes and that Doornbos was not in breach of the parties’ contract. At trial, Robert Doornbos testified that pursuant to his understanding with Schlenker and Kerelis, it was his contractual obligation to provide “conce pt drawings” of the Project’s HVAC1-09-0076

31

system. He explained that these we re simply preliminary

designs that were subject to the approval of Kerelis and that it was Kerelis’ re sponsibility, as the Project’s architec t, to ensure that the H VAC sy stem that w as ultimat ely installed , confor

med to app licable c odes. Ke relis confirmed Robert’s account and interpretation of the c ontract’s design provision. As the Project’s architect, Kerelis testified that he was re sponsible for the complete design of the building, including the structural, electrical, plumbing, a nd mechanical aspects. He acknowledged that he rece ived “shop drawings” from Robert Doornbos for the Project’s HVAC system and ultimately

provided sealed drawings of the entire Project, including the HVAC sys tem, to the

IDPH . Althoug

h the Owne

rs attemp t to minimize K erelis’ s respons ibility , his actions in sealing the drawings for submission to the I DPH were more than merely “ministerial.” Rather, Kerelis made his own calculations and drawing s of the HVAC mechanical sy stem prior to sealing and submitting the plans for approval and admitted that, insofar as the HVAC system

was con cerned , the “ buck s topp ed wit h [hi m].” Moreo ver, t he Own ers’ ex pert, Brian Be rg, testifie d that pur suant to sta ndard pr actice in the con struction

industry , when a project is undertaken in the absence of a mecha nical engineer, the architec t who seals and submits building plans to state authorities assumes responsibility over de sign. Berg further acknowledged that an architect who assumes responsibility for a design is responsible for all defec ts and design flaws. Berg’s charac

terization of this construction industry practice was confirmed by

IDPH architect Ly nn Manley. Althoug

h Schlenker testified at trial that, pursuant to his understanding of the parties’ agreement, Doornbos wa s contractually r esponsible for designing an HVAC sy stem that complied with state codes, the veracity of his testimony was undercut by the admission of a letter1-09-0076

32

Schlenke r wrote t o Doornbo s in Dece

mber 2001 , in which

he acknowledg ed that “

none of u s, with the exception of the architects[,] *** should be charged with interpreting c odes.” Ultimately, based on the evide nce presented at trial, we do not conclude that the c ircuit court erred in finding that the Owners failed to prove that Doornbos was the party responsible for producing code-compliant HVAC designs a nd was in breach of their agre ement. The Owners, however, arg ue that the trial court nonetheless erred in finding in fa vor of Doornbos on its counterclaim, because even if Doornbos ha d not been contractually

liable for providing a code-compliant HVAC design, it was still obligate d to install the system in a workmanlike manner and comply with industry standards. The Ow ners observe that the contract stated: “All workmanship and materials [that Doornbos provides] will meet or exceed industry standards,” and argue that the e vidence showed that the labor and materials that Doornbos furnished were of poor quality and in violation of this contractual provision. Thus, the Owners argue that the trial court’s finding tha t Doornbos was not in breach of the contract was a gainst the manifest weight of the evidence. Here, there is no

dispute th at install ation pro blems rel ated to th e HVAC sy stem aros e during the course of the Project. As discussed pre viously, there wer

e issues pertaining to the location and installation of fire dampers, the placement of ductwor k, and inadequate air flow rates that initially preclude d the Project’s approval by the IDPH. Nonetheless, we r eject the Owners’ unsupported argument that the mere existence of these defects shows that Doornbos failed to provide H

VAC services in a

workman

like mann er, ther

eby breach ing the p arties’ contract. It is clear

that the work Doornbos provided was done in accorda nce with the plans1-09-0076

33

designe d by

Kerelis and unde r the dire ction of D on Chang non. Door

nbos perf ormed pursuant to its contract under the guidance of both Ke relis and Changnon. Inde ed, much of the work Doornbos furnishe d was done

before the desig n plan had

been ap proved b y th e ID PH becau se it was orde red to do s o by

Changnon. It was the de sign itse lf that formed the basis for the probl ems that developed on the Project, and Kerelis undisputably assumed responsibility for the HVA C design, including the installation locations for HVAC material. Moreove r, he opined that the work that Doornbos performed was done in a workma nlike manner and fell within industry standards. Indeed, while the re were defects observe d by the I DPH, Ly nn Manley indicated tha

t they were not unusual and were ultimately remedied. Based on the record, we do not conclude that the trial court’s finding that Doornbos did not breach the par ties’ contract was against the manifest weight of the evidence. Finally, the Owne

rs contend that the trial court erred in gra nting Doornbos’ pre-trial motion in limine barring the Owners from seeking delay dama

ges pursuant to their breach of contract counterclaim. Because we conclude, however, that the trial court did not err in finding that the Owners failed to prevail on their breac h of contract counterclaim and were thus not entitled to damages of any kind, we need not address this argument on appea l. Accord ingly , for the

reasons stated he rein, we affirm t he judg ment of the

circuit c ourt. Affirmed. HALL , P.J., and LAMPKIN, J., concur.