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                                      Appellate Court                           Date: 2017.07.12
                                                                                10:40:25 -05'00'




           Archon Construction Co. v. U.S. Shelter, L.L.C., 2017 IL App (1st) 153409



Appellate Court          ARCHON CONSTRUCTION COMPANY, INC., Plaintiff-Appellant
Caption                  and Counterdefendant-Cross-Appellee, v. U.S. SHELTER, L.L.C.,
                         U.S. SHELTER GROUP, INC., and OAK RIDGE OF ELGIN,
                         L.L.C.,    Defendants-Appellees   and    Counterplaintiffs-Cross-
                         Appellants.



District & No.           First District, Fourth Division
                         Docket No. 1-15-3409



Filed                    March 31, 2017



Decision Under           Appeal from the Circuit Court of Cook County, No. 08-CH-15325; the
Review                   Hon. Lisa R. Curcio, Judge, presiding.



Judgment                 Affirmed.


Counsel on               Carl E. Metz II and Bradley M. Arnold, both of Chicago, for appellant.
Appeal
                         Arthur M. Holtzman and Christopher R. Claybough, both of Chicago,
                         for appellees.



Panel                    PRESIDING JUSTICE ELLIS delivered the judgment of the court,
                         with opinion.
                         Justices McBride and Burke concurred in the judgment and opinion.
                                               OPINION

¶1       This appeal involves the trial court’s decision on a quantum meruit claim made by plaintiff,
     Archon Construction Company, Inc. (Archon), against defendants, U.S. Shelter, L.L.C., U.S.
     Shelter Group, Inc., and Oak Ridge of Elgin, L.L.C. (collectively, U.S. Shelter). Archon
     appeals the trial court’s decision denying its claim. U.S. Shelter cross-appeals the trial court’s
     decision denying its counterclaim for breach of contract against Archon.
¶2       Archon was hired by U.S. Shelter to install a sanitary sewer system in a subdivision in the
     City of Elgin (city). The system would have to be approved and accepted by the city, which
     would ultimately own the system. The contract required Archon to conduct a videotaping of
     the interior of the completed system. After Archon completed the installation of the system, the
     city’s engineering inspector reviewed videotapes of the system and required additional work
     before the city would accept the system. Even though the proposal submitted by Archon,
     which was accepted by U.S. Shelter, had specified polyvinyl chloride (PVC) pipes, Archon
     had to excavate, remove, and replace a portion of the system’s PVC pipes with ductile iron
     pipes. Archon submitted its bill for the extra work to U.S. Shelter, who refused to pay.
     Litigation ensued.
¶3       This is the second time this matter is before this court. On June 4, 2013, we reversed the
     circuit court’s grant of summary judgment on Archon’s “extra work” claim. See Archon
     Construction Co. v. U.S. Shelter, L.L.C., 2013 IL App (1st) 121632-U. We concluded that
     general issues of material fact existed regarding, among other things, whether the “extra work”
     was made necessary through the fault of Archon.1
¶4       On remand, Archon voluntarily dismissed its “extra work” and other breach of contract
     claims and proceeded to trial solely on its quantum meruit claim. After a bench trial, the court
     ruled in favor of defendants, concluding that Archon was not entitled to quasi-contractual
     relief for the costs it incurred for the services it performed. The court concluded that the
     services were covered under the express contract between Archon and U.S. Shelter and that
     Archon was the “contractor” responsible for the costs of the additional work. The court also
     found in favor of Archon on U.S. Shelter’s breach of contract counterclaim for its repair and
     restoration of the surrounding property after Archon made its repairs to the sanitary sewer
     system. Both parties appealed.
¶5       As we explain below, the contract required a sanitary sewer system that was subject to the
     final approval of the city. This matter actually involves a contractual dispute between the
     parties for the extra work and costs involved in obtaining that final approval. But, because an
     express contract existed between Archon and U.S. Shelter, Archon cannot recover under the
     quasi-contractual quantum meruit theory. We also conclude that the circuit court’s decision
     finding in favor of Archon on U.S. Shelter’s counterclaim was not against the manifest weight
     of the evidence. For the reasons that follow, we affirm the judgment of the circuit court of

         1
          The dissent, however, concluded that summary judgment was proper because Archon failed to
     produce sufficient evidence to support every element of its prima facie case. Id. ¶ 26 (Connors, J.,
     dissenting). Noting the elements that a plaintiff must prove—by clear and convincing evidence—in an
     “extra work” contract claim, the dissent concluded that Archon failed to produce any evidence
     regarding the fifth element, namely, that the “extra work” was not made necessary through the fault of
     Archon. Id. ¶ 28.

                                                   -2-
       Cook County.

¶6                                          I. BACKGROUND
¶7         Archon is an underground utility contractor. U.S. Shelter is a home building company,
       primarily involved with residential developments. The land in each development is owned by a
       different limited liability company, of which defendant, Oak Ridge of Elgin, L.L.C., was one.
       The instant case involves the development of the residential subdivision in the city of Elgin,
       known as Oak Ridge of Elgin (subdivision).
¶8         U.S. Shelter hired Spies and Associates (Spies), a firm of civil engineers and land
       designers, to design plans for the subdivision and to be the on-site engineer, as required by the
       city and the Fox River Water Reclamation District (FRWRD). Spies prepared the plans, titled
       “Public Improvement Plans for Oak Ridge Subdivision” (Plans). The Plans were approved by
       the city, FRWRD, and the Illinois Environmental Protection Agency.2
¶9         The Plans included the “City of Elgin General Notes” (General Notes), a document
       provided by the city that includes the specifications the city requires for all sanitary sewer
       systems installed in the city. The General Notes state that all underground construction must
       comply with the “City of Elgin Engineering and Construction Standards and Specifications”
       (Elgin Specifications) and the “Standard Specifications for Water and Sewer Main
       Construction in Illinois” (Illinois Specifications).
¶ 10       U.S. Shelter sought bids for the installation of a sanitary sewer system for the subdivision
       and hired Archon after it submitted the successful bid. In addition to installing the sanitary
       sewer system, Archon agreed to install water main and storm sewers, for a total contract price
       of $890,955.29. The storm sewer and water systems are not at issue.
¶ 11       Archon’s five-page proposal for the sanitary sewer system was based on the Plans. There is
       no dispute that the Plans, including the General Notes, the Elgin Specifications, and the Illinois
       Specifications, were incorporated into, and became a part of, the contract between Archon and
       U.S. Shelter.
¶ 12       The General Notes, in the section titled “Sanitary Sewer,” state: “All sanitary sewers shall
       be televised and tested as required by [the city and FRWRD] prior to acceptance.”
¶ 13       The Elgin Specifications state:
               “A mandatory televising of the sanitary sewer mains shall be performed by the
               developer one year after the successful completion of the sewer. The contractor shall
               then provide a copy of the video tape to the City of Elgin Engineering Division of
               Public Works for review. Any deficiencies or defects in the pipe material or
               construction, as noted by the engineer, shall be repaired at the contractor’s expense
               prior to final acceptance by the city.”
¶ 14       The Illinois Specifications state, among other things, that “[i]n the event the ENGINEER
       finds the materials or the finished product in which the materials are used or the WORK
       performed are not in conformity with the Plans and Specifications including tolerances and
       have resulted in an inferior or unsatisfactory product, the WORK or material shall be removed
       and replaced or otherwise corrected by and at the expense of the CONTRACTOR.”

           2
           Although U.S. Shelter filed a third-party complaint against Spies, that claim is not at issue on
       appeal. It appears from the trial court’s order that the claim was “settled and dismissed before trial.”

                                                      -3-
¶ 15       Archon’s proposal included a line item “Testing and Televise,” with a price of $14,670.10.
       The proposal also contained itemized prices for materials, including types and quantities. The
       proposal further stated: “Any additional work items not listed will be completed on negotiated
       price or [time and materials].” Although the General Notes specified that the material of the
       sanitary sewer pipes could be either ductile iron or PVC (minimum SDR 26), Archon’s
       proposal did not provide for installation of ductile iron pipe for any of the sanitary sewer lines.
       Archon’s proposal provided that the sanitary sewer system would be constructed of PVC pipe,
       minimum SDR 26.3
¶ 16       Spies confirmed to U.S. Shelter that Archon’s proposal complied with the Plans. Chuck
       Mensik, on behalf of U.S. Shelter, and Garry A. Sementa, on behalf of Archon, signed the final
       proposal dated January 6, 2005. Under its contract with U.S. Shelter, Spies was to oversee the
       installation of the sanitary sewer system.
¶ 17       Archon began installing the sanitary sewer system on February 23, 2005, and completed
       the installation around August 8, 2005. Prior to completing its installation of the sanitary sewer
       system, Archon had the pipes air tested and mandrel tested. FRWRD reviewed the air test and
       observed the mandrel test and found both tests acceptable. Around the time Archon completed
       the installation, Spies confirmed to U.S. Shelter that Archon’s work complied with the Plans,
       the Elgin Specifications, and the Illinois Specifications.4
¶ 18       During construction, on three separate occasions, Archon had to excavate and repair
       various portions of the sanitary sewer system, including the portion between manhole (MH)
       108 and MH 110. This extra work apparently resulted from Archon’s use of fittings made of
       SDR 35 material, which was weaker and thinner than that required by the Plans, namely SDR
       26 material. All of the repairs were completed by August 2005, and Archon did not request
       additional payments from U.S. Shelter for that extra work. The cost of that extra work is not at
       issue in this appeal.
¶ 19       As noted, the contract required televising of the sanitary sewer system before the city
       would accept the system. Archon had agreed to perform testing and televising of the sanitary
       sewer system in the contract. The city required that the televising be performed at least a year
       after installation to make sure that any potential settling had already occurred. In early 2007,
       Archon hired a company, H.R. Stewart, to televise the sanitary sewer system. A camera was
       run through the system, and a videotape was made. The city’s engineering inspector, William
       Becker, viewed the videotape. The city then conducted its own videotaping.5
¶ 20       On July 5, 2007, Becker, on behalf of the city, wrote to Mensik at U.S. Shelter, informing
       him that he had reviewed the videotapes and that repairs were needed before the city would
       accept the system. The letter stated that “[t]he major repair is the line from MH 108 to MH 110.

           3
              “SDR” stands for Standard Dimension Ratio. The ratio is the relationship between the pipe
       diameter and the wall thickness; a lower SDR indicates a greater wall thickness. Thus, SDR 26 PVC has
       a thicker pipe wall thickness than that of SDR 35 PVC.
            4
              Air testing pressurizes the installed line to check for any leaks in the system. A mandrel test
       involves inserting an undersized pipe into the installed pipe and pulling the undersized pipe through to
       check for any indentations in the installed pipe.
            5
              At trial, Becker testified that he did not trust the initial video because it appeared that it was done
       while the line was being vacuumed out, which would have obscured any sags that might have been
       present in the pipes. Thus, Becker asked the city’s own crews to go out and do a second videotaping.

                                                         -4-
       Services are cracked, service lines have punched through, gravel is entering the system, dig up
       and replace. Again, replace with ductile iron the main, T’s and service lines to a depth of 10’.”
       This was the first time that “ductile iron” pipe was required.
¶ 21       Archon completed all of the repairs necessary as required for the city to accept the sanitary
       sewer system, including the replacement work between MH 108 and MH 110. Archon sent
       U.S. Shelter its bill totaling $247,432.41 for the time and materials for the extra work between
       MH 108 and MH 110 but did not seek payment for any of the other repairs. U.S. Shelter
       refused to pay Archon’s bill. This lawsuit followed.
¶ 22       As we have earlier noted, the trial court granted summary judgment to defendants on
       Archon’s “extra work” claim, which we reversed. Archon Construction, 2013 IL App (1st)
       121632-U. After remand, Archon filed a third amended complaint. Count I was for breach of
       contract (for failure to pay the original contract price). Count II was for breach of contract (for
       failure to pay $287,432.41 for the extra work removing the PVC pipe and installing ductile iron
       pipe). Count III was for breach of contract (in the alternative). Count IV sought foreclosure of
       Archon’s mechanic’s lien. Count V sought quantum meruit relief in the alternative. Archon
       later voluntarily dismissed all of the contractual claims, including the “extra work” claim, and
       went to trial solely on the quantum meruit claim. U.S. Shelter filed a second amended
       counterclaim against Archon for the costs incurred by U.S. Shelter in restoring and repairing
       the surrounding property after Archon’s final excavation and repairs were made to the sanitary
       sewer system.
¶ 23       After a bench trial, the court ruled in favor of defendants on Archon’s quantum meruit
       claim. The trial court found that, after the sanitary sewer system installed by Archon was not
       accepted by the city of Elgin, the repairs Archon made to the system were part of the parties’
       contract and, therefore, Archon could not recover under a theory of quantum meruit. The court
       further found that the contract unambiguously provided that any work removing and replacing
       material was at the expense of the “contractor” and also that Archon was the “contractor.” The
       court ruled in favor of Archon on U.S. Shelter’s counterclaim. Both parties appealed.

¶ 24                                      II. ARCHON’S APPEAL
¶ 25                                        A. Standard of Review
¶ 26       We begin with Archon’s claim that the court erred in ruling in favor of U.S. Shelter and
       against Archon on the quantum meruit claim. Generally, after a bench trial, our standard of
       review is whether the order or judgment is against the manifest weight of the evidence.
       Reliable Fire Equipment Co. v. Arredondo, 2011 IL 111871, ¶ 12. Under the manifest-weight
       standard, we give deference to the trial court as the finder of fact, because it is in the best
       position to observe the conduct and demeanor of the parties and witnesses. Best v. Best, 223 Ill.
       2d 342, 350 (2006).
¶ 27       But as to Archon’s claims, the circuit court’s decision did not involve any weighing of
       evidence or credibility determinations and was based solely on the trial court’s construction of
       the parties’ contract. In fact, the court concluded that the repairs were within the scope of the
       parties’ contract and, therefore, Archon could not recover under a theory of quantum meruit.
       As a result of this conclusion, the court stated that it did “not address the evidence presented in
       support of Archon’s quantum meruit claim.” Thus, although the court referenced the testimony
       and other evidence at trial, the court’s judgment as to Archon’s quantum meruit claim was
       based on the court’s construction of the parties’ contract. The court found the contract to be

                                                    -5-
       unambiguous and, accordingly, made a ruling as a matter of law on its interpretation of the
       contract:
               “There is no dispute that the proposal, the Plans including the General Notes, the Elgin
               Specification[s], and the Illinois Specifications are the contract between the parties,
               although not every document refers to the other. The Court, therefore, construes the
               documents as a whole. There is no claim that the documents are ambiguous, and the
               Court finds that they are not. Thus, the parties’ intent is determined by construing the
               language of these documents in totality.”
¶ 28       Because the trial court’s ruling involved the interpretation of a contract it considered to be
       unambiguous, our review of the trial court’s ruling is de novo. Avery v. State Farm Mutual
       Automobile Insurance Co., 216 Ill. 2d 100, 129 (2005) (“the construction, interpretation, or
       legal effect of a contract is a matter to be determined by the court as a question of law”).

¶ 29                                    B. Quantum Meruit in General
¶ 30        “The term quantum meruit means literally ‘as much as he deserves’ and is an expression
       that describes the extent of liability on a contract implied in law (also called a ‘quasi-contract’);
       it is predicated on the reasonable value of the services performed.” Barry Mogul & Associates,
       Inc. v. Terrestris Development Co., 267 Ill. App. 3d 742, 749 (1994). “A quasi-contract, or
       contract implied in law, is one in which no actual agreement between the parties occurred, but
       a duty is imposed to prevent injustice.” Hayes Mechanical, Inc. v. First Industrial, L.P., 351
       Ill. App. 3d 1, 8 (2004); see also Century 21 Castles by King, Ltd. v. First National Bank of
       Western Springs, 170 Ill. App. 3d 544, 548 (1988) (contract implied in law “arises from facts
       and circumstances independent of an agreement or consent of the parties”).
¶ 31        To recover under a quantum meruit theory, a plaintiff must prove that (1) it performed a
       service to benefit the defendant, (2) it did not perform the service gratuitously, (3) defendant
       accepted the service, and (4) no contract existed to prescribe payment for the service. Cove
       Management v. AFLAC, Inc., 2013 IL App (1st) 120884, ¶ 34; Installco, Inc. v. Whiting Corp.,
       336 Ill. App. 3d 776, 781 (2002). It is the last element of a quantum meruit claim that controls
       the outcome here.
¶ 32        It is long settled in Illinois that an action in quasi-contract, such as quantum meruit, is
       precluded by the existence of an express contract between the parties regarding the work that
       was performed. People v. Kinion, 97 Ill. 2d 322, 332 (1983) (because express contract for
       compensation existed between client and attorney, quantum meruit relief was not available);
       Karen Stavins Enterprises, Inc. v. Community College District No. 508, 2015 IL App (1st)
       150356, ¶ 7; Stark Excavating, Inc. v. Carter Construction Services, Inc., 2012 IL App (4th)
       110357, ¶ 38; Gagnon v. Schickel, 2012 IL App (1st) 120645, ¶ 29; Hedlund & Hanley, LLC v.
       Board of Trustees of Community College District No. 508, 376 Ill. App. 3d 200, 207 (2007);
       Mid-West Energy Consultants, Inc. v. Covenant Home, Inc., 352 Ill. App. 3d 160, 166 (2004);
       Installco, Inc., 336 Ill. App. 3d at 781; Barry Mogul & Associates, 267 Ill. App. 3d at 750.
¶ 33        Simply put, if an express contract exists between the parties concerning the same subject
       matter, a party cannot assert a claim on a contract implied in law. Zadrozny v. City Colleges of
       Chicago, 220 Ill. App. 3d 290, 295 (1991). The two cannot “coexist.” Id. at 296. Long ago, the
       supreme court explained why:



                                                     -6-
                   “As in physics, two solid bodies cannot occupy the same space at the same time, so
               in law and common sense, there cannot be an express and an implied contract for the
               same thing, existing at the same time. This is an axiomatic truth. It is only when parties
               do not expressly agree, that the law interposes and raises a promise.” Walker v. Brown,
               28 Ill. 378, 383 (1862).
¶ 34       Not quite as long ago—over a century later—this court added these thoughts supporting
       this legal principle:
               “When parties enter into a contract they assume certain risks with an expectation of a
               return. Sometimes, their expectations are not realized, but they discover that under the
               contract they have assumed the risk of having those expectations defeated. As a result,
               they have no remedy under the contract for restoring their expectations. In desperation,
               they turn to quasi-contract for recovery. This the law will not allow. Quasi-contract is
               not a means for shifting a risk one has assumed under contract.” Industrial Lift Truck
               Service Corp. v. Mitsubishi International Corp., 104 Ill. App. 3d 357, 361 (1982).

¶ 35                       C. Whether an Express Contract Governed This Work
¶ 36       So the critical question is whether an express contract existed for the work Archon
       performed and for which it now seeks payment under the theory of quantum meruit. It is
       necessary, at the outset, to draw some boundaries around two different but closely related legal
       theories, each of which has reared its head in this case.
¶ 37       The first is a claim for breach of contract, in which a contractor seeks compensation for
       “extra work” performed under the contract—a claim Archon initially made in this case and the
       claim that was addressed by a different panel of this court the first time it was up on appeal. See
       Archon Construction, 2013 IL App (1st) 121632-U. A claim for “extras” involves many
       elements, but one of them is that the contractor must prove that the work for which the
       contractor seeks compensation “was outside the scope of the original contract.” Doornbos
       Heating & Air Conditioning, Inc. v. James D. Schlenker, M.D., S.C., 403 Ill. App. 3d 468, 485
       (2010).6
¶ 38       That makes sense, of course, because the whole point of an “extra work” claim is that the
       work was not included within the original terms of the contract but the contractor can
       nevertheless establish its entitlement to payment. But compare that requirement for a
       contractual “extras” claim, that the work performed be “outside the scope of the original
       contract” (id.), with the element of a quantum meruit claim that there be no express contract
       between the parties. Kinion, 97 Ill. 2d at 332; Karen Stavins Enterprises, Inc., 2015 IL App
       (1st) 150356, ¶ 7. Where do we draw the line between work being “outside the scope of a
       contract” versus there being no express contract governing the work? They would seem to
       cover a lot of the same territory, but as a matter of law, they cannot; as we have already noted,


           6
            To state the elements in full, in an “extra work” contract claim, a plaintiff must 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 furnished at the owner's request; (3) the owner, by words or
       conduct, agreed to compensate the contractor for the extra work; (4) the contractor did not undertake
       the extra work voluntarily; and (5) the extra work was not made necessary through the fault of the
       contractor.” Doornbos, 403 Ill. App. 3d at 485.

                                                       -7-
       the case law has made it clear that a contractual claim and a quantum meruit claim are mutually
       exclusive—they cannot coexist.
¶ 39       The case law answers this question and provides a resolution to this portion of the appeal.
       As a discussion of two cases demonstrates, the answer is that a claim for quantum meruit lies
       when the work that the plaintiff performed was wholly beyond the subject matter of the
       contract that existed between the parties.
¶ 40       The first case is the one on which Archon principally relies, Stark, 2012 IL App (4th)
       110357. Stark involved a warehouse expansion project in which a subcontractor, Stark,
       performed “concrete, excavation, trench backfill, and site utility work for the expansion
       project.” Id. ¶ 5. In that action, Stark brought claims for breach of contract, quantum meruit,
       and unjust enrichment against the general contractor for, among other things, nonpayment of
       extra work for “winter protection” at a worksite. Id. ¶ 1. Stark’s written proposal for the work
       specifically excluded “ ‘winter protection of concrete or subgrade,’ ” which referred to “steps
       taken at the jobsite such as warming the subgrade, using heated enclosures or tents, and
       covering the concrete with insulation blankets or loose straw.” Id. ¶ 5.
¶ 41       This court held that Stark’s claim for quantum meruit could properly lie and should not
       have been dismissed. Although the parties in Stark had an express contract, the court
       concluded that quasi-contractual recovery for the winter protection work was possible because
       “the payment for winter protection work was not included in the contract. In fact, it was
       expressly excluded.” Id. ¶ 38. In other words, the claim for “winter protection” work did not
       involve the same subject matter as the contract, and thus, a quantum meruit claim could lie in
       the absence of such an express contract.
¶ 42       An important contrast to Stark is Industrial Lift, 104 Ill. App. 3d at 358, where the plaintiff
       and the defendant had a dealership agreement under which the plaintiff purchased the
       defendant’s fork-lift trucks and used its best efforts to sell them to the plaintiff’s customers.
       The plaintiff later made design changes to the trucks that it believed were necessary to sell the
       defendant’s Japanese product to an American market. Id. at 359. After the defendant sent
       notice to the plaintiff that it was terminating the dealership agreement, the plaintiff sought
       quasi-contractual relief for the specific design services that the plaintiff had performed. Id.
¶ 43       But this court held that an action in quasi-contract did not lie because even though the
       parties’ contract “did not expressly cover” the design changes the plaintiff had performed, the
       work fell within the same “general subject matter” of the contract, namely “the sale and
       servicing of the defendant’s products.” Id. at 362. As this court explained: “If a quasi-contract
       action could be brought every time a party under contract performs a service not precisely
       covered by the contract, then the rule preventing quasi-contract actions when a contract exists
       would have little meaning. Parties to a contract often perform services not expressly demanded
       by the contract.” Id. at 361.
¶ 44       So in Stark, the plaintiff’s claim for winter protection services was not part of the general
       subject matter of the parties’ contract, and thus, the plaintiff could attempt to recover damages
       for that additional work under a quantum meruit theory. But in Industrial Lift, a quasi-contract
       theory would not lie because the work plaintiff had performed was part of the same general
       subject matter as the parties’ express contract, even if it went beyond the precise scope of that
       contract.
¶ 45       These cases clarify that, when evaluating a quantum meruit claim in a context such as this
       case, where a written contract exists between the parties, the operative question is not simply

                                                    -8-
       whether an express contract existed or whether the challenged work was beyond the scope of
       the parties’ contract. Rather, the operative question is whether an express contract governed
       the same general subject matter as the challenged work. If the work for which a plaintiff seeks
       remuneration under a quantum meruit theory concerned the same subject matter of the express
       contract, then the quantum meruit claim is barred as a matter of law. See also City of Marshall
       v. City of Casey, 177 Ill. App. 3d 1065, 1070 (1989) (affirming trial court’s dismissal of action
       for equitable contribution where parties’ relationship governed by written contracts; although
       parties’ contracts did not “precisely govern” subject matter of contribution, agreement was
       express contract for contribution since it set forth methods by which parties would determine
       amount each owed to gas supplier and relative obligation of parties in underlying debt related
       to contribution); Utility Audit, Inc. v. Horace Mann Service Corp., 383 F.3d 683, 689 (7th Cir.
       2004) (“In determining whether a claim falls outside a contract, the subject matter of the
       contract governs, not whether the contract contains terms or provisions related to the claim.”).
¶ 46       With this is mind, the resolution of Archon’s appeal is rather straightforward. The work
       that Archon performed, for which it now seeks money damages from U.S. Shelter, was part
       and parcel of the contract between the parties. Archon contracted to install a sanitary sewer
       system acceptable to the city. Its quantum meruit claim seeks to recover for repairing and
       reinstalling that very same sewer system. That work unquestionably involved the same
       “general subject matter” as the contract. Id.
¶ 47       Archon says that it had contracted to install PVC pipe, that the contract said nothing about
       installing ductile iron pipe, and thus the new work and materials (and associated, significantly
       higher costs) were beyond the scope of the contract. That may be so, but that does not change
       the fact that the subject matter of the contract between the parties was the installation of an
       acceptable sanitary sewer system; Archon’s claims for its costs to repair and replace portions
       of that installed system, as required for the city’s approval, concerned that same subject matter.
       Thus, Archon cannot avoid the effect of the general rule that the law will not imply a contract
       where an express contract already exists between the parties on the same subject matter.
¶ 48       We would also note that Archon’s contract included a provision that “[a]ny additional
       work items not listed will be completed on negotiated price or [time and materials].” This only
       underscores that if Archon had a remedy at all in this case, it was a claim for “extra work”
       through the written contract not a quantum meruit theory.
¶ 49       Indeed, it was under this additional work provision that Archon initially submitted its
       request for time and materials payment to U.S Shelter. And as we noted earlier, the first appeal
       in this case was litigated on Archon’s claims for contractual “extra work.” The trial court had
       granted summary judgment on that claim, ruling that Archon had failed to demonstrate one
       particular element of its “extras” claim—that the extra work was not made necessary through
       the fault of the contractor. Archon Construction, 2013 IL App (1st) 121632-U, ¶ 18; see
       Doornbos, 403 Ill. App. 3d at 485 (noting that this element is part of claim for contractual
       “extras”). A majority of this court held that questions of material fact existed as to whether the
       problems with the sewer installation were Archon’s fault and reversed the grant of summary
       judgment. Archon Construction, 2013 IL App (1st) 121632-U, ¶¶ 18-20. Justice Connors
       dissented, writing that Archon had presented no such proof and the entry of summary judgment
       was proper. Id ¶¶ 28-30 (Connors, J., dissenting).




                                                   -9-
¶ 50       But Archon dropped its contractual “extras” claim upon remand, presumably seeing little
       chance of succeeding on the merits of that claim, and went to trial only on the quantum meruit
       claim.7
¶ 51       But whether Archon ultimately could have prevailed on that contractual claim or not, the
       fact remains that a contractual remedy was the only claim available to Archon as a matter of
       law. The existence of an express contract on the same subject matter dooms Archon’s quantum
       meruit claim. The trial court’s judgment in favor of U.S. Shelter and against Archon, on
       Archon’s claim for quantum meruit, is affirmed.

¶ 52                             III. U.S. SHELTER’S CROSS-APPEAL
¶ 53       We now turn to U.S. Shelter’s cross-appeal. U.S. Shelter filed a second amended
       counterclaim against Archon for the costs incurred by U.S. Shelter in restoring and repairing
       the surrounding property after Archon’s final excavation and repairs were made to the sanitary
       sewer system. The counterclaim contained a breach of contract count and a negligence count.
       At trial, U.S. Shelter sought $74,822.41 in claimed damages. The trial court ruled in favor of
       Archon on U.S. Shelter’s second amended counterclaim. U.S. Shelter cross-appeals only as to
       the ruling on their contract counterclaim.8
¶ 54       We noted earlier that our standard of review after a bench trial is whether the order or
       judgment is against the manifest weight of the evidence. Reliable Fire Equipment Co., 2011 IL
       111871, ¶ 12. Under the manifest-weight standard, we give deference to the trial court as the
       finder of fact because it is in the best position to observe the conduct and demeanor of the
       parties and witnesses. Best, 223 Ill. 2d at 350. Accordingly, “we will not substitute our
       judgment for that of the circuit court.” Staes & Scallan, P.C. v. Orlich, 2012 IL App (1st)
       112974, ¶ 35. A finding is against the manifest weight of the evidence if the opposite
       conclusion is clearly evident or the finding itself is unreasonable, arbitrary, or not based on the
       evidence presented. Best, 223 Ill. 2d at 350; see also Walker v. Ridgeview Construction Co.,
       316 Ill. App. 3d 592, 595 (2000) (“A reviewing court will not reverse a trial court's decision
       merely because different conclusions can be drawn; an opposite conclusion must be clearly
       evident.”).
¶ 55       To recover for breach of contract, a party must prove that “(a) a contract exists between
       plaintiff and defendant, (b) plaintiff performed her obligations under the contract, (c)
       defendant did not perform his obligations under the contract, and (d) damages resulted from
       the breach.” Walker, 316 Ill. App. 3d at 595-96. The court explained that U.S. Shelter had “the

           7
              Archon probably had reason to be skeptical of its contractual “extras” count. The trial judge had
       clearly expressed skepticism about Archon’s ability to prove its lack of fault for the defective piping,
       having entered summary judgment against Archon previously, as had Justice Connors, and the
       heightened standard of proof for “extras” cases (clear and convincing evidence; see Doornbos, 403 Ill.
       App. 3d at 485) probably played a role as well. And as we saw ultimately in the trial court’s resolution
       of the case, the court was of the belief that nobody had proven, one way or the other, who or what was
       to blame for the ultimate defects, discovered in the 2007 videotape, that led to the removal of the PVC
       piping and the installation of the ductile iron piping in its place.
            8
              The trial court, noting that U.S. Shelter sought purely economic damages, concluded that U.S.
       Shelter could not recover on their negligence count pursuant to Moorman Manufacturing Co. v.
       National Tank Co., 91 Ill. 2d 69 (1982).

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       burden to prove that (1) Archon did not perform its obligations under the contract and (2)
       Archon’s failure to perform was the cause of [U.S. Shelter’s claimed] damages.”
¶ 56        As the trial court noted, U.S. Shelter alleged that Archon breached its contract by installing
       improper fittings, using the wrong couplings to repair connections, and failing to properly
       compact backfill used when digging up the area between MH 108 and MH 110 after
       performing the repairs in 2005. U.S. Shelter alleged that, when defects were later discovered in
       the 2007 videotape, requiring Archon to excavate again and replace the PVC pipe with ductile
       iron pipe, the excavation caused damage that required U.S. Shelter to repair the roadway;
       replace curbs, sidewalks, and aprons; and perform landscaping.
¶ 57        The court discussed, in impressive detail, the evidence presented at trial. As U.S. Shelter
       notes, the trial court found that “the evidence [had] shown that Archon did not comply with the
       terms of the contract when it used improper fittings and connected pipes with mission
       couplings.” And the court further noted that, after this defective work was discovered in 2005,
       Archon made the repairs and the system passed the required air and mandrel tests. But, as the
       trial court ultimately decided, U.S. Shelter failed to prove that the defects found during the
       2007 videotaping were due to Archon’s breach, as opposed to other possible reasons, and thus
       U.S. Shelter failed to prove that any breach by Archon was the cause of the damages U.S.
       Shelter suffered:
                “The evidence has not shown that the defects identified in the 2007 videotape were as a
                result of anything that Archon did or did not do. At least eighteen months elapsed
                between the time the sewer system passed the air and mandrel tests and the
                videotaping. During that time, a great deal of construction occurred, including building
                roads and houses on the Project. As [the city] wanted, the videotaping did not occur
                until close to the end of the project so as to allow ‘settling’ to occur. No witness could
                testify that the defects identified in 2007 were because of Archon’s use of incorrect
                fittings, repeated digging up of the area between manholes 108 and 110, or use of
                mission couplings. The evidence does not show that the work done in 2007 was due to
                the failure of Archon to perform some of its obligations under the contract.
                Consequently, U.S. Shelter cannot recover its costs of repairing the area after Archon
                completed its work.”
¶ 58        We agree with Archon that U.S. Shelter has failed to cite to any portion of the record
       substantiating their claims that the trial court erred. The gist of U.S. Shelter’s sparse argument
       regarding the counterclaim seems to be that, because Archon did not comply with the contract
       initially, anything that followed was attributable to Archon’s initial breach. But the trial court
       properly required U.S. Shelter to prove that any damages they suffered as a result of the final
       excavation were caused by Archon’s breach two years earlier. And the court clearly and
       persuasively found that U.S. Shelter did not establish that causal link, given the passage of time
       between the repairs initially performed and the defects discovered in 2007, the multitude of
       reasons that could explain the defects ultimately discovered in the system, and the fact that no
       witnesses could firmly place the blame for those problems on Archon. U.S. Shelter has given
       us no basis to upset the trial court’s findings on the counterclaim, and we affirm that ruling as
       well.




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¶ 59                                      IV. CONCLUSION
¶ 60        For the foregoing reasons, we affirm the judgment of the circuit court of Cook County in
       all respects.

¶ 61      Affirmed.




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