                                   2017 IL App (1st) 153228
                                        No. 1-15-3228

                                                                              FIRST DIVISION
                                                                                March 31, 2017

                                        IN THE

                             APPELLATE COURT OF ILLINOIS

                               FIRST JUDICIAL DISTRICT



COMMONWEALTH EDISON CO.,                       )           Appeal from the Circuit Court of
                                               )           Cook County.
                    Plaintiff-Appellee,        )
                                               )
v. 	                                           )
                                               )
ELSTON AVENUE PROPERTIES, LLC,	                )
DEVELOPMENTAL RESOURCES, INC., MARIA)                      No. 06 L 50404
PAPPAS, Treasurer and County Collector of Cook )
County, DAVID ORR, County Clerk of Cook 	      )
County, and UNKNOWN OWNERS,	                   )
                                               )           Honorable Alexander P. White
                    Defendants-Appellants.     )           Judge Presiding.

       JUSTICE SIMON delivered the judgment of the court, with opinion.
       Justices Harris and Mikva concurred in the judgment and opinion.

                                           OPINION

¶1     This appeal follows drawn-out negotiations and proceedings precipitated by eminent

domain. Commonwealth Edison needed to dig on private property to run underground wires. The

parties reached an agreement on compensation and on the specifications for digging and

restoring the property. ComEd did not specifically follow the agreed-upon specifications for

refilling the dig sites, resulting in nonconforming work. Nonetheless, ComEd asked the court to

approve its performance and rule that its obligations had been satisfied. After the parties

presented evidence, the trial court issued an order of satisfaction from which the property owner

now appeals. We affirm.
No. 1-15-3228


¶2                                           BACKGROUND

¶3      Plaintiff Commonwealth Edison filed an eminent domain suit to take underground

easements on property owned by defendant Elston Avenue Properties, LLC (“Elston

Properties”). The purpose of the taking was to construct deep vaults beneath the surface of the

property in order to ultimately carry electric transmission lines under the Chicago River. The

easements were part of plans for the “West Loop Project” designed to reinforce the electrical

capacity provided to the Chicago Central Business District. After the case was filed and after

Elston Properties filed a traverse, 1 the parties negotiated the easements and entered an agreed

judgment. The agreed judgment, as amended (referred to as the “Final Order”), stipulated the

compensation to be paid for the easements and the specifications for construction. Judgment was

entered on the Final Order terminating the eminent domain proceedings.

¶4      Construction began and ComEd excavated four shafts over 57 feet deep. The shafts were

approximately 14 feet wide and 35 feet long. They were reinforced with steel bracing. ComEd

then tunneled from the shafts under the river and ran the transmission lines through conduits to

their destination. The shafts were then backfilled and the surface was restored. However—and

this is the genesis of the dispute—ComEd deviated from the agreed specifications and filled a

portion of the vaults with sand where the Final Order called for concrete.

¶5      Following construction, ComEd tendered “as-built plans” to Elston Properties. ComEd

then filed a motion in the trial court for an order of satisfaction. That motion stated that all

compensation had been paid and that all work had been completed and, therefore, that ComEd

was seeking a determination that its obligations under the Final Order were satisfied.

¶6      Elston Properties noticed a deviation between the as-built plans and the specifications set

        1
          A traverse is a method by which a property owner can challenge a condemnation proceeding. Forest
Preserve District of Du Page County v. Miller, 339 Ill. App. 3d 244, 250 (2003).


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No. 1-15-3228


forth in the Final Order and alerted ComEd. The as-built plans indicated (as was actually the

case) that sand had been used instead of concrete in some areas. After being notified of the

deviation, ComEd prepared “revised” as-built plans that depicted concrete in much of the area

where it was supposed to be according to the Final Order, but where the original as-built plans

indicated (again, as was actually the case) that sand had been used. During the eight months

between Elston Properties notifying ComEd about the deviation and ComEd tendering the

revised plans, Elston Properties had performed its own testing on the composition of the vaults.

The testing demonstrated that the originally-tendered as-built plans actually reflected the true

method of construction—that sand had been used in areas where concrete was called for. Elston

Properties therefore believed that ComEd was attempting to deceive it with the revised as-built

plans.

¶7       There are two components of the construction that are important to distinguish—the duct

banks and the shafts themselves. The duct banks consist of the conduits that run horizontally

underground and the shafts are the vertical cavities descending from ground level to reach the

conduits. The specifications originally stated that the ducts were to be encased with 3000 psi

concrete and then, using stair-stepping, 1500 psi concrete was to be placed on top to fill the shaft

excavation. However, after construction began, the parties agreed to modify that backfilling

specification. Because the stair-stepping required for placing the 1500 psi concrete over the 3000

psi concrete was time-consuming and expensive, the parties agreed to just use 3000 psi concrete

throughout. 2 During the course of construction, however, ComEd gave the instruction to the


         2
           The original agreed order stated that "The vault excavations must be filled with min. 1500 psi lean
concrete to a level eight (8) feet below existing grade, then CA-1 compacted to 95% modified proctor to a level four
(4) feet below grade, then clay compacted to 95% modified proctor to grade." The Final Order states that "the
required vault excavations be filled with 3000 psi concrete to a level of -5 CCD, then granular thermal backfill
compacted to 95% modified proctor to elevation 0 CCD, then CA-1 compacted to 95% modified proctor level four
(4) feet below grade, then clay compacted to 95% proctor to grade."


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No. 1-15-3228


contractor to perform the duct backfilling with lifts of 3000 psi concrete “and then backfill with

compacted thermal sand.” The parties had agreed to modify the original agreement so that some

sand could be used as backfill in the duct banks, but they never agreed to such a modification for

backfilling the vaults in the manner it was done. There is no genuine dispute that the backfilling

was not done in accordance with the Final Order.

¶8     The specifications for construction set forth in the parties’ Statement of Conditions and

Restrictions and incorporated into the Final Order are intended “to assure ability of the Owner to

build over the ComEd facilities.” To that end, the Final Order states that:

                “Upon completion of the installation of the Project Facilities in the

       Permanent Subterranean Easement Areas, the Owner shall have the right to

       construct improvements, including buildings, or grant easements above, or

       between, or beyond the Project Facilities, provided only that the concrete

       encasement around the Project Facilities (the 1500 psi lean concrete at the vault

       excavations and the 100 psi flowable fill concrete at the duct bank excavations)

       will not be penetrated by the foundations. The Owner may install deep

       foundations (bearing elevation below -9.00 CCD) having a maximum bearing

       pressure of up to 20,000 pounds per square foot anywhere within the Permanent

       Subterranean Easement Area. Deep foundations located directly above the 6’

       diameter reinforced concrete pipe casing shall be designed so that they do not

       exceed the load carrying capability of the pipe. Shallow foundations (bearing

       elevation above -9.00 CCD) located directly above Project Facilities cannot

       exceed a net bearing pressure of 4,000 pounds per square foot. ***”

The parties dispute the interpretation of that paragraph as to what type of foundations are



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No. 1-15-3228


allowed in what locations.

¶9     ComEd’s position is that the parties’ understanding was always that the easement

construction would allow Elston Properties to construct low-rise construction with shallow

foundations on top of the vaults. In contrast, Elston Properties’ position is that the agreement was

premised on the expectation that it would be able to build just about anything on the property

that it could have built before the easement construction. The parties dispute whether the

deviation from the Final Order resulted in any loss of utility on the site or adversely affected

Elston Properties’ development rights.

¶ 10   The trial court held an evidentiary hearing in order to rule on ComEd’s motion for an

order of satisfaction. The hearing was held over nine non-consecutive days with five live

witnesses and 78 exhibits being entered into evidence. The trial court issued an 81-page order

finding that ComEd breached the agreed order but that the breach was not material and ComEd

had substantially complied. The trial court also found that Elston Properties failed to mitigate its

damages for a portion of the work. The trial court granted ComEd’s motion for an order of

satisfaction. Elston Properties appeals that ruling.

¶ 11                                        ANALYSIS

¶ 12    The issue on appeal is whether the trial court properly issued an order of satisfaction

despite the fact that the construction did not fully comply with the Final Order. The general rule

is that a reviewing court should only interfere with a trial court’s decision on whether a release or

satisfaction of judgment is proper if the trial court abused its discretion. Meyer v. First Am. Title

Ins. Agency of Mohave, Inc., 285 Ill. App. 3d 330, 336 (1996). However, this case also includes

questions of law (such as contract interpretation) that we review de novo and questions of fact

(such as weighing and resolving disputes in testimony) that we review under the manifest weight



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No. 1-15-3228


of the evidence standard. K’s Merchandise Mart, Inc. v. Northgate Ltd. Partnership, 359 Ill.

App. 3d 1137, 1142 (2005); Goldberg v. Astor Plaza Condo. Ass’n, 2012 IL App (1st) 110620,

¶ 60.

¶ 13    An agreed order adopted by the court, also termed a consent order or a consent decree, is

not an adjudication of the parties’ rights but, rather, a record of their private, contractual

agreement. In re Marriage of Rolseth, 389 Ill. App. 3d 969, 971 (2009). Consent judgments

should be characterized as contractual agreements and are controlled by the law of

contracts. People v. Scharlau, 141 Ill. 2d 180, 195 (1990). Like other contracts, consent decrees

must be construed to give effect to the intention of the parties which, when there is no ambiguity

in the terms, must be determined from the language of the consent decree alone. Allied Asphalt

Paving Co. v. Village of Hillside, 314 Ill. App. 3d 138, 144 (2000).

¶ 14    The first finding made by the trial court was that ComEd breached the Final Order by

failing to follow the fill specifications. ComEd has admitted as much in the trial court and in its

submissions here. The evidence plainly showed that ComEd did not perfectly comply with the

provisions of the Final Order by, as the trial court found, “substituting granular fill for concrete

in certain elevations.” Elston Properties maintains that the trial court’s inquiry should have ended

there—upon finding any nonconformance with the terms of the Final Order. It argues that the

only issue that may be raised in a motion for an order of satisfaction is whether the judgment has

been satisfied (citing Nickerson v. Suplee, 174 Ill. App. 136, 140 (1912)).

¶ 15    However, as ComEd argues, whether the agreement has been “satisfied” requires the

application of contract principles. Elston Properties accepts that contract law controls, but it does

not, as it must, also accept that relief is conditioned on harm. It is not enough that there is a

difference between existing conditions and the specified conditions. The difference must matter



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No. 1-15-3228


to the rights of the parties. Under the circumstances, the trial court was correct to turn to the

question of materiality and assess whether Elston Properties’ rights under the Final Order had

been infringed in a manner that would render ComEd’s obligations not satisfied.

¶ 16    The dispute here calls to mind the famous “Reading pipe” case. In Jacob & Youngs, Inc.

v Kent, 230 N.Y. 239 (1921), the plaintiff-builder agreed to construct a house for the defendant­

homebuyer. One of the specifications for the plumbing work was that all wrought iron pipe used

in the construction be “of Reading manufacture.” Id. at 240. Several months after the end of

construction, the homebuyer discovered that some of the pipe used, instead of being made in

Reading, had been made in other factories. Meeting the specifications, at that juncture, would

have meant demolition of significant parts of the structure. Id. at 240-41.

¶ 17    All of the evidence showed that the nonconforming pipes that were installed could

accomplish anything that the Reading pipes could; they were just the wrong brand. Id. at 241.

There was no fraud or willfulness, the builder made an error. But that mistake undoubtedly

resulted in a deviation from the specifications the parties agreed to. Judge Cardozo elucidated

that the court must draw a line between the important and the trivial omissions so as to not let

“the significance of the default [be] grievously out of proportion to the oppression of the

forfeiture.” Id. at 243-44. The measure of damages in a case where there is substantial

performance is the difference in value, which was nil. Id. at 244-45. The dissenting opinion in

the case—which has long been defeated in the development of the law—is the outcome Elston

Properties urges us to accept. 3


        3
          Elston Properties points us to Hardin, Rodriguez & Boivin Anesthesiologists, Ltd. v. Paradigm Ins. Co.,
962 F.2d 628, 636 (7th Cir. 1992) which discusses Jacob & Youngs. Elston claims that Hardin stands for the
proposition that substantial compliance is not available when a party demands strict performance. Incorrect. The
homeowner in Jacob & Youngs certainly wanted strict performance—that was the premise of the case. Hardin dealt
with conditions precedent not the actual performance of the agreement. See Hardin, 962 F.2d at 636-37. The dissent
in Jacob & Youngs took the position that strict compliance was required unless waived. Jacob & Youngs v. Kent,
230 N.Y. 239, 248 (1921) (McLaughlin, J., dissenting). The dissent's position never became accepted law.

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¶ 18   So we turn to the issue of materiality. Construing the Final Order as a contract and

applying contract principles, the trial court found that the breach was not material. It has been

said that a breach is material when it is fundamental or defeats the purpose of the contract.

       “The determination of whether a breach is material ‘is a complicated question of

       fact involving an inquiry into such matters as whether the breach worked to defeat

       the bargained-for objective of the parties or caused disproportionate prejudice to

       the non-breaching party, whether custom and usage considers such a breach to be

       material, and whether the allowance of reciprocal non-performance by the non-

       breaching party will result in his accrual of an unreasonable or unfair advantage.’”

       William Blair & Co., LLC v. FI Liquidation Corp., 358 Ill. App. 3d 324, 346–47

       (2005) (quoting Sahadi v. Continental Illinois National Bank & Trust Co. of

       Chicago, 706 F.2d 193, 196 (7th Cir. 1983)).

¶ 19   Factors to consider in determining whether a breach is material include: (1) the extent to

which the injured party will be deprived of the benefit that he or she reasonably expected; (2) the

extent to which the injured party can be adequately compensated for the part of that benefit of

which he or she will be deprived; (3) the extent to which the party failing to perform or to offer

to perform will suffer forfeiture; (4) the likelihood that the party failing to perform or to offer to

perform will cure his or her failure, taking account of all the circumstances, including any

reasonable assurances; and (5) the extent to which the behavior of the party failing to perform or

to offer to perform comports with standards of good faith and fair dealing. Rubloff CB

Machesney, LLC v. World Novelties, Inc., 363 Ill. App. 3d 558, 564 (2006) (citing Restatement

(Second) of Contracts § 241 (1981)). Because the determination of whether a breach is material

is a question of fact we will only disturb the trial court’s decision on the issue if it is against the



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manifest weight of the evidence. Mohanty v. St. John Heart Clinic, S.C., 225 Ill. 2d 52, 72

(2006).

¶ 20      After hearing the evidence, the trial court found that Elston Properties was not deprived

of any benefit that it could have reasonably expected under the Final Order. The trial court

explained that Elston Properties could not have reasonably expected to place 20,000 psf

foundations in the vaults because the Final Order only provides for shallow foundations not

bearing more pressure than 4,000 psf over the project facilities. The trial court then pivoted to

whether ComEd substantially complied with the Final Order. Taking the expert testimony into

consideration, the trial court concluded that with the existing construction, Elston Properties had

the ability to apply 4,000 psf shallow foundations in the vaults or 20,000 psf deep foundations

outside the vaults as contemplated by the Final Order. Accordingly, the trial court held that

ComEd substantially complied with the agreed order so that the issuance of an order of

satisfaction was warranted. For the reasons that follow, the trial court’s findings were not against

the manifest weight of the evidence.

¶ 21      Paragraph B6 of the Final Order is at the center of the issue. It states that deep

foundations are permitted in the easement area, but that only shallow foundations are allowed

directly above the vaults.

                 “Upon completion of the installation of the Project Facilities in the

          Permanent Subterranean Easement Areas, the Owner shall have the right to

          construct improvements, including buildings, or grant easements above, or

          between, or beyond the Project Facilities, provided only that the concrete

          encasement around the Project Facilities (the 1500 psi lean concrete at the vault

          excavations and the 100 psi flowable fill concrete at the duct bank excavations)



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No. 1-15-3228


       will not be penetrated by the foundations. The Owner may install deep

       foundations (bearing elevation below -9.00 CCD) having a maximum bearing

       pressure of up to 20,000 pounds per square foot anywhere within the Permanent

       Subterranean Easement Area. Deep foundations located directly above the 6’

       diameter reinforced concrete pipe casing shall be designed so that they do not

       exceed the load carrying capability of the pipe. Shallow foundations (bearing

       elevation above -9.00 CCD) located directly above Project Facilities cannot

       exceed a net bearing pressure of 4,000 pounds per square foot. ***”

As that provision states, the parties agreed that Elston Properties was allowed to build on top of

the easement area, with shallow foundations over the vaults and related shoring, mud slabs, duct

banks, and cable and concrete encasements; while it was allowed to build with deep foundations

in the remainder of the easement area. The evidence showed that the compacted fill in the vaults

was sufficient to support the shallow foundations at 4,000 psf that the Final Order called for. The

trial court accepted this evidence and, thus, found that the deviations from the specifications

were not material.

¶ 22   Elston Properties’ proffered interpretation of paragraph B6 is that “there is actually no

limitation in the Final Order on what can be placed on top of the vaults.” It contends that deep

foundations are permitted anywhere in the permanent easement area. Elston Properties argues

that paragraph B6 does not state that only shallow foundations are allowed directly above the

project facilities, just that, where shallow foundations are in fact located they cannot exceed

pressure above 4,000 psf. But the interpretation advocated by ComEd and adopted by the trial

court is the proper one in light of the plain language of that paragraph. Moreover, the testimony

supports the interpretation that was adopted, in that, it squares with the realities of the site and



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the need to ensure that the transmission lines are protected in the manner described by

Christopher Perry, ComEd’s expert.

¶ 23   The connotation in the common understanding of the difference between using concrete

and sand to fill a void would lead one to believe that substituting one for the other would always

be material. Here, though, the modified proctor that was used was compacted to 95%, the highest

level of compaction for the granular fill. After each foot of fill was placed in the vaults, it was

densely compacted and then tested by Testing Services Corporation to ensure that each specific

foot of fill put in place achieved the required density. Testing Services Corporation, on behalf of

Elston Properties, conducted around 300 contemporaneous density tests covering every foot of

thermal fill in the vaults. All that was required was that the vaults were capable of bearing up to

4,000 psf. There was no persuasive evidence presented to rebut the affirmative evidence that, as

constructed, the vaults could bear the shallow foundations called for by the Final Order. There

was also no evidence presented that ComEd departed from the specifications on purpose. The

immaterial deviation from the specifications did not frustrate any purpose of the Final Order.

¶ 24   At the evidentiary hearing, Elston Properties promoted its position that the parties

intended to use the 3000 psi concrete-filled vaults themselves as deep foundations—as caissons

to build on top of. If it were permitted to use the vaults as caissons, Elston Properties contends,

the easement area would have been suitable for constructing a high-rise building atop the

easements. Nothing in the Final Order supports a conclusion that anyone ever contemplated a

high-rise building being constructed on top of the vaults. Elston Properties presented the

testimony of Mr. Giannopoulos that he discussed the concept of using the vault as a caisson with

ComEd before construction. ComEd offered evidence to the contrary. The trial court sided with

ComEd, finding that the caisson theory was not credible.



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¶ 25   Elston Properties also presented evidence of boring tests that it conducted. It conducted a

test by boring a deep hole into each vault to test the density of the fill. One of the tests showed

looser compacting than the 95% requirement in one of the vaults. In addition, Elston Properties’

expert offered an opinion that geotechnical data showed that there was deficient compacting in

two of the vaults. On the other hand, Testing Services Corporation conducted contemporaneous

compaction testing on behalf of Elston Properties on each foot of fill in the vaults and ComEd’s

expert testified that the fill was adequately dense. Even though some data led Elston Properties’

experts to conclude that there was looser compaction than represented, the trial court found that

there was no evidence to lead to the conclusion that a 4,000 psf load could not be supported.

ComEd presented evidence from its expert that the density levels were sufficient to support the

called-for foundations, and the trial court’s acceptance of the testimony favoring ComEd was not

against the manifest weight of the evidence.

¶ 26   Elston Properties contends that ComEd failed to act in good faith because it submitted

improper plans after construction and caused delay at various intervals of the dispute.

Accordingly, Elston Properties argues, ComEd should not get the benefit of applying the

doctrines of materiality and substantial compliance. There is no indication here that the

nonconformity resulted from any fraud or willfulness. Elston Properties did not prove that the

deviation from the specifications was intentional. The issues regarding delay and the submission

of incorrect plans were before the trial court. The trial court did not find that ComEd failed to act

in good faith and it addressed the nonconformity under the standards of materiality and

substantial compliance. We see no reason to adopt a different view here.

¶ 27   Elston Properties’ proposed remedy in this case is that ComEd be ordered to specifically

perform the breached term of the agreement, i.e., dig up the vaults and substitute concrete for



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No. 1-15-3228


compacted fill in the required elevations. Elston Properties’ proposed remedy would result in

substantial economic waste and an unjustifiable forfeiture, especially where the current

conditions satisfy the ends of the agreement.

¶ 28   The Final Order contemplates that, after construction, Elston Properties would retain the

ability “to build over the ComEd facilities.” But there is nothing in the agreement to suggest that

the parties intended that a 30-story building would be built there. The persuasive evidence was to

the contrary. While it is true that there was a “battle of the experts” on a number of the important

issues in the case, the trial court’s finding that Elston Properties did not prove any damage from

the nonconforming work was not against the manifest weight of the evidence.

¶ 29   The trial court weighed the evidence and made a determination as to whether the breach

worked to defeat the bargained-for objective of the parties (William Blair, 358 Ill. App. 3d at

346-47) and found that it did not. The court’s determination makes clear that it found that the

nonconforming construction would not cause disproportionate prejudice (or any prejudice) to the

non-breaching party (id.). And the trial court heard expert testimony from individuals that work

in the field of structural engineering to shed light on the question of whether custom and usage

would consider such a breach to be material (id.). The ruling is not arbitrary or unreasonable, and

it is based on the evidence. We may not substitute our judgment for that of the trial court

regarding the credibility of witnesses, the weight to be given to the evidence, or the inferences to

be drawn therefrom. Tully v. McLean, 409 Ill. App. 3d 659, 670 (2011).

¶ 30   Elston Properties got everything out of the contract that the contract demanded, except

for Reading pipe. But as in that case, the deviation from the agreed specifications did not result

in any material harm. The trial court did not commit reversible error when it issued an order of

satisfaction in favor of ComEd.



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No. 1-15-3228


¶ 31                             CONCLUSION

¶ 32   Accordingly, we affirm.

¶ 33   Affirmed.




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