                               2018 IL App (1st) 153501

                                                                          FIFTH DIVISION
                                                          Opinion filed: September 28, 2018

                                 No. 1-15-3501
______________________________________________________________________________

                                       IN THE

                         APPELLATE COURT OF ILLINOIS

                                FIRST DISTRICT
______________________________________________________________________________

LB STEEL, LLC, and THE CITY OF CHICAGO ex            )       Appeal from the

rel. LB STEEL, LLC,                                  )       Circuit Court of

                                                     )       Cook County

       Plaintiffs,                                   )

                                                     )

v. (05 CH 2675)	                                     )       Nos. 05 CH 2675
                                                     )            07 CH 3886 

CARLO STEEL CORPORATION; WALSH                       )            08 L 6675

CONSTRUCTION COMPANY; THE CITY OF                    )            08 L 3419 (cons.)

CHICAGO; and TRAVELERS CASUALTY AND                  )

SURETY COMPANY OF AMERICA,                           )

                                                     )

       Defendants,                                   )

                                                     )

(LB Steel, LLC, Plaintiff and Counterdefendant-      )

Appellant and Cross-Appellee; Carlo Steel            )

Corporation, Defendant, Counterplaintiff, and        )

Counterdefendant-Appellee and Cross-Appellant;       )

Walsh Construction Company, Defendant and            )

Counterplaintiff-Appellee and Cross-Appellant;       )

Travelers Casualty and Surety Company of America,    )

Defendant and Counterplaintiff-Appellee and Cross-   )

Appellant).                                          )

____________________________________________         )

                                                     )

THE CITY OF CHICAGO,                                 )

                                                     )

       Plaintiff,                                    )

                                                     )

v. (07 L 3886)	                                      )

                                                     )

No. 1-15-3501


 MURPHY/JAHN, INC. ARCHITECTS; WERNER                 )
 SOBEK INGENIUERE GmbH & CO. KG; RUBINOS              )
 & MESIA ENGINEERS, INC.; TURNER                      )
 CONSTRUCTION-O’BRIEN, KREITZBERG, LLC;               )
 TURNER CONSTRUCTION COMPANY; O’BRIEN­                )
 KREITZBERG, INC.; URS CORPORATION;                   )
 McCLIER CORPORATION d/b/a O’Hare Partners;           )
 AAC DESIGNERS BUILDERS, INC. d/b/a Austin            )
 AECOM Company; COTTER CONSULTING, INC.;              )
 WALSH CONSTRUCTION COMPANY; BOWMAN,                  )
 BARRETT & ASSOCIATES, INC.; and                      )
 TRAVELERS CASUALTY AND SURETY                        )
 COMPANY OF AMERICA,                                  )
                                                      )
         Defendants,                                  )
                                                      )
 (Walsh Construction Company, Defendant, Third-Party )
 Plaintiff, Third-Party Counterdefendant-Appellee and )
 Cross-Appellant; Travelers Casualty and Surety       )
 Company of America, Defendant-Appellee and Cross­ )
 Appellant; LB Steel, LLC, Third-Party Defendant and  )
 Third-Party Counterplaintff-Appellant and Cross­     )
 Appellee; Carlo Steel, Counterdefendant-Appellee and )
 Cross-Appellant).                                    )
                                                      )
 ____________________________________________ )
                                                      )
 LB STEEL, LLC,                                       )
                                                      )
         Plaintiff,                                   )
                                                      )
 v. (08 L 6675)                                       )
                                                      )
 CAL TESTING SERVICES, INC, d/b/a Calumet             )
 Testing Services,                                    ) Honorable
                                                      ) John C. Griffin,
         Defendant.                                   ) Judge, Presiding.
______________________________________________________________________________

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

      Presiding Justice Rochford and Justice Hall concurred in the judgment and opinion. 


                                         OPINION




                                              2

No. 1-15-3501


¶1     The appellant, LB Steel, LLC (LB Steel), and the cross-appellants, Walsh Construction

Company (Walsh), Travelers Casualty and Surety Company of America (Travelers), and Carlo

Steel Corporation (Carlo Steel), appeal from orders of the circuit court of Cook County entered

in consolidated cases involving a construction project at O’Hare International Airport. On

appeal, LB Steel contends that the circuit court erred by (1) setting-off certain judgments entered

in its favor against a judgment entered in favor of Walsh, and (2) failing to reduce Walsh’s

judgment by the value of a payment from its insurer, Zurich American Insurance Company

(Zurich). Additionally, LB Steel contends that Walsh’s judgment must be reduced by the amount

due under its policy with another insurer, St. Paul Guardian Insurance Company (St. Paul). In

their respective cross-appeals, Walsh, Travelers, and Carlo Steel fix additional issues for review,

which we address infra. For the following reasons, we: dismiss the cross-appeal of Carlo Steel;

affirm the circuit court’s judgment in part; reverse it in part; enter a judgment in LB Steel’s favor

against Walsh and Carlo Steel for $4,771,688 on LB Steel’s claim for quantum meruit; and

remand.

¶2     The procedural history of this case is lengthy. The following factual recitation, taken

from the pleadings, exhibits, and evidence adduced at trial, contains only what is necessary for

our disposition of the issues. Additional facts will be included as needed throughout this opinion.

¶3     In January 2003, Walsh, a general contractor, entered into a contract (Prime Contract)

with the City of Chicago (City) to construct a steel canopy above several terminals at O’Hare

International Airport (Project). In connection with the Project, Walsh obtained a public

construction bond from Travelers (Travelers bond) and an insurance policy from Zurich (Zurich

policy). Walsh subcontracted with Carlo Steel, a construction company, to build the steel canopy

(Subcontract). The Subcontract stated that, if Carlo Steel commits a “material breach” of the



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No. 1-15-3501


Subcontract, Walsh may “withhold payment” from Carlo Steel “pending corrective action to the

extent required by and to the satisfaction of [Walsh] and the Architect/Engineer.”

¶4     In March 2003, Carlo Steel subcontracted with LB Steel, a steel fabricator, to

manufacture the steel canopy and 35 steel support columns (Sub-Subcontract). The Sub-

Subcontract provided that, “[t]o the extent terms of the [Prime Contract] *** apply” to LB

Steel’s work, Carlo Steel and LB Steel assumed toward each other the same “obligations, rights,

duties, and redress” that Walsh and Carlo Steel assumed under the Prime Contract. Additionally,

the Sub-Subcontract provided that “Carlo Steel may reject a *** payment application” from LB

Steel “as may be reasonably necessary to protect Carlo Steel from loss or damage caused by” LB

Steel’s failure to “correct rejected, defective, or nonconforming *** work.” Subsequently, LB

Steel retained an engineering firm, R.I. Johnson Associates (R.I. Johnson), to design welding for

the canopy and support columns, and entered into a contract with Cal Testing, Inc. (Cal Testing)

to analyze the welding (weld-testing contract).

¶5     LB Steel delivered the steel support columns to the Project site between December 2003

and March 2004, along with elements of the steel canopy. In December 2004, the City

discovered cracks in the canopy’s welding; some of the welds were performed by LB Steel and

others were performed by another contractor. During the investigation, Walsh withheld payment

from Carlo Steel and Carlo Steel, in turn, withheld payment from LB Steel.

¶6     On January 21, 2005, LB Steel issued a notice of claim on the Travelers bond, alleging it

had not been paid $7,012,856 under the Sub-Subcontract. Subsequently, on February 9, 2005,

LB Steel filed an action against the City, Carlo Steel, and Walsh in the circuit court of Cook

County (case number 05 CH 2675). LB Steel’s complaint was amended on several occasions,

with the last iteration being a six-count Third Amended Complaint adding Travelers as a



                                                  4

No. 1-15-3501


defendant. LB Steel alleged: a lien against public funds, directed against “the City, Walsh and

Carlo, and each of them” (Count I); breach of the Sub-Subcontract by Carlo Steel (Count II);

quantum meruit against Carlo Steel and Walsh (Count III); declaratory judgment against Carlo

Steel (Count IV); a public construction bond claim against Travelers (Count V); and unjust

enrichment by Carlo Steel and Walsh (Count VI).

¶7     While LB Steel’s complaint was pending, the City continued investigating the defective

welding in the steel canopy and ultimately faulted its structural engineer and not the contractors.

However, in November 2005, the City discovered additional defects in LB Steel’s welding for

the steel support columns it manufactured. The City’s structural engineer concluded that, if other

welding was also defective, “the overall structural stability of the canopy structure *** [could

be] endangered.” Due to these findings, Walsh, the City, and the City’s engineers developed a

plan to identify and remediate welds that were critical to the canopy’s structural integrity.

¶8     While the remediation effort was underway, Walsh and Travelers filed a counterclaim

against Carlo Steel, alleging that it breached the Subcontract, and Carlo Steel filed a

counterclaim against LB Steel, claiming that it breached the Sub-Subcontract. Later, Walsh and

Carlo Steel executed an assignment agreement by which Carlo Steel assigned the Sub-

Subcontract to Walsh “together with any and all claims which [Carlo Steel] has, or may hereafter

have, against [LB Steel] and the City.” Walsh agreed to “defend *** any and all counter-suits or

claims brought by any of the Subcontractors against [Carlo Steel] relating to” the Project, and

undertook to “indemnify” Carlo Steel for claims arising from Walsh’s “failure to provide

payment to [Carlo Steel] which in turn would have been provided to the Subcontractors.”

¶9     On April 13, 2007, the City filed an action against Walsh and Travelers in the circuit

court of Cook County (case number 07 L 3886). In the same proceeding, Walsh filed a Third­



                                                 5

No. 1-15-3501


Party Complaint against LB Steel and Cal Testing, which was later superseded by a five-count

Second Amended Third-Party Complaint. Walsh alleged: breach of the Sub-Subcontract by LB

Steel (Count I); professional negligence by Cal Testing and LB Steel (Counts II and III,

respectively); fraud by LB Steel (Count IV); and breach of the weld-testing contract by Cal

Testing based on Walsh’s status as a third-party beneficiary (Count V). LB Steel filed a

Counterclaim that raised several claims similar to those contained in its Third Amended

Complaint in case number 05 CH 2675. Specifically, LB Steel alleged: breach of the Sub-

Subcontract by both Carlo Steel and Walsh (Count I); a lien against public funds, directed

against “the City, Walsh and Carlo, and each of them” (Count II); quantum meruit against Carlo

Steel and Walsh (Count III); a public construction bond claim against Travelers (Count IV); and

unjust enrichment by Carlo Steel and Walsh (Count V). In Count VI of its Counterclaim, LB

Steel alleged breach of contract against Cal Testing.

¶ 10   On June 19, 2008, LB Steel filed a complaint against Cal Testing in the circuit court of

Cook County, which was later superseded by a Second Amended Complaint alleging one count

of breach of contract (case number 08 L 6675). Then, on July 29, 2009, LB Steel filed a Third-

Party Complaint in case number 07 L 3886, alleging breach of contract against Carlo Steel. In a

series of orders entered in July 2009, the trial court consolidated the proceedings in case numbers

05 CH 2675, 07 L 3886, and 08 L 6675. 1

¶ 11   On April 4, 2013, Cal Testing filed a counterclaim for interpleader in case number 07 L

3886, seeking to deposit $1,812,696 with the clerk of the circuit court, the amount remaining

under its insurance policy, because “[b]oth Walsh and LB Steel have claimed entitlement [to the

money].” In response, Walsh and LB Steel filed counterclaims for those funds. By order of the

       1
         Case number 08 L 3419, another action arising from the Project, and to which Walsh was a
defendant, was also consolidated but is not relevant to this appeal.


                                                 6

No. 1-15-3501


trial court, Cal Testing deposited the funds on June 4, 2013, and was dismissed from the

litigation.

¶ 12    On June 28, 2013, Walsh and the City filed a joint motion in case number 07 L 3886,

asserting that, due to LB Steel’s lien on public funds, the City was “withholding from Walsh

$1,554,654.00” under the Prime Contract and sought to deposit that sum with the clerk of the

circuit court. The trial court granted Walsh’s and the City’s motion on September 13, 2013.

Subsequently, on November 12, 2013, the court entered an order stating that the deposited funds

“shall be credited by the parties as if paid by the City to Walsh” and that “LB Steel’s lien is

released as to the City only and attaches to the deposited funds.” The City deposited the funds

that day.

¶ 13    On August 24, 2015, the matter proceeded to a bench trial where the following claims

were before the court. According to its trial brief, LB Steel proceeded on (1) Counts I-III and V­

VI of its Third Amended Complaint in case number 05 CH 2675; (2) the corresponding claims

raised in Counts I-V of its Counterclaim in case number 07 L 3886; and (3) its Counterclaim for

the funds that Cal Testing deposited with the clerk of the circuit court in case number 07 L 3886.

Walsh, in its trial brief, stated that it proceeded on Counts I, III, and IV of its Second Amended

Third-Party Complaint in case number 07 L 3886, and maintained that “LB Steel’s defective

work *** was substantial and extensive.” The record shows that, prior to trial, the court entered

summary judgment in favor of LB Steel and against Walsh on Walsh’s claim for professional

negligence raised in Count III of its Second Amended Third-Party Complaint.

¶ 14    The evidence adduced at trial established that, following the initial discovery of LB

Steel’s defective column welds in November 2015, Walsh, the City, and the City’s engineers

identified 13 types of welds on each of the 35 columns that required inspection and testing. Most



                                                7

No. 1-15-3501


of those welds were found to be defective but did not require remediation. The welds that

required remediation, however, included welds that, according to an engineer for Walsh, were

“critical for the safety of the whole canopy.” Some of those welds had cracks that rendered them

“totally ineffective” or contained “only a fraction” of the required volume, and in some cases,

“there was no weld touching the metal and connecting to both sides” of the columns. Pursuant to

a plan developed with the City and its engineers, Walsh erected temporary shoring around the

canopy and repaired or retrofitted the defective welds that required remediation. An expert for

LB Steel opined that the defective welds, in aggregate, constituted approximately 1000 feet out

of a total of 39 miles of welding performed by LB Steel.

¶ 15      During proceedings on October 14, 2015, immediately before the trial judge delivered his

findings, the parties agreed that Walsh and Carlo Steel had retained a total of $4,771,688 due to

LB Steel under the Sub-Subcontract following the discovery of cracks in the welding. Counsel

for Walsh maintained that it “had every right to withhold that payment under the contract

because of the defective work,” but conceded that “if our costs to repair are awarded and we are

made whole, then LB Steel would be entitled to reduce” the judgment entered against it by “the

amount that would have been due [to LB Steel] had [it] properly performed.”

¶ 16      Following this discussion, the trial judge delivered his findings from the bench and also

entered a comprehensive written Judgment Order. In his oral findings, the judge observed that,

although the parties proffered “voluminous documents” in evidence, LB Steel provided neither

“as-built drawings” showing that it produced the welds according to specification nor “notes ***

regarding visual inspection.” Because such evidence was “within [LB Steel’s] power to

produce,” the judge inferred that “the as-builts and visual inspections would be adverse to LB

Steel.”



                                                  8

No. 1-15-3501


¶ 17    As to Walsh’s claim for breach of contract by LB Steel in Count I of its Second Amended

Third-Party Complaint, the judge found that “the contract documents support Walsh’s theory of

the case” and that “there was a need for remediation due to the defective welds, not the design.”

The judge awarded Walsh $27.5 million, noting that it made “a reasonable and responsible

attempt to mitigate damages and protect the public safety” and that its damages “are the costs it

incurred to investigate and repair the defective welds.” In so holding, the judge stated that $8

million that Walsh received under the Zurich policy would not be deducted from the award

because “the insurance policy is clear as to what was covered by the payment.” However, the

judge found that Walsh did not prove its claim for fraud by LB Steel in Count IV of its Second

Amended Third-Party Complaint.

¶ 18    As to LB Steel’s claim for breach of contract in Count II of its Third Amended

Complaint, the judge awarded LB Steel $6.5 million with “the City lien funds *** applied to that

amount,” but did not make specific findings of fact. The judge also denied LB Steel’s claims for

quantum meruit and declaratory judgment without making any factual findings. 2 Finally, the

judge entered “an additional judgment in [LB Steel’s] favor *** for the Cal Testing funds on

deposit.”

¶ 19    Counsel for Walsh then argued that, if Walsh “obtain[s]” the funds awarded to LB Steel,

that award would “reduc[e]” the judgment in Walsh’s favor because “Walsh withheld the

contract amount as [it] had a right to do under the contract, and that should be offset against the

amount of what is claimed.” In response, counsel for LB Steel stated that, pursuant to section 12­

178 of the Code of Civil Procedure (Code) (735 ILCS 5/12-178 (West 2014)), “setoff is not

appropriate given the different capacities for these different claims.” LB Steel’s counsel also

        2
         Although the trial court denied LB Steel’s claim for declaratory judgment against Carlo Steel in
Count IV of its Third Amended Complaint, LB Steel’s pretrial brief, as noted, did not specify that it was
proceeding on that claim.
                                                   9

No. 1-15-3501


stated that his firm, Conway & Mrowiec, filed a “notice of attorneys’ lien in this case, and that is

one of the specific exceptions to setoff” under the Code. An attorney for MB Financial Bank

(MB Financial) then addressed the court, stating that MB Financial has “a perfected lien security

interest in all property of LB Steel,” including “the judgments *** entered in favor of LB Steel,

the rights to the $1.5 million *** under public statute, the $6.5 million judgment against

Travelers and *** [the] judgment against Cal Testing.” MB Financial’s attorney argued,

therefore, that “the rights of setoff should not be determined at this time.” A copy of Conway &

Mrowiec’s lien notice appears in the record; however, the record does not contain an appearance

or lien notice filed by MB Financial, and attorneys for both Walsh and Carlo Steel objected to its

participation in the proceedings. Following these discussions, the trial judge stated:

                “[A]t the end of the day, here is the way it should be: There is a $27,500,000

                judgment entered.

                       LB [Steel] is entitled to credit for the $6,500,000, and the $1,812,696 for a

                total of $8,312,696.

                       The net is [$]19,187,304. I do think these are all—I don’t remember the

                exact terminology—interrelated.

                       I think that pursuant to 5/12-176 [of the Code], [LB Steel] is entitled to a

                setoff so Walsh should get the money *** that is being held by the Clerk.”

¶ 20    The trial court entered a written Judgment Order on October 14, 2015. Because of its

relevance to the issue on appeal, we quote the Judgment Order at length. It states, in relevant

part:




                                                 10 

No. 1-15-3501


                       “1.    Judgment is entered in favor of Walsh *** and against LB Steel,

                *** on Count I of Walsh’s Second Amended Third-Party Complaint *** for

                Breach of Contract in the amount of $27,500,000.00;

                       2.     Judgment is entered in favor of LB Steel and against Walsh on

                Count IV of Walsh’s Second Amended Third-Party Complaint *** for fraud;

                       3.     Judgment is entered in favor of LB Steel and against Carlo Steel

                *** and Walsh on Count I of LB Steel’s Counterclaim *** (and Count II of LB

                Steel’s Third Amended Complaint ***) for breach of contract, in the amount of

                $6,500,000.00;

                       4.     Judgment is entered in favor of LB Steel and the City of Chicago

                for the use and benefit of LB Steel and against Travelers *** on Count IV of LB

                Steel’s Counterclaim *** (and Count V of LB Steel’s Third Amended

                Complaint ***) on the bond claim in the principal amount of $6,500,000.00[;]

                       5.     Judgment is entered in favor of LB Steel and against Walsh on

                Count II of LB Steel’s Counterclaim *** (and Count I of LB Steel’s Third

                Amended Complaint ***) for lien *** in the amount of $1,554,654.00;

                       6.     Judgment is entered in favor of LB Steel, on Count VI of LB

                Steel’s *** Answer and Counterclaim *** and LB Steel’s Answer and

                Counterclaim for Interpleader *** (and LB Steel’s Complaint against Cal Testing

                ***) for the principal amount of $1,812,696.00 plus accrued interest that was

                deposited with the Clerk of the Court by Cal Testing ***. This $1,812,696.00 is

                independent of, and in addition to, the $6,500,000.00 awarded to LB Steel under

                Counts I, II, and IV of LB Steel’s *** Counterclaim;



                                               11 

No. 1-15-3501


                           7.    Judgment is entered in favor of Walsh and against LB Steel on

                Count III of LB Steel’s Counterclaim *** and Count III of LB Steel’s Third

                Amended Complaint *** for quantum meruit;

                           8.    Count IV of LB Steel’s Third Amended Complaint *** for

                declaratory judgment against Carlo [Steel] is subsumed in other counts;

                           9.    Judgment is entered in favor of Walsh and Carlo Steel and against

                LB Steel on Count VI of LB Steel’s Third Amended Complaint *** for unjust

                enrichment;

                           10.   Judgment is entered in favor of LB Steel and against Carlo Steel on

                Carlo Steel’s counterclaim against LB Steel ***. Judgment is entered for Carlo

                Steel and against LB Steel on the LB Steel Third-Party Claim against Carlo

                Steel; 3

                           11.   LB Steel shall be entitled to a credit for $6,500,000.00 based upon

                its contract claims, bond claim, and lien claim and $1,812,696.00 plus accrued

                interest based upon [its] claims against [Cal] Testing and the funds deposited by

                [Cal] Testing (plus accrued interest), which amounts shall be set-off against

                Walsh[’s] *** judgment, for a net judgment in favor of Walsh *** and against LB

                Steel[ ] *** in the amount of $19,187,304.00, less accrued interest from funds

                deposited by [Cal] Testing;

                           12.   The judgments against Travelers *** and Carlo [Steel] *** are

                hereby satisfied in full by reason of the set-off and/or recoupment of the judgment

                in favor of Walsh *** as set forth in paragraph 11 above ***;

        3
          Although the trial court denied LB Steel’s claim for breach of contract raised in its Third-Party
Complaint against Carlo Steel, LB Steel’s pretrial brief, as noted, did not specify that it was proceeding
on that claim.
                                                    12 

No. 1-15-3501


                       13.     IT IS HEREBY ORDERED that the Clerk *** shall release the

                $1,554,654.00 deposited by the City of Chicago *** plus accrued interest, to

                Walsh ***;

                       14.     IT IS HEREBY ORDERED that the Clerk *** shall release the

                $1,812,696.00 deposited by Cal Testing[ ] *** plus accrued interest, to Walsh

                ***;

                ***

                       16.     Notwithstanding the Parties[’] claim[s] for attorneys’ fees and

                costs against LB Steel[ ] *** and the continuance of this matter for this issue, this

                Court makes an express finding that there is no just reason for delaying either

                enforcement or appeal or both of this Judgment Order pursuant to Illinois

                Supreme Court Rule 304(a).”

¶ 21   On October 18, 2015, LB Steel voluntarily filed for protection under Chapter 11 of the

United States Bankruptcy Code (Bankruptcy Code) (11 U.S.C. § 1101 (2012)) in the United

States Bankruptcy Court for the Northern District of Illinois, Eastern Division. 4 Subsequently,

the bankruptcy court modified the automatic stay to allow LB Steel and Walsh to file notices of

appeal and cross-appeal from the trial court’s Judgment Order, which they filed on December 16,

2015, and December 23, 2015, respectively. Walsh’s notice of cross-appeal also listed its surety,

Travelers, as a cross-appellant. The record does not show whether Carlo Steel sought to modify

the automatic stay, nor is Carlo Steel mentioned in the bankruptcy court’s order allowing Walsh

to file its notice of cross-appeal. Notwithstanding, Carlo Steel filed a notice of cross-appeal from

the Judgment Order on January 4, 2016.

       4
         This court “may take judicial notice of public documents which are included in the records of
other courts,” including the bankruptcy court. Seymour v. Collins, 2015 IL 118432, ¶ 6 n.1.


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No. 1-15-3501


¶ 22   LB Steel filed two adversary complaints against Walsh in the bankruptcy court, arguing

that the setoffs imposed by the trial court were invalid or avoidable. In memorandum opinions,

the bankruptcy court held that (1) the Rooker-Feldman doctrine barred LB Steel’s challenge to

the setoffs and, therefore, the bankruptcy court would not disturb the trial court’s determination

that “the obligations at issue were mutual for purposes of setoff;” 5 (2) the funds that Cal Testing

and the City deposited with the clerk of the circuit court were not part of the bankruptcy estate;

and (3) the bankruptcy court would not conduct further proceedings until the present appeal is

resolved. On May 10, 2016, the bankruptcy court entered an order modifying the automatic stay

“to allow LB Steel and Walsh to proceed with the [a]ppeals.” That order did not mention Carlo

Steel’s cross-appeal.

¶ 23   As an initial matter, although the parties do not dispute jurisdiction, this court has an

independent duty to consider its jurisdiction before reaching the merits of the case. See Almgren

v. Rush-Presbyterian-St. Luke’s Medical Center, 162 Ill. 2d 205, 210 (1994). When, as here,

multiple parties or claims are involved in an action and the trial court “has made an express

written finding that there is no just reason for delaying either enforcement or appeal” of a

judgment that is final as to one or more but fewer than all of the parties or claims, an appeal must

be filed within 30 days of such judgment. Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017), 304(a) (eff.

Mar. 8, 2016). In this case, the trial court entered its Judgment Order on October 14, 2015. LB

Steel filed its notice of appeal on December 16, 2015, Walsh and Travelers filed their joint notice

of cross-appeal on December 23, 2015, and Carlo Steel filed its notice of cross-appeal on

January 4, 2016. Thus, none of the notices of appeal or cross-appeal were filed within the 30-day


       5
          The Rooker-Feldman doctrine “prevents a party who is complaining about an injury caused by a
state-court judgment from seeking redress in a lower federal court.” Vlastelica v. Brend, 2011 Ill. App
(1st) 102587, ¶ 34.

                                                  14 

No. 1-15-3501


period. However, the bankruptcy petition filed by LB Steel on October 18, 2015, calls into play

two provisions from the Bankruptcy Code that are relevant for determining whether the notices

of appeal and cross-appeal were timely filed.

¶ 24   Turning first to LB Steel’s appeal, section 108(b) of the Bankruptcy Code provides that

“if applicable nonbankruptcy law[ ] *** fixes a period within which the debtor *** may file any

pleading, *** [or] notice,” or “perform any other similar act,” and that period “has not expired

before the date of the filing of the petition,” the “trustee” may file such notice before the later of

“(1) the end of such period, including any suspension of such period occurring on or after the

commencement of the case; or (2) 60 days after the order for relief.” 11 U.S.C. § 108(b) (2012);

see also 11 U.S.C. § 301(b) (2012) (“[t]he commencement of a voluntary [bankruptcy] case ***

constitutes an order for relief”). Federal courts have recognized that, although section 108(b) of

the Bankruptcy Code does not expressly reference notices of appeal, “ ‘[f]iling a notice of appeal

is at least a “similar act” with respect to *** filing a “pleading” or a “notice.” ’ ” Local Union

No. 38, Sheet Metal Workers’ International Ass’n, AFL-CIO v. Custom Air Systems, Inc., 333

F.3d 345, 347 (2d Cir. 2003) (quoting Autoskill Inc. v. National Educational Support Systems,

Inc., 994 F.2d 1476, 1484 (10th Cir. 1993) (overruled on other grounds by TW Telecom

Holdings Inc. v. Carolina Internet Ltd., 661 F.3d 495 (10th Cir. 2011))). Further, both federal

and state courts have found that section 108(b) of the Bankruptcy Code applies to a debtor in

possession in a Chapter 11 bankruptcy proceeding, who “essentially functions as the trustee.”

Custom Air Systems, Inc., 333 F.3d at 348; Hoang v. Hewitt Avenue Associates, LLC, 177 Md.

App. 562, 574 n.3 (2007). These decisions comport with this court’s application of section

108(b) of the Bankruptcy Code in other contexts. See, e.g., In re Application of County Collector

for Judgment and Sale Against Lands and Lots, 367 Ill. App. 3d 34, 41 (2006) (where the owner



                                                 15 

No. 1-15-3501


of liened property filed a voluntary bankruptcy petition within the time for redeeming the lien,

“the redemption period *** [was] extended 60 days” under section 108(b) of the Bankruptcy

Code). Consequently, LB Steel’s Chapter 11 bankruptcy petition, filed on October 18, 2015,

extended its deadline to file a notice of appeal from the trial court’s October 14, 2015 Judgment

Order by 60 days, to December 17, 2015. The notice of appeal filed by LB Steel on December

16, 2015, was, therefore, timely for purposes of establishing this court’s jurisdiction.

¶ 25   As to Walsh’s and Travelers’ joint notice of cross-appeal, section 362(a) of the

Bankruptcy Code (11 U.S.C. § 362(a) (2012)) automatically stays “all entities,” immediately

upon the filing of the bankruptcy petition, from “the commencement or continuation[ ] *** of a

judicial, administrative, or other action *** against the debtor that was or could have been

commenced before the commencement of the [bankruptcy] case” unless a party obtains relief

from the automatic stay. See In re Application of the County Treasurer and Ex Officio County

Collector of Cook County, 308 Ill. App. 3d 33, 39-40 (1999). Here, the automatic stay resulting

from LB Steel’s October 18, 2015 bankruptcy petition barred Walsh and Travelers from

appealing the trial court’s October 14, 2015 Judgment Order until the bankruptcy court granted

relief from the stay on December 23, 2015. See G.M. Fedorchak and Associates, Inc. v. Chicago

Title Land Trust Co., 355 Ill. App. 3d 428, 432 (2005) (although a party failed to file a notice of

appeal with 30 days of a final judgment, “the automatic stay barred [that party] from appealing

any claim *** until the bankruptcy court granted relief from the stay”). Thus, under section

362(a) of the Bankruptcy Code, Walsh and Travelers could not file a notice of cross-appeal until

December 23, 2015. Consequently, the joint notice of cross-appeal that they filed on that date

was timely and invoked this court’s jurisdiction. See id.




                                                 16 

No. 1-15-3501


¶ 26    Carlo Steel’s cross-appeal is also controlled by section 362(a) of the Bankruptcy Code.

The record, however, does not show that Carlo Steel sought to modify the automatic stay in the

bankruptcy court, nor is Carlo Steel mentioned in the bankruptcy court’s orders modifying the

automatic stay to permit LB Steel and Walsh to file their notices of appeal and cross-appeal.

Carlo Steel, in its brief on cross-appeal, posits that the bankruptcy court’s order “modified the

stay to allow the filing of [c]ross-[a]ppeals,” but the bankruptcy court’s order of December 23,

2015, states only that “[t]he automatic stay is modified *** to allow Walsh to file its Notice of

Cross Appeal” (emphases added). Further, the bankruptcy court’s May 10, 2016 order modifying

the automatic stay “to allow LB Steel and Walsh to proceed with the [a]ppeals” did not mention

a cross-appeal by Carlo Steel. It is well-established that, “in a direct appeal from the trial court,

the transcript of the record must reveal the basis for the jurisdiction of the appellate court”

(Tunca v. Painter, 2012 IL App (1st) 093384, ¶ 25), and a reviewing court must “dismiss an

appeal if jurisdiction is lacking” (Xcel Supply LLC v. Horowitz, 2018 IL App (1st) 162986, ¶ 26).

As the record does not show that the bankruptcy court lifted the automatic stay to permit Carlo

Steel to file its notice of cross-appeal from the trial court’s October 14, 2015 Judgment Order,

Carlo Steel has not established that this court has jurisdiction over its cross-appeal. See, e.g.,

Application of the County Treasurer, 308 Ill. App. 3d at 44-45 (a notice of appeal filed in

violation of the automatic stay was “void ab initio,” which deprived the reviewing court of

jurisdiction and required it to dismiss the appeal). Carlo Steel’s cross-appeal is, therefore,

dismissed. 6




        6
         Although we dismiss Carlo Steel’s cross-appeal for lack of jurisdiction, we observe that the sole
assignment of error in its brief on appeal, namely, that the trial court erred by granting judgment in favor
of LB Steel on its claim for breach of the Sub-Subcontract, is also raised by Walsh and addressed in this
opinion.
                                                    17 

No. 1-15-3501


¶ 27    Turning to the merits of the instant appeals, we begin with Walsh’s initial contention on

cross-appeal that, notwithstanding the terminology used in the Judgment Order, “the $6.5 million

‘judgment’ ostensibly awarded to LB Steel” does not “reflect a judicial determination” that Carlo

Steel or Walsh breached the Sub-Subcontract. 7 Rather, Walsh argues that the Judgment Order

shows that LB Steel “lost its breach of contract claim and received only a ‘credit’ for the labor

and materials it was acknowledged to have provided” and for which Carlo Steel was

contractually entitled to withhold payment pending adjudication of the breach of contract claim

that it assigned to Walsh. According to Walsh, this reading of the Judgment Order avoids the

“irrational” result of requiring it to pay LB Steel $6.5 million, return the $1,554,654 and

$1,812,696 that were deposited with the clerk of the circuit court by the City and Cal Tech,

respectively, and pursue its award of $27.5 million against LB Steel in the bankruptcy court.

Therefore, Walsh argues that this court should “give effect to the [c]ircuit [c]ourt’s stated

intentions of awarding [it] a net judgment,” or, alternatively, “modify the Judgment Order to

expressly provide that LB Steel is only entitled to a ‘credit,’ not a ‘judgment.’ ”

¶ 28    In interpreting the trial court’s Judgment Order, the “determinative factor” is “the

intention of the court as gathered from all parts of the judgment itself,” which we construe in the

same manner as other written instruments. Fieldcrest Builders, Inc. v. Antonucci, 311 Ill. App.

3d 597, 605 (1999). The trial court’s judgment should be examined “with reference to the issues

it was intended to decide, and it is not the form *** which is determinative but the substance and

effect of the adjudication.” Virzint v. Beranek, 202 Ill. App. 3d 511, 514 (1990). While an

unambiguous judgment will be enforced as drafted, an ambiguous judgment should be read in




        7
           As Walsh and Travelers filed a joint notice of cross-appeal and brief on cross-appeal, we will
refer to their arguments, collectively, as Walsh’s.
                                                   18 

No. 1-15-3501


conjunction with the entire record, including the pleadings and issues, and construed in

accordance therewith. Fieldcrest Builders, Inc., 311 Ill. App. 3d at 605.

¶ 29   In this case, a careful reading of the trial court’s Judgment Order and oral

pronouncements reveals no ambiguity. The judge expressly stated that “judgment” was entered

for LB Steel on Counts I, II, and V of its Third Amended Complaint in case number 05 CH

2675; Counts I, II and IV of its Counterclaim in case number 07 L 3886; and its Counterclaim

for the funds that Cal Testing deposited with the clerk of the circuit court in case number 07 L

3886. Although Walsh maintains that the judgments entered in LB Steel’s favor could

inconvenience its efforts to enforce the judgment entered in its own favor, such circumstances do

not establish that the Judgment Order was unclear or that the trial court intended its words to

convey something other than their plain meaning. See Garcia v. Gutierrez, 331 Ill. App. 3d 127,

129 (2002) (recognizing that “[a]n order is to be construed in a reasonable manner that gives

effect to the apparent intention of the trial court”). Consequently, we reject Walsh’s contention

that, contrary to the plain language of the Judgment Order, the trial court did not enter judgment

in LB Steel’s favor on its breach of contract claim in Count II of its Third Amended Complaint

and Count I of its Counterclaim.

¶ 30   Walsh contends, however, that the trial court erred in entering judgment in favor of LB

Steel on its breach of contract claim against it and Carlo Steel in case numbers 05 CH 2675 and

07 L 3886 because Carlo Steel had the right to withhold funds from LB Steel due to the defective

welds. LB Steel, in response, maintains that Carlo Steel committed the first material breach of

contract by withholding payment prior to the discovery of the defective support column welds

that were discovered in November 2005.




                                                19 

No. 1-15-3501


¶ 31   A material breach of contract constitutes the “failure to do an important or substantial

undertaking set forth in a contract.” Mayfair Construction Co. v. Waveland Associates Phase I

Ltd. Partnership, 249 Ill. App. 3d 188, 202-03 (1993). Whether a material breach of contract has

been committed is a question of fact. Mohanty v. St. John Heart Clinic, S.C., 225 Ill. 2d 52, 72

(2006). As such, the trial court’s determination will not be disturbed on appeal unless it is against

the manifest weight of the evidence. Id. A judgment is against the manifest weight of the

evidence only “if the opposite conclusion is clearly evident or if the finding itself is

unreasonable, arbitrary, or not based on the evidence presented.” Best v. Best, 223 Ill. 2d 342,

350 (2006).

¶ 32   We begin our analysis with the relevant contractual language. The Subcontract between

Walsh and Carlo Steel for the construction of the steel canopy stated that, if Carlo Steel commits

a “material breach” of the Subcontract, Walsh may “withhold payment” from Carlo Steel

“pending corrective action.” In turn, the Sub-Subcontract between Carlo Steel and LB Steel for

the manufacturing of the canopy and support columns provided that Carlo Steel assumed toward

LB Steel the same “rights” and “redress” that, under the Subcontract, Walsh assumed towards

Carlo Steel, and further, that Carlo Steel could withhold payment form LB Steel based on LB

Steel’s failure to “correct rejected, defective, or nonconforming *** work.” Taking these terms

together, the Sub-Subcontract permitted Carlo Steel to withhold payment from LB Steel in the

event that LB Steel committed a material breach of contract as contemplated by the Subcontract

between Carlo Steel and Walsh.

¶ 33   The trial evidence established that, in December 2004, the City discovered cracks in the

welding of the canopy and determined that some of those welds were performed by LB Steel.

Subsequently, the City withheld payment from Walsh, Walsh withheld payment from Carlo



                                                 20 

No. 1-15-3501


Steel, and Carlo Steel withheld payment from LB Steel. Although the City’s investigation did not

initially fault LB Steel for the defective welding in the canopy, in November 2005 additional

defects were found in LB Steel’s welding for the support columns that it had delivered to the

project site between December 2003 and March 2004. Those defects encompassed 13 types of

welds on each of the 35 columns, some of which had cracks that rendered them “totally

ineffective,” contained “only a fraction” of the required volume, or failed to connect one part of a

column to another. As established at trial, certain of those defects were “critical for the safety of

the whole canopy” and prompted a remediation plan that involved temporary shoring around the

canopy and the repair or retrofitting of the defective welds.

¶ 34   As noted, the trial court entered judgment in favor of Walsh on its claim for breach of

contract by LB Steel. Implicit in the trial court’s ruling is the determination that the “defective

welds” performed by LB Steel constituted a material breach of the Sub-Subcontract. The

evidence established that LB Steel’s defective welding caused it to be in material breach of the

Sub-Subcontract no later than March 2004, when it delivered the affected support columns, and

it remained in material breach when Carlo Steel began withholding payment in December 2004

and when the City discovered defects in LB Steel’s welding for the steel support columns it

manufactured. It is apparent, therefore, that LB Steel committed the first material breach of

contract and, to the extent that Carlo Steel withheld payment, such withholding was contractually

permitted and did not constitute a breach on its part. LB Steel, therefore, was not entitled to

recover on its claim for breach of contract. See Dubey v. Public Storage, Inc., 395 Ill. App. 3d

342, 361-62 (2009) (“a party who materially breaches a contract cannot take advantage of the

terms of the contract which benefit him, nor can he recover damages from the other party to the

contract”). Consequently, the trial court’s order entering judgment in favor of LB Steel and



                                                 21 

No. 1-15-3501


against Carlo Steel and its indemnitor, Walsh, on LB Steel’s claims for breach of contract in

Count II of its Third Amended Complaint in case number 05 CH 2675 and Count I of its

Counterclaim in case number 07 L 3886 is against the manifest weight of the evidence and,

therefore, must be reversed.

¶ 35   In view of the foregoing, we find that the trial court also erred by entering judgment in

favor of LB Steel and against Travelers on LB Steel’s public construction bond claim raised in

Count V of LB Steel’s Third Amended Complaint in case number 05 CH 2675 and Count IV of

its Counterclaim in case number 07 L 3886. Suit on a public construction bond can be brought if

it could be maintained against the principal. Village of Rosemont v. Lentin Lumber Co., 144 Ill.

App. 3d 651, 668 (1986). Here, LB Steel could properly raise a claim for breach of contract

against Walsh as Carlo Steel’s indemnitor and against Travelers as Walsh’s surety. Travelers

would be liable to the same degree as Walsh. Id. (“As a general rule, the liability of a surety is

measured by the liability of its principal.”). However, for reasons we have explained, the trial

court erred in entering judgment in favor of LB Steel on its claim for breach of contract against

Walsh. As such, the judgment in favor of LB Steel and against Travelers on LB Steel’s public

construction bond claim must also be reversed.

¶ 36   LB Steel argues, however, that even if it breached the Sub-Subcontract, it is still entitled

to recover under a theory of substantial performance because the defective welds, in aggregate,

constituted only 1000 feet of the 39 miles of total welding.

¶ 37   “Under the doctrine of substantial performance, a contractor may recover where there has

been substantial performance of a contract even though there may be some omissions and defects

in the contract’s performance, as measured by the strict terms of the contract.” National

Wrecking Co. v. Midwest Terminal Corp., 234 Ill. App. 3d 750, 761 (1992). Substantial



                                                 22 

No. 1-15-3501


performance is the “honest and faithful performance of the contract in its material and substantial

parts, with no willful departure from, or omission of, the essential elements of the contract.”

(Internal quotation marks omitted.) Doornbos Heating & Air Conditioning, Inc. v. James D.

Schlenker, M.D., S.C., 403 Ill. App. 3d 468, 483 (2010). Whether a party to a contract rendered

substantial performance is a question of fact, and the trial court’s determination of that issue will

not be disturbed unless it is against the manifest weight of the evidence. W.E. Erickson

Construction, Inc. v. Congress-Kenilworth Corp., 115 Ill. 2d 119, 127 (1986).

¶ 38   At the outset, Walsh maintains that the doctrine of substantial performance is

inapplicable in the present case because the Sub-Subcontract permitted Carlo Steel to withhold

payment to LB Steel “as may be reasonably necessary to protect Carlo Steel from loss or damage

caused by” LB Steel’s failure to “correct rejected, defective, or nonconforming *** work.” We

agree. By its plain language, the Sub-Subcontract permitted Carlo Steel to withhold payment,

irrespective of whether the work was also substantial. However, for reasons that we have

explained, the manifest weight of the evidence showed that LB Steel materially breached the

Sub-Subcontract and, as such, failed to render substantial performance under it. See Mayfair

Construction Co., 249 Ill. App. 3d at 202-03 (a material breach of contract includes the failure to

perform a “substantial undertaking set forth in [the] contract”). As the trial evidence showed, the

majority of the welds that were found to be defective did not require remediation, but the welds

that required remediation included those that were “critical for the safety of the whole canopy.”

Because the defective welds constituted a material breach of contract, the fact that they

represented just a portion of the total welds that LB Steel performed does not show that the LB

Steel’s breach of contract was unsubstantial. Doornbos Heating & Air Conditioning, Inc. 403 Ill.




                                                 23 

No. 1-15-3501


App. 3d at 483. As such, LB Steel’s claim for breach of contract against Carlo Steel and its

indemnitor, Walsh, based on substantial performance fails.

¶ 39      LB Steel also contends that it may recover under a theory of quantum meruit. 8 When a

builder renders less than substantial performance, its measure of recovery under a theory of

quantum meruit is “reasonable compensation for value received by the [non-breaching party]

over and above the injury suffered by the builder’s breach.” Brewer v. Custom Builders Corp.,

42 Ill. App. 3d 668, 673 (1976). The party seeking recovery has the burden to “introduce some

evidence specific enough to prove the reasonable value of the benefit *** allegedly received” by

the other party. Bernstein & Grazian, P.C. v. Grazian & Volpe, P.C., 402 Ill. App. 3d 961, 979

(2010).

¶ 40      In this case, LB Steel introduced no evidence at trial to establish the value that Walsh

allegedly received from its partial performance under the Sub-Subcontract. However, the record

shows that before the trial court entered the Judgment Order, the parties agreed that Walsh and

Carlo Steel had retained a total of $4,771,688 due to LB Steel under the Sub-Subcontract

following the discovery of cracks in the welding. Counsel for Walsh submitted that, although

Walsh was entitled “to withhold that payment under the contract because of the defective work,”

LB Steel “would be entitled to reduce” the judgment entered against it by that sum if Walsh were

to be “made whole.” The trial court, as noted, entered judgment in favor of Walsh for $27.5

million on Count I of its Second Amended Third-Party Complaint for breach of contract by LB

Steel, and for the reasons we have explained, we have reversed the judgment entered in favor of

LB Steel on its breach of contract claim against Walsh and Carlo Steel. It follows that the


          8
           Walsh argues that LB Steel waived quantum meruit as a theory of recovery by raising it for the
first time in its reply brief. See Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017) . Because LB Steel’s argument
responds to an issue that Walsh fixed in its own brief on cross-appeal, LB Steel’s reply brief essentially
doubled as its response brief and, as such, we will consider its argument on the merits.
                                                     24 

No. 1-15-3501


$4,771,688 which Walsh retained under the Sub-Subcontract constitutes “value received ***

over and above the injury” that it sustained due to LB Steel’s breach of contract (Brewer, 42 Ill.

App. 3d 673); that sum, which is liquidated and admitted by Walsh, constitutes LB Steel’s

measure of recovery under a theory of quantum meruit. Therefore, we reverse the trial court’s

judgment in favor of Walsh and against LB Steel on LB Steel’s claims for quantum meruit raised

in Count III of its Third Amended Complaint in case number 05 CH 2675 and Count III of its

Counterclaim in case number 07 L 3886. Pursuant to our authority under Supreme Court Rule

366(a)(5) (eff. Feb. 1, 1994), we enter judgment in LB Steel’s favor against Walsh and Carlo

Steel for $4,771,688 on those two counts.

¶ 41   Walsh next argues that the trial court erred by entering judgment in LB Steel’s favor on

its claim for a lien against public funds raised in Count I of its Third Amended Complaint in case

number 05 CH 2675 and Count II of its Counterclaim in case number 07 L 3886, as LB Steel

was not entitled to enforce its lien due to its own breach of contract.

¶ 42   The Mechanics Lien Act (770 ILCS 60/1 et seq. (West 2004)) affords certain protections

to contractors who contribute labor or materials to a construction project by allowing them a lien

on the subject property. LaSalle Bank N.A. v. Cypress Creek 1, LP, 242 Ill. 2d 231, 237 (2011).

Relevant here, the statute provides that subcontractors who render work for a contractor

operating under a contract with a government entity “shall have a lien for the value thereof on

the money, bonds, or warrants due or to become due the contractor.” 770 ILCS 60/23(b) (West

2004). In general, “the contractor must completely perform the contract to enforce its lien for the

value of what has been done.” Fieldcrest Builders, Inc., 311 Ill. App. 3d at 609. This court has

recognized, however, that “[n]otwithstanding the general rule, a contractor still can enforce a

mechanic’s lien by proving that he substantially performed the contract in a workmanlike



                                                 25 

No. 1-15-3501


manner.” Id. at 610. For reasons we have explained, the manifest weight of the evidence

demonstrated that LB Steel did not substantially perform under the Sub-Subcontract. To the

contrary, while the defective welds may have constituted just a portion of the total work

performed by LB Steel on the Project, those defects represented significant failures in the

performance that was required of it under the Sub-Subcontract. As such, LB Steel was not

entitled to enforce its mechanics lien, and the trial court’s order entering judgment in its favor on

its mechanics lien claim in Count I of its Third Amended Complaint in case number 05 CH 2675

and Count II of its Counterclaim in case number 07 L 3886 is, therefore, reversed.

¶ 43   Next, we turn to the issue of setoff. As an initial matter we find that, having determined

that the trial court erred by entering judgment in favor of LB Steel on its breach of contract,

public construction bond, and mechanics lien claims, its orders imposing setoffs based on those

judgments must be reversed. Consequently, the only remaining setoff for our consideration

involves LB Steel’s judgment for the $1,812,696 deposited with the court by Cal Testing. As to

that issue, LB Steel contends that the trial court erred by setting-off the judgments that were

entered in its favor on its claim for breach of contract by Cal Testing against the judgment

entered in Walsh’s favor, as different parties and res were involved in each judgment. We agree.

¶ 44   Section 12-176 of the Code (735 ILCS 5/12-176 (West 2014)) states that “[j]udgments

between the same parties may be set off, one against another” pursuant to section 12-177 of the

Code. Section 12-177 of the Code (735 ILCS 5/12-176 (West 2014)) provides that a judgment in

favor of one party may be applied “as far as it will extend, to the satisfaction” of a judgment

against that same party, “and the balance due on the larger judgment may be collected and paid

in the same manner as if there had been no set-off.” Thus, taken together, sections 12-176 and

12-177 of the Code direct that “judgments between the same parties may be set off against each



                                                 26 

No. 1-15-3501


other, so that the larger judgment is reduced by the amount of the lesser judgment.” Adam Martin

Construction Co. v. Brandon Partnership, 135 Ill. App. 3d 324, 327 (1985). Under Illinois law,

“[t]he burden of proving an enforceable right of setoff rests with the party asserting the right” (In

re Clark Retail Enterprises, Inc., 308 B.R. 869, 895 (Bankr. N.D. Ill. 2004)), and the amount of

the setoff must be certain and ascertainable (Bank of Chicago-Garfield Ridge v. Park National

Bank, 237 Ill. App. 3d 1085, 1091 (1992)).

¶ 45   Pursuant to section 12-178 of the Code (735 ILCS 5/12-178 (West 2014)), setoff is not

available when (1) “the creditor in one of the judgments is not in the same capacity and trust as

the debtor in the other;” (2) “the sum due on the first judgment was lawfully and in good faith

assigned to another person, before the creditor in the second judgment became entitled to the

sum due thereon;” (3) “there are several creditors in one judgment, and the sum due on the other

is due from a part of them only;” (4) or “there are several debtors in one judgment, and the sum

due on the other is due to a part of them only.” Additionally, setoff is unavailable for that portion

of a judgment “due to the attorney in that action for his or her fees and disbursements therein.”

735 ILCS 5/12-178(5) (West 2014).

¶ 46   Applying these principles in the present case, we find that the trial court erred in setting-

off LB Steel’s judgment for the funds deposited by Cal Testing against the judgment entered in

Walsh’s favor. In contravention of section 12-178(1) of the Code, there was no mutuality as to

the parties involved in the judgments at issue. 735 ILCS 5/12-178 (West 2014); see also Brown

v. Farkas, 158 Ill. App. 3d 772, 780-81 (1986) (denying setoff due to lack mutuality between the

parties to the judgments). The trial court’s order setting-off LB Steel’s judgment for breach of

contract against Cal Testing is, therefore, reversed, as is its order releasing to Walsh the sum

deposited by Cal Testing.



                                                 27 

No. 1-15-3501


¶ 47   Because we find that each of the setoffs imposed by the trial court must be reversed, we

need not reach LB Steel’s additional contention that setoff was improper due to the notice of

attorneys’ lien filed by its trial counsel, Conway & Mrowiec, and the lien alleged by MB

Financial. However, as we have entered judgment in favor of LB Steel and against Carlo Steel

and Walsh on LB Steel’s quantum meruit claims, we remand the cause to the trial court for a

hearing on whether or to what extent the judgment in favor of LB Steel on its quantum meruit

claims should be offset against the judgment in favor of Walsh on its breach of contract claim. In

so holding, we express no opinion on the merits of this issue.

¶ 48   LB Steel next contends that the trial court erred in failing to reduce Walsh’s judgment by

the $8 million it received under the Zurich policy. The following background is relevant for

understanding the arguments that LB Steel raises in support of its assignment of error.

¶ 49   The Zurich policy states that it covers claims arising from (1) “an actual or alleged

negligent act, error or omission with respect to the rendering of or failure to render ‘Professional

Services’ by [Walsh] or any entity for which [Walsh] is legally responsible,” or (2) “a negligent

act, error or omission of the ‘Design Professional’ in the rendering of or failure to render

‘Professional Services.’ ” Professional services are defined as services that Walsh or a design

professional is “qualified to perform for others in their capacity as an architect, engineer,

landscape architect, land surveyor or planner, construction manager, [or] LEED accredited

professional, interior designer/space planner, or as specifically described by endorsement to this

policy.” A design professional, in turn, is defined as a person or entity “professionally qualified

to perform ‘Professional Services’ either itself or through the services of a subcontractor or

subconsultant at any tier.” The Zurich policy excludes “the cost to repair or replace faulty

workmanship in any construction[ ] *** or manufacturing process performed or provided by



                                                28 

No. 1-15-3501


[Walsh] or anyone for whom [Walsh] is legally responsible.” The Zurich policy also excludes

“materials” and “workmanship which is not in accordance with the drawings and specifications

with respect to any construction, *** or manufacturing process.”

¶ 50   At trial, Walsh proffered the testimony of one of its senior managers, Dan Wierec, who

testified that Walsh’s claim under the Zurich policy was premised on design errors by the City’s

architects and that no portion of the insurance payment related to defective steel fabrication.

Wierec testified in reference to Walsh’s “Job Cost Report,” which it tendered to LB Steel after

the close of discovery. The Job Cost Report is a document summarizing Walsh’s financial

involvement in the Project. The section of the Job Cost Report related to LB Steel’s work

includes a line-item for the $8 million payment under the Zurich policy.

¶ 51   Following Wierec’s testimony, the trial court reopened discovery to permit the discovery

depositions of Walsh Vice President of Risk Management, Patrick O’Connor, and a Zurich

employee, Michael Parsons. O’Connor testified that the Zurich policy does not cover errors or

omissions by the architecture firm that designed the Project “[t]o the extent that they work for”

the City. Parsons testified that the $8 million payment from Zurich to Walsh was for

“[s]ettlement of any and all issues between Walsh and Zurich on the claim,” with “no

allocation.” Neither O’Connor nor Parsons testified at trial, nor does the record show that their

discovery depositions were entered into evidence; however, LB Steel attached excerpts from

both depositions to a brief it filed in the trial court, wherein it argued that Wierec’s testimony

“should be barred” because it was contradicted by O’Connor’s and Parson’s statements.

¶ 52   Based on the foregoing, LB Steel contends that the trial court’s failure to reduce Walsh’s

judgment by the $8 million insurance payment constituted “a misconstruction of the plain terms”

of the Zurich policy, which, according to LB Steel, establish that the insurance payment was for



                                               29 

No. 1-15-3501


damages attributed to it by Walsh. Additionally, LB Steel contends that the trial court made “an

erroneous finding of fact” where the Job Cost Report proved that Walsh “credit[ed] LB Steel”

with the Zurich policy payment.

¶ 53   Initially, we reject the notion that the proper interpretation of the Zurich policy turns on

what inferences, if any, may be derived from the Job Cost Report. The construction of contracts,

including insurance policies, presents questions of law rather than factual determinations; our

review is, therefore, de novo. Pekin Insurance Co. v. Wilson, 237 Ill. 2d 446, 455 (2010). In

construing an insurance policy, our primary objective “is to ascertain and give effect to the

intentions of the parties as expressed by the language of the policy.” Valley Forge Insurance Co.

v. Swiderski Electronics, Inc., 223 Ill. 2d 352, 362 (2006). In doing so, we interpret the policy as

a whole and, if possible, give effect to every provision. Id. A court may consider extrinsic

material “only where the policy’s language is ambiguous,” and, if the language is unambiguous,

the policy generally “will be applied as written.” Sharp v. Trans Union LLC, 364 Ill. App. 3d 64,

71-72 (2006).

¶ 54   Applying these principles in the present case, we observe that the Zurich policy, by its

plain language, covers claims arising out of negligent acts, errors, or omissions of design

professionals for whom Walsh is legally responsible. Also by its plain language, the Zurich

policy excludes coverage for claims involving faulty or noncompliant workmanship in

“construction,” “manufacturing,” or “materials.” Nothing in the record suggests that LB Steel is

a design professional for purposes of the Zurich policy. To the contrary, LB Steel was a steel

fabricator that manufactured steel supports for use in the Project. The claims arising from LB

Steel’s defective welding related to construction, manufacturing, and materials. Based on the

relevant provisions of the Zurich policy, these claims were expressly excluded from coverage.



                                                30 

No. 1-15-3501


¶ 55   LB Steel argues, however, that evidence adduced at trial established that it retained R.I.

Johnson, a design professional, to “provide calculations for the redesigned welds” as the Project

progressed, and that the Zurich policy extends coverage for the errors or omissions of design

professionals working for LB Steel. This assertion is unsupported by the terms of the Zurich

policy which, contrary to LB Steel’s assertion, does not “provide*** coverage” for any and all

entities “working for Walsh or one of Walsh’s subcontractors.” Rather, the policy covers

negligent acts, errors, and omissions by design professional retained by Walsh or an entity for

which Walsh “is legally responsible.” LB Steel has made no showing that Walsh was legally

responsible for the work of a design professional retained by LB Steel. Therefore, we find that

the trial court did not err in failing to reduce Walsh’s judgment by the $8 million it received

under the Zurich policy.

¶ 56   To the extent LB Steel contends that the trial court erred by refusing to bar Wierec’s

testimony, we find that the issue has been forfeited. Although LB Steel alleges that it was

“prejudic[ed]” by Walsh’s late disclosure of the Job Cost Report, it neither develops this

contention nor supports it with citations to authority. See Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1,

2017); Ramos v. Kewanee Hospital, 2013 IL App (3d) 120001, ¶ 37 (“failure to properly develop

an argument and support it with citation to relevant authority results in forfeiture of that

argument”).

¶ 57   LB Steel also argues that the $27.5 million judgment entered in favor of Walsh must be

reduced by whatever payment Walsh is entitled to receive under its insurance policy with St.

Paul (St. Paul policy). As of the filing of this opinion, the St. Paul policy is the subject of

litigation in the United States District Court for the Northern District of Illinois, Eastern Division

(case number 15 CV 10324), which has been stayed pending resolution of the present appeal. LB



                                                 31 

No. 1-15-3501


Steel has identified nothing in the record showing that the St. Paul policy was before the trial

court, nor identified a copy of the St. Paul policy in the record on appeal. The issue is, therefore,

forfeited. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984) (an appellant must produce a

sufficiently complete record to support a claim of error; any doubts arising from the record’s

inadequacy are resolved against the appellant).

¶ 58    As a final matter, we observe that, although LB Steel’s trial brief stated that it proceeded

on, inter alia, its claim for unjust enrichment against Carlo Steel and Walsh raised in Count VI

of its Third Amended Complaint in case number 05 CH 2675 and Count V of its Counterclaim in

case number 07 L 3886, the trial court ruled upon the former count but not the latter. It appears,

therefore, that Count V of LB Steel’s Counterclaim in case 07 L 3886 is still pending before the

trial court.

¶ 59    In summary: (1) the judgment entered in favor of Walsh and against LB Steel for $27.5

million on Count I for breach of contract from Walsh’s Second Amended Third-Party Complaint

is affirmed; (2) the judgment entered in favor of LB Steel and against Walsh on Count IV for

fraud from Walsh’s Second Amended Third-Party Complaint is affirmed; (3) the $6.5 million

judgment entered in favor of LB Steel and against Carlo Steel and Walsh on LB Steel’s claim for

breach of contract raised in Count II of its Third Amended Complaint and Count I of its

Counterclaim is reversed; (4) the $6.5 million judgment entered in favor of LB Steel and the City

for the use and benefit of LB Steel and against Travelers on LB Steel’s public construction bond

claim raised in Count V of its Third Amended Complaint and Count IV of its Counterclaim is

reversed; (6) the $1,554,654 judgment entered in favor of LB Steel and against Walsh on LB

Steel’s claim for a lien against public funds raised in Count I of its Third Amended Complaint

and Count II of its Counterclaim is reversed; (7) the judgment entered in favor of LB Steel for



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the $1,812,696 deposited with the clerk of the circuit court by Cal Testing, raised in Count VI of

LB Steel’s Counterclaim, its counterclaim for the interpleaded funds, and its Second Amended

Complaint against Cal Testing, is affirmed; (8) the trial court’s order releasing the $1,812,696 to

Walsh is reversed; (9) the judgment entered in favor of Walsh and against LB Steel on LB

Steel’s claim for quantum meruit raised in Count III of its Third Amended Complaint and Count

III of its Counterclaim is reversed, and judgment is entered in favor of LB Steel and against

Walsh and Carlo Steel for $4,771,688 on those counts; (10) the judgment entered in favor of

Walsh and Carlo Steel and against LB Steel on LB Steel’s claim for unjust enrichment raised in

Count VI of its Third Amended Complaint is affirmed; and (11) each setoff imposed by the trial

court is reversed. Carlo Steel’s appeal is dismissed for lack of jurisdiction, and the cause is

remanded for further proceedings.

¶ 60   Dismissed in part; affirmed in part; reversed in part; judgment entered; and remanded.




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