Signaling the end of 13-year lawsuit, Nixon Peabody represents Bourbon Marble in recovery of damages and fees



May 12, 2020

Media Relations Manager
Jaszver Bauzon
jbauzon@nixonpeabody.com
212-224-7602

Chicago, IL. Nixon Peabody successfully represented Bourbon Marble, Inc., Chicago’s premier stone and tile installer, in recovering more than $4.3 million in damages and litigation fees and costs in a breach of contract action against Pepper Construction Company (Pepper).

The lawsuit, which spanned 13 years, arose from Pepper’s refusal to pay Bourbon Marble for labor and materials that Bourbon Marble supplied to the Palmolive Tower Condominium redevelopment project in downtown Chicago.

“We’re proud to have helped Bourbon Marble cross the finish line in this 13-year-old dispute. We will stand by our client as long as it takes and go the extra mile to get the outcome we know our clients deserve,” said Ethan Trull from Nixon Peabody.

Pepper, the general contractor for the luxury condominium conversion project, hired Bourbon Marble as a subcontractor to install stone and tile. Bourbon Marble was obstructed in its ability to complete work on the project as a result of project-wide delays and excessive change orders. In May 2007, Pepper, citing its own disputes with the property owner, terminated its involvement with the project and ordered Bourbon Marble off the job before Bourbon Marble could complete its work.

For the past 13 years, Bourbon Marble has been litigating against Pepper to recover damages resulting from the work stoppage and contract termination. This dispute has been the subject of an arbitration, two trials, and two appeals.

On July 31, 2019, the Honorable Patrick Sherlock of the Circuit Court of Cook County entered a judgment in favor of Bourbon Marble and against Pepper, holding that Bourbon Marble was entitled to payment for materials and labor that it supplied to the project for which it had not been paid, including pre-judgment accrued interest on those amounts. The court also awarded damages to Bourbon Marble and against Pepper for unjust enrichment.

On May 12, 2020, following substantial briefing, Judge Sherlock awarded an additional $3.658 million for attorneys’ fees and costs incurred over the last thirteen years—nearly 90% of the amount sought by Bourbon Marble. Judge Sherlock based this substantial award on his determination that Bourbon Marble was the prevailing party under the parties’ fee-shifting agreement, and his findings that Bourbon Marble’s trial victories were both “substantial” and “significant,” that Bourbon Marble prevailed at every stage of the litigation, and that “Pepper failed to prevail on any significant issue.”

Keith Edeus, also from Nixon Peabody, remarked, “We usually represent large companies and institutional clients, so it was especially gratifying to help a smaller, family-owned local business go toe to toe with a major construction giant, and prevail in the end.”

Nixon Peabody’s legal team that advised Bourbon Marble was led by Complex Commercial Disputes partner Ethan Trull and counsel Keith Edeus, and included attorneys Edward Washington, Elizabeth Zamora Meraz, Jenna Fagerman, Krystina Jonsson, and Henry Caldwell.

The case is Bourbon Marble, Inc., counter-plaintiff v. Pepper Construction Company, et al., counter-defendants, No. 07-CH-14994 (Circuit Court of Cook County).

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