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Construction Contract Ambiguity: Court Considers Expert Testimony To Clarify Contract Terms

Written on July 31, 2015 by

A construction site injury provides the setting for the First District’s recent application of Illinois contract interpretation rules to the question of when and how contracting parties’ prior course of dealing can inform the court’s analysis of an ambiguous written agreement.

In Gomez v. Bovis Lend Lease, 2013 IL App (1st) 130568, the plaintiff plumbing subcontractor was injured when he fell through a floor gap known in the trade as an “infill” while working on the construction of the 102-story Trump Tower in Chicago.  He sued the project manager and general contractor who in turn, filed a third-party complaint against the concrete forms subcontractor for breach of a written concrete flooring contract.

The flooring contract required the subcontractor to provide “designs, drawings and technical support” for the concrete forming systems. The parties (the general contractor and the concrete subcontractor) had worked together several times in the past.  In these prior projects, the subcontractor never provided any infill design services or technical support to the general contractor.  The trial court granted the subcontractor’s motion for summary judgment on the basis that the subcontractor wasn’t obligated to provide support for the infill areas.

Held: Affirmed

In siding with the subcontractor, the First District applied several key contract interpretation and enforceability principles:

–  The court must give effect to the parties’ intentions when interpreting a contract;

– The best indication of the parties’ intent is the plain meaning of the contract’s language which must be interpreted in light of the contract as a whole;

 – A contract is ambiguous where it’s subject to more than one reasonable interpretation;

 – If a contract’s ambiguous, extrinsic evidence may be used to interpret it;

 – If the contract is unambiguous, extrinsic evidence may not be used to interpret it;

–  Mere disagreement over contract terms doesn’t equate to ambiguity;

– If a contract contains an integration clause, a court may not use extrinsic evidence to interpret the contract;

– But if the contract’s ambiguous, the integration clause will not preclude consideration of extrinsic evidence;

Gomez, ¶¶ 13-14, 25-26.

The Court found the subject contract ambiguous.  While the contract was detailed in its delineation of the subcontractor’s design, drawing, calculation and technical support requirements, it was silent on what if any obligations the subcontractor had for an infill area, which was the location of the plaintiff’s injury.  The court considered extrinsic evidence including expert affidavit testimony on the parties’ previous projects to determine the scope of the subcontractor’s obligations.

The subcontractor’s summary judgment evidence showed that in the parties’ prior 20 or so projects, neither the general contractor nor the project manager ever asked the subcontractor to provide design or support for infill areas.  Because of this, the Court held that the parties’ past dealings and their course of performance on the Trump Tower project conclusively showed that the concrete subcontractor had no contractual responsibility for the infills.  The Court affirmed summary judgment for the subcontractor on the general contractor’s contribution claim.  Gomez, ¶¶18-19, 30.

Take-away: Gomez presents a good summary of some fundamental and prevalent Illinois contract interpretation principles.  The case specifies that where a contract is ambiguous, a court will consider evidence – namely, expert testimony – of the contracting parties’ prior dealings as well as their course of performance on the same project in order to give content to an unclear contract term.

Opening Confessed Judgments in Illinois – Some Quick-Hits

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The two key rules that govern challenging  a confessed judgment in Illinois are Supreme Court Rule 276 and  Code Section 2-1301 (735 ILCS 5/2-1301).  The latter provides that “any person for a debt bona fide due may confess judgment by himself or herself or attorney duly authorized, without process” and that the “application to confess judgment shall be made in the county in which the note or obligation was executed or in the county in which one or more of the defendants reside or in any county in which is located any property, real or personal, owned by any one or more of the defendants.”  735 ILCS 5/2-1301(c). Confession of judgment provisions in consumer transactions are void.  A “consumer transaction” is a sale, lease, assignment, loan, or other disposition of an item of goods, services, or intangibles where the primary purpose is for personal, family, or household use.  Id. Rule 276 provides that a motion to open a judgment by confession (“JBC”) shall be supported by (1) affidavit in the manner provided by Rule 191 for summary judgments, and be accompanied by a (2) verified answer the defendant proposes to file. Rule 276 states that if the motion to open and supporting affidavit disclose a prima facie defense on the merits to all or part of plaintiff’s claim, the court shall set the motion for hearing. The plaintiff (the party opposing your motion to open the JBC) may file counter-affidavits. Rule 276 continues: “If, at the hearing upon the motion, it appears that the defendant [the moving party] has a defense on the merits to the whole or a part of the plaintiff’s [the party that entered the JBC] claim and that he has been diligent in presenting his motion to open the judgment, the court shall sustain the motion either as to the whole of the judgment or as to any part thereof as to which a good defense has been shown, and the case shall thereafter proceed to trial upon the complaint, answer, and any further pleadings which are required or permitted”.  Ill. Sup. Ct. R. 276. The defendant (or party opening a confessed judgment) can also assert counterclaims.  SCR 276.  Even if the moving party fails to establish a defense, he can still proceed on a counterclaim if the court finds that the moving party pled facts to support a counterclaim. The burden on a party moving to open a JBC is lighter than on a summary judgment or  Section 2-619 motion to dismiss.  In fact, all the trial court does is determine whether the moving party’s motion and affidavits disclose a prima facie defense.  Kim v. Kim, 247 Ill.App.3d 910, 913-14 (2nd Dist. 1993). On a motion to open a JBC, the court doesn’t look into disputed facts.  Instead, the court accepts as true all facts asserted by the moving party in his affidavits. While a plaintiff (or party contesting the motion to open) may file counter-affidavits in opposition to a motion to open, the trial court may not try the merits of the case on the affidavits or counter-affidavits because this would encroach on the right to trial by jury. A motion to open a confessed judgment is addressed to the sound discretion of the trial court and will not be overturned on review absent an abuse of discretion. Logistical note: In Cook County (IL), confession of judgment motions are heard in Room 2503 of the Daley Center, the post-judgment Law Division room. Take-aways: Rule 276 provides clear and simple requirements for a motion to open a JBC.  The moving party must attach a supporting affidavit and a proposed responsive pleading (which is verified).  The movant must also show meritorious defense and diligence in bringing the motion (similar to Section 2-1401 standards). Once the JBC is opened, it proceeds like any other civil lawsuit, with motion practice, oral and written discovery and ultimately a trial.  I have to stress again that opening a JBC shouldn’t be a cause for too much (premature) celebration.  All it means is you can now defend a suit on the merits.  I say this because I have seen multiple instances where a defendant successfully opened a JBC, acted like he won the case (and taunted me too!), only to lose on a 2-619 motion or summary judgment motion a very short time later.

Stored Communications Act Claim Survives Summary Judgment In Social Media Account Hijacking Case

Written on July 30, 2015 by

Maremont v. Fredman, 2014 WL 812401 (N.D.Ill. 2014) examines an employee’s claims under the Stored Communications Act (18 U.S.C. § 2701)(the “SCA”) where the employer accessed the employee’s social media accounts     that she used for both personal and business purposes.

The Court found that plaintiff submitted evidence to raise triable fact questions on each element of the Complaint’s SCA count. 

The SCA aims to deter computer hacking and gives a private right of action to someone whose private electronic information is intentionally breached. 

The SCA plaintiff must establish that the defendant either (a) intentionally accessed the plaintiff’s private computer communication or (b) intentionally exceeded authorized access and obtained, altered or prevented authorized access to plaintiff’s private communications. *6.

For their part, the Defendants argued that Plaintiff voluntarily provided her Twitter and Facebook password information so that Defendants could continue marketing their company from plaintiff’s pages. 

Plaintiff disputed this: she claimed that she kept her Twitter and Facebook passwords in a locked electronic folder on Defendants’ server.  This fact dispute led the court to deny summary judgment on the SCA claim.

Another disputed fact question concerned plaintiff’s damages.  The SCA provides for both actual damages and minimum statutory damages of $1,000.  The case law is in flux as to whether actual damages are required before a plaintiff can recover the statutory minimum damages.  The Court looked to other jurisdictions to find that an SCA plaintiff  does not have to first prove actual damages (e.g. medical bills, lost wages, pain/suffering, etc.) before she can recover statutory damages.

But the Court still found plaintiff raised a disputed and triable fact question on actual damages.  Plaintiff, her husband and her father all testified to plaintiff’s acute mental anguish in the wake of Defendants’ unauthorized Tweeting and Facebooking barrage.  Under Federal Rule of Evidence 701 – witness observations of the Plaintiff’s mental distress was competent “lay opinion testimony”, based on the witnesses’ personal observations.  *7.

Take-aways: Clearly a pro-employee ruling; at least on the SCA claim.  The plaintiff not only stored her computer information on her employer’s computer server, but several witnesses for defendants also claimed that plaintiff willingly gave out her account passwords so that defendants could use the accounts as a marketing platform. 

Still, the Court found that plaintiff’s privacy and commercial interest (the Court found that plaintiff could enhance her reputation in the design community via social media) in her Twitter and Facebook accounts trumped the employers’ right to access those accounts. 

BMW Dealership Defeats Fraud Suit On Statute of Limitations Grounds

Written on July 29, 2015 by

Occasionally, I’ll have a case that appears to be governed by two or more conflicting statutes of limitations.  For example, one statute will give a plaintiff four years to file suit while an apparently equally applicable one compresses the time to sue to two years.  As plaintiff, I usually (not always) argue for the longer limitations period to apply, while as defendant, I want the shortened time span (so I can move to dismiss the too-late complaint).  

In Belsky v. Fields Imports, Inc., 2013 WL 5819232 (N.D.Ill. 2013), the Northern District methodically analyzes which of two seemingly applicable (and conflicting) limitations periods (is it 10 years or 4 years?) applies to a breach of contract suit involving a defective motor vehicle.


Plaintiff sued a car dealership and warranty service administrator for breach of various written agreements generated in connection with plaintiff’s purchase of a BMW.  Plaintiff bought the  car in 2005 and bought the service contract – which provided for repair and replacement of specified car parts – in 2009.  Plaintiff alleged that in 2012 she noticed that the car had a defective engine bolt.  When the defendants failed to provide warranty coverage for the bolt problem, plaintiff sued under state law breach of contract theories.  Defendants’ filed separate Rule 12(b)(6) motions to dismiss plaintiff’s complaint.  The court granted the motion and dismissed all counts of plaintiff’s complaint with prejudice.

Q: Why?

A: Plaintiff’s breach of contract claims against the dealership failed for two reasons: (1) the claims were time-barred; and (2) plaintiff failed to allege which part of the sales contract the dealer breached.  The court held that the four-year limitations period set forth in Uniform Commercial Code (“UCC”) Section 2-725 (810 ILCS 5/2-725) governed the plaintiff’s sales contract count. 

The UCC applies to “sales” transactions involving “goods” and Section 2-725 simply provides that “an action for breach of any contract for sale must be commenced within 4 years after the cause of action accrued“.  Belsky, *3, 810 ILCS 5/2-725(1).   There is also no “discovery rule”: the four year time limit applies regardless of whether the plaintiff lacked knowledge of the breach.  810 ILCS 5/2-725(2). 

Plaintiff argued that Illinois’ ten-year limitation period for written contract applied.  See 735 ILCS 5/13-206.  But the Court sided with defendants and applied the shorter four-year limitations period.  It held that the BMW, a car, clearly met the UCC’s definition of “goods” (a “thing” that was “moveable” at contract inception) and involved a “sale” (passing of title from seller to buyer for a price).  *3 (UCC Section 2-105(1)(goods definition); UCC Section 2-106(1)(sale def.). 

In addition, Code Section 13-206 (the ten-year statute for written contracts) expressly exempts claims under UCC Section 2-725 (the four-year rule) from its scope.  Section 13-206’s lead-in provides “except as provided in Section 2-725 of the Uniform Commercial Code…”.   Applying the four-year limitation, the Court held that the plaintiff’s breach of contract claims were three years too late and dismissed the case.  *3.

In dismissing the plaintiff’s service contract claims, the Court relied on agency law.  It held that the dealer entered into the contract on behalf of a disclosed principal (the warranty administrator).  Black letter agency rules dictate that an agent (here, the dealer) of a disclosed principal (the administrator) isn’t liable on contracts entered into for its principal.  *7.   The Court also dismissed the plaintiff’s service contract claim against the administrator because like the sales contract, the service contract also specifically excluded engine bolt defects from its coverage.  *9-10.

Take-aways: Where two conflicting limitations periods potentially control, the one that more specifically matches the facts will govern.  A contract for the sale of a “good” (like a car) will trigger the UCC’s four-year time span rather than the ten-year rule for written contracts. 

Also, a contractual disclaimer, if easy to read and find, will be upheld.  

“Side Letter Agreement” Doesn’t Change Unequivocal Loan Terms Where Not Signed By Borrower: The (Ruthless?) Illinois Credit Agreements Act

Written on July 28, 2015 by

The Illinois Credit Agreements Act, 815 ILCS 160/1, et seq. (the “ICAA”) and its requirement that credit agreements be in writing and signed by both creditor and debtor, recently doomed a borrower’s counterclaim in a multi-million dollar loan default case.

The plaintiff in Contractors Lien Services, Inc. v. The Kedzie Project, LLC, 2015 IL App (1st) 130617-U, sued to foreclose on a commercial real estate loan and sued various guarantors along with the corporate borrower.

The borrower counterclaimed, arguing that a “side letter agreement” (“SLA”) signed by an officer of the lender established the parties’ intent for the lender to release additional funds to the borrower – funds the borrower claims would have gotten it current or “in balance” under the loan. The trial court disagreed and entered a $14M-plus judgment for the lender plaintiff.  The corporate borrower and two guarantors appealed.

Held: Affirmed


The ICAA provides that a debtor cannot maintain an action based on a “credit agreement” unless it’s (1) in writing, (2) expresses an agreement or commitment to lend money or extend credit or (2)(a) delay or forbear repayment of money and (3) is signed by the creditor and the debtor. 815 ILCS 160/2

An ICAA “credit agreement” expansively denotes “an agreement or commitment by a creditor to lend money or extend credit or delay or forbear repayment of money not primarily for personal, family or household purposes, and not in connection with the issuance of credit cards.”  So, the ICAA does not apply to consumer transactions.  It only governs business/commercial arrangements.

The ICAA covers and excludes claims that are premised on unwritten agreements that are even tangentially related to a credit agreement as defined by the ICAA.

The borrower argued that the court should construe the SLA with the underlying loan as a single transaction: an Illinois contract axiom provides that where two instruments are signed as part of the same transaction, they will be read and considered together as one instrument.

The court rejected this single transaction argument.  It found the SLA was separate and unrelated to the loan documents.  The SLA post-dated the loan documents as evidenced by the fact that the  SLA specifically referenced the loan.  Conversely, the loan made no mention of the SLA (since it didn’t exist when the loan documents were signed).

All these facts militated against the court finding the SLA was part-and-parcel of the underlying loan transaction.

Another key factor in the court’s analysis was the defendants admitting that the SLA post-dated the loan (and so was a separate and distinct writing).  The court viewed this as a judicial admission – defined under the law as “deliberate, clear, unequivocal statement by a party about a concrete fact within that party’s knowledge.”

Here, since the SLA was not part of the loan modification, it stood or fell on whether it met the requirements of the ICAA.  It did not since it wasn’t signed by both lender and borrower.  The ICAA dictates that both creditor and debtor sign a credit agreement.  Here, since the debtor didn’t sign the SLA (it was only signed by lender’s agent), the SLA agreement was unenforceable.  As a consequence, the lender’s summary judgment on the counterclaim was proper.


This case and others like it show that a commercially sophisticated borrower – be it a business entity or an individual – will likely be shown no mercy by a court.  This is especially true where there is no fraud, duress or unequal bargaining power underlying a given loan transaction.

Contractor’s Lien Services also illustrates in stark relief that ICAA statutory signature requirement will be enforced to the letter.  Since the borrower didn’t sign the SLA (which would have arguably cured the subject default), the borrower couldn’t rely on it and the lender’s multi-million dollar judgment was validated on appeal.

Tortious Interference With Prospective Economic Advantage – An Illinois Case Note

In Davidson v. Schneider, 2014 WL 656780 (N.D.Ill. 2014), the Court describes the quantum of proof required for a plaintiff to survive summary judgment on both the damages element of a breach of contract claim and the “reasonable expectancy” prong of a tortious interference claim. The plaintiff and defendant were competitors in the baseball vision testing business. …

Commercial Real Estate Broker’s Judgment Against Property Owner Upheld Where Owner Negotiated Deal Behind Broker’s Back

In AMA v. Kaplan Realty, Inc., 2015 IL App(1st) 143600, the court looked to the common dictionary definitions of “exclusive” and “refer” as they apply to a real estate listing agreement to find that a commercial real estate broker could recover unpaid commissions from a property owner who negotiated a property sale without the broker’s knowledge….

Land Trust Beneficial Interest is Personal Property: Corporate-Owned Real Estate Can’t Be Liened by Beneficiary Creditor

It’s easy to robotically parrot the “beneficial interest in a land trust is personal property” rule but First Clover Leaf Bank v. Bank of Edwarsville, 2014 WL 6612947 (5th Dist. 2014) actually examines the rule’s impact against the factual backdrop of a judgment creditor trying to lien a debtor’s residence. The creditor plaintiff obtained a $400,000-plus judgment…

Lawyer’s Breach of Fiduciary Duty and Constructive Trust Claim Against Ex Law Partner Barred By 5-Year Statute of Limitations

  Jimmy Connors is one of my all-time favorite tennis players and professional athletes.  Not just because he was such a fiery competitor who seemed to literally spill his blood and guts every time he took the court.  But because of his choice of racket. In an era dominated by space-age racket technologies like Kevlar, ceramics…

Hitler’s Copyright: Even Villains Can Own Copyrights

On January 30, 1939, Adolf Hitler gave a speech to the Nazi Reichstag. He told his followers, “In the course of my life I have very often been a prophet, and usually been ridiculed for it….Today I will once more be a prophet: If the international Jewish financiers in and outside of Europe should succeed…

‘Jumpman’ Lawsuit Focuses on Scope of Copyright Prosecution for Photographs

  Who knew that the most famous image of the greatest basketball player of all time was inspired by a Nureyev-like ballet move called a grand jeté? The basketball player, of course, is Michael Jordan and the image is the ubiquitous silhouette that can be seen on every pair of Air Jordan shoes. It has…

Copyright Files: Blogger’s Use of Copyrighted Photo Is ‘Transformative’ Use: Illinois Northern District Rules

‘Shuffle’ Case is Just in Time for Football Season Since football season is upon us, I thought it would be appropriate to write about one of the most amazing football films ever made. No, it is not “Knute Rockne, All American” (1940) or “Rudy” (1993). It’s not “Friday Night Lights,” “The Blind Side” (2009) or…

Copyright Files: Turtles Lawsuit about pre-1972 Recordings Shakes Up the Music Industry

  The state of music copyright law is a mess, and it’s about to get messier. The history of music copyright law is tortuous. Since musical compositions first became eligible for federal copyright in 1831, the law has developed into a snarl of different rights, different ownership, and different licensing practices, made even more complex…

Trademark Law Files: When Is Pomegranate Juice Not Pomegranate Juice?

When is Pomegranate Juice Not Pomegranate Juice? One of the most difficult foods to consume is the pomegranate. They are wonderfully healthful, filled with Vitamin C and antioxidants, but how to eat one has always been a mystery. Sure, there are dozens of YouTube videos telling us how easy it is to get those pesky…

Constructive Service and ‘Posting’ Notices Under Illinois Eviction Law

Several sections of the Illinois forcible statute (735 ILCS 5/9-101 et seq.) allow a landlord to “post” notices and process in an eviction case.  For pre-suit demands, the statute allows for posting of a landlord’s five-day notice (9-211) and a thirty-day demand for condominium unit owners (9-104.1). Once the lawsuit is filed, a landlord can serve the…

Sub-subcontractor Recovers From General Contractor Under Implied Contract/Unjust Enrichment Theory

C. Szabo Contracting v. Lorig Construction, 2014 IL App (2d) 131328’s plaintiff  sub-subcontractor (it contracted with a subcontractor) tried to use unjust enrichment to recover against a twice-removed general contractor on a highway construction job. The plaintiff installed underground pipes under a subcontract.  When the subcontractor didn’t pay, the Plaintiff sued the general contractor to recover over $200K…

Automatically Renewing Contracts: The Gift That Keeps On Giving (?)

My early experiences with automatic contract renewals weren’t warm and fuzzy ones. In the ’80s, I recall frantically signing up for the Dick Clark Columbia House “13 tapes for a dollar” offers.  The cassettes would arrive and I’d be in a state of frenzied excitement for a day or two.  But once the euphoria and novelty subsided, I…

The Illinois Wage Payment and Collection Act: Some Basics

This post provides some basics on the Illinois Wage Payment and Collection Act, 820 ILCS 115/1 et seq. (the Wage Payment Act), a powerful tool for former employees who want to get paid. The Wage Payment Act requires every employer to pay full and “final compensation” to separated employees no later than the next regularly scheduled…

Illinois Court Gives Agency Law Tutorial In Commercial Lease Fight

Three agency law issues that we regularly encounter in commercial litigation practice are (1) authority, (2) ratification and (3) a contract that doesn’t identify a valid entity. The authority question posed is whether an individual – typically a company employee or independent contractor – can bind the company by the individual’s conduct. Ratification applies where a corporate principal accepts the benefits of an…

Bad Check Laws in Illinois – Civil Liability Provisions

The civil provisions of the Illinois Deceptive Practices Act, 720 ILCS 5/17-1, govern situations where a defendant issues bad checks with intent to defraud.  Section 5/17-1(B)(d) provides: (B) General Deception. A person commits a deceptive practice when, with intent to defraud, the person does any of the following: (d) With intent to obtain control over…

Illinois Home Repair and Remodeling Act (HRRA) – Are Oral Home Improvement Contracts (Over $1,000) Enforceable?

The Illinois Home Repair and Remodeling Act, 815 ILCS 513/1 et seq. (“HRRA” or the “Act”) was enacted in January 2000 to protect consumers from unscrupulous home repair contractors.    The HRRA sections that seem to spawn the most litigation are Sections 10, 15, 15.1, 20 and 30.  These sections provide: Section 10 (815 ILCS 513/10) – “home repair and remodeling” means any improvement…

Sole Shareholder Of Dissolved Corporation Can Sue Under Nine-Year Old Contract – Eludes Five-Year ‘Survival’ Rule

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Facebook Posts Not Hearsay Where Offered To Show How Ex-Wife Presented Relationship To Others – Illinois Case Note

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Vacating a Money Judgment in Illinois: When and How to Do It

Code Sections 2-1301 and 2-1401 (735 ILCS 5/2-1301, 735 ILCS 5/2-1401) govern motions to vacate judgments in Illinois.  Section 2-1301 applies where you’re trying to vacate a final judgment within 30 days of its entry (i.e. if judgment entered on April 15, 2014, you have through May 16, 2014 to move to vacate it under 2-1301).  Section…

Oral Contracts in Illinois – Are they Enforceable?

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Contractor’s Substantial Performance Of Home Repair Work Defeats Homeowners’ Breach of Contract Suit – IL 5th Dist.

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Collecting Your Illinois (Cook County) Judgment: Now What?!

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Contractor’s Legal Malpractice Suit Can Go Forward In Case of (Alleged) Misfiled Mechanics’ Lien: IL 1st Dist.

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Illegality Defense Doesn’t Defeat HVAC Subcontractor’s Damage Claim Against General Contractor On CTA Project

It’s basic contract law that an agreement to do something criminal (example – murder, arson, selling drugs, etc.) is unenforceable against the person who doesn’t perform (example: if I fail to pay a hit man, he can’t sue me for the $).  The illegality defense also applies in the civil context where it can defeat an agreement that…

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