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Showing posts from February, 2010

Arbitration and Illinois Mechanics Lien Act Section 34 Demands - A Choice for Owners

The Second District Appellate Court of Illinois recently held that an owner by filing a demand under Section 34 of the Mechanics Lien Act (the Act) can be deemed to have waived a contractual right to compel arbitration.  The case is Illinois Concrete-I.C.I, Inc. v. Storefitters, Inc, No. 2-09-0854 (2nd Dist. 2010).  In Storefitters, the plaintiff contractor filed a mechanics lien claim alleging that the defendants had failed to pay it for its work.  The Defendants then served notice on the plaintiff pursuant to Section 34 of the Act, requiring the contractor to file suit to commence an action to enforce the lien within 30 days, or else forfeit the lien claim (the "Section 34 Demand").  The contractor filed suit as required, at which point the defendants filed a motion to compel arbitration pursuant to a mandatory arbitration clause in the parties' contract (it appears from the opinion that the contract language actually called for mediation followed by arbitration).  The…

Agreements to Arbitrate - What If the Designated Arbitrator or Forum Goes Out Of Business?

This question came up recently as I was reviewing a construction contract.  The contract, as is common in the construction industry, contained an agreement to submit any disputes to binding arbitration, and specified the organization to manage the arbitration.  The problem was that by the time the dispute arose the designated arbitration organization was no longer in business.  What now?  This issue was addressed in the recent Illinois case Carr v. Gateway, Inc, No. 5-07-0711 (5th Dist. 2009).

Carr is a class action case in which the plaintiffs alleged that Gateway and Intel Corp. had violated consumer protection laws in Illinois and elsewhere in the U.S. by engaging in deceptive advertising regarding the capabilities of various computer processors.    Gateway moved to dismiss the case or alternatively to stay the proceedings and compel arbitration pursuant to an arbitration agreement included when the Carrs (the named plaintiffs seeking to represent the class) purchased their compute…

The Illinois Home Repair and Remodeling Act - Where Do We Go From Here?

This is the ninth and final part in a series of posts on the Illinois Home Repair and Remodeling Act (HRRA).  We have now discussed the law and its interpretation in each of the five Illinois Appellate Districts.  The key question at issue is this - does the HRRA act as a "shield" for the homeowner to prevent a contractor from collecting payment for work completed if the contractor did not comply with the HRRA?  Three of the five appellate districts (the First, Third, and Fourth) have held that the HRRA does shield the homeowner from at least some claims by a non-compliant contractor.  The Second and Fifth Districts have not disagreed.  But the appellate courts have disagreed as to what extent the homeowner is shielded.  The Illinois Supreme Court (IL SC) is scheduled to hear an appeal in at least one HRRA case later this year, which may result in a clearer, statewide interpretation of the HRRA.

A bill (SB 2540) has also been introduced at the Illinois Senate to amend the H…

The Illinois Home Repair and Remodeling Act - The 3rd District

This is part eight in a series of posts on the Illinois Home Repair and Remodeling Act (HRRA), and the final post looking at the law in each of the Illinois appellate districts.  The previous posts:

1) Introduction
2) Statute
3) Illinois Supreme Court opinion
4) The 5th District
5) The 4th District
6) The 1st District
7)  The 2nd District

Once again, here's the map of the Illinois Appellate Districts.  The Third District extends across the north central part of the state, and includes Will County, Kankakee County, Peoria County, and Rock Island County, among others.  I saved the Third District for last in this series because this district has issued the last two HRRA appellate opinions, both in January 2010.  The Third District also was the first district to issue an HRRA opinion, so I'll start there.

In the 2005 case of Central Illinois Electrical Services, LLC v. Slepian,1 the Third District became the first appellate court in Illinois to consider the HRRA.  In Slepian the co…

The Illinois Home Repair and Remodeling Act - The 2nd District

We're up to part seven in a series of posts on the Illinois Home Repair and Remodeling Act (HRRA).  Here are some quick links to the previous posts for reference:

1) Introduction
2) Statute
3) Illinois Supreme Court opinion
4) The 5th District
5) The 4th District
6) The 1st District

Next we look at the Second District.  Here's the map of the Illinois Appellate Districts.  The Second District is the northernmost district in Illinois, extending from Lake County to Jo Daviess and Carol counties.  The court meets in Elgin in Kane County.

The Second District has issued two opinions involving the HRRA.  We have already discussed one of these cases - MD Electrical Contractors, Inc. v. Abrams, which is the only HRRA case to date to have been heard by the Illinois Supreme Court.1  The other Second District HRRA opinion was published in September 2009, Artisan Design Build, Inc. v. Bilstrom.2

In Artisan, the following facts were alleged by the plaintiff contractor.  The contractor and…

The Illinois Home Repair and Remodeling Act - The 1st District

This is part six in a series of posts on the Illinois Home Repair and Remodeling Act (HRRA), and the third post in the series looking at the rulings of each of the appellate district courts.  After starting with the fifth and fourth districts, I'm now going to jump to the First District and then proceed to the second and third districts in the next few days.  Why?  Because of the importance of the First District's August 2009 ruling in K. Miller Construction Company, Inc. v. McGinnis.1  McGinnis is the only HRRA case to come out of the First District Appellate Court (specifically, the First Division), and the McGinnis court disagreed with the Fourth District's decision in Smith v. Bogard.2

Again, here's a map of the Illinois Appellate Districts.  The First District is the smallest district geographically, but for good reason -- it "only" covers Cook County.  In 2008 the First District reported a total pending caseload of 5,738.  That's more than the othe…

Illinois Home Repair and Remodeling Act - the 4th District

This is part five in a series of posts on the Illinois Home Repair and Remodeling Act (HRRA).  The first three parts were 1) the introduction, 2) the statute itself, 3) statewide law.  The fourth part kicked off a district by district analysis of the law, starting with the Fifth Appellate District.  With this post we move to the Fourth District.

Here's a map of the Illinois Appellate Districts.  The Fourth District cuts across the center of the state, from east to west, and includes Springfield, Champaign/Urbana, and Bloomington/Normal.  The Fourth District Appellate Court has ruled on three HRRA cases to-date--two at the end of 2009 and one in 2007.  The 2007 case, Smith v. Bogard,1 was the second Illinois appellate case interpreting the HRRA.  The Bogard opinion is an important one because it is the first case in which an Illinois appellate court explicitly held that a contractor, by not complying with the HRRA, had lost its right to recover payment for its work (the 2005 Third …

The Illinois Home Repair and Remodeling Act - The 5th District

Previously in this series IintroducedtheIllinois Home Repair and Remodeling Act(HRRA),summarized the statute, and noted what the Illinois Supreme Court (IL SC) has done to interpret the law statewide.  At this point, Illinois Appellate Courts disagree on what the law means.  So the next five posts in this series will evaluate the HRRA law in each appellate district, starting with the Fifth District.  There are five appellate districts in Illinois, as shown inthis map.  The Fifth District is the southernmost district in the state, and the appellate court meets in Mt. Vernon.
A note onprecedent- Illinois Supreme Court decisions and legal interpretations are binding throughout the state.  Appellate Court decisions and legal interpretations are binding on trial courts throughout the state, unless there is a conflict among the appellate court districts.  In that event, an individual circuit (trial) court is bound by the decision in the most recent decision of the appellate court for its own…

Illinois Home Repair and Remodeling Act - What Do We Know For Sure?

So far in this series I've introduced you to the Illinois Home Repair and Remodeling Act (HRRA) and we've discussed the statute itself.  I've also mentioned that Illinois Appellate Courts disagree as to the interpretation of the HRRA.  I will break that down, appellate district by appellate district, in upcoming posts.  Before we get to that step, however, it is worthwhile to take one last look at the HRRA statewide and pose the question - "what do we know for sure?"


The answer?  Well, we know the statute is the law everywhere in Illinois, but that only takes us so far when faced with appellate disagreement as to what the law means.  In addition to the HRRA itself, we also know that statewide the HRRA means what the Illinois Supreme Court (the IL SC) says it means.  So far the IL SC has only issued one opinion intrepreting the HRRA - MD Electrical Contractors, Inc. v. Abrams.1  The IL SC has also granted leave to appeal in one other recent case,2 and may well agre…

Illinois Home Repair and Remodeling Act - the Statute

When researching the law, any good lawyer will tell you to always "read the statute."  That is wise advise in the realm of construction law, and certainly applies to the Home Repair and Remodeling Act (HRRA) (don't even get me started on the Illinois Mechanics Lien Act, we'll get to that in future posts).  So before we get into the various recent court interpretations, let's look at the HRRA itself - 815 ILCS 513/1 et. seq.

What's the Point?  Section 5.  
The HRRA was intended to "increase consumer confidence, reduce the likelihood of disputes, and promote fair and honest practices" by improving communications and fostering accurate representations between home repair and remodeling contractors and consumers.  Insert sarcastic comment here.  Seriously, I think it is fair to say that the HRRA is not living up to these aspirations due to the varied appellate court interpretations, but hopefully the Illinois Supreme Court will help clear that up in 2010…

Illinois Home Repair and Remodeling Act - Why is it Important for Contractors and Homeowners?

I wrote an article for the Northern Illinois Home Builders Association newsletter "Northern Lights" this month (not yet available online) on the Illinois Home Repair and Remodeling Act (HRRA) and the flurry of recent court decisions involving the HRRA.  The HRRA was enacted in 2000 and had very few cases litigated to the appellate level - until last year. In the past six months there has been on average an appellate opinion interpreting the HRRA per month, and the Illinois appellate courts do not all agree on the interpretation of the Act.  In an attempt to clarify these murky waters, in the next few weeks I will be writing a series of posts on the HRRA and its interpretation in each of the five Illinois appellate districts.

I am not alone in writing on this topic.  Before proceeding further with my own comments, I would like to acknowledge and recommend the following sources from my colleagues and fellow Illinois construction law attorneys.  Michael Huseman has written ext…

April Deadline Fast Approaching for EPA-Required Lead Paint Remediation Certification

April 22, 2010.  Why is this date important?  If you are a home repair or remodeling contractor, as of April 22 you must be certified as having completed an EPA-accredited training program prior to performing any renovation, repair, or painting (RRP) in a home built before 1978, or in any child-occupied facility (typically child care facilities and schools).  This requirement is part of EPA's RRP regulations, which actually first became law in March 2008.  The RRP rules already require remodeling contractors working on pre-1978 homes to give homeowners a pamphlet entitled "Renovate Right" prior to starting work, and to keep a copy of a receipt signed by the homeowner confirming that you gave it to them.

Penalties for non-compliance with the RRP rule include civil and criminal penalties, up to $25,000 per violation per day and one year's imprisonment, or both.  Lead-based paint is assumed to be present at renovations covered by the regulation (pre-1978 houses and chi…

2nd District: Snow Plowing Contractor, Condo Association and Manager NOT Immune for Slip and Fall Accident on Driveway

In a January 27, 2010 opinion the Second District Appellate Court of Illinois held that the immunity granted to associations, building owners, and their agents under the Snow and Ice Removal Act (the Act) (745 ILCS 75/1 et. seq) for negligent removal of snow or ice on SIDEWALKS does NOT make them immune or negligent snow or ice removal on DRIVEWAYS.

In this case the snow plowing contractor apparently plowed  single, narrow path up the middle of the  plaintiff's driveway to the garage, such that snow was mounded on each side of the path and also in front of the garage, and allegedly creating a sheer packed ice surface in area plowed.  As a result, the plaintiff could not drive his car into the garage, and instead parked on the street and walked up the plowed path to inspect the snow in front of his garage.  He slipped and fell on the plowed driveway and sustained right distal tibia and fibula fractures.

The condominium unit owner then sued the association, the management company…