                                        2018 IL App (1st) 171844
                                              No. 1-17-1844
                                                                      Fourth Division
                                                                         June 7, 2018
     ______________________________________________________________________________

                                         IN THE

                             APPELLATE COURT OF ILLINOIS

                                     FIRST DISTRICT

     ______________________________________________________________________________

                                                    )
     RADIANT STAR ENTERPRISES, L.L.C.,              )   Appeal from the Circuit Court
                                                    )   of Cook County.
           Plaintiff-Appellee,                      )
                                                    )   No. 15 CH 15357
     v. 	                                           )
                                                    )   The Honorable
     METROPOLIS CONDOMINIUM ASSOCIATION,            )   Michael T. Mullen,
                                                    )   Judge Presiding.
           Defendant-Appellant.	                    )

                                                    )

     ______________________________________________________________________________

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

           Presiding Justice Burke and Justice McBride concurred in the judgment and opinion.


                                                OPINION

¶1         The instant appeal arises from cross-motions for summary judgment filed by plaintiff

        Radiant Star Enterprises, L.L.C., and defendant Metropolis Condominium Association and

        involves a single question: if a party has allegedly breached an arbitration clause with respect

        to one dispute, may that same party nevertheless demand arbitration on a different, unrelated,

        dispute? The trial court determined that it could under the language of the parties’ arbitration

        agreement, granting summary judgment in favor of plaintiff and denying defendant’s cross-

        motion for summary judgment. For the reasons that follow, we affirm the trial court’s

        judgment.
     No. 1-17-1844


¶2                                            BACKGROUND

¶3                                               I. Complaint

¶4         On October 19, 2015, plaintiff filed a complaint for declaratory judgment to enforce an

        arbitration clause, seeking a ruling that defendant was required to arbitrate a particular

        dispute between plaintiff and defendant. The complaint alleges that plaintiff and defendant

        were owners of portions of the building located at 8 West Monroe Street 1 in Chicago. The

        building was divided into three zones—the “Residential Parcel,” the “Retail Parcel,” and the

        “Office Parcel.” Plaintiff owned the Office Parcel, while defendant represented the owners of

        the Residential Parcel, which was comprised of condominium units.2 The Retail Parcel

        consisted of the first two floors of the building, the Office Parcel consisted of the third floor,

        and the Residential Parcel consisted of all floors from the fourth floor to the top of the

        building. The relationship between the respective owners was governed by a document

        entitled the “Reciprocal Easement and Operating Agreement” (REA). The complaint alleges

        that “[t]he Retail Owner and the Office Owner own their respective portions of the Building,

        but they are not members of the Defendant. Because it owns a large majority of the Building

        and controls most of the common elements and building systems, as a practical matter the

        Residential Owner, embodied in and represented by the Defendant, has more power and

        more responsibilities pursuant to the REA.” The complaint alleges that plaintiff began its

        efforts to build out the Office Parcel for its business use in January 2013 and that the dispute

        between the parties was the result of defendant’s interference with deliveries of mail,

        packages, and materials to the Office Parcel; access to the building’s utilities and systems;

        and electronic access to the building’s elevator systems.

           1
            The record reflects that the building is also known by the address of 36 South State Street.
           2
            The Retail Parcel is not at issue on appeal, and its owner is not a party to the instant litigation.
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     No. 1-17-1844


¶5         The complaint alleges that the REA required mandatory arbitration to resolve disputes

        between the parties, and on July 27, 2015, plaintiff made a formal demand for arbitration.

        However, on August 12, 2015, defendant responded, stating that it “reject[ed]” plaintiff’s

        demand for arbitration. The sole count of the complaint was for declaratory judgment and

        sought a finding that the parties were bound by the terms of the REA and that defendant was

        obligated to arbitrate the dispute.

¶6         Attached to the complaint were excerpts from the REA, including article 13, which was

        entitled “Arbitration.” Section 13.1 was entitled “Disputes Subject to Arbitration” and

        provided:

               “Each of the questions, differences, disputes, claims or controversies arising among

               or between Owners under this Agreement which shall not be resolved within forty

               five (45) days after it shall arise (or other such shorter or longer time period expressly

               provided herein), shall be submitted for arbitration (including, without limitation, any

               matter expressly made an Arbitrable Dispute or subject to arbitration under this

               ARTICLE 13 by the terms of this Agreement). Notwithstanding anything to the

               contrary herein, in no event shall any arbitration under this ARTICLE 13 result in the

               change in the respective cost sharing percentages set forth in this Agreement.”

¶7         Section 13.2 was entitled “Arbitration Procedure” and set forth the procedure for

        arbitration proceedings. Under this section, “[i]n the event of an Arbitrable Dispute, any

        Owner involved in the Arbitrable Dispute shall have the right to commence arbitration by

        written notice to the other Owners.” Within seven days of the delivery of the notice, each of

        the owners involved in the arbitration was required to appoint one attorney to represent the

        owner in connection with the dispute; the two owner attorneys then collectively appointed


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       No. 1-17-1844


          one independent attorney and the three appointed attorneys comprised the arbitration panel.

          Within 30 days of the appointment of the third attorney, the arbitration panel was required to

          render its decision regarding the dispute. Section 13.2 also provided that “Owners may not

          seek injunctive relief in the arbitration.” More importantly, section 13.2(f) provided:

                 “The decision of the Panel, and any award of the Panel, shall be final, binding upon

                 the Owners and unappealable, and judgment thereon shall be entered by any court of

                 competent jurisdiction. Failure to comply with the decision of the Panel shall be

                 deemed a default under this Agreement. Any award including payment of delinquent

                 amounts shall include interest on such delinquent accounts at the rate set forth in

                 Section 12.4.”

¶8           Also attached to the complaint was a letter dated July 27, 2015, from plaintiff to

          defendant, exercising plaintiff’s right to arbitration with respect to disputes concerning access

          to utilities, mail and package delivery, and elevator access. The letter also contained a copy

          of an airbill from FedEx, showing that the letter had been sent via overnight delivery on July

          27, 2015.

¶9                                         II. Motion to Dismiss

¶ 10         On November 16, 2015, defendant filed a motion to dismiss the complaint pursuant to

          section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West

          2014)), arguing that plaintiff had forfeited its right to rely on the REA’s arbitration provision

          because plaintiff had failed to comply with a recent arbitration award, thereby expressly

          breaching the arbitration provision. Defendant argued that “[plaintiff’s] breach constitutes a

          repudiation and default of that provision. As a result, [plaintiff] cannot enforce the arbitration




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       No. 1-17-1844


           provision of the REA to compel arbitration of a new dispute. Therefore, its complaint to

           compel arbitration should be dismissed.”

¶ 11           Defendant claimed that plaintiff and defendant had engaged in arbitration in March 2015

           with respect to disputes concerning plaintiff’s buildout of the Office Parcel and that an

           arbitration award had been entered on April 8, 2015. According to defendant, while

           defendant complied with the award, plaintiff did not. Instead, plaintiff filed a petition to

           vacate the award in federal district court and, when the district court confirmed the award,

           plaintiff filed an appeal to the Seventh Circuit Court of Appeals. When plaintiff sent a

           demand to arbitrate the new disputes, defendant advised plaintiff that plaintiff’s refusal to

           comply with the earlier arbitration award was a breach of the arbitration provision and that

           defendant would not participate in any further arbitration proceedings until plaintiff complied

           with the earlier award.

¶ 12           Attached to the motion to dismiss was a copy of an arbitration award, dated April 6,

           2015. 3 The award indicated that the panel considered four categories of potential breaches:

           (1) the sewer pipes; (2) the heating, ventilation, and air conditioning (HVAC) system; (3) the

           third-floor windows; and (4) ingress/egress. With respect to the issue of sewer pipes, the

           panel ordered that defendant was to obtain “a complete survey of all the ceiling pipes

           existing on the third floor, at [defendant’s] own expense, and to provide the same to

           [plaintiff]. Then [defendant] must pay for the cost of any necessary repairs.” With respect to

           the issue of the HVAC system, the panel found that defendant had no obligation to supply the




               3
                 The parties refer to the arbitration award throughout the litigation as being issued on April 8, as
       did the trial court below. However, the copy of the award contained in the record on appeal lists the date
       as April 6. As this is clearly the same arbitration award referenced by the parties, the slight discrepancy
       between the dates does not appear important.
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       No. 1-17-1844


          Office Parcel with an HVAC system and that the cost of improvements to the Office Parcel

          belonged exclusively to plaintiff.

¶ 13          With respect to the issue of the windows, the panel noted that the REA “is not a drafting

          masterpiece” but that, pursuant to its terms, plaintiff bore the cost of repairing and replacing

          the windows and “the evidence is undisputed that the remaining not yet replaced third floor

          windows are hazardous and must be immediately replaced.” Finally, with respect to the issue

          of ingress and egress, the panel found that defendant “failed to reasonably cooperate with

          [plaintiff] in developing an appropriate scaffolding and Traffic Plan, as required by both

          Articles 16.1(b)(viii) and 16.1(b)(ix) and Article 3.3. [Defendant] was obligated to cooperate

          pursuant to the REA as well as under the common law doctrine of good faith and fair dealing

          implied in any contract.” The panel continued: “The panel thus orders that Metropolis

          Exhibit 24 is to be executed by both parties within seven (7) calendar days, from the date of

          the entry of this Award, and will be the Traffic Plan adopted for the remainder of the

          construction of the project.” 4

¶ 14          The panel also ordered defendant to “immediately send notice to the Alderman that

          [defendant] withdraws its objections to any of [plaintiff’s] permits.” Finally, the panel

          ordered that plaintiff “must commence to immediately thereafter, construct scaffolding on

          Monroe Street and then, replace the third floor windows, to provide safety to the public, as

          well as residents of the [building] and workers and delivery persons to this building. If

          [plaintiff] fails, for any reason, to complete this replacement of the windows, [defendant]

          shall do so and shall be entitled to payment by [plaintiff] pursuant to Exhibit 7.6(cc), plus




              4
               “Metropolis Exhibit 24” is not included in the record on appeal.
                                                          6

       No. 1-17-1844


          interest accruing thereon.” As a final matter, the panel found that both parties failed to

          establish any damages and declined to enter a monetary award to either party.

¶ 15         Also attached to the motion to dismiss was a copy of an August 24, 2015, order from the

          federal district court, denying plaintiff’s petition to vacate the arbitration award and granting

          defendant’s cross-motion to confirm the award, and a September 21, 2015, notice of appeal

          to the Seventh Circuit Court of Appeals.

¶ 16         In response to the motion to dismiss, plaintiff claimed that it had complied with the

          earlier arbitration award. It claimed that it replaced the third floor windows, installed its own

          HVAC system, and bore the costs of those improvements. Plaintiff further claimed that “[i]n

          the course of the project, deliveries were made in accordance with the City-issued permits

          and the essential terms of the Traffic Management Plan were followed, although [plaintiff]

          did not formally sign off on it.” Plaintiff claimed that “[w]hether this compliance was

          sufficiently strict is beside the point, because with construction complete, the Award’s

          requirement that ‘the parties’ ‘sign and implement’ the Traffic Management Plan ‘for the

          remainder of the construction project’ became moot.” Furthermore, plaintiff claimed that

          defendant had actually failed to comply with the arbitration award because defendant had

          failed to properly repair the sewer lines, as it was required to do under the award. Finally,

          plaintiff claimed that its seeking judicial review of the arbitration award did not violate the

          REA and did not preclude further arbitrations because both Illinois and federal law permitted

          judicial review of “final and unappealable” arbitration awards. Plaintiff also claimed that any

          issues concerning the appealability of the award was nevertheless moot, because it had

          chosen to dismiss the federal appeal.




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       No. 1-17-1844


¶ 17          Attached to the response was the affidavit of Duane Varan, plaintiff’s principal, who

          averred that plaintiff complied with the arbitration award by replacing the third floor

          windows and installing its own HVAC system, both at its own expense. Varan averred that,

          with respect to the traffic management plan, “the Award required that [plaintiff] adopt the

          Traffic Management Plan ‘for the remainder of the construction project.’ [Plaintiff’s]

          construction project is now complete, and there is no longer any need for a TMP. The

          proposed TMP was designed to address situations wherein construction deliveries would

          temporarily block access to the building’s parking garage. The TMP issue has been mooted

          by the completion of [the] third floor build out.” Varan further averred that the award

          required defendant to repair the sewer piping for the building, which it had not done. Varan

          averred that “[plaintiff] has registered complaints to [defendant] that the repairs undertaken

          by [defendant] to repair the sewer lines are shoddy, and that the [defendant’s] sewer lines

          continue to leak. Despite these complaints, [defendant] has refused to repair the sewer lines,

          as ordered by the Award, at a time or times that do not interfere with [plaintiff’s] business.”

¶ 18          In its reply in support of the motion to dismiss, defendant claimed, inter alia, that

          plaintiff had not replaced the windows as plaintiff claimed but “has replaced only the glass

          window panes in the Office Parcel. [Citation.] It has not replaced any of the other dilapidated

          window components as required by the April 8th award. [Citation.] Indeed, the failing

          frames, systems, joints, and seals remain on windows throughout the Office Parcel.”

          Defendant also clarified that “[plaintiff’s] appeal to the Seventh Circuit was precluded by the

          REA and therefore a material breach. [Citation.] [Defendant] does not argue that the REA’s

          arbitration provision precludes all judicial review, as [plaintiff] suggests.” (Emphasis in

          original.)


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       No. 1-17-1844


¶ 19         On May 26, 2016, the trial court denied defendant’s motion to dismiss.

¶ 20                              III. Answer and Affirmative Defenses

¶ 21         On June 30, 2016, defendant filed its answer and affirmative defenses. Defendant raised

          three affirmative defenses. The first was for material breach and alleged that “[t]o date,

          [plaintiff] has failed to fully replace the Office Parcel Window Systems, as instructed by the

          arbitrators’ April 8th award. It has thus failed to comply with that award and is in material

          breach of the REA’s arbitration provision.” Thus, defendant alleged that plaintiff was

          “precluded from invoking the arbitration provision of the REA to compel arbitration of new

          disputes while it materially breaches that provision.” The second affirmative defense was for

          default and alleged that plaintiff had failed to comply with the arbitration award and

          “[i]nstead, [plaintiff] filed a petition to vacate the April 8th award in federal court,” where

          the arbitration award was confirmed. Defendant alleged that plaintiff “cannot enforce the

          arbitration provision of the REA now to compel arbitration of new disputes while it is in

          default.” The third affirmative defense was for estoppel and alleged that on February 19,

          2016, plaintiff filed a lawsuit in the circuit court of Cook County, in which it requested the

          court to resolve certain disputes for which it had not sought arbitration. Defendant thus

          alleged that plaintiff was “estopped from asserting that the arbitration provision of the REA

          requires arbitration of all disputes between Building Owners.”

¶ 22         On July 15, 2016, plaintiff filed an answer to defendant’s affirmative defenses, in which

          it alleged that the arbitration award required plaintiff to replace the “windows,” not the

          “window systems,” as defendant alleged. Plaintiff also alleged that it had replaced the

          windows as required by the arbitration award. Plaintiff admitted that it had filed a lawsuit in

          the circuit court of Cook County, which sought a temporary restraining order with respect to


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       No. 1-17-1844


          the issue of access to satellite TV facilities, and pointed to a provision in the REA indicating

          that owners were not permitted to seek injunctive relief in arbitration. Plaintiff further alleged

          that defendant consented to the jurisdiction of the court and that the case was resolved by the

          entry of an order negotiated between plaintiff and defendant, which occurred after the court

          had “specifically rejected [defendant’s] argument that [plaintiff] was required to seek

          arbitration.”

¶ 23                                IV. Motions for Summary Judgment

¶ 24                                        A. Plaintiff’s Motion

¶ 25          On August 3, 2016, plaintiff filed a motion for summary judgment, claiming that the

          instant dispute was arbitrable under the language of the REA, that plaintiff had

          “undisputedly” satisfied the conditions in the REA for arbitrating a dispute, and that

          defendant’s affirmative defenses “have no factual or legal merit, and they are essentially the

          same as the arguments rejected by [the trial court] in denying the Motion to Dismiss.”

¶ 26          Attached to the motion for summary judgment were a number of exhibits, including the

          report of Lyle Hill, the managing director of Keytech North America, a company that

          provided research and technical services focusing on the glass and metal industry. Hill’s

          report was in the form of a December 16, 2014, letter to Adam Zarafshani of Panache

          Development & Construction, Inc. (Panache), plaintiff’s general contractor, and provided:

                       “In follow up of our meeting yesterday at the above referenced site, I want to go

                  on record as stating that I feel the glass condition on the south elevation overlooking

                  Monroe Street is extremely hazardous. I put a thickness meter on all of the glass that I

                  could reach and the thickest of the readings that I got indicated that the glass is ¼-

                  inch thick. None of the glass was labeled as being safety glass of any type and should


                                                       10 

       No. 1-17-1844


                 one of these lites break, anyone walking below at the time could potentially be

                 seriously hurt. Minimally, a safety film should be applied to these pieces of glass as

                 soon as possible. Ideally, a new framing system with safety glass would be installed

                 providing both increased energy efficiencies as well as a much safer situation.

                       The fifth opening from the west on the south elevation (which has not been split

                 with a division bar) is of primary concern to me. This piece of glass is approximately

                 122” wide by 129” in height and is a ¼-inch piece of monolithic annealed plate glass

                 which doesn’t even come close to complying with wind load requirements as per city

                 code. While none of the glazed openings are adequately secure, this particular lite of

                 glass which is over 100 square feet truly concerns me.

                       These glazed openings are simply not safe. My recommendation is that all of

                 them be replaced with proper framing and glass that is in compliance with city code

                 and common sense safety requirements.

                       Please feel free to contact me for further discussion on this or any other matter.”

                 (Emphasis in original.)

¶ 27         Also attached to the motion for summary judgment was a complete copy of the REA,

          several provisions of which are relevant to the case at bar. Article 1 of the REA contained

          definitions, and section 1.1(ff) defined the term “façade” as follows:

                 “The exterior walls of the Residential Parcel Improvements, the Office Parcel

                 Improvements and/or the Retail Parcel Improvements, as the context may dictate,

                 from the street level up to the Building roof, consisting of the terra cotta, pre-case

                 cement materials and other facing materials, colonnades and the cornice at the top of

                 the Building covering or attached to the concrete or steel structural supports forming


                                                       11 

       No. 1-17-1844


                 the curtain wall of the Building, window frames, window systems, joints and seals,

                 but excluding (i) the Building roof and the roof structure, membrane, flashings and

                 seals over the cornice; and (ii) the structural supports for the exterior wall of the

                 Building.”

¶ 28         Article 3 of the REA concerned easements burdening the Residential Parcel and provided

          that “[a]ny disputes concerning the existence, location, nature, use and scope of any of the

          Easements granted under this ARTICLE 3 shall constitute Arbitrable Disputes.” Section 3.3

          specifically concerned the grant of easements in favor of the Office Parcel. Section 3.3(a)

          granted:

                 “Ingress and Egress. A non-exclusive easement for ingress and egress only for

                 Persons, vehicles, material and equipment in, over, on, across and through such

                 portions of the Residential Parcel as are reasonably necessary to: (i) permit the use,

                 operation and Maintenance (but only if and when such Maintenance is required or

                 permitted under this Agreement) of the Office Parcel, including, without limitation,

                 the Office Owned Facilities and those portions of the Residential Parcel containing

                 the access pathways to and from the Office Parcel and the loading dock, freight

                 elevator, Trash Room and garbage dumpster referenced in Section 3.3(d) below, or

                 (ii) perform (y) Alterations, pursuant to Article 16 hereof, and (z) restoration after

                 damage or destruction, pursuant to Article 11 hereof, or condemnation, pursuant to

                 Article 15 hereof.”

          Section 3.3(i) granted:

                 “Lobby, Elevators and Stairwells. A non-exclusive easement for the Office Owners

                 and its Permittees for the use of the elevators and stairwells located within the


                                                     12 

       No. 1-17-1844


                 Residential Parcel and for pedestrian ingress and egress over, upon, across and

                 through the lobby for the Residential Parcel to and from the Monroe Street entrance

                 to the Building from and to the Office Parcel.”

¶ 29         Article 7 of the REA concerned “Services to Other Owners.” Section 7.1 set forth

          “Services to the Office Owner by Residential Owner” and provided that:

                 “From and after the substantial completion of the Office Parcel Improvements, the

                 Residential Owner shall furnish or cause to be furnished the following services to the

                 Office Owner when, as, and if required or requested by the Office Owner:

                                                   ***

                       (i) Façade. Maintenance of the Façade constituting a portion of the Office Parcel

                 Improvements and washing of the exterior windows within the Office Parcel not

                 fewer than three (3) times annually.”

¶ 30         Article 11 of the REA concerned “Maintenance and Repair.” Section 11.1 concerned

          “Maintenance of Residential Parcel Improvements, Office Parcel Improvements and Retail

          Parcel Improvements; [and] Restoration,” and provided, in relevant part:

                 “Except as expressly provided in ARTICLE 7 hereof (and related Exhibits) relating to

                 Maintenance of certain Facilities and areas of the Residential Parcel, Retail Parcel

                 and Office Parcel, or hereinafter in this ARTICLE 11, the Residential Owner, Retail

                 Owner and Office Owner shall, at their respective sole cost and expense, maintain

                 and keep their respective Parcels and Improvements, including all Facilities located in

                 their respective Parcels and Improvements and all Owned Facilities owned by such

                 Owners, respectively, in good order and condition, comparable to other Class A ‘first

                 class’ mixed-use residential condominium projects with associated parking in


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       No. 1-17-1844


                downtown Chicago, and shall make all repairs or replacements of, in, on, under,

                within, upon or about such property, whether said repairs or replacements are to the

                interior or exterior thereof (including, without limitation, the Façade and the party

                wall (the ‘Party Wall’) located between the Property and the property located at 26-34

                South State Street located adjacent to the Property to the north), or structural or non­

                structural components thereof, or involve ordinary or extraordinary repairs or

                replacements, necessary to keep the same in Class A ‘first class’ order and condition,

                howsoever the necessity or desirability thereof may arise, and whether or not

                necessitated by wear, tear, obsolescence, defects or otherwise.”

¶ 31         Article 22 set forth a number of “General” provisions. Section 22.1 was entitled

          “Cooperation of Owners” and provided:

                “In fulfilling obligations and exercising rights under this Agreement, each Owner

                shall cooperate with the other Owners to promote the efficient operation of each

                respective portion of the Improvements and the harmonious relationship among the

                Owners and to protect the value of each Owner’s respective portion, estate or interest

                in the Land and Improvements. To that end, each Owner shall share information

                which it possesses relating to matters which are the subject of this Agreement, except

                such information as an Owner may reasonably deem confidential or privileged or

                which may be the subject of litigation or which such Owner is prohibited from

                revealing pursuant to court order. From time to time after the date hereof, each Owner

                shall furnish, execute and acknowledge, without charge (except where elsewhere

                provided herein) such other instruments, documents, materials and information as

                another Owner may reasonably request in order to confirm to such Requesting Owner


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       No. 1-17-1844


                  the benefits contemplated hereby, but only so long as any such request does not

                  restrict or abridge the benefits granted the other Owners hereunder.”

          Section 22.17 was entitled “Default Shall Not Permit Termination of Agreement; No

          Rescission Without Unanimous Consent” and provided:

                  “No default under this Agreement shall entitle any party hereto to terminate, cancel or

                  otherwise rescind this Agreement or any of the easements, terms or conditions set

                  forth herein; provided, however, that this limitation shall not affect any other rights or

                  remedies the parties hereto may have by reason of any default under this Agreement

                  or any written amendment or supplement hereto. No party hereto may rescind this

                  Agreement without the written consent of all of the Owners.”

¶ 32          On August 9, 2016, defendant filed a request for discovery in connection with plaintiff’s

          motion for summary judgment, requesting to depose Lyle Hill, plaintiff’s window

          replacement expert, and to inspect the Office Parcel to determine what components of the

          window systems had been replaced. On August 11, 2016, the trial court entered and

          continued plaintiff’s motion for summary judgment and defendant’s motion for discovery,

          but ordered inspection of the Office Parcel windows to take place within 30 days. The record

          reflects that this inspection occurred on August 24, 2016.

¶ 33                               B. Defendant’s Response/Cross-Motion

¶ 34          On March 22, 2017, defendant filed a combined cross-motion for summary judgment and

          response to plaintiff’s motion for summary judgment, 5 in which defendant claimed that

          plaintiff had forfeited its right to invoke the arbitration provision of the REA because of its


              5
                We note that defendant’s motion for summary judgment does not appear in the record on appeal;
       the record only contains a “combined memorandum in support of its motion for summary judgment and
       in opposition to plaintiff’s motion for summary judgment.”
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       No. 1-17-1844


           failure to comply with the earlier arbitration award. As a result, defendant sought “an order

           declaring that: 1) [plaintiff] has materially breached and repudiated the arbitration provision

           of the REA; 2) [plaintiff] is in default under the arbitration provision of the REA; and 3)

           [plaintiff] cannot enforce the arbitration provision of the REA now to compel [defendant] to

           arbitrate alleged new disputes.” In its memorandum, with respect to the windows, defendant

           focused on black metal “jambs” that were located on the exterior of the building and were

           “rusted and corroded.” Defendant claimed that plaintiff “has not fully replaced the Office

           Panel Window Systems, as required by the award. It has not replaced the window jambs that

           are a key component of the Office Parcel Window Systems.” Defendant also claimed that

           plaintiff never signed or implemented the traffic management plan, as required by the award,

           and impermissibly appealed the arbitration award to the Seventh Circuit.

¶ 35           Attached to defendant’s cross-motion for summary judgment were excerpts from the

           discovery deposition of Duane Varan, plaintiff’s principal, who testified that “of course”

           plaintiff replaced the windows in the Office Parcel. Varan testified that plaintiff did so

           “[v]ery soon after the arbitration. We started the process for replacing the windows

           immediately after the arbitration.” Varan admitted, however, that plaintiff never executed the

           traffic management plan.

¶ 36           Also attached to defendant’s cross-motion for summary judgment were excerpts from the

           discovery deposition of Lyle Hill, plaintiff’s window replacement expert, who testified that

           he had testified at the earlier arbitration hearing. Hill testified that a “mullion” was “part of

           the frame system,” and, looking at a photograph, 6 testified that “[t]he frame system here is

               6
                The photographs attached to defendant’s cross-motion for summary judgment appear to be poor-
       quality photocopies. The photos contain a marking that Hill placed to identify the “right jamb.” Hill does
       not appear to have made any markings when testifying that “[t]his would be considered a mullion.” The
       “right jamb” appears to be a pillar on the side of the window extending the height of the window.
                                                          16 

No. 1-17-1844


   anything that’s not a piece of glass, theoretically. So this would be a jamb. This would be

   considered a mullion.” Hill testified:

                “Typically, a mullion divides two pieces of glass.

                This is the original system. So this is actually—at one time this was probably an

           operating window. I’m guessing this was a double-hung of some type because further

           down when I looked at this there were some double-hungs. The frames you could still

           see at one time were double-hung window.

                So this would probably be looked at by most people as just a single wood window

           opening. And then this would become then the right jamb for this very large opening.

           And this piece that’s in here now in this picture was actually called a division bar.

           This would not be, for anyone from my era, called a mullion. It acts as a mullion kind

           of.”

   Hill marked the photo with a “DB” to mark the division bar, which appears to be a narrower

   vertical piece extending the height of the window. Hill further testified:

                “I’m going to put DB with an arrow to the center member of this opening and that

           would be a light weight division bar. Not a—again, there’s these little nomenclature

           things. That’s not a mullion.

                ***

                And there’s an argument that would say there are no mullions in this opening

           because these are actually solid wood jambs with a header and a sill and the openings

           have been split in half with this division bar.”

   When asked whether the jambs “are part of the window system?” Hill testified that “[t]hey

   are in this application, yes.”

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¶ 37         Also attached to the cross-motion for summary judgment were excerpts from the

          discovery deposition of Zarafshani, who testified that there had been materials delivered to

          complete the window replacement. Zarafshani identified a traffic management plan that the

          arbitrators had ordered the parties to use, but disagreed with counsel’s characterization of the

          plan as applying to more than simply addressing of scaffolding issues during the construction

          buildout. With respect to the windows, Zarafshani testified that his “layman’s interpretation”

          of the arbitration award “would be that they wanted the windows, meaning the framing, and

          the glass replaced.”

¶ 38         Also attached to the cross-motion for summary judgment was a “Declaration,” certified

          under section 1-109 of the Code (735 ILCS 5/1-109 (West 2014)), from James Erickson, a

          licensed architect and registered energy professional who was also principal and president of

          Kellenmeyer Godfryt Hart, P.C., where his responsibilities included “investigating

          performance problems in distressed and deteriorated buildings; evaluating the performance of

          curtain walls, terra cotta, and window systems in existing and newly constructed residential

          and commercial buildings; and serving as a consultant during façade and window

          replacement projects.” Erickson stated that he was familiar with the building at issue and

          “ha[d] performed numerous inspections of the exterior of that Building,” during which he

          examined the façade and window systems of various floors, including the third floor.

          Erickson further stated:

                       “6. My experience evaluating window systems has made me familiar with the

                 different components of a window system. One of the components of a window

                 system is the main window frame. The window frame consists of but is not limited to

                 the side vertical jambs, the head and sill members. Additionally, in large window


                                                      18 

        No. 1-17-1844


                  openings vertical mullions supplement the framing system. They provide structural

                  support for the window system.

                        7. The window systems on the third floor of the Building contain the members as

                  itemized above. The frame members in the third floor window systems are metal,

                  painted black, and located on the exterior of the building.

                        8. They provide structural support (i.e. wind loading), and are a key component of

                  those window systems.

                        9. The window framing members on the third floor are original to the Building.

                  They are rusted and corroded and the applied paint coating is peeling and failed. Rust

                  and corrosion can compromise the structural integrity of the jambs.”

           Erickson stated that photographs attached to his declaration were taken by a colleague on

           February 20, 2017, and “depict[ed] the current condition of the third floor window jambs.”

           The photographs are color photographs of the windows, taken from the building’s exterior,

           that depict black vertical pillars on each side of the windows, extending the height of the

           window. The pillars appear to have either rust or paint chipped from them, as they are not

           smooth black.

¶ 39	         Also attached to the cross-motion for summary judgment was the affidavit of Kim

           Wenkus, defendant’s property manager, who averred that defendant had inspected, surveyed,

           and repaired the sewer pipes located in the Office Parcel; that defendant had contacted the

           alderman’s office, requesting that the office remove the freeze placed on plaintiff’s building

           and delivery permits; and that defendant executed the traffic management plan on April 15,

           2015. Wenkus further averred that plaintiff had not returned a copy of the traffic

           management plan bearing its signature to defendant.


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       No. 1-17-1844


¶ 40                           C. Plaintiff’s Reply/Response to Cross-Motion

¶ 41         In its combined reply in support of its motion for summary judgment and response to

          defendant’s cross-motion for summary judgment, plaintiff argued that the ornamental iron

          pillars were not part of the windows and that an earlier expert on behalf of defendant had

          agreed with that assessment. Plaintiff also argued that the traffic management plan was

          intended to address closure of the alley as a result of the use of a scaffold for deliveries, and

          that the scaffolding system was never used. Finally, plaintiff argued that the law provided for

          judicial review of arbitration awards and that “judicial review” necessarily included appeals.

¶ 42         Attached to plaintiff’s reply was an e-mail chain consisting of two e-mails between

          plaintiff’s counsel and defendant’s counsel. The first, dated August 24, 2016, was from

          plaintiff’s counsel and stated:

                       “Pat, just to confirm—about half an hour ago we (you, me, Adam, Kim, Marv

                 Levin and Lyle Hill) met in the third floor space. Marv inspected the windows from

                 the inside, spoke to Lyle, and acknowledged that the entire window systems were

                 replaced, not just the panes. Marv also agreed that the decorative cast iron ‘columns’

                 on the outside, which are part of the original exterior and can’t be removed for

                 historical preservation reasons, are not part of the window systems. There is therefore

                 no dispute that in this regard, we have followed the Arbitrators’ instructions.”

          The second e-mail, in response to the first, was dated August 26, 2016, and was from

          defendant’s counsel. The e-mail stated:

                       “This email confirms that on August 24th we met in the third floor space. Marvin

                 Levine spoke to Lyle Hill about the windows. He inspected the windows from inside

                 that space. Mr. Levine noted that new aluminum window frames had been installed in


                                                       20 

       No. 1-17-1844


                 addition to the new glass windows. He also agreed that the case iron columns were

                 not part of the window system and could not be replaced.”

¶ 43                              D. Defendant’s Reply to Cross-Motion

¶ 44         In its reply in support of its cross-motion for summary judgment, defendant stated that

          Levine had not been retained as defendant’s “window expert” and so the court “should ignore

          [plaintiff’s] attempt to argue that [defendant] is somehow bound by Mr. Levine’s

          unsupported opinion.”

¶ 45                                       E. Trial Court Ruling

¶ 46         On July 13, 2017, the trial court entered an order granting plaintiff’s motion for summary

          judgment and denying defendant’s cross-motion for summary judgment. The trial court first

          found that the arbitration clause of the REA unambiguously required arbitration of the instant

          dispute and that the parties essentially conceded this fact. Additionally, the trial court found

          that defendant “ha[d] failed to plead and prove that any meritorious defenses preclude

          enforcement of the REA Arbitration Clause.” The court disagreed with defendant’s

          contention that any contract defenses could operate to invalidate the arbitration clause but

          instead found that the case law provided that only defenses that rendered a contract void from

          its inception would have such an effect, and that there was no such defense here. The court

          also pointed to the language of section 22.17 of the REA, which it found “could not be more

          clear as to the effect of a default under any provision of the REA. The remedy of rescission is

          not available to either a defaulting or non-defaulting party, and the REA may not be

          rescinded in any manner ‘without the written consent of all owners.’ ” (Emphasis in original.)

          The court found:




                                                      21 

       No. 1-17-1844


                       “Whether Plaintiff is in default of the REA related to a prior arbitration dispute is

                  irrelevant to this cause of action, as a matter of law. Defendant makes no allegations

                  that invoke a cognizable, general defense to enforcement of the Arbitration Clause.

                  The Contract expressly precludes the remedy sought by Defendant. Although

                  Defendant styles its defenses as material breach, default, and estoppel, the remedy

                  provided in holding in favor of Defendant would amount to a rescission of the

                  Arbitration Clause based upon Plaintiff’s prior conduct.”

          Accordingly, the trial court granted plaintiff’s motion for summary judgment, denied

          defendant’s cross-motion for summary judgment, and ordered the parties to submit the matter

          for arbitration under the process set forth in the REA.

¶ 47          Defendant timely filed a notice of appeal, and this appeal follows. 7

¶ 48                                             ANALYSIS

¶ 49          On appeal, defendant claims that the trial court erred in granting summary judgment in

          plaintiff’s favor because plaintiff’s failure to comply with the earlier arbitration award

          precluded plaintiff from relying on the arbitration clause with respect to new disputes. A trial

          court is permitted to grant summary judgment only “if the pleadings, depositions, and

          admissions on file, together with the affidavits, if any, show that there is no genuine issue as

          to any material fact and that the moving party is entitled to a judgment as a matter of law.”

          735 ILCS 5/2-1005(c) (West 2014). The trial court must view these documents and exhibits

          in the light most favorable to the nonmoving party. Home Insurance Co. v. Cincinnati

          Insurance Co., 213 Ill. 2d 307, 315 (2004). We review a trial court’s decision to grant a

          motion for summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance

              7
                On August 1, 2017, the trial court entered an order staying enforcement of the July 13, 2017,
       order pending appeal.
                                                        22 

       No. 1-17-1844


          Co., 154 Ill. 2d 90, 102 (1992). De novo consideration means we perform the same analysis

          that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578

          (2011).

¶ 50         “Summary judgment is a drastic measure and should only be granted if the movant’s right

          to judgment is clear and free from doubt.” Outboard Marine Corp., 154 Ill. 2d at 102.

          However, “[m]ere speculation, conjecture, or guess is insufficient to withstand summary

          judgment.” Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328 (1999). The party

          moving for summary judgment bears the initial burden of proof. Nedzvekas v. Fung, 374 Ill.

          App. 3d 618, 624 (2007). The movant may meet his burden of proof either by affirmatively

          showing that some element of the case must be resolved in his favor or by establishing “ ‘that

          there is an absence of evidence to support the nonmoving party’s case.’ ” Nedzvekas, 374 Ill.

          App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). When parties

          file cross-motions for summary judgment, as was the case here, “they agree that only a

          question of law is involved and invite the court to decide the issues based on the record.”

          Pielet v. Pielet, 2012 IL 112064, ¶ 28 (citing Allen v. Meyer, 14 Ill. 2d 284 (1958)); Ruby v.

          Ruby, 2012 IL App (1st) 103210, ¶ 13. However, the filing of cross-motions does not

          necessarily mean there is not an issue of material fact, nor does it obligate a court to render

          summary judgment. Pielet, 2012 IL 112064, ¶ 28. “ ‘The purpose of summary judgment is

          not to try an issue of fact but *** to determine whether a triable issue of fact exists.’ ”

          Schrager v. North Community Bank, 328 Ill. App. 3d 696, 708 (2002) (quoting Luu v. Kim,

          323 Ill. App. 3d 946, 952 (2001)). We may affirm on any basis appearing in the record,

          whether or not the trial court relied on that basis or its reasoning was correct. Ray Dancer,

          Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50 (1992).


                                                      23 

       No. 1-17-1844


¶ 51         In the case at bar, defendant asks us to find that a prior breach of the arbitration clause

          precludes plaintiff from later taking advantage of the arbitration clause with respect to new

          disputes. However, we agree with the trial court that defendant has identified nothing that

          would prevent enforcement of the arbitration clause in the instant case.

¶ 52         The Uniform Arbitration Act (Arbitration Act) (710 ILCS 5/1 et seq. (West 2014))

          “embodies a legislative policy favoring enforcement of agreements to arbitrate future

          disputes.” Village of Bartonville v. Lopez, 2017 IL 120643, ¶ 37. Thus, “[o]n application of a

          party showing an agreement [to arbitrate a dispute], and the opposing party’s refusal to

          arbitrate, the court shall order the parties to proceed with arbitration” or, if the opposing party

          denies the existence of an agreement to arbitrate, “the court shall proceed summarily to the

          determination of the issue so raised and shall order arbitration if found for the moving party.”

          710 ILCS 5/2(a) (West 2014). “In making that determination, a three-pronged approach is

          used: (1) if it is clear that the dispute falls within the scope of the arbitration clause or

          agreement, the court must compel arbitration; (2) if it is clear that the dispute does not fall

          within the arbitration clause or agreement, the court must deny the motion to compel; and (3)

          if it is unclear or ambiguous whether the dispute falls within the scope of the arbitration

          clause, the matter should be referred to the arbitrator to decide arbitrability.” Guarantee Trust

          Life Insurance Co. v. Platinum Supplemental Insurance, Inc., 2016 IL App (1st) 161612,

          ¶ 26 (citing Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr, 124 Ill. 2d 435, 443-50

          (1988)). “[A]t a hearing to stay a judicial proceeding and to compel arbitration, the trial court

          should concern itself solely with whether an agreement exists to arbitrate the dispute in

          question.” Board of Managers of the Courtyards at the Woodlands Condominium Ass’n v.

          IKO Chicago, Inc., 183 Ill. 2d 66, 71 (1998).


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       No. 1-17-1844


¶ 53         In the case at bar, as noted, there is no real dispute as to whether the arbitration clause

          governs the instant dispute. Instead, defendant’s argument is that plaintiff is precluded from

          seeking arbitration due to its alleged failure to comply with the prior arbitration award. Under

          the Arbitration Act, “[a] written agreement to submit any existing controversy to arbitration

          or a provision in a written contract to submit to arbitration any controversy thereafter arising

          between the parties is valid, enforceable and irrevocable save upon such grounds as exist for

          the revocation of any contract.” 710 ILCS 5/1 (West 2014). “In essence, once a contract

          containing a valid arbitration clause has been executed, the parties are irrevocably committed

          to arbitrate all disputes arising under the agreement.” Woodlands Condominium Ass’n, 183

          Ill. 2d at 74. Thus, the parties would be obligated to arbitrate the instant dispute unless there

          are “grounds as exist for the revocation of any contract.” 710 ILCS 5/1 (West 2014).

          However, defendant claims that plaintiff’s prior breach operates to invalidate the arbitration

          clause until that breach has been cured.

¶ 54         Defendant’s argument rests on the theory that what it calls the “ ‘prior breach’ doctrine”

          applies to enforcement of an otherwise valid arbitration clause. Defendant points to the

          Restatement (Second) of Contracts, which provides that “it is a condition of each party’s

          remaining duties to render performances to be exchanged under an exchange of promises that

          there be no uncured material failure by the other party to render any such performance due at

          an earlier time.” Restatement (Second) of Contracts § 237 (1981). The comment to that

          section provides that “[a] material failure of performance has *** these effects on the other

          party’s remaining duties of performance with respect to the exchange. It prevents

          performance of those duties from becoming due, at least temporarily, and it discharges those

          duties if it has not been cured during the time in which performance can occur.” Restatement


                                                       25 

       No. 1-17-1844


          (Second) of Contracts § 237 cmt. a (1981). Under defendant’s argument, if plaintiff

          “material[ly] fail[ed]” to perform by failing to comply with the prior arbitration award,

          defendant is under no duty to arbitrate future disputes until that failure has been cured. We do

          not find this argument persuasive for a number of reasons.

¶ 55         First, defendant’s argument presupposes that there has been a default under the REA.

          However, the question of whether the contract has been breached is itself an issue that must

          be decided by the arbitrator in the first instance, as the arbitration clause in the REA provides

          that “[e]ach of the questions, differences, disputes, claims or controversies arising among or

          between Owners under this Agreement which shall not be resolved within forty five (45)

          days after it shall arise *** shall be submitted for arbitration.” See Stuart-Dean Co. v. Lurie,

          69 Ill. App. 3d 844, 846 (1979) (“[w]hether the alleged breach of the agreement and the

          resulting damages are within the scope of the arbitration clause is for the arbitrator to

          decide”; otherwise, “one could avoid complying with arbitration clauses by merely alleging

          that the other party breached or repudiated the contract”); Jensen v. Quik International, 213

          Ill. 2d 119, 129 (2004) (finding that the question of whether the plaintiff was entitled to

          rescission of the agreement due to violations of statutory requirements was arbitrable under

          the arbitration clause); Garver v. Ferguson, 76 Ill. 2d 1, 10 (1979) (deferring to arbitrators’

          decision as to whether contract was properly terminated due to breach by opposing party).

¶ 56         Additionally, defendant’s argument is internally inconsistent. Defendant’s argument

          presupposes that if there was a default, it was of such magnitude that it would excuse

          defendant from performance. However, defendant also repeatedly insists that it is not arguing

          that it is entitled to revocation of the REA or arbitration clause and is not seeking such a

          revocation. But “[u]nder general contract principles, only a material breach of a contract


                                                       26 

       No. 1-17-1844


          provision by one party will justify nonperformance by the other.” William Blair & Co. v. FI

          Liquidation Corp., 358 Ill. App. 3d 324, 346 (2005); see also Mohanty v. St. John Heart

          Clinic, S.C., 225 Ill. 2d 52, 70 (2006) (“Under general contract principles, a material breach

          of a contract provision by one party may be grounds for releasing the other party from his

          contractual obligations.”). “The test of whether a breach is ‘material’ is whether it is ‘so

          substantial and fundamental as to defeat the objects of the parties in making the agreement,

          or whether the failure to perform renders performance of the rest of the contract different in

          substance from the original agreement.’ ” InsureOne Independent Insurance Agency, LLC v.

          Hallberg, 2012 IL App (1st) 092385, ¶ 43 (quoting Village of Fox Lake v. Aetna Casualty &

          Surety Co., 178 Ill. App. 3d 887, 900-01 (1989)). “ ‘The breach must be so material and

          important to justify the injured party in regarding the whole transaction at an end.’ ”

          InsureOne, 2012 IL App (1st) 092385, ¶ 43 (quoting Village of Fox Lake, 178 Ill. App. 3d at

          901). “[A]ny contract is terminable upon the occurrence of a material breach.” (Emphasis in

          original.) Jespersen v. Minnesota Mining & Manufacturing Co., 183 Ill. 2d 290, 294 (1998).

          Thus, in order for defendant’s argument to have any merit, it must be the case that an alleged

          failure to comply with a prior arbitration award is such an egregious breach of the arbitration

          agreement that no future arbitration on unrelated issues is required—i.e., the arbitration

          clause is terminated in its entirety. But defendant affirmatively states that it is not seeking to

          terminate the arbitration clause and seeks only to pause it temporarily until compliance with

          the earlier award is achieved, suggesting that defendant believes that some lesser level of

          “material breach” would suffice to temporarily excuse its performance.

¶ 57         However, defendant has pointed to no authority in which an arbitration clause has been

          interpreted in this way. Defendant broadly claims that “[t]he United States Supreme Court


                                                       27 

       No. 1-17-1844


           has ruled that a party may assert such general contract defenses to ‘avoid enforcement of an

           arbitration agreement’ ” (quoting Southland Corp. v. Keating, 465 U.S. 1, 16 n.11 (1984)).

           However, the expansive meaning defendant ascribes to this statement of the law has no basis

           in the actual language used by the Supreme Court, which is limited to contract defenses that

           would lead to revocation of a contract.

¶ 58           Like the Arbitration Act, the Federal Arbitration Act (FAA) 8 provides that a written

           arbitration agreement “shall be valid, irrevocable, and enforceable, save upon such grounds

           as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 (2012). The

           Supreme Court has explained that “the text of § 2 declares that state law may be applied ‘if

           that law arose to govern issues concerning the validity, revocability, and enforceability of

           contracts generally.’ [Citation.] Thus, generally applicable contract defenses, such as fraud,

           duress, or unconscionability, may be applied to invalidate arbitration agreements without

           contravening § 2.” (Emphasis in original.) Doctor’s Associates, Inc. v. Casarotto, 517 U.S.

           681, 686-87 (1996). This is in contrast to the situation in which a state law is specifically

           targeted toward arbitration contracts, in which case such a limitation is preempted by the

           FAA. See Doctor’s Associates, 517 U.S. at 687 (“Courts may not, however, invalidate

           arbitration agreements under state laws applicable only to arbitration provisions. [Citations.]
               8
                 “Given the common origins of the Federal and uniform statutes, courts interpreting State
       arbitration statutes patterned after the Uniform Arbitration Act look for guidance to Federal court
       decisions interpreting similar provision[s] of the Federal Arbitration Act. [Citations.] Similarly, the
       Illinois Supreme Court has stated that judicial opinions from other jurisdictions are given greater than
       usual deference in construing the Uniform Arbitration Act since the purpose of the act is to make uniform
       the laws of those States which enact it. [Citation.]” J&K Cement Construction, Inc. v. Montalbano
       Builders, Inc., 119 Ill. App. 3d 663, 668 (1983). See Garver, 76 Ill. 2d at 8 (“The Act is to be construed
       so as ‘to make uniform the law of those states which enact it.’ [Citation.] Opinions of the courts of other
       jurisdictions are therefore shown greater than usual deference.” (quoting Ill. Rev. Stat. 1975, ch. 10, ¶
       120)); see also Heider v. Knautz, 396 Ill. App. 3d 553, 559 (2009) (relying on J&K Cement in discussing
       case law from other jurisdictions); City of Des Plaines v. Metropolitan Alliance of Police, Chapter No.
       240, 2015 IL App (1st) 140957, ¶ 38 (noting that federal court decisions “can aid our interpretation of the
       Act”).


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       No. 1-17-1844


          By enacting § 2, we have several times said, Congress precluded States from singling out

          arbitration provisions for suspect status, requiring instead that such provisions be placed

          ‘upon the same footing as other contracts.’ ” (Emphasis in original.) (quoting Scherk v.

          Alberto-Culver Co., 417 U.S. 506, 511 (1974))). Thus, this statement of the law does not

          suggest that anything less than grounds for revocation of any contract can operate to

          invalidate an arbitration clause.

¶ 59         Indeed, even the case cited by defendant shows the limitations of the language relied

          upon by defendant. There, the Supreme Court noted, in the context of the FAA:

                       “We discern only two limitations on the enforceability of arbitration provisions

                 governed by the Federal Arbitration Act: they must be part of a written maritime

                 contract or a contract ‘evidencing a transaction involving commerce’ and such

                 clauses may be revoked upon ‘grounds as exist at law or in equity for the revocation

                 of any contract.’ We see nothing in the Act indicating that the broad principle of

                 enforceability is subject to any additional limitations under state law.” Southland

                 Corp., 465 U.S. at 10-11.

          In the Supreme Court’s discussion, it is thus clear that the “generally applicable contract

          defenses” referred to by the Supreme Court are defenses that would lead to the revocation of

          the contract in its entirety, such as fraud. See Southland Corp., 465 U.S. at 16 n.11 (listing

          “fraud” as a “general contract defense[ ]” that would permit a party to avoid enforcement of

          an arbitration clause). Defendant has not identified any cases in which the United States

          Supreme Court has found that a party may be relieved of its obligation to arbitrate because

          the other party has previously breached the arbitration clause, nor does defendant argue that




                                                      29 

       No. 1-17-1844


          the alleged breach of the arbitration clause in the instant case rises to the level of permitting

          revocation of the contract in its entirety.

¶ 60          Similarly, defendant’s claim that the facts of Mayfair Construction Co. v. Waveland

          Associates Phase I Ltd. Partnership, 249 Ill. App. 3d 188 (1993), “are directly analogous to

          those in this case” is equally unavailing. There, the defendant refused to participate in

          nonbinding arbitration before the parties’ architect and even threatened to fire the architect if

          he decided any disputes between the parties. Mayfair Construction, 249 Ill. App. 3d at 193­

          94. Accordingly, the plaintiff filed a declaratory judgment action, seeking a declaration of the

          rights and obligations of the parties under their contract. Mayfair Construction, 249 Ill. App.

          3d at 195. The trial court severed the claims concerning the dispute resolution procedure

          from any construction defect and delay claims, “[i]n order to facilitate resolution of the crux

          of the dispute.” Mayfair Construction, 249 Ill. App. 3d at 197. The portion of the matter

          concerning the dispute resolution procedure proceeded to a jury trial, where the jury found

          that the parties were required to submit disputes to the architect for resolution and that the

          defendant had materially breached the parties’ contract by not permitting the architect to

          make such decisions. Mayfair Construction, 249 Ill. App. 3d at 198. As a consequence, the

          trial court found, inter alia, that the defendant was barred from asserting any defenses to the

          plaintiff’s claims under the parties’ contract that were to have been initially decided by the

          architect. Mayfair Construction, 249 Ill. App. 3d at 199. The appellate court affirmed this

          decision, finding that “if a provision creating a condition precedent to litigation is shown, a

          party refusing to comply with it may be barred from pursuing claims in court.” Mayfair

          Construction, 249 Ill. App. 3d at 206. The court continued:




                                                        30 

       No. 1-17-1844


                       “There is no doubt that the construction contract in this case required submission

                 of the parties’ disputes to the architect as a condition precedent to litigating those

                 disputes. [The defendant] failed to fulfill this condition. As the foregoing makes clear,

                 such a failure can result in a complete bar to the right of a party to bring an action to

                 litigate its contractual claims. We see no reason why that party, which willingly

                 refused to abide by the contract’s dispute-resolution mechanism, should not similarly

                 lose its right to defend against claims asserted against it.” Mayfair Construction, 249

                 Ill. App. 3d at 206.

¶ 61         In the case at bar, in contrast to Mayfair Construction, there is no claim that plaintiff

          failed to seek arbitration prior to seeking resolution of its claims before the court. Thus, there

          is no “condition precedent” that plaintiff failed to satisfy. Indeed, plaintiff affirmatively

          sought arbitration, and defendant is the one preventing it. Defendant claims that plaintiff’s

          alleged failure to comply with the prior arbitration award is somehow analogous to the facts

          present in Mayfair Construction, but there is no similarity whatsoever between the two cases

          and Mayfair Construction does not stand for the proposition that an arbitration provision can

          be avoided based on an alleged previous, unrelated breach of that provision. At most,

          Mayfair Construction stands for the proposition that a party may not later raise claims in the

          circuit court that should have first been raised before an arbitrator. That situation is not

          present in the instant case and, therefore, Mayfair Construction provides no support for

          defendant’s argument.

¶ 62         This same flaw appears in the other cases cited by defendant in support of its argument—

          they all involve cases in which a party has somehow failed or defaulted with respect to the

          arbitration of particular claims and the question is whether arbitration is required on those


                                                       31 

       No. 1-17-1844


          same claims. See, e.g., Sink v. Aden Enterprises, Inc., 352 F.3d 1197, 1201 (9th Cir. 2003)

          (“a party to an arbitration agreement may not compel arbitration of claims under FAA § 4

          where a prior default in arbitration of those claims precludes that party from obtaining a stay

          of litigation pending arbitration under § 3” (emphasis added)); Brown v. Dillard’s, Inc., 430

          F.3d 1004, 1010 (9th Cir. 2005) (finding that after an employer had refused to arbitrate an

          employee’s termination, the employer could not later seek to compel arbitration of that same

          claim after the employee filed suit in federal court); Nadeau v. Equity Residential Properties

          Management Corp., 251 F. Supp. 3d 637, 641 (S.D.N.Y. 2017) (whether an employer refused

          to arbitrate an employee’s termination, the employer breached the arbitration agreement and

          could not later seek to compel arbitration after the employee filed suit in federal court). None

          of defendant’s cases involves the situation present in the instant case, namely, whether an

          alleged prior default with respect to an arbitration precludes arbitration of new claims

          unrelated to the prior default. The case that is closest factually to dealing with such a

          situation, Tri-Star Petroleum Co. v. Tipperary Corp., 107 S.W.3d 607, 613 (Tex. App. 2003),

          involves a situation in which one party’s misconduct in the arbitration process itself was held

          to constitute a material breach of the arbitration agreement; there, the Texas Court of Appeals

          found that “because material breach is a ground for revoking a contract, it should be a ground

          for revoking an arbitration agreement.” However, as noted, defendant does not argue that

          plaintiff’s alleged breach constitutes grounds for revoking the arbitration clause in its

          entirety.

¶ 63          Finally, defendant’s argument is unavailing because section 22.17 of the REA expressly

          provides that “[n]o default under this Agreement shall entitle any party hereto to terminate,

          cancel or otherwise rescind this Agreement or any of the easements, terms or conditions set


                                                      32 

No. 1-17-1844


    forth herein ***.” Thus, even if defendant was correct and the REA had been breached by

    plaintiff’s failure to comply with the prior arbitration award, such a default would not entitle

    either party to terminate or rescind the REA. As noted, the Arbitration Act provides that “[a]

    written agreement to submit any existing controversy to arbitration or a provision in a written

    contract to submit to arbitration any controversy thereafter arising between the parties is

    valid, enforceable and irrevocable save upon such grounds as exist for the revocation of any

    contract.” (Emphasis added.) 710 ILCS 5/1 (West 2014). Since the alleged default in the

    instant case is expressly not grounds for termination of the contract, there is no basis for

    finding the clause anything other than “valid, enforceable and irrevocable.” 710 ILCS 5/1

    (West 2014). Defendant points to the caveat in section 22.17 that provides that “this

    limitation shall not affect any other rights or remedies the parties hereto may have by reason

    of any default under this Agreement or any written amendment or supplement hereto” and

    argues that precluding plaintiff from engaging in arbitration until the alleged default has been

    cured is merely an “other right[ ] or remed[y]” to which defendant is entitled. However, this

    argument ignores the language of the Arbitration Act quoted above, in which it is clear that

    only grounds that permit revocation of the contract would operate to render the clause

    anything other than “valid, enforceable and irrevocable.” 9 710 ILCS 5/1 (West 2014).

    Defendant dismisses as “[n]onsense” the suggestion that it is attempting to terminate the

    arbitration provision, claiming that both the REA and arbitration provision “remain

    completely alive and in existence.” However, we agree with the trial court that, in practical

    effect, defendant’s proposed “remedy” would result in the termination of the arbitration

    clause based on plaintiff’s alleged failure to comply with the prior, unrelated, arbitration

        9
        We note, of course, that this presupposes that the contract as a whole was valid and enforceable
when it was executed. There has been no argument that the contract is invalid or unenforceable in the case
at bar.
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       No. 1-17-1844


          award. Defendant’s argument is particularly disingenuous when defendant’s response to

          plaintiff’s arguments about the traffic management plan is that “[u]nder the law, [plaintiff’s]

          persistent failure to perform until it could no longer perform did not serve to render its

          admitted breach moot but rather served to discharge completely any duty [defendant] had to

          arbitrate.” Thus, defendant both argues that the arbitration clause “remain[s] completely alive

          and in existence” while simultaneously claiming that defendant no longer had “any duty ***

          to arbitrate.”

¶ 64          As a final matter, we note that, as defendant has pointed out throughout this litigation,

          plaintiff appealed the earlier arbitration award to the federal district court, which confirmed

          the award and entered judgment on the award. Under the Arbitration Act, “[u]pon the

          granting of an order confirming, modifying or correcting an award, judgment shall be entered

          in conformity therewith and be enforced as any other judgment.” 710 ILCS 5/14 (West

          2014). Similarly, under the FAA, when a judgment is entered after an order confirming,

          modifying, or correcting an arbitration award, “[t]he judgment so entered shall have the same

          force and effect, in all respects, as, and be subject to all the provisions of law relating to, a

          judgment in an action; and it may be enforced as if it had been rendered in an action in the

          court in which it is entered.” 9 U.S.C. § 13 (2012). Thus, if defendant was concerned that

          plaintiff was not complying with a court’s judgment, the proper avenue would be to seek

          recourse with that court in order for the judgment to “be enforced as any other judgment”

          (710 ILCS 5/14 (West 2014)) instead of simply refusing to engage in arbitration until

          defendant was satisfied with plaintiff’s compliance.




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¶ 65                                          CONCLUSION

¶ 66         For the reasons set forth above, the trial court properly determined that plaintiff’s alleged

          failure to comply with the prior arbitration award did not preclude plaintiff from seeking to

          arbitrate the instant claims, which were unrelated to the prior arbitration.

¶ 67         Affirmed.




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