                                                                           Digitally signed by
                             Illinois Official Reports                     Reporter of Decisions
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                                                                           accuracy and integrity
                                                                           of this document
                                    Appellate Court                        Date: 2016.12.08
                                                                           10:17:45 -06'00'




        Dancor Construction, Inc. v. FXR Construction, Inc., 2016 IL App (2d) 150839



Appellate Court         DANCOR CONSTRUCTION, INC., Plaintiff and Counterdefendant-
Caption                 Appellant and Cross-Appellee, v. FXR Construction, Inc., and
                        DENNIS E. VITA, Defendants-Appellees and Cross-Appellants
                        (FXR Construction, Inc., Counterplaintiff).



District & No.          Second District
                        Docket No. 2-15-0839


Filed                   September 29, 2016


Decision Under          Appeal from the Circuit Court of Kane County, No. 12-L-487; the
Review                  Hon. James R. Murphy, Judge, presiding.



Judgment                Affirmed.



Counsel on              Matthew D. Robinson, of Law Office of Matthew Robinson, of
Appeal                  Geneva, for appellant.

                        Peter M. Storm, of Cooper, Storm & Piscopo, of Geneva, for
                        appellees.



Panel                   JUSTICE SPENCE delivered the judgment of the court, with opinion.
                        Presiding Justice Schostok and Justice McLaren concurred in the
                        judgment and opinion.
                                                OPINION

¶1       Plaintiff, Dancor Construction, Inc. (Dancor), brought suit against defendants, FXR
     Construction, Inc. (FXR) and its owner, Dennis E. Vita, in Kane County pursuant to the
     forum-selection clause in the parties’ contract. Dancor brought breach-of-contract and tort
     claims against defendants related to a construction project in New York. Meanwhile, in a New
     York court, FXR filed a mechanic’s lien on the property and brought suit for breach of contract
     and unjust enrichment against Dancor, among others. The New York case was later dismissed.
¶2       Defendants moved to dismiss or transfer the Kane County case, arguing in part that New
     York was the better forum for the dispute. The circuit court denied defendants’ motion, finding
     that the forum-selection clause designating Kane County was valid and enforceable.
¶3       Dancor filed amended and second amended complaints. Defendants moved to dismiss
     each, and the circuit court granted their motions in part, dismissing Dancor’s tort counts for
     injurious falsehood and slander of title related to the construction project.
¶4       FXR then moved to dismiss or transfer the case or to reconsider the circuit court’s prior
     order denying the motion to dismiss or transfer the case. FXR argued that New York law
     rendered the forum-selection clause void and unenforceable and that New York was the only
     proper forum. The circuit court agreed and dismissed the case to allow the action to be refiled
     in New York. This appeal followed. We affirm.

¶5                                         I. BACKGROUND
¶6       Dancor filed its complaint in Kane County on September 10, 2012. The complaint alleged
     as follows. Dancor was the general contractor for the construction of an AutoZone store (the
     Project) in Bronx County, New York, and it employed FXR as a subcontractor on the Project.
     The subcontract was for $169,826.61. Dancor removed FXR from the Project and brought in a
     replacement subcontractor to complete construction. After paying FXR, FXR’s replacement,
     and other subcontractors, Dancor had spent a total of $176,481.88, or about $6600 more than
     the agreed-upon contract price. FXR recorded a mechanic’s lien against the Project property
     on August 29, 2012, seeking $104,544.11.
¶7       Dancor attached the parties’ contract to the complaint. Section XXIX of the contract, titled
     “Venue and Choice of Law” (the forum-selection clause), provided that the parties agreed that
     the contract was executed in Kane County and that it would be governed by Illinois law.
     Further, it stated that “[a]ny claims, lawsuits, disputes or claims arising out of or relating to this
     agreement shall be litigated in Kane County, Illinois.”
¶8       Dancor’s three-count complaint alleged breach of contract (count I) and two torts, injurious
     falsehood (count II) and interference with prospective business advantage (count III). In count
     I, Dancor alleged that FXR failed to meet reasonable deadlines, provide sufficient manpower,
     and timely complete tasks on the Project. Consequently, Dancor removed FXR and hired
     another firm to complete the Project. In count II, Dancor alleged that defendants recorded a
     lien against the Project site for unpaid work completed. Dancor alleged that the lien’s
     statement regarding the amount unpaid ($104,544.11) was not true, that defendants made the
     statement knowing that it was false, and that they made the statement with the intent that others
     rely on it. Dancor further alleged that a reasonable person or company would be “highly



                                                   -2-
       offended” by an accusation that it failed to pay in excess of $100,000 and that defendants
       intended the publication of the lien to result in pecuniary harm to Dancor.
¶9         Shortly after Dancor filed its complaint, FXR filed its complaint in New York on October
       24, 2012, against, inter alios, Dancor, to foreclose its mechanic’s lien (the New York action).
       FXR alleged that, as a subcontractor, it had agreed to provide certain services for Dancor on
       the Project. FXR continued that it completed its performance of the contract and was owed a
       total of $171,926.61. It had received $67,382.50 and alleged that Dancor still owed
       $104,544.11. Dancor breached their contract and was unjustly enriched in the amount of
       $104,544.11 by not paying FXR the full amount owed.
¶ 10       Back in the Kane County litigation, on December 26, 2012, defendants filed a motion to
       dismiss Dancor’s complaint or transfer the case. In their motion, defendants alleged that New
       York law required that the action be brought in a New York court. Defendants further argued
       that the defendants in the New York action, aside from Dancor, did not have minimum contacts
       with Illinois sufficient to bring the case here. Finally, defendants argued that Bronx County in
       New York was the best forum to resolve the legal issues related to the Project, and under the
       doctrine of forum non conveniens, they sought that the case be transferred to New York.
¶ 11       Dancor responded by citing the forum-selection clause that designated Kane County.
       Dancor argued that both New York and Illinois public policy favor enforcement of
       forum-selection clauses in contracts and that the forum-selection clause here was reasonable
       and should be enforced.
¶ 12       The circuit court held a hearing on the motion to dismiss or transfer. Thereafter, on
       February 20, 2013, it denied the motion, finding that the forum-selection clause in the parties’
       contract was valid and that venue in Kane County was appropriate.
¶ 13       On April 26, 2013, defendants moved to dismiss counts II and III of the complaint. They
       argued that count II was based on insufficient conclusions by Dancor, not well-pled facts. They
       argued that count III, which was based on the allegations of count II, was likewise defective.
       On June 6, 2013, the circuit court granted defendants’ motion to dismiss counts II and III and
       granted Dancor leave to amend its complaint.
¶ 14       Dancor filed an amended complaint on June 18, 2013. The amended complaint again
       contained three counts: count I for breach of contract, count II for injurious falsehood, and
       count III for interference with prospective business advantage. Under count III, Dancor alleged
       that defendants claimed they were owed $104,544.11, that they knew they were not actually
       owed that amount, and that they declared they were owed that amount with intent that Dancor
       incur pecuniary harm.
¶ 15       Around this time, the New York court heard a motion to dismiss FXR’s complaint in the
       New York action. On July 18, 2013, it entered an order dismissing the complaint, explaining as
       follows:
               “Here, the Plaintiff contracted the venue for lawsuits and failed to meet its burden in
               establishing it was unreasonable, unjust, in contravention of public policy, invalid due
               to fraud or overreaching, or it is shown that a trial in the selected forum would be so
               gravely difficult that the challenging party would, for all practical purposes, be
               deprived of its day in court.”




                                                  -3-
       The New York court continued that an action to determine the obligations under the
       mechanic’s lien and to determine the appropriateness of the forum-selection clause in the
       parties’ contract had been commenced in Kane County before the New York action was filed.
¶ 16        Back in Kane County, defendants moved to dismiss Dancor’s amended complaint. On
       September 5, 2013, the circuit court dismissed count I as to Vita, dismissed count II without
       prejudice, informed Dancor that if it repled count II, it should replead it as a “slander of title”
       claim, and dismissed count III with prejudice.
¶ 17        Dancor filed a second amended complaint on November 13, 2013. The second amended
       complaint contained six counts. Counts I and II were for breach of contract against FXR and
       Vita, respectively; counts III and IV were for slander of title against FXR and Vita,
       respectively; and counts V and VI were related to mechanic’s-lien liability under New York
       law against FXR and Vita, respectively. In counts III and IV, Dancor alleged that FXR did not
       complete its contractual duties and that Dancor had to bring in a replacement subcontractor to
       complete the Project, costing Dancor $95,106. Regarding defendants’ mechanic’s lien against
       the Project property for money they claimed they were owed under the contract, Dancor
       alleged that the statement of the amount owed was false. Dancor alleged that defendants knew
       or should have known that it was false because they knew or should have known that they did
       not complete their work on the Project. Yet, Dancor alleged, defendants published the
       mechanic’s lien when they knew or should have known that the lien would result in pecuniary
       damage to Dancor. The mechanic’s lien clouded the title to $115,000 of Dancor’s funds.
¶ 18        On December 20, 2013, defendants moved to strike and dismiss the second amended
       complaint. In part, the motion argued that counts III and IV failed to state a claim for slander of
       title, because the counts failed to allege facts showing that the lien was false or malicious, that
       Dancor incurred special damages, or that the lien made any statements about real property
       owned by Dancor. Rather, defendants argued, Dancor again relied on insufficient conclusions,
       not well-pled facts.
¶ 19        On February 14, 2014, the circuit court ruled on defendants’ motion to strike and dismiss
       the second amended complaint. It denied the motion as to count I (breach of contract against
       FXR). It granted the motion with prejudice as to counts II through VI and, pursuant to Illinois
       Supreme Court Rule 304(a) (eff. Feb. 26, 2010), found no reason to delay enforcement or
       appeal of its order.
¶ 20        On March 13, 2014, Dancor moved to (1) vacate the Rule 304(a) language in the February
       14, 2014, order and (2) grant Dancor leave to file an amended complaint to incorporate its
       previously dismissed injurious-falsehood count, which it had not included in the second
       amended complaint. On the same day, the court entered an order vacating the Rule 304(a)
       language. On March 26, after argument on the issue, the court denied leave to reassert the
       injurious-falsehood count.
¶ 21        FXR answered count I of the second amended complaint on April 25, 2014. Along with its
       answer, FXR filed a counterclaim alleging that Dancor was unjustly enriched and breached
       their contract. The case proceeded to discovery, and a bench trial was eventually scheduled for
       August 26 and 27, 2015.
¶ 22        On May 15, 2015, FXR moved to dismiss or transfer the case pursuant to sections
       2-619(a)(1) and (a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(1), (a)(9) (West
       2014)). FXR argued that New York law rendered the forum-selection clause void and
       unenforceable. It also pointed out that Illinois law substantially mirrored New York law on the

                                                    -4-
       enforcement of forum-selection clauses in construction contracts. Accordingly, FXR requested
       that the circuit court transfer the case to New York or, in the alternative, dismiss the case
       without prejudice.
¶ 23        Dancor responded to the motion to dismiss or transfer by arguing, in part, that the
       enforceability of the forum-selection clause had already been decided in 2013, when the New
       York action was dismissed and the New York court held that the forum-selection clause was
       valid and enforceable. Dancor therefore argued that FXR was collaterally estopped from
       relitigating the issue of the forum-selection clause’s validity and enforceability.
¶ 24        Before the circuit court ruled on FXR’s motion to dismiss or transfer, FXR moved to
       reconsider the circuit court’s February 20, 2013, order, which had denied defendants’ first
       motion to dismiss or transfer. FXR argued that the court had erred in finding the
       forum-selection clause valid and enforceable.
¶ 25        On July 20, 2015, the circuit court entered an order addressing both FXR’s motion to
       dismiss or transfer and its motion to reconsider. The court found that, with respect to the
       original motion to dismiss or transfer, it had not been advised by either party of section 757 of
       the New York General Business Law (N.Y. Gen. Bus. Law § 757 (McKinney 2012)), which
       declares void and unenforceable any choice-of-law or forum-selection provision requiring
       application of another state’s law to a New York construction contract. It rejected Dancor’s
       argument that the New York court’s order collaterally estopped FXR’s challenge to the
       forum-selection clause, stating that the order did not have a binding effect on this or any other
       action. Rather, it reasoned, the New York court deferred to Illinois and was similarly
       uninformed of section 757. The circuit court found that section 757 applied to the contract
       between Dancor and FXR and that, consequently, the forum-selection clause was void and
       unenforceable. While it found that the clause could be severed under the terms of the contract,
       it also found that the case would be more appropriately and conveniently litigated in New
       York.
¶ 26        The circuit court acknowledged that trial was set to commence within the next 60 days1
       and that the circuit court’s local rules generally required dispositive motions to be filed no later
       than 60 days before trial. Here, both parties incurred costs preparing for trial in Illinois, and
       therefore both sides would be prejudiced by further delay. Nevertheless, the court reasoned, its
       prior order was in error because of a misapplication, or lack of citation, of applicable law, and
       the order was interlocutory and could be corrected at any time before trial. Accordingly, the
       court granted FXR’s motion to dismiss so that the case could be refiled in New York.
¶ 27        Dancor filed a timely notice of appeal on August 12, 2015, pursuant to Illinois Supreme
       Court Rule 301 (eff. Feb. 1, 1994). Defendants timely cross-appealed.




           1
            On June 18, 2015, the trial was rescheduled from August 26 and 27 to September 9 and 10, 2015.
       We note, however, that the local rule requires dispositive motions to be filed no later than 120 days
       prior to trial, not 60. 16th Judicial Cir. Ct. R. 6.06(a) (May 5, 2008). Sixty days is required for
       counterclaims, actions over, contribution claims, and third-party complaints. 16th Judicial Cir. Ct. R.
       6.06(b) (May 5, 2008).

                                                      -5-
¶ 28                                           II. ANALYSIS
¶ 29                                           A. Jurisdiction
¶ 30       Defendants assert that this court lacks jurisdiction to hear Dancor’s appeal. This court has
       an obligation to consider its jurisdiction at any time, and if jurisdiction is lacking, we must
       dismiss the appeal. Anderson Dundee 53, L.L.C. v. Terzakis, 363 Ill. App. 3d 145, 152-53
       (2005). Our obligation to consider whether we possess jurisdiction would exist even if
       defendants had not raised the issue. Little Texas, Inc. v. Buchen, 319 Ill. App. 3d 78, 81 (2001).
¶ 31       Dancor filed its notice of appeal pursuant to Rule 301, which allows appeals from final
       orders. Likewise, its statement of jurisdiction on appeal invokes Rule 301. Defendants argue
       that the circuit court’s July 20, 2015, order was not a final order because it dismissed the case
       under forum non conveniens, with leave to refile the case in New York. Defendants therefore
       contend that Dancor had to appeal pursuant to Illinois Supreme Court Rule 306(a)(2) (eff. July
       1, 2014), which provides that a party may petition for leave to appeal from an order allowing or
       denying a motion to dismiss on the grounds of forum non conveniens.
¶ 32       Contrary to defendants’ assertion, the circuit court did not dismiss the case pursuant to the
       doctrine of forum non conveniens. Rather, the circuit court granted a section 2-619 motion to
       dismiss based on an affirmative matter, that is, applicable law that rendered the
       forum-selection clause void and unenforceable and required that the case be brought in New
       York. Whether to dismiss based on a forum-selection clause—which requires consideration of
       contract principles—is a separate issue from the noncontractual considerations of forum non
       conveniens, and to permit an appeal under Rule 306(a)(2) on a forum-selection issue would
       impermissibly expand the scope of the rule by usurping the supreme court’s rulemaking
       authority. Ferguson v. Bill Berger Associates, Inc., 302 Ill. App. 3d 61, 69 (1998). Rather, a
       dismissal pursuant to a forum-selection clause is a final order for purposes of Rule 301. Fabian
       v. BGC Holdings, LP, 2014 IL App (1st) 141576, ¶¶ 12-13 (dismissal based on
       forum-selection clause, even without prejudice to refiling in another state, was a final order
       because it terminated the plaintiff’s right to bring those claims in Illinois). Accordingly, we
       have jurisdiction.

¶ 33                                 B. Dancor’s Arguments on Appeal
¶ 34        Dancor raises several issues on appeal. Those issues are (1) whether the New York court’s
       order precluded litigation of the forum-selection clause, (2) whether the circuit court erred in
       dismissing the case under forum non conveniens, (3) whether the circuit court erred in granting
       a dispositive motion less than 120 days before trial, in violation of the circuit court’s local
       rules, and (4) whether the circuit court erred in dismissing Dancor’s tort claims for injurious
       falsehood and slander of title.
¶ 35        Dancor’s first issue concerns the New York action. The New York court dismissed that
       case on July 18, 2013, in an order granting the defendants’ (including Dancor’s) motion to
       dismiss FXR’s complaint, on the basis of the forum-selection clause. In its order, the New
       York court reasoned as follows. A contractual forum-selection clause is prima facie valid and
       enforceable unless shown by the challenging party to be unreasonable, unjust, in contravention
       of public policy, or invalid due to fraud or overreach, or unless the selected forum would
       effectively deprive the challenging party of its day in court. The court cited section 41 of New
       York’s Lien Law (N.Y. Lien Law § 41 (McKinney 2012)). FXR had contracted for venue to be
       in Illinois, and it had not met its burden to show that the contract’s forum-selection clause was

                                                   -6-
       unreasonable, unjust, in contravention of public policy, or invalid due to fraud or overreach, or
       that it would be effectively deprived of its day in court.
¶ 36        Dancor argues that the New York court’s order held that the forum-selection clause was
       valid and enforceable. Dancor further argues that the New York court did not dismiss based on
       the pendency of this case and could not defer to the circuit court, which had yet to issue a final
       order on the issue of the forum-selection clause’s validity.
¶ 37        Dancor continues that the New York court’s order has preclusive effect under the doctrine
       of collateral estoppel. According to Dancor, Illinois law requires only three elements for the
       application of collateral estoppel: (1) identical issues, (2) a final judgment on the merits, and
       (3) that the party against whom estoppel is asserted was a party to the prior adjudication.
       Dancor asserts that here the parties were the same, the New York order was a final order, and
       the issue—that is, the validity and enforceability of the forum-selection clause—was the same.
       Dancor concludes that the parties are therefore bound by the New York court’s holding on the
       issue of the forum-selection clause’s validity and that FXR was collaterally estopped from
       raising the issue again in the circuit court.
¶ 38        Dancor turns to its second argument, that the circuit court erred in dismissing this case
       under the doctrine of forum non conveniens. Dancor argues as follows. FXR’s motion to
       dismiss did not contain any analysis of the public- and private-interest factors that would favor
       New York as the proper forum. Nor did the circuit court analyze these factors in its order
       granting FXR’s motion. Because no factors supported a transfer to New York, the dismissal on
       the basis of forum non conveniens was in error. Moreover, New York law holds that, where a
       litigant has “bonded over” a lien on real property, the subject of the litigation is not the
       property but rather the bond, to which the lien is now attached. See Shepherd Showcase, Inc. v.
       Pekala, 526 N.Y.S.2d 294, 294 (App. Div. 1988). Under Pekala, then, the situs of the real
       property in this case—New York—does not determine the proper forum.
¶ 39        With respect to the third argument, that the circuit court improperly granted a dispositive
       motion less than 120 days before trial, Dancor argues as follows. Local Rule 6.06 requires that
       any dispositive motion be brought no later than 120 days prior to trial. FXR violated this rule
       when it filed its motion to dismiss or transfer on May 15, 2015, and trial was set to begin on
       August 26, 2015. Local rules are meant to be followed and are not mere suggestions or
       guidelines. Rather, they have the force of statutes and are binding on courts and parties.
¶ 40        Finally, Dancor argues that the circuit court erred in dismissing its tort claims. Dancor
       argues as follows. First, it stated a claim for injurious falsehood under the Restatement
       (Second) of Torts. A defendant is liable for a false statement harmful to the pecuniary interest
       of another if the defendant either intended or knew that the publication was likely to result in
       harm and the defendant either knew that the statement was false or recklessly disregarded the
       truth. See Contract Development Corp. v. Beck, 255 Ill. App. 3d 660, 665 (1994). Here,
       Dancor alleged that the statement in the mechanic’s lien was knowingly false, alleged that
       defendants intended that the publication of the statement cause Dancor pecuniary harm, and
       alleged facts supporting these elements, including the payments that were made under the
       contract and defendants’ publication of the statement.
¶ 41        Dancor acknowledges that Illinois has not expressly adopted the tort of injurious
       falsehood. However, Dancor urges that, if necessary, this court should adopt the tort, noting
       that some legal scholars have recommended its adoption.


                                                   -7-
¶ 42        Dancor continues that, in addition to stating a claim for injurious falsehood, it stated a
       claim for slander of title. Illinois courts follow the Restatement (Second) of Torts to specify the
       elements necessary for a prima facie case of slander of title. See id. The three elements of
       slander of title are (1) a false and malicious publication (2) of words that disparage a person’s
       title to property (3) that result in special damages. Id. Dancor argues that it pled a false and
       malicious publication when it alleged that defendants’ statement that Dancor owed them
       $104,544.11 was knowingly false. Dancor also pled that defendants used words that
       disparaged its title to property. Defendants’ lien was detached from the real property and
       attached to Dancor’s bond, and Dancor was consequently forced to put up $115,000 pursuant
       to its contract with AutoZone. The lien on Dancor’s bond also clouded the title to these funds.
       Moreover, Dancor pled special damages in the sum of $115,000—the money it had to place in
       escrow to “bond over” the lien.
¶ 43        Last, Dancor argues that it stated a claim of “prima facie tort.” Dancor argues that the
       concept of “prima facie tort” provides a remedy for tort injuries that do not conveniently fit
       into a defined category. Citing English common law from the 1800s, Dancor argues that it is a
       well-established common-law principle that a cause of action will lie for maliciously giving
       false information. Dancor continues that Illinois follows the common-law prima facie tort
       doctrine, as evidenced by our supreme court’s approving citation of Aikens v. Wisconsin, 195
       U.S. 194 (1904), and statement that it is a “basic concept in the law that one who intentionally
       harms another without excuse is liable for the harm.” Knierim v. Izzo, 22 Ill. 2d 73, 83 (1961).
       Here, Dancor alleged that defendants knowingly and purposefully recorded a false lien in order
       to harm Dancor in retaliation for removing them from the Project. Accordingly, Dancor
       argues, this was enough to avoid a motion to dismiss for failure to state a cause of action in tort.
¶ 44        Defendants respond as follows. First, the circuit court acted within its discretion when it
       dismissed the case in favor of a New York forum. In particular, defendants argue that section
       757 of the New York General Business Law (N.Y. Gen. Bus. Law § 757 (McKinney 2012))
       rendered the forum-selection clause void and unenforceable. The forum-selection clause reads
       as follows:
                “The parties agree that this agreement was executed in Kane County, Illinois and shall
                be governed by the law of the State of Illinois. Any claims, lawsuits, disputes or claims
                arising out of or relating to this agreement shall be litigated in Kane County, Illinois.”
¶ 45        Defendants note that, despite the language of the forum-selection clause, the very next
       page of the contract states that the agreement was executed in Santa Rosa Beach, Florida, not
       in Kane County, Illinois. In any event, defendants argue that the clause violates section 757(1)
       of the New York General Business law, which reads as follows:
                “The following provisions of construction contracts shall be void and unenforceable:
                    1. A provision, covenant, clause or understanding in, collateral to or affecting a
                construction contract, with the exception of a contract with a material supplier, that
                makes the contract subject to the laws of another state or that requires any litigation,
                arbitration or other dispute resolution proceeding arising from the contract to be
                conducted in another state.” N.Y. Gen. Bus. Law § 757(1) (McKinney 2012).
       Defendants cite HVS, LLC v. Fortney & Weygandt, Inc., 17 N.Y.S.3d 285, 286 (Sup. Ct. 2015),
       where a New York trial court enforced section 757 to hold a forum-selection provision for
       Cuyahoga County, Ohio, void and unenforceable.


                                                    -8-
¶ 46       Defendants note that their contract with Dancor concerned construction that took place in
       New York. Therefore, defendants argue, section 757 applied and rendered the forum-selection
       clause void and unenforceable. Although the circuit court initially found the forum-selection
       clause valid, it reconsidered its order and dismissed the case on the basis that the
       forum-selection clause was void.
¶ 47       Defendants continue that Illinois law is nearly identical to New York law on the
       enforceability of forum-selection clauses in construction contracts. They cite section 10 of the
       Building and Construction Contract Act (Building Act) (815 ILCS 665/10 (West 2014)),
       which provides:
               “A provision contained in or executed in connection with a building and construction
               contract to be performed in Illinois that makes the contract subject to the laws of
               another state or that requires any litigation, arbitration, or dispute resolution to take
               place in another state is against public policy. Such a provision is void and
               unenforceable.”
       Defendants argue that section 10 of the Building Act demonstrates that Illinois law, just like
       New York law, prohibits the litigation of construction contracts outside of the state where the
       construction took place. To treat the New York law differently would be “quite anomalous and
       a violation of comity.”
¶ 48       Defendants turn from section 757’s applicability to Dancor’s reasons why the forum
       selection clause should be upheld regardless. First, defendants argue that the New York court’s
       order does not collaterally estop litigation of the forum selection-clause here. Defendants point
       to the New York court’s order, in which it stated that “the action to determine the payment
       objections under the Mechanics’ Lien and whether the forum selection in Illinois is appropriate
       was commenced prior and/or determined to [sic] the filing in New York.” They also deny that
       the New York court found the forum-selection clause valid. Instead, they argue, the court
       merely found that the forum-selection clause was not unreasonable, in contravention of public
       policy, or otherwise invalid. Defendants postulate that, had the New York court been presented
       with section 757, it would have concluded differently.
¶ 49       Defendants continue that there is no case law requiring that an Illinois court honor the
       decision of another state court dismissing a case under forum non conveniens or pursuant to a
       forum-selection clause. They argue that a court from one state lacks the power to transfer a
       case to another state’s court system. See Fennell v. Illinois Central R.R. Co., 2012 IL 113812,
       ¶ 13. Accordingly, New York could not have transferred the case to Illinois. Furthermore,
       collateral estoppel can apply only to separate and consecutive actions. Nowak v. St. Rita High
       School, 197 Ill. 2d 381, 389-90 (2001). Yet, they argue that this case is not separate from the
       New York action. Rather, the two proceedings are two stages of one action.
¶ 50       Further, defendants argue that the New York court’s order was not a final judgment on the
       merits, which is one of the necessary elements for collateral estoppel to apply. They argue that
       a dismissal based upon a forum-selection clause is not an adjudication on the merits. Further, a
       final judgment is a determination of the issue presented that ascertains and fixes absolutely the
       rights of the parties. See Hernandez v. Pritiskin, 2012 IL 113054, ¶ 47. Defendants argue that,
       simply, an order declining jurisdiction is not a final judgment. They assert that the New York
       court’s order did nothing more than decline to exercise jurisdiction, in the erroneous belief that
       the forum-selection clause was valid and enforceable. The order did not bear on whether


                                                   -9-
       Dancor was liable to FXR under FXR’s mechanic’s lien claim or determine the rights of any
       party. Thus, collateral estoppel did not apply.
¶ 51       Defendants also argue that the circuit court had discretion to grant the motion to dismiss
       less than 120 days prior to trial. Local Rule 6.06 provides that “[a]ll case or claim dispositive
       motions, other than those arising during trial, will be filed for *** setting no longer than 120
       days before the designated trial date except by leave of court upon good cause shown.” 16th
       Judicial Cir. Ct. R. 6.06(a) (May 5, 2008). Defendants argue that the rule gave the circuit court
       discretion to hear FXR’s motion to dismiss. Nevertheless, defendants also argue that the
       motion to dismiss was not really a dispositive motion—rather it was a motion to reconsider and
       transfer. The circuit court did not dismiss the case with prejudice, and therefore its decision
       was not on the merits. Defendants further argue that Dancor was not prejudiced because it had
       time to respond to FXR’s motion. Illinois courts have held that a violation of a local notice rule
       does not prejudice a party who had sufficient time to respond. See Premier Electrical
       Construction Co. v. American National Bank of Chicago, 276 Ill. App. 3d 816, 834 (1995)
       (holding that a 6-day delay between service and hearing on motion for summary judgment—as
       opposed to 10 days required by local rule—was not substantial and affirming despite the
       technical violation).
¶ 52       Defendants turn next to the application of forum non conveniens. Defendants argue that
       both the private- and public-interest factors under forum non conveniens favored a transfer to
       New York and that, contrary to Dancor’s contention, FXR did analyze the private- and
       public-interest factors. With respect to the private-interest factors, it was undisputed that the
       case’s only connection to Illinois was Dancor’s office in the state. All of the construction was
       performed in New York. The witnesses (including the other subcontractors) and documents,
       the property, and the building are all in New York. Thus, the private-interest factors clearly
       favored New York as the proper forum. The public-interest factors likewise favored New
       York. New York has an interest in adjudicating a construction dispute that occurred within its
       borders. Section 507 of the New York Civil Practice Law and Rules (N.Y. C.P.L.R. 507
       (McKinney 2012)) provides that, where the judgment demanded would affect the title, use, or
       possession of real property, the trial should take place in a county in which any part of the
       subject of the action is situated. A mechanic’s lien encumbers real property, and therefore an
       action to foreclose such a lien must be brought in the county where the real property is located.
       Edward Joy Co. v. McGuire & Bennett, Inc., 608 N.Y.S.2d 26, 26 (App. Div. 1993). Further,
       section 757 of the New York General Business Law evinces a strong public policy to litigate in
       New York any dispute over New York construction projects. N.Y. Gen. Bus. Law § 757
       (McKinney 2012).
¶ 53       Defendants argue that, in contrast to section 757 of the New York General Business Law,
       section 41 of the New York State Lien Law is not relevant to this case. Section 41 is not a
       venue statute but rather allows a claimant to enforce a mechanic’s lien against either the
       property or the “person liable for the debt upon which the lien is founded” in any court that has
       jurisdiction. N.Y. Lien Law § 41 (McKinney 2012). Therefore, section 757 of the New York
       General Business Law controls.
¶ 54       Defendants turn to the circuit court’s section 2-615 dismissal of Dancor’s tort claims. They
       argue that the dismissals were proper as follows. First, Dancor waived its claim for injurious
       falsehood by failing to replead or incorporate that count in its second amended complaint.
       They argue that, nevertheless, that count failed to state a claim for injurious falsehood. Illinois

                                                   - 10 -
       has not formally recognized the tort of injurious falsehood. Pursuant to section 623A of the
       Restatement (Second) of Torts, the tort is intended to protect economic interests, that is, it is
       directed against disparaging comments about the quality of what the plaintiff sells or the
       character of its business. Restatement (Second) of Torts § 623A (1977); Kolegas v. Heftel
       Broadcasting Corp., 217 Ill. App. 3d 803, 811 (1991). Here, Dancor did not allege that
       defendants made any disparaging comments about its business, products, or services. Even if
       the tort were recognized and had a broader definition, Dancor failed to allege facts to support
       that defendants knew that the statement in the mechanic’s lien they filed was false.
¶ 55       With respect to Dancor’s slander-of-title claim, defendants continue that Dancor again
       failed to plead the elements necessary to maintain a cause of action. A slander-of-title claim
       requires that a plaintiff prove a false and malicious publication that disparages a person’s title
       to property and results in special damages. However, Dancor pled only a conclusion that
       defendants did not have a reasonable belief that they were entitled to a lien. Further, Dancor
       did not own the real property at issue in this case. Dancor cannot claim slander of title when it
       did not have title to the property. Moreover, Dancor did not incur special damages. The bond
       that Dancor posted and held in escrow would be returned to it if the lien were ultimately found
       unwarranted. The cost of posting the lien and litigating its merits are ordinary expenses, not
       special damages.
¶ 56       Finally, with respect to Dancor’s prima facie tort argument, defendants respond that
       Dancor failed to raise this claim in the circuit court. Even if not forfeited, the claim is a
       facsimile of its injurious-falsehood and slander-of-title claims, which were not supported by
       sufficient pleadings.

¶ 57                                  C. Resolution of Dancor’s Appeal
¶ 58       The circuit court dismissed various counts of Dancor’s amended and second amended
       complaints, under sections 2-615 and 2-619, on September 5, 2013, and February 14, 2014,
       respectively. It also granted a section 2-619 motion to dismiss the case on July 20, 2015,
       holding that the forum-selection clause was void and unenforceable. A section 2-615 motion
       admits all well-pled facts and attacks the legal sufficiency of the complaint, whereas a section
       2-619 motion admits the legal sufficiency of the complaint but raises defects, defenses, or
       other affirmative matters. La Salle National Bank v. City Suites, Inc., 325 Ill. App. 3d 780, 789
       (2001). We review a dismissal under either section de novo. Provenzale v. Forister, 318 Ill.
       App. 3d 869, 874 (2001).
¶ 59       We first address whether the New York court’s order precluded the circuit court from
       dismissing the case based on the forum-selection clause. In other words, the issue is whether
       FXR was collaterally estopped from challenging the validity and enforceability of the
       forum-selection clause.
¶ 60       Collateral estoppel, also known as issue preclusion, is a branch of res judicata. Wakehouse
       v. Goodyear Tire & Rubber Co., 353 Ill. App. 3d 346, 351 (2004). Collateral estoppel is an
       affirmative defense and is forfeited on appeal if not raised below. Midwest Physician Group,
       Ltd. v. Department of Revenue, 304 Ill. App. 3d 939, 952 (1999); cf. People v. Anderson, 2013
       IL App (2d) 121346, ¶¶ 13-14 (normally, collateral estoppel is an affirmative defense that is
       forfeited if not pled, but it may be first raised on appeal if unavailable in the trial court). The
       doctrine, if it applies, bars relitigation of issues decided in a prior action. Wakehouse, 353 Ill.
       App. 3d at 351.

                                                   - 11 -
¶ 61       In order for collateral estoppel to apply, the party seeking to apply it must establish that (1)
       the issue at hand is identical to the one in a prior action, (2) there was a prior, final adjudication
       on the merits, and (3) the party against whom preclusion is sought was a party to or in privity
       with a party to the prior action. In re A.W., 231 Ill. 2d 92, 99 (2008). Moreover, the issue had to
       have been actually and necessarily litigated in the prior action. LaSalle Bank National Ass’n v.
       Village of Bull Valley, 355 Ill. App. 3d 629, 636 (2005). Collateral estoppel is an equitable
       doctrine, and even if the threshold elements are established, the doctrine will not be applied if it
       would result in injustice. Edmonds v. Illinois Workers’ Compensation Comm’n, 2012 IL App
       (5th) 110118WC, ¶ 21. The party against whom estoppel is sought must have had both a full
       and fair opportunity and an incentive to litigate the issue in the prior proceeding. Id.
¶ 62       Here, in response to FXR’s motion to dismiss, Dancor argued that the New York action
       precluded litigation of the forum-selection clause’s validity and enforceability. Dancor
       therefore has not forfeited its argument on appeal. Dancor argues that all three elements of
       collateral estoppel are met here, but the crucial determination is whether the New York court
       issued a final judgment on the merits. If the New York action did not produce a final judgment
       on the merits, there was no basis to preclude litigation of the forum-selection clause in the
       circuit court.
¶ 63       Under the full faith and credit clause of the United States Constitution (U.S. Const., art. IV,
       § 1 (“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial
       Proceedings of every other State.”)), the doctrine of collateral estoppel extends to judgments
       entered in foreign states. Allianz Insurance Co. v. Guidant Corp., 387 Ill. App. 3d 1008, 1021
       (2008). This clause requires that we give the judgment of another state “at least the res judicata
       effect that the sister state rendering the judgment would give to it.” Morris B. Chapman &
       Associates, Ltd. v. Kitzman, 193 Ill. 2d 560, 565 (2000). We must look to the forum state’s res
       judicata law to determine what preclusive effect, if any, that state would give the judgment. Id.
       (looking to Missouri law). However, at least one court has held that the full faith and credit
       clause does not necessarily prevent Illinois from according greater effect to a foreign state’s
       judgment. Finley v. Kesling, 105 Ill. App. 3d 1, 7 (1982). That is, the full faith and credit clause
       does not bar Illinois from applying its own rules of collateral estoppel to preclude relitigation
       of an issue where, for example, New York would not. Id.
¶ 64       Under New York law, collateral estoppel precludes a party from relitigating an issue
       “ ‘clearly raised in a prior action or proceeding and decided against that party or those in
       privity.’ ” Church v. New York State Thruway Authority, 791 N.Y.S.2d 676, 678-79 (App. Div.
       2005) (quoting Ryan v. New York Telephone Co., 467 N.E.2d 487, 500 (N.Y. 1984)). The party
       seeking to apply the doctrine must show that the identical issue was necessarily decided in the
       prior action, and the party opposing application of the doctrine may demonstrate the absence of
       a full and fair opportunity to contest the prior determination. Id. at 679. A final judgment is
       necessary for collateral estoppel to apply. Id.
¶ 65       Importantly, New York applies collateral estoppel only to issues of fact, not law. Abreu v.
       Coughlin, 555 N.Y.S.2d 889, 891 (App. Div. 1990); In re Department of Personnel v. City
       Civil Service Comm’n, 462 N.Y.S.2d 878, 879 (App. Div. 1983). Further, New York has held
       that the issue of a forum-selection clause’s applicability is a question of law and is therefore
       not barred by the doctrine of collateral estoppel. Sterling National Bank v. Eastern Shipping
       Worldwide, Inc., 826 N.Y.S.2d 235, 237 (App. Div. 2006). Interpretations of unambiguous
       contract provisions, such as the forum-selection clause in Sterling National Bank, are

                                                    - 12 -
       questions of law. Id.; Taussig v. Clipper Group, L.P., 787 N.Y.S.2d 10, 11 (App. Div. 2004)
       (“The interpretation of an unambiguous contract is a question of law for the court ***.”).
       Accordingly, under New York law, the issue of whether the forum-selection clause here was
       valid and enforceable was a question of law and cannot be the basis for collateral estoppel.
       Sterling National Bank, 826 N.Y.S.2d at 237; see Lischinskaya v. Carnival Corp., 865
       N.Y.S.2d 334, 337 (App. Div. 2008) (forum-selection clause’s enforceability under federal
       maritime law was a question of law).
¶ 66        Nor does Illinois law provide greater effect and preclude litigation of the forum-selection
       clause. Collateral estoppel in Illinois requires a final judgment on the merits, but a dismissal for
       improper venue is not a final judgment on the merits. Ill. S. Ct. R. 273 (“[A]n involuntary
       dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for
       failure to join an indispensable party, operates as an adjudication on the merits.” (Emphases
       added.)); see Richter v. Prairie Farms Dairy, Inc., 2015 IL App (4th) 140613, ¶ 34 (a dismissal
       order that otherwise specified that it was not on the merits was not on the merits). Therefore,
       there is no basis in New York or Illinois law to hold that the New York action precluded
       litigation of the forum-selection clause.
¶ 67        Having held that the circuit court was free to examine the validity and enforceability of the
       forum-selection clause, we turn to examine whether, in fact, the circuit court was correct in
       holding that the clause was void and unenforceable.
¶ 68        Dancor argues that the clause was valid and enforceable, citing section 41 of the New York
       Lien Law (N.Y. Lien Law § 41 (McKinney 2012)). Defendants counter that the controlling law
       is actually section 757 of the New York General Business Law (N.Y. Gen. Bus. Law § 757
       (McKinney 2012)), which, they argue, renders the clause void and unenforceable.
¶ 69        Forum selection and choice of law are separate issues. Brandt v. MillerCoors, LLC, 2013
       IL App (1st) 120431, ¶ 15. Under Illinois law, we may void a forum-selection clause if it
       would violate a fundamental Illinois public policy. Maher & Associates, Inc. v. Quality
       Cabinets, 267 Ill. App. 3d 69, 75 (1994). Generally, to determine whether a forum-selection
       clause is enforceable, Illinois courts have applied a multifactor test to determine whether the
       clause is reasonable. See IFC Credit Corp. v. Rieker Shoe Corp., 378 Ill. App. 3d 77, 86 (2007)
       (considering (1) the law governing the formation and construction of the contract, (2) the
       residency of the parties, (3) the place of execution or performance of the contract, (4) the
       location of the parties, (5) the inconvenience of the location, and (6) the parties’ relative
       bargaining positions); Calanca v. D&S Manufacturing Co., 157 Ill. App. 3d 85, 88 (1987)
       (same).
¶ 70        In Rieker Shoe Corp., the court addressed both whether the parties’ forum-selection clause
       was invalid and whether its enforceability should be construed under another state’s law.
       Rieker Shoe Corp., 378 Ill. App. 3d at 85-86, 93-94. Applying the multifactor reasonableness
       test, the court found the forum-selection clause valid in Illinois. Id. at 86. Separately, it
       disagreed that Illinois’s choice-of-law rules dictated the application of New Jersey law, under
       which a forum selection-clause such as the one between the parties was not enforceable. Id. at
       93. The court cited the parties’ agreement, which provided that it was governed by Illinois law
       “ ‘without regard to such State’s choice of law considerations.’ ” Id. at 94. Therefore, the court
       found, Illinois law applied and, under the reasonableness test it had already performed, the
       forum-selection clause was enforceable. Id.


                                                    - 13 -
¶ 71        Here, the parties chose Illinois as the forum state. Unlike in Rieker, there is no clause
       requiring that we ignore Illinois choice-of-law rules. Therefore, to examine whether New York
       law applies to interpreting the forum-selection clause, we turn to Illinois’s choice-of-law rules.
       See Western States Insurance Co. v. Zschau, 298 Ill. App. 3d 214, 223 (1998) (Illinois courts
       apply Illinois choice-of-law rules). Defendants have not argued that the forum-selection clause
       violates Illinois public policy or is unreasonable under Illinois law, only that New York law
       applies to render the clause void and unenforceable.
¶ 72        Choice-of-law considerations arise only if there is an actual conflict of law among the
       states with an interest in a particular dispute. Allianz Insurance Co. v. Guidant Corp., 373 Ill.
       App. 3d 652, 658 (2007). An actual conflict exists if application of one state’s law will yield a
       different result than the application of another’s, that is, if it will affect the outcome of the
       dispute. Id.; Gleim v. Roberts, 395 Ill. App. 3d 638, 639 (2009). Illinois generally follows the
       Restatement (Second) of Conflict of Laws (1971) in making choice-of-law decisions. Hall v.
       Sprint Spectrum L.P., 376 Ill. App. 3d 822, 825 (2007). But see Maher & Associates, Inc., 267
       Ill. App. 3d at 77 (the Restatement is a guide for courts, “not black-letter law to be upheld
       against all other considerations”).
¶ 73        Section 187 of the Restatement applies when, as here, the parties have made an express
       choice of law in their contract. Restatement (Second) of Conflict of Laws § 187 (1971); Hall,
       376 Ill. App. 3d at 825; Maher & Associates, Inc., 267 Ill. App. 3d at 76. In particular, section
       187(2) provides:
                “The law of the state chosen by the parties to govern their contractual rights and duties
                will be applied *** unless either
                        (a) the chosen state has no substantial relationship to the parties or the
                    transaction and there is no other reasonable basis for the parties’ choice, or
                        (b) application of the law of the chosen state would be contrary to a
                    fundamental policy of a state which has a materially greater interest than the chosen
                    state in the determination of the particular issue and which, under the rule of § 188,
                    would be the state of the applicable law in the absence of an effective choice of law
                    by the parties.” Restatement (Second) of Conflict of Laws § 187(2) (1971).
       To ascertain the public policy of a state, we look to its constitution, legislative enactments, and
       judicial decisions. Hall, 376 Ill. App. 3d at 826.
¶ 74        Accordingly, our task is to first determine whether there is a conflict between New York
       and Illinois law. The plain language of section 757 provides that a construction contract
       provision that requires litigation, arbitration, or other dispute resolution arising from the
       contract to be conducted in another state is void and unenforceable. N.Y. Gen. Bus. Law
       § 757(1) (McKinney 2012). Here, we have a construction contract for a New York
       construction project. Exceptions to section 757’s applicability, such as an exception for a
       contract with a material supplier, do not apply. Defendants are correct that section 757, by its
       plain language, requires that if you build in New York, you litigate in New York. See HVS,
       LLC, 17 N.Y.S.3d at 286 (enforcing section 757 to invalidate forum-selection clause, which
       required litigation in Ohio, in a contract for a construction project located in New York); see
       also Welsbach Electric Corp. v. MasTec North America, Inc., 859 N.E.2d 498, 502 n.8 (App.
       Div. 2006) (section 757 was enacted to render void any provision that makes a construction
       contract subject to the laws of another state).


                                                   - 14 -
¶ 75       In Illinois, a forum-selection clause in a contract is prima facie valid and should be
       enforced unless the opposing party shows that enforcement would be unreasonable under the
       circumstances. Rieker Shoe Corp., 378 Ill. App. 3d at 85-86. A forum-selection clause reached
       through arm’s-length negotiation should be honored and enforced by the courts, absent a
       compelling and countervailing reason not to enforce it. Mellon First United Leasing v. Hansen,
       301 Ill. App. 3d 1041, 1045 (1998). Defendants have not argued that the forum-selection
       clause is void and unenforceable under Illinois law. Because the forum-selection clause is
       prima facie valid under Illinois law but void under New York law, the forum-selection-clause
       issue would be decided differently depending on which forum’s law applies. Accordingly, we
       have a conflict and proceed with a choice-of-law analysis.
¶ 76       Guided by the Restatement, we will apply Illinois law to interpret the forum-selection
       clause unless one of the following applies: (1) Illinois has no substantial relationship to the
       parties or the transaction, and there is no other reasonable basis for the parties’ choice; or (2)
       application of Illinois law would be contrary to a fundamental New York policy, and New
       York has a materially greater interest than Illinois in the determination of this issue. See Old
       Republic Insurance Co. v. Ace Property & Casualty Insurance Co., 389 Ill. App. 3d 356, 363
       (2009). The basic reasoning behind these exceptions is that, in addition to fulfillment of the
       parties’ expectation, regard must also be had for state interests and for state regulation.
       Restatement (Second) of Conflict of Laws § 187 cmt. g (1971).
¶ 77       The first exception does not apply, because there was a reasonable basis to choose Illinois
       as the forum state. Dancor is an Illinois corporation with a place of business in Illinois, which
       is generally sufficient to satisfy the “reasonable basis” for a choice of law. See International
       Surplus Lines Insurance Co. v. Pioneer Life Insurance Co. of Illinois, 209 Ill. App. 3d 144, 154
       (1990) (citing Restatement (Second) of Conflict of Laws § 187 cmt. f (1971)).
¶ 78       On the other hand, we hold that the second exception does apply to this particular case. We
       explain as follows. Section 187 of the Restatement requires that the New York policy be
       “fundamental.” Restatement (Second) of Conflict of Laws § 187 (1971). The comments do not
       define “fundamental” but do state that the policy must be “a substantial one.” Restatement
       (Second) of Conflict of Laws § 187, cmt. g (1971). For example, a fundamental policy must
       relate to more than mere formalities in a contract. Id. Fundamental policies include state
       statutes that make certain contracts illegal or are designed to protect a person from another with
       superior bargaining power. Id. Statutes involving the rights of an individual insured against an
       insurance company would qualify. Id.
¶ 79       We have held that an Illinois statute that declared void any attempted contractual waiver of
       the statute was a fundamental public policy. Maher & Associates, Inc., 267 Ill. App. 3d at 76
       (interpreting the Sales Representative Act (820 ILCS 120/2 (West 1992)), and explaining that
       the difference between “void” and “void against public policy” was merely semantic).
       Similarly, we hold that section 757 of the New York General Business Law is a fundamental
       public policy in New York. A state’s legislative enactments reveal a state’s public policy. Hall,
       376 Ill. App. 3d at 826. Here, section 757 of the New York General Business Law clearly
       evinces New York’s public policy that construction contracts for New York construction
       projects be litigated in New York. See supra ¶ 73. Section 757 declares void and unenforceable
       specific provisions of construction contracts so that New York maintains an interest in
       construction within its borders. To enforce the forum-selection clause would be to disregard
       section 757 and New York’s public policy regarding construction contracts.

                                                   - 15 -
¶ 80        Additionally, New York has a materially greater interest in the determination of the
       forum-selection clause issue. The subject matter of the contract, the AutoZone building, is in
       New York. Performance of the contract took place in New York. Defendants are from New
       York. Although the parties’ contract states in section XXIX that the contract was executed in
       Kane County, the very next page (and the first page of the contract) contradict this statement,
       stating that the contract was executed in Florida. The only connection Illinois has to the
       litigation is Dancor’s incorporation and place of business here, and we cannot say that this
       counterbalances New York’s connections. Cf. Old Republic Insurance Co., 389 Ill. App. 3d at
       363 (Illinois did not have a materially greater interest in the litigation than Nebraska where
       litigation involved insurance companies from Nebraska and an agreement negotiated in
       Nebraska); Maher & Associates, Inc., 267 Ill. App. 3d at 76 (applying the Restatement, Illinois
       did not have a materially greater interest than Texas where defendant was incorporated in
       Texas, had its primary place of business in Texas, and the contract at issue was a Texas
       contract; plaintiff had its primary place of business in Illinois but was incorporated in
       Minnesota and did business in multiple states); Hall, 376 Ill. App. 3d at 826 (Illinois did not
       have a materially greater interest in the litigation than Kansas or Missouri in multistate suit
       against telecommunications corporations incorporated in Kansas and Missouri).
¶ 81        We are mindful that the Restatement is a guide, not black-letter law. Maher & Associates,
       267 Ill. App. 3d at 77. Illinois follows the modern approach to choice-of-law questions, placing
       the greatest importance on the public policy of the state in which the case is brought. Id.
       Nevertheless, this is a situation where New York has a clear public policy and Illinois does not
       have a competing interest in the litigation. In fact, Illinois implicitly shares New York’s
       interest, as Illinois has a similar public policy that contracts for Illinois construction be litigated
       in Illinois.2
¶ 82        Nevertheless, Dancor argues that, if we apply New York law, section 41 of the New York
       Lien Law controls. We disagree. That section provides that a mechanic’s lien on real property
       may be enforced against such property or against a person liable for the debt upon which the
       lien is founded in any of the following: the New York supreme court or a county court,
       regardless of the amount of the debt, or any court with jurisdiction in an action founded on a
       contract for a sum of money equivalent to the amount of such debt. N.Y. Lien Law § 41
       (McKinney 2012). This general provision does not obviate consideration of the more specific
       section 757 of the New York General Business Law. Section 41 merely permits enforcement of
       mechanic’s liens in various courts other than New York supreme or county courts, with some
       limitation on the sum of money sought. In contrast, section 757 speaks specifically to the
       validity and enforceability of forum-selection clauses in construction contracts. As we
       explained, supra ¶¶ 78-80, section 757 renders the forum-selection clause void and
       unenforceable.


           2
             Section 10 of the Building Act provides that an Illinois construction contract provision that
       requires “any litigation, arbitration, or dispute resolution to take place in another state is against public
       policy. Such a provision is void and unenforceable.” 815 ILCS 665/10 (West 2014). The plain language
       is clear that if you build in Illinois, you litigate in Illinois. Cf. Foster Wheeler Energy Corp. v. LSP
       Equipment, LLC, 346 Ill. App. 3d 753, 762 (2004) (holding that because section 10 of the Building Act
       substantively changed the law on forum-selection provisions, it would not apply retroactively to void
       the parties’ forum-selection provision).

                                                        - 16 -
¶ 83       Accordingly, the circuit court did not err in applying New York law to find the
       forum-selection clause void and unenforceable.
¶ 84       Dancor and defendants next argue over whether dismissing the case under forum non
       conveniens was appropriate. However, we have already held that the circuit court properly
       dismissed the case after finding that the forum-selection clause was void and unenforceable.
       The circuit court’s order does not analyze the application of the forum non conveniens
       doctrine, because its order is based on the affirmative matter of the applicability of New York
       law. Accordingly, we do not further address the forum non conveniens arguments.
¶ 85       We further hold that the circuit court did not err in granting FXR’s motion to dismiss less
       than 120 days before trial. Local Rule 6.06 does not bar dispositive motions filed less than 120
       days before trial. Rather, it permits such motions upon leave of court for good cause shown.
       16th Judicial Cir. Ct. R. 6.06 (May 5, 2008) (“All case or claim dispositive motions *** will be
       filed for setting no longer than 120 days before the designated trial date except by leave of
       court upon good cause shown.”). Here, the circuit court acknowledged the local rule in its
       order granting FXR’s motion to dismiss. However, it effectively provided that there was good
       cause for the motion, in that its prior order allowing the case to proceed in Illinois was in error.
       The court had not been apprised of the applicable law providing that New York was the proper
       forum and that the forum-selection clause was void and unenforceable. We agree that this was
       good cause to hear the motion to dismiss. Moreover, the court’s prior order was interlocutory,
       FXR’s motion to dismiss was, in part, a motion to reconsider, and the court could reconsider its
       prior order at any time before trial.
¶ 86       The final issues are whether the circuit court properly dismissed Dancor’s tort counts for
       injurious falsehood and slander of title. It dismissed these counts before its July 20, 2015,
       order, which held that, as to the entire action, the forum-selection clause was void and
       unenforceable. Dancor’s injurious-falsehood count was part of its amended complaint, and the
       circuit court dismissed it without prejudice, informing Dancor that, if it sought to replead the
       count, it should do so as slander of title. In Dancor’s second amended complaint, it did not
       replead an injurious-falsehood count but instead took the circuit court’s admonishment to
       plead two counts of slander of title. The circuit court dismissed the slander-of-title counts in
       the second amended complaint with prejudice. Dancor thereafter moved to incorporate the
       prior injurious-falsehood count into the second amended complaint, but the circuit court
       denied its motion.
¶ 87       We need not review the dismissal of Dancor’s tort counts. We have already determined that
       the circuit court properly dismissed the case pursuant to its interpretation of the
       forum-selection clause, finding that it was void and unenforceable. Accordingly, Dancor is
       free to refile this action in New York, where the New York court will address its complaint.
       Although the circuit court’s dismissal was a final order, it was not on the merits. We do not
       address whether Dancor’s tort counts, if it chooses to refile them, would state causes of action
       under New York law.

¶ 88                          C. Defendants’ Arguments on Cross-Appeal
¶ 89       On cross-appeal, defendants argue that the circuit court should have granted their original
       motion to dismiss the case based on forum non conveniens. They note that, if we affirm the
       circuit court’s order on Dancor’s appeal, the cross-appeal is unnecessary. Because that is


                                                    - 17 -
       precisely what we have done, we do not address their cross-appeal.

¶ 90                                        III. CONCLUSION
¶ 91       The forum-selection clause in the parties’ contract was void and unenforceable, and
       therefore the circuit court did not err in dismissing the case in order that it may be refiled in
       New York. Dancor’s arguments with respect to the dismissal of its tort counts are mooted by
       our determination that New York is the proper forum to adjudicate the parties’ claims. Further,
       our holdings render defendants’ cross-appeal moot. Therefore, the judgment of the circuit
       court of Kane County is affirmed.

¶ 92      Affirmed.




                                                  - 18 -
