Business Disputes

Discovery Responses Doom Mechanic’s Lien Claim Appellate Court Rules

August 29, 2019 | Peter S. Lubin and Patrick Austermuehle

The First District Appellate Court of Illinois recently affirmed the entry of summary judgment against the plaintiff in a commercial breach of contract and mechanic’s lien dispute. In upholding the grant of summary judgment, the Court found that the plaintiff’s discovery responses doomed its mechanic’s lien claim, providing yet another example of why it is crucial for a party to carefully review its discovery responses – something the best commercial litigation attorneys make painstaking efforts to do.

The case stems from a dispute arising over an alleged verbal contract between the plaintiff, MEP Construction, LLC, and defendant, Truco MP, LLC, to build out the defendant’s restaurant. According to the plaintiff’s complaint, under the oral contract, it agreed to provide “construction management and other related services” to the defendant for a cost of $791,781.16 (though the parties later agreed to have the plaintiff do an additional $80,000.00 of work). The plaintiff further alleged that it “fully performed” its contractual obligations, but the defendant only made partial payment of $612,447.15 and refused to pay anything further. The plaintiff later recorded a mechanic’s lien naming the defendant and others and claiming an amount of $251,870.45 was owed to it.

In August 2017, the plaintiff filed a three-count complaint against the defendant alleging breach of contract and seeking to foreclose on the mechanic’s lien. In the course of discovery, the defendant issued a document request to the plaintiff asking for all documents showing all payments that the plaintiff had made for work performed either “by MEP or at the direction of MEP.” The plaintiff’s response to the document request stated that all “contractors, subcontractors and material were paid directly by Truco.” The defendant also sought production of all contracts between the plaintiff and “any and all contractors, sub-contractors or other persons with whom MEP contracted for purposes of performing work” at the property. The plaintiff responded to this request by stating that all contractors and subcontractors “contracted directly with Truco” and were paid directly by Truco. Continue reading ›

Insurance Company not Prevented From Later Denying Payment for Claim it Initially Defended

August 19, 2019 | Peter S. Lubin and Patrick Austermuehle

An insurance company defended a construction firm against a claim by a condo association for defective design and construction of a building, as it thought the claim arose during the company’s policy period. The insurance company was not estopped from later denying payment for the claim when it was discovered that the claim had in fact arisen 10 years before the policy went into effect.

In 2002, the Blue Moon Lofts Condominium Association filed a complaint against The Structural Shop, Ltd in Illinois state court seeking damages arising out of TSS’s allegedly defective design and construction of a building. Blue Moon served notice of action to TSS’s registered agent, Thomas Donohoe on November 2002. TSS never responded to the notice or appeared in the state court action to defend itself, leading in May 2003 to the state court declaring the company in default. In 2009, the state court entered a default judgment and set the damages amount at $1,356,435 plus costs.

Many years later, Essex Insurance Company sold TSS a policy for claims first made against TSS from May 2012 to May 2013. Essex knew nothing about the prior litigation. For a time, both TSS and Essex believed that Blue Moon had failed to properly serve TSS in 2002, and thus had first brought notice of the claim to TSS in 2012 when it attempted to collect the default judgment. Laboring under this mistaken belief, TSS petitioned the state court to vacate the default judgment. The court granted the motion and vacated the judgment. TSS then informed Essex of the developments and Blue Moon’s claim. Essex, unaware that Blue Moon had properly served TSS in 2002, considered the claim to have arisen during the policy period and thus acted on its duty to defend TSS. Continue reading ›

Appeals Court Awards Damages to Subcontractor, Denying Set-Off For General Contractor

August 8, 2019 | Peter S. Lubin and Patrick Austermuehle

An electrical subcontractor sued the general contractor after the general contractor withheld $58,000. The general contractor claimed that it was owed a setoff for work performed by other electricians, but the trial court found that the money spent by the general contractor was not within the scope of the original agreement, and the electrical contractor had performed additional work and worked overtime to complete the project, despite delays caused by other contractors. The Illinois appellate court affirmed, finding that the trial court had not made a determination against the manifest weight of the evidence.

Hunter Construction Services entered into a general contract to construct a Buffalo Wild Wings restaurant in Dickinson, North Dakota. Hunter had built 14 similar stand-alone Buffalo Wild Wings prior to the North Dakota project. Hunter reached out to Mormat Electrical & Construction Services, LLC to be the electrical subcontractor on the project. Mormat had worked on other Buffalo Wild Wings projects and understood the general scope and labor requirements, even though the North Dakota project was larger than most. Mormat agreed, and Hunter and Mormat entered into an oral subcontract for electrical work. The electrical budget was $135,000, and Mormat was responsible for all the electrical labor and wiring over 120 volts, including the wiring and installation of all light fittings and fixtures as well as the equipment connections related to heating and cooling, kitchen appliances, and mechanical equipment. The scope of work necessitated a four to five man electrical crew.

Prior to entering into the contract, Mormat, a nonunion contractor, informed Hunter that it could not acquire a North Dakota electrical permit because it did not employ an electrician capable of being licensed in North Dakota. Hunter and Mormat agreed that a local contractor would need to be present on site to pull the necessary permits and perform inspections. Integrity Electrical was hired directly by Hunter on a time and material basis to provide the permit and supervision for the project. Continue reading ›

The Litigation Environment Gets Hot When Corporations Get Sued For Climate Change

July 21, 2019 | Peter S. Lubin and Patrick Austermuehle

Worldwide, the impact of global change is being felt. While some people deny that climate change is even happening, the courts are, in fact, seeing the effects in the litigation scene. Suits concerning the issue are trending upwards. Jurisdictional restraints and distance are not stopping litigants from coming forward to file suit. Science, damages, and people being passionate about the cause have increased the number of people wanting to seek retribution, restraint or some form of way to mend harm done by being awarded damages and the cutting of carbon emissions. The biggest offenders? Large corporations. The Human Rights Commission in London is currently investigating the catastrophic effects of Typhoon Yolanda which affected those in the Philippines. The nexus between the polluting corporations with the effects on the environment is what will need to be established and whether the condition was exacerbated as a result of that pollution. The difficulty in being able to produce evidence to present this case and the distance of greater than six thousand miles is no bar.

One possible reason for the increase in lawsuits is the lack of response from governance. People are also more environmentally conscious and know of the impacts of gas emissions
when it comes to health, land and air quality. Successful litigation in this realm has not been as successful as environmentalists would like. However, the pendulum is shifting. Public
awareness and better-equipped machines with techniques to track results also tie in with that. A worldwide consensus is now there when it comes to damage. It is proving that a single
corporation is responsible and to what degree used to be more difficult than it is now. We also know that from a few prior posts on our blog, those actions have started in the USA
also. We discussed this when we looked at a suburban business in Chicago that is under scrutiny for implementation of a system in which the way they sterilized caused emissions of
a cancer-causing substance. The operational facility provided sterilization services to the medical, pharmaceutical and food industries. Ironically, the health damage by its emissions made locals
worse off. Continue reading ›

Lubin Austermuehle Co-Counsel and Colleague Dmitry Feofanov Argues Important UCC Issue in Illinois Supreme Court Regarding Revoking Acceptance of a Defective RV With a Leaky Roof

May 17, 2019 | Peter S. Lubin and Patrick Austermuehle

Our longtime co-counsel and colleague Dmitry Feofanov argued an important case this week before the Illinois Supreme Court concerning a consumer’s ability to revoke acceptance of a brand new RV with a hidden defect — a leaky roof. The consumers revoked acceptance after the RV dealer couldn’t provide an estimated completion date for the repairs. An RV is a summer product and the consumers feared (correctly) that they would lose the use of the RV which is a summer product for the entire summer if they did not revoke acceptance. The trial and appellate courts ruled that the consumers should have given the dealer the opportunity to repair the RV. We filed an amicus brief in the Supreme Court on behalf of the National Association of Consumer Advocates supporting the position that a consumer or buyer of goods does not have to provide an opportunity to cure for a material defect as material defect undercuts the value of the product to the buyer and can revoke acceptance.

You can also listen to the oral argument below.

ARC Welding v. American Welding — Appellate Court Finds Taking Monies from Reserve Would Constitute a Windfall — Chicago Business Litigation Lawyers near Oak Brook and Naperville

April 25, 2019 | Peter S. Lubin and Patrick Austermuehle

Where an asset purchase agreement between two companies did not contemplate the forfeiture of an entire reserve payment as a result of an audit of assets taking one month longer than originally contemplated, and such a forfeiture would result in a windfall for one of the parties.

ARC Welding Supply Co. was a distributor of compressed gases and welding supplies in Vincennes, Indiana. As part of an asset purchase agreement American Welding & Gas, Inc. paid ARC $1,534,796.06 for ARC’s assets, of which the primary assets where its asset cylinders. Some cylinders were already rented to ARC’s clients, so determining the number of asset cylinders that could be transferred from ARC to American was difficult. As a result, American withheld $150,000 for 180 days to protect against a shortage of up to 1,200 out of a potential 6,500 cylinders.

American conducted an audit of the number of cylinders, beginning with those at ARC’s facility, and then those that were rented to existing clients. American did not visit every client, only those for whom rental records could not clearly indicate the number of cylinders in the client’s possession. The agreement originally specified that settlement would occur on or before April 15, 2015. Ron Adkins, American’s President, and CEO, informed ARC’s owner, Charles McCormick, that the audit was taking longer than expected and the overall count was shorter than expected. As a result, American wanted to extend the time for the audit as a means of locating every possible cylinder. At the conclusion of the audit in May 2015, the final number of cylinders was 4,663, 1,837 short of the estimated total of 6,500. As a result, American did not pay the $150,000 that was held back, and ARC filed suit. Continue reading ›

A-1 Packaging v. Firefly RFID Solutions Court Allows Some Breach of Contract Claims to Proceed for Misrepresenting Capacity to Complete Construction Project and Dismisses Some Claims Against Officers and Directors — Best Chicago Business Dispute Lawyers

April 20, 2019 | Peter S. Lubin and Patrick Austermuehle

When officers of a corporation misrepresented the capacity of the corporation to meet requirements of an RFID manufacturing project, the district court allowed some claims for breach of contract, quantum meruit, and unjust enrichment to proceed. The court also dismissed some claims against the individual officers of the corporation, based on questions regarding the existence of valid contracts between the client and the officers.

A-1 Packaging Solutions, Inc. is a corporation that selects and provides RFID (Radio Frequency Identification) technologies from a variety of manufacturers to provide custom solutions for customers. Fiberteq hired A-1 to design an asset and inventory tracking system for its facility in Danville, Illinois. A-1 contacted several manufacturers and distributors who provided the relevant technology, in search of options to complete the system.

Dr. William Davidson and Jan Svoboda, the Chief Technology Officer and President of Firefly RFID systems, were one company contacted by A-1. In response, Davidson and Svoboda told A-1 that Firefly had expertise in RFID hardware and deployments, and had the capability to build the system that A-1 had designed. As part of the negotiation, A-1 specified to Firefly that any rights to the software created by Firefly were required to be transferred to A-1. Firefly agreed. A-1 then retained Firefly to assist in designing and building the RFID system for Fiberteq. Continue reading ›

Designer Direct v. PNC Financial Services Court Grants Summary Judgment on Breach of Contract Claim Under UCC Provisions — Chicago Business Dispute Lawyers Near Oak Brook

April 15, 2019 | Peter S. Lubin and Patrick Austermuehle

The district court granted summary judgment to a bank on a breach of contract claim where a bank customer was precluded from suing bank for payment of fraudulent checks because customer did not report fraud within 90 days of receiving statement containing copy of first fraudulent check, and account agreement specified that fraud was required to be reported within 90 days.

Designer Direct, Inc. has a bank account with PNC Financial Services Group, Inc. Three of Designer Direct’s officers are authorized signers on its bank account. Between October 2016 and May 2017, Designer Direct’s former office manager, Kristiana Ostojic, forged one of those officers’, Stephen Rebarchak, signature on thirty-nine checks drawn on the account. Each check was made payable either to Ostojic or KO Development. The sum total of the fraudulent checks was $185,421.94

Ostojic deposited each check at either US Bank or JP Morgan Chase. The checks were then eventually presented to PNC for payment and were processed during the normal course of business through an automated system. PNC mailed account statements to Designer Direct each month. Each statement identified checks drawn on the account by date, check number, and amount. PNC also included copies of drawn checks with each statement.

Rebarchak reviewed all of the statements sent by PNC but did not see the electronic check copies because Ostojic intercepted the online statements and removed the check images before he could see them. When Rebarchak did finally see one of the checks, in May 2017, he was immediately aware of the fraud and notified PNC the next day. Designer Direct eventually sued PNC in federal district court in the Northern District of Illinois for breach of contract, alleging that PNC breached the account agreement by failing to exercise ordinary care in the payment of the checks. Continue reading ›

Trinity v. ColFin Affirms That a Mistake is Not Binding if it is not Relied Upon — Chicago and Oak Brook Real-Estate Litigation Attorneys

March 28, 2019 | Peter S. Lubin and Patrick Austermuehle

Where the mortgage on a development company’s property was mistakenly recorded as satisfied, and then later corrected, the mistaken release did not extinguish the debt, and the contract was still effective.

Trinity 83 Development borrowed $2 million from a bank in return for a mortgage on real property and a note. Five years later, in 2011, the bank sold both the mortgage and the note to ColFin Midwest Funding, who relied on Midland Loan Services to collect the payments due. Two years later, Midland recorded a “satisfaction” document indicating that all debts associated with the note and mortgage had been paid. This recording was in error, as the loan was still outstanding. Unaware of the mistake, Trinity continued making payments on the loan. Continue reading ›

MEP Construction v. Truco MP LLC Summary Judgment in Mechanics Lien Case Affirmed — Top DuPage County Breach of Contract Lawyers Near Wheaton and Naperville

March 25, 2019 | Peter S. Lubin and Patrick Austermuehle

Where a construction manager overstated amount in mechanic’s lien by more than 100%, and overstatement consisted of work performed by other contractors that manager did not have a contractual relationship with, the circuit court did not err in granting summary judgment to restaurant owner alleging constructive fraud on part of the construction manager.

In August 2017, MEP Construction filed suit against Truco MP and Randhurst Improvements seeking to foreclose upon a mechanic’s lien and other relief. The complaint alleged that Truco and MEP entered into a verbal contract in April 2014 in which MEP would provide construction management and related services to Truco for the purpose of building out Truco’s restaurant in Mount Prospect, Illinois. MEP alleged that it fully performed the work it was required to perform as of May 2015 and that Truco paid only $612,447.15 of $791,781.16. MEP recorded a mechanic’s lien in September 2015 with the Cook County Recorder of Deeds. Continue reading ›