Construction Law
(Hutchinson, D-Chicago Heights; Will Davis, D-East Hazel Crest) is the revenue bill just enacted into law. The Revised Uniform Unclaimed Property Act beginning on page 6 is part of this Act. This part of the Act is effective January 1, 2018.
Court erred in entering judgment, after bench trial, against Defendant title company and in favor of Plaintiff LLC, and in concluding that Defendant had breached its fiduciary duty as construction escrowee to the LLC. As Defendant, as escrowee, had a fiduciary duty to act only in accordance with terms of Escrow Agreement, it cannot have violated its fiduciary duty by failing to inspect construction company's work for progress and quality because Escrow Agreement imposed no such obligation. Scope of fiduciary duty can be defined by escrow agreement. (FITZGERALD SMITH and LAVIN, concurring.)
(Thapedi, D-Chicago; Raoul, D-Chicago) makes numerous changes affecting community associations and condos. Among those changes is the requirement that associations and condos that have 100 or more units to use generally accepted accounting principles in fulfilling their accounting obligations.
House Bill 189 also changes some parts of the statute governing the examination of a condo association’s records. It authorizes reasonable attorney’s fees and costs to a unit member who prevails in an enforcement action if seeking to examine or copy (1) all contracts to which the association is a party or under which it or the unit owners have obligations; and (2) the books and records for the association’s current fiscal year and the last 10 fiscal years. It also reduces the time in which an association must make these records available from 30 business days to 10 business days or it will be considered a denial of the request.
It also amends the right to examine and copy the ballot and proxy information and current listing of the names, addresses, email addresses, telephone numbers, and weighted vote of all voting members. A member must have a purpose that relates to the association to exercise this right, and the board may ask for the member to so certify. The member may not seek these records for a “commercial purpose” that is defined as use in any form for sale, resale, or solicitation or advertisement for sales or services. House Bill 189 makes it discretionary instead of mandatory on whether the association must charge for the retrieval or copying of these records.
Passed both chambers; effective January 1, 2018 if the Governor signs the bill.
(Barickman, R-Bloomington; Andersson, R-Geneva) ensures that the appeals by citizens in administrative review actions are not thrown out of court for a scrivener’s error that is called a “misnomer.” Senate Bill 584 amends the Administrative Procedure Act and the Administrative Review Law to provide a means for correcting good-faith failures to perfectly name necessary parties in actions for administrative review. The proposed legislation would do several things to resolve this problem.
Requires that final administrative orders list all of the parties of record together with their last known address of record. The final order must also include whether there are any agency rules requiring a motion for reconsideration as a part of obtaining a reviewable final administrative decision and, if so, the citation to the rule.
Prohibits an action for administrative review to be dismissed for lack of jurisdiction based on the misnomer of any agency that is properly served with summons issued in the action within the applicable time limits. It also prohibits dismissal for failure to perfectly name an agent if a timely action of administrative review has been filed that identifies the final administrative decision under review and makes a good faith effort to properly name the administrative agency.
Allows a court to correct misnomers for an erroneous identification of the administrative agency that was made in good faith.
Passed both chambers; effective on the Governor’s signature.
(Koehler, D-Peoria; Gordon-Booth, D-Peoria) creates the Installment Sales Contract Act. It will require that sales of residential real estate by installment contract conform to the Act. “Residential real estate” means real estate with a dwelling structure excluding property that is sold as a part of a tract of land consisting of four acres or more that is zoned for agricultural purposes.
It applies to sellers that enter into an installment sale contract more than three times during a 12-month period to sell residential real estate. Within ten days of the date of sale the seller must record the contract or a memorandum of the contract with the recorder of deeds. It prohibits the installment sale contract from forbidding the buyer to record the contract or a memorandum of the contract. Makes it a violation of the Consumer Fraud and Deceptive Business Practices Act to knowingly violate the Installment Sales Contract.
Passed both chambers; effective January 1, 2018 if signed into law.
(Thapedi, D-Chicago; Raoul, D-Chicago) amends § 2-301 of the Code of Civil Procedure by changing the exception to the statute’s general rule. The general rule is that a party must object to the court’s jurisdiction (without waiving an objection to the court’s jurisdiction) over the party’s person by filing a motion to dismiss the entire proceeding or by filing a motion to quash service of process, but the party must do this before they file any other pleading.
House Bill 188’s exception to this general rule of waiver allows a motion for extension of time to answer or otherwise plead or a motion filed under § 2-1301, § 2-1401, and § 2-1401.1
But it requires any motion objecting to the court’s jurisdiction over the party’s person under § 2-301 must be filed within 60 days of the court’s order disposing of the initial motion filed under these three sections. A party may combine these motions without waiving their objection to jurisdiction.
House Bill 188 has passed the House and on third reading in the Senate.
Plaintiff construction company was hired by Defendant to install sanitary sewer system in subdivision. After completion of installation, city's engineering inspector, after viewing video of system, required additional work. Defendant refused to pay Plaintiff for extra work done by Plaintiff. The extra work Plaintiff did was "part and parcel" of contract between parties. Court properly deined Plaintiff's quantum meruit claim, as existence of an express contract on same subject matter dooms that claim. Court properly found that Defendant did not establish causal link between any damages it suffered and any breach by Plaintiff, and thus court properly denied Defendant's counterclaim for breach of contract. (McBRIDE and BURKE, concurring.)
(Court opinion corrected 3/2/17.) Employee was injured while working on construction of building owned by 2 Defendants. Employee of construction company filed underlying personal injury suit against both Defendants, who tendered defense to insurer who had issued commercial general liability policy to employer. One Defendant, but not the other, is an additional insured under policy, and insurer does have a duty to defend that Defendant in underlying suit, as there is a potential that this Defendant, because it retained sufficient operative control of element of construction at issue, would be vicariously liable for negligence by construction company. (HARRIS and SIMON, concurring.)
(Fine, D-Glenview) deletes language providing that specified records may be inspected “only for a proper purpose.” Also deletes language that in an action to compel examination of specified records, the burden of proof is upon the member to establish that the member's request is based on a proper purpose. Scheduled for hearing this Thursday in House Judiciary Committee.
(Hurley, D-Chicago) removes a repeal date of June 1, 2018 in a Section concerning a county recorder's ability to establish procedures for investigating filings that would cause the recorder to reasonably believe that the filing may be fraudulent, unlawfully altered, or intended to unlawfully cloud or transfer the title of any real property. On second reading in the House.