{ "id": 3615702, "name": "THE VILLAGE OF WESTVILLE, Plaintiff-Appellant, v. LOITZ BROTHERS CONSTRUCTION COMPANY, INC., Defendant-Appellee", "name_abbreviation": "Village of Westville v. Loitz Bros. Construction Co.", "decision_date": "1988-01-21", "docket_number": "No. 4-87-0521", "first_page": "338", "last_page": "341", "citations": [ { "type": "official", "cite": "165 Ill. App. 3d 338" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "215 N.E.2d 25", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. App. 2d 145", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2594320 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/68/0145-01" ] }, { "cite": "384 N.E.2d 82", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "84-85" }, { "page": "84" } ], "opinion_index": 0 }, { "cite": "66 Ill. App. 3d 629", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3317732 ], "weight": 2, "pin_cites": [ { "page": "632-33" }, { "page": "633" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0629-01" ] }, { "cite": "388 N.E.2d 912", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill. App. 3d 943", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2870887 ], "pin_cites": [ { "page": "947" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/33/0943-01" ] }, { "cite": "462 N.E.2d 901", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "123 Ill. App. 3d 447", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5678092 ], "weight": 2, "pin_cites": [ { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/123/0447-01" ] }, { "cite": "111 F.2d 406", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1030422 ], "opinion_index": 0, "case_paths": [ "/f2d/111/0406-01" ] }, { "cite": "359 F.2d 292", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 829119 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/f2d/359/0292-01" ] }, { "cite": "490 F.2d 1057", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 228509 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/f2d/490/1057-01" ] }, { "cite": "492 N.E.2d 199", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "142 Ill. App. 3d 781", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3449477 ], "weight": 2, "pin_cites": [ { "page": "785" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0781-01" ] }, { "cite": "425 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "98 Ill. App. 3d 1100", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8500947 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/1100-01" ] } ], "analysis": { "cardinality": 465, "char_count": 8022, "ocr_confidence": 0.782, "pagerank": { "raw": 1.4494402833025396e-07, "percentile": 0.6547520724181217 }, "sha256": "a38693a2e95849138ccab42509caec8e70e6282bd844439612227dc05bac3c52", "simhash": "1:3d6e39d3780d8042", "word_count": 1299 }, "last_updated": "2023-07-14T21:56:33.943810+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE VILLAGE OF WESTVILLE, Plaintiff-Appellant, v. LOITZ BROTHERS CONSTRUCTION COMPANY, INC., Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE SPITZ\ndelivered the opinion of the court:\nOn June 18, 1986, Loitz Bros. Construction Company, Inc. (Loitz), filed a demand for arbitration with the American Arbitration Association and served the demand on the village of Westville (Westville). The dispute for which Loitz sought arbitration arose out of a construction contract between O\u2019Neil Brothers Construction Company, Inc. (O\u2019Neil), and Westville for the construction of a sanitary sewer system. Loitz was a subcontractor of O\u2019Neil and was approved by West-ville to be a subcontractor. On June 10, 1986, O\u2019Neil assigned its rights to pursue claims under the contract to Loitz and also authorized Loitz to proceed in its name in the pursuit of said claims. The contract between O\u2019Neil and Westville contained a \u201cbroad form\u201d of arbitration agreement which provided:\n\u201cAll claims, disputes and other matters in question arising out of, or relating to, the CONTRACT DOCUMENTS or the breach thereof, except for claims which have been waived by the making and acceptance of final payment as provided by Section 20, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in any court having jurisdiction thereof.\u201d\nOn January 28, 1987, Westville filed a motion for stay of the arbitration proceeding in the circuit court of Vermilion County. On May 6, 1987, O\u2019Neil was added as a party claimant to the arbitration proceeding before the American Arbitration Association. On May 19, 1987, a hearing was conducted to consider the motion for stay of arbitration proceedings. On July 8, 1987, the circuit court entered an order denying the motion for stay of arbitration and directing the parties to proceed to arbitration. It is from this order that Westville appeals.\nAs both parties agree, upon application to a court to stay arbitration proceedings, the only issue to be considered by the court is whether there is an agreement to arbitrate, and this question is to be summarily determined. Lester Witte & Co. v. Lundy (1981), 98 Ill. App. 3d 1100, 425 N.E.2d 1; Ill. Rev. Stat. 1985, ch. 10, pars. 102(a), (b).\nWestville\u2019s principal contention on appeal is that no valid assignment of a right to arbitrate has occurred in this case. They base this contention upon a \u201cnonassignability\u201d clause in the contract. However, as the court stated in Kennedy v. Deere & Co. (1986), 142 Ill. App. 3d 781, 785, 492 N.E.2d 199, 202:\n\u201cLacking any statutory prohibition, the right to receive moneys due or to become due under an existing contract may be assigned though the contract itself may be unassignable. (DuPont DeBie v. Vredenburgh (4th Cir. 1974), 490 F.2d 1057.) Under Federal common law, no less than under the law of this State, an assignee for collection may sue as the real party in interest. Staggers v. Otto Gerdau Co. (2d Cir. 1966), 359 F.2d 292, citing Rosenblum v. Dingfelder (2d Cir. 1940), 111 F.2d 406.\u201d\nAdditionally, as the court stated in Saltzberg v. Fishman (1984), 123 Ill. App. 3d 447, 452, 462 N.E.2d 901, 905:\n\u201cA chose in action is also personal property and is assignable. (See Browning v. Heritage Insurance Co. (1975), 33 Ill. App. 3d 943, 947, 388 N.E.2d 912.) A suit to enforce a chose in action may properly be brought in the name of the assignee. See Ill. Rev. Stat. 1981, ch. 110, par. 2\u2014403(a).\u201d\nFurthermore, as the court stated in Ozdeger v. Altay (1978), 66 Ill. App. 3d 629, 632-33, 384 N.E.2d 82, 84-85, in construing an arbitration agreement similar to the one at issue in the instant case:\n\u201cWe believe the holding of this court in Roosevelt University v. Mayfair Construction Co. governs the outcome of the present case. The contract there contained an arbitration clause identical to the clause with which we are concerned. This court held that, in comparison to a clause providing for arbitration of disputes \u2018arising in connection with\u2019 a contract, a clause using the language \u2018arising out of, or relating to\u2019 is broader in scope. As in Blades, the contractor claimed damages for owner-caused delays under a contract which contained no express provision' relating to this issue. The court, while agreeing with the Blades holding, nevertheless held that the inclusion of this type of arbitration clause in the contract justified submission of the issue to arbitration. Similarly here, by inserting this broad arbitration clause into the contract, it is clear that the parties intended to resolve through arbitration any and all disputes arising out of the subject matter of the contract, that is, the construction of plaintiffs\u2019 home. The carpentry management agreement is but one phase of this construction project. The subsequent oral agreement is no less related to the written contract than the addendum thereto which this court has previously held subject to the arbitration clause. [Citation.]\nWe hold that the matters alleged in plaintiffs\u2019 amended complaint are clearly disputes \u2018arising out of, or relating to\u2019 the original agreement and, as such, are required to be resolved by arbitration. (Roosevelt University v. Mayfair Construction Co.) Moreover, even were we to find that the scope of the arbitration clause is in doubt, we believe that this issue, by virtue of the broad language of the clause, should be resolved, in the first instance, by the arbitrators, subject to ultimate judicial review. School District No. 46 v. Del Bianco (1966), 68 Ill. App. 2d 145, 215 N.E.2d 25; Roosevelt University.\u201d\nConsequently we conclude that the assignment of the right to arbitrate from O\u2019Neil to Loitz was valid and that the issues now raised in this appeal should be resolved by arbitration. Ozdeger, 66 Ill. App. 3d at 633, 384 N.E.2d at 84; Kennedy, 142 Ill. App. 3d 781, 492 N.E.2d 199; Saltzberg, 123 Ill. App. 3d 447, 462 N.E.2d 901.\nFurthermore, assuming arguendo that O\u2019Neil could not validly assign its right to Loitz, we still conclude that the circuit court\u2019s decision to deny the motion for stay of arbitration proceedings was correct. There is obviously a dispute \u201carising out of, or relating to\u201d the contract documents in this case. Furthermore, there is clearly an arbitration agreement between O\u2019Neil and Westville. Since O\u2019Neil is a party claimant in the arbitration proceeding, we see no grounds for preventing O\u2019Neil from arbitrating its claim against Westville.\nWestville\u2019s contention on appeal that O\u2019Neil accepted final payment under the contract and that this acceptance operated as a \u201crelease\u201d of all claims against Westville is an issue arising out of the contract which must be resolved by the arbitration. We note, however, that Westville contends that the \u201cfinal payment\u201d was accepted on November 14, 1985, but that according to an affidavit in the record, Westville stated that no \u201cfinal payment\u201d would be made until final waivers of lien from subcontractors and the final contractor\u2019s affidavit were received, and these documents were never given to Westville. Furthermore, other evidence in the record indicates that transactions pursuant to the contract between O\u2019Neil and Westville continued well after the date of the acceptance by O\u2019Neil of the purported \u201cfinal payment.\u201d Based upon the evidence in the record, we conclude that West-ville has failed to prove that they should be released from the claims of O\u2019Neil and Loitz.\nFor the reasons stated herein, the order of the circuit court denying Westville\u2019s motion for stay of arbitration proceedings is hereby affirmed.\nAffirmed.\nMcCULLOUGH and KNECHT, JJ., concur.", "type": "majority", "author": "JUSTICE SPITZ" } ], "attorneys": [ "Wendell W. Wright, of Wright Law Offices, of Danville, for appellant.", "Richard T. West, of Follmer & West, of Urbana, for appellee." ], "corrections": "", "head_matter": "THE VILLAGE OF WESTVILLE, Plaintiff-Appellant, v. LOITZ BROTHERS CONSTRUCTION COMPANY, INC., Defendant-Appellee.\nFourth District\nNo. 4\u201487\u20140521\nOpinion filed January 21, 1988.\nWendell W. Wright, of Wright Law Offices, of Danville, for appellant.\nRichard T. West, of Follmer & West, of Urbana, for appellee." }, "file_name": "0338-01", "first_page_order": 360, "last_page_order": 363 }