{ "id": 5298245, "name": "ALLAN J. HAMILTON, Indiv. and as Trustee, et al., Plaintiffs-Appellees, v. J. McDONALD WILLIAMS et al., Defendants-Appellants", "name_abbreviation": "Hamilton v. Williams", "decision_date": "1991-05-15", "docket_number": "No. 2\u201489\u20141335", "first_page": "230", "last_page": "248", "citations": [ { "type": "official", "cite": "214 Ill. App. 3d 230" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "408 Ill. 388", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2643678 ], "pin_cites": [ { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/ill/408/0388-01" ] }, { "cite": "86 Ill. App. 3d 437", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3187629 ], "pin_cites": [ { "page": "450" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/0437-01" ] }, { "cite": "76 Ill. 2d 427", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2983269 ], "year": 1980, "pin_cites": [ { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0427-01" ] }, { "cite": "86 Ill. App. 2d 61", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2550762 ], "pin_cites": [ { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/86/0061-01" ] }, { "cite": "2 Ill. App. 3d 241", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5658970 ], "pin_cites": [ { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/118/0584-01" ] }, { "cite": "309 Ill. 476", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5102625 ], "year": 1983, "pin_cites": [ { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/ill/309/0476-01" ] }, { "cite": "339 Ill. 504", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5241704 ], "year": 1923, "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/ill/339/0504-01" ] }, { "cite": "159 Ill. App. 3d 237", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3612843 ], "weight": 4, "pin_cites": [ { "page": "248" }, { "page": "241-42" }, { "page": "251" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/159/0237-01" ] }, { "cite": "156 Ill. App. 3d 76", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3620803 ], "pin_cites": [ { "page": "230-31" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/177/0226-01" ] }, { "cite": "20 Ill. 2d 89", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2739265 ], "year": 1988, "pin_cites": [ { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/20/0089-01" ] }, { "cite": "178 Ill. App. 3d 424", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2432712 ], "weight": 2, "pin_cites": [ { "page": "436" }, { "page": "436" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/178/0424-01" ] }, { "cite": "164 Ill. App. 3d 660", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3581576 ], "pin_cites": [ { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0660-01" ] }, { "cite": "166 Ill. App. 3d 339", "category": "reporters:state", "reporter": "Ill. 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App. 136", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3302717 ], "weight": 2, "year": 1895, "opinion_index": 0, "case_paths": [ "/ill-app/250/0136-01" ] }, { "cite": "48 Ill. App. 3d 802", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3373504 ], "weight": 3, "year": 1928, "pin_cites": [ { "page": "803-04" }, { "page": "804" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/48/0802-01" ] }, { "cite": "102 Ill. App. 3d 681", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3072193 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0681-01" ] } ], "analysis": { "cardinality": 1579, "char_count": 44696, "ocr_confidence": 0.78, "pagerank": { "raw": 1.4611796779062534e-07, "percentile": 0.6573869750707474 }, "sha256": "1b55d0eb4e59abf270cf01d1b9fe44e34b83544f1e9d293502a18d310252809a", "simhash": "1:a28e65ffafa3f4fd", "word_count": 7241 }, "last_updated": "2023-07-14T20:26:06.259068+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ALLAN J. HAMILTON, Indiv. and as Trustee, et al., Plaintiffs-Appellees, v. J. McDONALD WILLIAMS et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE UNVERZAGT\ndelivered the opinion of the court:\nIf, indeed, the object of arbitration is to achieve the final disposition of disputes in an easier, more expeditious and less expensive manner than by litigation (Board of Trustees of Community College District No. 508 v. Cook County College Teachers Union, Local 1600 (1981), 102 Ill. App. 3d 681), this case is arbitration gone seriously awry. Following receipt of the arbitrator\u2019s award in July 1987, its subsequent vacation, ordered rearbitration and denial of vacation of the rearbitration award, more than three years\u2019 time has passed, 12,000-plus pages of pleadings and reports of proceeding have been generated and untold amounts of time and money have been expended. The parties, now on this court\u2019s doorstep, are still pointing fingers at each other. Given the history of this cause, final resolution in this penultimate forum seems unlikely, but \u201cHope springs eternal.\u201d\nThe defendants, collectively referred to hereafter as Crow, a nationwide real estate organization headquartered in Dallas, Texas, and the plaintiffs, who will be referred to collectively herein as Hamilton Partners (including primarily within that designation Messrs. Hamilton, Lunt and Wauterlek), became embroiled in litigation when Hamilton, Lunt, Wauterlek and all of their partners in the Itasca, Illinois, headquarters of Crow\u2019s Great Lakes Region abruptly resigned from Crow in January 1987 and formed Hamilton Partners. Various Hamilton and Crow partners and entities were partners in over 200 project partnerships in the Great Lakes Region, including some 56 in the Chicago/Du Page County area. The resignations automatically triggered the buy-sell procedures of the various limited partnership agreements. Crow\u2019s rejection of Hamilton Partners\u2019 initial buyout proposal and indication of an intention to exercise its option to buy Hamilton Partners out of the Crow partnerships precipitated the filing of three lawsuits in Du Page County and one suit in a Texas State court.\nConcurrent settlement negotiations culminated in a June 17, 1987, letter of Intent (Letter of Intent) wherein the parties agreed to a division of the properties and to an arbitration procedure for valuing those properties upon which the parties could not otherwise agree. It was agreed the three actions pending in Du Page County would be consolidated and dismissed, and the court would retain jurisdiction to enforce the Letter of Intent.\nIn the event the parties could not agree on the value of certain properties within the allotted 10-day period, the Letter of Intent provided that the values would be determined in accordance with section 1.2(b) thereof, to wit:\n\u201cSudler Marling, Inc. and American Appraisal Associates, Inc. will be directed by the Hamilton Partners and TCC [Crow], respectively, to deliver by July 11, 1987 to TCC and to the Hamilton Partners their determination of the value of the Hamilton Interest and TCC Interest with respect to each of the Initial Closing Properties whose purchase price was not agreed upon by TCC and Hamilton Partners. The determination will be made in accordance with the instructions set forth in Subsection 1.2(c) below. Subject to each party\u2019s compliance with Section 4.7 [relating to access to records of the partnership that currently owns the property], if any report with respect to a determination of value is not delivered in a timely manner, the first determination to be delivered will be conclusive and binding on the parties. The parties will attempt to resolve any differences in the appraisers\u2019 determinations with respect to specific interests by July 13, 1987, failing which Cushman & Wakefield (the \u2018Arbitrator\u2019) will review the determination for each Initial Closing Property on which the appraisers do not agree, inspect those Initial Closing Properties and, solely on the basis of this review, its inspection, and any information it may request from the parties, arbitrate the dispute. It will deliver its determination of the values of the TCC Interests and Hamilton Interests in those Initial Closing Properties to TCC and Hamilton no later than July 17, 1987. This determination will be conclusive and binding upon the parties.\u201d (Emphasis added.)\nThe Letter of Intent contemplated that purchase of the interests in a substantial number of the various project partnerships would occur at an initial closing on July 22, 1987, and a second closing would deal with the remaining project partnership interests. The most significant individual partnership properties included in the initial closing were the vacant land parcels of Allen Hamilton\u2019s two Itasca namesake developments, Hamilton Lakes Office Park (Office Park) and Hamilton Lakes Business Park (Business Park).\nBecause the parties could not agree on the value of these two Hamilton Lakes properties by June 27, the appraisal arbitration mechanism provided for in the Letter of Intent was activated. The parties have provided commendable minutely detailed and thoroughly record-referenced statements of facts as to the what and why of the events which led to the submission of the matter of the Hamilton Lakes properties\u2019 valuations to arbitration. Condensing this material we find the following background is presented.\nThe initial market information Crow received from its appraiser, American Appraisal Associates, Inc. (hereinafter American), a Milwaukee-based corporation, on the Hamilton Lakes properties was not of the quality Crow desired. It became concerned that American would either not be able to meet the deadline for submission of the appraisal or, if it did, that its appraisal would not meet Crow\u2019s expectations of quality. Consequently, it sought out and hired Jared Shlaes of Chicago-based Shlaes & Company to appraise the Hamilton Lakes Office Park property. When Shlaes learned later from Crow that John T. Ryan of Cushman & Wakefield was to be the arbitrator, Shlaes disclosed to Crow that he and Ryan had worked together 13 years ago, but Shlaes told Crow that he did not believe that past relationship would be a problem for the arbitration. Crow expanded Shlaes\u2019 assignment to include the Business Park property as well. American was told to stop work on the Hamilton Lakes properties, to turn over its work product to Shlaes and lend whatever assistance Shlaes needed.\nShortly before the appraisals were due to be exchanged between the parties, Crow began to worry that its use of Shlaes rather than American might be viewed by Hamilton Partners as a technical breach of the Letter of Intent. Crow then essentially bullied American into assuming the appearance of a contractor/subcontractor relationship with Shlaes. At the time, Crow owed American over $1 million in fees, and, although American had no interest in a contractor/subcontractor relationship with Shlaes, and Shlaes did not have any interest in such a relationship with American, American nonetheless agreed to help Crow with what Crow termed was a \u201clegal problem.\u201d Thereafter, Crow caused alterations to be made by American to appraisal cover sheets and transmittal letters to show that Shlaes prepared the appraisals at American\u2019s request, rather than Crow\u2019s as originally shown on the cover sheets, and that American had \u201cadopted\u201d Shlaes\u2019 appraisal reports in addition to having \u201caccepted [them] as correct.\u201d\nPursuant to the Letter of Intent, Crow and Hamilton Partners received the appraisers\u2019 reports on July 11. Shlaes\u2019 appraisal reports for Crow valued the Office Park at $22.8 million and the Business Park at $14.8 million. Hamilton Partners\u2019 appraiser, Sudler Marling, Inc., valued the Office Park at $67.29 million and the Business Park at $22.5 million.\nUpon receipt of the Crow appraisals along with the altered transmittal letters and cover sheets, Hamilton, Lunt, and Wauterlek were variously \u201csurprised,\u201d \u201cconcerned,\u201d \u201cupset,\u201d \u201cconfused,\u201d or \u201calarmed\u201d when they saw the appraisal reports were prepared by Shlaes rather than American and felt the matter \u201cneeded to be investigated.\u201d All three recognized that American was to prepare the appraisals under the terms of the Letter of Intent. Hamilton testified he did not know at that time whether \u201cif American appraisal was shorthanded, it would be permissible under the Letter of Intent for Shlaes to have become involved,\u201d and Wauterlek testified he did not do anything in reaction to seeing Shlaes\u2019 name on the reports because \u201cit also had American Appraisal on a cover letter.\u201d Lunt said he was \u201cunclear\u201d as to the import of the cover sheets and transmittal letters and as to whether \u201cthe Shlaes reports tendered by Crow were American Appraisal appraisals within the meaning of the Letter of Intent.\u201d Lunt also said he \u201cconsidered the possibility\u201d that American might have subcontracted the Hamilton Lakes appraisals to Shlaes but that \u201cin that time frame [July 11 through 20] was unclear\u201d as to whether such subcontracting was permissible. Despite its confusion and uncertainty, Hamilton Partners determined to proceed with the arbitration. Its consensus was that the Shlaes reports were of such poor quality and reflected values that were so unreasonably low that the arbitrator could not possibly agree with them, and, therefore, the Shlaes reports could provide a strategic advantage to Hamilton Partners. Making no objection to the use of Shlaes then or anytime before the arbitrator\u2019s decision was received July 20, the appraisal reports were forwarded to the arbitrator, John T. Ryan, on July 13.\nIn an ex parte telephone conversation between Hamilton Partners\u2019 Lunt and the arbitrator, John Ryan, on July 14, Lunt learned that Ryan had worked for Shlaes 13 years earlier, but Ryan told Lunt he did not believe this created any conflict for him. When Lunt queried Ryan as to the matter of American\u2019s subcontracting the Hamilton Lakes appraisals to Shlaes, Ryan stated it was \u201cunusual\u201d for an appraisal company to submit a report actually done by another appraisal company on a project the size of Hamilton Lakes but that it does sometimes happen. After this conversation, Lunt described himself as \u201crelieved\u201d and satisfied that Ryan\u2019s former employment by Shlaes would not be a problem for the arbitration. Lunt testified it was his belief at that time that Shlaes had been brought into the project by American, not Crow.\nLater on the 14th, Hamilton Partners met with its lead real estate attorney, Joel Rubin, who was a primary negotiator on the Letter of Intent and intimately familiar with its terms. Hamilton Partners\u2019 concern about the use of Shlaes was not discussed with Rubin at that time, however. The next day, July 15, Rubin confirmed by letter of instruction to the arbitrator that he was to arbitrate the value of the Hamilton Lakes properties based on the American/Shlaes reports submitted by Crow. Another letter to the arbitrator dated July 16 indicated the appraisers would make a joint, not separate, oral presentation to the arbitrator on July 17 to clarify any discrepancies or answer questions. This letter was copied to Shlaes but not American at the request of Crow\u2019s Jon Hammes; Rubin and Hammes did not discuss the reason for Hammes\u2019 request.\nIn a meeting on July 17 between Hamilton Partners\u2019 Lunt and Crow\u2019s Manske at which Crow\u2019s Hammes was also present, Lunt \u201cjokingly\u201d commented to Hammes after Manske left the room at one point that Crow had not been straightforward in bringing Shlaes into the process without first informing Hamilton Partners or obtaining its approval. Hammes responded that American \u201cneeded assistance\u201d to complete the work and that Manske had contacted a former professor of his and Hammes\u2019, Professor Graaskamp, for a recommendation of an alternate appraiser. Graaskamp recommended Shlaes. Hammes thereafter either called or called upon Shlaes. Lunt told Hammes at that same meeting on July 17 about his ex parte telephone conversation with Ryan during which Ryan disclosed Ms prior relationship with Shlaes and that Ryan assured him that there was no problem. Lunt testified he was giving Hammes \u201ca hard time\u201d and was \u201ckind of saying, \u2018Jon, you could have really gotten in trouble if [the Ryan/Shlaes past employment relationship] would have been a real serious conflict.\u2019 \u201d Lunt testified his \u201cjoking\u201d manner reflected the mental state of his no longer being upset about the use of Shlaes since at that time he had resolved in his mind to go forward with the arbitration even knowing that the appraisals were Shlaes\u2019 and that Shlaes had previously employed Ryan.\nThat same day, July 17, in accordance with the procedures outlined in attorney Rubin\u2019s July 15 letter, the appraisers, Sudler Marling, Inc., for Hamilton Partners and Shlaes & Co. for Crow, made their presentations to the arbitrator. The arbitrator\u2019s decision was expected to be received on July 20.\nAn hour or so prior to the arrival of the arbitrator\u2019s decision on July 20, Hamilton Partners\u2019 Wauterlek and Hamilton were meeting with Crow\u2019s Woodhouse regarding property other than Hamilton Lakes. When the topic of the arbitration came up, Hamilton recalled that Woodhouse indicated that Crow was \u201cpretty confident\u201d about the values coming in at $25 million because of the Shlaes-Ryan relationship in that Shlaes put Ryan into the appraisal business. Hamilton Partners\u2019 Wauterlek\u2019s recollection was that Woodhouse said that the numbers which were going to come in on the arbitration were the numbers that were on the Crow appraisals and that he would not blame Hamilton Partners for being upset because it, in fact, was \u201cgoing to be screwed\u201d because Shlaes had put Ryan into business. Wauterlek stated Woodhouse said Crow\u2019s Hammes was the source of his information. Woodhouse testified somewhat differently, stating that he mentioned to Hamilton that Crow\u2019s Hammes felt that Hamilton Partners\u2019 numbers were off in left field whereas Crow\u2019s numbers were supportable. He also told Hamilton that Crow\u2019s Hammes had told him (Woodhouse) that there was a relationship between Ryan and Shlaes. Woodhouse further testified that Hammes \u201cmay have\u201d told him (Woodhouse) that he knew of the RyanShlaes relationship when he selected Shlaes, but Woodhouse denied he told this to Hamilton.\nThe arbitrator\u2019s decision delivered shortly after the Woodhouse conversation occurred determined the value of the Office Park to be $25 million and the value of the Business Park to be $15 million. These values were very close to the Shlaes appraisals ($22.8 million and $14.8 million) and a combined total of nearly $50 million less than the Sudler Marling appraisals ($67.29 million and $22.5 million).\nTwo days later, after consulting with counsel, Hamilton Partners filed an emergency motion to enforce the Letter of Intent and apply the \u201cDraconian\u201d remedy on the grounds that (1) Crow\u2019s use of an appraisal prepared \u2014 not by American as specified in the Letter of Intent \u2014 but, rather, by Shlaes & Company, even if Shlaes was operating as a subcontractor of American, was a breach of the Letter of Intent and (2) Shlaes\u2019 prior employment relationship with the arbitrator, Jack Ryan of Cushman & Wakefield, fatally tainted the arbitration. Hamilton Partners urged that Crow\u2019s breach of the Letter of Intent by delivering the Shlaes appraisal rather than one from American was tantamount to the delivery of no appraisal in which event the \u201cDraconian\u201d remedy provided in section 1.2(b) of the Letter of Intent set forth above should be applied, i.e., the first appraisal to be delivered (Hamilton Partners\u2019, that is) would be deemed conclusive and binding on the parties.\nCrow\u2019s response to this motion advanced its position that the use of Shlaes was proper and permissible since Shlaes was acting as American\u2019s subcontractor. Appended thereto were the various documents purporting to show there was a subcontract: the altered cover sheets and transmittal letters and a copy of a subcontract between American and Shlaes & Co. purportedly agreed to and accepted by Shlaes as of July 7 but actually not prepared until July 13 and signed by Shlaes \u201cjust to get rid of the piece of paper\u201d until sometime after that date. Crow subsequently moved for summary judgment and to stay discovery on that same basis supported by affidavits of American\u2019s Paul Gross (which affidavit Gross later testified contained false statements), Shlaes, Crow\u2019s Hammes, and others.\nIn subsequent proceedings, the court granted summary judgment as to the issue of whether the prior employment relationship between Shlaes and Ryan was a fatal conflict of interest \u2014 finding that it was not \u2014 and finding that Hamilton Partners\u2019 Ronald Lunt was acting as an agent for all the Hamilton Partners. Discovery was then conducted over the course of several months. Following a seven-week trial, the court found the naming of American Appraisal Associates, Inc., was a material, bargained-for term of the parties\u2019 Letter of Intent and that the use of anyone other than American, including an entity subcontracted by American, was a breach of the Letter of Intent. It relatedly concluded that the evidence showed Shlaes was not a subcontractor of American and that Hamilton Partners was equally bound by its own conduct or the conduct of other persons acting as its agent.\nThe court further found that Hamilton Partners had not knowingly and intentionally waived Crow\u2019s breach of the Letter of Intent, but that Hamilton Partners\u2019 conduct subsequent to Crow\u2019s breach of the Letter of Intent (that is, proceeding to arbitration despite the Shlaes-prepared appraisal report) waived only its right to enforcement of the Draconian remedy provided therein. Finally, the court set aside the arbitrator\u2019s val-nation award and directed the parties to submit a new plan for appraisal and arbitration.\nPursuant to the court\u2019s order, the parties subsequently entered into an agreed order for rearbitration, expressly reserving therein the right to appeal, inter alia, from the court\u2019s order vacating the first arbitration award. Crow\u2019s new appraiser, John Shanahan, valued the Office Park at $21.4 million ($1.4 million less than the first appraisal) and the Business Park at $12.9 million ($1.9 million less). Hamilton Partners\u2019 new appraiser, William McCann, valued the Office Park at $55.3 million (approximately $12 million less than the first appraisal) and the Business Park at $19.5 million ($3 million less). In July 1989 the arbitrator, Guy A. Romito, assigned a value of $55.3 million to the Office Park and $19.5 million to the Business Park, the identical values assigned by Hamilton Partners\u2019 appraiser. The practical effect of the rearbitration was an award to Hamilton Partners of $8,535,000, which was its proportionate share of the rearbitrated values.\nCrow\u2019s motion to vacate the rearbitration award was summarily denied, as was its motion to reconsider that denial, and it filed the instant appeal.\nCrow raises three issues, the first of which, it asserts, is dispositive: (1) whether the court erred in vacating the first arbitration award because Hamilton Partners waived its right to object to Crow\u2019s use of a substitute appraiser by proceeding to arbitration with knowledge of the substitute appraiser without objection thereto; (2) whether, after rearbitration, the court erred in failing to hold an evidentiary hearing where Crow\u2019s uncontroverted pleadings and affidavits established a prima facie case for vacating the award; and (3) whether the court erred in awarding Hamilton Partners prejudgment interest on the difference in value between the first and second arbitrations when that difference was an unliquidated amount until after the rearbitration results were announced.\nWe believe the first issue is dispositive and should be decided in Crow\u2019s favor. Crow argues that, although the court correctly determined that Hamilton Partners\u2019 conduct in proceeding to arbitration with knowledge of Crow\u2019s breach of the Letter of Intent without objection waived its right to the \u201cDraconian\u201d remedy, it should also have found that that same conduct waived the breach itself and it should not have vacated the award and ordered rearbitration.\nHamilton Partners responds that it did not and could not waive Crow\u2019s breach because it did not know until after arbitration the extent of Crow\u2019s concealment and fabrication of the Shlaes/American relationship, that it had a right to proceed to arbitration under the circumstances, and that Crow owed it a fiduciary obligation which should estop it from claiming waiver in the face of its deliberate concealment.\nIt is fundamental that objections to defects in arbitration proceedings are waived if a party fails to raise them after becoming aware of them and before the arbitration decision is announced. (Jean A. McCoy & Sons, Inc. v. La Salle County (1977), 48 Ill. App. 3d 802; Wechsler v. Gidwitz (1928), 250 Ill. App. 136; Seaton v. Kendall (1895), 61 Ill. App. 289, aff'd (1898), 171 Ill. 410.) In Seaton, for example, the parties proceeded to arbitration although one of the parties knew that the other party had an ex parte conversation with the arbitrator. When that party sought to prevent enforcement of the arbitrator\u2019s award and have it vacated, the court, noting that party\u2019s knowledge of the conversation and failure to withdraw the matter from submission to the arbitrator as he might have, stated:\n\u201cWe think that he cannot be permitted thus to experiment with the tribunal he had agreed in creating, to occupy the position that he would rest content with its judgment if in his favor, while he held in reserve a complaint he would make if he was not satisfied \u2022with the decision. His silence, after he became aware of what he now terms improper conduct, must be regarded as a waiver of such impropriety.\u201d Seaton v. Kendall, 61 Ill. App. at 293.\nEssentially the same thing occurred in Jean A. McCoy & Sons, Inc. In that case the county refused to allow McCoy\u2019s claim for extras in its construction contract with the county, and an arbitration was called pursuant to the terms of the contract. Later in the evening on the date the arbitrator held a hearing on the matter, an officer of McCoy entered a restaurant and observed the arbitrator having a drink with members of the county board and their witnesses at the arbitration hearing. The McCoy officer joined the party, and the arbitrator left shortly thereafter. McCoy raised no objection to this meeting between the arbitrator and the county representatives until after the arbitrator\u2019s unfavorable award against McCoy was announced. McCoy was successful in overturning the arbitrator\u2019s decision in the circuit court, and the county appealed.\nOn appeal, the circuit court was reversed and the cause remanded with directions to reinstate the arbitrator\u2019s decision. Acknowledging the impropriety of the arbitrator\u2019s ex parte communication with the county representatives, but relying on Seaton and Wechsler, the court found McCoy waived the misconduct by not mentioning it until after the arbitrator\u2019s decision was handed down. McCoy, 48 Ill. App. 3d at 803-04; see also Wechsler, 250 Ill. App. 136 (complainant waived objection to the bias of one of the arbitrators where he knew of it before the rendition of the award but did not make any complaint until after the rendition of the award).\nHamilton Partners seeks to avoid the control of this precedent over the instant cause on several grounds. First, it argues the above cases involved misconduct by the arbitrator rather than one of the parties as is the case here. We do not find that to be a distinguishing feature. The gist of the waiver found in Seaton, Wechsler and Jean A. McCoy & Sons, Inc. was simply that the complaining party had knowledge of either a defect, impropriety or irregularity prior to the arbitration decision being made but did not make any objection thereto until after an unfavorable arbitration decision was rendered. That is the same situation claimed here by Crow. Hamilton Partners had knowledge of Shlaes & Company\u2019s involvement prior to the issuance of the arbitrator\u2019s decision but did not object to it until after the arbitrator\u2019s unfavorable decision was issued.\nThis prompts Hamilton Partners\u2019 second distinguishing feature, that it was unaware of the true nature of Shlaes\u2019 employment by Crow and of Crow\u2019s efforts to keep it from that knowledge by drawing American Appraisers back into the picture and creating the false subcontractor arrangement between Shlaes and American. Hamilton Partners claims the instant cause is not a waiver case but, rather, a misrepresentation case, and Crow should be estopped from claiming waiver due to the numerous misrepresentations it made to Hamilton Partners. Analyzed either way, we nonetheless conclude Hamilton Partners cannot avoid the controlling law.\nIt is clear that the submission to arbitration is accomplished by the agreement of the parties, and the arbitrators and courts can only carry it into effect according to its terms and conditions. However, \u201cthe parties may undoubtedly waive or dispense with any of its terms, in precisely the same mode that they may those of any other contract, either by an express or implied agreement.\u201d (Buntain v. Curtis (1862), 27 Ill. 373, 377-78.) The waiver of a term or a condition of a contract has its usual meaning, that is, the voluntary and intentional relinquishment of a known right. (17 Am. Jur. 2d Contracts \u00a7658 (1991).) The waiver of a provision of a contract is, in effect, a modification of the contract and, once a waiver is made, it cannot be revoked without the consent of the other party. (28 Am. Jur. 2d Estoppel and Waiver \u00a7156 (1966).) Ignorance of a material fact negatives waiver, however, and waiver is not established where the consent was given under a mistake or misapprehension of fact. (28 Am. Jur. 2d Estoppel and Waiver \u00a7158 (1966).) The applicability of waiver focuses on the intent of the nonbreaching party (Wald v. Chicago Shippers Association (1988), 175 Ill. App. 3d 607, 621; Whalen v. K mart Corp. (1988), 166 Ill. App. 3d 339, 343), and waiver may be inferred when the party relinquishes a known right either expressly or by conduct that is inconsistent with an intent to enforce that right (Wald, 175 Ill. App. 3d at 621; Hahn v. A.G. Becker Paribas, Inc. (1987), 164 Ill. App. 3d 660, 670; Jean A. McCoy & Sons, Inc., 48 Ill. App. 3d at 804). In order to waive a claim, it is not necessary that a party be certain of the correctness of the claim and its legal efficacy; it is enough that he knows of the existence of the claim and its reasonably possible efficacy. 28 Am. Jur. 2d Estoppel and Waiver \u00a7158 (1966).\nAs to estoppel, a court will apply estoppel if:\n\u201c(1) the defendant has misrepresented or concealed a material fact; (2) the defendant had either actual or implied knowledge that the representations were untrue at the time they were made; (3) the plaintiff was unaware that the representations were untrue both at the time they were made and the time that they were acted upon; (4) the defendant intended or expected the plaintiff to act upon the misrepresentations; (5) the plaintiff did rely or act upon the defendant\u2019s representations; and (6) the plaintiff, by acting upon the basis of defendant\u2019s representations, would be prejudiced if the defendant was not estopped. [Citation.] The party claiming estoppel must have had no knowledge or convenient means of discovering the true facts.\u201d Dodd v. Cavett Rexall Drugs, Inc. (1988), 178 Ill. App. 3d 424, 436.\nA party seeking relief as a result of another party\u2019s fraudulent misrepresentations must have had a right to rely on them. That is, the misrepresentations must be viewed in the light of all the facts of which the party had actual notice and those of which he might have availed himself by the exercise of ordinary prudence. Schmidt v. Landfield (1960), 20 Ill. 2d 89, 94; MBC, Inc. v. Space Center Minnesota, Inc. (1988), 177 Ill. App. 3d 226, 230-31.\nGenerally, questions of waiver and estoppel are for the trier of fact. (Aetna Casualty & Surety Co. v. Oak Park Trust & Savings Bank (1988), 168 Ill. App. 3d 1000, 1004.) If the facts necessary to constitute either waiver or estoppel are in dispute or if reasonable minds might differ as to the inferences to be drawn from the facts in evidence, then both issues become questions of fact. (Pantle v. Industrial Comm'n (1975), 61 Ill. 2d 365, 369.) Where there is no dispute as to the material facts and only one reasonable inference can be drawn therefrom, it is a question of law whether the facts proved constitute estoppel. Pantle, 61 Ill. 2d at 369.\nAs noted above, based on the evidence it received at the 28-day hearing on Hamilton Partners\u2019 motion to enforce the Letter of Intent, the court found that the use of anyone other than American, including anyone acting as a subcontractor of American, was a breach of the Letter of Intent and that Crow breached the Letter of Intent by delivering an appraisal prepared by Shlaes & Company rather than American. It further found Hamilton Partners did not knowingly and intentionally waive its right to an appraisal prepared by American but that by its conduct subsequent to the breach, it did waive its right to have the Draconian remedy enforced.\nBased on our review of the record, we find there was no dispute as to the material facts necessary to constitute waiver and that only one reasonable inference can be drawn: that Hamilton Partners waived its objection to the Shlaes\u2019 appraisals by not raising it prior to issuance of the arbitrator\u2019s decision. A fact is \u201cmaterial\u201d to the claim in issue when the success of the claim is dependent upon the existence of that fact. Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 88.\nThe success of Crow\u2019s claim below in resisting Hamilton Partners\u2019 motion to enforce the Draconian remedy depended upon it being able to establish by a preponderance of the evidence that Hamilton Partners waived its right to specific enforcement of the Letter of Intent, that is, that Hamilton Partners voluntarily and intentionally waived a known right and that such waiver was not the result of ignorance of a material fact or of a mistake or misapprehension of fact. In this regard, ignorance of a material fact means a party was ignorant of a fact which, if known, would have caused him to act differently. Buechin v. Ogden Chrysler-Plymouth, Inc. (1987), 159 Ill. App. 3d 237, 248.\nWhen Hamilton Partners first received the Crow appraisals on July 11, it was clear from the transmittal letters and cover sheets that the Hamilton Lakes appraisals had been prepared by Shlaes & Company, not American. Although Lunt testified he did not even recall seeing the transmittal letters, Hamilton and Wauterlek both testified that it was their understanding prior to the completion of the arbitration process that any use of Shlaes, even as a subcontractor, was a breach of the Letter of Intent. Hamilton Partners reasonably knew that it had a right to appraisals prepared by American and not by a company to which it subcontracted the work.\nHamilton Partners argues that the transmittal letters and cover sheets caused it to believe it was American rather than Crow which brought Shlaes into the appraisal process and that if it \u201chad known the facts,\u201d it \u201ccould have objected\u201d and \u201cwould have acted differently.\u201d Notwithstanding Hammes\u2019 attempt to underplay Crow\u2019s role in securing the Shlaes appraisals by ambiguously if not outright falsely stating that American \u201cneeded assistance\u201d \u2014 meaning that Crow thought American needed assistance rather than American actually needed assistance\u2014 Hammes did tell Lunt on July 17 that it was Crow which brought Shlaes into the appraisal process, and that fact is not disputed. Lunt, in fact, testified that during the July 17 discussion with Hammes, he chided Hammes concerning Hamilton Partners\u2019 feeling that Crow had not been \u201cstraightforward\u201d with Hamilton Partners about bringing Shlaes into the process and that it was \u201cnot right\u201d that Crow used Shlaes without checking with Hamilton Partners or getting its approval. As noted above, the joking manner in which Lunt scolded Hammes for Crow\u2019s sleight was due to the fact that by that date, July 17, Hamilton Partners had already decided to accept the Shlaes appraisals and proceed with the arbitration. As Hamilton and Lunt both testified concerning Hamilton Partners\u2019 decision to proceed, they were not trying to break the deal or to derail the execution of the agreement; they were trying to see it successfully concluded so it could obtain control over its Hamilton Partners\u2019 properties.\n\u25a0 Coupling Hammes\u2019 admission of Crow\u2019s involvement in securing the Shlaes appraisals with Lunt\u2019s knowledge at that time that Shlaes and Ryan had a prior business relationship, Lunt, whom the court found to be acting as Hamilton Partners\u2019 agent, was possessed of all the material facts needed in order to make a voluntary and intentional waiver of its right to receive from Crow, appraisals of the Hamilton Lakes properties prepared by American. Knowledge of the essential and material facts constituting the breach is the only knowledge a party against whom waiver is asserted needs. (Lake Shore Country Club v. Brand (1930), 339 Ill. 504, 524; Ferrero v. National Council of Knights & Ladies of Security (1923), 309 Ill. 476, 481; Kennedy v. Hospital Service Corp. (1983), 118 Ill. App. 3d 584, 588.) We find Hamilton Partners had that knowledge and must be held by its conduct to have waived Crow\u2019s breach of the Letter of Intent.\nWe note that the apparent inconsistency created by the trial court\u2019s finding that there was no waiver of the breach but there was a waiver of the remedy based essentially on the same conduct (that is, Hamilton Partners\u2019 failure to object to Crow\u2019s nonconforming appraisal reports) may be attributable to some confusion concerning the relevant time period in which Hamilton Partners was obligated to make its objection. Counsel for Hamilton Partners argued in closing at trial that a waiver by it of Crow\u2019s performance under the Letter of Intent could only occur prior to July 11, but that after July 11, such waiver would be \u201cimpossible as a matter of law.\u201d That argument simply was not correct. A person cannot waive a right before he is in a position to assert it. (28 Am. Jur. 2d Estoppel and Waiver \u00a7157 (1966).) Hamilton Partners was not in a position to assert its right to appraisals prepared by American until those appraisals were due to be delivered to it, that is, on July 11. Only after that right accrued to it was Hamilton Partners in a position to waive Crow\u2019s delivery of the nonconforming appraisals.\nWe decline to estop Crow from asserting waiver in light of the evidence that shows Hamilton Partners knew before the arbitration decision was issued that it was Crow that brought Shlaes into the appraisal process, not American. Consequently, it cannot be said that Hamilton Partners had \u201cno knowledge of the true facts\u201d or was \u201cunaware that the representations were untrue\u201d before the arbitrator rendered his decision. (Dodd v. Cavett Rexall Drugs, Inc. (1988), 178 Ill. App. 3d 424, 436.) Also, notwithstanding its asserted uncertainty and confusion and concern upon receiving the Shlaes appraisals, and in light of the perceived strategic advantage afforded it by the poor quality of those appraisals, Hamilton Partners\u2019 attempt to learn the facts of the apparent subcontractor status of Shlaes was not probing enough even to warrant raising the issue with its own attorney or to follow up on Ryan\u2019s comment that it was \u201cunusual\u201d to use a subcontractor under the given circumstances or to follow up on Hammes\u2019 declaration that American \u201cneeded assistance.\u201d Lunt acknowledged that it was his understanding as of July 17 that without the use of Shlaes, American would not be able to complete the appraisals on time, in which case Hamilton Partners\u2019 appraisals would control pursuant to the Draconian remedy. Whether American actually needed assistance is immaterial since Hamilton Partners believed that use of anyone other than American was a breach of the Letter of Intent, and, had it so desired, it could have objected to American receiving such assistance, thus assuring that its appraisals would control. Hamilton Partners\u2019 obvious intent was not to object to the use of Shlaes & Company whether it was Crow that brought it into the process or whether it was American.\nMoreover, it is evident that Hamilton Partners did not rely upon any of Crow\u2019s misrepresentations in deciding to proceed with the arbitration. It had determined not to object to the Shlaes appraisals even before Lunt spoke with Hammes on July 17 because it believed that it \u201cstood in good stead\u201d in the arbitration proceedings given the fact the appraisals were \u201cso low and so poorly written and so devoid of facts that there was no basis for an arbitrated value.\u201d\nWe also reject Hamilton Partners\u2019 argument that it was entitled to proceed as it did because it was its \u201conly commmercially reasonable course of action\u201d and, thus, it did not waive its right to relief. Pointing to its status as a \u201cstart-up business\u201d and its inability to use or manage the project partnerships it ultimately was to receive under the plan encompassed by the Letter of Intent until after the first closing occurred, Hamilton Partners contends it was vitally important that there be a prompt and timely first closing as provided therein and that its actions during the July 11 through 20 time period must be considered in that light. It relies on Buechin v. Ogden Chrysler-Plymouth, Inc. (1987), 159 Ill. App. 3d 237, and Ross v. City of Geneva (1976), 43 Ill. App. 3d 976, in support of its argument.\nWe find Buechin and Ross distinguishable, however, since those cases concerned the issue of whether the respective plaintiff in each case had waived legal or statutory remedies by the voluntary payment of money. In Buechin, plaintiff voluntarily paid for what she believed was a \u201cnew\u201d car (that is, one \u201cthat had not been owned by anybody else, taken off the lot and in their possession\u201d) and then discovered that the car had been in another\u2019s possession for about two weeks. (Buechin, 159 Ill. App. 3d at 241-42.) We rejected the defendant\u2019s claim there that plaintiff\u2019s voluntary payment waived her cause of action for fraud and for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121\u00bd, par. 261 et seq.). Noting that plaintiff signed the binding contract to purchase the car before she learned of the other person\u2019s possession of the car, that she attempted to exercise her statutory remedy of revoking her acceptance of the car under the Uniform Commercial Code (Ill. Rev. Stat. 1985, ch. 26, par. 2\u2014608) and, alternatively, that she did exercise her option to seek her common-law remedies by her complaint for fraud, we concluded that plaintiff \u201cmerely continued to perform a partially executed contract since it would have been prejudicial to discontinue performance, and, therefore, [plaintiff] did not waive her right to damages for fraud.\u201d (Buechin, 159 Ill. App. 3d at 251.) In Ross, we found that the plaintiff\u2019s voluntary payment of a 10% surcharge imposed by ordinance on him and other commercial users of electricity produced by the defendant in its capacity as a public utility did not constitute a waiver of plaintiff\u2019s right to recovery or destroy the basis for a class suit. We determined such payment was the businessman\u2019s \u201conly commercially reasonable course of action\u201d in light of the evidence that the policy of the defendant, which was the sole provider of electricity to the commercial enterprises concerned, was to terminate the electrical supply to users for nonpayment of imposed charges and that it had so terminated services pursuant to that policy. Ross, 43 Ill. App. 3d at 984-85.\nIn contrast to the situations in Buechin and Ross, Hamilton Partners and Crow agreed here that the provisions of the Letter of Intent would be specifically enforceable against each other because damages would be an inadequate remedy, and the instant cause was prompted by Hamilton Partners\u2019 emergency motion for enforcement of the Draconian remedy. As we have found above, Hamilton Partners waived its right to Crow\u2019s strict compliance with the appraisal provisions by failing to raise an objection to its nonconforming performance before the arbitration decision was issued. Unlike Buechin, who attempted to and did exercise her various legal and statutory remedies after she discovered the defendant\u2019s fraud, or Ross, who objected to the surcharge from the receipt of the first bill which separately itemized it, when Hamilton Partners received Crow\u2019s nonconforming appraisal and later learned that Crow was the initiating force behind it, it did not seek either to immediately specifically enforce its right to a conforming performance from Crow before proceeding to arbitration or even attempt to preserve an objection to Crow\u2019s nonconforming performance by raising a formal objection to it to the arbitrator. One or the other of these actions would have been the most \u201ccommercially reasonable course of action.\u201d (See generally Jones Dairy Farm v. Local No. P-1236 (7th Cir. 1985), 760 F.2d 173, 174-75.) Instead, the Shlaes appraisal reports were unreservedly submitted for arbitration, and, even if it could be said that the appraisals were the wrong basis on which the award should have been calculated, the arbitrator\u2019s decision could not be vacated on that basis. (Ill. Rev. Stat. 1989, ch. 10, par. 112; Seither & Cherry Co. v. Illinois Bank Building Corp. (1981), 95 Ill. App. 3d 191, 195-96.) Further, it is well settled that \u201c[a] party to a contract may not lull another into a false assurance that strict compliance with a contractual duty will not be required and then sue for noncompliance.\u201d Whalen v. K mart Corp. (1988), 166 Ill. App. 3d 339, 343.\nFinally, we reject Hamilton Partners\u2019 argument that Crow, as managing partner, owed it, as limited partners, fiduciary obligations which absolutely barred Crow from claiming waiver in the face of its own deliberate concealment.\nIt is well established that all partners are fiduciaries for one another and each partner is bound to exercise the utmost good faith and honesty in all dealings and transactions relating to the partnership. (Couri v. Couri (1983), 95 Ill. 2d 91, 98; Bakalis v. Bressler (1953), 1 Ill. 2d 72, 78-79.) Dissolution of the partnership ends the fiduciary relationship (Babray v. Carlino (1971), 2 Ill. App. 3d 241, 250-51; Bluestein v. Davis (1967), 86 Ill. App. 2d 61, 67) except for purposes of an accounting or the winding up of the partnership\u2019s affairs. (Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 438; Mandell v. Centrum Frontier Corp. (1980), 86 Ill. App. 3d 437, 450; Ill. Rev. Stat. 1989, ch. 106\u00bd, par. 30.) The partnership relationship does not extend to all affairs and transactions between partners, however (see McDonald v. McDonald (1951), 408 Ill. 388, 394), and when the partners have entered into an arm\u2019s length transaction in order to effect dissolution, their relationship is not fiduciary in nature, Babray, 2 Ill. App. 3d at 251.\nIt is apparent that when Crow and Hamilton Partners executed the Letter of Intent, the admitted purpose of which was to sever the partnership relationship, they were dealing at arms\u2019 length and their relationship was not fiduciary in nature.\nWe conclude it was error for the trial court to vacate the first arbitration decision. In light of this conclusion, we do -not address the other issues raised by Crow. The judgment of the circuit court of Du Page County entered nunc pro tunc June 16, 1988, vacating the first arbitration award is reversed, and its subsequent orders entered in connection with the rearbitration are vacated. The cause is remanded with directions to reinstate the first arbitration award.\nReversed and remanded.\nREINHARD, P.J., and GEIGER, J., concur.", "type": "majority", "author": "JUSTICE UNVERZAGT" } ], "attorneys": [ "E Samuel Eberts III and Carol A. Tiesi, both of Jones, Day, Reavis & Pogue, and Dan K. Webb, of Winston & Strawn, both of Chicago, and John Edwin Norton, of O\u2019Reilly, Cunningham, Norton & Mancini, of Wheaton (Daniel E. Reidy and James E. Daly, of counsel), for appellants.", "Peter Flynn and William R. Coulson, both of Cherry & Flynn, of Chicago, and Schirott & Associates, P.C., of Itasca (Myron M. Cherry and James R. Schirott, of counsel), for appellees." ], "corrections": "", "head_matter": "ALLAN J. HAMILTON, Indiv. and as Trustee, et al., Plaintiffs-Appellees, v. J. McDONALD WILLIAMS et al., Defendants-Appellants.\nSecond District\nNo. 2\u201489\u20141335\nOpinion filed May 15, 1991.\nRehearing denied July 8, 1991.\nE Samuel Eberts III and Carol A. Tiesi, both of Jones, Day, Reavis & Pogue, and Dan K. Webb, of Winston & Strawn, both of Chicago, and John Edwin Norton, of O\u2019Reilly, Cunningham, Norton & Mancini, of Wheaton (Daniel E. Reidy and James E. Daly, of counsel), for appellants.\nPeter Flynn and William R. Coulson, both of Cherry & Flynn, of Chicago, and Schirott & Associates, P.C., of Itasca (Myron M. Cherry and James R. Schirott, of counsel), for appellees." }, "file_name": "0230-01", "first_page_order": 252, "last_page_order": 270 }