{ "id": 5409240, "name": "MAYFAIR CONSTRUCTION COMPANY, Plaintiff-Appellee and Cross-Appellant, v. WAVELAND ASSOCIATES PHASE I LIMITED PARTNERSHIP, Defendant-Appellant and Cross-Appellee", "name_abbreviation": "Mayfair Construction Co. v. Waveland Associates Phase I Limited Partnership", "decision_date": "1993-05-14", "docket_number": "No. 1\u201491\u20144056", "first_page": "188", "last_page": "210", "citations": [ { "type": "official", "cite": "249 Ill. App. 3d 188" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "243 N.E.2d 711", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "102 Ill. App. 2d 262", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5261337 ], "weight": 3, "pin_cites": [ { "page": "728" }, { "page": "728" }, { "page": "730" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/222/0722-01" ] }, { "cite": "249 N.E.2d 343", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "349" } ], "opinion_index": 0 }, { "cite": "111 Ill. App. 2d 127", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1592945 ], "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/111/0127-01" ] }, { "cite": "211 N.E.2d 247", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "pin_cites": [ { "page": "252" } ], "opinion_index": 0 }, { "cite": "33 Ill. 2d 316", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2883616 ], "year": 1969, "pin_cites": [ { "page": "323" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/33/0316-01" ] }, { "cite": "385 N.E.2d 664", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "pin_cites": [ { "page": "668" } ], "opinion_index": 0 }, { "cite": "74 Ill. 2d 379", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994217 ], "year": 1965, "pin_cites": [ { "page": "388" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0379-01" ] }, { "cite": "575 N.E.2d 1288", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1292" } ], "opinion_index": 0 }, { "cite": "216 Ill. 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App. 3d", "case_ids": [ 3428911 ], "pin_cites": [ { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/124/0500-01" ] }, { "cite": "523 N.E.2d 30", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "33" } ], "opinion_index": 0 }, { "cite": "168 Ill. App. 3d 726", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3511787 ], "pin_cites": [ { "page": "730" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/168/0726-01" ] } ], "analysis": { "cardinality": 1484, "char_count": 53929, "ocr_confidence": 0.769, "pagerank": { "raw": 2.4729812379210235e-07, "percentile": 0.8067132485330226 }, "sha256": "45eff0853101f40e0542cf01ff871c730bfb6751ce19e44e07e4ec0bd8a811fb", "simhash": "1:0fea56fe665dffac", "word_count": 8522 }, "last_updated": "2023-07-14T16:37:18.171744+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MAYFAIR CONSTRUCTION COMPANY, Plaintiff-Appellee and Cross-Appellant, v. WAVELAND ASSOCIATES PHASE I LIMITED PARTNERSHIP, Defendant-Appellant and Cross-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE McNAMARA\ndelivered the opinion of the court:\nDefendant, Waveland Associates Phase I Limited Partnership, is appealing from an order of the trial court declaring that Waveland materially breached its contract with plaintiff, Mayfair Construction Company, by refusing to submit disputes initially to the project architect for determination prior to litigating them in the circuit court of Cook County. As a result of this breach, the trial court in its order precluded Waveland from raising any defenses or affirmative defenses to claims raised by Mayfair which were subject to being decided by the architect. The trial court\u2019s order was based on a jury\u2019s determination that, under the parties\u2019 contract, Waveland was required to submit disputes initially to the architect and that its failure to do so was a material breach. Waveland also appeals from these jury findings.\nWaveland raises several issues on appeal. Initially, it contends that the jury\u2019s factual findings are erroneous and that the trial court\u2019s order barring it from raising any defenses or affirmative defenses to Mayfair\u2019s claims is legally unprecedented and unjustified. It also contends that the trial court erred by: (1) refusing to instruct the jury as to the legal meaning of \u201cmaterial breach\u201d; (2) refusing to allow the issue of Mayfair\u2019s own alleged contract breach to be raised at trial, precluding all evidence relating to it, and then issuing an order finding that Mayfair had substantially performed its contract obligations; (3) allowing the Mayfair attorney who negotiated the contract to testify at length, while precluding Waveland\u2019s attorney who negotiated the contract from testifying on the same points; (4) making certain factual findings, and incorporating them into its order, that the jury was not asked to and did not resolve; and (5) denying Waveland\u2019s motion to dismiss this declaratory judgment action on the grounds that Mayfair was really seeking an advisory opinion and had waived the only viable remedy, i.e., an order requiring disputes to be submitted to the architect.\nMayfair has filed a cross-appeal, contending that, in addition to barring Waveland from raising any defenses to Mayfair\u2019s claims, the trial court should have also barred Waveland from raising any claims against Mayfair that were to have been initially decided by the architect.\nThis cause arises from the construction of a real estate project known as the New York Apartments located at 3660 North Lake Shore Drive in Chicago (the project). The project consisted of the construction of two buildings \u2014 a high-rise apartment building and an associated low-rise commercial building. After extensive negotiations, on November 19, 1985, Mayfair and Waveland entered into a construction contract under which Mayfair agreed to serve as general contractor for the project, of which Waveland was the owner. Throughout the contract negotiations, Mayfair sought to include in the contract a method for a neutral third party to resolve disputes between the parties. The principals of Mayfair and Waveland participated in six or seven negotiation meetings; their lawyers (Howard Kamin for Mayfair and Paul Lurie for Waveland) met on many other occasions and had numerous phone conversations during which the construction contract was discussed.\nThe construction contract consisted principally of two parts, the owner-contractor agreement and the general conditions. According to Waveland, article 17 of the owner-contractor agreement was the key dispute-resolution provision. In pertinent part, article 17 provides:\n\u201c17.1 \u2014 No decision of the Architect, Construction Manager, Owner, Contractor, or Lender hereunder which is disputed shall be final; and any such decision shall be subject to determination through litigation.\n17.2 \u2014 Any dispute between Owner and Contractor hereunder may be litigated in the Circuit Court of Cook County, Illinois and the parties hereunder agree, and shall cause all parties in privity with them to agree to jurisdiction in such Court and that all discovery in such proceeding shall be completed within 90 days of the filing of the initial complaint therein and that the parties shall jointly apply to such Court for a trial thereon within 150 days of such filing.\u201d\nAccording to Mayfair, articles 2.2.14, 2.2.15, and 2.2.16 of the general conditions represent the pivotal dispute-resolution provisions. Article 2.2.14 provides:\n\u201c2.2.14 \u2014 The Architect will be the interpreter of the requirements of the Contract Documents and the initial judge of the performance thereunder by both the Owner and Contractor.\u201d\nArticle 2.2.15 states:\n\u201cClaims, disputes and other matters in question between the Contractor and the Owner relating to the execution or progress of the Work or the interpretation of the Contract Documents shall be referred initially to the Architect for decision which he will render in writing within a reasonable time. Such decision may be litigated by either party.\u201d\nFinally, article 2.2.16 provides:\n\u201cAll interpretations and decisions of the Architect shall be consistent with the intent of and reasonably inferable from the Contract Documents[.] *** In his capacity as interpreter and judge, he will endeavor to secure faithful performance by both the Owner and Contractor, [and] will not show partiality to either[.]\u201d\nConstruction on the project began on or about November 19, 1985, the date Mayfair and Waveland signed the construction contract. In February of that year, Waveland entered into a contract with the project architect; that contract specifically excluded a standard provision that would have required the architect to be the judge of performance on the project and to issue decisions on disputes arising between Waveland and Mayfair. The architect\u2019s contract was negotiated for Waveland by Waveland\u2019s principal and Lurie, the same people who later negotiated the Mayfair contract. Mayfair was not made aware that there was any conflict between the two contracts with respect to the method of resolving disputes until very late in the negotiations, and when Kamin pointed out the conflict to Lurie, according to Kamin, Lurie told him that the architect would in fact be required to decide disputes. Throughout the period of negotiations between Waveland and Mayfair, the architect pointed out to Waveland that there were significant conflicts between the construction contract and the architect\u2019s contract, most importantly that the architect\u2019s decision-making role in the construction contract was not contemplated in the architect\u2019s contract.\nUnder the terms of the construction contract, construction work on the project was to be substantially completed by September 18, 1987, unless the time of performance was extended by a change order. For every day after that date on which the project was not substantially completed, Mayfair was to pay Waveland $18,169 in liquidated damages. Mayfair was to be paid a bonus of $9,698 for each day the project was substantially completed before August 4, 1987. In addition, if any work was suspended by the owner for more than six months, Mayfair was entitled under the construction contract to renegotiate the price for that work or refuse to do it.\nDuring the course of the project, disputes arose between Mayfair and Waveland regarding a number of issues, including Mayfair\u2019s requests for schedule extensions and cost increases. As each of the parties\u2019 disputes arose, Mayfair informed the architect and Waveland\u2019s construction manager of the nature and substance of the dispute. When it became apparent that the parties were unable to reach an agreement as to the matters at issue, specifically with regard to construction of the commercial building, on April 1, 1987, Mayfair wrote to the architect asking him to resolve the disputes between Mayfair and Waveland concerning time extensions and change orders, as provided for in the construction contract. Mayfair\u2019s executive vice-president, Angelo Polvere, testified that he wrote the letter to the architect at that time because Mayfair was approaching the end of its job on the project with matters still unresolved and also because Mayfair\u2019s relationship with Waveland was deteriorating. (During the first 13 months of construction, disputes which arose between Mayfair and Waveland did not result in formal written requests to the architect for a decision. Paul Cocose, Mayfair\u2019s president, testified that he viewed dispute resolution by the architect as a last resort and considered that the better way of resolving disputes was by negotiating with Wave-land.)\nHaving received no reply to the April 1 letter, Mayfair followed up with another letter a week later. On April 10, the architect responded by indicating that under the owner-architect contract, he was not authorized to resolve disputes between the owner and contractor. Subsequently, Mayfair and the architect entered into discussions, through their respective counsel, concerning the architect\u2019s authority pursuant to article 8.3.1 of the general conditions of the construction contract to determine whether Mayfair was entitled to its requested time extensions. In a letter to Waveland\u2019s president on April 30, 1987, the architect stated his \u201cimpression that it was your intention that the Architect not be the judge/interpreter in regard to time extensions\u201d; noted that Mayfair \u201cthink[s] otherwise\u201d; and explained that the architect\u2019s attorney had concluded that under article 8.3.1 of the general conditions, the architect had the \u201cresponsibility for time decisions.\u201d As a result, the architect advised Mayfair that he would render such decisions.\nWaveland\u2019s president wrote back immediately, expressing his disagreement with the architect\u2019s understanding of the construction contract and directing him to \u201cwithhold from taking any action on time extension delays\u201d pending Waveland\u2019s review of the matter.\nLater in May, the architect\u2019s attorney received a call from one of Waveland\u2019s attorneys. The attorney for Waveland stated that Wave-land did not want the architect to make any decisions on the project and that if the architect made any decisions Waveland was going to sue him. Waveland\u2019s attorney put this directive in writing in a letter to the architect\u2019s attorney dated June 22, 1987. Waveland\u2019s attorney stated that provisions in the construction contract were \u201cimmaterial\u201d because \u201cthe agreement between your client [the architect] and the owner precludes your client from acting in regard to disputes between the owner and the general contractor,\u201d and Waveland \u201chas never authorized your client to act on disputes, claims, or change orders.\u201d The letter also informed the architect that if he ruled on any disputed issues, he would be in breach of his contract with Waveland, that Wave-land would terminate its contract with the architect, and that Wave-land would file suit against the architect for damages resulting from his interference with Waveland\u2019s contract -with Mayfair. According to Mayfair, Waveland never sent it a copy of this letter.\nIn a letter dated July 7, 1987, counsel for the architect informed Mayfair that as a result of Waveland\u2019s letter threatening the architect with discharge and suit, he would not make any determinations with regard to any disputes between Mayfair and Waveland, including any and all disputes concerning extensions of time or additional compensation due to Mayfair as a result of changes in the work.\nAccording to Mayfair, Waveland\u2019s refusal to let the architect decide any disputes had its most immediate impact on the commercial building. Although construction on the rest of the project began within days after the construction contract was signed in November 1985, work on the commercial building did not begin until May 1986. After only working on that building for two months, Waveland ordered Mayfair to stop all work on it because Waveland decided to redesign the building. During the period of September 1986 through April 1987, Waveland revised the design several times, and Mayfair told Waveland that the costs and time for completing the commercial building would be increased as a result of these revisions and the delay occasioned thereby. Subsequently, Waveland abandoned its plan to redesign the building, and in July 1987 formally ordered Mayfair to renew work on the commercial building using the old design. Wave-land and Mayfair, however, could not agree on a change order allowing Mayfair the increased costs caused by the delay or an extension of time to complete the project, and the architect refused to rule on either item because Waveland had told him not to. As a result, Mayfair did not complete the commercial building. According to Cocose, Mayfair had \u201cno way of getting an equitable treatment on the additional costs\u201d once Waveland \u201chad taken that authority away from the architect.\u201d Instead, the work on the commercial building was finished by Mayfair\u2019s former subcontractors.\nBetween July 1987 and early 1988, Mayfair continued to work on the apartment tower and parking garage since both buildings were close to being finished and Waveland had not suspended work on either one. Mayfair ceased work on the project in early 1988 because in its view it had completed all work called for by the construction contract. Waveland, however, disagreed, and retained another contractor, James McHugh Construction Company, to complete the project. According to Mayfair, from 1985 until 1988, Mayfair was paid $30,624,531.83 under the construction contract; according to Wave-land, the amount paid was approximately $32 million. Although the parties agree that the original contract price to be paid Mayfair was $33.8 million, Mayfair alleges that it is due approximately $8.5 million more as a result of extra costs it incurred while working on the project.\nOnce it became evident to Mayfair that the architect was not going to resolve any of the disputed issues, primarily involving the commercial building, on August 7, 1987, Mayfair filed this action in the Cook County chancery division seeking a declaration of the rights and obligations of the parties under the construction contract.\nOn January 20, 1988, Mayfair filed a motion for summary judgment. In that motion, Mayfair claimed that the construction contract clearly established that the architect was to be allowed to resolve disputes between Mayfair and Waveland as an initial matter. Mayfair asked the court to determine as a matter of law the meaning of the dispute-resolution provisions in the construction contract and to issue appropriate declarations spelling out the legal consequences of Wave-land\u2019s refusal to comply with those provisions. The trial court denied Mayfair\u2019s motion for summary judgment on May 20, 1988, ruling that there was a disputed issue of material fact as to the parties\u2019 intent with respect to submitting disputes to the architect for initial decision.\nWhile the parties were briefing the summary judgment motion, the scope of the litigation quickly mushroomed. Waveland had not paid McHugh Construction Company, which replaced Mayfair for the work on the commercial building, and consequently, on or about March 16, 1988, McHugh filed a mechanic\u2019s lien action in the chancery division, naming as necessary defendants everyone who had possible liens against the project, including both Mayfair and Waveland. (James McHugh Construction Co. v. Midwest Bank & Trust Co., No. 88\u2014CH\u20142449 (McHugh).) After the judge assigned to Mayfair\u2019s declaratory judgment action denied Mayfair\u2019s summary judgment motion, he transferred the case, by agreement of the parties, to the mechanics\u2019 lien section where the McHugh action was pending. Mayfair then responded to McHugh\u2019s complaint by filing a counterclaim, directed at Waveland, asserting its own lien rights in the amount of $7,040,980.17. All of the other parties involved in the project did the same. Waveland filed a counterclaim and sought damages from Mayfair in excess of $19 million for alleged construction defects and delay in completing the project; these claims were identical to those alleged by Waveland in a counterclaim filed in the declaratory judgment action. In its counterclaim, Waveland alleged that on numerous occasions it had notified the architect of various defects in Mayfair\u2019s work, and the architect in turn had notified Mayfair in writing that the work did not conform to contract requirements.\nOn April 19, 1988, Waveland filed a motion to reconsider a previously filed motion to dismiss Mayfair\u2019s declaratory judgment action on the ground that there was no longer a controversy between the parties as to prospective action that might be resolved by a judicial declaration, since by Mayfair\u2019s own admission it had completed all work required under the construction contract and thus was no longer a party to the contract in need of an interpretation of the dispute-resolution provisions. The court denied Waveland\u2019s motion. Waveland filed a similar motion on January 12, 1990, arguing in addition that the only proper remedy for Waveland\u2019s alleged breach of an agreement to refer disputes initially to the architect would have been a suit in July 1987 to compel arbitration of the disputes by the architect, and that Mayfair had waived this remedy by filing its declaratory judgment action. The court also denied this motion.\nIn November 1988, the declaratory judgment action was transferred to the law division because of Waveland\u2019s jury demand. The declaratory judgment case and the lien case maintained their separate identities until the chancery judge, at the suggestion of the parties, formally consolidated the declaratory judgment case into the lien case. At that time, Mayfair explained to the judge that, if the declaratory judgment part of the consolidated case was tried first and the jury concluded that Waveland breached the contract by not permitting the architect to decide disputes, then Waveland\u2019s counterclaims against Mayfair might be barred altogether. The judge agreed that the declaratory judgment action involved the \u201ccrux\u201d of the parties\u2019 dispute, and determined that the various subcontractors\u2019 claims also would be affected by an adjudication of the terms of the construction contract.\nIn order to facilitate resolution of the crux of the dispute, the judge subsequently severed the declaratory judgment claims from the construction defect and delay claims, and established a discovery cutoff so that the declaratory case could be tried quickly. In order to narrow the issues for trial, Mayfair amended its complaint and Waveland amended its counterclaims against Mayfair. The chancery judge then transferred the declaratory judgment claim to the law division for trial.\nThe case was set for trial in late May 1991. Because of a conflict of interest between Waveland\u2019s attorneys and the trial judge, which was not revealed by Waveland until the second day of trial, a mistrial was declared and a new judge was assigned. The new trial began in June 1991. Before the trial began, Waveland renewed its motion to dismiss. The trial judge, after considering the parties\u2019 arguments, concluded that nothing could be done in the case until the issue of contract interpretation was decided by a jury. Consequently, Waveland\u2019s motion was denied.\nAt the trial, Kamin, Mayfair\u2019s attorney, testified regarding face-to-face meetings and telephone conversations that he had with Lurie, the attorney who represented Waveland in the contract negotiations. Kamin testified that he and Lurie had negotiated the arrangement set forth in articles 2.2.14, 2.2.15 and 2.2.16 of the general conditions, and that the parties understood these articles to mean that any disputes that arose would have to be taken initially to the architect for decision, and that decision would be binding unless it was overturned in the circuit court of Cook County.\nWaveland called Lurie to testify as to his recollection of the negotiations with Mayfair. He testified that between the summer of 1985 and November 19, 1985, he had 10 or more meetings and phone calls with Kamin but that he could not recall the exact dates of any such calls or meetings. He recalled \u201cthe gist\u201d of discussions he had with Kamin at a meeting held between September 26 and September 30, 1985, but could not remember the exact date of the meeting, who was present, or how long the meeting lasted. Ruling on Mayfair\u2019s foundation objection, the court refused to allow Lurie to recount the discussion. When Waveland attempted to refresh Lurie\u2019s memory as to the details of the late September meeting with Lurie\u2019s billing records, the court sustained Mayfair\u2019s objection to the use of the billing records because Waveland had not produced them during pretrial discovery when requested by Mayfair to do so. Waveland made an offer of proof that Lurie would have testified that Kamin agreed with Waveland\u2019s proposal that all disputes would be decided only in the circuit court and not through any arbitration or quasi-judicial method, and that article 17 was the sole dispute mechanism and was not restricted to disputes that had already gone to the architect for initial decision.\nCharacterizing Mayfair\u2019s declaratory judgment action as a breach of contract dispute, Waveland requested that the jury be instructed as to the elements of breach of contract and as to the meaning of \u201cmaterial breach.\u201d It also requested an instruction spelling out to the jury its theory of the case. These proposed jury instructions were denied.\nAfter hearing two weeks of testimony, the jury concluded that Mayfair\u2019s interpretation of the contract was correct. The 12 jurors answered \u201cyes\u201d to the following four interrogatories:\n\u201c(1) Under the Mayfair-Waveland contract, were the parties required to first submit their disputes to the Architect for decision before being able to assert such disputes in the Circuit Court of Cook County?\n(2) Under the Mayfair-Waveland contract, was any decision the Architect rendered on a dispute binding on the parties unless and until the decision was overturned in court?\n(3) Did Waveland breach the contract by not allowing the Architect to decide the claims, disputes and other matters in question that Mayfair presented to the Architect for decision?\n(4) If Waveland\u2019s conduct did constitute a breach, was that breach material?\u201d\nIn its motion for a new trial, Waveland argued that Mayfair had offered no evidence that it had substantially performed and no evidence that Waveland\u2019s conduct constituted a material breach. Wave-land also argued that it was entitled to a new trial because of the exclusion of Lurie\u2019s testimony. In response, Mayfair argued that given the unusually narrow scope of this declaratory judgment action, only Mayfair\u2019s compliance with the construction contract\u2019s dispute-resolution provisions was relevant. The court denied Waveland\u2019s post-trial motion on August 22,1991.\nOn November 25, 1991, the trial court entered a declaratory judgment order reflecting its view of the legal consequences that followed from the jury\u2019s factual determinations. The court held that (1) Wave-land had breached the contract continuously from November 19, 1985, the date it was signed; (2) Waveland could not assert any defenses or affirmative defenses to Mayfair\u2019s claims under the construction contract or to any other claim that was to have been initially decided by the architect; and (3) Mayfair was entitled to terminate the contract on June 22, 1987 \u2014 the date of the letter from Waveland\u2019s attorney to the architect instructing him not to decide any disputes \u2014 because Waveland\u2019s breach was material, Mayfair had substantially performed its obligations under the contract as of June 22, 1987, and Waveland\u2019s breach injured Mayfair. The court did not, however, grant Mayfair\u2019s request for a declaration barring Waveland from asserting any claims against Mayfair that were to have been decided by the architect.\nIn mid-December 1991, Mayfair filed in McHugh its motion to strike Waveland\u2019s affirmative defenses and defenses to Mayfair\u2019s claims and to dismiss Waveland\u2019s counterclaims. Mayfair contended that the November 25, 1991, order entitled it to a judgment of $8,593,054.11 plus interest and costs. Mayfair filed its notice of cross-appeal in this case on December 19, 1991. Mayfair\u2019s motion to strike in McHugh was denied without prejudice to Mayfair renewing its motion following exhaustion of all appeals in this declaratory judgment action.\nWaveland contends that the trial court\u2019s November 25, 1991, order barring it from raising any defenses or affirmative defenses to Mayfair\u2019s claims is legally unprecedented and unjustified. After the jury determined that Waveland materially breached the construction contract by refusing to submit disputes to the architect before litigating them in the circuit court, the trial court in paragraph 2 of its order declared:\n\u201cWaveland may not assert any defenses or affirmative defenses to Mayfair\u2019s claims under the Mayfair-Waveland contract and Waveland may not assert any defenses or affirmative defenses to any other claim that was subject to being decided by the 3660 Project architect.\u201d\nIn Mayfair\u2019s view, this was the only meaningful option that the trial court had as a remedy for Waveland\u2019s flagrant disregard of the contract provisions.\nBefore we address this issue, we must first examine the jury\u2019s findings and determine whether they were properly based on the evidence. The jury found that (1) under the construction contract, the parties were required to first submit their disputes to the architect for decision before being able to assert such disputes in the circuit court; (2) under the construction contract, the decision the architect rendered on a dispute was binding on the parties unless and until the decision was overturned in court; (3) by not allowing the architect to decide the claims, disputes and other matters in question that Mayfair presented to the architect for decision, Waveland breached the contract; and (4) Waveland\u2019s breach was material.\nUnder the general rules of contract construction, contracts are to be interpreted as a whole, giving meaning and effect to each provision of the contract. (Srivastava v. Russell\u2019s Barbeque, Inc. (1988), 168 Ill. App. 3d 726, 730, 523 N.E.2d 30, 33.) In construing a contract, it is presumed that all provisions were inserted for a purpose, and conflicting provisions will be reconciled if possible so as to give effect to all of the contract\u2019s provisions. (Bruno Benedetti & Sons, Inc. v. O\u2019Malley (1984), 124 Ill. App. 3d 500, 506, 464 N.E.2d 292, 297.) Applying these rules, we conclude that the jury\u2019s interpretation of the construction contract was proper.\nArticles 2.2.14, 2.2.15 and 2.2.16 of the general conditions clearly indicate that the parties were required to take their disputes initially to the architect for decision. Article 2.2.14 provides that \u201cthe Architect will be the interpreter of the requirements of the contract documents and the initial judge of the performance thereunder by both the owner and contractor.\u201d (Emphasis added.) Article 2.2.15 states that \u201c[cjlaims, disputes and other matters in question between the Contractor and Owner *** shall be referred initially to the architect for decision ***. Such decision may be litigated by either party.\u201d (Emphasis added.) Article 2.2.16 states that \u201c[a]ll interpretations and decisions of the Architect shall be consistent with the intent of and reasonably inferable from the Contract Documents.\u201d It also refers to the architect as \u201cinterpreter and judge.\u201d In addition to these provisions, there are several others requiring the architect\u2019s decision on a wide variety of matters which arise during construction, including time extensions and amounts paid for change orders, both issues which are disputed here.\nWe reject Waveland\u2019s argument that articles 17.1 and 17.2 of the owner-contractor agreement represent the key dispute-resolution provisions of the construction contract and should be read to allow the parties to choose either the architect or the circuit court as the initial judge of the parties\u2019 disputes. Article 17.1 provides that \u201c[n]o decision of the Architect *** which is disputed shall be final; and any such decision shall be subject to determination through litigation.\u201d Since this article speaks of the architect\u2019s decision, however, this article can only mean that, after the architect has ruled, then his decision may be reviewed by a court.\nArticle 17.2 states that \u201c[a]ny dispute between Owner and Contractor hereunder may be litigated in the Circuit Court of Cook County, Illinois.\u201d It also requires the parties to submit to the jurisdiction of the circuit court and to adhere to strict time frames for discovery and litigation of disputes. Were we to accept Waveland\u2019s argument \u2014 that article 17.2 permits disputes to be litigated at any time, without submitting disputes initially to the architect \u2014 then all of the foregoing provisions contained in the general conditions clearly specifying the architect as the initial arbiter of disputes would be rendered meaningless. We think the more sensible reading of article 17.2, when properly viewed in conjunction with the other provisions, is as Mayfair suggests: that once the prerequisite to litigation has been satisfied, i.e., the architect has initially decided the dispute, then the parties may litigate the dispute in the circuit court of Cook County under the time frames specified.\nWaveland argues that the introductory language of article 17.2, stated above, makes the construction contract ambiguous. Such construction of the contract, however, violates the maxim that \u201c[t]he intent of the parties must be determined from the contract as a whole and not from any one clause standing alone.\u201d (White v. White (1978), 62 Ill. App. 3d 375, 378, 378 N.E.2d 1255, 1258.) This court on review may interpret a contract independently of the trial court\u2019s judgment. (Jewel Cos. v. Serfecz (1991), 220 Ill. App. 3d 543, 548, 581 N.E.2d 186, 189.) In our view, the contract provisions unambiguously required the parties to submit disputes initially to the architect. The general language of article 17.2 does not nullify the explicit mandate of the rest of the contract that disputes \u201cshall\u201d be referred initially to the architect for decision.\nThus, in response to another of Waveland\u2019s contentions, the trial court did not commit reversible error in precluding Lurie from testifying as to his recollection of the contract negotiations he conducted with Kamin. Although the trial court improperly precluded him from testifying on the basis of lack of foundation (see, e.g., People v. Smrekar (1979), 68 Ill. App. 3d 379, 385 N.E.2d 848 (the fact that a witness\u2019 memory is impaired goes only to the weight and not to the admissibility of testimony, so long as the testimony has some probative value)), in light of our finding that the construction contract was, as a matter of law, unambiguous with respect to the treatment of disputes, the error was harmless.\nWaveland also argues that, even if it did breach the construction contract by refusing to submit disputes initially to the architect for decision, that breach was not material. The jury, however, found that it was, and we cannot say that this finding was error. The jury heard testimony regarding the importance of quick, binding decisions on disputed issues in order for the work to proceed in a timely manner. The jury also heard testimony that but for the inclusion of the dispute-resolution provisions, Mayfair would never have signed the construction contract. By breaching the contract, Waveland deprived Mayfair of the bargained-for right to quick resolutions by a third party with specialized experience in construction issues, to which the circuit court upon review would have likely given deference.\nThe flipside of quick resolutions by a neutral third party would be costly and time-consuming litigation of every dispute that could not be resolved by the parties. In addition, as Mayfair points out, since the decisions that the architect was supposed to have made, such as extensions of time and change orders, often were directly related to the amount of money Mayfair would receive during construction, Wave-land\u2019s refusal to allow the architect to make those decisions necessarily had an immediate financial impact on Mayfair. That the architect\u2019s decisions could be reviewed and possibly overturned by the circuit court does not subtract from the fact that Mayfair lost its right to timely, binding decisions enabling it to continue working on the project uninterrupted. Had the architect, been permitted to decide the disputes relating to construction of the commercial building, for instance, Mayfair may well have completed that portion of the project instead of its former subcontractors.\nWaveland, however, argues that the trial court erred in refusing to instruct the jury as to the meaning of \u201cmaterial breach\u201d and that, consequently, its finding of material breach cannot stand. Where a trial court refuses to give a tendered instruction, a new trial will be granted only where a party shows that its right to a fair trial has been seriously prejudiced by the denial of the tendered instruction. (Wade v. City of Chicago Heights (1991), 216 Ill. App. 3d 418, 423, 575 N.E.2d 1288, 1292.) We cannot conclude that Waveland was seriously prejudiced by the trial court\u2019s failure to define for the jury the term \u201cmaterial breach.\u201d \u201c \u2018[T]he meaning of words, used in their conventional sense, need not be defined or explained in giving instructions to the jury.\u2019 \u201d (Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 388, 385 N.E.2d 664, 668, quoting Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 323, 211 N.E.2d 247, 252.) This court has defined \u201cmaterial breach\u201d as a failure to do an important or substantial undertaking set forth in a contract. Anderson v. Long Grove Country Club Estates, Inc. (1969), 111 Ill. App. 2d 127, 139, 249 N.E.2d 343, 349.\nIn addition, Webster\u2019s dictionary defines \u201cmaterial\u201d as of real importance or \u201csubstantial.\u201d (Webster\u2019s Third New International Dictionary 1392 (1981).) During closing arguments, the parties both referred to a material breach as an \u201cimportant\u201d one. As is evident, the conventional or common meaning of \u201cmaterial\u201d is the same as the legal meaning attributed to that word. We are confident, therefore, that the jurors well understood the meaning of \u201cmaterial\u201d without having it defined for them.\nHaving determined that the jury\u2019s factual findings were proper and supported by the evidence, we turn now to the issue of the propriety of the trial court\u2019s November 25,1991, order.\nMayfair filed this action in August 1987, when it became apparent that the architect was not going to resolve any of the disputed issues, primarily involving work on the commercial building. At this point, Mayfair was still the general contractor on the project and remained in that capacity until the spring of 1988. In bringing this action, Mayfair sought a declaration of the rights and obligations of the parties under the construction contract, specifically as they pertained to the resolution of disputes.\n\u2022 Waveland argues that this case should have been dismissed no later than March 1988 when Mayfair stopped working on the project. From that point on, according to Waveland, this case could not serve any of the proper purposes of a declaratory judgment action and could only serve the improper purpose of attempting to resolve issues piecemeal that were properly left for resolution in McHugh. We disagree.\nInitially, we note that \u201c[t]he granting or denying of declaratory relief rests within the sound discretion of the trial court, and the complaining party on appeal must show affirmatively an abuse of discretion.\u201d (Marlow v. American Suzuki Motor Corp. (1991), 222 Ill. App. 3d 722, 728, 584 N.E.2d 345, 348-49.) The mere existence of another remedy does not require dismissal of a declaratory judgment action, but it may constitute sufficient grounds for dismissal in the trial court\u2019s discretion. Marlow, 222 Ill. App. 3d at 728, 584 N.E.2d at 349.\nThere are two prerequisites for bringing a declaratory judgment action. Under the Illinois. declaratory judgment act, there must first be an \u201cactual controversy\u201d (Ill. Rev. Stat. 1987, ch. 110, par. 2\u2014701(a)), which means that there is a \u201clegitimate dispute admitting of an immediate and definitive determination of the parties\u2019 rights which will aid in the termination of the controversy or some part thereof.\u201d (Providence Washington Insurance Co. v. American Bridge Division of United States Steel Corp. (1990), 200 Ill. App. 3d 597, 600, 558 N.E.2d 396, 397.) The second requirement is that the party bringing the action must be interested in the controversy. Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 701(a); Providence Washington Insurance, 200 Ill. App. 3d at 600, 558 N.E.2d at 397.\nBoth requirements were met in this case. Throughout this litigation, including after Mayfair ceased being general contractor on the project, Mayfair and Waveland have disagreed strenuously about the meaning of the construction contract\u2019s dispute-resolution provisions, about whether Waveland materially breached those provisions, and about the legal consequences flowing from Waveland\u2019s breach. There is no question, then, that an \u201cactual controversy\u201d between the parties exists and that both parties are \u201cinterested in the controversy.\u201d\nWaveland asserts that Mayfair is improperly using this action to obtain a declaration of the legal effects of Waveland\u2019s past conduct, so as to later use it to attack Waveland in the McHugh litigation. We disagree. It is apparent that Mayfair initially filed .this action to determine the construction of the parties\u2019 contract, which is a proper objective under the Act. The fact that Mayfair has since ceased being general contractor does not automatically preclude Mayfair from continuing to seek a declaration of the parties\u2019 rights and obligations under the contract, even though the past conduct of the parties is now necessarily at issue. The act provides that declaratory relief is proper so long as it \u201cterminate[s] the controversy or some part thereof.\u201d (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 701.) This court in Marlow recently held \u201cthat the phrase \u2018some part\u2019 of the controversy does not mean an element of a single claim, but, rather, it means an entire claim which is part of more than one claim.\u201d (Marlow, 222 Ill. App. 3d at 730, 584 N.E.2d at 350.) There, the declaration at issue would not have resolved any claims; instead, it would have established one element of a tort cause of action. Consequently, we held that the trial court did not abuse its discretion in denying declaratory relief, since the declaration would have resulted in piecemeal litigation.\nIn this case, however, Mayfair sought a declaration that Waveland materially breached the construction contract and as a consequence should be barred in this action from asserting any defenses or counterclaims for alleged construction defects and delay. This requested relief, therefore, would dispose of an entire claim and would not result in piecemeal litigation as Waveland argues.\nWe acknowledge that the trial court\u2019s order, if upheld, would have an effect in the McHugh case. However, if we determine that the order is proper, it will, in Mayfair\u2019s words, \u201cvastly simplify the remainder of the litigation by sharply reducing the number of issues to be decided.\u201d While the project may have been completed before the case was given to the jury, the underlying controversy between the parties \u2014 whether Waveland can continue to assert its counterclaims and defenses against Mayfair even though it refused to abide by the dispute-resolution procedure that was supposed to have decided those issues \u2014 has never become moot.\nWaveland contends that there is no authority to support the trial court\u2019s selection of a remedy that bars Waveland from asserting any defenses to Mayfair\u2019s claims. We note initially that in exercising its discretion to choose an appropriate remedy in a declaratory judgment action, the trial court may grant consequential relief arid the court should grant the relief that is necessary and proper for the determination of the controversy before it. (Vinyard v. Vaught (1985), 138 Ill. App. 3d 641, 645, 485 N.E.2d 1131, 1134.) Although there does not exist a plethora of authority which is directly on point with the issue before us, nevertheless, we find that there is a sufficient basis in the law to support the trial court\u2019s chosen remedy for Waveland\u2019s refusal to submit disputes to the architect.\nIn Brighton Theatre Co. v. Graf (1928), 248 Ill. App. 140, a contractor abandoned his work and the owner completed the work in the contractor\u2019s place. The parties\u2019 contract allowed the owner to finish the work and recover from the contractor the cost of doing the work. The contract also required that the cost incurred by the owner was to be audited and certified by the architect. Each party had a right to appeal the architect\u2019s decision. The owner failed to have the architect audit and certify the work and instead sued the contractor to recover the extra costs of completing the job.\nOn appeal, the contractor argued that the owner was not entitled to a judgment by the court because the owner did not comply with the provision of the contract requiring certification by the architect. The court agreed, holding that the owner\u2019s failure to submit its expenses to the architect for determination initially, prior to filing suit, barred the owner from suing under the contract for those expenses.\nIn a case involving parallel facts, our supreme court reached the same conclusion. (See International Cement Co. v. Beifeld (1898), 173 Ill. 179, 50 N.E. 716.) The court determined that submitting expenses to the architect for certification was a condition precedent to litigating those claims in court.\nLikewise, in this case, submission of the parties\u2019 disputes to the architect was a condition precedent to litigating them in the circuit court, as the jury so found. As in Brighton and Beifeld, Waveland refused to fulfill this condition, and the trial court, therefore, declared, as a proper remedy for Mayfair, that Waveland may not now assert defenses and affirmative defenses against claims raised by Mayfair that should have been initially decided by the architect but were not.\nIn Hill v. Mercury Record Corp. (1960), 26 Ill. App. 2d 350, 356, 168 N.E.2d 461, 465, this court stated that \u201ca binding agreement relating to future controversies may be made requiring that the determination of some fact be made by arbitrators or appraisers as a condition precedent to the bringing of a suit.\u201d However, in order to prevent resort to litigation, \u201csuch a provision must make such arbitration a condition precedent to the right of action either expressly or by clear implication, and *** if this is not done, the arbitration provision *** cannot be pleaded in bar to an action on the principal contract.\u201d (Hill, 26 Ill. App. 2d at 356, 168 N.E.2d at 465.) Implicit in the above language is the fact that if a provision creating a condition precedent to litigation is shown, a party refusing to comply with it may be barred from pursuing claims in court. See also 6 C.J.S. Arbitration \u00a728 (1975) (stating the rule that where submission of a dispute to an arbitrator is made a condition precedent to litigation of that dispute, that provision must be complied with before an action may be brought on the contract).\nThere is no doubt that the construction contract in this case required submission of the parties\u2019 disputes to the architect as a condition precedent to litigating those disputes. Waveland failed to fulfill this condition. As the foregoing makes clear, such a failure can result in a complete bar to the right of a party to bring an action to litigate its contractual claims. We see no reason why that party, which will-, ingly refused to abide by the contract\u2019s dispute-resolution mechanism, should not similarly lose its right to defend against claims asserted against it.\nWaveland argues that Brighton and Beifeld have \u201cdubious precedential value\u201d because they were decided long ago. On the contrary, merely because a case is old does not necessarily mean it is no longer good authority. (See Kazale v. Flowers (1989), 185 Ill. App. 3d 224, 228, 541 N.E.2d 219, 222.) Indeed, we have found nothing in our research to indicate that these cases have been overturned by later courts. Thus, in our view, these cases remain good authority.\nMoreover, in a more recent case, Ramonas v. Kerelis (1968), 102 Ill. App. 2d 262, 243 N.E.2d 711, this court held that the defendants lost their right to present their defense where they voluntarily chose not to appear before the arbitrator deciding the parties\u2019 dispute. The court stated that the defendants \u201chad their opportunity to present their contentions and arguments to the arbitrator but voluntarily chose not to do so. *** In refusing to appear, both defendants acted at their own peril ***\u201d in losing their right to defend. (102 Ill. App. 2d at 273.) Here, Waveland had its opportunity to present its defenses to the claims Mayfair had requested the architect to decide. By its own action barring the architect from deciding Mayfair\u2019s claims, it cannot now be heard to complain that it was wrongly deprived of its right to defend against Mayfair\u2019s claims.\nWaveland also argues that the relief awarded Mayfair in the November 25, 1991, order gives Mayfair a \u201ctotal victory\u201d on its contract claims even though Mayfair may not have prevailed on those claims had the \u201carchitect-submittal procedure\u201d been practiced. Waveland, however, is mistaken. As Mayfair points out, it did not request, and the trial court did not grant, automatic liability on its claims. There is no conclusive presumption of liability on the part of Waveland for its potential obligations under the contract. Rather, Mayfair will still be required to prove its claims, as the plaintiffs in Ramonas had to prove their claims and damages when the defendants lost their right to present defenses by failing to appear before the arbitrator. The fact finder will be entitled to accept or reject the evidence put forth by Mayfair in support of its claims and award damages, if any, accordingly.\nIn addition, Waveland asserts that the order violates the principle of contracts, that a plaintiff is only entitled to be placed in as good a position as he would have been in had the contract been performed. In Waveland\u2019s view, the order grants Mayfair a windfall and works a \u201cgreat unfairness\u201d upon Waveland. It is difficult, if not impossible, to determine at this juncture how the parties would have ended up had Waveland adhered to the contract and submitted the parties\u2019 disputes to the architect for decision. It is conceivable indeed that the parties would have abided by the architect\u2019s determinations and avoided litigation altogether. Waveland suggests that the more appropriate remedy is to require Mayfair to sue Waveland for money damages in a breach of contract action. We disagree because the damages would be difficult to quantify and could potentially lead to years of additional litigation.\nWe disagree also with requiring the parties to now submit their disputes to the architect. At this stage, the architect can hardly be characterized as a neutral third party capable of rendering objective decisions. Indeed, in its June 1987 letter to the architect, Waveland threatened to fire the architect and sue him if he issued any decisions relating to the parties\u2019 disputes. In addition, as Mayfair points out in its brief, after this action began, the architect filed his own action against Waveland for nonpayment of fees. Moreover, had the trial court ordered resolution of disputes by the architect as a remedy, Waveland would, as Mayfair correctly suggests, have succeeded in its attempt to delay complying with its contractual obligations at no harm to itself while Mayfair would have lost entirely the benefit from the contract\u2019s provisions requiring a prompt resolution of disputes.\nWaveland also argues that several portions of the order have no factual basis and therefore cannot stand. Initially, Waveland points out that the jury did not specifically find that Waveland breached the construction contract \u201ccontinuously from November 19, 1985,\u201d the date the contract was signed, as the trial court stated in its order. We agree. The jury determined that Waveland breached the contract \u201cby not allowing the architect to decide the claims, disputes and other matters in question that Mayfair presented to the architect for decision.\u201d Our review of the record clearly shows that the affirmative act of \u201cnot allowing\u201d the architect to decide disputes occurred on June 22, 1987, the date Waveland\u2019s attorney sent a letter to the architect threatening to terminate and to sue him if he decided any disputes. Therefore, June 22, 1987, and not November 19, 1985, in our view, is the date of breach that is in keeping with the jury\u2019s findings.\nWaveland also asserts that the trial court erred in finding that Mayfair substantially performed its contractual obligations. We agree with Waveland that the trial court erred in so finding since the jury heard no evidence on this issue. Mayfair, likewise, concedes this error. However, since this is not a traditional breach of contract action but, rather, is an action to determine the consequences of Waveland\u2019s refusal to follow the contract\u2019s dispute-resolution provisions, the issue of substantial performance by the party bringing the action \u2014 Mayfair\u2014is irrelevant to our determination of whether the remedy afforded Mayfair was proper. In Brighton and Beifeld, for instance, the court held that the plaintiff\u2019s claims were barred because they had refused to abide by the dispute-resolution provisions of their respective contracts, even though the other party had abandoned the job and, therefore, could not have substantially completed the work.\nThus, in response to another issue raised by Waveland, once it became evident to Mayfair on June 22, 1987, that Waveland was not going to adhere to the contract\u2019s dispute-resolution provisions by submitting the parties\u2019 disputes initially to the architect \u2014 which the jury determined was a material breach \u2014 Mayfair was entitled to terminate the contract. Under the circumstances in this case, Mayfair was not required to first prove that it had substantially performed and that Waveland committed the first breach before it could terminate the contract. The reason is clear: Waveland avoided the very mechanism (dispute resolution initially by the architect) which would have determined whether the parties had substantially performed or whether one or the other had breached the contract. Waveland may not now argue in the circuit court that Mayfair breached first or that it did not substantially perform in an effort to prove that the remedy contained in the order was improper.\nSince we have determined that the order precluding Waveland from asserting any defenses or affirmative defenses to the claims of Mayfair which should have been initially decided by the architect was proper, we necessarily find, in response to Mayfair\u2019s cross-appeal, that Waveland is also precluded from asserting any counterclaims against Mayfair that could and should have been properly brought to the architect initially. The same authority and reasoning which support the preclusion of Waveland\u2019s defenses apply with full force to the preclusion of Waveland\u2019s counterclaims.\nIn this regard, we note that there is considerable disagreement between the parties as to whether certain of Waveland\u2019s counterclaims (such as those pertaining to the HVAC system, corridor carpeting, and punch list work) were in fact submitted to the architect for decision and ruled on by him, thus satisfying the condition precedent to litigation. This is an issue properly before the trier of fact and is not for this court to decide. On remand, the trier of fact will be required to determine initially which, if any, of Waveland\u2019s counterclaims were ruled on by the architect as a precondition to litigation. Any such counterclaims may properly be asserted against Mayfair. All others are barred.\nAs a final matter, although Waveland\u2019s defenses and affirmative defenses are barred, Mayfair will still be required to present evidence in support of its claims before damages, if any, may be recovered from Waveland.\nFor the foregoing reasons, we affirm the order of the circuit court of Cook County barring Waveland from asserting any defenses or affirmative defenses to Mayfair\u2019s claims which under the construction contract should have been decided by the project architect. We reverse the judgment of the circuit court denying Mayfair\u2019s request to bar Waveland from asserting counterclaims against Mayfair which should also have been, but were not, decided by the architect and remand for entry of an order barring such counterclaims and for further proceedings consistent with this opinion.\nAffirmed in part; reversed and remanded in part.\nEGAN and RAKOWSKI, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE McNAMARA" } ], "attorneys": [ "Lee A. Freeman, Jr., James T. Malysiak, Albert F. Ettinger, and Robert . P. Scales, all of Freeman, Freeman & Salzman, P.C., of Chicago, for appellant.", "Michael R. Feagley and James C. Schroeder, both of Mayer, Brown & Platt, and Lawrence A. Rosen, of Lawrence, Kamin, Saunders & Uhlenhop, both of Chicago, for appellee." ], "corrections": "", "head_matter": "MAYFAIR CONSTRUCTION COMPANY, Plaintiff-Appellee and Cross-Appellant, v. WAVELAND ASSOCIATES PHASE I LIMITED PARTNERSHIP, Defendant-Appellant and Cross-Appellee.\nFirst District (6th Division)\nNo. 1\u201491\u20144056\nOpinion filed May 14, 1993.\nModified on denial of rehearing August 20,1993.\nLee A. Freeman, Jr., James T. Malysiak, Albert F. Ettinger, and Robert . P. Scales, all of Freeman, Freeman & Salzman, P.C., of Chicago, for appellant.\nMichael R. Feagley and James C. Schroeder, both of Mayer, Brown & Platt, and Lawrence A. Rosen, of Lawrence, Kamin, Saunders & Uhlenhop, both of Chicago, for appellee." }, "file_name": "0188-01", "first_page_order": 206, "last_page_order": 228 }