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A. Epstein and Sons International, Inc v. Eppstein Uhen Architects

January 11, 2011

A. EPSTEIN AND SONS INTERNATIONAL, INC.,
PLAINTIFF-APPELLANT,
v.
EPPSTEIN UHEN ARCHITECTS, INC.,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County No. 08 CH 18915 Honorable Leroy K. Martin, Jr., Judge Presiding.

The opinion of the court was delivered by: Justice Harris

JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Cunningham and Connors concurred in the judgment and opinion.

OPINION

Plaintiff, A. Epstein & Sons International Inc.(Epstein), appeals the judgment of the circuit court of Cook County granting defendant, Eppstein Uhen Architects, Inc.'s (EUA) motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2008)) and denying Epstein's motion for partial summary judgment. We reverse the judgment of the circuit court granting EUA's motion for summary judgment and affirm the circuit court's judgment denying Epstein's motion for partial summary judgment. We find that the terms in the parties' first alleged contract are ambiguous and require the aid of extrinsic evidence to determine the parties' intent. Therefore, summary judgment was not proper.

JURISDICTION

On April 24, 2009, the circuit court entered its final judgment denying Epstein's motion to reconsider. On May 22, 2009, Epstein filed its notice of appeal. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).

BACKGROUND

In December of 2002, Franciscan Communities, d/b/a St. Joseph Home of Chicago, hired EUA to provide professional design services for a construction project in Chicago, Illinois. EUA then called upon Epstein to submit a proposal for it to provide engineering design services for Franciscan's construction project. Epstein submitted a signed proposal on November 6, 2002, and EUA accepted it by signing it on December 2, 2002. Displeased with EUA's performance on its construction project, Franciscan filed an arbitration demand against EUA in December of 2007. In turn, EUA filed an arbitration demand upon Epstein in January 2008, asserting claims arising out of Franciscan's arbitration demand.

Epstein filed a petition to stay arbitration and complaint for declaratory judgment and injunctive relief in May of 2008. Epstein attached two documents to its petition that are at the center of the dispute between the parties. The first document, titled "MEPFP Engineering Services Proposal" is dated November 6, 2002 (November document). The second document attached to Epstein's petition is dated December 9, 2002, and titled "Architect-Consultant Agreement" (December document). The dispute is whether Epstein is bound by an arbitration provision which is set out in a third unattached document, AIA Document C141-1997 (AIA provision) that the December document purports to incorporate by reference.

The November document described the project; outlined the engineering design services, administrative services, and structural engineering services plaintiff agreed to provide and in what manner; as well as set out fees and expenses. The November document also attached and incorporated terms and conditions of service. The terms and conditions of service state that EUA will be bound by the terms of the November document once it is executed. Furthermore, any modifications to those terms must be made in writing. Nothing in the November document mentions that disputes between the parties will be resolved in arbitration. The relevant provisions of the November document's terms and conditions of service are as follows:

"1. These Terms and Conditions of Services are an integral part of the Proposal dated November 6, 2002 between [Epstein] and [EUA].

2. *** Upon execution of this Proposal by [EUA]***, [EUA] shall be bound by the Proposal and all of these Terms and Conditions of Service ***. Any additions, deletions, or changes to the Proposal or these Terms and Conditions of Services shall be in writing and executed by both Parties.

3.(a)The services described in the Proposal constitute the Scope of Services that Epstein agrees to provide to [EUA] under this Agreement.

(c) If, during Epstein's performance of the Scope of Services, [EUA] requests, in writing, a change in the Scope of Services ***, such Change in Service and method of compensation shall be agreed to in writing prior to Epstein being obligated to undertake such Change in Service. If Epstein performs such Change in Service and this Subparagraph (c) has ...


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