Dancor Construction, Inc. v. FXR Construction, Inc.

2016 IL App (2d) 150839, 64 N.E.3d 796

• Court: Appellate Court of Illinois
• Decided: September 29, 2016
• Docket: 2-15-0839
• Status: Unpublished

Opinion

2016 IL App (2d) 150839 No. 2-15-0839 Opinion filed September 29, 2016 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

DANCOR CONSTRUCTION, INC., ) Appeal from the Circuit Court ) of Kane County. Plaintiff and Counterdefendant- ) Appellant and Cross-Appellee, ) ) v. ) No. 12-L-487 ) FXR CONSTRUCTION, INC., ) and DENNIS E. VITA, ) ) Defendants-Appellees and ) Cross-Appellants ) Honorable ) James R. Murphy, (FXR Construction, Inc., Counterplaintiff). ) Judge, Presiding ______________________________________________________________________________

JUSTICE SPENCE delivered the judgment of the court, with opinion. Presiding Justice Schostok and Justice McLaren concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Dancor Construction, Inc. (Dancor), brought suit against defendants, FXR

Construction, Inc. (FXR), and its owner, Dennis E. Vita, in Kane County pursuant to the forum-

selection clause in the parties’ contract. Dancor brought breach-of-contract and tort claims

against defendants, related to a construction project in New York. Meanwhile, in a New York

court, FXR filed a mechanic’s lien on the property and brought suit for breach of contract and

unjust enrichment against Dancor, among others. The New York case was later dismissed. 2016 IL App (2d) 150839

¶2 Defendants moved to dismiss or transfer the Kane County case, arguing in part that New

York was the better forum for the dispute. The circuit court denied defendants’ motion, finding

that the forum-selection clause designating Kane County was valid and enforceable.

¶3 Dancor filed amended and second amended complaints. Defendants moved to dismiss

each, and the circuit court granted their motions in part, dismissing Dancor’s tort counts for

injurious falsehood and slander of title related to the construction project.

¶4 FXR then moved to dismiss or transfer the case or to reconsider the circuit court’s prior

order denying the motion to dismiss or transfer the case. FXR argued that New York law

rendered the forum-selection clause void and unenforceable and that New York was the only

proper forum. The circuit court agreed and dismissed the case to allow the action to be refiled in

New York. This appeal followed. We affirm.

¶5 I. BACKGROUND

¶6 Dancor filed its complaint in Kane County on September 10, 2012. The complaint

alleged as follows. Dancor was the general contractor for the construction of an AutoZone store

(the Project) in Bronx County, New York, and it employed FXR as a subcontractor on the

Project. The subcontract was for $169,826.61. Dancor removed FXR from the Project and

brought in a replacement subcontractor to complete construction. After paying FXR, FXR’s

replacement, and other subcontractors, Dancor had spent a total of $176,481.88, or about $6600

more than the agreed-upon contract price. FXR recorded a mechanic’s lien against the Project

property on August 29, 2012, seeking $104,544.11.

¶7 Dancor attached the parties’ contract to the complaint. Section XXIX of the contract,

titled “Venue and Choice of Law” (the forum-selection clause), provided that the parties agreed

that the contract was executed in Kane County and that it would be governed by Illinois law.

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Further, it stated that “[a]ny claims, lawsuits, disputes or claims arising out of or relating to this

agreement shall be litigated in Kane County, Illinois.”

¶8 Dancor’s three-count complaint alleged breach of contract (count I) and two torts,

injurious falsehood (count II) and interference with prospective business advantage (count III).

In count I, Dancor alleged that FXR failed to meet reasonable deadlines, provide sufficient

manpower, and timely complete tasks on the Project. Consequently, Dancor removed FXR and

hired another firm to complete the Project. In count II, Dancor alleged that defendants recorded

a lien against the Project site for unpaid work completed. Dancor alleged that the lien’s

statement regarding the amount unpaid ($104,544.11) was not true, that defendants made the

statement knowing that it was false, and that they made the statement with the intent that others

rely on it. Dancor further alleged that a reasonable person or company would be “highly

offended” by an accusation that it failed to pay in excess of $100,000, and that defendants

intended the publication of the lien to result in pecuniary harm to Dancor.

¶9 Shortly after Dancor filed its complaint, FXR filed its complaint in New York on October

24, 2012, against, inter alios, Dancor, to foreclose its mechanic’s lien (the New York action).

FXR alleged that, as a subcontractor, it had agreed to provide certain services for Dancor on the

Project. FXR continued that it completed its performance of the contract and was owed a total of

$171,926.61. It had received $67,382.50 and alleged that Dancor still owed $104,544.11.

Dancor breached their contract and was unjustly enriched in the amount of $104,544.11 by not

paying FXR the full amount owed.

¶ 10 Back in the Kane County litigation, on December 26, 2012, defendants filed a motion to

dismiss Dancor’s complaint or transfer the case. In their motion, defendants alleged that New

York law required that the action be brought in a New York court. Defendants further argued

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that the defendants in the New York action, aside from Dancor, did not have minimum contacts

with Illinois sufficient to bring the case here. Finally, defendants argued that Bronx County in

New York was the best forum to resolve the legal issues related to the Project and, under the

doctrine of forum non conveniens, they sought that the case be transferred to New York.

¶ 11 Dancor responded by citing the forum-selection clause that designated Kane County.

Dancor argued that both New York and Illinois public policy favor enforcement of forum-

selection clauses in contracts and that the forum-selection clause here was reasonable and should

be enforced.

¶ 12 The circuit court held a hearing on the motion to dismiss or transfer. Thereafter, on

February 20, 2013, it denied the motion, finding that the forum-selection clause in the parties’

contract was valid and that venue in Kane County was appropriate.

¶ 13 On April 26, 2013, defendants moved to dismiss counts II and III of the complaint. They

argued that count II was based on insufficient conclusions by Dancor, not well-pled facts. They

argued that count III, which was based on the allegations of count II, was likewise defective. On

June 6, 2013, the circuit court granted defendants’ motion to dismiss counts II and III and

granted Dancor leave to amend its complaint.

¶ 14 Dancor filed an amended complaint on June 18, 2013. The amended complaint again

contained three counts: count I for breach of contract; count II for injurious falsehood; and count

III for interference with prospective business advantage. Under count III, Dancor alleged that

defendants claimed they were owed $104,544.11, that they knew they were not actually owed

that amount, and that they declared they were owed that amount with intent that Dancor incur

pecuniary harm.

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¶ 15 Around this time, the New York court heard a motion to dismiss FXR’s complaint in the

New York action. On July 18, 2013, it entered an order dismissing the complaint, explaining as

follows:

“Here, the Plaintiff contracted the venue for lawsuits and failed to meet its burden in

establishing it was unreasonable, unjust, in contravention of public policy, invalid due to

fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely

difficult that the challenging party would, for all practical purposes, be deprived of its day

in court.”

The New York court continued that an action to determine the obligations under the mechanic’s

lien and to determine the appropriateness of the forum-selection clause in the parties’ contract

had been commenced in Kane County before the New York action was filed.

¶ 16 Back in Kane County, defendants moved to dismiss Dancor’s amended complaint. On

September 5, 2013, the circuit court dismissed count I as to Vita; dismissed count II without

prejudice; informed Dancor that, if it repled count II, it should replead it as a “slander of title”

claim; and dismissed count III with prejudice.

¶ 17 Dancor filed a second amended complaint on November 13, 2013. The second amended

complaint contained six counts. Counts I and II were for breach of contract against FXR and

Vita, respectively; counts III and IV were for slander of title against FXR and Vita, respectively;

and counts V and VI were related to mechanic’s-lien liability under New York law against FXR

and Vita, respectively. In counts III and IV, Dancor alleged that FXR did not complete its

contractual duties and that Dancor had to bring in a replacement subcontractor to complete the

Project, costing Dancor $95,106. Regarding defendants’ mechanic’s lien against the Project

property for money they claimed they were owed under the contract, Dancor alleged that the

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statement of the amount owed was false. Dancor alleged that defendants knew or should have

known that it was false, because they knew or should have known that they did not complete

their work on the Project. Yet, Dancor alleged, defendants published the mechanic’s lien when

they knew or should have known that the lien would result in pecuniary damage to Dancor. The

mechanic’s lien clouded the title to $115,000 of Dancor’s funds.

¶ 18 On December 20, 2013, defendants moved to strike and dismiss the second amended

complaint. In part, the motion argued that counts III and IV failed to state a claim for slander of

title, because the counts failed to allege facts showing that the lien was false or malicious, that

Dancor incurred special damages, or that the lien made any statements about real property owned

by Dancor. Rather, defendants argued, Dancor again relied on insufficient conclusions, not well-

pled facts.

¶ 19 On February 14, 2014, the circuit court ruled on defendants’ motion to strike and dismiss

the second amended complaint. It denied the motion as to count I (breach of contract against

FXR). It granted the motion with prejudice as to counts II through VI, and, pursuant to Illinois

Supreme Court Rule 304(a) (eff. Feb. 26, 2010), found no reason to delay enforcement or appeal

of its order.

¶ 20 On March 13, 2014, Dancor moved to (1) vacate the Rule 304(a) language in the

February 14, 2014, order; and (2) grant Dancor leave to file an amended complaint to incorporate

its previously dismissed injurious-falsehood count, which it had not included in the second

amended complaint. On the same day, the court entered an order vacating the Rule 304(a)

language. On March 26, after argument on the issue, the court denied leave to reassert the

injurious-falsehood count.

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¶ 21 FXR answered count I of the second amended complaint on April 25, 2014. Along with

its answer, FXR filed a counterclaim, alleging that Dancor was unjustly enriched and breached

their contract. The case proceeded to discovery, and a bench trial was eventually scheduled for

August 26 and 27, 2015.

¶ 22 On May 15, 2015, FXR moved to dismiss or transfer the case pursuant to sections 2-

619(a)(1) and (a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(1), (a)(9) (West

2014)). FXR argued that New York law rendered the forum-selection clause void and

unenforceable. It also pointed out that Illinois law substantially mirrored New York law on the

enforcement of forum-selection clauses in construction contracts. Accordingly, FXR requested

that the circuit court transfer the case to New York or, in the alternative, dismiss the case without

prejudice.

¶ 23 Dancor responded to the motion to dismiss or transfer by arguing, in part, that the

enforceability of the forum-selection clause had already been decided in 2013, when the New

York action was dismissed and the New York court held that the forum-selection clause was

valid and enforceable. Dancor therefore argued that FXR was collaterally estopped from

relitigating the issue of the forum-selection clause’s validity and enforceability.

¶ 24 Before the circuit court ruled on FXR’s motion to dismiss or transfer, FXR moved to

reconsider the circuit court’s February 20, 2013, order, which had denied defendants’ first

motion to dismiss or transfer. FXR argued that the court had erred in finding the forum-selection

clause valid and enforceable.

¶ 25 On July 20, 2015, the circuit court entered an order addressing both FXR’s motion to

dismiss or transfer and its motion to reconsider. The court found that, with respect to the original

motion to dismiss or transfer, it had not been advised by either party of section 757 of the New

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York General Business Law (N.Y. Gen. Bus. Law § 757 (McKinney 2012)), which declares void

and unenforceable any choice-of-law or forum-selection provision requiring application of

another state’s law to a New York construction contract. It rejected Dancor’s argument that the

New York court’s order collaterally estopped FXR’s challenge to the forum-selection clause,

stating that the order did not have a binding effect on this or any other action. Rather, it

reasoned, the New York court deferred to Illinois and was similarly uninformed of section 757.

The circuit court found that section 757 applied to the contract between Dancor and FXR and

that consequently the forum-selection clause was void and unenforceable. While it found that

the clause could be severed under the terms of the contract, it also found that the case would be

more appropriately and conveniently litigated in New York.

¶ 26 The circuit court acknowledged that trial was set to commence within the next 60 days 1

and that the circuit court’s local rules generally required dispositive motions to be filed no later

than 60 days before trial. Here, both parties incurred costs preparing for trial in Illinois and

therefore both sides would be prejudiced by further delay. Nevertheless, the court reasoned, its

prior order was in error because of a misapplication, or lack of citation, of applicable law, and

the order was interlocutory and could be corrected at any time before trial. Accordingly, the

court granted FXR’s motion to dismiss so that the case could be refiled in New York.

1 On June 18, 2015, the trial was rescheduled from August 26 and 27 to September 9 and

10, 2015. We note, however, that the local rule requires dispositive motions to be filed no later

than 120 days prior to trial, not 60. 16th Judicial Cir. Ct. R. 6.06(a) (May 5, 2008). Sixty days is

required for counterclaims, actions over, contribution claims, and third-party complaints. 16th

Judicial Cir. Ct. R. 6.06(b) (May 5, 2008).

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¶ 27 Dancor filed a timely notice of appeal on August 12, 2015, pursuant to Illinois Supreme

Court Rule 301 (eff. Feb. 1, 1994). Defendants timely cross-appealed.

¶ 28 II. ANALYSIS

¶ 29 A. Jurisdiction

¶ 30 Defendants assert that this court lacks jurisdiction to hear Dancor’s appeal. This court

has an obligation to consider its jurisdiction at any time, and, if jurisdiction is lacking, we must

dismiss the appeal. Anderson Dundee 53 L.L.C. v. Terzakis, 363 Ill. App. 3d 145, 152-53 (2005).

Our obligation to consider whether we possess jurisdiction would exist even if defendants had

not raised the issue. Little Texas, Inc. v. Buchen, 319 Ill. App. 3d 78, 81 (2001).

¶ 31 Dancor filed its notice of appeal pursuant to Rule 301, which allows appeals from final

orders. Likewise, its statement of jurisdiction on appeal invokes Rule 301. Defendants argue

that the circuit court’s July 20, 2015, order was not a final order because it dismissed the case

under forum non conveniens, with leave to refile the case in New York. Defendants therefore

contend that Dancor had to appeal pursuant to Illinois Supreme Court Rule 306(a)(2) (eff. July 1,

2014), which provides that a party may petition for leave to appeal from an order allowing or

denying a motion to dismiss on the grounds of forum non conveniens.

¶ 32 Contrary to defendants’ assertion, the circuit court did not dismiss the case pursuant to

the doctrine of forum non conveniens. Rather, the circuit court granted a section 2-619 motion to

dismiss based on an affirmative matter, that is, applicable law that rendered the forum-selection

clause void and unenforceable and required that the case be brought in New York. Whether to

dismiss based on a forum-selection clause—which requires consideration of contract

principles—is a separate issue from the noncontractual considerations of forum non conveniens,

and to permit an appeal under Rule 306(a)(2) on a forum-selection issue would impermissibly

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expand the scope of the rule by usurping the supreme court’s rulemaking authority. Ferguson v.

Bill Berger Associates, Inc., 302 Ill. App. 3d 61, 69 (1998). Rather, a dismissal pursuant to a

forum-selection clause is a final order for purposes of Rule 301. Fabian v. BGC Holdings, LP,

2014 IL App (1st) 141576, ¶¶ 12-13 (dismissal based on forum-selection clause, even without

prejudice to refiling in another state, was a final order because it terminated the plaintiff’s right

to bring those claims in Illinois). Accordingly, we have jurisdiction.

¶ 33 B. Dancor’s Arguments on Appeal

¶ 34 Dancor raises several issues on appeal. Those issues are: (1) whether the New York

court’s order precluded litigation of the forum-selection clause; (2) whether the circuit court

erred in dismissing the case under forum non conveniens; (3) whether the circuit court erred in

granting a dispositive motion less than 120 days before trial, in violation of the circuit court’s

local rules; and (4) whether the circuit court erred in dismissing Dancor’s tort claims for

injurious falsehood and slander of title.

¶ 35 Dancor’s first issue concerns the New York action. The New York court dismissed that

case on July 18, 2013, in an order granting the defendants’ (including Dancor’s) motion to

dismiss FXR’s complaint, on the basis of the forum-selection clause. In its order, the New York

court reasoned as follows. A contractual forum-selection clause is prima facie valid and

enforceable unless shown by the challenging party to be unreasonable, unjust, in contravention

of public policy, or invalid due to fraud or overreach, or unless the selected forum would

effectively deprive the challenging party of its day in court. The court cited section 41 of New

York’s Lien Law (N.Y. Lien Law § 41 (McKinney 2012)). FXR had contracted for venue to be

in Illinois, and it had not met its burden to show that the contract’s forum-selection clause was

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unreasonable, unjust, in contravention of public policy, or invalid due to fraud or overreach, or

that it would be effectively deprived of its day in court.

¶ 36 Dancor argues that the New York court’s order held that the forum-selection clause was

valid and enforceable. Dancor further argues that the New York court did not dismiss based on

the pendency of this case and could not defer to the circuit court, which had yet to issue a final

order on the issue of the forum-selection clause’s validity.

¶ 37 Dancor continues that the New York court’s order has preclusive effect under the

doctrine of collateral estoppel. According to Dancor, Illinois law requires only three elements

for the application of collateral estoppel: (1) identical issues; (2) a final judgment on the merits;

and (3) that the party against which estoppel is asserted was a party to the prior adjudication.

Dancor asserts that here the parties were the same, the New York order was a final order, and the

issue—that is, the validity and enforceability of the forum-selection clause—was the same.

Dancor concludes that the parties are therefore bound by the New York court’s holding on the

issue of the forum-selection clause’s validity and that FXR was collaterally estopped from

raising the issue again in the circuit court.

¶ 38 Dancor turns to its second argument, that the circuit court erred in dismissing this case

under the doctrine of forum non conveniens. Dancor argues as follows. FXR’s motion to

dismiss did not contain any analysis of the public- and private-interest factors that would favor

New York as the proper forum. Nor did the circuit court analyze these factors in its order

granting FXR’s motion. Because no factors supported a transfer to New York, the dismissal on

the basis of forum non conveniens was in error. Moreover, New York law holds that, where a

litigant has “bonded over” a lien on real property, the subject of the litigation is not the property

but rather the bond, to which the lien is now attached. See Shepherd Showcase, Inc. v. Pekala,

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138 A.D. 2d 960, 960-61 (N.Y. App. Div. 1988). Under Pekala, then, the situs of the real

property in this case—New York—does not determine the proper forum.

¶ 39 With respect to the third argument, that the circuit court improperly granted a dispositive

motion less than 120 days before trial, Dancor argues as follows. Local Rule 6.06 requires that

any dispositive motion be brought no later than 120 days prior to trial. FXR violated this rule

when it filed its motion to dismiss or transfer on May 15, 2015, and trial was set to begin on

August 26, 2015. Local rules are meant to be followed and are not mere suggestions or

guidelines. Rather, they have the force of statutes and are binding on courts and parties.

¶ 40 Finally, Dancor argues that the circuit court erred in dismissing its tort claims. Dancor

argues as follows. First, it stated a claim for injurious falsehood under the Restatement (Second)

of Torts. A defendant is liable for a false statement harmful to the pecuniary interest of another

if the defendant either intended or knew that the publication was likely to result in harm and the

defendant either knew that the statement was false or recklessly disregarded the truth. See

Contract Development Corp. v. Beck, 255 Ill. App. 3d 660, 665 (1994). Here, Dancor alleged

that the statement in the mechanic’s lien was knowingly false; alleged that defendants intended

that the publication of the statement cause Dancor pecuniary harm; and alleged facts supporting

these elements, including the payments that were made under the contract and defendants’

publication of the statement.

¶ 41 Dancor acknowledges that Illinois has not expressly adopted the tort of injurious

falsehood. However, Dancor urges that, if necessary, this court should adopt the tort, noting that

some legal scholars have recommended its adoption.

¶ 42 Dancor continues that, in addition to stating a claim for injurious falsehood, it stated a

claim for slander of title. Illinois courts follow the Restatement (Second) of Torts to specify the

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elements necessary for a prima facie case of slander of title. See id. The three elements of

slander of title are: (1) a false and malicious publication (2) of words that disparage a person’s

title to property (3) that result in special damages. Id. Dancor argues that it pled a false and

malicious publication when it alleged that defendants’ statement that Dancor owed them

$104,544.11 was knowingly false. Dancor also pled that defendants used words that disparaged

its title to property. Defendants’ lien was detached from the real property and attached to

Dancor’s bond, and Dancor was consequently forced to put up $115,000 pursuant to its contract

with AutoZone. The lien on Dancor’s bond also clouded the title to these funds. Moreover,

Dancor pled special damages in the sum of $115,000—the money it had to place in escrow to

“bond over” the lien.

¶ 43 Last, Dancor argues that it stated a claim of “prima facie tort.” Dancor argues that the

concept of “prima facie tort” provides a remedy for tort injuries that do not conveniently fit into

a defined category. Citing English common law from the 1800s, Dancor argues that it is a well-

established common-law principle that a cause of action will lie for maliciously giving false

information. Dancor continues that Illinois follows the common-law prima facie tort doctrine, as

evidenced by our supreme court’s approving citation of Aikens v. State of Wisconsin, 195 U.S.

194 (1904), and statement that it is a “basic concept in the law that one who intentionally harms

another without excuse is liable for the harm.” Knierim v. Izzo, 22 Ill. 2d 73, 83 (1961). Here,

Dancor alleged that defendants knowingly and purposefully recorded a false lien in order to harm

Dancor in retaliation for removing them from the Project. Accordingly, Dancor argues, this was

enough to avoid a motion to dismiss for failure to state a cause of action in tort.

¶ 44 Defendants respond as follows. First, the circuit court acted within its discretion when it

dismissed the case in favor of a New York forum. In particular, defendants argue that section

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757 of the New York General Business Law (N.Y. Gen. Bus. Law § 757 (McKinney 2012))

rendered the forum-selection clause void and unenforceable. The forum-selection clause reads

as follows:

“The parties agree that this agreement was executed in Kane County, Illinois and shall be

governed by the law of the State of Illinois. Any claims, lawsuits, disputes or claims

arising out of or relating to this agreement shall be litigated in Kane County, Illinois.”

¶ 45 Defendants note that, despite the language of the forum-selection clause, the very next

page of the contract states that the agreement was executed in Santa Rosa Beach, Florida, not in

Kane County, Illinois. In any event, defendants argue that the clause violates section 757(1) of

the New York General Business law, which reads as follows:

“The following provisions of construction contracts shall be void and unenforceable:

1. A provision, covenant, clause or understanding in, collateral to or affecting a

construction contract, with the exception of a contract with a material supplier, that

makes the contract subject to the laws of another state or that requires any litigation,

arbitration or other dispute resolution proceeding arising from the contract to be

conducted in another state.” N.Y. Gen. Bus. Law § 757(1) (McKinney 2012).

Defendants cite HVS, LLC v. Fortney & Weygandt, Inc., 17 N.Y.S.3d 285, 286 (Sup. Ct. 2015),

where a New York trial court enforced section 757 to hold a forum-selection provision for

Cuyahoga County, Ohio, void and unenforceable.

¶ 46 Defendants note that their contract with Dancor concerned construction that took place in

New York. Therefore, defendants argue, section 757 applied and rendered the forum-selection

clause void and unenforceable. Although the circuit court initially found the forum-selection

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clause valid, it reconsidered its order and dismissed the case on the basis that the forum-selection

clause was void.

¶ 47 Defendants continue that Illinois law is nearly identical to New York law on the

enforceability of forum-selection clauses in construction contracts. They cite section 10 of the

Building and Construction Contract Act (Building Act) (815 ILCS 665/10 (West 2014)), which

provides:

“A provision contained in or executed in connection with a building and construction

contract to be performed in Illinois that makes the contract subject to the laws of another

state or that requires any litigation, arbitration, or dispute resolution to take place in

another state is against public policy. Such a provision is void and unenforceable.”

Defendants argue that section 10 of the Building Act demonstrates that Illinois law, just like New

York law, prohibits the litigation of construction contracts outside of the state where the

construction took place. To treat the New York law differently would be “quite anomalous and a

violation of comity.”

¶ 48 Defendants turn from section 757’s applicability to Dancor’s reasons why the forum

selection clause should be upheld regardless. First, defendants argue that the New York court’s

order does not collaterally estop litigation of the forum selection-clause here. Defendants point

to the New York court’s order, in which it stated that “the action to determine the payment

objections under the Mechanics’ Lien and whether the forum selection in Illinois is appropriate

was commenced prior and/or determined to [sic] the filing in New York.” They also deny that

the New York court found the forum-selection clause valid. Instead, they argue, the court merely

found that the forum-selection clause was not unreasonable, in contravention of public policy, or

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otherwise invalid. Defendants postulate that, had the New York court been presented with

section 757, it would have concluded differently.

¶ 49 Defendants continue that there is no case law requiring that an Illinois court honor the

decision of another state court dismissing a case under forum non conveniens or pursuant to a

forum-selection clause. They argue that a court from one state lacks the power to transfer a case

to another state’s court system. See Fennell v. Illinois Central R.R. Co., 2012 IL 113812, ¶ 13.

Accordingly, New York could not have transferred the case to Illinois. Furthermore, collateral

estoppel can apply only to separate and consecutive actions. Nowak v. St. Rita High School, 197

Ill. 2d 381, 389-90 (2001). Yet, they argue that this case is not separate from the New York

action. Rather, the two proceedings are two stages of one action.

¶ 50 Further, defendants argue that the New York court’s order was not a final judgment on

the merits, which is one of the necessary elements for collateral estoppel to apply. They argue

that a dismissal based upon a forum-selection clause is not an adjudication on the merits.

Further, a final judgment is a determination of the issue presented that ascertains and fixes

absolutely the rights of the parties. See Hernandez v. Pritiskin, 2012 IL 113054, ¶ 47.

Defendants argue that, simply, an order declining jurisdiction is not a final judgment. They

assert that the New York court’s order did nothing more than decline to exercise jurisdiction, in

the erroneous belief that the forum-selection clause was valid and enforceable. The order did not

bear on whether Dancor was liable to FXR under FXR’s mechanic’s-lien claim or determine the

rights of any party. Thus, collateral estoppel did not apply.

¶ 51 Defendants also argue that the circuit court had discretion to grant the motion to dismiss

less than 120 days prior to trial. Local Rule 6.06 provides that “[a]ll case or claim dispositive

motions, other than those arising during trial, will be filed for *** setting no longer than 120

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days before the designated trial date except by leave of court upon good cause shown.” 16th

Judicial Cir. Ct. R. 6.06(a) (May 5, 2008). Defendants argue that the rule gave the circuit court

discretion to hear FXR’s motion to dismiss. Nevertheless, defendants also argue that the motion

to dismiss was not really a dispositive motion—rather it was a motion to reconsider and transfer.

The circuit court did not dismiss the case with prejudice, and therefore its decision was not on

the merits. Defendants further argue that Dancor was not prejudiced, because it had time to

respond to FXR’s motion. Illinois courts have held that a violation of a local notice rule does not

prejudice a party who had sufficient time to respond. See Premier Electrical Construction Co. v.

American National Bank of Chicago, 276 Ill. App. 3d 816, 834 (1995) (holding that a 6-day

delay between service and hearing on motion for summary judgment—as opposed to 10 days

required by local rule—was not substantial and affirming despite the technical violation).

¶ 52 Defendants turn next to the application of forum non conveniens. Defendants argue that

both the private- and public-interest factors under forum non conveniens favored a transfer to

New York and that, contrary to Dancor’s contention, FXR did analyze the private- and public-

interest factors. With respect to the private-interest factors, it was undisputed that the case’s only

connection to Illinois was Dancor’s office in the state. All of the construction was performed in

New York. The witnesses (including the other subcontractors) and documents, the property, and

the building are all in New York. Thus, the private-interest factors clearly favored New York as

the proper forum. The public-interest factors likewise favored New York. New York has an

interest in adjudicating a construction dispute that occurred within its borders. Section 507 of the

New York Civil Practice Law and Rules (N.Y. C.P.L.R. ¶ 507 (McKinney 2012)) provides that,

where the judgment demanded would affect the title, use, or possession of real property, the trial

should take place in a county in which any part of the subject of the action is situated. A

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mechanic’s lien encumbers real property, and therefore an action to foreclose such a lien must be

brought in the county where the real property is located. Edward Joy Co. v. McGuire & Bennett,

Inc., 608 N.Y.S.2d 26, 26 (App. Div. 1993). Further, section 757 of the New York General

Business Law evinces a strong public policy to litigate in New York any dispute over New York

construction projects. N.Y. Gen. Bus. Law § 757 (McKinney 2012).

¶ 53 Defendants argue that, in contrast to section 757 of the New York General Business Law,

section 41 of the New York State Lien Law is not relevant to this case. Section 41 is not a venue

statute but rather allows a claimant to enforce a mechanic’s lien against either the property or the-

“person liable for the debt upon which the lien is founded” in any court that has jurisdiction.

N.Y. Lien Law § 41 (McKinney 2012). Therefore, section 757 of the New York General

Business Law controls.

¶ 54 Defendants turn to the circuit court’s section 2-615 dismissal of Dancor’s tort claims.

They argue that the dismissals were proper as follows. First, Dancor waived its claim for

injurious falsehood by failing to replead or incorporate that count in its second amended

complaint. They argue that, nevertheless, that count failed to state a claim for injurious

falsehood. Illinois has not formally recognized the tort of injurious falsehood. Pursuant to

section 623A of the Restatement (Second) of Torts, the tort is intended to protect economic

interests, that is, it is directed against disparaging comments about the quality of what the

plaintiff sells or the character of its business. Restatement (Second) of Torts § 623A (1977);

Kolegas v. Heftel Broadcasting Corp., 217 Ill. App. 3d 803, 811 (1991). Here, Dancor did not

allege that defendants made any disparaging comments about its business, products, or services.

Even if the tort were recognized and had a broader definition, Dancor failed to allege facts to

support that defendants knew that the statement in the mechanic’s lien they filed was false.

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¶ 55 With respect to Dancor’s slander-of-title claim, defendants continue that Dancor again

failed to plead the elements necessary to maintain a cause of action. A slander-of-title claim

requires that a plaintiff prove a false and malicious publication that disparages a person’s title to

property and results in special damages. However, Dancor pled only a conclusion that

defendants did not have a reasonable belief that they were entitled to a lien. Further, Dancor did

not own the real property at issue in this case. Dancor cannot claim slander of title when it did

not have title to the property. Moreover, Dancor did not incur special damages. The bond that

Dancor posted and held in escrow would be returned to it if the lien were ultimately found

unwarranted. The cost of posting the lien and litigating its merits are ordinary expenses, not

special damages.

¶ 56 Finally, with respect to Dancor’s prima facie tort argument, defendants respond that

Dancor failed to raise this claim in the circuit court. Even if not forfeited, the claim is a

facsimile of its injurious-falsehood and slander-of-title claims, which were not supported by

sufficient pleadings.

¶ 57 C. Resolution of Dancor’s Appeal

¶ 58 The circuit court dismissed various counts of Dancor’s amended and second amended

complaints, under sections 2-615 and 2-619, on September 5, 2013, and February 14, 2014,

respectively. It also granted a section 2-619 motion to dismiss the case on July 20, 2015, holding

that the forum-selection clause was void and unenforceable. A section 2-615 motion admits all

well-pled facts and attacks the legal sufficiency of the complaint, whereas a section 2-619

motion admits the legal sufficiency of the complaint but raises defects, defenses, or other

affirmative matters. La Salle National Bank v. City Suites, Inc., 325 Ill. App. 3d 780, 789

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(2001). We review a dismissal under either section de novo. Provenzale v. Forister, 318 Ill.

App. 3d 869, 874 (2001).

¶ 59 We first address whether the New York court’s order precluded the circuit court from

dismissing the case based on the forum-selection clause. In other words, the issue is whether

FXR was collaterally estopped from challenging the validity and enforceability of the forum-

selection clause.

¶ 60 Collateral estoppel, also known as issue preclusion, is a branch of res judicata.

Wakehouse v. Goodyear Tire & Rubber Co., 353 Ill. App. 3d 346, 351 (2004). Collateral

estoppel is an affirmative defense and is forfeited on appeal if not raised below. Midwest

Physician Group, Ltd. v. Department of Revenue, 304 Ill. App. 3d 939, 952 (1999); cf. People v.

Anderson, 2013 IL App (2d) 121346, ¶¶ 13-14 (normally, collateral estoppel is an affirmative

defense that is forfeited if not pled, but it may be first raised on appeal if unavailable in the trial

court). The doctrine, if it applies, bars relitigation of issues decided in a prior action.

Wakehouse, 353 Ill. App. 3d at 351.

¶ 61 In order for collateral estoppel to apply, the party seeking to apply it must establish that:

(1) the issue at hand is identical to the one in a prior action; (2) there was a prior, final

adjudication on the merits; and (3) the party against whom preclusion is sought was a party to or

in privity with a party to the prior action. In re A.W., 231 Ill. 2d 92, 99 (2008). Moreover, the

issue had to have been actually and necessarily litigated in the prior action. LaSalle Bank

National Ass’n v. Village of Bull Valley, 355 Ill. App. 3d 629, 636 (2005). Collateral estoppel is

an equitable doctrine and, even if the threshold elements are established, the doctrine will not be

applied if it would result in injustice. Edmonds v. Illinois Workers’ Compensation Comm’n,

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2012 IL App (5th) 110118WC, ¶ 21. The party against whom estoppel is sought must have had

both a full and fair opportunity and an incentive to litigate the issue in the prior proceeding. Id.

¶ 62 Here, in response to FXR’s motion to dismiss, Dancor argued that the New York action

precluded litigation of the forum-selection clause’s validity and enforceability. Dancor therefore

has not forfeited its argument on appeal. Dancor argues that all three elements of collateral

estoppel are met here, but the crucial determination is whether the New York court issued a final

judgment on the merits. If the New York action did not produce a final judgment on the merits,

there was no basis to preclude litigation of the forum-selection clause in the circuit court.

¶ 63 Under the full-faith-and-credit clause of the United States Constitution (U.S. Const., art.

IV, § 1 (“Full Faith and Credit shall be given in each State to the public Acts, Records, and

judicial Proceedings of every other State.”)), the doctrine of collateral estoppel extends to

judgments entered in foreign states. Allianz Insurance Co. v. Guidant Corp., 387 Ill. App. 3d

1008, 1021 (2008). This clause requires that we give the judgment of another state “at least the

res judicata effect that the sister state rendering the judgment would give to it.” Morris B.

Chapman & Associates, Ltd. v. Kitzman, 193 Ill. 2d 560, 565 (2000). We must look to the forum

state’s res judicata law to determine what preclusive effect, if any, that state would give the

judgment. Id. (looking to Missouri law). However, at least one court has held that the full-faith-

and-credit clause does not necessarily prevent Illinois from according greater effect to a foreign

state’s judgment. Finley v. Kesling, 105 Ill. App. 3d 1, 7 (1982). That is, the full-faith-and-

credit clause does not bar Illinois from applying its own rules of collateral estoppel to preclude

relitigation of an issue where, for example, New York would not. Id.

¶ 64 Under New York law, collateral estoppel precludes a party from relitigating an issue

“ ‘clearly raised in a prior action or proceeding and decided against that party or those in

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privity.’ ” Church v. New York State Thruway Authority, 791 N.Y.S.2d 676, 678-79 (App. Div.

2005) (quoting Ryan v. New York Telephone Co., 467 N.E.2d 487, 500 (N.Y. 1984)). The party

seeking to apply the doctrine must show that the identical issue was necessarily decided in the

prior action, and the party opposing application of the doctrine may demonstrate the absence of a

full and fair opportunity to contest the prior determination. Id. at 679. A final judgment is

necessary for collateral estoppel to apply. Id.

¶ 65 Importantly, New York applies collateral estoppel only to issues of fact, not law. Abreu

v. Coughlin, 555 N.Y.S.2d 889, 891 (App. Div. 1990); In re Department of Personnel of the City

of New York v. City Civil Service Comm’n, 462 N.Y.S.2d 878, 879 (App. Div. 1983). Further,

New York has held that the issue of a forum-selection clause’s applicability is a question of law

and is therefore not barred by the doctrine of collateral estoppel. Sterling National Bank v.

Eastern Shipping Worldwide, Inc., 826 N.Y.S.2d 235, 237 (App. Div. 2006). Interpretations of

unambiguous contract provisions, such as the forum-selection clause in Sterling National Bank,

are questions of law. Id.; Taussig v. Clipper Group, L.P., 787 N.Y.S.2d 10, 11 (App. Div. 2004)

(“The interpretation of an unambiguous contract is a question of law for the court ***.”).

Accordingly, under New York law, the issue of whether the forum-selection clause here was

valid and enforceable was a question of law and cannot be the basis for collateral estoppel.

Sterling National Bank, 826 N.Y.S.2d at 237; see Lischinskaya v. Carnival Corp., 865 N.Y.S.2d

334, 337 (App. Div. 2008) (forum-selection clause’s enforceability under federal maritime law

was a question of law).

¶ 66 Nor does Illinois law provide greater effect and preclude litigation of the forum-selection

clause. Collateral estoppel in Illinois requires a final judgment on the merits, but a dismissal for

improper venue is not a final judgment on the merits. Ill. S. Ct. R. 273 (“[A]n involuntary

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dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for

failure to join an indispensable party, operates as an adjudication on the merits.” (Emphases

added.)); see Richter v. Prairie Farms Dairy, Inc., 2015 IL App (4th) 140613, ¶ 34 (a dismissal

order that otherwise specified that it was not on the merits was not on the merits). Therefore,

there is no basis in New York or Illinois law to hold that the New York action precluded

litigation of the forum-selection clause.

¶ 67 Having held that the circuit court was free to examine the validity and enforceability of

the forum-selection clause, we turn to examine whether, in fact, the circuit court was correct in

holding that the clause was void and unenforceable.

¶ 68 Dancor argues that the clause was valid and enforceable, citing section 41 of the New

York Lien Law (N.Y. Lien Law § 41 (McKinney 2012)). Defendants counter that the controlling

law is actually section 757 of the New York General Business Law (N.Y. Gen. Bus. Law § 757

(McKinney 2012)), which, they argue, renders the clause void and unenforceable.

¶ 69 Forum selection and choice of law are separate issues. Brandt v. MillerCoors, LLC, 2013

IL App (1st) 120431, ¶ 15. Under Illinois law, we may void a forum-selection clause if it would

violate a fundamental Illinois public policy. Maher & Associates, Inc. v. Quality Cabinets, 267

Ill. App. 3d 69, 75 (1994). Generally, to determine whether a forum-selection clause is

enforceable, Illinois courts have applied a multifactor test to determine whether the clause is

reasonable. See IFC Credit Corp. v. Rieker Shoe Corp., 378 Ill. App. 3d 77, 86 (2007)

(considering (1) the law governing the formation and construction of the contract, (2) the

residency of the parties, (3) the place of execution or performance of the contract, (4) the

location of the parties, (5) the inconvenience of the location, and (6) the parties’ relative

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bargaining positions); Calanca v. D&S Manufacturing Co., 157 Ill. App. 3d 85, 88 (1987)

(same).

¶ 70 In Rieker Shoe Corp., the court addressed both whether the parties’ forum-selection

clause was invalid and whether its enforceability should be construed under another state’s law.

Rieker Shoe Corp., 378 Ill. App. 3d at 85-86, 93-94. Applying the multifactor reasonableness

test, the court found the forum-selection clause valid in Illinois. Id. at 86. Separately, it

disagreed that Illinois’s choice-of-law rules dictated the application of New Jersey law, under

which a forum selection-clause such as the one between the parties was not enforceable. Id. at

93. The court cited the parties’ agreement, which provided that it was governed by Illinois law

“ ‘without regard to such State’s choice of law considerations.’ ” Id. at 94. Therefore, the court

found, Illinois law applied and, under the reasonableness test it had already performed, the

forum-selection clause was enforceable. Id.

¶ 71 Here, the parties chose Illinois as the forum state. Unlike in Rieker, there is no clause

requiring that we ignore Illinois choice-of-law rules. Therefore, to examine whether New York

law applies to interpreting the forum-selection clause, we turn to Illinois’s choice-of-law rules.

See Western States Insurance Co. v. Zschau, 298 Ill. App. 3d 214, 223 (1998) (Illinois courts

apply Illinois choice-of-law rules). Defendants have not argued that the forum-selection clause

violates Illinois public policy or is unreasonable under Illinois law, only that New York law

applies to render the clause void and unenforceable.

¶ 72 Choice-of-law considerations arise only if there is an actual conflict of law among the

states with an interest in a particular dispute. Allianz Insurance Co. v. Guidant Corp., 373 Ill.

App. 3d 652, 658 (2007). An actual conflict exists if application of one state’s law will yield a

different result than the application of another’s, that is, if it will affect the outcome of the

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dispute. Id.; Gleim v. Roberts, 395 Ill. App. 3d 638, 639 (2009). Illinois generally follows the

Restatement (Second) of Conflict of Laws (1971) in making choice-of-law decisions. Hall v.

Sprint Spectrum L.P., 376 Ill. App. 3d 822, 825 (2007). But see Maher & Associates, Inc., 267

Ill. App. 3d at 77 (the Restatement is a guide for courts, “not black-letter law to be upheld

against all other considerations”).

¶ 73 Section 187 of the Restatement applies when, as here, the parties have made an express

choice of law in their contract. Restatement (Second) of Conflict of Laws § 187 (1971); Hall,

376 Ill. App. 3d at 825; Maher & Associates, Inc., 267 Ill. App. 3d at 76. In particular, section

187(2) provides:

“The law of the state chosen by the parties to govern their contractual rights and duties

will be applied *** unless either

(a) the chosen state has no substantial relationship to the parties or the transaction

and there is no other reasonable basis for the parties’ choice, or

(b) application of the law of the chosen state would be contrary to a fundamental

policy of a state which has a materially greater interest than the chosen state in the

determination of the particular issue and which, under the rule of § 188, would be

the state of the applicable law in the absence of an effective choice of law by the

parties.” Restatement (Second) of Conflict of Laws § 187(2) (1971).

To ascertain the public policy of a state, we look to its constitution, legislative enactments, and

judicial decisions. Hall, 376 Ill. App. 3d at 826.

¶ 74 Accordingly, our task is to first determine whether there is a conflict between New York

and Illinois law. The plain language of section 757 provides that a construction contract

provision that requires litigation, arbitration, or other dispute resolution arising from the contract

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to be conducted in another state is void and unenforceable. N.Y. Gen. Bus. Law § 757(1)

(McKinney 2012). Here, we have a construction contract for a New York construction project.

Exceptions to section 757’s applicability, such as an exception for a contract with a material

supplier, do not apply. Defendants are correct that section 757, by its plain language, requires

that, if you build in New York, you litigate in New York. See HVS, LLC, 17 N.Y.S.3d at 286

(enforcing section 757 to invalidate forum-selection clause, which required litigation in Ohio, in

a contract for a construction project located in New York); see also Welsbach Electric Corp. v.

MasTec North America, Inc., 859 N.E.2d 498, 502 n.8 (App. Div. 2006) (section 757 was

enacted to render void any provision that makes a construction contract subject to the laws of

another state).

¶ 75 In Illinois, a forum-selection clause in a contract is prima facie valid and should be

enforced unless the opposing party shows that enforcement would be unreasonable under the

circumstances. Rieker Shoe Corp., 378 Ill. App. 3d at 85-86. A forum-selection clause reached

through arm’s-length negotiation should be honored and enforced by the courts, absent a

compelling and countervailing reason not to enforce it. Mellon First United Leasing v. Hansen,

301 Ill. App. 3d 1041, 1045 (1998). Defendants have not argued that the forum-selection clause

is void and unenforceable under Illinois law. Because the forum-selection clause is prima facie

valid under Illinois law but void under New York law, the forum-selection-clause issue would be

decided differently depending on which forum’s law applies. Accordingly, we have a conflict

and proceed with a choice-of-law analysis.

¶ 76 Guided by the Restatement, we will apply Illinois law to interpret the forum-selection

clause, unless one of the following applies: (1) Illinois has no substantial relationship to the

parties or the transaction and there is no other reasonable basis for the parties’ choice; or (2)

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application of Illinois law would be contrary to a fundamental New York policy, and New York

has a materially greater interest than Illinois in the determination of this issue. See Old Republic

Insurance Co. v. Ace Property & Casualty Insurance Co., 389 Ill. App. 3d 356, 363 (2009). The

basic reasoning behind these exceptions is that, in addition to fulfillment of the parties’

expectation, regard must also be had for state interests and for state regulation. Restatement

(Second) of Conflict of Laws § 187, cmt. g (1971).

¶ 77 The first exception does not apply, because there was a reasonable basis to choose Illinois

as the forum state. Dancor is an Illinois corporation with a place of business in Illinois, which is

generally sufficient to satisfy the “reasonable basis” for a choice of law. See International

Surplus Lines Insurance Co. v. Pioneer Life Insurance Co. of Illinois, 209 Ill. App. 3d 144, 154

(1990) (citing Restatement (Second) of Conflict of Laws § 187, cmt. f (1971)).

¶ 78 On the other hand, we hold that the second exception does apply to this particular case.

We explain as follows. Section 187 of the Restatement requires that the New York policy be

“fundamental.” Restatement (Second) of Conflict of Laws § 187 (1971). The comments do not

define “fundamental” but do state that the policy must be “a substantial one.” Restatement

(Second) of Conflict of Laws § 187, cmt. g (1971). For example, a fundamental policy must

relate to more than mere formalities in a contract. Id. Fundamental policies include state statutes

that make certain contracts illegal or are designed to protect a person from another with superior

bargaining power. Id. Statutes involving the rights of an individual insured against an insurance

company would qualify. Id.

¶ 79 We have held that an Illinois statue that declared void any attempted contractual waiver

of the statute was a fundamental public policy. Maher & Associates, Inc., 267 Ill. App. 3d at 76

(interpreting the Sales Representative Act (820 ILCS 120/2 (West 1992)), and explaining that the

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difference between “void” and “void against public policy” was merely semantic). Similarly,

we hold that section 757 of the New York General Business Law is a fundamental public policy

in New York. A state’s legislative enactments reveal a state’s public policy. Hall, 376 Ill. App.

3d at 826. Here, section 757 of the New York General Business Law clearly evinces New

York’s public policy that construction contracts for New York construction projects be litigated

in New York. See supra ¶ 73. Section 757 declares void and unenforceable specific provisions

of construction contracts so that New York maintains an interest in construction within its

borders. To enforce the forum-selection clause would be to disregard section 757 and New

York’s public policy regarding construction contracts.

¶ 80 Additionally, New York has a materially greater interest in the determination of the

forum-selection-clause issue. The subject matter of the contract, the AutoZone building, is in

New York. Performance of the contract took place in New York. Defendants are from New

York. Although the parties’ contract states in section XXIX that the contract was executed in

Kane County, the very next page (and the first page of the contract) contradict this statement,

stating that the contract was executed in Florida. The only connection Illinois has to the

litigation is Dancor’s incorporation and place of business here, and we cannot say that this

counterbalances New York’s connections. Cf. Old Republic Insurance Co., 389 Ill. App. 3d at

363 (Illinois did not have a materially greater interest in the litigation than Nebraska, where

litigation involved insurance companies from Nebraska and an agreement negotiated in

Nebraska); Maher & Associates, Inc., 267 Ill. App. 3d at 76 (applying the Restatement, Illinois

did not have a materially greater interest than Texas where defendant was incorporated in Texas,

had its primary place of business in Texas, and the contract at issue was a Texas contract;

plaintiff had its primary place of business in Illinois but was incorporated in Minnesota and did

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business in multiple states); Hall, 376 Ill. App. 3d at 826 (Illinois did not have a materially

greater interest in the litigation than Kansas or Missouri in multistate suit against

telecommunications corporations incorporated in Kansas and Missouri).

¶ 81 We are mindful that the Restatement is a guide, not black-letter law. Maher &

Associates, 267 Ill. App. 3d at 77. Illinois follows the modern approach to choice-of-law

questions, placing the greatest importance on the public policy of the state in which the case is

brought. Id. Nevertheless, this is a situation where New York has a clear public policy and

Illinois does not have a competing interest in the litigation. In fact, Illinois implicitly shares New

York’s interest, as Illinois has a similar public policy that contracts for Illinois construction be

litigated in Illinois. 2

¶ 82 Nevertheless, Dancor argues that, if we apply New York law, section 41 of the New York

Lien Law controls. We disagree. That section provides that a mechanic’s lien on real property

may be enforced against such property or against a person liable for the debt upon which the lien

is founded in any of the following: the New York supreme court or a county court otherwise

having jurisdiction, regardless of the amount of the debt, or any court with jurisdiction in an

action founded on a contract for a sum of money equivalent to the amount of such debt. N.Y.

2 Section 10 of the Building Act provides that an Illinois construction contract provision

that requires “any litigation, arbitration, or dispute resolution to take place in another state is

against public policy. Such a provision is void and unenforceable.” 815 ILCS 665/10 (West

2014). The plain language is clear that, if you build in Illinois, you litigate in Illinois. Cf. Foster

Wheeler Energy Corp. v. LSP Equipment, LLC, 346 Ill. App. 3d 753, 762 (2004) (holding that,

because section 10 of the Building Act substantively changed the law on forum-selection

provisions, it would not apply retroactively to void the parties’ forum-selection provision).

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Lien Law § 41 (McKinney 2012). This general provision does not obviate consideration of the

more specific section 757 of the New York General Business Law. Section 41 merely permits

enforcement of mechanic’s liens in various courts other than New York supreme or county

courts, with some limitation on the sum of money sought. In contrast, section 757 speaks

specifically to the validity and enforceability of forum-selection clauses in construction

contracts. As we explained, supra ¶¶ 78-80, section 757 renders the forum-selection clause void

and unenforceable.

¶ 83 Accordingly, the circuit court did not err in applying New York law to find the forum-

selection clause void and unenforceable.

¶ 84 Dancor and defendants next argue over whether dismissing the case under forum non

conveniens was appropriate. However, we have already held that the circuit court properly

dismissed the case after finding that the forum-selection clause was void and unenforceable. The

circuit court’s order does not analyze the application of the forum non conveniens doctrine,

because its order is based on the affirmative matter of the applicability of New York law.

Accordingly, we do not further address the forum non conveniens arguments.

¶ 85 We further hold that the circuit court did not err in granting FXR’s motion to dismiss

less than 120 days before trial. Local Rule 6.06 does not bar dispositive motions filed less than

120 days before trial. Rather, it permits such motions upon leave of court for good cause shown.

16th Judicial Cir. Ct. R. 6.06 (May 5, 2008) (“All case or claim dispositive motions *** will be

filed for setting no longer than 120 days before the designated trial date except by leave of court

upon good cause shown.”). Here, the circuit court acknowledged the local rule in its order

granting FXR’s motion to dismiss. However, it effectively provided that there was good cause

for the motion, in that its prior order allowing the case to proceed in Illinois was in error. The

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court had not been apprised of the applicable law providing that New York was the proper forum

and that the forum-selection clause was void and unenforceable. We agree that this was good

cause to hear the motion to dismiss. Moreover, the court’s prior order was interlocutory, FXR’s

motion to dismiss was, in part, a motion to reconsider, and the court could reconsider its prior

order at any time before trial.

¶ 86 The final issues are whether the circuit court properly dismissed Dancor’s tort counts for

injurious falsehood and slander of title. It dismissed these counts before its July 20, 2015, order,

which held that, as to the entire action, the forum-selection clause was void and unenforceable.

Dancor’s injurious-falsehood count was part of its amended complaint, and the circuit court

dismissed it without prejudice, informing Dancor that, if it sought to replead the count, it should

do so as slander of title. In Dancor’s second amended complaint, it did not replead an injurious-

falsehood count but instead took the circuit court’s admonishment to plead two counts of slander

of title. The circuit court dismissed the slander-of-title counts in the second amended complaint

with prejudice. Dancor thereafter moved to incorporate the prior injurious-falsehood count into

the second amended complaint, but the circuit court denied its motion.

¶ 87 We need not review the dismissal of Dancor’s tort counts. We have already determined

that the circuit court properly dismissed the case pursuant to its interpretation of the forum-

selection clause, finding that it was void and unenforceable. Accordingly, Dancor is free to refile

this action in New York, where the New York court will address its complaint. Although the

circuit court’s dismissal was a final order, it was not on the merits. We do not address whether

Dancor’s tort counts, if it chooses to refile them, would state causes of action under New York

law.

¶ 88 C. Defendants’ Arguments on Cross-Appeal

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¶ 89 On cross-appeal, defendants argue that the circuit court should have granted their

original motion to dismiss the case based on forum non conveniens. They note that, if we affirm

the circuit court’s order on Dancor’s appeal, the cross-appeal is unnecessary. Because that is

precisely what we have done, we do not address their cross-appeal.

¶ 90 III. CONCLUSION

¶ 91 The forum-selection clause in the parties’ contract was void and unenforceable, and

therefore the circuit court did not err in dismissing the case in order that it may be refiled in New

York. Dancor’s arguments with respect to the dismissal of its tort counts are mooted by our

determination that New York is the proper forum to adjudicate the parties’ claims. Further, our

holdings render defendants’ cross-appeal moot. Therefore, the judgment of the circuit court of

Kane County is affirmed.

¶ 92 Affirmed.

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