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No. 2--01--0737

JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

Defendant William A. Randolph, Inc. (Randolph), was thegeneral contractor for the construction of a movie theater. Randolph contracted with plaintiff, Advance Iron Works, Inc.(Advance), to do some steel work. These are the only partiesinvolved in this appeal. Advance appeals the judgment of the trialcourt denying its motion for interest and attorney fees under theMechanics Lien Act (the Act) (770 ILCS 60/0.01 et seq. (West2000)). Advance argues that the trial court entered an agreedorder that modified an arbitration provision in the contract. Wereverse and remand.

The contract contained a clause providing as follows:

"Any controversy or Claim arising out of or related tothe Contract, or the breach thereof, shall be settled byarbitration[.]"

During construction of the theater, Advance filed a four-countcomplaint against Randolph because amounts remained due under thecontract. Count I sought an accounting under the Act. Count IIsought damages for breach of contract. Count III sounded inquantum meruit, and count IV was for unjust enrichment. During theproceedings, the trial court entered an agreed order, in which theparties agreed as follows:

"Proceedings on Count I ***, Count III ***, and Count IV*** are hereby stayed pending arbitration of Count II ***. The Court shall retain jurisdiction over the parties and thesubject matter of Counts I, III, and IV of the Complaint forthe purpose of allowing Advance ***, should it prevail atarbitration, to pursue all of its rights and remedies foraccounting under the *** Act and for Quantum Meruit or UnjustEnrichment in the alternative. The stay of Counts I, III andIV granted herein is without prejudice to any of theDefendants' rights to file any motion to dismiss, answer andcounterclaim to the Complaint."

In opening statements at the arbitration, Advance stated thatit had prepared an interest calculation, but Advance was not surewhether the arbitrator would be awarding interest under the Act. The calculation provided, among other things, that Advance wasseeking interest and attorney fees under the Act. However, afteropening statements, the arbitrator requested a new calculation. Advance did not include interest or attorney fees under the Act inthis new calculation.

In closing statements, Advance explained that although thecontract did not contain an attorney fees provision, the Act didprovide for such fees. Advance also explained that if judgment wasentered on its breach of contract claim, it would seek interest andattorney fees under the Act in the trial court. At the close ofthe hearing, the arbitrator granted Advance $83,278.00, deniedattorney fees under the contract, and stated that "[a]ll claims notexpressly granted herein are, [sic] hereby denied."

After arbitration, Advance moved in the trial court forinterest and attorney fees under the Act. Advance claimed that itwithdrew such claims in the arbitration. The trial court deniedthe motion, finding, among other things, that under the contractall matters were to be arbitrated. This timely appeal followed. On appeal, Advance argues that the agreed order modified thearbitration provision in the contract. Before addressing thisissue, we must consider Randolph's waiver and mootness arguments. First, Randolph claims that Advance has waived its argument becauseit failed to raise it in the trial court. See Killion v. Meeks,333 Ill. App. 3d 1188, 1190 (2002) (arguments not raised in thetrial court are considered waived on appeal). In the trial court,Advance argued that the arbitrator had no authority to resolve theissues of interest and attorney fees under the Act because thetrial court retained jurisdiction over those matters. On appeal,Advance argues that the agreed order modified the arbitrationprovision in the contract. We believe these arguments are, inessence, the same. Clearly, the trial court retained jurisdictionover Advance's claims for interest and attorney fees under the Actbecause the agreed order modified the arbitration provision in thecontract. As such, Advance has not waived this argument for ourreview.

Moreover, even if we were to find that Advance did not raiseits argument in the trial court, we note that waiver is alimitation on the parties, not the courts. See Geise v. PhoenixCo. of Chicago, 159 Ill. 2d 507, 514 (1994). Thus, in order toobtain a just result and maintain a sound and uniform body ofprecedent, we decline to waive Advance's argument on appeal. Geise, 159 Ill. 2d at 514.

Second, Randolph claims that the appeal is moot becauseAdvance has collected the judgment from Randolph. Generally, aparty cannot attack a judgment after enjoying its benefits if, werethe judgment reversed on appeal, the opposing party would bedisadvantaged. Gold v. Rader, 201 Ill. App. 3d 775, 781 (1990). Here, we determine that Randolph would not be disadvantaged if thejudgment were reversed because the judgment does not includeinterest or attorney fees under the Act. Thus, we deny Randolph'srequest to find the appeal moot.

We now address the merits of this appeal. As notedpreviously, Advance claims that the agreed order, to have count IIarbitrated, modified the arbitration clause in the contract. Inresponse to this argument, Randolph claims that Advance soughtinterest and attorney fees at the arbitration, and, thus, it wasprecluded from seeking those same expenses in the trial court.

We address Randolph's claim first. Randolph cites Slaney v. International Amateur Athletic Federation, 244 F.3d 580, 591 (7thCir. 2001), for the proposition that a party cannot voluntarilysubmit a matter to arbitration and later claim, when that party isunsuccessful, that the arbitrator lacked authority to decide thematter. In the present case, Advance is not arguing that thearbitrator did not have the authority to render a judgmentconcerning interest and attorney fees under the Act. Rather,Advance argues that these matters were not even raised at arbitration. We agree. As discussed above, Advance was initiallyseeking interest and attorney fees under the Act. However, uponthe request of the arbitrator, Advance submitted a new damagescalculation that did not include interest or attorney fees underthe Act. Moreover, Advance stated in its closing argument at thearbitration that in the event a judgment was entered on the breachof contract dispute, it would seek interest and attorney fees underthe Act in the trial court. Accordingly, Randolph's claim fails.

We now address Advance's claim. Arbitration is a favoredmeans of dispute resolution. United Cable Television Corp. v.Northwest Illinois Cable Corp., 128 Ill. 2d 301, 306 (1989). Thepurpose of arbitration is to avoid the formalities, delay, andexpenses of litigation. Hough v. Osswald, 198 Ill. App. 3d 1056,1057 (1990). Thus, courts regard arbitration as an effective andcost-efficient way to resolve disputes. Johnson v. Baumgardt, 216Ill. App. 3d 550, 555-56 (1991).

The issue here is whether the agreed order, which assignedonly count II to arbitration, could modify the contract provisionthat stated that all matters related to the contract or a breachthereof must be submitted to arbitration. Because this issueinvolves the construction of contracts, our review is de novo. Diamond v. United Food & Commercial Workers Union Local 881, 329Ill. App. 3d 519, 524 (2002).

An agreed order is not a judicial determination of theparties' rights, but, rather, it is a recordation of the agreementthe parties reached. Kandalepas v. Economou, 269 Ill. App. 3d 245,252 (1994). Like any other agreement, an agreed order is subjectto the law of contracts. Kandalepas, 269 Ill. App. 3d at 252. Ininterpreting a contract, the court must give the contract's termstheir plain and obvious meaning. Krilich v. American National Bank& Trust Co. of Chicago, 334 Ill. App. 3d 563, 574 (2002). Termsmay be modified as long as there is consideration for themodification, which may be manifested with some bargained-forexchange between the parties. Doyle v. Holy Cross Hospital, 186Ill. 2d 104, 112 (1999).

Here, giving the terms in the agreed order their plain andobvious meaning, both parties agreed to have only count IIsubmitted to arbitration. The parties also agreed that the trialcourt would retain jurisdiction over, among other things, count I,which was for an accounting under the Act. Through this agreement,both parties gave up the right to arbitrate counts I, III, and IVof the complaint. The parties clearly could modify the contract insuch a way, and, based on this modification, the trial court shouldhave resolved whether Advance was entitled to interest and attorneyfees under the Act.

For these reasons, we reverse the judgment of the circuitcourt of Lake County and remand the cause.

Reversed and remanded.

HUTCHINSON, P.J., and CALLUM, J., concur.