text:
    WILLIAM J. O’BOYLE, Plaintiff-Appellee, v. PERSONNEL BOARD OF THE CITY OF CHICAGO et al., Defendants-Appellants.
    First District (4th Division)
    No. 82—2657
    Opinion filed November 23, 1983.
    James D. Montgomery, of Chicago (Jerome A. Siegan and Cheryl L. Smalling, of counsel), for appellants.
    J. Peter Dowd, of Jacobs, Burns, Sugarman & Orlove, of Chicago, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff-appellee, William O’Boyle, filed a complaint and a writ of certiorari in the Cook County Circuit Court for review of an order of defendant-appellant, Personnel Board of the City of Chicago et al. (Personnel Board), finding him in violation of the city’s residency ordinance and suspending him for 60 days from his duties as a lieutenant with the Chicago Fire Department. The circuit court reversed the decision of the Personnel Board, holding that there were inadequate findings of fact to support the suspension and that the record did not justify a finding of nonresidency.

On appeal, the Personnel Board claims that its finding that plaintiff violated the residency ordinance was not against the manifest weight of the evidence. We agree.

We reverse the decision of the circuit court and affirm the decision of the Personnel Board.

Facts

Plaintiff, a Chicago fire department lieutenant since 1977, was charged by the fire department with violating the city’s residency ordinance, which requires that “[a]ll officers and employees in the classified career service of the city *** shall be actual residents of the city.” Municipal Code of Chicago, 1979, ch. 25, par. 25-30.

Prior to September 1979, employees of the fire department against whom evidence of nonresidence was brought were given an undetermined period in which to comply with the ordinance by moving into the city. On August 15, 1979, the fire commissioner issued an order, stiffening the established policy:

“Effective September 1, 1979, any member found in violation of the residency requirement of the City of Chicago and the Chicago Fire Department will be suspended by the Commissioner for thirty (30) days and charges will be filed with the Personnel Board of the City of Chicago seeking said members discharge.”

The charges, issued against plaintiff on October 25, 1979, stated that “on or about September 18, 1979, he [plaintiff] was not an actual resident of the City.” The matter was heard before a board-appointed hearing officer on November 30, 1979. The hearing officer submitted a report of his findings and recommendations along with the transcript of proceedings of the hearing to the Personnel Board for a final decision. Included in the evidence before the Personnel Board was the following adduced testimony.

Plaintiff testified that he has been married to his wife, Annette, since 1965. In 1972, the couple, as joint tenants, purchased a home in Palos Hills, Illinois. Plaintiff admitted to residing there with his wife and two children from 1972 to 1975. On May 10, 1976, a year after plaintiff allegedly moved out of his Palos Hills home and filed for legal separation, due to his wife’s refusal to move into the city, plaintiff’s third child was born. Annette and the three children continued to reside in Palos Hills, where the children attended school, until November 16, 1979, when plaintiff and his family moved into their new home at 9015 South Hamilton in Chicago.

Annette O’Boyle testified that in September 1975, plaintiff asked her to move back into the city and that she refused to do so. Plaintiff filed for a legal separation, which Mrs. O’Boyle neither agreed to nor wanted. On September 21, 1976, a judgment was entered by the circuit court, permitting plaintiff to maintain a separate residence from his wife. The court did not, however, make any adjudication as to plaintiff’s'obligation for support because Annette had not filed a petition or complaint for separate maintenance or for support. Despite the absence of any such adjudication, plaintiff gave his wife approximately $700 to $750 each month, thereby providing the sole means of maintaining the Palos Hills home throughout the entire “separation” period. Mrs. O’Boyle testified that plaintiff gave her money “whatever-whenever” she needed it.

Plaintiff testified that, upon leaving the Palos Hills home, he moved in with his parents at 7949 South Richmond in Chicago. Plaintiff’s father, Wilbert O’Boyle, testified that his son came to live with him in September 1975 because he “wanted a place to live in Chicago.” Mr. O’Boyle stated that plaintiff brought only his clothes when he moved in. When asked whether plaintiff visited his wife and children in Palos Hills during this period, Mr. O’Boyle stated that “all the time he [plaintiff lived with me he would go out there to see them,” on an average of once a week. Mr. O’Boyle testified that plaintiff stayed overnight on these occasions.

Plaintiff testified that in July 1978, he was summoned by Captain James Ryan, director of internal affairs of the Chicago fire department. According to Captain Ryan, he met with plaintiff to inform him of the numerous residency complaints that had been lodged against him and to discuss his residency status. Plaintiff informed Captain Ryan that he had been seeing his family five or six times a month. When Captain Ryan admonished that the city requirements only permitted such visits twice a year, plaintiff declared that he was “going to see [his] kids.” He stated, “If I can see my kids seven days a week, I’m going to try to see them as much as I could.” Ryan informed plaintiff that if he wanted to continue to see his wife, she would have to move into the city, and he would have to sell the Palos Hills property. Ryan warned him that he could not have “dual residencies.”

Plaintiff informed the hearing officer that in September 1977, he and his father purchased a building at 2535 West 59th Street in Chicago and that he moved into this building in July 1978. He maintained a second-floor, one-bedroom apartment in the building until he moved with his family into their new home in November 1979.

Captain Ryan testified that during 1978 and 1979, he received numerous complaints concerning plaintiff’s residency status. In March and April of 1979, Ryan received between 10 and 15 complaints from the mayor’s office, the office of professional review and the fire commissioner’s office. By September 1979, Captain Ryan had received from 25 to 35 complaints about plaintiff’s residency. An investigation of plaintiff’s residence status ensued.

Donald McGreal, an investigator with the internal affairs division of the Chicago fire department, conducted a surveillance of the Pa-los Hills Home. McGreal testified that he observed plaintiff exiting the Palos Hills residence at approximately 5:45 a.m. on four separate occasions, and at approximately 2:00 p.m. on a fifth occasion, during the months of March and April of 1979.

Thomas Plant, an investigator from the office of budget and management, testified that in September 1979, he interviewed one woman who lived next door to plaintiff’s parents’ home and another who lived next door to the Palos Hills home. The former woman stated that plaintiff, who allegedly resided with his parents until July 1978, lived in Palos Hills. The latter woman identified plaintiff as her neighbor in Palos Hills.

Further testimony included that of Annette O’Boyle, who stated that plaintiff did any painting and needed repairs on the Palos Hills home. She testified that her husband was in the aluminum business as a sideline and that he and his partner stored a lot of the material in the garage in Palos Hills. Plaintiff came frequently to Palos Hills during the summer of 1979 to pick up the material. She stated that in March and April of 1979, when she suffered headaches that lasted weeks at a time, plaintiff came to care for the children and spent the night on the average of twice a week. She admitted that from the time she and plaintiff purchased the Palos Hills home in 1972 until they sold it and moved in November 1979, the house expenses were totally paid by plaintiff, whose money also went to pay all utility, water and electricity bills.

Plaintiff testified that from summer 1978 through May 1979, he was in Palos Hills “two and three times, four, five times a month.” He testified that in March and April of 1979 he started staying with his wife “more often” and that in May 1979, he and his wife reconciled and agreed to put their Palos Hills house up for sale. As of May 1979, plaintiff attempted to spend “as much as time as possible” with his children in light of the reconciliation, staying overnight two or three times a week. Plaintiff testified that from July 1978 until November 1979 he was “definitely out at Palos Hills” each Sunday to spend the day with his family.

Captain Ryan testified that plaintiff had not taken possession of Chicago property nor transferred his children from Palos Hills to Chicago schools prior to September 1979. The department allowed plaintiff until the end of a 30-day extension, granted in August 1979, to buy a home in Chicago before charges for residency violation were brought. Plaintiff did not take possession of a Chicago home until mid-November 1979.

In his written report to the Personnel Board, the hearing officer found that “while plaintiff presented substantial evidence establishing ownership and presences at a certain Chicago residence, there was more substantial evidence reflecting an actual residence in Palos Hills.”

The Personnel Board, noting that its decision was based on the findings of the hearing officer and a review of the transcript of the proceedings, decided to retain plaintiff in his position as lieutenant but to suspend him for a period of 60 days.

Plaintiff filed a petition for writ of certiorari and a three-count complaint. Count I of the complaint alleged that the Personnel Board’s decision was (i) against the manifest weight of the evidence; (ii) not based on legal standards properly stated and applied; and, (iii) not based on necessary findings of fact. In its order of October 6, 1982, the trial court reversed the decision of the Personnel Board as being contrary to the manifest weight of the evidence and remanded the cause for disposition in a manner consistent with the order. The court dismissed counts II and III as moot, and therefore those counts are not before this court. This appeal followed.

Opinion

This action for judicial review of an administrative decision was brought before the circuit court on a writ of certiorari. The proper standard for review of an agency decision in a certiorari proceeding, as set forth by this court in Caldbeck v. Chicago Park District (1981), 97 Ill. App. 3d 452, 458, 423 N.E.2d 230, 235, is as follows:

“In a certiorari proceeding, the court must ascertain *** whether there is anything in the record which fairly tends to sustain the action of the agency. (Quinlan & Tyson, Inc. v. City of Evanston (1975), 25 Ill. App. 3d 879, 324 N.E.2d 65.) The reviewing court may not weigh the evidence or judge its probative value but rather only must determine whether the decision is supported by the evidence or is manifestly against the weight of the evidence. Kallas v. Board of Education (1973), 15 Ill. App. 3d 450, 304 N.E.2d 527.”

The findings and conclusions of fact of the agency, charged with the primary responsibility of adjudication in a specialized area, are to be held prima facie true and correct. (General Electric Co. v. Illinois Fair Employment Practices Com. (1976), 38 Ill. App. 3d 967, 975-76, 349 N.E.2d 553, 560-61.) If the issue before the reviewing court is merely one of conflicting testimony and credibility of witnesses, the administrative board’s decision should be sustained. Keen v. Police Board (1979), 73 Ill. App. 3d 65, 70-71, 391 N.E.2d 190, 195.

In order for a court of review to find that an agency’s decision is against the manifest weight of the evidence so as to justify substituting its judgment for the discretion of the board, the court must be able to conclude that “all reasonable and unbiased persons, acting within the limits prescribed by the law and drawing all inferences in support of the finding, would agree that the finding is erroneous,” (Daniels v. Police Board (1976), 37 Ill. App. 3d 1018, 1023, 349 N.E.2d 504, 508), and that the opposite conclusion is clearly evident. (Jenkins v. Universities Civil Service Merit Board (1982), 106 Ill. App. 3d 215, 219, 435 N.E.2d 804, 807.) That an opposite conclusion might be reasonable or that the court might have reached a different conclusion is not adequate to set aside the agency’s decision. Knop v. Department of Registration & Education (1981), 96 Ill. App. 3d 1067,1075-76, 421 N.E.2d 1091,1097.

In short, if there is anything in the record which fairly supports the action of the agency, the decision is not against the manifest weight of the evidence and must be sustained on judicial review. (Caldbeck v. Chicago Park District (1981), 97 Ill. App. 3d 452, 458, 423 N.E.2d 230, 235.) Here, defendant argues on appeal that the action taken by the Personnel Board was not against the manifest weight of the evidence. We agree.

In the statement of charges filed by the Personnel Board on October 24, 1979, plaintiff was charged with violating chapter 25, section 30 of the city’s Municipal Code “in that on or about September 18, 1979, he was not an actual resident of the City of Chicago.” The decision of the Personnel Board sustaining the charges was made on March 19, 1980. The order of the trial court reversing the board’s decision was entered on October 6, 1982. Since the rendering of these decisions, our supreme court has interpreted the term “actual resident” as used in the context of chapter 25, section 30 of the municipal code:

“We consider that in the context here ‘residence’ was intended to be synonymous with domicile, which has been defined as ‘the place where a person lives and has his true, permanent home, to which, whenever he is absent, he has an intention of returning.’ Peirce v. Peirce (1942), 379 Ill. 185, 192.”

(Fagiano v. Police Board (1983), 98 Ill. 2d 277, 283.)

“[T]he issue to be decided by a board is principally of determining the employee’s intent.”

(Fagiano v. Police Board (1983), 98 Ill. 2d 277, 287.) In light of this clarification, we must turn to the applicable law governing domicile to determine whether the Personnel Board’s decision is supported by evidence which shows that plaintiff was not domiciled in the city as of September 19,1979.

A person may never have more than one domicile (Miller v. Police Board (1976), 38 Ill. App. 3d 894, 898, 349 N.E.2d 544, 548); once established, a domicile continues until a new one is acquired. (Stein v. County Board (1967), 85 Ill. App. 2d 251, 257, 229 N.E.2d 165, 168, affirmed (1968), 40 Ill. 2d 477, 240 N.E.2d 668.) It is evident and undisputed that plaintiff was domiciled with his wife and children in their Palos Hills home from 1972 through 1975. The issue, then, is whether plaintiff acquired a new domicile at any time after 1975 and prior to September 19,1979.

An essential element in the acquisition of a new domicile is the abandonment of the former domicile. (In re Estate of Jackson (1977), 48 Ill. App. 3d 1035, 1037, 363 N.E.2d 919, 921.) In Illinois, affirmative acts of abandonment of the former domicile must be proved to sustain the abandonment required to effect a change of domicile. (Rosenshine v. Rosenshine (1978), 60 Ill. App. 3d 514, 517, 377 N.E.2d 132, 135.) There must be an actual abandonment of the first with an intent not to return to it, and a new domicile acquired with the intent of making it a true and permanent home. (Coronet Insurance Co. v. Jones (1977), 45 Ill. App. 3d 232, 237, 359 N.E.2d 768, 772.) The burden of proof of a person’s intent to change his domicile rests on the party seeking to prove change of domicile. In re Estate of Jackson (1977), 48 Ill. App. 3d 1035, 1037, 363 N.E.2d 919, 921.

In the landmark case of Kreitz v. Behrensmeyer, our supreme court set forth the considerations to be taken into account when determining if a party has acquired a new domicile:

“We have frequently held, that when a party leaves his residence, or acquires a new one, it is the intention with which he does so that is to control. Hence the shortest absence, if at the time intended as a permanent abandonment, is sufficient, although the party may soon afterwards change his intention; while, on the other hand, an absence for months, or even years, if all the while intended as a mere temporary absence for some temporary purpose, to be followed by a resumption of the former residence, will not be an abandonment. On the question of intention, the declaration of the party, though admissible, is not necessarily conclusive, because it may be disproved by his acts, — as thus: If a party were to remove his family to a particular district, there build and furnish them a home, keep his property there, return there constantly, as leisure allowed, and remain there with his family during sickness and unemployed time, this would constitute his residence, notwithstanding he might be employed in labor in another district, and claim that to be his residence, (The People v. Holden, 28 Cal. 124,) for, on questions of domicile, less weight is given to the party’s declarations than to his acts.” (Kreitz v. Behrensmeyer (1888), 125 Ill. 141, 195,17 N.E. 232, 253.)

In a modernized, more succient form, the Restatement (Second) of Conflict of Laws sec. 18, comment g (1971), states that “[t]he primary intention required for the acquisition of a' domicile of choice is an intention to make a home rather than an intention to acquire a domicile.”

The intent required to effect a change of domicile is typically absent in cases such as the instant case where civilian public employees change residence merely to comply with employment demands.

“Generally, a change of residence occasioned by the exercise of duties in connection with holding a public office or being employed in the governmental civilian service does not bring about a change of domicil in the absence of a concurrent intention to abandon the old domicil and acquire a new one. In other words, one who resides at a place for the purpose of carrying out his public duties does not thereby acquire a new domicil or lose the domicil which he had before undertaking such duties.” (Annot., 129 A.L.R. 1382, 1392 (1940).)
“[I]n the absence of an intention to make a change of domi-cil independently of the fact of public service.” (Annot., 129 A.L.R. 1382, 1401 (1940).

Whether a party has abandoned one domicile and acquired a new one is a question of fact. (Rosenshine v. Rosenshine (1978), 60 Ill. App. 3d 514, 517, 377 N.E.2d 132, 135.) As previously noted, the agency’s findings of fact are to be held prima facie true and correct.

The issue in the instant case, then, necessarily becomes whether the record before the Personnel Board contained any evidence to support the finding that plaintiff had not abandoned his Palos Hills domicile and had, therefore, not acquired a new domicile in the city. The board could so find, if plaintiff failed to prove that he moved to the apartment in the city with the intent to. make it his permanent home rather than with the intent to satisfy the residency requirement.

Our review of the record, as highlighted by the relevant testimony set forth above, leads us to conclude that the Personnel Board had before it sufficient evidence to support this finding. Moreover, it is clear from the transcript of the trial court proceedings that the trial judge reached the same conclusion as the Personnel Board on the issue of plaintiff’s intent, namely, that plaintiff’s intent was to comply with the residency ordinance. This is apparent from the trial judge’s statement:

“*** [A]s the Illinois Supreme Court and other courts have held in a great number of cases, that the question of residency is largely a question of intent.
And there’s absolutely no findings of fact.
I don’t criticize the hearing officer in this case because I don’t think that they could make findings of fact in this record relating to O’Boyle’s intent. Because it’s clear, in my judgment, in this record O’Boyle’s intent was to comply with the obscured ordinance relating to residency in the City of Chicago.”

Having thus correctly discerned plaintiff’s intent, the exact intent which prohibits a person from acquiring a new domicile and which supports the action of the Personnel Board, the trial judge rather enigmatically reversed the agency’s decision.

What was “clear” to the trial court judge was undoubtedly also clear to the Personnel Board and remains equally clear to this appellate court. That the board’s decision was not supported by detailed factual findings, as plaintiff contends, in no way clouds this clarity. There is no statutory requirement for detailed and specific findings of fact by an administrative agency. (Suttle v. Police Board (1973), 11 Ill. App. 3d 576, 579, 297 N.E.2d 174, 176.) Where the testimony before the administrative agency is preserved for review in the record, specific findings of fact by the agency are not necessary for judicial review. Massey v. Fire & Police Com. (1960), 26 Ill. App. 2d 147, 149-50, 167 N.E.2d 810, 812.

Also without merit is plaintiff’s second argument in which he suggests that the trial court could have reversed the decision of the Personnel Board based on the invalidation of the residency ordinance in the case Bastian v. Personnel Board (1982), 108 Ill. App. 3d 672, 439 N.E.2d 142. Plaintiff’s argument is rendered nugatory by our supreme court’s finding that the residency ordinance is not unconstitutional and its subsequent vacation of Bastían in the consolidated case of Fagiano v. Police Board (1983), 98 Ill. 2d 277.

For the reasons set forth, we reverse the decision of the trial court and reinstate the decision of the Personnel Board.

Trial court reversed, Personnel Board decision reinstated.

ROMITI, P.J., and JOHNSON, J., concur.

      As this matter came before the Personnel Board, judicial review cannot be sought pursuant to the Administrative Review Act, and a petition for a writ of certiorari is proper. Meylor v. Boys (1981), 101 Ill. App. 3d 148, 150, 427 N.E.2d 1023, 1024-25.


source: Caselaw Access Project

author: JUSTICE JIGANTI

license: Public Domain

text:
    GAUTAM A. SHAH et al., Plaintiffs-Appellants, v. CHICAGO TITLE & TRUST COMPANY et al., Defendants—(Falcon Development Company, Inc., et al., Defendants-Appellees).
    First District (4th Division)
    No. 83—187
    Opinion filed November 23, 1983.

      Werner E. Hintz and Stephen G. Shelesny, both of Chicago, for appellants.
    Robert S. Minetz and Sarah S. Hirsen, both of Malato & Stein, EC., of Chicago, for appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiffs, Gautam and Sudha Shah, are seeking money damages in this action for common law and statutory fraud. On April 15, 1979, the plaintiffs contracted to purchase a condominium from the defendants, Falcon Development Company and American National Bank & Trust Company, as trustee. The sale was closed in escrow on July 18, 1979. On the same day, the escrow agent, Chicago Title & Trust Company (CT&T), released the purchase money to Falcon which had been deposited by the plaintiffs. Sometime thereafter the plaintiffs received a title insurance policy from Chicago Title Insurance Company (CTI) which stated that two trust deeds remained as encumbrances against the property. The policy also indicated that CTI specifically insured over the encumbrances. On August 6, 1979, the defendants deposited a sufficient amount of money with CT&T to pay the notes which supported the trust deeds. In January 1980, the trust deeds were released against the property.

The plaintiffs’ allegations of fraud center around the escrow agreement and not the sale of the condominium. They allege that they were fraudulently induced to enter into the escrow agreement because the defendants represented that they were the legal and beneficial owners of the condominium on April 15, the date they entered into the purchase contract, but did not in fact become legal and beneficial owners until August 2, 1979. Further, the plaintiffs contend that it was represented in the purchase agreement that a lien in favor of any blanket encumbrance would be released at the time of closing. In fact, the trust deeds which encumbered the property were not released until the following January. Because of these allegedly fraudulent misrepresentations, the plaintiffs do not explain but merely contend that they were damaged and request damages for interest, in the amount of 5% of their purchase money, between the date of the closing, July 18, 1979, and the date the title finally became clear, January 16, 1980. The plaintiffs also assert, without making any argument, that the defendants were unjustly enriched.

The defendants observe that the purchase contract further provided that if any title exceptions arose during the title search, the defendants would have 60 days from the date the escrow was opened to “secure or obtain title insurance over the additional” encumbrances. As to the issue of the defendants’ representation concerning ownership on April 15, the date the purchase contract was signed, the record only shows that the defendants had an “assignment of leasehold estate and deed of buildings.” They acquired the fee title on August 2, 1979.

The trial court granted summary judgment in favor of the defendants on the plaintiffs’ claims for common law fraud and for statutory fraud under the Consumer Fraud and Deceptive Business Practices Act. (Ill. Rev. Stat. 1981, ch. 121½, par. 261 et seq.) Neither CT&T nor CTI is a party to this appeal. Further, questions pertaining to the propriety of the suit as a class action were not decided by the trial court and are not before us now.

To state a cause of action for common law fraud, the plaintiffs must prove that any misrepresentations are: (1) false statements of material facts; (2) known or believed to be false by the party making them; (3) intent to induce the other party to act; (4) action by the other party in reliance upon the truth of the representations; and (5) damage to the other- party resulting from such reliance. (Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 402 N.E.2d 599.) In the case before us, we do not believe that there are sufficient facts of record to demonstrate that any allegedly false statements were of material fact or that the plaintiffs were injured by the defendants’ representations.

A misrepresentation is “material” and therefore actionable if it relates to a matter upon which the plaintiff could be expected to rely in determining whether to engage in the conduct at question. (Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 390 N.E.2d 393, appeal after remand (1981), 98 Ill. App. 3d 518, 424 N.E.2d 758.) In the case at bar, the plaintiffs contend that the defendants’ representations in the purchase agreement that the defendants were legal and beneficial owners and that upon conveyance, encumbrances would be released were statements of material fact. We disagree. The plaintiffs paid their purchase money to the escrow agent, the defendants conveyed title to the plaintiffs and the plaintiffs took possession of the condominium. The plaintiffs received that for which they had bargained and cite no authority for the proposition that they were entitled both to possess the condominium and to retain the use of their purchase money until the time the encumbrances were removed from the title. The defendants’ representations did not hinder the plaintiffs in gaining either title or possession of the condominium or affect the manner in which the escrow trust agreement was carried out. While the plaintiffs argue that the encumbrances upon their title severely lessened the marketability of the condominium, we do not see this as a viable argument where CTI specifically insured over the encumbrances and where the defendants deposited sufficient money with CT&T to pay off the encumbrances. Furthermore, the purchase agreement specifically contemplated that title encumbrances might be present and required the defendants to obtain insurance in that event. As we have already stated, insurance was obtained and sufficient money was deposited to pay off the encumbrances. We cannot conclude that the defendants’ statements constituted false statements of material fact where the above safeguards were taken to protect the marketability of the plaintiffs’ title and where the purchase agreement itself contemplated the existence of the type of encumbrances encountered here. The defendants have raised other additional arguments in support of their position, including the contention that one cannot make an actionable misrepresentation concerning a future fact. However, because we have decided this issue on other grounds, we need not address the merits of the defendants’ additional arguments.

For similar reasons we find that the plaintiffs did not suffer damages sufficient to support a cause of action in fraud. Proof of actual injury resulting from the allegedly fraudulent misrepresentations is an essential element of actionable fraud. (Yates v. Cummings (1972), 4 Ill. App. 3d 899, 282 N.E.2d 261; Berkson v. Chandler (1955), 5 Ill. App. 2d 583, 126 N.E.2d 389 (abstract).) This proposition of law applies both to actions for damages and to actions for rescission. (See Jones v. Foster (1898), 175 Ill. 459, 51 N.E. 862; see generally McCleary, Damage as Requisite to Rescission for Misrepresentation, 36 Mich. L. Rev. 1 (1937).) In the case at bar, the plaintiffs argue that CT&T wrongfully disbursed the purchase money to the defendants prior to the time the encumbrances were removed from the title. Therefore, the plaintiffs argue, the defendants were unjustly enriched because they had the use of the money between the time the money was disbursed and the time the title was cleared. We note first that CT&T is not a party to this appeal and we offer no opinion as to the propriety of its actions. Considering the actions of the plaintiffs and the defendants now before us, however, we can find no instance of any actionable damages.

As we stated earlier, the plaintiffs received what they had bargained for from the defendants: title and possession in the condominium which they purchased. The purchase money may have been disbursed earlier than provided by the escrow agreement; however, in no event were the plaintiffs entitled to both possess their condominium and retain control over the money held by the escrow agent. The measure of damages in an action for fraud is determined from the loss to the plaintiff rather than from the gain to the defendant. (Martin v. Allstate Insurance Co. (1981), 92 Ill. App. 3d 829, 416 N.E.2d 347.) In the case before us, we do not believe that the plaintiffs suffered any damage by reason of the allegedly premature disbursement of the purchase money to the defendants.

The plaintiffs also argue that if they had tried to sell their condominium during the period when the title was encumbered, they may have encountered difficulty in the sale because of the encumbrances upon the title. However, the record discloses that the plaintiffs never attempted to sell the condominium during the relevant time period. Damages for fraud may not be predicated on mere speculation, and müst be a proximate, and not remote, consequence of the fraud. (Martin v. Allstate Insurance Co. (1981), 92 Ill. App. 3d 829, 416 N.E.2d 347; see also Brownstone Condominium Association v. Geller (1980), 91 Ill. App. 3d 823, 415 N.E.2d 20.) We think that the plaintiffs’ hypothetical difficulty in selling their condominium is a purely speculative loss for which the law of common law fraud will offer no remedy.

The plaintiffs set forth further elements of damages in their complaint; however, we note that these allegations pertain to certain other parties who were defendants in the trial court and not to the defendants in the case at bar. We therefore conclude that the plaintiffs suffered no damages sufficient to constitute a common law fraud action.

The plaintiffs also assert in their brief that the defendants were unjustly enriched when CT&T released the purchase money to the defendants prior to the time title was cleared. Both at trial and on appeal, however, the plaintiffs describe their cause of action as one for common law fraud. Unjust enrichment is a separate cause of action which has never been argued by the plaintiffs and we shall not address the merits of such an argument now. See Restatement of Restitution sec. 1, comments a, b and c (1937); D. Dobbs, Remedies secs. 4.1, 4.2, at 222-40 (1973).

The second issue raised by the plaintiffs on appeal is whether they stated sufficient facts to overcome the defendants’ motion for summary judgment on their claim for statutory fraud under the Consumer Fraud and Deceptive Business Practices Act. (Ill. Rev. Stat. 1981, ch. 121V2, par. 261 et seq.) The relevant provision of the statute requires the plaintiff to demonstrate in part that the defendant made a misrepresentation of a material fact. (Ill. Rev. Stat. 1981, ch. VZV-k, par. 262.) Because we have already determined that the defendants in this case did not make a material misrepresentation, we shall not reach the other merits of the plaintiffs’ statutory fraud claim.

For the foregoing reasons, we affirm the trial court’s order granting summary judgment in favor of the defendants.

ROMITI, P.J., and JOHNSON, J., concur.


author: JUSTICE LINDBERG

text:
    J&K CEMENT CONSTRUCTION, INC., Plaintiff-Appellee, v. MONTALBANO BUILDERS, INC., Defendant-Appellant—(Joseph Falbo et al., Defendants-Appellees).
    Second District
    No. 82 — 1000
    Opinion filed November 15, 1983.

      Gerard B. Gallagher and Michael McGurn, both of Conklin & Adler, Ltd., of Oak Brook, for appellant.
    William D. Lyman, of Oak Brook, for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant-appellant, Montalbano Builders, Inc. (Montalbano), appeals from an order of the circuit court of Du Page County denying his motion to stay all proceedings and to compel arbitration. Mon-talbano and defendants-appellees Joseph and Mary Falbo (the Falbos) entered into a written contract which included an arbitration clause on October 29, 1980, for the construction of a home. The Falbos agreed to pay Montalbano $360,000 for the construction work. Mon-talbano entered into various contracts with subcontractors to perform the work, none of which contained an arbitration clause.

To date, the Falbos have paid $208,236.00 to Montalbano on the contract. During construction, a dispute arose between the Falbos and Montalbano, and the Falbos have refused to pay any additional sums to Montalbano until certain corrections are made. Prior to litigation, 15 subcontractors and Montalbano had filed lien claims with the office of recorder of deeds of Du Page County. Two subcontractors filed separate suits to foreclose on mechanics’ lien claims against the Falbos’ real property. The cases were consolidated on July 21,1982.

The Falbos filed their answer and countercomplaint against Montalbano, alleging (1) breach of contract; (2) breach of an implied warranty of habitability; (3) precontract fraud; (4) unfair and deceptive trade practices; (5) negligence, and also petitioned the court for a general settlement under section 30 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1981, ch. 82, par. 30). As its responsive pleading to all complaints, Montalbano filed on September 29, 1982, a motion to stay all proceedings and for an order compelling arbitration between the Falbos and Montalbano. Prior to this motion, eight subcontractors joined the lawsuit in addition to those who had initiated the proceedings. After five more subcontractors joined this litigation, the court on November 17, 1982, denied Montalbano’s motion, who then filed a timely interlocutory appeal.

After oral argument in this case, Montalbano filed on May 24, 1983, a motion to realign the parties on appeal and to suggest the mootness of objections to Montalbano’s motion to compel arbitration. In his appellate motion, Montalbano asserted that it had settled and compromised the claims of nine subcontractors and was assigned their lien rights. Additionally, Montalbano stated that seven more subcontractors had withdrawn any objections to and joined in its motion to compel arbitration. On May 31, 1983, the Falbos filed their answer and supporting memorandum wherein they asserted that Mon-talbano’s motion lacked certain procedural requisites, and did not render any issue moot. On July 20, 1983, this court granted Montalbano’s motion to file a reply to the Falbos’ answer and ordered that the reply be taken with this case.

Although the order appealed from in the instant case is interlocutory, we nonetheless have jurisdiction for the trial court’s denial of the requested relief is analogous to the denial of an injunction. (Kelso-Burnett Co. v. Zeus Development Corp. (1982), 107 Ill. App. 3d 34, 37, 437 N.E.2d 26, 28; School District No. 46 v. Del Bianco (1966), 68 Ill. App. 2d 145, 152-53, 215 N.E.2d 25, 28-29.) The only question brought before a reviewing court on an interlocutory appeal is whether there was a sufficient showing to sustain the order of the trial court granting or denying the relief sought. (107 Ill. App. 3d 34, 42, 437 N.E.2d 26, 31; see Ording v. Springer (1980), 88 Ill. App. 3d 243, 246, 410 N.E.2d 428, 431.) We conclude that there was not a sufficient showing and therefore reverse the trial court’s order denying Montalbano’s motion to compel arbitration.

In Illinois, contractual arbitration provisions are construed in light of the Illinois Uniform Arbitration Act. (Ill. Rev. Stat. 1981, ch. 10, par. 101 et seq.) Illinois adopted the provisions of the Uniform Arbitration Act with minor modifications in 1961. (School District No. 46 v. Del Bianco (1966), 68 Ill. App. 2d 145, 153, 215 N.E.2d 25, 29.) Prior to the enactment of the Uniform Arbitration Act, the common-law rule in many States was that agreements to arbitrate were revocable until the arbitrator rendered his decision and agreements to arbitrate future disputes were unenforceable. The Uniform Arbitration Act was established to change the common-law rule.

“One of the fundamental objectives of the act was to encourage and facilitate the arbitration of disputes by providing a speedy, informal, and relatively inexpensive procedure for resolving controversies arising out of commercial transactions, including the labor-management field. The language of the act emphasizes an intention to change the common-law policy of judicial hostility toward arbitration to one favoring arbitration. Contrary to decisions found in many states, it specifically makes a written agreement to arbitrate effective whether relating to existing or future disputes.” Layne-Minnesota Co. v. Regents of the University of Minnesota (1963), 266 Minn. 284, 287-88, 123 N.W.2d 371, 374. See School District No. 16 v. Del Bianco (1966), 68 Ill. App. 2d 145,154, 215 N.E.2d 25, 29.

Both the Uniform Arbitration Act and the Federal Arbitration Act (9 U.S.C. sec. 1 et seq. (1976)), enacted in 1925 are patterned after the New York arbitration statute enacted in 1920. (Sonderby, Commercial Arbitration: Enforcement of An Agreement to Arbitrate Future Disputes, 5 J. Mar. J. Prac. & Proc. 72, 75-76 (1971), citing 1920 N.Y. Laws, ch. 275, originally in N.Y. Civ. Prac. Act sec. 1448-69, now in N.Y. Civ. Prac. Law & Rules sec. 7501 — 14 (McKinney 1963); see also Greenfield, The Contract to Arbitrate Future Disputes: A Comparison of the New Mexico Act With the New York and Federal Acts, 9 N.M.L. Rev. 71, 71-72 (1978-79).) Given the common origins of the Federal and uniform statutes, courts interpreting State arbitration statutes patterned after the Uniform Arbitration Act look for guidance to Federal court decisions interpreting similar provision of the Federal Arbitration Act. (See Charles J. Frank, Inc. v. Associated Jewish Charities of Baltimore, Inc. (1982), 294 Md. 443, 450 A.2d 1304; Loomis, Inc. v. Cudahy (1982), 104 Idaho 106, 656 P.2d 1359; National Camera, Inc. v. Love (Colo. 1982), 644 R2d 94; see also Northern Illinois Gas Co. v. Aireo Industrial Gases (7th Cir. 1982), 676 F.2d 270 (recognizing that Federal and Illinois authorities are in accord in the law of arbitration).) Similarly, the Illinois Supreme Court has stated that judicial opinions from other jurisdictions are given greater than usual deference in construing the Uniform Arbitration Act since the purpose of the act is to make uniform the laws of those States which enact it. (Garver v. Ferguson (1979), 76 Ill. 2d 1, 8.) Because of the common origin of the Federal and uniform acts, and the fact that the Illinois Uniform Arbitration Act is patterned after the Uniform Arbitration Act, we proceed to interpret our statute with the aid of decisions from other States and Federal courts.

Section 2(a) of the Illinois Uniform Arbitration Act (Ill. Rev. Stat. 1981, ch. 10, par. 102(a)) provides: At a hearing to stay a judicial proceeding and to compel arbitration, the trial court should concern itself solely with whether an agreement exists to arbitrate the dispute in question. Farris v. Hedgepeth (1978), 58 Ill. App. 3d 1040, 1043, 374 N.E.2d 1086, 1088; Bunge Corp. v. Williams (1977), 45 Ill. App. 3d 359, 362, 359 N.E.2d 844, 845.

“On application of a party showing an [arbitration] agreement ***, and the opposing party’s refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied.”

The trial court did not make a finding with respect to the existence of an agreement to arbitrate which was error. (KelsoBurnett Co. v. Zeus Development Corp. (1982), 107 Ill. App. 3d 34, 41, 437 N.E.2d 26, 31.) In their pleadings, the parties disputed whether an agreement to arbitrate existed. On appeal, Montalbano points to paragraph 22 of the typewritten standard contract agreement initialed by the parties, which states: “All claims, disputes and other matters in question arising out of, or relating to this Agreement, or the breach thereof, shall be decided by arbitration, pursuant to the Rules established by the Northern Illinois Home Builders Association for the arbitration of such disputes.” Montalbano argues that this clause demonstrates each party agreed to arbitration.

On the other hand, the Falbos contend that the parties’ written agreement actually contained an additional arbitration clause with a different set of governing rules, and thus, the parties could not have reached agreement on a specific arbitration procedure. The contract does refer to two arbitration clauses. While these two clauses appear to conflict, the language of the second clause contained in AIA Form No. A107 and incorporated by reference into the general conditions of the parties’ contract states that it becomes operative only if the parties do not establish an alternative procedure. Here, the parties established with the inclusion of paragraph 22 an alternative arbitration procedure and thus, the parties did agree to one form of dispute resolution.

In addition to ascertaining the existence of an agreement to arbitrate, a court should order arbitration only if the dispute is arbitrable. In resisting arbitration, the Falbos argue that the issues of breach of implied warranty of habitability, precontract fraud, unfair and deceptive trade practices, negligence, and general settlement under the Mechanics’ Liens Act are not subject to arbitration, but cite no authority for their position. Arbitration contracts are interpreted in the same manner and according to the same rules as are all other contracts. (See Flood v. Country Mutual Insurance Co. (1968), 41 Ill. 2d 91.) The parties are bound to submit only those issues which they have agreed clearly to resolve through the arbitration mechanism and a court should not extend an agreement by construction or implication. 41 Ill. 2d 91, 94.

Whether a dispute is within the scope of an arbitration clause “ ‘should be determined at the earliest possible moment and should be controlled by judicial guidelines.’ ” (Farris v. Hedgepeth (1978), 58 Ill. App. 3d 1040, 1043, 374 N.E.2d 1086, 1088, quoting Harrison F. Blades, Inc. v. Jarman Memorial Hospital Building Fund, Inc. (1969), 109 Ill. App. 2d 224, 229, 248 N.E.2d 289, 291; see KelsoBurnett Co. v. Zeus Development Corp. (1982), 107 Ill. App. 3d 34, 40, 437 N.E.2d 26, 30.) The court and not the arbitrator should determine whether the issues in dispute are within the scope of the arbitration agreement. (Premier Electrical Construction Co. v. Ragnar Benson, Inc. (1982), 111 Ill. App. 3d 855, 862, 444 N.E.2d 726, 730; KelsoBurnett Co. v. Zeus Development Corp. (1982), 107 Ill. App. 3d 34, 41, 437 N.E.2d 26, 30; Village of Carpentersville v. Mayfair Construction Co. (1981), 100 Ill. App. 3d 128, 134, 426 N.E.2d 558, 564; Iser Electric Co. v. Fossier Builders, Ltd. (1980), 84 Ill. App. 3d 161, 164, 405 N.E.2d 439, 441; Croom v. City of De Kalb (1979), 71 Ill. App. 3d 370, 375, 389 N.E.2d 647, 651; Paschen Contractors, Inc. v. John J. Calnan, Co. (1973), 13 Ill. App. 3d 485, 489, 300 N.E.2d 795, 798; see Northern Illinois Gas Co. v. Aireo Industrial Gases (7th Cir. 1982), 676 F.2d 270, 275 (applying Illinois law); but see School District No. 16 v. Del Bianco (1966), 68 Ill. App. 2d 145, 155, 215 N.E.2d 25, 30.) Both questions of fact and law are arbitrable pursuant to a contractually chosen arbitration forum. Applicolor, Inc. v. Surface Combustion Corp. (1966), 77 Ill. App. 2d 260, 267, 222 N.E.2d 168, 171.

We believe that the parties’ arbitration clause is sufficiently broad to encompass each of the Falbos’ counts. In the instant case, the written contract contains a “generic” arbitration clause which does not enumerate which disputes are arbitrable. (Roosevelt University v. Mayfair Construction Co. (1975), 28 Ill. App. 3d 1045, 331 N.E.2d 835.) To determine the scope of the clause, the court must examine both the wording of the particular clause and the terms of the parties' contract. (Harrison F. Blades, Inc. v. Jarman Memorial Hospital Building Fund, Inc. (1969), 109 Ill. App. 2d 224, 248 N.E.2d 289.) In Roosevelt University v. Mayfair Construction Co. (1975), 28 Ill. App. 3d 1045, 331 N.E.2d 835, the court held that an arbitration clause containing the language “arising out of, or relating to” the contract was very broad in scope and thus justified submitting the dispute involving damages resulting from one party’s delays to arbitration even though the contract contained no express provision regarding this issue. Courts, therefore, construe broad language in an arbitration clause as an agreement by the parties “to resolve through arbitration any and all disputes arising out of the subject matter of the contract ***.” (Ozdeger v. Altay (1978), 66 Ill. App. 3d 629, 632, 384 N.E.2d 82, 85.) The language employed in the arbitration clause in the case at bar is very broad, encompassing all claims, disputes and other matters “arising out of, or relating to this Agreement, or the breach thereof ***.” From the breadth of the wording, we believe the parties intended to resolve all types of disagreements pertaining to the construction of the home.

Our conclusion that each count in the Falbos’ counterclaim is arbi-trable is buttressed by the drafting of the counterclaim itself. In count I, the Falbos alleged Montalbano breached his contract with the Falbos. The first 13 paragraphs of count I allege facts relating to the discussions between the parties preceding their signing of the contract, payments made by the Falbos to Montalbano and the fulfillment by the Falbos of all of their obligations under the contract. Counts II-VI reallege these identical paragraphs in support of the separate bases for liability alleged in each of these counts. Very few additional facts other than those alleged in count I are alleged in the subsequent counts of the Falbos’ counterclaim. Since the facts which underlie the breach of contract count also underlie the other counts, we conclude that these counts arise out of or relate to the contract or its breach.

Examination of the counts themselves also leads to the conclusion that the counts are arbitrable. Count II is based upon Montalbano’s alleged breach of an implied warranty of habitability. The Falbos allege no facts in addition to those alleged in their breach of contract count to support count II. Our supreme court in Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, held that an implied warranty of habitability exists in the sale of a new home by a builder-vendor. (See generally Demko, Caveat Aedificator — Home Builders Beware! 71 Ill. B.J. 724 (1983).) In reaching this conclusion, the Petersen court stated that the warranty arises “by virtue of the execution of the agreement between the vendor and the vendee.” (Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, 41.) Clearly, therefore, a count based upon a warranty of habitability arises out of or relates to the contract here. Thus, the breach of warranty count must be resolved by the arbitrator.

We likewise believe that count III based upon precontract fraud is arbitrable. The Falbos in count III do not allege that Montalbano’s fraudulent actions relate specifically to the parties’ agreement to arbitrate. Rather, the Falbos assert they were denied the performance to which they were entitled based upon the representations made to them prior to entering into the contract. The majority of courts considering a claim of fraud concerning the contract as a whole as opposed to a fraudulent inducement to enter into an arbitration agreement has concluded that the fraud claim is within the scope of a broad arbitration clause. (E.g., Prima Paint Corp. v. Flood & Conklin Manufacturing Co. (1967), 388 U.S. 395, 18 L. Ed. 2d 1270, 87 S. Ct. 1801; Blumberg v. Berland (11th Cir. 1982), 678 F.2d 1068, 1071; In re Oil Spill (7th Cir. 1981), 659 F.2d 789, 794; Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Wilbanks (1982), 162 Ga. App. 154, 155, 290 S.E.2d 122, 123, all interpreting the Federal Arbitration Act; National Camera, Inc. v. Love (Colo. 1982), 644 P.2d 94; Quirk v. Data Terminal Systems, Inc. (1980), 379 Mass. 762, 766-67, 400 N.E.2d 858, 860, interpreting State arbitration acts; see Annot., 11 A.L.R. 4th 774 (1982), and cases cited therein.) We agree with-these decisions representing the majority view, especially when the facts comprising the precontract fraud count are essentially identical to those underlying the breach of contract count.

Similarly, count IV alleging unfair and deceptive trade practices in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 121½, par. 261 et seq.) (consumer fraud act) states no facts in addition to those alleged in count I. Count IV merely recites conclusory allegations that the facts comprising the breach of contract and fraud counts also constitute unfair and deceptive acts violative of the consumer fraud act. Our reading of count IV discloses no allegations based upon any aspect of the strong public policy embodied in the consumer fraud act, but rather the allegations “appear to be an attempt to bolster and supplement clearly private claims.” (Greenleaf Engineering & Construction Co. v. Teradyne, Inc. (1983), 15 Mass. App. 571,_, 447 N.E.2d 9, 13; see Flower World of America, Inc. v. Wenzel (1978), 122 Ariz. 319, 594 P.2d 1015.) Therefore, we believe count IV is subject to arbitration.

Count V based on negligence alleges that Montalbano breached its duty to construct the home in a good and workmanlike manner. Therefore, the Falbos used the negligence term to describe a breach of a duty owed to the Falbos by virtue of the parties’ contract and not from a duty based in tort. To support this count, the Falbos alleged the identical defects in construction .contained in count I. Therefore, this count is also arbitrable. See Premier Electrical Construction Co. v. Ragnar Benson, Inc. (1982), 111 Ill. App. 3d 855, 862, 444 N.E.2d 726, 731; Altshul Stern & Co. v. Mitsui Bussan Kaisha, Ltd. (2d Cir. 1967), 385 F.2d 158; Bos Material Handling, Inc. v. Crown Controls Corp. (1982), 137 Cal. App. 3d 99, 105-06, 186 Cal. Rptr. 740, 742-43; cf. In re Oil Spill (7th Cir. 1981), 659 F.2d 789.

Count VI, seeking a general settlement under section 30 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1981, ch. 82, par. 30), realleges the first 18 paragraphs of count I. Mechanics’ liens exist only by virtue of the statute creating them (Robinette v. Servite Fathers (1977), 49 Ill. App. 3d 585, 586, 364 N.E.2d 679, 681), and the liens act becomes a term of every construction contract between the owner and the contractor for construction of a building. (Deerfield Electric Co. v. Herbert W. Jaeger & Associates, Inc. (1979), 74 Ill. App. 3d 380, 384, 392 N.E.2d 914, 917.) Since the liens act is a term of the contract and the facts comprising count VI are identical to those comprising count I, we believe that count VI arises out of or relates to the parties’ contract and thus is arbitrable. We note that the Falbos do not allege in count VI that Montalbano violated the liens act, but only alleged that the contractor failed to comply with his contract. Whether Montalbano violated the contract is an issue which must be decided by the arbitrator. Additionally, in their count requesting a general settlement, the Falbos seek the following relief: an accounting to determine the amount owed by the Falbos to Montalbano and from Montalbano to the subcontractors, payment of the sum owed by the Falbos to the subcontractors pro rata, discharge of the liens on the property, and an injunction against the subcontractors’ legal proceedings enforcing their lien claims. By arbitrating their dispute with Montalbano while the subcontractors’ liens action is stayed, the Falbos will obtain much of the relief they request in their general settlement count. •

Montalbano argues that since a valid arbitration clause exists, the court must enforce the arbitration agreement even though the general contractor and the homeowner are parties to a multiparty lawsuit concerning the identical construction project. The Falbos respond that where an arbitration agreement involves some, but not all of the parties to a multiparty dispute, the policy favoring arbitration must be balanced against that favoring joinder of claims. The Falbos contend that the claims of the parties to the instant dispute arise from the same project and involve common issues and evidence and thus, arbitration is not appropriate in this case. The Falbos rely heavily on J.F. Inc. v. Vicik (1981), 99 Ill. App. 3d 815, 426 N.E.2d 257, to establish that the existence of the multiple claims in this case supports the trial court’s refusal to compel arbitration. In Vicik, the homeowners contracted with a general contractor for the construction of a home. After a dispute arose between these parties, materialmen and subcontractors filed suit to foreclose their mechanics’ liens. In response, the general contractor filed a motion to compel arbitration. The subcontracts did not contain arbitration clauses. In concluding the policy favoring joinder outweighed that favoring arbitration, the Vicik court emphasized the degree to which the claims were intermingled:

“The claims of the four subcontractors, who are not subject to arbitration, all arose from the same construction project which is the basis of the disputes between the general contractor and the homeowners. The claims which the subcontractors pressed in their legal actions did not arise from direct disputes between the subcontractors and either the general contractor or the homeowners but only as subsidiary claims resulting from the basic dispute between general contractor and homeowners. Therefore, all claims involve common issues and evidence.” J.F. Inc. v. Vicik (1981), 99 Ill. App. 3d 815, 820, 426 N.E.2d 257, 261.

In reaching its conclusion, the appellate court, fifth district, in Vicik discussed this court’s earlier decision in Iser Electric Co. v. Fossier Builders, Ltd. (1980), 84 Ill. App. 3d 161, 405 N.E.2d 439. In Iser, a general contractor entered into a contract with homeowners which contained an arbitration clause. After the general contractor had subcontracted electrical work to Iser, the homeowners terminated the general contractor’s contract and entered into a new contract with Iser for completion of the electrical work on the house. Thereafter, Iser sued both the homeowners and the general contractor for breach of a contract it had with each party. After the general contractor had filed its answer and counterclaim, the homeowners filed a motion to compel arbitration. In reversing the trial court’s denial of a homeowners’ motion, this court reaffirmed the general rule that agreements to arbitrate will be enforced despite pending multiparty litigation. 84 Ill. App. 3d 161,166, 405 N.E.2d 439, 442.

While recognizing the general rule, the court in J.F. Inc. v. Vicik (1981), 99 Ill. App. 3d 815, 426 N.E.2d 257, distinguished Iser on factual grounds. Unlike Iser, wherein this court found that “[n]o determinative relationship is shown between these proceedings which is not clearly based upon different rights and obligations arising under the separate contracts” (Iser Electric Co. v. Fossier Builders, Ltd. (1980), 84 Ill. App. 3d 161, 165, 405 N.E.2d 439, 442), the Vicik court found the subcontractors’ claims were only subsidiary to the basic dispute between the homeowners and the general contractor. J.F. Inc. v. Vicik (1981), 99 Ill. App. 3d 815, 820, 426 N.E.2d 257, 261.

Subsequent to Vicik, this court in Kelso-Burnett Co. v. Zeus Development Corp. (1982), 107 Ill. App. 2d 34, 437 N.E.2d 26, again discussed the enforceability of arbitration clauses in construction contracts. There, the subcontractor Kelso-Burnett Co. contracted with the general contractor Zeus Development Corp. to perform electrical work for a development. After the general contractor terminated the subcontracts, the subcontractor filed a suit to foreclose its mechanic’s lien and alleged breach of contract. The general contractor filed motion to compel arbitration which the trial court denied. On appeal, this court reversed, holding in part that in contrast to Vicik, the issues and relationships before it were not sufficiently interrelated and interdependent to negate the policy favoring arbitration. 107 Ill. App. 3d 34, 42, 437 N.E.2d 26, 32.

We believe that the policy in Illinois favoring arbitration requires the conclusion that the trial court erred in refusing Montalbano’s motion to compel arbitration. In so holding, we find unpersuasive the arguments advanced by courts in this and other States for denying arbitration and for consolidating all parties’ claims in the judicial forum.

Courts advance several reasons for refusing to compel arbitration and for consolidating the parties and issues subject to arbitration with the court proceedings. The first reason is that allowing arbitration between two of the parties in multiparty proceedings while litigation involving some of these same parties proceeds frustrates the goal of judicial economy. (J.F. Inc. v. Vicik (1981), 99 Ill. App. 3d 815, 820, 426 N.E.2d 257, 261; County of Jefferson v. Barton-Douglas Contractors, Inc. (Iowa 1979), 282 N.W.2d 155; Prestressed Concrete, Inc. v. Adolf-son & Peterson, Inc. (1976), 308 Minn. 20, 240 N.W.2d 551.) Many courts have discussed the potential for a multiplicity of actions based upon use of the arbitration and judicial forums. (Charles J. Frank, Inc. v. Associated Jewish Charities of Baltimore, Inc. (1982), 294 Md. 443, 450 A.2d 1304; City of Hot Springs v. Gunderson’s Inc. (S.D. 1982), 322 N.E.2d 8; Knolls Cooperative Section No. 1, Inc. v. Hennessy (1956), 3 Mise. 2d 220, 150 N.Y.S.2d 713; Galt v. Libbey-OwensFord Glass Co. (7th Cir. 1967), 376 E2d 711.) The fifth district of our appellate court expressed this concern in J.F. Inc. v. Vicik (1981), 99 Ill. App. 3d 815, 820, 426 N.E.2d 257, 261:

“Where arbitration would increase rather than decrease delay, complexity and costs, it should not receive favored treatment.”

Closely related to this concern for judicial economy is the argument that joinder should be favored over arbitration when the issues in the arbitration and court proceeding are closely intermingled involving common issues and evidence, thereby resulting in the duplication of proof. (J.F. Inc. v. Vicik (1981), 99 Ill. App. 3d 815, 820, 426 N.E.2d 257, 261; County of Jefferson v. Barton-Douglas Contractors, Inc. (Iowa 1979), 282 N.W.2d 155, 159; Prestressed Concrete, Inc. v. Adolf son & Peterson, Inc. (1976), 308 Minn. 20, 22-23, 240 N.W.2d 551, 553; Loomis, Inc. v. Cudahy (1982), 104 Idaho 106, _, 656 P.2d 1359, 1375-76 (dissenting opinion).) The Vicik court stated that the lien foreclosure action of the subcontractors and the arbitration between the general contractor and owners would necessarily involve common issues and evidence because the subcontractors’ claims were subsidiary to the basic dispute between the general contractor and the owners. (Vicik.) An additional reason courts have advanced for favoring joinder over arbitration is that allowing two forums to decide multiparty disputes creates the potential for inconsistent results.

We believe none of these reasons warrants our refusal to enforce the arbitration clause in the instant case. Requiring the parties here to arbitrate will not result in judicial inefficiency. Were all parties and issues joined in the lien foreclosure action, at least an equivalent amount of judicial resources would be utilized in the consolidated proceeding. More effort may be required of the Falbos and Montalbano in resolving the disputes between them in arbitration and the disputes with the subcontractors in the judicial forum, but this result is not unfair to either Montalbano or the Falbos because they specifically agreed in writing to resolve their disputes in arbitration. Since the issues raised by the Falbos in their counterclaim were subject to arbitration, fewer judicial resources will be expended by forcing the parties to resolve their disputes privately than if the entire counterclaim were resolved in the judicial proceeding. Even if more judicial resources are expended as a result of our decision to compel arbitration, we do not believe that judicial economy is a . sufficient basis for denying arbitration. See Dickinson v. Heinhold Securities, Inc. (7th Cir. 1981), 661 F.2d 638, 646; C. Itoh & Co. (America), Inc. v. Jordan International Co. (7th Cir. 1977), 552 F.2d 1228, 1231; Al-Haddad Brothers Enterprises, Inc. v. M.S. Agapi (D. Del 1982), 551 F. Supp. 956, 959; Town of Danvers v. Wexler Construction Co. (1981), 12 Mass. App. 160,_, 422 N.E.2d 782, 785.

The subsidiary nature of the subcontractors’ claims similarly does not warrant denial of Montalbano’s motion to compel arbitration. In J.F. Inc. v. Vicik (1981), 99 Ill. App. 3d 815, 426 N.E.2d 257, the court emphasized the subsidiary nature of the subcontractors’ claims in denying the arbitration and ordering those claims consolidated with those in the judicial proceeding. Confronted with different facts from those present in Vicik, this court in Kelso-Burnett Co. v. Zeus Development Corp. (1982), 107 Ill. App. 3d 34, 42-43, 437 N.E.2d 26, 32, distinguished Vicik by stating that in the case before it, the subcontractors’ claims against the general contractor were not subsidiary to the other subcontractors’ claims against the general contractor. The Falbos’ argument that by distinguishing Vicik the Kalso-Burnett court was accepting the Vicik court’s decision is untenable. In distinguishing Vicik, this court was not accepting either the reasoning of or the result reached by the Vicik court.

Certain factors militate toward the conclusion that the subcontractors’ claims here are not subsidiary to the dispute between Montalbano and the Falbos. The rights between the Falbos and Montalbano are defined by the contract between them. The rights of the subcontractors are defined by their separate contracts with the general contractor. The distinct nature of the contractual rights of the subcontractors is recognized by the Mechanics’ Liens Act. A subcontractor has five remedies to enforce his rights: (1) an action at law against the original contractor alone; (2) an action at law against the original contractor and the owner jointly; (3) an action at law upon the original contractor’s completion bond; (4) an action in equity to enforce the subcontractor’s lien; and (5) intervention in a pending action of the original contractor against the owner. (Ill. Rev. Stat. 1981, ch. 82, par. 1 et seq.; see Illinois Mechanics’ Lien 5 — 54 (Ill. Inst. Cont. Legal Educ. 1981).) The remedies of a subcontractor are cumulative and may be pursued consecutively or concurrently. (Culver v. Elwell (1874), 73 Ill. 536; Stankiewicz v. Irvine (1941), 310 Ill. App. 673, 35 N.E.2d 433 (abstract); see Illinois Mechanics’ Liens 5 — 54 (Ill. Inst. Cont. Lega! Educ. 1981).) Thus, while in the instant case the plaintiff J&K Cement chose to file this lien foreclosure action in chancery, it could have filed an action at law against Montalbano directly for payment based upon Montalbano’s alleged breach of their contract. In this sense, therefore, the subcontractors’ recovery rights are not necessarily subsidiary to the dispute between Montalbano and the Falbos.

Even if the subcontractors’ claims are viewed as subsidiary, we disagree with the Vicik court’s conclusion that the subsidiary nature of the claims justifies consolidation of the arbitration hearing with the court proceedings. Rather, we conclude that arbitration of the primary dispute between the Falbos and Montalbano will determine the amount owed Montalbano. After Montalbano receives payment, funds should be available to satisfy the claims of his subcontractors, thereby possibly alleviating the need for the subcontractors to foreclose on their mechanics’ liens. (See Kelso-Burnett Co. v. Zeus Development Corp. (1982), 107 Ill. App. 3d 34, 43, 437 N.E.2d 26, 32; cf. Marcus v. Superior Court (1977), 75 Cal. App. 3d 204, 212, 141 Cal. Rptr. 890, 894.) If the result of arbitration is the elimination of the need for court proceedings, then the goals of judicial economy and of resolving disputes outside the judicial forum are advanced, not frustrated.

Neither do we believe that duplication of proof will result because the two proceedings involve common issues and evidence. The dispute between Montalbano and the Falbos which is subject to arbitration involves proofs which are not necessary or even relevant to the subcontractors’ lien action. The Falbos’ counterclaim is directed at Mon-talbano exclusively except for count VI seeking a general settlement. The Falbos alleged that Montalbano misrepresented to the Falbos that “the specifications contained in the Customer Building Proposal for the construction of the home were the same specifications contained in the plans drawn by the architect” except for items the parties had agreed to change. Evidence necessary to prove this assertion would not be germane in the lien foreclosure action. The arbitrator also will have to rule on the counts based upon an implied warranty of habitability, precontract fraud and unfair and deceptive trade practices, none of which should require proof duplicative of that offered in the lien foreclosure action. The multitude of construction defects alleged in the Falbos’ counterclaim suggest that the arbitration hearing will be broader in scope than the lien foreclosure action. Since only eight subcontractors still hold lien claims against the property, that proceeding will not cover many of the construction defects alleged in the Falbos’ counterclaim.

In contrast to arbitration which is designed to resolve the disputes arising out of or relating to the contract between the Falbos and Montabano, the purpose of a lien foreclosure action is for the subcontractor to obtain a legal hold on the owner’s property as security for a debt. (See Moulding-Brownell Corp. v. E.C. Delfosse Construction Co. (1937), 291 Ill. App. 343, 9 N.E.2d 459.) The burden is on the subcontractor to prove that he has satisfied the statutory conditions precedent to his right to enforce the lien. (Schaller-Hoerr Co. v. Gentile (1910), 153 Ill. App. 458, 461.) The four prerequisites to a subcontractor’s lien are: (1) a valid contract; (2) the contract must be with a party considered to be an original contractor under the statute; (3) the furnishing of lienable materials or services; and (4) performance of the contract by the subcontractor or the existence of a valid excuse for nonperformance. (See Illinois Mechanics’ Liens 5 — 29 through 5 — 30 (Ill. Inst. Cont. Legal Educ. 1981).) In their lien foreclosure action, therefore, the remaining subcontractors must demonstrate substantial performance of their contracts with Montalbano. The proof the subcontractors must offer will not necessarily duplicate that offered by Montalbano to establish his performance of the contract between Montalbano and the Falbos. Proof by the subcontractors may not even be necessary as a result of the determination by the arbitrator of the amount owed by the Falbos to Montalbano.

Nor do we believe that the potential for inconsistent results from the judicial and arbitration forums warrants nonenforcement of the arbitration clause. Neither party has demonstrated to us how inconsistent results can obtain from staying the judicial action while arbitration proceeds. Rather than producing inconsistent results, this procedure will likely result in payment to Montalbano of a sum of money which can then be used to satisfy Montalbano’s obligations to his subcontractors. We believe that we should adhere to the general rule in Illinois that arbitration agreements in multiparty litigations should be enforced despite the existence of claims by third parties which create the potential for duplicative proceedings. Iser Electric Co. v. Fossier Builders, Ltd. (1980), 84 Ill. App. 3d 161, 405 N.E.2d 439; Galt v. Libbey-Owens-Ford Glass Co. (7th Cir. 1967), 376 F.2d 711, 715-16; see also Moses H. Cone Memorial Hospital v. Mercury Construction Corp. (1983), 460 U.S. 1, 19-21, 74 L. Ed. 2d 765, 782, 103 S. Ct. 927, 939 (“Under the Arbitration Act, an arbitration agreement must be enforced notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement”); C. Itoh & Co. (America) Inc. v. Jordan International Co. (7th .Cir. 1977), 552 F.2d 1228, 1231; Travel Consultants, Inc. v. Travel Management Corp. (D.C. Cir. 1966), 367 F.2d 334, 339, cert, denied (1967), 386 U.S. 912, 17 L. Ed. 2d 785, 87 S. Ct. 861; Charles J. Frank v. Associated Jewish Charities of Baltimore, Inc. (1982), 294 Md. 443, 459-60, 450 A.2d 1304, 1310-12; Town of Danvers v. Wexler Construction Co. (1981), 12 Mass App. 160, _, 422 N.E.2d 782, 785-86; Atlas Plastering, Inc. v. Superior Court (1977), 72 Cal. App. 3d 63, 72, 140 Cal. Rptr. 59, 64; Madden v. Kaiser Foundation Hospitals (1976), 17 Cal. App. 3d 699, 714, 552 P.2d 1178, 1188, 131 Cal. Rptr. 882, 892; Knolls Cooperative Section No. 1 v. Hennessy (1956), 3 Misc. 2d 220, 222-23, 150 N.Y.S.2d 713, 716.

We also reject two additional arguments raised by the Falbos. Based upon Kelso-Burnett Co. v. Zeus Development Corp. (1982), 107 Ill. App. 3d 34, 437 N.E.2d 26, the Falbos first argue that arbitration should not be ordered because Montalbano created the multiplicity of parties problem here by failing to include mandatory arbitration clauses in his subcontracts. The Falbos’ attempt to place upon Montalbano the responsibility for the multiplicity of parties is unpersuasive. In Kelso-Burnett, this court distinguished J.F. Inc. v. Vicik (1981), 99 Ill. App. 3d 815, 426 N.E.2d 257, on the basis that in KelsoBurnett, the subcontractor who sought to avoid arbitration had ere-ated a multiplicity problem by instituting the foreclosure action which by its very nature required joinder of all interested parties as defendants. Kelso-Burnett Co. v. Zeus Development Corp. (1982), 107 Ill. App. 3d 34, 42, 437 N.E.2d 26, 32, citing Ill. Rev. Stat. 1979, ch. 82, par. 9.

In contrast to Kelso-Burnett, no party to the arbitration agreement here caused the multiplicity problem. The multiplicity difficulties arose when the two subcontractors who were not parties to the contract containing the arbitration clause filed suit to foreclose on their mechanic’s lien. Montalbano no more caused the multiplicity problem than did the Falbos. While it may have been more prudent for Mon-talbano to have included arbitration clauses in his subcontracts, he was not required to do so. Nothing prevented the Falbos from insisting that Montalbano only employ subcontractors who would agree to arbitrate disputes in a consolidated hearing. The Falbos were fully aware that work would be performed by subcontractors with which they would have no direct contractual relationship. The inability to require the subcontractors’ participation in the arbitration hearing, therefore, is as much the Falbos’ fault as Montalbano’s. The Falbos should not be relieved of the contractual obligation to arbitrate simply' because the subcontractors are not subject to arbitration, thereby forcing the Falbos to protect their interests in two different forums. Were we to deny Montalbano’s demand for arbitration, arbitration clauses in multiparty construction contracts could be rendered meaningless solely because one or several of the subcontractors did not agree to arbitrate their disputes with the general contractor. We do not believe that the policy in this State favoring arbitration should be frustrated so easily.

Concern of the trial judge and the Falbos about the Falbos’ exposure to liability during arbitration similarly does not warrant denial of Montalbano’s motion to compel arbitration. While both state that under the liens act, the Falbos’ home would be exposed to liability during arbitration proceedings, Montalbano persuasively argued at the hearing on his motion that the Falbos’ home would be subject to the same liability during consolidated trial proceedings. If this cause proceeded to court on the lien foreclosure suit, and Montalbano were awarded less than the total amount of the mechanic’s lien claims, and Montalbano did not satisfy his additional debt, then the subcontractors could proceed against the Falbos and their home. Thus, the Falbos’ potential liability is not altered by use of the judicial as opposed to the arbitration forum. The trial court also expressed concern that the resolution of the dispute between the Falbos and Montalbano by arbitration will impair the subcontractors’ rights to obtain full satisfaction of their debts. The parties have failed to cite and we have not found any authority that states that the subcontractors’ recovery is dependent upon the arbitrator’s findings concerning the contract between the homeowners and the general contractor.

In addition to rejecting the reasons advanced by the Falbos and other courts for denying arbitration in multiparty litigation, we believe there exists several persuasive arguments supporting our decision to compel arbitration in this case. In Charles J. Frank v. Associated Jewish Charities of Baltimore, Inc. (1982), 294 Md. 443, 450 A.2d 1304, the Maryland Court of Appeals summarized two reasons courts have advanced for compelling arbitration between two parties involved in multiparty litigation. The first rationale is that the policy of the Uniform Arbitration Act adopted by Illinois and other States which favors arbitration as a means of dispute resolution would be frustrated if courts did not enforce arbitration agreements. This rationale was expressed in Town of Danvers v. Wexler Construction Co. (1981), 12 Mass App. 160, 422 N.E.2d 782:

“ ‘If a claim of right to arbitration could be foreclosed whenever a dispute between the parties to the contract derives from another person’s claim against one of the parties, the utility of broad arbitration agreements would be undermined.’ ” 12 Mass. App. 160, _, 422 N.E.2d 782, 785, quoting Acevedo Maldonado v. P.T.G. Industries, Inc. (1st Cir. 1975), 514 F.2d 614, 617.

In addition to frustration of the policy favoring arbitration, the Frank court stated as a second rationale for compelling arbitration that “the enactment of the Uniform Arbitration Act evidences a legislative intent that arbitration not be enjoined to prevent multiplicity of actions.” (Charles J. Frank, Inc. v. Associated Jewish Charities of Baltimore, Inc. (1982), 294 Md. 443, 457, 450 A.2d 1304, 1311.) This rationale was first articulated by the United States Court of Appeals for the Seventh Circuit in Galt v. Libbey-Owens-Ford Glass Co. (7th Cir. 1967), 376 F.2d 711. Applying the Illinois Uniform Arbitration Act in a diversity case, the Galt court stated:

“Section 2(d) of the Illinois Act shows that the Legislature contemplated a multiplicity of actions. In enacting the Uniform Arbitration Act, the Legislature has not eradicated a chancellor’s inherent powers, but the Legislature has determined in Section 2 that it is no longer equitable to enjoin arbitration to prevent multiplicity of actions.” 376 F. 2d 711, 716.

We find these rationales persuasive. Courts in this State have recognized consistently the public policy favoring arbitration. (Board of Trustees v. Cook County College Teachers Union, Local 1600 (1981), 102 Ill. App. 3d 681, 430 N.E.2d 249; Wilhelm v. Universal Underwriters Insurance Co. (1978), 60 Ill. App. 3d 894, 377 N.E.2d 62.) Parties agree to broad arbitration clauses in construction contracts specifically to encompass disputes which are not foreseeable at the time of contracting and expect that such agreements will be specifically enforceable in a court action. To deny Montalbano’s motion to compel arbitration here would deny parties the right to their contractually chosen method of dispute resolution. We are not prepared to ignore the policy favoring arbitration simply because of the presence of multiple parties. Similarly, we believe the drafters of the Uniform Arbitration Act anticipated multiparty problems and intended that arbitration agreements nonetheless be enforced in such situations.

In addition to granting Montalbano’s motion to compel arbitration, we believe that the subcontractors’ lien foreclosure action should be stayed pending the outcome of the arbitration hearing. Section 2(d) of the Uniform Arbitration Act states:

“Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this Section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay.” (111. Rev. Stat. 1981, ch. 10, par. 102(d).)

The Falbos’ counterclaim challenging the construction of their home is arbitrable. The eight subcontractors have filed their lien foreclosure action seeking security to ensure satisfaction of the debt owed to them by Montalbano. Since the result of the arbitration may eliminate the necessity for pursuing the court action, we order that the entire lien action be stayed pending arbitration. While the subcontractors are not parties to the contract containing the arbitration clause, both Federal and State courts have stayed court proceedings involving parties who are not bound by the arbitration clause. See Kelso-Burnett Co. v. Zeus Development Corp. (1982), 107 Ill. App. 3d 34, 437 N.E.2d 26; School District No. 46 v. Del Bianco (1966), 68 Ill. App. 3d 145, 215 N.E.2d 25; Al-Haddad Brothers Enterprises, Inc. v. M.S. Agapi (D. Del. 1982), 551 F. Supp. 956; Hartford Financial Systems, Inc. v. Florida Software Services, Inc. (D. Me. 1982), 550 F. Supp. 1079; Martin K. Eby Construction Co. v. City of Arvada (D. Colo. 1981), 522 F. Supp. 449; Town of Danvers v. Wexler Construction Co. (1981), 12 Mass. App. 160, 422 N.E.2d 782; cf. CBCO, Inc. v. Grani Ind- stallation, Inc. (1979), 95 Cal. App. 3d 290, 157 Cal. Rptr. 28; Marcus v. Superior Court (1977), 75 Cal. App. 3d 204,141 Cal. Rptr. 890.

The Falbos’ last basis for avoiding arbitration is that fundamental fairness notions would be violated if this court were to allow the Northern Illinois Home Builders Association (Association) to decide this dispute between Montalbano, one of its members, and the Falbos. While not alleging that the arbitration forum is actually biased or prejudiced, the Falbos argue the appearance of bias is sufficient to require nonenforcement of the arbitration clause. In response, Mon-talbano contends that the Association is the proper forum for resolution of this dispute.

The merits of Falbos’ public policy argument do not, we believe, require us to declare the arbitration forum here inimical to notions of fairness. Where a contract is in fundamental conflict with public policy, the contract will not be enforced. (People ex rel. Callahan v. Marshall Field & Co. (1980), 83 Ill. App. 3d 811, 404 N.E.2d 368.) Illinois courts apply a strict test in determining whether a contract violates public policy. (First Financial Insurance Co. v. Purolator Security, Inc. (1979), 69 Ill. App. 3d 413, 388 N.E.2d 17; Rutter v. Arlington Park Jockey Club (7th Cir. 1975), 510 F.2d 1065, 1069.) In determining the public policy of this State as to contracts, courts look only to its constitution and statutes, and, when they are silent, to judicial precedent and the constant practice of government officials. Schnackenberg v. Towle (1954), 4 Ill. 2d 561, 565, cert, denied (1955), 349 U.S. 939, 99 L. Ed. 1267, 75 S. Ct. 785.

The Falbos cite no provision of our constitution or any statutes supporting their position that arbitration here violates public policy. Examination of the practice of government officials is not relevant to the instant inquiry, and the judicial precedents cited by the Falbos do not require the conclusion that this clause should be invalidated. The Falbos cite two decisions from foreign jurisdictions as support for their position that the appearance of bias warrants nonenforcement of the arbitration clause. This court is not bound in determining its public policy by the decisions of other States, however, and the Falbos cite no Illinois cases concluding that similar arbitration clauses violate public policy.

The only Illinois decisions cited by the Falbos, Freeport Construction Co. v. Star Forge, Inc. (1978), 61 Ill. App. 3d 999, 378 N.E.2d 558, and Moshier v. Shear (1881), 102 Ill. 169, are either unsupportive or distinguishable. In remanding the case to the lower court, the reviewing court in Freeport stated that the party alleging arbitrator bias must prove these allegations to warrant the termination of an ongoing arbitration hearing. Freeport does not support the Falbos’ public policy argument because the Falbos admit they do not even allege the existence of bias in the instant case. The Illinois Supreme Court in Moshier overturned an arbitration award because an arbitrator in the second proceeding had conferred with one of the arbitrators in the prior proceeding covering the same controversy. Moshier is distinguishable in that there, the court found an actual impropriety after the issuance of the arbitrator’s award. As no impropriety is even alleged here, and no arbitration hearing has yet been held, the Falbos’ arguments are both unpersuasive and premature.

The arbitration clause in the case at bar is conspicuous and the Falbos do not contend that they were not aware of this provision when they signed the contract. In addition, on the same page as the arbitration clause was a fully capitalized sentence which states: “SECTION 22 [the arbitration clause] OF THIS CONTRACT IS NULL AND VOID IF AT THE TIME OF ITS EXECUTION, THE CONTRACTOR REFERRED TO ABOVE IS NOT A MEMBER IN GOOD STANDING OF NIHBA.” Thus, the Falbos were expressly aware that Montalbano was a member of the Association when they signed the contract. The absence of persuasive Illinois precedent and the clarity of the contract language suggest that this arbitration clause does not violate public policy.

In light of our disposition of this case, we need not address Mon-talbano’s motion to realign the parties and to suggest the mootness of certain objections to its trial court motion to compel arbitration.

Accordingly, we reverse the order of the circuit court of Du Page County and grant Montalbano’s motion to compel arbitration and to stay the judicial proceedings pending completion of the arbitration hearing.

Reversed and remanded with directions.

SEIDENFELD, P.J., and NASH, J., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    NATHAN U. FIRESTONE et al., Plaintiffs-Appellants, v. FRANK J. FRITZ et al., Defendants-Appellees.
    Second District
    No. 83—35
    Opinion filed November 15, 1983.

      Wallace B. Dunn and Paul P. Diambri, both of Highwood, for appellants.
    Francis J. Leyhane III, of Condon, Cook & Roche, of Chicago, and Diver, Bellman, Grach, Quade & Lessman, and Conzelman, Schultz, Snarski & Mullen, both of Waukegan, for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The plaintiffs, Nathan U. Firestone and Mildred Firestone, appeal from a judgment which dismissed their complaint which sought damages because of water overflow from the adjoining property of defendant Frank J. Fritz. They appeal also from a judgment which dismissed their suit against the city of Highland Park and its agents for issuing a building permit for a structure which allegedly contributed to the injury.

I

The complaint against the adjoining property owners alleged, in substance, that Fritz had erected a corregated retaining wall and had filled ground approximately 20 years earlier; that he had filled and raised the Fritz property 14 to 20 inches above its natural level; that this wall altered the flow of surface water from the Fritz to the Firestone property, causing the water to flow with great force through a drainage hole in the northeasterly portion of the boundary line; that Fritz removed the wall in September 1981, but replaced it with a new retaining wall and fence, and further filled the adjoining land, altering the direction of the water flow over the northeasterly comer of plaintiffs’ land; that the acts had prevented natural drainage of surface water and had directed it in undue and unnatural quantities upon plaintiffs’ property, resulting in destruction of the plaintiffs’ garage.

By a motion brought pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619), Fritz alleged that plaintiffs’ legal cause of action was time barred under the relevant statute of limitations (Ill. Rev. Stat. 1981, ch. 110, par. 13— 205), and its equitable action for injunction under the doctrine of laches. The trial court dismissed count I of the complaint, finding that both the five-year statute of limitations and the doctrine of laches barred the suit. Thereafter plaintiffs moved to correct and amend the complaint and requested the court to reconsider its previous order. The amendment as to count I related solely to a scrivener’s error in the date when the new retaining wall was erected. The court noted that it had been advised of the correct date prior to its entry of its dismissal order and that these corrections would not alter its decision. The plaintiffs appeal from the judgment order of December 21, 1982, and from the denial of the subsequent motion on January 6, 1983.

If the owner of dominant property changes the natural course of water within the limits of his own land he must see that the water passes from his land upon the land of his neighbor at the precise place where it would naturally do so. (Templeton v. Huss (1974), 57 Ill. 2d 134, 140.) Interference with natural drainage is limited to that which is incidental to the reasonable development of the dominant estate. (See Templeton v. Huss (1974), 57 Ill. 2d 134, 141. See also Starcevich v. City of Farmington (1982), 110 Ill. App. 3d 1074, 1080.) A plaintiff must bring a cause of action to recover damages for an injury done to real property within five years “after the cause of action accrued.” Ill. Rev. Stat. 1981, ch. 110, par. 13 — 205.

The underlying questions are whether the plaintiffs’ cause of action accrued upon the construction of the retaining wall more than 20 years before this action was brought, whether separate causes of action accrue and start new periods of limitation at each successive injury by overflow, or whether the plaintiffs’ cause of action accrued when the new retaining wall was built. See Annot., 5 A.L.R.2d 302 (1949).

Plaintiffs argue that they are entitled to recover for the damage done to their property by “each rainfall” which has resulted in an unnatural discharge of water onto their property, occurring within the five years prior to the commencement of their action.

Whether, in Illinois, separate causes of action accrue at each successive injury by an unnatural overflow requires a further analysis of the cause of the overflow. When a structure is placed on dominant land which unreasonably increases the flow onto the servient land, a cause of action may accrue upon the completion of the structure if it is a permanent structure which is necessarily injurious by reason of its construction. (Suehr v. Sanitary District (1909), 242 Ill. 496, 499.) If, however, the structure is not apparently injurious, but may be used in a way which may or may not result in injury, the cause of action does not accrue until the use of the structure causes injury. (Jones v. Sanitary District (1911), 252 Ill. 591, 599. See also Aetna Life & Casualty v. Sal E. Lobianco & Son Co. (1976), 43 Ill. App. 3d 765, 770, aff’d sub nom. Western American Insurance Co. v. Sal E. Lobianco & Son Co. (1977), 69 Ill. 2d 126.) The fact that flooding may be uncertain in time, duration and extent does not prevent an improvement, which displays obvious potential to cause an unnatural overflow upon completion, from constituting an immediate, permanent injury. Shaw v. Sanitary District (1915), 267 Ill. 216, 220; Wheeler v. Sanitary District (1915), 270 Ill. 461, 465-66.

As to the construction of the original retaining wall some 20 years prior to suit, the pleadings allege that the wall allowed the flow of water onto their servient estate out of the natural course of drainage by directing the flow with great force “through a drainage hole in the northeasterly portion of the boundary line.” There is thus alleged an obvious cause of the claimed injury, presumably at each rainfall of any substance. We therefore conclude that any injury or damage caused during the period in which the original wall was in place is time barred.

The complaint also alleges that in 1981 the wall was removed by defendants, replaced with a new retaining wall and fence and that the dominant estate was further filled, altering the direction of water flow over the northeasterly corner of the dominant estate onto plaintiffs’ property. The date of the subsequent construction as noted by the trial court was October 3, 1981. It is apparent from the pleadings that the wrong claimed by plaintiffs causing destruction of their garage is the direction of surface waters through both the first and second retaining walls. The cause of action for the alleged wrong began some 20 years before. While a motion to dismiss admits all facts well pleaded, the pleadings are to be construed strictly against the pleader. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 421.) The trial court, therefore, did not err in dismissing the complaint.

In this view we need not consider defendants’ further defense of laches.

II

Count II of plaintiffs’ complaint alleges that the city of Highland Park and its agent Daniel Westergard were notified that an unlawful condition in connection with the drainage or flowage of water from the dominant parcel onto their land existed; that thereafter the construction of the retaining wall was commenced without any permit being issued by the city; that while construction was in progress the plaintiffs notified Westergard, the city’s employee and agent, of the unauthorized construction; that the city through Westergard issued a building permit for the construction, although he was on notice of various violations of city ordinances relating to the completion of the application, approval, plans and notice. The complaint further alleges that the city and Westergard “intentionally and purposefully discriminated against the Plaintiffs by failing to protect the Plaintiffs from damages as contemplated by said Ordinances.” Violation of the equal protection clause of the fourteenth amendment of the United States Constitution, of the similar provision in the Constitution of the State of Illinois and of section 1983 of chapter 42 of the United States Code are alleged.

The trial court sustained a motion to dismiss count II based upon the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1981, ch. 85, pars. 2 — 205, 2— 206, 2 — 103, 2 — 104) and additionally found that the plaintiffs had not given proper notice as required under the Tort Immunity Act. (Ill. Rev. Stat. 1981, ch. 85, pars. 8 — 101 to 8 — 103.) We agree with the plaintiffs that the gist of count II alleges a violation of constitutional rights by the city and not a tort. The Tort Immunity Act applies only to tort actions (Luker v. Nelson (N.D. Ill.1972), 341 F. Supp. Ill, 117-18; Skrapits v. Skala (N.D. Ill. 1970), 314 F. Supp. 510, 511), and does not bar a civil rights action. (See Hampton v. City of Chicago (7th Cir. 1973), 484 F.2d 602, 607, cert, denied (1974), 415 U.S. 917, 39 L. Ed. 2d 471, 94 S. Ct. 1413.) Further, the Tort Immunity Act does not immunize an employee or a public entity for enforcing or executing a law where the complaint alleges that the defendant acted "wilfully and wantonly. Glover v. City of Chicago (1982), 106 Ill. App. 3d 1066, 1074; Vines v. City of Chicago (1982), 110 Ill. App. 3d 1060, 1061.

The conclusion that count II of plaintiffs’ complaint does not allege a tort, causing the basis of the trial court’s dismissal order to be incorrect does not end our inquiry, since we can affirm on any basis appearing in the record. (Hux v. Raben (1967), 38 Ill. 2d 223, 225.) We conclude that count II which essentially charges the city with failing to comply fully with its building codes, fails to state a cause of action under the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV), under article 1, section 2 of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 2), or under section 1983 of the Civil Rights Act. 42 U.S.C. sec. 1983 (1981).

An alleged deprivation of a State-created right does not constitute a deprivation of a constitutional right within the meaning of section 1983. (Parkway Bank & Trust Co. v. City of Darien (1976), 43 Ill. App. 3d 400, 404; see also McKinney v. George (N.D. Ill. 1983), 556 F. Supp. 645, 651.) We noted in Parkway that a claim that a party’s property has been significantly diminished by governmental conduct “is far short of charging that the governmental action is so onerous as to constitute a taking which constitutionally requires compensation.” Parkway Bank & Trust Co. v. City of Darien (1976), 43 Ill. App. 3d 400, 404.

Count II also fails to state a cause of action for violation of equal protection rights. The complaint does not allege that similarly situated groups of people have been treated unequally. In any event, the equal protection clause is concerned with acts of invidious discrimination, not with mere acts of unequal enforcement, or the erroneous and even arbitrary administration of a regulatory power. (Wundsam v. Gilna (1981), 97 Ill. App. 3d 569, 578.) The court did not err therefore in dismissing count II of the complaint.

The plaintiffs have also charged error in the court’s refusal to permit further amendments of the complaint as proposed in their petition for reconsideration of the rulings on the motions to dismiss. As we have previously indicated, the court took into account the correction sought as to the date of the construction of the new wall and this court will consider the pleadings as so amended. This amendment and any of the proposed alterations of the complaint, however, would not have resulted in stating a proper cause of action. We therefore find no reversible error.

The judgments of the circuit court of Lake County are affirmed.

Affirmed.

UNVERZAGT and HOPF, JJ., concur.