Defendant, Johnco Construction, Inc. (Johnco), appealsan order of the Menard County circuit court denying Johnco'smotion to stay and to compel arbitration pursuant to the UniformArbitration Act (710 ILCS 5/1 through 23 (West 2000)). Wereverse and remand.

In March 2000, the Menard County Housing Authority(MCHA) hired Johnco to renovate an MCHA public housing building. The contract provided that Johnco would complete the renovationswithin 365 days with exceptions for unforseen or unavoidablecauses for delay. The contract included a liquidated-damagesprovision, which provided that liquidated damages would beassessed at a rate of $100 per calendar day for every day thatJohnco took to finish the renovations beyond 365 days. Thecontract also had an optional arbitration clause. It providedthat when the contracting officer made a final decision regardinga claim arising under or relating to the contract, Johnco couldappeal that decision to an arbitrator or mediator, but it had todo so within 30 days of the contracting officer's decision. Finally, the contract provided that Johnco would "proceed diligently" with performance of the contract, even while claimsrelating to the contract were pending.

On November 15, 2001, Anne Smith, who was the executivedirector of MCHA and listed as the contracting officer in thecontract, sent a letter to Johnco informing it that $20,400 inliquidated damages had accrued because of the delay in finishingthe renovations. Johnco had finished the actual physical renovations to MCHA's building, but it took longer than 365 days. MCHAoffered to forego 10% of the liquidated damages if Johnco wouldfinalize the project by producing certain close-out paperspursuant to the contract, such as lien releases from subcontractors, architect-requested documents, and a final pay request, byDecember 10, 2001. MCHA needed these close-out documents toadministratively complete the project and be able to securefunding for the project.

Johnco responded with a letter dated November 16, 2002,which generally alleged that the delays had not been Johnco'sfault and that no liquidated damages should have accrued. According to Johnco, the delay occurred because MCHA had failedto disclose that the heating system in the building made itimpossible to do any renovations in the winter and still haveheat for the tenants of the building. Johnco had anticipatedbeing able to work during the winter months when it set a completion date for the project. Johnco did not provide the requestedclose-out papers.

On May 3, 2002, MCHA's attorney mailed a letter toJohnco again requesting that Johnco produce the previouslyrequested close-out papers. The letter acknowledged Johnco'sargument that the delay in completing the renovations was notJohnco's fault but stated that "[MCHA] has previously taken intoaccount the substance of said protest in modifying its assessmentof liquidated damages and is not amenable to further adjustment." The letter finished by saying that if the requested close-outdocuments were not produced, MCHA would pursue legal proceedingsto force Johnco to produce the documents.

Johnco responded to the May 3, 2002, letter with aletter addressed to Anne Smith dated May 16, 2002. This lettergenerally reiterated Johnco's claim that the delays in finishingthe renovations were not Johnco's fault and that any assessmentof liquidated damages was unwarranted. The letter ended with thefollowing paragraph:

"Please review and advise what course of action you want to take. We are prepared for anything. If MRA and MCHA want to pursue legal action, so be it. We are veryoptimistic that somewhere, someone in the legal system will be open-minded, reasonable, and understanding."

Johnco did not produce the requested close-out documents.

MCHA filed its complaint for declaratory judgment andfor further relief on June 26, 2002. The complaint sought adeclaration that Johnco was obligated pursuant to the contract toprovide the close-out papers and an order compelling Johnco toprovide those documents. Johnco responded with a motion to stayand to compel arbitration pursuant to the contract's arbitrationprovision.

The trial court denied Johnco's motion to compelarbitration, finding that Johnco could no longer invoke thearbitration provision in the contract. The contract providesthat the "Contracting Officer" will decide any claims made byeither party and:

"The Contracting Officer's decision shall be final unless the Contractor [(Johnco)] (1) appeals in writing to a higher level in thePHA/IHA in accordance with the PHA's/IHA's policy and procedures, (2) refers the appeal to an independent mediator or arbitrator, or (3) files suit in a court of competent jurisdiction. Such appeal must be made within [30 days] after receipt of theContracting Officer's decision."

The court found the May 3, 2002, letter from MCHA's attorneyrejecting Johnco's claim that it was not liable for liquidateddamages was a final decision of the contracting officer and that30 days had passed without Johnco referring the appeal to anarbitrator. Therefore, pursuant to the terms of the arbitrationprovision itself, Johnco could no longer invoke arbitration. Johnco appeals.

A motion to compel arbitration is treated as a complaint for injunctive relief, and a denial of that motion isreviewed pursuant to Supreme Court Rule 307(a)(1) (134 Ill. 2d R.307(a)(1)). Yandell v. Church Mutual Insurance Co., 274 Ill.App. 3d 828, 830, 654 N.E.2d 1388, 1389 (1995). Rule 307(a)(1)allows an interlocutory appeal of an order granting or denyinginjunctive relief. See 134 Ill. 2d R. 307(a)(1). "The soleissue before the appellate court on an interlocutory appeal iswhether a sufficient showing was made to sustain the order of thetrial court denying the motion to compel arbitration." Yandell,274 Ill. App. 3d at 830, 654 N.E.2d at 1389. Thus, the standardof review in an interlocutory appeal is whether the trial courtabused its discretion. Yandell, 274 Ill. App. 3d at 831, 654N.E.2d at 1389.

The issue whether a contract to arbitrate exists mustbe determined by the court, not an arbitrator. "[I]f the opposing party denies the existence of the agreement to arbitrate, thecourt shall proceed summarily to the determination of the issueso raised ***." 710 ILCS 5/2(a) (West 2000). Although arbitration is a favored method of dispute resolution, the parties to anagreement are bound to arbitrate only those issues they haveagreed to arbitrate, as shown by the clear language of theagreement and their intentions expressed in that language. Salsitz v. Kreiss, 198 Ill. 2d 1, 13, 761 N.E.2d 724, 731 (2001);Rauh v. Rockford Products Corp., 143 Ill. 2d 377, 387, 574 N.E.2d636, 641 (1991).

Where there is an arbitration agreement, but it isunclear whether the subject matter of the dispute falls withinthe scope of the arbitration agreement, the question of substantive arbitrability should initially be decided by the arbitrator. Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr, 124 Ill. 2d435, 447-48, 530 N.E.2d 439, 445 (1988). This is consistent withthe purpose of arbitration, employing the arbitrator's skilledjudgment to resolve the ambiguity. Donaldson, 124 Ill. 2d at448, 530 N.E.2d at 445. Where an arbitrator decides the questionof arbitrability in the first instance, the circuit court muststill review the arbitrator's decision de novo. Salsitz, 198Ill. 2d at 13-14, 761 N.E.2d at 731; Donaldson, 124 Ill. 2d at448, 530 N.E.2d at 445 (recognizing that initially deferring tothe arbitrator in unclear cases may occasionally hinder some ofthe reasons for arbitration, speed and inexpense). Were this notso, "a party would be bound by the arbitration of disputes he hasnot agreed to arbitrate and would be left with only a court'sdeferential review of the arbitrator's decision on the questionof arbitrability." Salsitz, 198 Ill. 2d at 14, 761 N.E.2d at731.

It has been held that the existence of a conditionprecedent to arbitration is a question for the court to decide,as opposed to procedural issues, which are best resolved by anarbitrator who would construe the contract as a whole in light ofthe customs and practice of the industry and would hold theparties to the essence of their bargain, a task peculiarly withinthe competence of the arbitrator. Amalgamated Transit Union,Local 900 v. Suburban Bus Division of the Regional TransportationAuthority, 262 Ill. App. 3d 334, 340-41, 634 N.E.2d 469, 474(1994). It is recognized, however, that the exact distinctionbetween a condition precedent and a procedural requirement isdifficult to define. "Admittedly, Village of Carpentersvillelacks instruction as to the exact distinction ***." Amalagamated, 262 Ill. App. 3d at 341, 634 N.E.2d at 474 (discussing Village of Carpentersville v. Mayfair Construction Co.,100 Ill. App. 3d 128, 133, 426 N.E.2d 558, 562-63 (1981)).

The question in Amalgamated was whether a grievance,which was required to be submitted to the employer's superintendent of operations, was properly submitted instead to the employer's attorney. There was another question whether thegrievance was submitted, as required, "within ten (10) calendardays of occurrence," when the employee stopped paying dues inOctober 1992 and no grievance was asserted until January 1993. Amalgamated, 262 Ill. App. 3d at 335, 634 N.E.2d at 471. Thecourt held that these issues should be arbitrated:

"[The employer] does not contest the fact that it received the grievance, it only argues that the grievance was delivered to the wrong person and was not timely. This presents procedural questions. We believe that where, as here, the Union has submitted a grievance to [the employer's] attorney and proceeded in what may or may not have been the correct grievance process, the questions on this issue are best answered by the arbitrator.Although the issue as to whether the Union properly submitted its correspondence to [the employer's attorney] remains unsettled, we note that [the employer] was aware of the Union's grievance and would be able toprepare its own arguments accordingly." Amalgamated, 262 Ill. App. 3d at 341, 634 N.E.2d at 475.

The trial court made at least two findings of factregarding arbitrability that, under the particular circumstancesof this case, would have been better addressed to an arbitrator: (1) Did the MCHA send a letter from its "contracting officer,"within the meaning of the contract, so as to start the 30-dayperiod within which Johnco needed to seek arbitration? And (2)if such a letter was sent (in either November 2001 or May 2002),did Johnco forfeit its right to arbitration by failing to taketimely action? Under the circumstances, we agree with thefollowing from Amalgamated:

"We believe those cases which hold that timeliness is a procedural issue for thearbitrator to decide are more persuasive. As noted in [Board of Education of Posen-Robbins School District No. 143 1/2 v. Daniels, 108 Ill. App. 3d 550, 555, 439 N.E.2d 27, 31 (1982),] and Village of Carpentersville, questions involving contractual timelimitations usually require construing the contract in light of the customs and practices of the industry, a task peculiarly within thecompetence of the arbitrator." Amalgamated, 262 Ill. App. 3d at 340-41, 634 N.E.2d at 474.

In Village of Carpentersville, there was contractlanguage similar to that in the present case: "'The demand forarbitration shall be made within thirty days after the date onwhich the Architect-Engineer rendered his written decision. *** Failure to demand arbitration within the said thirty[-]day periodshall result in the Architect-Engineer's decision being final andbinding on the Owner and the Contractor.'" Village ofCarpentersville, 100 Ill. App. 3d at 129, 426 N.E.2d at 560. Thecontractor and the architect agreed that provision would onlyapply "where the Architect states that a decision is a writtendecision within the meaning of the section and that an arbitration demand must be made within 30 days of the written decisionby the Architect." Village of Carpentersville, 100 Ill. App. 3dat 129, 426 N.E.2d at 560. The court held that whether thatinterpretation was proper or one that the village may not nowchallenge was a procedural matter for the arbitrator to decide. Village of Carpentersville, 100 Ill. App. 3d at 133, 426 N.E.2dat 563. "We conclude that the matters of timeliness and waiverand the other procedural matters in question should be decided bythe arbitrator. We find no statutory precondition which would befor the court to decide ***." Village of Carpentersville, 100Ill. App. 3d at 133, 426 N.E.2d at 562. "We likewise find noexpress condition precedent to arbitration in the contract." Village of Carpentersville, 100 Ill. App. 3d at 133, 426 N.E.2dat 562.

There are some differences between Village ofCarpentersville and the present case. In Village ofCarpentersville, the village sought a declaration that certainclaims were not arbitrable. In the present case, MCHA sought anorder compelling Johnco to provide documents. It could be arguedthat Johnco is attempting to delay proceedings, by not insistingupon arbitration until the village has begun a court action,after declaring that if "MCHA want[ed] to pursue legal action, sobe it." There is something to Johnco's argument, however, thatto begin the running of the 30-day period, the contractingofficer's decision had to make it clear that it had that effect. Village of Carpentersville is supportive of the suggestion thatthat is a custom and practice of the industry. Village ofCarpentersville, 100 Ill. App. 3d at 133, 426 N.E.2d at 562-63. We conclude that the matter is not so clear that it should have been ruled upon initially by the circuit court, without consideration by the arbitrator.

Accordingly, we reverse and remand the judgment of thetrial court, with instructions to direct the parties to seekarbitration.

Reversed and remanded.

KNECHT and STEIGMANN, JJ., concur.