Matanky Realty Group, Inc. v. Katris

• Decision Date: 27 September 2006
• Docket Number: No. 1-05-3753.,No. 1-05-3892.,1-05-3753.,1-05-3892.
• Citation: Matanky Realty Group, Inc. v. Katris, 367 Ill. App. 3d 839, 305 Ill.Dec. 774, 856 N.E.2d 579 (Ill. App. 2006)
• Parties: MATANKY REALTY GROUP, INC., Plaintiff-Appellant, v. Demetrios KATRIS, Anastasios Katris, Nick Reveliotis, Unknown Owners & Non-Record Claimants, Defendants-Appellees.
• Court: Appellate Court of Illinois

856 N.E.2d 579

367 Ill. App.3d 839

305 Ill.Dec. 774

MATANKY REALTY GROUP, INC., Plaintiff-Appellant, v.Demetrios KATRIS, Anastasios Katris, Nick Reveliotis, Unknown Owners & Non-RecordClaimants, Defendants-Appellees.

No. 1-05-3753.

No. 1-05-3892.

Appellate Court of Illinois, First District, Third Division.

September 27, 2006.

Tiffany Harper, Lee D. Sarkin, Robert W. Matanky, Chicago, for Appellant.

Peter S. Stamatis, Law Offices of Peter S. Stamatis, P.C., Chicago, for Appellees.

Justice GREIMANdelivered the opinion of the court:

PlaintiffMatanky Realty Group, Inc., appeals from two orders of the trial court dismissing its complaint to foreclose on a mechanic's lien with prejudice pursuant to section 2-619(a)(9) of the Code of Civil Procedure(Code)(735 ILCS 5/2-619(a)(9)(West 2004)), and releasing the lien in favor of defendantsDemetrios Katris, Anastasios Katris, Nick Reveliotis, unknown owners and non-record claimants.¹On appeal, plaintiff contends that the trial court erred in dismissing the complaint with prejudice and releasing the mechanic's lien on the basis that defendants failed to assert an affirmative defense which defeated its claim.In the alternative, plaintiff contends that the trial court abused its discretion by failing to provide an opportunity to amend the complaint.

In 1984, defendants purchased a piece of property in a shopping center from Hazel Crest Center, L.L.C.(Hazel Crest), and leased it to a restaurant.The property is located on the "outlot" of the shopping center, such that the restaurant is a stand-alone building without its own street access for traffic.A former owner of the shopping center granted a former owner of the outlot an easement appurtenant² through the shopping center parking lot for purposes of ingress and egress and parking.Pursuant to the terms of the easement, the owner of the outlot was responsible for 5.8% of the "cost of repair, replacement, maintenance and cleaning" of the parking lot, "limited only to those costs which are reasonable and necessary considering the purposes intended."Further, the shopping center owner was obligated to provide a "statement stating in full detail the costs incurred with a certification that said costs were, in fact, reasonable and necessary."Defendants adopted the easement rights when they purchased the outlot.

According to plaintiff, in 1996, it was hired by Hazel Crest as a property manager to "provide services to maintain, renovate, repair, improve and manage" the parking lot.Then, in May 2005, defendants received an invoice for nearly a decade of work performed by plaintiff.Plaintiff claims that it sent defendants monthly invoices beginning in 1996 for the work, which included "regrading, installation of new driveways, repaving, patching, crack filling, resealing, striping, landscaping, maintenance and cleaning of the parking lot and replacement of the parking lot lighting."Defendants, however, failed to respond to the invoices.On June 17, 2005, plaintiff recorded a mechanic's lien on both defendants' outlot and the easement, and filed a verified complaint to foreclose on the lien and for breach of contract.Defendants subsequently filed a motion to dismiss the verified complaint, pursuant to section 2-619(a)(9) of the Code, arguing that the mechanic's lien was improper because none of plaintiff's work was performed on their property.On November 7, 2005, in a written order, the trial court granted defendants' motion to dismiss with prejudice.Then, defendants filed a motion to enforcethe court's order and release the mechanic's lien.On November 15, 2005, in an additional written order, the trial court granted defendants' motion and released the lien.This timely appeal followed.

Challenges to a motion to dismiss pursuant to section 2-619 of the Code are reviewed de novo.Dewan v. Ford Motor Co.,363 Ill.App.3d 365, 368, 299 Ill.Dec. 719, 842 N.E.2d 756(2005).When reviewing a motion to dismiss, this court accepts all well-pled facts as true and draws all reasonable inferences in favor of the nonmoving party.Dewan,363 Ill.App.3d at 368, 299 Ill.Dec. 719, 842 N.E.2d 756.A section 2-619(a)(9) motion to dismiss assumes that there is a sufficient cause of action stated in the pleading; however, there is some affirmative matter that avoids the legal effect of or defeats the claim.Dewan,363 Ill.App.3d at 368, 299 Ill.Dec. 719, 842 N.E.2d 756.An affirmative matter is a defense that "`negates the cause of action completely or refutes crucial conclusions of law or conclusions of material fact contained in or inferred from the complaint.'"Dewan,363 Ill.App.3d at 368, 299 Ill.Dec. 719, 842 N.E.2d 756, quotingCwikla v. Sheir,345 Ill.App.3d 23, 29, 280 Ill.Dec. 158, 801 N.E.2d 1103(2003).The remaining "`question[s] on appeal [are] whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law.'"Dewan,363 Ill.App.3d at 368, 299 Ill.Dec. 719, 842 N.E.2d 756, quotingCwikla,345 Ill.App.3d at 30, 280 Ill.Dec. 158, 801 N.E.2d 1103.

The Mechanics Lien Act (Act)(770 ILCS 60/1(West 2004)) provides a method of recovery where a landowner received beneficial improvements to his property or his property value was increased because of a contractor's labor and materials.Gateway Concrete Forming Systems, Inc. v. Dynaprop XVIII: State Street LLC,356 Ill.App.3d 806, 809, 292 Ill.Dec. 615, 826 N.E.2d 1051(2005).Mechanics' liens are purely statutory; therefore, a contractor must strictly comply with the Act to be eligible for relief.Cronin v. Tatge,281 Ill. 336, 118 N.E. 35(1917);Gateway Concrete Forming Systems, Inc.,356 Ill.App.3d at 809, 292 Ill. Dec. 615, 826 N.E.2d 1051."Mechanics' liens should be enforced when the party brings himself within the provisions of the statute, but they should not be extended to cases not provided for by the language of the Act even though they may fall within its reason."Luise, Inc. v. Village of Skokie,335 Ill.App.3d 672, 680-81, 269 Ill.Dec. 556, 781 N.E.2d 353(2002).In pertinent part, the Act states:

"Any person who shall by any contract * * *, express or implied, * * * with the owner of a lot or tract of land, or with one whom the owner has authorized or knowingly permitted to contract to improve the lot or tract of land * * * is known under this Act as a contractor and has a lien upon the whole of such lot or tract of land and upon adjoining or adjacent lots or tracts of land of such owner constituting the same premises and occupied or used in connection with such lot or tract of land as a place of residence or business * * *.* * * This lien extends to an estate in fee, * * * or any right of redemption or other interest that the owner may have in the lot or tract of land at the time of making such contract."770 ILCS 60/1(West 2004).

In the instant case, the trial court properly dismissed plaintiff's claim and released the lien because plaintiff failed to strictly comply with the Act.As a threshold issue, in order to assert a lien against defendants, plaintiff was required to demonstrate that defendants were "owners of the lot or tract of land."Within the context of the Act, an owner refers to any person with an estate, right of redemption or other interest in the land.770 ILCS 60/1(West 2004);M. Ecker & Co. v. LaSalle National Bank,268 Ill. App.3d 874, 878, 206 Ill.Dec. 330, 645 N.E.2d 335(1994).This definition of owner has been extended to a beneficiary under a land trust (M. Ecker & Co.,268 Ill.App.3d at 878, 206 Ill.Dec. 330, 645 N.E.2d 335) and a lessee (Hacken v. Isenberg,288 Ill. 589, 124 N.E. 306(1919)).

Here, it is undisputed that the services at issue were performed on Hazel Crest's parking lot and that defendants held an easement appurtenant to the parking lot for purposes of ingress and egress and parking.An easement provides a right or privilege in the use of another's property.McMahon v. Hines,298 Ill. App.3d 231, 235, 232 Ill.Dec. 269, 697 N.E.2d 1199(1998).An easement qualifies as appurtenant when the user of the right enjoys a dominant estate over the used land, which is considered the servient estate.McMahon,298 Ill.App.3d at 235-36, 232 Ill.Dec. 269, 697 N.E.2d 1199.The individual with the easement is entitled to the necessary use of the easement.McMahon,298 Ill.App.3d at 236, 232 Ill. Dec. 269, 697 N.E.2d 1199.Accordingly, the easement provides use rights; however, it does not provide ownership rights or an ownership interest in the land.As a result, defendants cannot be considered owners of the parking lot or any portion thereof merely because they have rights under the easement.

Plaintiff argues that its mechanic's lien is valid because it was hired by Hazel Crest, the owner in fee of the parking lot, to make improvements to the parking lot and thereby the easement, which benefitted defendants' adjoining property.Plaintiff, however, fails to acknowledge the determinative language in the Act.Pursuant to the Act, a contractor may obtain a lien only "upon the whole of such lot or tract of land and upon adjoining or adjacent lots or tracts of land of such owner."(Emphasis added.)770 ILCS 60/1(West 2004).As we have established, defendants are...