R.W. Dunteman Co. v. C/G Enterprises, Inc.

• Decision Date: 20 February 1998
• Docket Number: 82184,Nos. 81853,s. 81853
• Citation: R.W. Dunteman Co. v. C/G Enterprises, Inc., 692 N.E.2d 306, 181 Ill.2d 153, 229 Ill.Dec. 533 (Ill. 1998)
• Parties: , 229 Ill.Dec. 533 R.W. DUNTEMAN COMPANY, Appellee, v. C/G ENTERPRISES, INC., et al. (C/G Enterprises, Inc., et al., Appellants).
• Court: Illinois Supreme Court

Page 306

692 N.E.2d 306

181 Ill.2d 153, 229 Ill.Dec. 533

R.W. DUNTEMAN COMPANY, Appellee, v. C/G ENTERPRISES, INC., et al. (C/G Enterprises, Inc., et al., Appellants).

Nos. 81853, 82184.

Supreme Court of Illinois.

Feb. 20, 1998.

William D. Klink, Chicago, Robert L. Pattullo, Jr., Rock, Fusco, Reynolds, Crowe & Garvey, Ltd., Chicago, for Ziebell Water Service Products.

Bradley B. Falkof, Barnes & Thornburg, Chicago, James A Reiman, Winnetka, for R.W. Dunteman Co.

Chief Justice FREEMAN delivered the opinion of the court:

Section 1.1 of the Mechanics Lien Act (770 ILCS 60/1.1 (West 1992)) provides:

"An agreement to waive any right to enforce or claim any lien under this Act where the agreement is in anticipation of and in consideration for the awarding of a contract or subcontract, either express or implied, to perform work or supply materials for an improvement upon real property is against public policy and unenforceable. This Section does not prohibit subordination or release of a lien under this Act." 770 ILCS 60/1.1 (West 1992).

The circuit court of Cook County found section 1.1 to be unconstitutionally vague. Defendants appealed directly to this court pursuant to Supreme Court Rules 302(a)(1) and 304(a) (134 Ill.2d R. 302(a)(1); 155 Ill.2d R. 304(a)). For the reasons that follow, we hold that section 1.1 is not unconstitutionally vague and, therefore, reverse the trial court.

BACKGROUND

In March 1996, plaintiff, R.W. Dunteman Company (Dunteman), entered into a written contract with the City of Des Plaines (the City) to perform road work for a street reconstruction project. Paragraph 18 of the contract provided:

"The Subcontractor waives and releases any and all liens or rights to lien arising under this Agreement or because of any work or materials heretofore or hereafter furnished against the premises of the Owner or any adjoining or contiguous premises or against any funds due or to become due to the Contractor. The provisions of this paragraph will extend to all subcontractors, materialmen and workmen engaged or employed under or through the Subcontractor and every contract, both written and oral, made by the Subcontractor or in the execution of the Subcontractor's work, will expressly so provide."

Dunteman entered a subcontract agreement with C/G Enterprises (C/G) to perform underground sewer and water construction for the project. Subsequently, C/G entered into various agreements with F & M Trucking Company (F & M), Ziebell Water Service Products, Inc. (Ziebell), and Christofano Equipment Company, Inc. (Christofano), for the provision of labor and materials for the project.

During the course of construction, the City became dissatisfied with C/G's performance and directed Dunteman to remove C/G from the project. Pursuant to section 23 of the Mechanics Lien Act (the Act) (770 ILCS 60/23 (West 1992)), C/G filed a lien in the amount of $246,826.08 against the monies due Dunteman from the City. Thereafter, F & M and Christofano also filed liens on the project totalling $71,793.17. The City advised Dunteman that funds would not be released because of the lien claims.

Dunteman filed a complaint for declaratory judgment, requesting a court determination that the lien claims filed with the City were void and unenforceable pursuant to paragraph 18 of the subcontract agreement. C/G counterclaimed, arguing that paragraph 18 was void as against public policy based upon section 1.1 of the Mechanics Lien Act.

Subsequently, F & M's and Christofano's motions to intervene in C/G and Dunteman's action were granted. F & M and Christofano also counterclaimed against Dunteman, C/G, and the City, alleging, inter alia, foreclosure of lien and breach of contract. F & M also filed a motion for partial summary judgment, arguing that it had no actual or constructive notice of the no-lien provision contained in Dunteman's contracts with C/G and the City.

On July 17, 1996, the court entered an agreed order directing the City to deposit the sum of $312,732.05 in escrow with the clerk of the court for work done on the road project. On August 14, 1996, the court ruled that the lien filed by C/G was void and unenforceable and that section 1.1 was "unconstitutionally vague and unenforceable." Therefore, the trial court granted Dunteman's complaint for declaratory judgment and denied C/G's motion for partial summary judgment. The trial court also ordered the City to pay Dunteman all sums owed for work performed and not to withhold any amount sought by subcontractors due to liens filed by those subcontractors.

F & M and Christofano thereafter filed motions for reconsideration of the August 14, 1996, order. At a hearing held on the motions, the trial court declared the liens of the sub-subcontractors invalid and unenforceable as a derivative of the principal contract between Dunteman and C/G. C/G appealed the court's August 14, 1996, order. The trial court granted Ziebell leave to intervene and join in the appeal. This court consolidated the appeals of Ziebell and F & M with the appeal filed by C/G. Christofano has not joined in this appeal.

ANALYSIS

Jurisdiction

Initially, Dunteman argues that this court lacks jurisdiction to hear this appeal because C/G's notice of appeal was not timely filed. The timely filing of a notice of appeal is both jurisdictional and mandatory. 134 Ill.2d R. 301; Hassan v. Wakefield, 204 Ill.App.3d 155, 157, 149 Ill.Dec. 464, 561 N.E.2d 1160 (1990). A reviewing court must be certain of its jurisdiction prior to proceeding in a cause of action. Hassan, 204 Ill.App.3d at 157, 149 Ill.Dec. 464, 561 N.E.2d 1160.

This appeal was filed pursuant to Supreme Court Rules 302 and 304(a) (134 Ill.2d R. 302; 155 Ill.2d R. 304(a)). Supreme Court Rule 304(a) provides for an immediate appeal in cases involving judgments as to fewer than all the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both. An order is final and appealable if it terminates the litigation between the parties on the merits or disposes of the rights of the parties, either on the entire controversy or a separate part thereof. Blott v. Hanson, 283 Ill.App.3d 656, 218 Ill.Dec. 848, 670 N.E.2d 345 (1996).

The order entered on August 14, 1996, stated that judgment was entered in favor of Dunteman and against C/G. The order also stated that "[t]he court finds there is no just reason to delay either enforcement or appeal of the order." At the August 28, 1996, hearing, C/G sought clarification regarding whether the August 14, 1996, order included F & M and Christofano. The trial judge explained that the order had not been directed towards, nor could it be effective against, F & M and Christofano because he had not considered F & M's motion for summary judgment and Christofano had not yet filed its motion for partial summary judgment. Accordingly, C/G timely filed its notice of appeal on September 13, 1996, because the August 14, 1996, order terminated the litigation between C/G and Dunteman.

Dunteman argues that because C/G filed its notice of appeal before the trial court disposed of the parties' last pending post-judgment motions, C/G's notice of appeal was premature and void, and this court lacks jurisdiction to hear C/G's appeal pursuant to Supreme Court Rule 303(a)(2) (155 Ill.2d R. 303(a)(2)). The resolution of this issue requires us to detail the events which transpired in the circuit court after the entry of the August 14, 1996, order.

On August 26, 1996, Christofano filed a motion seeking reconsideration of the trial court's August 14, 1996, order. On August 28, 1996, F & M appeared before the court to present a motion for reconsideration. All parties were present at the subsequent hearing on the motions, and counsel for Dunteman noted that F & M's motion for reconsideration had not been briefed and was never presented to the court. Rather than addressing either F & M's or Christofano's motion to reconsider, the court ordered Christofano to file its motion for partial summary judgment on or before August 30, 1996, and allowed Dunteman 14 days to respond to F & M's motion for partial summary judgment. The court set both matters for hearing on September 30, 1996.

Supreme Court Rule 303 governs the timing of appeals from final judgments of the circuit court. 155 Ill.2d R. 303. Subpart (a)(1) of the rule states that a notice of appeal must be filed within 30 days after entry of the final judgment appealed from, or "if a timely post-trial motion directed against the judgment is filed, * * * within 30 days after the entry of the order disposing of the last pending post-trial motion." 155 Ill.2d R. 303(a)(1). Subpart (a)(2) states that a notice of appeal filed before entry of an order disposing of the last pending post-trial motion has no effect and must be withdrawn by the party who filed it. This is so whether the post-trial motion was filed before or after the notice of appeal. A new notice of appeal must be filed within 30 days after entry of the order disposing of the last pending post-trial motion. 155 Ill.2d R. 303(a)(2).

We do not believe that Supreme Court Rule 303 applies to the instant case. Based on the record, it appears that F & M's and Christofano's motions for reconsideration were abandoned due to the court's clarification that the August 14, 1996, order was not directed towards F & M and Christofano. Therefore, C/G timely filed its notice of appeal on September 13, 1996.

Dunteman further claims that if we conclude that C/G's notice of appeal was timely filed, we must also conclude that F & M's and Ziebell's notices were untimely since the final order in the case was entered on August 14, 1996. We disagree. As discussed above, the order for August 14, 1996, disposed of C/G's lien claim only. On September 30, 1996, the trial court ruled against F & M's and Christofano's motions for partial summary...