ROTHERS CONST. v. CENTURION INDUSTRIES

• Citation: 786 N.E.2d 644,272 Ill.Dec. 105,337 Ill. App.3d 629
• Decision Date: 20 March 2003
• Docket Number: No. 4-02-0347.,4-02-0347.
• Parties: ROTHERS CONSTRUCTION, INC., Plaintiff-Appellant, v. CENTURION INDUSTRIES, INC., d/b/a A-Lert Construction Services; O'Malley Grain, Inc.; and Unknown Owners and Non-Record Claimants, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

786 N.E.2d 644

337 Ill. App.3d 629

272 Ill.Dec. 105

ROTHERS CONSTRUCTION, INC., Plaintiff-Appellant, v. CENTURION INDUSTRIES, INC., d/b/a A-Lert Construction Services; O'Malley Grain, Inc.; and Unknown Owners and Non-Record Claimants, Defendants-Appellees.

No. 4-02-0347.

Appellate Court of Illinois, Fourth District.

Argued October 16, 2002.

Decided March 20, 2003.

John W. Foltz (argued), Glasgow & Foltz, P.C., Monticello, for Rothers Construction, Inc.

Edward Q. Costa, Bridget C. Hogan (argued), Samuels, Miller, Schroeder, Jackson & Sly, Decatur, for O'Malley Grain, Inc.

Justice KNECHT delivered the opinion of the court:

Plaintiff, Rothers Construction, Inc., a subcontractor, brought an action in the circuit court of Piatt County to foreclose a mechanics lien against defendants, O'Malley Grain, Inc., the owner of a construction project, and Centurion Industries, Inc., d/b/a A-Lert Construction Services (A-Lert), the general contractor. Defendants filed a motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2000)). The trial court found plaintiff failed to perfect its mechanics lien pursuant to section 24 of the Mechanics Lien Act (Act) (770 ILCS 60/24 (West 2000)). Plaintiff appeals, contending (1) the trial court erred in dismissing its mechanics lien foreclosure complaint on the grounds it was not properly perfected under section 24 of the Act and (2) the trial court erred when it failed to find defendants were equitably estopped from asserting the failure to perfect the lien under section 24 of the Act. We affirm.

I. STATUTES AT ISSUE

The Act provides for different ways to perfect a mechanics lien depending on the circumstances. Section 24 of the Act provides in pertinent part:

"[A] [s]ub[]contractor * * * may at any time after making his or her contract with the contractor, and shall within 90 days after the completion thereof, or, if extra or additional work or material is delivered thereafter, within 90 days after the date of completion of such extra or additional work or final delivery of such extra or additional material, cause a written notice of his or her claim and the amount due * * * to be sent by registered or certified mail, with return receipt requested * * * or personally served on the owner of record or his agent * * *." 770 ILCS 60/24 (West 2000).

Section 25 of the Act provides in pertinent part:

"In all cases where the owner, agent, architect[,] or superintendent cannot, upon reasonable diligence, be found in the county in which said improvement is made, or shall not reside therein, the sub[]contractor * * * may give notice by filing in the office of the recorder against the person making the contract and the owner a claim for lien * * *." 770 ILCS 60/25 (West 2000).

II. BACKGROUND

A-Lert entered into a contract with defendant O'Malley Grain, Inc., to build grain bins and material handling systems on its property in Piatt County and then, on December 31, 1999, subcontracted some of the work on the project to plaintiff, Rothers Construction, Inc., a corporation headquartered in Minnesota. On June 8, 2000, plaintiff completed construction services at O'Malley Grain's plant in Piatt County. On September 5, 2000, plaintiff recorded a mechanics lien on O'Malley Grain's property in Piatt County in the amount of $97,182.50.

On April 20, 2001, plaintiff filed a complaint against both defendants. Attached to the complaint as exhibit A was a copy of the recorded mechanics lien. Attached to the complaint as exhibit B was a notice of mechanics lien claim, addressed to O'Malley Grain, dated April 12, 2001.

On September 25, 2001, plaintiff filed its amended complaint. Attached to this complaint was only an exhibit A, the recorded mechanics lien. On October 15, 2001, both defendants filed a joint motion to dismiss the amended complaint pursuant to section 2-619(a)(9) of the Code. In the portion of the motion addressing count I of the amended complaint, O'Malley Grain contends, among other things, plaintiff failed to allege it filed a notice of mechanics lien pursuant to section 24 of the Act (770 ILCS 60/24 (West 2000)) and its lien was not perfected.

On November 19, 2001, plaintiff filed a written response to the motion to dismiss and contended that section 25 of the Act applied, not section 24, and that it complied with section 25. In support of this contention, plaintiff provided an exhibit to its response showing O'Malley Grain's registered agent to be located in Cook County.

Alternatively, plaintiff contended if compliance with section 24 of the Act was necessary for perfecting a mechanics lien in this case, O'Malley Grain was equitably estopped from arguing section 25 was improper because the mechanics lien claim was drafted by the attorney for O'Malley Grain, with instructions on how to file it with the recorder. This contention was supported by the affidavit of James A. Rothers, plaintiff's vice-president, who stated plaintiff was referred to this particular attorney by the president of O'Malley Grain, Robert P. O'Malley.

On November 21, 2001, the trial court heard arguments on defendants' motion to dismiss count I. The trial court found plaintiff did not meet all of the requirements of equitable estoppel but denied defendants' motion to dismiss as to count I on the grounds that O'Malley Grain was a resident of Cook County for purposes of the Act based on the case cited by plaintiff, Hollembeak v. National Starch & Chemical Corp., 95 Ill.App.3d 309, 50 Ill.Dec. 855, 420 N.E.2d 172 (1981), and, therefore, perfection of the mechanics lien was proper under section 25.

On December 20, 2001, O'Malley Grain filed a motion to reconsider the trial court's ruling. Attached to the motion was the affidavit of Robert P. O'Malley, chief executive officer of O'Malley Grain, Inc. In his affidavit, O'Malley stated he was a resident of Piatt County, was the agent in charge of the construction project at issue in Piatt County, and was present at the construction site three to four times per week during construction.

Plaintiff filed a motion to strike O'Malley's affidavit on January 17, 2002, and filed a response to the motion to reconsider on January 29, 2002. The response did not mention the equitable estoppel arguments it had made in response to the original motion to dismiss. O'Malley Grain filed a response to the motion to strike its affidavit on January 29, 2002.

On January 30, 2002 the trial court heard arguments on plaintiff's motion to strike and O'Malley Grain's motion to reconsider. The trial court allowed O'Malley Grain to file O'Malley's affidavit. During argument, plaintiff raised the equitable estoppel argument and O'Malley Grain asked the court to consider it as untimely raised since more than 30 days had passed since the trial court found the argument unpersuasive at the original motion to dismiss hearing.

The trial court found section 24 notice was not served on O'Malley Grain but plaintiff did file a section 25 notice. The trial court noted O'Malley stated in his affidavit he was the agent in charge of the grain-handling-system construction project and had complete authority over the project. He further stated he visited the jobsite at least three or four times per week during most of the construction project and when he did so, he would inspect the facility and discuss the project with the contractors and subcontractors working at the jobsite. He was available to speak with the representatives of the general contractor and the subcontractors, including plaintiff, on a frequent basis during the construction project. The trial court found O'Malley was the agent of O'Malley Grain and, thus, section 24 notice should have been served on O'Malley. The trial court did not rule on the equitable estoppel issue.

On February 28, 2002, plaintiff filed a motion for reconsideration of the trial court's ruling of January 30, 2002, and for other relief. Plaintiff specifically asked the trial court to reconsider its "January 30, 2002," ruling that equitable estoppel did not apply in this case. Plaintiff also asked for a finding under Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)) in order to appeal should the trial court not reconsider its prior rulings. On March 25, 2002, O'Malley Grain filed a response to plaintiff's motion to reconsider and objected to plaintiff raising the equitable estoppel argument, contending it was untimely raised.

The trial court heard arguments on plaintiff's motion to reconsider on March 27, 2002. O'Malley Grain argued plaintiff's request for reconsideration of the November 21, 2001, equitable estoppel denial was not timely made. Plaintiff argued the estoppel argument was timely made because it did not become "germane" until the trial court ruled the mechanics lien, which the trial court had originally ruled was properly perfected under section 25, was not properly perfected. The trial court denied plaintiff's motion to reconsider and allowed its ruling of January 30, 2002, to stand. As to the equitable estoppel argument, the trial court stated as follows:

"As far as equitable estoppel, that issue has been raised, has been argued. The [c]ourt is concerned that the plaintiff has a right to retain its own attorney. Could he adequately and properly rely on O'Malley's counsel? These are now adverse parties, not necessarily at the time that O'Malley's counsel was used by [plaintiff]."

The trial court made a finding there was no just reason for delaying appeal under Rule 304(a) (155 Ill.2d R. 304(a)) and this appeal followed.

III. ANALYSIS

A. Did the Trial Court Err in Dismissing Plaintiff's Mechanics Lien Foreclosure Complaint Because the Lien Was Not Properly Perfected Under Section 24 of the Act (770 ILCS 60/24 (West 2000))?

O'Malley Grain moved to dismiss count I of plaintiff's complaint under section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2000)) on the grounds the claim for...