Crawford Supply Company v. Schwartz

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State: Illinois

Court: 1st District Appellate

Docket No: 1-09-0900 Rel

Case Date: 09/25/2009

Preview:SIXTH DIVISION SEPTEMBER 25, 2009

No. 1-09-0900 CRAWFORD SUPPLY COMPANY, Plaintiff-Appellee, v. MARC K. SCHWARTZ, and TERRI B. SCHWARTZ, Defendants-Appellants (Wells Fargo Bank, N.A., Bill's Drywall, Inc., Precision Painting and Decorating Corp., Hillside Lumber, Inc., Premier Renovating, Inc., and Unknown Owners, Trustees and Lien Claimants, Defendants). ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County.

No. 08 CH 20700

Honorable Robert J. Quinn, Judge Presiding.

JUSTICE ROBERT E. GORDON delivered the opinion of the court: This matter is before us on interlocutory appeal pursuant to the provisions of Illinois Supreme Court Rule 308 (155 Ill. 2d R. 308) to consider a question certified by the trial court. Plaintiff, Crawford Supply Company, filed a two-count verified complaint, count I of which seeks to foreclose on plaintiff's subcontractor's mechanics lien against an owner-occupied single-family residence located at 2640 Prince Street in Northbrook, Illinois (subject property).1 Plaintiff's complaint alleges that it furnished materials to the general contractor hired to make improvements to the subject property,

1

Count II of plaintiff's complaint seeking damages for services rendered under a

theory of quantum meruit is not before this court in this interlocutory appeal.

No. 1-09-0900 for which it has not been paid.2 Defendants, Marc K. Schwartz and Terri B. Schwartz (husband and wife)3, the owners of the subject property, filed a motion to dismiss count I of plaintiff's complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2006)) claiming that plaintiff's lien was invalid due to plaintiff's failure to provide the Schwartzes with notice of its subcontract within 60 days of its first furnishing materials to their residence as required by section 5(b)(ii) of the Mechanics Lien Act (Act) (770 ILCS 60/5(b)(ii) (West 2006)). The trial court denied the Schwartzes' motion to dismiss finding that plaintiff's written notice pursuant to section 24(a) of the Act (770 ILCS 60/24(a) (West 2006)) "constituted substantial compliance with the notice requirements under section[s] 5(b)(ii) and 5(b)(iii)." The Schwartzes then filed a motion to reconsider the denial of their motion to dismiss count I of plaintiff's complaint, or in the alternative, for a finding that "the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation" pursuant to Illinois Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a)). The trial court denied the Schwartzes' motion to reconsider the denial of their motion to
2

The record in this case shows that plaintiff has a default judgment against

Premier Renovation, Inc., the general contractor in this case; however, the record does not indicate whether Premier is able to pay that judgment.

3

We will refer to Marc and Terri Schwartz collectively as "the Schwartzes"

throughout this decision where appropriate. 2

No. 1-09-0900 dismiss count I of plaintiff's complaint; however, the trial court granted the Schwartzes' motion for a Rule 308(a) finding and certified the following question for our review: "Where a subcontractor asserts a claim for lien on an owneroccupied single-family residence and serves a 90-day notice as provided in Section 24 of the Mechanics Lien Act, does the subcontractor's failure to serve a 60-day notice as provided in Section 5(b) of the Mechanics Lien Act render the claim for lien invalid?" For the reasons that follow, we narrow the scope of the certified question, answer it in the negative, and remand to the trial court for further proceedings. BACKGROUND According to the complaint in the case at bar, plaintiff is, and at all relevant times was, an Illinois corporation engaged in the business of "supplying plumbing and related materials and fixtures." The Schwartzes are the owners of the subject property. Defendants, Wells Fargo, N.A., and LaSalle Bank, N.A., were mortgagees to the subject property on June 10, 2008, the date on which the complaint in the instant case for foreclosure of mechanic's lien and other relief was filed. Defendants, Bill's Drywall, Inc., Precision Painting and Decorating, Corp., and Hillside Lumber, Inc., were mechanics lien claimants to the subject property on the date on which the complaint in the instant case was filed. According to the complaint, "prior to December 20, 2006," the Schwartzes entered into a written contract with general contractor Premier Renovation, Inc., to make

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No. 1-09-0900 certain improvements to their home. The written contract required Premier to furnish certain plumbing and related materials and fixtures for those improvements. On December 20, 2006, Premier executed a written purchase order with plaintiff for the delivery of the plumbing materials and fixtures required under the written contract between the Schwartzes and Premier. Invoices for the materials and fixtures provided by plaintiff to Premier are attached to the complaint in the case at bar as exhibit B. According to the complaint, plaintiff delivered all the materials and fixtures under the December 20, 2006, written purchase order between December 20, 2006, and July 18, 2007. The complaint alleges that Premier failed to make any payment to plaintiff under the purchase order; plaintiff claims the sum due under the purchase order agreement is $20,176.99. It is undisputed that plaintiff never provided the Schwartzes with notice of its agreement to provide services, materials and fixtures as subcontractor within 60 days from its first furnishing of such services, materials and fixtures, as required by section 5(b)(ii) of the Act (770 ILCS 60/5(b)(ii) (West 2006)). On August 9, 2007, plaintiff provided the Schwartzes with written notice of its lien claim pursuant to section 24(a) of the Act (770 ILCS 60/24(a) (West 2006)). Under section 24(a) of the Act, a subcontractor must send or serve its notice of lien claim within 90 days after "completion" of his work in order for the claim for lien to be enforceable. 770 ILCS 60/24(a) (West 2006). Plaintiff's notice of lien claim under section 24(a), a copy of which is included in the record, describes the subject property, recites the

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No. 1-09-0900 balance due plaintiff under its subcontract with Premier, and is signed by plaintiff's "authorized agent." On August 30, 2007, plaintiff caused an original subcontractor's claim for lien in the amount of $20,176.99 to be filed with the office of the Cook County recorder of deeds as document number 0724260048. On June 10, 2008, plaintiff filed its complaint in the instant action, count I of which, as noted, seeks to foreclose on its subcontractor's mechanics lien. On September 26, 2008, the Schwartzes, in lieu of filing an answer to plaintiff's complaint, filed a motion to dismiss count I of plaintiff's complaint pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2006)) claiming that, in the case of an owner-occupied singlefamily residence, section 5(b)(ii) of the Act (770 ILCS 60/5(b)(ii) (West 2006)) requires a subcontractor to provide the owner of the residence with the statutorily prescribed form of notice within 60 days of first furnishing labor or material. The Schwartzes further claimed that a subcontractor's service of its claim for lien under section 24(a) of the Act (770 ILCS 60/24(a) (West 2006)) does not replace or obviate the need for the 60-day notice required under section 5(b)(ii) of the Act (770 ILCS 60/5(b)(ii) (West 2006)). The Schwartzes contended that count I of plaintiff's complaint should be dismissed because plaintiff's failure to provide the 60-day notice required under section 5(b)(ii) of the Act (770 ILCS 60/5(b)(ii) (West 2006)) rendered plaintiff's lien claim invalid. The Schwartzes motion to dismiss was verified by the affidavit of Marc K. Schwartz. In his affidavit, Marc attested that neither he nor his wife, Terri B. Schwartz, ever received a

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No. 1-09-0900 section 5 notice from plaintiff, and that although he requested a sworn contractor statement from Premier, he never received one. Neither the Schwartzes' motion to dismiss nor the attached affidavit claimed that the Schwartzes were prejudiced by plaintiff's failure to provide section 5(b)(ii) notice by payments already made to Premier. On November 10, 2008, plaintiff filed a response to the Schwartzes' motion to dismiss. In its response, plaintiff claimed that the motion to dismiss should be denied because the Schwartzes had an obligation under section 5 of the Act (770 ILCS 60/5 (West 2006)) to demand a sworn statement from Premier of all subcontractors' claims for work performed on the subject property, and to refuse payment to Premier if they did not receive such sworn statement. Plaintiff argued that the Schwartzes "failed to avail themselves" of the protections afforded them under section 5 of the Act (770 ILCS 60/5 (West 2006)) and, thus, cannot be relieved of liability to plaintiff. Plaintiff further argued that it complied with both sections 5(b) and 24(a) of the Act (770 ILCS 60/5(b), 24(a) (West 2006)), when it provided the 90-day notice of its lien claim and that the Schwartzes suffered no prejudice as a result of plaintiff's failure to comply with section 5(b)(ii) of the Act (770 ILCS 60/5(b)(ii) (West 2006)). On December 2, 2008, the Schwartzes filed a reply to plaintiff's response to their motion to dismiss. In their reply, the Schwartzes claimed that a showing of prejudice might be required under section 5(b)(iii) of the Act (770 ILCS 60/5(b)(iii) (West 2006)) had plaintiff served an untimely section 5(b)(ii) notice, but that a showing of prejudice is not germane in this case because plaintiff never provided a section 5(b)(ii) notice.

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No. 1-09-0900 On December 2, 2008, the trial court denied the Schwartzes' motion to dismiss finding that plaintiff's "90-day notice to owner constituted substantial compliance with the notice requirements under section 5(b)(ii) and 5(b)(iii) of the [Act]." On December 23, 2008, the Schwartzes' filed their motion to reconsider the denial of their motion to dismiss, or in the alternative, for an Illinois Supreme Court Rule 308(a) finding. On March 12, 2009, the trial court denied the motion to reconsider; however, it granted the motion for an Illinois Supreme Court Rule 308(a) finding. The trial court specifically found that a substantial ground for difference of opinion exists on the question of law set forth in the certified question before us, and that immediate appeal to this court from its December 2, 2008, and March 12, 2009, orders would materially advance the ultimate termination of this litigation. On April 9, 2009, the Schwartzes petitioned this court for leave to appeal pursuant to Illinois Supreme Court Rule 308. 155 Ill. 2d R. 308. On May 6, 2009, this court granted the petition, and this appeal followed. ANALYSIS Illinois Supreme Court Rule 308 provides a remedy of permissive appeal from interlocutory orders where the trial court has deemed that they involve a question of law as to which there is substantial ground for difference of opinion and where an immediate appeal from the order may materially advance the ultimate termination of the litigation. 155 Ill. 2d R. 308. We apply a de novo standard of review to legal questions presented in

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No. 1-09-0900 an interlocutory appeal brought pursuant to Supreme Court Rule 308. Anthony v. City of Chicago, 382 Ill. App. 3d 983, 987 (2008). In addition to the certified question we are asked to review, the Schwartzes urge us to reverse the trial court's denial of their motion to dismiss count I of plaintiff's complaint and the denial of their motion to reconsider that denial. The certified question asks: "Where a subcontractor asserts a claim for lien on an owneroccupied single-family residence and serves a 90-day notice as provided in Section 24 of the Mechanics Lien Act, does the subcontractor's failure to serve a 60-day notice as provided in Section 5(b) of the Mechanic's Lien Act render the claim for lien invalid?" The certified question is overly broad. We will interpret the certified question to ask only whether plaintiff's failure to serve a 60-day notice as provided in section 5(b) of the Act renders plaintiff's claim for lien invalid as a matter of law. We will then address the propriety of the trial court's finding that plaintiff's section 24(a) notice substantially complied with the requirements of section 5(b). See Burnette v. Stroger, 389 Ill. App. 3d 321, 332 (2009), quoting 155 Ill. 2d R. 308(a) (purpose of an immediate, interlocutory appeal is solely to " `materially advance the ultimate termination of the litigation' "). This interlocutory appeal requires us to construe certain sections of the Mechanics Lien Act (Act) (770 ILCS 60/0.01 et seq. (West 2006)). Questions of statutory construction are reviewed de novo. People ex rel. Devine v. Sharkey, 221 Ill. 2d 613, 617

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No. 1-09-0900 (2006). When construing a statute, our " `primary objective *** is to ascertain and give effect to the intent of the legislature.' " MidAmerica Bank, FSB v. Charter One Bank, FSB, 232 Ill. 2d 560, 565 (2009), quoting DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). The plain language of the statute is the most reliable indication of legislative intent. DeLuna, 223 Ill. 2d at 59. "[W]hen the language of the statute is clear, it must be applied as written without resort to aids or tools of interpretation." DeLuna, 223 Ill. 2d at 59. "The statute should be read as a whole and construed so that no part of it is rendered meaningless or superfluous." People v. Jones, 214 Ill. 2d 187, 193 (2005). Courts should not depart from a statute's plain language by reading into it exceptions, limitations, or conditions that conflict with the legislative intent. People v. Martinez, 184 Ill. 2d 547, 550 (1998). The central issue in this appeal is a construction of section 5 of the Act (770 ILCS 60/5 (West 2006)). We set forth section 5 of the Act completely in its current form, which provides as follows: "

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