FOURTH DIVISION

FILED: 2/8/01

No. 1-00-0786

JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiff, Onsite Engineering & Management, Inc., doingbusiness as Onsite Environmental Staffing (Onsite), appeals from acircuit court order dismissing two counts of its first amendedcomplaint against the defendants, Illinois Tool Works, Inc. (ITW),3635 Touhy L.L.C. (3635 Touhy), and QST Environmental Incorporated,formerly known as Environmental Science & Engineering, Inc. (QST),and also from an order denying its motion for reconsideration ofthat ruling. For the following reasons, we affirm.

Onsite is a Maryland corporation engaged in the business oftemporary staffing services. Pursuant to the Business CorporationAct of 1983 (805 ILCS 5/1.01 et seq. (West 1994)), Onsite obtaineda certificate of authority to conduct business in Illinois on July27, 1995. On December 1, 1997, the Illinois Secretary of Staterevoked Onsite's certificate of authority for failure to file anannual report and failure to pay franchise taxes. Onsite did notobtain reinstatement of its certificate until December 1, 1999. Inthe interim, however, on March 31, 1999, Onsite initiated theinstant action by filing a four count complaint seeking, interalia, to foreclose on a mechanics' lien pursuant to the MechanicsLien Act (770 ILCS 60/0.01 et seq. (West 1996)) and for otherrelief in connection with certain work performed on a constructionproject located in Lincolnwood, Illinois (hereinafter LincolnwoodProject). QST served as the general contractor for the LincolnwoodProject, and ITW and 3635 Touhy own the property.

In its first amended complaint, Onsite alleged that, some timeprior to December 1995, QST entered into a contract with SmithTechnology Corporation, formerly known as Smith EnvironmentalTechnologies Corporation (Smith), pursuant to which Smith agreed toperform certain work on the Lincolnwood Project. Thereafter, onDecember 19, 1995, Smith and Onsite entered into a "NationalServices Agreement" (hereinafter agreement), pursuant to whichOnsite was to be Smith's sole source provider of temporary contractemployees. The agreement did not specify any particular type ofwork, project, or location of projects. Rather, it provided onlythat Onsite would furnish contract employees as requested by Smith"from time to time". Over the term of the agreement, Onsite hadprovided contract employees to Smith as requested for projects innumerous states, including Illinois. In October 1996, Smithallegedly requested, pursuant to their agreement, that Onsiteprovide laborers to perform environmental remediation work for theLincolnwood Project. According to Onsite, it fulfilled itsobligations under the agreement by supplying workers for thisproject from October 1996 through April 1997. As of May 1997,Smith allegedly owed Onsite approximately $67,000 for its staffingservices. Onsite alleged that, despite repeated demands, Smith paid only a fraction of that amount. As a result, in June 1997,Onsite served the defendants with a subcontractor's notice andclaim for a mechanics' lien in the amount of $46,984 pursuant tosection 24 of the Mechanics Lien Act (770 ILCS 60/24 (West 1996)),and recorded the lien in the office of the Cook County Recorder.

Counts I and II of Onsite's first amended complaint seekrelief against Smith and are not the subject of this appeal. InCount III, Onsite sought to foreclose on a mechanics' lien pursuantto section 24 of the Mechanics Lien Act. Count IV was an action toobtain a judgment in the amount of $46,984 against QST, as generalcontractor, and ITW and 3635 Touhy, as owners of the property,pursuant to section 28 of the Mechanics Lien Act (770 ILCS 60/28(West 1996)).

On August 3, 1999, ITW and 3635 Touhy filed a joint motion todismiss Counts III and IV of the first amended complaint pursuantto sections 2-615 and 2-619 of the Code of Civil Procedure (735ILCS 5/2-615, 2-619 (West 1998)). On the same day, QST filed asimilar motion. The two motions contained essentially the samearguments, namely that: (1) Onsite lacked the legal capacity tofile suit due to the revocation of its certificate of authorityand, as such, its complaint was a legal nullity that did not tollthe two year statute of limitations set forth in the Mechanics LienAct (770 ILCS 60/9 (West 1996)), which had expired in April 1999; (2) Onsite's claims failed because a temporary staffing agency isnot a subcontractor or secondary subcontractor entitled to a lienunder the Mechanics Lien Act; and (3) Onsite failed to allege thatany money was owed to Smith at the time Onsite gave its notice oflien to QST.

On November 3, 1999, the trial court granted the defendants'motions, finding that Onsite lacked the capacity to sue. The trialcourt dismissed Counts III and IV of the first amended complaintand included a Rule 304(a) (155 Ill. 2d R. 304(a)) finding thatthere is no just reason to delay the appeal or enforcement of itsorder. Thereafter, on December 3, 1999, Onsite filed a motion toreconsider, arguing that its certificate of authority had beenreinstated by the Secretary of State on December 1, 1999, and thatany lack of capacity to sue had been cured retroactively to thedate of revocation on December 1, 1997. Onsite also sought leaveto file a second amended complaint in response to certain pleadingdefects raised in the defendants' motions to dismiss. The trialcourt denied Onsite's motion on February 3, 2000, stating, interalia, that its claims were barred by the statute of limitations. The trial court again included a Rule 304(a) (155 Ill. 2d R.304(a)) finding. This appeal followed.

Onsite argues that the trial court's orders, dismissing CountsIII and IV of its first amended complaint and denying its motionfor reconsideration, should be reversed. It sets forth severalarguments in support of this contention, including that it had thecapacity to file suit and that it is a subcontractor entitled to amechanics' lien. We note that the parties devote a substantialportion of their briefs to the issue of Onsite's authority to filea complaint. However, since we can affirm on any basis in therecord (McGuire v. Ameritech Cellular Corp., 314 Ill. App. 3d 83,85, 731 N.E.2d 343 (2000)), we need address only one of thearguments raised by the parties; namely, whether Onsite, atemporary staffing agency, is a subcontractor or secondarysubcontractor entitled to relief under the Mechanics Lien Act.

Onsite contends that it is entitled to a lien because itfurnished labor to Smith, thereby falling under the definition ofsubcontractor set forth in section 21 of the Mechanics Lien Act,which provides:

"Subject to the provisions of Section 5, every mechanic,worker or other person who shall * * * furnish or performservices or labor for the contractor, * * * shall beknown under this Act as a sub-contractor, and shall havea lien for the value thereof, * * *." 770 ILCS 60/21(West 1996).

Onsite finds further support for its position in section 22 of theMechanics Lien Act, which provides:

"When the contractor shall sub-let his contract or aspecific portion thereof to a sub-contractor, the partyfurnishing material to or performing labor for such sub-contractor shall have a lien therefor; and may enforcehis lien in the same manner as is herein provided for theenforcement of liens by sub-contractors." 770 ILCS 60/22(West 1996).

Onsite argues that Smith sub-let the labor portion of its contractwith QST to Onsite and it is thus entitled to a lien.

Conversely, the defendants assert that Onsite is not asubcontractor because the National Services Agreement entered intoby Onsite and Smith is not a contract or subcontract specificallyrelated to the Lincolnwood Project. They thus conclude that Onsiteis not entitled to a lien. In support of their contentions, thedefendants rely on, and urge us to adopt, the reasoning ofSkillstaff of Colorado, Inc. v. Centex Real Estate Corp., 973 P.2d674 (Colo. App. 1998), wherein the Colorado Court of Appealsaddressed the question of whether a temporary staffing agency whichprovides a subcontractor with laborers is entitled to a mechanics'lien under Colorado law. In Skillstaff, the defendant, a generalcontractor for a housing development, entered into an agreementwith a company called OMJR, whereby OMJR became a framingsubcontractor for the project. OMJR subsequently entered into anagreement with the plaintiff, a temporary personnel agency,pursuant to which the plaintiff was to provide laborers to OMJR. The defendant paid OMJR, which in turn failed to pay the plaintiff. As a result, the plaintiff paid its laborers and then filed amechanics' lien.

As to the plaintiff's action to foreclose on its mechanics'lien, the trial court entered summary judgment in favor of thedefendant. The Colorado Court of Appeals affirmed, holding thatColorado's mechanics' lien statute protects those who performlabor, rather than those who merely furnish labor for the benefitof a contractor. Skillstaff, 973 P.2d at 675. Colorado lawprovides that "all persons of every class performing labor upon" aconstruction project shall have a lien. Skillstaff, 973 P.2d at676 (citing Colo. Rev. Stat.