No. 2--00--0590
March 30, 2001

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JUSTICE GROMETER delivered the opinion of the court:

The circuit court of Lake County entered an order releasingcertain funds to Glenbrook Excavating and Concrete, Inc.(Glenbrook). These funds were released to satisfy a lien assertedunder section 23 of the Mechanics Lien Act (Act) (770 ILCS 60/23(West 1998)) arising out of a construction project for Lake Countyon which Glenbrook was a subcontractor. Westcon/DillinghamMicrotunneling, a joint venture of Westcon Microtunneling and theDillingham Construction Company, (collectively, Westcon) was asecond subcontractor on the project and had previously asserted itssimilar lien and now appeals the circuit court's order. We affirm.

BACKGROUND

Walsh Construction Company of Illinois (Walsh) contracted withLake County to install a sewer system. Westcon, the plaintiff-appellant, then entered into a contract with Walsh whereby Westconwas to install approximately 9,000 linear feet of sewer line. Bothcontracts provided that a party would be entitled to additionalcompensation if, during the course of installation, it encounteredsubsurface conditions of an unusual nature. In its complaint,Westcon alleged that it encountered excessive boulders whileinstalling the line, causing Westcon to perform additional work. Westcon further alleged that it provided notice of theseconditions, as required under the contract, and the countyresponded that Westcon's claims for additional payments would bereviewed and compensated on a case-by-case basis. Westcon sentnotice of its claim for a mechanics lien to Lake County on August18, 1998. The notice stated that Westcon was entitled to a$266,484.85 "payment for retention," and $1,048,581.61 foradditional work performed due to differing site conditions.

Westcon filed two actions in November 1998, which weresubsequently consolidated. The first action was a two-countcomplaint naming Walsh as defendant. In count I of the complaint,Westcon sought to foreclose a mechanics lien it had assertedagainst funds held by Lake County. Count II sought recovery on acontract theory from Walsh. The second was an action on acontractor's bond, naming Walsh and its surety as defendants. Walsh filed a third-party complaint against Lake County, seekingindemnity in the event Walsh was held liable to Westcon.

On May 13, 1999, Westcon filed a motion seeking to compel LakeCounty to release $266,484.85 of the amount it was claiming. Themotion was granted, with all parties in agreement. Glenbrook wasnot a party at this time. The court's order provided thatWestcon's mechanics lien would be reduced by this amount. In itsprayer for relief, Westcon explicitly sought to reserve its rightto seek compensation for the additional work performed on the sewerproject.

On February 14, 2000, Glenbrook filed a petition to intervene. Like Westcon, Glenbrook was a subcontractor on the sewerconstruction project. Glenbrook alleged that it was owed$427,323.31 for work on the sewer system. On the same day,Glenbrook filed a motion to release this amount. Glenbrook hadpreviously notified Lake County of its claim for a mechanics lienon February 8, 2000.

On March 27, 2000, Lake County filed a motion for leave todeposit the remainder of the funds, which it had retained inresponse to Westcon's and Glenbrook's liens, with the clerk of thecourt. The county stated that it had retained $769,395.97, whichwas the amount that remained due on the original contract. Westconopposed this motion, arguing that section 23 of the Act requiredthe county to deposit an amount sufficient to satisfy all liens. In light of Westcon's claim for compensation for additional workperformed, the amount the county sought to deposit would have beeninsufficient.

On April 18, 2000, the trial court granted Lake County'smotion to deposit with the clerk of the court the balance of thefunds it had retained. This order has not been appealed. Thecourt noted that allowing this motion would not prejudice Westcon. Regarding Glenbrook's motion to release funds, the court indicatedthat it considered Westcon's earlier receipt of funds pursuant toits own motion to release as a waiver of any objection toGlenbrook's motion. The trial court allowed Westcon 30 days toreturn these funds to the court clerk so that they could beproportionally distributed. Westcon declined to do so.

On May 19, 2000, the trial court granted Glenbrook's motion torelease funds. The court termed this order a "turnover order." Inruling, the court noted that Westcon had received all amounts dueto it under the original contract. The court noted that theadditional amount Westcon was claiming as a result of unusualsubsurface conditions was, in actuality, a claim for an amountoutside the original contract. Thus, this claim was for fundsother than those previously withheld by the county. As such,Westcon's claim involved a new and separate fund that the countywould have to furnish if Westcon were to succeed on its contractclaim. The court stayed the enforcement of this order until June1, 2000, on Westcon's motion.

ANALYSIS

As a preliminary matter, we must address Glenbrook'scontention that this court lacks jurisdiction to decide thisappeal. Glenbrook asserts that Westcon's notice of appeal waspremature. The notice was filed on May 31, 2000. On May 19, 2000, the court entered its order releasing funds to Glenbrook; however,the court stayed the enforcement of this order until June 1, 2000. According to Glenbrook, the trial court's judgment did not becomefinal until the date it became effective. Since Westcon filed itsnotice before this date, Glenbrook argues its notice was premature.

Supreme Court Rule 303(a) provides that a notice of appealmust be filed "within 30 days after the entry of the final judgmentappealed from." 155 Ill. 2d R. 303. However, where a timely,posttrial motion directed against the judgment has been filed, thenotice must be filed within 30 days of the order disposing of thatmotion. 155 Ill. 2d R. 303. Compliance with this rule isnecessary to vest the appellate court with jurisdiction. Berg v.Allied Security, Inc., 193 Ill. 2d 186, 189 (2000). For thepurpose of this rule, a posttrial motion directed against thejudgment is one that requests one of the types of relief set forthin section 2--1203 of the Code of Civil Procedure (735 ILCS 5/2--1203 (West 1998)). Marsh v. Evangelical Covenant Church, 138 Ill.2d 458, 461 (1990). Section 2--1203 allows parties to file motionsfor rehearing, retrial, modification of the judgment, or vacationof the judgment. 735 ILCS 5/2--1203 (West 1998). Westcon's motionto stay the enforcement of the trial court's "turnover order"sought none of the types of relief set forth in section 2--1203. Thus, it was not a posttrial motion within the meaning of Rule 303. See Giammanco v. Giammanco, 253 Ill. App. 3d 750, 755 (1993). Anorder staying the enforcement of a judgment is collateral to thejudgment and does not affect or alter the issues on appeal. See Inre Estate of Goodlett, 225 Ill. App. 3d 581, 587 (1992). In otherwords, this motion, and the resulting order, were not directedagainst the judgment. Thus, the fact that the notice of appeal wasfiled while the enforcement of the judgment was stayed does notdeprive this court of jurisdiction. Westcon properly filed itsnotice of appeal within 30 days of the trial court's "turnoverorder."

Turning to the merits of this appeal, we must first determinewhether the trial court had the authority to order funds to bereleased to Glenbrook. Westcon contends that it did not. According to Westcon, the plain language of the statute governingliens against public funds requires that funds sufficient tosatisfy a lien be withheld until "final adjudication of the suit ishad." 770 ILCS 60/23(b) (West 1998). We disagree.

In construing a statute, the primary goal is to give effect tothe intent of the legislature. Country Mutual Insurance Co. v.Universal Underwriters Insurance Co., 316 Ill. App. 3d 161, 164(2000). The plain language of the statute is the best indicationof the legislature's intent. Premier Property Management, Inc. v.Chavez, 191 Ill. 2d 101, 121 (2000). A statute should be construed so that none of its language is superfluous or meaningless. TTXCo. v. Whitley, 313 Ill. App. 3d 536, 543 (2000). Where a statutecontains both general and specific provisions, the specificprovision controls to the extent that it is applicable. People v.Villarreal, 152 Ill. 2d 368, 379 (1992). Statutory construction isa question of law. Northwest Airlines, Inc. v. Department ofRevenue, 295 Ill. App. 3d 889, 892 (1998).

Section 23(b) of the Act allows a subcontractor working on apublic improvement project to assert a lien against payments due orbecoming due the general contractor. R.W. Dunteman Co. v. C/GEnterprises, Inc., 181 Ill. 2d 153, 164-65 (1998). Once a lien isasserted, the public body must withhold sufficient funds to coverthe amount of the lien. Consolidated Construction Co. v. MalanConstruction Corp., 42 Ill. App. 2d 272, 276 (1963). If thesubcontractor claiming a lien files a complaint for an accountingwithin 90 days, "the amount claimed shall be withheld until thefinal adjudication of the suit is had." 770 ILCS 60/23(b) (West1998). The statute goes on to state:

"Provided, that the clerk or secretary, as the case may be, towhom a copy of the complaint is delivered as herein providedmay pay over to the clerk of the court in which such suit ispending a sum sufficient to pay the amount claimed to abidethe result of such suit and be distributed according to thejudgment rendered or other court order." 770 ILCS 60/23(b)(West 1998).

Thus, the public body has the option of retaining the funds itselfor depositing them with the clerk of the court. In the presentcase, Lake County chose the latter option.

Once the retained funds are in the possession of the clerk ofthe court, the plain language of the statute states that they maybe distributed by an order of the court. That the statute refersto both "judgment[s]" and "other court order[s]" indicates that theorder may be something less than a final judgment. Any otherinterpretation would render "other court order" mere surplusage,which would violate a basic principle of statutory construction. See TTX Co., 313 Ill. App. 3d at 543. Furthermore, becausespecific provisions take precedence over general provisions (seeVillarreal, 152 Ill. 2d at 379), the portion of the statute statingfunds may be distributed by "other court order" controls where, ashere, the funds are in the possession of the court clerk. Westcon's reliance on the portion of the statute stating funds mustbe held until final adjudication is misplaced. This languageappears in the portion of the statute that applies when the publicbody is holding the funds. It does not occur in the portion of thestatute addressing what shall take place when the funds aredeposited by the public body and held by the clerk of court.

Without explanation, Westcon asserts that the portion of thestatute allowing disbursement by "other court order" (770 ILCS60/23(b) (West 1998)) must be read in context and that such areading clearly demonstrates this language applies only where thereis but one lienholder. We are unable to discern Westcon's meaning. We note that the language Westcon relies on to support its argumentthat funds must be withheld until final judgment is part of thesame passage. Assuming Westcon is correct, then the "finaladjudication" language (770 ILCS 60/23(b) (West 1998)) it relies onis also inapplicable when more than one lienholder is involved. Because the plain language of section 23(b) states that fundsdeposited with a court clerk may be released by "other courtorder," we hold that the trial court had the authority to releasefunds held by the clerk with an order issued prior to finaljudgment.

Having concluded that the trial court had the authority torelease the funds in question, the question remains as to whetherthe court exercised this authority in an appropriate manner. Although we would affirm on a less deferential standard of review,we conclude that the abuse-of-discretion standard is proper here. We emphasize that a trial court's discretion is limited tofashioning an appropriate remedy. The question of whether a lienexists under section 23 is not a matter within the discretion of atrial court. See Prior v. First National Bank & Trust Co., 231Ill. App. 3d 331, 333 (1992). In this case, the court's order wassimilar to a mandatory injunction, ordering the clerk to releasefunds to Glenbrook. The propriety of an injunction is reviewedunder the abuse-of-discretion standard. People v. Studio 20, Inc.314 Ill. App. 3d 1000, 1004 (2000). Furthermore, as will be seenbelow, the trial court possessed the discretion to order anappropriate remedy.

While numerous cases have discussed the procedures a plaintiffmust follow to obtain relief under section 23 of the Act, few haveaddressed the remedies available to such plaintiffs. The purposeof the Act is to protect those who, in good faith, have furnishedmaterial and labor for the construction of buildings or publicimprovements. Premier Electrical Construction Co. v. AmericanNational Bank, 276 Ill. App. 3d 816, 821 (1995). Section 39 of theAct states that "[t]his act is and shall be liberally construed asa remedial act." 770 ILCS 60/39 (West 1998). Nevertheless,because the rights created are statutory and in derogation ofcommon law, the technical and procedural requirements necessary fora party to invoke the protection of the Act must be strictlyconstrued. Prior, 231 Ill. App. 3d at 333. But see Walker ProcessEquipment v. Advance Mechanical Systems, Inc., 282 Ill App. 3d 452,455 (1996) (noting that courts have been willing to considersubstantial-compliance arguments despite strict construction of theprocedural provisions of the Act where a technical constructionwould undermine its purposes). Once a plaintiff has complied withthe procedural requirements upon which a right to a lien is based,the Act should be liberally construed in order to accomplish itsremedial purpose. Delaney Electric Co. v. Schiessle, 235 Ill. App.3d 258, 265 (1992). Accordingly, once a lien exists, a court hasdiscretion in shaping a remedy for claims brought under section 23. See Schick-Johnson Co. v. Malan Construction Corp., 49 Ill. App. 2d277, 285 (1964).

It is well established that the creation of a mechanics lienis entirely governed by the Act, and the rules of equityjurisprudence are irrelevant at this stage. Wingler v. Niblack, 58Ill. App. 3d 287, 289 (1978); Wise v. Jerome, 5 Ill. App. 2d 214,221 (1955); see also Hill Behan Lumber Co. v. Marchese, 1 Ill. App.3d 789, 792 (1971) ("We are unable to find any authority whichwould grant an equitable lien in a situation where it would havebeen appropriate to impose a mechanic's lien had there beencompliance with the statute"); Gunther v. O'Brien BrothersConstruction Co., 369 Ill. 362, 370 (1938) ("Mechanics' liens arestatutory, and all that may be considered in determining whetherthey exist or not, is what the statute creating them contains"). However, equitable principles are relevant in crafting anappropriate remedy. Section 23 provides that, after asubcontractor gives notice of a lien, it must institute an actionfor an accounting against the general contractor within 90 days. 770 ILCS 60/23(b) (West 1998). An accounting is an equitableaction. Tarin v. Pellonari, 253 Ill. App. 3d 542, 555 (1993). Thus, the plain language of the statute leads a court into therealm of equity once the statutory procedures for creating a lienhave been observed.

In fashioning a remedy, courts have broad discretion to grantthe relief that equity requires. Tully v. Edgar, 286 Ill. App. 3d838, 847 (1997). Relevant considerations include both what is fairand what is workable. In re Marriage of Rogers, 283 Ill. App. 3d719, 723 (1996). Any prejudice inuring to a party must be takeninto account. Rosewood Corp. v. Transamerica Insurance Co., 8 Ill.App. 3d 592, 597 (1972). Additionally, courts may consider therelative benefits and hardships to the parties in crafting anappropriate remedy. Glenn v. City of Chicago, 256 Ill. App. 3d825, 841 (1993).

In the present case, the trial court grounded its decision torelease funds to Glenbrook on several bases. The court observedthat Westcon had received all that it was due under the originalcontract and that the amount it was now claiming was for additionalwork performed. In fact, Westcon received the last of the money itwas due on the original contract through a motion to release funds,like the one brought by Glenbrook that is at issue here. Glenbrook, conversely, had not been paid for all of its work underthe original contract and was not claiming compensation foradditional work. The trial court noted that Westcon had analternate avenue for recovery through the contract action it hadinstituted against Walsh and that any amount coming due as a resultof that action would be subject to a lien. Furthermore, Westcon'srecovery on the contract would not be limited to the funds held bythe court clerk. Alternatively, if Westcon does not prevail in itscontract action, preclusion principles would prevent it fromclaiming any of these funds. Thus, Westcon suffered no prejudicebecause of the court's order. A contrary order would have workeda hardship against Glenbrook in denying it access to itscompensation while being of no value to Westcon.

Westcon points out that Glenbrook had alternate means to seekrecovery as well. However, Glenbrook's claim to the released fundswas undisputed. Westcon's claim for additional compensation wasalready the subject of litigation. While there was no need forGlenbrook to engage in further litigation, Westcon needed to bringa contract action in order to prove its entitlement to furthercompensation. Although both parties could have sought recoverythrough alternate means, Westcon was in a position where it had todo so. Thus, the fact that Glenbrook could have instituted otheractions has little bearing on this case. There is no reason torequire Glenbrook to wait to receive what it is due while Westconlitigates its claim for additional compensation.

Westcon argues that the trial court ignored the plain languageof section 23 and instead relied on its "own notions of equity" inreleasing funds to Glenbrook. Westcon cites two case in support ofits argument; however, both are distinguishable. The firstinvolved an interpretation of a portion of the Illinois InsuranceCode (215 ILCS 5/187 et seq. (West 1998)). In re Liquidation ofCoronet Insurance Co., 298 Ill. App. 3d 411 (1998). In that case,the trial court's rulings were found to be contrary to theunderlying purpose of the Insurance Code. In re Liquidation ofCoronet Insurance Co., 298 Ill. App. 3d at 418. In the presentcase, the trial court's order was consistent with the purpose ofthe Act, which is to protect those who, in good faith, havefurnished material and labor for the construction of publicbuildings or improvements. Premier Electrical Construction Co.,276 Ill. App. 3d at 821. The trial court's order furthered thispurpose regarding Glenbrook while thwarting it in no way regardingWestcon. Thus, the trial court was not relying on its own notionsof equity. Rather, it was exercising its discretion in a mannerconsistent with the purposes of the Act.

The second case involved the interpretation of the provisionsof a pension plan. Siss v. United States Steel Corp., 34 Ill. App.3d 62 (1975). In that case, the appellate court noted that a courthas no power to stretch the meaning of words to make the planconform with its own notion of equity. Siss, 34 Ill. App. 3d at66. The trial court in the present case did not engage in any suchexercise. In fact, in selecting a remedy, the trial court was notinterpreting the statute; it was exercising its discretion. Thisexercise of discretion was consistent with the purpose of the Actand the legislature's dictate that these liens be resolved in anaccounting action.

Finally, we find no merit in Westcon's argument that the trialcourt's order constituted a preference between lienholders inviolation of section 23(d) (770 ILCS 60/23(d) (West 1998)). Thestatute provides that "all shall be paid pro rata in proportion tothe amount due under their respective contracts." 770 ILCS60/23(d) (West 1998). Based on the facts of this case, thisprovision does not apply. If Westcon prevails in its contractaction, additional funds will be available to satisfy that claim. If unsuccessful, Westcon has already received all that it was due. Given the facts of this case as presented to us, neither Westconnor Glenbrook will be limited to a pro rata recovery of the fundsheld by the clerk. Furthermore, we note that section 23(d)concerns the liability of public officials who fail to withholdfunds after being notified of a claimant's lien. Thus, thelanguage mandating pro rata recovery appears in a portion ofsection 23 not at issue in the present case.

CONCLUSION

In light of our disposition, we need not address whetherWestcon's refusal to redeposit monies it received from its earliermotion to release funds constituted a waiver of any objection toGlenbrook's subsequent motion. We do not understand what Westconwas seeking to accomplish in opposing Glenbrook's motion to releasefunds and pursuing this appeal. Whether Westcon succeeds or failsin its contract action, adequate funds will be available to satisfyany recovery. In either event, Glenbrook would eventually receivethe full amount it claimed. This court can perceive no reason tomake Glenbrook wait to receive the amount it was due.

Accordingly, the order of the circuit court of Lake Countyreleasing funds to Glenbrook is affirmed.

Affirmed

HUTCHINSON, P.J., concurs.

JUSTICE McLAREN, specially concurring:

I specially concur because I wish to emphasize a point thatthe majority decision does not address but that was raised below,ruled upon by the court below, and simplistically disposed of bythe cause and this appeal.

The appellant received a payment based upon its lien claim butstrenuously argues that another lien claimant is not entitled tosuch a distribution. The appellant's brief states that thedistribution was invalid because the pertinent statute does notauthorize such a distribution. The trial court considered theargument, recognized the patent inconsistency, and suggested thatthe appellant should return the distributed funds. The appellantrefused and continues to claim that not only is the refusal not awaiver but that the position is not inconsistent. The argument ofthe appellant seems to be that there was an agreement between theparties to distribute the funds to it prior to the appearance ofthe appellee in the proceedings. The appellant does not cite anyauthority that allows a distribution, in violation of thecontrolling statute, merely because the parties agreed to"disregard" the statute. The trial court called this patentinconsistency a waiver. I submit it is called judicial estoppel. Judicial estoppel provides that, when a party assumes aparticular position in a legal proceeding, that party is estoppedfrom asserting a contrary position in a subsequent proceeding. Thedoctrine applies only when the following elements are established:(1) two positions have been taken by the same party; (2) thepositions were taken in separate or quasi-judicial administrativeproceedings; (3) the party intended that the trier of fact acceptthe truth of the facts alleged in support of the positions; (4) theparty was successful in asserting the first position and receivedsome benefit in the first proceeding; and (5) the two positionswere inconsistent. People v. Coffin, 305 Ill. App. 3d 595, 598(1999). All of the elements are present in this case. Regardingthe second element, the requirement that the positions be taken indifferent proceedings is to provide finality to the position takenin the first proceeding. Appellant's rationalization regarding itsdifferent positions is that the parties agreed to the distribution. Without the appellee's participation, this argument effectivelybifurcates this proceeding into two proceedings, namely, the "pre"and "post" appearances by the appellee. This attempt to hide thepatent inconsistency, if the proceeding was considered oneproceeding, is not ameliorated by attempting to claim that thereare essentially two proceedings: one with an agreement and onewithout an agreement.

Although I agree with the majority opinion, I feel that thepatent deficiency of the appellant's inconsistent position is alsodispositive.