Weydert Homes, Inc. v. Kammes

SUPREME COURT CASES

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State: Illinois

Court: 2nd District Appellate

Docket No: 2-08-0768 Rel

Case Date: 09/30/2009

Preview:No. 2--08--0768 Filed: 9-30-09 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ WEYDERT HOMES, INC., ) Appeal from the Circuit Court ) of Du Page County. Plaintiff-Appellant, ) ) v. ) No. 08--CH--1829 ) RICKEY A. KAMMES, Individually and ) as Trustee of the Rickey A. Kammes ) Living Trust, Dated August 17, 2005, ) ) Defendant-Appellee ) ) (MidAmerica Bank, FSB; Stock Building ) Supply Brown County, Wisconsin; RJS ) Concrete Construction, Inc.; Construction ) Honorable Debris Removal, LLC; Unknown Necessary ) Bonnie M. Wheaton, Parties; and Unknown Owners, Defendants). ) Judge, Presiding. _____________________________________________________________________________ PRESIDING JUSTICE ZENOFF delivered the opinion of the court: Plaintiff, Weydert Homes, Inc., appeals from an order dismissing its complaint to foreclose a mechanic's lien, for breach of contract, and for quantum meruit. We affirm in part, reverse in part, and remand for further proceedings. FACTS On January 11, 2007, plaintiff entered into a written contract with defendant Rickey A. Kammes in which plaintiff, as the general contractor, agreed to build a house for the price of

No. 2--08--0768 $216,800.1 According to plaintiff's complaint, it did additional work on the premises, in the amount of $40,145. On February 28, 2008, plaintiff recorded an "original contractor's claim for mechanic's lien" in which it averred that the written contract was entered into, plaintiff performed the work, plaintiff performed additional work in the amount of $40,145 at the request of the owner (Kammes), the date plaintiff last performed work was November 30, 2007, and there was due and owing to plaintiff the sum of $51,205 plus interest. According to an affidavit, plaintiff through its attorney and representative and Kammes and his attorney met at Fox Title Company in Sycamore, Illinois, on March 28, 2008, at which time Kammes's attorney requested a "sworn" contractor's statement showing the subcontractors and the amounts owed to each of them. Correspondence in the record shows that on April 8, 2008, Kammes's attorney requested that plaintiff produce a "current" sworn contractor's statement. Plaintiff had furnished a purported sworn statement dated December 18, 2007, signed by Brian Weydert as president of plaintiff. However, this statement was not notarized. Although plaintiff denies that Kammes requested a sworn statement in March, it is undisputed that plaintiff did not furnish a sworn statement pursuant to Kammes's April request. On May 13, 2008, plaintiff filed suit against Kammes and others unrelated to this appeal (a lender, subcontractor-lien claimants, and unknown necessary parties and owners). Count I sought to foreclose plaintiff's mechanic's lien, count II alleged breach of contract, and count III alleged quantum meruit as an alternative to count II. Kammes filed a motion to dismiss the complaint in its

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The complaint alleges that the agreement was entered into by Kammes either individually

or as trustee of the Rickey A. Kammes Living Trust dated August 17, 2005. The signature on the contract is simply "Rickey A. Kammes." -2-

No. 2--08--0768 entirety, claiming that plaintiff's refusal to provide a sworn contractor's statement after his demand defeated enforceability of the lien. The motion to dismiss further contended that count II, breach of contract, had to be dismissed because of the defective sworn contractor's statement and that count III, quantum meruit, should be dismissed because plaintiff had pleaded the existence of an express written contract. The trial court agreed with Kammes and dismissed the complaint on July 18, 2008. In its written order of that date, the trial court made an express written finding pursuant to Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)). This timely appeal followed. DISCUSSION DISMISSAL OF THE COUNT TO FORECLOSE MECHANIC'S LIEN Plaintiff's first contention is that the trial court erred in dismissing count I, in which it sought to foreclose its mechanic's lien. The trial court held that plaintiff's failure to furnish a new sworn contractor's statement after Kammes's request forfeited plaintiff's lien rights. In response to plaintiff's question at the hearing on the motion to dismiss, the trial court opined that the December 18, 2007, sworn contractor's statement was legally insufficient, although the court stated, "I don't think it matters. *** I think I don't even have to reach the issue of whether that was sufficient or not." The trial court dismissed count I pursuant to section 2--619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2--619(a)(9) (West 2006)). A section 2--619 motion to dismiss admits the legal sufficiency of the complaint while it raises defenses, defects, or other affirmative matters that defeat the claim. Fuller Family Holdings, LLC v. Northern Trust Co., 371 Ill. App. 3d 605, 613 (2007). The court accepts as true well-pleaded allegations. Fuller, 371 Ill. App. 3d at 613. An action will be dismissed under section 2--619 if after construing the pleadings and supporting

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No. 2--08--0768 documents in the light most favorable to the nonmoving party, the court finds that no set of facts can be proved upon which relief can be granted. Fuller, 371 Ill. App. 3d at 613. The question is whether there is a genuine issue of material fact that precludes dismissal or whether dismissal is proper as a matter of law. Fuller, 371 Ill. App. 3d at 613. Our review is de novo. Fuller, 371 Ill. App. 3d at 613. The affirmative matter Kammes raised in his motion to dismiss was that he demanded a "current" sworn contractor's statement, which plaintiff refused to furnish. The purpose of the Mechanics Lien Act (Act) (770 ILCS 60/1 et seq. (West 2006)) is to permit the contractor a lien upon the property where a benefit has been received by the owner and the value of the property has been increased or improved by the furnishing of labor or materials. Northwest Millwork Co. v. Komperda, 338 Ill. App. 3d 997, 1000 (2003). The rights created under the Act are statutory and in derogation of the common law, and the technical and procedural requirements necessary for a party to invoke the benefits of the Act must be strictly construed. Westcon/Dillingham Microtunneling v. Walsh Construction Co., 319 Ill. App. 3d 870, 877 (2001). Once a plaintiff has complied with the procedural requirements, the Act is liberally construed in order to accomplish its remedial purpose. Westcon/Dillingham, 319 Ill. App. 3d at 877. Section 5 of the Act provides in relevant part: "(a) It shall be the duty of the contractor to give the owner, and the duty of the owner to require of the contractor, before the owner or his agent, architect, or superintendent shall pay or cause to be paid to the contractor or to his order any moneys or other consideration due or to become due to the contractor, or make or cause to be made to the contractor any advancement of any moneys or any other consideration, a statement in writing, under oath or verified by affidavit, of the names and addresses of all parties furnishing labor, services,

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No. 2--08--0768 material, fixtures, apparatus or machinery, forms or form work and of the amounts due or to become due to each. Merchants and dealers in materials only shall not be required to make statements required in this Section. (b) The following shall apply to an owner-occupied single-family residence: (i) Each contractor shall provide the owner or his or her agent, either as part of the contract or as a separate printed statement given before the owner or his agent makes the first payment for labor, materials, fixtures, apparatus or machinery, the following: 'THE LAW REQUIRES THAT THE CONTRACTOR SHALL SUBMIT A SWORN STATEMENT OF PERSONS FURNISHING LABOR, SERVICES, MATERIAL, FIXTURES, APPARATUS OR MACHINERY, FORMS OR FORM WORK BEFORE ANY PAYMENTS ARE REQUIRED TO BE MADE TO THE CONTRACTOR.' " 770 ILCS 60/5 (West 2006). Plaintiff gave Kammes what it asserts was a statement under oath dated December 18, 2007, that complied with the requirements of section 5. At the top of the document there appeared the following language: "The affiant, Brian Weydert, being duly sworn on oath deposes and says that he is the President of Weydert Homes, Inc. and the General Contractor for the construction of a single family residence in Wheaton, IL, owned by Rick Kammes." The body of the document listed the names of subcontractors, a column of numbers preceded by dollar signs, and a column briefly describing the purposes of some of the expenditures. Below these three columns appeared "Net Amount This Payment: $51,205.00" and "Balance To Come Due $91,350.00." Brian Weydert's signature appeared on the signature line at the bottom of the document, followed by his office and

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No. 2--08--0768 the date "12/18/07." Below Weydert's signature were the typewritten words, "Subscribed and Sworn to before me this 31st day of October 2006," next to which was a blank line with the word "Seal" typed beneath it. While the document was signed by Brian Weydert as president of Weydert Homes, Inc., it was not notarized. Plaintiff argues that section 5 allows the statement either to be made under oath or to be verified by affidavit. As the first sentence of the document recites that Brian Weydert was "duly sworn on oath," plaintiff reasons that the document was made under oath. The court's primary objective in construing the meaning of a statute 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). The plain language of the statute is the most reliable indication of the legislature's objectives, and when the language is clear, it must be applied as written without resort to aids or tools of construction. MidAmerica Bank, 232 Ill. 2d at 565. The word "or" is disjunctive. In re Application of County Treasurer, 373 Ill. App. 3d 679, 694 (2007). A disjunctive connotes two different alternatives; thus, as used in its ordinary sense, the word "or" indicates that the various parts of the sentence it connects are to be taken separately. County Treasurer, 373 Ill. App. 3d at 694. A legal commentator has recognized a distinction between an oath and an affidavit. "An oath, which has been defined as any form of attestation by which a person signifies that he or she is bound in conscience to perform an act faithfully and truthfully, is distinguished from an affidavit, which is a voluntary written statement of fact under oath sworn to or affirmed by the person making it before some person who has authority under the law to administer oaths and officially certified by the officer under his or her seal of office. The difference between an affidavit and an oath is that an affidavit consists of a

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No. 2--08--0768 statement of fact, which is sworn to as the truth, while an oath is a pledge." 58 Am. Jur. 2d Oath & Affirmation

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