APPEAL from the Circuit Court of Cook County; the Hon. MICHAEL
F. CHAJA, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order granting the amended motion of defendants Nick J. Brown and Mary L. Brown to dismiss as to them plaintiff's complaint to foreclose a mechanic's lien. We reverse.
The issues presented for review are: (1) whether the trial court properly considered an affidavit and documents attached to defendants' motion; (2) whether the Browns were "purchasers" as contemplated by section 7 of the mechanics' liens act (Ill. Rev. Stat. 1977, ch. 82, par. 1 et seq.) or purchasers pendente lite; and (3) whether it was necessary for plaintiff to allege the filing of a claim for a lien or attach the claim to its complaint.
As this matter arises on a motion to dismiss, all well pleaded facts alleged in the complaint are taken as true. (McCauley v. Chicago Board of Education (1978), 66 Ill. App.3d 676, 384 N.E.2d 100.) On July 3, 1979, 21 months subsequent to its alleged performance of the contract, plaintiff filed a three-count verified complaint to foreclose a mechanic's lien naming as defendants Jeffry S. and Doris N. Wineman (Winemans), the Browns, and "unknown owners." On the same date a notice of the filing and pendency of said suit was filed in the office of the Recorder of Deeds. Ill. Rev. Stat. 1977, ch. 110, par. 405.
The complaint alleges the following: that plaintiff was a duly authorized Illinois corporation; that on or about March 19, 1977, the Winemans were owners in fee simple of certain real estate; that on March 19, 1977, plaintiff and the Winemans entered into a written contract in which plaintiff agreed to sell kitchen cabinetry, countertops and other appliances and materials to the Winemans as well as install the countertops; that plaintiff delivered the materials purchased and installed the kitchen countertops as required by the contract terms; and that its performance was completed or substantially completed on October 4, 1977. The complaint further alleged that payment of $7222.75 by the Winemans was due upon installation of the countertops but that the Winemans had only paid $4815.75, leaving a balance due and owing of $2407. Plaintiff alleges in paragraph 12 of count I that the Browns may have an interest in the premises but that the nature of the interest is unknown to plaintiff and on information and belief may be subject to plaintiff's lien. Paragraph 13 of count I alleges that certain unknown owners may also have an interest in the premises. The complaint does not allege that plaintiff ever filed a claim for a lien with the Cook County Recorder of Deeds.
The prayer for relief requested judgment that plaintiff is entitled to a lien upon the premises for the amount due under the contract; that in the event of default of payment the property be sold to satisfy that amount; and that upon such sale and a failure to redeem therefrom that the Winemans and all persons claiming under them be barred from all right or equity of redemption of the premises.
The Browns filed an amended motion to dismiss plaintiff's complaint as to them pursuant to sections 36, 45 and 48(1)(e) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, pars. 36, 45 and 48(1)(e)). The unverified motion alleged that on March 25, 1979, the Browns executed a real estate contract with the Winemans to purchase the subject property; that an escrow with Chicago Title & Trust Company was established on May 30, 1979; that the Winemans' warranty deed was deposited in the escrow on June 21, 1979; and that the purchase was completed on July 6, 1979. Attached to the amended motion were the affidavit by Nick J. Brown that "on or about July 6, 1979, he and his wife purchased the real estate * * * from [the Winemans]" and photocopies of the real estate contract and the escrow receipt which were not certified nor otherwise authenticated. The affidavit and copy of the receipt were incorporated by reference in the amended motion. The copy of the contract was not.
The amended motion further alleged that the single paragraph of the complaint referring to the Browns failed to plead any facts showing plaintiff's cause of action against the Browns and thus lacked the specificity required by section 45 of the Civil Practice Act; that the complaint failed to allege either the filing of a claim for lien or of a suit within four months after the performance of the contract; that in fact suit was not filed until 21 months after the alleged completion date; that section 7 of the mechanics' liens act (Ill. Rev. Stat. 1977, ch. 82, par. 7) requires that plaintiff file such a claim or bring suit within four months in order to enforce its lien against or to the prejudice of any purchaser; that the Browns were purchasers entitled to the protection of section 7; and that as plaintiff's complaint failed to allege that either of these steps had been taken, plaintiff was barred from enforcing a mechanic's lien. Finally, the amended motion alleged that the complaint failed to attach the necessary exhibit showing plaintiff had a cause of action against the Browns as required by section 36 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 36).
Plaintiff filed an answer to the amended motion. It alleged that the amended motion should be stricken for combining a request for relief under separate practice act provisions; that defendants' amended motion should be denied as the filing of the suit made the filing of a claim unnecessary; that defendants are charged with knowledge of the claim by reason of the suit and the filing of lis pendens; that defendants did not deny knowledge of the claim; that defendants admitted purchasing the property after plaintiff's foreclosure suit was filed; that defendants took title subject to plaintiff's lien; that the factual allegations contained in paragraph 1 of the amended motion (except as to the July 6, 1979, date of purchase) are beyond the scope of the court's inquiry pursuant to section 48(1) and (6) of the Illinois Civil Practice Act and are therefore to be disregarded; that no need exists to state a cause of action against the Browns who at best may have some interest subject to plaintiff; that plaintiff's action is brought under section 9 of the mechanics' liens act (Ill. Rev. Stat. 1977, ch. 82, par. 9) and not section 7 which is irrelevant; that even as purchasers the Browns must show that they were innocent purchasers, a present consideration, and that they had not agreed to take subject to the lien.
The parties each filed memoranda of law in support of their respective contentions. Following oral argument, the trial court entered an order finding the complaint insufficient in law as to the Browns for failure to comply with section 7 of the mechanics' liens act and dismissing the complaint with prejudice as to them. Plaintiff has appealed pursuant to Supreme Court Rule 304(a). Ill. Rev. Stat. 1977, ch. 110A, par. 304(a).
To properly address the contentions of both plaintiff and the Browns, it is first necessary to give consideration to the interrelationship between sections 7 and 9 of the mechanics' liens act. Section 7 states in pertinent part:
"§ 7. No contractor shall be allowed to enforce such lien against or to the prejudice of any other creditor or incumbrancer or purchaser, unless within four months after completion, or if extra or additional work is done or material is delivered therefor within four months after the completion of such extra or additional work or the final delivery of such extra or additional material, he shall either bring suit to enforce his lien therefor or shall file in the office of the recorder of deeds of the county * * * a claim for lien * * *. Such claim for lien may be filed at any time after the contract is made, and as to the owner may be filed at any time after the contract is made and within two years after the completion of said contract, or the ...