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Barker-lubin Co. v. Unknown Heirs





APPEAL from the Circuit Court of Champaign County; the Hon. CREED D. TUCKER, Judge, presiding.


Plaintiff appeals from an order of the circuit court of Champaign County which dismissed with prejudice its amended complaint for foreclosure of a mechanic's lien against certain defendants. The trial court made the appropriate finding under Supreme Court Rule 304(a) (73 Ill.2d R. 304(a)).

The amended complaint is in two counts, each of which concerns three parcels of property. All parcels are in the same subdivision. The basis for the trial court's order was the failure of the plaintiff to allocate its claim among the six lots.

The essential allegations of each count are that the plaintiff is a Delaware corporation with its principal place of business in Springfield, Illinois, and that the defendant concerned in this appeal is the owner of three lots in a subdivision located in Champaign County, Illinois; that plaintiff entered into an agreement with the defendant's predecessor in title to furnish building materials for the construction of multiple dwellings upon the premises and did furnish such materials; that certain items were furnished on September 15, 1978, and others on October 27, 1978; that plaintiff caused to be served upon all interested parties a subcontractor's 90-day notice (Ill. Rev. Stat. 1979, ch. 82, par. 24) on December 14, 1978; and that a claim for mechanic's lien was filed in the office of the recorder of deeds of Champaign County (Ill. Rev. Stat. 1979, ch. 82, par. 7) on January 16, 1979. The instant foreclosure suit was then filed on September 29, 1980.

It is admitted, and the pleadings show, that neither the 90-day notice nor the claim for lien attempted to allocate the amount involved to any particular lot, but purported to be what is commonly called a "blanket" lien under a single contract.

The same thing is true of the amended complaint. In each count three lots in the same subdivision are named as the subject of the lien, but no attempt is made to allocate any particular amount of money to any one lot.

The trial court filed a memorandum which makes clear that in making its judgment of dismissal it relied almost entirely upon Schmidt v. Anderson (1911), 253 Ill. 29, 97 N.E. 291, and Dougherty-Janssen Co. v. Danage Enterprises, Inc. (1980), 80 Ill. App.3d 1112, 400 N.E.2d 1023.

We believe that the trial court has misconstrued Schmidt and its essential holding. If pursued to its logical extreme, the holding of the trial court would make impossible the filing of a blanket lien, which is specifically permitted by section 7 of the Mechanics' Liens Act.

In Schmidt four properties were involved, and the contractor attempted to impose a lien upon all of them under a single contract, even though work on three of them had been completed more than four months prior to the filing of the claim. The supreme court held in the negative, saying:

"* * * The vital question in this case is whether the legislature intended by these changes to permit such a claim to be filed against buildings erected on several different lots under one entire contract, even though the work on some of the houses had been performed and the materials for such houses were furnished more than four months before the claim for lien was filed or the suit begun to enforce the lien." (Emphasis added.) 253 Ill. 29, 32, 97 N.E. 291, 292.

It is thus apparent that the court's primary concern was with the four-month limitation period. The essence of its decision is that this period is not extended by the presence of a single contract covering several parcels of property. The onus still remains on the lien claimant, if he has not been paid, to take action within the limitations period. The court explained that the limitation was for the protection of third parties dealing with the property and that if this period were extended by reason of a single contract, such protection would be lost, a result obviously not intended by the legislature.

The essential holding of Schmidt, therefore, is that if a single contract covers several parcels and the work has been completed or the materials furnished on one or more of those parcels more than four months before the filing of the claim for lien or the filing of suit, then the amounts must be apportioned among the parcels remaining which are still within the four-month limitation. If no such apportionment is possible, then the entire lien will fail.

In Schmidt it was conceded that one property (the "Oak street house") was still within the four-month period, but the court said:

"* * * We are therefore constrained to hold that this claim for lien cannot be enforced, even for labor performed or material furnished as to the Oak street house, because there are no data in the claim wherefrom the proper amount could be ...

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