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W.d. Ht. & S. Mt. Co. v. R. Sch. & A.

OPINION FILED JANUARY 27, 1983.

WELL DONE HEATING & SHEET METAL CO., PLAINTIFF,

v.

, RALPH SCHWARTZ & ASSOCIATES ET AL., DEFENDANTS-APPELLANTS. — (STEVEN I. BROWN, INDIV. AND D/B/A CUSTOM CYCLE SALES, ET AL., DEFENDANTS-APPELLEES.)



Appeal from the Circuit Court of Cook County; the Hon. Franklin J. Kral, Judge, presiding.

PRESIDING JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Appellant was a contractor on a construction project for appellee, the owner of the property. After the work was completed a subcontractor filed suit to foreclose its mechanics' lien. Although appellant was joined as a defendant in the action, it did not file a counterclaim to foreclose its own lien until well after two years from the date of completion of the project. Accordingly appellee successfully moved to have appellant's lien expunged. The trial court also denied appellant's motion to amend its complaint to add a counterclaim seeking to foreclose the lien. We affirm, holding that:

(1) by statute (Ill. Rev. Stat. 1977, ch. 82, par. 9), the contractor to preserve its lien was required to file a suit or counterclaim within two years after completion of the contract. Since the contractor failed to do either within the two-year period, the lien was properly expunged; and

(2) liberal as section 46(2) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 46(2)), now section 2-616(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-616(b)), is, the appellant cannot, after the time for protecting its lien has passed, amend its answer to add a counterclaim to foreclose the lien.

On July 28, 1975, Steven Brown as owner, executed a construction contract with Bonnie Dee Builders, as contractor. According to the contract, the contractor was to construct an extensive addition to the owner's existing store. Disagreements arose during the course of construction. The owner contended the building was not completed on time, did not comply with city codes and was not constructed in a workmanlike manner. The contractor and various subcontractors filed mechanics' liens. It is not clear from the record exactly when the construction was completed, probably around June 1976.

On September 10, 1976, one subcontractor, Well Done Heating & Sheet Metal Co. (Well Done), filed suit to foreclose its mechanics' lien. It joined the owner, contractor, and several subcontractors who had or claimed a lien on the property. Well Done sought recovery against both the owner and the contractor. Contractor filed an answer which admitted all of the allegations of the complaint to foreclose including the allegation that contractor had or claimed a lien on the property. It asked that an accounting be taken by the court as to the amount due subcontractor; that subcontractor be decreed to be entitled to a mechanics' lien but that owner and not contractor be held liable for the amount due Well Done and that contractor be decreed free of said indebtedness. Well Done had asked that if the amount was not paid, the property be foreclosed and defendants (including contractor) be barred of all right in the premises. Contractor did not respond to the prayer. It also did not in any manner ask that its own lien be protected or foreclosed. Other subcontractors did file counterclaims for foreclosure of their mechanics' liens.

In 1979 the contractor filed a counterclaim in contract against the owner for the unpaid portion of the contract price. There was no request for foreclosure. In 1980 Well Done's claim was settled and its complaint dismissed with prejudice. Although such dismissal is prohibited by section 9 of the Mechanics' Lien Act (Ill. Rev. Stat. 1979, ch. 82, par. 9), except with the consent of the other lien claimants, there is no evidence in the record that contractor ever objected to this dismissal.

In 1982, about six years after the building was completed, owner moved to expunge the lien filed by contractor since no suit or counterclaim had been filed by contractor within the two years required by statute. The trial court held that the answer satisfied the requirements of the act but concluded that it became moot when the complaint was dismissed. It therefore granted the motion to expunge. The trial court also denied contractor's motion to amend its answer to add a cross-complaint to foreclose since that amendment set forth a new cause of action and was barred by the time limitations of section 9 of the Mechanics' Lien Act.

I

The contractor contends that section 9 of the Mechanics' Lien Act unambiguously provides that once a mechanics' lien claim has been filed by one lien claimant, an answer thereto by another lien claimant, filed within two years after the completion of the work, is sufficient to permit enforcement of the second claimant's lien; that the court may not require any further pleadings and that this has been the law in Illinois for over a century.

First of all it would appear that contractor's answer here was insufficient to set up a lien claim even under the old law. Those cases seem to hold that an answer setting forth fully the facts upon which a claim for a lien was founded, and asserting the lien against the fee title, thus asserting a claim for affirmative relief, is sufficient to set forth a claim for foreclosure. (E.W. Blatchford & Co. v. Blanchard (1895), 160 Ill. 115, 43 N.E. 794; Thielman v. Carr (1874), 75 Ill. 385; Gilbert v. Croshaw (1913), 178 Ill. App. 10; Shields v. Sorg (1906), 129 Ill. App. 266, aff'd (1908), 233 Ill. 79, 84 N.E. 181.) The answer in this case did not set forth fully the facts upon which a lien claim was founded or in any other way set out a claim for affirmative relief. To the contrary, contractor, while praying that only the owner be held liable, did not answer subcontractor's prayer that if the property be foreclosed, defendants, including contractor, be barred of all rights in the property.

• 1 We need not decide this question, however, since the statute was amended before contractor's answer was filed and no longer permits an answer to serve as a cross-bill or counterclaim as the statute provided. The statute prior to October 1, 1976, read:

"If payment shall not be made to the contractor having a lien by virtue of this act of any amount due when the same becomes due, then such contractor may bring suit to enforce his lien by complaint or petition in any court of competent jurisdiction in the county where the improvement is located, and in the event that the contract relates to two or more buildings or two or more lots or tracts of land, then all of said buildings and lots or tracts of land may be included in one complaint or petition. Any two or more persons having liens on the same property may join in bringing such suit, setting forth their respective rights in their complaint or petition; all lien claimants not made parties thereto may upon application become defendants and enforce their liens by answer to the complaint or petition in the nature of an intervening petition, and the same shall be taken as a counterclaim against all the parties to such suit; and the said complaint or petition shall not thereafter be dismissed as to any such lien claimant, or as to the owner or owners of the premises without the consent of such lien claimant. The plaintiff or petitioner, and all defendants to such complaint or petition may contest each other's right without any formal issue of record made up between them other than that shown upon the original complaint or petition, as well with respect to the amount due as to the right to the benefit of the lien claimed: Provided, that if by such contest by co-defendants any lien claimants be taken by surprise, the court may, in its discretion, as to such claim, grant a continuance. The court may render judgment against any party summoned and failing to appear, as in the other cases of default. Such suit shall be commenced or answer filed within two years after the completion of the contract, or completion of the extra or additional work, or furnishing of extra or additional material thereunder." (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 82, par. 9.)

(Earlier statutes were similar in wording.) But effective October 1, 1976, the statute now ...


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