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08/17/87 Gary L. Brown Painting & v. David E. Comeau

August 17, 1987

GARY L. BROWN PAINTING & DECORATING, LTD., PLAINTIFF-APPELLANT

v.

DAVID E. COMEAU, LTD., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

512 N.E.2d 795, 159 Ill. App. 3d 746, 111 Ill. Dec. 406 1987.IL.1190

Appeal from the Circuit Court of Kane County; the Hon. Marvin D. Dunn, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. HOPF and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

The plaintiff, Gary L. Brown Painting and Decorating, Ltd., appeals from the judgment of the circuit court which entered judgment on the pleadings in favor of the defendants William and Judith Regnery. On appeal, the plaintiff contends that the court erred when it found for the defendants for the reason that the 90-day notice required by section 24 of the Mechanics' Liens Act (Ill. Rev. Stat. 1985, ch. 82, par. 24) was never delivered as required. Defendants filed a motion pursuant to section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-611) for costs and fees of defending this appeal.

On June 26, 1984, the plaintiff, a subcontractor, entered into an agreement with David E. Comeau, Ltd., a general contractor, to provide labor and materials for painting, decorating, and drywalling at a single-family residence owned by the defendants, William and Judith Regnery. The plaintiff completed the work on July 20, 1984, with the sum of $4,840 due. On April 15, 1986, the plaintiff served a 14-day notice on the defendants pursuant to section 5 of the Mechanics' Liens Act (Ill. Rev. Stat. 1985, ch. 82, par. 5). On October 8, 1986, the plaintiff filed an amended complaint to foreclose the mechanic's lien wherein it alleged that the service of this notice preserved its lien for the funds claimed.

In paragraph 7 of plaintiff's amended complaint, it is alleged that its mechanic's lien was preserved against defendants' funds not prejudiced by payment made prior to service of the notice. Defendants filed an affirmative defense admitting that they withheld payments of $3,200 of the originally agreed upon contract price of $66,832.90. This amount was withheld from the final payment to the general contractor "in order to compensate for the costs which would be incurred" by the defendants (Regnery) in completing the work which the general contractor had agreed but failed to complete. There is nothing in the record to indicate that the dispute between the general contractor and the defendants regarding the withholding of $3,200 was litigated to a Conclusion.

On October 23, 1986, the trial court granted the defendants' motion for judgment on the pleadings based on the fact that the plaintiff had failed to deliver the 90-day notice required by section 24 of the Mechanics' Liens Act (Ill. Rev. Stat. 1985, ch. 82, par. 24). The plaintiff then filed the present appeal. On March 10, 1987, defendants made a motion for costs and attorney fees incurred in defending the appeal.

We first address the issue of whether the trial court erred in granting defendants' motion for judgment on the pleadings. A motion for judgment on the pleadings requires that the court examine the pleadings in order to determine if there is an issue of fact or if the controversy can be resolved solely as a matter of law. (Murphy v. S-M Delaware, Inc. (1981), 95 Ill. App. 3d 562.) The cause of action should not be dismissed on the pleadings unless it appears that no set of facts can be proved which entitle the pleader to relief. Hassett Storage Warehouse, Inc. v. Board of Election Commissioners (1979), 69 Ill. App. 3d 972.

In what appears to be a case of first impression, plaintiff asserts that when the legislature amended section 5 of the Mechanics' Liens Act (Ill. Rev. Stat. 1985, ch. 82, par. 5), it provided a new and alternative method of lien perfection specifically for subcontractors who perform work on existing owner-occupied single-family residences. Section 5 states in pertinent part:

"It shall be the duty of each subcontractor who has furnished, or is furnishing, materials or labor for an existing owner-occupied single-family residence, in order to preserve his lien, to notify the occupant either personally or by certified mail, return receipt requested, addressed to the occupant or his agent at the residence within 14 days from his first furnishing materials or labor, that he is supplying materials or labor, provided, however, that any notice given after 14 days by the subcontractor shall preserve his lien, but only to the extent that the owner has not been prejudiced by payments made prior to receipt of the notice." Ill. Rev. Stat. 1985, ch. 82, par. 5.

It is plaintiff's position that despite the 90-day notice required by section 24, section 5 allows for late notice with respect to subcontractors who perform work on owner-occupied single-family residences, to the extent that the owner has not been prejudiced by payments made prior to receipt of notice. (Ill. Rev. Stat. 1985, ch. 82, par. 5.) Thus, the plaintiff concludes that it preserved its lien and strictly complied with the provisions of section 5 when it served the 14-day notice on the owners on or about April 15, 1986.

A party seeking to foreclose a mechanic's lien is required to allege facts showing that he has performed all steps prescribed by statute in order to perfect the lien he seeks to enforce; service on the 90-day notice pursuant to section 24 is one of those steps and is a condition precedent to the cause of action. (Hill Behan Lumber Co. v. Irving Federal Savings & Loan Association (1984), 121 Ill. App. 3d 511, 518.) Service of notice under section 24 has been ...


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