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05/23/88 Flader Plumbing & Heating v. George Callas Et Al.

May 23, 1988

FLADER PLUMBING & HEATING COMPANY, PLAINTIFF-APPELLANT

v.

GEORGE CALLAS ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

524 N.E.2d 1097, 171 Ill. App. 3d 74, 121 Ill. Dec. 49 1988.IL.806

Appeal from the Circuit Court of Cook County; the Hon. Rosemary Duchene LaPorta, Judge, presiding.

APPELLATE Judges:

JUSTICE MANNING delivered the opinion of the court. CAMPBELL, P.J., and QUINLAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING

Flader Plumbing & Heating Co. (plaintiff) filed this action against the Bank of Ravenswood, trust No. 25 -- 3857, Sam Callas and George Callas (defendants). On November 12, 1980, the plaintiff, Flader Plumbing & Heating Co., entered into an oral contract with the tenants of 3445 West Dempster in Skokie, Illinois, to install plumbing and bathroom fixtures, correct plumbing that had been previously installed, and perform other related plumbing work. Flader agreed to perform the work on a time and material basis. On January 5, 1981, plaintiff completed the work with an outstanding balance due of $32,482.32. Plaintiff was previously paid $5,000 while the job was still in progress.

Plaintiff did not inquire regarding the identity of the landlord until at least a year after the work was completed. Such inquiry was initiated due to difficulties Flader was experiencing in collecting the outstanding balance. Moreover, when he entered into the contract, he did not raise any questions regarding provisions of the lease relative to trade equipment, fixtures, or mechanic's lien claims. On April 24, 1981, plaintiff filed a mechanic's lien with the Office of the Recorder of Deeds of Cook County.

In March 1982, Flader received a notice that a bankruptcy proceeding had been filed in the United States Bankruptcy Court by Monakosta, Inc., which allegedly enjoined Flader from proceeding with its lien foreclosure since he was named as one of the creditors. In July 1982, Flader filed a complaint in the United States Bankruptcy Court to modify the automatic stay resulting from the bankruptcy proceeding, and on December 1, 1982, an order was entered permitting Flader to file a lien foreclosure action naming Monakosta, Inc., as the debtor. On January 13, 1983, Flader filed its suit to foreclose its mechanic's lien against Monakosta, Inc., d/b/a Reel People, Bank of Ravenswood, trust No. 25 -- 3857, Chris Karakosta, Dimitri Karakosta, Leon Monachas, Sam Callas, George Callas, and unknown owners. It was stipulated by counsel that a bankruptcy petition was not filed by any of the three tenants named on the lease. In addition, the record does not reveal that a bankruptcy petition was filed by any of the parties to this appeal.

A bench trial began on December 9, 1985. The only defendants in this suit are the Bank of Ravenswood, trust No. 25 -- 3857, Sam Callas and George Callas. Defendants Monakosta, Inc., d/b/a Reel People, Christ Karakosta, Dimitri Karakosta, Leon Monachas and unknown owners were dismissed by the trial court upon motion by the plaintiff's attorney during the trial. On November 8, 1984, plaintiff filed its second amended complaint, asserting that it is entitled to $24,700.79 for a mechanic's lien after distinguishing between lienable and non-lienable work.

Flader introduced into evidence his job folder which included a daily summary of hours spent on the job, weekly summaries of the time spent at the restaurant and the materials used for the job. However, it was indeterminable what type of work was done on a particular day or how much time or material was utilized for a particular item. At the close of the plaintiff's evidence, the defendant moved for a directed finding. On December 23, 1985, that motion was denied by the trial court. However, on January 17, 1986, the defendant moved to reconsider the order entered on December 23, 1985. On February 5, 1986, the trial court granted defendant's motion for reconsideration and dismissed the case. Plaintiff's subsequent motion for reconsideration of the February 5, 1986, order was denied and this appeal followed.

Plaintiff contends that the trial court improperly directed a finding in favor of the defendants at the close of the plaintiff's case arguing that the plaintiff presented enough evidence for this court to determine what is lienable work. The Mechanics' Liens Act provides in pertinent part:

"Any person who shall by any contract . . . with the owner of a lot or tract of land, or with one whom the owner has authorized or knowingly permitted to contract, to improve the lot or tract of land . . ., or to furnish material, fixtures . . . or perform any services . . . on a lot or tract of land . . . has a lien upon the whole of such lot or tract of land . . . for the amount due to him for such materials, fixtures, . . . services or labor." Ill. Rev. Stat. 1985, ch. 82, par. 1.

The defendants maintain that the trial court properly directed a finding in their favor when the plaintiff failed to produce sufficient evidence for the trial court to determine which portion of the work was lienable. We agree. Lienable work must be separable from nonlienable work and the total amount due must be apportionable or the entire lien is defeated. Adler v. World's Pastime Exposition Co. (1888), 126 Ill. 373, 377, 18 N.E. 809; Verplank Concrete & Supply, Inc. v. Marsh (1976), 40 Ill. App. 3d 742, 744, 353 N.E.2d 27; BRL Carpenters, Ltd. v. American National Bank & Trust Co. (1984), 126 Ill. App. 3d 137, 142, 466 N.E.2d 1166.

Plaintiff was given several opportunities to provide the trial court with evidence of the work that was lienable and that which was nonlienable. Specifically, on July 17, 1984, the trial court found that the bill of particulars submitted by the plaintiff included both lienable and nonlienable work and ordered the plaintiff to amend his complaint to ...


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