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08/25/89 David Malesa, v. Royal Harbour Management

August 25, 1989

DAVID MALESA, PLAINTIFF-APPELLANT

v.

ROYAL HARBOUR MANAGEMENT CORPORATION, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

543 N.E.2d 591, 187 Ill. App. 3d 655, 135 Ill. Dec. 208 1989.IL.1318

Appeal from the Circuit Court of Du Page County; the Hon. John W. Darrah, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. INGLIS and LINDBERG, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Plaintiff, David Malesa, filed an action against defendant, Royal Harbour Management Corporation, for an alleged breach of a construction contract. The circuit court of Du Page County granted summary judgment to defendant on the basis of plaintiff's failure to provide a sworn contractor's statement pursuant to section 5 of the Mechanics' Liens Act (Act) (Ill. Rev. Stat. 1987, ch. 82, par. 5). On appeal, plaintiff contends that the trial court erred in granting summary judgment because: (1) defendant failed to establish that plaintiff was a contractor as that term is defined in the Act; (2) defendant did not present any evidence that it requested a contractor's statement; and (3) plaintiff's mechanic's lien claim contains information sufficient to comply with the requirement. We affirm.

Plaintiff's second amended complaint alleged in relevant part as follows. On June 2, 1986, plaintiff and defendant entered into an agreement relating to a construction project on a parcel of land in Oak Brook. The contract referred to plaintiff as a contractor, but one provision stated his duties would be more akin to those of a construction supervisor. Those duties included assembling bids, selecting subcontractors with the owner's approval, supervising and coordinating construction, and maintaining expense records. Plaintiff's fee was 6% of the actual cost of construction.

The complaint alleged further that on or about September 5, 1986, defendant, acting through an attorney, purported to cancel the contract. Plaintiff was ready, willing, and able to perform his contractual obligations at all times. Plaintiff sought $4,656 in damages.

Defendant filed an answer to the complaint and a counterclaim. Defendant subsequently filed a motion for summary judgment supported by the affidavit of Dean Homer, one of its agents. Homer's affidavit stated that plaintiff never provided defendant or any of its employees or agents with a sworn contractor's statement as required by section 5 of the Act (Ill. Rev. Stat. 1987, ch. 82, par. 5). Plaintiff's response was not supported by any affidavits. Plaintiff argued in the response that the Act was not applicable because the contract provided that he would be acting as a construction supervisor rather than a general contractor.

The trial court granted the motion for summary judgment. Plaintiff then filed a motion to reconsider and a supporting memorandum in which he argued that summary judgment was improper because defendant never requested a contractor's statement and because defendant presented no evidence that plaintiff performed lienable services. Plaintiff also asserted in the memorandum that the information in his mechanic's lien claim was sufficient to comply with the requirements of section 5 of the Act. The trial court denied the motion to reconsider and found there was no just reason to delay enforcement or appeal from the order. Plaintiff now appeals.

Defendant contends that the only issue properly preserved for appeal is whether defendant was a construction supervisor rather than a contractor under section 1 of the Act and whether this would render the requirements of the Act inapplicable to the case at bar. According to defendant, plaintiff did not raise any of the other issues in the trial court. Issues not raised in the trial court are considered waived and may not be raised for the first time on appeal. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500.) Our review of the record reveals, however, that plaintiff mentioned the other issues raised on appeal in either his motion to reconsider or the supporting memorandum, and we therefore reject defendant's contention.

A motion for summary judgment should only be granted if the pleadings, depositions, admissions, and affidavits on file show that no genuine issue exists as to any material fact and that the movant is entitled to judgment as a matter of law. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) Summary judgment is a drastic means of disposing of litigation and should only be granted if the right of the movant is clear and free from doubt. Purtill, 111 Ill. 2d at 240.

The trial Judge granted summary judgment because he believed the case was governed by the decision in Ambrose v. Biggs (1987), 156 Ill. App. 3d 515. In Ambrose, this court held that a contractor's failure to provide an owner with the sworn statement required by section 5 of the Act precludes recovery by the contractor in a breach of contract action against the owner. (156 Ill. App. 3d at 518.) Section 5 requires a contractor to provide an owner with a written statement under oath or verified by affidavit of the names and addresses of all parties furnishing materials and labor and the amounts due or to become due each. Ill. Rev. Stat. 1987, ch. 82, par. 5.

Plaintiff contends that the requirements of section 5 of the Act did not apply to him because the contract provided that he would act as a construction supervisor rather than a contractor. Plaintiff has cited no authority in support of his contention that a construction supervisor is not a contractor under the Act and has therefore waived it for purposes of this appeal. (113 Ill. 2d R. 341(e)(7); In re ...


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