APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE FRANCIS W. GLOWACKI and HONORABLE ARTHUR L. JANURA, JUDGES PRESIDING.
As Modified On Denial of Rehearing August 15, 1994. Released for Publication August 25, 1994. Petition for Leave to Appeal Denied December 6, 1994.
Campbell, Buckley, Manning
The opinion of the court was delivered by: Campbell
MODIFIED ON DENIAL OF REHEARING
PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:
Defendant-counterplaintiff, Joseph Kafka, individually and doing business as Dekaf Construction, Inc., (cumulatively, Dekaf) appeals from three orders of the circuit court of Cook County. The first order, entered November 14, 1991, granted plaintiff, Joseph Caruso's (Caruso) motion for judgment on the pleadings as to Dekaf's counterclaim to foreclose mechanic's lien. The second order, entered February 19, 1992, denied Dekaf's motion to vacate the judgment on the pleadings. The third order entered March 18, 1992, granted motions to dismiss third-party complaints against counterdefendants' Handels-en Productiemaatschappij-DeSchouw B.V., Inc.'s (Handels) and Suburban National Bank of Palatine, formerly known as Suburban National Bank of Woodfield (Bank). For the following reasons, we affirm judgments of the trial court.
The record contains the following relevant facts. On May 3, 1991, Caruso filed a second amended complaint in six counts against Dekaf, a paving and excavating subcontractor, and others, seeking to quiet title to property known as Governor's Place Office Building in Hoffman Estates, Illinois, based on a mechanic's lien lodged against the property by Dekaf. Dekaf filed an answer and counterclaim to foreclose the mechanic's lien and for other relief. Dekaf alleged that paving and excavating work was completed on the property on September 28, 1990, and attached a copy of the contract for work and invoices.
Caruso then filed a motion for judgment on the pleadings pursuant to Section 2-615(e) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-615(e)) as to count III of his complaint and count I of Dekaf's counterclaim. Caruso alleged that pursuant to the Mechanics Lien Act, (the Act) (Ill. Rev. Stat. 1991, ch. 82, par. 24), a subcontractor has 90 days after the date of completion of the subcontractor's work to file the appropriate claim of lien. Caruso alleged that Dekaf's mechanic's claim for lien was untimely filed on December 27, 1990, more than 90 days following Dekaf's completion of work on the property. Caruso alleged that the completion date of the work performed by Dekaf was September 12, 1990, as set forth by the contract between Dekaf and D.E.S., Inc. (D.E.S.), the contractor, which was attached to and made a part of Caruso's second amended complaint as well as Dekaf's counterclaim; that the date of defendants final invoice for work completed under the contract was September 12, 1990, and that pursuant to paragraph 4(a) of Dekaf's contract:
"(a) In all cases, the construction work shall be considered accepted by Buyer ten (10) days after completion of said work unless Buyer notifies Paver in the contrary in writing before such time. PAVERS [sic] FINAL INVOICE SHALL CONSTITUTE NOTICE OF COMPLETION." (Emphasis in original.)
Caruso further alleged that Dekaf's subsequent invoices dated October 12 and October 15, 1990, contained only service charges pursuant to paragraph 4(b) of the contract which provides:
"(b) A service charge of 1 1/2% of the balance due will be added each month if payment in full is not made within thirty (30) days after invoicing for work installed."
On November 14, 1991, following the arguments of the parties, the trial court, Judge Francis W. Glowacki, granted Caruso's motion for judgment on the pleadings, finding that Dekaf clearly indicated in "very bold type" that the final invoice shall constitute the notice of completion, and that the language is also construed against the drafter of the instrument.
On February 19, 1992, following a hearing, Judge Glowacki denied Dekaf's motion to vacate judgment on the pleadings, finding no just reason to delay enforcement or appeal of the order.
On March 19, 1992, the trial court, Judge Arthur L. Janura, granted counter-defendants Handels and Bank's motions to dismiss Dekaf's ...