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11/20/95 NORMAN A. KOGLIN ASSOCIATES v. VALENZ ORO

November 20, 1995

NORMAN A. KOGLIN ASSOCIATES, AN ILLINOIS CORPORATION, PLAINTIFF-APPELLEE,
v.
VALENZ ORO, INC., LASALLE NATIONAL BANK, AS TRUSTEE UNDER TRUST NO. 113495, JMB/URBAN 900 DEVELOPMENT PARTNERS, AND UNKNOWN OWNERS, DEFENDANTS-APPELLEES, H.B. BARNARD COMPANY, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE CLIFFORD L. MEACHAM, JUDGE PRESIDING.

Petition for Rehearing Denied February 2, 1996. Released for Publication February 5, 1996.

The Honorable Justice Wolfson delivered the opinion of the court: Campbell, P.j. and Buckley, J., concur.

The opinion of the court was delivered by: Wolfson

The Honorable Justice WOLFSON delivered the opinion of the court:

If it looks like a counterclaim, and reads like a counterclaim, and does the things counterclaims are supposed to do, it probably is a counterclaim. At least, it is under the facts of this lawsuit as they apply to the provisions of the Mechanics Lien Act (the Act).

The trial judge took a stricter view, holding that a general contractor who filed an answer seeking to enforce its lien, but did not file a document entitled "counterclaim," failed to become a complainant under the terms of the Act.

The general contractor, H.B. Barnard Company, became a litigant without a lawsuit when the trial judge voluntarily dismissed everyone else and refused to allow the contractor the right to pursue its lien. We reverse the trial judge's decision and remand this matter for further proceedings.

FACTS

Norman A. Koglin Associates (Koglin), is an architectural firm. Defendant, Valenz Oro, Inc. (Valenz), is a tenant of 900 North Michigan Avenue. On September 9, 1991, plaintiff entered into a contract with Valenz to provide architectural and interior and design services in connection with construction to be done to Valenz's space. After completion of its work, Koglin recorded a claim for mechanics lien against the premises.

Valenz had entered into a contract with defendant H.B. Barnard Company (Barnard), a general contractor. Pursuant to its contract, Barnard agreed to provide labor and materials. After completion of its work under the contract, Barnard recorded a general contractor's claim for mechanics lien against the premises.

On June 17, 1992, Koglin filed a complaint to foreclose mechanics lien. Koglin named as defendants: (A) LaSalle; (B) JMB; (C) Valenz; and (D) Barnard. Koglin's prayer for relief requested, inter alia, that the premises be sold at a foreclosure sale and that Koglin be paid from the proceeds of the sale.

On July 20, 1992, Barnard filed a pleading entitled "Answer to Complaint to Foreclose Mechanic's Lien." Barnard responded to each of the allegations of the complaint. Barnard, in its answer alleged:

"On October 15, 1991, it entered into a contract to provide certain labor and materials in connection with the construction and/or improvements at the premises and that said contract was authorized and/or knowingly permitted by LaSalle and JMB. Answering further, H.B. Barnard states that its contract was with Yaz Safavi, personally and d/b/a Valenz Oro Jewelers, and that Valenz Oro, Inc., was or became liable on that contract."

Barnard admitted that it had some interest in the premises, but denied that such interest was subject, subordinate, or inferior to Koglin's rights.

After answering all the allegations in the complaint, Barnard added two paragraphs. Barnard alleged that Yaz Safavi and Valenz were jointly and severally liable to it in the amount of $25,725.84 plus interest and that it had a lien on the premises for such amount. Barnard further alleged that "it last performed services on the premises under its contract on or after November 23, 1991, and that it perfected its mechanics lien on the premises by recording a copy of notice of such lien ***. A true and correct copy of such notice is attached hereto as Exhibit 'A'."

In its prayer for relief, Barnard asked the court to: (A) adjudge the amount of its lien as $25,725.84 plus interest; (B) adjudge that Barnard had a first, prior and superior lien; (C) foreclose its mechanics lien and in the event of nonpayment of the mechanics lien judgment, order the premises sold to satisfy the same; and (D) award any other relief as the court deem proper.

Attached to Barnard's answer was a copy of his "General Contractor's Claim For Mechanic's Lien" which provides in relevant part:

"The Claimant, H.B. Barnard Company, *** hereby files its General Contractor's Claim for mechanics lien on the Real Estate *** and against the interest of the following persons in the Real Estate ('Owners'): Yaz Safavi, Valenz Oro, Inc., LaSalle National Bank as trustee under trust agreement No. 113495 and JMB/Urban 900 Development Partners, a limited partnership (hereinafter referred to as 'Owners'), and any person claiming an interest by, through or under the Owners, in the following described Real Estate, ***:

***

6. Claimant claims a lien on the Real Estate (including all land and improvements thereon) in the amount of TWENTY-FIVE THOUSAND SEVEN HUNDRED TWENTY-FIVE AND 84/100 DOLLARS ($25,725.84) plus interest from the date due." (Emphasis added.)

LaSalle and JMB filed a combined answer to Koglin's complaint on September 10, 1993. In it, LaSalle and JMB admitted that Barnard had provided certain labor and materials in connection with the construction and improvements at the Valenz jewelry store, but denied Koglin's allegation that they authorized or knowingly permitted Valenz to enter into an agreement with Barnard. A copy of the answer was served on Koglin. LaSalle and JMB did not serve a copy of their answer upon Barnard.

On December 21, 1993, the trial court held a pretrial conference. Notwithstanding Barnard's objections, the trial court: (1) dismissed Koglin's entire complaint with prejudice (given the settlement agreed to between Koglin, LaSalle and JMB); (2) reserved jurisdiction with respect to the settlement agreement; and (3) found no just reason to delay enforcement or appeal of the order.

On January 11, 1994, Barnard filed a "Motion to Modify or Vacate the Order of December 21, 1993, to Permit Filing of Amended Complaint and to Realign Parties." Barnard sought to file an "Amended Complaint" naming Valenz, LaSalle, JMB, and Koglin as defendants. After the ...


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