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06/28/96 WALKER PROCESS EQUIPMENT v. ADVANCE

June 28, 1996

WALKER PROCESS EQUIPMENT, A DIVISION OF MCNISH CORPORATION, AN OHIO CORPORATION; AND METROPOLITAN WATER RECLAMATION DISTRICT OF GREATER CHICAGO, A MUNICIPAL CORPORATION, FOR THE USE OF WALKER PROCESS EQUIPMENT, A DIVISION OF MCNISH CORPORATION, PLAINTIFF-APPELLANT,
v.
ADVANCE MECHANICAL SYSTEMS, INC., AN ILLINOIS CORPORATION, AND FEDERAL INSURANCE COMPANY, A NEW JERSEY CORPORATION, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. No. 94 CH 8714. THE HONORABLE THOMAS J. WYNN, JUDGE PRESIDING.

Released for Publication August 13, 1996.

The Honorable Justice Cousins delivered the opinion of the court: Gordon and Hourihane, JJ., concur. Hourihane, J., specially concurring.

The opinion of the court was delivered by: Cousins

JUSTICE COUSINS delivered the opinion of the court:

Plaintiff, Walker Process Equipment (Walker), filed a complaint against Advance Mechanical Systems, Inc. (Advance), seeking: (1) an accounting pursuant to section 23 of the Mechanics Lien Act (770 ILCS 60/23 (West 1992)); (2) relief pursuant to the Public Construction Bond Act (30 ILCS 550/1 et seq. (West 1992)); and (3) relief for a breach of contract. Advance filed a motion to dismiss count I of the complaint, which the trial court granted on March 15, 1995. On appeal, Walker contends that the trial court erred in granting Advance's motion because count I stated a cause of action under the Mechanics Lien Act.

BACKGROUND

On October 28, 1992, Advance entered into a contract with the Metropolitan Water Reclamation District of Greater Chicago (Metropolitan Water Reclamation District) to furnish all labor, materials, tools and equipment necessary to construct the water gas burners' improvements at the Stickney Water Reclamation Plant in Stickney, Illinois. Subsequently, Advance issued to Walker a purchase order for $69,000 for four collector arms to be incorporated into the water gas burners' improvements. Walker furnished the collector arms and Advance paid Walker $31,050, leaving a balance of $37,950.

On September 1, 1993, Walker served a verified notice, entitled "Affidavit of Claim" on the Metropolitan Water Reclamation District, Federal Insurance Company, and Advance. The notice set forth that "this affidavit is made to induce the Federal Insurance Company, as Surety, on a bond covering the above mentioned contract, to settle the claim herein set forth."

On June 29, 1994, Walker personally served the clerk of finance of the Metropolitan Water Reclamation District and Advance a notice entitled "Notice of Mechanic's [sic] Lien Claim Pursuant to 770 ILCS 60/23." This notice set forth a mechanics lien claim on all money, bonds and warrants due, or to become due, under the contract between Advance and the Metropolitan Water Reclamation District. On September 27, 1994, Walker filed a three-count complaint. Count I sought an accounting pursuant to section 23 of the Mechanics Lien Act. Count II sought relief pursuant to the Public Construction Bond Act, and count III sought relief for breach of contract.

On December 20, 1994, Advance filed a motion to dismiss count I of Walker's complaint pursuant to section 2-615 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-615 (West 1992). After a hearing, the trial court granted Advance's motion to dismiss. Walker appealed. We reverse and remand.

ANALYSIS

Walker's sole contention is that the trial court erred in dismissing count I of the complaint because the complaint stated a cause of action under the Mechanics Lien Act. 770 ILCS 60/1 et seq. (West 1992). At issue in this case is section 23(b) of the Mechanics Lien Act, which states in part:

"(b) Any person who shall furnish material, apparatus, fixtures, machinery or labor to any contractor having a contract for public improvement for any *** city, municipality or municipal corporation in this State, shall have a lien for the value thereof on the money, bonds, or warrants due or to become due the contractor having a contract with such *** municipality or municipal corporation in this State under such contract. Provided, such person shall, before payment or delivery thereof is made to such contractor, notify the clerk or secretary *** of the *** city, municipality or municipal corporation of his claim by a written notice and furnish a copy of said notice at once to said contractor. The person claiming such lien may cause notification and written notice thereof to be given either by sending the written notice (by registered or certified mail, return receipt requested, with delivery limited to addressee only) to, or by delivering the written notice to the clerk or secretary *** of the *** city, municipality, or municipal corporation; and the copy of the written notice which the person claiming the lien is to furnish to the contractor may be sent to, or delivered to such contractor in like manner. *** Failure to commence proceedings within 90 days after giving notice of lien pursuant to this subsection shall terminate the lien ***." 770 ILCS 60/23(b) (West 1992)

We note that the lien created by this section is not on the improvements for which the work and materials were furnished but, rather, upon the public funds due and owing the contractor at the time the lien is perfected. Board of Library Trustees v. Cinco Construction, Inc., 276 Ill. App. 3d 417, 421-22, 658 N.E.2d 473, 213 Ill. Dec. ...


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