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Westcon/Dillingham Microtunneling v. Walsh Construction Company of Illinois

March 30, 2001

WESTCON/DILLINGHAM MICROTUNNELING; WESTCON MICROTUNNELING; AND DILLINGHAM CONSTRUCTION COMPANY, N.A., PLAINTIFFS-APPELLANTS,
v.
WALSH CONSTRUCTION COMPANY OF ILLINOIS, DEFENDANT AND THIRD-PARTY PLAINTIFF-COUNTERDEFENDANT (LAKE COUNTY, ILLINOIS, THIRD-PARTY DEFENDANT; AND GLENBROOK EXCAVATING AND CONCRETE, INC., INTERVENING COUNTERPLAINTIFF-APPELLEE).



Appeal from the Circuit Court of Lake County. Nos. 98--CH--1128 and 98--L--874 cons. Honorable Wallace B. Dunn, Judge, Presiding.

The opinion of the court was delivered by: Justice Grometer

The circuit court of Lake County entered an order releasing certain funds to Glenbrook Excavating and Concrete, Inc. (Glenbrook). These funds were released to satisfy a lien asserted under section 23 of the Mechanics Lien Act (Act) (770 ILCS 60/23 (West 1998)) arising out of a construction project for Lake County on which Glenbrook was a subcontractor. Westcon/Dillingham Microtunneling, a joint venture of Westcon Microtunneling and the Dillingham Construction Company, (collectively, Westcon) was a second subcontractor on the project and had previously asserted its similar lien and now appeals the circuit court's order. We affirm.

BACKGROUND

Walsh Construction Company of Illinois (Walsh) contracted with Lake County to install a sewer system. Westcon, the plaintiff-appellant, then entered into a contract with Walsh whereby Westcon was to install approximately 9,000 linear feet of sewer line. Both contracts provided that a party would be entitled to additional compensation if, during the course of installation, it encountered subsurface conditions of an unusual nature. In its complaint, Westcon alleged that it encountered excessive boulders while installing the line, causing Westcon to perform additional work. Westcon further alleged that it provided notice of these conditions, as required under the contract, and the county responded that Westcon's claims for additional payments would be reviewed and compensated on a case-by-case basis. Westcon sent notice of its claim for a mechanics lien to Lake County on August 18, 1998. The notice stated that Westcon was entitled to a $266,484.85 "payment for retention," and $1,048,581.61 for additional work performed due to differing site conditions.

Westcon filed two actions in November 1998, which were subsequently consolidated. The first action was a two-count complaint naming Walsh as defendant. In count I of the complaint, Westcon sought to foreclose a mechanics lien it had asserted against funds held by Lake County. Count II sought recovery on a contract theory from Walsh. The second was an action on a contractor's bond, naming Walsh and its surety as defendants. Walsh filed a third-party complaint against Lake County, seeking indemnity in the event Walsh was held liable to Westcon.

On May 13, 1999, Westcon filed a motion seeking to compel Lake County to release $266,484.85 of the amount it was claiming. The motion was granted, with all parties in agreement. Glenbrook was not a party at this time. The court's order provided that Westcon's mechanics lien would be reduced by this amount. In its prayer for relief, Westcon explicitly sought to reserve its right to seek compensation for the additional work performed on the sewer project.

On February 14, 2000, Glenbrook filed a petition to intervene. Like Westcon, Glenbrook was a subcontractor on the sewer construction project. Glenbrook alleged that it was owed $427,323.31 for work on the sewer system. On the same day, Glenbrook filed a motion to release this amount. Glenbrook had previously notified Lake County of its claim for a mechanics lien on February 8, 2000.

On March 27, 2000, Lake County filed a motion for leave to deposit the remainder of the funds, which it had retained in response to Westcon's and Glenbrook's liens, with the clerk of the court. The county stated that it had retained $769,395.97, which was the amount that remained due on the original contract. Westcon opposed this motion, arguing that section 23 of the Act required the county to deposit an amount sufficient to satisfy all liens. In light of Westcon's claim for compensation for additional work performed, the amount the county sought to deposit would have been insufficient.

On April 18, 2000, the trial court granted Lake County's motion to deposit with the clerk of the court the balance of the funds it had retained. This order has not been appealed. The court noted that allowing this motion would not prejudice Westcon. Regarding Glenbrook's motion to release funds, the court indicated that it considered Westcon's earlier receipt of funds pursuant to its own motion to release as a waiver of any objection to Glenbrook's motion. The trial court allowed Westcon 30 days to return these funds to the court clerk so that they could be proportionally distributed. Westcon declined to do so.

On May 19, 2000, the trial court granted Glenbrook's motion to release funds. The court termed this order a "turnover order." In ruling, the court noted that Westcon had received all amounts due to it under the original contract. The court noted that the additional amount Westcon was claiming as a result of unusual subsurface conditions was, in actuality, a claim for an amount outside the original contract. Thus, this claim was for funds other than those previously withheld by the county. As such, Westcon's claim involved a new and separate fund that the county would have to furnish if Westcon were to succeed on its contract claim. The court stayed the enforcement of this order until June 1, 2000, on Westcon's motion.

ANALYSIS

As a preliminary matter, we must address Glenbrook's contention that this court lacks jurisdiction to decide this appeal. Glenbrook asserts that Westcon's notice of appeal was premature. The notice was filed on May 31, 2000. On May 19, 2000, the court entered its order releasing funds to Glenbrook; however, the court stayed the enforcement of this order until June 1, 2000. According to Glenbrook, the trial court's judgment did not become final until the date it became effective. Since Westcon filed its notice before this date, Glenbrook argues its notice was premature.

Supreme Court Rule 303(a) provides that a notice of appeal must be filed "within 30 days after the entry of the final judgment appealed from." 155 Ill. 2d R. 303. However, where a timely, posttrial motion directed against the judgment has been filed, the notice must be filed within 30 days of the order disposing of that motion. 155 Ill. 2d R. 303. Compliance with this rule is necessary to vest the appellate court with jurisdiction. Berg v. Allied Security, Inc., 193 Ill. 2d 186, 189 (2000). For the purpose of this rule, a posttrial motion directed against the judgment is one that requests one of the types of relief set forth in section 2--1203 of the Code of Civil Procedure (735 ILCS 5/2--1203 (West 1998)). Marsh v. Evangelical Covenant Church, 138 Ill. 2d 458, 461 (1990). Section 2--1203 allows parties to file motions for rehearing, retrial, modification of the judgment, or vacation of the judgment. 735 ILCS 5/2--1203 (West 1998). Westcon's motion to stay the enforcement of the trial court's "turnover order" sought none of the types of relief set forth in section 2--1203. Thus, it was not a posttrial motion within the meaning of Rule 303. See Giammanco v. Giammanco, 253 Ill. App. 3d 750, 755 (1993). An order staying the enforcement of a judgment is collateral to the judgment and does not affect or alter the issues on appeal. See In re Estate of Goodlett, 225 Ill. App. 3d 581, 587 (1992). In other words, this motion, and the resulting order, were not directed against the judgment. Thus, the fact that the notice of appeal was filed while the enforcement of the judgment was stayed does not deprive this court of jurisdiction. Westcon properly filed its notice of appeal within 30 days of the trial court's "turnover order."

Turning to the merits of this appeal, we must first determine whether the trial court had the authority to order funds to be released to Glenbrook. Westcon contends that it did not. According to Westcon, the plain language of the statute governing liens against public funds requires that funds sufficient to satisfy a lien be withheld ...


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