Appeal from the Circuit Court of Lake County. No. 01--CH--798 Honorable Margaret J. Mullen, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
Third-party plaintiff, Lipowski & Associates, Inc. (Lipowski), appeals from the dismissal of its action to foreclose on a mechanic's lien and to recover for breach of contract. On appeal, Lipowski argues that its failure to submit a sworn contractor's statement does not preclude it from pursuing a breach of contract action. We reverse and remand.
This litigation arises out of the construction of improvements to the home of Casimir J. Komperda and Dawn M. Komperda. The Komperdas hired Lipowski to provide architectural and construction management services on the project. Plaintiff, Northwest Millwork Company (Northwest), furnished doors, trim, and hardware for the project. On June 8, 2001, Northwest sued the Komperdas; Andrew Lipowski, who was Lipowski's principal; and St. Paul Federal Bank for Savings/Charter One Bank (St. Paul). The complaint alleged that on May 21, 1999, Northwest and Andrew Lipowski agreed that Northwest would furnish lumber materials for the project. Northwest was to receive $8,096.22 for its services. Northwest completed its work on June 17, 1999. It sought to foreclose on its mechanic's lien, damages for breach of contract, and damages under section 28 of the Mechanics Lien Act (Act) (770 ILCS 60/28 (West 2000)). The contract claim was directed against Andrew Lipowski only, and the remaining claims were directed against all defendants.
Lipowski filed a third-party claim against the Komperdas, St. Paul, and unknown owners and lien claimants. Count I of Lipowski's third-party complaint sought to foreclose on its mechanic's lien, and count II sought damages for breach of contract. Lipowski alleged that it and the Komperdas entered into an oral agreement on or about September 26, 1999. For the architectural services, Lipowski's compensation would equal 8% of the construction costs, and, for the construction management services, Lipowski's compensation would equal 12% of the construction costs. On July 13, 1999, Lipowski completed its obligations under the contract. At that time, $48,425.61 became due. Despite Lipowski's repeated requests, the Komperdas never paid the balance. On September 23, 1999, Lipowski served a notice of a mechanic's lien claim and on October 21, 1999, filed a mechanic's lien claim with the Lake County recorder of deeds.
Lipowski attached to its complaint a billing statement dated September 17, 1999. According to the statement, the base construction cost was $77,165.76. The construction management fee was $9,259.85, and the architectural fee was $6,173.30. Lipowski charged an additional architectural fee of $7,426.70. Thus, the total bill was $100,025.61. The statement reflects that the Komperdas paid $50,000 to Lipowski and $1,600 to a window supplier, thus reducing the total amount due to $48,425.61.
Relying on section 2--619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2--619(a)(9) (West 2000)), the Komperdas moved to dismiss the third-party claim. Citing this court's decisions in Malesa v. Royal Harbour Management Corp., 187 Ill. App. 3d 655 (1989), and Ambrose v. Biggs, 156 Ill. App. 3d 515 (1987), the Komperdas argued that, because Lipowski failed to give them a sworn contractor's statement pursuant to section 5 of the Act (770 ILCS 60/5 (West 2000)), Lipowski was barred from maintaining a breach of contract action. They argued further that, because the right to proceed on a mechanic's lien depends upon the ability to recover for a breach of a valid contract with the property owner, under res judicata principles, the mechanic's lien claim likewise must fail. The Komperdas attached their affidavits in which they averred that Lipowski never gave them a sworn statement. Also, the Komperdas moved to dismiss Northwest's claims against them.
Lipowski responded that it was not a general contractor but instead an architect and construction manager. Therefore, it was not required to submit a sworn statement under section 5.
On September 18, 2001, the trial court dismissed with prejudice Lipowski's third-party claim. Also, the court dismissed with prejudice Northwest's mechanic's lien claim as to all defendants and dismissed with prejudice the section 28 damages claim as to the Komperdas only.
On September 20, 2001, Lipowski moved to reconsider. It urged the trial court to follow National Wrecking Co. v. Midwest Terminal Corp., 234 Ill. App. 3d 750 (1992), and Prior v. First National Bank & Trust Co. of Mount Vernon, 231 Ill. App. 3d 331 (1992), which rejected Malesa and Ambrose. On November 6, 2001, the trial court denied the motion to reconsider and found no just reason to delay the enforcement or appeal of the judgment. See 155 Ill. 2d R. 304(a). Lipowski timely appealed.
A motion to dismiss pursuant to section 2--619 of the Code admits the legal sufficiency of the complaint and all well-pleaded facts and the inferences therefrom but asserts an affirmative matter that avoids or defeats the claim. Avakian v. Chulengarian, 328 Ill. App. 3d 147, 152 (2002). We must ascertain whether a genuine issue of material fact precluded the dismissal or, absent such an issue of fact, whether the dismissal was proper as a matter of law. Carroll v. Paddock, 199 Ill. 2d 16, 22 (2002). We review the trial court's ruling de novo. Carroll, 199 Ill. 2d at 22.
The affirmative matter the Komperdas have raised is that Lipowski failed to tender them a contractor's affidavit under section 5 of the Act. The purpose of the Act is to permit a lien upon premises where a benefit has been received by the owner and the value or condition of the property has been increased or improved by the furnishing of labor and materials. R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 164 (1998). Because the rights under the Act are in derogation of the common law, the steps necessary to invoke those rights must be strictly construed. Westcon/Dillingham Microtunneling v. Walsh Construction Co. of Illinois, 319 Ill. App. 3d 870, 877 (2001). Once a plaintiff has complied with the requirements, however, the Act should be liberally construed to accomplish its remedial purpose. Westcon/Dillingham, 319 Ill. App. 3d at 877.
Section 5 of the Act provides:
"It shall be the duty of the contractor to give the owner, and the duty of the owner to require of the contractor, before the owner or his agent, architect, or superintendent shall pay or cause to be paid to the contractor or to his order any moneys or other consideration due or to become due to the contractor, or make or cause to be made to the contractor any advancement of any moneys or any other consideration, a statement in writing, under oath or verified by affidavit, of the names and ...