from the Circuit Court of Lee County, No. 14-CH-38 Honorable
Daniel A. Fish, Judge, Presiding.
PRESIDING JUSTICE SCHOSTOK delivered the judgment of the
court, with opinion. Justices McLaren and Jorgensen concurred
in the judgment and opinion.
SCHOSTOK PRESIDING JUSTICE
1 The instant controversy arises from a wind energy system
that was developed by GSG 7 and built on the property of
Louis and Carol Vaessen. After the tower was completed, one
of the subcontractors that worked on the tower, AUI
Construction Group, LLC (AUI), filed a complaint to foreclose
a mechanic's lien against the Vaessens' property and
sought to recover over $3 million. The Vaessens filed a
motion to dismiss the complaint, and Clipper Windpower, LLC
(Clipper), a general contractor on the project, filed a
motion for summary judgment. Both motions asserted that the
wind energy system remained GSG 7's personal property and
was a nonlienable trade fixture rather than an improvement to
the property. The circuit court of Lee County agreed and
granted the Vaessens' motion to dismiss and Clipper's
motion for summary judgment. AUI appeals from that order. For
the reasons that follow, we affirm.
3 On June 29, 2007, Louis and Carol Vaessen entered into a
windpark easement agreement with GSG 7, a developer of wind
energy. Among other things, the easement provided GSG 7 the
exclusive right "to erect, install, construct, replace,
maintain, repair and operate wind energy conversion systems
on the Property as Developer determined in its sole
discretion." The agreement provided that the Vaessens
would receive annual payments of $7500 upon erection of a
4 Following its agreement with the Vaessens, GSG 7 entered
into an agreement with Clipper to supply the wind turbine and
the tower to support that wind turbine. Clipper manufactured
wind turbines but not the towers to support those turbines.
Therefore, Clipper entered into a fixed-price contract with
Postensa Wind Structures US, LLC (Postensa), for the
construction of a prototype tower designed to support the
5 Postensa, in turn, entered into a cost-plus agreement with
AUI for the construction of the foundation and tower. The
Postensa-AUI agreement is dated November 3, 2011, but it was
not executed until January 16, 2012, by AUI and until
February 1, 2012, by Postensa. The recital to the agreement
stated that Postensa had entered into an agreement with
Clipper to design and build the foundation and tower for a
wind-powered electrical generator facility that was owned by
GSG 7. The Postensa-AUI agreement provided that the estimated
total construction costs for AUI's scope of work would be
$1, 664, 791.
6 A memorandum of the windpark easement agreement between the
Vaessens and GSG 7 was recorded on December 22, 2011.
7 After AUI completed its work in March or May of 2012, it
claimed that the total amount due from Postensa was $5, 904,
272.69. After giving Postensa credit for various payments,
AUI asserted that there remained an outstanding balance of
$3, 188, 634.44. AUI filed an arbitration demand against
Postensa for the approximately $3 million that it claimed it
was still owed.
8 On June 25, 2013, the arbitrator entered a partial award.
On August 20, 2013, Postensa filed for bankruptcy. On
December 4, 2013, the arbitrator entered a final award in
favor of AUI for $3, 527, 043 (including $655, 839 in
AUI's attorney fees and costs).
9 On April 17, 2014, AUI filed a complaint to foreclose a
mechanic's lien against the Vaessens. AUI asserted that,
because the materials, fixtures, services, and labor it
furnished constituted a valuable and permanent improvement to
the property, the Vaessens benefitted in an amount equivalent
to the arbitration award. AUI further requested that the
Vaessens' property be sold at public auction to satisfy
10 On June 23, 2014, the Vaessens filed a motion pursuant to
section 2-619 of the Code of Civil Procedure (Code) (735 ILCS
5/2-619 (West 2014)) to dismiss AUI's complaint. On
October 17, 2014, Clipper filed a motion for summary
judgment. Both motions asserted that the wind energy system
remained GSG 7's personal property and was a nonlienable
trade fixture rather than an improvement to the property.
11 On April 15, 2015, the trial court granted the
Vaessens' motion to dismiss and Clipper's motion for
summary judgment. The trial court explained that
mechanic's lien laws are based on the theory that an
owner is benefitted by improvements that become part of his
premises. As such, the owner should pay for this accruing
benefit when the owner induced or encouraged the erection of
the improvement. Relying on Crane Erectors & Riggers,
Inc. v. La Salle National Bank, 125 Ill.App.3d 658, 662
(1984), the trial court found that there were three factors
to be considered in determining whether equipment has become
a fixture to the realty and thus lienable. Specifically,
those factors were (1) the nature of the equipment's
attachment to the realty, (2) the equipment's adaptation
to and necessity for the purposes to which the premises are
devoted, and (3) whether it was intended that the equipment
should be considered part of the real estate. After
considering these factors, the trial court determined that
GSG 7 retained ownership of the wind energy system according
to the unambiguous terms of the easement and that AUI had
notice of the terms of the easement through the recorded
memorandum. The trial court expounded:
"If AUI's mechanic's lien were allowed to attach
to the real estate and GSG  chose to terminate the
easement and removed all of its property brought onto the
premises as allowed by the easement agreement,  the lien would
remain upon the real estate after removal of the benefit upon
which the lien was based. Therefore, to allow AUI's
filing of a mechanic's lien to attach to the real estate
where removal of the fixture is allowed would produce an
absurd result not intended by the lien act."
12 On May 14, 2015, AUI filed a motion to reconsider. On
December 11, 2015, the trial court denied that motion. AUI
thereafter filed a timely notice of appeal.
14 On appeal, AUI argues that the trial court erred in
granting the Vaessens' section 2-619 motion to dismiss
their complaint and Clipper's motion for summary
judgment. AUI insists that a question of fact remains as to
whether the tower was a lienable land improvement as opposed
to a nonlienable trade fixture. AUI further argues that the
trial court erred in its consideration of factors that
determine whether a structure is lienable.
15 The purpose of a section 2-619 motion to dismiss is to
dispose of issues of law and easily proved issues of fact at
the outset of litigation. Van Meter v. Darien Park
District, 207 Ill.2d 359, 367 (2003). A section 2-619
motion admits as true all well-pleaded facts, along with all
reasonable inferences that can be gleaned from those facts.
Porter v. Decatur Memorial Hospital, 227 Ill.2d 343,
352 (2008). "[W]hen ruling on a section 2-619 motion to
dismiss, a court must interpret all pleadings and supporting
documents in the light most favorable to the nonmoving
party." Id. On appeal from a ruling on a
section 2-619 motion, the reviewing court must consider
whether the existence of a genuine issue of material fact
should have precluded the dismissal or, absent such an issue
of fact, whether dismissal is proper as a matter of law.
Thurman v. Champaign Park District, 2011 IL App
(4th) 101024, ¶ 18.
16 The purpose of a motion for summary judgment is to
determine whether a genuine issue of triable fact exists
(People ex rel. Barsanti v. Scarpelli, 371
Ill.App.3d 226, 231 (2007)), and such a motion should be
granted only when "the pleadings, depositions, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter
of law" (735 ILCS 5/2-1005(c) (West 2014)). An order
granting summary judgment should be reversed if the evidence
shows that a genuine issue of material fact exists or if the
judgment is incorrect as a matter of law. Clausen v.
Carroll, 291 Ill.App.3d 530, 536 (1997). We review
de novo the trial court's grant of a motion for
summary judgment. Coole v. Central Area Recycling,
384 Ill.App.3d 390, 395 (2008).
17 The purpose of the Mechanics Lien Act (Act) (770 ILCS
60/0.01 et seq. (West 2014)) is to protect those
who, in good faith, furnish material or labor for the
improvement of real property. Mostardi-Platt Associates,
Inc. v. Czerniejewski, 399 Ill.App.3d 1205, 1209 (2010).
The Act permits a lien upon property where a benefit has been
received by the owner and where the value or condition of the
property has been increased or improved by the furnishing of
the labor or materials. Id. The Act is a
comprehensive statute that outlines the rights,
responsibilities, and remedies of parties to construction
contracts, including owners, contractors, subcontractors, and
third parties. Cordeck Sales, Inc. v. Construction
Systems, Inc., 382 Ill.App.3d 334, 353 (2008). The
burden of proving that each requirement of the Act has been
satisfied is on the party seeking to enforce the lien.
Czerniejewski, 399 Ill.App.3d at 1209. Because the
right to a mechanic's lien is statutory, a plaintiff must
strictly comply with the Act. Cordeck, 382
Ill.App.3d at 353. However, once a plaintiff has complied
with the procedural requisites, the Act is liberally
construed in order to accomplish its remedial purpose.
Weydert Homes, Inc. v. Kammes, 395 Ill.App.3d 512,
18 The central question in this case is whether AUI's
work constituted improvement to real property, which is
lienable (Czerniejewski, 399 Ill.App.3d at 1209), as
opposed to improvement to a trade fixture, which is not
(B. Kreisman & Co. v. First Arlington National Bank
of Arlington Heights, 91 Ill.App.3d 847, 852 (1980)).
The factors to be considered in determining whether equipment
added to property constitutes a land improvement and is thus
lienable are: (1) the nature of its attachment to the realty,
(2) its adaptation to and necessity for the purposes to which
the premises are devoted, and (3) whether it was intended
that the item in question should be considered part of the
realty. Crane Erectors, 125 Ill.App.3d at 662.
Intent is the preeminent factor, the other considerations
being primarily evidences of intent. Id. The fact
that an item can be removed without material injury to the
realty does not of itself destroy its lienability.
Id. Further, that an item can be removed does not
conclusively establish that it is a trade fixture where it is
clear that there is an intent to permanently improve the
property by its installation. See Dual Temp
Installations, Inc. v. Chicago Title & Trust Co., 41
Ill.App.3d 415, 417-18 (1976). "Parties may, however,
contract to evidence an intention that the title to chattels
which become ...