Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

AUI Construction Group, LLC v. Vaessen

Court of Appeals of Illinois, Second District

November 9, 2016

AUI CONSTRUCTION GROUP, LLC, Plaintiff-Appellant,
v.
LOUIS J. VAESSEN, in His Capacity as Trustee of the Louis J. Vaessen Trust Dated 6/24/2003 ½ Interest; CAROL A. VAESSEN, in Her Capacity as Trustee of the Carol A. Vaessen Trust Dated 6/24/2003 ½ Interest; GSG 7, LLC; CLIPPER WINDPOWER, LLC; POSTENSA WIND STRUCTURES US, LLC; ROCK RIVER READY MIX, INC.; ILLINOIS TRUCK AND EQUIPMENT COMPANY, INC.; CUMMINGS ELECTRICAL, INC.; KR WIND, INC., d/b/a Mammoet Wind, Inc.; UNKNOWN OWNERS; and NONRECORD CLAIMANTS, Defendants Louis J. Vaessen, in His Capacity as Trustee of the Louis J. Vaessen Trust Dated 6/24/2003 ½ Interest; Carol A. Vaessen, in Her Capacity as Trustee of the Carol A. Vaessen Trust Dated 6/24/2003 ½ Interest; GSG 7, LLC; Clipper Windpower, LLC; Postensa Wind Structures, US, LLC; Rock River Ready Mix, Inc.; Illinois Truck and Equipment Company, Inc.; Cummings Electrical, Inc.; Unknown Owners; and Nonrecord Claimants, Defendants-Appellees.

         Appeal from the Circuit Court of Lee County, No. 14-CH-38; the Hon. Daniel A. Fish, Judge, presiding.

         Affirmed.

          Carolyn L. Morehouse, Chad J. Shifrin, and Daniel S. Brennan, of Laurie & Brennan LLP, of Chicago, for appellant.

          Riccardo A. DiMonte and Ryan R. Van Osdol, of DiMonte & Lizak, LLC, of Park Ridge, for appellees Louis J. Vaessen and Carol A. Vaessen.

          Douglas E. Lee, of Ehrmann, Gehlbach, Badger, Lee & Considine, LLC, of Dixon, for appellee GSG 7, LLC.

          James E. Morgan, of Howard and Howard, of Chicago, for appellee Clipper Windpower, LLC.

          No brief filed for other appellees.

          John S. Mrowiec and Timothy R. Conway, of Conway & Mrowiec, of Chicago, for amicus curiae Associate General Contractors of America et al.

          Garrett L. Boehm, Jr., and Nicholas R. Lykins, of Johnson & Bell, Ltd., of Chicago, and Eric B. Travers, of Kegler Brown Hill & Ritter Co., LPA, of Columbus, Ohio, for amicus curiae American Subcontractors Association, Inc.

          Eugene Grace and Gene Grace, of Washington, D.C., amicus curiae American Wind Energy Association.

          Panel PRESIDING JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices McLaren and Jorgensen concurred in the judgment and opinion.

          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.

         ¶ 2 BACKGROUND

         ¶ 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 wind turbine.

         ¶ 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 wind turbine.

         ¶ 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 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 its lien.

         ¶ 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 [7] chose to terminate the easement and removed all of its property brought onto the premises as allowed by the easement agreement, [1] 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.