from the Circuit Court of Lee County, No. 14-CH-38; the Hon.
Daniel A. Fish, Judge, presiding.
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.
E. Morgan, of Howard and Howard, of Chicago, for appellee
Clipper Windpower, LLC.
brief filed for other appellees.
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.
Grace and Gene Grace, of Washington, D.C., amicus curiae
American Wind Energy Association.
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 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