No. 2--96--0724
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
VERNON HILLS III LIMITED ) Appeal from the Circuit Court
PARTNERSHIP, ) of Lake County.
)
Plaintiff and Counter- )
defendant-Appellee, )
)
v. ) Nos. 95--CH--587,
) 95--CH--628,
ST. PAUL FIRE AND MARINE ) 95--CH--903
INSURANCE COMPANY, )
)
Defendant )
)
(Bucon, Inc., d/b/a Butler ) Honorable
Construction Company, Defendant ) Peter M. Trobe,
and Counterplaintiff-Appellant).) Judge, Presiding.
_______________________________________________________________
PRESIDING JUSTICE GEIGER delivered the opinion of the court:
The defendant and counterplaintiff, Bucon, Inc. (Bucon),
appeals from the April 23, 1996, order of the circuit court of Lake
County granting summary judgment in favor of the plaintiff and
counterdefendant, Vernon Hills III Limited Partnership (VHLP), on
its claim for declaratory judgment. The trial court ruled that
Bucon forfeited its mechanic's lien by failing to commence an
action to foreclose the lien within 30 days after receipt of VHLP's
written demand to sue, as required by section 34 of the Mechanics
Lien Act (the Act) (770 ILCS 60/34 (West 1994)). On appeal, Bucon
argues that the trial court erred in finding that VHLP's letter of
July 29, 1994, constituted a written demand to sue pursuant to
section 34 of the Act. We affirm and remand.
The facts necessary for the disposition of this appeal are as
follows. On February 18, 1993, VHLP contracted with Bucon to
design and build a shopping center in Vernon Hills. Bucon was to
design and construct all of the buildings, as well as numerous site
improvements, including the parking lot and utility connections.
The contract provided that Bucon would be paid approximately $15
million for the project. Bucon commenced construction in the
spring of 1993, and a certificate of substantial completion was
issued on August 22, 1994.
On July 21, 1994, Bucon filed a mechanic's lien against the
shopping center in the Lake County recorder's office. The lien was
in the amount of $1,315,249. On August 1, 1994, Bucon received,
via certified mail, a letter from VHLP dated July 29, 1994. The
letter provides, in pertinent part:
"Pursuant to Article 11.4 of that certain Design Build
Contract dated as of February 18, 1993, *** between [VHLP] and
[Bucon] for the design and construction of a retail shopping
center *** located in Vernon Hills, Illinois, this letter
shall serve as notice of your breach on the Contract pursuant
to Article 11.5.2 of the Contract.
Article 11.5.2 of the Contract provides that '[i]n no
event may Design/Builder file, or permit those whom it
controls or for whom it has legal responsibility under the
Contract to file, a mechanics' *** lien or claim for lien for
work performed under the Contract ***.' However, on July 21,
1994, a claim for lien in the amount of $1,315,249.00 was
filed in the Lake County Recorder's Office ***. This course
of action is clearly in violation of the Contract.
We hereby demand that you either immediately release your
lien or bring suit to enforce it so that this matter can be
expeditiously resolved. We fully intend to look to your
organization in order to recapture any additional costs we may
incur in connection with your actions. In addition, in the
event this lien is not released of record immediately, we will
pursue all other rights and remedies available in the
Contract, at law or in equity in response to your breach and
your failure to fulfill the requirements of this letter."
On August 3, 1994, Bucon received a follow-up letter from
VHLP's attorney dated July 28, 1994. The letter provided as
follows:
"You should be receiving, if you have not received
already, a copy of ownership's letter in connection with the
mechanic's lien you recently filed under Illinois' Mechanic's
Lien Statute (770 ILCS 60/1, et seq.). It is not the purpose
of this letter to alter the contents of ownership's letter,
but I did want to initiate with you a discussion as to why you
have filed the lien and what purpose you think it will serve
and further to suggest a dialogue to accomplishing the mutual
objectives of your company and ownership. If you are so
inclined, please give me a call."
Thereafter, VHLP's attorney and Bucon's attorney had several
conversations in which they discussed the lien. During these
conversations, Bucon's attorney explained that, although Bucon
intended to preserve its rights under the Act, it would nonetheless
assist VHLP in closing out the project. VHLP's attorney reiterated
VHLP's position that Bucon had breached the contract by filing the
lien.
On August 4 and 17, 1994, VHLP's attorneys wrote Bucon
regarding certain paperwork that had to be completed in order to
close out the project and to get the property ready for sale.
After August 1994, Bucon and VHLP continued to correspond through
their attorneys with respect to completing the steps necessary to
close out the project. Bucon fully cooperated with these efforts
to complete the project.
On October 27, 1994, VHLP made a claim to Bucon seeking
liquidated damages arising from construction delays on the project.
Between November 1994 and August 1995, Bucon and VHLP engaged in
negotiations in an attempt to settle Bucon's lien and VHLP's delay
claim. The parties arrived at a tentative settlement agreement
whereby Bucon would discount its lien from $1,315,249 to
$922,901.50 and the parties would mutually release their claims.
However, this settlement agreement broke down when the parties were
unable to reach an agreement with respect to alleged defects in the
building's roof.
On January 13, 1995, VHLP filed suit against Bucon claiming
damages in excess of the amount of Bucon's lien. On February 27,
1995, VHLP filed an amended five-count complaint. Count IV, which
is the only count relevant on appeal, sought a declaration that
Bucon had forfeited its mechanic's lien by failing to commence an
action to foreclose its lien within 30 days after receipt of VHLP's
written demand to sue as required by section 34 of the Act (770
ILCS 60/34 (West 1994)). In June 1995, Bucon filed a counterclaim
against VHLP seeking a judgment in the amount of its contract
balance. On August 30, 1995, Bucon filed a separate action seeking
enforcement of its lien.
On January 19, 1996, VHLP filed a motion for summary judgment
on count IV of the amended complaint. VHLP argued that its letter
of July 29, 1994, was a written demand, made pursuant to section 34
of the Act, that Bucon commence suit to enforce its mechanic's
lien. Although Bucon received VHLP's letter on August 3, 1994, it
did not file suit to enforce its lien within the next 30 days.
VHLP therefore concluded that Bucon had forfeited its lien under
section 34 of the Act.
In response to the motion, Bucon argued that VHLP's July 29,
1994, letter was not a written demand to sue under section 34 of
the Act. Bucon argued that the letter did not contain any
reference to section 34 and did not indicate that Bucon's failure
to commence suit within 30 days would render its lien void. In
support of its position, Bucon submitted the affidavit of its
attorney stating that he did not understand the July 29, 1994,
letter to be a demand pursuant to section 34 of the Act. Bucon's
attorney also stated that he was unaware of section 34 at the time
he received the letter and that at no time did VHLP's attorney
mention the statute or its contents. Alternatively, Bucon argued
that, even if the July 29, 1994, letter was a written demand to sue
under section 34 of the Act, VHLP was estopped from asserting the
defense due to its subsequent conduct and attempts to settle the
lien.
On April 23, 1996, the trial court granted VHLP's motion for
summary judgment and declared Bucon's mechanic's lien forfeited and
null and void. On May 23, 1996, the trial court made this order
final and appealable pursuant to Supreme Court Rule 304(a) (155
Ill. 2d R. 304(a)). Bucon filed a timely notice of appeal.
Bucon first argues that the trial court erred in determining
that, as a matter of law, VHLP's July 29, 1994, letter satisfied
the statutory demand requirements of section 34 of the Act. Bucon
argues that this question is a disputed material fact which
precludes the entry of summary judgment.
The purpose of a motion for summary judgment is to determine
whether a genuine issue of triable fact exists (Purtill v. Hess,
111 Ill. 2d 229, 240 (1986)), and a motion for summary judgment
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 a judgment as a matter of law" (735
ILCS 5/2--1005(c) (West 1994)). In determining the existence of a
genuine issue of material fact, the court must construe the
evidence strictly against the moving party and liberally in favor
of the nonmoving party. Gatlin v. Ruder, 137 Ill. 2d 284, 293
(1990). The disposition of a summary judgment motion is not
discretionary and the standard of review is de novo. Quinton v.
Kuffer, 221 Ill. App. 3d 466, 471 (1991).
Section 34 of the Act provides, in pertinent part:
"Upon written demand of the owner *** served on the
person claiming the lien ***, requiring suit to be commenced
to enforce the lien or answer to be filed in a pending suit,
suit shall be commenced or answer filed within 30 days
thereafter, or the lien shall be forfeited. Such service may
be by registered or certified mail, return receipt requested,
or by personal service." 770 ILCS 60/34 (West 1994).
The failure of the lienholder to commence suit within 30 days of
receipt of a written notice made pursuant to section 34 of the Act
operates to forfeit and remove the mechanic's lien. Pickus
Construction & Equipment Co. v. Bank of Waukegan, 158 Ill. App. 3d
141, 146 (1987).
We are not aware of any Illinois case that has specifically
articulated the precise language required of a written demand to
sue made pursuant to section 34 of the Act. Lacking any such
judicial interpretation, we will look to the plain meaning of the
statute's language, as well as the legislature's intent in
enacting the statute. See In re Application of County Collector,
181 Ill. App. 3d 345, 348 (1989). The best indication of the
legislature's intent is the statute's language, and, where the
statutory language is unambiguous, the court must enforce the law
as written. Oak Brook Park District v. Oak Brook Development Co.,
170 Ill. App. 3d 221, 229 (1988). We also note that mechanics
lien statutes are in derogation of the common law, and therefore
such statutes must be strictly construed. Matthews Roofing Co. v.
Community Bank & Trust Co., 194 Ill. App. 3d 200, 205 (1990).
Applying these rules of statutory construction to the instant
case, we conclude that VHLP's July 29, 1994, letter satisfied the
written demand requirements of section 34 of the Act and triggered
the tolling of the 30-day limitation period. The plain language
of the statute requires only that the owner of the property make
a written demand to the lienholder requiring that suit be
commenced to enforce the lien. Such a written demand must be
served either personally or by registered or certified mail,
return receipt requested. VHLP's letter of July 29, 1994,
satisfies all of these statutory requirements: the letter is a
written demand by the property owner (VHLP) to the lienholder
(Bucon), demanding Bucon to "either immediately release" the lien
or to "bring suit to enforce it." The letter was sent via
certified mail, return receipt requested, and Bucon signed for the
letter on August 1, 1994.
Bucon correctly notes that the July 29, 1994, letter makes no
reference to either section 34 of the Act or the requirement that
Bucon file a lien enforcement suit within 30 days. Such
information, however, is not statutorily required by section 34 of
the Act. We decline to impose additional notice requirements that
are not contained within the plain language of the statute. It
was not the responsibility of VHLP to educate Bucon, or its
attorney, about the operation and effect of the Act. As the July
24, 1994, letter satisfied all of the statutory requirements of
section 34, it was effective to trigger the tolling of the 30-day
period during which Bucon was obligated to commence suit to
enforce its lien.
Bucon also argues that, even if the July 24, 1994, letter was
a sufficient demand pursuant to section 34 of the Act, VHLP is
estopped from raising such a defense by reason of its conduct
during the 30-day period after Bucon received the letter.
Specifically, Bucon relies on VHLP's participation in settlement
negotiations on Bucon's lien, as well as VHLP's repeated requests
for Bucon's assistance with the paperwork necessary to close out
the project. This argument is without merit.
Illinois courts have held that the time limitations contained
in the various sections of the Act are jurisdictional and that
there is no right to a lien unless the statutory periods are
complied with. Muehlfelt v. Vlcek, 112 Ill. App. 2d 190, 193
(1969). These time limitations are not subject to waiver or
estoppel, because unlike statutes of limitation, they are not
merely a limitation on the remedy afforded under the Act, but
rather a condition which must be satisfied before the right to the
remedy under the Act exists. Garbe Iron Works, Inc. v. Priester,
99 Ill. 2d 84, 88 (1983); D.M. Foley Co. v. North West Federal
Savings & Loan Ass'n, 122 Ill. App. 3d 411, 418 (1984). The
failure to comply with the Act's time limitations results in the
loss of the statutory remedy afforded under the Act. Well Done
Heating & Sheet Metal Co. v. Ralph Schwartz & Associates, 112 Ill.
App. 3d 438, 442-43 (1983).
However, even if the estoppel doctrine could be applied to
bar VHLP from asserting the defense provided by section 34 of the
Act, the circumstances in the instant case would not support the
doctrine's application. Estoppel applies only in those instances
where: (1) the defendant has made some misrepresentation or
concealment of a material fact; (2) the defendant had knowledge,
either actual or implied, that the representations were untrue at
the time they were made; (3) the plaintiff was unaware of the
untruth of the representations both at the time they were made and
the time they were acted upon; (4) the defendant either intended
or expected his representations or conduct to be acted upon; (5)
the plaintiff did, in fact, rely upon or act upon the
representations or conduct; and (6) the plaintiff has acted on the
basis of the representations or conduct such that he would be
prejudiced if the defendant is not estopped. Strom International,
Ltd. v. Spar Warehouse & Distributors, Inc., 69 Ill. App. 3d 696,
703 (1979). The mere pendency of negotiations conducted in good
faith is insufficient to give rise to estoppel. Viirre v. Zayre
Stores, Inc., 212 Ill. App. 3d 505, 515 (1991).
In making its estoppel argument, Bucon focuses on several
letters by VHLP attorneys to Bucon during the 30 days following
its receipt of the July 24, 1994, letter. These communications
related to (1) the parties' "mutual objectives" in resolving
matters and closing out the project without resorting to
litigation; (2) VHLP's request that Bucon assist with the
paperwork necessary to close out the project; and (3) a plan for
the project's closeout and the deposit of Bucon's lien waiver in
escrow. Bucon argues that the totality of this conduct creates a
question of fact as to whether VHLP "lulled" Bucon into not filing
a suit to enforce its lien.
Contrary to Bucon's assertions, however, in none of these
letters does VHLP indicate that it was withdrawing its written
demand to sue. Rather, these communications discuss the steps
necessary to close out the project and express the general hope
that litigation could be avoided. Such correspondence does not
reasonably support an inference that VHLP was relinquishing its
statutory rights pursuant to section 34 of the Act. In fact,
VHLP's attorney expressly indicated in a July 28, 1994, letter
that it was not the intent of the communication to alter the
contents of "ownership's letter in connection with the mechanic's
lien" filed by Bucon. We cannot believe that Bucon was "lulled"
into not filing suit, when its own attorney admitted that he was
unaware of the procedural requirements set out by section 34 of
the Act. We therefore conclude that VHLP was not estopped from
exercising its statutory rights pursuant to section 34 and that
the trial court properly entered summary judgment in its favor.
As its final argument, Bucon contends that the application of
section 34 to forfeit its lien is unconstitutional. Bucon asserts
that the written demand provisions of section 34 are insufficient
to satisfy the requirements of procedural due process. Bucon
argues that it should have been given an opportunity to be heard
prior to the deprivation of its property interest in the lien.
We do not address the merits of this argument as it has not
been properly presented on appeal. Supreme Court Rule 341(e)(7)
(155 Ill. 2d R. 341(e)(7)) admonishes appellants that argument in
an appellant's brief shall include "citation of the authorities
*** relied on. *** Points not argued are waived and shall not be
raised in the reply brief ***."
A reviewing court is entitled to have issues clearly defined
with pertinent authority cited and coherent arguments presented;
arguments inadequately presented on appeal are waived. Spinelli
v. Immanuel Lutheran Evangelical Congregation, Inc., 118 Ill. 2d
389, 401 (1987). Statements unsupported by argument or citation
of relevant authority do not merit consideration on review.
Holmstrom v. Kunis, 221 Ill. App. 3d 317, 325 (1991). A reviewing
court will not become an advocate for, as well as the judge of,
points the appellant seeks to raise. Holmstrom, 221 Ill. App. 3d
at 325.
Bucon has barely articulated, much less properly supported,
grounds for its constitutional argument. The only authority cited
by Bucon in its appellate brief is Connecticut v. Doehr, 501 U.S.
1, 115 L. Ed. 2d 1, 111 S. Ct. 2105 (1991), and this authority was
cited without comment. We agree with VHLP that Doehr is
inapposite to the situation presented here. In Doehr, the United
States Supreme Court held that Connecticut's ex parte attachment
procedure was unconstitutional because it permitted trial courts
to make a prejudgment attachment of real estate without prior
notice or hearing to the landowner. 501 U.S. at 24, 115 L. Ed. 2d
at 21, 111 S. Ct. at 2119. Section 34 of the Act does not impress
a lien on a landowner's property interest; instead, the section
creates a statutory limitation period for a lienholder to enforce
its lien. Because Bucon has failed to cite any relevant authority
to support its argument, it has waived the argument pursuant to
Rule 341(e)(7).
For the foregoing reasons, the judgment of the circuit court
of Lake County is affirmed, and this cause is remanded for further
proceedings consistent with this decision.
Affirmed and remanded.
INGLIS and HUTCHINSON, JJ., concur.