Cordeck Sales, Inc. v. Construction Systems, Inc.

JUSTICE QUINN,

dissenting:

I agree with the majority that CSI’s lien described the property with sufficient specificity to comply with section 7 of the Act. I also agree that CSI’s and Cordeck’s liens were not invalid because the project extended beyond the three-year deadline imposed by section 6 of the Act. I dissent from the majority in that I would affirm summary judgment for CSI on the timeliness of its lien filing and I would affirm the trial court’s denial of the motion to compel production of the CSICordeck settlement agreement as being within the broad discretion possessed by the circuit court.

In the instant case, First Midwest moved for partial summary judgment on CSI’s counterclaim. CSI then moved for partial summary judgment on the issues of the validity of its lien and the effect of the partial lien waivers. When the parties file cross-motions for summary judgment, “they agree that no genuine issue as to any material facts exists and that only a question of law is involved, and they invite the court to decide the issues based on the record.” State Farm Fire & Casualty Co. v. Martinez, 384 Ill. App. 3d 494, 498 (2008).

The trial court conducted a hearing on the parties’ motions for summary judgment. As the majority point out, FMB relied upon logs generated by the project manager, AMEC Construction Management, which were daily reports of activity on the project. The majority assert that CSI’s absence from the project manager’s logs on the days it purportedly performed work validating its lien creates an inference that it did not work on those days and the consequential inference that the filing of its lien was untimely. The majority also assert that the affidavit of CSI’s vice president merely creates a contrary inference.

FMB had provided a copy of the logs along with its motion for summary judgment. The trial court conducted a hearing on this issue on October 12, 2006. The court said: “So we have two bare assertions. Here’s what we are going to do. We are going to take the time to get this right. I will allow you [both] to supplement... The issue is, as far as I’m concerned, the extent of proof or lack of proof that they [CSI] were on the job either supplying materials and/or performing services.”

In response to this order, CSI provided an affidavit of its vice president, Perry Haberer, which explained that Haberer went to Chicago from Minnesota with several CSI employees and they worked on the project for several days, completing the work on June 18, 2003. As part of this affidavit Haberer provided details as to the hotel in which he and his employees stayed, the work they performed, and the materials they used. FMB responded to the order by relying on the same logs from AMEC which the court had previously characterized as “bare assertions.” At oral argument in this case, FMB’s counsel said that they had no further evidence to present on the issue of CSI’s last day of work and, should this court reverse the finding of summary judgment on this issue, on remand FMB would again rely upon the AMEC logs. He did express the belief that testing Haberer through cross-examination might reveal evidence in FMB’s favor. This is plainly insufficient to avoid entry of summary judgment in favor of CSI.

In Cordeck I, this court confronted similar issues regarding the sufficiency of affidavits filed in support of, or in opposition to, motions for summary judgment. As we explained in Cordeck I, Supreme Court Rule 191(a) requires that affidavits “be made on the personal knowledge of the affiant[ ]” and “set forth with particularity the facts upon which the claim, counterclaim, or defense is based.” 210 Ill. 2d R. 191(a). “Accordingly, affidavits that are conclusory and fail to state facts with particularity do not strictly comply with Rule 191(a) and may be stricken.” Cordeck I, 383 Ill. App. 3d at 382, citing Robidoux v. Oliphant, 201 Ill. 2d 324, 336 (2002).

I do not believe that AMEC’s logs may be properly considered as affidavits as they are completely lacking in showing personal knowledge and set forth no facts with particularity. Because FMB failed to contradict Haberer’s affidavit with a counteraffidavit, or other admissible evidence, Haberer’s statement concerning CSI’s completion date must be taken as true. Cordeck I, 382 Ill. App. 3d at 384, citing Financial Freedom v. Kirgis, 377 Ill. App. 3d 107, 134 (2007).

Further, “[o]ne of the primary purposes of [section 7 of the Act’s] four-month requirement is that third parties be enabled to learn from the claim whether it is enforceable.” (Emphasis omitted.) Merchants Environmental Industries, Inc. v. SLT Realty Ltd. Partnership, 314 Ill. App. 3d 848, 869 (2000). Here, FMB was well aware of the lien claim from CSI as FMB was intimately involved in the construction of the project.

Finally, I do not agree with the majority that the trial court abused its discretion in not ordering CSI to produce its settlement agreement with Cordeck. It was uncontested that 26 of the 27 items for which CSI sought compensation as “extras” related to work performed by Cordeck. I agree with the majority that the trial court should have ordered the production of the settlement agreement. However, I do not believe this rose to an abuse of discretion.