Rothers Construction, Inc. v. Centurion Industries, Inc.

JUSTICE McCULLOUGH,

dissenting:

I respectfully dissent. Section 25 of the Act should be applied.

At the time notice was given, plaintiff knew O’Malley Grain was a corporation and that its registered agent was located in Cook County, Illinois. In late August 2000, O’Malley was made aware that plaintiff had not been paid. O’Malley, himself, advised plaintiff he needed to file a mechanics lien notice. Nothing in the record indicates O’Malley Grain or its chief executive officer, Robert E O’Malley, notified or told plaintiff he was the person in charge of the construction project. The first notice to plaintiff was the motion of December 20, 2001, with the attached affidavit showing Robert E O’Malley to be the agent. This court should not give credence to the self-serving, after-the-fact, affidavit.

I also disagree with the majority’s discussion as to the import of a recorded notice. The purpose of the recording is, as it states, giving notice of record.

I conclude that section 25 does apply to the facts presented. The provisions of section 25 were followed, and plaintiff properly followed its dictates. To give credence to the affidavit in support of the motion to dismiss encourages abuse in defending mechanics hen actions.

The trial court’s grant of defendants’ motion to dismiss should be reversed.