specially concurring:
The majority opinion holds that, under the facts present here, the lienor’s intent controls and, thus, the September 1, 1993, notice did not constitute a claim under section 23 of the Mechanics Lien Act. 770 ILCS 60/23 (West 1994). While I agree in the ultimate result that the majority reaches, I do not agree that the subjective intent of the lienor is a factor that should be considered by the court.
As the majority recognizes, a single claim notice may, in some circumstances, constitute sufficient notice under both the Mechanics Lien Act and under the Public Construction Bond Act. See Aluma, 206 Ill. App. 3d at 834. The two statutes, however, provide different remedies, and a lien claimant may file a lien under one or both of the statutes, either jointly or severally. The validity of a claim notice under either statute must therefore be determined with reference to the statutory requirements. Contrary to the majority opinion, a determination of the claimant’s subjective intent is not contemplated by either statute. Thus, Walker’s intent is not controlling here. Rather, the more relevant inquiry is whether, under the facts present here, it was reasonable for Advance to construe the September 1 notice as a claim under the Mechanics Lien Act.
The language Walker employed in its September 1 notice plainly states that it "is made to induce the Federal Insurance Company, as Surety, on a bond covering the [subject] contract, to settle the claim herein set forth.” Although neither the Mechanics Lien Act nor the Public Construction Bond Act requires that the claim notice be denominated as a claim under the particular act, where, as here, the lien claimant has plainly identified the purpose of the notice, the recipient is not free to disregard such designation. Accordingly, if the lienor’s intent is to be considered at all, it is only the objective manifestation of that intent which is important in construing the validity of a notice. Consideration should not be given to affidavits setting forth a lienor’s subjective intent.
Further, under Advance’s "substantial compliance” argument, a claimant could never file a notice under the Bond Act without it also being construed as notice under the Mechanics Lien Act. Such a result would effectively deprive a claimant, like Walker, of its right to elect which remedy to pursue at what point in time. This cannot be what the legislature intended.
In Aluma, on which Advance relies, the subject notice was clearly labeled, "Notice of Claim for Lien on Public Funds and on Bond.” The question of substantial compliance dealt only with the party to whom notice was sent. Nowhere in the Aluma opinion did this court imply that "substantial compliance” could or should be used to defeat a claim under the Mechanics Lien Act because a prior notice, made pursuant to the Public Construction Bond Act, "substantially complied” with the Mechanics Lien Act. Indeed, the whole notion of "substantial compliance” is to prevent a forfeiture of a lien for reasons of defective service or otherwise so that the remedial purposes of the Act are not frustrated. See Aluma, 206 Ill. App. 3d at 847. It is not intended, as Advance would argue, to facilitate a forfeiture.
Additionally, the record is devoid of any reference to action Advance took or failed to take in reliance on its conclusion that Walker’s September 1 notice was made under the Mechanics Lien Act. Nor has Advance argued that it was otherwise somehow prejudiced. Similarly, there is no information that the Metropolitan Water Reclamation District treated Walker’s September notice as a claim for lien under the Mechanics Lien Act. In Aluma, the municipality, upon receipt of the notice in question, reserved the amount claimed.
Under the facts present here, Advance could not reasonably construe the September 1 notice as a claim for lien under the Mechanics Lien Act, where the notice clearly indicated a lien under the Public Construction Bond Act. Accordingly, this court need not look to other extrinsic documents relating to Walker’s subjective intent to determine the validity of the September 1 notice.