Construx of Illinois, Inc. v. Kaiserman

800 N.E.2d 1267, 345 Ill. App. 3d 847, 279 Ill. Dec. 684
CourtAppellate Court of Illinois
DecidedDecember 10, 2003
Docket4-03-0136
StatusPublished
Cited by7 cases

This text of 800 N.E.2d 1267 (Construx of Illinois, Inc. v. Kaiserman) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Construx of Illinois, Inc. v. Kaiserman, 800 N.E.2d 1267, 345 Ill. App. 3d 847, 279 Ill. Dec. 684 (Ill. Ct. App. 2003).

Opinion

JUSTICE STEIGMANN

delivered the opinion of the court;

In December 1999, plaintiff, Construx of Illinois, Inc. (Construx), sought to foreclose and enforce a mechanic’s lien against property located at 302, 304, and 306 East Washington Street in Springfield (subject property). In May 1999, when Construx entered into an agreement with John Shipley to make certain improvements to the building located on the subject property, the property was under an installment sale contract between Shipley as the purchaser, and defendant Bette Kaiserman, both individually and as a trustee, and her sons, defendants Donald L. Kaiserman and Herbert A. Kaiserman, as owners. Following an October 2002 bench trial, the trial court entered an order foreclosing and enforcing Construx’s mechanic’s hen.

The Kaisermans appeal, arguing that (1) the trial court erred by determining that they as sellers under the installment sale contract, were “owners” under section 1 of the Mechanics Lien Act (Act), as opposed to lienholders under section 16 of the Act (770 ILCS 60/1, 16 (West 1998)); (2) section 16 of the Act, as applied, violates the equal protection clauses of the United States (U.S. Const., amend. XIV) and Illinois Constitutions (111. Const. 1970, art. I, § 2); and (3) even accepting that they are “owners” under the Act, the court’s finding that they authorized or knowingly permitted Construx to make the improvements was against the manifest weight of the evidence. We affirm.

I. BACKGROUND

In October 1996, the Kaisermans entered into an installment land sale contract (hereinafter contract) with Shipley for the sale of the subject property. The property consisted of a parcel of land and a three-story brick building, which housed three commercial units on the first floor (one of which Shipley was then leasing from the Kaiser-mans and operating as the Station House Tavern (hereinafter tavern)) and apartments on the second and third floors. According to the payment terms of the contract, the total sale price was $275,000, and Shipley was to make a $30,000 down payment, pay $2,504.32 in monthly installments for a five-year period, and then pay the remaining balance in a lump sum.

The contract also provided, in pertinent part, as follows:

“6. [Shipley] agrees to cause no improvements to be made upon said premises costing in excess of $1,000.00 without first securing the written consent of the [Kaisermans]. [Shipley] shall further keep said premises free and clear of any valid mechanic’s lien and shall hold [the Kaisermans] indemnified against any valid lien arising by reason of [Shipley’s] possession of said premises.
7. No failure on the part of the [Kaisermans] to enforce any right accruing to [the Kaisermans] because of any default of [Shipley] in failing to perform promptly any of the provisions hereof, no matter how many times such failure to enforce such rights may be repeated by the [Kaisermans], shall be construed to operate as a waiver of any of the provisions of this agreement, but the [Kaisermans] may at any time omit to take advantage of, or waive any default in any of the provisions hereof without prejudice to the [Kaisermans’] rights to enforce each and all of the provisions of this agreement with reference to any other or subsequent default.”

The parties did not record the contract.

In May 1999, Shipley entered into an agreement with Construx to demolish the existing stairwell on the rear of the building and construct an exterior three-floor deck and staircase for a cost of $48,687. In late July 1999, following the completion of those improvements, Shipley informed Bette that he was no longer able to make monthly payments on the contract due to financial difficulties. At that time, the Internal Revenue Service had filed a $300,000 tax lien against Shipley, and Shipley had failed to pay 1998 property taxes (totaling $3,600). The Kaisermans agreed to terminate the contract, and Shipley continued to operate the tavern as the Kaisermans’ lessee.

In August 1999, Construx recorded a $48,687 mechanic’s lien against the property and Bette as owner. In December 1999, Construx filed a complaint, seeking to foreclose and enforce the mechanic’s hen.

At the October 2002 bench trial, Bette testified as an adverse witness that she acted as Donald and Herbert’s agent in managing the property. After she, Donald, and Herbert entered into the contract to sell the property to Shipley, she “very rarely” drove by the rear of the building. She denied knowing that the rear stairs were in disrepair or observing Construx’s construction on the rear of the building. Bette could not recall whether she spoke with Doyle Finley, a tavern employee, about the construction while it was taking place. She acknowledged speaking with a Construx employee but claimed that the conversation took place after the construction was completed. Bette also acknowledged that sometime between May and June 1999, Shipley provided her with a copy of an appraisal of the property, which indicated, in pertinent part, that the “rear stairwell/fire escape [was] in need of substantial repair or replacement.” She further acknowledged that despite the language in paragraph six of the contract, she and Shipley had a verbal agreement that he could spend over $1,000 on the expansion and improvement of the tavern without first receiving the Kaisermans’ written consent. However, she denied having an agreement with him regarding other improvements to the property.

Finley testified that he worked as a janitor at the tavern during the time that Construx was completing the construction on the rear of the building. On one occasion during that time period, Finley saw Bette at the rear of the building. Bette saw the construction in progress, and Finley thought he remembered her commenting that it looked nice. Bette did not express disapproval or object to the construction. Finley did not think that the construction was “substantially completed” on that occasion.

Shipley testified as an adverse witness that after he entered into the contract with the Kaisermans, he began remodeling the tavern and expanding it to encompass two of the building’s three commercial units. Although Shipley spent around $30,000 on that project, he never received Bette’s written consent. Between late 1996 and July 1999, he also spent between $30,000 or $40,000 to repair and remodel some of the apartments without receiving Bette’s written consent. He acknowledged that he spent much of that money on new furnishings for the apartments. Before Shipley entered into the October 1996 contract with the Kaisermans, Bette visited the building frequently. After they entered into the contract, she did not visit as often.

Shipley also testified that in May 1999, the City of Springfield informed him that the stairwell at the rear of the building was rotten and in disrepair and he had to immediately repair or replace it. Shipley contacted Gary Sharp, Construx’s director, and informed him that Shipley had a “major problem.” Sharp came to the building that same day, and Shipley later entered into an agreement with Construx to demolish the existing stairwell and construct an exterior three-floor deck and staircase at a cost of approximately $48,000.

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Bluebook (online)
800 N.E.2d 1267, 345 Ill. App. 3d 847, 279 Ill. Dec. 684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/construx-of-illinois-inc-v-kaiserman-illappct-2003.