Hayden v. Adams

2020 IL App (1st) 191411-U

• Court: Appellate Court of Illinois
• Decided: April 16, 2020
• Docket: 1-19-1411
• Status: Unpublished

Opinion

2020 IL App (1st) 191411-U

FOURTH DIVISION April 16, 2020

No. 1-19-1411

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

ROGESTER HAYDEN, JR., ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 18 CH 1697 ) WILLIAM ADAMS d/b/a ADAMS REMODELING, ) Honorable ) Lewis Nixon, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE BURKE delivered the judgment of the court. Justices Lampkin and Reyes concurred in the judgment.

ORDER

¶1 Held: We affirm the circuit court’s grant of summary judgment in favor of plaintiff where defendant failed to comply with section 34 of the Mechanics Lien Act.

¶2 Defendant William Adams, d/b/a Adams Remodeling, appeals following the trial court’s

order denying his motion for summary judgment and granting summary judgment in favor of

plaintiff Rogester Hayden, Jr. On appeal, Adams argues that the trial court erred in finding

invalid Adams’ mechanics lien on Hayden’s real property and granting summary judgment to

Hayden. For the reasons that follow, we affirm. 1-19-1411

¶3 I. BACKGROUND

¶4 This lawsuit stems from a “FHA Homeowner/Contractor Agreement” (agreement)

entered into between Adams and Hayden on January 12, 2017, to renovate Hayden’s residential

property located on Dearborn Street in South Holland, Illinois. Hayden agreed to pay Adams

$16,337.20 to rehabilitate his property under the agreement. At some point in April 2017,

however, Adams ceased renovations prior to completion and Hayden terminated Adams as the

contractor and failed to tender full payment.

¶5 Adams filed a mechanics lien, number 1723519064, in the amount of $10,619.18 with the

Cook County Recorder of Deeds on August 23, 2017. The law firm Nicholas Law Group

prepared the lien. Hayden was never served with a copy of the lien; he only discovered its

existence while doing a search of his property on the Recorder’s website in October 2017.

¶6 On December 21, 2017, Hayden sent a letter to Adams demanding that he commence suit

to enforce the lien (demand letter) pursuant to section 34 of the Mechanics Lien Act (the Act)

(770 ILCS 60/34 (West 2018)) within 30 days of receipt of the demand letter. Hayden sent the

demand letter to Nicholas Law Group by certified mail, return receipt requested. However,

neither Nicholas Law Group nor Adams ever received the demand letter.

¶7 Hayden later instituted a declaratory judgment action against Adams on February 8,

2018. In the complaint, Hayden alleged that he ordered an inspection by a licensed home

inspector who found 15 different problems with the renovations. Hayden requested that Adams

remedy these issues, but Adams insisted that the work had been completed satisfactorily. Hayden

alleged that he obtained an estimate from another construction company for the remediation,

which offered a quote of $12,280. Hayden requested that the court declare the lien invalid and

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forfeited due to Adams’ failure to properly respond to the demand letter within 30 days.

Attached as an exhibit to the complaint was a copy of the December 21, 2017, demand letter.

¶8 Adams was served on May 2, 2018, with a copy of the complaint and summons by

special process server. Adams filed an answer to the complaint on September 11, 2018. The

parties both filed motions for summary judgment.

¶9 In Hayden’s motion for summary judgment, he contended that, pursuant to section 34 of

the Act, Adams was required to respond to the complaint by June 4, 2018, that is, within 30 days

after service of the complaint on May 2, 2018, because Hayden attached to the complaint, as an

exhibit, the demand letter. Adams’ attorney filed an appearance on August 15, 2018, after

obtaining an extension from the trial court to retain counsel. Adams did not file an answer to the

complaint until September 11, 2018. Hayden argued that the 30-day time limitation in section 34

of the Act was jurisdictional and must be strictly complied with, or the lien is forfeited. Hayden

asserted that the demand letter attached to the complaint contained the required statutory

language to invoke the demand notice provision under section 34 of the Act.

¶ 10 In Adams’ motion for summary judgment, he asserted that the certified mailing United

States Postal Service (USPS) tracking information related to Hayden’s demand letter showed that

the demand letter was never delivered to anyone and thus cannot operate as a valid notice. It also

should have been sent to Adams and not his attorney. Because Hayden failed to provide Adams

with proper notice by serving on him personally the demand that Adams enforce his mechanics

lien, Adams contended that Hayden’s declaratory action should be denied. Adams additionally

argued that Hayden did not sufficiently allege in his complaint the facts necessary to assert that

the summons and complaint, with attached demand letter, operated as a section 34 notice.

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¶ 11 Following further briefing and oral arguments by the parties, the trial court issued a

written memorandum opinion and order on May 29, 2019, denying Adams’ motion for summary

judgment and granting Hayden’s motion for summary judgment. The trial court determined that

Hayden’s attempted service of the demand letter failed to fulfill the statutory requirements under

section 34 for service of a notice to commence suit because there was no evidence that Adams or

his attorney ever received the demand letter. However, the trial court held that Hayden’s

declaratory judgment complaint fulfilled the requirements under section 34 as a notice to

commence suit because Hayden attached the demand letter as an exhibit to the complaint and

referred to it in the complaint, thus incorporating it by reference. Accordingly, the trial court

found Adams’ mechanics lien invalid and forfeited, and ordered it removed from the property.

¶ 12 Adams filed a timely appeal.

¶ 13 II. ANALYSIS

¶ 14 We review the circuit court's decision on a motion for summary judgment de novo.

Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).

"[S]ummary judgment is proper only where 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." Mashal v. City of Chicago,

2012 IL 112341, ¶ 49 (citing 735 ILCS 5/2-1005(c) (West 2000)). "The purpose of summary

judgment is not to try a question of fact but to determine whether one exists." Golla v. General

Motors Corp., 167 Ill. 2d 353, 358-59 (1995). “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.” Vernon Hills III Limited Partnership v. St. Paul Fire &

Marine Insurance Co., 287 Ill. App. 3d 303, 307 (1997).

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¶ 15 As we are called on to interpret the statutory language of section 34 of the Mechanics

Lien Act in this case, “ we look at its plain meaning as well as the legislature's intent in enacting

the statute. [Citations.] The best indication of the legislature's intent is the language of the statute

itself; where the statutory language is unambiguous, we must enforce the law as written.”

Gateway Concrete Forming Systems, Inc. v. Dynaprop XVIII: State St. LLC, 356 Ill. App. 3d

806, 810 (2005).

¶ 16 On appeal, Adams argues that the trial court erred in concluding that he was properly

served with a demand notice to commence suit on his mechanics lien.

¶ 17 The purpose of the Mechanics Lien Act is to “permit a lien upon premises where a

property owner received a benefit from improvements to his property or realized an increase in

property value because of a contractor's labor and materials.” Gateway Concrete Forming

Systems, 356 Ill. App. 3d at 809. Because mechanics liens are solely a statutory creation in

derogation of common law, “the Act must be strictly construed with respect to those

requirements upon which the right to a lien depends.” Id.

¶ 18 Generally, a contractor has two years to file a lien after completing a project. Id. (citing

770 ILCS 60/24 (West 1998)). The lien places a cloud on the owner’s title. Id. (citing 770 ILCS

60/27 (West 2002)). However, pursuant to section 34, the property owner may “force the issue of

the validity of the claims filed by compelling the contractor to either enforce the lien within 30

days of receiving a demand notice or forfeit his rights to the lien.” Id. Section 34 provides:

“(a) Upon written demand of the owner, lienor, or any person interested in

the real estate, or their agent or attorney, served on the person claiming the

lien, or his agent or attorney, requiring suit to be commenced to enforce the

lien or answer to be filed in a pending suit, suit shall be commenced or answer

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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.

(b) A written demand under this Section must contain the following

language in at least 10 point bold face type: ‘Failure to respond to this notice

within 30 days after receipt, as required by Section 34 of the Mechanics Lien

Act, shall result in the forfeiture of the referenced lien.’ ” 770 ILCS 60/34

(West 2018).

¶ 19 The notice provision in section 34 is considered jurisdictional; “there is no right to a lien

unless the statutory periods are complied with.” Gateway Concrete Forming Systems, 356 Ill.

App. 3d at 809-10 (citing Vernon Hills III Limited Partnership, 287 Ill. App. 3d at 309). Thus,

failure to comply with the time limitations in section 34 results in loss of the statutory lien. Id.

¶ 20 Adams first contends that the demand letter was insufficient to constitute a notice to

commence suit under section 34(a). However, the circuit court agreed with this argument below

and found for Hayden on other grounds. Moreover, Hayden does not argue this as a basis for

affirmance on appeal. The record reflects that Hayden attempted service of the December 2017

demand letter on Adams’ attorney by certified mail, return receipt requested. In the complaint,

Hayden alleged that Adams’ attorney “received the letter on December 21, 2017.” However, as

the trial court found, Hayden only alleged and offered proof that the letter was sent, but not that

it was received, and Adams offered evidence in his answer that showed neither he nor his former

attorney received service of the demand letter. Adams provided the tracking information

showing that delivery was attempted but not completed. Adams also attached an affidavit from

his former attorney averring that he never received the letter. The circuit court held that there

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was no evidence that Adams or his attorney ever received the demand letter, and it thus failed as

a notice to commence suit under section 34(a). In light of this evidence, we agree with the circuit

court on this issue.

¶ 21 Adams next argues that the circuit court erred in finding that the summons and complaint

constituted a section 34 demand notice. Adams contends that the language and nature of the

complaint and summons were not a demand that Adams file suit or forfeit his lien. Rather, they

were intended to advance Hayden’s allegation that at the time the complaint was filed, Adams

had already forfeited his lien by failing to respond to the December 2017 demand letter. Adams

contends that attaching the demand letter to the complaint and summons failed to remedy the

lack of a proper section 34 demand notice and failed to transform the complaint and summons

into a section 34 demand notice.

¶ 22 It is undisputed that Hayden attached the demand letter as an exhibit to his complaint.

Hayden also specifically referred to the letter and asserted in his complaint that he sent the letter

to Adams’ counsel on December 20, 2017, to demand that Adams commence suit to enforce his

lien within 30 days, and Adams failed to take action to enforce his lien within that timeframe.

“Any document attached to the pleading will be treated as part of the pleading if the pleading

specifically incorporates it by reference. ‘To incorporate a document as an exhibit, the pleading

must refer to a specifically identified instrument and must clearly manifest an intent to

incorporate it as a part of that pleading.’ ” Bajwa v. Metropolitan Life Insurance Co., 208 Ill. 2d

414, 432 (2004) (quoting 3 R. Michael, Illinois Practice § 23.9, at 331-32 (1989)). Thus,

Hayden’s reference to the demand letter in his complaint clearly demonstrates that Hayden

intended to incorporate by reference the demand letter as part of his complaint.

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¶ 23 Adams also contends that even if properly served, the complaint and summons could not

constitute a section 34 demand notice because, by their plain language, they did not demand that

Adams file suit within 30 days or lose his lien.

¶ 24 We disagree. By way of example, in Charter Bank and Trust of Illinois v. Edward Hines

Lumber Co., 233 Ill. App. 3d 574, 578 (1992), the plaintiffs contended, inter alia, that the

summons in its foreclosure action constituted a section 34 notice and defendant forfeited its lien

by failing to file its counterclaim to foreclose its mechanic’s lien within 30 days after receipt.

The court held that the defendant complied with the statute because it filed an answer within 30

days of receipt of the summons. Id. The court observed that the plain language of the act required

that upon written demand “ ‘requiring suit to be commenced *** or answer to be filed in a

pending suit, suit shall be commenced or answer filed within 30 days thereafter.’ ” Id. (quoting

(Ill. Rev. Stat. 1989, ch. 82, par. 34.)). The court reasoned that the summons required only that

the defendant file an answer within 30 days, and the defendant did in fact file an answer within

that time limit. The court held that the language of the statute did not require that defendant

assert its lien by filing a counterclaim within 30 days, when the summons only required filing an

answer, which the defendant did within 30 days. The defendant later filed its counterclaim after

obtaining leave of court. Id.

¶ 25 Accordingly, by its plain language, section 34 applies to a “pending suit” such as

Hayden’s declaratory judgment action. Moreover, the language of Hayden’s complaint fulfilled

the statutory requirements under section 34(b). This section states that a written demand “must

contain the following language in at least 10 point bold face type: ‘Failure to respond to this

notice within 30 days after receipt, as required by Section 34 of the Mechanics Lien Act, shall

result in the forfeiture of the referenced lien.’ ” 770 ILCS 60/34(b) (West 2018).

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¶ 26 Here, the summons, standing alone, did not contain this requisite language. Rather, it

stated, “To each defendant: You are SUMMONED and required to file an answer to the

complaint in this case.” (Emphasis in original.) However, the December 2017 demand letter,

which was incorporated by reference into the complaint, contained the language required by

section 34(b). The written demand letter stated, inter alia:

Pursuant to 770 ILCS 60/34(a), upon the Property owner’s written demand

for the lienholder to commence a lawsuit to enforce the lien “the suit shall be

commenced ... within 30 days thereafter, or the lien shall be forfeited.

This letter serves as Mr. Hayden’s written demand for Mr. Adams to

commence a lawsuit to enforce the aforementioned mechanic’s lien filed on

August 23, 2017. Failure to respond to this notice within 30 days after receipt,

as required by Section 34 of the Mechanics Lien Act, shall result in the

forfeiture of the referenced lien.” (Emphasis in original.)

¶ 27 As Adams argues, Hayden lacked a good faith basis in alleging in his complaint that the

December 2017 demand letter was received by Adams’ attorney. However, regardless of

Hayden’s assertion about service of the demand letter, Adams nevertheless received the demand

letter through Hayden’s complaint filed on May 2, 2018. The complaint required Adams to

commence suit to enforce his lien or to file an answer in the pending declaratory judgment

action. This provided adequate notice to Adams. “Illinois courts have interpreted the strict

requirements of notice by examining how effectively a party did in fact notify the other side

rather than simply basing rights solely on whether every phrase of the statute was followed in

exact detail. *** ‘This rule of strict construction is meant to apply only to requirements upon

which the right to a lien depends.’ ” Matthews Roofing Company v. Community Bank & Trust

Company of Edgewater, 194 Ill. App. 3d 200, 205 (1990) (quoting Watson v. Auburn Iron -9- 1-19-1411

Works, Inc., 23 Ill. App. 3d 265, 273 (1974)). See Gateway Concrete Forming Systems, 356 Ill.

App. 3d at 811 (“Illinois courts have interpreted the strict requirements of notice by examining

how effectively a party did in fact notify the opposing party rather than simply basing rights on

whether every phrase of the statute was followed in exact detail.”); Vernon Hills III Limited

Partnership, 287 Ill. App. 3d at 309 (“We decline to impose additional notice requirements that

are not contained within the plain language of the statute. It was not the responsibility of [the

plaintiff] to educate [the defendant], or its attorney, about the operation and effect of the Act.”).

¶ 28 It is undisputed that Adams was served the complaint and summons, including the

attached demand letter as an exhibit, on May 2, 2018. Thus, Adams had 30 days—until June 4,

2018—to file an answer or forfeit the lien. It is also undisputed that Adams filed his answer on

September 11, 2018, significantly more than 30 days after the complaint was served. As a result,

his lien was subject to forfeiture. “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.” Vernon Hills III Limited Partnership, 287 Ill. App. 3d 309.

In contrast to statutes of limitation, the time limitations “are not merely a limitation on the

remedy afforded under the Act, but rather a condition that must be satisfied before the right to

the remedy under the act exists.” Id. Thus, “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.” Id. at 308.

¶ 29 Additionally, section 34(a) provides that service of the demand letter “may be by

registered or certified mail, return receipt requested, or by personal service.” 770 ILCS 60/34(a)

(West 2018). “Except in very unusual circumstances affecting the public interest, the legislature's

use of the word ‘may’ indicates that the statute is permissive as opposed to mandatory.” Canel v.

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Topinka, 212 Ill. 2d 311, 326 (2004). Thus, personal service by way of a special process server is

a permissible means to effectuate the demand notice to commence suit. Here, the record reflects

that the summons, complaint, and demand letter were served on Adams by special process

server, fulfilling the service requirement of the statute.

¶ 30 In his final argument, Adams asserts that the trial court granted summary judgment on

improper grounds because Hayden did not raise his contention that the summons and complaint

served as a section 34 demand notice until Hayden’s motion for summary judgment. We note

that Adams fails to cite any authority to support his position. “[A] party who fails to argue or cite

authority in support of a point waives the issue for purposes of appeal.” Novakovic v. Samutin,

354 Ill. App. 3d 660, 667 (2004). Moreover, the basis for the complaint and Hayden’s motion for

summary judgment were Adams’ failure to comply with section 34, whether by filing an action

to foreclose on his lien or filing an answer to the complaint.

¶ 31 III. CONCLUSION

¶ 32 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 33 Affirmed.

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