Burrink Commercial Services v. New Life Covenant Church , 2024 IL App (1st) 220778-U ( 2024 )

2024 IL App (1st) 220778-USECOND DIVISION
March 29, 2024
No. 1-22-0778,
consolidated with 1-22-0780 and 1-22-0789
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
BURRINK COMMERCIAL SERVICES, )
)
Plaintiff-Appellant, )
)
v. )
) Appeal from
NEW LIFE COVENANT CHURCH; and TOWER ) the Circuit Court
CONTRACTING, LLC, ) of Cook County
)
Defendants-Appellees, ) 2018-CH-00865, cons. with
-------------------------------------------------------------------------- ) 2019-L-006974
T.H. DAVIDSON & CO., )
) Honorable
Counterplaintiff-Appellant, ) Anthony C. Kyriakopoulos,
) Judge Presiding
v. )
)
TOWER CONTRACTING, LLC, and NEW LIFE )
COVENANT CHURCH, )
)
Counterdefendants-Appellees. )
JUSTICE McBRIDE delivered the judgment of the court.
Presiding Justice Howse and Justice Cobbs concurred in the judgment.
ORDER
¶1 Held: Circuit court did not err in dismissing subcontractors’ factually deficient complaints
to foreclose mechanics liens.
1-22-0778, cons. with 1-22-0780 and 1-22-0789
¶2 In this consolidated appeal, we address the dismissal of mechanics lien claims that were
based on labor and materials provided by the plaintiffs to construct a temple for New Life Covenant
Church at 7261 South Greenwood Avenue in Chicago. The circuit court found that the claims did
not comply with the Illinois Mechanics Lien Act, 770 ILCS 60/0.01 et seq. (West 2018) (Act). In
Appeal 1-22-0778, subcontractor Burrink Commercial Services (Burrink) argues that its seventh
amended complaint did include the “brief statement of a claimant’s contract” that is required by
section 7 of the Act (770 ILCS 60/7(a) (West 2018)), even though the church argued that the
subcontractor was improperly characterizing two contracts as one. Burrink also seeks review of
the dismissal of its breach of contract claim. In Appeals 1-22-0780 and 1-22-0789, sub-sub-
subcontractor T.H. Davidson & Co., Inc. d/b/a Welsch Ready Mix, Inc. (Welsch) disputes the
findings that it (1) did not comply with section 11(b)’s requirement to sue “all persons in the chain
of contracts between the claimant and the owner” (770 ILCS 60/11(b) (West 2018)) when it did
not include the construction project’s subcontractor as a defendant and that suing “Unknown
Owners and Non-Record Claimants” did not suffice; and (2) failed to comply with section 24(a)’s
notice requirement (770 ILCS 60/24(a) (West 2018)), when it did not allege that it served a
subcontractor’s 90-day notice after completion of its work, but did allege that it had “performed
all conditions precedent” to bringing suit.
¶3 In its seventh amended complaint, Burrink alleged that New Life Covenant Church and
Tower Contracting reached an agreement in April 2016 regarding general contracting services for
the church’s construction project and, in turn, Tower Contracting subcontracted earth moving tasks
to Burrink. More specifically, the general contractor and the subcontractor came to an oral
agreement on or before August 1, 2017 for “site preparation work” on a “time and materials” basis
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and then they reduced their agreement to writing “[a] short time after August 1, 2017” in a
document entitled “Purchase Order.” Burrink’s president, Brennden Burrink, executed the
“Purchase Order” “[o]n or about July 8, 2017 [(sic)]” (a date that is prior to the oral agreement,
the site preparation work, or the drafting of the written “Purchase Order”), and Tower
Contracting’s agent signed “[o]on or about August 9, 2017.” During the site preparation tasks,
Tower Contracting and Burrink discussed other tasks that “were not originally contemplated by
the parties to the Purchase Order at the time the original written agreement was negotiated.” Tower
Contracting then prepared a written “Subcontract” regarding $560,000 worth of “Contract Extras”
that included services such as backfilling surfaces, installing sanitary and storm water sewers and
irrigation lines, digging retention ponds, and placing seed mats. Mr. Burrink executed the
“Subcontract” on August 3, 2017, and Tower Contracting executed it on October 9, 2017.
¶4 Burrink further alleged that by January 26, 2018, it had completed all of the “Purchase
Order work it was allow[ed] to perform” and some of the “Contract Extras.” Also, the “work
performed pursuant to the Purchase Order and the Contract Extras” created a “permanent and
valuable improvement and enhancement” to the real estate, consisting of $353,972.71 in value that
was attributable to the “Purchase Order” tasks and $85,539.50 in value that was attributable to the
“Contract Extras.” Tower Contracting paid $193,407.43 pursuant to the “Purchase Order” and
$12,000 for the “Contract Extras.” Burrink gave Tower Contracting a credit of $486,460.50 for
“unfinished work pursuant to the Contract Extras, leaving a balance due in the amount of
[$234,104.78].”
¶5 In Count I, entitled “Action to Foreclose Its Mechanics Lien Claim,” Burrink sought
$234,104.78 due and owing on “the outstanding balance” and supported by the pleading’s Exhibit
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E, which was a copy of an amended contractor’s lien that had been filed with the county’s recorder
of deeds on or about December 1, 2021. We point out that in the recorded document, quoted below,
Burrink (1) used the term “Purchase Order” interchangeably with the term “Contracted Work,” (2)
alleged that subsequently needed “additional services” were described in the “Change Order”
which the parties had “labeled as the ‘Subcontract,’ ” and, (3) without differentiating between the
two agreements, stated that $234,104.78 was “justly due and owing,” exclusive of interest charges
and court costs:
“AMENDED CONTRACTOR’S MECHANICS LIEN NOTICE AND CLAIM
***
The undersigned claimant, Burrink Commercial Services, Inc., by Brennden Burrink,
president, of the Village of Lynwood, County of Cook, State of Illinois (the ‘Claimant’),
hereby claims a Contractor’s mechanics lien pursuant to the Mechanics Lien Act of the
State of Illinois, 770 ILCS 60/1, et seq. against New Life Covenant Church SE
(‘NLCCSE’), Tower Contracting, LLC (‘Tower’), any Unknown Owners and Non-
Record Claimants, regarding the property commonly known as 7621 South Greenwood,
Chicago, County of Cook, State of Illinois (the “Property”), and states as follows
***
2. On or before August 1, 2017, *** Michael Jarigese, authorized agent of Tower on
behalf of Tower and NLCCSE, orally offered to pay Brennden Burrink, the authorized
representative of Claimant, a fair and reasonable price, based upon time and materials, to
begin performing site preparation work at the property, the oral offer was later reduced to
a written request for the mobilization of earthmoving equipment to start work on July 31
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2017 using 2 CAT 263 D or 272D Skid Steers with buckets for loading and grading, and
for the use of dump truck(s) along with operators for the equipment, as well as provide
laborers for concrete curbs in order to begin relocating soil in Lot D and to haul to a
building pad; grade soil in building pad and compact *** with compactor provided by
Tower, at the direction of a Tower representative; load and haul away concrete located in
lot C to Wright’s in Markham, Illinois and collect and deliver CA Stone to the Property,
thereafter to begin to [(sic)] other grading/backfilling operations at the direction of the
Tower site superintendent; and ‘Reorganization of operations scheduled for 7.7.2017 [sic]’
in consideration of Claimant providing the equipment and performing the above described,
Tower would pay on a time and materials basis per a Schedule attached to the document
provided there were signed tickets (the ‘Purchase Order’) to be performed at the Property,
Brennden Burrink on behalf of Claimant signed the Purchase Order on or about August
8, 2017 and Michael Jarigese, authorized agent of Tower executed the Purchase Order on
behalf of Tower on August 9, 2017, (the ‘Contracted Work’) sometime during the course
of the Contracted Work, Michael Jarigese, authorized agent of Tower submitted a written
document which sought additional services from Claimant, including, but not limited to
building a pad via compacting back fill with equipment rented by Tower; backfilling
surface area with urban stockpile on site; perform structural excavation; complete and
install 8” DIP Sanitary sewer to within 5’ of property line; furnish and install 8” DIP water
service line from 5’ feet inside building foundation wall to within 5’ of property line;
perform rough grading; in Parking Lot D, complete storm water sewers at east entrance
and east pond using materials on site; Parking Lot C, install storm water sewers and
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detention as shown on plans, stopping at CHIC new property lines, cut site to grade, dig
retention ponds, place seed mats over existing soil, if required, deliver and grade CA6 stone
@ $22.76 per ton, backfill curbs and sidewalks within property lines, furnish and install
irrigation lines, heads and complete system inside property lines; Parking Lot B, cut and
fill parking lot to desired grade, dig retention ponds, place seed mats over existing soil; if
required, deliver and grade CA6 stone @ $22.76 per ton, backfill curbs and sidewalks
poured by others; furnish and install irrigation lines, head and complete system inside
property lines; Parking Lot A, complete backfill of curbs and curb islands, demolish asphalt
from existing alleyway in consideration of Tower paying Claimant a total price for the
extra work of five hundred and sixty thousand dollars and zero cents ($560,000.00) all of
the terms were reduced to written form (the ‘Change Order’), and labeled as the
‘Subcontract’ which was accepted by Claimant via the signature of its authorized agent,
Brennden Burrink on October 3, 2017, but not accepted by Michael Jarigese, authorized
agent of Tower until October 9, 2017.
3. On January 26, 2018, Claimant performed one hundred percent (100%) of all
Contracted Work with a value of $353,972.71, but was only allowed to perform $85,539.50
of the work contained in the Change Order that was necessary to complete the Claimant’s
portion of the construction work to improve the Property.
4. All of the labor and materials furnished and delivered by Claimant to improve the
Property were furnished, delivered and performed, as contemplated under the Contract and
Change Order which Tower allowed occurred on January 26, 2018.
5. There is now justly due and owing the Claimant after allowing to the Owners all
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credits for Tower’s payments under the Contracted Work of $193,407.43 and $12.000
under the Change Order for a payment credit of $205,407.43, and a credit for unfinished
work of $486,460,50 for unfinished work under the Change Orders which leaves a balance
due in the amount of $234,104.78 plus interest at the rate specified in the Illinois Mechanics
Lien Act since January 26, 2018.
6. Claimant now claims a lien on the above-described Property, and on all of the
improvements thereon, against the Owners and all persons interested therein for the
outstanding amount currently due of $234,104.78, after deductions of all payments and
credits, plus interest at the rate specified in the Illinois Mechanics Lien Act, as well as court
costs and attorneys’ fees.”
¶6 In Count II, entitled “Breach of Contract,” Burrink sought $234,104.78 from Tower
Contracting pursuant to the “Purchase Order and Extra Work.” Exhibit A was the “Purchase
Order.” Exhibit B was the “Subcontract.”
¶7 Count III was pled in the alternative—if the court found the “Purchase Order and
Subcontract to be unenforceable,” then Burrink sought $205,460.78 on the basis of the equitable
theory of quantum meruit.
¶8 New Life Covenant Church filed a motion to dismiss Count I for failure to state a lien
foreclosure claim because the recorded lien did not conform with the Act and was not enforceable.
Tower Contracting filed a motion to dismiss Count II for failure to state a cause for breach of
contract. After briefing and oral arguments, the circuit court granted the dismissals and ordered
Burrink to release its lien within 35 days. Burrink voluntarily dismissed its quantum meruit count
and the circuit court stayed enforcement of its order so that Burrink could take this appeal.
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¶9 We review de novo an order granting a section 2-615 motion to dismiss for failure to state
a cause of action. K. Miller Construction Co., Inc. v. McGinnis, 238 Ill. 2d 284, 291 (2010); 735
ILCS 5/2-615 (West 2018). Illinois is a fact pleading jurisdiction, not a notice pleading jurisdiction.
Teter v. Clemens, 112 Ill. 2d 252, 256 (1986). A section 2-615 motion challenges the legal
sufficiency of a complaint based on defects that are apparent on the face of the pleading. K. Miller,
238 Ill. 2d at 291. The court should grant the motion when no set of facts could be proven under
the pleadings that would entitle the plaintiff to relief. K. Miller, 238 Ill. 2d at 291. Although a
section 2-615 motion admits all well-pled facts as true, it does not admit conclusions of law or
factual conclusions that are unsupported by allegations of specific facts. Lake County Grading Co.
of Libertyville, Inc. v. Advance Mechanical Contractors, Inc., 275 Ill. App. 3d 452, 457 (1995).
The court may draw reasonable inferences from the well-pled facts. Doe-3 v. McLean County Unit
District No. 5 Board of Directors, 2012 IL 112479, ¶ 16. Nevertheless, if, after disregarding legal
and factual conclusions, there are insufficient allegations of fact to state a cause of action, the
motion should be granted. Lake County Grading, 275 Ill. App. 3d at 457. The complaint’s factual
allegations are to be interpreted in the light most favorable to the plaintiff, but in this fact-pleading
jurisdiction, factual deficiencies cannot be cured by liberal construction. Lake County Grading,
275 Ill. App. 3d at 457; Teter, 112 Ill. 2d at 256. Exhibits that are attached to the pleading are
considered to be a part of the pleading for all purposes where the pleading is founded on those
exhibits. Evers v. Edward Hospital Ass’n, 247 Ill. App. 3d 717, 724 (1993). When allegations in
the pleading conflict with the facts disclosed in the exhibits, the exhibit controls. Evers, 247 Ill.
App. 3d at 724.
¶ 10 The statute at issue is a comprehensive “enactment that outlines the rights, responsibilities,
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and remedies of parties to construction contracts, including owners, contractors, subcontractors,
and third parties.” Cordeck Sales, Inc. v. Construction Systems, Inc., 382 Ill. App. 3d 334, 353
(2008).
“[A mechanic’s lien] is a remedy in the nature of a charge on land, given by statute to
the persons named therein, to secure a priority or preference of payment for the
performance of labor or supply of materials to buildings or other improvements, to be
enforced against the particular property in which they have become incorporated, in the
manner and under the limitations therein expressly provided. It is exclusively the creature
of statute, deriving its existence only from positive enactment, and not arising out of, or of
the essence of, the contract for labor ***[.] It is a mere incidental accompaniment as a
means of enforcing payment, – a remedy given by law, which secures the preference
provided for, but which does not exist, however equitable the claim may be, unless the
party brings himself within the provisions of the statute[.]” Mechanic’s Lien, Black’s Law
Dictionary (11th ed. 2019).
¶ 11 Since mechanics liens did not exist in the common law or in equity, but “only by virtue of
statutes creating them and providing a method for their enforcement, those statutes must be strictly
construed with reference to the requirements upon which the right depends.” Ronning Engineering
Co., Inc. v. Adams Pride Alfalfa Corp., 181 Ill. App. 3d 753, 758 (1989); CB Construction &
Design, LLC v. Atlas Brookview, LLC, 2021 IL App (1st) 200924, ¶ 26. A court should declare a
mechanic’s lien valid “only if each of the statutory requirements [has been] scrupulously
observed.” Ronning Engineering, 181 Ill. App. 3d at 758; Delaney Electric Co. v. Schiessle, 235
Ill. App. 3d 258, 264 (1992) (“a lien claimant who has met the prerequisites for bringing a lien
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claim has merely acquired an inchoate right to a lien which must then be perfected in accordance
with the requirements prescribed in the Act”). A contractor or subcontractor seeking to enforce its
lien bears the burden of proving its adherence to each requirement. Ronning Engineering, 181 Ill.
App. 3d at 759.
¶ 12 Once the party has complied with the statutory prerequisites, the Act is to be liberally
construed in order to carry out its remedial purpose. Ronning Engineering, 181 Ill. App. 3d at 759
(citing the statute now found at 770 ILCS 60/39 (West 2018) (“This act is and shall be liberally
construed as a remedial act.”)). The purpose of the Act is to permit the imposition of an enforceable
lien in order to protect a party that has increased or improved the value or condition of property by
furnishing labor or materials. Ronning Engineering, 181 Ill. App. 3d at 759. Generally, a
subcontractor’s exclusive remedy against a property owner is through the Act because “the
subcontractor has no contractual relationship with the owner which would give rise to a legal
recovery.” Swansea Concrete Products, Inc. v. Distler, 126 Ill. App. 3d 927, 932 (1984). A
property owner should pay for improvements or other benefits that his or her conduct has induced
or encouraged. Cordeck Sales, 382 Ill. App. 3d at 353 (internal quotation marks omitted).
¶ 13 We may not depart from the plain language and meaning of a statute by reading in
exceptions, limitations, or conditions which the legislature did not include. Mohammad v.
Department of Financial & Professional Regulation, 2013 IL App (1st) 122151, ¶ 10.
¶ 14 It is well-established that “filing a claim in conformity with section 7 of the statute is a
condition precedent to the enforcement of a lien.” Christian v. Allee, 104 Ill. App. 177, 183 (1902);
Cordeck Sales, 382 Ill. App. 3d at 357 (quoting Tefco Construction Co., Inc. v. Continental
Community Bank & Trust Co., 357 Ill. App. 3d 714, 719 (2005) (“To properly perfect a lien claim
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against either an owner or a third party, a mechanic’s lien claimant must ‘comply with the
prerequisites in section 7 of the Act.’ ”)). Section 7 of the Act prescribes the timing and content of
mechanics liens, stating, in relevant part:
“(a) No contractor shall be allowed to enforce such lien against or to the prejudice of
any other creditor or incumbrancer or purchaser, unless within 4 months after completion
*** he or she shall either bring an action to enforce his or her lien therefor or shall file in
the office of the recorder of the county in which the building, erection or other improvement
to be charged with the lien is situated, a claim for lien, verified by the affidavit of himself
or herself, or his or her agent or employee, which shall consist of a brief statement of the
claimant’s contract, the balance due after allowing all credits, and a sufficiently correct
description of the lot, lots or tracts of land to identify the same.” (Emphasis added.) 770
ILCS 60/7 (West 2018).
¶ 15 Strictly construed and reduced to its essence, “The plain language of section 7 instructs the
lien claimant only to: (1) file the claim within four months after the completion of the work; (2)
verify the lien by affidavit of the claimant or an agent or employee; (3) include a brief statement
of the contract; (4) set forth the balance due; and (5) provide a sufficiently correct description of
the lot, lots, or tracts of land to identify the same.” National City Mortgage v. Bergman, 405 Ill.
App. 3d 102, 108-09 (2010).
¶ 16 New Life Covenant Church and Tower Contracting did not dispute that Burrink satisfied
section 7’s first, second, fourth, and fifth requirements. 770 ILCS 60/7 (West 2018). They have
persuaded us that Burrink’s recorded amended lien claim did not accurately describe the
underlying contracts, which is another way of saying that the amended document which Burrink
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filed with the recorder of deeds did not meet section 7’s third requirement to include “a brief
statement of the claimant’s contract” (770 ILCS 60/7 (West 2018)), and that the lien was, therefore,
unenforceable. Burrink’s error was that its recorded document indicated the company entered into
a single written contract with Tower Contracting, consisting of the “Contracted Work” that was
memorialized in the “Purchase Order” and the “additional services” that were described in the
“ ‘Change Order’ [that was] labeled as the ‘Subcontract,’ ” as if the second contract modified the
first contract, instead of being the stand-alone and unrelated agreement that it actually was. The
recorded document stated one date (January 26, 2018) when “all Contracted Work” and some of
“the work contained in the Change Order” had been completed and stated a single amount that was
due and owing from “the construction work to improve the Property.” The two contracts, however,
are not an original agreement and its change order, they are two independent and unconnected
contracts. Consequently, the lien did not comply with the statute’s third requirement and was
properly dismissed for this reason.
¶ 17 The first document, the “Purchase Order” is exactly that. A purchase order is “a document
that asks a company to supply goods or services, and that gives details such as the price to be paid
and the method and date of payment.” Purchase Order, Cambridge Dictionary,
https://dictionary.cambridge.org/dictionary/english/purchase-order (last visited Dec. 21, 2023);
Purchase Order, Merriam Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/purchase%20order (last visited Dec. 22, 2023) (“a formal document that
is used by an employee to request that something be purchased by a company”). A purchase order
can be considered an offer, and if the supplier communicates acceptance of the terms, then the
parties have formed a contract. See McCarty v. Verson Allsteel Press Co., 89 Ill. App. 3d 498, 510
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(1980) (where supplier assented to terms of purchase order and signed and returned purchase order
to buyer, contract had been formed and supplier’s inclusion of “Conditions of Sale” was
ineffective).
¶ 18 The “Purchase Order” was generated by Tower Contracting, dated August 1, 2017, and
addressed to Burrink Commercial Services in Lynwood, Illinois. Just below the address, Tower
Contracting specified “Terms: F.O.B. Jobsite” and stated the address of the new church
construction jobsite. The body of the purchase order was a short list of eight services that Burrink
was to provide. As examples, the first three services were to “Mobilize 7.29.2017 and provide
earthmoving equipment to start working 7.31.2017,” “Deliver 2 CAT 262D or 272D skid steers
with bucket for loading/grading;” and then “Provide operators for equipment[,] Provide operators
for dump trucks[,] Provide laborers for concrete curbs.” After the list of services, there was a list
of five payment terms, the first three of which were “Pricing is T & M [Time & Materials] as per
the attached Schedule, signed tickets are required;” “No taxes. This is a tax-exempt Project;”
“Payment terms are paid 10 days from approval invoice.” Both the “Vendor,” Burrink and
purchaser, Tower Contracting, signed and dated the bottom of this first page. The next two pages
were an attachment that addressed Burrink’s responsibility to maintain insurance coverage,
including workers’ compensation, comprehensive general liability, and comprehensive automobile
liability coverage. Burrink and Tower Contracting initialed the insurance page. The concluding
page of the four-page document was another brief, typewritten list that filled only the top third of
the page. Here were the “Breakout Cost[s]” for services that Burrink was agreeing to provide
during the “Estimated Construction Duration” of “1 week” such as a “John Deere 444 Wheel
Loader (older) with Operator & Fuel: $90.00/Hourly,” “Operator for Rented Compactor: $65.00/
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Hourly,” and “Concrete Laborer: $75.00/Hourly.” In other words, the four-page Purchase Order
consisted of a concise, one-page list of tasks and payment terms, some boilerplate language about
insurance coverage, and a half-page list “break[ing]out” the costs.
¶ 19 In contrast, the “Subcontract” is a formal and detailed document that appears to be Tower
Contracting’s form contract, dated October 3, 2017, and consisting of 26 typewritten pages with
attachments, complete sentences and punctuation, numbered articles, numbered sections, subtitled
paragraphs, and consecutive numbers for every line of every page of the contract.
¶ 20 This so-called “ ‘Change Order’ [that was] labeled as the ‘Subcontract,’ ” was not
accurately described as a “change order” to the four-page purchase order, because it was an
independent contract that did not alter the prior agreement. A “change order” is “a written
alteration to a previously signed contract for work (as in construction).” Change Order, Merriam
Webster Online Dictionary, https://www.merriam-webster.com/dictionary/change%20order (last
visited Dec. 22, 2023). It can “alter[] the work, the contract sum, or the contract time.” Change
Orders: What They Are and How To Manage Them, Ironclad Journal,
https://ironcladapp.com/journal/contracts/change-orders/ (last visited Dec. 22, 2023). It allows
parties “to come to an agreement on any alterations to the contract terms without needing to scrap
the original.” Id. “It acts as an extension of the contract and ensures that all parties understand their
new duties and expectations. It codifies the specific changes the client wants, and provides legal
notice of any adjustments to the price and timeline that the client should expect.” Id. Entering into
a change order is prudent when the “client requests alterations to a project after the contract’s
effective [start] date” or the parties “discover new information (such as previously-undisclosed
limitations or new legislation) that adjusts a project’s scope after getting started.” Id. The change
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order creates a “paper trail” that the parties have agreed to deviate from their existing contract. Id.In Loewenberg/Fitch Partnership v. State, 38 Ill. Ct. Cl. 227, 228 (1986), an architectural firm
brought a claim regarding uncompensated “additional work” that it provided during the
construction of an office and laboratory building on the Illinois State fairgrounds in Springfield,
Illinois. Part of the additional work involved the mechanical systems. “[W]hen the building was
originally designed, natural gas was unavailable. Later natural gas restrictions were removed and
[the architects] were directed to revise the design per change order so a combination of gas and oil
could be used.” Id., at 235. During the project there were also “new regulations for handicap
access,” so the architects “had to go back and design ramps for the handicapped per change order.”
Id., at 237. The subsequent payment dispute, however, also encompassed heating and piping work
that was described in a lengthy and comprehensive document. One of the witnesses testified about
this later-executed document, indicating, “This was not a normal change order. [The witness
would] ordinarily review change orders as part of basic contract administration, but this one was
entirely different in that it was 516 pages long. In 24 years he had never reviewed a document of
this volume or detail. He felt it was not included in the contract.” Id., at 234. Burrink incorrectly
stated in its recorded amended lien claim that the “Purchase Order” was altered when “terms were
reduced to written form (the ‘Change Order’), and labeled as the ‘Subcontract.’ ”
¶ 21 The “Subcontract” was not a change order to the “Purchase Order,” because it had no
impact on the earlier contract. It did not indicate in any way that the parties were altering an
existing arrangement. The parties did not, for instance, entitle their second agreement as a “change
order,” or a contract amendment. The title “Subcontract” was apparently a reference to the fact
that the construction project’s general contractor was hiring another firm to perform some of the
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specific tasks that were within that firm’s expertise. See Contract, Black’s Law Dictionary (11th
ed. 2019) (defining a “subcontract” as “[a] secondary contract made by a party to the primary
contract for carrying out the primary contract, or a part of it”). Arguably more important than the
title of the “Subcontract” are its contents and the fact that it did not refer to the “Purchase Order”
and did not modify the scope of any work, change any services, revise any start or completion
dates, or update any prices or fees that the parties had previously agreed upon. There is no
indication in the “Subcontract” that the parties were creating a paper trail to document small
changes to their “Purchase Order.” The two contracts read as two separate agreements.
¶ 22 In fact, Burrink, which retained new counsel to file the pleading at issue and take this
appeal, now “concedes these are two distinct contracts” and that the “two agreements involved
completely different types of work.” Burrink even contrasts the supervision and services to be
provided pursuant to the contracts, stating: “The Purchase Order was for site preparation,
performed under Tower’s direct supervision and responsibility. The Subcontract, on the other
hand, was for independent construction work for which Burrink was responsible.” Burrink also
contrasts the payment arrangements, pointing out: “The [supervised site preparation] work under
the Purchase Order was paid on a time and materials basis. Whereas Tower’s Subcontract offered
a fixed price of $560,000 to [independently] perform the construction work.” Burrink draws these
distinctions as it tries to persuade us that its recorded amended lien claim also “distinguished
between the two agreements with Tower,” and thus complied with section 7’s requirement to
provide a “brief statement of the contract.” 770 ILCS 60/7(a) (West 2018). It is our opinion that,
in its recorded amended lien claim, Burrink mislabeled the “Subcontract” as a “Change Order”
and muddled together the parties’ two unconnected agreements as if they were a single but
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modified contract. Burrink’s erroneous description was a substantial and material departure from
section 7’s requirement that the lien claim include “a brief statement of the contract.” 770 ILCS
60/7 (West 2018).
¶ 23 In a similar case, Ronning Engineering, the appellate court affirmed the dismissal of the
plaintiff’s lien foreclosure claim because the lien contained an inaccurate description of the
underlying contract. Ronning Engineering, 181 Ill. App. 3d 753. In its complaint, the plaintiff
alleged that it rendered engineering services for the construction of a manufacturing plant pursuant
to a verbal contract it reached with Adams Pride Alfalfa Corporation on or about July 1, 1986.
Ronning Engineering, 181 Ill. App. 3d at 755. However, in its recorded document, it alleged the
lien was based on a written contract executed nearly a year prior, on September 20, 1985, and
although the attached contract bore that September date, it was between the plaintiff and Adams
County Joint Venture (instead of Adams Pride Alfalfa Corporation) and concerned a feasibility
study for an alfalfa processing plant. Ronning Engineering, 181 Ill. App. 3d at 755-56. In other
words, there were numerous discrepancies between the lien and the attached contract. The court
held that the lien was unenforceable because it did not contain “a sufficient statement of the
contract forming the basis of the claims” as required by section 7. Ronning Engineering, 181 Ill.
App. 3d at 759.
¶ 24 The lien in Candice identified Candice as the claimant and erroneously stated that on
August 6, 1992, Candice had contracted with Bellwood, Illinois property owner “La Von L.
Ricketts & Trina Ann Malone and any other unknown owner to [r]emodel basement.” Candice
Co., v. Ricketts, 281 Ill. App. 3d 359, 363 (1996). Candice, however, was not a party to the attached
remodeling contract which Ricketts and Malone had entered into with a home repair and
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remodeling corporation that was known as Father and Sons, Inc. Candice, 281 Ill. App 3d at 363.
Father and Sons had completed the work in the basement and then assigned its mechanics lien
rights to Candice. Candice, 281 Ill. App 3d at 360. Misstating the names of the contracting parties
was the only defect in the lien. After considering the statute’s language and Ronning Engineering,
the court affirmed the trial judge’s dismissal of the action, reasoning that the lien “incorrectly
describes the parties to the contract on which the lien is purportedly based, and, therefore, does not
[strictly comply with] the requirements of section 7.” Candice, 281 Ill. App 3d at 364.
¶ 25 Another instructive case is Bale, in which Carla S. Bale completed a preprinted lien claim
form on behalf of Martin L. Bale, d/b/a Bale Excavating and Farm Drainage, regarding Mr. Bale’s
creation of a one-acre pond for which he was owed $8,540.82. Bale v. Barnhart, 343 Ill. App. 3d
708 (2003). In the caption and some other places on the form, Ms. Bale correctly identified Mr.
Bale as the claimant, but in other places, she misidentified herself as the claimant. Bale, 343 Ill.
App. 3d at 713. In light of Ronning Engineering and Candice, the court held that the lien was
unenforceable. Bale, 343 Ill. App. 3d at 714. “At a minimum, the conflict [between the caption
and the body of the claim for lien] creates an ambiguity that results in an inaccurate description of
the contract. Strictly construing the Act, we find the claim for lien fails section 7.” Bale, 343 Ill.
App. 3d at 714.
¶ 26 Here, Burrink made a substantial and material error when it inaccurately described the
contract upon which the lien was based. Given the language of the statute, the fact that mechanics
lien rights did not exist at common law, and the precedent discussed above which interpret a lien
claimant’s obligation to provide a “brief statement of the contract,” we find that the lien at issue
did not strictly comply with section 7 of the Act. Burrink erred because it entered into two, not one
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contract, and it formed these agreements on different dates, for different services, and for different
amounts. The amended lien does not accurately describe the contract or contracts it is based upon
and instead blurs the agreements into a single contract for which one amount remains unpaid.
¶ 27 In support of its argument that the lien did provide a sufficiently accurate “brief statement,”
Burrink cites North Shore Community Bank & Trust Co. v. Sheffield Wellington LLC, 2014 IL App
(1st) 123784, which is distinguishable. North Shore concerned the construction of a commercial
building at 2954-58 North Sheffield Avenue in Chicago. North Shore, 2014 IL App (1st) 123784,
¶ 6. The subcontractor and property owner never entered into a singular, integrated contract, so in
order to prove a $101,755 mechanic’s lien claim, the subcontractor produced a self-prepared
timeline of the construction project; a series of e-mails that it exchanged with the owner; and a
transcript of the subcontractor’s deposition. North Shore, 2014 IL App (1st) 123784, ¶¶ 21-26. The
e-mails between the subcontractor and the owner contained “various proposals and change orders,”
memorialized approvals which the owner had given during site meetings, and documented
“payment issues” and “open invoices.” North Shore, 2014 IL App (1st) 123784, ¶¶ 21-26. At his
deposition, the subcontractor testified that the owner frequently agreed to proposals and change
orders over the phone or during site meetings. North Shore, 2014 IL App (1st) 123784, ¶ 16. The
subcontractor also tendered an affidavit from the general contractor which confirmed that the
owner had accepted a change order regarding concrete work. North Shore, 2014 IL App (1st)
123784, ¶ 31. Thus, although the lien claimant could not rely on one, definitive written agreement,
he produced e-mails with the owner and evidence of their conversations in order to prove the terms
of their contract. North Shore, 2014 IL App (1st) 23784, ¶ 31.
¶ 28 Burrink cites North Shore because the court rejected the argument that the lien was
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defective because it described the parties’ agreement as a “written contract.” North Shore, 2014
IL App (1st) 23784, ¶ 139. The court criticized the appellees’ reliance on Ronning Engineering
and Candice, pointing out that this precedent did not require that “a description of a contract be
absolutely correct and perfect to be enforceable.” North Shore, 2014 IL App (1st) 123784, ¶ 141.
“On the contrary, the language used by both courts suggests that a lien claim need only a
sufficiently correct description of a contract to be enforceable.” (Emphasis in original.) North
Shore, 2014 IL App (1st) 123784, ¶ 141. Also:
“ ‘The doctrine of strict construction was never meant to be applied as a pitfall to the
unwary, in good faith pursuing the path marked by the statute, nor as an ambuscade from
which an adversary can overwhelm him for an immaterial misstep. Its function is to
preserve the substantial rights of those against whom the remedy offered by the statute is
directed, and it is never employed otherwise.’ ” North Shore, 2014 IL App (1st) 123784, ¶
93 (quoting United Cork Cos. v. Volland, 365 Ill. 564, 572 (1937)).
¶ 29 The court characterized the subcontractor’s misuse of the term “written contract” as an
imperfection that was “nowhere near as grievous” as the material mistakes that were apparent on
the face of the Ronning Engineering and Candice liens. North Shore, 2014 IL App (1st) 123784,
¶ 143. Although the North Shore subcontractor did not have “a singular, ‘written’ contract signed
by the parties,” he had produced sufficient evidence of a written agreement for purposes of section
7. North Shore, 2014 IL App (1st) 123784, ¶ 143.
¶ 30 North Shore does not further this appeal, however, because Burrink’s misdescription of its
two contracts was not “sufficiently correct” (North Shore, 2014 IL App (1st) 123784, ¶ 141) and
was not an error that can be sloughed off as an “immaterial misstep” (North Shore, 2014 IL App
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(1st) 123784, ¶ 93 (quoting United Cork, 365 Ill. at 572)) in the lien claim process. North Shore’s
indication that a lien does not need to be blemish-free does not overcome Burrink’s erroneous
description of its two unrelated construction contracts as a singular, modified contract for which
one amount was due. Burrink’s mistake was as significant as Ronning Engineering’s attachment
of the wrong contract, and Candice and Bale’s misstatement of the names of the contracting
parties.
¶ 31 We conclude that Burrink’s failure to comply with section 7 of the Act justified the
dismissal of Count I of its seventh amended complaint.
¶ 32 We briefly address Count II of the seventh amended complaint in which Burrink sought
damages for Tower Contracting’s breach of contract. “A complaint based upon breach of contract
must allege the existence of the contract, including allegations indicating an offer, acceptance and
consideration, the plaintiff’s performance of all contractual conditions required of him, the fact of
the defendant’s alleged breach, and the existence of damages as a consequence.” Nuccio v.
Chicago Commodities, Inc., 257 Ill. App. 3d 437, 443 (1993). An allegation that a contract exists,
without allegations of supporting facts, is a legal conclusion and is insufficient. Id., at 443-44. The
use of “[t]erms such as ‘offered,’ ‘accepted,’ and ‘breached its contract’ suggest mere legal
conclusions.” Talbert v. Home Savings of America, F.A., 265 Ill. App. 3d 376, 380 (1994) (quoting
Wait v. First Midwest Bank/Danville, 142 Ill. App. 3d 703, 707-08 (1986)).
¶ 33 Count II contained confusing allegations that a contract was formed and ultimately the
pleading did not factually state a cause of action for breach. Count II included the allegation, “7.
On or before August 1, 2017, [Tower Contracting ] orally offered to pay [Burrink] a fair and
reasonable price, based upon time and materials, to begin performing site preparation work at the
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property.” Next, “8. A short time after August 1, 2017, the oral offer *** was reduced to a written
request [for various services] (the ‘Purchase Order’) (Exhibit ‘A’).” Confusingly, however,
Burrink alleged that it was able to jump back in time: “9. On or about July 8, 2017, Brennden
Burrink [on behalf of his company] accepted the offer *** and executed the Purchase Order.” But
then, weeks later, “10. On or about August 9, 2017 [Tower Contracting] also executed the Purchase
Order.”
¶ 34 In a section 2-615 proceeding, the court is asked to determine whether all the well-pled
facts, viewed in the light most favorable to the plaintiff, and all reasonable inferences that may be
drawn from those facts, if taken as true, are sufficient to state a cause of action upon which relief
may be granted. (Emphasis added.) Doe-3, 2012 IL 112479, ¶ 16. This pleading did not factually
indicate that the parties contracted, because it stated that Burrink accepted a written offer about a
month before the offer was made. Either the dates in paragraphs 7, 8, and 10 were correct, or the
date in paragraph 9 was correct, but it is impossible to read them together as an offer, acceptance,
and thus, formation of a contract.
¶ 35 When allegations in a pleading conflict with the facts disclosed in the exhibits, the exhibit
controls. Evers, 247 Ill. App. 3d at 724. In this instance, however, the attached document contained
the same incompatible dates.
¶ 36 Burrink unpersuasively argues that the circuit court should have reasonably inferred that
the allegation “July 8, 2017” actually meant “August 7, 2017,” and “It is not an unreasonable
inference to draw that [Mr.] Burrink could have confused whether to put the day first or the month
when dating the Purchase Order.” We disagree. What occurred here was more than an obvious
transposition of digits. Burrink can cite no authority for the proposition that a court should correct
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a pleading by “inferring” an entirely different month and day than the month and date that the
plaintiff alleged. It would have been unreasonable to assume from an allegation of a specific date
that the plaintiff intended an entirely different date, particularly when this was the plaintiff’s
seventh amended complaint, that is, it was Burrink’s eighth attempt to state a viable cause of
action. This pleading did not factually indicate that there was a contract, and, without a contract,
there was no claim for breach of contract.
¶ 37 Continuing with the pleading, Burrink erroneously alleged, as it had in the lien, that two
contracts were a single agreement: “11. *** Tower [Contracting] submitted a written document
which was titled ‘Subcontract’ which sought additional services from Claimant (the ‘Contract
Extras’).” As discussed above, the two agreements were separate and unrelated agreements, to be
read separately. Furthermore, sections 2.3 and 14.5 of the “Subcontract” precluded reading that
contract as part of the earlier “Purchase Order:”
“ARTICLE 2[,] SCOPE OF WORK
***
2.3 The parties agree that the Agreement contains all terms and conditions agreed upon
between them and that all prior conversation, understandings, agreements, promises,
letters, quotations, qualifications, and writings are null and void unless they are specifically
included herein.
***
ARTICLE 14[,] CONTRACT INTERP[RE]TATION
***
14.5 Entire Agreement. This Agreement is solely for the benefit of the signatories
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hereto and represents the entire and integrated agreement between the parties hereto and
supersedes all prior negotiations, representations or agreement, either written or oral.”
¶ 38 Sections 2.3 and 14.5 are known as integration clauses and they prevented the court from
treating the two contracts as one. See Air Safety, Inc. v. Teachers Realty Corp., 185 Ill. 2d 457,
464-65 (1999) (“An integration clause is a clause which provides that any prior negotiations
leading up to the contract are subsumed in the contract and that the contract is complete in itself.”)
When an integration clause is included in a written agreement, the four corners rule applies and
extrinsic evidence regarding the parties’ intention is not admissible to interpret the agreement.
Eichengreen v. Rollins, Inc., 325 Ill. App. 3d 517, 521-22 (2001). Here, the integration clauses
contradicted and defeated the allegation that the “Subcontract” was an additional part of the
“Purchase Order” and that together, the documents evidenced a single agreement between the
parties. Accordingly, the circuit court did not err in dismissing Count II for failure to plead a cause
of action for breach of contract, and we affirm that part of the order.
¶ 39 Furthermore, although not dispositive of the pleading, since the contracts were separate
agreements, the civil practice rules made it improper for Burrink to combine its two contract claims
into a single count of the pleading. Section 2-603(b) of the Code of Civil Procedure (Code) states:
“Each separate cause of action upon which a separate recovery might be had shall be
stated in a separate count or counterclaim, as the case may be and each count, counter-
claim, defense or reply, shall be separately pleaded, designated and numbered, and each
shall be divided into paragraphs numbered consecutively, each paragraph containing, as
nearly as may be, a separate allegation.” 735 ILCS 5/2-603(b) (West 2018).
¶ 40 Section 2-613(a) of the Code provides: “Parties may plead as many causes of action,
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counterclaims, defenses, and matters in reply as they may have, and each shall be separately
designated and numbered. 735 ILCS 5/2-613(a) (West 2018). Together, section 2-603(b) and 2-
613(a) indicate that the plaintiff should have stated its separate causes of action in separate counts.
We find no error in the circuit court’s decision to dismiss Burrink’s complaint.
¶ 41 Our next consideration is the dismissal of the other appellant’s complaint for failure to
state a cause of action, but for different reasons than those discussed above. Appellant Welsch
filed a verified third-party complaint that indicated the following. New Life Covenant Church, as
the fee simple owner of 7621 South Greenwood Avenue, contracted with Tower Contracting to
complete a project on the church’s property. Tower Contracting then entered into a subcontract
with Continental Construction Company (Continental Construction), which entered into a sub-
subcontract with ECO Construction, Inc. (ECO Construction), which entered into a sub-sub-
subcontract with Welsch. Welsch is an Illinois business based in Oak Forest that supplies ready-
mix concrete to construction projects. Pursuant to its agreement with ECO Construction dated May
22, 2018, Welsch provided concrete for the project and substantially completed its contractual
obligations on or about December 6, 2018. Welsch alleged that it enhanced the value of the subject
property by $294,256.55, and that after ECO Construction paid Welsch $147,708.82, Welsch was
owed $146,547.73. Welsch recorded a lien on March 14, 2019 and attached a photocopy of the
document to its pleading.
¶ 42 Welsch also alleged, “57. Welsch has performed all conditions precedent to the bringing
of action [(sic)].” Welsch did not also allege, however, that its lien claim was preceded by serving
New Life Covenant Church and Tower Contracting with a subcontractor’s 90-day notice after the
completion of its work.
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¶ 43 In count I, Welsch sought foreclosure of its lien against the real estate. In count II, Welsch
asserted its statutory right to damages from New Life Covenant Church and Tower Contracting.
Count III was a breach of contract claim against ECO Construction. Count IV was Welsch’s
quantum meruit claim against New Life Covenant Church, Tower Contracting, Continental
Construction, and ECO Construction.
¶ 44 We emphasize that Welsch did not name Continental Construction as a defendant to the
suit. Furthermore, in the introductory paragraph of its suit, Welsch recited all of the defendants’
names, but did not include Continental Construction.
¶ 45 New Life Covenant Church filed a motion to dismiss counts I, II and IV with prejudice,
because Welsch had failed to name all of the parties in the chain of contracts between itself and
the property owner, and also failed to allege that it provided a subcontractor’s 90-day notice to all
of the necessary parties before recording its lien. In a separate motion, Tower Contracting adopted
the church’s arguments and added an argument which is not at issue on appeal.
¶ 46 After briefing and oral arguments, the circuit court dismissed counts I, II, III, and IV with
prejudice as to New Life Covenant Church and Tower Contracting and ordered Welsch to file a
release of claim with the Cook County Recorder of Deeds. The court dismissed Count IV without
prejudice as to ECO Construction, gave Welsch leave to amend Count IV as to ECO Construction
only, and also indicated that there is no just reason to delay the enforceability or appeal of the final
order pursuant to Supreme Court Rule 304(a). See Ill. S. Ct. Rule 304(a) (eff. Mar. 8, 2016).
¶ 47 On appeal, with respect to its failure to name subcontractor Continental Construction as a
defendant when the company was a necessary party, Welsch argues that Continental Construction
was a nonrecord claimant that Welsch encompassed by generally naming “Unknown Owners and
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Non-Record Claimants” as defendants. The following defendants were named in the caption of
Welsch’s verified third-party complaint, and repeated in the first paragraph of the pleading:
“New Life Covenant Church-SE f/k/a New Life Covenant Oakwood, Inc., Tower
Contracting LLC, Foundation Capital Resources, Inc., Action Fence Contractors, Inc.,
Ahern Rentals Inc., Landscaping Services, Inc., Sunbelt Rentals, Inc., Masterlink Concrete
Pumping, L.L.C., Miller’s Eureka, Inc., Jay Bee Builders, LLC, Burrink Commercial
Services, Inc., Chicago Gypsum Supply, Inc. d/b/a M.R. Lee Building Materials, Seal Tight
Exteriors, Inc., Carter’s Excavating & Grading Company, HERC Rentals Inc., Midwest
Crane Rental, Inc., Illini Architectural Products Company, City of Chicago, City of
Chicago Department of Water Management, ECO Construction, and Unknown Owners
and Non-Record Claimants in the Real Estate and all persons who claim and [(sic)] interest
by, through, or under Owner.”
¶ 48 Welsch relies on section 11(c), rather than on section 11(b), of the Act. Those sections
state:
“(b) Each claimant shall make as parties to its pleading (hereinafter called ‘necessary
parties’) the owner of the premises, the contractor, all persons in the chain of contracts
between the claimant and the owner [(emphasis added)], all persons who have asserted or
may assert liens against the premises under this Act, and any other person against whose
interest in the premises the claimant asserts a claim.
(c) Necessary parties whose claims or interests are not disclosed by a document
recorded at the time a proper lis pendens of the action under Section 2-1901 of the Code of
Civil Procedure has been recorded (or if the action is instituted as a mortgage foreclosure
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at the time a proper notice of foreclosure under Section 15-1503 of the Code of Civil
Procedure has been recorded) may be named and made parties under the description of
‘unknown necessary parties’ [(emphasis added)]. Persons other than unknown necessary
parties who may be interested in the premises but whose identities are unknown to the
claimant may be named and made parties to the action under the description of ‘unknown
owners.’ [(emphasis added)].” 770 ILCS 60/11(b), (c) (West 2018).
¶ 49 Welsch contends it made an “honest mistake” by not making Continental Construction a
party pursuant to section 11(b) because when Welsch searched the property’s title, Continental
Construction had not recorded a lien against the property. According to Welsch, this fact made it
appear that Continental Construction could be described as a “necessary party” that was “not
disclosed” by any recorded document and that Welsch would be correct in relying on section 11(c)
instead of section 11(b).
¶ 50 Continuing, Welsch points out that the Continental Construction corporation was
involuntarily dissolved by the Illinois Secretary of State as of December 13, 2019, which was a
few weeks before Welsch petitioned the circuit court on January 20, 2020 for leave to intervene
and file its own complaint in the ongoing mechanics lien litigation that arose from the church’s
construction project. Furthermore, during the years that Welsch’s claim was pending in the circuit
court, Continental Construction did not record a lien, petition to intervene in Welsch’s suit, or file
its own action. To Welsch, these are indications that Continental Construction had and has no
interest in these proceedings and did not have to be named. Welsch cites Bingaman v. Dahm, 307
Ill. App. 3d 432, 438 (1940), for the proposition “that it is only necessary that ‘all persons who are
known to have any interest, either legal or equitable, in the land, or any claim for lien against,
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should be joined either as plaintiffs or defendants.’ ” Also, [c]ourts endeavor to protect parties to
any action, as well as those who have rights which should be protected and included within the
purview of the [statute] under which the action is instituted, but *** do not engage in futile acts
simply to adhere to a technical rule of procedure.” Bingaman, 307 Ill. App. 3d at 439. Welsch
contends that the dismissal of its complaint was based on a technicality and a futile act that did not
benefit Continental Construction.
¶ 51 Welsch also argues that the dismissal is against public policy and equitable principles
because it precludes an “[h]onest, hard-working subcontractor[]” from collecting payment for its
work. Welsch emphasizes that although mechanics liens exist by virtue of a statute, they are
essentially equitable claims. See National City Mortgage v. Bergman, 405 Ill. App. 3d 102, 111
(2010) (“a suit under the Act is a suit in equity and equitable principles must apply”). Cf.
Springfield Heating and Air Conditioning, Inc. v. 3947-55 King Drive At Oakwood, LLC, 387 Ill.
App. 3d 906, 914 (2009) (“the rights afforded by the Act are purely statutory in nature and are not
governed by the rules of equitable jurisprudence”); Wingler v. Niblack, 58 Ill. App. 3d 287, 289
(1978) (lien rights are “entirely governed by the Act and not by the rules of equity jurisprudence”).
Welsch concludes that equity requires that the property owner and its project contractor pay
Welsch for its work rather than argue about an “unprejudicial technicality based on a picayune
reading of the Act.”
¶ 52 New Life Covenant Church, in a brief that Tower Contracting has adopted as its own,
responds that the controlling statute is section 11(b), not section 11(c), of the Act; that even if
section 11(c) had been controlling, Welsch failed to name “ ‘unknown necessary parties’ ” as
defendants; and that Bingaman’s concerns are being quoted out of context.
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¶ 53 We consider Bingaman, 307 Ill. App. 3d 432, to be generally relevant, even though the
parties that were omitted in that case were outside the chain of contracts between the property
owner and the plaintiff. The opinion tells us that the omission of a necessary party in a mechanics
lien foreclosure case, if such objection is properly raised, deprives a foreclosing lien claimant of
his right to proceed until he makes such necessary party a party to his proceeding. Bingaman, 307
Ill. App. at 438. The Act “contemplates one suit and that all persons who are known to have any
interest, either legal or equitable, in the land, or any claim for lien against it, should be joined either
as plaintiffs or defendants so that the court will be able to adjust all equities and render a decree in
relation to the distribution of the proceeds.” Bingaman, 307 Ill. App. at 438. The property owner
should not be harassed with a multiplicity of suits and burdened with the associated costs and
expenses. Bingaman, 307 Ill. App. at 438.
¶ 54 Sub-sub-subcontractor Welsch is advocating for us to excuse its failure to include
subcontractor Continental Construction in this mechanics lien action and disregard the certainty of
section 11(b)’s statement that “[e]ach claimant shall make as parties to its pleading *** all persons
in the chain of contracts between the claimant and the owner.” (Emphasis added.) 770 ILCS
60/11(b) (West 2018). Welsch relies mainly on Bingaman, in which the court declined to reverse
a judgment for the plaintiff lien claimant which had not named certain other potential lien
claimants. Bingaman, however, is distinguishable from this case, in that (1) the nonjoined parties
were outside the chain of contracts between the plaintiff and the defendant, and thus stood in a
different relationship than Welsch and Continental Construction, and (2) the court was not
contemplating any statute, let alone the statutory language at issue here. Bingaman, 307 Ill. App.
432. Bingaman is not helpful in determining the outcome of this appeal. We would have to rewrite
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section 11(b) in order to create an exception for Welsch on grounds that its purported title search
did not result in any indication that Continental Construction had a pending lien claim on the
church’s property, or on grounds that Continental Construction’s corporate status had been
administratively dissolved. Although Welsch argues that we would be accommodating an
inconsequential “technical” error in its complaint, Welsch is minimizing the significance of its
error and the corresponding significance of its appellate argument. The legislature used the word
“shall” in this statute, and when the legislature employs this particular word, generally, the
legislature is stating an unavoidable requirement. See In re Marriage of Takata, 304 Ill. App. 3d
85, 95 (1999) (“Under the rules for statutory construction, the word ‘shall’ ordinarily connotes a
mandatory obligation, unless the context of the statute indicates otherwise.”); Hoffman Estates
Professional Firefighters Ass’n v. Village of Hoffman Estates, 305 Ill. App. 3d 242, 253 (1999)
(“Legislative use of the word ‘shall’ is generally considered to express a mandatory reading.”).
The statutory requirements must be scrupulously observed. Ronning Engineering, 181 Ill. App. 3d
at 758. The statute required Welsch to make Continental Construction a party to the suit—despite
any opinion that Welsch might have formed about the subcontractor’s interest in the litigation. It
is not our role to rewrite legislation. Any expansion or contraction of the statutory language under
the guise of statutory construction would be impermissibly exercising a legislative function. We
may not depart from the plain language and meaning of the statute by adding an exception for
Welsch. Mohammad, 2013 IL App (1st) 122151, ¶ 10 (courts do not read in unstated exceptions,
limitations, or conditions to statutes); Hill Behan Lumber Co. v. Irving Federal Savings & Loan
Ass’n, 121 Ill. App. 3d 511, 516 (1984) (“This court cannot add words to a statute to change its
meaning.”)
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¶ 55 Furthermore, even if we assume for purposes of argument that section 11(c) states an
alternative to section 11(b), Welsch did not conform with section 11(c). Section 11(c) states in
relevant part:
“Necessary parties whose claims or interests are not disclosed by a document record-
ed at the time a proper lis pendens of the action under Section 2-1901 of the Code of Civil
Procedure has been recorded (or if the action is instituted as a mortgage fore-closure at the
time a proper notice of foreclosure under Section 15-1503 of the Code of Civil Procedure
has been recorded) may be named and made parties under the description of ‘unknown
necessary parties’.” 770 ILCS 70/11(c) (West 2018).
¶ 56 The suit caption that we quoted above shows that Welsch did not sue “ ‘unknown necessary
parties.’ ” Instead, Welsch sued “Unknown Owners and Non-Record Claimants in the Real
Estate.” Welsch cites no language in section 11(c) or elsewhere in the Act that would allow Welsch
to include “Unknown Owners and Non-Record Claimants” in the caption and preamble of its
pleading, let alone allow it to designate a party that is in the chain of contracts, like Continental
Construction, as such. Instead, Welsch cites to an entirely different and irrelevant statute, the
Illinois Mortgage Foreclosure Act, 735 ILCS 5/15-1210 (West 2018), as the source of the term
“nonrecord claimant.” Welsch brought its claim under the statute that is specific to mechanics lien
claims (770 ILCS 60/0.01, et seq. (West 2018)) and that is the statute that governs our analysis.
Welsch’s resort to an irrelevant statute regarding mortgagors and mortgagees is not convincing.
Similarly, Welsch’s resort to an irrelevant section of the Act regarding “ “unknown necessary
parties’ ” is not persuasive when Welsch knew of Continental Construction’s existence and had no
legitimate reason to omit that known entity from these proceedings.
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1-22-0778, cons. with 1-22-0780 and 1-22-0789
¶ 57 Section 9 of the Act states, “[i]f payment shall not be made to the contractor having a lien
by virtue of this act of any amount due when the same becomes due, then such contractor may
bring suit to enforce his lien in the circuit court in the county where the improvement is located.”
760 ILCS 60/9 (West 2018). Also, [s]uch suit shall be commenced or counterclaim filed within
two years after the completion of the contract.” 770 ILCS 60/9 (West 2018). A lien claimant must
commence a suit and join necessary parties within the time limits of the Act to avoid forfeiting the
lien. CB Construction, 2021 IL App (1st) 200924 at ¶ 30. In CB Construction, upon the completion
of a nearly $10 million renovation of an apartment building, the owner refused to pay the contactor
about $1.4 million remaining under the parties’ contract, which prompted the contractor to file a
mechanics lien against the property. CB Construction, 2021 IL App (1st) 200924, ¶ 6. The owner
then served the contractor with a demand pursuant to section 34 of the Act, requiring the contractor
to file a lawsuit within 30 days to enforce its lien, despite the usual two year period for filing suit
provided by section 9 of the Act. 760 ILCS 60/9, 34 (West 2018); CB Construction, 2021 IL App
(1st) 200924, ¶ 7. The contractor filed a complaint within the 30 days, but failed to name two
parties that had financial interests in the property. CB Construction, 2021 IL App (1st) 200924 ¶
8. One of the missing defendants was the mortgage lender and the other missing defendant was
the assignee of rents from the property. CB Construction, 2021 IL App (1st) 200924 ¶ 8. These
parties were deemed necessary parties to the lawsuit. CB Construction, 2021 IL App (1st) 200924¶ 26. Since the contractor failed to include these parties as defendants within the thirty days after
it received the Section 34 demand, the court ruled that the lien was forfeited. CB Construction,
2021 IL App (1st) 200924 ¶ 30.
¶ 58 In its complaint, Welsch did not name one of the necessary parties, Continental
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1-22-0778, cons. with 1-22-0780 and 1-22-0789
Construction, as a party. This defect is not curable. Under the Act, a party must file suit to enforce
its lien claim within two years of its last date of completing its obligations. 770 ILCS 60/9 (West
2018). Welsch’s last date of work was December 6, 2018, which meant that the deadline for it to
file suit and name all necessary parties was December 6, 2020. Welsch failed to name all the
necessary parties within the time allowed.
¶ 59 We conclude that Welsch’s pleading was fatally flawed because it did not name as parties
“all persons in the chain of contracts between the claimant and the owner” as required by section
11(b) of the Act. 770 ILCS 60/11(b) (West 2018). Given our determination that the failure to
comply with section 11(b) justified the dismissal of Welsch’s action with prejudice, we do not
reach the parties’ arguments that a second reason to dismiss the action was that Welsch did not
allege that it sent a subcontractor’s 90-day notice of its claim in compliance with section 24 of the
Act. 770 ILCS 60/24 (West 2018). We affirm the judgment of the circuit court with respect to
Welsch’s action.
¶ 60 Recapping, we have addressed the appellants’ arguments, found them unpersuasive, and
affirm the judgment of the circuit court in these consolidated cases.
¶ 61 Affirmed.
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