*1 investigation his to confirm dispel his suspicions. Requesting a or, consent to search case, the vehicle as in the instant conversing passenger part of that continuing investigation, which was upon already based Cessna’s established suspicion. articulable Therefore, I would affirm the trial court grounds. on both BALE, MARTIN L. Excavating Drainage, Farm d/b/a Plaintiffs- Appellants, al., v. WILLIAM F. BARNHARTet Defendants-Appellees.
Fourth District No. 4 — 02—0729 Opinion July filed Rehearing denied November 2003. *2 Muck, Muck, Lincoln, appellants. Douglas A. of Muck & Offices, Bloomington, appel- Mirdo, of Thielen Law Barbara Snow lees. opinion of the court:
JUSTICE KNECHT delivered Excavating Farm Drain- Bale, Bale Plaintiff Martin L. d/b/a Barnhart, L. defendants, F. Maridel age, filed suit William seeking Company (Huntington), Barnhart, Huntington Mortgage moved to dismiss separately a mechanic’s lien. Defendants foreclose complaint under section 2—619 of the Code of Civil Procedure (Code) (735 (West 2002)). The circuit court held the 5/2 —619 claim for lien improperly described the claimant as Carla Bale and granted the defendants’ motions. (1) appeals and argues the claim for proper; lien was
the complaint nevertheless perfected the lien. In a combined appellee brief, defendants contend appeal is premature and this court lacks jurisdiction. agree We in part. We dismiss as untimely the appeal of granting order dismiss, Barnharts’ motion to and we affirm granting Huntington’s order motion to dismiss.
I. BACKGROUND Bale filed his on September 2001. According to the complaint, Bale and the verbally Barnharts contracted for Bale to cre- ate a pond one-acre on the Barnharts’ property. completed his contractual obligations and September 30, services on 2000. The fair market value of the building services provided by materials Bale to the $8,540.82. Barnharts atwas least alleges Huntington further mortgage held a lien on property, Barnharts’ where Bale performed his services. Bale as- priority serts his lien has mortgage over this lien.
Attached to the complaint is a copy of the claim of pursuant (Act) (770 (West to section 7 of the Mechanics Lien Act *3 2000)), filed in the County McLean recorder’s office on October 13, 2002, On March complaint Barnharts moved to dismiss the (735 (West 2002)). under section 2—619 of the Code ILCS 5/2 —619 The argued, Barnharts in part, complaint is deficient because the claim for lien failed to comply requirements with the of the Act and the lien perfected. was thus not Following hearing 22, 2002, on April agreed circuit court granted with the Barnharts and the motion to 21, 2002, May dismiss. On Bale moved for reconsideration and rehear- ing. court, 7, 2002, August on denied Bale’s motion to reconsider. August On specific findings moved for and clarification. 24, 2002, On June Huntington moved to dismiss the complaint. Later, 19, 2002, August Huntington on moved for immediate dismissal. agreed The circuit court granted the motion on August date, 2002. On that same the circuit court denied Bale’s motion to clarify. granting Huntington’s In its order motion to dismiss denying clarification, the motion for the circuit court “no found just delay cause to either enforcement appeal or both of this [ojrder.” appeal September 6,
Bale filed notice of on 2002. On September section attorney fees under moved to recover Barnharts of the Act. 770
II. ANALYSIS A. Jurisdiction Appellate denying his complaint and dismissing his appeals the orders Barn- against the of the the dismissal motion to reconsider harts. statement, Bale’s conten dispute defendants jurisdictional
In their Rule 303 Court Supreme under Illinois jurisdiction this court has tion 303). (155 if exists jurisdiction, any, Defendants contend Ill. 2d R. (155 304(a)). 304(a) brief, In their 2d R. Rule Ill. under Bale did any argument. make additional cite no case law or defendants respond. not issue, “have an we failure to brief
Despite counsel’s jurisdiction proper.” duty appellate to ensure that independent v. American Federation Management Central Services Department State, 234, 238, 695 N.E.2d 182 Ill. 2d County Municipal Employees, & (1998). Here, to dismiss. The orders dismiss the motions two Barnharts; latter complaint against first dismissed the just no cause to Huntington and found “there is against dismissed of this delay appeal [o]rder.” either enforcement or or both judg final 304(a), may “an be taken from a appeal Under Rule only parties than all of the or claims ment as to one or more but fewer is no finding that there express if the trial court has made an written or both.” 155 just delaying appeal either enforcement reason 304(a) 304(a). finding Rule on Here, the circuit court made a 2d R. Huntington. Regardless of as to dismissing order jurisdiction under jurisdiction, we have provides whether Rule 303 304(a) Huntington. dismissing against the claim Rule on the order 304(a) on the order court, however, finding made no Rule The circuit denying or on the order dismissing the claim the Barnharts 304(a) finding, Rule we explicit motion to reconsider. Absent an Bale’s 304(a) dismissing jurisdiction under Rule over order have no Evangelical Covenant complaint. See Marsh Barnharts from Church, 138 Ill. 2d jurisdiction over the order consider whether we have
We now Barn Rule 303. The against the Barnharts under dismissing the claim attorney under section 17 *4 timely motion for fees harts contend their 2000)) (770 (West premature. the appeal renders of the Act 2002, 13, in their March attorney fees requested The Barnharts first granted court 22, 2002, the circuit April motion to dismiss. On regarding the Barnharts’ dismiss, findings it made no motion to request for attorney fees. After the order dismissing Bale’s against Huntington, September 23, 2002, on the Barnharts filed a mo- tion attorney to recover fees.
Under Rule
notice of appeal must be filed
days
within 30
the date
judgment
of final
ruling
or of a
on a timely postjudgment mo
303(a).
tion. 155 Ill. 2d R.
A judgment, however, is not final unless it
“resolve[s] every right, liability
Marsh,
or matter raised.”
138 Ill. 2d
at
Here,
N.E.2d at 463.
there was no final judgment because
the order on the Barnharts’ motion to dismiss left unresolved the is
sue of attorney fees—an issue raised in the pleadings. See generally
Hull,
Hise v.
116 Ill. App. 3d
Having jurisdiction no over dismissing the order against the Barnharts or over the denial of the motion for reconsidera- tion, appeal we dismiss the of these orders.
B. Propriety of Granting Dismissal Huntington as to Huntington’s motion to dismiss failed to cite specific subparagraph of upon section 2—619 which it relied. Based on the motions, substance of however, we find Huntington’s motion relied on subparagraph (a)(9), which authorizes dismissal on the pleadings *** when “the claim asserted is barred other affirmative matter avoiding legal effect of or defeating the claim.” 735 ILCS 5/2— 619(a)(9) (West 2002). 619(a)(9)
In a section motion, the “affirmative matter” must 2— appear on the face of the complaint or be supported by evidentiary Epstein materials. v. Chicago Education, Board After a defendant satisfies his burden of establishing an matter, affirmative the burden plaintiff, shifts to the may who defeat the motion establishing the asserted defense is unfounded. See Kedzie & Currency 103rd Exchange, Hodge, Inc. v. Ill. 2d Because dismissals under 619(a)(9) section summary resemble judgment, we them review de 2— novo and decide a genuine whether issue of material precludes fact dismissal or whether dismissal is proper as a matter of Ep law. See stein, 178 Ill. 2d at
Bale argues the circuit court improperly found he comply failed to (770 (West 2000)). with section 7 of the Act Bale maintains timely he filed a claim for lien under section 7 the McLean County recorder’s argues office. Bale the claim for lien identified him aas claimant completed and was and signed by agent, his S. Bale. Carla argues, properly was dismissed
713 require the strictly comply not lien did claim for because the support: on two cases primarily relies the Act. ments of (1996), 359, N.E.2d 722 3d 666 Ricketts, App. Ill. 281 Candice Co. v. 181 Ill. Corp., Pride Co. v. Adams Engineering Ronning and Alfalfa caption the Huntington admits 1032 753, 537 N.E.2d App. 3d text, identifies the which claimant, contends the Bale identifies as claimant, controls. the Carla Bale as strictly be law and must of common derogation “in The Act is Industries, Inc., Construction, v. Centurion Inc. Rothers
construed.” party “[T]he 635-36, 648 N.E.2d 3d 786 App. 337 Ill. that each proving of burden “[t]he the lien” bears seeking to enforce 3d at App. 181 Ill. Engineering, Ronning has been satisfied.” requisite at 1035. 537 N.E.2d be that must prerequisites the Act sets forth Section 7 of the See against a creditor. may enforce a lien a contract satisfied before (West 2000). 7, plaintiff a terms of section Under the 770 a a for lien or by filing claim against a lien a creditor may enforce of the work. completion months of the within four (West v. Valenz 2000); Koglin A. Associates see also Norman ILCS 60/7 (1997). Here, Oro, 385, 391, Inc., Ill. 2d filing the four-month after September filed on complaint was can Huntington, Therefore, at least to complaint, period expired. then, hen, To enforce his enforcing for the lien. not be the basis If the claim of timely. claim proper for lien was must establish his insufficient, Huntington is barred sec against Bale’s claim lien is tion 7. lien, to be 7, a claim for of section
According language to the (1) months creditor, filed four must be within enforceable a (2) an by the claimant or work; be verified of completion after (4) (3) contract”; of the contain “a brief statement agent employee; “sufficiently correct due”; provide a “the balance set forth identify the same.” 770 lot, of land to lots or tracts description of the completed lien was Here, claim for are lines form claim-for-lien top preprinted Bale. At the of the Carla S. form and the prepared the individual who to enter the name of after hand-written S. Bale is The name Carla name of the claimant. In “claimant.” hand-written as name is “Prepared by” plaintiffs S. Bale was lien, however, the name Carla for body of the claim claim addition, the end of the In at places. in two entered as claimant claimant, agent[,] “the as signed the verification Carla one contract as describes the claimant.” The text employee of the Barnharts. “claimant” and between decided cases that have identified two
Huntington has improper to a party provide identification contract fails to requisite Ronning “brief of the contract.” See Engineering, statement 1036; 181 App. Co., Ill. 3d at at Candice see also at N.E.2d at 725. In Ronning Engineering, this court held the plaintiffs lien, which owner’s property misstated name as Adams Pride and County, not did satisfy Adams not section 7 of Act. This court reasoned the incorrect name in a resulted misstatement of the contract, in Ronning Engineering, violation section 7. 181 Ill. App. Co.,
In
name[d]
Candice
“lien claim
as the
Candice
‘claimant’
‘on August
state[d] that
made a
claimant
contract
La
with said owner
Von L.
& Trina
any
Ricketts
Ann Malone and
”
other
Co.,
[r]emodel
unknown owners to
basement.’ Candice
*6
App.
363,
3d
contract, however,
at
666 N.E.2d at
The
“indicate[d]
725.
that
party
August
Candice
not a
to
to
was
the
6 contract
remodel the
basement,”
“[i]nstead,
Sons,
and
Father
Ricketts and Malone
Co.,
were the parties
App.
to this contract.” Candice
281 Ill.
3d at
court, citing
666
Ronning
N.E.2d at 725. The
held
Engineering,
“the
lien
description
does not contain an
contract”
accurate
of the
and
requirements
“[did] not
of section
Co.,
meet the
7.” Candice
281 Ill.
App.
Ronning Engineering by controls. We find the claim for contract, failing accurately satisfy to describe the did not section 7. however, Bale argues, the claim for lien him properly identifies as top. claimant at Huntington emphasizes, this is the cap tion and the is improperly throughout claimant identified the text. conflict, caption maintains when the text text People Sirinsky, controls. See 47 Ill. 2d 507 minimum,
At a ambiguity the conflict creates an that in an results Strictly construing Act, inaccurate of description the contract. we find hen the claim for fails section 7. Because the was not timely fatally flawed, filed within four claim for is months lien against Huntington Bale’s claim barred is section
III. CONCLUSION W¡ appeal of the Barnharts’ motion granting dismiss the order section dismissing to order under dismiss. We affirm the against Huntington. 2—619 part. and affirmed in part dismissed in
Appeal STEIGMANN, J, concurs. COOK, dissenting:
JUSTICE the trial I and would reverse remand respectfully dissent judgment. court’s protect of Mechanics Act is to those who in purpose
The Lien construction. Petroline Co. v. good faith furnish material or labor Contractors, Inc., 234, 237, Advanced Environmental 305 Ill. 3d App. liberally is and be N.E.2d “This act shall (West 2000). construed as a act.” 770 Once a remedial plaintiff complied procedural requirements upon has which a right based, liberally in to a lien is the Act should be construed order purpose. Westcon/Dillingham Microtunnel its accomplish remedial Illinois, ing Co. v. Walsh Construction 3d App. of Petroline, (2001); at (courts attempted have thus to reconcile section 39 with the that and must precept derogation Act is of the common law be construed). strictly complied procedural
The claim for lien in this case with all the (1) requirements of It after section 7. was filed within four months (2) work; an completion agent was verified the claimant or (3) (4) contract; of the set forth employee; contained a brief statement due; provided sufficiently description the balance correct lots, lot, identify of land to the same. 770 ILCS tracts . absolutely case clear. The claim was lien in this *7 the by: Name: Carla S. Bale.” The claim identifies claim- “prepared Bale, Claimant(s).” Excavating Drainage, ant, L. “Bale & Farm Martin signed, The it is Bale on notary acknowledgment explains how “Carla claimant, says employee is or duly agent[,] [sic] oath sworn that he the Bale,” notary signed of claimant.” The is then “Carla acknowledgment the The printed notary under line. the word “claimant” signed it not be acknowledgment signed by person; had to be a could through act by Excavating Drainage. only Farm Businesses can & notary acknowledgment, her Carla individuals. Consistent with Bale,” again signed signature the line of the claim for “Carla line, in the and she filled her printed with the word “claimant” under blank, in the comes Carla Bale the Claimant preceding name “Now claims and a lien ***.”
716 language
Where the of a is clear court unambiguous, statute a give written, reading must it effect as without into it exceptions, legislature limitations or conditions that the not v. express. did Davis Co., America, 184-85, 186 Toshiba Machine Ill. 2d 710 399, 401 7 the claim by Section allows for lien to be verified an or The “agent employee.” section does not every agent’s that time the name it require employee’s appears, by “agent” be the The “employee.” must followed word the word majority’s requirement to read that in attempt into statute reads legislature a limitation or express. condition that the did not The upon by majority very cases relied are different from this plaintiff’s In Ronning, wrong case. claim for lien described the contract, a September written contract entered into on joint venture, plaintiff County between Adams when the cor a July 1, rect contract was verbal contract entered into on plaintiff Ronning, between Adams Pride. 181 Ill. 3d at App. Co., 1036. In N.E.2d at Candice the claim of lien asserted Inc., the claimant, that Candice into to Company, entered a contract a Company, Inc., party remodel basement. Candice was not a contract; by to the contract in fact was into entered Father Sons, Co., Inc. Candice Ill. N.E.2d at 725. Ronning entities, separate and Candice Co. not an agent involved who clearly was identified as such in the claim for lien. strictly
Under the rule of strict statute construction is illogical apply construed. It is to a rule of a claim strict construction to law, possible for lien. It is for a statute to be in of derogation common not a claim for lien. According possible to if is a lien majority, it to twist claim for say say, to it was not to of something intended the rule strict construc- prevents correctly. from reading majority tion us The is mistaken. applied
“The doctrine strict construction was meant to be never good pitfall unwary, pursuing path as faith marked statute, adversary nor as an ambuscade from an can which misstep. overwhelm him for an immaterial Its is to function preserve remedy rights the substantial of those whom the directed, offered employed the statute is and it never Volland, otherwise.” United Cork Cos. require (distinguishing “a material cases where omitted”).
ment of the statute had been 109, 113-14, Johnson, Cirrincione v. applies only provisions to the strict construction rule *8 right to requirements upon which
Act that the substantive specify objections example, to technical apply, lien It does not is based. 289. Associates, pleadings. Koglin requirements of sec complied the substantive The claimant here the Act to attempts to extend tion 7. not a case where claimant This is Luise, Skokie, Village v. language. Inc. provided cases not its 672, 680-81, ILLINOIS, Plaintiff-Appellee, THE OF THE OF PEOPLE STATE JENNINGS, Defendant-Appellant. MICHAEL S.
Fifth District No. 5 — 00—0482 Opinion filed October