*1 al., Plaintiffs-Appellees, DZIADKOWIEC, LESZEK et KRZYMINSKI JOE Company, Appellant. Joe d/b/a Dee Construction Opinion filed
O’BRIEN, J., dissenting. (Donald Associates, P.C., Crowe, Mahoney Chicago Patrick & R. counsel), appellant. (David Cutler, Cutler, counsel), Law Office of David H. Skokie H. appellees. PRESIDING JUSTICE BUCKLEY delivered the opinion court: granting
This arises from an order of trial court appeal summary On plaintiff-homeowners’ judgment. appeal, motion for following issue raised: whether owner’s demand (the Act) section 34 of the Illinois Mechanics Lien Act (West 1996)) to file contractor causing the contractor’s is effective lien within contractor’s lawsuit fails to file a if to be forfeited filed a yet had not even if the contractor required in office. with the Plaintiffs, and Marie undisputed. are Leszek
The facts of the case at 1007 Blacksmith are owners of a residence located Krzyminski, Defendant, Dziadkowiec, Lemont, Lane, Illinois. Joe *2 15, 1994, parties entered into On or about June the contractor. By December plaintiffs’ property. on contract for construction work since had 1995, passed had defendant more than six months a demand property. on Plaintiffs issued performed plaintiffs’ work 1996)) (770 (West for Act ILCS 60/34 pursuant to section 34 the days. lien within 30 Defen- to file a lawsuit to enforce his defendant 19, 1996, On March plaintiffs’ to to demand. respond dant failed issue a release of his plaintiffs a demand on defendant to issued (770 Act days 35 the claim for lien within 10 to section (West 1996)). ILCS 60/35 plaintiffs filed this ac-
Defendant refused issue a release and 1996, May 22, obtaining tion on for the a court order purpose of title to lien. clearing the cloud of their from defendant’s lien the Defendant never recorded a claim for with plaintiffs’ office demands. interpretation instant the dispute arises over of sections 34 (West 1996)). 60/34, and 35 of the ILCS 35 claims Act this is a case of first in Illinois since no court has impression applied ever the Act to a situation where the contractor had not re- his claim for lien to the demand that institute a suit corded he enforce Section 34 reads as follows: *** owner, person “Upon written of the served on the *** claiming requiring the to be commenced to enforce suit, pending in a the lien or answer be filed suit shall be com- thereafter, days menced or filed within 30 or the shall answer (West 1996). be forfeited.” 770 provides following: the a claim has filed with the recorder or “Whenever for lien been sub-contractor, Registrar Titles, by the either the contractor or *** or there is suit to the same where a failure section, provided preceding after as in the the *** limited, person filing Act the shall ac- this same knowledge thereof, writing, in on written satisfaction or release neglect on to do so for 10 after and for the sum of such written demand he shall be liable to owner $25, may which be recovered in a civil action.” 770 ILCS 60/35 1996). (West “It has in provision been stated the notice section 34 is jurisdictional, in the section nature of a statute of limita tions and was on validity intended force the issue claims filed.” & Equipment Pickus Construction Co. v. Waukegan, Bank of (1987). 141, App. 228, Moreover, Ill. 3d 511 N.E.2d de fendant insists that of section 35 must be read (“where together. Thus, the part second of the section there is a fail same”) ure to institute suit to clearly referring enforce the claim lien already recorder, that has speci been filed with the as (“[w]henever fied in the part first of the section a claim for lien has recorder”). been filed with the 770 ILCS 60/35 Accordingly, the purpose of sections 34 and 35 of the Act is to provide a method for a owner to force the issue on the valid ity already of claims filed and to clear a cloud on the owner’s filing created of a lien. If a claim lien not has been filed contractor, upon then there is no cloud the owner’s title. We also note that gives years contractor two day from the last that the contractor completed any job work on the against to file his claim for lien the property owner. 770 ILCS 60/7 plaintiffs’ According theory, could use sections deny 34 and 35 of the Act to their contractors long expired before the time may which lien claim be filed. *3 permit property To a owner to require a contractor to file his suit to his to the contractor’s recording of his claim contrary hen would be to the intent of the Act. reasons, the foregoing
For we reverse the of circuit court Cook County’s granting summary judgment plaintiffs. order of favor
Reversed.
GALLAGHER, J., concurs. O’BRIEN,
JUSTICE dissenting: clearly requires “person claiming the lien” to proceedings claim in prove court within 30 or
demand risk forfeiture that clearly Section mandates the release of lien where “a claim for lien has been filed” or where is a failure “there to institute enforce the same after demand.” 770 ILCS 60/35 There are no of either section which that an actual fil- mandate ing pur- of a claim for lien is a an owner prerequisite suant to sections and 35. claim filing of a requires an actual holding, which majority’s
The a contractor permits years without for two to claim lien on a ability an maintain Thus, period. his claim being required prove waiting to see what the recourse other than no and, thus, title of potential will do vis-a-vis a claim 35 of Sections 34 and period would remain clouded for that time. owners providing this situation clearly aim avoid cloud potential avoid a remedy adjudicate property with a if the owner dispose of that on the title of that desires. affirmed. judgment of the circuit court should be respectfully I
Accordingly, dissent. ILLINOIS, Plaintiff-Appellee, THE THE PEOPLE OF STATE OF SHEPARD, Defendant-Appellant. MILTON Opinion filed