delivered the opinion of the court:
Plaintiff Parkway Bank and Trust Company (Parkway) filed an action in chancery court for foreclosure of a construction mortgage and sale of the underlying real property. One of the defendants, Beta Electric, Inc. (Beta), filed a counterclaim asserting the priority of its mechanic’s lien on the property over Parkway’s mortgage. The court granted judgment on the pleadings to Parkway on the counterclaim and denied Beta’s motion for reconsideration. Beta argues the court (1) abused its discretion by striking Beta’s untimely response to Parkway’s motion for judgment, denying Beta’s motion for approval of the late filing and excluding Beta from oral argument for its failure to strictly comply with the court’s briefing schedule; and (2) erred in granting Parkway’s motion for judgment on the pleadings on the basis that Beta was a subcontractor, not a contractor, under the Mechanics Lien Act (770 ILCS 60/1 et seq. (West 2008)) and had failed to properly perfect its lien. We affirm.
Background
In 2006, Haso, Samel and Albin Meseljevic started development of a 40-unit commercial condominium project in Chicago. At some point, the Meseljevics incorporated the project as 1633 Farwell Ave. LLC. On April 11, 2006, Beta entered into a contract with Haso pursuant to which Beta would perform electrical work on the project. On May 8, 2006, Parkway entered into a construction mortgage contract with Haso and Samel, identified in the contract as ‘‘grantor[s]” and “borrowers].” Parkway recorded the mortgage on May 11, 2006. The mortgage was modified and/or renewed several times, with 1633 Farwell Ave. LLC being added as a grantor/borrower in October 2007. On May 1, 2008, Parkway accepted a promissory note executed by all three Meseljevics and by Haso as “operating manager” of 1633 Farwell Ave. LLC. On August 5, 2008, Beta recorded a mechanic’s lien against 16 of the condominium units after the Meseljevics failed to pay Beta $136,200 due for Beta’s work on the project. 1
On August 29, 2008, Parkway filed a verified mortgage foreclosure complaint naming as defendants the Meseljevics individually; 1633 Farwell Ave. LLC; the board of managers of 1633 Farwell Ave. LLC; Benz Kitchens; and unknown owners and record claimants. Parkway alleged the Meseljevics had not made any payments on the mortgage since April 2008. It requested a judgment of foreclosure on its construction mortgage secured by the promissory note, an order of possession and sale, and an order terminating all defendants’ rights to possession of the property.
On January 26, 2009, the court entered an order of default against all defendants and granted Parkway’s motion for a judgment of foreclosure and sale. In March 2009, the court vacated the default judgment against Beta in order to allow Beta to assert the priority of its mechanic’s lien over Parkway’s mortgage. Beta then filed a verified answer to Parkway’s complaint and a counterclaim against Parkway and the Meseljevics; 1633 Farwell Ave. LLC; the board of managers of 1633 Farwell Ave. LLC; Benz Kitchens; Beta; and unknown owners and record claimants. The counterclaim asserted Beta’s lien had priority over any other interests, including Parkway’s mortgage. It asked for a judgment against Parkway for the $136,200 lien amount, plus costs, and/or a judgment extinguishing the interest of any other necessary party to the extent sufficient to satisfy that amount.
On May 7, 2009, Parkway filed a motion for judgment on the pleadings on the counterclaim pursuant to section 2 — 615(e) of the Illinois Code of Civil Procedure (735 ILCS 5/2 — 615(e) (West 2008)). It argued, in relevant part, that Beta had not properly perfected its mechanic’s lien and the lien, therefore, had no priority over the mortgage. The same day, the court entered a scheduling order setting June 4, 2009, as the due date for Beta’s response to the motion. The scheduling order warned that “failure to file a timely written Response or Reply will be deemed a waiver of oral argument with respect to the Response or Reply.” Beta filed its response on June 5, 2009, the day after the deadline, without prior leave of court. On June 17, 2009, Parkway filed a reply to the response and an objection to Beta’s participation in oral argument regarding the motion. It asserted Beta waived oral argument when it filed its response late in violation of the scheduling order. On June 24, 2009, Beta filed a motion to approve late filing. The motion was not supported by an affidavit.
On June 26, 2009, after argument on Parkway’s objection and Beta’s motion to approve late filing, the court denied Beta’s motion to approve late filing, struck Beta’s response as untimely and barred Beta from participating in oral argument during the hearing on the motion for judgment on the pleadings. The court then heard argument by Parkway on its motion for judgment on the pleadings on the counterclaim and granted the motion. It found Beta’s lien showed Beta was a subcontractor; Beta failed to perfect its lien because it did not give statutory notice of the lien to Parkway; and Parkway’s mortgage was, therefore, prior to and superior to Beta’s lien. The court reinstated the January 2009 default judgment entered against Beta.
On August 14, 2009, the court denied Beta’s motion to reconsider. The court granted Parkway’s motion to confirm the sale and distribution of the unsold condominium units, those not released from the mortgage. The condominiums having sold at auction for less than the amount due Parkway under the mortgage, the court entered a deficiency judgment against the Meseljevics and 1633 West Farwell Ave. LLC. On November 6, 2009, it granted Parkway’s emergency motion to modify the judgment in order to change the description of one of the condominium units listed in the previous order. On December 7, 2009, Beta filed its notice of appeal from the June 26, 2009; August 14, 2009; October 21, 2009; and November 6, 2009, orders.
Analysis
1. Untimely Response
Beta argues that the court abused its discretion in denying Beta’s motion for approval of its late-filed response to Parkway’s motion for judgment on the pleadings, striking the response and barring Beta from participating in oral argument on the motion for judgment on the pleadings. The court’s scheduling order required Beta to file its response to Parkway’s motion for judgment on the pleadings on or before June 4, 2009. Beta filed its response on June 5, 2009, one day late, without first requesting an extension of time or leave of court to file the untimely response. Beta’s procedural failure to obtain leave of court prior to filing its untimely response did not render the response a nullity. Cedzidlo v. Marriott International, Inc.,
Beta filed a “motion to approve late filing” of the response. Pursuant to Supreme Court Rule 183:
“[The] court, for good cause shown on motion after notice to the opposite party, may extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time.” 134 Ill. 2d R 183.
Rule 183 vests the circuit court with discretion to extend the time a party has to comply with a court-ordered or rule-imposed deadline, both before and after expiration of the filing deadline. Vision Point of Sale, Inc. v. Haas,
In order to demonstrate good cause under Rule 183, Beta had the burden to demonstrate to the court “clear, objective reasons why it was unable to meet the deadline and why an extension of time should be granted.” Vision Point of Sale, Inc.,
Putting aside the fact that Beta’s motion was unsupported by affidavit, it is clear that the court had no basis on which to approve the late response. Beta’s motion presented no cause for its late filing, let alone a good cause. “[I]n determining whether good cause exists under Rule 183 for the grant of an extension of time to remedy an unintentional noncompliance with a [timing] requirement, the circuit court may not take into consideration facts and circumstances of record that go beyond the reason for noncompliance.” Vision Point of Sale, Inc.,
Beta asserts the court denied its motion to approve the late filing without any inquiry into Beta’s reasons for filing its response a day late, i.e., without considering whether Beta presented a good-cause reason for missing the deadline. The report of proceedings on the motion bears out Beta’s assertion that the court did not examine whether Beta had good cause for its late filing before it denied the motion. Instead, the court appears to have denied the motion on the basis that Beta did not file the motion before expiration of the June 4 pleading deadline. Under Rule 183, a motion for extension of time to file a pleading may be granted “either before or after the expiration of the time [for filing a pleading].” 134 Ill. 2d R. 183. Accordingly, it would be error to deny the motion solely on the basis that it was filed after the expiration of the court’s deadline.
However, as stated above, the record also clearly shows that Beta did not present the court with an adequate motion for its consideration of whether an extension should be granted for good cause. The motion for approval of late filing was unsupported by affidavit and presented absolutely no reason for missing the deadline. The court would have been unable to perform a good-faith analysis on the basis of that motion even if it had wanted to. It was not up to the court to ask why Beta missed the deadline and ferret out a possible good cause. This was Beta’s burden to prove. The court did not abuse its discretion in denying Beta’s motion for approval of late filing of the response and in striking Beta’s untimely response filed without leave of court.
Similarly, the court did not abuse its discretion in barring Beta from participating in oral argument regarding the judgment on the pleadings. Oral argument in a civil proceeding tried, as here, by the court without a jury is a privilege, not a right, and is accorded to the parties by the court in its discretion. Korbelik v. Staschke,
2. Judgment on the Pleadings
A. Standard of Review
Beta argues the court erred in entering judgment on the pleadings in favor of Parkway because the court incorrectly found Beta was a subcontractor rather than a contractor under the Mechanics Lien Act. Beta asserts the court, as a result, incorrectly concluded Beta did not properly perfect its mechanic’s lien and could not establish the priority of its lien over Parkway’s mortgage. Judgment on the pleadings is proper where the pleadings disclose no genuine issue of material fact and the movant is entitled to judgment as a matter of law, i.e., similar to a motion for summary judgment but limited to the pleadings. Gillen v. State Farm Mutual Automobile Insurance Co.,
In ruling on a motion for judgment on the pleadings, the court must consider only those facts apparent from the face of the pleadings, matters subject to judicial notice, and judicial admissions in the record. Gillen,
B. Preliminary Matters
Before we turn to the question of whether the court erred in granting the judgment on the pleadings, we must consider three preliminary matters: (i) Parkway’s assertion that Beta waived its objection on appeal to the motion for judgment on the pleadings because it did not preserve its arguments below; (ii) Beta’s assertion that the court could not decide the motion for judgment on the pleadings without the response; and (iii) Beta’s assertion that the court granted the judgment on the pleadings or a default judgment against Beta merely because Beta did not file a timely response.
(i) Waiver
Parkway asserts Beta waived its objection on appeal to Parkway’s motion for judgment on the pleadings by its failure to preserve its arguments below. There is no question that preservation of a question for review requires an appropriate objection below and that a failure to object constitutes a waiver of the issue on review. People v. Jones,
In Marriage of Fahy, the domestic relations court had entered a default judgment against the respondent because the respondent’s written responses to assorted motions were untimely and the court considered them as tantamount to no responses at all. The appellate court found no authority allowing a trial court to find a party in default and to enter judgment against him based on such default for the “simple failure” of a party to file a response where the party appeared before the court on the date set for hearing on the motion. Marriage of Fahy,
Rule 2.1(d) was promulgated to apply to motion practice in the law division and, therefore, it does not apply in this chancery case. We could find no similar rule relevant to the chancery division. However, as did the Fahy court, we will apply the precepts of Rule 2.1(d) in this case. To hold otherwise would mean that where, as here, a party appears at a hearing ready to object to a motion but its written objection to the motion is stricken as untimely and its verbal objection is barred, the party would be considered to have raised no objection at all, leading to entry of a default judgment against it at trial and waiver of the question on appeal. This is a drastic result, unwarranted by the circumstances given that the party, as the court here recognized, is clearly objecting to the motion. This determination is reinforced by the fact that, as the chancery court noted, although a court benefits from fully briefed motions, and sometimes from oral argument, a motion for judgment on the pleadings only requires that the court consider the motion, the underlying pleadings and exhibits attached to the pleadings.
(ii) Response Required
Beta asserts that the court could not properly decide the section 2 — 615(e) motion for judgment on the pleadings without the benefit of a response of some sort. A response to a motion for judgment on the pleadings is not necessary to a court’s disposition of the motion. The sole issue raised by a section 2 — 615(e) motion is whether the complaint or counterclaim, when read in light of the respondent’s answer, raises material questions of fact as to the existence of a cause of action. Petrik v. Monarch Printing Corp.,
The court considered Beta’s counterclaim with attached exhibit (the mechanic’s lien); Parkway’s complaint with attached exhibits, on which the court had allowed Parkway leave to stand as its answer to the counterclaim; and Parkway’s motion for judgment on the pleadings. The court had everything it needed to decide the merits of the motion for judgment on the pleadings.
(iii) Improper Default Judgment
Beta asserts that the court entered the judgment on the pleadings against Beta or a default judgment against Beta for Beta’s “simple failure” to file a response. As the court explained to Beta during the hearing on Beta’s motion to reconsider, it did not rule Beta was defaulted on the motion. Rather, it “simply ruled on the merits of the motion without [Beta’s] response” and “the failure to file a response [did not] mean [Parkway won].” The court stated it granted the motion because it was a “good” and “correct” motion, not because Beta did not file a response. It subsequently clarified that its basis for granting judgment on the pleadings was that the lien was defective and never attached to the property. The court had originally vacated the default judgment against Beta in order to allow Beta to file a counterclaim. As the court explained in response to Beta’s request for clarification, it had reinstated the default judgment in order to reflect the dismissal of the counterclaim pursuant to the judgment on the pleadings. The extensive discussion between the court and Beta’s counsel shows the court did not enter judgment on the pleadings in favor of Parkway or a default judgment against Beta merely because Beta filed no response.
C. Grant of Judgment of the Pleadings
Looking now to the question of whether the court erred in granting the motion for judgment on the pleadings on the counterclaim, we find the court properly granted the motion. Beta’s verified counterclaim asserted that, on April 11, 2006, Haso owned fee simple title to the real property underlying the condominium project; Beta entered into the electrical work contract with Haso on that date; all Beta’s work was performed with the knowledge and consent of property owner Haso, or of Samel or Albín with Haso’s knowledge; Beta substantially completed the work on April 8, 2008; it was owed $136,200 under the contract as of that date; it recorded its mechanic’s lien in that amount against 16 of the units 3 on August 5, 2008; “a mechanic’s lien attaches and exists from the date of the contract between the owner and the contractor”; Parkway recorded its mortgage against the property after April 11, 2006 (the date of Beta’s contract with Haso); a properly perfected lien based on an original contract predating recording of a mortgage has absolute priority over the mortgage; and Beta’s lien, therefore, had absolute priority over Parkway’s mortgage. Beta requested a judgment against Parkway for $136,200 plus costs and/or extinguishment of the interest of any necessary party to the extent sufficient to satisfy the amount of the lien plus costs or any other relief the court deemed appropriate. The counterclaim was verified by an affidavit signed by Beta’s president stating the statements in the claim were true and correct.
Beta attached to the counterclaim a copy of the mechanic’s lien and of the contract with Haso. The contract showed Haso executed the agreement and authorized Beta to perform the proposed electrical work. A rider to the contract identified Haso as “customer.” The lien identified Beta as the “claimant” filing its claim for mechanic’s lien against the interest in the real estate held by “1633 Farwell Ave. LLC (‘Owner’) and, Haso Meseljevic and Samel Meseljevic (collectively, ‘Contractor’) or any other person claiming an interest in the real estate by, through, or under Owner.”
The lien stated “owner,” i.e., 1633 Farwell Ave. LLC, owned fee simple title to the real estate on April 11, 2006; Beta “made a contract dated April 11, 2006, with Contractor, as agent for and on behalf of Owner,” for the provision of electrical services; “[t]he contract was entered into by Contractor, as agent for Owner”; Beta had fulfilled its obligations under the contract plus provided additional materials “requested, or otherwise knowingly permitted, by Contractor, as agent for Owner”; Beta completed the last substantial work on the property on April 8, 2008; and Beta was still owed $136,200 for its work.
The lien listed the 16 condominium units and allotted the balance due for work on each. A “legal description” attached to the lien identified the property as “Unit 1643N-B in 1633 Farwell Avenue condominium as delineated on a survey of the following described real estate” and followed with the survey description of the property. The lien was verified by an affidavit signed by Beta’s president stating he was authorized to sign the verification “to the foregoing original contractor’s claim for mechanic’s lien,” had read “the original contractor’s claim for mechanics lien” and verified the statements therein were correct.
Parkway’s motion for judgment on the pleadings filed against the counterclaim argued Beta’s counterclaim and lien showed Beta did not properly perfect its lien against Parkway and its lien, therefore, had no priority over Parkway’s mortgage. It asserted the lien was defective because (a) it was a subcontractor’s claim for lien and Beta had not provided Parkway with the 90-day notice required of subcontractors under section 24(a) of the Mechanics Lien Act (770 ILCS 60/24(a) (West 2008)); and (b) the property described in the lien’s legal description, unit 1643N-B, was not the same property to which Parkway’s mortgage attached and, moreover, was not owned by 1633 Farwell Ave. LLC when Beta filed its lien because it had already been sold to another owner. The court found Beta did not properly perfect its lien and we agree.
The purpose of the Mechanics Lien Act is to protect contractors and subcontractors who are providing labor and materials for the benefit of an owner’s property by permitting them a lien on the property. Crawford Supply Co. v. Schwartz,
To prefect a mechanic’s lien claim, section 24(a) of the Act requires a subcontractor to send or serve a notice of its lien claim within 90 days after “completion” of its work to any lending agency, “if known.” 770 ILCS 60/24(a) (West 2008); Petroline Co.,
Parkway was a “known” lender to Beta. The exhibits attached to Parkway’s complaint, which stands as its answer to Beta’s counterclaim, show Parkway is the mortgagee of the property. The filing dates in assorted exhibits show Parkway recorded its mortgage on May 11, 2006, two years before Beta completed its work on the project on April 8, 2008, or filed its lien on August 5, 2008. The counterclaim raises no issue regarding whether the mortgage was properly recorded, so we assume that it was and, thus, readily discoverable by Beta. There is no question that Beta did not provide Parkway with notice of its lien. Therefore, if Beta is a subcontractor, its failure to notify Parkway of the lien would be fatal to its lien claim against Parkway.
The Act’s definition of contractor is as follows:
“Any person who shall by any contract or contracts, express or implied, or partly expressed or implied, with the owner of a lot or tract of land, or with one whom the owner has authorized or knowingly permitted to contract, to improve the lot or tract of land or for the purpose of improving the tract of land, or to manage a structure under construction thereon, is known under this Act as a contractor and has a lien ***.” (Emphasis added.) 770 ILCS 60/1 (a) (West 2008).
The Act defines a subcontractor as follows:
“every mechanic, worker or other person who shall furnish any labor, services, material, fixtures, apparatus or machinery, forms or form work for the contractor, or shall furnish any material to be employed in the process of construction as a means for assisting in the erection of the building or improvement in what is commonly termed form or form work where concrete, cement or like material is used in whole or in part, shall be known under this Act as a subcontractor, and shall have a lien.” 770 ILCS 60/21(a) (West 2008).
The counterclaim does not identify Beta as either a contractor or subcontractor. But, even if it did, such would be a legal conclusion the court must disregard. The counterclaim does state that Beta entered into the contract with Haso as “owner” of the real estate. Arguably, therefore, by entering into a contract directly with the owner, Beta was a contractor rather than a subcontractor subject to the section 24 notice requirement. However, the contract itself does not identify Haso as the owner, only as “customer,” and there is no exhibit showing Haso was actually the owner of the property. In contrast, the lien identifies 1633 Farwell Ave. LLC as “owner” and Haso and Samel Meseljevic collectively as “contractor.” It states Beta entered into the contract with “Contractor, as agent for and on behalf of Owner,” and performed additional work as “requested, or otherwise knowingly permitted by Contractor, as agent for Owner.” On its face, the lien states that Haso was a contractor acting on behalf of the owner. This would necessarily mean Haso is (a) a contractor and (b) not the owner. If Beta entered in the contract with the “contractor” and performed work at the behest of the “contractor,” this leads to the conclusion that Beta was not itself a contractor but a subcontractor.
Beta was required to attach to its counterclaim the written instruments on which its claim was based. 735 ILCS 5/2 — 606 (West 2008); Gore v. Indiana Insurance Co.,
If there is a conflict between the allegations in the counterclaim and the written exhibits, the exhibits will control and the allegations will not be taken as true in evaluating the sufficiency of the counterclaim. Gore,
For the reasons stated above, we affirm the decision of the circuit court.
Affirmed.
CUNNINGHAM, P.J., and CONNORS, J., concur.
Notes
The Meseljevics apparently abandoned the project and went back to their homelands, Bosnia and Herzegovina.
At the hearing on the motion, Parkway’s counsel vehemently denied Beta’s version of the conversation. He told the court he had initiated the phone call, calling Beta’s counsel after the deadline expired in order to inquire about the response because he needed it to prepare his reply. When he informed Beta’s counsel the response was past due, Beta’s counsel told him it would be filed late. Parkway’s counsel asserted he never consented to the late filing. The court correctly noted that it was up to the court and not counsel to approve a late filing.
The counterclaim states the lien was filed against 15 units but a count of the listed units shows the total to be 16.