*1 cent to the Olechs order to negligent be held liable under trespass of waters.

Furthermore, since Allen the party moving for summary judgment, he had establishing of burden there were no issues of material fact and was entitled to judgment that he as a matter (Becovic v. Savings Harris Trust & Bank (1984), 128 Ill. law. 3d App. 107, 119.) However, of material fact exist questions as to whether Allen drains and diverts a concentrated flow of water onto the Olechs’ land, flow, altering natural increasing and unreasonably the vol ume and rate flow of Therefore, water onto Olechs’ property. summary judgment against the Olechs is not appropriate merely be cause their property adjacent is not to Allen’s land. orders,

Accordingly, and summary dismissal judgment, the circuit court of Du Page County reversed, are cause is re- manded for further proceedings opinion. consistent

Reversed and remanded. GEIGER, JJ.,

WOODWARD concur. READY-MIX, INC., EARL Plaintiff-Appellee, CONTRACTORS’ v. GIVEN COMPANY, INC., al., Defendants-Appellants. CONSTRUCTION et Fourth District No. 4—92—0282 18, 1993. Opinion February filed on denial Modified 14, 1993. rehearing April *2 COOK,J., specially concurring.

The Leiter Group, (William Connor, of Peoria counsel), C. of for appel- lant Earl Given Construction Company, Inc. Gwillim,

Brent H. Heyl, Royster, Allen, of (Karen Voelker & Peoria of Kendall, counsel), L. appellant of First Midwest Bank.

Mohan, Alewelt, Adami, Prillaman & Springfield (Cheryl Stickel Neal, counsel), appellee.

JUSTICE GREEN delivered the opinion of the court: 1, 1991, On April plaintiff Ready-Mix, Contractors’ Inc. (Ready- Mix), filed suit in the circuit court of Logan against County Earl Given Construction Inc. Company, (Given), First Midwest Bank/West- Illinois, em N.A./Lincoln, as trustee of a certain land trust (owner), Guardian Life Insurance Company (INA), America and unknown owners and nonrecord claimants. Count I against all defendants seeking foreclosure of a mechanic’s lien for materials furnished by Given, project on a to erect a Wal- Mart store on premises owner at Lincoln. INA alleged be a mortgagee those II premises. Count was solely against Given and sought a money judgment against for the Given amount unpaid for the furnishing those materials. *3 Given,

Ready-Mix, supplier materials to filed a motion for summary judgment as to The both counts. owner moved for summary judgment 1992, 15, as count I. On March the circuit court denied the owner’s amended motion for and summary judgment entered a joint and several in summary judgment favor of against both defendants as to count I providing upon for foreclosure and sale premises to satisfy against a mechanic’s lien in premises $108,450.59, the sum of which included fees and attorney court costs. Section 28 of the Act requires that when a subcontractor or supplier lien, materials sues to foreclose a mechanic’s both the owner and general contractor must made and parties be are jointly severally 1989, 82, liable. 111.Rev. Stat. ch. 28. par. judgment

This did not rule count The made a upon II. court find- ing that no reason existed to or just delay appeal enforcement of the I. 2d judgment upon (134 304(a).) count 111. R. owner and Given have in appealed. judgment We reverse the favor summary Ready- Mix and remand for further proceedings.

A of the Act is summary provisions necessary brief various to an understanding (111. of the facts. Section 21 Act Rev. Stat. 1989, 82, ch. par. 21) provides suppli- a for subcontractors and ers of material for the unpaid they amount value furnished to the That also that an premises. states owner shall not “be for or on account of the com- compelled pay greater sum *** pletion of improvement than the unless price], pay- [an] [contract *** ment made to the rights be contractor violation of the and in- terests of the intended to be persons (HI. benefited this Rev. [A]ct” 1989, 82, Stat. ch. Section 32 of the Act par. 21). similarly states:

“No the contractor or to his order of any money or other considerations due or to due to the become contractor made, shall regarded against be as as rightfully sub-con- tractor, laborer, materials, or or if party furnishing labor made exercising owner without and enforcing powers 5, conferred him in sections 22 of act.” (111. 1989, 82, Rev. Stat. par. 32.) ch.

Section 27 of the provides Act that when an “owner or his agent is notified provided Act], as he retain” shall from money [the paid the enough to pay subcontractor, or supplier worker to whom money 82, due. 111.Rev. Stat. ch.

Section 5 of the Act provides that before an pay- owner makes contractor, ments to a the owner shall require give the contractor to the owner an affidavit setting forth “the names and addresses of all parties furnishing labor, materials and and of the due amounts or to becomedue each.” (Emphasis (111. added.) Rev. Stat. ch. [to] par. 5.) Section 24 subcontractors, of the Act states that including those furnishing materials, at time after “may any making his her contractor, with the and shall within 90 after the com- days *** pletion thereof cause a written notice of his or her claim and the amount due or to thereunder, become due to be sent” in certain ways to the owner or its contractor. (Emphasis added.) (HI. Rev. Stat. par. 24.) We will discuss section 22 of the (111. 1989, ch. par. 22) later.

The owner does not dispute sufficiency of the record to sup- port a summary judgment long as that judgment is in the sum of plus amount for attorney reasonable costs and $127.25 fees. The owner maintains it with all the pertinent statutory provisions which would it of liability except arising absolve a section 5 affidavit of Given in regard amounts due to Ready-Mix *4 which indicates was due or would become due Ready-Mix $127.25 to complete the contract. position is twofold. It Ready-Mix’s first maintains that the owner did not take sufficient statutorily required steps its prevent being required to sums over and above contract price in the amount awarded by the trial Second, court. Ready-Mix asserts that if both parties met in full the requirements of the Act in protect order to themselves, the intent of the Act and the equities are with it. The circuit court’s decision was based on the lat- ter contention of Ready-Mix. objects Given only to the amount of fees awarded Ready-Mix.

Summary judgment is permissible only when “the pleadings, depositions, file, and admissions on together with the affidavits, if any, show” all material elements of fact are conclusively shown to ex- ist in favor of the party seeking summary judgment. (111.Rev. Stat. 1005(c).) facts shown of record arise mostly 2— from uncontested affidavits. The significant events begin with a con- tract being entered into between the owner and Given sometime prior 30, 1990, to June for erection of the Wal-Mart store on the owner’s premises. Given then entered into an oral contract with Ready-Mix to provide concrete for materials the project as required by Given. Given agreed to pay Ready-Mix reasonable price, finance charges of 2% per month on all balances remaining unpaid more than 30 days, and attorney fees or costs of collection on the account. Ready-Mix re- ceived two $62,888.12 Given of $83,465.75, re- spectively, materials delivered through September 14,1990. did not $77,102.77 receive payment of for materials 14, 1990, delivered September through 27, 1990, October its last date of performance. Ready-Mix submitted statements to monthly Given indicating unpaid amount plus finance charges. On October 1990, Given served the owner with a document purporting to be a waiver of $280,800 Given’s lien for worth of work which Given had completed to that date. The lower portion document was an af- fidavit on Given, behalf of listing the sum of as the amount $127.25 due The affidavit Ready-Mix. stated “the items mentioned include all labor and material required to said complete work according plans and specifications” (emphasis added). This met require- affidavit ments of 5 of the Act.

Given’s section 5 affidavit also stated that the then on balance its contract with $308,800. the owner was 2, 1990, On November $280,800, owner paid $28,000 Given leaving remaining on the total contract price. 22, 1990, On November the subject property ap- sold, parently and the purchaser $60,290 apparently paid Given November 1990. An affidavit attached to the mo- owner’s revised tion for summary judgment $60,290 indicates that the payment was intended $28,000 to include the original due on the contract for con- 25, 1991, struction. On January which was 90 days Ready-Mix’s after

453 site, to Ready-Mix last of materials the construction mailed delivery to 24 required by its notice of mechanic’s lien the owner as section of the Act.

The does not the record dispute owner that shows has Ready-Mix to lien in everything required perfect done a mechanic’s substantially the amount if the not with the various complied awarded owner has statutory provisions necessary having to it from to protect money maintains, however, the The price. over above owner it has all of it complied that with those that should except provisions the in for that paid withheld amount Given order $127.25 to sum be available to this con- pay Ready-Mix. Ready-Mix disputes so, tention and also maintains that even if that is the of the interests parties should be in a that the way support balanced would trial court’s our begin examining decision. We com- analysis by owner’s pliance provisions. various statutory with, We consider first owner’s 5 compliance section of the Act. points out that the lien form Ready-Mix waiver on the same as was by affidavit headed the words LIEN “WAIVER OF TO DATE” in large designation letters while the of the section 5 affidavit as “CONTRACTOR’S AFFIDAVIT” was somewhat smaller letters. Ready-Mix contends the owner should have understood that affi refer, davit was intended to to regard Ready-Mix, to only amount up owed to that date. also out that it fur points nished over 57 cubic of to yards days concrete two after project Given executed the section 5 affidavit. do not that agree We owner was required any assumptions make contrary which were wording wording affidavit because of the of the lien waiver. The record does indicate that furnishing the owner of knew the additional concrete it payment days when made to Given a few later.

The portion of document, the October was de- waiver, scribed as a acknowledged to Given of payment by $280,800 which, sum of record, according undisputed left $28,000 the sum of remaining the contract The price paid. $280,800 record that the actually shows was made on No- payment jinal $28,000 vember payment 1990. made the owner by was to Given on no that November 1990. makes contention the owner required to obtain an additional section 5 affidavit be- $28,000 fore making Where, payment. prior section affidavit of the had stated that “the items mentioned [in that include all labor said complete and material required affidavit] work," no further section required justify payment affidavit owner to the (Emphasis contractor. added.) See Berkshire

Warehouse v. Hilger (1915), 463, 469, Co. & Co. 268 Ill. 109 N.E. 289; Sanaghan v. (1967), Lawndale National Bank 90 Ill. App. 2d 254, 259, 232 N.E .2d that, except

We hold for the owner’s failure to withhold $127.25 from the sum which it on paid 2, 1990, Given November with the requirements section of the Act when the owner obtained section 5 on 25, 1990, Given’s affidavit October $280,800 2,1990. then Given paid November no Ready-Mix makes contention that section 21 is, of the Act itself, dispositive its claim. It out that points does owners to payment contractors made in state viola- tion of section 5 or 24 of the Act are wrongfully Suggestion made. has been made that one of the powers which the owner had under *6 Act, sections 5 21 which section of 32 required Given, the owner to exercise making payment before to was to re- done, from If quire lien waivers this Ready-Mix. Ready-Mix likely would have the owner to hold required back sufficient money protect However, to its claim before executing waiver. the only reference in section 21 of the Act to lien waivers concerns the use of lien in regard waivers to to the improvement res- owner-occupied idence in aby single family. lived does contend that section 22 of

Ready-Mix directly the Act sup- It ports position. its relies of 22 which upon portion section states as follows:

“When the contractor a specific shall sub-let his contract or sub-contractor, thereof portion furnishing to a ma- party terial or performing to labor such sub-contractor shall therefor; have a lien enforce his lien in the same may provided manner as is herein for the enforcement of liens by shall, sub-contractors. as re- Any sub-contractor often quested owner, contractor, or writing by agent or the either, owner, out and to give make such contractor a statement of the material and agent, persons furnishing labor, much, if giving their names and how is due anything, them, or to each of shall become due to and which statement added.) if 111. (Emphasis be made under oath Rev. required.” 82, ch. 22. par. Stat. out that section 32 of the Act owners

Ready-Mix points requires 22 making to exercise their under section to payments before to payments properly. Ready-Mix contractors order make those that the from section au- previously provision maintains recited it a statement give to require Ready-Mix to the owner thorized does not contention This Given. Ready-Mix by amount owed concerns That section of section language properly interpret to subcontractors. and materials furnishing labor liens of those contrac- general for the materials Here, furnishing Ready-Mix to make owners permits tor, The which section request Given. concerns of material contractors, suppliers subcontractors and sub-sub- suppliers entities to their owed those the amount to general amount owed and not the contractors furnishing those give 22 is to section purpose those entities. that sub- protection the same to subcontractors labor and materials to the directly materials furnishing contractors and those 5 of the Act. under section contractor have of the Act

The other section specific indicated, that one it states 24. As relies is section we directly at time after “may any or materials to a contractor furnishing labor contractor, days and shall within making [a] notice, in a manner described give thereof” completion after the or to due there- due become therein, to the owner as amount added.) (111.Rev. Stat. it is due. (Emphasis under and whom then an owner requires Section 27 of the Act par. 24.) due or to be- any money such a notice “retain receiving the amounts sufficient come due the contractor” amounts 1989, ch. (111. or materials. furnishing due those labor by giving 27.) seemingly asserts 90-day last part at the January notice previous notice rendered the owner’s period, 2,1990, wrongful. Given on November given section 24 notice of the effect of a theory

Ready-Mix’s is not period supported by end of the 90-day time any before *7 the court Sanaghan, where was any precedent rejected stated: until the not be obtained in the could security payment

“If then-existing statutory 60-day period of the expiration [the such con financing difficult it to see how the provision], is the con knowledge that could had. It is common struction credit, this under was operates struction industry the Mechanics’ and enacted by prepared stood those who 262, 232 N.E.2d at 2d at App. Lien 90 Ill. (Sanaghan, Act.” 551.) interpretation and its agree logic Sanaghan

We with the Construc upon 24. relies McCann operation of section 456

tion Specialties Co. v. Alan Construction Co. 12 (1973), Ill. 3d App. 206, 298 N.E.2d 222. Some there seem language would friendly that a material theory supplier preserve can subcontractor a statement, a by timely section though even owner has made payment to the prior contractor based faulty section However, affidavit. in McCann the lien was to the ex sought only tent of sums were being by retained the owner. Sanaghan of section 24 of interpretation the Act is consist-

ent with provisions of 27 of sections the Act. Section lists as a an payment circumstance where owner’s to the contractor is wrongful, the situation where a section 24 is given notice show- ing sums due and “thereafter” subcontracting work is done or ma- terial furnished for set in the sums forth notice and is payment made to the contractor. 27 of the Act an requires Section owner retain money due a contractor to extent she is he or “notified provided (Emphasis added.) 111. [the Act].” Ready-Mix’s hold that

We notice the owners did not wrongful render made by to Given prior to the receipt owner’s of that notice. Ready-Mix maintains the owner had actual notice of amounts owed Given Ready-Mix well before the section 24 notice given. This arises from an affidavit concerning furnished information Jeff Eirenberg, furnished to an purportedly agent owner. However, nothing in the Eirenberg affidavit indicates was contacted until January which was more than a month after the own er’s last on the payment price. rendering

In its decision circuit court stated:

“Under the set of special circumstances presented Court is drawn to conclusion that Plaintiff’s claim for judgment more Did the use meritorious. owner ‘reasonable precautions’? Did the notice ‘from In any owner have source’? favor should the lie? hardships whose balance This Court precautions. does believe owner used reasonable [the] from owner knew that Plaintiff prior payments [The] That seem to major argu- sub-contractor. would obviate ment that Plaintiff could served some sort of written notice at after the Plaintiff became involved in the anytime project. This Court believes notice as well had [the] [o]wner an unpaid listed on the 10—25—90 Section 5 Af- balance that, This project fidavit. Court is on a of this opinion size, it prudent would have been exercise [the] *8 lien from this request under to a waiver its Section knowledge of its existence subcontractor; notice and major Therefore, to the under imputed can owner. certainly be ‘right- not alleged final payment Plaintiff’s theory, Further, vari- reading to Section 32. fully pursuant made’ involved circumstances applied unique ous sections as conflicting statements here, considering policy re[:] subs, is owners, hardships contractors the balance Again, in favor of the Plaintiff. this Court here be- tipped circumstances, that it was lieves, under these unreasonable on the Section 5 Af- rely solely owner to 10—25—90 [the] fidavit.” analysis do not agree

We with the of the circuit court’s portion which indicates that section 22 of the Act authorizes an owner indicated, lien con- require a waiver from As we have we any party. clude that authorize an owner to a require does even statement from a material of the amount owed it supplier Nevertheless, we a recognize practice contractor. well-established owners and contractors often demand lien whereby prudent waivers their support payments persons any entitled to them. In event, we deem the court’s analysis very attempt conscientious fair to the parties by balancing equities. some sort of us to this determination. Ready-Mix urges uphold In maintaining properly that the circuit court balanced upon interests of the relies lan parties guage Savings Connelly in First Federal Loan Association v. & 242, case, In (1983), supreme Ill. 2d 454 N.E.2d 314. that buildings court upheld against mortgagee apartment four mechanic’s lien claim of one had all four carpentry who furnished the lien apartment buildings. presented issue was whether the Act (see claimant’s claim met the of section 7 of requirements 82, claim was filed for 7) single Rev. Stat. ch. when a In that holding requirement separate four that a properties. unreasonable, claims filed the court stated: should have been statutory prereq- “Once the contractor has uisites, however, the liberally Mechanics’ Liens should be (111. construed in order to out its remedial carry purpose. recognized par. 39.) This court has premises that the purpose permit of the Act ‘is where a benefit has received the owner and where been increased or property value or condition has been furnishing reason of the of labor and materials.’ improved by Colp Baptist v. First (1930), Church 341 Ill. 76-77[, 173 N.E. Connelly, 97 Ill. 2d at 454 N.E.2d at.316. 68].” maintains had actual notice Given’s substituted debt material for the premises furnished when the owner made final to Given. have We determined the rec ord does not establish this. The circuit court out correctly pointed could been more prudent making its pay *9 ments but we Here, do not deem that significant. unlike in Connelly Colp and v. First Church Baptist (1930), 341 Ill. 173 N.E. the issue is to determine the rights an a between owner and sup contractor, to the plier both of whom have with statutory requirements. provides Section 21 an owner shall not re be quired more the than when it price does make wrongful payments to the No similar contractor. of the provision says Act that the subcontractor or who the Act supplier follows is Rather, a necessarily entitled to lien. section 21 of the states rights that the subcontractor supplier and are subject provisions section 5 Act.

Accordingly, we hold that despite general language in Connelly and, doubt, in Colp cases, and no other where both an owner and a subcontractor or to the general contractor both supplier fol- lowed is statutory requirements, protected owner a lien against for amounts unpaid contractor to the or sup- subcontractor Where, here, plier. wrongful owner has made some pay- ments, subcontractor is to a lien supplier entitled mechanic’s to the extent payments. Here, wrongfully paid of those owner sum out the and is entitled to a mechanic’s Ready-Mix $127.25 only to that extent. but most of its the lien argument upholding

Given directs However, it awarded asks reversal of the Ready-Mix. judgment of the amount of It contends a attorney extent fees awarded. of a portion Ready-Mix’s sep fees were awarded for defense case rights arate between it and Given. Whatever are for in to other attorney regard fees between itself and Given deem litigation, no matter how related to that we do not this fee to be one which to a claim properly against can added for complains hearsay owner a lien. Given also mechanic’s about of an fee. As the re support nature affidavit in of its case must be for further we need not decide proceedings, question. manded summary reverse the in favor of Accordingly, judgment we reduce Ready-Mix and further could proceedings. remand We with fees and together attorney to the sum judgment $127.25 correctly and sale but then order foreclosure costs and ruling would be unfair to it. Such a that this would be points out owner, which summary judgment same as a nearly the circuit court. refused by remanded.

Reversed and

STEIGMANN, P.J., concurs. COOK, concurring: specially

JUSTICE in part, reverse part, I the decision to affirm agree with in the instructions, is said basically agree what remand with majority opinion. owners, duties of subcon- rights to balance attempts

The Act are projects parties and others. On some (materialmen), tractors Act; projects their under the on other careful to exercise fully are not seeks fair result in each case. Losses are not. The Act they owners, on subcontrac- they always placed nor are always placed Act to pro- an take under the steps may tors. There are itself, every protec- tect owner is not to avail itself of required but an The Act tion the The same true for subcontractors. Act affords. minimal neither level of those cases where provides protection *10 discretionary advantage the owner nor the takes subcontractor protections available. delivery final

On the last 90 after it made its day possible, days mechanic’s lien case, mailed its notice of Ready-Mix materials in this may lien. A owner, to the then recorded its claim of subcontractor itself (and thereby protect of its claim give the written notice owner time after the subcontractor against subsequent disbursements) any contractor, than no later general enters the but into its contract with (DI. Rev. of the contract. days completion after the subcontractor’s timely is 82, notice 1989, 24.) Stat. ch. Once the subcontractor’s due due or to become given, any money the must retain “from owner Pay- the pay the an amount sufficient to subcontractor. contractor” pay to money sufficient retaining ments made after the notice without 82, 1989, par. 27.) ch. are Rev. Stat. illegal. (111. the subcontractor owner, it is notice to the Still, gives if the never even subcontractor general the require to making any payments, the before duty, owner’s listing the subcontractors a written statement provide contractor to 1989, ch. (111. each. due or to become due and amounts that the subcontractors must then ensure 5, 21.) The owner pars. shown; against is protected the owner are the amounts paid listed subcontractors not listed or amounts understated those unless omis- sions with knowledge are or collusion the owner. 111.Rev. Stat. 82, par. ch. prevented could have any loss here by giving subcon- notice tractor’s to owner before making any deliveries. Ready-Mix required give notice, however, not to that and could claim its still rights under sections 5 on general and relying disclose the amounts due The it. owner could have perhaps prevented loss by demanding waivers, final lien but had no affirmative duty do so. In the prior subcontractor, absence of notice by owner’s only was the duty duty imposed by sections 5 and 21: to require contractor, written statement by and to ensure the amounts listed were The paid. owner with that ex- duty except tent Both the owner and Ready-Mix could have done $127.25. more, it Ready-Mix relief, but is is seeking which asking is that provides owner twice. The Act no justification for shifting loss from owner this case.

The could argument be made that section 32 of the Act requires an owner to insist on lien always waivers. That section provides no payments shall be made regarded rightfully “if made by owner exercising enforcing without and the rights powers and con- ferred him in sections act.” Rev. (111. Stat. 82, par. 32.) The is that problem argument with that sec- tions 5 21 simply waivers, mention lien connection apparently in with on existing work an owner-occupied (not residence single-family and do here), give any particular situation not or right power waivers, use them. Act does define lien or explain their effect. The term “final lien waiver” is not used in the Act. An might problems making by avoid contractor and checks, joint payees subcontractors on the owner’s or us- payment ing type escrow, rights some are not powers again but those “conferred” the Act. If section were on read owners impose made, a duty to time a require every waivers payment would longer no balance duties between owners and sub- contractors, all place but would who failed burdens owners to ob- tain lien notices, waivers. Section dealing subcontractors’ would meaningless become subcontractor would be irre- protected —a *11 spective it sent of whether its notice before the owner made payment. Compliance with no provide protec- sections 5 and would likewise tion for the owner.