Find Legal Information

SECOND DIVISION

No. 1-99-2942

JUSTICE GORDON delivered the opinion of the court:

Plaintiff Merchants Environmental Industries, Inc. (MEI),appeals from an order of the circuit court of Cook Countygranting summary judgment in favor of defendants SLT RealtyLimited Partnership (SLT) and Iron Mike's, L.L.C. (Iron Mike's). In the order appealed from, the court granted summary judgment asto counts I and II of MEI's amended complaint for foreclosure ofa mechanic's lien in the amount of $219,317.75. Pursuantthereto, the court entered the necessary Supreme Court Rule304(a) finding to make its ruling immediately appealable. MEIargues on appeal that summary judgment was improper because therewere triable issues as to whether its notice of lien andrecording of lien were timely, and whether a waiver of lien filedin August 1997 operated to waive MEI's lien rights. For thereasons set forth below, we affirm the granting of summaryjudgment as to SLT, but reverse it as to Iron Mike's, and remandfor further consideration.

On May 13, 1998, MEI filed its amended complaint forforeclosure of mechanic's lien and other relief against SLT, IronMike's, Tom Gold Construction Company (Gold), MS Tremont, L.P.(Tremont), and several other defendants. MEI alleges that inOctober 1996 Iron Mike's leased part of the premises at 100 EastChestnut in Chicago, Illinois (also known as the Tremont Hotel),to be used as a restaurant. At that time the owner of thepremises was Tremont, but SLT subsequently became the owner(allegedly on April 8, 1997), and the Iron Mike's lease wastransferred to SLT, which then became the successor landlord.⁽¹⁾ Prior to that purchase, while Tremont was still the owner, MEIalleges that End Zone Enterprises, Inc., the manager of IronMike's, contracted with Gold to act as general contractor in theconstruction of space in the hotel premises to house Iron Mike'srestaurant. At about the same time (November 1996), MEI aversthat it entered into a subcontract with Gold to perform heating,ventilation, and air conditioning (HVAC) work in the Iron Mike'sproject for the sum of $115,000.

MEI further alleges that, at the specific request of Goldand the premises owner, it furnished additional duct work,equipment and piping for the project, and that the total amountdue for those extras was $210,323.42. According to MEI, as ofAugust 29, 1997, it had completed all work required under thesubcontract plus all extra work requested. MEI avers that it hasreceived payments of $106,005.67, leaving a balance due of$219,317.75, which MEI asserts has not been paid despite frequentrequests. Therefore, MEI claims a mechanic's lien on thepremises plus "the materials, fixtures, apparatus and machineryfurnished by it[,] and upon the moneys or other considerationsdue or to become due from the Owner to [Gold] for said amountsdue the Plaintiff."

MEI alleges that its Notice of Mechanic's Lien Claim ofSubcontractor, dated November 6, 1997, was sent within 90 daysafter its completion of all work and delivery of all materialsand thus was timely. In addition, MEI avers that itsSubcontractor's Claim for Lien, recorded December 17, 1997, wastimely filed within four months after completion of all work anddelivery of all materials.

In count I of the amended complaint, which is designated"Action to Foreclose on Mechanics' Lien," MEI seeks execution ofits mechanic's lien "for whatever sum shall be found due ***including statutory interest from August 29, 1997, and its costsherein." Alternatively, in count II, designated "Action AgainstOwner and Contractor Jointly Pursuant to 770 ILCS 60/28," MEIseeks judgment jointly and severally against SLT and Gold for$219,317.75 plus statutory interest and costs.⁽²⁾

Attachments to the amended complaint include a copy of theabove-mentioned subcontract between Gold and MEI, dated November22, 1996; a copy of MEI's Notice of Mechanics' Lien Claim ofSubcontractor, dated November 6, 1997; and a copy of MEI'sSubcontractor's Notice and Claim for Lien, recorded December 17,1997.

SLT filed a motion for summary judgment on March 16, 1999,alleging that a waiver of lien to date executed by MEI on August29, 1997, waived any of MEI's mechanic's lien rights up to andincluding that date, in exchange for a payment of $31,938. SLTalso alleged that MEI completed all of its work on the propertybefore August 17, 1997, and that its claim for lien, which wasrecorded December 17, 1997, therefore came more than four monthsafter the completion date and was untimely under section 7 of theMechanics Lien Act (Act) (770 ILCS 60/7 (West 1993)).

Attached to the motion is a copy of MEI's August 29, 1997,"Waiver of Lien to Date," which states that, in consideration ofa payment of $31,938, "the receipt whereof is herebyacknowledged," MEI

"do(es) hereby waive and release any and all lien orclaim of, or right to, lien, under the statutes of theState of Illinois, relating to mechanics' liens, withrespect to and on said above-described premises [IronMike's, 100 East Chestnut Street], and the improvementsthereon, and on the material, fixtures, apparatus ormachinery furnished, and on the moneys, funds or otherconsiderations due or to become due from the owner, onaccount of labor services, material, fixtures,apparatus or machinery, furnished to this date [August29, 1997] by the undersigned [MEI] for the above-described premises."

In addition, the "Contractor's Affidavit" attached to the waiverstates that "all waivers are true, correct and genuine anddelivered unconditionally and that there is no claim either legalor equitable to defeat the validity of said waivers." Theaffidavit also lists the total contract price (for both plumbing⁽³⁾and HVAC work) as $450,120.95, the amount already paid as$198,835, an amount ($31,938) designated as "this payment," andthe "balance due" as $219,347.95, which is the amount claimed inMEI's amended complaint.

In support of its allegation that MEI's lien claim was nottimely filed, SLT attached an index of MEI timesheets for theIron Mike's project that was included in a report by JosephManzi, described by SLT as MEI's "opinion witness." The lastweek listed in that index is the week ending May 13, 1997. SLTalso attached what it terms "the very last time sheet of any sortproduced by the Plaintiff" (emphasis in original), which is forthe week ending July 29, 1997 (not August 29, 1997). One of theentries on that timesheet shows two hours of work on July 25,1997, and SLT claims that entry is the only one bearing one ofMEI's project numbers for the Iron Mike's project. However, thatentry states the address as "200 Adams," which is not the addressof the Iron Mike's property.

In further support of its untimeliness allegation, SLTattaches an MEI invoice to Gold dated June 3, 1997, stating thatit is the "[f]inal billing" for the 100 East Chestnut project.The invoice also notes that "this bill does not reflect anychange orders that may be in process." Under the HVAC portion ofthe June 3 invoice, the amount of "Work Completed To Date" isshown as $325,335, which is slightly more than the $325,323.42total amount for subcontract work and extras asserted by MEI inits (subsequent) amended complaint. The invoice also shows ".00"after "Balance to Complete." Also attached to the summaryjudgment motion is a letter from MEI to Gold dated July 1, 1997,which refers to the June 3, 1997, bill as "our final invoice forthe work completed on the Iron Mike's Restaurant project." Theletter states that, "[d]ue to the amount of our final paymentrequest, we cannot wait beyond our 30 (thirty) day invoiceterms," adding that MEI has "no choice but to protect our lienrights."

On March 29, 1999, Iron Mike's filed its motion for summaryjudgment, raising the same waiver defenses that SLT did. IronMike's also alleged that MEI's Notice of Mechanic's Lien, datedNovember 6, 1997, was filed more than 90 days after thecompletion date and was thus untimely under section 24 of theMechanics Lien Act (770 ILCS 60/24 (West 1993)). In support ofits allegation that the lien notice was untimely, Iron Mike'sattached copies of MEI's June 3, 1997, invoice and July 1, 1997,letter, both of which were submitted with SLT's motion.

In further support of its untimeliness allegation, IronMike's submitted graphs from the previously mentioned Manzireport, one of which shows labor for the HVAC subcontract,including changes, ending no later than May 4, 1997. Another ofthe graphs shows the HVAC work ended during the week of August 3,1997. Iron Mike's notes that even if the work were completed onthat date, it would still be too early for the November 6, 1997,lien notice to have been timely. Also included in the submissionsare two MEI timesheets, one allegedly showing that the IronMike's work was finished on May 8, 1997. The other is the sameJuly 29, 1997, timesheet that was included in SLT's motion.

Finally, Iron Mike's submitted what it termed Gold's "lastcontractor's sworn statement" indicating a balance due to MEI of$31,938, which is the same amount stated in MEI's August 29,1997, "Waiver of Lien to Date." Iron Mike's also submitted acopy of its check dated October 17, 1997, payable to MEI for thatamount: $31,938.

In its responses to the summary judgment motions, MEIasserted that its last day of work on the project was August 29,1997, when it installed eight ceiling air diffusers in the firstfloor kitchen of the restaurant. MEI therefore averred that bothits November 6, 1997, notice of lien claim and its December 17,1997, recorded lien were timely filed. MEI also alleged that itsAugust 29, 1997, waiver of lien to date does not bar its lienclaim because neither SLT nor Iron Mike's relied upon that waiveras a final waiver of lien.

In support of its responses, MEI submitted an affidavit ofAl Kupsik, MEI's project manager on the Iron Mike's project. Inthat affidavit, Kupsik stated that it was MEI's standard practiceto send out a "final" bill before work was completed on aproject. "Due to its years in business, MEI is able to determinewhat it will take to complete the work on a project, and so itprepares a 'final' bill although MEI is still on the project. That is what happened on the Iron Mike's project." According toKupsik, "[i]n June, 1997, when the June 3, 1997[,] 'final' billwas sent to Tom Gold, MEI still had to install eight (8) ceilinggrills in the first floor kitchen." Kupsik said MEI had expectedto be able to install those grills around the time of the June 3"final" bill but that Iron Mike's kept rescheduling the work. Hesaid the grills were finally installed on August 29, 1997, addingthat those installations "were part of MEI's base contract work."

Kupsik also stated in the affidavit that when MEI's firstwaiver of lien to date (dated November 6, 1996) was submitted toGold, all parties were alerted that the waiver was subject to anypending change orders. He said payment to MEI of $20,160pursuant to that first waiver of lien to date "was authorized onthe basis of the November 6, 1996[,] lien waiver which clearlyindicates it does not accurately reflect MEI's full up-to-datesubcontract price." Kupsik said the same thing about MEI'ssecond waiver of lien to date for $178,675, dated December 31,1996.

Kupsik averred that prior to the August 29, 1997, waiver oflien, which was actually submitted on October 20, 1997 (andapparently backdated to August 29), there had been correspondencewith Gold and meetings between MEI, Gold and Iron Mike's"regarding MEI's claim for additional work under the HVACcontract." He said that during a meeting on September 29, 1997,"MEI advised, and Iron Mike's acknowledged, that other money wasdue and owing to MEI." Kupsik added that "[a]fter the August 29,1997[,] waiver of lien was submitted to Tom Gold, Iron Mike'sacknowledged that MEI's invoices were still in dispute."

In support of that last statement, the Kupsik affidavitincluded a copy of an undated document on Iron Mike's Grilleletterhead addressed to MEI, stating that: "Pursuant to thediscussion between Joe Priola [of Iron Mike's] and Al Kupsik, itis understood that all invoices are in dispute. The enclosed $31,938 [the amount stated in the August 29, 1997, waiver of liento date] does not release MEI from any part of the ongoingdispute." In a handwritten addition, it was noted that neither"Tom Gold Construction [n]or End Zone Enterprises" was releasedfrom the dispute as well. The document was signed by both Priolaand Kupsik. Also attached to the affidavit was a work ticketdated August 29, 1997, indicating that two men worked eight hourseach at Iron Mike's on that date installing "supply air diffusersin kitchen on 1^st floor."

Other submissions accompanying MEI's responses includedcopies of the previously mentioned November 6, 1996, and December31, 1996, waivers of lien to date, along with copies of a checkfrom Iron Mike's dated December 12, 1996, for $20,160 (the amountstated in the first waiver) made payable to MEI, and a check fromTicor Title Insurance Company (drawn on Iron Mike's account)dated January 13,1997, for $178,675 (the amount of the secondwaiver) made payable to MEI.

On June 29, 1999, the trial court granted SLT's and IronMike's motions for summary judgment as to counts I and II of theamended complaint. The court found that although the eightceiling grills were not installed until August 29, 1997, MEI had"substantially completed its contract work at IRON MIKE'S GRILL[sic]" as of June 3, 1997.⁽⁴⁾ The court found further that"[a]lthough the installation of the eight ceiling grills in thekitchen was part of plaintiff's base contract work, it involvedminor matters better characterized as 'trivial work.'" Thus thetrial court found that MEI's notice of lien, dated November 6,1997, and its lien claim, recorded December 17, 1997, wereuntimely, and MEI's mechanic's lien therefore was not enforceableagainst SLT or Iron Mike's. The instant appeal followed.

On appeal, MEI argues that there are genuine issues ofmaterial fact as to when MEI completed its work on the project,and thus contends that there are triable issues as to whether itsnotice of lien and lien claim were timely. Hence, MEI arguesthat summary judgment was improper. MEI also argues that itsAugust 29, 1997, lien waiver does not offer an alternative basisfor affirming summary judgment because there are triable issuesas to whether SLT and Iron Mike's reasonably relied upon thatlien waiver in making payment.

MEI asserts that the last date it performed work on the IronMike's project was August 29, 1997, when it installed eightceiling grills in the restaurant's first-floor kitchen. MEI alsoargues that, contrary to the trial court's ruling and thedefendants' contentions, that work was not trivial and thereforeestablished August 29 as the completion date. The defendantsquestion whether any work was done on August 29, 1997, and if so,whether it was included in the work for which MEI claims amechanic's lien. They also argue that if work was done on August29, it was trivial and therefore did not serve to extend thecompletion date.

Under section 24 of the Mechanics Lien Act (Act), asubcontractor must file a notice of lien claim within 90 daysafter "completion" of his work in order for the claim to beenforceable. This notice requirement is substantial and notmerely a limitation on the remedy. See Lundy v. BoyleIndustries, Inc., 46 Ill. App. 3d 809, 812, 361 N.E.2d 321, 323(1977) (notice to owner "has been determined to be the verysubstance upon which a mechanic's lien may be predicated"). Section 24 provides in pertinent part that:

"[s]ub-contractors, or party furnishing labor ormaterials, may at any time after making his or hercontract with the contractor, and shall within 90 daysafter the completion thereof, or, if extra oradditional work or material is delivered thereafter,within 90 days after the date of completion of suchextra or additional work or final delivery of suchextra or additional material, cause a written notice ofhis or her claim and the amount due or to become duethereunder, to be sent by registered or certified mail,with return receipt requested, and delivery limited toaddressee only, to or personally served on the owner ofrecord or his agent or architect, or the superintendenthaving charge of the building or improvement and to thelending agency, if known ***." 770 ILCS 60/24 (West1993).

Thus the notice must be sent within 90 days after completion ofthe furnishing of labor or materials. MEI's notice of mechanic'slien claim, dated November 6, 1997, was sent to Tremont, SLT,Gold, Iron Mike's, and Iron Mike's in care of End ZoneEnterprises.

Another requirement in the Act applies to actions againstthird-party purchasers such as SLT. In order for the mechanic'slien to be enforceable against such a party, either a suit mustbe filed or the lien claim itself must be recorded within fourmonths after "completion" of the work. This requirement "is acondition of liability itself and not just a limitation on theremedy." Waldbillig Woodworking, Inc. v. King Arthur's North,Ltd., 104 Ill. App. 3d 417, 420, 432 N.E.2d 1048, 1051 (1982). Section 7 of the Act provides that:

"[n]o contractor shall be allowed to enforce suchlien against or to the prejudice of any other creditoror incumbrancer or purchaser, unless within 4 monthsafter completion, or if extra or additional work isdone or material is delivered therefor within 4 monthsafter the completion of such extra or additional workor the final delivery of such extra or additionalmaterial, he or she shall either bring an action toenforce his or her lien therefor or shall file in theoffice of the recorder of the county in which thebuilding, erection or other improvement to be chargedwith the lien is situated, a claim for lien, verifiedby the affidavit of himself or herself, or his or heragent or employee, which shall consist of a briefstatement of the contract, the balance due afterallowing all credits, and a sufficiently correctdescription of the lot, lots or tracts of land toidentify the same." 770 ILCS 60/7 (West 1993).

Hence, in order for MEI's lien claim to be enforceable against athird party such as SLT, it must have been filed within fourmonths after completion of the work. MEI's lien claim wasrecorded on December 17, 1997.

If the completion date were August 29, 1997, as MEI claims,then both its notice and lien claim would be timely under theAct. In that regard, the defendants first question whether anywork was done on that date, pointing to MEI's billing records andthe previously mentioned Manzi report dealing with MEI's contractperformance on the Iron Mike's project. MEI's June 3, 1997,invoice to Gold states that it is a "[f]inal billing to providethe necessary labor, material, equipment, tools and supervisionto install all of the associated ductwork, gas piping and allH.V.A.C. work as well as perform the plumbing work." The June 3invoice lists under the HVAC portion a total of $325,335 as workcompleted to date, which is essentially the same as the$325,323.42 HVAC total claimed in MEI's amended complaint,indicating (according to Iron Mike's) that "no substantiveadditional work was done" after June 3, 1997. Further, the July1, 1997, letter from MEI to Gold describes the June 3 invoice as"our final invoice for the work completed on the Iron Mike'sRestaurant project," apparently implying that the work wascompleted as of that date. In addition, the Manzi report includesno records for work performed on August 29, 1997.

The foregoing notwithstanding, we believe that MEI has atleast raised a genuine issue of material fact as to whether theceiling-grill work was performed on August 29, 1997. Included inMEI's submissions in response to the summary judgment motions isa work ticket dated August 29, 1997, indicating that two workersspent eight hours each on that date completing installation of"air diffusers in kitchen on 1^st floor" at Iron Mike's. The airdiffusers are also described as "grilles & registers" on the workticket. In addition, Kupsik's affidavit states that it is MEI's"standard practice" to send a "final" bill before work iscompleted on a project. He asserts that such a practice wasfollowed on the Iron Mike's project, adding that in June 1997,when the June 3, 1997, "final" bill was sent to Gold, "MEI stillhad to install eight (8) ceiling grills in the first floorkitchen." He said MEI had expected to be able to install thosegrills around the time of the June 3 bill but that Iron Mike'skept rescheduling the work. According to Kupsik, the grills werefinally installed on August 29, 1997, as "part of MEI's basecontract work." Kupsik's affidavit and the August 29 work ticketsupport a reasonable inference that the ceiling-grill work wasincluded in the June 3, 1997, invoice but was not completed untilAugust 29, 1997. The trial court also found that the ceilinggrills were installed on that date. Therefore, we find that atminimum, a genuine issue of material fact exists as to whetherthe work in question was performed on August 29, 1997.

Even if the work were performed on that date, SLT arguesthat it was not included in the work for which MEI claims a lienand thus MEI's lien claim was untimely recorded under section 7of the Act as to it. "'[C]ompletion' as used in section 7 doesnot refer to completion of the contract. It means completion ofthe work for which a contractor seeks to enforce his lien." D.M.Foley Co. v. North West Federal Savings & Loan Ass'n, 122 Ill.App. 3d 411, 414, 461 N.E.2d 500, 502 (1984). According to MEI'sJune 3, 1997, invoice, the contract price of the work it hadperformed on the project to that date was $452,783 (workcompleted to date on the HVAC portion ($325,335) plus workcompleted to date on the plumbing portion ($127,448)). Thattotal is more than $2,000 higher than the $450,120.95 subcontractprice stated in the contractor's affidavit accompanying theAugust 29, 1997, lien waiver. SLT thus contends that because thetotal contract price stated in the August 29 affidavit is lessthan the total price stated in the June 3 invoice, "there can beno question that all of the work for which MEI is claiming itslien was performed no later than June 3, 1997," and the August 29installation of ceiling grills was not included in that work. Therefore, SLT argues that August 29, 1997, is not the completiondate and MEI's lien claim was untimely recorded. We disagree. As already noted, we think it reasonable to infer that theceiling-grill installations were included in the June 3, 1997,invoice. We thus find SLT's argument here unconvincing.

MEI also argues that the trial court erred when it foundthat the work done on August 29, 1997, was trivial and thus didnot extend the completion date to August 29. MEI contends thatthere is evidence the work was not trivial and thus there is atriable issue as to whether August 29 was the completion date. Wefind that argument persuasive.

Under Illinois law, "[w]ork that is trivial andinsubstantial, and not 'essential to the completion of thecontract' does not extend the time to file a lien under theMechanics Lien Act." Braun-Skiba, Ltd. v. La Salle NationalBank, 279 Ill. App. 3d 912, 919, 665 N.E.2d 485, 491 (1996). Various factors are cited by the courts in determining whetherwork is trivial. Singular among them is whether the work isneeded to complete the contract. See Capital Plumbing & HeatingSupply Co. v. Snyder, 2 Ill. App. 3d 660, 665-66, 275 N.E.2d 663,667 (1971) (finding that installation of ornamental railing andthe painting of other railings not trivial where it was done "tocomplete the work so that the bill could be submitted to thegeneral contractor"); see also De Anguera v. Arreguin, 92 Ill.App. 2d 381, 385, 234 N.E.2d 808, 810 (1968) ("question iswhether the work done by the plaintiff was trivial andinconsequential in character or was essential to the completionof the contract"); cf. Miller Bros. Industrial Sheet Metal Corp.v. LaSalle National Bank, 119 Ill. App. 2d 23, 30, 255 N.E.2d755, 759 (1969) (work that is in the nature of maintenance orcorrection of a completed job rather than work needed for "thecompletion of the contract itself" will not extend the time inwhich to file a lien claim).

Another factor in determining whether work is trivial iswhether it was done at the request of the owner. See AlexanderHendry Co. v. Mooar, 242 Ill. App. 516, 519-20 (1926) (adjustingof door and fixing of lock held to be trivial and inconsequentialwhere work was not requested by owner "as extra or additionalwork on the original contract" but instead was "new and separaterepair work"). Part of the rationale underlying this request-of-owner factor appears to be that a contractor not be allowed to dowork on his own initiative purely in order to revive a lien claimthat was lost because of failure to comply with timelinessrequirements. See Alexander Hendry, 242 Ill. App. at 520(unrequested adjustments performed several months after work wassubstantially completed are viewed as "unwarranted attempt torevive a lien"); Schaller-Hoerr Co. v. Gentile, 153 Ill. App.458, 461-62 (1910) (installation of wire window guard withoutowner's permission or knowledge is seen as attempt "to enforce alien" and is held ineffectual to revive the lien). Other factorsinclude whether the work was "substantial" (DuPage Bank & TrustCo. v. DuPage Bank & Trust Co. as Trustee, 122 Ill. App. 3d 1015,1021, 462 N.E.2d 25, 29 (1984)), and whether it was needed tomake the project suitable for its intended purpose (DuPage Bank,122 Ill. App. 3d at 1021, 462 N.E.2d at 29). As alreadyindicated, work that is in the nature of maintenance orcorrection of a completed job, or that is repair work, will notextend the time to file a mechanic's lien.

In the instant case, the work involved was not a repair or acorrection, nor can it be described as maintenance of completedwork. Kupsik states in his affidavit that the installation ofeight ceiling grills by MEI at Iron Mike's on August 29, 1997,was "part of MEI's base contract work." Kupsik also states thatthe installations had been rescheduled repeatedly by Iron Mike's,which is why they were not completed until six months after therestaurant opened in February 1997. That supports a reasonableinference that the August 29, 1997, work was done at the requestor demand of Iron Mike's. In rescheduling the work, Iron Mike'swas in effect stating that they did not want it done at apreviously scheduled time but they did want it done at the newtime.

Defendants argue that the August 29, 1997, ceiling grillinstallations should be seen as trivial because they were notnecessary to make the building operable or suitable for itsintended use. We disagree. As already indicated, whilesuitability for intended use may be one factor in determiningwhether work is trivial, it is not the only one. It exists sideby side with other factors, including whether the work wasrequested by the owner and whether it was essential to completionof the contract. That last factor is at least as important as operability or suitability, and likely more so.

In support of their suitability argument, defendants attemptto rely upon DuPage Bank, but their reliance is misplaced. InDuPage Bank, the contractor entered into a contract with aproperty owner in May 1979 to build a restaurant. Thecontractor's work appeared to be completed on June 25, 1980, buton October 30, 1980, he had a plumber move vent stacks at therequest of the owner. The original location of the stacks hadresulted in a serious ventilation problem in the restaurant. According to the contractor, he was obligated under the contract"to remedy the defect as a part of his requirement to perform ina good and workmanlike manner." DuPage Bank, 122 Ill. App. 3d at1021, 462 N.E.2d at 29. On January 7, 1981, the contractor fileda mechanic's lien claim, stating that the last day of work on thecontract was October 30, 1980, which meant the lien was filedwithin four months of the completion date and was timely. Aquestion on appeal was whether the work on October 30 was trivialand thus failed to extend the completion date, making the lienuntimely. The appellate court found that the work did extend thetime for filing the lien, noting that even though the restauranthad already opened for business, there was a problem with gasodors that made the building unsuitable for its intended useuntil the ventilation problem was corrected. Hence, suitabilityfor intended purpose was a factor in the court's decision. Inthe instant case, defendants argue that the installation ofceiling grills clearly was not necessary to make the buildingsuitable for its intended use. They note that Iron Mike's hadbeen open and operating for more than six months when the grillswere installed, and that the restaurant could have operatedindefinitely without the work being performed. Nevertheless,even if that were so, we do not believe it makes any differencehere.

DuPage Bank does not stand for the proposition thatdefendants assert. Though suitability for intended use was afactor in the court's decision, it was not the only one. Thecourt in DuPage Bank also noted that the moving of the ventstacks was substantial, was done at the request of the owner, andwas required to complete the contract. As previously noted, inthe instant case it is reasonable to infer that MEI's ceiling-grill installations were done at the request of Iron Mike's andwere required to complete the contract. Further, the work atissue in DuPage Bank, unlike the ceiling-grill installations inthe instant case, was corrective or remedial in nature, and thusunder ordinary circumstances would not have been substantialenough to extend the completion date. See Miller Bros., 119 Ill.App. 2d at 30, 255 N.E.2d at 759 (time in which to filemechanic's lien not extended by "maintenance or correction ofcompleted work" as opposed to work that completes the contractitself). The DuPage Bank court applied the suitability analysisin this context, apparently to show that though the work wascorrective, it was called for by the contract. Here, bycontrast, the August 29, 1997, ceiling-grill installations werepart of MEI's base contract work, and a suitability analysisarguably is not needed.

Defendants also rely upon De Anguera v. Arreguin, 92 Ill.App. 2d 381, 234 N.E.2d 808 (1968), for the proposition that workneeded to make something operable is not trivial orinconsequential. Their reliance here is misplaced as well. InDe Anguera, the trial court held that the plaintiff's servicingof windows that previously had been supplied to the ownereffectively extended the time for perfecting a mechanic's lien. The servicing, which took about one and one-half hours,"consisted of removing leveling blocks, installing clamps andlock handles, rubbing paraffin on the weather strip and makingother minor adjustments." De Anguera, 92 Ill. App. 2d at 383,234 N.E.2d at 809. The trial court found that without thatservicing, the windows would have been inoperable, and theappellate court affirmed. In reaching its decision, the appellatecourt referred to the trial court's finding that without theservicing, the windows would not have been operable.Nevertheless, the court in De Anguera, similar to DuPage Bank,focused upon the more encompassing context of "whether the workdone by the plaintiff was trivial and inconsequential incharacter or was essential to the completion of the contract forthe furnishing and installation of the windows." De Anguera, 92Ill. App. 2d at 385, 234 N.E.2d at 810. As already noted,according to Kupsik the ceiling-grill installations in theinstant case were part of MEI's base contract work and were thusinferentially essential to the completion of its contract. Hence, an operability analysis was not necessary.

Moreover, any argument suggesting that only operability orsuitability determines whether work is trivial is undercut by Capital Plumbing, to which we have previously referred. InCapital Plumbing, the plaintiff had subcontracted to provide"certain ornamental metal work and air-conditioner stands" for anapartment building that was being constructed. The work wasallegedly completed on January 3, 1966, when the plaintiffinstalled "a five foot ornamental railing" and did some paintingon other railings that had been previously installed. He servednotice of a mechanic's lien on March 4, 1966. On appeal, theappellees argued that the notice of lien was not timely served,contending that the work performed on January 3, 1966, wastrivial and thus did not extend the period for service of notice. The appellate court held that the notice was timely, implicitlyfinding that the installation of an "ornamental" railing was nottrivial. Because the railing in Capital Plumbing was ornamental,it clearly was not needed to make anything in the projectoperable. Still, it was found not to be trivial.

For the foregoing reasons, we find that MEI has at minimumraised a genuine issue of material fact as to whether itsinstallation of eight ceiling grills on August 29, 1997, wassubstantial enough to warrant extension of the completion date toAugust 29. If August 29, 1997, were the completion date for thecontract, then MEI's notice of lien and lien claim would betimely. Hence, there is a triable issue as to whether those lienfilings were timely, and summary judgment on that basis wasimproper.

MEI also argues that its August 29, 1997, lien waiver doesnot offer an alternative basis for affirming the trial court'sgranting of summary judgment. MEI contends that there aretriable issues as to whether SLT and Iron Mike's reasonablyrelied upon that lien waiver as a final release of MEI's lienclaims. If there was no such reliance, MEI argues, then the lienwaiver did not function as a final release. Defendants argueinitially that because the August 29, 1997, lien waiver is clearand unambiguous, extrinsic evidence as to reliance cannot beconsidered. We disagree.

"Generally, where the terms of a waiver of lien are clearand unambiguous, extrinsic evidence which varies from orcontradicts such terms cannot be considered in order to determinethe intent of the parties ***." Premier Electrical ConstructionCo. v. LaSalle National Bank, 132 Ill. App. 3d 485, 492, 477N.E.2d 1249, 1255 (1984). However, that parol evidence ruleapplies "only when the party against whose property a lien issought has relied upon the waiver of lien in innocence and goodfaith." Premier, 132 Ill. App. 3d at 492, 477 N.E.2d at 1255;see also Fisher v. Harris Bank & Trust Co., 154 Ill. App. 3d 79,87, 506 N.E.2d 418, 423 (1987) ("[W]hile a clear unambiguouswaiver of mechanic's lien rights bars an action under theMechanic's Lien Act, this rule is only applicable where aninnocent party has relied upon that waiver in making payments tothe general contractor"). Further, "[w]hether there has beensuch innocent, good faith reliance is a question of fact." Premier, 132 Ill. App. 3d at 492, 477 N.E.2d at 1255. In theinstant case, MEI's August 29, 1997, waiver of lien is plainlyunambiguous. It states that MEI waives and releases any and allmechanic's lien rights against the subject premises as to paymentfor labor services, material, fixtures, apparatus or machineryfurnished by MEI up to August 29, 1997. While MEI does not arguethat the lien waiver here was ambiguous, nevertheless, at leastfor purposes of summary judgment, we believe that extrinsicevidence as to reliance can be considered here.

The question of whether there has been innocent reliance inthis instance depends upon whether there was a good faith beliefthat the August 29, 1997, lien waiver represented a full releaseof MEI's lien rights for all work up to that date. MEI contendsthere was no such belief and that the parties never interpretedMEI's waivers of lien (to date) in that manner; instead, thewaivers were viewed as applying only to the work being paid forat the time they were submitted. Hence, the question becomeswhether custom or usage would be helpful in determining how thewaivers of lien to date were viewed by the parties. If so, itshould be considered, and we think that it should. "Proof ofcustom or usage is intended as an aid to the interpretation ofthe intent of the parties at the time the contract was made." Chicago Bridge & Iron Co. v. Reliance Insurance Co., 46 Ill. 2d522, 531, 264 N.E.2d 134, 139 (1970). "If a usage exists in aparticular trade of which both parties either had notice orshould have had notice, it is only just and proper that theircontract should be interpreted in view of the trade practice." Chicago Bridge, 46 Ill. 2d at 531-32, 264 N.E.2d at 139 (citingKunglig Jarnvagsstyrelsen v. Dexter & Carpenter, Inc., 299 F. 991(S.D.N.Y. 1924) (Learned Hand, J.)). Further, according to theRestatement (Second) of Contracts, "[t]here is no requirementthat an agreement be ambiguous before evidence of a usage oftrade [or course of dealing] can be shown, nor is it requiredthat the usage of trade [or course of dealing] be consistent withthe meaning the agreement would have apart from the usage [orcourse of dealing]." Restatement (Second) of Contracts