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FOURTH DIVISION
May 12, 2005

No. 1-04-1480

JUSTICE QUINN delivered the opinion of the court:

Plaintiff Tefco Construction Company, Inc. (TefcoConstruction), appeals from an order of the circuit court of CookCounty granting summary judgment in favor of defendants RandhurstCrossing, LLC; Wachovia Bank; National Association; and BostonMarket Corporation.  On appeal, plaintiff contends that thecircuit court erred in granting summary judgment where the courtignored the purpose of the Mechanics Lien Act (Act) (770 ILCS60/1 et seq.) (West 2002)) and relied solely on the fact thatplaintiff's claim for lien against defendants was not verified asrequired by the Act.  770 ILCS 60/7 (West 2002).  For thefollowing reasons, we affirm the decision of the circuit courtgranting summary judgment in favor of defendants. 

I. Background

Tefco Construction, an Illinois corporation, is in thebusiness of furnishing labor, materials and services for generalcontracting work. On August 20, 2001, Tefco Construction enteredinto a contract with defendant Randhurst Currency Exchange, Inc., (Randhurst); to construct a currency exchange in a shoppingcenter located in Mount Prospect, Illinois.  The shopping centerwas owned by defendant Kap-Sum Properties (Kap-Sum) and waslocated at 1 West Rand Road in Mount Prospect, Illinois. 

Per its agreement with Randhurst, Tefco Construction was tofurnish labor, materials and services to construct the currencyexchange for the sum of $144,000.  Specifically, TefcoConstruction was to provide labor and materials for generalcontracting work, which included the building of a new currencyexchange, the erection of a bullet-proof safety cage, plumbingwork, electrical work, and the installation of custom millwork,an alarm system, a sprinkler system, and the heating and air-conditioning system.  Upon completion of the construction, thetotal contract price, accounting for credits to the contract andadditional work performed by Tefco Construction, was $143,107.46.Randhurst submitted payment in the amount of $62,831 against thisamount. 

On February 14, 2002, Tefco Construction filed a claim for amechanic's lien on the said improved property for the unpaidbalance of $80,276.46.  The claim for lien was completed on apreprinted legal form and contained a legal description of theproperty, commonly known address of the property, a briefstatement of the contract, and the balance due after allowing allcredits. The lien was signed by the president of TefcoConstruction, Thomas Flanagan, and no other signatures werepresent on the document.

On July 1, 2002, Tefco Construction filed a complaint toforeclose on the mechanic's lien.  Counts I and III addressedproperties not at issue in this appeal.  Count II of thecomplaint alleged that Tefco Construction entered into a contractwith Randhurst to construct a new currency exchange and completedthe necessary construction on October 19, 2001.  The complaintfurther alleged that Randhurst, through its agents GarapoloMaynard Architects, Inc., Ronald Kaine, and Debbie King, enteredchange orders which both cancelled certain work from the contractand required Tefco Construction to provide additional work on theproject.  Tefco Construction alleged that the total cost forconstruction was $140,351 plus a sum of $2,756 for the cost ofthe additional work and materials Tefco Construction providedunder the change orders.  The complaint also alleged that thedefendant paid $62,831 and claimed a mechanic's lien on thepremises to the extent of the unpaid balance of $80,276.

On November 4, 2002, the property was conveyed to defendantRandhurst Crossing, LLC (Randhurst Crossing).  On December 6,2002, Tefco Construction filed its amended complaint to forecloseits claim for mechanic's lien and other relief.  TefcoConstruction added defendants Randhurst Crossing, Wachovia BankNational Association (Wachovia Bank), Kap-Sum and Boston MarketCorporation (Boston Market) to its claim for lien as a result ofsaid defendants' alleged interest in the premises as liencreditors, tenants, judgment creditors, encumbrances, trusteesand purchasers.

Flanagan, in his capacity as president of TefcoConstruction, filed an affidavit for prove up for judgmentagainst Randhurst Currency Exchange, Inc., as to count II of theamended complaint on January 2, 2004.  On January 12, 2004,judgment was entered against Randhurst in favor of TefcoConstruction for the amount of $80,276.

On March 2, 2004, defendants Randhurst Crossing, BostonMarket, and Wachovia Bank filed a motion for summary judgment.The defendants moved for summary judgment on the grounds thatthere was a material defect on the face of Tefco Construction'sclaim for mechanic's lien that rendered the lien unenforceable. The motion specifically alleged that Tefco Construction's claimfor lien was unenforceable because it was not verified by theaffidavit of the claimant, or his or her agent or employee, asrequired under section 7 of the Act (770 ILCS 60/7 (West 2002)). 

In its response to the motion for summary judgment, TefcoConstruction argued that "the purpose of the Act is to protecttrade contractors and materialmen who in good faith furnishvaluable labor and material, and no third party was prejudiced bythe error."  Tefco Construction also claimed that grantingsummary judgment "cut[s] against the remedial purpose of theMechanics Lien Act" and is "inherently inconsistent with thegoals of [sic] Section 39 of the Act," which provides that theAct shall be "liberally construed as a remedial act."  770 ILCS60/39 (West 2002).  

The circuit court granted the defendants' motion for summaryjudgment on April 19, 2004.  Tefco Construction now appeals. 

II. Analysis

On appeal, Tefco Construction contends that the circuitcourt erred in granting summary judgment in favor of defendants. Tefco Construction specifically argues that a claim formechanic's lien, signed by an agent or employee of the lienclaimant but not verified, is enforceable where there is noprejudice to any third parties and because a holding to thecontrary would defeat the purpose of the Act and result in awindfall to defendants.

A motion for summary judgment should be granted when thereis no genuine issue of material fact and the moving party isentitled to judgment as a matter of law.  735 ILCS 5/2-1005©)(West 2002); Dardeen v. Kuehling, 213 Ill. 2d 329, 335 (2004). The nonmoving party will survive a motion for summary judgment ifthe party presents "a factual basis that would arguably entitle him to a judgment."Carollo v. Al Warren Oil Co., 335 Ill. App.3d 172, 179 (2004), citing Allegro Services, Ltd. v. MetropolitanPier & Exposition Authority, 172 Ill. 2d 243, 256 (1996).

The use of summary judgment is encouraged as an aid in theexpeditious disposition of a lawsuit; however, it is a drasticmeasure and should only be allowed when the right of the movingparty is clear and free from doubt.  American States InsuranceCo. v. Hamer, 352 Ill. App. 3d 521, 525 (2004); Purtill v. Hess,111 Ill. 2d 229, 240 (1986).  In determining whether the movingparty is entitled to summary judgment, the court must strictlyconstrue the pleadings, depositions, admissions and affidavitsagainst the movant and liberally in favor of the nonmovingparty.  Hamer, 352 Ill. App. 3d at 525.  This court reviews thecircuit court's decision to grant summary judgment de novo. Hamer, 352 Ill. App. 3d at 525.

As this court has previously recognized, Illinois has alimited amount of case law discussing issues concerning theMechanics Lien Act, especially focusing on the technicalrequirements of the Act.  See Aluma Systems, Inc. v. FrederickQuinn Corp., 206 Ill. App. 3d 828, 838 (1990).  Mechanic's lienswere not recognized by common law or in equity but were createdby statute.  First Federal Savings & Loan Ass'n of Chicago v.Connelly, 97 Ill. 2d 242, 246 (1983).  The statute furtherprovides for the method of their enforcement, and as such, thestatute must be strictly construed with reference to thoserequirements upon which the right depends.  Connelly, 97 Ill. 2dat 246. 

A mechanic's lien is valid only if each of the statutoryrequirements is strictly observed (Connelly, 97 Ill. 2d at 246),and the party seeking to enforce the lien bears the burden ofproving that each requisite has been satisfied (Bale v. Barnhart,343 Ill. App. 3d 708, 713 (2003)).  While the Act should beconstrued liberally as a remedial one, being in derogation of thecommon law, it is strictly construed with reference to therequirements upon which the right to a lien depends.  Luise, Inc.v. Village of Skokie, 335 Ill. App. 3d 672, 680 (2002).

There are four prerequisites for bringing an originalcontractor's lien claim: (1) a valid contract; (2) with the ownerof the property or his agent or someone who is knowinglypermitted by the owner to contract for improvements; (3) for thefurnishing of services or materials; and (4) performance of thecontract or a valid excuse for nonperformance. Delaney ElectricCo. v. Schiessle, 235 Ill. App. 3d 258, 264 (1992).  A contractorwho has met these prerequisites for bringing a claim for lien has"merely acquired an inchoate right to a lien which must then beperfected in accordance with the requirements prescribed in theAct."  Delaney Electric Co., 235 Ill. App. 3d at 264.

In order to enforce a lien against a creditor, a contractormust comply with the prerequisites in section 7 of the Act.  770ILCS 60/7 (West 2002).  Under section 7, a claim for lien againsta creditor must: (1) be filed within four months after thecompletion of work; (2) be verified by affidavit of the claimantor an agent or employee; (3) contain a brief statement of thecontract; (4) set forth the balance due; and (5) provide asufficiently correct description of the lot, lots or tracts ofland to identify the same.  770 ILCS 60/7 (West 2002); Bale, 343Ill. App. 3d at 713.

In this case, neither Tefco Construction nor the defendantsdispute that Tefco Construction met the prerequisites to bring anoriginal contractor's claim for lien: Tefco Construction enteredinto a valid contract with Randhurst on August 20, 2001;Randhurst was the owner of the property at the time of thecontract; the contract was "to provide labor and materials forgeneral contracting work, which included building a new currencyexchange, the erection of a bullet-proof safety cage, plumbingwork, electrical work, installation of custom millwork, an alarmsystem, a sprinkler system, and of the heating and airconditioning system," which constitutes the furnishing ofservices or materials; and Tefco Construction performed itsduties under the contract and completed the construction of thecurrency exchange on October 19, 2001.  See generally DelaneyElectric Co., 235 Ill. App. 3d at 264.

Because Tefco Construction met each of the prerequisitesnecessary to file a claim for lien, we must now consider whetherthe claim can be enforced under the Act. 

In order to enforce the lien against a creditor, section 7of the Act provides several prerequisites, including therequirement that the claim be verified by the affidavit of thecontractor, or his or her agent or employee.  770 ILCS 60/7 (West2002).  The record shows that Flanagan, in his capacity aspresident of Tefco Construction, completed a claim for lien thatincluded a brief statement of the contract, the balance due afterallowing all credits, and a sufficiently correct description ofthe property.  However, the claim for lien signed by Flanagandoes not include any language which may be construed as anaffidavit but, rather, simply states that "[t]he claimant, TefcoConstruction of Forest Park, County of Cook, State of Illinois,hereby files a claim for lien against Randhurst CurrencyExchange." Accordingly, Flanagan failed to verify the documentor attach an affidavit to the claim as required by section 7 ofthe Act. The parties dispute the result of this omission.

Tefco Construction argues that granting summary judgmentbased solely on the fact that the claim was not verified would bea "hyper-technical" reading of the statute and would lead to anunfair result. However, we reject this argument because section7 of the Act specifically requires such verification.  770 ILCS60/7 (West 2002).  While no Illinois case has directly addressedthe consequences of a failure to verify a claim for mechanic'slien, other jurisdictions have held that an "affirmed"verification means that which is supported by oath or affirmationin writing. See Aetna Glass Corp. v. Mercury Builders, Inc., 145Ind. App. 286, 250 N.E.2d 598 (1969) (holding that a signed andnotarized claim did not meet the verification requirements underIndiana law); Craft v. Stevenson Lumber Yard, Inc., 1 79 N.J. 56,843 A.2d 1076 (2004) (holding that a valid lien under the state'sconstruction lien law must attest under oath that a debt isowed); In re JGC Enterprises, L.L.C., 40 Fed. Appx. 561 (9th Cir.ID 2002) (finding that a mechanic's lien claim was invalid wherethe plaintiff failed to comply with the verification requirementsof the Idaho statute); Lumberman's of Washington, Inc. v.Barnhardt, 89 Wash. App. 283, 949 P.2d 382 (1997) (determiningthat a claim of lien that did not include a signed verificationstatement was invalid and unenforceable); Stoebner v. HorizonFabricators, Inc., 153 B.R. 840 (D. Minn. 1993) (holding that,under Illinois law, filing notice of mechanic's lien was notenough to overcome the party's failure to verify its claim byaffidavit); Red Rooster Construction Co. v. River Associates,Inc., 224 Conn. 563, 620 A.2d 118 (1993) (finding that in orderto comply with the mechanic's lien statute, the party is requiredto establish execution of an oath swearing that the factscontained in the document are true); Stresscon v. Madiedo, 581So. 2d 158 (Fla. 1991) (holding that the failure to notarize themechanic's lien claim is fatal to the claim in view of strictcompliance required with the statute).

In arguing that its claim for lien should be enforceabledespite the lack of verification, Tefco Construction reliesheavily on Aluma Systems, Inc., 206 Ill. App. 3d at 848, wherethe claimant filed a mechanic's lien and issued a series ofcorrected notices to the other parties.  In Aluma Systems, Inc,the focus of the appeal was section 23 of the Act, which requiresthat the claimant give notice of the claim to the director orother official responsible for the original contract.  770 ILCS60/23 (West 1990); Aluma Systems, Inc., 206 Ill. App. 3d at 831. This court held that the claimant's action of sending anincorrect initial notice, and then several corrected notices, wasnot enough to render the claim unenforceable.  Aluma Systems,Inc., 206 Ill. App. 3d at 848. 

However, we find the holding in Aluma Systems, Inc. to bedistinguishable from the present case.  In Aluma Systems, Inc.,this court provided a thorough analysis of the history of theMechanics Lien Act and was clear in stating that its holding isbased on some "authority which favors some flexibility inapplying the general rules."  Aluma Systems, Inc., 206 Ill. App.3d at 839.  Unlike Aluma Systems, Inc., this case involves theverification requirement under section 7 of the Act, which is notconsidered a general rule of the statute.  770 ILCS 60/7 (West2002).  Rather, Tefco Construction, as the claimant, was requiredto comply with each of the prerequisites listed in section 7 inorder for its claim to be enforceable under the Act.  770 ILCS60/7 (West 2002); Connelly, 97 Ill. 2d at 246.  Accordingly,Tefco Construction's failure to verify the claim in accordancewith section 7 renders the claim unenforceable under the Act.

Finally, Tefco Construction urges this court to construesection 7 in accordance with the Act's general purpose to protectcontractors' rights to receive payment when they furnish valuablelabor and material in good faith because section 39 requires thatthe Act be "liberally construed as a remedial act."

Section 39 does provide that the Act as a whole should beliberally construed to reflect its remedial purpose, but onlyafter the contractor has "scrupulously observed" all thestatutory prerequisites that give effect to the lien. GatewayConcrete Forming Systems, Inc. v. Dynaprop XVIII: State StreetLLC, No. 1-04-2184, slip op. at 9 (March 31, 2005). Theprovisions of the Act that fall outside of the statutoryrequirements are applicable only after the claimant complies withthe statutory requirements. Delaney Electric Co., 235 Ill. App.3d at 265; Connelly, 97 Ill. 2d at 246. Because TefcoConstruction failed to meet the prerequisites to enforce itsclaim for lien under section 7, we cannot liberally construe theAct to afford Tefco Construction a remedy because its claim forlien was unenforceable.

We also note that the verification requirement serves animportant function under the Act. Obtaining a mechanic's lienentails the relatively simple process of a claimant filing aclaim with the recorder's office in accordance with section 7 ofthe Act. However, the recording of such a claim for mechanic'slien has significant legal consequences involving the encumbranceon property. By requiring verification of the claim formechanic's lien, section 7 provides that the claimant must makestatements in the recorded document under penalty of perjurywhich provides a much needed consequence should the claimant filea frivolous claim under the Act. The fact that the appellant'sclaim in the instant case was not frivolous, as the appellantunquestionably supplied the materials and performed the work asalleged in the claim, does not change our analysis. Despite theunfavorable outcome to the appellant in this case, we will notdepart from the plain language of the statute by reading into itexceptions that conflict with the intent of the legislature. Carver v. Sherrif of La salle County, 203 Ill. 2d 497, 507(2003).

III. Conclusion

For the above-stated reasons, we affirm the order of thecircuit court of Cook County granting summary judgment in favorof defendants. Affirmed.

GREIMAN and THEIS, JJ., concur.