{ "id": 3442364, "name": "PREMIER ELECTRICAL CONSTRUCTION COMPANY, Plaintiff-Appellant and Cross-Appellee, v. LA SALLE NATIONAL BANK, Trustee, et al., Defendants-Appellees and Cross-Appellants", "name_abbreviation": "Premier Electrical Construction Co. v. La Salle National Bank", "decision_date": "1984-12-27", "docket_number": "No. 83\u20141000", "first_page": "485", "last_page": "497", "citations": [ { "type": "official", "cite": "132 Ill. App. 3d 485" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "450 N.E.2d 1360", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "115 Ill. App. 3d 638", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3556513 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/115/0638-01" ] }, { "cite": "370 N.E.2d 152", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1977, "opinion_index": 0 }, { "cite": "54 Ill. App. 3d 562", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3401614 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/0562-01" ] }, { "cite": "456 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "119 Ill. App. 3d 277", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3628624 ], "pin_cites": [ { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/119/0277-01" ] }, { "cite": "255 N.E.2d 615", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "119 Ill. App. 2d 142", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1584505 ], "weight": 2, "pin_cites": [ { "page": "145" }, { "page": "145" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/119/0142-01" ] }, { "cite": "415 N.E.2d 492", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "91 Ill. App. 3d 1011", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3149024 ], "pin_cites": [ { "page": "1017" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/91/1011-01" ] }, { "cite": "461 N.E.2d 1075", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "122 Ill. App. 3d 688", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3521970 ], "pin_cites": [ { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/0688-01" ] }, { "cite": "456 N.E.2d 889", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "119 Ill. App. 3d 663", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3629363 ], "weight": 2, "pin_cites": [ { "page": "677" }, { "page": "677" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/119/0665-01" ] }, { "cite": "388 N.E.2d 943", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "70 Ill. App. 3d 980", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5577072 ], "pin_cites": [ { "page": "1005-06" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/70/0980-01" ] }, { "cite": "444 N.E.2d 726", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 855", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5441041 ], "pin_cites": [ { "page": "864" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/0855-01" ] }, { "cite": "341 N.E.2d 101", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "34 Ill. App. 3d 861", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2963132 ], "pin_cites": [ { "page": "864" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/34/0861-01" ] }, { "cite": "428 N.E.2d 1028", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 943", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3084609 ], "year": 1976, "pin_cites": [ { "page": "946-47" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0943-01" ] }, { "cite": "144 N.E.2d 798", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "14 Ill. App. 2d 464", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5173166 ], "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/14/0464-01" ] }, { "cite": "371 N.E.2d 1021", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "56 Ill. App. 3d 358", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3415159 ], "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/56/0358-01" ] }, { "cite": "444 N.E.2d 1090", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 1017", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5440520 ], "pin_cites": [ { "page": "1022" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/1017-01" ] }, { "cite": "222 N.E.2d 24", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "77 Ill. App. 2d 274", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2570794, 2572661 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/77/0274-02", "/ill-app-2d/77/0274-01" ] }, { "cite": "264 N.E.2d 134", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "46 Ill. 2d 522", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2899887 ], "pin_cites": [ { "page": "530-32" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/46/0522-01" ] }, { "cite": "428 N.E.2d 178", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 366", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3083807 ], "year": 1970, "pin_cites": [ { "page": "372-73" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0366-01" ] }, { "cite": "430 N.E.2d 631", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "103 Ill. App. 3d 161", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5480593 ], "pin_cites": [ { "page": "165-66" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/103/0161-01" ] }, { "cite": "451 N.E.2d 1267", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1981, "opinion_index": 0 }, { "cite": "116 Ill. App. 3d 286", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3519881 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "298" }, { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/116/0286-01" ] } ], "analysis": { "cardinality": 954, "char_count": 29112, "ocr_confidence": 0.752, "pagerank": { "raw": 5.454574211636308e-07, "percentile": 0.9453593626501005 }, "sha256": "c1a12c1528fc25008c3327ac63949bc34e7abbd8884c00e2ed0f0d6c015e179d", "simhash": "1:72b67dcdcf749554", "word_count": 4675 }, "last_updated": "2023-07-14T22:48:37.184543+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PREMIER ELECTRICAL CONSTRUCTION COMPANY, Plaintiff-Appellant and Cross-Appellee, v. LA SALLE NATIONAL BANK, Trustee, et al., Defendants-Appellees and Cross-Appellants." ], "opinions": [ { "text": "JUSTICE ROMITI\ndelivered the opinion of the court:\nThe plaintiff, Premier Electrical Construction Company (Premier), appeals from orders of the Cook County circuit court which, pursuant to the defendants\u2019 (hereafter owners) motions, dismissed count I of its amended complaint seeking foreclosure of a mechanic\u2019s lien, dismissed count II of its amended complaint seeking recovery based upon breach of an oral contract, and denied Premier leave to amend its complaint to include a claim for unjust enrichment. The owners cross-appeal from the trial court\u2019s order denying their motion to tax fees and costs against Premier.\nThe parties raise, inter alia, the following questions for our review:\n1. Whether the trial court in dismissing count I properly interpreted a waiver of mechanic\u2019s lien to date executed by Premier to operate as a final waiver of lien rights.\n2. Whether the trial court properly dismissed count II of the amended complaint because it was inconsistent with prior sworn statements by Premier that were part of the record.\n3. Whether the trial court properly denied Premier\u2019s motion for leave to file an amended complaint alleging unjust enrichment.\n4. Whether the form of owners\u2019 motion to strike or dismiss Premier\u2019s amended complaint was improper and so prejudicial to Premier that it requires reversal and remandment.\n5. Whether the trial court abused its discretion in denying owners\u2019 motion to tax fees and costs against Premier pursuant to section 2\u2014 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 611), which sought such fees and costs on the ground that count II of Premier\u2019s amended complaint was untrue and made by Premier without reasonable cause.\nWe reverse and remand the dismissal of counts I and II, and affirm denial of leave to file Premier\u2019s unjust enrichment claim and owners\u2019 motion to assess fees and costs against Premier.\nPremier\u2019s original verified complaint filed December 9, 1981, sought foreclosure of a mechanic\u2019s lien and other relief from La Salle National Bank (La Salle Bank) as trustee under Trust No. 100819; Fulton House Associates (Fulton House), an Illinois limited partnership and beneficial owner of the bank trust; Wolf Point Landing Partners (WPLP), an Illinois general partnership and one of the partners of Fulton House; Harry Weese (Weese), a general partner of WPLP and general partner of Harry Weese & Associates, the architectural firm hired by Fulton House; Continental Illinois National Bank & Trust Co. (Continental), the mortgage lender for Fulton House; and E. W. Corrigan Construction Company (Corrigan), general contractor on the project. La Salle Bank, Fulton House, WPLP, Weese, and Continental will be referred to collectively as \u201cowners\u201d where appropriate. Corrigan is not a party to this appeal.\nPremier\u2019s complaint alleged that in June 1979, WPLP and Corrigan entered into a written contract to convert the Fulton House cold storage warehouse building at 345 North Canal Street in Chicago from a 16-story brick warehouse to condominium apartments and office space (hereinafter referred to as the \u201cFulton House project\u201d). It further stated that on June 21, 1979, Corrigan entered into a written subcontract with Premier whereby Premier became the electrical subcontractor for the Fulton House project. Count I of the complaint, directed against the owners, Corrigan, and \u201cunknown owners,\u201d sought, inter alia, foreclosure of a mechanic\u2019s lien for $90,000 for electrical work Premier alleged it had provided on the Fulton House project and for which it had not been paid. Count II, directed against Corrigan, alleged that Corrigan made numerous requests for additions, extras and changes to Premier\u2019s subcontract which substantially increased the cost of the work and materials provided and that after allowance of all credits there remained due and owing to Premier the sum of $431,045.24, which Corrigan refused to pay.\nOn January 14, 1982, La Salle Bank filed an answer to the complaint alleging that it held title to the premises as a naked-land trustee with no further interest therein and requested that Premier\u2019s complaint against it therefore be dismissed with prejudice. Nevertheless, on January 29, La Salle, Continental, and Fulton House filed their \u201cmotion to dismiss or in the alternative to strike complaint.\u201d The motion requested that the complaint be dismissed pursuant to section 48 of the Civil Practice Act (now Ill. Rev. Stat. 1981, ch. 110, par. 2\u2014 619), because (1) Premier had fully and finally waived and released any and all claims for a lien because it had executed a final waiver of lien; (2) Premier had failed to perfect the mechanic\u2019s lien claimed in count I of the complaint; (3) Premier had no right to sue them for any sums claimed to be due from Corrigan or to claim a lien; and (4) the allegations in count I failed to conform to the requirements of the Mechanics\u2019 Liens Act (Ill. Rev. Stat. 1981, ch. 82, par. 1 et seq.), and were substantially insufficient in law. In the alternative, the motion alleged that the complaint should be dismissed pursuant to section 45 of the Civil Practice Act (now Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 615). In further support, the motion alleged that the complaint failed to identify what labor and material were allegedly provided, failed to allege the total amount due, and failed to allege that the owners had authorized or agreed to any amounts claimed. In support of their motion pursuant to section 2 \u2014 619 of the Code of Civil Procedure, the owners included the affidavit of Daniel O\u2019Keefe, an employee of Fulton House, which stated in pertinent part that in reliance on Premier\u2019s lien waiver, Fulton House had authorized payment to Premier of the amount shown on the pay-out note which had accompanied the lien waiver.\nOn February 9, Premier filed its motion in opposition to the motion of the owners to dismiss or strike the complaint, arguing that the waiver was not meant by the parties to be a final waiver of lien and that the complaint was factually sufficient.\nOn March 23, before the trial court ruled on the owners\u2019 motion to strike or dismiss, Premier filed a motion for leave to file an amended complaint. This proposed amended complaint was directed against the original defendants as well as numerous parties not named in the first complaint. In proposed count I for foreclosure of mechanic\u2019s lien, Premier first alleged in pertinent part that Premier entered into a subcontract with Corrigan on June 21, 1979, in the amount of $511,394, under which Premier agreed to provide labor and materials for electrical work at Fulton House in accordance with the terms of the subcontract and certain drawings, plans and specifications prepared for that purpose and made part of the subcontract. These allegations were realleged and incorporated into most of the subsequent counts of the proposed complaint.\nCount I further alleged that during the course of construction, numerous unusual, unforeseen and unanticipated job conditions were encountered, including but not limited to structural defects caused during the thawing of the building (e.g., collapse of a substantial portion of one wall of the building), and vast structural differences in the actual physical construction of the building as opposed to what was reflected in the drawings. Premier claimed that this situation necessitated several field changes resulting in delays, unanticipated materials needs and additional costs. The complaint alleged in substance that the original subcontract did not cover these extras, that the parties had a customary practice between them with regard to the subcontract such that the owners knew that the waiver of lien was not intended to accurately reflect the full current subcontract price including all extras, that it was a matter of trade usage in the industry for a subcontractor to execute a waiver of lien that did not accurately reflect the full current subcontract price including all extras, and that Premier was entitled to a mechanic\u2019s lien in the amount of $150,000 with statutory interest.\nCount II of the proposed amended complaint sought recovery of $431,045.24, the full value of the extras Premier alleged to have provided on the project, based on the owners\u2019 breach of an oral contract with Premier to provide these extras.\nCount III of the amended complaint was directed against Corrigan and sought recovery of $431,045.24 based upon breach of the electrical subcontract.\nCount IV sought recovery of the value of the extras from the owners based upon unjust enrichment. Count V consisted of a claim for reformation of the subcontract and was directed against Corrigan. Count VI was a fraud claim also directed against Corrigan.\nThe trial court ruled on Premier\u2019s motion to file an amended complaint on April 28. It denied Premier leave to file count I (foreclosure of mechanic\u2019s lien), count II (breach of oral contract), and count IV (unjust enrichment) of the proposed complaint and granted leave to file the remaining counts. The court also denied Premier leave to withdraw its original verified complaint.\nPremier filed its amended verified complaint on May 12. In this pleading, Premier first made several allegations applicable to all counts. These allegations were substantially similar to those it had made in count I of its proposed amended complaint which it had realleged and incorporated into the subsequent counts of that document. Count I of the amended complaint sought foreclosure of mechanic\u2019s lien and was substantially similar to the latter portion of count I of the proposed amended complaint. (The owners have not argued either before the trial court or in this appeal that Premier\u2019s amended count I deviated from the trial court\u2019s order denying Premier leave to file an amended count. Instead, as will be stated more fully below, owners argued before the trial court and claim in this appeal that the count should be stricken with prejudice because of the executed lien waiver or dismissed for failure to state a claim.)\nCount II of the May 12 amended complaint sought recovery based upon owners\u2019 breach of an oral contract. The count was substantially similar to count II of Premier\u2019s proposed amended complaint which the trial court had denied leave to file. (As with count I, owners have not argued in this appeal, nor did they argue below, that Premier\u2019s amended count II was improper. Instead, owners claimed before the trial court and contend in this appeal that amended count II was properly stricken with prejudice because of prior inconsistent sworn statements by Premier that were part of the record, or properly dismissed for failure to state a claim.)\nThe remaining counts of the amended complaint were the same as those Premier had been granted leave to file, except that proposed count IV seeking recovery directly from the owners based upon unjust enrichment was not included.\nOn June 9, owners filed a motion to dismiss or in the alternative to strike portions of the amended complaint. The motion was substantially similar to their previous motion to the same effect regarding Premier\u2019s original verified complaint, and adopted in support the previously filed affidavit of O\u2019Keefe. Premier filed a motion in response, to which the owners replied. Premier also later filed a motion for leave to file instanter the affidavit of Michael Hughes, vice-president of Premier, in support of its memorandum in opposition to the owners\u2019 motion to dismiss, which the court subsequently granted.\nOn October 8, the court ruled, inter alia, that count II of the amended complaint was stricken with prejudice and leave to amend that count was denied because it was inconsistent with prior sworn statements part of the record. Subsequently, on November 18, the court granted owners\u2019 motion to dismiss count I of the amended complaint with prejudice because of the lien waiver executed by Premier. The court later also denied Premier\u2019s motion to reconsider these rulings.\nPremier appeals from the rulings which dismissed counts I and II and denied it leave to file amended count IV for unjust enrichment. Owners cross-appeal from the trial court\u2019s order denying their motion to tax fees and costs against Premier pursuant to section 2 \u2014 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 611). All notices of appeal were timely filed.\nI\nDISMISSAL OF COUNT I\nPremier claims that the trial court erred in dismissing count I of the amended complaint on the ground that Premier\u2019s previously executed waiver of lien barred such foreclosure. Premier argues that the affidavits of O\u2019Keefe on behalf of the owners and Hughes on behalf of Premier created issues of fact regarding whether the parties intended the waiver of lien to constitute a final waiver and whether the owners acted in innocent, good-faith reliance on the waiver when they authorized payment in accordance with the pay-out note which accompanied the waiver of lien, as shown by the customary practice between the parties and trade usage in the industry. We agree that innocent, good-faith reliance, customary practice and trade usage were disputed factual issues which precluded dismissal of count I.\nPremier\u2019s original verified complaint and amended complaint included as exhibits the lien waiver, contractor\u2019s affidavit, and pay-out note signed and executed by Hughes as vice-president on behalf of Premier. The documents recited that Premier\u2019s work on the project had been completed on May 31, 1981. The lien waiver further stated in essence that Premier waived any right to claim a mechanic\u2019s lien on the Fulton House property for sums due Premier on account of work \u201cfurnished to this date.\u201d The lien waiver was dated July 13, 1981. The contractor\u2019s affidavit similarly stated that \u201call waivers are true, correct and genuine and delivered unconditionally and that there is no claim either legal or equitable to defeat the validity of said waivers ***.\u201d\nIn dismissing count I of the amended complaint, the trial court stated that \u201cthe waiver of lien is in defense of Premier\u2019s claim\u201d and granted the motion to dismiss with regard to La Salle Bank, Fulton House, and Continental. Similarly, in denying Premier\u2019s motion to vacate the order dismissing count I, the trial court observed that Premier \u201chad primary responsibility for protecting its lien rights\u201d and that \u201c[t]he election to waive the lien rights was voluntarily done by the plaintiff, and the plaintiff is bound by its sworn documents.\u201d\nGenerally, where the terms of a waiver of lien are clear and unambiguous, extrinsic evidence which varies from or contradicts such terms cannot be considered in order to determine the intent of the parties; this rule applies, however, only when the party against whose property a lien is sought has relied upon the waiver of lien in innocence and good faith. (Luczak Brothers, Inc. v. Generes (1983), 116 Ill. App. 3d 286, 298, 451 N.E.2d 1267; see also Country Service & Supply Co. v. Harris Trust & Savings Bank (1981), 103 Ill. App. 3d 161, 165-66, 430 N.E.2d 631.) Whether there has been such innocent, good-faith reliance is a question of fact. (Luczak Brothers, Inc. v. Generes (1983), 116 Ill. App. 3d 286, 298, 451 N.E.2d 1267; see also Contract Builders Service Corp. v. Eland (1981), 101 Ill. App. 3d 366, 372-73, 428 N.E.2d 178.) In addition, questions of customary practice between the parties and trade usage in the industry are also appropriately raised in the context of the effect of a subcontractor\u2019s lien waiver. Chicago Bridge & Iron Co. v. Reliance Insurance Co. (1970), 46 Ill. 2d 522, 530-32, 264 N.E.2d 134.\nHere, Premier and the owners disputed in their respective affidavits whether there had been innocent, good-faith reliance upon Premier\u2019s waiver of lien, the customary practice between them, and trade usage regarding subcontractor\u2019s waivers of lien. Hughes\u2019 affidavit gave a detailed recounting of specific instances where Premier was directed to perform additional work beyond the scope of its subcontract with the assurance that it would be compensated for these extras. He also gave a detailed accounting of specific instances where payment to Premier was authorized on the basis of lien waivers and pay-out notes which all parties knew did not accurately reflect the full, up-to-date subcontract price. For example, in support of its claim that the owners knew of the true status of Premier\u2019s subcontract amount, Hughes\u2019 affidavit claimed that the dual capacity of Weese as both owner and architect on the project created uncertainty as to whether Weese\u2019s on-site instructed changes were given in his capacity as owner or architect on the project. Furthermore, Hughes stated in substance that representatives of Fulton House, as owner, participated in and affirmed Weese\u2019s on-site changes and also issued similar instructions of their own. In short, the reasonable inferences which might be drawn from Premier\u2019s complaint, supporting documents, and affidavit, are that the owners knew that the amounts shown on Premier\u2019s pay-out notes and lien waivers did not accurately reflect the amounts due it for materials and labor Premier had provided on the project. O\u2019Keefe\u2019s affidavit, on behalf of the owners, disputed these allegations in the sense that he stated that the owners innocently relied upon Premier\u2019s lien waiver and pay-out note in authorizing Premier\u2019s payment.\nIt is well established that a motion pursuant to section 2 \u2014 619 cannot be decided on the basis of controverted factual matter; since the issues which the trial court should have considered here were factually disputed by the parties, the court\u2019s judgment dismissing count I must be reversed and the cause remanded for further proceedings. In view of this determination, we do not address Premier\u2019s additional claims of reversible error in the trial court\u2019s dismissal of count I.\nII\nDISMISSAL OF COUNT II\nPremier argues that the trial court erred in dismissing count II of its amended complaint which sought recovery of $431,045.24, the value of extras Premier claimed it provided, based upon the owners\u2019 breach of an oral contract between them and Premier regarding the extras. We agree.\nThe trial court\u2019s order, which struck with prejudice count II of the amended complaint, stated that the count was \u201cinconsistent with prior sworn statements part of the record.\u201d As appears from the transcript, the court determined that Premier could not seek relief from the owners based upon breach of an oral contract regarding the extras because Premier\u2019s original verified complaint sought recovery of the value of the disputed extras from Corrigan based upon breach of the written subcontract between Corrigan and Premier.\nPremier argues that section 2 \u2014 605 of the Code (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 605), regarding verified complaints, permits alternative or inconsistent pleadings where a party is uncertain what the facts and evidence will show. (See, e.g., Olson v. Weingard (1966), 77 Ill. App. 2d 274, 222 N.E.2d 24.) It contends that such pleadings are appropriate here because Corrigan\u2019s answer to Premier\u2019s claim against it has admitted that Premier provided the disputed material and labor but denied that Corrigan requested or authorized the work.\nThe owners claimed before the trial court and argue now in this appeal that Premier\u2019s prior sworn statements were inconsistent because they sought recovery of the value of the extras from Corrigan based upon Premier\u2019s electrical subcontract with the general contractor. As evidence of such prior inconsistent sworn statements, owners point to portions of count II of Premier\u2019s original verified complaint directed against Corrigan for breach of subcontract; portions of Premier\u2019s amended notice and claim for mechanic\u2019s lien, attached as an exhibit to Premier\u2019s original verified complaint with regard to count I against owners for foreclosure of the lien; portions of Premier\u2019s second amended notice and claim for mechanic\u2019s lien, attached as an exhibit to Premier\u2019s original verified complaint with regard to count I for lien foreclosure; portions of Premier\u2019s subcontract; portions of the contractor\u2019s affidavit Premier executed on July 13, 1981, which accompanied its lien waiver; and portions of the lien waiver itself. Owners claim that these statements directly contradicted count II of Premier\u2019s amended complaint, which alleged in relevant part that the extras were provided \u201cat the express request of the Beneficial Owners, and/ or his architect, and/or his architect\u2019s field representatives,\u201d which created \u201can oral contract *** between Premier and the Owner to perform said additional work for added consideration.\u201d\n\u201cPrior inconsistent sworn statements,\u201d or judicial admissions, are a party\u2019s formal binding statements or allegations of fact. (Giamanco v. Giamanco (1982), 111 Ill. App. 3d 1017, 1022, 444 N.E.2d 1090.) Once made, as for example in a verified pleading, a party cannot subsequently contradict such factual allegations. (Waldorf v. Marlas (1977), 56 Ill. App. 3d 358, 362, 371 N.E.2d 1021.) The provision in section 2 \u2014 605 of the Code (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 605) that verified allegations shall not constitute evidence except by way of admission refers to admissions of fact, not admissions of law. Franz v. Schneider (1957), 14 Ill. App. 2d 464, 468,144 N.E.2d 798.\nThe statements of Premier which the trial court found to constitute binding judicial admissions here were essentially allegations that Premier provided the extras on the basis of its subcontract with Corrigan. These were allegations of legal conclusions, however, not facts. Although the allegation of the existence of a subcontract of a particular scope might appear upon first impression to be an allegation of \u201cfact,\u201d it is more properly an allegation of a legal conclusion, since it is the province of the trial court to determine, based upon properly admitted evidence, the existence and terms of a contract between the parties. (See Martin-Trigona v. Bloomington Federal Savings & Loan Association (1981), 101 Ill. App. 3d 943, 946-47, 428 N.E.2d 1028; Pollack v. Marathon Oil Co. (1976), 34 Ill. App. 3d 861, 864, 341 N.E.2d 101.) The construction, interpretation or legal effect of a contract are questions of law to be resolved by the court. (Premier Electrical Construction Co. v. Ragnar Benson, Inc. (1982), 111 Ill. App. 3d 855, 864, 444 N.E.2d 726.) Consequently, in our view, count II of Premier\u2019s amended complaint did not contain factual allegations inconsistent with its verified complaint; instead, it sought, based upon factual allegations consistent with and constituting an amplification of the verified complaint, a remedy inconsistent with its verified complaint.\nFurther, there is no error in such a procedure. The doctrine of election of remedies does not apply when- inconsistent or alternative remedies are joined in the same pleading. (Pinelli v. Alpine Development Corp. (1979), 70 Ill. App. 3d 980, 1005-06, 388 N.E.2d 943.) The remedies of a subcontractor are cumulative and may be pursued consecutively or concurrently. (J & K Cement Construction, Inc. v. Montalbano Builders, Inc. (1983), 119 Ill. App. 3d 663, 677, 456 N.E.2d 889.) These remedies include:\n\u201c(1) an action at law against the original contractor alone; (2) an action at law against the original contractor and the owner jointly; (3) an action at law upon the original contractor\u2019s completion bond; (4) an action in equity to enforce the subcontractor\u2019s lien; and (5) intervention in a pending action of the original contractor against the owner. (Ill. Rev. Stat. 1981, ch. 82, par. 1 et seq.; see Illinois Mechanics\u2019 Lien 5 \u2014 54 (Ill. Inst. Cont. Legal Educ. 1981).)\u201d (J & K Cement Construction, Inc. v. Montalbano Builders, Inc. (1983), 119 Ill. App. 3d 663, 677, 456 N.E.2d 889.)\nThe trial court erroneously determined that since Premier had elected the remedy of recovery from Corrigan for breach of subcontract in its original complaint, it could not seek recovery from the owners based upon breach of an oral contract in its amended complaint. Accordingly, we conclude that count II of Premier\u2019s amended complaint was improperly dismissed. In view of this determination, we do not address additional arguments raised by Premier regarding the trial court\u2019s dismissal of this count.\nIll\nDENIAL OF LEAVE TO FILE AN UNJUST ENRICHMENT CLAIM\nPremier argues that the trial court improperly denied it leave to file count IV of its proposed amended complaint which sought recovery from the owners based upon a theory of unjust enrichment. We disagree.\nThe theory of unjust enrichment is based upon a finding of a \u201ccontract implied in law.\u201d Such a contract differs from a \u201ccontract implied in fact\u201d in that it arises by implication of law wholly apart from the usual rules relating to contracts and does not depend upon the agreement or consent of the parties. (In re Estate of Milborn (1984), 122 Ill. App. 3d 688, 690, 461 N.E.2d 1075.) Unjust-enrichment recovery requires a showing that the defendant has voluntarily accepted a benefit which it would be inequitable for him to retain without payment, since the law implies a promise to pay compensation when value of services is knowingly accepted. (Plastics & Equipment Sales Co. v. DeSoto, Inc. (1980), 91 Ill. App. 3d 1011, 1017, 415 N.E.2d 492.) As a general rule, the doctrine of unjust enrichment does not apply where the entire work is contracted for and placed under a general contractor who has the power to employ whom he chooses, because in such circumstances the owner has the right to presume that work is being done for and on behalf of the contractor. (Vanderlaan v. Berry Construction Co. (1970), 119 Ill. App. 2d 142, 145, 255 N.E.2d 615.) This rule applies because a claim for unjust enrichment generally cannot stand where there is an allegation of an express contractual agreement. (See Vanderlaan v. Berry Construction Co. (1970), 119 Ill. App. 2d 142, 145, 255 N.E.2d 615; see also Decatur Production Credit Association v. Murphy (1983), 119 Ill. App. 3d 277, 288, 456 N.E.2d 267.) Nevertheless, it has also been held that where the general contractor\u2019s employment has been terminated prior to completion of the project and the owner has directly instructed the subcontractor to perform such work with the assurance of compensation, the subcontractor may seek recovery directly from the owner. (Redd v. Woodford County Swine Breeders, Inc. (1977), 54 Ill. App. 3d 562, 566, 370 N.E.2d 152.) In this instance, however, the proper theory of recovery is breach of an express unilateral contract between the owner and the subcontractor, rather than a theory of unjust enrichment. Redd v. Woodford County Swine Breeders, Inc. (1977), 54 Ill. App. 3d 562, 370 N.E.2d 152.\nCount IV of Premier\u2019s proposed amended complaint seeking recovery from the owners based upon unjust enrichment alleged, inter alia, the existence of an oral contract between Premier and the owners to the effect that Premier would be compensated for the extras it provided. As unjust enrichment cannot be sought where there is such an express agreement, the trial court properly denied Premier leave to file the proposed amended count IV.\nIV\nIMPROPER FORM OF OWNERS\u2019 MOTION TO STRIKE OR DISMISS\nBased on our review of the record, we find no prejudicial error to Premier resulting from the improper form of the owners\u2019 motion to strike or dismiss Premier\u2019s amended complaint. We observe, however, that it is abundantly clear from the record that both counsel and the court were confused by this procedure, and would draw owners\u2019 counsel\u2019s attention to the recent decision of Premier Electrical Construction Co. v. La Salle National Bank (1983), 115 Ill. App. 3d 638, 450 N.E.2d 1360, in this regard.\nV\nOWNERS\u2019 CROSS-APPEAL\nBecause we conclude that the trial court erroneously dismissed count II of the amended complaint, we affirm without discussion the trial court\u2019s order denying the owners\u2019 motion to tax fees and costs against Premier pursuant to section 2 \u2014 611 of the Code (Ill. Rev. Stat. 1981, ch. 110, par. 2-611).\nFor the reasons stated, the trial court\u2019s orders dismissing amended counts I and II and denying Premier\u2019s motion to vacate these orders are reversed and the cause remanded; the trial court\u2019s order denying Premier leave to file an amendment to include a claim for unjust enrichment is affirmed; and the trial court\u2019s order denying owners\u2019 motion to tax fees and costs is affirmed.\nReversed and remanded in part; affirmed in part.\nJOHNSON and JIGANTI, JJ., concur.", "type": "majority", "author": "JUSTICE ROMITI" } ], "attorneys": [ "Patrick Mazza and Kurt David Baer, both of Chicago (Patrick Mazza & Associates, P.C., of counsel), for appellant.", "Sidney E. Morrison and Jeffrey T. Saltz, both of Morrison & Kamins, P.C., of Chicago, for appellees." ], "corrections": "", "head_matter": "PREMIER ELECTRICAL CONSTRUCTION COMPANY, Plaintiff-Appellant and Cross-Appellee, v. LA SALLE NATIONAL BANK, Trustee, et al., Defendants-Appellees and Cross-Appellants.\nFirst District (4th Division)\nNo. 83\u20141000\nOpinion filed December 27, 1984.\n\u2014Rehearing denied May 16,1985.\nPatrick Mazza and Kurt David Baer, both of Chicago (Patrick Mazza & Associates, P.C., of counsel), for appellant.\nSidney E. Morrison and Jeffrey T. Saltz, both of Morrison & Kamins, P.C., of Chicago, for appellees." }, "file_name": "0485-01", "first_page_order": 507, "last_page_order": 519 }