{ "id": 3499930, "name": "ABBOTT ELECTRICAL CONSTRUCTION COMPANY, Plaintiff-Appellant, v. ALAN B. LADIN et al., Defendants (First National Bank of Highland Park, as Trustee, et al., Defendants-Appellees)", "name_abbreviation": "Abbott Electrical Construction Co. v. Ladin", "decision_date": "1986-06-24", "docket_number": "No. 2\u201485\u20140064", "first_page": "974", "last_page": "982", "citations": [ { "type": "official", "cite": "144 Ill. App. 3d 974" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "341 Ill. 73", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5249846 ], "year": 1983, "pin_cites": [ { "page": "76-77" } ], "opinion_index": 0, "case_paths": [ "/ill/341/0073-01" ] }, { "cite": "302 N.E.2d 131", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "13 Ill. App. 3d 1074", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5345752 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/13/1074-01" ] }, { "cite": "454 N.E.2d 314", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1973, "opinion_index": 0 }, { "cite": "97 Ill. 2d 242", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5515035 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "246" }, { "page": "246" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/97/0242-01" ] }, { "cite": "393 N.E.2d 663", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill. App. 3d 677", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3267971 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/74/0677-01" ] }, { "cite": "348 N.E.2d 461", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "38 Ill. 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App. 3d", "case_ids": [ 2707091 ], "pin_cites": [ { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/31/0695-01" ] }, { "cite": "242 Ill. App. 315", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5530510 ], "pin_cites": [ { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/ill-app/242/0315-01" ] }, { "cite": "212 Ill. App. 226", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5816446 ], "year": 1926, "pin_cites": [ { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/ill-app/212/0226-01" ] }, { "cite": "146 Ill. App. 290", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2658060 ], "pin_cites": [ { "page": "296" } ], "opinion_index": 0, "case_paths": [ "/ill-app/146/0290-01" ] }, { "cite": "392 N.E.2d 914", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "74 Ill. App. 3d 380", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3266729 ], "weight": 3, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/74/0380-01" ] } ], "analysis": { "cardinality": 841, "char_count": 19184, "ocr_confidence": 0.771, "pagerank": { "raw": 1.197152876423149e-07, "percentile": 0.5927787681830099 }, "sha256": "8b8f8759c75983edfcdf70cf5bdf62fa98966ca5d777dbef1bce9f5fc52f6cd0", "simhash": "1:e6f2a6f7386585fa", "word_count": 3199 }, "last_updated": "2023-07-14T20:09:36.612611+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ABBOTT ELECTRICAL CONSTRUCTION COMPANY, Plaintiff-Appellant, v. ALAN B. LADIN et al., Defendants (First National Bank of Highland Park, as Trustee, et al., Defendants-Appellees)." ], "opinions": [ { "text": "JUSTICE HOPE\ndelivered the opinion of the court:\nPlaintiff, Abbott Electrical Construction Co., Inc., performed electrical work for a lessee in a building owned by defendants, First National Bank of Highland Park (trustee), as trustee, and Larry and Elaine Klairmont (the Klairmonts). When Abbott did not receive payment for the work from the lessee, it filed a claim for lien and complaint for foreclosure against, among others, the trustee and the Klairmonts. The trial court held in favor of the defendants, and Abbott appealed.\nOn appeal Abbott asserts that the trial court erred in four ways: (1) in finding that the contractor\u2019s failure to supply the owner with a contractor\u2019s affidavit defeated plaintiff\u2019s claim; (2) in basing its final order, in part, upon an affirmative defense that was not set forth in defendant\u2019s answer; (3) in finding that plaintiff\u2019s claim was defeated because plaintiff could not separate lienable and nonlienable work; and (4) in failing to liberally construe the Mechanic\u2019s Liens Act despite plaintiff\u2019s compliance with the statutory requirements for a valid mechanic\u2019s lien.\nLarry and Elaine Klairmont were the holders of the beneficial interest in Trust No. 1191 at First National Bank of Highland Park. The trust held the legal title to improved real estate located in Highland Park. The improvements consisted of a three-story building containing offices, shops, and a first floor restaurant. Prior to early 1982, the restaurant had been vacant for over a year and had been closed on two or three different occasions before that. Larry Klairmont had acquired the restaurant equipment through a foreclosure proceeding.\nIn April 1982 a real estate broker contacted Larry Klairmont, on behalf of defendant Alan Ladin, regarding the purchase of the assets of the restaurant. Klairmont ultimately entered into an agreement with Ladin whereby the two of them set up a corporation; named it Alan\u2019s Restaurant Corporation, and each contributed to capitalization. Alfred Klairmont, Larry\u2019s son, became the secretary of the corporation. The assets of the restaurant were sold to the corporation, and the corporation entered into a lease agreement with the trustee, First National Bank of Highland Park. Larry Klairmont accepted $25,000 down and a $125,000 chattel mortgage for the sale of the restaurant equipment.\nAlfred Klairmont managed real estate properties for his father, Larry, who had his own real estate business. One of the properties Alfred managed was the Highland Park building which housed the restaurant relevant to this suit. As manager, Alfred attended to the day-to-day management, leasing, maintenance, et cetera, of his father\u2019s properties. He visited the properties on a regular basis. Also, in his capacity as secretary of Alan\u2019s Restaurant Corporation, Alfred discussed the opening of the restaurant with Alan Ladin.\nAround the time Alan Ladin signed the lease for the restaurant, he contacted Marvin Kaplan of Abbott Electrical Construction Company (Abbott) about doing some work in the restaurant. Abbott applied for the city permit to do certain electrical work and reached an agreement with Ladin as to the work to be done. The job was to be charged on a time and material basis. Abbott completed the work by mid-July and billed Alan\u2019s Restaurant, but never received any payment. Apparently, the Alan\u2019s Restaurant venture did not succeed because, according to Alfred Klairmont\u2019s testimony, the restaurant remained in the Highland Park building for less than a year.\nAbbott filed a claim for lien in the amount of $7,746 in October 1982 and a complaint for foreclosure of the lien in May 1983 against Alan Ladin, Alan\u2019s Restaurant Corporation, First National Bank of Highland Park as Trustee, Guaranty Federal Savings & Loan Association, and Larry and Elaine Klairmont. On September 18, 1984, after a bench trial, a default judgment was entered against Alan Ladin, Alan\u2019s Restaurant Corporation, and Guaranty Federal for the full amount of the lien. Judgment was entered in favor of First National Bank of Highland Park and the Klairmonts on grounds that plaintiff had not complied with the statutory requirements for a mechanic\u2019s lien. Abbott filed a motion to reconsider, and the court added, as a new ground for its judgment, a finding that the lien claim failed since plaintiff had not been able to separate lienable work from nonlienable work. After both parties briefed the issues the court denied plaintiff\u2019s motion to reconsider, and this appeal followed.\nAbbott first argues that the trial court erred when it found that Abbott\u2019s failure to supply the Klairmonts with a statutorily prescribed contractor\u2019s affidavit defeated its claim. Abbott reasons that its duty to provide the affidavit was never triggered.\nThe \u201cAct relating to contractors\u2019 and material men\u2019s liens, known as mechanics\u2019 liens\u201d (Ill. Rev. Stat. 1983, ch. 82, par. 1 et seq.) (the Act), which becomes part of every construction contract between an owner and a contractor (Deerfield Electric Co. v. Herbert W. Jaeger & Associates, Inc. (1979), 74 Ill. App. 3d 380, 392 N.E.2d 914), provides in pertinent part:\n\u201cIt shall be the duty of the contractor to give the owner, and the duty of the owner to require of the contractor, before the owner or his agent, architect or superintendent, shall pay or cause to be .paid to said contractor or to his order any moneys or other consideration, due or to become due such contractor, or make or cause to be made to such contractor any advancement of any moneys or any other consideration, a statement in writing, under oath or verified by affidavit, of the names and addresses of all parties furnishing materials and labor, and of the amounts due or to become due each.\u201d (Ill. Rev. Stat. 1983, ch. 82, par. 5.)\nIt is uncontested that Abbott did not give the Klairmonts a contractor\u2019s affidavit. Defendants maintain that the duty imposed upon the contractor by the Act constitutes a condition precedent to enforcement of a lien and Abbott\u2019s failure to comply with this duty bars its claim.\nIt was long ago established that the section 5 requirement for a contractor\u2019s affidavit was:\n\u201c[F]or the benefit of the owner as well as the subcontractor *** [and that the contractor\u2019s failure to make] such statements or waivers *** will not forbid a lien where no demand is made by the owner for them, nor any claim even made that debts to subcontractors existed. In such a case these \u2018prerequisites\u2019 will be considered waived. *** The words referred to are simply a caution to the owner or loan agent *** to demand them if he wanted them.\u201d (Gillespie v. Patrick (1909), 146 Ill. App. 290, 296.)\nThese principles were echoed in Fleming v. Galloway (1918), 212 Ill. App. 226, 233, and Hall v. Harris (1926), 242 Ill. App. 315, 319. It is uncontested that the Klairmonts did not request a contractor\u2019s affidavit from Abbott.\nDefendant insists that the rules stated above apply only when the contractor has made a demand for payment directly on the owner. In this case, Abbott\u2019s contract was with the Klairmonts\u2019 lessee, Alan\u2019s Restaurant Corporation, and the corporation was billed by Abbott. The Klairmonts claim that without a payment demand the owner\u2019s duty to request the contractor\u2019s affidavit does not arise and, in a case like this, the statute can only have meaning if it imposes a condition precedent on the contractor. We find, however, that this case does not turn on a demand for payment, but rather on the owner\u2019s knowledge.\nSection 1 of the Act grants a lien to anyone who contracts \u201cwith one whom the owner has authorized or knowingly permitted to contract\u201d (Ill. Rev. Stat. 1983, ch. 82, par. 1) for the provision of labor, services and material for the improvement of the owner\u2019s property. The words \u201cknowingly permit\u201d are to be understood in the general sense of being aware of and consenting to the initiation of such improvements. (Armco Steel Corp. v. La Salle National Bank (1975), 31 Ill. App. 3d 695, 698, 335 N.E.2d 93.) The trial court here found, and we agree, that \u201cthere\u2019s enough evidence in this record to put on notice the Klairmont interest of the work in progress.\u201d Alfred Klairmont was an agent for his father in the management of the Highland Park building. He was also secretary of the corporation which set up the restaurant and contracted with Abbott. The testimony showed that the Klairmonts were extremely anxious to get the restaurant, which had been sitting idle for some time, open and producing income. Logically, they monitored progress of the remodeling/repair work closely, in anticipation of opening day. Albert testified that he visited his father\u2019s properties on a regular basis and saw workmen on the restaurant premises when he was there. As noted by the trial court, the elder Klairmont \u201cknew or should have known there was electrical work\u201d being done. On these facts we conclude that the Klairmonts knowingly permitted Ladin to contract with Abbott for electrical work to be performed in the Highland Park building owned by them.\nBy knowingly allowing the work to be done, the Klairmonts recognized a benefit to their building. They cannot now defeat Abbott\u2019s claim merely on the basis that demand for payment was made on their lessee rather than directly upon them. It was incumbent upon the Klairmonts to request a contractor\u2019s affidavit from Abbott if they wanted such an affidavit for their own protection. This obligation was not dependent upon a direct demand for payment. Since the duty to provide an affidavit to the Klairmonts never arose, Abbott\u2019s failure to provide such a document was not a condition precedent to a valid claim for lien.\nAdmittedly, the cases which set forth the rules controlling the question at issue are older cases, and the question has not frequently been raised since the rules were established. But, Deerfield Electric Co. v. Herbert W. Jaeger & Associates, Inc. (1979), 74 Ill. App. 3d 380, 392 N.E.2d 914, which the trial court relied upon in denying Abbott\u2019s lien claim, is not inconsistent with the old rules. The trial court read Deerfield as construing the section 5 contractor\u2019s affidavit requirements to be a condition precedent to a valid mechanic\u2019s lien claim by a contractor. Deerfield, however, did not deal with the situation where the owner never requested the contractor\u2019s affidavit. In fact, the opinion states:\n\u201cIt is clear, however, that if the owner requires of the contractor that he furnish a list of subcontractors as described in section 5 of the Act and the contractor fails to comply then the owner may validly discontinue payments to him; if the contractor then stops work he breaches the contract and loses his right to a mechanic\u2019s lien.\u201d (Emphasis added.) (74 Ill. App. 3d 380, 384, 392 N.E.2d 914.)\nIn Deerfield, an agent of the owner had clearly requested an affidavit from the contractor who failed to comply with the request and thus lost his right to a mechanic\u2019s lien. If anything, Deerfield reiterated the rule that a mechanic\u2019s lien will be defeated by the contractor\u2019s failure to comply with section 5 only when the owner has requested a contractor\u2019s affidavit. The case did not make compliance with section 5 a condition precedent to a valid lien claim. We conclude that the trial court erroneously imposed the section 5 requirement as a condition precedent to Abbott\u2019s claim for a mechanic\u2019s lien.\nIn light of our decision that Abbott\u2019s lien claim is not barred by its failure to provide the Klairmonts with a contractor\u2019s affidavit, we need not consider Abbott\u2019s contention that the affidavit issue was improperly raised at trial.\nAbbott also argues that the trial court erred in denying its lien claim on the basis that it had been unable at trial to separate lien-able work from nonlienable work. Evidence was presented at trial that Abbott did a small amount of electrical work on neighboring property that did not belong to the Klairmonts. Also, Marvin Kaplan, an electrical contractor and owner of Abbott, was not able on cross-examination to state separate charges for each individual task performed at the Highland Park building. Thus, the specific costs of the off-site work could not be ascertained during the trial. Citing BRL Carpenters, Ltd. v. American National Bank & Trust Co. (1984), 126 Ill. App. 3d 137, 466 N.E.2d 1166, the trial court held that since the nonlienable work could not be separated from the lienable work, the entire lien was unenforceable. In BRL the contractor performed both lienable and nonlienable work but did not keep records of the allocation of time to each kind of work. The BRL court cited the rule that lienable work must be separable from nonlienable work where a contract calls for both kinds of services, and the total amount due under the contract must be apportionable between the lienable and nonlienable items. (Verplank Concrete & Supply, Inc. v. Marsh (1976), 40 Ill. App. 3d 742, 353 N.E.2d 27.) The BRL court concluded that the amount claimed there could not be properly apportioned and the entire lien claim failed.\nWe note first that in the instant case, unlike BRL, the contract did not call for both lienable and nonlienable work. The separability issue here rises out of Abbott\u2019s electrical work on a proposed outdoor eating area immediately adjacent to the restaurant. Abbott mistakenly believed the property belonged to the building owners. Moreover, while the trial court in the instant case found that the evidence failed to separate and apportion Abbott\u2019s work and charges between the Klairmont property and the off-site property, the evidence also indicated that such an apportionment could be made.\nKaplan testified that he contracted to do the electrical work for Alan Ladin at the Klairmont property on a time and material basis. When explaining about charges for the job, Kaplan stated that he had no records of how long each individual task took, or what materials each task required, because charges for a time and material job are \u201cjust collectively what the job is.\u201d When he was cross-examined about the charges for each individual work item, Kaplan was unable to give individual figures. He indicated that he could not then and there break down the total figure he had in front of him. However, he also asserted that \u201c[i]f I can have an hour to sit down and extract, then I can put together unit prices.\u201d As counsel cross-examined on a total of 34 different work items, Kaplan repeatedly insisted that he could figure out the charges for each one but could not answer on the spot. When asked why he could not state individual charges, Kaplan replied that he didn\u2019t know (from the figures in front of him) the number of feet a wire had been run. He stated: \u201cI don\u2019t know the footages. *** [I]t really is determined on the footages. *** If we run ten feet, we know how many labor units to apply for the ten feet, If we run two hundred and fifty feet, we then know how many units to apply ***.\u201d\nIt is evident to us that Kaplan had the capability of figuring out a separate charge for each work item that was performed. He did not have those figures at his fingertips at trial because charges for the work had originally been based on time, or man-hours, spent on the job, and the cost of materials. If Kaplan had had some time, and access to the dimensions for each task, he could have assigned unit charges (charges per task). A unit price could have been developed for those specific jobs which were done off the Klairmont property and thus were not lienable. In summary, the nonlienable work could have been separated from the lienable work, and the total amount of Abbott\u2019s charges could have been apportioned accordingly.\nWhile plaintiffs were not able to show separability and apportionment during the trial, they should be allowed to do so. In Condee, Inc. v. Chrisman (1976), 38 Ill. App. 3d 729, 348 N.E.2d 461, a lessee contracted for electrical work and then went bankrupt, and the contractor sued the lessor. There was a question as to whether the building where the improvements were made was entirely on lessor\u2019s property. The court held: \u201cUnless it is impracticable to do so, a lien arising from improvements to a building resting on several tracts of land should be apportioned among the owners of those tracts.\u201d (38 Ill. App. 3d 729, 730, 348 N.E.2d 461.) The case was remanded for consideration of apportionment. Likewise, in the case at bar, the improvements were made on two separate tracts of land. The lien should be apportioned according to which work was done on which property. This will require the Klairmonts to pay only for work actually done on their property, which is the lienable work.\nNot only is it permissible to apportion the lien, but to allow plaintiffs to show separability at this point in time would be in keeping with section 39 of the Act which states: \u201cThis act is and shall be liberally construed as a remedial act.\u201d (Ill. Rev. Stat. 1983, ch. 82, par. 39.) While the statute is to be strictly construed with regard to the requirements it imposes for creation of a valid lien (M. L. Ensminger Co. v. Chicago Title & Trust Co. (1979), 74 Ill. App. 3d 677, 393 N.E.2d 663), once those requirements have been strictly fulfilled, the statute should be given a liberal construction so that justice will be done between the parties. (First Federal Savings & Loan Association v. Connelly (1983), 97 Ill. 2d 242, 246, 454 N.E.2d 314; Miller v. Reed (1973), 13 Ill. App. 3d 1074, 302 N.E.2d 131.) As stated by the Connelly court:\n\u201c[T]he purpose of the Act \u2018is to permit a lien upon premises where a benefit has been received by the owner and where the value or condition of the property has been increased or improved by reason of the furnishing of labor and materials.\u2019 Colp v. First Baptist Church (1930), 341 Ill. 73, 76-77.\u201d First Federal Savings & Loan Association v. Connelly (1983), 97 Ill. 2d 242, 246, 454 N.E.2d 314.\nIn the case now before us, the facts indicate that Abbott had a valid contract to perform work on the Klairmont property, that it performed the contract, and that it has never been paid for the work completed. Abbott did the type of work protected by the Mechanics\u2019 Liens Act (Ill. Rev. Stat. 1983, ch. 82, par. 1 et seq.), complied with the requirements for a valid lien, and should not now be entirely prohibited from enforcing its lien because of the inadvertent performance of some of the work on property not belonging to defendants. Abbott\u2019s lien should be enforced to the extent the Klairmont property received the benefit of Abbott\u2019s labors.\nAccordingly, we reverse the judgment entered by the trial court of Lake County and remand this matter for proceedings to consider apportionment of the lien.\nReversed and remanded.\nNASH, P.J., and LINDBERG, J., concur.", "type": "majority", "author": "JUSTICE HOPE" } ], "attorneys": [ "N. Arthur Rubinoff, of Chicago, for appellant.", "Joseph I. Adler and Charles E. Adler, both of Chicago, for appellees." ], "corrections": "", "head_matter": "ABBOTT ELECTRICAL CONSTRUCTION COMPANY, Plaintiff-Appellant, v. ALAN B. LADIN et al., Defendants (First National Bank of Highland Park, as Trustee, et al., Defendants-Appellees).\nSecond District\nNo. 2\u201485\u20140064\nOpinion filed June 24, 1986.\nRehearing denied July 29, 1986.\nN. Arthur Rubinoff, of Chicago, for appellant.\nJoseph I. Adler and Charles E. Adler, both of Chicago, for appellees." }, "file_name": "0974-01", "first_page_order": 996, "last_page_order": 1004 }