{ "id": 520926, "name": "VERNON HILLS III LIMITED PARTNERSHIP, Plaintiff and Counterdefendant-Appellee, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant (Bucon, Inc., d/b/a Butler Construction Company, Defendant and Counterplaintiff-Appellant)", "name_abbreviation": "Vernon Hills III Ltd. Partnership v. St. Paul Fire & Marine Insurance", "decision_date": "1997-04-03", "docket_number": "No. 2\u201496\u20140724", "first_page": "303", "last_page": "311", "citations": [ { "type": "official", "cite": "287 Ill. App. 3d 303" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "501 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1108460 ], "weight": 6, "year": 1991, "pin_cites": [ { "page": "24" }, { "page": "21" }, { "page": "2119" } ], "opinion_index": 0, "case_paths": [ "/us/501/0001-01" ] }, { "cite": "221 Ill. App. 3d 317", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5798850 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "325" }, { "page": "325" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/0317-01" ] }, { "cite": "118 Ill. 2d 389", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3188237 ], "year": 1987, "pin_cites": [ { "page": "401" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/118/0389-01" ] }, { "cite": "212 Ill. App. 3d 505", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2598258 ], "year": 1991, "pin_cites": [ { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/212/0505-01" ] }, { "cite": "69 Ill. App. 3d 696", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3241820 ], "year": 1979, "pin_cites": [ { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/69/0696-01" ] }, { "cite": "112 Ill. App. 3d 438", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5431038 ], "year": 1983, "pin_cites": [ { "page": "442-43" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/112/0438-01" ] }, { "cite": "122 Ill. App. 3d 411", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3524084 ], "year": 1984, "pin_cites": [ { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/0411-01" ] }, { "cite": "99 Ill. 2d 84", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3162933 ], "year": 1983, "pin_cites": [ { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/99/0084-01" ] }, { "cite": "112 Ill. App. 2d 190", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1590893 ], "year": 1969, "pin_cites": [ { "page": "193" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/112/0190-01" ] }, { "cite": "194 Ill. App. 3d 200", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498306 ], "year": 1990, "pin_cites": [ { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/194/0200-01" ] }, { "cite": "170 Ill. App. 3d 221", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3584814 ], "year": 1988, "pin_cites": [ { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/170/0221-01" ] }, { "cite": "181 Ill. App. 3d 345", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498506 ], "year": 1989, "pin_cites": [ { "page": "348" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/181/0345-01" ] }, { "cite": "158 Ill. App. 3d 141", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3577398 ], "year": 1987, "pin_cites": [ { "page": "146" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/158/0141-01" ] }, { "cite": "221 Ill. App. 3d 466", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5795275 ], "year": 1991, "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/0466-01" ] }, { "cite": "137 Ill. 2d 284", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3251657 ], "year": 1990, "pin_cites": [ { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/137/0284-01" ] }, { "cite": "111 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166688 ], "year": 1986, "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0229-01" ] } ], "analysis": { "cardinality": 897, "char_count": 19155, "ocr_confidence": 0.756, "pagerank": { "raw": 1.8435137978699685e-07, "percentile": 0.7224901915130959 }, "sha256": "b03aa1253c7ec63532a6ced2b86168377526779ee4e480853c949759c513a465", "simhash": "1:a2c68c0f4a0f8cd4", "word_count": 3203 }, "last_updated": "2023-07-14T19:23:12.186621+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "VERNON HILLS III LIMITED PARTNERSHIP, Plaintiff and Counterdefendant-Appellee, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant (Bucon, Inc., d/b/a Butler Construction Company, Defendant and Counterplaintiff-Appellant)." ], "opinions": [ { "text": "PRESIDING JUSTICE GEIGER\ndelivered the opinion of the court:\nThe defendant and counterplaintiff, Bucon, Inc. (Bucon), appeals from the April 23, 1996, order of the circuit court of Lake County granting summary judgment in favor of the plaintiff and counterdefendant, Vernon Hills III Limited Partnership (VHLP), on its claim for declaratory judgment. The trial court ruled that Bucon forfeited its mechanic\u2019s lien by failing to commence an action to foreclose the lien within 30 days after receipt of VHLP\u2019s written demand to sue, as required by section 34 of the Mechanics Lien Act (the Act) (770 ILCS 60/34 (West 1994)). On appeal, Bucon argues that the trial court erred in finding that VHLP\u2019s letter of July 29, 1994, constituted a written demand to sue pursuant to section 34 of the Act. We affirm and remand.\nThe facts necessary for the disposition of this appeal are as follows. On February 18, 1993, VHLP contracted with Bucon to design and build a shopping center in Vernon Hills. Bucon was to design and construct all of the buildings, as well as numerous site improvements, including the parking lot and utility connections. The contract provided that Bucon would be paid approximately $15 million for the project. Bucon commenced construction in the spring of 1993, and a certificate of substantial completion was issued on August 22, 1994.\nOn July 21, 1994, Bucon filed a mechanic\u2019s lien against the shopping center in the Lake County recorder\u2019s office. The lien was in the amount of $1,315,249. On August 1, 1994, Bucon received, via certified mail, a letter from VHLP dated July 29, 1994. The letter provides, in pertinent part:\n\"Pursuant to Article 11.4 of that certain Design Build Contract dated as of February 18, 1993, *** between [VHLP] and [Bucon] for the design and construction of a retail shopping center *** located in Vernon Hills, Illinois, this letter shall serve as notice of your breach on the Contract pursuant to Article 11.5.2 of the Contract.\nArticle 11.5.2 of the Contract provides that '[i]n no event may Design/Builder file, or permit those whom it controls or for whom it has legal responsibility under the Contract to file, a mechanics\u2019 *** lien or claim for lien for work performed under the Contract ***.\u2019 However, on July 21, 1994, a claim for lien in the amount of $1,315,249.00 was filed in the Lake County Recorder\u2019s Office ***. This course of action is clearly in violation of the Contract.\nWe hereby demand that you either immediately release your lien or bring suit to enforce it so that this matter can be expeditiously resolved. We fully intend to look to your organization in order to recapture any additional costs we may incur in connection with your actions. In addition, in the event this lien is not released of record immediately, we will pursue all other rights and remedies available in the Contract, at law or in equity in response to your breach and your failure to fulfill the requirements of this letter.\u201d\nOn August 3, 1994, Bucon received a follow-up letter from VHLP\u2019s attorney dated July 28, 1994. The letter provided as follows:\n\"You should be receiving, if you have not received already, a copy of ownership\u2019s letter in connection with the mechanic\u2019s lien you recently filed under Illinois\u2019 Mechanic\u2019s Lien Statute (770 ILCS 60/1, et seq.). It is not the purpose of this letter to alter the contents of ownership\u2019s letter, but I did want to initiate with you a discussion as to why you have filed the lien and what purpose you think it will serve and further to suggest a dialogue to accomplishing the mutual objectives of your company and ownership. If you are so inclined, please give me a call.\u201d\nThereafter, VHLP\u2019s attorney and Bucon\u2019s attorney had several conversations in which they discussed the lien. During these conversations, Bucon\u2019s attorney explained that, although Bucon intended to preserve its rights under the Act, it would nonetheless assist VHLP in closing out the project. VHLP\u2019s attorney reiterated VHLP\u2019s position that Bucon had breached the contract by filing the lien.\nOn August 4 and 17,1994, VHLP\u2019s attorneys wrote Bucon regarding certain paperwork that had to be completed in order to close out the project and to get the property ready for sale. After August 1994, Bucon and VHLP continued to correspond through their attorneys with respect to completing the steps necessary to close out the project. Bucon fully cooperated with these efforts to complete the project.\nOn October 27, 1994, VHLP made a claim to Bucon seeking liquidated damages arising from construction delays on the project. Between November 1994 and August 1995, Bucon and VHLP engaged in. negotiations in an attempt to settle Bucon\u2019s lien and VHLP\u2019s delay claim. The parties arrived at a tentative settlement agreement whereby Bucon would discount its lien from $1,315,249 to $922,901.50 and the parties would mutually release their claims. However, this settlement agreement broke down when the parties were unable to reach an agreement with respect to alleged defects in the building\u2019s roof.\nOn January 13, 1995, VHLP filed suit against Bucon claiming damages in excess of the amount of Bucon\u2019s lien. On February 27, 1995, VHLP filed an amended five-count complaint. Count IV, which is the only count relevant on appeal, sought a declaration that Bucon had forfeited its mechanic\u2019s lien by failing to commence an action to foreclose its lien within 30 days after receipt of VHLP\u2019s written demand to sue as required by section 34 of the Act (770 ILCS 60/34 (West 1994)). In June 1995, Bucon filed a counterclaim against VHLP seeking a judgment in the amount of its contract balance. On August 30, 1995, Bucon filed a separate action seeking enforcement of its lien.\nOn January 19, 1996, VHLP filed a motion for summary judgment on count IV of the amended complaint. VHLP argued that its letter of July 29, 1994, was a written demand, made pursuant to section 34 of the Act, that Bucon commence suit to enforce its mechanic\u2019s lien. Although Bucon received VHLP\u2019s letter on August 3, 1994, it did not file suit to enforce its lien within the next 30 days. VHLP therefore concluded that Bucon had forfeited its lien under section 34 of the Act.\nIn response to the motion, Bucon argued that VHLP\u2019s July 29, 1994, letter was not a written demand to sue under section 34 of the Act. Bucon argued that the letter did not contain any reference to section 34 and did not indicate that Bucon\u2019s failure to commence suit within 30 days would render its lien void. In support of its position, Bucon submitted the affidavit of its attorney stating that he did not understand the July 29, 1994, letter to be a demand pursuant to section 34 of the Act. Bucon\u2019s attorney also stated that he was unaware of section 34 at the time he received the letter and that at no time did VHLP\u2019s attorney mention the statute or its contents. Alternatively, Bucon argued that, even if the July 29, 1994, letter was a written demand to sue under section 34 of the Act, VHLP was estopped from asserting the defense due to its subsequent conduct and attempts to settle the lien.\nOn April 23, 1996, the trial court granted VHLP\u2019s motion for summary judgment and declared Bucon\u2019s mechanic\u2019s lien forfeited and null and void. On May 23, 1996, the trial court made this order final and appealable pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). Bucon filed a timely notice of appeal.\nBucon first argues that the trial court erred in determining that, as a matter of law, VHLP\u2019s July 29, 1994, letter satisfied the statutory demand requirements of section 34 of the Act. Bucon argues that this question is a disputed material fact which precludes the entry of summary judgment.\nThe purpose of a motion for summary judgment is to determine whether a genuine issue of triable fact exists (Purtill v. Hess, 111 Ill. 2d 229, 240 (1986)), and a motion for summary judgment should be granted only when \"the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law\u201d (735 ILCS 5/2\u20141005(c) (West 1994)). In determining the existence of a genuine issue of material fact, the court must construe the evidence strictly against the moving party and liberally in favor of the nonmoving party. Gatlin v. Ruder, 137 Ill. 2d 284, 293 (1990). The disposition of a summary judgment motion is not discretionary and the standard of review is de nova. Quinton v. Kuffer, 221 Ill. App. 3d 466, 471 (1991).\nSection 34 of the Act provides, in pertinent part:\n\"Upon written demand of the owner *** served on the person claiming the lien ***, requiring suit to be commenced to enforce the lien or answer to be filed in a pending suit, suit shall be commenced or answer filed within 30 days thereafter, or the lien shall be forfeited. Such service may be by registered or certified mail, return receipt requested, or by personal service.\u201d 770 ILCS 60/34 (West 1994).\nThe failure of the lienholder to commence suit within 30 days of receipt of a written notice made pursuant to section 34 of the Act operates to forfeit and remove the mechanic\u2019s lien. Pickus Construction & Equipment Co. v. Bank of Waukegan, 158 Ill. App. 3d 141, 146 (1987).\nWe are not aware of any Illinois case that has specifically articulated the precise language required of a written demand to sue made pursuant to section 34 of the Act. Lacking any such judicial interpretation, we will look to the plain meaning of the statute\u2019s language, as well as the legislature\u2019s intent in enacting the statute. See In re Application of County Collector, 181 Ill. App. 3d 345, 348 (1989). The best indication of the legislature\u2019s intent is the statute\u2019s language, and, where the statutory language is unambiguous, the court must enforce the law as written. Oak Brook Park District v. Oak Brook Development Co., 170 Ill. App. 3d 221, 229 (1988). We also note that mechanics lien statutes are in derogation of the common law, and therefore such statutes must be strictly construed. Matthews Roofing Co. v. Community Bank & Trust Co., 194 Ill. App. 3d 200, 205 (1990).\nApplying these rules of statutory construction to the instant case, we conclude that VHLP\u2019s July 29, 1994, letter satisfied the written demand requirements of section 34 of the Act and triggered the tolling of the 30-day limitation period. The plain language of the statute requires only that the owner of the property make a written demand to the lienholder requiring that suit be commenced to enforce the lien. Such a written demand must be served either personally or by registered or certified mail, return receipt requested. VHLP\u2019s letter of July 29, 1994, satisfies all of these statutory requirements: the letter is a written demand by the property owner (VHLP) to the lienholder (Bucon), demanding Bucon \"either immediately release\u201d the lien or \"bring suit to enforce it.\u201d The letter was sent via certified mail, return receipt requested, and Bucon signed for the letter on August 1, 1994.\nBucon correctly notes that the July 29, 1994, letter makes no reference to either section 34 of the Act or the requirement that Bucon file a lien enforcement suit within 30 days. Such information, however, is not statutorily required by section 34 of the Act. We decline to impose additional notice requirements that are not contained within the plain language of the statute. It was not the responsibility of VHLP to educate Bucon, or its attorney, about the operation and effect of the Act. As the July 24, 1994, letter satisfied all of the statutory requirements of section 34, it was effective to trigger the tolling of the 30-day period during which Bucon was obligated to commence suit to enforce its lien.\nBucon also argues that, even if the July 24, 1994, 'letter was a sufficient demand pursuant to section 34 of the Act, VHLP is estopped from raising such a defense by reason of its conduct during the 30-day period after Bucon received the letter. Specifically, Bucon relies on VHLP\u2019s participation in settlement negotiations on Bucon\u2019s lien, as well as VHLP\u2019s repeated requests for Bucon\u2019s assistance with the paperwork necessary to close out the project. This argument is without merit.\nIllinois courts have held that the time limitations contained in the various sections of the Act are jurisdictional and that there is no right to a lien unless the statutory periods are complied with. Muehlfelt v. Vlcek, 112 Ill. App. 2d 190, 193 (1969). These time limitations are not subject to waiver or estoppel, because unlike statutes of limitation, they are not merely a limitation on the remedy afforded under the Act, but rather a condition that must be satisfied before the right to the remedy under the Act exists. Garbe Iron Works, Inc. v. Priester, 99 Ill. 2d 84, 88 (1983); D.M. Foley Co. v. North West Federal Savings & Loan Ass\u2019n, 122 Ill. App. 3d 411, 418 (1984). The failure to comply with the Act\u2019s time limitations results in the loss of the statutory remedy afforded under the Act. Well Done Heating & Sheet Metal Co. v. Ralph Schwartz & Associates, 112 Ill. App. 3d 438, 442-43 (1983).\nHowever, even if the estoppel doctrine could be applied to bar VHLP from asserting the defense provided by section 34 of the Act, the circumstances in the instant case would not support the doctrine\u2019s application. Estoppel applies only in those instances where: (1) the defendant has made some misrepresentation or concealment of a material fact; (2) the defendant had knowledge, either actual or implied, that the representations were untrue at the time they were made; (3) the plaintiff was unaware of the untruth of the representations both at the time they were made and the time they were acted upon; (4) the defendant either intended or expected his representations or conduct to be acted upon; (5) the plaintiff did, in fact, rely upon or act upon the representations or conduct; and (6) the plaintiff has acted on the basis of the representations or conduct such that he would be prejudiced if the defendant is not estopped. Strom International, Ltd. v. Spar Warehouse & Distributors, Inc., 69 Ill. App. 3d 696, 703 (1979). The mere pendency of negotiations conducted in good faith is insufficient to give rise to estoppel. Viirre v. Zayre Stores, Inc., 212 Ill. App. 3d 505, 515 (1991).\nIn making its estoppel argument, Bucon focuses on several letters by VHLP attorneys to Bucon during the 30 days following its receipt of the July 24, 1994, letter. These communications related to (1) the parties\u2019 \"mutual objectives\u201d in resolving matters and closing out the project without resorting to litigation; (2) VHLP\u2019s request that Bucon assist with the paperwork necessary to close out the project; and (3) a plan for the project\u2019s closeout and the deposit of Bu-con\u2019s lien waiver in escrow. Bucon argues that the totality of this conduct creates a question of fact as to whether VHLP \"lulled\u201d Bu-con into not filing a suit to enforce its lien.\nContrary to Bucon\u2019s assertions, however, in none of these letters does VHLP indicate that it was withdrawing its written demand to sue. Rather, these communications discuss the steps necessary to close out the project and express the general hope that litigation could be avoided. Such correspondence does not reasonably support an inference that VHLP was relinquishing its statutory rights pursuant to section 34 of the Act. In fact, VHLP\u2019s attorney expressly indicated in a July 28, 1994, letter that it was not the intent of the communication to alter the contents of \"ownership\u2019s letter in connection with the mechanic\u2019s lien\u201d filed by Bucon. We cannot believe that Bucon was \"lulled\u201d into not filing suit, when its own attorney admitted that he was unaware of the procedural requirements set out by section 34 of the Act. We therefore conclude that VHLP was not estopped from exercising its statutory rights pursuant to section 34 and that the trial court properly entered summary judgment in its favor.\nAs its final argument, Bucon contends that the application of section 34 to forfeit its lien is unconstitutional. Bucon asserts that the written demand provisions of section 34 are insufficient to satisfy the requirements of procedural due process. Bucon argues that it should have been given an opportunity to be heard prior to the deprivation of its property interest in the lien.\nWe do not address the merits of this argument as it has not been properly presented on appeal. Supreme Court Rule 341(e)(7) (155 Ill. 2d R. 341(e)(7)) admonishes appellants that argument in an appellant\u2019s brief shall include \"citation of the authorities *** relied on. *** Points not argued are waived and shall not be raised in the reply brief ***.\u201d\nA reviewing court is entitled to have issues clearly defined with pertinent authority cited and coherent arguments presented; arguments inadequately presented on appeal are waived. Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc., 118 Ill. 2d 389, 401 (1987). Statements unsupported by argument or citation of relevant authority do not merit consideration on review. Holmstrom v. Kunis, 221 Ill. App. 3d 317, 325 (1991). A reviewing court will not become an advocate for, as well as the judge of, points the appellant seeks to raise. Holmstrom, 221 Ill. App. 3d at 325.\nBucon has barely articulated, much less properly supported, grounds for its constitutional argument. The only authority cited by Bucon in its appellate brief is Connecticut v. Doehr, 501 U.S. 1, 115 L. Ed. 2d 1, 111 S. Ct. 2105 (1991), and this authority was cited without comment. We agree with VHLP that Doehr is inapposite to the situation presented here. In Doehr, the United States Supreme Court held that Connecticut\u2019s ex parte attachment procedure was unconstitutional because it permitted trial courts to make a prejudgment attachment of real estate without prior notice or hearing to the landowner. 501 U.S. at 24, 115 L. Ed. 2d at 21, 111 S. Ct. at 2119. Section 34 of the Act does not impress a lien on a landowner\u2019s property interest; instead, the section creates a statutory limitations period for a lienholder to enforce its lien. Because Bucon has failed to cite any relevant authority to support its argument, it has waived the argument pursuant to Rule 341(e)(7).\nFor the foregoing reasons, the judgment of the circuit court of Lake County is affirmed, and this cause is remanded for further proceedings consistent with this decision.\nAffirmed and remanded.\nINGLIS and HUTCHINSON, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE GEIGER" } ], "attorneys": [ "Peter G. Swan, of Emalfarb, Swan & Bain, of Highland Park, and Matthew R. Hale and Troy H. Ellis, both of Polsinelli, White, Vardeman & Shalton, of Kansas City, Missouri, for appellant.", "John H. Anderson, of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellee." ], "corrections": "", "head_matter": "VERNON HILLS III LIMITED PARTNERSHIP, Plaintiff and Counterdefendant-Appellee, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant (Bucon, Inc., d/b/a Butler Construction Company, Defendant and Counterplaintiff-Appellant).\nSecond District\nNo. 2\u201496\u20140724\nOpinion filed April 3, 1997.\nPeter G. Swan, of Emalfarb, Swan & Bain, of Highland Park, and Matthew R. Hale and Troy H. Ellis, both of Polsinelli, White, Vardeman & Shalton, of Kansas City, Missouri, for appellant.\nJohn H. Anderson, of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellee." }, "file_name": "0303-01", "first_page_order": 321, "last_page_order": 329 }