In The Circuit Court Of Cook County, Illinois

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION MECHANICS LIEN SECTION

TRIUMPH RESTORATION, INC. ) an Illinois Corporation, ) ) Plaintiff, ) -vs- ) No. 09 CH 14702 ) KKLLM, INC., et al., ) Hon. Lewis M. Nixon, ) Judge Presiding Defendants. )

NOTICE OF FILING

To: Mark R. Ordower 333 S. Des Plaines St. Chicago, IL 60661 (312) 441-0620

PLEASE TAKE NOTICE that on July 10, 2009, we filed with the Clerk of the Circuit Court of Cook County, 50 W. Washington St., Chicago, IL 60602, the attached Response to Defendants’ Motion to Dismiss Count I of Complaint Pursuant to Section 2-619, a copy of which is served on you.

______Law Offices of Burton A. Brown 205 West Wacker Drive, Suite 922 Chicago, Illinois 60606 (312) 236-5582 Atty. No. 91197 PROOF OF SERVICE BY MAIL

Babak Bakhtiari, an attorney, certifies that a true and correct copy of this Notice and attachments were mailed to the above party to whom this Notice is directed at the above indicated address this July 10, 2009 from the U.S. Mail located at 205 West Wacker Drive, Chicago, Illinois before 5:00 p.m. with proper postage prepaid.

______

1 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION MECHANICS LIEN SECTION

TRIUMPH RESTORATION, INC. ) an Illinois Corporation, ) ) Plaintiff, ) -vs- ) No. 09 CH 14702 ) KKLLM, INC., et al., ) Hon. Lewis M. Nixon, ) Judge Presiding Defendants. )

TRIUMPH RESTORATION, INC.’S RESPONSE TO DEFENDANTS’ MOTION TO DISMISS COUNT I OF COMPLAINT

NOW COMES the Plaintiff, Triumph Restoration, Inc. (“Triumph”), through its attorneys, The Law Offices of Burton A. Brown, and for its Response to Defendant Fletcher

Commons LLC, Citimortgage, Inc., Gary Frisch and Ora Frisch’s (collectively, “Defendants”) motion to dismiss Count I of Triumph’s Complaint under §2-619, states as follows.

Summary of Argument

Defendants contend that Triumph’s lien should have allocated among the buildings in the

Fletcher Place project, claiming that a portion of the work was allegedly completed more than four months before the lien was filed. However, the building that Defendants claim was completed in August 2008 was in fact not completed at that time because at that time only the caulking had been installed, not the exterior sealant. As shown by the attached affidavits,

Triumph’s contract called for caulking and exterior sealant. The sealant was not completed as to any of the buildings until October 2008. Thus, no portion of the lien was untimely because the contract was not completed as to any building until well within the time allowed for filing of the lien.

1 Even if the caulking work was considered separate and final before the sealant was applied, the Mechanics Lien Act states that the four-month filing period is only unenforceable as to third parties. Thus, regardless of the disputed question about when the work was completed, the lien would still be enforceable against the owner, Fletcher Commons LLC.

Argument

When considering a §2-619 motion to dismiss, the court must determine whether an issue of material fact exists and whether the defendant is entitled to judgment as a matter of law.

Dewan v. Ford Motor Co., 363 Ill. App. 3d 365, 368, 842 N.E.2d 756 (1st Dist. 2005). The court accepts plaintiff’s well-pled facts as true and draws all reasonable inferences in favor of the plaintiff. Id.

I. Triumph’s Lien Was Timely As To All Properties Under the Contract, Thus No Apportionment Was Required.

A. The Contract Was Not Completed As To Any Building Until the Sealant Was Applied in October 2008, Well Within the Time Allowed to File the Lien.

Defendants claim that Unit 1W was “finished” in August 2008, and that therefore the lien should have allocated its claims because the lien was untimely as to Unit 1W.

However, it is clear that the work was not finished as to Unit 1W or any other building until the sealant was applied in October 2008. The scope of the contract was to provide caulking and sealant to the properties. See Aff. of Alice Watrobka, attached as Exhibit 1. The applicable legal test of when a contract has been completed is “whether the work was performed and the material supplied as part of the original contract, or for the purpose of correcting defects or making repairs.” MQ Constr. Co. v. Intercargo Ins. Co., 318 Ill. App. 3d 673, 682-83, 742

N.E.2d 820 (1st Dist. 2000). Clearly, the sealant work was not merely for the purpose of correcting defects or making repairs. Rather, it was specifically required by the contract per the directions of Jeff Terrana, KKLLM’s superintendent. See Aff. of Rob Pucinska, attached as

2 Exhibit 2. Triumph’s sealant work was not completed as to any of the buildings until October

13, 2008, well within the time allowed to file its lien, which was filed on January 9, 2009. See

Exhibits 1-2; see also timesheets attached as Exhibit 1-A. Thus, Triumph’s work under the contract was not completed until the sealant was applied, which was finished on all three buildings in October 2008. In sum, the caulking was only half of the work to be done.

Defendants’ cited case of Steinberg v. Chicago Title & Co., 142 Ill. App. 3d 601, 491

N.E.2d 1294 (1st Dist. 1986) fully supports Triumph’s position. In Steinberg, the court ruled that the contractor was required to apportion his lien only because some of the work was completed more than four months prior to filing of the lien. 491 N.E.2d at 1300. Here, on the other hand, no portion of Triumph work was completed under the contract until the sealant was completed on all three buildings in October 13, 2008, which was well within four months of

Triumph’s lien, filed on January 9, 2009. Thus, Steinberg does not contradict Triumph’s position.

B. Time and Material Contracts Such as This One Do Not Require Serial Liens.

Triumph’s contract for the Fletcher Place work was on a “time and material” basis, per their usual practice with KKLLM. See Aff. of Watrobka, Exhibit 1. Thus, Triumph’s contract for caulking and sealing work was not done for a predetermined lump sum, but instead was to be billed on a time and material basis. Under such a scenario, the Mechanics Lien Act does not require a lien to be filed after each delivery and installation of materials. See Weil v. Bomash,

237 Ill. App. 544, 549 (1st Dist. 1925) (absurd to require contractors to file new notice of lien after every delivery of material and labor); Calumet Lumber, Inc. v. Mid-America Industrial,

Inc., 1996 U.S. Dist. LEXIS 892, at *11 (N.D. Ill. 1996) (reasoning in Weil remains sound), affirmed, 103 F.3d 612 (7th Cir. 1997). Thus, the notice period did not begin to run in August

3 because Triumph was not required to file “serial” liens after each visit to the worksite. Rather, as held in Weil and Calumet Lumber, time and material contracts require a notice of lien only after the contract is completed—i.e., once the last installation and delivery took place.

II. Even if Part of the Contract Were Deemed Completed in August 2008, the Lien Would Only Be Unenforceable as to Third Parties, Not as to the Owner.

The Mechanics Lien Act (“Act”) and Illinois courts are clear that the apportionment requirement arises under Section 7 of the Act, which provides for notice to third parties. Thus the courts have held that even if a lien was required to be apportioned, it is only unenforceable as to third parties, not the owner. Section 7 of the Mechanics Lien Act states this in plain terms:

“No contractor shall be allowed to enforce such lien against or to the prejudice of any other creditor or incumbrancer or purchaser, unless within 4 months after completion . . . he or she shall file . . . a claim for lien.” 770 ILCS 60/7 (emphasis added). Thus, the statute plainly requires the four-month period in order to provide notice to third parties only—not the owner

Fletcher Commons LLC.

Accordingly, even if apportionment was required, the lien becomes unenforceable only as to third parties. The leading case on the subject is the Illinois Supreme Court’s decision in First

Federal Savings & Loan Association v. Connelly, 97 Ill. 2d 242, 454 N.E.2d 314 (1983). In

Connelly, the court quoted Section 7 of the Act and held that when the lien is filed within four months of the completion on each of the parcels that are the subject of the claim, then “all third parties receive notice of the lien within the four-month period intended by the legislature.” Id. at

250, 454 N.E.2d at 318 (emphasis added). Thus, the court recognized that the apportionment requirement is for the benefit of third parties only. This is in line with Section 7’s plain terms.

Similarly, the federal court in Calumet Lumber, Inc. v. Mid-America Industrial, Inc. stated that under Section 7, “a lien is unenforceable against third parties” unless the contractor

4 files a lien claim within four months of the completion of the contract. 1996 U.S. Dist. LEXIS

892, at *7 (N.D. Ill. 1996), affirmed, 103 F.3d 612 (7th Cir. 1997). Thus, even if allocation was required, the lien would be unenforceable only as to third-party purchasers and encumbrancers, not Fletcher Commons.

Conclusion

Triumph’s contract was not completed as to any building until October 2008, which was within the time allowed for filing of the lien. Accordingly apportionment was not required.

Even if it was required, the lien would still be enforceable against the owner Fletcher Commons

LLC. Taking the well-pleaded facts as construed most favorably toward Triumph, Defendants are not entitled to a judgment as a matter of law and the motion to dismiss Count I of the

Complaint must be denied.

Respectfully Submitted, Law Offices of Burton A. Brown

______Attorneys for the Plaintiff

Law Offices of Burton A. Brown Burton A. Brown Babak Bakhtiari 205 West Wacker Drive, Suite 922 Chicago, Illinois 60606 (312) 236-5582 Atty. No. 91197