North Shore Community Bank & Trust Co. v. Sheffield Wellington, LLC

Illinois Official Reports

Appellate Court

North Shore Community Bank & Trust Co. v. Sheffield Wellington LLC,

2014 IL App (1st) 123784

Appellate Court NORTH SHORE COMMUNITY BANK AND TRUST COMPANY,

Caption Plaintiff and Counterdefendant-Appellee, v. SHEFFIELD

WELLINGTON LLC, Defendant and Counterdefendant (Bluewater

Capital Development, Inc., and Premier Roofing, Inc., Defendants and

Counterplaintiffs-Appellants; SMH Development, LLC, Sheffield

Avenue Investors, LLC, and Employees Retirement Plan of

Consolidated Electrical Distributors, Inc., Counterdefendants).

District & No. First District, Fifth Division

Docket Nos. 1-12-3784, 1-13-0018 cons.

Filed September 26, 2014

Held The trial court’s entry of summary judgment for defendant owners in

(Note: This syllabus plaintiffs’ action to foreclose their mechanics’ liens was reversed and

constitutes no part of the the cause was remanded for further proceedings, since the liens were

opinion of the court but facially enforceable as a matter of law, the incorrect dates used by

has been prepared by the plaintiffs as to the completion of their work did not invalidate their

Reporter of Decisions claims or constitute binding judicial admissions, especially when the

for the convenience of incorrect dates did not materially affect defendants’ right to notice

the reader.) under the Mechanics Lien Act, and under the circumstances, the Act

would be construed liberally to give effect to its remedial purpose, and

plaintiffs did provide a “brief statement” of the contracts at issue;

furthermore, the appellate court rejected the claim that the statement

of the amount owed in one of the claims was fraudulent on its face and

the trial court erred in denying plaintiffs leave to amend their claims

with new completion dates.

Decision Under Appeal from the Circuit Court of Cook County, No. 09-CH-16804; the

Review Hon. Lisa R. Curcio, Judge, presiding.

Judgment Affirmed and reversed in part; cause remanded with instructions.

Counsel on Robert P. Groszek and Paul E. Peldyak, both of Chicago, for

Appeal appellants.

James M. Dash and Autumn L. Sharp, both of Carlson Dash, LLC, of

Chicago, for appellee.

Panel JUSTICE GORDON delivered the judgment of the court, with

opinion.

Justices McBride and Taylor concurred in the judgment and opinion.

OPINION

¶1 The issue in this appeal concerns whether, under the Mechanics Lien Act (the Act) (770

ILCS 60/1 et seq. (West 2008)), a contractor can file a mechanics lien with an incorrect

completion date and then amend the filing with a different completion date when the contractor

forecloses on the lien. Bluewater Capital Development, Inc. (Bluewater), and Premier

Roofing, Inc. (Premier), appeal the trial court’s granting the motion of North Shore

Community Bank and Trust Company (the Bank), Sheffield Avenue Investors, LLC (SAI),

and Employees Retirement Plan of Consolidated Electrical Distributors, Inc. (ERPCED), for

summary judgment.1 Bluewater also appeals the denial of its motion for summary judgment.

¶2 Plaintiffs contend (1) that the Bank released its mortgage on the subject property and does

not have standing; (2) that the trial court erred when it found that the facially valid dates of

completion stated on plaintiffs’ lien claims constituted binding judicial admissions; (3) that

plaintiffs timely filed their lien claims and appropriately complied with all requirements of the

Act; and (4) that the trial court erred when it granted summary judgment against the plaintiffs

and when it denied plaintiffs’ motions for leave to amend their complaints alleging new

completion dates within the statutory period. Bluewater additionally claims that there are no

issues of material fact precluding summary judgment in its favor.

¶3 For the reasons that follow, we reverse the grant of summary judgment in defendants’ favor

and affirm the denial of Bluewater’s motion for summary judgment.

1

The cases are separate appeals by two different mechanic’s lien claimants in the same lower

court case that were consolidated on this appeal.

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¶4 BACKGROUND

¶5 I. The Property and the Parties

¶6 Bluewater and Premier (collectively, plaintiffs) each performed construction work on the

subject property (property), a commercial building located at 2954-58 Sheffield Avenue in

Chicago, Illinois. At the time plaintiffs performed their work, Sheffield Wellington LLC

(Sheffield) was the owner of the property and SMH Development, LLC (SMH) was its general

contractor. Since Seth M. Harris (Harris) was the sole member-manager of both Sheffield and

SMH, they are referred to collectively herein as “the owner” unless otherwise noted.2

¶7 On May 29, 2008, the owner executed and delivered a “construction mortgage” on the

property to the Bank for a loan in the principal amount of $2.65 million. As “additional

security” for the loan, the owner assigned the Bank an interest in “rents and leases *** and

income” from the property. Among other terms of the “Construction Mortgage, Security

Agreement, Assignment of Leases and Rents and Fixtures Filing” (the mortgage), the owner

agreed to “keep the [property] free from mechanics *** liens.” The owner also agreed to

“complete within a reasonable time any Improvements now or at any time in the process of

erection upon the [property].”

¶8 Under the mortgage, the owner could be deemed in default if the owner failed to “pay any

installment of principal or interest *** on the date when due, or *** within five (5) days.” In

other events where the owner “failed to perform any other obligation” under the mortgage, the

owner would “have a period of thirty (30) days *** to cure” the failure before an “Event of

Default [could] be deemed to exist.” If an “Event of Default occur[ed],” the Bank retained the

option to declare all unpaid principal and interest “immediately due.”

¶9 On May 15, 2009, the Bank filed an action to foreclose its mortgage on the property. The

Bank alleged (1) that, on April 2, 2009, the owner “defaulted under the terms of the mortgage”;

(2) that the owner “failed to pay the amount due and owing under the Promissory Note”

accompanying the mortgage; and (3) that of the original loan amount of $2.65 million, the

principal amount due was $2,609,978.89, the interest accrued was $26,451.05, and the total

amount due to the Bank was $2,637,535. The Bank further alleged that the owner entered into

leases with two separate commercial tenants, that the owner was obligated to complete certain

improvements on the property under those leases, and that the owner had abandoned those

improvements before completion. The Bank alleged that “one tenant ha[d] notified the [owner]

of the [owner’s] default under the lease,” and that “the other tenant [was] threatening to find

alternate space if the improvements *** [were] not completed.”

¶ 10 As provided for in the terms of the mortgage, the Bank requested that a court-appointed

receiver take immediate possession of the property. On June 4, 2009, the court granted the

Bank’s request to appoint Richard Wanland, Jr., as receiver, giving him “full power and

authority with respect to the control, management, and improvement of the property” as well

as “full power to market the property.” However, “[a]ny sale of the property [had to] be

approved by the court.”

¶ 11 On March 17, 2010, Wanland reported to the court that “[the Bank] ha[d] reached an

agreement to sell the property” to SAI. Accordingly, Wanland presented the sale to the court

2

Notwithstanding this shorthand description, neither Harris nor any entity of Harris owned the

property at the time of this appeal. The current owner of record is SAI.

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for approval. The court approved it, finding that “the sale does not affect the validity,

perfection, priority, or amount of any claim for mechanics lien against the property, all of

which remain for future adjudication.” The court then dismissed the owner3 from the Bank’s

complaint to foreclose the mortgage.

¶ 12 On March 26, 2010, Jeff M. Galus, a commercial banking officer for the Bank, signed and

executed a release of the mortgage. A notary public certified that “Galus *** of North Shore

Community Bank and Trust Company *** acknowledged [before the notary] that he signed

and delivered the [release] *** for the uses and purposes set forth in the [release].” However,

according to the verified affidavit of the Bank’s senior vice president, Christopher Swieca, “the

release has not been delivered pursuant to the agreement of the parties and remains in escrow

pending the resolution of this case.” The Bank’s mortgage, thus, “remains of record.”

¶ 13 On April 15, 2010, SAI acquired the property by special warranty deed.4 SAI then granted

a mortgage to ERPCED. The Bank, SAI, and ERPCED are collectively referred to herein as

“defendants.”

¶ 14 II. Bluewater Capital Development, Inc.

¶ 15 A. Claim for Mechanics Lien

¶ 16 Bluewater entered into an agreement with the owner to furnish labor and materials to

construct an office at the property. According to the discovery deposition of Bluewater’s

president, Roi Kiferbaum, this agreement was created through various “proposals” and

“change orders” made by the parties on December 3, 2008; December 9, 2008; December 16,

2008; and December 28, 2008. Kiferbaum testified that the owner “often [accepted the

proposals and change orders] through a telephone call or onsite meeting.” According to

Kiferbaum’s testimony, Bluewater “did [not] have a written contract with any SMH entity” of

the owner. As noted, the contract was created by various proposals and change orders.

¶ 17 Bluewater began work on the property but did not complete its work, claiming it was not

paid under the terms of their agreement with the owner. According to its “Subcontractor’s

Notice of Claim and Claim for Mechanics Lien,” Bluewater alleges that (1) it entered into a

“written contract” with the owner on December 16, 2008; (2) the total contract price was

$218,050; (3) it “substantially” completed its work on Sunday, January 4, 2009; (4) the value

of the work it performed and the materials it provided totaled $131,755; and (5) the owner had

paid Bluewater only $30,000, leaving a $101,755 balance.

¶ 18 On April 3, 2009, Bluewater filed its mechanics lien claim and served the owner and the

Bank with notice of the lien. In its action to foreclose its mortgage on the property dated May

15, 2009, the Bank named Bluewater as a defendant. On August 21, 2009, Bluewater

counterclaimed to foreclose its mechanics lien against the Bank, Sheffield, and SMH. In this

counterclaim, Bluewater alleges January 4, 2009, as the date of completion. On December 15,

3

Sheffield was the only entity of the owner dismissed in the trial court’s order.

4

On October 14, 2010, the court transferred the case to the mechanics lien section of the chancery

division because the “[d]eed *** resolved [the Bank’s] foreclosure claim, [but] mechanics lien issues

remain.”

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2009, Bluewater obtained a default judgment against Sheffield and SMH, jointly and severally,

for $101,755 after they failed to file an answer to Bluewater’s counterclaim.

¶ 19 On December 5, 2011, Bluewater filed a motion for summary judgment against all

remaining parties in its action. Bluewater attached Kiferbaum’s affidavit to the motion, which

claimed Bluewater completed its work on the property on January 4, 2009.

¶ 20 B. Discovery

¶ 21 In its original document production, Bluewater provided a self-prepared timeline of the

project and a series of emails between Kiferbaum and the owner from which the timeline was

based. In an email dated December 16, 2008, the owner responded to Kiferbaum’s specific

questions regarding how the owner wanted certain improvements on the property to be made.

In another email, dated December 17, 2008, Kiferbaum sent the owner “a list of [approved]

items [that they] discussed at [their] site meeting on 12/16/08.” In another email, dated

Tuesday, December 30, 2008, the owner “accept[ed Bluewater’s] $4600 proposal to pour the

concrete floor at the new office floor” and promised to “give [Bluewater] a signed proposal on

Monday [January 5, 2009] when [Bluewater] pour[ed] it.”

¶ 22 Bluewater stated in its timeline of the project that Kiferbaum “made several attempts to

resolve payment issues without success.” In an email dated February 10, 2009, the owner

requested that Kiferbaum “send [the owner] all of the open invoices” for the work completed

by Bluewater. In another email, dated February 20, 2009, Kiferbaum told the owner that he

“would be more [than] willing to discuss a solution that would be beneficial to both of us and

least disruptive to either one’s business.” In an email dated March 9, 2009, Kiferbaum asked

the owner about its status in “resolving the payment issue” because it had “been over a week

since [they] last spoke and [Kiferbaum had] not heard anything.”

¶ 23 Additionally, Kiferbaum appeared for a discovery deposition on January 23, 2012.

Kiferbaum testified that Bluewater worked on the property from December 2008 through early

January 2009.

¶ 24 Kiferbaum was questioned about the date that Bluewater concluded work:

“COUNSEL: So the 27th of December would be the last day of actual physical

work?

KIFERBAUM: No. Well now that I’m thinking about it, because there was the

concrete work which was then paid by [Kiferbaum’s father] ***.

***

COUNSEL: Okay. So based on these checks, unless you owe money to somebody

for work after December 27 which you’ve said you don’t, then the last date of work by

Bluewater would have been or on behalf of Bluewater would have been December 27,

2008; is that right?

KIFERBAUM: Yes.

***

COUNSEL: Now in Paragraph 13 [of Kiferbaum’s affidavit] it says between the

period of December 16 and January 4, 2009 Bluewater furnished the labor and

materials [to the property]. *** In fact, as we’ve gone through, that actually happened

starting somewhere around December 5th give or take and ending on December 27th;

correct?

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KIFERBAUM: Yes. Correct.

COUNSEL: [Paragraphs] 14 and 15 are just flat out wrong as far as the date goes;

correct?

KIFERBAUM: As far as January 4th?

COUNSEL: Yes.

KIFERBAUM: I mean that was an approximation when we just decided we’re not

continuing. This project’s not, we’re not continuing to perform work.

COUNSEL: So the last date on the project was on December 27th, 2008?

KIFERBAUM: Not necessarily.

COUNSEL: Hang on. Hang on. But you made the mental decision on January 4th

that you were no longer going to go farther, do I have that right?

KIFERBAUM: Yes.”

¶ 25 Kiferbaum was further questioned about the cement work his father, Hanan Kiferbaum,

completed. He testified that his father paid for the concrete work and that “the idea was that

Bluewater was going to reimburse him on that particular item.” However, Kiferbaum testified

that his father was never reimbursed and that he could not recall which date his father

performed the concrete work. When Kiferbaum was asked whether Bluewater had ever

employed anyone other than himself, Kiferbaum responded, “At one point, and I don’t know if

it’s considered to be as an employee or subcontractor, my father, Hanan Kiferbaum, had

worked on projects with me.”

¶ 26 Finally, Kiferbaum was also questioned as to how he valued the work done on the property

at $131,755 in light of Bluewater’s document production:

“COUNSEL: When did you do this [calculate the amount for the lien]?

KIFERBAUM: Approximately the time when the lien was filed.

COUNSEL: Okay. So that was at least a good three months or so after you were off

the job; correct?

KIFERBAUM: Correct.

COUNSEL: So what did you do? Did you sit in your office and say, hum, I think I

remember that being 100% complete; I think I remember that being 85% complete?

KIFERBAUM: Yes.

COUNSEL: So you didn’t go [to the property] and actually take measurements;

correct?

KIFERBAUM: I had no access to the site.

COUNSEL: So you could be off by ten percent in some cases?

KIFERBAUM: Sure, I could be.

COUNSEL: Could be off by 20%.

KIFERBAUM: I could not say for–I mean I–This is based on my best recollection

of what was completed based on material purchased, *** based on what my judgment

as contractor, as the subcontractor was.

***

COUNSEL: So basically, it is your opinion; correct?

KIFERBAUM: Yes.

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***

COUNSEL: You don’t have any documents that show how much labor was

actually put into the project by Bluewater; correct?

KIFERBAUM: No.

***

COUNSEL: The only documents that you have show approximately $25,629.93 of

materials including the temporary heat [sic] that were put into the project; is that right?

KIFERBAUM: Yes.

COUNSEL: According to your judgment, Bluewater should be paid a grand total of

$131,755 for its work on the project; correct?

KIFERBAUM: Yes.”

¶ 27 C. Defendants’ Response and Cross-Motion for Summary Judgment

¶ 28 Defendants responded to Bluewater’s motion for summary judgment and filed a

cross-motion for summary judgment on April 3, 2012. Defendants’ response argued that (1) at

best, Bluewater produced documentation accounting for only $64,351 in expenditures on the

property and, therefore, had not produced sufficient evidence to supports its claim for

$101,755; and (2) at the very least, material issues of fact existed as to the date of completion

given the varying dates provided by Bluewater over the course of the litigation.

¶ 29 To its cross-motion for summary judgment against Bluewater, defendants relevantly

attached Bluewater’s lien claim and the entirety of its document production. The cross-motion

argued that because the Act must be strictly construed against Bluewater, (1) Bluewater failed

to comply with section 24 of the Act because it failed to serve notice of claim to the Bank

within 90 days of its only completion date supported by evidence (December 27, 2008); (2)

Bluewater could not prove it worked on Sunday, January 4, 2009; and (3) Bluewater failed to

perfect its claim under section 7 of the Act because it described the contract in its lien claim as

“written,” but never produced a signed written contract to corroborate this description.

Therefore, defendants argued, the lien was unenforceable against the Bank, SAI, and

ERPCED.

¶ 30 On May 18, 2012, Bluewater responded to defendants’ cross-motion for summary

judgment and denied that its claim was not perfected. Bluewater claimed that while the January

4, 2009, date was mistaken, the actual completion date was not December 27, 2008, but

January 5, 2009, and thus, within 90 days of its notice of claim to the Bank.

¶ 31 To this reply, Bluewater attached the full deposition of Kiferbaum and the affidavit of

Keith Thomas, senior project manager for SMH, who averred that on December 30, 2008,

SMH accepted a change order proposal from Bluewater to pour concrete and “authorized the

work to be performed on Monday, January 5, 2009,” and that the concrete work was ultimately

completed.

¶ 32 III. Premier Roofing, Inc.

¶ 33 A. Claim for Mechanics Lien

¶ 34 According to the “General Contractor’s Claim for Mechanics Lien” filed by Premier

Roofing, Inc., Premier entered into a contract on October 30, 2008, with SMH to remove the

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old roof on the property and install a new roof. According to the claim, Premier completed all

work on the contract on February 27, 2009. The claim further alleges that Premier is due the

full contract price of $44,454 for its work on the property.

¶ 35 Premier filed its mechanics lien claim on June 26, 2009. The lien claim stated that “the

claimant [is] Premier Roofing and Jo[seph] Birt,” and that “claimant made a contract *** dated

October 30, 2008 with SMH Development, LLC under which claimant agreed to provide all

necessary labor, material, and work.”

¶ 36 On November 15, 2010, Premier counterclaimed against defendants to foreclose its

mechanics lien. The counterclaim alleged that “on or about January 8, 2009,” Premier entered

into a contract with “Seth Harris and d/b/a SMH Development LLC, and d/b/a Sheffield

Wellington LLC.” The counterclaim alleged that Premier was due the full contract price and

completed its last substantial work on the property on February 27, 2009. On December 13,

2010, the circuit court permitted Premier to intervene in the Bank’s foreclosure proceedings.

¶ 37 B. Discovery

¶ 38 On January 23, 2012, Premier produced documents and served sworn answers in response

to the Bank’s document requests and interrogatories. Question 14 of the interrogatories

requested Premier to “[s]tate the first and last date upon which [Premier] furnished labor

and/or materials to the project and identify all documents evidencing these dates.” Premier

responded that “the date the project began was November 13, 2008, and the last date of the

project [was] December 29, 2008, and see exhibit A and J of the production request.” Exhibits

A and J of the production request contained timesheets related to the project, the latest of

which was dated December 29, 2008.

¶ 39 On April 9, 2012, Premier served amended responses to the Bank’s document requests and

written interrogatories. At this time, Premier produced two additional timesheets related to its

work on the property, one dated February 9, 2009, and the other dated March 4, 2009.

¶ 40 Premier’s president, Joseph Birt, appeared for a discovery deposition on April 18, 2012.

Joseph testified that Premier keeps time records of its projects “in a [bound] book that goes to

and from a job on a daily basis.” He testified that the person in charge of Premier’s project on

the worksite was to “make a list of the people on the site, the time they start, and the time they

finish.” Joseph testified that the end of each week, Ann Birt (his wife and vice president of

Premier) “total[s] up the hours, figure[s] out the rate of pay, [and] write[s the workers] a

[handwritten] check.” Joseph further testified that pages remain bound in the book, and that the

book is stored on a shelf when all the pages are filled. He testified that he has “many years of

[such] books.”

¶ 41 Additionally, Joseph was asked about the completion date stated in Premier’s

counterclaim. He testified that he “believe[d]” that the February 27, 2009, completion date

came from “documents,” although he stated that he did not know who picked that date for the

complaint.

¶ 42 Moreover, Joseph was asked why the December 27, 2008, completion date originally

sworn to in response to the Bank’s written interrogatories was amended to March 4, 2009.

Joseph testified:

“JOSEPH: How did we come up with another date?

COUNSEL: Yes.

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JOSEPH: We didn’t look too deeply into it when we were looking for this

paperwork.

COUNSEL: You didn’t look too deeply into it?

JOSEPH: No, we didn’t look deep enough into it.

COUNSEL: Well, I thought you told me–

JOSEPH: My wife, who was asked to look for this stuff, didn’t know specifically.

This is the first time this has ever happened to us as I told you before. I never had this

happen before. She looked for stuff that she thought she was supposed to present. She

did it to the best of her ability. When we found out we needed more, we looked a little

further back and found more.”

Joseph then testified that the February 9 and March 4 timesheets were not among the

documents in the original production because “there’s a month of a difference in some of these

documents. It’s further back in the book.”

¶ 43 Finally, Joseph testified that Harris presented him with a check on Friday, February 27,

2009. However, Joseph was unable to deposit the check because of insufficient funds in

Harris’ account. At the time Harris presented Joseph with the check, Harris requested that

Premier come back the next week to complete the project. Joseph testified that the next

Monday and Tuesday were too cold to complete the work, and that Premier was not able to

complete its project until March 4 because the bricklayer had not yet “finished with the wall

[sic] to cleaning them up and pointing them.”

¶ 44 C. Defendants’ Motion for Summary Judgment

¶ 45 On August 16, 2012, defendants filed a motion for summary judgment against Premier

arguing that Premier failed to strictly comply with section 7 of the Act, which states:

“No contractor shall be allowed to enforce such lien against or to the prejudice of any

other [third-party] creditor or incumbrancer or purchaser, unless [(1)] within 4 months

after completion *** he or she shall either bring an action to enforce his or her lien

therefor or shall file in the office of the recorder *** a claim for lien, [(2)] verified by

the affidavit of himself or herself, or his or her agent or employee, which shall consist

of [(3)] a brief statement of the claimant’s contract, [(4)] the balance due after allowing

all credits, and [(5)] a sufficiently correct description of the lot ***. *** No such lien

shall be defeated to the proper amount thereof because of an error or overcharging on

the part of any person claiming a lien therefor under this Act, unless it shall be shown

that such error or overcharge is made with intent to defraud ***.” 770 ILCS 60/7(a)

(West 2008).

To their motion for summary judgment, defendants attached the entirety of Premier’s

document production, its responses to the written interrogatories, and the deposition testimony

of Joseph.

¶ 46 First, defendants argued that Premier had not timely filed or recorded its claim as required

by section 7 of the Act. Defendants asserted that Premier is bound by, cannot contradict, and

cannot amend the February 27, 2009, completion date that Premier originally stated.

Therefore, defendants argued, because Premier cannot produce evidence that it did in fact

work on February 27, 2009, its lien claim is unperfected and unenforceable against defendants

because it was not timely filed. Second, defendants argued that Premier’s claim is unperfected

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under section 7 because the claim incorrectly described Joseph as contracting in a personal

capacity with SMH.

¶ 47 Premier replied to defendants’ motion that the actual date of completion was March 4,

2009. In support of this date, Premier attached the affidavits of Ann Birt, Jack Hartnett, a

foreman for Premier on the property, and Christopher Birt, Joseph’s brother and an employee

of Premier.

¶ 48 Ann’s affidavit stated that after the original document production, Joseph “informed her

that he believed that December 29, 2008, was not the last day of work on [the] project because

the work was not finished when he received” the check from Harris on February, 27, 2009. She

stated: “At my husband’s request I re-examined our time record books including the records

for 2009 and noted that I overlooked a time sheet for March 4, 2009, a true and accurate copy

of which is attached to this affidavit.”

¶ 49 Hartnett’s affidavit stated that, as a foreman on the project, “the last day [he] recall[ed]

working on the project was on March 4, 2009.” He stated that he completed the time record

that Ann stated she initially overlooked. Moreover, Hartnett stated that on December 29, 2008,

“snow and ice prevented installing permanent flashing around the skylight curbs that had been

cut into the roof but [he] recall[ed was] not finished.” He stated that temporary flashings were

installed until Premier could install ones that were permanent. Hartnett stated that the reason

the work was not completed until March 4, 2009, was because “there was adverse weather

(snow, ice and cold) which prevented the brick masons from repairing work” and because the

“mortar joints were deteriorated so that [Premier] could not attach the termination bar and

counter-flashing without brick masons first repairing that part of the wall.”

¶ 50 Christopher Birt’s affidavit stated he recalled “after December 29, 2008, work was

suspended due to weather [conditions] and due to the fact that other trades did not complete

installing the HVAC (heating, ventilation, and air conditioning) units on the roof until

February 2, 2009.” Christopher stated that “[o]ften work is interrupted due to adverse weather

conditions such as freezing temperatures which may cause the Johns Mansville roofing

material [Premier] used on the roof to crack and/or not adhere properly to the underlayment”

and that “work is often delayed until other trade complete their involving roof

penetrations–such as piping, mechanical units, skylights curbs, and other such items.” Finally,

he stated that he completed the project on March 4, 2009, “including the flashing and priming

[of the roof].”

¶ 51 On November 20, 2012, Premier made a motion to withdraw its prior countercomplaint

and file an amended countercomplaint to change its date of completion. Earlier that year, on

February 7, 2012, the trial court granted Premier seven days leave to amend its

counter-complaint. Premier did not file an amendment.

¶ 52 IV. Disposition and Appeal

¶ 53 On July 3, 2012, the trial court denied Bluewater’s motion for summary judgment, but

granted defendants’ cross-motion for summary judgment. The trial court entered an order

finding that Bluewater’s lien was not enforceable because it was not timely filed. On October

30, 2012, the trial court denied Bluewater’s motion for reconsideration and motion for leave to

amend the completion date on its complaint to January 5, 2009.

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¶ 54 As to Premier, the trial court granted defendants’ motion for summary judgment on

November 30, 2012. In its oral opinion, the trial court reasoned that whatever the Bank’s

standing might be, SAI and ERPCED do have standing. Moreover, “although the lien claim is

facially valid,” the court found that Premier was bound to the completion date stated in its lien

claim (February 27, 2009) and denied Premier’s motion for leave to amend its complaint with

the new completion date (March 4, 2009). The trial court reasoned in its oral opinion:

“[C]onsidering the Mutual Services and Braun-Skiba cases[,] *** the fact that a

[completion date] is included in [plaintiffs’ lien claims] and is a fact and was sworn to

by the [plaintiffs] made that statement a judicial admission which could not be

contradicted by evidence propounded by the [plaintiffs], which in this case means that

[plaintiffs] cannot attempt to contradict its sworn statement of the [completion date on

their] lien[s] *** by way of evidence that [the work] may have been completed after

that date.

***

[As to the motion for leave, the court] believe[s] that the motion for leave to

withdraw the counterclaim and file an amended counterclaim is mooted as a result of

the ruling on the motion for summary judgment.

***

*** [Y]ou know, [the court will not] say that [the motion for leave to amend] is

moot. It’s denied, it’s denied for the same reasons [the court] ha[s] to grant summary

judgment, that you [Premier] cannot salvage this lien by virtue of the evidence of work

that was alleged to have been done after the sworn date.

***

[The completion date is] a judicial admission that cannot be under the law of

Illinois controverted by the party that made the admission by way of other evidence. It

has nothing to do with whether it is a lien claim or any other claim.”

¶ 55 After granting defendants’ motion for summary judgment against Premier, the court

entered an order finding there is no just reason for delaying the appeal or enforcement of the

court’s orders regarding plaintiffs’ liens pursuant to Illinois Supreme Court Rule 304(a) (eff.

Feb. 26, 2010). As a result, Bluewater and Premier bring this interlocutory appeal.

¶ 56 ANALYSIS

¶ 57 In our analysis, we consider (1) whether the Bank released its mortgage and has standing in

this action; (2) whether plaintiffs’ mechanics liens are enforceable as a matter of law; (3)

whether the trial court erred when it denied plaintiffs’ motions for leave to amend their

counterclaims; and (4) whether the trial court erred when it granted defendants’ motions for

summary judgment and denied Bluewater’s motion for summary judgment.

¶ 58 For the reasons that follow, we reverse the grant of summary judgment in defendants’ favor

and affirm the denial of Bluewater’s motion for summary judgment.

¶ 59 I. Standard of Review

¶ 60 A trial court is permitted to grant summary judgment only “if 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.”

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735 ILCS 5/2-1005(c) (West 2008). The trial court must view these documents and exhibits in

the light most favorable to the nonmoving party. Home Insurance Co. v. Cincinnati Insurance

Co., 213 Ill. 2d 307, 315 (2004). We review a trial court’s decision to grant a motion for

summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.

2d 90, 102 (1992). De novo consideration means we perform the same analysis that a trial

judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

¶ 61 “Summary judgment is a drastic measure and should only be granted if the movant’s right

to judgment is clear and free from doubt.” Outboard Marine Corp., 154 Ill. 2d at 102.

However, “[m]ere speculation, conjecture, or guess is insufficient to withstand summary

judgment.” Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328 (1999). A defendant

moving for summary judgment bears the initial burden of proof. Nedzvekas v. Fung, 374 Ill.

App. 3d 618, 624 (2007). The defendant may meet his burden of proof either by affirmatively

showing that some element of the case must be resolved in his favor or by establishing “ ‘that

there is an absence of evidence to support the nonmoving party’s case.’ ” Nedzvekas, 374 Ill.

App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). In other words,

there is no evidence to support the plaintiff’s complaint. If there is a material fact that needs to

be decided, a motion for summary judgment must be denied. Forsythe v. Clark USA, Inc., 224

Ill. 2d 274, 280 (2007) (citing Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 424 (1998)).

¶ 62 “ ‘The purpose of summary judgment is not to try an issue of fact but *** to determine

whether a triable issue of fact exists.’ ” Schrager v. North Community Bank, 328 Ill. App. 3d

696, 708 (2002) (quoting Luu v. Kim, 323 Ill. App. 3d 946, 952 (2001)). “ ‘To withstand a

summary judgment motion, the nonmoving party need not prove his case at this preliminary

stage but must present some factual basis that would support his claim.’ ” Schrager, 328 Ill.

App. 3d at 708 (quoting Luu, 323 Ill. App. 3d at 952). We may affirm on any basis appearing in

the record, whether or not the trial court relied on that basis or its reasoning was correct. Ray

Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50 (1992).

¶ 63 The issue of standing is a matter of law and is also subject to de novo review. Malec v. City

of Belleville, 384 Ill. App. 3d 465, 468 (2008) (quoting Dimensions Medical Center, Ltd. v.

Advanced Ambulatory Surgical Center, Inc., 305 Ill. App. 3d 530, 534 (1999)). Again, de novo

consideration means we perform the same analysis that a trial judge would perform. Khan, 408

Ill. App. 3d at 578.

¶ 64 II. Standing

¶ 65 As a preliminary matter, we must address plaintiffs’ contention that the Bank lacks

standing. We note at the outset that the Bank, SAI, and ERPCED collectively filed the motions

for summary judgment against the plaintiffs. Since plaintiffs challenge the standing of only the

Bank and not the standing of either SAI or ERPCED, any determination of the Bank’s standing

is not ultimately dispositive of this appeal. We must, therefore, consider the validity of

plaintiffs’ mechanics lien claims regardless of our conclusion on the issue of the Bank’s

standing.

¶ 66 “The doctrine of standing is designed to preclude persons who have no interest in a

controversy from bringing suit,” and “assures that issues are raised only by those parties with a

real interest in the outcome of the controversy.” Glisson v. City of Marion, 188 Ill. 2d 211, 221

(1999). “[S]tanding requires some injury in fact to a legally cognizable interest ***.” Glisson,

188 Ill. 2d at 221. However, our Illinois Supreme Court has stated that the “lack of standing in

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a civil case is an affirmative defense, which will be forfeited if not raised in a timely fashion in

the trial court.” Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 508 (1988);

People v. Kelly, 397 Ill. App. 3d 232, 265 (2009). As an affirmative defense, the lack of

standing is the defendant’s burden to plead and prove. Lebron v. Gottlieb Memorial Hospital,

237 Ill. 2d 217 (2010).

¶ 67 On appeal, plaintiffs urge this court to hold that the Bank released its mortgage to the

property, and that as a result of the Bank’s release, the Bank no longer has an interest in this

action. Plaintiffs argue that “[o]nce a mortgagee receives full payment it seeks under its

mortgage, the mortgage is deemed released.” Plaintiffs not only point out that the Bank

executed a signed release, but plaintiffs also claim that the Bank received full payment for the

mortgage as evidenced by the sale of the property to SAI.

¶ 68 As an initial matter, we are persuaded by defendants’ argument that Bluewater has waived

its arguments concerning standing by not raising lack of standing as a defense before the trial

court. See Greer, 122 Ill. 2d at 508. However, we are not persuaded by defendants’ arguments

that Premier waived its arguments concerning standing. Premier raised the issue of standing

before the trial court and therefore preserved the issue on appeal. Moreover, waiver is a

limitation on the parties, not on the jurisdiction of the reviewing court. Board of Trustees of the

University of Illinois v. Illinois Labor Relations Board, 224 Ill. 2d 88, 112 (2007).

¶ 69 Defendants concede that the Bank executed a mortgage release, but argue that the

mortgage release is not yet effective because it has not been delivered. Defendants also

contend that plaintiffs have not presented sufficient evidence that the Bank received full

payment for the mortgage. Premier does not contest whether the mortgage has been delivered,

but instead argues that delivery is not necessary for the mortgage release to be effective.

¶ 70 However, the authorities Premier cites simply do not support its legal theory that full

payment or anything short of delivery is sufficient to give effect to a mortgage release. Points

not supported by citation to relevant authority are waived. People v. Ward, 215 Ill. 2d 317, 332

(2005) (“point raised in a brief but not supported by citation to relevant authority *** is

therefore forfeited”); In re Marriage of Bates, 212 Ill. 2d 489, 517 (2004) (“A reviewing court

is entitled to have issues clearly defined with relevant authority cited.”); Roiser v. Cascade

Mountain, Inc., 367 Ill. App. 3d 559, 568 (2006) (by failing to offer supporting legal authority

or any reasoned argument, plaintiffs waived consideration of their theory for asserting personal

jurisdiction over defendants); Ferguson v. Bill Berger Associates, Inc., 302 Ill. App. 3d 61, 78

(1998) (“it is not necessary to decide this question since the defendant has waived the issue” by

failing to offer case citation or other support as Supreme Court Rule 341 requires); Ill. S. Ct.

R. 341(h)(7) (eff. Feb. 6, 2013) (arguments in an appellate brief must be supported by citations

to legal authority).

¶ 71 First, Premier cites section 2 of the Mortgage Act as supporting its contention that, once a

mortgagee receives full payment for the mortgage, the mortgage is deemed released. 765 ILCS

905/2 (West 2008). The primary rule of statutory construction requires that effect must be

given to the intent of the legislature. Advincula v. United Blood Services, 176 Ill. 2d 1, 16

(1996); Wal-Mart Stores, Inc. v. Industrial Comm’n, 324 Ill. App. 3d 961, 967 (2001). In

ascertaining the legislature’s intent, courts begin by examining the plain language of the

statute, reading the statute as a whole, and construing it so that no word or phrase is rendered

meaningless or superfluous. Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990); Wal-Mart Stores,

Inc., 324 Ill. App. 3d at 967. Statutory language that is clear and unambiguous must be given

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effect without resort to other aids of construction. People v. Woodard, 175 Ill. 2d 435, 443

(1997); Wal-Mart Stores, Inc., 324 Ill. App. 3d at 967. Section 2 of the Mortgage Act says, in

relevant part:

“Every mortgagee of real property *** having received full satisfaction and payment of

all such sum or sums of money as are really due to him from the mortgagor *** shall

*** make, execute and deliver to the mortgagor *** an instrument in writing ***

releasing such mortgage ***.” 765 ILCS 905/2 (West 2008).

¶ 72 While the plain language of section 2 does indicate that full payment is a necessary

condition before a mortgagee is obligated to release a mortgage, it does not suggest that full

payment, by itself, is a sufficient condition to release a mortgage. On the contrary, once a

mortgagee receives full payment it must further “make, execute and deliver *** an instrument

in writing *** releasing such mortgage.” 765 ILCS 905/2 (West 2008). To adopt Premier’s

construction would render the statutory requirements to “make, execute and deliver”

meaningless and superfluous. 765 ILCS 905/2 (West 2008).

¶ 73 Likewise, section 4 of the Mortgage Act does not support Premier’s contentions. While the

provision does make a mortgagee liable to aggrieved parties when it fails to release a mortgage

within one month of receiving full payment for the mortgage, it does not say that full payment

by itself releases the mortgage. See 765 ILCS 905/4 (West 2008). Again, under section 4, full

payment triggers only the obligation of a mortgagee to release a mortgage.

¶ 74 Finally, Premier does not dispute that the Bank failed to deliver the mortgage release, but

instead points to American Garden Homes, Inc. v. Gelbart Fur Dressing, 238 Ill. App. 3d 64

(1992), as supporting its contention that delivery is not necessary for a mortgage release to be

effective. We do not find Premier’s reliance on this case persuasive.

¶ 75 The court in American Garden did not consider whether a mortgage release was effective

before delivery but, rather, whether a party had standing to compel the release of a mortgage.

See American Garden, 238 Ill. App. 3d at 68-69. Indeed, the question before the American

Garden court was whether the plaintiff could compel the defendant to deliver the mortgage

release. American Garden, 238 Ill. App. 3d at 69. Nothing in the case supports Premier’s

contention that American Garden deemed a mortgage release effective prior to delivery.

¶ 76 In the case at bar, Premier’s challenge to the Bank’s standing rests entirely on the theory

that the Bank released its mortgage by receiving full payment. However, even if there was full

payment, the plain language of the Mortgage Act indicates that delivery is necessary before a

mortgage is released. Since it is undisputed that there was no delivery, the mortgage has not

been released. Accordingly, the Bank still has an interest in the property and has standing.

¶ 77 III. Enforceability of Mechanics Liens

¶ 78 Before we can consider whether the trial court erred in denying plaintiffs’ motions for

leave to amend their complaints and before we can consider whether the trial court erred in

granting defendants’ motions for summary judgment against plaintiffs, we must consider the

trial court’s basis for these decisions. Specifically, the trial court found that the completion

dates on plaintiffs’ lien claims constituted binding judicial admissions that plaintiffs could not

amend or contradict with evidence of a later completion date. The trial court reasoned that

since plaintiffs were bound by the dates stated on their lien claims and could not produce

evidence that work actually occurred on those dates, the trial court was required to enter

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summary judgment in favor of defendants and deny plaintiffs’ motions for leave to amend their

complaints.

¶ 79 Plaintiffs contend that their liens are facially enforceable and comply with the

requirements of the Act. In determining whether plaintiffs’ liens are enforceable on their face,

we consider (1) the Act’s general purpose, requirements, and principles; (2) whether we are to

construe the requirements of the Act strictly or liberally; (3) whether the completion dates

stated in plaintiffs’ lien claims and elsewhere constitute binding judicial admissions; and (4)

whether plaintiffs’ claims are unenforceable because (a) of plaintiffs’ description of their

contract and (b) Bluewater’s claimed overstatement of the amount due under its claim.

¶ 80 A. Purpose, Requirements, and Principles

¶ 81 “The purpose of the Act is to permit a lien upon premises where a benefit has been received

by the owner and the value or condition of the property has been increased or improved by the

furnishing of labor and materials.” Northwest Millwork Co. v. Komperda, 338 Ill. App. 3d 997,

1000 (2003) (citing R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 164 (1998)).

¶ 82 Section 7 of the Act contains most of the requirements at issue in the case at bar. The

provision provides:

“No contractor shall be allowed to enforce such lien against or to the prejudice of any

other [third-party] creditor or incumbrancer or purchaser, unless [(1)] within 4 months

after completion *** he or she shall either bring an action to enforce his or her lien

therefor or shall file in the office of the recorder *** a claim for lien, [(2)] verified by

the affidavit of himself or herself, or his or her agent or employee, which shall consist

of [(3)] a brief statement of the claimant’s contract, [(4)] the balance due after allowing

all credits, and [(5)] a sufficiently correct description of the lot ***. *** No such lien

shall be defeated to the proper amount thereof because of an error or overcharging on

the part of any person claiming a lien therefor under this Act, unless it shall be shown

that such error or overcharge is made with intent to defraud ***.” 770 ILCS 60/7(a)

(West 2008).

¶ 83 Additionally, this court has interpreted section 7 to impose a requirement that a mechanics

lien claim include a completion date in order to be enforceable. Merchants Environmental

Industries, Inc. v. SLT Realty Ltd. Partnership, 314 Ill. App. 3d 848, 869 (2000) (inferring

from section 7 that lien claims require the statement of a completion date); but see National

City Mortgage v. Bergman, 405 Ill. App. 3d 102, 111 (2010) (explicitly disagreeing with the

holding in Merchants Environmental, the Second District reasoned that “hold[ing] that a lien

claim is unenforceable because it failed to set forth a completion date [is] inequitable when the

lien holder has complied with the statutory requirements of a lien claim, which do not include

providing a completion date”).

¶ 84 Section 24 of the Act provides the last requirement relevant to this appeal. It provides that a

subcontractor must, within 90 days after the date of completion, “cause a written notice of his

or her claim *** to be sent *** to the lending agency.” 770 ILCS 60/24(a) (West 2008).

¶ 85 In regard to both sections 7 and 24, “[t]he term ‘completion’ *** does not refer to

completion of the contract. It means completion of the work for which a contractor seeks to

enforce his lien ***.” (Internal quotation marks omitted.) Cordeck Sales, Inc. v. Construction

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Systems, Inc., 382 Ill. App. 3d 334, 389 (2008) (quoting Merchants Environmental, 314 Ill.

App. 3d at 858).

¶ 86 Additionally, as the rights under the Act are in derogation of the common law, the

requirements to “perfect” the lien must be strictly construed. Westcon/Dillingham

Microtunneling v. Walsh Construction Co. of Illinois, 319 Ill. App. 3d 870, 877 (2001).

“However, notwithstanding the strict construction generally given to all sections of the

Mechanics Lien Act, there is authority that favors some flexibility in applying the general

rules, so that the statute’s provisions are not construed so technically that its remedial purpose

is undermined and all but lost in the process.” Walker Process Equipment v. Advance

Mechanical Systems, Inc., 282 Ill. App. 3d 452, 455 (1996) (citing Aluma Systems, Inc. v.

Frederick Quinn Corp., 206 Ill. App. 3d 828, 840 (1990)). In any event, once a plaintiff has

complied with its requirements, the Act should be liberally construed to accomplish its

remedial purpose. Westcon/Dillingham, 319 Ill. App. 3d at 877; see also 770 ILCS 60/39

(West 2008) (“This act is and shall be liberally construed as a remedial act.”).

¶ 87 Finally, we note that while defendants’ arguments are identical in that both Bluewater and

Premier were untimely in complying with the Act, defendants technically claim that Bluewater

and Premier were untimely under different provisions of the Act. Bluewater filed as a

subcontractor and Premier filed as a general contractor. Both plaintiffs are subject to the

requirements in section 7, which requires a lien claim to be filed or recorded within four

months of completion. See 770 ILCS 60/7 (West 2008). However, Bluewater, as a

subcontractor, was also required to provide notice of the lien claim to the lending agency (in

this case, the Bank) within 90 days of completion. See 770 ILCS 60/24 (West 2008).

¶ 88 Since the parties apply the same legal analysis and arguments to both sections 7 and 24, we

examine both provisions together in deciding whether plaintiffs’ lien claims are enforceable on

their face. Indeed, the purpose of both provisions is the same: to provide third parties notice of

the existence of a lien claim. As will be explained below, the purpose of section 7 is to provide

notice to third parties whether a lien claim is enforceable. See Merchants Environmental, 314

Ill. App. 3d at 861. Likewise, the purpose of section 24 is to provide notice to a third party, in

this case the Bank, of the existence of a lien claim. See 770 ILCS 60/24 (West 2008).

Accordingly, both provisions present the same analytical questions because they share the

same purpose of providing notice to third parties.

¶ 89 However, sections 7 and 24 present different factual questions in the present case (i.e.,

whether Bluewater notified the Bank within 90 days of completion and whether Premier filed

its lien claim within four months of completion). As a result, we examine each provision

separately when we consider whether plaintiffs presented sufficient evidence to defeat

defendants’ respective motions for summary judgment.

¶ 90 B. Strict Construction v. Liberal Construction

¶ 91 Plaintiffs urge this court to apply a liberal construction of the Act’s requirements. They

correctly point out that our supreme court in United Cork Cos. v. Volland, 365 Ill. 564 (1937),

refused to employ strict construction to invalidate a lien with an incorrect completion date.

Contemporary cases still discuss and apply the 1937 United Cork case. See Braun-Skiba, Ltd.

v. La Salle National Bank, 279 Ill. App. 3d 912 (1996); Mutual Services, Inc. v. Ballantrae

Development Co., 159 Ill. App. 3d 549 (1987). Defendants do not appear to contest plaintiffs’

reading of United Cork, but nevertheless argue that it is inapposite to the case at bar.

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Accordingly, defendants argue that this court should strictly construe the Act against the

plaintiffs.

¶ 92 We consider the applicability of United Cork and the doctrine of strict construction to the

completion dates in the present case. In United Cork, the contractor filed a mechanics lien in

February 1931 that stated a completion date of December 1, 1930.5 United Cork, 365 Ill. at

570. Notwithstanding this stated completion date, the contractor testified that most of the work

was completed by July 1930, and that significant work continued after this date, including on

December 31, 1930. United Cork, 365 Ill. at 570. The contractor further testified that the work

under the contract was not ultimately completed until April 1931, over a month after the lien

claim was filed. United Cork, 365 Ill. at 570. However, the lien claim did not seek to charge for

any of the work completed after it was filed in February. United Cork, 365 Ill. at 573.

¶ 93 The court held that although significant work continued after the completion date stated in

the lien, and that although the ultimate completion of the contract did not occur until well after

the contractor filed the claim, the mechanics lien was still valid and enforceable. United Cork,

365 Ill. at 570-74. The court held that the contractor complied with the statute by filing within

four months of completing the work. See United Cork, 365 Ill. at 572-73. In coming to this

conclusion, the court reasoned:

“The doctrine of strict construction was never meant to be applied as a pitfall to the

unwary, in good faith pursuing the path marked by the statute, nor as an ambuscade

from which an adversary can overwhelm him for an immaterial misstep. Its function is

to preserve the substantial rights of those against whom the remedy offered by the

statute is directed, and it is never employed otherwise. ***

*** No charge was attempted to be made for the work performed [after the

contractor filed the lien], and no substantial right of the defendants was affected by the

error.

*** [A] variance between allegations and proof, in order to be fatal, must be

substantial and material.” United Cork, 365 Ill. at 572-73.

¶ 94 We are persuaded by plaintiffs’ argument that United Cork is instructive to our analysis in

the present case. Defendants are correct to point out that United Cork considered the

completion of work after the lien was filed, and that this case does not present that situation.

However, defendants overlook the fact that United Cork did not invalidate any work

completed before the contractor filed its lien even though the claim’s stated completion date

was clearly incorrect. The only way in which United Cork is distinguishable from the instant

case is that plaintiffs here claim to have completed all of the work before they filed their liens.

¶ 95 United Cork remains important to our analysis because it provides a framework to evaluate

if the errors made by plaintiffs are material to defendants’ rights. If the errors are not material,

United Cork dictates that we construe the errors liberally to avoid subverting the Act’s

remedial purpose. As quoted above, the United Cork court reasoned that strict construction is

only employed to preserve the rights of parties from whom relief is sought.

5

We note there appears to be a slight discrepancy in United Cork as to the completion date stated

on the lien. The United Cork court first cites the completion date on the lien claim as December 1,

1930, but later in its opinion and without explanation, the court notes that a lower court stated the lien

claim was December 31, 1930.

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¶ 96 The relevant right in the present case is the right of third parties to have notice of a

mechanics lien attached to a property. In Merchants Environmental, this court stated:

“[A] lien claim [must] be filed within a specified time [so] that ‘third persons dealing

with the property may have notice of the existence, nature and character of the lien as

well as the times when the material was furnished and labor performed, and thus be

enabled to learn from the claim itself whether it was such as can be enforced.’ ”

(Emphasis omitted.) Merchants Environmental, 314 Ill. App. 3d at 868-69 (quoting

Schmidt v. Anderson, 253 Ill. 29, 32 (1911)).

¶ 97 Accordingly, we must consider whether the plaintiffs’ errors in this case infringed on

defendants’ right to know from the claim itself whether it was an enforceable lien. This is a

right of notice.

¶ 98 Defendants were able to learn from the claims themselves that the liens were facially

enforceable even with the incorrect dates. Whether Bluewater completed work on January 4,

2009, or January 5, 2009, Bluewater sent notice to the Bank within 90 days of completion as

required by section 24. Likewise, whether Premier listed February 27, 2009, or March 4, 2009,

on its lien claim is of no consequence to defendants’ right to know whether the claim was an

enforceable lien because both dates are within the four months required by section 7. Either

date would have communicated to a third party like SAI or ERPCED that the lien was timely

filed and enforceable.

¶ 99 As a result, the incorrect dates of completion in plaintiffs’ claims cannot be said to

materially affect defendants’ right of notice under the Act. Therefore, at least in regard to the

completion dates on plaintiffs’ lien claims, we construe the Act’s requirements liberally to give

effect to the Act’s remedial purpose.

¶ 100 C. Judicial Admissions

¶ 101 The trial court found that the completion dates sworn to by plaintiffs in their lien claims

constituted binding judicial admissions. In its oral opinion, the trial court reasoned:

“[C]onsidering the Mutual Services and Braun-Skiba cases[,] *** the fact that a

[completion date] is included in [plaintiffs’ lien claims] and is a fact and was sworn to

by the [plaintiffs] made that statement a judicial admission which could not be

contradicted by evidence propounded by the [plaintiffs], which in this case means that

[plaintiffs] cannot attempt to contradict its sworn statement of the [completion date on

their] lien[s] *** by way of evidence that [the work] may have been completed after

that date.

***

*** [I]t’s a judicial admission that cannot be under the law of Illinois controverted

by the party that made the admission by way of other evidence. It has nothing to do

with whether it is a lien claim or any other claim.”

¶ 102 Judicial admissions are defined as “deliberate, clear, unequivocal statements by a party

about a concrete fact within that party’s knowledge.” In re Estate of Rennick, 181 Ill. 2d at 406

(citing Hansen v. Ruby Construction Co., 155 Ill. App. 3d 475, 480 (1987)). They are “ ‘formal

concessions in the pleadings in the case or stipulations by a party or its counsel that have the

[function] of withdrawing a fact from issue and dispensing wholly with the need for proof of

the fact.’ ” Knauerhaze v. Nelson, 361 Ill. App. 3d 538, 557-58 (2005) (quoting John W.

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Strong, McCormick on Evidence § 254, at 142 (4th ed. 1992)); see also Lawlor v. North

American Corp. of Illinois, 409 Ill. App. 3d 149, 163 (2011). In other words, if a fact is

judicially admitted, the adverse party has no need to submit any evidence on that point. The

admission serves as a substitute for proof at trial. Lowe v. Kang, 167 Ill. App. 3d 772, 776

(1988) (judicial admissions “dispens[e] with proof of a fact claimed to be true, and are used as

a substitute for legal evidence at trial” (cited with approval in People v. Howery, 178 Ill. 2d 1,

40-41 (1997))). A verified pleading remains part of the record despite any amendments to the

pleadings “and any admissions not the product of mistake or inadvertence become binding

judicial admissions.” Rynn v. Owens, 181 Ill. App. 3d 232, 235 (1989) (citing American

National Bank & Trust Co. of Chicago v. Erickson, 115 Ill. App. 3d 1026, 1029 (1983)).

¶ 103 The purpose of judicial admissions “is to remove the temptation to commit perjury.” In re

Estate of Rennick, 181 Ill. 2d at 407 (citing Smith v. Ashley, 29 Ill. App. 3d 932, 935 (1975)).

Therefore, a party “cannot create a factual dispute by contradicting a previously made judicial

admission” in a motion for summary judgment or at trial. Burns v. Michelotti, 237 Ill. App. 3d

923, 932 (1992); see also In re Estate of Rennick, 181 Ill. 2d at 406.

¶ 104 To help explain and frame our analysis, we note that the trial court relies on Mutual

Services, 159 Ill. App. 3d 549, and Braun-Skiba, 279 Ill. App. 3d at 912. The Mutual Services

and Braun-Skiba courts relied entirely on the case law and principles unique to mechanics liens

to bind plaintiffs to the completion dates on their claims.

¶ 105 Consequently, we consider whether the completion dates in plaintiffs’ lien claims

constitute judicial admissions under Mutual Services and Braun-Skiba, as well as whether the

completion dates are binding under the broader doctrine of judicial admissions.

¶ 106 1. Under Mutual Services and Braun Skiba

¶ 107 Defendants argue that plaintiffs are barred from presenting evidence of any completion

date after the incorrect date stated on their liens. For example, defendants argue that Bluewater

cannot assert January 5, 2009, as its new completion date because that is after the January 4,

2009, completion date stated in the lien. Defendants rely on Mutual Services and Braun-Skiba.

¶ 108 We are not persuaded by defendants’ arguments that Mutual Services and Braun-Skiba bar

plaintiffs from presenting evidence of a later completion date. Defendants correctly note that

the courts in Mutual Services and Braun-Skiba found that the plaintiffs in those cases were

bound by the completion dates stated on their lien claims and that those plaintiffs could not

contradict the dates with later evidence. See Mutual Services, 159 Ill. App. 3d at 553-54;

Braun-Skiba, 279 Ill. App. 3d at 917-18. However, unlike the claims in the present case, the

lien claims in Mutual Services and Braun-Skiba were invalid on their face and, thus, are easily

distinguished. See Mutual Services, 159 Ill. App. 3d at 551; Braun-Skiba, 279 Ill. App. 3d at

918.

¶ 109 In Mutual Services, the plaintiff filed a mechanics lien that stated a completion date more

than four months prior to the filing of the claim. Mutual Services, 159 Ill. App. 3d at 551. In

Braun-Skiba, the plaintiff mistakenly filed a lien with a typographical error, stating a

completion date more than two years prior to filing. In both cases, “the lien[s] appeared to be

invalid on [their] face, [and] the plaintiff[s] argued that [the liens] should be enforced because

[they] misstated the required date on the lien and the actual date of completion was one within

the mandatory filing period.” Braun-Skiba, 279 Ill. App. 3d at 917 (citing Mutual Services, 159

Ill. App. 3d at 552).

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¶ 110 These are not insignificant distinctions. As the court in Mutual Services noted, “The

purpose of the requirement [to file within the statutory period] is to give third parties dealing

with the property notice of the existence, nature and character of a lien and thus enable third

parties to determine from the claim itself whether the lien is enforceable.” Mutual Services,

159 Ill. App. 3d at 553. The lien claims in Mutual Services and Braun-Skiba could not have

possibly informed third parties that the lienable work was actually completed within four

months of the filing of the liens. On the contrary and on their face, the lien claims stated that

the work was completed well outside the enforceable statutory period. Therefore, if the courts

in Mutual Services and Braun-Skiba were to allow the plaintiffs in those cases to amend their

lien claims to reflect later completion dates, it would have misled third parties to believe the

claims were unenforceable. In Braun-Skiba, the court explicitly noted the difference between

facially valid and invalid claims as they related to United Cork and Mutual Services:

“What is also important in United Cork is that the lien was valid on its face and could

properly serve as notice to third parties. In the present case [(Braun-Skiba)], however,

the lien is invalid on its face and, therefore, under the principles addressed in Mutual

Services, it is not enforceable against defendant, a third party.” Braun-Skiba, 279 Ill.

App. 3d at 918.

¶ 111 However, in the present case, both claims did appear to be timely filed and enforceable.

Since section 7 required the liens to be filed within four months of completing work that was

done at the property, both liens were valid on their face. Additionally, based on the completion

date stated on the face of Bluewater’s lien clam, Bluewater timely notified the Bank within 90

days as required under section 24 of the Act. In fact, not only were the completion dates stated

on plaintiffs’ liens within the requisite statutory periods, the amendment plaintiffs requested

would also be within the requisite statutory periods. As a result, third parties would not be

misled to believe the liens were unenforceable, and the rights of third parties would not be

compromised.

¶ 112 2. Judicial Admissions in General

¶ 113 Having found that Mutual Services and Braun-Skiba do not bar plaintiffs from asserting

later completion dates under the facts of the case at bar, we next consider whether the broader

doctrine of judicial admissions precludes plaintiffs from presenting evidence of any

completion date other than the date stated in their lien claims. First, we consider the basic

principles that underlie the doctrine of judicial admissions. Second, we discuss the diverging

standards of our review of judicial admissions. Third, we apply the principles, function,

purposes, and standards of review to the trial court’s findings in the case at bar. Finally, we

consider defendants’ additional arguments that other statements made by plaintiffs, but not

considered by the trial court, also constitute binding judicial admissions.

¶ 114 a. Principles, Function, and Purpose of Judicial Admissions

¶ 115 “An admission by a party is substantive evidence admissible as an exception to the rule

excluding hearsay.” In re Estate of Rennick, 181 Ill. 2d 395, 406 (1998). A party may

contradict or explain an ordinary evidentiary admission; however, judicial admissions

“conclusively bind a party.” In re Estate of Rennick, 181 Ill. 2d at 406 (citing Michael H.

Graham, Cleary & Graham’s Handbook of Illinois Evidence § 802.11, at 616 (5th ed. 1990),

and McCormack v. Haan, 20 Ill. 2d 75, 78 (1960)). Accordingly, “ ‘[t]he doctrine of judicial

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admissions requires thoughtful study for its application so that justice not be done on the

strength of a chance statement made by a nervous party.’ ” Smith v. Pavlovich, 394 Ill. App. 3d

458, 468 (2009) (quoting Thomas v. Northington, 134 Ill. App. 3d 141, 147 (1985)).

¶ 116 b. Diverging Standards of Review in Judicial Admissions

¶ 117 We must also consider the standard of review that applies to the trial court’s finding that

the completion dates in plaintiffs’ lien claims constituted judicial admissions. There are two

lines of cases concerning the proper standard. Crittenden v. Cook County Comm’n on Human

Rights, 2012 IL App (1st) 112437, ¶ 46. The first, established in 1987 by this court in Hansen

v. Ruby Construction Co., 155 Ill. App. 3d 475, 480 (1987), considers the issue as a question of

law subject to de novo review. Crittenden, 2012 IL App (1st) 112437, ¶ 46 (citing Choate v.

Indiana Harbor Belt R.R. Co., 2011 IL App (1st) 100209, ¶ 86, Herman v. Power Maintenance

& Constructors, LLC, 388 Ill. App. 3d 352, 360 (2009), and Elliott v. Industrial Comm’n, 303

Ill. App. 3d 185, 187 (1999)). De novo consideration means the reviewing court performs the

same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d

564, 578 (2011). The de novo standard of review derives from the requirement that a judicial

admission be a “ ‘deliberate, clear, unequivocal statement of a party about a concrete fact

within that party’s peculiar knowledge’ ” and is based on the determination that the question of

whether the statement is equivocal is one of law and not fact. Crittenden, 2012 IL App (1st)

112437, ¶ 46 (quoting Hansen, 155 Ill. App. 3d at 480).

¶ 118 The second line of cases, beginning in 1988 with Lowe, 167 Ill. App. 3d at 777, applies an

abuse of discretion standard of review. Crittenden, 2012 IL App (1st) 112437, ¶ 47 (citing

Serrano v. Rotman, 406 Ill. App. 3d 900, 907 (2011), Smith, 394 Ill. App. 3d at 468, and

Dremco, Inc. v. Hartz Construction Co., 261 Ill. App. 3d 531, 536 (1994)). “An abuse of

discretion occurs when no reasonable person would take the view adopted by the court.”

Trettenero v. Police Pension Fund, 333 Ill. App. 3d 792, 801 (2002) (citing In re Marriage of

Blunda, 299 Ill. App. 3d 855, 865 (1998)). The abuse of discretion standard focuses on the

context of the purported admission:

“What constitutes a judicial admission must be decided under the circumstances in

each case, and before a statement can be held to be such an admission, it must be given

a meaning consistent with the context in which it was found. [Citation.] It must also be

considered in relation to the other testimony and evidence presented.” Serrano, 406 Ill.

App. 3d at 907 (citing Smith, 394 Ill. App. 3d at 468).

¶ 119 We note that both the cases advocating for de novo review and the cases applying the abuse

of discretion standard of review agree on the same basic framework to be applied in

determining whether a statement is deemed a judicial admission. Thus, a case applying the

abuse of discretion standard still requires the statement to be “clear, unequivocal, and uniquely

within the party’s personal knowledge” (Serrano, 406 Ill. App. 3d at 907 (citing Williams

Nationalease, Ltd. v. Motter, 271 Ill. App. 3d 594, 597 (1995))), and a case applying de novo

review also looks at the context of the statement. See Herman, 388 Ill. App. 3d at 361 (noting

that the doctrine should not be applied to an attorney’s statement of legal opinion in a summary

judgment proceeding, “especially if the opinion was manifestly incorrect within the context of

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the statement itself”).

¶ 120 c. Trial Court’s Findings of Judicial Admissions

¶ 121 In the case at bar, regardless of the standard of review applied and in light of the principles,

purpose, and functions of both the Act and the doctrine of judicial admissions, we cannot find

that the completion dates in plaintiffs’ lien claims constituted binding judicial admissions. As

previously concluded in our discussion of United Cork, we must liberally construe the

requirements of the Act in the case at bar to give effect to the Act’s remedial purpose. In doing

so, we also thoughtfully apply the doctrine of judicial admissions “ ‘so that justice not be done

on the strength of a chance statement.’ ” Smith, 394 Ill. App. 3d at 468 (quoting Thomas, 134

Ill. App. 3d at 147).

¶ 122 First, we note that finding that the completion dates stated in plaintiffs’ lien claims

constituted judicial admissions would create the very type of “ambuscade” for immaterial

missteps that United Cork so emphatically denounced. See United Cork, 365 Ill. at 572. When

we view the criteria for judicial admissions alongside what plaintiffs are already required to do

under the law of mechanics liens, the pitfalls for plaintiffs become apparent.

¶ 123 As noted, with regard to the dates, section 7 of the Act requires only that a contractor file a

lien within four months of completion and that the lien be verified by an affidavit. 765 ILCS

60/7 (West 2008). In addition, this court has inferred that section 7 also requires a valid lien to

state a date of completion. See Merchants Environmental, 314 Ill. App. 3d 848. Also as noted,

judicial admissions are deliberate, clear, unequivocal statements about a concrete fact uniquely

within plaintiffs’ knowledge. In re Estate of Rennick, 181 Ill. 2d at 406 (citing Hansen, 155 Ill.

App. 3d at 480).

¶ 124 Plaintiffs are required under section 7 of the Act to state and swear to a date within four

months of completion in order to enforce their liens. See Merchants Environmental, 314 Ill.

App. 3d 848; see also 770 ILCS 60/7 (West 2008). Indeed, to further bind plaintiffs to their

mistaken, but facially valid date of completion because plaintiffs swore to that date as required

by the Act would elevate form over substance. It would require “perfection” above and beyond

what is necessary or desirable to preserve the rights of third parties to notice and would not

give effect to the remedial purpose of the statute. Plaintiffs, after working on a property in good

faith of future payment, and after complying with every requirement on the face of the Act,

should not have their lien claims defeated because the actual date of completion was

mistakenly recorded by plaintiffs, when the mistaken date and the correct date are both within

the time periods required by sections 7 and 24 of the Act.

¶ 125 Second, we are not persuaded by defendants’ argument that the doctrine of judicial

admissions is necessary to deter perjury in this case. As noted, a verified pleading remains part

of the record despite any amendments to the pleadings. Rynn, 181 Ill. App. 3d at 235 (citing

Erickson, 115 Ill. App. 3d at 1029). Thus, allowing plaintiffs to present evidence of a different

completion date does not give them free rein to game the judicial process. Lien claimants still

must present sufficient evidence that they completed the work within four months of filing to

defeat summary judgment, and claimants still must persuade the finder of fact that they

completed the work within that timeframe. See Tefco Construction Co. v. Continental

Community Bank & Trust Co., 357 Ill. App. 3d 714, 718-19 (2005) (claimants have burden to

prove they complied with the Act’s requirements). Allowing lien claimants to present evidence

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of a facially valid completion date other than the facially valid completion date already stated

on their lien claims would permit claimants to avoid summary judgment, but would still risk

jeopardizing their credibility before the fact finder. In fact, the first completion date stated by

plaintiffs would remain on the record. See Rynn, 181 Ill. App. 3d at 235. Accordingly,

claimants still have sufficient incentive at the outset to provide the correct completion date on

their mechanics lien claim.

¶ 126 Third, we again note that “any admissions not the product of mistake or inadvertence

become binding judicial admissions.” (Emphasis added.) Rynn, 181 Ill. App. 3d at 235 (citing

Erickson, 115 Ill. App. 3d at 1029). As “penalizing confusion or an honest mistake is not

among the purposes of the doctrine of judicial admissions, it must appear that the party making

the statement had no reasonable possibility of being mistaken in order for the statement to

qualify as a judicial admission.” Herman, 388 Ill. App. 3d at 361 (citing Trapkus v. Edstrom’s,

Inc., 140 Ill. App. 3d 720, 723 (1986)). In the present case, both plaintiffs claim to have made a

mistake and we cannot say their claims are not reasonable

¶ 127 It could be reasonable that Bluewater mistakenly stated its completion date on a mechanics

lien as January 4, 2009, when completion was in fact January 5, 2009. Filing a mechanics lien

is likely and preferably a last resort for contractors when they have not been paid. In the present

case, Bluewater did not immediately file a claim for mechanics lien when it discontinued work.

Instead, as stated in Bluewater’s “timeline” of the project and corroborated by the emails in its

original document production, Kiferbaum “made several attempts to resolve payment issues

without success” in January, met with the owner of the property who promised “to work out

partial payment in the near future” in February, and followed up with the owner in March after

“he ha[d] not heard anything” from the owner since their February meeting. It was in April,

three months after discontinuing work and just before the opportunity to file its lien claim

expired, when Bluewater ultimately turned to the legal system to resolve the dispute. In this

context, it may not be unreasonable that Bluewater misstated its date of completion by one day.

¶ 128 It could also be reasonable that Premier misstated its completion date. Premier stated the

completion date on its lien claim as Friday, February 27, 2009, but now claims the completion

date was actually Wednesday, March 4, 2009. Joseph testified in his deposition that Harris

wrote him a check on that Friday and requested that Premier come back the next week to

complete the project. Premier produced a copy of this check. He testified that the next Monday

and Tuesday were too cold to complete the work, but that Premier employees were ultimately

able to complete the project that Wednesday. In fact, Joseph testified about numerous times

Premier’s schedule was interrupted by weather conditions beyond its control. He also testified

that cold weather prevented Premier from applying the silver coat to the roof. He testified that

other contracting projects on the site repeatedly prevented Premier from continuing its work,

and that Premier could only complete its project on March 4 after the bricklayer had “finished

with the wall to cleaning them up and pointing them.” With the sporadic nature of Premier’s

schedule, it could be reasonable that Premier misstated its completion date by five days.

¶ 129 Furthermore, Bluewater and Premier are not large corporations with the extensive

resources necessary to keep absolutely meticulous and unmistaken records. They are “ma” and

“pa” small businesses. Kiferbaum is Bluewater’s only employee, the Birts operate Premier

from their home, and Ann is Premier’s sole secretary. According to Joseph’s deposition

testimony, Ann did not know exactly what to look for when gathering the documents for

discovery as “this has never happened [to them] before.”

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¶ 130 Finally, it is not at all certain that the dates were deliberate, clear, unequivocal statements

about a concrete fact uniquely within plaintiffs’ knowledge. In re Estate of Rennick, 181 Ill. 2d

at 406 (citing Hansen, 155 Ill. App. 3d at 480). Both Kiferbaum and Joseph testified that they

had to rely on documents to remember the date of completion, and both Bluewater and Premier

produced affidavits from other individuals involved with the property addressing the dates

work was scheduled and performed. Bluewater’s lien claim stated it had “substantially”

completed the work on January 4, 2009, and Kiferbaum testified in his deposition that he had

to “estimate” the completion date from the timeline and documents. Premier’s lien claim

appears to be a fill-in-the-blank form document that would give little reason to a contractor to

hedge or qualify the completion date with cautious equivocation.

¶ 131 For the foregoing reasons, we find, under either standard of review, that the trial court erred

when it found that the completion dates stated in plaintiffs’ lien claims constituted binding

judicial admissions.

¶ 132 d. Additional Statements Alleged to Be Judicial Admissions

¶ 133 Defendants also argue that plaintiffs made other judicial admissions of incorrect

completion dates. The trial court did not address these arguments, but we briefly consider them

as we may affirm a trial court’s grant of summary judgment on any grounds in the record. Ray

Dancer, 230 Ill. App. 3d at 50. Defendants contend (1) that plaintiffs are bound to the incorrect

date of completion as repeated in their verified pleadings and in Bluewater’s motion for

summary judgment; and (2) that both plaintiffs respectively made judicial admissions of

additional incorrect completion dates during discovery. We find defendants’ arguments

unpersuasive.

¶ 134 First, the same doctrine of judicial admissions that we applied to the incorrect completion

dates in plaintiffs’ mechanics lien claims applies to the repetition of those dates in plaintiffs’

pleadings. Since we did not find the incorrect dates on their mechanics liens constituted

judicial admissions, we do not find that the incorrect dates in their pleadings constitute binding

judicial admissions. The pleadings merely reflect what was stated on the lien claims.

¶ 135 Additionally, plaintiffs did not bind themselves to any other completion date during the

course of discovery. In the case of Bluewater, Kiferbaum was equivocal in his deposition about

the December 27, 2008, date. When we read his entire deposition, it is clear that Kiferbaum

never unconditionally admitted to the date. When asked whether it was Bluewater’s last day of

work on the property, Kiferbaum first responded, “No.” When asked again, he responded,

“Not necessarily.” When Kiferbaum did say that the last day of work was December 27, he did

so only after he was pressed to answer “based on [the] checks” placed before him in the

deposition. Moreover, Bluewater produced emails in its original document production that

occurred after December 27, 2008, which indicated that work was then ongoing on the

property. Kiferbaum also testified to these emails in his deposition. Thus, Kiferbaum did not

deliberately, clearly, and unequivocally admit to a binding completion date of December 27,

2008, in his deposition testimony.

¶ 136 Premier is not bound to the December 29, 2008, date stated in its first answer to

defendants’ written interrogatories. The December 29 date was plainly premised on the

documents that Premier attached to its first answer. When Premier uncovered more documents

that evidenced a later completion date, it timely served an amended answer reflecting these

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new documents. Indeed, parties should not be discouraged from presenting new evidence and

documents which they may have originally overlooked.

¶ 137 D. Additional Arguments Against Enforceability

¶ 138 1. Brief Statement of Contract

¶ 139 In relevant part, section 7 of the Act requires a mechanics lien claim to include “a brief

statement of the claimant’s contract.” 770 ILCS 60/7 (West 2008). Defendants argue (1) that

Bluewater failed to comply with section 7 of the Act because it misdescribed its contract with

the owner as “written,” and (2) that Premier failed to comply with section 7 because the lien

claim stated that the contract was between Joseph and Premier on one hand, and Harris and

SMH Development on the other hand, when its countercomplaint alleged “the actual contract

was between Premier and SMH Development.”

¶ 140 It is important to note that defendants do not argue that plaintiffs failed to include a “brief

statement” of their contracts, but instead argue that plaintiffs’ claims are invalid because they

did not provide accurate brief statements of their contracts. For the proposition that inaccurate

statements about a contract invalidate a lien, defendants rely on Ronning Engineering Co. v.

Adams Pride Alfalfa Corp., 181 Ill. App. 3d 753 (1989), and Candice Co. v. Ricketts, 281 Ill.

App. 3d 359, 364 (1996).

¶ 141 Both the Ronning and Candice cases concerned significant inaccuracies in the plaintiffs’

descriptions of their written contracts and are distinguishable from the case at bar. See

Ronning, 181 Ill. App. 3d at 753 (holding that a lien claim “did not contain a sufficient ‘brief

statement of the contract’ ” because the “claim for lien described the wrong contract”); see also

Candice, 281 Ill. App. 3d at 363-64 (holding that, where the original contractor assigned its

rights to a lien claim to the plaintiff, the lien claim was defective because the plaintiff

inaccurately described itself as the original contracting party). Neither Ronning nor Candice

states that a description of a contract must be absolutely correct and perfect to be enforceable.

On the contrary, the language used by both courts suggests that a lien claim need only a

sufficiently correct description of a contract to be enforceable. See Candice, 281 Ill. App. 3d at

364 (“The Ronning court concluded that, based on these facts, the lien was invalid because it

did not contain a sufficient statement of the contract forming the basis of the claims.”).

¶ 142 In the present case, the errors defendants claim plaintiffs made are nowhere near as

grievous as the errors in Ronning and Candice. Though Bluewater did not produce a singular

“written” contract signed by the parties, Bluewater produced numerous written

correspondences, emails, proposals, and change orders that evidence a written agreement and

performance of that agreement with the owner. Additionally, while Joseph may not have

described the exact capacities he and Harris were acting in when they contracted together,

Premier’s description of the parties is substantially correct. In the end, there is no doubt that

Premier was contracting with Harris or one of the entities in which Harris was the sole

member-manager. Therefore, plaintiffs provided sufficiently accurate “brief statement[s] of

[their] contract[s]” to comply with section 7 of the Act.

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¶ 143 2. Amount Due Under Bluewater’s Lien

¶ 144 Defendants argue that Bluewater “knowingly grossly overstated” that it provided work

with a value of $131, 755. Thus, defendants argue, Bluewater’s claim is void under section 7

because it is “constructively fraudulent.”

¶ 145 Section 7 of the Act provides that no lien “shall be defeated to the proper amount thereof

because of an error or overcharging on the part of any person claiming a lien therefor under this

Act, unless it shall be shown that such error or overcharge is made with intent to defraud.” 770

ILCS 60/7 (West 2008). The intent to defraud is shown “ ‘by executed documents that on their

face overstate the amount due in combination with some other evidence of record from which

intent could be inferred.’ ” (Emphasis in original.) Cordeck Sales, Inc. v. Construction

Systems, Inc., 382 Ill. App. 3d 334, 373 (2008) (quoting Peter J. Hartmann Co. v. Capitol Bank

& Trust Co., 353 Ill. App. 3d 700, 708 (2004)).

¶ 146 “A [mechanics lien] claimant who knowingly makes a false statement regarding a material

matter should not be allowed to recover because the effect of his actions is to give the

appearance of a greater encumbrance on the property than that to which he is entitled.”

(Internal quotation marks omitted.) Peter J. Hartmann Co., 353 Ill. App. 3d at 706. However,

“Illinois courts have long held that this provision is intended to protect the honest lien claimant

who makes a mistake rather than a dishonest claimant who knowingly makes a false

statement.” Bank of America National Trust & Savings Ass’n v. Zedd Investments, Inc., 276 Ill.

App. 3d 998, 1000-01 (1995) (citing Christian v. Allee, 104 Ill. App. 177, 188 (1902)).

¶ 147 Where a lien claimant (1) knowingly (2) files a lien containing a “substantial overcharge,”

the claim should be defeated on the basis of constructive fraud. Cordeck Sales, Inc., 382 Ill.

App. 3d at 371 (citing Peter J. Hartmann Co., 353 Ill. App. 3d at 708). However, in the present

case, defendants have neither shown that Bluewater knowingly filed its lien with a substantial

overcharge nor that the alleged overcharge is substantial enough to constitute constructive

fraud.

¶ 148 Defendants attempt to use Kiferbaum’s deposition testimony and a check paid from

Bluewater to Kiferbaum as “the other evidence of record” to demonstrate that Kiferbaum had

the knowing intent to defraud. See Cordeck Sales, 382 Ill. App. 3d at 373. However,

Kiferbaum’s testimony does not imply that Bluewater “knowingly grossly overstated” the

amount due as defendants claim. On the contrary, Kiferbaum’s testimony was that he

estimated the amount to his “best recollection based on material purchased, based on *** what

[his] judgment as the contractor, as the subcontractor was.” Moreover, the fact that Kiferbaum

testified he could be “off” as to his estimate is not evidence of fraud, but merely an admission

that he and his calculations were fallible. Furthermore, we do not find Kiferbaum’s statements

that his father paid for and completed the cement work evidence of constructive fraud.

Kiferbaum clearly states that the plan was for Bluewater to reimburse his father for the work.

Additionally, the check paid from Bluewater to Kiferbaum is not evidence of constructive

fraud, but rather appears to be reimbursement for material purchases.

¶ 149 Additionally, defendants cite no previous cases that found constructive fraud with

overcharges similar to the alleged overcharge in the case at bar. However, plaintiffs cite

several cases that demonstrate constructive fraud is typically found where there are

significantly greater overcharges than those found here. See, e.g., Bank of America National

Trust & Savings, 276 Ill. App. 3d at 999 (finding that “lien claims should be defeated on the

basis of constructive fraud where a lien claimant files multiple liens that create the appearance

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of an encumbrance on the property which is substantially greater than the amount the claimant

is owed” (emphasis added)); see also Lohmann Golf Designs, Inc. v. Keisler, 260 Ill. App. 3d

886 (1994) (finding that a contractor engaged in constructive fraud when it (1) filed three

separate lien claims on three different properties, and (2) each lien claim sought the aggregate

value of all three properties combined, overcharging each property and effectively tripling the

aggregate amount due to the contractor). Thus, we cannot say that the amount stated on

Bluewater’s lien claim constitutes a substantial overcharge on its face, or on the evidence

presented in the motion for summary judgment and the response.

¶ 150 E. Conclusion

¶ 151 In sum, plaintiffs’ lien claims are enforceable on their face, since (1) the incorrect dates on

plaintiffs’ liens do not invalidate their claims; (2) plaintiffs’ statements of incorrect dates do

not constitute binding judicial admissions; (3) plaintiffs complied with section 7’s requirement

to provide a “brief statement of the contract” on their lien claims; and (4) the amount owed as

stated in Bluewater’s lien claim is not constructive fraud on its face, or on the evidence

presented in the motion for summary judgment and the response.

¶ 152 IV. Motions for Leave to Amend

¶ 153 Since plaintiffs’ lien claims are facially enforceable, we next consider whether the trial

court erred when it denied plaintiffs’ motions for leave to amend their complaints with the new

completion dates. Again, we note that the trial court’s denial of plaintiffs’ motions for

summary judgment was premised on its finding that plaintiff’s statements constituted binding

judicial admissions:

“[The motion for leave to amend is] denied for the same reasons [the trial court] ha[s]

to grant summary judgment, that [plaintiffs] cannot salvage this lien by virtue of the

evidence of work that was alleged to have been done after the sworn date.”

We also note that section 12 of the Mechanics Lien Act provides that “[t]he court shall permit

amendments to any part of the pleadings, and may issue process, [and] make all orders *** that

are or may be authorized in other civil actions.” (Emphases added.) 770 ILCS 60/12 (West

2008).

¶ 154 The trial court’s decision of whether to grant a motion to amend pleadings is within the

discretion of the trial court, and the reviewing court will not reverse the trial court’s decision

absent an abuse of discretion. Shutkas Electric, Inc. v. Ford Motor Co., 366 Ill. App. 3d 76, 82

(2006). “An abuse of discretion occurs when no reasonable person would take the view

adopted by the court.” Trettenero v. Police Pension Fund, 333 Ill. App. 3d 792, 801 (2002)

(citing In re Marriage of Blunda, 299 Ill. App. 3d 855, 865 (1998)). “In considering whether

the trial court has abused its discretion in denying plaintiff’s motion for leave to file a second

amended complaint, we look to the following four factors: *** (1) [whether] the proposed

amendment would cure the defective pleading; (2) [whether] other parties would sustain

prejudice or surprise by virtue of the proposed amendment; (3) [whether] the proposed

amendment is timely; and (4) [whether] previous opportunities to amend the pleading could be

identified. [Citation.]” Shutkas Electric, Inc. v. Ford Motor Co., 366 Ill. App. 3d 76, 82 (2006).

¶ 155 Defendants’ argument that plaintiffs’ proposed amendment would be futile and would not

cure their defective pleadings is not persuasive. Defendants’ argument is premised on the trial

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court’s finding that plaintiffs are bound to their prior written completion dates. Since the

completion dates stated on plaintiffs’ lien claims are not binding judicial admissions,

plaintiffs’ proposed amendments are not futile and would cure the defective pleading.

¶ 156 Moreover, defendants would not sustain undue hardship or surprise if plaintiffs were

granted leave to amend. Since the first dates given on the filing of the mechanics lien and the

requested amended dates are both within the statutory periods required by the Act, both dates

are timely and defendants cannot claim prejudice. See 770 ILCS 60/7, 24 (West 2008); see also

United Cork, 365 Ill. at 573 (holding that “variance between allegations and proof, in order to

be fatal [to a lien claim], must be substantial and material[ly affect defendants’ rights]”);

Merchants Environmental, 314 Ill. App. 3d at 861 (noting that requiring completion dates to be

stated on lien claims protects the rights of third parties to notice that the lien claim is

enforceable).

¶ 157 Finally while we acknowledge Premier was granted leave to amend its complaint early in

2012, we are not persuaded by defendants’ argument that this opportunity alone is sufficient to

preclude Premier from further opportunities to amend its complaint.

¶ 158 As noted, “any admissions not the product of mistake or inadvertence become binding

judicial admissions.” (Emphasis added.) Rynn, 181 Ill. App. 3d at 235-36 (citing Erickson, 115

Ill. App. 3d at 1028). Since “penalizing confusion or an honest mistake [is] not among the

purposes of the doctrine of judicial admissions, it must [be shown] that the party making the

statement had no reasonable possibility of being mistaken in order for the statement to qualify

as a judicial admission.” Herman, 388 Ill. App. 3d at 361 (citing Trapkus v. Edstrom’s, Inc.,

140 Ill. App. 3d 720, 723 (1986)).

¶ 159 As a result, we cannot find that a reasonable court would have denied plaintiffs’ motions

for leave to amend their complaints with new completion dates.

¶ 160 V. Motions for Summary Judgment

¶ 161 Since (1) plaintiffs’ lien claims are valid and enforceable on their face, and (2) plaintiffs

should have been granted leave to amend their complaints with new completion dates, we now

consider whether the trial court erred when it granted defendants’ motions for summary

judgment and denied Bluewater’s motion for summary judgment.

¶ 162 A. Bluewater

¶ 163 We first consider whether Bluewater produced sufficient evidence to establish a genuine

issue of material fact that it provided timely notice to the Bank under section 24 of the Act.

Section 24 provides that “[s]ub-contractors *** at any time after making his or her contract

with the contractor *** shall within 90 days after the completion [of work] *** cause a written

notice of his or her claim and the amount due or to become due thereunder, to be sent *** to the

lending agency.” 770 ILCS 60/24 (West 2008). In other words, in order to defeat summary

judgment, Bluewater must have produced evidence that it completed work on the property

within 90 days of serving the Bank with notice of its lien claim. See 735 ILCS 5/2-1005(c)

(West 2008).

¶ 164 As previously noted, Bluewater served the Bank with notice of its lien on the property

when Bluewater recorded its lien claim on April 3, 2009, stating that they completed their work

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on January 4, 2009. Bluewater was not able to produce evidence that work occurred on that

date and now claims that that date was mistaken and that work was completed on January 5,

2009.

¶ 165 To establish that work occurred on January 5, 2009, Bluewater primarily relies on the

sworn verified affidavit of Keith Thomas, senior project manager for SMH. Thomas avers that

on Monday, December 29, 2008, he approved Bluewater to perform $4,600 of cement work on

the property on Monday, January 5, 2009. 6 Thomas also avers that the cement work was

completed, but does not specifically claim that it was in fact completed on January 5 or on any

other date.

¶ 166 In his discovery deposition, Kiferbaum was questioned about the cement work. He testified

that his father, Hanan Kiferbaum, paid for the concrete work and that “the idea was that

Bluewater was going to reimburse him on that particular item.” However, Hanan was

“reimbursed for that” and Kiferbaum could not recall which date his father performed the

concrete work. When Kiferbaum was asked whether Bluewater had ever employed anyone

other than himself, Kiferbaum responded, “At one point, and I don’t know if it’s considered to

be as an employee or subcontractor, my father, Hanan Kiferbaum, had worked on projects with

me.”

¶ 167 Bluewater produced sufficient evidence to establish a genuine issue of material fact as to

whether it completed work within 90 days of notifying the Bank of its lien claim. Bluewater

produced an email evidencing an agreement to complete cement work within the 90-day

period. This agreement took place just three days before the 90-day period began. Moreover,

Thomas, who is not affiliated with Bluewater, corroborated in his sworn affidavit that the

agreement to do the cement work did occur on December 29, 2008, and that the work subject to

this agreement was ultimately completed. In addition, Kiferbaum testified that his father

completed the cement work. While Kiferbaum was unsure whether to call his father an

employee of Bluewater and unsure about the exact date his father performed the cement work,

Kiferbaum testified that the plan was for Bluewater to reimburse his father for the work.

¶ 168 In light of the foregoing evidence, the trial court erred when it granted defendants’ motion

for summary judgment against Bluewater because the evidence establishes a genuine issue of

material fact as to whether Bluewater notified the Bank within 90 days of work completion.

For the same reason, the trial court properly denied Bluewater’s motion for summary judgment

against defendants.

¶ 169 B. Premier

¶ 170 Finally, we consider whether Premier produced sufficient evidence to create a genuine

issue of material fact as to whether Premier timely recorded its lien claim under section 7 of the

Act. Section 7 provides that, in order to be enforceable against third parties, a lien claimant

must file or record a lien claim “within 4 months after completion.” 770 ILCS 60/7 (West

2008).

¶ 171 As noted, Premier recorded its lien claim on June 26, 2009. Subtracting four months from

this date, February 26, 2009, is the earliest date that Premier could have completed work on the

property to comply with section 7. Thus, Premier must produce evidence that it completed

6

In its original document production, Bluewater produced the email in which Thomas approved

the January 5, 2009, cement work.

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work on the property on or after February 26, 2009. On its lien claim, Premier originally stated

that February 27, 2009, was its date of completion. However, Premier was not able to produce

evidence that work occurred on that date. Nevertheless, Premier now claims that the date was

mistaken and that work was actually completed on March 4, 2009.

¶ 172 To establish that work occurred on March 4, 2009, Premier submitted a timesheet

reflecting that date as well as the sworn verified affidavits of Ann Birt, Jack Hartnett, a

foreman for Premier on the property, and Christopher Birt, Joseph’s brother and an employee

of Premier.

¶ 173 Ann’s affidavit stated that she “manually searched for time records *** as part of the

original document production” and found timesheets from “November 14, 2008 through

December 29, 2008.” Ann also stated that after the original document production, Joseph

“informed her that he believed that December 29, 2008, was not the last of work on [the]

project because the work was not finished when he received” the check from Harris on

February 27, 2009. She stated: “At [Joseph’s] request I re-examined our time record books

including the records for 2009 and noted that I overlooked a time sheet for March 4, 2009, a

true and accurate copy of which is attached to this affidavit.”

¶ 174 Hartnett’s affidavit stated that, as a foreman on the project, “the last day [he] recall[ed]

working on the project was on March 4, 2009.” He stated that he completed the time record

that Ann stated she initially overlooked. Moreover, Hartnett stated that on December 29, 2008,

“snow and ice prevented installing permanent flashing around the skylight curbs that had been

cut into the roof but [he] recall[ed was] not finished.” He stated that temporary flashings were

installed until Premier could install ones that were permanent. Hartnett stated that the reason

why the work was not completed until March 4, 2009, was because “there was adverse weather

(snow, ice and cold) which prevented the brick masons from repairing work” and because the

“mortar joints were deteriorated so that [Premier] could not attach the termination bar and

counter-flashing without brick masons first repairing that part of the wall.”

¶ 175 Christopher Birt’s affidavit stated he recalled “after December 29, 2008, work was

suspended due to weather [conditions] and due to the fact that other trades did not complete

installing the HVAC units on the roof until February 2, 2009.” Christopher stated that “[o]ften

work is interrupted due to adverse weather conditions such as freezing temperatures which

may cause the Johns Mansville roofing material [Premier] used on the roof to crack and/or not

adhere properly to the underlayment” and that “work is often delayed until other trade

complete their involving roof penetrations[,] such as piping, mechanical units, skylights curbs,

and other such items.” Finally, he stated that he completed the project on March 4, 2009,

“including the flashing and priming [of the roof].”

¶ 176 Premier produced sufficient evidence to establish a genuine issue of material fact as to

whether it completed work within four months of filing its lien claim. Premier produced not

one, but three affidavits stating in detail the reasons for the original incorrect completion date

and the reason work was not completed until March 4, 2009. Given the foregoing evidence, the

trial court erred when it granted defendants’ motion for summary judgment against Premier.

¶ 177 CONCLUSION

¶ 178 In conclusion, (1) the Bank has not yet released its mortgage and has standing in this

action; (2) plaintiffs’ statements of incorrect completion dates do not constitute binding

judicial admissions and do not bar plaintiffs from presenting evidence of a later completion

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date within the statutory period; (3) plaintiffs’ mechanics liens are facially enforceable as a

matter of law; (4) the trial court erred when it denied plaintiffs’ motions for leave to amend

their counterclaims with new completion dates; and (5) there are genuine issues of material

fact concerning whether plaintiffs complied with the requirements of the Mechanics Lien Act.

As a result, the trial court erred when it granted defendants’ motions for summary judgment

against plaintiffs. However, we affirm the trial court’s denial of Bluewater’s motion for

summary judgment for the same reasons.

¶ 179 Affirmed and reversed in part; cause remanded with instructions.

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