Ally Financial Inc. v. Pira

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Appellate Court Date: 2018.04.10

09:37:19 -05'00'

Ally Financial Inc. v. Pira, 2017 IL App (2d) 170213

Appellate Court ALLY FINANCIAL INC., Plaintiff-Appellee, v. MICHAEL PIRA,

Caption d/b/a Michael’s Ultimate Detailing & Design, Inc., Defendant-

Appellant.

District & No. Second District

Docket No. 2-17-0213

Filed December 5, 2017

Decision Under Appeal from the Circuit Court of Lake County, No. 15-LM-1132; the

Review Hon. Daniel L. Jasica, Judge, presiding.

Judgment Affirmed.

Counsel on Richard D. Grossman, of Law Offices of Richard D. Grossman, of

Appeal Chicago, for appellant.

Law Offices of Gabriel B. Antman, P.C., of Chicago (Gabriel B.

Antman, of counsel), and Riezman Berger, P.C., of St. Louis,

Missouri (Nelson L. Mitten and Abby N. Schneider, of counsel), for

appellee.

Panel JUSTICE HUTCHINSON delivered the judgment of the court, with

opinion.

Presiding Justice Hudson and Justice Spence concurred in the

judgment and opinion.

OPINION

¶1 Plaintiff, Ally Financial, Inc., filed a complaint for replevin against defendant, Michael

Pira, doing business as Michael’s Ultimate Detailing & Design, Inc., seeking possession of a

2013 Chevrolet Silverado. Defendant asserted as an affirmative defense that he had a common

law possessory lien, not only for the cost of the work that had been performed on the vehicle,

but also for the storage fees that had accrued after the work was completed. The parties filed

cross-motions for summary judgment on the sole issue of whether defendant’s lien included

the storage fees. The trial court found that defendant’s lien covered only the charges relating to

the work that had been performed on the vehicle, and accordingly, it ruled in favor of plaintiff.

Defendant now appeals. We affirm.

¶2 I. BACKGROUND

¶3 We begin by noting that the appellate record contains no reports of proceedings or

bystander’s reports. The following facts are therefore derived from the pleadings. Much of our

factual recitation is relevant only for jurisdictional purposes.

¶4 Plaintiff’s verified complaint for replevin was filed on June 11, 2015. Plaintiff alleged that

Robert Siudak had purchased a 2013 Chevrolet Silverado in March 2013. After Siudak

executed an installment contract with the dealer, the dealer assigned its interest in the

installment contract to plaintiff, and plaintiff perfected its security interest in the vehicle.

Plaintiff alleged that Siudak brought the vehicle to defendant’s shop shortly before Siudak

filed for bankruptcy, in September 2014. Due to Siudak’s nonpayment, and pursuant to the

terms of the installment contract, plaintiff asserted its right to possession of the vehicle.

However, defendant refused to relinquish possession, demanding full payment of all storage

fees in addition to the cost of the work that had been performed on the vehicle.

¶5 Plaintiff asserted that it was not obligated to pay the storage fees and that it had a superior

right to possession of the vehicle, which had a fair market value of $33,475. Accordingly,

plaintiff requested that the trial court enter a judgment granting plaintiff possession of the

vehicle or, in the alternative, an award against defendant in the amount of $33,475. Plaintiff

also requested an award for “[r]easonable attorney’s fees, court costs, and for whatever other

relief this court deems appropriate.”

¶6 Defendant’s answer was accompanied by an affirmative defense. Defendant asserted that

he had a common law possessory lien, for the cost of the work and the storage fees, that took

priority over plaintiff’s security interest. In an affidavit, defendant attested that Siudak dropped

off the vehicle for detailing and minor repairs on June 9, 2014. The work was completed the

next day. The charges for the detailing and the repairs amounted to $658. Defendant called

Siudak numerous times and left several voice messages. However, Siudak never returned any

of the calls, nor did he ever return to pick up the vehicle. Defendant asserted that, as of October

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30, 2015, the storage fees amounted to $27,780, accumulating at a reduced rate of $60 per day

(the normal rate was $75 per day).

¶7 The parties filed cross-motions for summary judgment. Plaintiff acknowledged that

defendant was entitled to the cost of the detailing and the repairs, and it averred that it had

offered to make such payment. Plaintiff maintained, however, that defendant’s common law

possessory lien did not extend to the storage fees, as the storage did not impart any added value

to the vehicle. Defendant, on the other hand, argued that his lien arose by virtue of his contract

with Siudak and that he was therefore entitled to the same rights as a common carrier.

¶8 On February 4, 2016, the trial court ruled on the cross-motions for summary judgment,

entering an order that granted plaintiff’s motion and denied defendant’s motion. The order

included a ruling that, “as a matter of law in this case, [defendant’s] common law possessory

lien covers repair charges, but not storage charges.” The order also stated that the matter was

“continued for further status” to March 3, 2016.

¶9 Also on February 4, 2016, the trial court issued an order of replevin directing the Lake

County sheriff to take possession of the vehicle and deliver it to plaintiff. However, a

handwritten notation stated that execution of the order was stayed through March 3, 2016.

Another handwritten notation stated that the order would be executed “upon payment of

defendant’s common law possessory lien for repair charges.”

¶ 10 The record reflects that the next four court dates took place on March 3, April 14, May 5,

and June 2, 2016. Defendant did not appear in court on any of these dates. On each occasion,

the trial court entered an order of replevin. None of these orders contained any handwritten

notations or conditions of enforcement.

¶ 11 On June 14, 2016, defendant filed a motion for a finding of “friendly contempt.” He stated

that he desired to “test the validity” of the underlying order of replevin, and he asserted that

there was “no direct precedent” on the issue of whether his common law possessory lien

covered the storage fees. Accordingly, defendant requested that the trial court impose a

minimal fine for the purpose of facilitating an interlocutory appeal pursuant to Illinois

Supreme Court Rule 304(b)(5) (eff. Mar. 8, 2016).

¶ 12 Plaintiff filed a memorandum in opposition to defendant’s friendly contempt motion,

asserting that defendant needed to post a bond if he wanted to retain possession of the vehicle

while the replevin action “proceed[ed] to final judgment and during any subsequent appeal.”

According to plaintiff, defendant’s friendly contempt motion was nothing more than a

procedural ploy aimed at retaining possession of the vehicle without having to post a bond.

¶ 13 On October 6, 2016, the trial court entered an order denying defendant’s friendly contempt

motion. The order noted that defendant’s counsel had failed to appear at the hearing that day,

as well as the previous hearing, and that the matter was again “continued for status” to

November 3, 2016.

¶ 14 The record reflects that plaintiff obtained possession of the vehicle after the denial of

defendant’s friendly contempt motion. (In its appellate brief, plaintiff states that it “recovered

the Vehicle on or about October 21, 2016, through its own recovery company and paid

Defendant the total cost of repairs in the amount of $681.00.”)

¶ 15 On November 3, 2016, the trial court entered an order prepared by plaintiff’s counsel that

stated: “This matter is hereby dismissed, without prejudice and with leave to reinstate, and

without costs to either party.”

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¶ 16 On December 13, 2016, defendant filed a “motion for the entry of a final and appealable

order.” Defendant acknowledged that he had relinquished possession of the vehicle to plaintiff

following the denial of his friendly contempt motion. He argued, however, that the order

dismissing the case on November 3, 2016, was not final and appealable because it stated that

the case was dismissed “without prejudice and with leave to reinstate.” Defendant therefore

requested that the trial court enter an order “dismissing this case with prejudice.” Plaintiff filed

a response in opposition, arguing that the trial court lost jurisdiction to alter the order

dismissing the case after the passage of 30 days.

¶ 17 On February 23, 2017, the trial court granted defendant’s motion for the entry of a final and

appealable order. It entered an order stating in pertinent part: “This matter is dismissed with

prejudice nunc pro tunc to November 3, 2016; this court finding that, due to a scrivener’s error,

the Nov. 3, 2016, dismissal was entered without prejudice instead of with prejudice.”

¶ 18 Defendant filed a notice of appeal on March 16, 2017. He stated that he was appealing from

the order dated February 23, 2017, dismissing plaintiff’s complaint with prejudice, as well as

from the order dated February 4, 2016, in favor of plaintiff on the parties’ cross-motions for

summary judgment.

¶ 19 II. ANALYSIS

¶ 20 The only issue disputed on appeal is whether Illinois law supports defendant’s claim of a

common law possessory lien for the storage fees. However, before we address that issue, we

have an independent duty to consider our jurisdiction. Stoneridge Development Co. v. Essex

Insurance Co., 382 Ill. App. 3d 731, 739 (2008).

¶ 21 A. Jurisdiction

¶ 22 The Illinois Constitution confers on the appellate court jurisdiction to hear appeals from all

“final judgments” entered by the circuit court. Ill. Const. 1970, art. VI, § 6. A “final judgment”

is a “ ‘determination by the court on the issues presented by the pleadings which ascertains and

fixes absolutely and finally the rights of the parties in the lawsuit.’ ” (Emphasis omitted.)

Hernandez v. Pritikin, 2012 IL 113054, ¶ 47 (quoting Flores v. Dugan, 91 Ill. 2d 108, 112

(1982)). Thus, “a judgment or order is considered final and appealable if it determines the

litigation on the merits such that the only thing remaining is to proceed with execution of [the]

judgment.” People v. Shinaul, 2017 IL 120162, ¶ 10. If an order leaves the cause still pending

and undecided, it is not final for purposes of appeal. Id. However, if an order is final and

appealable, “a notice of appeal must be filed within 30 days after the entry of the final

judgment appealed from or, if a timely postjudgment motion directed against the judgment is

filed, within 30 days after the entry of the order disposing of the last pending postjudgment

motion.” Estate of Prather v. Sherman Hospital Systems, 2015 IL App (2d) 140723, ¶ 45; see

also Ill. S. Ct. R. 303(a)(1) (eff. Jan. 1, 2015).

¶ 23 This case involves an appeal from a ruling on cross-motions for summary judgment.

“When the lower court grants one party’s summary judgment motion as to all issues and denies

the other party’s summary judgment motion as to the same issues, the resulting order is final

and appealable because it entirely disposes of the litigation.” (Emphasis added.) Arangold

Corp. v. Zehnder, 187 Ill. 2d 341, 358 (1999).

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¶ 24 Here, the only issue raised in the cross-motions for summary judgment was whether

defendant had a common law possessory lien for the storage charges. On February 4, 2016, the

trial court entered an order that granted plaintiff’s motion and denied defendant’s motion,

including a ruling that, “as a matter of law in this case, [defendant’s] common law possessory

lien covers repair charges, but not storage charges.” The trial court continued the matter “for

further status” to March 3, 2016, presumably in hopes that defendant would transfer possession

of the vehicle to plaintiff without involving the sheriff. That explains why the accompanying

replevin order was stayed to March 3, 2016. But this had no bearing on the finality of the

underlying judgment, as the trial court was vested with the inherent power to enforce the

replevin order. See Smithberg v. Illinois Municipal Retirement Fund, 192 Ill. 2d 291, 297

(2000); see also Anest v. Bailey, 265 Ill. App. 3d 58, 66 (1994) (“the presence of language

retaining jurisdiction for purposes of enforcement does not necessarily render an otherwise

final and appealable order nonfinal”).

¶ 25 However, given the nature of replevin proceedings, plaintiff might have been entitled to

additional relief. “Replevin is strictly a statutory proceeding.” Gunn v. Sobucki, 216 Ill. 2d 602,

613 (2005); see 735 ILCS 5/19-101 et seq. (West 2014). Relevant here, plaintiff might have

been able to recover damages sustained by reason of defendant’s wrongful taking and

detention of the vehicle. See 735 ILCS 5/19-120, 19-125 (West 2014). Plaintiff might also

have been able to recover costs for expenses incurred by law enforcement officers in executing

the replevin order. See 735 ILCS 5/5-126.5 (West 2014).

¶ 26 In its complaint, plaintiff made a request for “[r]easonable attorney’s fees, court costs, and

for whatever other relief this court deems appropriate.” We note that nothing in the statutes on

replevin expressly authorizes attorney fees for the successful plaintiff in a replevin action.

Therefore, plaintiff’s request for attorney fees would not have been viable. See Housing

Authority of Champaign County v. Lyles, 395 Ill. App. 3d 1036, 1038 (2009) (observing that

Illinois follows the “American Rule,” meaning that each party must bear its own attorney fees

and costs unless they are expressly authorized by statute or by contractual agreement).

However, by requesting “court costs” and “whatever other relief” that the trial court deemed

appropriate, plaintiff left open the possibility that the trial court could award costs and damages

related to the recovery of the vehicle. The upshot is that the order entered on February 4, 2016,

did not entirely dispose of the litigation, meaning that it was not final and appealable.

¶ 27 Moving forward, as explained above, the case remained pending in the trial court for nine

months following the ruling on the cross-motions for summary judgment. The trial court

issued orders of replevin in March, April, May, and June. Defendant did not appear for any of

these court dates, nor did he return the vehicle to plaintiff. Rather, he filed a motion for a

finding of friendly contempt on June 14, 2016. He then failed to appear in court when his

motion was denied on October 6, 2016.

¶ 28 A confusing chain of events was set into motion when defendant finally appeared in court

on November 3, 2016, having recently relinquished possession of the vehicle. The parties

apparently sought to have the case “dismissed” for purposes of entering a final and appealable

order. The trial court entered an order that stated: “This matter is hereby dismissed, without

prejudice and with leave to reinstate, and without costs to either party.” However, an order

stating that a dismissal is “without prejudice” is not final and appealable. D’Attomo v.

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Baumbeck, 2015 IL App (2d) 140865, ¶ 23.1 This prompted defendant to file a motion on

December 13, 2016, “for the entry of a final and appealable order.” Defendant’s motion

included a request that the trial court enter an order “dismissing this case with prejudice.” Over

plaintiff’s objection, the trial court entered an order granting defendant’s motion on February

23, 2017. The order stated: “This matter is dismissed with prejudice nunc pro tunc to

November 3, 2016; this court finding that, due to a scrivener’s error, the Nov. 3, 2016,

dismissal was entered without prejudice instead of with prejudice.”

¶ 29 We first note that the final judgment in this case was issued when the trial court

“dismissed” the matter with prejudice on February 23, 2017. See Dubina v. Mesirow Realty

Development, Inc., 178 Ill. 2d 496, 502 (1997) (“A dismissal with prejudice is usually

considered a final judgment, including the dismissal of claims in a complaint.”). Because

defendant filed his notice of appeal within 30 days, we conclude that we have jurisdiction.

¶ 30 Regarding the nunc pro tunc language in the final judgment, we note that such an

amendment “must be based on some note, memorandum, or other memorial in the court

record.” Harreld v. Butler, 2014 IL App (2d) 131065, ¶ 13. Because we have no reports of

proceedings or bystander’s reports, we presume that the trial court’s order is in conformity

with the law and had a sufficient factual basis. See Webster v. Hartman, 195 Ill. 2d 426, 432

(2001). However, the nunc pro tunc language does not operate to deprive us of jurisdiction.

Although a nunc pro tunc order relates back to the time of the order it corrects, it does not

relate back to the extent that it would be impossible to file a notice of appeal within the time

required by supreme court rules. In re Marriage of Breslow, 306 Ill. App. 3d 41, 51 (1999)

(citing People v. Jones, 104 Ill. 2d 268, 278 (1984) (“[t]he effective date of the order by virtue

of the nunc pro tunc provisions may have been July 24, 1981, but the date of its entry for

purposes of appeal was November 6, 1981”)).

¶ 31 Aside from our jurisdiction, there is another aspect of these orders that warrants discussion.

Because of the manner in which the parties went about seeking the entry of a final and

appealable order, we are presented with a peculiar procedural posture: defendant is taking this

appeal after successfully obtaining a “dismissal” of plaintiff’s complaint with prejudice. This

issue has not been addressed in the briefs on appeal, and there is no indication that it was

addressed in the trial court.

¶ 32 Ordinarily, when a defendant obtains a dismissal of a plaintiff’s complaint with prejudice,

we are precluded from considering an appeal by the defendant. Argonaut-Midwest Insurance

Co. v. E.W. Corrigan Construction Co., 338 Ill. App. 3d 423, 427 (2003) (“Where a trial

court’s judgment is entirely in favor of a party, specific findings of the trial court that may have

been adverse to the party do not give rise to an appeal.”). Thus, taking the order dated February

23, 2017, at face value, defendant is precluded from seeking any relief on appeal.

¶ 33 However, the record here indicates that the parties and the trial court intended not to enter a

final judgment in defendant’s favor, but rather to enter a final judgment in plaintiff’s favor,

which defendant could then appeal. This is evidenced not only by defendant’s written

arguments in the trial court, but also by plaintiff’s memorandum in opposition to defendant’s

motion for a friendly contempt finding. In its memorandum, plaintiff argued that defendant

1

Suggestions to the contrary should be viewed with caution. See, e.g., Director of Insurance v. A&A

Midwest Rebuilders, Inc., 383 Ill. App. 3d 721 (2008); Kempa v. Murphy, 260 Ill. App. 3d 701 (1994).

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was attempting to avoid posting a bond and to retain possession of the vehicle while the

replevin action “proceed[ed] to final judgment and during any subsequent appeal.”

¶ 34 Thus, although the order dated February 23, 2017, formally declared a dismissal of

plaintiff’s complaint, it was substantively an order declaring that all matters had been finally

adjudicated. We will treat it accordingly. See Kiefer v. Rust-Oleum Corp., 394 Ill. App. 3d 485,

494 (2009) (“Orders must be construed in a reasonable manner so as to give effect to the

apparent intention of the trial court.”).

¶ 35 Before addressing the merits of this appeal, we comment that this case had clearly come to

a close when the parties appeared on November 3, 2016. The trial court had denied defendant’s

motion for a friendly contempt finding, plaintiff had recovered the vehicle, and there was no

award of costs or damages related to the recovery. Under these circumstances, all that was

needed for purposes of finality was an order indicating that the trial court had finally disposed

of all issues as to the parties. See Brentine v. DaimlerChrysler Corp., 356 Ill. App. 3d 760, 765

(2005) (“Once the trial court enters a judgment disposing of all the issues as to all the parties,

such an order becomes final and appealable, and a party has 30 days to file either a notice of

appeal or a postjudgment motion.”). By instead seeking to achieve finality through a dismissal,

the parties unnecessarily complicated the parameters of our review. If these circumstances

should arise in the future, it would be wise to seek the entry of a final and appealable order that

leaves the plaintiff’s complaint formally intact.

¶ 36 B. Common Law Possessory Lien

¶ 37 Defendant contends that the trial court erred in ruling on the parties’ cross-motions for

summary judgment, maintaining that his common law possessory lien applied not only to the

charges for the work that had been performed on the vehicle, but also to the storage fees that

accrued thereafter. For the following reasons, we disagree.

¶ 38 Summary judgment is proper only where the pleadings, depositions, admissions, and

affidavits on file 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. 735 ILCS 5/2-1005(c) (West 2014). When the

parties file cross-motions for summary judgment, they agree that there is no issue as to any

material fact and that only questions of law are presented. City of Oakbrook Terrace v.

Suburban Bank & Trust Co., 364 Ill. App. 3d 506, 510 (2006). However, a court may still

determine the existence of a factual issue sufficient to preclude the entry of summary

judgment. We review de novo the propriety of an order granting summary judgment. Id.

¶ 39 Our supreme court has observed that Illinois recognizes the validity of the common law

possessory lien, known in certain instances as the “artisan’s possessory lien.” National Bank of

Joliet v. Bergeron Cadillac, Inc., 66 Ill. 2d 140, 143 (1977). Like this case, Bergeron Cadillac

involved a secured creditor’s action for replevin seeking possession of a vehicle that had been

left at a repair shop. The court held that the defendant’s common law possessory lien for the

cost of the vehicle repairs took priority over the plaintiff’s earlier perfected security interest. In

so holding, the court rejected the plaintiff’s contention that our legislature intended for the

common law possessory lien to be superseded by statutes that created liens in favor of

repairmen with respect to personal property. Id. at 143-44. This holding was based on the

then-applicable section 9-310 of the Uniform Commercial Code, which provided as follows:

“When a person in the ordinary course of his business furnishes services or

materials with respect to goods subject to a security interest, a lien upon goods in the

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possession of such person given by statute or rule of law for such materials or services

takes priority over a perfected security interest unless the lien is statutory and the

statute expressly provides otherwise.” Ill. Rev. Stat. 1973, ch. 26, ¶ 9-310.

¶ 40 Section 9-310 has since been supplanted and codified as section 9-333 of the Uniform

Commercial Code. It provides as follows:

“(a) ‘Possessory lien.’ In this Section, ‘possessory lien’ means an interest, other

than a security interest or an agricultural lien:

(1) which secures payment or performance of an obligation for services or

materials furnished with respect to goods by a person in the ordinary course of the

person’s business;

(2) which is created by statute or rule of law in favor of the person; and

(3) whose effectiveness depends on the person’s possession of the goods.

(b) Priority of possessory lien. A possessory lien on goods has priority over a

security interest in the goods unless the lien is created by a statute that expressly

provides otherwise.” 810 ILCS 5/9-333 (West 2016).

¶ 41 Here, there is no dispute as to whether defendant’s common law possessory lien takes

priority over plaintiff’s secured interest in the vehicle. As the pertinent language of section

9-333 tracks that of its predecessor, our supreme court’s holding in Bergeron Cadillac remains

applicable. However, there is scarce Illinois case law discussing the extent of a common law

possessory lien. As a result, the parties have focused their arguments primarily on two cases:

Navistar Financial Corp. v. Allen’s Corner Garage & Towing Service, Inc., 153 Ill. App. 3d

574 (1987), and Country Mutual Insurance Co. v. Styck’s Body Shop, Inc., 396 Ill. App. 3d 241

(2009). We will discuss Navistar and Styck’s Body Shop in turn.

¶ 42 In Navistar, this court observed that common law possessory liens are “fundamentally

consensual in nature and can be created only by agreement, by some fixed rule of law, or by

usage of trade or commerce.” Navistar Financial Corp., 153 Ill. App. 3d at 576. The common

law possessory lien has no provision for forfeiture and sale; rather, it is limited to the right to

possession of the chattel until the charges have been paid. Id. Such a lien is available to two

categories of persons: (1) artisans who impart added value to the property and (2) common

carriers who are bound by law to accept and carry the goods. Id. at 576-77 (citing George v.

Walton, 43 N.E.2d 515, 517 (Ohio Ct. App. 1942)).

¶ 43 The defendant in Navistar towed a truck-trailer unit to its garage after removing it from a

ditch on the side of a highway. Shortly thereafter, the plaintiff, a secured creditor, contacted the

defendant and claimed the right to possession of the truck, due to the owner’s default on his

purchase loan agreement. However, the defendant refused to release the truck until all towing

and storage charges were paid for the entire truck-trailer unit. This led the plaintiff to file a

complaint for replevin seeking possession of the truck. The trial court found that the defendant

had established a common law possessory lien for the towing charges related to the truck, but

not for the storage fees. Id. at 575-76.

¶ 44 On appeal, this court affirmed the trial court’s ruling. We first held that, although the

defendant qualified as a common carrier, it did not qualify as an artisan, as the “mere towing of

a vehicle from one place to another does not add anything to the ‘intrinsic value’ of the vehicle

towed.” Id. at 577 (citing West Allis Industrial Loan Co. v. Stark, 222 N.W. 310, 311 (Wis.

1928)). Turning to the issue of the storage fees, we noted cases where common carriers were

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awarded common law liens for storage fees after sustaining “some inconvenience or expense

by storing the property until the receiver was ready to remove it.” Id. at 578 (citing

Schumacher v. Chicago & Northwestern Ry. Co., 207 Ill. 199, 207-08 (1904), and Gregg v.

Illinois Central R.R. Co., 147 Ill. 550, 562-63 (1893)). However, because the defendant had

“retained and stored the truck for no reason other than to be able to insist on its lien rights,” we

held that it was not entitled to a common law possessory lien for the storage fees. Id. at 579.

¶ 45 Here, defendant relies on Navistar for the proposition that his common law possessory lien

covered the storage fees because he sustained an “inconvenience and expense” by storing the

vehicle in conjunction with his services that imparted added value to the vehicle. We disagree.

We said nothing in Navistar to indicate that artisans—or those who impart added value to the

property—are entitled to a common law possessory lien for storage fees. Rather, we concluded

that common carriers might be entitled to a common law possessory lien for storage fees

unless they retain the goods in question solely for the purpose of preserving lien rights. Id. at

578. In so holding, we cited cases that highlighted the unique functions and responsibilities of

common carriers. See Schumacher, 207 Ill. at 207-08:

“When a railroad company delivering freight at its point of destination has no

warehouse at that point suitable for the storage of bulk freight in car-load lots, and the

property is of such character that the cars in which it is transported furnish a proper and

safe place for the same, so that it is not liable to damage or deterioration arising from

heat or cold or the elements, there would seem to be no reason for requiring the

transporting company to seek a warehouse of another and add the cost of removal to the

cost of storage when said freight may properly be held in storage in the cars in which

the same was carried; and after notice to the consignee, and a reasonable time to

remove the same, reasonable storage charges may be collected therefor and the freight

held for the payment thereof.”

See also Gregg, 147 Ill. at 560 (“The railroad company was not required to keep the corn in its

cars on track indefinitely, and although the consignee was in default in not receiving the

freight, after reasonable time and opportunity had been afforded in which to take it, the carrier

could not abandon it, but was required to exercise ordinary and reasonable care for its

preservation as warehouseman.”).

¶ 46 Defendant recognizes our distinction in Navistar between artisans and common carriers,

but he asserts that he took on the role of a common carrier after Siudak abandoned the vehicle

at his shop. Again, we disagree. In Illinois, a common carrier is “ ‘one who undertakes for the

public to transport from place to place such persons or the goods of such persons as choose to

employ him for hire.’ ” Browne v. SCR Medical Transportation Services, Inc., 356 Ill. App. 3d

642, 646 (2005) (quoting Illinois Highway Transportation Co. v. Hantel, 323 Ill. App. 364,

374 (1944)). Additionally, a common carrier must hold itself out to provide its services to the

general public. Holland Motor Express, Inc. v. Illinois Commerce Comm’n, 165 Ill. App. 3d

703, 714 (1987).

¶ 47 Here, there is no evidence that defendant held himself out as one who undertook to

transport persons or goods. Therefore, pursuant to Navistar, defendant is entitled only to the

common law lien rights of an artisan. The weight of authority from other jurisdictions makes it

clear that an artisan’s common law possessory lien does not extend to storage fees, but rather

applies only to “reasonable charges” for the work that imparted the added value. See, e.g.,

Mack Motor Truck Corp. v. Wolfe, 303 S.W.2d 697, 702 (Mo. Ct. App. 1957) (observing the

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“great weight of authority” holding that an artisan has no common law lien for storage fees);

Yellow Manufacturing Acceptance Corp. v. Bristol, 236 P.2d 939, 946 (Or. 1951) (“At

common law, artisans, tradesmen, mechanics, and laborers, who received property for the

purpose of mending, repairing, and improving its condition for hire, had a possessory lien on

such property until the reasonable charges and expenses thereon were paid.”); Flesher v.

Handler, 21 N.E.2d 975, 976 (Mass. 1939) (“Although carriers and warehousemen have liens

for storage, recognized at common law, in general liens upon chattels at common law were

given only for services that improved them.”); Robinson Brothers Motor Co. v. Knight, 288

S.W. 725, 725 (Tenn. 1926) (“The common-law lien of an artisan employed to bestow labor

upon an article is merely a right to detain the article until his reasonable charges for the work

are paid.”); A.G. Graben Motor Co. v. Brown Garage Co., 195 N.W. 752, 753 (Iowa 1923)

(“Liens for repairs were allowed at common law upon the theory that an additional value was

imported thereto. Preservation of automobiles by storage is quite different from value added by

the skill of the artisan in making repairs thereon.”).

¶ 48 We are likewise not persuaded by defendant’s reliance on Styck’s Body Shop. The plaintiff

in that case, an insurance company, had an ongoing agreement with the defendant, a body

shop, for the towing and storage of damaged vehicles that were insured by the plaintiff. Styck’s

Body Shop, 396 Ill. App. 3d at 241. The defendant charged $20 per day for vehicle storage,

which the parties agreed was the industry standard. At some point, the defendant also began

charging a $50 processing fee for each vehicle. A dispute over the storage and processing fees

led the plaintiff to file a complaint for replevin seeking the return of 24 vehicles. Id. at 243. The

defendant asserted affirmative defenses based on (1) the Labor and Storage Lien Act (770

ILCS 45/1 et seq. (West 2000)), (2) the Labor and Storage Lien (Small Amount) Act (770

ILCS 50/1 et seq. (West 2000)), (3) section 4-203 of the Illinois Vehicle Code (625 ILCS

5/4-203 (West 2000)), and (4) “common-law artisan’s liens.” Styck’s Body Shop, 396 Ill. App.

3d at 244. The trial court granted the plaintiff’s motion for partial summary judgment, ruling

that the defendant had no claim for storage charges after the date that the plaintiff had

demanded possession of the vehicles and tendered payment of the uncontested charges. Id. at

244-45. The appellate court then affirmed the trial court’s ruling, holding in pertinent part:

“[A]fter the owner of property (other than real property) demands the return of that property

from a bailee, the bailee is not allowed both (1) to continue to retain possession of the property

pursuant to a lien on the property and (2) [to] charge storage fees for holding the property for

the period of time after the demand was made.” Id. at 247 (citing Weiland Tool &

Manufacturing Co. v. Whitney, 44 Ill. 2d 105, 118 (1969)).

¶ 49 Here, defendant argues that Styck’s Body Shop “expressly recognizes a common law

possessory lien for storage charges.” This argument is misguided. To begin, the basis for the

award of storage fees in Styck’s Body Shop is unclear. As noted, in addition to asserting a

common law lien, the defendant in that case also raised affirmative defenses based on certain

statutory liens. Id. at 244. Moreover, the defendant filed a counterclaim that was not based on

any liens, but rather sought to recover civil damages on the basis that the storage fees were

contemplated in the parties’ original bailment agreement. Id. at 256 (Steigmann, J., specially

concurring in part and dissenting in part). The counterclaim is noteworthy, as the defendant

argued on appeal that the trial court had improperly limited its award of storage fees based on a

statutory lien limitation, “because its counterclaim was a separate claim to recover damages

outside of the lien statute.” Id. at 249. This indicates that, contrary to defendant’s argument in

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this case, the storage fees in Styck’s Body Shop were not awarded as part of a common law

possessory lien.

¶ 50 However, even if the storage fees in Styck’s Body Shop were awarded as part of a common

law possessory lien, we see no conflict with our holding in Navistar. Although Styck’s Body

Shop made no mention of the distinction between artisans and common carriers, it is clear that

the defendant in that case was appropriately classified as a common carrier. The defendant was

“engaged in the business of vehicle collision repair and towing,” but the parties had a

continuing agreement only for the hookup, removal, towing, and storage of damaged vehicles.

Id. at 243. Because none of these services imparted any added value to the damaged vehicles,

the defendant could not have been considered an artisan. See Navistar Financial Corp., 153 Ill.

App. 3d at 577; see also Kalio Universal, Inc. v. B.A.M. Inc., 231 A.2d 376, 379 (N.J. Super.

Ct. App. Div. 1967) (“To establish a common law lien, an artisan must prove that the chattel

was bailed to him, that he expended his skill and labor in the improvement of the chattel, that

he conferred upon it an additional value, that he had the expressed or implied consent of the

owner to do the work, and that he was employed for the purpose of rendering the service.”).

Thus, pursuant to this court’s holding in Navistar, if the defendant in Styck’s Body Shop had a

common law possessory lien based on its status as a common carrier, then its lien would have

covered the storage fees up to the point that the defendant began storing the vehicles for the

sole purpose of preserving its lien rights. Navistar Financial Corp., 153 Ill. App. 3d at 578.

¶ 51 For all of these reasons, we reject defendant’s argument that he is entitled to a common law

possessory lien for the storage fees pursuant to the holding in Styck’s Body Shop. That brings

us to defendant’s final argument, which is based on his agreement with Siudak.

¶ 52 Defendant points to a copy of a document in the record, purportedly signed by Siudak, that

appears to be an estimate for the cost of detailing and repairs. A statement in small print at the

bottom of the document reads as follows:

“Daily storage fee after repair work has been completed and customer has been

notified. No charges shall accrue or be due and payable for a period of 3 working days

from date of notification.”

Defendant also directs us to a picture of a sign on its premises that reads:

“Any Vehicle, Water Craft or Trailer NOT PICKED UP WITHIN Ten (10) days of

Completion of Service will be charged a Storage Fee of $75 per day Applied to

Original Work Order and Unit will NOT be Released until BALANCE IS PAID IN

FULL”

Defendant argues that, based on this evidence, his common law possessory lien for the storage

fees arises out of the “contract” that he formed with Siudak. Although plaintiff has not

addressed this argument, we nonetheless find that it has no merit.

¶ 53 Defendant’s argument is premised on our observation in Navistar that common law

possessory liens “are fundamentally consensual in nature and can be created only by

agreement, by some fixed rule of law, or by usage of trade or commerce.” Id. at 576; see also

Associates Financial Services Co. v. O’Dell, 417 A.2d 604, 606 (Pa. 1980) (“Possessory liens

are fundamentally consensual in nature, arising from an agreement, either express or implied,

between the owner of the goods and the artisan who renders services for those goods.”).

However, the fact that common law possessory liens are fundamentally consensual does not

mean that an artisan may use such a lien as a method of enforcing a contractual obligation for

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storage fees. Accord Lewis v. Gray, 83 A. 1, 2 (Me. 1912) (holding that “a person who is not a

warehouseman, nor in the business of storing goods, but who permits the property of another to

remain on his premises, under an agreement that storage is to be paid, has no lien therefor at

common law”). Rather, as we have explained, the artisan’s common law lien covers only

“reasonable charges” for the work that imparted the added value to the goods in question. See

supra ¶ 47. This holds true regardless of whether the owner and the artisan contract for the

storage of the goods following the completion of the artisan’s work.

¶ 54 III. CONCLUSION

¶ 55 For the reasons stated, we affirm the Lake County circuit court’s rulings on the parties’

cross-motions for summary judgment.

¶ 56 Affirmed.

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