Krzyminski v. Dziadkowiec

First Division
May 18, 1998

No. 1-96-3334

LESZEK KRZYMINSKI and ) Appeal from the
MARIE KRZYMINSKI, ) Circuit Court
) of Cook County.
Plaintiffs-Appellees, )
)
v. )
)
JOE DZIADKOWIEC d/b/a Joe Dee )
Construction Company, ) Honorable
) THOMAS J. WYNN,
Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE BUCKLEY delivered the opinion of the

court:

This appeal arises from an order of the trial court granting
plaintiff-homeowners' motion for summary judgment. On appeal,
the following issue is raised: whether an owner's demand
pursuant to section 34 of the Illinois Mechanics Lien Act (the
Act) (770 ILCS 60/34 (West 1996)) to a contractor to file suit to
enforce the contractor's lien within 30 days is effective in
causing the contractor's lien rights to be forfeited if the
contractor fails to file a lawsuit as required in the demand,
even if the contractor had not yet filed a lien with the county
recorder's office.
The facts of the case are undisputed. Plaintiffs, Leszek
and Marie Krzyminski, are the owners of a residence located at
1007 Blacksmith Lane, Lemont, Illinois. Defendant, Joe
Dziadkowiec, is a general contractor. On or about June 15, 1994,
the parties entered into a contract for construction work on
plaintiffs' property. By December 1995, more than six months had
passed since defendant had performed any work on plaintiffs'
property. Plaintiffs issued a demand pursuant to section 34 of
the Act (770 ILCS 60/34 (West 1996)) for defendant to file a
lawsuit to enforce his lien within 30 days. Defendant failed to
respond to plaintiffs' demand. On March 19, 1996, plaintiffs
issued a demand on defendant to issue a release of his claim for
lien within 10 days pursuant to section 35 of the Act (770 ILCS
60/35 (West 1996)).
Defendant refused to issue a release and plaintiffs filed
this action on May 22, 1996, for the purpose of obtaining a court
order clearing the cloud of title to their property from
defendant's lien.
Defendant never recorded a claim for lien with the county
recorder's office prior to plaintiffs' demands.
The instant dispute arises over the interpretation of
sections 34 and 35 of the Act (770 ILCS 60/34, 35 (West 1996)).
Defendant claims that this is a case of first impression in
Illinois since no court has ever applied the Act to a situation
where the contractor had not recorded his claim for lien prior to
the demand that he institute a suit to enforce his lien.
Section 34 reads as follows:
"Upon written demand of the owner, ***
served on the person claiming the lien, ***
requiring suit to be commenced to enforce the
lien or answer to be filed in a pending suit,
suit shall be commenced or answer filed
within 30 days thereafter, or the lien shall
be forfeited." 770 ILCS 60/34 (West 1996).
Section 35 provides the following:
"Whenever a claim for lien has been
filed with the recorder or the Registrar of
Titles, either by the contractor or sub-
contractor, *** or where there is a failure
to institute suit to enforce the same after
demand, as provided in the preceding section,
within the time by this Act limited, the
person filing the same *** shall acknowledge
satisfaction or release thereof, in writing,
on written demand of the owner, and on
neglect to do so for 10 days after such
written demand he shall be liable to the
owner for the sum of $25, which may be
recovered in a civil action." 770 ILCS 60/35
(West 1996).
"It has been stated that the notice provision in section 34
is jurisdictional, and section 34 is in the nature of a statute
of limitations and was intended to force the issue on the
validity of claims filed." Pickus Construction & Equipment Co.
v. Bank of Waukegan, 158 Ill. App. 3d 141, 144, 511 N.E.2d 228,
230 (1987). Moreover, defendant insists that the provisions of
section 35 must be read together. Thus, the second part of the
section ("where there is a failure to institute suit to enforce
the same") is clearly referring to a claim for lien that has
already been filed with the recorder, as specified in the first
part of the section ("[w]henever a claim for lien has been filed
with the recorder"). 770 ILCS 60/35 (West 1996).
Accordingly, the purpose of sections 34 and 35 of the Act is
to provide a method for property owners to force the issue on the
validity of claims already filed and to clear a cloud on the
owner's property created by the filing of a lien. If a claim for
lien has not been filed by the contractor, then there is no cloud
upon the owner's title.
We also note that the Act gives a general contractor two
years from the last day that the contractor completed any work on
the job to file his claim for lien as against the property owner.
770 ILCS 60/7 (West 1996). According to plaintiffs' theory, a
property owner could use sections 34 and 35 of the Act to deny
contractors their lien rights long before the time has expired in
which a lien claim may be filed. To permit a property owner to
require a contractor to file his suit to enforce his lien rights
prior to the contractor's recording of his claim for lien would
be contrary to the intent of the Act.
For the foregoing reasons, we reverse the circuit court of
Cook County's order granting summary judgment in favor of
plaintiffs.
Reversed.
GALLAGHER, J., concurs.
Justice O'Brien, dissenting:
Section 34 clearly requires a "person claiming the lien" to
institute proceedings to prove his claim in court within 30 days
of demand or risk forfeiture of that lien. 770 ILCS 60/34 (West
1996). Section 35 clearly mandates the release of a lien where
"a claim for lien has been filed" or where "there is a failure to
institute suit to enforce the same after demand." 770 ILCS 60/35
(West 1996). There are no provisions of either section which
mandate that an actual filing of a claim for lien is a
prerequisite to a demand by an owner pursuant to Sections 34 and
35.
The majority's holding, which requires an actual filing of a
claim for lien prior to any demand by the owner, permits a
contractor to maintain an ability to claim a lien on a property
for two years without being required to prove his claim within
that time period. Thus, an owner has no recourse other than
waiting to see what the contractor will do vis-a-vis a potential
claim and thus, the title of that property would remain clouded
for that period of time. Sections 34 and 35 of the Act clearly
aim to avoid this situation by providing owners of property with
a remedy to adjudicate a potential lien, avoid a cloud on the
title of that property and dispose of that property if the owner
desires.
The judgement of the circuit court should be affirmed.
Accordingly, I respectfully dissent.