Norman A. Koglin Associates v. Valenz Oro, Inc.

NOTICE: Under Supreme Court Rule 367 a party has 21 days after the
filing of the opinion to request a rehearing. Also, opinions are
subject to modification, correction or withdrawal at anytime prior
to issuance of the mandate by the Clerk of the Court. Therefore,
because the following slip opinion is being made available prior to
the Court's final action in this matter, it cannot be considered
the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of
Decisions in the Official Reports advance sheets following final
action by the Court.

Docket No. 80695--Agenda 30--September 1996.
NORMAN A. KOGLIN ASSOCIATES v. VALENZ ORO, INC., et al. (La Salle
National Bank, as Trustee under Trust No. 113495, et al.,
Appellants; H.B. Barnard Company, Appellee).
Opinion filed March 20, 1997.

JUSTICE NICKELS delivered the opinion of the court:
In this appeal, we decide whether a mechanic's lien claimant
may enforce its lien where it asserted its lien in an answer rather
than a counterclaim.
Plaintiff, Norman A. Koglin Associates (Koglin), is an
architectural firm. One of the defendants, Valenz Oro, Inc.
(Valenz), was a tenant in a downtown Chicago building. Koglin
alleged that it entered into a contract with Valenz to perform
architectural and interior design services in connection with the
construction and improvement of Valenz's jewelry store. Koglin
further alleged that it performed the services but was not fully
paid. Koglin filed a complaint in the circuit court of Cook County
to foreclose a mechanic's lien under the Mechanics Lien Act (the
Act) (770 ILCS 60/0.01 et seq. (West 1992)). Koglin named four
defendants in the foreclosure action: Valenz, the tenant; La Salle
National Bank (La Salle), the owner of the building where the
jewelry store was located; JMB/Urban 900 Development Partners
(JMB), the manager of the building; and H.B. Barnard Company
(Barnard), the general contractor. Koglin alleged that Barnard also
had a mechanic's lien in connection with work performed on the
jewelry store. Barnard filed a pleading captioned "Answer to
Complaint to Foreclose Mechanic's Lien," in which it asserted its
lien.
While the suit was pending and before trial, Koglin negotiated
a settlement with two of the defendants, La Salle and JMB. Barnard
was not involved in the settlement. After settlement, Koglin sought
voluntary dismissal of the entire action. Barnard objected, arguing
that its rights under its mechanic's lien had not been adjudicated.
The circuit court dismissed the entire action with prejudice. The
appellate court vacated the dismissal order and remanded, thereby
allowing Barnard to enforce its mechanic's lien. 277 Ill. App. 3d
142. Defendants La Salle and JMB filed a petition for leave to
appeal to this court (155 Ill. 2d R. 315), which was granted. We
affirm the appellate court.

BACKGROUND
Koglin's complaint was filed on June 16, 1992. It stated that
Koglin provided architectural services in connection with Valenz's
jewelry store, located in Valenz's space at 900 North Michigan
Avenue. In the complaint, Koglin alleged that its work was
authorized or knowingly permitted by defendants La Salle and JMB.
Koglin further alleged that defendant Barnard also performed work
on the jewelry store. Koglin alleged, however, that its lien rights
were superior to Barnard's.
On July 20, 1992, Barnard filed a pleading designated as an
answer. In the answer, Barnard alleged that it had also entered
into a contract with Valenz involving work on the jewelry store.
Barnard admitted the basic factual allegations of the complaint but
denied that its lien rights were subordinate and inferior to
Koglin's lien rights. Barnard alleged that it had a lien against
the premises totalling $25,725.84 plus interest. With respect to
its lien, Barnard specifically stated that "it last performed
services on the premises under its contract on or after November
23, 1991, and that it perfected its mechanics lien on the premises
by recording a copy of notice of such lien with the Recorder of
Deeds of Cook County, Illinois, on March 20, 1992, in accordance
with the Mechanics' Lien Law."
A copy of the recorded claim for mechanic's lien was attached
as an exhibit to the answer. The claim for lien provided
information about Barnard's work and identified La Salle and JMB,
among others, as having an interest in the property. Barnard's
answer also contained a prayer for relief. In the prayer for
relief, Barnard asked the court: (1) to determine the amount of its
mechanic's lien as $25,725.84 plus interest; (2) to determine that
Barnard had a "first, prior and superior lien" against the premises
under the Act; (3) to foreclose its mechanic's lien and to order
the premises sold to satisfy any judgment; and (4) to award any
other relief the court would deem proper.
On September 10, 1993, La Salle and JMB filed a combined
answer to the Koglin complaint. In their answer, they admitted that
Barnard had provided certain labor and materials in connection with
the construction and improvement of the jewelry store. They denied
that they knew the terms of any contract between Valenz and
Barnard, and further, they denied that they authorized or permitted
such a contract. La Salle and JMB did not object to the form of
Barnard's answer or make a motion to strike the affirmative relief
requested in Barnard's answer.
On December 21, 1993, the circuit court held a pretrial
conference. Koglin moved to voluntarily dismiss its action because
it had resolved its claims through a settlement with La Salle and
JMB. Barnard had not been informed of Koglin's intent to seek a
voluntary dismissal at the pretrial conference. Despite Barnard's
objection, the circuit court dismissed the entire action with
prejudice.
On January 11, 1994, Barnard filed a motion titled "Motion by
H. B. Barnard Company to Modify or Vacate the Order of December 21,
1993, to Permit Filing of Amended Complaint and to Realign
Parties." La Salle and JMB argued that, by this time, more than two
years had passed since Barnard completed its work on the jewelry
store. The Act provides that a claimant should enforce its lien
within two years of completion of the work. 770 ILCS 60/9 (West
1992). The circuit court denied Barnard's motion. The effect of
this ruling was to preclude Barnard from enforcing its mechanic's
lien against La Salle and JMB. Barnard appealed.
The appellate court vacated the dismissal order and remanded
the cause to allow Barnard to enforce its mechanic's lien. The
appellate court relied on four alternative reasons. The court held
that: (1) Barnard's answer complied with the Act and that a
counterclaim was not required; (2) even if a counterclaim was
required, the answer should have been treated as a counterclaim
because it contained all the elements needed to state a claim; (3)
if a counterclaim was required, Barnard should have been allowed to
amend its pleading to assert a counterclaim; and (4) Koglin should
have provided notice to Barnard before Koglin sought to voluntarily
dismiss the entire action at the pretrial conference.
On appeal, La Salle and JMB contest each of these four
reasons. We note that defendant Valenz did not file an appearance
or responsive pleading in the circuit court. Neither Valenz nor
Koglin are involved in this appeal. We begin our analysis with a
brief discussion of the Act.

ANALYSIS
I. Overview of the Mechanics Lien Act
Mechanic's liens were not recognized at common law and exist
only by operation of the Act (770 ILCS 60/0.01 et seq. (West
1992)). In general, the Act provides a lien to an individual who
has provided labor, material, or services in connection with the
improvement of real estate, pursuant to contract. See 770 ILCS 60/1
(West 1992). The Act prescribes the elements required to state a
claim. Section 11 provides:
"The complaint shall contain a brief statement of
the contract or contracts on which it is founded, the
date, when made, and when completed, if not completed,
why, and it shall also set forth the amount due and
unpaid, a description of the premises which are subject
to the lien, and such other facts as may be necessary to
a full understanding of the rights of the parties." 770
ILCS 60/11 (West 1992).
The defendants in a mechanic's lien proceeding include all
persons having an interest in the premises. 770 ILCS 60/11 (West
1992). These defendants may include individuals having an ownership
interest in the property, such as tenants and landlords. When a
tenant has contracted for work that is the subject of a lien, the
lien may be enforced against the landlord if the landlord has
"authorized or knowingly permitted" work to be done on the
premises. 770 ILCS 60/1 (West 1992); see also Abbott Electrical
Construction Co. v. Ladin, 144 Ill. App. 3d 974, 978 (1986). Other
mechanic's lien claimants are also included in the proceeding. The
Act presumes that all claims and rights of interested parties can
be adjudicated in one proceeding. 770 ILCS 60/11 (West 1992).
A contractor's rights under the Act are dependent on its
taking the necessary steps to perfect a lien. Section 7 provides
for the recording of a "claim for lien" in the office of the
recorder of the county in which the property is located. 770 ILCS
60/7 (West 1992). It also prescribes the contents of this claim for
lien. 770 ILCS 60/7 (West 1992). A contractor must record its claim
for lien within four months after completion of the work in order
to subsequently assert a lien against a "creditor or incumbrancer
or purchaser." 770 ILCS 60/7 (West 1992). The four-month recording
requirement is intended to give third parties dealing with the
property, other than those with an ownership interest, notice of
the lien. Federal Savings & Loan Insurance Corp. v. American
National Bank & Trust Co., 115 Ill. App. 3d 426, 429 (1983). If the
lien has been recorded within the four-month period, the contractor
can then seek to enforce the lien within two years of completion of
the work. 770 ILCS 60/9 (West 1992).
The recording of a claim for lien is less significant where a
contractor seeks to enforce a lien against a party with an
ownership interest. As to a party with an ownership interest, the
contractor may record a claim for lien within two years after
completion of the contract. 770 ILCS 60/7 (West 1992). Regardless
of whether a claim for lien has been recorded, the contractor must
seek to enforce the lien within two years after completion of the
contract. 770 ILCS 60/9 (West 1992). Thus, with respect to both
owners and third parties, a contractor must assert its lien within
two years of completion of the work.

II. Section 9 of the Act
Section 9 of the Act describes the enforcement of a lien.
Section 9 provides:
"If payment shall not be made to the contractor
having a lien by virtue of this act of any amount due
when the same becomes due, then such contractor may bring
suit to enforce his lien in the circuit court in the
county where the improvement is located ***. Any two or
more persons having liens on the same property may join
in bringing such suit, setting forth their respective
rights in their complaint; all lien claimants not made
parties thereto may upon filing a petition to intervene
become defendants and enforce their liens by counterclaim
against all the parties to the suit; and the complaint
shall not thereafter be dismissed as to any lien claimant
*** without the consent of such lien claimant. The
plaintiff and all defendants to such complaint may
contest each other's right without any formal issue of
record made up between them other than that shown upon
the original complaint, as well with respect to the
amount due as to the right to the benefit of the lien
claimed: Provided, that if by such contest by co-
defendants any lien claimants be taken by surprise, the
court may, in its discretion, as to such claim, grant a
continuance. The court may render judgment against any
party summoned and failing to appear, as in other cases
of default. Such suit shall be commenced or counterclaim
filed within two years after the completion of the
contract, or completion of the extra or additional work,
or furnishing of extra or additional material
thereunder." (Emphasis added.) 770 ILCS 60/9 (West 1992).
The parties dispute the meaning of section 9. La Salle and JMB
argue that a mechanic's lien claimant should assert its lien in a
complaint or counterclaim. Barnard argues that the Act permits the
assertion of a lien in an answer. On this issue, we agree with
La Salle and JMB.
In reaching this conclusion, we note the history of the
statute. Prior to 1976, the statute provided that defendants could
"enforce their liens by answer to the complaint or petition in the
nature of an intervening petition, and the same shall be taken as
a counterclaim." Ill. Rev. Stat. 1975, ch. 82, par. 9. The statute
further provided that "[s]uch suit shall be commenced or answer
filed within two years after the completion of the contract ***."
Ill. Rev. Stat. 1975, ch. 82, par. 9. Thus, before 1976, a
defendant could assert its lien by answer. See, e.g., Rochelle
Bldg. Co. v. Oak Park Trust & Savings Bank, 121 Ill. App. 2d 274,
277 (1970). In 1976, the statute was amended and the portions of
the statute allowing enforcement of a lien by answer were deleted.
The amended language of the statute provides that a defendant may
enforce a lien by counterclaim. Accordingly, the amended statute
contemplates that a defendant will assert its lien by counterclaim,
rather than by answer.
We further note that section 12 of the Act expressly provides
that the circuit court should generally use the same pleading
procedure in a mechanic's lien proceeding as is used in other civil
actions. Section 12 provides:
"The court shall permit amendments to any part of
the pleadings, and may issue process, make all orders,
requiring parties to appear, and requiring notice to be
given, that are or may be authorized in other civil
actions and shall have the same power and jurisdiction of
the parties and subject matter, and the rules of practice
and proceedings in such cases shall be the same as in
other civil cases, except as is otherwise provided in
this act." 770 ILCS 60/12 (West 1992).
The rules of civil procedure ordinarily apply to mechanic's lien
cases, as in other civil cases.
Barnard did not follow the proper civil pleading procedure in
asserting its lien. In civil cases, a counterclaim should be used
by a defendant to make a claim against another defendant. 735 ILCS
5/2--608(a) (West 1992). A counterclaim differs from an answer or
affirmative defense. A counterclaim is used when seeking
affirmative relief, while an answer or affirmative defense seeks to
defeat a plaintiff's claim. Section 2--608(b) of the Code of Civil
Procedure provides that "[t]he counterclaim shall be a part of the
answer, and shall be designated as a counterclaim." 735 ILCS 5/2--
608(b) (West 1992). In its pleading, Barnard should have formally
asserted its lien as a counterclaim.
In support of its position, Barnard emphasizes certain
language of the statute to argue that the legislature changed the
rules of pleadings with respect to mechanic's liens. The statute
provides that "all lien claimants not made parties thereto [to the
complaint] may upon filing a petition to intervene become
defendants and enforce their liens by counterclaim ***." 770 ILCS
60/9 (West 1992). Barnard argues that the statute only requires
that intervening claimants file counterclaims. Barnard argues that
the statute does not require it to file a counterclaim because it
was an original party to the suit, and therefore, it may assert its
lien in an answer.
We disagree. The statute provides that claimants who are not
involved in the original proceeding may intervene to assert their
liens. It expressly gives these claimants the right to become
involved in the proceeding. The statute, as amended, does not alter
the rules of civil procedure in connection with claimants who are
already parties to the proceeding.
Additionally, Barnard notes that section 9 provides that
"[t]he plaintiff and all defendants to such complaint may contest
each other's right without any formal issue of record made up
between them other than that shown upon the original complaint
***." 770 ILCS 60/9 (West 1992). Barnard contends that this
language establishes a simplified pleading procedure. Barnard
argues that this language eliminates the need for the filing of
counterclaims entirely.
We also reject this argument. Although the statute provides
that the parties "may contest each other's right without any formal
issue of record," it still contemplates that they will assert their
claims as in other civil cases. Mechanic's lien litigation often
involves a number of counterclaims by claimants and by other
parties claiming an interest in the property. This provision simply
makes it easier to challenge the liens asserted by others. It does
not affect how liens should be asserted in the first place.

III. Liberal Construction of Pleadings
Even though Barnard failed to formally assert a counterclaim,
it prevails on other grounds. The appellate court held that, even
if Barnard should have asserted its lien by counterclaim, Barnard's
pleading should be liberally construed. The court determined that
Barnard's assertion of the lien and request for affirmative relief
should be treated as the functional equivalent of a counterclaim.
We agree.
As noted, section 12 of the Act adopts the same general rules
of procedure that apply in other civil cases. The Code of Civil
Procedure is to be liberally construed, so that cases are decided
on the basis of the substantive rights of the litigants. 735 ILCS
5/1--106 (West 1992); Superior Bank FSB v. Golding, 152 Ill. 2d 480, 486 (1992). It also states that "[n]o pleading is bad in
substance which contains such information as reasonably informs the
opposite party of the nature of the claim or defense which he or
she is called upon to meet." 735 ILCS 5/2--612(b) (West 1992).
Section 2--603(c) further provides that "[p]leadings shall be
liberally construed with a view to doing substantial justice
between the parties." 735 ILCS 5/2--603(c) (West 1992). "Pleadings
are not intended to create obstacles of a technical nature to
prevent reaching the merits of a case," but instead are intended
"to facilitate the resolution of real and substantial
controversies." People ex rel. Scott v. College Hills Corp., 91 Ill. 2d 138, 145 (1982); see also Geary v. Dominick's Finer Foods,
Inc., 129 Ill. 2d 389, 407-08 (1989).
Given these principles, the circuit court should have
liberally construed the affirmative relief requested in the answer.
Section 2--608(c) of the Code of Civil Procedure provides that a
counterclaim "shall be pleaded in the same manner and with the same
particularity as a complaint." 735 ILCS 5/2--608(c) (West 1992).
Barnard did, in fact, allege the elements needed to state a claim
under the Act. It alleged that Barnard and Valenz entered into a
contract on October 15, 1991, that the work was completed on
November 23, 1991, and that the amount due was $25,725.84 plus
interest. Barnard further alleged that it recorded its claim for
mechanic's lien in the recorder's office and attached the claim for
lien as an exhibit. See 735 ILCS 5/2--606 (West 1992) (written
instrument attached to pleading "constitutes a part of the pleading
for all purposes"). The claim for lien contained a legal
description of the property and asserted a claim "against the
interest" of La Salle and JMB, among others. In its prayer for
relief in the answer, Barnard asserted its lien and sought
foreclosure based on the lien. As the appellate court stated,
"[t]he only thing missing from the document was the word
`counterclaim.' " 277 Ill. App. 3d at 151. Accordingly, Barnard's
claim should not have been dismissed without its consent. See 770
ILCS 60/9 (West 1992); 735 ILCS 5/2--1009 (West 1992).
La Salle and JMB argue that the Act is in derogation of the
common law and the provisions of the Act are to be strictly
construed. The strict construction rule, however, applies to the
provisions of the Act that specify the substantive requirements
upon which the right to a lien is based. The procedure established
in the Act for perfecting a lien must be strictly followed in order
to create the lien. See, e.g., Mutual Services, Inc. v. Ballantrae
Development Co., 159 Ill. App. 3d 549, 552-53 (1987) (contractor's
failure to timely record a claim for lien within four months of
completion of the work made lien unenforceable against third
parties). In light of section 12, the strict construction rule does
not generally apply to technical objections to pleadings. See
United Cork Cos. v. Volland, 365 Ill. 564, 572 (1937) (strict
construction rule is applied where a "material requirement of the
statute" is lacking but was not intended "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"); Fitzgerald v. Van Buskirk, 96 Ill. App. 2d
432, 434-40 (1968) (allegations in complaint construed liberally);
see also Abbott Electrical Construction Co. v. Ladin, 144 Ill. App.
3d 974, 981 (1986); Armco Steel Corp. v. La Salle National Bank, 31
Ill. App. 3d 695, 699 (1975).

IV. Amendment of Pleadings
Alternatively, the appellate court held that Barnard should be
allowed to enforce its lien on a separate, but related, ground.
Section 12 of the Act permits amendments to any part of the
pleadings, as allowed generally in civil cases. 770 ILCS 60/12
(West 1992). Even if Barnard's pleading could not be liberally
construed, the appellate court held that the trial judge should
have allowed Barnard to amend its answer to formally assert a
counterclaim. We agree.
We note that Barnard sought to file an amended pleading more
than two years after it completed its work. Section 2--616(b) of
the Code of Civil Procedure, however, provides that an amended
pleading may relate back to the date of filing of the original
pleading. Specifically, section 2--616(b) provides:
"(b) The cause of action, cross claim or defense set
up in any amended pleading shall not be barred by lapse
of time under any statute or contract prescribing or
limiting the time within which an action may be brought
or right asserted, if the time prescribed or limited had
not expired when the original pleading was filed, and if
it shall appear from the original and amended pleadings
that the cause of action asserted, or the defense or
cross claim interposed in the amended pleading grew out
of the same transaction or occurrence set up in the
original pleading, *** and for the purpose of preserving
the cause of action, cross claim or defense set up in the
amended pleading, and for that purpose only, an amendment
to any pleading shall be held to relate back to the date
of the filing of the original pleading so amended." 735
ILCS 2--616(b) (West 1992).
In applying section 2--616(b), this court recently stated:
"The purpose of the relation back provision has been
construed as the preservation of causes of action ***
against loss by reason of technical rules of pleading.
[Citation.] To further this purpose, courts should
liberally construe the requirements of section 2--616(b)
in order to allow the resolution of litigation on the
merits and to avoid elevating questions of form over
substance. [Citation.] The rationale behind the same
transaction or occurrence rule is that a defendant will
not be prejudiced by an amendment so long as `his
attention was directed, within the time prescribed or
limited, to the facts that form the basis of the claim
asserted against him.' [Citation.]" Boatmen's National
Bank v. Direct Lines, Inc., 167 Ill. 2d 88, 102 (1995).
See also Wolf v. Meister-Neiberg, Inc., 143 Ill. 2d 44, 47-48
(1991) (an amended pleading will relate back where a defendant has
information about the claim and will not be prejudiced).
Although both Boatmen's National Bank and Wolf involved amendments
to a complaint, the same principle applies here.
We further note that section 2--616, and its predecessors,
have been applied in mechanic's lien cases to preserve claims. See
Douglas Lumber Co. v. Chicago Home for Incurables, 380 Ill. 87
(1942) (amendment to complaint was timely even though made after
time for bringing suit had expired because amended complaint
related back to date of filing of original complaint); Charles A.
Hohmeier Lumber Co. v. Knight, 350 Ill. 248 (1932) (amended
complaint would relate back to date of filing of original complaint
where amended complaint introduced no new claim or ground for
relief); Martinez v. Knochel, 123 Ill. App. 3d 555 (1984)
(subcontractor was allowed to amend answer after two years from
completion of work to assert counterclaim where the subcontractor
asserted a timely claim in its answer); Ceco Corp. v. Bank of
Hickory Hills, 126 Ill. App. 3d 188, 191 (1984) (strict
construction rule did not apply to proposed amendment to complaint
where the plaintiff named the correct party but the wrong trust
number because "[a]mending the pleadings to name the correct trust
number would not have prejudiced any substantial right of defendant
Bank"); cf. C.S. Lewis, Inc. v. Cabot Corp., 85 Ill. App. 3d 708
(1980) (appearance, which did not set forth any transaction or
occurrence, was not sufficient to serve as original pleading that
could be amended after the two-year period expired). Given that the
answer was timely filed and asserted the elements needed for a
claim under the Act, Barnard should have been allowed to amend its
answer to explicitly assert a counterclaim. Essentially, Barnard
sought to do so by attempting to file an "amended complaint."
Accordingly, the circuit court erred in failing to apply section 2-
-616 in the instant case.
In arguing that the answer cannot be amended, La Salle and JMB
rely primarily on Well Done Heating & Sheet Metal Co. v. Ralph
Schwartz & Associates, 112 Ill. App. 3d 438 (1983). In Well Done
Heating, a contractor was named as a defendant in a foreclosure
suit. As here, the contractor filed an answer but did not file a
counterclaim within the statutory two-year period. Later, the
contractor sought to amend its answer to add a counterclaim.
Well Done Heating is distinguishable from the instant case. In
Well Done Heating, the contractor did not, in any manner, assert
its lien within the requisite two-year period or seek foreclosure.
The contractor did not seek to enforce its lien at all until six
years after the work was completed. In fact, the contractor first
asserted its lien two years after the suit was settled and the
complaint dismissed with prejudice. Based on these facts, the Well
Done Heating court properly refused to allow the contractor to
amend its answer to assert a counterclaim:
"While Illinois allows a party to amend its
pleading, even sometimes to the extent of altering the
nature of the claim previously made, it is still the law
that generally an amendment asserting a new cause of
action is not permitted once the statute of limitations
has expired [citations], particularly where, as here,
there had been no attempt of any kind to set forth the
claim prior to the running of the statute." (Emphasis
added.) Well Done Heating, 112 Ill. App. 3d at 443-44.
Here, in contrast, Barnard asserted its lien prior to the running
of the two-year period and sought foreclosure. Barnard asserted its
lien in a timely manner although it failed to correctly label its
lien as a counterclaim.
In Well Done Heating, 112 Ill. App. 3d at 445, the court also
stated that the answer could not be amended to assert a claim
against "new" defendants. Relying on Well Done Heating, La Salle
and JMB argue that they were not specifically named as defendants
in Barnard's pleading. Thus, they argue that they are also "new"
defendants. La Salle and JMB contend that Barnard did not seek to
assert its lien against them specifically until after the two-year
period had passed. They argue that a party seeking relief against
others should name those other parties in the body of its pleading.
See 735 ILCS 5/2--401(c) (West 1992).
Given the circumstances of this case, we reject this argument.
La Salle and JMB were parties to the foreclosure suit brought by
Koglin. They were not new parties. They were served with copies of
Barnard's answer and were on notice of Barnard's lien and the
relief it sought at an early point in the proceedings. They were
clearly implicated given the nature of the foreclosure proceeding,
the prayer for relief in Barnard's answer, and the language of
Barnard's claim for lien. To the extent the analysis in Well Done
Heating is inconsistent with this analysis, we reject it.

CONCLUSION
Barnard asserted its lien in a timely manner although it
failed to correctly label its claim as a counterclaim. Under the
facts of this case, the circuit court should have either liberally
construed the answer or allowed an amendment to the answer. We
express no opinion on the ultimate outcome of the litigation on
remand to the circuit court. For the foregoing reasons, the
judgment of the appellate court is affirmed.

Affirmed.