Illinois Mechanics’ Lien General Contractor Doesn’t Morph Into a Subcontractor When Property is Sold Before Recording

imageQ: Does a general contractor transform into a subcontractor where a property owner sells its property to a third party AFTER the general contractor completes its improvements but BEFORE it records its mechanics lien?

A:  No.

Q: Does it matter?

A: Yes.  Because unlike a general contractor, a subcontractor must serve a 90-day notice to the new owner in order to preserve its lien rights under Section 24 of the Mechanics’ Lien Act (the Act).  770 ILCS 60/24.  If the subcontractor doesn’t serve the 90-day notice, the lien is invalid against the third party buyer.

Those are the key questions and answers distilled from Dirtwerks Excavating, Inc. v. Koritala, 2013 IL App (2d) 130329-U, a December 2013 Second District case where real estate was sold by the original owner to various purchasers after a paving general contractor completed its work but before it timely filed its mechanics’ lien.

Facts:

Plaintiff general contractor timely recorded his lien against several properties within the four month time period required by Section 7 of the Mechanics’ Lien Act (the “Act”), 770 ILCS 60/7.  But before the contractor recorded its lien, the owner sold the properties to various home buyers.

Those home buyers successfully moved to dismiss the lien on the basis that the plaintiff converted to a subcontractor once the properties were sold.  And since the plaintiff contractor never sent a 90-day notice (per 770 ILCS 60/24), the contractor’s lien wasn’t enforceable against the defendants.

Held: Trial court reversed.  Plaintiff’s lien was proper, timely and valid against the homeowner defendants.

Reasoning:

Illinois Mechanics’ Lien Act: ‘Contractor’ v. ‘Subcontractor’

The Act’s purpose is to protect those who in good faith furnish material or labor for the improvement of real estate.  The Act permits a lien on the property where a (a) benefit has been received by the owner and (b) where the property’s value or condition has been increased or improved by the furnished labor or materials. ¶ 5. 

A “contractor” under the Act is any person who contracts with a land owner or someone authorized by the owner to enter a contract with the contractor.  A “subcontractor” is one who performs construction work for the contractor.  770 ILCS 60/1(a)(contractor def.); 770 ILCS 60/21(a)(subcontractor def.).  A subcontractor must serve the owner with written notice of its lien within 90 days after completion of the work.  770 ILCS 60/24.  A contractor does not have to comply with the 90-day notice requirement.  He (a contractor) only has to file his lien within 4 months of completion. 770 ILCS 60/7.

Can Unverified Pleading Come Back to Haunt You?

No.  A complicating factor in Dirtwerks was that plaintiff alleged in its original complaint that it was a subcontractor.  But in later complaint amendments, it alleged it was a general contractor.   But since the original complaint wasn’t verified, it was superseded by the later filed complaints. 

A verified complaint that is amended remains a part of the record and can be used to impeach the pleader.  Not so with an unverified pleading.  Once an unverified pleading is amended, it’s erased from the record.  Even so, the plaintiff’s allegation in the first complaint that it was a subcontractor wasn’t a binding admission since it was a legal conclusion (and not a factual allegation). (¶¶ 6-7).

Lien Claimants’ Status Is Determined by the Original Contracting Parties

The Court’s key holding is that the plaintiff’s status (general contractor or subcontractor) was determined by the original contracting parties.  Plaintiff originally contracted with an entity that owned the properties.  That the properties were later sold to third parties didn’t change plaintiff from a general contractor to a subcontractor (who was required to send a 90-day notice). (¶ 9).

The court pointed to cases dating back more than a century for the proposition that once a lien attaches on the date of the owner-general contractor contract, a property buyer takes the property subject to the lien – so long as the lien is recorded/perfected within the four-month window.  

In fact, Section 7 of the Act expressly binds subsequent property buyers.  That section states that a timely recorded lien binds a creditor, incumbrancer or purchaser.   (¶10); 770 ILCS 60/7.

Take-away: This seems like a fair result.  The contractor shouldn’t be penalized just because a prior owner happens to transfer the property to a new buyer before the contractor records its lien.  Dirtwerks also solidifies lien law axioms that a plaintiff’s status – be it contractor, subcontractor, or sub-subcontractor, is determined by the original contracting parties and a timely recorded lien will bind subsequent purchasers.

 

 

 

 

Court Rejects Neighboring Property Owners’ Due Process Claim to Prevent ‘Wolf Point’ Construction in River North Area (Chicago)

I thought I was gonna have to dust off my 18,000-pound crimson-covered Laurence Tribe Constitutional Law book from 1993 Fall semester for this one.   

Seriously though, when I see a case that discusses substantive and procedural due process issues refers to Federal and State Constitutional amendments, my PTSD flashbacks to 1L are triggered.  

In Residences at Riverbend Condominium Association v. City of Chicago, 2013 WL 6080685 (N.D.Ill. 2013), the Northern District dismissed the plaintiff condominium association’s lawsuit to prevent the City from enforcing a zoning ordinance change that would allow a large-scale construction project to commence in Chicago’s River North neighborhood. 

The basis for the Rule 12(b)(6) dismissal: plaintiff failed to allege a protectable due process property interest in preventing the construction project.

Facts: The lawsuit involves Wolf Point – land on the north bank of the Chicago river near the Merchandise Mart which has been vacant for about 40 years. 

In 2013, the City approved a zoning variance that allows the site’s owners to construct a three-building mixed use development on the site.  The plaintiffs, adjoining land owners, sued to bar the development; citing increased pedestrian and vehicular traffic in the area, plus the project’s unbearable strain on city infrastructure.

The plaintiffs also claimed they weren’t properly notified of the zoning change or given a meaningful chance to oppose it as required under the law.  The Court granted defendant’s motion to dismiss with prejudice.

Rules/Reasoning:

A due process claimant must establish a legitimate property interest.  U.S. Const. Amend XIV; Ill. Const. of 1970, art. I, s. 2 (and cases interpreting them).  

He must show he was deprived of life, liberty or property without sufficient procedural or substantive government safeguards. 

A due process clause property interest means an entitlement or benefit that the state can’t tamper with or remove.  *2-3.  A mere expectation or hope, though, doesn’t rise to the level of a due process property right.  *4.

The Court held that the plaintiffs lacked a property interest in Wolf Point.  They don’t own the land and any interest they have in receiving statutory notice of the zoning change isn’t a right of constitutional dimension.

The Court also found that zoning challenges based on a state’s failure to follow its own notice procedures should be brought in state not Federal Court.  *4.

The Northern District also noted that under Illinois law, a property owner’s rights to light, air, or certain property values – while certainly desirable – still don’t merit constitutional protection. property interest. *4. 

And since the plaintiffs don’t own the Wolf Point property and at most, only alleged a right to statutory zoning change notice, the plaintiffs failed to allege a colorable right to prevent the City from enforcing the amended zoning rule.

Take-away: A valid constitutional due process claim must go beyond speculation or unilateral expectation.  Instead, the interest being sued on must constitute an entitlement or benefit that the government has no discretion to remove or reduce.  

But all may not be lost for the plaintiffs: the Riverbend court suggests that plaintiffs may be able to seek administrative review in the Circuit Court to overturn the amended zoning ordinance.

 

 

IL First Dist. Examines Punitive Damage Standards In RE Fraud Suit

In K2 Development, LLC v. Braunstein, 2013 IL App (1st) 103672-U, the First District addressed Illinois law’s compensatory and punitive damages guideposts in a convoluted real estate fraud suit filed by an LLC against one of its two members.

The plaintiff LLC – through one of its members (a real estate novice) – sued the LLC’s other member – an experienced real estate developer – for fraud in connection with the defendant’s sale of an undeveloped piece of land to the plaintiff. 

The court awarded compensatory damages of nearly $400K and punitive damages of over $750K after a bench trial and the defendant appealed.

Held: Affirmed.

Rules/reasoning: The Court upheld the trial court’s damage awards based on the  evidence that the defendant orchestrated a fraudulent scheme and took advantage of his neophyte business partner (the other LLC member). 

In Illinois, compensatory damages are awarded as compensation, indemnity or restitution for a wrong or injury suffered by a plaintiff.  The purpose of compensatory damages is to make the injured party whole and restore him to his pre-loss condition. 

Compensatory damages are not designed to provide plaintiff with a windfall or profit.  Damage computations present a fact issue and a damage award will be overturned where the trial court ignores the evidence or the damage calculation is palpably erroneous.  ¶ 28 

The Court held that the trial court’s damage award based on defendant’s ill-gotten profits on the fraudulent deal coupled with the amount of asecret lien and easement defendant recorded/allowed to be recorded against the property had support in the record.  ¶¶ 28- 29

Punitive damages aim to (1) act as retribution against a defendant; and (2) deter the defendant and others from similar conduct.  The defendant’s conduct must be willful, outrageous and evince an “evil motive” or “reckless indifference” to others’ rights.  Punitive damages can be awarded in Illinois fraud actions; particularly where the false statements are made repeatedly and are particularly egregious. ¶¶ 32-34. 

Applying these rules, the Court held that punitive damages were appropriate based on the defendant’s continuing pattern of fraudulent conduct that saw   him make repeated misstatements and omissions. 

The K2 Court also rejected defendant’s claim that the $750K punitive damage award was unconstitutional.  The constitutional calculus for punitive damages includes (1) the degree of defendant’s “reprehensibility”, (2) disparity between actual or potential harm suffered by plaintiff and the punitive damage award, and (3) the difference between the punitive damages awarded and civil penalties authorized or imposed in comparable cases.  ¶ 37.

The Court addressed factors 1 and 2 above (factor (3) didn’t apply since there was no civil penalty for fraud or breach of fiduciary duty)).  In finding the defendant’s conduct reprehensible, the Court noted the defendant repeatedly made false statements to the plaintiff concerning the nature of property and the investment.  This showed a pattern of deceitful conduct. 

On the actual vs. punitive damage issue, the court noted that the punitives awarded ($750K) were about double the amount of the compensatory damages ($382K).  This 2:1 punitive:compensatory damages ratio clearly fell within reasonable damages bounds under Illinois law where anything more than a 4:1 punitive to actual damages ratio is “close to the line” (e.g. $400,000 punitive on a $100,000 actual damage award) of permissible punitives.  ¶¶ 41-42

Comments: A key factor in the Court’s damage analysis was that defendant owed and breached fiduciary duties to the plaintiff LLC’s other member.  

The disparity in business acumen between the parties clearly led the Court to affirm the trial court’s over $1M aggregate damage award for the plaintiff. 

K2 is particularly instructive on the “ratio issue”: how much a punitive damage can exceed an actual damage award without the court viewing it as excessive.  While there’s no bright-line rule, K2 suggests that anything higher than 4 to 1 can invoke elevated court scrutiny and a possible damage reduction.  

K2 also illustrates that a pattern of conduct – more than an isolated incident – will likely lead to a finding of reprehensible fraud and support a punitive damage award.