While the money damages involved in Gerlick v. Powroznik (2017 IL App (1st) 153424-U) is low, the unpublished case provides some useful bullet points governing construction disputes. Chief among them include what constitutes substantial performance, the recovery of contractual “extras,” and the standards governing attorney fee awards under Illinois’s mechanics lien statute.
The plaintiff swimming pool installer sued the homeowner defendants when they failed to fully pay for the finished pool. The homeowners claimed they were justified in short-paying the plaintiff due to drainage and other mechanical problems.
After a bench trial, the court entered judgment for the pool installer for just over $20K and denied his claim for attorneys’ fees under the Act. Both parties appealed; the plaintiff appealed the denial of attorneys’ fees while the defendants appealed the underlying judgment.
A breach of contract plaintiff in the construction setting must prove it performed in a reasonably workmanlike manner. In finding the plaintiff sufficiently performed, the Court rejected the homeowners’ argument that plaintiff failed to install two drains. The Court viewed drain installation as both ancillary to the main thrust of the contract and not feasible with the specific pool model (the King Shallow) furnished by the plaintiff.
The Court also affirmed the trial court’s mechanic’s lien judgment for the contractor. In Illinois, a mechanics lien claimant must establish (1) a valid contract between the lien claimant and property owner (or an agent of the owner), (2) to furnish labor, services or materials, and (3) the claimant performed or had a valid excuse of non-performance. (¶ 37)
A contractor doesn’t have to perform flawlessly to avail itself of the mechanics’ lien remedy: all that’s required is he perform the main parts of a contract in a workmanlike manner. Where a contractor substantially performs, he can enforce his lien up to the amount of work performed with a reduction for the cost of any corrections to his work.
The owners first challenged the plaintiff’s mechanics’ lien as facially defective. The lien listed plaintiff (his first and last name) as the claimant while the underlying contract identified only the plaintiff’s business name (“Installation Services & Coolestpools.com”) as the contracting party. The Court viewed this discrepancy as trivial since a sole proprietorship or d/b/a has no legal identity separate from its operating individual. As a consequence, plaintiff’s use of a fictitious business name was not enough to invalidate the mechanic’s lien.
The Court also affirmed the trial court’s denial of plaintiff’s claim for extra work in the amount of $4,200. A contractor can recover “extras” to the contract where (1) the extra work performed or materials furnished were outside the scope of the contract, (2) the extras were furnished at owner’s request, (3) the owner, by words or conduct, agreed to compensate the contractor for the extra work, (4) the contractor did not perform the extra work voluntarily, and (5) the extra work was not necessary through the fault of the contractor.
The Court found there was no evidence that the owners asked the plaintiff to perform extra work – including cleaning the pool, inspecting equipment and fixing the pool cover. As a result, the plaintiff did not meet his burden of proving his entitlement to extras recovery. (¶¶ 39-41).
Lastly, the Court affirmed the trial court’s denial of attorneys’ fees to the plaintiff. A mechanics’ lien claimant must prove that an owner’s failure to pay is “without just cause or right;” a phrase meaning not “well-grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” 770 ILCS 60/17(a). Here, because there was evidence of a good faith dispute concerning the scope and quality of plaintiff’s pool installation, the Court upheld the trial court’s denial of plaintiff’s fee award attempt.
1/ A contractor doesn’t have to perform perfectly in order to win a breach of contract or mechanics’ lien claim. So long as he performs in a workmanlike manner and substantially completes the hired-for work, he can recover under both legal theories.
2/ A sole proprietor and his fictitious business entity are one and the same. Because of this business owner – d/b/a identity, the sole proprietor can list himself as the contractor on a lien form even where the underlying contract lists only his business name.