they were tiredly but not suited exactly that's exactly right and that really does get to the heart of this case because when i say this this case is about notice and about timing you know there's a number of ways that sub contractor can supply notice to the owner it can be listed on the section five affidavit it can be listed on an affidavit supplied by its immediate contractor which would have been g m c or it can supply its own ninety day notice or one earlier than that under section twenty four but what i think it's interesting is that this case in particular really tends to fall in my opinion along the lines of the argument that is contained in justice koch specially concurring argument in the case of contractors like max because really if you look at that case and you look at what justice cox said there is that there are a number of protections built into the statute which is not a particularly well crafted statute but if there are a number of defenses put in place for both the owner and general contractor and and the sobs and the suppliers as well and the way to remedy a situation like to us if you don't want to as the sub contractors supplier if you don't want to rely on the notice  provided or fail to provide then there's plenty of ways for you to protect yourself if you can send your notice out the day you step on the project and then from that point forward the owner has notice that you're out there that you're spending money and time on the project and that you need to be paid and a failure by the owner to pay or retain money after that kind of notice you have that that's a problem that's not what happened here spending lots of money and lots of time on the project because what's happened here in this case since a fall and flager waited till their ninety days was about ready to expire by the time that notice came in and the only thing left subcontractor decide i'm going to rely on my i'm the immediate guy ahead of me that's kind of a business risk i think you assume i also think that you know if you want to go the ninety day route that's also a risk that it's i think when we were going front of the trial court on the argument was sort of interesting and maybe a little appealing in the sense that the argument was i am the supporter supplier and subcontractor out there i provided materials i provide labor i comply with section twenty four so why should i be penalized and and i think the and then they went on to argue and by the way this statute the whole sole purpose of the statute is to protect the substance of pliers i would argue and i think the case law supports that in fact this statute is a balancing among different interests  balancing of the owner's interests and a balancing of the subs and the suppliers interests i don't think and if you look at the cases that have incited it's pretty clear that there are plenty of times when the sub contractor or the supplier might comply with section twenty four and then report the lien within next four month period and yet not not get paid anything or get paid some small amount and so that is the risk they run  decide you don't want to record your lien earlier than ninety days if your clients worker or bail your what would happen with the secondary search here in terms of what would be the the entire amount of money that was due those three and you figured out what the percentage would be of the total amount that was still laugh we figure it calculated that they got forty four percent a payment so forty four cents on the dollar because they're tied to a program a share of whatever it is sort of in the pipeline at the time that the ninety day notice out now is a matter of fact carried out took the act and so that's why they are no longer i do think there are some rarities available and i do think that you know the interesting thing is if you're not being paid for ninety days one would assume that you you might after this thirty fifth day wonder where your money is maybe after the sixty fifth day where your money is and you know it i suppose first blush it's easy to say we feel really bad for you but on the other hand you didn't do anything to protect yourself either and so really what this case boils down to is did the owner pay out properly based on the section five affidavits that they received and what's the ninety day notices came in what was their obligation because the trial court heard argument and i think off the argument that once those ninety day notices went out not only did you have to freeze what was going to tell you and see you couldn't pay anyone else you were not allowed to pay anyone else even if they were not part of the problem and by the way now owner you've got to go out and find more money literally that was the argument because under this is once you're out there and you're supplying money and projects labor and everything to this bad character and you're not getting paid you know really your remedy is to go back upstream first to them because there's no pretty between owner and these people remember a russo so really you have to force yourself to go back up and find now what's going on here and why am i not getting paid and i think really that's that's the whole notion between behind all of these different defenses that are set forth in in the statute it's truly a balancing because when you think about it if you look at the case law with the courts have said is you know the owner who's building this multimillion dollar project they have people swarming all over this place they have no idea who's out there with the exception of their general contractor and whoever is listed on the on section five affidavit this morning affidavit and so how who should be able to tell the owner hey i'm out of here and i need to get paid well any sucker supplier and how do they do that send out that notice the first day on the job or the tenth day on the job or any day before the ninety's day and i think that is the problem with this particular case and if you look at this case and the order that was entered really what the trial court said was some contractors are required to comply with section twenty four and they did and we don't dispute that this and so they must be paid one hundred percent and because you paid others not involved in this whole mass then you're on the hook basically if you look at the cases that are also cited in here you know the one issue is well are they entitled to recoup one hundred percent or are they entitled to just recoup whatever is doing owing their immediate contractor and if you think about that the latter makes more sense because otherwise you could have any bad character out there project not paying people not doing with they're supposed to do and yet every of the people the people that are doing what they're supposed to do if those ninety gain notices come in under that theory you don't get paid and really that is a true hole that no project would ever yet accomplish in a timely manner and without causing  overruns to the owner if that's the arc so i do think that when you look at this you know that order is pretty pretty simple but it just says these people were last on the job at a certain day they provided materials and goods and services they split here is the owner not entitled to rely on the section five affidavit the sworn statement that the general contractor provided they they got a bunch of them jamesy it was listed there all the had never heard that argument before that was never in vance before the trial court and the trial court never had an opportunity to consider it always for the trial court the issue was did you get the notice and did you pay out after th not did somebody look at it or did somebody not consider it i think there is evidence in the record that says that in fact chicago title is the escrow agent and paid out it's not like chicago title just did this out of the goodness of their heart and the money just kind of magically flowed into their their account the the the one guy said representative for campus said when asked would you consider them to be your agent what the answer was i had to consider it or i didn't consider it not i don't think they're my agent or the board you know i don't know what they're doing in fact after fact question another question it was asked and he said yeah i i know we have an agreement of some kind i don't know what it provided for and further on he says chicago title got the sworn statements and that's how this all unfolded that too is a very common occurrence in the construction number of ways that payments can be made so i think i was rather surprised when i got that argument because i had not heard that before and i wondered then just that means that indeed they are conceding that we properly paid out and now it is the argument well you didn't pay out because you never saw the section five affidavits because when you think about it if you repeat that we properly paid out because of the case law contractors ready mix or bricks are those then what are you left with us the only other thing you can do is attack the section five affidavits we already know that they've been submitted so then what do you do you pull back and you say well owner you must not have seen those and you must not have looked at that but payments were being made according to those affidavits i will say i think to it as a sworn statement and if you look at the owner's representative he was talking about sworn statements as well so for those reasons i do think that the ad court said grant s at what she cited two is all it is is that the follow persons have been contracted with by the persons and then this was their social work to follow a person and the contract it's not a list of all parties furnishing labor the general contractor doesn't have you build a boat general contractor intended to doesn't have the ability to pay general contractor subs and whether to take a spill a supreme court case the court said owner you've got to pay twice you've got to pay sort of a relationship you know balancing and so you know the rules are the rules i mean and there's no question we complied with the rules come down to whether or not you know we should apply early those are also true that doing it this fees request as what's at issue are countered claims and look into the words of section seventeen b that lays it out in in detail saying it must be without just cause a right that the owner failed to pay a  that is an object standard so it's not what necessarily the defendants believed was their failure to pay but it was what was objectively was there actually a warrant to well established reason that walk or in their  case some argument to be made applying the are summary judgment arguments that were successful the trucker level we argued that there was not a defensible argument made and that does turn into circular argument again back to the section five affidavit we don't play for about well let me point out as well that the our point here is kind of an idea of if not here when if this isn't built in section of the support that position that we had no reason to think anything was wrong from the beginning it was not till the end of the project that we were suspecting that you're not going  i cannot answer that question and they were submitting payment orders but their involvement on site on project i do not know the answer to that but once we receive final payments of course complied and stipulated to within the ninety day requirement and filed it timely and appropriately and gave the notices and that kind of turns to the weather type case which says you know once the sub has made that section twenty four notice connection with the owner the chain is now destroyed now and there's a relationship between you owner and that some of the need to talk to that owner and find out what they are do this down the chain payment is now destroyed and not an issue anymore i think whether titan makes of the point of that and so does a proffered supply company case out of the first district of two thousand and nine also which follows the other type case gives a the discussion of whether tithing does so in a very good way and there's a distinct but important distinction there where the the loser and whether tie the university argued that owner may rely on general contractor sworn statement and then pays a general contractor to print what said no that's not right with the term contract or receives that notice and then hasn't due to retain money to pay the subs just like i explained a second ago that new link is now created so they have a duty to respond to that and now that the subs a homeboy or have complied with twenty four to notify them of the monies due that's all that that full amount is do so turning back to the the overall theme of the mechanics thing an act of itself it's a procedure that set forth in both protecting the lien and duties posed on the owner and i completely agree with counsel it is a meant to be a balancing equitable sascha course the main word in that statute is lean it's a mechanic's lien act because the owner is the money with the money bags and of course the improvements of the property are held in the owner the the now whatever is built there in constructed that's where the money value comes and once those have been strictly followed in the sun strictly as  did now it becomes a remedial statute and when it becomes a remedial statute it is now to be interpreted with liberal struction so that justice may be done in terms of equity are followed and that's even expressly stated in the last rises to the level of what one would look at under a rule one thirty seven obviously there are lots of arguments to be made here and not specious or made maliciously or without basis in  fact so just because the court did not accept the argument doesn't need to we get socked with the attorney's fees as well i think that if the court looks at the sworn statements that were submitted by braun russo as an example and i would also say that this case can absolutely be distinguished from whether tight leather tight was a case where the general contractor provided  section five affidavit to the owner who have to be a university and they listed the wrong party the subcontractor and instead of either holding out money for this the wrong party the subcontractor or getting a lien waiver or writing a two party chair or anything like that what they did was they just paid all of the money over to the general contractor on the assumption that they would in turn pay their subcontractor and of course then it went into the bank account in the bank exercises set off and there's no money for subcontractor very very different case from what we have here because the minute we got the kno what was left and doing going to change so what do you think mr metts means when he says that you didn't comply with the act well i you know i think that's an interesting question i don't know because i would say that we ha with the fact i was by submitting the section five the sworn statements that then i prefer to in the record to chicago title for payment it's pretty clear that from being owners representative said yeah we are getting the paper requests and there's talk going back and forth but the sworn statements went to chicago title so there are section five affidavits in the record that were submitted by the general contractor earl these are these are or work or has tightened materials supplied by because that's who he's going to be a contract with and that's who he knows out there i think what i hear being argued now is that it's the duty of the general to find out owner or his agent can you know pay out basically a statement in writing under oath or verified by affidavit of the names and addresses of all parties for additional labor services etc i don't think and nowhere have i seen anything that says it's the sub or supplier and say give me the names of everybody that you've ever worked who's worked with you on this project if you went to los and bought a box of nails and you know that i mean you can think what with the section five