jazz checking account that was t c m to exhibit forty five which was a letter from the chicago office of hud basically saying that so there are public funds that are involved here the question is it was a mixed use type of thing where not only was up with public funds all but there was also some private funds mechanics going act is not exactly tailored to a mixed use thing but i still believe because public funds were involved palin country was in title to a lien on those public funds all of the notices that were required by law were in fact done well as the pollard executive director of cents for work great platinum brick that they bought and that sixty one thousand dollars was or materials that were used on the other masonry contractor they got involved in the case initially it was money out of a nd job from him because they got overpaid on the job what was happening is they would never say the mouth town country asked for it was always split up their worth that forty payments made to our country and town country only gave twelve dollars pay requests so if the whole project was going around i but i think if you look at all of the testimony that was done we had three witnesses testified to the to the right amount of two hundred thousand dollars and only mr coward on the have basically duty with his eighty thousand dollars that the other thing about that is on cross examination mr coward admitted that exhibit a he was using was constructed just days before trial think and paid a lot of back to charges the patent country and never even heard of it partially agree with that the other area that i wanted to talk about was the ruling on attorney amount of right there questions whether there was a prevailing party i suggested in my brief that we were the prevailing party in qualify as one book of the contract as your prevailing party if you require seventy five percent or more of the amount you million dollars talent country don't have to pay any of it there is no order ruling against town and country to pay anything so i qualify for the nd prong there to become a prevailing party and if this court accept testimony of harshness a white and jackson and overturns the ruling on the damages and gives us the right amount of damages we will also have recovered more than seventy five percent of damages so we should have been awarded all  and there's no question that was at the time of trial four years after the project was completed there was money owed to town and country so i'm you know just those facts alone show that we didn't get paid when  you know questions ok brian all yours we don't have any audio done a significant review of all the various submittals from all of the contractors and concluded that in fact town and country was o d d one thousand dollars mr burkhart has mentioned there were issues with respect to the testimony that was provided regarding mr did mention is that he had signed a lien waiver however the lien waiver that was produced that doesn't demonstrate that in fact there was full payment on some of these issues they were not cancelled checks or other evidence establishes stablish and in fact they had paid for both great breaks in charcoal gray bricks which were an issue there was a question with respect to the sixty one thousand dollars that had to do with mr people's work and again h p t to significant reconciliation of all of the vendors of the balances that were due and were able to demonstrate that in fact that was not amounts that were in fact due to town and country the standard i think mr urquhart has mentioned that generally is that they have to demonstrate a judge trial case again the testimony and the evidence presented by mr court was not refuted and the court found it to be in fact reliable regarding the attorney's fees the contract in section one point five in a sub contract under the section attorney's fees and expenses of the subcontract this is the prevailing party as a party recovers at least seventy five percent of its total claims in the action or is willing or is required to pay no more than the twenty five percent each we did not have a claim against town and country town and country was brought into the litigation pursuant to the mechanically statute that requires that all parties be included now in order for a town and country to collect on attorney's fees it would have to recover to word of at least one hundred and fifty thousand again they were claiming the two hundred thousand dollars at one hundred fifty thousand dollars that would be seventy five percent we know from the court's ruling that in fact they only received eighty eight thousand dollars which would be forty four two percent sort of the specific language of the sub contract they are not entitled to the attorney's fees they were not a prevailing part of regarding the claim for the prompt pay act promptly act applies to vendors contractors whose claims against any state official or agency authorized provide for payment from state funds there's no state official or agency involved mr burkhart indicated this is a contract between two private parties you've got eco jazz who was the owner and you have a treaty contract and it was a general contractor on the project itself there's no state office or official or agency involved there's also no state funding what you're going to hear is this project was funded in a manner which is very unique it was funded in part by  hud and the other part by private equity you're going to see and as you've seen in the evidence there was some forty eight million dollars in private equity that went into this project in return for that forty eight million dollars one cent of the venture capital groups receive seventeen in new market tax credits this does not qualify and satisfy the requirements of the prompt pay act now the other issue with respect to the prom pact is counsel withdrew his request to amend the petition and when doing apps they no longer had the ability to continue with respect to the claim the question was asked if they're going to amend and in fact he indicated that they would if i could just request clarification on time against appellee h p d construction and housing authority is appealing seven orders entered by the circuit court in st clair county after a bench trial the issues the seven orders impressed mechanics liens on real property owned by the housing authority of the st louis the single issue on appeal by the housing authority is whether the trial court erred in impressing those liens against real property owned by the housing authority the underlying facts in this case are relatively straightforward the housing authority owns three parcels of land it entered into a lease with eco jazz to develop the land and build an affordable housing project the affordable housing development was built on four parcels one actually owned by eco jazz and three owned by the housing authority but leased to eco jass for development and management when i refer to the property during this argument i'm referring specifically to the three parcels owned by the housing authority eco jaz entered into a contract with  b to build the affordable housing and related structures age he was the general contractor for the project the project had a bunch of issues which led to cost overruns and construction delays and which then resulted in the underlying suit and the orders currently being impressed on real property owned by municipal corporation and such as the housing authority and wasn't turned over on appeal the only case cited to by a treaty the in re california steel company case was easily distinguished the real property and that case was owned by the chicago metropolitan sewer district a public entity created at the state level by statute it is not a local body of government created by local cook county government or by chicago and in the statute it's defined as  classifies eco jazz as the fee simple owner of the property and if the lease wasn't with the housing authority entered into for the sole purpose of constructing and developing affordable public housing for senior citizens i would agree with h b east position they certainly can point to a lot of cases which support the premise that normally a ninety nine year lease is for all intents and purposes the fee simple honor the lessee is however and again none of those cases involve a housing authority or municipal corporation and furthermore the only way housing authority statutes allow for her is housing authorities to lease its land housing authority acted within the purview of the statutes that create and governance and shouldn't be stripped of their statutory protections for doing so and again each bts recitation of cases doesn't involve municipal corporations and the enforcement of mechanics leans against them h b makes a few other arguments in its response brief st it argues that the project was for a private purpose and therefore loses its protections for public projects  there is no evidence or case law cited to support that and it ignores the finished project being in fact public affordable housing under the purview and subject to regular inspections as are all public housing developments the final argument raised by h b and its response is that by raising both public and private funding for the project it's removed from the protections afforded by the housing afforded the housing authority by the statue however the housing authority program was created by statute to and i quote here for the purpose of developing and coronating public and private resources targeted to meet the affordable housing needs of low income and very low income households in the state of illinois and it's hard to fathom that a public housing authority created by statute to raise public and private funds to develop affordable housing will lose its other housing authority has acted completely in accordance with the statutes the create and govern it permits entry and to a lease to the money raised in support of its project to provide public housing to senior citizens and st clair county at an affordable rate  the housing authority is asking that the orders entered by the trial court impressing mechanics liens against the subject property be vacated to the extent that they impose mechanics liens on the property owned by the housing authority i want to start by st talking about the project itself as council has mentioned some of the issues this project was unique it is the one that is financed in a manner different than any other project in the united states and that was all brought in through the testimony what has not  mentioned is that this project was also going to include various commercial uses they had a grocery store that was in the building a medical office commercial grade catering kitchen and a stage was even put in place for purposes of running a jazz club if they chose to do so this was not simply a housing project what is also unique and very unique about this project is the manner in which it was financed this was done significantly through private funds it was done through new market tax credits in which over eight forty eight million dollars were brought into this project from private sources seventeen million dollars in tax credits were then utilized as part of this project itself we heard about echo jazz and there's an individual  deco went by the name ton day which testified at trial mr tom day work for a company known as signature program management that entity was the representative of eco jazz it was the one responsible to oversee the project own the building he testified and not testified but argued that was not the owner of the project has no right to access the building and in fact it nothing relative to the management of the building itself they were not the owner of the building or of the project i think it's important to take a look at what is the mechanics lean statute say itself section seven hundred and seventy i'll see a six thousand and twenty three says the statute does not apply to a contract for public improvement for a contractor having a contract with such municipal corporation well we know there is no contract with mistral corporation here the contract is between two private entities eco jazz was the legal owner of the property in this position that we take and we have argued pursu  to the ninety nine year lease hold interest that it had regarding the property h p d had a contract with actual jazz to do the improvements which it did the property itself was unimproved before the construction began and had little to no value which was the testimony mechanic's lien on a ninety nine year lease hold interest can be foreclosed we also cited the case of for a construction which is one involving a special master an eight story building in which the project did go to foreclosure pursuant to the mechanics  regarding the idea of the ninety nine year lease we have cited to the case of much very spine steel and in that case the court held that barn high school as a lessee for ninety nine years was within the purview of section one of the act and owner and that is the position that we are taking now that is significant because it when you look at the mechanic's lien statute as to what it does apply to it says that a any person so the mechanically an act applies to any person who sh by any contract with the owner of a tract or a lot of land is known under this act as a contractor and has a lean upon the whole of such lot or tract of land itself its greedy had a contract with the owner and we contend that it had that contract based upon the ninety nine year lease in terms of the public improvement where have a contractor we have this sense since we have a minister a corporation which did not have a contract in terms of public improvement we have again the commercial use this was a contract between two private entities and again the commercial use for the project itself and bought the grocery store a medical office commercial grade catering kitchen and stage for a jazz club itself again there was private funding so it is very unique as to how they want about doing this particular project one other issue that's essential if housing does raise in their reply brief as they raise the issue of the illinois affordable housing act and that act itself we suggest is not apply the i ha provides a statutory scheme only for the illinois housing development authority itself which is an independent self supporting state agency  point even though we contend that the argument was raised late it is in the reply brief and we argue that it should not be applied the conclusion at least respect to the argument being raised by the st louis housing authority in summary is that this is a private owner it is a private contract between private parties it involves significant private financing and it involves significant commercial purposes even the underlying housing itself which we recognize this is a senior living facility was constructed based upon tax credits which were utilized by venture capital firms located outside the state of illinois i and other parts of the country they put significant money into this project all private money to be considered prevailing party because they did not they were not awarded seventy five percent of its quiet did you did you address the other aspect of that part of the language with regard to the twenty five percent that they would have had to have paid your client in order to not be considered revealing party let me do that now you and i think i did that in part and then when we stopped when you look at the provision contained within the contract and again in section one dollar of the sub contract under attorneys fees and expenses a sub contract you're correct in that it says the prevailing party is a party recovers at least seventy five percent of the total claim in the action which they did not do we know that then it says or is required to pay no more than twenty five percent of the other parties total claims in the action now in this instance h p t did not bring a claim against town and country and said town and country was brought into the case and of the mechanic's lien act because all cases are all contractors who are bringing mechanic's lien claims have to be brought into the case that's why that was done so the nd part after the or which written business shocked it was says who is required to pay no more than twenty five percent of the other party's total claims in the action h p d did not have a claim against time in country so in this instance what h p d did was bring a an action on behalf of itself as well as all of the subcontractors on the project who had claims the mechanics liens involved not just a treaty as mechanically and as mr jones points out there were several others from other contractors but there was no direct claim against town and country so the nd part of that requirement of the contract does not apply that it applies to vendors and contractors claims against any state official or agency authorized to provide for payment from state funds again we know that didn't happen there was no state official or agency involved it was eco jazz it was the owner of the property and again as the tenet of the lessee of a ninety nine year lease we think mattachine supports that proposition it was also no state funding that would allow for the application of the state prompt payment act this was all funded  through as well as the private private equity that we've mentioned and some forty eight million dollars in private equity went into this project again this is where i think i may have left off and a country abandoned its claim under the illinois state prompt him an act during the course of the trial the question was asked and questions were being asked for miss hannah shea which would have been relative to the prompt payment act issue during the course of that question is it questioning mr barr card indicated to stated to the court your honor i might be able relative to any issues regarding the prime pay act now in hutchinson the case cited in our brief in which the court questioned whether or not a particular claim was going to go for it the attorney indicated i have withdrawn any complaint any charge any allegation dealing with down state your honor and based upon downstate many claims based upon certain tickets sold at downstate locations pellant court held it is clear from the trial counsel's comments that such a claim had been withdrawn from all accounts we believe that applies to what occurred in this instance and that mr burkhardt indicated that he was not going to be amending his petition which would have included the prompt a claim regarding the it's generally a document must be offered by his proponent and admitted into evidence by the trial court before it may be considered evidence in this in this case mr white testified could have testified about the document could have authenticated the document south what forever reason chose not to and exhibit forty seven was not admitted into evidence in terms of what a speedy did in terms of payments made on the project what the court has what the court held and this is pertaining to count four of kind of countries claim the trial court stated that h p t has reasonable cause to pay out when it did and how it did to town and country all the delays and short changing lies directly at the feet of signature management which is echo echo jazz which would be today and the release sought in count for the petition was therefore denied the court went on to say to note that under the prompt pay act the contractor is not liable for full payments if the contractor is reasonable in doing so if the contractor without reasonable cause fails to make full payment of the amounts to  lucian your honour's what a speed is simply asking is that the ruling of judge mcglenn be upheld the think that based upon the standard and the standard of review in this case that a judgment is against the manifest weight of the evidence where the opposite conclusion is clearly evident where the finding is unreasonable arbitrary or not based on the evidence presented to simply has not been demonstrated regarding the appeal it is our position that in fact edward graham was correct that he based his decision off of his review of the evidence as well as his ability to witness the testimony from the witnesses in the case again i go back to what this is really about it is a contract between private parties which you have a private owner you have private contractors private financing in a building which included these commercial uses so again we are requesting that the orders entered by judge mcglynn be upheld and that the mechanic's lien be permitted to clause but when the parties the clause doesn't say claims between the pardons and what web page b is saying oh well that section doesn't apply because you know a p d didn't have a claim but again going back to that argument on attorney's fees we believe that it was against the manifest where the others we had three different witnesses testify with regard to the amount of damages words h b d only the boat if you award us the amount of damages we were entitled to then we will have recovered seventy five percent and we still have not paid twenty five percent so that's the issue on the attorneys you can't  erase the testimony about exhibit forty seven dollars whether it was admitted into evidence are not the testimony came from the witnesses under oath and are part of the record on appeal and so that testimony about date when they got a is in the record and we know what the facts are age we did got paid and they failed to pay pal in country even if would took our figures they failed to pay eighty eight thousand dollars of it and they got paid the full amount of masonry contract well before the court conclusion of the project so there is that one other thing that came up that i would like