FOURTH DIVI SION October 9, 2008
No. 1-07-2370 SPEEDY GONZALEZ

LANDSCAPIN G, INC., ) Appeal from the ) Circuit Court of Plaintiff -Appella nt, ) Co ok Co un ty. ) v. ) No. 07 CH 07821 ) O.C.A. CONSTRUCTION, I NC., NORTH ) AMERICAN SPECIAL

TY INSURANCE COMPANY, ) and THE PUBLIC BUIL

DING COMMI SSION OF ) CHICAGO, ) Honorab le ) Robert J. Quinn, Defend ants-App ellees. ) Judge Presi ding.
PRESID ING

JUSTICE

O'BRI EN delive

red the o pinion of t

he court : Plaintiff, Speedy Gonzalez La ndscaping, Inc ., appeals the order of the circuit court dismissing count I of its complaint against def endan ts , O.C.A. Construction, Inc. (O.C.A .), North American Specialty I

nsurance Co., and the Public Building Commission of Chicago (PBC). Count Isought the grant of a lien and an a ccou ntin g of funds d

ue pursua

nt to plaint

iff's work as a subcontractor

regarding

the improv ement of

real pr operty for the N ew Westing

house High School. The primary issue

on appea l is whethe

r the pla intiff' s lien cla

im on public

funds ter minated b ecause the plaintiff failed

to timely deliver to the PBC a copy of its complaint in accordance with Section 23(b) of the Me chanics

Lien Act (770 IL CS 60/23(b)(West 2000 )) then in effect. We hold

that the plaintiff 's lien c laim termi

nated an d affirm the orde r dismissin

g count I of i ts complai

nt. The PBC is a municipal corpora tion that c ontract

ed with O.C.A. to perform site preparation work on "the N ew Westing

house High School (Phase 1)" project. O.C.A., which served as genera l contractor

on the project, then

entered into a subc ontract

agree ment with p laintiff

to provide

certainNo. 1-07-2370

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labor and services such as the hauling, disposal, and r eplacement of rock and gra vel at the site. OnDecember 20, 2006, plaintiff served notice on def endan ts of its mechani c's lie n claim, inwhich plaintiff claimed a lien on public funds held by the PBC that were allegedl y rem aining unpaid to O.C.A in the amount of $1,338,957.29. Plaintiff later reduced its claim to $697,382.53. OnMarch 20 , 2007, pla

intiff fil ed its comp laint in th e c ir cu it co ur t o f C oo k C ou nt y. Count I, the count

releva nt in this ap

peal, requested an accounting of monies owe d to plaintiff and the grant of a lienpursuant

to section 23 of the Mechanics Lie n Act then in effect. Plaintiff, however, did not deliver a copy of the complaint tothe PBC un til April 20, 2007, 1 20 days after s erving notice of its lienclaim. On May 23, 2007, O.C.A. filed a motion to d ismiss count I pursuant to section 2- 619(a)(9) of the Code of C ivil Pr ocedure (735 IL CS 5/2-619(a)(9) (West 2000)) because plaintiff did not deliv er a copy of the complai nt to the P BC within 90 days of giving notice of the lien, as required under section 23(b) of the Mechanics L ienAct then i

n effect. The trial court granted the dismissal and made a finding pursuant to Supreme Court Rule 304(a) (2 10 Ill. 2d R. 304(a)) that there wa s no reas on to dela y a ppeal of the orde r. Plaintif

f filed th is timely appeal. Dismissal of a cause of action pursuant to section 2-619(a) (9) i s pr oper whe re the c laim agains tdefendant is "barred by other affirmative matter avoiding the leg al effect of or defeating the claim." 735 I LCS 5/2-619(a)(9) (West 2000). A section 2-619(a)(9) motion to dismiss admits the legal sufficiency

of the complaint, but asser ts an aff irmative defense or other legal matter ef

fective ly defeating the claim. Van Meter v. Darien Park District , 207 Ill. 2d 359, 367 (2003). The tr ial co urt's order granting defendant' s section 2-619 motion to dismiss is reviewed de novo
. Van Meter , 207 I ll. 2d at 368.No. 1-07-2370

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Plaintif f contends that the trial court erred in dismissing count I of its cause of action for failing to deliver a copy

of the complaint to the PBC within 90 days of plaintiff' s giving notice of the lien
. Pl aintiff contends that the trial court misconstrued section 23(b) of the Mecha nics Lien Act thenin effe ct in findi

ng that i ts lien ter minated u pon the fa

ilure to so

deli ve r the complaint to the PBC with in th e 90-d ay period. When inter preti ng a statute, c ourts must ascert ain and give eff

ect to the legislature's intent. In re Estate of Ande rnovics , 197 Ill. 2d 500, 507 (2001). I n determining legislative intent, c ourts l ook at the statutory lang uage and ascribe words their pla in and ordinary meani ng. Andernovics , 1 97 Ill . 2 d a t 5 07 . " If p os si bl e, co ur ts mu st gi ve ef fe ct to ev er y w ord , clause, and sentence and may not read a statute so as to render any part inoperative, superfluous, or insignific ant." Newland v. Budget Rent-A-Car Sy stems, Inc. , 319 Ill. App. 3d 453, 456 (2001). Section23(b) then in effect states that a subcontractor f u rn ishing materials or labor to any contractor

having a contract for public improvement with a municipal c orporation shall have a lien for the value thereof on the money due the contractor from the munici pal cor poration . 770 ILCS 60/23(b) (West 2000). However, before pay ment is made by the municipal cor porat ion to t he contractor, the subcontractor must provide written notification of his claim to the clerk or secretary of the municipal corporation. 770 ILCS 60/23(b) (West 2000). The subcontractor also must furni sh a copy of sa

id notice to the contractor. 770 IL CS 60/23(b) (West 2000). Section23(b) the

n in effe ct furthe

r states t hat the su bcontra ctor sha ll , wi thin 90 days after givingsuch notice, "commence procee dings by complaint for an accounting," making the contractor
a party def endant. 770 IL CS 60/23(b) (West 2000). Within the 90-day period, the subcontrac tor must deliver to the clerk or secretary of the municipal corporation a copy of the complaint. 770No. 1-07-2370

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IL CS 60/23(b) (West 2000). Section23(b) the

n in effe ct states

th at "[ f] ai lu re to co mm en ce pr oc ee di ng s w it hi n 9 0 d ays after giving notice of lien pursuant to this subsection shall terminate the lien." 770 IL CS 60/23(b) (West 2000 ). Section 23(b) then in eff ect fur ther stat es: "It shall be the duty of any such clerk or secretary

[of the municipal corporation] *** uponreceipt of the first notice herein provided for to cause to be withheld a sufficient amount to pay such

claim for the p eriod limi

ted for the filing

of suit, un

less othe rwise notified by the person c laiming the lien. Upon the expiration of this peri od the
mo ne y, bonds or warrants so withheld shall be released for payme

ntto the contractor unless the person claiming the lien shall ha ve institut

ed proce edings and

delivered to the clerk or secretary

, as the case may

be, of the *** municipal corporation a copy of the compl aint as he

rein pro vided, in w

hich cas e, the amount cl aimed shall be withheld until the final adjudicationof the suit is had." (Emphasi s added. ) 770 I LCS 60/23(b) (West 2000). Inthe pre sen t case, p laintiff filed its c omplaint w

ithin 90 da

ys o f giving

notice of

its mechan ic's lien, but did

not delive

r a copy of the complaint to t

he munici

pal corp oration, PBC, within that same 90-day

period. The trial court ruled that the fa ilure to deliver a copy of the complaint to the PBC ter

minated the lien. Plaintiff contends that the trial court erred, as section 23(b) then in effect states that it is only the f ailure to c ommen ce proceedings within 90 day s after givingnotice that will terminate the lien. Plaintiff c o ntend s that since it com menced procee dings by filing a c omplaint within the 90-day period, the lien wa s not terminated.No. 1-07-2370

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Plai ntiff 's argument is without merit. As discuss ed, when interpreting a statute, the court must "give effect to eve

ry word, c lause, and sentence and may not read a statute so as to render any part inoperat ive, superfl uous, or in significant ." Newland , 319 Ill. App. 3d at 456. Section23 (b ) t he n i n e ff ec t e xp re ss ly d ir ec ts th e c le rk or se cr et ar y of t he municipal corporation, after first receiving notice of a lien, to withhold " a suffic ient amou nt to pay such cla im for the [90-day] period limited for the filing of suit." 77 0 IL CS 60/23( b) (West 2000). Upon expiration of the 90-day

period, the withheld funds "shall be released for payment to the contra

ctor unles s the person claiming the lien shall have instituted proceeding s and delivered to the cler k o r secretary *** a copy of the compl aint as herei n provided. " 770 IL CS 60/23(b) (West 2000). Therefore, the clerk or sec retary of the municipal corporation must withhold funds sufficient to pay a lien cla imfor 90 days upon

receipt of notice of the lien. However, if the pa rty claiming the liendoes not in stituteprocee dings and deliver to the clerk or secretary a copy of the co mplaint wit

hin that 90-day per

iod, sect ion 23(b) then in effect authorizes the disbursement of the funds to the contractor, eff

ectively terminat ing the l ien claim
. Since plaintiff

admits tha

t it did not de liver a copy of the complaint to the municipal corporat ion (the PBC) withi n 90 day s of givi ng notic e of the l ien claim , the tria l court pr operly granted the contr actor' s, O.C.A.' s, section 2-619 mot ion to dismis s count I

of pla inti ff's complain

t. Plaintiff contends that its delivery of the complaint to t

he PBC sho

uld rela te back to the date of its filing of

the lawsu

it becau se "the

failure to deliver a copy of the sui t to the g overnme

ntal unit
w ithin the 90 day

period is a minor formal def

iciency rather than a cr itical ste p in the cr

eatio n o r enforcement

of a lien against public funds." We disagr ee withplaintiff's characterization of theNo. 1-07-2370

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delivery requirement as "a minor formal deficie ncy." Section 23(b) then in effect clearly provides that when the party

claiming the lien does not commence proceeding s and de liver a copy of the complaint to the clerk or

secretary of the municipal corporation within the 90-day period, the clerk
or secretary "shall" disburse to the contractor the funds that had been previously

withheld pursuant to the lien claim. 770 IL CS 60/23(b) (West 2000). Thus, section 23(b) then in effect provides that the failure

of a par ty to both commenc e proce edings a nd delive r a copy of the complaint wit

hin the 90-day period effectively

terminates the lien c laim. The rule of strict construction applies, as here,

" 'to req uiremen ts upon which t he right to a l ien depends. ' " Matthews Roofing Co. v. Community Bank & Trust Co. of Edgewater , 194 Ill. App. 3d 200, 205 (1990 ), quo ting Watson v. Auburn Iron Works, Inc., 23 Ill. App. 3d 265, 273 (1974). Accordingly, plaintiff's f ailure here to deliver

to the PBC a copy of the

complaint within the 90-day per iod is fatal to its cause of action. Plaintiff cites cases construing

other sections of

the Mechanics Lien Act. See Petroline Co.
v. A dvanced Environmental Contractors, I nc. , 305 I ll. App. 3d

234 (1999 ); A.Y. Mc Donal d Manufacturing Co. v. State Farm Mutual Automobile Insurance Co. , 225 Ill. App. 3d 851 (1992). Those cases are inapposite as "the language of section 23 of the Me chanics' Lie ns Act *** is clear that only that section of the ac t governs liens on public improvements. The other sections of that act have no applicat ion to pub lic fund li ens." Anderson "Saf eway" Guard Rail Corp. v. Ch ampai gn Asphalt Co. , 131 Ill. App. 2d 924, 929 (1971). For the foregoing r

easons, the judgment of the circuit court is affirmed. Affirmed. GALL AGHER and NEVIL

LE, JJ.'s concur.