NO. 4-02-0347

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

ROTHERS CONSTRUCTION, INC.,			)	Appeal from

	Plaintiff-Appellant,		)	Circuit Court of

	v.			     		)	Piatt County

CENTURION INDUSTRIES, INC., d/b/a 		)	No. 01CH13

A-LERT CONSTRUCTION SERVICES; O'MALLEY 	)	

GRAIN, INC.; and UNKNOWN OWNERS AND 	)	Honorable

NON-RECORD CLAIMANTS,				)	John P. Shonkwiler,

	Defendants-Appellees.		)	Judge Presiding.

_______________________________________________________________

	JUSTICE KNECHT delivered the opinion of the court:

	Plaintiff, Rothers Construction, Inc., a subcontractor,

brought an action in the circuit court of Piatt County to fore

close a mechanics lien against defendants, O'Malley Grain, Inc.,

the owner of a construction project, and Centurion Industries,

Inc., d/b/a A-Lert Construction Services (A-Lert), the general

contractor.  Defendants filed a motion to dismiss pursuant to

section 2-619(a)(9) of the Code of Civil Procedure (Code) (735

ILCS 5/2-619(a)(9) (West 2000)).  The trial court found plaintiff

failed to perfect its mechanics lien pursuant to section 24 of

the Mechanics Lien Act (Act) (770 ILCS 60/24 (West 2000)). 

Plaintiff appeals, contending (1) the trial court erred in

dismissing its mechanics lien foreclosure complaint on the

grounds it was not properly perfected under section 24 of the Act

and (2) the trial court erred when it failed to find defendants

were equitably estopped from asserting the failure to perfect the

lien under section 24 of the Act.  We affirm.

I. 			STATUTES AT ISSUE

	The Act provides for different ways to perfect a

mechanics lien depending on the circumstances.  Section 24 of the

Act provides in pertinent part:

	"S[A] [s]ub[]contractors *** may at any time

after making his or her contract with the

contractor, and shall within 90 days after

the completion thereof, or, if extra or addi

tional work or material is delivered thereaf

ter, within 90 days after the date of comple

tion of such extra or additional work or

final delivery of such extra or additional

material, cause a written notice of his or

her claim and the amount due *** to be sent

by registered or certified mail, with return

receipt requested *** or personally served on

the owner of record or his agent ***."  770

ILCS 60/24 (West 2000).

Section 25 of the Act provides in pertinent part:

	"In all cases where the owner, agent, archi

tect[,] or superintendent cannot, upon rea

sonable diligence, be found in the county in

which said improvement is made, or shall not

reside therein, the sub[]contractor *** may

give notice by filing in the office of the

recorder against the person making the con

tract and the owner a claim for lien ***."

	770 ILCS 60/25 (West 2000).

II. BACKGROUND

	A-Lert entered into a contract with defendant,  O'Malley

Grain, Inc., to build grain bins and material handling systems on

its property in Piatt County and then, on December 31, 1999,

subcontracted some of the work on the project to plaintiff,

Rothers Construction, Inc., a corporation headquartered in

Minnesota.  On June 8, 2000, plaintiff completed construction

services at O'Malley Grain's plant in Piatt County.  On September

5, 2000, plaintiff recorded a mechanics lien on O'Malley Grain's

property in Piatt County in the amount of $97,182.50.  

	On April 20, 2001, plaintiff filed a complaint against

both defendants.  Attached to the complaint as exhibit A was a

copy of the recorded mechanics lien.   Attached to the complaint

as exhibit B was a notice of mechanics lien claim, addressed to

O'Malley Grain, dated April 12, 2001. 

	On September 25, 2001, plaintiff filed its amended

complaint.  Attached to this complaint was only an exhibit A, the

recorded mechanics lien.  On October 15, 2001, both defendants

filed a joint motion to dismiss the amended complaint pursuant to

section 2-619(a)(9) of the Code.  In the portion of the motion

addressing count I of the amended complaint, O'Malley Grain

contends, among other things, plaintiff failed to allege it filed

a notice of mechanics lien pursuant to section 24 of the Act (770

ILCS 60/24 (West 2000)) and its lien was not perfected.

	On November 19, 2001, plaintiff filed a written re

sponse to the motion to dismiss and contended that section 25 of

the Act applied, not section 24, and that it complied with

section 25.  In support of this contention, plaintiff provided an exhibit to its response showing O'Malley Grain's registered agent

to be located in Cook County.

	Alternatively, plaintiff contended if compliance with

section 24 of the Act was necessary for perfecting a mechanics

lien in this case, O'Malley Grain was equitably estopped from

arguing section 25 was improper because the mechanics lien claim

was drafted by the attorney for O'Malley Grain, with instructions

on how to file it with the recorder.  This contention was sup

ported by the affidavit of James A. Rothers, plaintiff's vice-

president, who stated plaintiff was referred to this particular

attorney by the president of O'Malley Grain, Robert P. O'Malley.

	On November 21, 2001, the trial court heard arguments

on defendants' motion to dismiss count I.  The trial court found

plaintiff did not meet all of the requirements of equitable

estoppel but denied defendants' motion to dismiss as to count I

on the grounds that O'Malley Grain was a resident of Cook County

for purposes of the Act based on the case cited by plaintiff,

Hollembeak v. National Starch & Chemical Corp., 95 Ill. App. 3d 309, 420 N.E.2d 172 (1981), and, therefore, perfection of the

mechanics lien was proper under section 25.

	On December 20, 2001, O'Malley Grain filed a motion to

reconsider the trial court's ruling.  Attached to the motion was

the affidavit of Robert P. O'Malley, Cchief Eexecutive Oofficer of

O'Malley Grain, Inc.  In his affidavit, O'Malley stated he was a

resident of Piatt County, was the agent in charge of the con

struction project at issue in Piatt County, and was present at

the construction site three to four times per week during con

struction.

	Plaintiff filed a motion to strike O'Malley's affidavit

on January 17, 2002, and filed a response to the motion to

reconsider on January 29, 2002.  The response did not mention the

equitable estoppel arguments it had made in response to the

original motion to dismiss.  O'Malley Grain filed a response to

the motion to strike its affidavit on January 29, 2002.

	On January 30, 2002 the trial court heard arguments on

plaintiff's motion to strike and O'Malley Grain's motion to

reconsider.  The trial court allowed O'Malley Grain to file

O'Malley's affidavit.  During argument, plaintiff raised the equitable estoppel argument and O'Malley Grain asked the court to

consider it as untimely raised since more than 30 days had passed

since the trial court found the argument unpersuasive at the

original motion to dismiss hearing.

	The trial court found section 24 notice was not served

on O'Malley Grain but plaintiff did file a section 25 notice. 

The trial court noted O'Malley stated in his affidavit he was the

agent in charge of the grain-handling-system construction project

and had complete authority over the project.  He further stated

he visited the job site at least three or four times per week

during most of the construction project and when he did so, he

would inspect the facility and discuss the project with the

contractors and subcontractors working at the job site.  He was

available to speak with the representatives of the general

contractor and the subcontractors, including plaintiff, on a

frequent basis during the construction project.  The trial court

found O'Malley was the agent of O'Malley Grain and, thus, section

24 notice should have been served on O'Malley.  The trial court did not rule on the equitable estoppel issue.

	On February 28, 2002, plaintiff filed a motion for

reconsideration of the trial court's ruling of January 30, 2002,

and for other relief.  Plaintiff specifically asked the trial

court to reconsider its "January 30, 2002," ruling that equitable

estoppel did not apply in this case.  Plaintiff also asked for a

finding under Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a))

in order to appeal should the trial court not reconsider its

prior rulings.  On March 25, 2002, O'Malley Grain filed a re

sponse to plaintiff's motion to reconsider and objected to

plaintiff raising the equitable estoppel argument, contending it

was untimely raised.

	The trial court heard arguments on plaintiff's motion

to reconsider on March 27, 2002.  O'Malley Grain argued plain

tiff's request for reconsideration of the November 21, 2001,

equitable estoppel denial was not timely made.  Plaintiff argued

the estoppel argument was timely made because it did not become

"germane" until the trial court ruled the mechanics lien, which

the trial court had originally ruled was properly perfected under

section 25, was not properly perfected.  The trial court denied

plaintiff's motion to reconsider and allowed its ruling of

January 30, 2002, to stand.  As to the equitable estoppel argu

ment, the trial court stated as follows:

	"As far as equitable estoppel, that issue has

been raised, has been argued.  The [c]ourt is

concerned that the plaintiff has a right to

retain its own attorney.  Could he adequately

and properly rely on O'Malley's counsel?  These are now adverse parties, not necessar

ily at the time that O'Malley's counsel was

used by [plaintiff]."

	The trial court made a finding there was no just reason

for delaying appeal under Rule 304(a) (155 Ill. 2d R. 304(a)) and

this appeal followed.

III. ANALYSIS

	  A. Did the Trial Court Err in Dismissing Plaintiff's

Mechanics Lien Foreclosure Complaint Because the Lien Was Not

Properly Perfected Under Section 24 of the Act 

(770 ILCS 60/24 (West 2000))?

	O'Malley Grain moved to dismiss count I of plaintiff's

complaint under section 2-619(a)(9) of the Code (735 ILCS 5/2-

619(a)(9) (West 2000)) on the grounds the claim for lien was not

properly perfected.  O'Malley Grain argues perfection of a

mechanics lien in this case was only appropriate under the

provisions of section 24 of the Act (770 ILCS 60/24 (West 2000)),

and plaintiff argues perfection of its mechanics lien claim was

appropriate under Section 25 of the Act.  770 ILCS 60/25 (West

2000).

	The standard of review for the granting of a defen

dant's section 2-619(a)(9) motion to dismiss is de novo.  Henrich v. Libertyville High School, 186 Ill. 2d 381, 386, 712 N.E.2d 298, 301 (1998).  

	Section 2-619(a)(9) of the Code permits dismissal where

"the claim asserted *** is barred by other affirmative matter

avoiding the legal effect of or defeating the claim."  735 ILCS

5/2-619(a)(9) (West 2000).  When ruling on a motion to dismiss,

the trial court must interpret all pleadings and supporting documents in the light most favorable to the nonmoving party. 

The court should grant the motion only if the plaintiff can prove

no set of facts that would support a cause of action.  Henrich, 186 Ill. 2d at 386, 712 N.E.2d at 301.

	Statutes creating mechanics liens are in derogation of

common law and must be strictly construed.  Suddarth v. Rosen, 81 Ill. App. 2d 136, 139, 224 N.E.2d 602, 603 (2nd Dist. 1967).

	"Mechanic's lien statutes afford extraordi

nary remedies to certain classes of contrac

tors and subcontractors and it is not unrea

sonable to expect them to conform to the

requirements of the law that creates those

remedies.  Obviously, without a mechanic's

lien statute, the plaintiff would have no

redress against the owners of the property or

their lending institution.  The General As

sembly has seen fit to grant to a subcontrac

tor, such as the plaintiff, a potent device

to secure payment of his improvement of real

property by its provision that a lien can be

placed against the property so improved. 

However, the legislature has required that

the subcontractor adhere to certain technical

procedures to effectuate his lien and his

failure to do so means simply that he has not

availed himself of the remedy extended and

that he has no lien."  Suddarth, 81 Ill. App. 2d at 139-40, 224 N.E.2d at 603.

	Section 24 of the Act provides a subcontractor shall,

within 90 days after completion of work, cause a written notice

of claim to be sent by registered or certified mail to or served

personally upon "the owner of record or his agent or architect,

or the superintendent having charge of the building or improve

ment."  770 ILCS 60/24 (West 2000).

	Section 25 of the Act provides where the owner, agent,

architect, or superintendent either cannot be found in or does

not reside in the county where the work is done, the subcontrac

tor may give notice by filing a claim for lien in the county

recorder's office against the real property upon which the work

was completed.  770 ILCS 60/25 (West 2000).  

	Plaintiff argues the interpretation of section 25 found

in Hollembeak supports its argument service was appropriate under section 25.  In Hollembeak, the owner of a factory in Morgan County (National) was a Delaware corporation licensed to do

business in Illinois with its registered agent located in Cook

County.  It had a plant manager who worked at the site in Morgan

County.  Hollembeak, 95 Ill. App. 3d at 309-10, 420 N.E.2d at 173.  When National decided to make improvements to its plant, it

employed a Pennsylvania corporation to draw the plans.  There was

no architect on the job.  There was no superintendent on the job

either, and construction work was handled by a foreign corpora

tion and its subsidiaries and subcontractors, who were also

foreign corporations.  Hollembeak, 95 Ill. App. 3d at 310, 420 N.E.2d at 173.  Hollembeak entered into an oral contract with one

of the subcontractors to deliver concrete which, when it was not

paid, later filed notice of its mechanics lien under section 25.  Hollembeak, 95 Ill. App. 3d at 310, 420 N.E.2d at 173.	

	The Hollembeak court found section 25 begins with a disjunctive provision:  "If the owner or agent cannot be found

upon reasonable diligence, or is a nonresident of the county, then the recording procedure may be employed."  (Emphasis in

original.)  Hollembeak, 95 Ill. App. 3d at 311, 420 N.E.2d at 174.  The court then noted the "residency" provisions of the

venue provisions of the Civil Practice Act (Ill. Rev. Stat. 1979,

ch. 110, par. 6) are different from the notice provisions of the

Act whose purpose is to confine the extraordinary remedy of the

mechanics lien to the county in which the property is located. 

Accordingly, the court found a Delaware corporation with its

local registered office in Cook County, was not a resident of

Morgan County for purposes of the Act.  Hollembeak, 95 Ill. App. 3d at 311, 420 N.E.2d at 174.  

	The plant manager was also found not to be the "agent"

referred to in section 25 for service of the notice of mechanics

lien because he, along with the owner, architect, or superinten

dent, must be connected to the building project.  This require

ment serves to confine the claim process to those who have direct

knowledge of the transactions.  As the plant manager had no

authority over the construction project, he was not the proper

person to be served with a mechanics lien.  Hollembeak, 95 Ill. App. 3d at 312, 420 N.E.2d at 174.  Therefore, since the owner

was a nonresident and no agent in charge of construction was a resident of Morgan County, all being foreign corporations,

proceeding under section 25 was proper.  Hollembeak, 95 Ill. App. 3d at 312, 420 N.E.2d at 174.

	Plaintiff argues Hollembeak stands for the proposition section 25 applies when any one of the owner, agent, architect, or superintendent does not reside in the county where the work is

located or if any one of them cannot be found there.  This is a misreading of what Hollembeak says about section 25.  Under plaintiff's theory, if the owner, agent, and superintendent all

resided in the county where the work is located, but the archi

tect livesd in an adjacent county, then the claimant would be

justified in using section 25.  Section 25 does not state if any

one of the named entities cannot be found or does not reside in the county where the work is located mechanics liens may be

perfected by recording.  Rather, if any one of the entities can be found in the county, personal service under section 24 must be

used.  Sections 24 and 25 do not make sense together otherwise.  

	Notice to the owner as required by statute is the basis

on which a mechanics lien is predicated and is necessary to

creation of the lien.  The owner's actual notice of the claim

from some source other than those listed in section 24 does not

create a lien.  Suddarth, 81 Ill. App. 2d at 140, 224 N.E.2d at 604.  Service of the 90-day notice pursuant to section 24 is a

condition precedent to the cause of action, the creation of the

lien.  Caruso v. Kafka, 265 Ill. App. 3d 310, 313, 638 N.E.2d 663, 665 (1994).  No lien attaches when the owner does not receive timely written notice.  Season Comfort Corp. v. Ben A. Borenstein Co., 281 Ill. App. 3d 648, 654-55, 655 N.E.2d 1065, 1070 (1995).

	Reading sections 24 and 25 together, we find section 24

provides for the notice that is required to perfect a claim for mechanics lien.  Since the owner is the person who is entitled to

notice under the Act, the others listed in section 24, the

owner's agent or architect or the superintendent of the construc

tion project, are surrogates for the owner.  Only where none of

the entities designated for service of notice of the claim for

mechanics lien in person or by registered mail in section 24 are

residents of the county where the construction is located, or

upon reasonable diligence cannot be found therein, is resort to

section 25 perfection of the lien by filing a notice of the claim

with the recorder of deeds appropriate.  Section 25's enumeration

of the entities set forth in section 24 should be read as a group

and not individually.  Therefore, if the group as a whole is not

resident in the county or cannot be reasonably found therein,

section 25 perfection applies.  

	Here, O'Malley Grain had a representative at the

job

site, Robert P. O'Malley, a resident of Piatt County, who

visited the site three to four times per week during construction

and was in charge of overseeing the project for the owner.  Thus,

he was available for service of notice under section 24 upon

reasonable diligence on the part of plaintiff.  As the agent of

O'Malley Grain, the owner, O'Malley would then be responsible for

notifying O'Malley Grain that plaintiff had not yet been paid for

its work by A-Lert and O'Malley Grain should not settle with A-

Lert until all the subcontractors' claims had been addressed. 

Section 24 notice was required in this case, and the trial court

did not err in dismissing plaintiff's mechanics lien foreclosure

complaint as not properly perfected.	

	The better practice to avoid the issues raised in this case would be to use both sections 24 and 25.  Section 25 notice

of a mechanics lien claim is not the most expeditious method a

supplier or subcontractor could use for getting paid since most

owners of property do not check with the recorder of deeds on a

daily basis and it might be a while before the owner actually

realizes a notice of claim has been made and payment is still

due.  Using section 24 notice would cause an owner to have prompt

notice its property was about to be encumbered by a lien and

could not then be easily sold, forcing it to take action to help

the subcontractor settle its claim.

	B. Did the Trial Court Err When It Failed To Find Equitable

Estoppel Barred Defendant From Asserting the Failure To Perfect

the Lien Under Section 24 (770 ILCS 60/24 (West 2000))?

	Alternatively, plaintiff alleges O'Malley Grain is

estopped from raising the notice requirement of section 24 of the

Act because plaintiff requested, and O'Malley Grain's attorney

provided, a form and instructions to plaintiff on how to file a

claim for mechanics lien in Illinois.  In support of its allega

tion, plaintiff filed an affidavit, from its vice president,

James A. Rothers.  In his affidavit, Rothers avers plaintiff

completed its work on the construction project in early June 2000

and rendered a final bill to A-Lert but was not paid.  In late

August 2000, Rothers had a conversation with Robert P. O'Malley,

president and part owner of O'Malley Grain.  In that conversa

tion, Rothers told O'Malley plaintiff had yet to be paid by A-

Lert.  O'Malley advised Rothers he needed to file a mechanics

lien against A-Lert.  When Rothers told O'Malley he did not know

how to file such a lien in Illinois, O'Malley suggested he

contact Bruce Gammage, an attorney who represented both himself and O'Malley Grain.

	Rothers then contacted Gammage concerning the mechanics

lien question with regard to the unpaid bill with A-Lert.  On

September 1, 2000, Gammage faxed to Rothers at plaintiff's

offices a form for a mechanics lien claim, partially filled out

and addressed to O'Malley Grain, with a legal description of its

property and the amount claimed by plaintiff.  Included with the

claim form were these hand-written instructions:

	"Here are Illinois lien claim forms.  You

must have on file before 90 days from the

last day work was done.  You will need to

send money order payable to the Piatt County

Recorder, Courthouse, Monticello, Illinois[,]

61856--you should overnight mail to make sure

it is recorded before the ninety days is up.  You will need to complete what work you did,

whether oral or written contract, and when

you were done and have it signed by company

president and attested by company secretary

with seal affixed.  (I have included the

$12,000 for the crane.)  Recording fee is

$18.  You need to put what State you are

incorporated in."  (Emphasis in original.) 

	Rothers, relying on the guidance and instructions of

Gammage, completed the documents he provided, executed, nota

rized, and recorded them with the Piatt County Rrecorder of Ddeeds. 

    Rothers further averred if the instructions given him by Gammage

were erroneous, he had no knowledge of same.

	A few weeks later, Gammage advised Rothers that,

because he represented O'Malley and O'Malley Grain, he would have

a conflict of interest in representing plaintiff in this matter

and suggested several other attorneys.  Prior to this referral by

Gammage, plaintiff was not represented by counsel.  Gammage did

not bill Rothers or plaintiff for any services rendered.

	The affidavit of Rothers was filed on November 19,

2001, as an exhibit to plaintiff's response to O'Malley Grain's

motion to dismiss.  O'Malley Grain filed no affidavits at the

time of the hearing on its motion to dismiss; and later, when it

did file O'Malley's affidavit in connection with its motion to

reconsider on December 20, 2001, O'Malley did not deny his

referral of Rothers to Gammage.

	Plaintiff argues should this court find its mechanics

lien was not properly perfected under section 25 of the Act (770

ILCS 60/25 (West 2000)), then O'Malley Grain should be equitably

estopped from asserting the failure of proper perfection because

its attorney, at its suggestion, drafted the lien claim for

plaintiff and instructed plaintiff in how to perfect the claim. 

It is this specific method of perfecting the claim that O'Malley

Grain now asserts is deficient.

	O'Malley Grain argues the equitable estoppel issue was

not preserved for appeal because a motion to reconsider must be

filed within 30 days of entry of the final judgment.  Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 538, 470 N.E.2d 290, 291 (1984).  O'Malley Grain contends since no written order

was required, the order denying plaintiff's equitable estoppel

defense was entered orally by the trial court at the hearing on the motion to dismiss held November 21, 2001.  Plaintiff had 30

days from that date to file a motion to reconsider the court's

ruling on its equitable estoppel claim and did not do so. 

Plaintiff did not raise the equitable estoppel argument until it

filed its motion for reconsideration of the trial court's ruling

of January 30, 2002, granting the motion to dismiss.  This was

not filed until February 28, 2002.  Therefore, the issue was not

preserved for appellate review.

	After plaintiff raised the issue of equitable estoppel

in its motion to reconsider the trial court's grant of O'Malley

Grain's motion to dismiss, the issue was argued and the court

mentioned the argument in its oral ruling on March 27, 2002, when

it denied plaintiff's motion to reconsider.  The court then made

its written order and included the finding under Supreme Court

Rule 304(a) allowing plaintiff to proceed with its appeal on

April 22, 2002.  

	Plaintiff won its argument at the initial hearing on

November 21, 2001, that it could proceed under section 25,

although it also raised the alternative argument of equitable

estoppel for which the trial court had found plaintiff had not

met all of the requirements.  Therefore, there was no reason for

it, as the winning party, to request the trial court reconsider

the alternative grounds for defeating the motion it had already

won.  Only after O'Malley Grain filed its motion to reconsider on

December 20, 2001, did the issue of equitable estoppel become, in

plaintiff's words, "germane."  The argument was raised by plain

tiff at the hearing on the motion to reconsider on January 30,

2002, but was not mentioned by the trial court in its ruling.  

	Plaintiff then raised the equitable estoppel argument

in its motion to reconsider filed on February 28, 2002, and

argued it to the court on March 27, 2002.  Bringing the issue to

the trial court's attention is the purpose of a motion to recon

sider (see Korogluyan v. Chicago Title & Trust Co., 213 Ill. App. 3d 622, 627, 572 N.E.2d 1154, 1158 (1st Dist. 1991)), and plaintiff ful filled this purpose at all hearings.  Thus, we elect to address

the merits of plaintiff's contention O'Malley Grain is equitably

estopped from asserting plaintiff failed to perfect its mechanics

lien under section 24.

	The general rule of equitable estoppel is that where a

person, by his or her statements and conduct, leads a party to do

something the party would not have done but for such statements

and conduct, that person will not be allowed to deny his or her

words or acts to the damage of the party.  Geddes v. Mill Creek Country Club, Inc., 196 Ill. 2d 302, 313, 751 N.E.2d 1150, 1157 (2001).  The court in Geddes goes on to define equitable estoppel as follows:

	"the effect of the person's conduct whereby

the person is barred from asserting rights

that might otherwise have existed against the

other party who, in good faith, relied upon

such conduct and has been thereby led to

change his or her position for the worse."

	Geddes, 196 Ill. 2d at 313, 751 N.E.2d at 1157.

	To establish equitable estoppel, the party claiming

estoppel must demonstrate that (1) the other person misrepre

sented or concealed material facts, (2) the other person knew at the time he or she made the representations that they were

untrue, (3) the party claiming estoppel did not know that the

representations were untrue when they were made and when they

were acted upon, (4) the other person intended or reasonably

expected that the party claiming estoppel would act upon the

representations, (5) the party claiming estoppel reasonably

relied upon the representations on good faith to his or her

detriment, and (6) the party claiming estoppel would be preju

diced by his or her reliance on the misrepresentations if the

other person is permitted to deny the truth thereof.  Geddes, 196 Ill. 2d at 313-14, 751 N.E.2d at 1157.  A party seeking to claim

estoppel has the burden of proving it by clear and unequivocal

evidence.  Geddes, 196 Ill. 2d at 314, 751 N.E.2d at 1157.

	In this case, the person taking the actions and making 

representations to plaintiff was Gammage and not O'Malley Grain,

but an attorney's errors and misconduct are attributable to his

clients on a theory of agency and the clients, being the princi

pals, are bound by the deeds of their agent.  Horwitz v. Holabird & Root, 312 Ill. App. 3d 192, 195, 726 N.E.2d 632, 635 (2000).  

	However, even if Gammage was the agent of O'Malley

Grain under the circumstances present here, which is doubtful,

plaintiff did not provide enough evidence of equitable estoppel

to make out an affirmative defense.  Plaintiff did not claim or

demonstrate Gammage knew his representations about how to perfect

plaintiff's mechanics lien were untrue.  Further, it was not

reasonable for plaintiff to rely on Gammage's advice once he

forwarded the form to plaintiff.  That form identified O'Malley

Grain as the entity against whom the lien was to be sought and yet plaintiff asserts it believed Gammage was O'Malley Grain's

attorney.  The trial court did not err in failing to find O'Mal

ley Grain was equitably estopped from asserting plaintiff's

failure to perfect its mechanics lien under section 24 of the Act

(770 ILCS 60/24 (West 2000)).

	CONCLUSION

	For the foregoing reasons, we affirm the trial court's

judgment. 

	Affirmed.	  

	STEIGMANN, J., concurs.

	McCULLOUGH, J., dissents.

	JUSTICE McCULLOUGH, dissenting:

	I respectfully dissent.  Section 25 of the Act should be

applied.

	At the time notice was given, plaintiff knew O'Malley

Grain was a corporation and that its registered agent was located

in Cook County, Illinois.  In late August 2000, O'Malley was made

aware that plaintiff had not been paid.  O'Malley, himself, advised

plaintiff he needed to file a mechanics lien notice.  Nothing in

the record indicates O'Malley Grain or its chief executive officer,

Robert P. O'Malley, notified or told plaintiff he was the person in

charge of the construction project.  The first notice to plaintiffs

was the motion of December 20, 2001, with the attached affidavit

showing Robert P. O'Malley to be the agent.  This court should not

give credence to the self-serving, after-the-fact, affidavit.

	I also disagree with the majority's discussion as to the

import of a recorded notice.  The purpose of the recording is, as

it states, giving notice of record.

	I conclude that section 25 does apply to the facts

presented.  The provisions of section 25 were followed, and

plaintiff properly followed its dictates.  To give credence to the

affidavit in support of the motion to dismiss encourages abuse in

defending mechanics lien actions.

	The trial court's grant of defendants' motion to dismiss

should be reversed.