SIXTH DIVISION 

April 7, 2006 

No. 1-05-0384 

LAZAR BROTHERS TRUCKING, INC., ) Appeal from the 

) Circuit Court of 

Plaintiff-Appellant, ) Cook County 

) 

v. ) 

 ) 

A&B EXCAVATING, INC.; CORUS BANK, N.A.; ) 

UNKNOWN OWNERS and NONRECORD CLAIMANTS, ) 

) 

Defendants, ) 

) 

and ) 

) 

SCHMIDT & ASSOCIATES CONSTRUCTION, INC.,) Honorable 

) Lewis M. Nixon, 

Defendant-Appellee. ) Judge Presiding 

PRESIDING JUSTICE McNULTY delivered the opinion of the 

court: 

Lazar Brothers Trucking sued to foreclose a mechanics lien 

it filed against property Schmidt & Associates Construction 

owned. The trial court dismissed the claim based on lien waivers 

Schmidt obtained from its contractor. The lien waivers showed 

that before Lazar filed its lien, Schmidt fully paid its 

contractor for the work Lazar performed. We hold that the lien 

waivers established a prima facie defense to Lazar's lawsuit, and 

Lazar failed to present evidence that could support an inference 

that Schmidt acted in bad faith or that it knew its contractor 

provided false affidavits when Schmidt paid the contractor. 

Therefore we affirm the judgment in favor of Schmidt. 

 BACKGROUND 

Schmidt sought to develop land it owned in Northbrook. 
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Schmidt decided to act as its own general contractor for the 

project, directly hiring contractors to perform parts of the 

work. In August 2002 Schmidt entered into a written contract 

with A&B Excavating for excavation work at the site. Schmidt 

agreed to pay $25,000 for the work. 

In September 2002 the president of A&B sent Schmidt a waiver 

of lien in which A&B acknowledged receipt of $20,000 from Schmidt 

for the excavation. The lien waiver incorporated an affidavit in 

which the president of A&B swore that no subcontractors worked on 

the excavation. A&B sent a second lien waiver for the remaining 

charge of $5,000 in February 2003, and again A&B's president 

swore that no subcontractors worked on the excavation. 

Schmidt's president, in his capacity as president of the 

general contractor for the project, provided sworn statements 

showing the total price for the construction, and listing all 

contractors along with balances due each contractor. The 

affidavit dated January 2003 listed A&B as the excavation 

contractor and showed that Schmidt had paid A&B the full contract 

price of $25,000. A total of more than $80,000 remained due to 

the other contractors, and according to the affidavit, Schmidt as 

owner owed itself a fee for its work as the general contractor. 

The affidavit dated March 2003 showed a total due of $53,000, all 

for the work of contractors for landscaping, paving and curb and 

gutter work. No balance remained due to Schmidt for its work as 

general contractor. 
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According to the March affidavit, Schmidt had paid A&B an 

additional $4,200 for "Retention Pond Grading." A&B provided a 

final waiver, dated April 11, 2003, for the $4,200. 

On April 14, 2003, Lazar recorded a notice of mechanics lien 

against the property, and on April 16, 2003, Lazar served Schmidt 

with notice of the lien. 

Lazar sued Schmidt and A&B, amongst others, in 2004. Lazar 

alleged that A&B hired Lazar to haul excavation debris from the 

site. Lazar performed the work on January 16 and 17, 2003, 

charging A&B $170 per truckload for the work. The total bill for 

two days' work came to $28,730. A&B never paid the amount due. 

In the first count of the complaint, Lazar sought to foreclose 

its lien against Schmidt's property. The second count, directed 

against A&B, sounded in breach of contract. Lazar served 

discovery on Schmidt. 

Schmidt did not respond to the discovery. Instead, Schmidt 

moved, under section 2-619(a)(9) of the Code of Civil Procedure 

(735 ILCS 5/2-619(a)(9) (West 2004)), to dismiss the foreclosure 

claim, based on the lien waivers A&B provided. The president of 

Schmidt swore in his affidavit that A&B did not inform Schmidt of 

the contract with Lazar, and Schmidt did not learn of Lazar's 

work before service of the notice of lien. Schmidt's president 

also swore that Schmidt paid A&B a total of $29,200. The 

affidavit corroborated the lien waivers. 

The president of Lazar responded with an affidavit in which 
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he swore: 

"8. Pursuant to the usage and custom of the 

industry, the trucking/removal of debris is the 

expensive part of the work [A&B] was providing on 

January 16, 2003 and January 17, 2003[] (i.e., 

trucking/removal of debris is substantially more 

expensive than the site work). 

9. Furthermore, it is the usage and custom of the 

industry to have trucking/removal of the debris 

contemporaneous with the site work, otherwise, it is 

more costly to perform the site work, pile up the 

debris and then later fill the trucks and truck the 

debris from the site. 

10. Moreover, the trucking/removal of the debris 

in the case at bar was actually done contemporaneous 

with the site work at issue. 

11. Additionally, as general contract and owner, 

SCHMIDT knew LAZAR was providing the Trucking/removal 

of debris services for the site, in that: 

a. At the relevant time, LAZAR operated 

approximately 40 trucks, all with Lazar 

Brothers Trucking, Inc. on the doors. 

b. At the time of trucking/removal of 

debris from the Property, Affiant, upon best 

information and belief, saw agents/employees 
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of SCHMIDT on site of the Property." 

After hearing argument the court granted Schmidt's motion to 

dismiss count I, and the court added language to make the 

judgment immediately appealable. See 155 Ill. 2d R. 304(a). 

 ANALYSIS 

We review de novo the dismissal of the lien foreclosure 

action pursuant to section 2-619. See A.P. Properties, Inc. v. 

Goshinsky, 186 Ill. 2d 524, 531 (1999). Lazar argues first that 

defendant's evidence leaves unresolved issues of fact, and 

therefore the court should not have dismissed the complaint. In 

particular, Lazar objects that the evidence does not specify the 

time and method of Schmidt's payments to A&B, and Schmidt failed 

to establish facts that prove that it acted in good faith when it 

paid A&B. 

The Mechanics Lien Act (770 ILCS 60/0.01 et seq. (West 

2004)) comprehensively defines the rights and responsibilities of 

parties to construction contracts (Sanaghan v. Lawndale National 

Bank, 90 Ill. App. 2d 254, 257-58 (1967)) in a manner that 

balances the rights and duties of owners, contractors and 

subcontractors (Struebing Construction Co. v. Golub-Lake Shore 

Place Corp., 281 Ill. App. 3d 689, 694 (1996)). To protect 

itself from paying twice for the same work, the owner must demand 

from the contractor, prior to payment, a sworn statement listing 

all subcontractors providing labor and materials to the 

contractor. 770 ILCS 60/5 (West 2004). The contractor's 
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affidavits and lien waivers do not protect the owner if the owner 

has notice that the affidavits are false. Knickerbocker Ice Co. 

v. Halsey Bros. Co., 262 Ill. 241, 245 (1914). 

To protect its right to receive payments, each subcontractor 

must provide timely written notice to the owner of the amount 

owed to the subcontractor for work on the project. 770 ILCS 

60/24 (West 2004). Even timely notice may not protect the 

subcontractor, if the owner made proper payments to the 

contractor prior to receiving notice of the subcontractor's 

claim. 770 ILCS 60/5, 21 (West 2004); Contractors' Ready-Mix, 

Inc. v. Earl Given Construction Co., 242 Ill. App. 3d 448, 458 

(1993). The subcontractor has the right to file its lien once it 

agrees to work on the project. See 770 ILCS 60/24 (West 2004). 

Schmidt demanded an appropriate statement from its 

contractor, A&B, and A&B provided a sworn statement that falsely 

failed to list Lazar as its subcontractor. The lien waiver 

applies to all of the excavation work. Lazar had not, at the 

time A&B executed the lien waivers, served notice on Schmidt of 

its right to payment for work on the excavation. 

Lazar contends that the lien waivers do not provide 

sufficient support for the judgment in favor of Schmidt, because 

Schmidt failed to present evidence proving that it relied on the 

affidavits in good faith. We disagree. The lien waivers from 

A&B established a prima facie defense to Lazar's claim for a 

mechanics lien. William Aupperle & Sons, Inc. v. American 
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National Bank & Trust Co. of Chicago, 28 Ill. App. 3d 573, 576 

(1975). Lazar had the burden of avoiding the effect of the 

waivers. Aupperle, 28 Ill. App. 3d at 576. Because Lazar argues 

that Schmidt acted in bad faith, in that Schmidt did not 

reasonably rely on the lien waivers, Lazar needed to present 

evidence sufficient to "raise a genuine issue of material fact as 

to whether there was such reliance." Merchants Environmental 

Industries, Inc. v. SLT Realty Ltd. Partnership, 314 Ill. App. 3d 

848, 866 (2000). 

Lazar contends that the affidavit of its president creates 

sufficient factual issues to require reversal of the judgment. 

According to Lazar's president, "the trucking/removal of debris 

is the expensive part of the work [A&B] was providing on January 

16, 2003 and January 17, 2003." The lien waivers showed that 

Schmidt had already paid A&B $20,000 out of a total contract 

price of $25,000 before Lazar began its work removing the debris. 

 We see nothing pernicious in the apparent advance payment. We 

hold that without some further evidence, the advance payment to 

A&B does not support an inference that Schmidt knew that A&B 

falsely swore that it hired no subcontractors. 

Lazar also points to its evidence that it operated 40 trucks 

at the site, all labeled with Lazar's name in large letters. 

Lazar's president swore that he saw at the site persons he 

believed to be agents of Schmidt. Under Supreme Court Rule 191 

(145 Ill. 2d R. 191), an affidavit must show that the affiant 
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could competently testify to its contents at trial. Burks 

Drywall, Inc. v. Washington Bank & Trust Co., 110 Ill. App. 3d 

569, 576 (1982). Affidavits based on information and belief, 

rather than the affiant's personal knowledge, usually do not 

suffice because the affiant cannot testify to the facts he 

believes. Burks Drywall, 110 Ill. App. 3d at 576; Beattie v. 

Lindelof, 262 Ill. App. 3d 372, 382 (1994). The affidavit does 

not present admissible evidence that an agent of Schmidt saw 

Lazar's trucks on the site. Thus, Lazar has not presented 

evidence that could support an inference that Schmidt knew of 

Lazar's work at the site or the falsity of A&B's affidavit when 

it paid A&B. 

Lazar's timely lien establishes its right to payments made 

to A&B after Lazar filed its lien, but Schmidt presented 

evidence, from A&B's lien waivers and Schmidt's affidavits of 

payments made. The documents show that by March 2003, Schmidt 

had already paid A&B all amounts due before Lazar filed its lien. 

Lazar also claims a right to share in any payments Schmidt 

made to itself as general contractor after Lazar filed its lien. 

 We note some conflict in Illinois authority on the issue. 

Compare Season Comfort Corp. v. Ben A. Borenstein Co., 281 Ill. 

App. 3d 648, 656 (1995), with Struebing Construction, 281 Ill. 

App. 3d at 693. We find that we need not resolve the conflict. 

Even assuming Lazar had a claim on payments from the owner to 

itself as general contractor, Schmidt presented unrebutted 
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evidence that it, as owner, made no payments to its general 

contractor after March 2003. The affidavit dated March 2003 

showed no balance due to the general contractor. Lazar did not 

show that Schmidt made any payments to the general contractor 

after that date. Thus, the evidence shows that Schmidt paid its 

contractor all amounts due for excavation work, and it completed 

payment to its general contractor, before Lazar filed its 

mechanics lien. Lazar has not presented evidence that could 

support an inference that Schmidt made the payments improperly. 

Lazar contends that the trial court incorrectly relied on 

the affidavit of Schmidt's president in which he said that 

Schmidt paid A&B. If Schmidt's president testified at trial, 

Lazar would have the opportunity to ask him about the exact date 

and method of payment, and Lazar claims that answers to these 

questions might show the impropriety of Schmidt's payments. 

Regardless of the possible success of cross-examination, we see 

no basis for precluding Schmidt's president from testifying to a 

fact in his personal knowledge, that Schmidt paid A&B the amounts 

shown in the lien waivers. Moreover, we see no indication that 

the trial court relied on the affidavit Schmidt's president 

prepared for this litigation. That affidavit only corroborates 

the affidavits prepared in 2002 and 2003, during the course of 

construction, and those affidavits show that Schmidt fully paid 

its general contractor and A&B prior to April 14, 2003. 

Finally, Lazar suggests that we should reverse the judgment 
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because Schmidt did not respond to discovery. Like the plaintiff 

in Miller v. Thomas, 275 Ill. App. 3d 779 (1995), Lazar here 

filed no affidavit indicating a need for discovery for its 

response to Schmidt's dispositive motion. In Miller the court 

said: 

"Rule 191(b) allows a party to file an affidavit 

stating that material facts are known only to parties 

whose affidavits the affiant is unable to procure by 

reason of hostility or otherwise. [Citation.] Because 

the plaintiffs did not use Rule 191(b) to address their 

discovery need, they cannot ask for a reversal on the 

basis that they required additional discovery to oppose 

the motion." Miller, 275 Ill. App. 3d at 790. 

Following Miller we hold that Lazar waived any issue concerning 

Schmidt's failure to respond to discovery. 

The lien waivers, showing that Schmidt fully paid for 

excavation work before Lazar filed its mechanics lien, 

established a defense to the foreclosure action. The evidence, 

including the affidavit of Lazar's president, failed to support 

an inference that Schmidt acted in bad faith or that it knew A&B 

supplied false affidavits when Schmidt paid A&B. Therefore, we 

affirm the judgment dismissing Lazar's claim for foreclosure on 

its mechanics lien. 

Affirmed. 

TULLY and O'MALLEY, JJ., concur.