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Casenotes

Illinois

Contracts; Mechanics' Liens

Behl v Gingerich, 396 Ill App 3d 1078, 920 NE2d 665, 336 Ill Dec 456 (4th D 2009).

Facts:In August 2006, John Behl, doing business as Behl Construction (Behl), started to build an addition and to make repairs to the home of Daryl Gingerich. While Behl produced a written work order for Gingerich, the parties did not sign an official written contract. In April 2007, Behl left the work site due to deteriorating relations with Gingerich. Behl's work was originally estimated at $55,395. As of April 2007, Gingerich had paid $39,895. Including additional work requested and credits for materials, Behl alleged that Gingerich owed him $20,821.93.

In August 2007, Behl filed a complaint seeking the $20,821.93 balance he alleged he was due in addition to the foreclosure of his mechanics' lien. Gingerich answered with a motion to dismiss, under the theory that Behl failed to satisfy the requirements of the Home Repair and Remodeling Act (HRRA) by failing to acquire a signed, written agreement authorizing the work. The lower court concluded that Behl was entitled to monetary recovery but denied foreclosure of the mechanics' lien under the theory that it was untimely because it was filed more than four months after the completion of work in April 2007. Gingerich appealed the monetary award, and Behl cross-appealed the mechanics' lien dismissal.

Holding:Affirmed in part, reversed in part, remanded for further proceeding. The court concluded that the HRRA did apply to this case and that a violation thereof could bar recovery for the contractor. It also found that Behl's failure to obtain a written agreement was, in fact, a technical violation. It further decided, however, that substantial compliance with a mandatory section of a statute could be sufficient for recovery. In this case, the court found that a written but unsigned work order was in substantial compliance with the statute because it contained all the information necessary to put the homeowner on notice.

As a result, the court found that there did exist a writing between the parties that illustrated the content of their agreement, and that there was evidence that the parties had accepted the writing (namely, that the work did take place and that Gingerich made partial payment). Therefore, the court concluded, the substantial purpose of the act was met, and recovery could be allowed under the terms of the work order, thereby affirming the monetary award by the lower court. This outcome differs substantially from the decisions of the 1st and 3rd District Appellate Courts in similar cases. SeeK Miller Const Co, Inc v McGinnis, 394 Ill App 3d 248, 913 NE2d 1147, 332 Ill Dec 857 (1st D 2009);Fandel v Allen, 398 Ill App 3d 177 (3rd D 2010).

The court also agreed with Behl as to the mechanics' lien, finding that it was in fact timely. The appellate court noted that while mechanics' liens cannot be enforced against third parties if they are not filed within four months of the completion of work, they can still be enforced against the homeowner. To be enforceable against the homeowner, mechanics' liens have to be filed within two years of the completion of work, which therefore meant that Behl's mechanics' lien was valid and could potentially be foreclosed against Gingerich.

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