                                                  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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1-05-0384

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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1-05-0384

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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1-05-0384

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.


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