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                                  Appellate Court                            Date: 2019.07.02
                                                                             15:02:13 -05'00'




        MEP Construction, LLC v. Truco MP, LLC, 2019 IL App (1st) 180539



Appellate Court      MEP CONSTRUCTION, LLC, Plaintiff-Appellant, v. TRUCO MP,
Caption              LLC; RANDHURST IMPROVEMENTS, LLC; WELLS FARGO
                     BANK, N.A.; ZIVAK PLUMBING, INC.; V&V DEVELOPMENT,
                     CORPORATION; SUBWAY REAL ESTATE, LLC; AMERICAN
                     MULTI-CINEMA, INC.; and UNKNOWN OWNERS AND
                     NONRECORD CLAIMANTS, Defendants (Truco MP, LLC, and
                     Randhurst Improvements, LLC, Defendants-Appellees).



District & No.       First District, Sixth Division
                     Docket No. 1-18-0539



Filed                February 8, 2019



Decision Under       Appeal from the Circuit Court of Cook County, Nos. 16-CH-6729,
Review               16-CH-6734; the Hon. Anthony C. Kyriakopoulos, Judge, presiding.



Judgment             Affirmed.


Counsel on           Law Offices of John F. Argoudelis, LLC, of Plainfield (John F.
Appeal               Argoudelis, of counsel), for appellant.

                     Kluever & Platt, LLC, of Chicago (Blake A. Strautins, of counsel), for
                     appellee Truco MP, LLC.

                     Novak and Macey LLP, of Chicago (Mitchell M. Marinello and
                     Yvette V. Mishev, of counsel), for other appellee.
     Panel                    PRESIDING JUSTICE DELORT delivered the judgment of the court,
                              with opinion.
                              Justices Cunningham and Harris concurred in the judgment and
                              opinion.


                                               OPINION

¶1         Plaintiff MEP Construction, LLC (MEP), filed a complaint against defendants which
       included Truco MP, LLC (Truco), and Randhurst Improvements, LLC (Randhurst). MEP’s
       complaint contained three counts: (1) foreclosure of a mechanic’s lien, (2) breach of contract,
       and (3) quantum meruit. Truco moved for partial summary judgment on the mechanic’s lien
       count pursuant to section 2-1005(a) of the Code of Civil Procedure (Code) (735 ILCS
       5/2-1005(a) (West 2016)). Truco argued that MEP’s lien, which was 51% more than the
       amount actually owed it, amounted to constructive fraud. The circuit court granted Truco’s
       motion, and MEP now appeals the court’s order. We affirm.

¶2                                          BACKGROUND
¶3         On August 21, 2017, MEP filed its three-count “complaint to foreclose upon mechanic’s
       lien and other relief.” The complaint alleged that, in April 2014, MEP and Truco entered into a
       verbal contract in which MEP would provide “construction management and related services”
       to Truco for the purpose of building out Truco’s restaurant located in Mount Prospect, Illinois.
       The complaint further alleged that Truco leased the restaurant property from Randhurst, the
       owner.1 Under the contract, MEP offered to perform work for a cost of $791,781.16, which
       Truco accepted. The parties later agreed to have MEP perform additional work of about
       $80,000.
¶4         MEP further alleged that it “fully performed” its contractual obligations as of May 27,
       2015. MEP claimed that it had completed work worth $791,781.16 under the contract, but
       Truco only paid $612,447.15 and refused to pay anything further. On September 24, 2015,
       MEP recorded a mechanic’s lien with the Cook County Recorder of Deeds. The lien is attached
       as an exhibit to the complaint. The lien, recorded as document No. 1526757458, lists Truco,
       Randhurst, and Randhurst Shopping Center, LLC, as defendants and indicates a claim in the
       amount of $251,870.45 owed only to MEP.
¶5         On October 27, 2017, Truco filed a motion for partial summary judgment on the
       mechanic’s lien count pursuant to section 2-1005(a) of the Code. Truco argued that MEP’s
       mechanic’s lien of $251,870.45 was constructively fraudulent because MEP only performed
       $123,134.45 of work, and that the remaining amount was performed by various subcontractors
       at the property “with which MEP had no contract and for which MEP was not responsible for
       paying.” Truco attached the August 2015 sworn statement of MEP’s president, Jason Morales,
       that MEP had submitted to Truco. The statement indicated that the $251,870.45 amount in the
       mechanic’s lien comprised the following amounts: $123,134.45 payable to MEP; $78,585


           MEP’s complaint alleged that, at the time of contract formation, the property was owned by
             1

       Randhurst Shopping Center, LLC, but that entity conveyed the property to Randhurst in June 2015.

                                                  -2-
     payable to V&V Development, Corp. (V&V); $50,000 payable to Zivak Plumbing, Inc.
     (Zivak); and $150 payable to Fox Valley Fire & Safety.
¶6       Truco further included various facts developed during the discovery process.2 Truco had
     issued a document request to MEP asking for all documents showing all payments that MEP
     made for work performed either “by MEP or at the direction of MEP.” MEP responded,
     however, that all “contractors, subcontractors and material were paid directly by Truco.” In
     addition, Truco made a discovery request for all contracts between MEP and “any and all
     contractors, sub-contractors or other persons with whom MEP contracted for purposes of
     performing work” at the property. MEP’s response, however, was that all contractors and
     subcontractors “contracted directly with Truco” and were paid directly by Truco. Morales
     signed these responses under verification pursuant to section 1-109 of the Code (735 ILCS
     5/1-109 (West 2016)). Finally, Truco included an October 13, 2017, letter its attorney sent to
     MEP’s attorney. The letter explained the discrepancies noted above and suggested that the
     statements in the mechanic’s lien constituted constructive fraud. The letter demanded that
     MEP voluntarily dismiss the mechanic’s lien count and release the lien.
¶7       MEP’s response argued that, “[b]y agreement between MEP and Truco, Truco made
     payments to the contractors directly, but the contractors submitted waivers to MEP for
     payment and MEP sought payment for all of the contractors from Truco on their behalf at all
     times.” MEP attached Morales’s affidavit, which attested to that fact. MEP further
     acknowledged its statement in the interrogatories that it did not contract directly with the other
     contractors and that Truco directly paid them, but MEP nonetheless argued that “the
     overwhelming majority of the facts, including Truco’s verified answers to Zivak and V&V’s
     complaint[,] indicate that MEP may have in fact acted as a general contractor in some
     capacity.”
¶8       On January 31, 2013, the circuit court held a hearing on Truco’s motion to compel MEP to
     respond to its discovery requests. MEP’s counsel explained to the court that there were no
     documents substantiating MEP’s assertion that it was responsible for ensuring Truco paid the
     various contractors. Instead, MEP sought payment via text message or e-mail. The court
     recounted MEP’s answers that Truco directly paid MEP and all contractors and that Truco also
     directly paid for all materials. The court stated, “I read this and it sounds as if MEP had nothing
     to do with those other individuals.” MEP’s counsel pointed out that “all of these other
     people”—such as the electrician and plumber—were “his [i.e., Morales’s] people that he
     brought in.” The court, however, replied that “Bringing the plumber and *** the electrician in
     doesn’t automatically make them subs,” with which MEP’s counsel agreed. Finally, MEP’s
     counsel also agreed with the court’s characterization that counsel was saying “basically, ‘My
     pockets are emptied as to anything that I know other than what I’ve supplied.’ ”
¶9       On February 27, 2018, the circuit court granted Truco’s motion for summary judgment,
     dismissed the mechanic’s lien count with prejudice, and found, pursuant to Illinois Supreme
     Court Rule 304(a) (eff. Mar. 8, 2016), that “this is a just and final order with no cause to delay
     enforcement or appeal.” This appeal followed.


        2
          These discovery matters arose in conjunction with a related lawsuit that V&V and Zivak filed
     against MEP and the other defendants in this case. The circuit court consolidated that related case
     (16-CH-6729) into the case at issue in this appeal (16-CH-6734).

                                                  -3-
¶ 10                                            ANALYSIS
¶ 11       MEP contends that the circuit court erroneously granted Truco’s motion for summary
       judgment. Specifically, MEP argues that the court improperly “grasped onto the single
       statement that MEP made in its production request answer[:] that the subcontractors contracted
       with Truco.” MEP further asserts that, if the court’s ruling stands, then it will “necessarily”
       establish under the related lawsuit (filed by V&V and Zivak against MEP and the other
       defendants) that “Truco is under contract with Zivak and V&V and [thus] liable to them for
       whatever amounts they can prove they are owed.” Finally, MEP complains that the court
       reached its conclusion “based upon very few facts produced during written discovery.” MEP
       asserts that oral discovery, which had not taken place prior to summary judgment, “most likely
       would” establish whether MEP was either (1) a general contractor, which would allow it to file
       a mechanic’s lien for all amounts owed to itself and the subcontractors, or (2) a construction
       manager, which it stated in its sworn statements.
¶ 12       Summary judgment is appropriate “if the pleadings, depositions, and admissions on file,
       together with the affidavits, if any, show that there is no genuine issue as to any material fact
       and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)
       (West 2016). Summary judgment is a drastic measure and should only be granted when the
       moving party’s right to judgment is “clear and free from doubt.” Outboard Marine Corp. v.
       Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). To determine whether there is a
       genuine issue of material fact, we construe the pleadings, depositions, admissions, and
       affidavits strictly against the moving party and liberally in favor of the opponent. Id. at 131-32.
       If reasonable people would draw divergent inferences from undisputed facts, summary
       judgment must be denied. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008).
¶ 13       However, “[s]tatements in an affidavit which are based on information and belief or which
       are unsupported conclusions, opinions, or speculation are insufficient to raise a genuine issue
       of material fact.” Outboard Marine, 154 Ill. 2d at 132. Unless they are the product of mistake
       or inadvertence, a party’s admissions contained in an original verified pleading are judicial
       admissions that bind the pleader throughout the litigation, even after the filing of an amended
       pleading that supersedes the original. Konstant Products, Inc. v. Liberty Mutual Fire Insurance
       Co., 401 Ill. App. 3d 83, 86 (2010). Moreover, “summary judgment requires the responding
       party to come forward with the evidence that it has—it is the put up or shut up moment in a
       lawsuit.” (Internal quotation marks omitted.) Parkway Bank & Trust Co. v. Korzen, 2013 IL
       App (1st) 130380, ¶ 14. We review the circuit court’s decision on a motion for summary
       judgment de novo. Id.
¶ 14       The central issue in this case concerns constructive fraud in the filing of a mechanic’s lien.
       The Mechanics Lien Act (Act) (770 ILCS 60/1 et seq. (West 2016)) is a comprehensive
       statutory enactment that outlines the rights, responsibilities, and remedies of parties to
       construction contracts, including owners, contractors, subcontractors, and third parties.
       Cordeck Sales, Inc. v. Construction Systems, Inc., 382 Ill. App. 3d 334, 353 (2008). The
       overall purpose of the Act is to require the individual with an interest in real property to pay for
       improvements or benefits that were induced by his or her own conduct. Id. The right to a
       mechanic’s lien claim, however, is a statutory right in derogation of the common law, so a
       contractor must strictly comply with the requirements of the Act to be eligible for relief. Id.
       Under the Act, a “contractor” includes both general contractors and “construction managers.”
       Id. at 353-54.

                                                    -4-
¶ 15       Section 7 of the Act provides in relevant part that no lien “shall be defeated to the proper
       amount thereof because of an error or overcharging on the part of any person claiming a lien
       therefor under this Act, unless it shall be shown that such error or overcharge is made with
       intent to defraud.” 770 ILCS 60/7 (West 2016). “Section 7 is intended to protect an honest lien
       claimant who makes a mistake rather than a dishonest claimant who knowingly makes a false
       statement.” Peter J. Hartmann Co. v. Capitol Bank & Trust Co., 353 Ill. App. 3d 700, 706
       (2004). If, however, a lien claimant knowingly files a lien containing a substantial overcharge,
       the claim should be invalidated on the basis of constructive fraud. Id. The intent to defraud may
       be inferred from “documents containing overstated lien amounts combined with additional
       evidence.” Cordeck, 382 Ill. App. 3d at 378. An overstatement along with evidence that the
       claimant knew the lien was overstated has been held sufficient to support a constructive fraud
       finding. See Fedco Electric Co. v. Stunkel, 77 Ill. App. 3d 48, 50-51 (1979).
¶ 16       In this case, construing the pleadings, depositions, admissions, and affidavits strictly
       against Truco and liberally in favor of MEP, as we must (see Outboard Marine, 154 Ill. 2d at
       131-32), we hold that the circuit court properly granted summary judgment in favor of Truco.
       The evidence established that, although MEP’s mechanic’s lien indicated that it (and no other
       entity) was owed over $250,000, its president (Morales) admitted in his sworn statement and in
       his sworn answers to Truco’s interrogatories that MEP only performed about $124,000 in
       work. The remaining amount, according to Morales, was owed to other contractors (such as
       V&V and Zivak) who had no contractual relationship (or assignment agreement) with MEP.
       Although MEP asserted that it “brought on” certain of these contractors, such as the plumbing
       contractor and the electrical contractor, MEP provided no evidence it had a contract with those
       other contractors that gave MEP the right to collect amounts due them on their behalf. In fact,
       counsel for MEP conceded—immediately after noting that MEP brought those contractors
       on—that “Truco was going to pay them directly.” In addition, two weeks before Truco filed its
       motion for partial summary judgment, it sent a letter to MEP advising it of the discrepancies,
       which Truco believed constituted constructive fraud. MEP, however, neither dismissed its
       mechanic’s lien count nor amended its mechanic’s lien; instead, it did nothing, leaving in place
       a mechanic’s lien that was more than 100% overstated. This court has previously held that
       substantially lower overstatements constituted constructive fraud. In Lohmann Golf Designs,
       Inc. v. Keisler, 260 Ill. App. 3d 886, 891-92 (1994), the court found that a lien overstatement
       on three properties of 38%, 82%, and 79% respectively, constituted constructive fraud. The
       Lohmann court relied upon two prior decisions. In one, “the lien claimant sought 26.5% more
       than that to which he was entitled.” Id. at 892. In the other, “the overcharge was approximately
       87.5%.” Id. On these facts, the court correctly granted summary judgment in favor of Truco.
¶ 17       Moreover, MEP’s reliance upon Roy Zenere Trucking & Excavating, Inc. v. Build Tech,
       Inc., 2016 IL App (3d) 140946, in support of this point is misplaced. There, the evidence
       adduced at trial indicated that the plaintiff subcontractor approached the general contractor
       “each time they had unplanned expenses for the project” and the general contractor “told
       plaintiffs to proceed with the work,” and “[b]ased on [the general contractor’s] representation
       that the change orders were approved, plaintiffs continued with the work, making the
       necessary extra expenditures.” Id. ¶ 46. Here, by contrast, there is nothing to indicate that the
       other contractors had a contractual relationship with MEP, so MEP cannot justify the
       overstatement of its lien by nearly double the amount it is owed. Therefore, Roy Zenere does
       not rescue this claim.


                                                   -5-
¶ 18        MEP also argues that the circuit court’s summary judgment ruling, if affirmed, would
       constitute a ruling in favor of V&V and Zivak in their related lawsuit. This argument fails for
       multiple reasons. First, as Truco points out, MEP failed to raise this argument in the court
       below; accordingly, it is forfeited. “It is well settled that issues not raised in the trial court are
       deemed waived and may not be raised for the first time on appeal.” Haudrich v. Howmedica,
       Inc., 169 Ill. 2d 525, 536 (1996). For this reason alone, we may reject MEP’s argument.
       Moreover, we are puzzled as to how a finding that there was no contract between MEP and
       V&V or Zivak conclusively establishes that (1) there was a contract between Truco and V&V,
       Zivak, or any other purported subcontractor or (2) the actual amount (if any) Truco owes any
       other party. MEP’s argument on this point is meritless.
¶ 19        Finally, we reject MEP’s complaint that the circuit court erroneously reached its
       conclusion because there was an insufficient amount of discovery at the time of summary
       judgment and oral discovery “most likely would” shed light on whether MEP was a general
       contractor or a construction manager. Illinois Supreme Court Rule 191(b) (eff. Jan. 4, 2013)
       provides in part as follows:
                “If the affidavit of either party contains a statement that any of the material facts which
                ought to appear in the affidavit are known only to persons whose affidavits affiant is
                unable to procure ***, naming the persons and showing why their affidavits cannot be
                procured and what affiant believes they would testify to if sworn, with his reasons for
                his belief, the court may make any order that may be just, either granting or refusing the
                motion, or granting a continuance to permit affidavits to be obtained, or for submitting
                interrogatories to or taking the depositions of any of the persons so named, or for
                producing documents in the possession of those persons or furnishing sworn copies
                thereof. The interrogatories and sworn answers ***, depositions ***, and sworn copies
                of documents *** shall be considered with the affidavits in passing upon the motion.”
¶ 20        In essence, “Rule 191(b) permits a party filing pleadings pertaining to summary judgment
       *** to submit an affidavit stating that material facts are known only to persons whose
       affidavits the affiant has been unable to secure by reason of hostility or otherwise.” Cordeck,
       382 Ill. App. 3d at 344. If a party fails to attach a Rule 191(b) affidavit to its pleading to address
       its need for further discovery, then it may not subsequently “seek reversal of the trial court’s
       order on the basis that it was denied important discovery.” Id.; see also Korzen, 2013 IL App
       (1st) 130380, ¶ 48 (“Parties who fail to file Rule 191(b) affidavits cannot complain that the
       ‘discovery process was insufficient or limited.’ ” (quoting Kane v. Motorola, Inc., 335 Ill. App.
       3d 214, 225 (2002))).
¶ 21        Here, MEP did not file a Rule 191(b) affidavit requesting more time or more discovery.
       Instead, it merely complains that the circuit court granted summary judgment even though
       depositions had not been completed. MEP, however, did not ask the court to put anything on
       hold pending completion of those depositions, nor does the record reveal that any depositions
       had been (or were likely to be) scheduled. We further note that counsel for MEP agreed with
       the court that it had “emptied its pockets” with respect to the evidence it had that would support
       its mechanic’s lien that included other contractors’ work. Since MEP failed to explain to the
       circuit court, via a Rule 191(b) affidavit, the material facts that MEP could not secure, it may
       not complain on appeal that the discovery process was limited and that we must reverse the
       circuit court’s decision. See Cordeck, 382 Ill. App. 3d at 344; Korzen, 2013 IL App (1st)
       130380, ¶ 48. MEP’s argument on this point is therefore unavailing.

                                                     -6-
¶ 22                                          CONCLUSION
¶ 23       The circuit court did not err in granting defendants’ motion for partial summary judgment
       on the mechanic’s lien foreclosure count. Accordingly, we affirm the court’s judgment.

¶ 24      Affirmed.




                                                 -7-
