                                                           NO. 5-09-0339
                        N O T IC E

 Decision filed 05/11/10. The text of
                                                              IN THE
 this dec ision m ay b e changed or

 corrected prior to the              filing of a
                                                   APPELLATE COURT OF ILLINOIS
 P e t i ti o n   for     Re hea ring   or   the

 disposition of the same.
                             FIFTH DISTRICT
_________________________________________________________________________
MOSTARDI-PLATT ASSOCIATES, INC.,        )    Appeal from the
d/b/a Mostardi Platt Environmental,     )    Circuit Court of
                                        )    Jefferson County.
      Plaintiff-Appellant,              )
                                        )
v.                                      )    No. 08-CH-26
                                        )
LEONARD CZERNIEJEWSKI, BARBARA )
CZERNIEJEWSKI, A. DALE ANDERSON & )
ASSOCIATES, INC., d/b/a ADA Resources, )
POWER HOLDINGS OF ILLINOIS, LLC, and)
Unknown Owners and Nonrecord Claimants, )    Honorable
                                        )    Robert W. Lewis,
      Defendants-Appellees.             )    Judge, presiding.
_________________________________________________________________________
                  JUSTICE WELCH delivered the opinion of the court:
                  The plaintiff, Mostardi-Platt Associates, Inc., doing business as Mostardi-Platt

Environmental, appeals from a judgment of the circuit court of Jefferson County that

dismissed with prejudice its first amended complaint to foreclose on a mechanic's lien it had
filed against the defendants, Leonard Czerniejewski, Barbara Czerniejewski, A. Dale

Anderson & Associates, Inc., doing business as ADA Resources, Power Holdings of Illinois,
LLC, and unknown owners and nonrecord claimants. The circuit court concluded that the

services rendered by the plaintiff were not the sort for which a lien could be filed and
enforced under the Mechanics Lien Act (the Act) (770 ILCS 60/0.01 et seq. (West 2006)).
For reasons that follow, we affirm.

                  The plaintiff's first amended complaint, filed August 5, 2008, alleges that Leonard
and Barbara Czerniejewski were the record owners of 157 acres of real property located in

Jefferson County. On or about March 21, 2007, the Czerniejewskis entered into an

                                                                1
agreement with A. Dale Anderson & Associates, Inc., doing business as ADA Resources
(ADAR), whereby ADAR was granted a 24-month option to purchase the real estate. The

agreement further provided that ADAR could assign its rights to any party it selected and
that ADAR or its agents could enter upon the property "to conduct such feasibility studies
as may be reasonably necessary to enable [p]urchaser to make an election with respect to its

exercise of the option."
       ADAR had represented that Power Holdings of Illinois, LLC (Power Holdings),
would be acquiring the property to construct a coal gasification plant thereon. The

complaint alleges that ADAR did assign its option to Power Holdings. Power Holdings then

entered into a contract with the plaintiff for the plaintiff to provide "air quality construction

permitting and dispersion modeling services." The plaintiff was to focus its permitting
application process and efforts on securing construction permit approval for the property.

The complaint alleges that the plaintiff completed this work and that all of its work was
"necessary for the improvement of the premises as a coal gasification facility."
       The complaint further alleges that the plaintiff recorded its mechanic's lien in the

office of the Jefferson County recorder and made demand upon Power Holdings to pay the
amount due as set forth in that lien claim but that Power Holdings has refused and failed to

pay the full amount due. The plaintiff prays for a judgment of foreclosure and that the
property be sold to satisfy the lien claim.
       On September 3, 2008, the defendants filed a motion to dismiss the first amended
complaint pursuant to section 2-619 of the Illinois Code of Civil Procedure (the Code) (735

ILCS 5/2-619 (West 2006)), arguing that the services provided by the plaintiff are not
lienable under the Act. The motion alleges that ADAR entered into the agreement with the

Czerniejewskis as an agent for Power Holdings, which intended to purchase the property and
construct a coal gasification facility thereon if the necessary permits could be obtained. The


                                               2
motion alleges that the option to purchase had not been exercised or assigned, and the
property still belonged to the Czerniejewskis.

       The motion alleges that the services to be provided by the plaintiff were
environmental consulting services to aid Power Holdings in determining if the land would
meet the requirements of the Illinois Environmental Protection Agency for a coal

gasification facility and that none of the services provided by the plaintiff benefited the land
directly or indirectly. According to the motion, the land was and still is used as a farm and
is in substantially the same condition as it was before the services provided by the plaintiff.

The defendants' motion argues that the plaintiff did not provide any design or construction

work and that, accordingly, the services provided by the plaintiff are not lienable under the

Act.
       The motion to dismiss is supported by the affidavit of Dale Anderson, stating that

ADAR had been hired by Power Holdings to act as its agent in securing option agreements
and that ADAR was acting in that capacity at the time it entered into the option agreement
with the Czerniejewskis. That agreement provided that ADAR or its agents could enter

upon the property only to conduct such feasibility studies as were reasonably necessary to
enable it to make an election with respect to the exercise of its purchase option. The

affidavit states that ADAR's option had not been assigned or exercised.
       The motion to dismiss is also supported by the affidavit of Stephen B. Shaw, chief
financial officer of Power Holdings, which states that Power Holdings intends to purchase
the property to construct a coal gasification facility thereon if the necessary permits are

obtained and the plant's feasibility is demonstrated. It further states that the services to be
provided by the plaintiff were environmental consulting services to aid Power Holdings in

determining if the land would meet the requirements of the Illinois Environmental Protection
Agency for a coal gasification facility. According to Shaw's affidavit, the plaintiff was not


                                               3
hired to, and did not, provide any services of design or construction work.
       The motion to dismiss is further supported by the affidavit of Leonard Czerniejewski,

which states that the land has been and still is used as a farm and that it is in substantially the
same condition as it was before the services provided by the plaintiff. Finally, the motion
is supported by the transcript of the hearing on the motion to dismiss the plaintiff's original

complaint. The circuit court granted that motion, stating on the record as follows:
               "[T]he court believes that what was granted was the right to Anderson for the
       purpose of doing a feasibility study, and based on the cases that [t]he [c]ourt has read,

       that is akin to a [F]irst [D]istrict case [(Ohrenstein v. Howell, 227 Ill. App. 215

       (1922))] where an architect has said if we buy this, what different kinds of buildings

       could be put on it, and he drafted up some rough ideas of several different types of
       things that could be done with the land.

               The [F]irst [D]istrict found that was not lienable under the Mechanic's Lien
       Act. Here, we have that they were commissioned to do a feasibility study, and [t]he
       [c]ourt believes on cases, as I understand the act, that that is not lienable under the

       Mechanic's Lien Act."
       On June 24, 2009, the circuit court of Jefferson County entered a final order

dismissing with prejudice the plaintiff's first amended complaint for the same reasons as
those stated for the dismissal of its original complaint. The circuit court made a factual
finding that the services performed by the plaintiff were similar to a feasibility study and that
as a matter of law they were not subject to lien under the Act. The plaintiff appeals.

       We review de novo the dismissal of a complaint pursuant to section 2-619 of the
Code. Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 352 (2008). Our review

requires that we take all well-pleaded facts in the amended complaint as true and draw all
inferences from those facts which are favorable to the plaintiff. Hester v. Gilster-Mary Lee


                                                4
Corp., 386 Ill. App. 3d 1104, 1107 (2008). We must interpret all the pleadings and
supporting documents in the light most favorable to the plaintiff. Porter, 227 Ill. 2d at 352.

Additionally, we consider whether there is a genuine issue of material fact that precludes a
dismissal or, absent a question of fact, whether the dismissal is proper as a matter of law.
Hester, 386 Ill. App. 3d at 1107.

       Section 1(a) of the Mechanics Lien Act provides in pertinent part as follows:
              "Any person who shall by any contract or contracts, express or implied, or
       partly expressed or implied, with the owner of a lot or tract of land, or with one

       whom the owner has authorized or knowingly permitted to contract, to improve the

       lot or tract of land or for the purpose of improving the tract of land, or to manage a

       structure under construction thereon[] is known under this Act as a contractor and has
       a lien upon the whole of such lot or tract of land *** for the amount due to him or her

       for the material, fixtures, apparatus, machinery, services[,] or labor ***." 770 ILCS
       60/1(a) (West 2006)
The object and purpose of the Act is to protect those who, in good faith, furnish material or

labor for the improvement of real property. Weather-Tite, Inc. v. University of St. Francis,
383 Ill. App. 3d 304, 307 (2008), aff'd, 233 Ill. 2d 385 (2009). In order to achieve this

purpose, the Act permits a lien upon property where a benefit has been received by the
owner and where the value or condition of the property has been increased or improved by
reason of the furnishing of the labor or materials. L.J. Keefe Co. v. Chicago & Northwestern
Transportation Co., 287 Ill. App. 3d 119, 121 (1997). The theory underlying the Act is that

the owner is benefited by the improvements and should pay for the benefit when that benefit
has been induced or encouraged by his act. L.J. Keefe Co., 287 Ill. App. 3d at 122. The Act

attempts to balance the rights and duties of owners, contractors, subcontractors, and material
providers. Weather-Tite, Inc., 383 Ill. App. 3d at 307. The burden of proving that each


                                              5
requisite of the Act has been satisfied is on the party seeking to enforce the lien. Watson v.
Watson, 218 Ill. App. 3d 397, 400 (1991).

       In Ohrenstein v. Howell, 227 Ill. App. 215 (1922), an architect was retained to
prepare plans for the construction of a building that the defendant, not yet the owner of the
lot, desired for the purpose of determining whether to purchase the lot and proceed with

construction.     The defendant subsequently purchased the lot and proceeded with
construction, using a different architect. The original architect attempted to enforce a
mechanic's lien against the lot for the value of his services. The court rejected the architect's

claim, holding that the contract was entered into before the defendant owned the land and

that the services were not rendered under a contract for the improvement of land.

Ohrenstein, 227 Ill. App. at 219. The court held that, in order to sustain his claim, the
architect must show that his services were rendered to the owner of the lot for the purpose

of improving the lot. Ohrenstein, 227 Ill. App. at 219. The court held as follows:
                "[T]he services rendered by [the architect] were not for the improvement of
       the lot[] but were merely for the purpose of furnishing defendant with information

       tending to show the possibilities of such an improvement. ***
                *** The alleged contract between the parties did not relate to any plans or

       specifications for the erection of a building and did not furnish any basis for
       determining the cost of the same, thereby showing that it was not the intention of the
       parties that they were to be used in the improvement of the lot, unless made the basis
       for the final plans and specifications of the proposed structure." Ohrenstein, 227 Ill.

       App. at 219.
Furthermore, the court found that the contract was not between the lien claimant and the

owner of the property or an agent of the owner. Accordingly, the architect's claim did not
come within the terms of the Act.


                                               6
       Relying on Ohrenstein, the circuit court in the case at bar found that the plaintiff did
not provide services for the improvement of the land under a contract with the landowner

or the owner's agent. The court found that the services of the plaintiff amounted to a
feasibility study and did not result in any improvement to the land or in any benefit to the
landowner. We agree.

       The contract between the plaintiff and Power Holdings was not one for the
improvement of the land, nor was it a contract between the plaintiff and the "owner" within
the meaning of the Act. The contract between the Czerniejewskis and ADAR allowed

ADAR or its agents or assigns to conduct only feasibility studies with respect to the land.

It did not authorize ADAR or its agents or assigns to make any improvements to the land.

Finally, the services provided by the plaintiff resulted in no improvement to the land or in
any benefit to the landowner. Instead, those services benefited only Power Holdings.

       In L.J. Keefe Co. v. Chicago & Northwestern Transportation Co., 287 Ill. App. 3d
119 (1997), the owner of the land underlying railway tracks granted a license to
Commonwealth Edison Company to install power lines on its land. The plaintiff was

retained to perform tunneling work to allow the installation of steel casing and pipe grouting
for Commonwealth Edison Company and attempted to enforce a lien against the owner of

the land underlying the railway tracks. The court held that no lien was enforceable against
the owner of the land when a subcontractor constructs or installs apparatus for a contractor's
sole benefit and the work does not improve the land or benefit the landowner. L.J. Keefe
Co., 287 Ill. App. 3d at 122. The court held that there was no contract to improve the land.

L.J. Keefe Co., 287 Ill. App. 3d at 122. Rather, Commonwealth Edison Company had been
granted a license to construct an apparatus for its own benefit, not for the benefit of the

landowner. L.J. Keefe Co., 287 Ill. App. 3d at 122. The subcontractor's work was
performed solely for the benefit of Commonwealth Edison Company and did not benefit the


                                              7
land or the landowner in any way. L.J. Keefe Co., 287 Ill. App. 3d at 122.
       Similarly, in the case at bar, the services provided by the plaintiff were for the sole

benefit of Power Holdings and did not benefit the land or the landowner in any way. There
was no contract between the plaintiff and the landowner for the improvement of the land.
       The plaintiff argues at length that the services it provided are lienable because they

are "necessary" for the construction of a coal gasification facility on the property. However,
the proper focus in determining the validity of a mechanic's lien is whether the work actually
enhanced the value of the land. Cleveland Wrecking Co. v. Central National Bank in

Chicago, 216 Ill. App. 3d 279, 285 (1991). It remains true that at the time the plaintiff

entered into the contract with Power Holdings and at the time it rendered the services for

which it now seeks to enforce its lien, Power Holdings was not the owner of the land and
the services rendered did not increase the value of the land or benefit the landowners in any

way. It also remains true that the services rendered by the plaintiff were not for the purpose
of improving the land but were for the purpose of determining whether Power Holdings
should exercise its option to purchase the land and thereafter build a coal gasification facility

thereon. These are not the type of services for which a lien may be filed and enforced under
the Act.

       For the foregoing reasons, the judgment of the circuit court dismissing with prejudice
the plaintiff's first amended complaint to enforce a mechanic's lien is hereby affirmed. Upon
the prayer of the appellees and pursuant to the powers granted us by Supreme Court Rule
366(a) (155 Ill. 2d R. 366(a)), we hereby remand this cause to the circuit court of Jefferson

County with directions that it remove the mechanic's lien that is the subject of this lawsuit.



       Affirmed; cause remanded with directions.




                                               8
GOLDENHERSH, P.J., and CHAPMAN, J., concur.




                              9
                                         NO. 5-09-0339
                                            IN THE

                              APPELLATE COURT OF ILLINOIS
                                  FIFTH DISTRICT
___________________________________________________________________________________
      MOSTARDI-PLATT ASSOCIATES, INC.,        )   Appeal from the
      d/b/a Mostardi Platt Environmental,     )   Circuit Court of
                                              )   Jefferson County.
           Plaintiff-Appellant,               )
                                              )
      v.                                      )   No. 08-CH-26
                                              )
      LEONARD CZERNIEJEWSKI, BARBARA )
      CZERNIEJEWSKI, A. DALE ANDERSON & )
      ASSOCIATES, INC., d/b/a ADA Resources, )
      POWER HOLDINGS OF ILLINOIS, LLC, and)
      Unknown Owners and Nonrecord Claimants, )   Honorable
                                              )   Robert W. Lewis,
           Defendants-Appellees.              )   Judge, presiding.
___________________________________________________________________________________
Opinion Filed:        May 11, 2010
___________________________________________________________________________________
Justices:          Honorable Thomas M. Welch, J.

                 Honorable Richard P. Goldenhersh, P.J., and
                 Honorable Melissa A. Chapman, J.,
                 Concur
___________________________________________________________________________________

Attorneys       Jeffrey G. Howard, Howard, Leggans, Piercy & Howard, LLP, 1008 Main Street,
for             P.O. Box 1810, Mt. Vernon, IL 62864; E. Paul Lanphier, Lanphier & Kowalkowski,
Appellant       Ltd., 568 Spring Road, Suite B, Elmhurst, IL 60126-3896
___________________________________________________________________________________
Attorneys        Terry Sharp, David J. Grindle, The Sharp Law Firm, P.C., 1115 Harrison, P.O. Box
for              906, Mt. Vernon, IL 62864
Appellees
___________________________________________________________________________________
