JUSTICE KOEHLER delivered the opinion of the court:
The plaintiff, Mirar Development, Inc., cross-appeals from
the judgment of the Will County circuit court in its favor on
its action to foreclose a mechanics lien, for breach of contract,
and quantum meruit but denying the plaintiff's attorney
fees. The question before this court is: Was the circuit court's
denial of attorney fees in error because: (1) attorney fees may
be granted under the Illinois Mechanics Lien Act (Act) (770 ILCS
60/17 (West 1996)), as amended; (2) attorney fees may be granted
under the construction contract entered into between the plaintiff
and the defendants; and (3) Mirar's release and satisfaction
of judgment did not render their appeal moot? Because we conclude
that the circuit court erred, we reverse.
The plaintiff, Mirar Development, Inc. (Mirar), and the defendants,
Peter Kroner, Jr., and Patricia Kroner (Kroners), entered into
a written contract for construction of a single-family residence
which specified that, in the event of litigation to enforce the
contract, the successful party is entitled to payment of its
attorney fees by the unsuccessful party. After construction was
completed, Mirar filed a two-count complaint against the Kroners
to foreclose its mechanics lien and to recover for breach of
contract. The Kroners counterclaimed for breach of contract,
breach of express warranty and breach of warranty of habitability.
Subsequently, Mirar amended its complaint to include a count
for quantum meruit. After trial, the circuit court entered
judgment in favor of Mirar for the balance due for labor and
materials furnished to the Kroners. The circuit court: (1) concluded
that Mirar had a lien claim on the property in the amount of
$48,000 plus 10% per annum beginning December 20, 1994,
the date on which the circuit court determined that Mirar had
substantially performed the contract; (2) directed the Will County
sheriff to sell the property if the Kroners failed to pay the
judgment amount within 10 days of the order; and (3) concluded
that the Illinois Mechanics Lien Act provided no basis for the
assessment of attorney fees. The Kroners appealed the judgment
order and Mirar cross-appealed on that portion of the circuit
court's order denying an award of attorney fees. On January 6,
1999, the Kroners tendered $48,000 plus interest. The circuit
court ordered Mirar to "furnish defendants a release and
satisfaction of the judgment for $48,000.00 plus 10% interest
on the mechanics lien claim. On February 22, 1999 this court
granted the Kroners' motion to dismiss their appeal and continued
the cross-appeal. On April 14, 1999, the Kroners filed a motion
to supplement the record on appeal with the January 6, 1999,
circuit court order. The motion was taken with the case.
A circuit court has broad discretionary powers in awarding
attorney fees and its decision will not be reversed on review
unless the court abused its discretion. In re Estate of Callahan,
144 Ill. 2d 32, 43-44, 578 N.E.2d 985, 989 (1991). However,
although the question sub judice is whether the circuit
court properly denied attorney fees, the fundamental issue we
must decide is whether the circuit court properly applied the
law when it denied attorney fees. Where facts are uncontroverted
and the issue is the circuit court's application of the law,
a question of law is presented, and we review de novo.
Bank One, Milwaukee, N.A. v. Loeber Motors, Inc., 293
Ill. App. 3d, 14, 20, 687 N.E.2d 1111, 1115-16 (1997).
Does Mirar's acceptance of the Kroners' payment of the judgment
prior to Mirar's filing of the appeal constitute waiver?
The Kroners filed a motion pursuant to Supreme Court Rule
329 (134 Ill. 2d R. 329), to supplement the brief with the circuit
court's order directing Mirar to file a release and satisfaction
of judgment. Mirar responds that order was not before the circuit
court at the time the judgment order was entered and, therefore,
this court should deny the motion. Under Supreme Court Rule 329,
a party may "supply omissions, correct errors, and settle
any controversy as to whether the record on appeal actually reflects
what occurred at the trial level." Johnson v. Matviuw,
176 Ill. App. 3d 907, 912, 531 N.E.2d 970, 973 (1988). Where
there may be "events occurring after the entry of a judgment
which might render issues on appeal moot *** those events or
occurrences need be presented in some appropriate form such as
a supplement to the record." Bailey v. Meador, 91
Ill. App. 3d 143, 147, 414 N.E.2d 279, 283 (1980). Because the
Kroners argue that this order makes the Mirar appeal moot, we
will grant the motion to supplement the record.
Generally, in civil cases when a judgment has been voluntarily
paid or its benefits accepted, appeal is waived. County of
Cook v. Malysa, 39 Ill. 2d 376, 379-80, 235 N.E.2d 598, 600-01
(1968). However, "[i]t would be unfair *** to compel the
entry of a satisfaction and then, as a result of the compelled
satisfaction, deny the right to appeal." In re Marriage
of Pitulla, 202 Ill. App. 3d 103, 110, 559 N.E.2d 819, 826
(1990). See also Herron v. Anderson, 254 Ill. App. 3d
365, 371-72, 626 N.E.2d 1035, 1040 (1993); Meyer v. First
American Title Insurance Agency of Mohave, Inc., 285 Ill.
App. 3d 330, 336-37, 674 N.E.2d 496, 499 (1996).
In the instant case, the Kroners claim Mirar accepted their
payment of the judgment and, therefore, Mirar waived its appeal.
However, as evidenced by the circuit court's order directing
Mirar to furnish the Kroners a release and satisfaction of the
judgment, the satisfaction was compelled and, therefore, does
not deprive Mirar of its right to appeal.
Award of Fees Under the Mechanics Lien Act
May the circuit court award Mirar attorney fees under the
amended Illinois Mechanics Lien Act? Attorney fees are recoverable
when specifically authorized by statute or contract. Midwest
Concrete Products Co. v. La Salle National Bank, 94 Ill.
App. 3d 394, 398, 418 N.E.2d 988, 991 (1981), citing Qazi
v. Ismail, 50 Ill. App. 3d 271, 273, 364 N.E.2d 595, 596
(1977). Where a law has been amended, the law as it exists at
the time of the appeal should be applied unless doing so would
interfere with a vested right. First of America Trust Co.
v. Armstead, 171 Ill. 2d 282, 289, 664 N.E.2d 36, 40-41 (1996).
However, the primary rule of statutory construction is to give
effect to the legislative intent behind it, and in so doing,
the language of the statute must be given its plain and ordinary
meaning. Sostak v. Sostak, 113 Ill. App. 3d 954, 960,
447 N.E.2d 1345, 1349-50 (1983).
At the time the parties signed the contract, the Act read
in pertinent part:
"The costs of proceedings as between all parties to the
suit shall be taxed equitably against the losing party, and where
taxed against more than one party, shall be so taxed against
all in favor of the proper party but equitably as between themselves;
and the costs, as between creditors aforesaid in contests relative
to each other's claims, shall be subject to the order of the
court, and the same rule shall prevail in respect to costs growing
out of the proceedings against and between incumbrances."
770 ILCS 60/17 (West 1994)) (prior to amendment).
The Act, as amended, further provides:
"(b) If the court specifically finds that the owner who
contracted to have the improvements made failed to pay any lien
claimant the full contract price, including extras, without just
cause or right, the court may tax that owner *** the reasonable
attorney's fees of the lien claimant who had perfected and proven
his or her claim.
(e) This amendatory Act of 1995 applies to any mechanics lien
claim that is perfected on or after the effective date of this
amendatory Act of 1995." 770 ILCS 60/17 (West 1996) (as
amended by Pub. Act 89-253, eff. August 8, 1995).
Mirar apparently argues that its lien claim was perfected
prior to the effective date of the Act and, therefore, the amended
Act applies in this case because the lien was perfected as of
the effective date. However, its interpretation of the amendment
is not consistent with the amendment's plain language. Such an
interpretation is correct only if the amendment read, "before,
on, or after the effective date of this amendatory Act of 1995."
Applying the Act, as amended, the way it now exists at the time
of appeal, the Mirar claim is excluded because it was perfected
prior to the amendment's effective date. Accordingly, we conclude
that the circuit court did not err when it concluded that the
Act does not provide a basis for awarding attorney fees.
Attorney Fees Under the Contract
Should the circuit court have granted Mirar attorney fees
pursuant to the terms of the contract? "Mechanics' liens
exist only by virtue of the statute creating them [citation]
and the liens act becomes a term of every construction contract
between the owner and the contractor for construction of a building."
J&K Cement Construction, Inc. v. Montalbano Builders,
Inc., 119 Ill. App. 3d 663, 673, 456 N.E.2d 889, 896 (1983).
"A mechanics' lien must be based upon a valid contract,
and in its absence the lien is unenforceable." Pascal
P. Paddock, Inc. v. Glennon, 32 Ill. 2d 51, 53, 203 N.E.2d
421, 422 (1964).
"The general rule is that an unsuccessful party *** is
not responsible for the payment of the other party's attorney
fees. [citations.] However, provisions in contracts for awards
of attorney fees are an exception to this rule." Myers
v. Popp Enterprises, Inc., 216 Ill. App. 3d 830, 838, 576
N.E.2d 452 457 (1991). Contract provisions regarding attorney
fees are to be strictly construed and enforced at the discretion
of the circuit court. Ferrara v. Collins, 119 Ill. App.
3d 819, 825, 457 N.E.2d 109, 113 (1983). In construing the contract,
"the court must determine the intention of the parties with
respect to the payment of attorney fees. [Citation.]" Jackson
v. Hammer, 274 Ill. App. 3d 59, 70, 653 N.E.2d 809, 818 (1995).
Further, the party requesting attorney fees bears the burden
of presenting sufficient evidence from which the circuit court
can make a decision regarding the reasonableness of the fees.
Tomlinson v. Dartmoor Construction Corp., 268 Ill. App.
3d 677, 688, 645 N.E.2d 376, 384 (1994).
The construction contract entered into between Mirar and the
Kroners expressly states:
"[I]n the event either party hereto is required to file
a law suit to enforce the terms of this Agreement, the successful
party in said suit shall be entitled to recover his reasonable
attorney's fees and costs from the unsuccessful party."
We have identified no Illinois case supporting the Kroners'
position that a contract cannot provide the basis for awarding
attorney fees under the Mechanics Lien Act. To the contrary,
a mechanics' lien is the product of an express or implied contract
and, as noted above, the Act becomes a part of the contract.
Indeed, in Midwest Concrete Products Co., 94 Ill. App.
3d at 398, 418 N.E.2d at 991, the second district granted Midwest
attorney fees on its suit to foreclose its subcontractor's lien
based on the terms of the subcontract which included an agreement
to pay attorney fees in connection with a default on the subcontract.
We agree with the circuit court that the Act does not provide
for attorney fees in this instance. However, the contract does
so provide and the Act does not prohibit such a provision. We
see no reason not to consider, from the evidence presented, the
extent to which Mirar may be entitled to attorney fees. In Tomlinson,
the parties entered into an agreement that, similar to the
agreement in the case at bar, provided that " '[i]n the
event that a dispute arises hereunder, the prevailing party shall
be entitled to receive from the other party any and all costs
and expenses, including reasonable attorneys' fees, incurred
by the prevailing party in connection with such dispute.' "
(Emphasis omitted.) Tomlinson, 268 Ill. App. 3d at 687,
645 N.E.2d at 383. In an action brought for breach of warranties,
the Tomlinson court concluded that the prevailing party
was entitled to an award of attorney fees under this provision.
Tomlinson, 268 Ill. App. 3d at 687, 645 N.E.2d at 383.
Additionally, in Wilmette Partners v. Hamel, 230 Ill.
App. 3d 248, 265, 594 N.E.2d 1177, 1190 (1992), the first district
concluded that the appeal was part of the contract enforcement
effort and, where the contract provided for reimbursement of
attorney fees, the defendant could be reimbursed attorney fees
incurred on appeal.
Pursuant to the circuit court's order, the Kroners and Mirar
each presented fee affidavits. Subsequently, the circuit court
concluded that the fees had been proven up by affidavit as was
agreed by the parties and then determined that attorney fees
could not be provided under the Act. We discern no conflict between
the Act and the contract's fee-shifting provision; the provision
simply mirrors the amended Act. In the case before us, the circuit
court simply did not consider the fee-shifting provision and
the intent of the parties reflected therein. Accordingly, we
conclude that the circuit court erred when it denied attorney
fees without considering the contract's fee-shifting provision.
In sum, we conclude that the compelled release and satisfaction
does not render the appeal moot and that the circuit court erred
when it denied attorney fees solely based upon the Act: although
the amended Act does not apply to lien claims perfected before
its effective date, the circuit court must give effect to the
intent of the construction contract. Accordingly, we reverse
and remand to the circuit court to determine whether and to what
extent Mirar may be entitled to reasonable attorney fees.
Reversed and remanded.
LYTTON and SLATER, JJ., concur.