JUSTICE GROMETER delivered the opinion of the court:
The circuit court of Lake County entered an order releasing
certain funds to Glenbrook Excavating and Concrete, Inc. (Glenbrook).
These funds were released to satisfy a lien asserted under section
23 of the Mechanics Lien Act (Act) (770 ILCS 60/23 (West 1998))
arising out of a construction project for Lake County on which
Glenbrook was a subcontractor. Westcon/Dillingham Microtunneling,
a joint venture of Westcon Microtunneling and the Dillingham
Construction Company, (collectively, Westcon) was a second subcontractor
on the project and had previously asserted its similar lien and
now appeals the circuit court's order. We affirm.
Walsh Construction Company of Illinois (Walsh) contracted
with Lake County to install a sewer system. Westcon, the plaintiff-appellant,
then entered into a contract with Walsh whereby Westcon was to
install approximately 9,000 linear feet of sewer line. Both contracts
provided that a party would be entitled to additional compensation
if, during the course of installation, it encountered subsurface
conditions of an unusual nature. In its complaint, Westcon alleged
that it encountered excessive boulders while installing the line,
causing Westcon to perform additional work. Westcon further alleged
that it provided notice of these conditions, as required under
the contract, and the county responded that Westcon's claims
for additional payments would be reviewed and compensated on
a case-by-case basis. Westcon sent notice of its claim for a
mechanics lien to Lake County on August 18, 1998. The notice
stated that Westcon was entitled to a $266,484.85 "payment
for retention," and $1,048,581.61 for additional work performed
due to differing site conditions.
Westcon filed two actions in November 1998, which were subsequently
consolidated. The first action was a two-count complaint naming
Walsh as defendant. In count I of the complaint, Westcon sought
to foreclose a mechanics lien it had asserted against funds held
by Lake County. Count II sought recovery on a contract theory
from Walsh. The second was an action on a contractor's bond,
naming Walsh and its surety as defendants. Walsh filed a third-party
complaint against Lake County, seeking indemnity in the event
Walsh was held liable to Westcon.
On May 13, 1999, Westcon filed a motion seeking to compel
Lake County to release $266,484.85 of the amount it was claiming.
The motion was granted, with all parties in agreement. Glenbrook
was not a party at this time. The court's order provided that
Westcon's mechanics lien would be reduced by this amount. In
its prayer for relief, Westcon explicitly sought to reserve its
right to seek compensation for the additional work performed
on the sewer project.
On February 14, 2000, Glenbrook filed a petition to intervene.
Like Westcon, Glenbrook was a subcontractor on the sewer construction
project. Glenbrook alleged that it was owed $427,323.31 for work
on the sewer system. On the same day, Glenbrook filed a motion
to release this amount. Glenbrook had previously notified Lake
County of its claim for a mechanics lien on February 8, 2000.
On March 27, 2000, Lake County filed a motion for leave to
deposit the remainder of the funds, which it had retained in
response to Westcon's and Glenbrook's liens, with the clerk of
the court. The county stated that it had retained $769,395.97,
which was the amount that remained due on the original contract.
Westcon opposed this motion, arguing that section 23 of the Act
required the county to deposit an amount sufficient to satisfy
all liens. In light of Westcon's claim for compensation for additional
work performed, the amount the county sought to deposit would
have been insufficient.
On April 18, 2000, the trial court granted Lake County's motion
to deposit with the clerk of the court the balance of the funds
it had retained. This order has not been appealed. The court
noted that allowing this motion would not prejudice Westcon.
Regarding Glenbrook's motion to release funds, the court indicated
that it considered Westcon's earlier receipt of funds pursuant
to its own motion to release as a waiver of any objection to
Glenbrook's motion. The trial court allowed Westcon 30 days to
return these funds to the court clerk so that they could be proportionally
distributed. Westcon declined to do so.
On May 19, 2000, the trial court granted Glenbrook's motion
to release funds. The court termed this order a "turnover
order." In ruling, the court noted that Westcon had received
all amounts due to it under the original contract. The court
noted that the additional amount Westcon was claiming as a result
of unusual subsurface conditions was, in actuality, a claim for
an amount outside the original contract. Thus, this claim was
for funds other than those previously withheld by the county.
As such, Westcon's claim involved a new and separate fund that
the county would have to furnish if Westcon were to succeed on
its contract claim. The court stayed the enforcement of this
order until June 1, 2000, on Westcon's motion.
As a preliminary matter, we must address Glenbrook's contention
that this court lacks jurisdiction to decide this appeal. Glenbrook
asserts that Westcon's notice of appeal was premature. The notice
was filed on May 31, 2000. On May 19, 2000, the court entered
its order releasing funds to Glenbrook; however, the court stayed
the enforcement of this order until June 1, 2000. According to
Glenbrook, the trial court's judgment did not become final until
the date it became effective. Since Westcon filed its notice
before this date, Glenbrook argues its notice was premature.
Supreme Court Rule 303(a) provides that a notice of appeal
must be filed "within 30 days after the entry of the final
judgment appealed from." 155 Ill. 2d R. 303. However, where
a timely, posttrial motion directed against the judgment has
been filed, the notice must be filed within 30 days of the order
disposing of that motion. 155 Ill. 2d R. 303. Compliance with
this rule is necessary to vest the appellate court with jurisdiction.
Berg v. Allied Security, Inc., 193 Ill. 2d 186, 189 (2000). For
the purpose of this rule, a posttrial motion directed against
the judgment is one that requests one of the types of relief
set forth in section 2--1203 of the Code of Civil Procedure (735
ILCS 5/2--1203 (West 1998)). Marsh v. Evangelical Covenant Church,
138 Ill. 2d 458, 461 (1990). Section 2--1203 allows parties to
file motions for rehearing, retrial, modification of the judgment,
or vacation of the judgment. 735 ILCS 5/2--1203 (West 1998).
Westcon's motion to stay the enforcement of the trial court's
"turnover order" sought none of the types of relief
set forth in section 2--1203. Thus, it was not a posttrial motion
within the meaning of Rule 303. See Giammanco v. Giammanco, 253
Ill. App. 3d 750, 755 (1993). An order staying the enforcement
of a judgment is collateral to the judgment and does not affect
or alter the issues on appeal. See In re Estate of Goodlett,
225 Ill. App. 3d 581, 587 (1992). In other words, this motion,
and the resulting order, were not directed against the judgment.
Thus, the fact that the notice of appeal was filed while the
enforcement of the judgment was stayed does not deprive this
court of jurisdiction. Westcon properly filed its notice of appeal
within 30 days of the trial court's "turnover order."
Turning to the merits of this appeal, we must first determine
whether the trial court had the authority to order funds to be
released to Glenbrook. Westcon contends that it did not. According
to Westcon, the plain language of the statute governing liens
against public funds requires that funds sufficient to satisfy
a lien be withheld until "final adjudication of the suit
is had." 770 ILCS 60/23(b) (West 1998). We disagree.
In construing a statute, the primary goal is to give effect
to the intent of the legislature. Country Mutual Insurance Co.
v. Universal Underwriters Insurance Co., 316 Ill. App. 3d 161,
164 (2000). The plain language of the statute is the best indication
of the legislature's intent. Premier Property Management, Inc.
v. Chavez, 191 Ill. 2d 101, 121 (2000). A statute should be construed
so that none of its language is superfluous or meaningless. TTX
Co. v. Whitley, 313 Ill. App. 3d 536, 543 (2000). Where a statute
contains both general and specific provisions, the specific provision
controls to the extent that it is applicable. People v. Villarreal,
152 Ill. 2d 368, 379 (1992). Statutory construction is a question
of law. Northwest Airlines, Inc. v. Department of Revenue, 295
Ill. App. 3d 889, 892 (1998).
Section 23(b) of the Act allows a subcontractor working on
a public improvement project to assert a lien against payments
due or becoming due the general contractor. R.W. Dunteman Co.
v. C/G Enterprises, Inc., 181 Ill. 2d 153, 164-65 (1998). Once
a lien is asserted, the public body must withhold sufficient
funds to cover the amount of the lien. Consolidated Construction
Co. v. Malan Construction Corp., 42 Ill. App. 2d 272, 276 (1963).
If the subcontractor claiming a lien files a complaint for an
accounting within 90 days, "the amount claimed shall be
withheld until the final adjudication of the suit is had."
770 ILCS 60/23(b) (West 1998). The statute goes on to state:
"Provided, that the clerk or secretary, as the case may
be, to whom a copy of the complaint is delivered as herein provided
may pay over to the clerk of the court in which such suit is
pending a sum sufficient to pay the amount claimed to abide the
result of such suit and be distributed according to the judgment
rendered or other court order." 770 ILCS 60/23(b) (West
Thus, the public body has the option of retaining the funds
itself or depositing them with the clerk of the court. In the
present case, Lake County chose the latter option.
Once the retained funds are in the possession of the clerk
of the court, the plain language of the statute states that they
may be distributed by an order of the court. That the statute
refers to both "judgment[s]" and "other court
order[s]" indicates that the order may be something less
than a final judgment. Any other interpretation would render
"other court order" mere surplusage, which would violate
a basic principle of statutory construction. See TTX Co., 313
Ill. App. 3d at 543. Furthermore, because specific provisions
take precedence over general provisions (see Villarreal, 152
Ill. 2d at 379), the portion of the statute stating funds may
be distributed by "other court order" controls where,
as here, the funds are in the possession of the court clerk.
Westcon's reliance on the portion of the statute stating funds
must be held until final adjudication is misplaced. This language
appears in the portion of the statute that applies when the public
body is holding the funds. It does not occur in the portion of
the statute addressing what shall take place when the funds are
deposited by the public body and held by the clerk of court.
Without explanation, Westcon asserts that the portion of the
statute allowing disbursement by "other court order"
(770 ILCS 60/23(b) (West 1998)) must be read in context and that
such a reading clearly demonstrates this language applies only
where there is but one lienholder. We are unable to discern Westcon's
meaning. We note that the language Westcon relies on to support
its argument that funds must be withheld until final judgment
is part of the same passage. Assuming Westcon is correct, then
the "final adjudication" language (770 ILCS 60/23(b)
(West 1998)) it relies on is also inapplicable when more than
one lienholder is involved. Because the plain language of section
23(b) states that funds deposited with a court clerk may be released
by "other court order," we hold that the trial court
had the authority to release funds held by the clerk with an
order issued prior to final judgment.
Having concluded that the trial court had the authority to
release the funds in question, the question remains as to whether
the court exercised this authority in an appropriate manner.
Although we would affirm on a less deferential standard of review,
we conclude that the abuse-of-discretion standard is proper here.
We emphasize that a trial court's discretion is limited to fashioning
an appropriate remedy. The question of whether a lien exists
under section 23 is not a matter within the discretion of a trial
court. See Prior v. First National Bank & Trust Co., 231
Ill. App. 3d 331, 333 (1992). In this case, the court's order
was similar to a mandatory injunction, ordering the clerk to
release funds to Glenbrook. The propriety of an injunction is
reviewed under the abuse-of-discretion standard. People v. Studio
20, Inc. 314 Ill. App. 3d 1000, 1004 (2000). Furthermore, as
will be seen below, the trial court possessed the discretion
to order an appropriate remedy.
While numerous cases have discussed the procedures a plaintiff
must follow to obtain relief under section 23 of the Act, few
have addressed the remedies available to such plaintiffs. The
purpose of the Act is to protect those who, in good faith, have
furnished material and labor for the construction of buildings
or public improvements. Premier Electrical Construction Co. v.
American National Bank, 276 Ill. App. 3d 816, 821 (1995). Section
39 of the Act states that "[t]his act is and shall be liberally
construed as a remedial act." 770 ILCS 60/39 (West 1998).
Nevertheless, because the rights created are statutory and in
derogation of common law, the technical and procedural requirements
necessary for a party to invoke the protection of the Act must
be strictly construed. Prior, 231 Ill. App. 3d at 333. But see
Walker Process Equipment v. Advance Mechanical Systems, Inc.,
282 Ill App. 3d 452, 455 (1996) (noting that courts have been
willing to consider substantial-compliance arguments despite
strict construction of the procedural provisions of the Act where
a technical construction would undermine its purposes). Once
a plaintiff has complied with the procedural requirements upon
which a right to a lien is based, the Act should be liberally
construed in order to accomplish its remedial purpose. Delaney
Electric Co. v. Schiessle, 235 Ill. App. 3d 258, 265 (1992).
Accordingly, once a lien exists, a court has discretion in shaping
a remedy for claims brought under section 23. See Schick-Johnson
Co. v. Malan Construction Corp., 49 Ill. App. 2d 277, 285 (1964).
It is well established that the creation of a mechanics lien
is entirely governed by the Act, and the rules of equity jurisprudence
are irrelevant at this stage. Wingler v. Niblack, 58 Ill. App.
3d 287, 289 (1978); Wise v. Jerome, 5 Ill. App. 2d 214, 221 (1955);
see also Hill Behan Lumber Co. v. Marchese, 1 Ill. App. 3d 789,
792 (1971) ("We are unable to find any authority which would
grant an equitable lien in a situation where it would have been
appropriate to impose a mechanic's lien had there been compliance
with the statute"); Gunther v. O'Brien Brothers Construction
Co., 369 Ill. 362, 370 (1938) ("Mechanics' liens are statutory,
and all that may be considered in determining whether they exist
or not, is what the statute creating them contains"). However,
equitable principles are relevant in crafting an appropriate
remedy. Section 23 provides that, after a subcontractor gives
notice of a lien, it must institute an actionfor an accounting
against the general contractor within 90 days. 770 ILCS 60/23(b)
(West 1998). An accounting is an equitable action. Tarin v. Pellonari,
253 Ill. App. 3d 542, 555 (1993). Thus, the plain language of
the statute leads a court into the realm of equity once the statutory
procedures for creating a lien have been observed.
In fashioning a remedy, courts have broad discretion to grant
the relief that equity requires. Tully v. Edgar, 286 Ill. App.
3d 838, 847 (1997). Relevant considerations include both what
is fair and what is workable. In re Marriage of Rogers, 283 Ill.
App. 3d 719, 723 (1996). Any prejudice inuring to a party must
be taken into account. Rosewood Corp. v. Transamerica Insurance
Co., 8 Ill. App. 3d 592, 597 (1972). Additionally, courts may
consider the relative benefits and hardships to the parties in
crafting an appropriate remedy. Glenn v. City of Chicago, 256
Ill. App. 3d 825, 841 (1993).
In the present case, the trial court grounded its decision
to release funds to Glenbrook on several bases. The court observed
that Westcon had received all that it was due under the original
contract and that the amount it was now claiming was for additional
work performed. In fact, Westcon received the last of the money
it was due on the original contract through a motion to release
funds, like the one brought by Glenbrook that is at issue here.
Glenbrook, conversely, had not been paid for all of its work
under the original contract and was not claiming compensation
for additional work. The trial court noted that Westcon had an
alternate avenue for recovery through the contract action it
had instituted against Walsh and that any amount coming due as
a result of that action would be subject to a lien. Furthermore,
Westcon's recovery on the contract would not be limited to the
funds held by the court clerk. Alternatively, if Westcon does
not prevail in its contract action, preclusion principles would
prevent it from claiming any of these funds. Thus, Westcon suffered
no prejudice because of the court's order. A contrary order would
have worked a hardship against Glenbrook in denying it access
to its compensation while being of no value to Westcon.
Westcon points out that Glenbrook had alternate means to seek
recovery as well. However, Glenbrook's claim to the released
funds was undisputed. Westcon's claim for additional compensation
was already the subject of litigation. While there was no need
for Glenbrook to engage in further litigation, Westcon needed
to bring a contract action in order to prove its entitlement
to further compensation. Although both parties could have sought
recovery through alternate means, Westcon was in a position where
it had to do so. Thus, the fact that Glenbrook could have instituted
other actions has little bearing on this case. There is no reason
to require Glenbrook to wait to receive what it is due while
Westcon litigates its claim for additional compensation.
Westcon argues that the trial court ignored the plain language
of section 23 and instead relied on its "own notions of
equity" in releasing funds to Glenbrook. Westcon cites two
case in support of its argument; however, both are distinguishable.
The first involved an interpretation of a portion of the Illinois
Insurance Code (215 ILCS 5/187 et seq. (West 1998)). In re Liquidation
of Coronet Insurance Co., 298 Ill. App. 3d 411 (1998). In that
case, the trial court's rulings were found to be contrary to
the underlying purpose of the Insurance Code. In re Liquidation
of Coronet Insurance Co., 298 Ill. App. 3d at 418. In the present
case, the trial court's order was consistent with the purpose
of the Act, which is to protect those who, in good faith, have
furnished material and labor for the construction of public buildings
or improvements. Premier Electrical Construction Co., 276 Ill.
App. 3d at 821. The trial court's order furthered this purpose
regarding Glenbrook while thwarting it in no way regarding Westcon.
Thus, the trial court was not relying on its own notions of equity.
Rather, it was exercising its discretion in a manner consistent
with the purposes of the Act.
The second case involved the interpretation of the provisions
of a pension plan. Siss v. United States Steel Corp., 34 Ill.
App. 3d 62 (1975). In that case, the appellate court noted that
a court has no power to stretch the meaning of words to make
the plan conform with its own notion of equity. Siss, 34 Ill.
App. 3d at 66. The trial court in the present case did not engage
in any such exercise. In fact, in selecting a remedy, the trial
court was not interpreting the statute; it was exercising its
discretion. This exercise of discretion was consistent with the
purpose of the Act and the legislature's dictate that these liens
be resolved in an accounting action.
Finally, we find no merit in Westcon's argument that the trial
court's order constituted a preference between lienholders in
violation of section 23(d) (770 ILCS 60/23(d) (West 1998)). The
statute provides that "all shall be paid pro rata in proportion
to the amount due under their respective contracts." 770
ILCS 60/23(d) (West 1998). Based on the facts of this case, this
provision does not apply. If Westcon prevails in its contract
action, additional funds will be available to satisfy that claim.
If unsuccessful, Westcon has already received all that it was
due. Given the facts of this case as presented to us, neither
Westcon nor Glenbrook will be limited to a pro rata recovery
of the funds held by the clerk. Furthermore, we note that section
23(d) concerns the liability of public officials who fail to
withhold funds after being notified of a claimant's lien. Thus,
the language mandating pro rata recovery appears in a portion
of section 23 not at issue in the present case.
In light of our disposition, we need not address whether Westcon's
refusal to redeposit monies it received from its earlier motion
to release funds constituted a waiver of any objection to Glenbrook's
subsequent motion. We do not understand what Westcon was seeking
to accomplish in opposing Glenbrook's motion to release funds
and pursuing this appeal. Whether Westcon succeeds or fails in
its contract action, adequate funds will be available to satisfy
any recovery. In either event, Glenbrook would eventually receive
the full amount it claimed. This court can perceive no reason
to make Glenbrook wait to receive the amount it was due.
Accordingly, the order of the circuit court of Lake County
releasing funds to Glenbrook is affirmed.
HUTCHINSON, P.J., concurs.
JUSTICE McLAREN, specially concurring:
I specially concur because I wish to emphasize a point that
the majority decision does not address but that was raised below,
ruled upon by the court below, and simplistically disposed of
by the cause and this appeal.
The appellant received a payment based upon its lien claim
but strenuously argues that another lien claimant is not entitled
to such a distribution. The appellant's brief states that the
distribution was invalid because the pertinent statute does not
authorize such a distribution. The trial court considered the
argument, recognized the patent inconsistency, and suggested
that the appellant should return the distributed funds. The appellant
refused and continues to claim that not only is the refusal not
a waiver but that the position is not inconsistent. The argument
of the appellant seems to be that there was an agreement between
the parties to distribute the funds to it prior to the appearance
of the appellee in the proceedings. The appellant does not cite
any authority that allows a distribution, in violation of the
controlling statute, merely because the parties agreed to "disregard"
the statute. The trial court called this patent inconsistency
a waiver. I submit it is called judicial estoppel. Judicial estoppel
provides that, when a party assumes a particular position in
a legal proceeding, that party is estopped from asserting a contrary
position in a subsequent proceeding. The doctrine applies only
when the following elements are established: (1) two positions
have been taken by the same party; (2) thepositions were taken
in separate or quasi-judicial administrative proceedings; (3)
the party intended that the trier of fact accept the truth of
the facts alleged in support of the positions; (4) the party
was successful in asserting the first position and received some
benefit in the first proceeding; and (5) the two positions were
inconsistent. People v. Coffin, 305 Ill. App. 3d 595, 598 (1999).
All of the elements are present in this case. Regarding the second
element, the requirement that the positions be taken in different
proceedings is to provide finality to the position taken in the
first proceeding. Appellant's rationalization regarding its different
positions is that the parties agreed to the distribution. Without
the appellee's participation, this argument effectively bifurcates
this proceeding into two proceedings, namely, the "pre"
and "post" appearances by the appellee. This attempt
to hide the patent inconsistency, if the proceeding was considered
one proceeding, is not ameliorated by attempting to claim that
there are essentially two proceedings: one with an agreement
and one without an agreement.
Although I agree with the majority opinion, I feel that the
patent deficiency of the appellant's inconsistent position is