Opinion filed January 27, 2015 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2015

CHRISTOPHER B. BURKE ENGINEERING, ) Appeal from the Circuit Court LTD., ) of the 10th Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellant, ) ) v. ) ) HERITAGE BANK OF CENTRAL ILLINOIS, ) Appeal No. 3-14-0064 ) Circuit No. 09-CH-589 Defendant-Appellant ) ) (Glen W. Harkins, Carol A. Harkins, Donald ) Allison, Ann Allison and Unknown Owners ) and Nonrecord Claimants, ) The Honorable ) Michael Brandt, Defendants). ) Judge, Presiding. _____________________________________________________________________________

JUSTICE CARTER delivered the judgment of the court, with opinion. Justice Wright concurred in the judgment and opinion. Justice Lytton dissented, with opinion. _____________________________________________________________________________

OPINION

¶1 The plaintiff, Christopher B. Burke Engineering, Ltd., filed a civil complaint that sought

to foreclose on a mechanic's lien against multiple defendants, including Heritage Bank of Central

Illinois. After the circuit court invalidated the lien and granted summary judgment in favor of

Heritage Bank, the plaintiff appealed. On appeal, the plaintiff argues that the circuit court erred when it granted summary judgment in favor of Heritage Bank in that the court improperly found

that: (1) no contractual relationship existed between the original owner of the property and the

prospective purchaser; and (2) the plaintiff's work did not constitute an improvement to the

property. We affirm.

¶2 FACTS

¶3 This is the second time this case has come before this court on appeal. The facts

occurring prior to the first appeal have been set forth in Christopher B. Burke Engineering, Ltd.

v. Harkins,

. We will recount the facts leading up to and including

that appeal only to the extent that they are essential to this appeal.

¶4 On October 29, 2009, the plaintiff filed a civil complaint against the defendants in which

it sought to foreclose on a mechanic's lien. The plaintiff alleged that it had performed

engineering work between April 2008 and March 2009 on certain real property for defendants

Glen W. Harkins and Carol A. Harkins; in connection with that work, the plaintiff filed a

mechanic's lien on May 20, 2009.

¶5 The record in this case indicates that the Harkins defendants and the plaintiff entered into

a contract in mid-2008 to perform engineering work on a tract of real property not owned by the

Harkins defendants. The Harkins defendants intended to purchase the property and subdivide it

for residential development. At the time, the property consisted of unplatted land and two 1

platted lots. After the property was replatted, the final plat for "Crest Ridge Estates" subdivision

was recorded on September 19, 2008.

1 One of these lots was replatted as lot 37 of the Crest Ridge Estates subdivision and was sold to the Allison

defendants. The plaintiff performed engineering work on that lot in conjunction with the Allisons constructing a

house on the lot.

2 ¶6 Initially, a motion to dismiss filed by the Allison defendants was granted on the basis that

the mechanic's lien contained an inadequate legal description. The circuit court also granted a

motion for summary judgment filed by Heritage Bank. On appeal, this court held that a question

of fact existed with regard to whether the description was inadequate; thus, this court reversed

the circuit court's judgment and remanded the case for further proceedings. Burke Engineering,

, ¶¶ 12-13.

¶7 After the remand, the plaintiff settled separately with the Allisons, and the Harkins

defendants filed for bankruptcy protection. Further discovery was conducted, and on October

23, 2012, Heritage Bank filed a motion for summary judgment. Four depositions were appended

to the motion, two of which are pertinent to this appeal.

¶8 In her deposition, Carol Schenk stated that she sold a vacant tract of real property on

August 11, 2008, for $550,000 to Glen and Carol Harkins. Prior to selling the property, she had

plans of subdividing the land for residential development. Randolph and Associates had

prepared a plat for her several years prior to the sale of the land. She stated that the plaintiff

never performed any work for her. Through documents she signed associated with the sale of

the property, Schenk attested to the property being free of, inter alia, improvements and

contracts for improvements or services within the six months prior to the sale. She also stated

that at no time prior to the sale did anyone approach her about having the plaintiff perform any

kind of work on the property, that she had no knowledge of any work performed by the plaintiff

with regard to the property, and that she never consented to Glen and Carol Harkins acting on her

behalf. She did state that prior to agreeing to the sale, she had been approached by Glen Harkins,

who told her that he was going to use the plaintiff to perform engineering work, but she had no

knowledge of what work the plaintiff was in fact going to perform. She did state, though, that

3 she was aware prior to closing that the plaintiff was preparing the preliminary and final plats and

other associated work necessary for the layout of the subdivision.

¶9 In his deposition, Glen Harkins stated that he had worked as a contractor for over 35

years and, prior to the purchase of Schenk's property, he had bought two other properties that he

subdivided and developed residentially. Glen stated that he contacted the plaintiff in late April

2008 to prepare a preliminary plat for the Crest Ridge Estates subdivision. He stated that he

received the preliminary plat around July 15, 2008, when he agreed to purchase the property.

When he was asked if he intended the plaintiff's work to be the basis for determining whether the

development was viable, he responded, "[n]ot really, no." Glen believed that the project would

be viable based on one of his prior developments, but he did state that if the plaintiff could not

have included in the plat the number of lots that he wanted, he would not have purchased the

property. He later recanted that statement and said that he knew he could get the number of lots

he wanted out of the property. Glen also stated that after he agreed to purchase the property, he

approached the plaintiff to prepare the final plat. While Glen stated that he believed that he

received the final plat from the plaintiff before the closing on August 11, 2008, an issue with the

existence of a wetland on the property was discovered subsequent to the closing that necessitated

some changes to the plat. Additionally, one house was built on a lot on the property for which

the plaintiff had performed the "lot work," and the plaintiff had also performed engineering work

regarding the planning of sewers and roads on the property. However, Glen further stated that in

February 2009, due to the state of the economy, he decided not to pursue development of the

property. At some point prior to that decision, he had told the plaintiff to stop all work related to

the property.

4 ¶ 10 When asked about his association with Schenk, Glen stated that: (1) he never intended to

work with her to develop the property; (2) he never intended to work on her behalf to develop the

property; (3) she never gave him authorization to act on her behalf to develop the property; (4)

he did not recall giving her any information about the plaintiff or the work that the plaintiff did

for Harkins, but she did know that work was being performed prior to the closing and did not

object to it; (5) he never intended her to receive any benefit from the plaintiff's work; (6) to his

knowledge, she never received any benefit from the plaintiff's work; and (7) the plaintiff's work

did not provide any physical improvements to the property, but the plaintiff was physically on

the property at some point during the summer of 2008.

¶ 11 On December 18, 2013, the circuit court held a hearing on Heritage Bank's motion for

summary judgment. The court heard arguments and took the matter under advisement and then

issued a written decision the following day that granted the motion. In so ruling, the court found

that "the uncontroverted facts show that there was not an improvement to the land and there was

no encouragement or inducement by the landowner whatsoever." The plaintiff appealed.

¶ 12 ANALYSIS

¶ 13 On appeal, the plaintiff argues that the circuit court erred when it granted summary

judgment in favor of Heritage Bank. Specifically, the plaintiff contends that the court erred "in

invalidating Plaintiff's mechanics lien for failure to demonstrate a contractual relationship with a

party the owner knowingly permitted to contract" and "in invalidating Plaintiff's mechanics lien

for failure to demonstrate an improvement to the property."

¶ 14 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 of material fact and that

the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West

5 2012). We review a circuit court's summary judgment ruling de novo. Williams v. Manchester,

(2008).

¶ 15 In relevant part, section 1(a) of the Mechanics Lien Act (Act) provides:

"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, *** is known under

this Act as a contractor and has a lien upon the whole of such lot or tract of land

and upon adjoining or adjacent lots or tracts of land of such owner constituting the

same premises and occupied or used in connection with such lot or tract of land as

a place of residence or business[.]" 770 ILCS 60/1(a) (West 2012).

Further, the Act defines "improve" as follows:

"to furnish labor, services, material, fixtures, apparatus or machinery, forms or

form work in the process of construction where cement, concrete or like material

is used for the purpose of or in the building, altering, repairing or ornamenting

any house or other building, walk or sidewalk, whether the walk or sidewalk is on

the land or bordering thereon, driveway, fence or improvement or appurtenances

to the lot or tract of land or connected therewith, and upon, over or under a

sidewalk, street or alley adjoining; or fill, sod or excavate such lot or tract of land,

or do landscape work thereon or therefor; or raise or lower any house thereon or

remove any house thereto, or remove any house or other structure therefrom, or

perform any services or incur any expense as an architect, structural engineer,

professional engineer, land surveyor or property manager in, for or on a lot or

6 tract of land for any such purpose; or drill any water well thereon; or furnish or

perform labor or services as superintendent, time keeper, mechanic, laborer or

otherwise, in the building, altering, repairing or ornamenting of the same; or

furnish material, fixtures, apparatus, machinery, labor or services, forms or form

work used in the process of construction where concrete, cement or like material

is used, or drill any water well on the order of his agent, architect, structural

engineer or superintendent having charge of the improvements, building, altering,

repairing or ornamenting the same." 770 ILCS 60/1(b) (West 2012).

¶ 16 Because mechanics' liens are not recognized by the common law or equity, the statute

giving rise to the creation of the lien must be strictly construed. Watson v. Watson,

(1991); First Bank of Roscoe v. Rinaldi,

(1994). The party

seeking to enforce a lien has the burden of proving that it has met each and every one of the

statute's requirements. Watson,

; Mostardi-Platt Associates, Inc. v.

Czerniejewski,

(2010).

¶ 17 "The purpose of the Act is to permit a lien upon premises 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 labor and materials." (Emphasis in original.) Watson,

; Mostardi-Platt Associates,

. In determining

whether a mechanic's lien is valid, a court focuses on whether the work performed actually

enhanced the value of land. Mostardi-Platt Associates,

; Watson,

; L.J. Keefe Co. v. Chicago & Northwestern Transportation Co.,

(1997); D.M. Foley Co. v. North West Federal Savings & Loan Ass'n,

(1984).

7 ¶ 18 Our review of the record in this case reveals no error in the circuit court's finding that the

plaintiff failed to establish that its work improved the property at issue. The pleadings and

depositions on file indicate that the plaintiff performed work related to the platting of the Crest

Ridge Estates subdivision. That work began during the time that Schenk owned the property and

extended into the time that the Harkins defendants owned the property. The final plat for the

property was recorded in September 2008 and only one lot was actually sold, which was to the

Allisons, with whom the plaintiff settled separately. The remainder of the property remained

untouched, as the project was abandoned in early 2009. While the product of the plaintiff's work

may have been required of the Harkins defendants by Heritage Bank to secure financing for the

proposed development, and also by the municipality before the property could in fact be

developed, the plaintiff has not pointed to any case in which the recording of a final plat as the

result of an engineering company's work was found to enhance the value of the land, and we

have likewise found no such case. See, e.g., Mostardi-Platt Associates,

(rejecting an argument that certain preliminary services constituted improvements under the Act

"because they [were] 'necessary' for the construction of a coal gasification facility on the

property"). 2 Under the circumstances of this case, we hold that the services provided by the

plaintiff for the Harkins defendants in fact did not constitute an improvement to the property

under the Act. 3 See Mostardi-Platt Associates,

. Thus, we hold that the

circuit court did not err when it granted summary judgment in favor of Heritage Bank. 4

2 We also find it noteworthy that the Act does not mention developers in section 1. See Rinaldi,

(finding that because the Act did not extend to individuals who contract to develop land or who

perform services of a developer, such services were not lienable under the Act). 3 While pre-1935 appellate court decisions are not precedential (Bryson v. News America Publications, Inc.,

(1996)), we acknowledge that in a 1922 case, the appellate court held that an architect's plans for a

8 ¶ 19 CONCLUSION

¶ 20 The judgment of the circuit court of Peoria County is affirmed.

¶ 21 Affirmed.

¶ 22 JUSTICE LYTTON, dissenting.

¶ 23 I disagree with the majority’s conclusion that plaintiff was not entitled to a lien for his

services in this case. I would find that the services plaintiff provided as an engineer in creating a

plat for the proposed development fall squarely within the Act even if the proposed development

was not completed. I would conclude that while plaintiff is entitled to a lien for some of the

work he performed, a remand is necessary to determine the proper amount of his lien.

¶ 24 “The paramount objective in construing a statute is to give effect to the intent of the

legislature.” Petroline Co. v. Advanced Environmental Contractors, Inc.,

(1999). In order to determine legislative intent, courts construe a statute as a whole so that

no term is rendered superfluous or meaningless. Central Illinois Electrical Services, L.L.C. v.

Slepian,

(2005). The purpose of the legislature should be gathered

from the entire statute. Petroline,

.

¶ 25 The purpose of the Act is to protect those who, in good faith, furnish material or labor for

the improvement of real property. Mostardi-Platt,

. “Rights under the

Act are in derogation of the common law, and the steps necessary to invoke those rights must be

strictly construed.” National City Mortgage v. Hillside Lumber, Inc.,

,

building "were merely for the purpose of furnishing defendant with information tending to show the possibilities of

such an improvement" and were not lienable under the Act (Ohrenstein v. Howell,

(1922)). 4 Our ruling on the improvement issue obviates the need to address the plaintiff's argument regarding the

"knowingly permitted" issue.

9 ¶ 6. However, once a contractor has strictly complied with the requirements, the Act is to be

liberally construed to accomplish its purpose.

¶ 26 When the legislature amends a statute, it is presumed to be creating new law, not

engaging in a useless act. In re Petition of K.M.,

(1995). A statute

should not be construed so that amendatory language is rendered superfluous.

¶ 27 I

¶ 28 First, I believe that the trial court and majority erred in requiring plaintiff to prove that his

services as a professional engineer improved the subject property. The appropriate inquiry is

whether plaintiff’s services were provided for the purpose of improving the subject property.

¶ 29 When the Act was created, only architects, superintendents, timekeepers, mechanics and

laborers were entitled to liens under the Act. See

. In 1913, the legislature

amended the statute to allow liens for services performed by structural engineers.

. Then, in 1951, the legislature amended the Act to allow liens for the performance of

services by professional engineers and land surveyors.

.

¶ 30 Now, under the Act, “an architect, structural engineer, professional engineer, land

surveyor or property manager” who performs “any services or incur[s] any expense” for or on a

tract of land for the purpose of improving the tract of land is entitled to a lien. 770 ILCS 60/1(b)

(West 2012). Architects and engineers are treated similarly in determining whether they are

entitled to mechanic’s liens. See Dunham Associates, Inc. v. Group Investments, Inc.,

(Minn. 1974) (finding “no rational distinction” between the services of an

architect and an engineer under mechanic’s lien statute); Kimberly C. Simmons, Architect’s

Services As Within Mechanics’ Lien Statute,

, 677 (1995) (“many jurisdictions,

in deciding whether services performed are ones for which a mechanic’s lien may be granted,

10 treat engineers and engineering firms in much the same way as they do architects”). Both

architectural and engineering services “la[y] the groundwork for the physical enhancement to

real property.” Weber v. Pascarella Mason Street, LLC,

(Conn. App. Ct.

2007).

¶ 31 Our supreme court has ruled that a mechanic’s lien is allowed for the services of an

architect even though the building for which the architect drafted plans was never constructed.

See Freeman v. Rinaker,

(1900); Crowen v. Meyer,

(1930). In Freeman,

the court ruled that an architect who drew plans for a building was entitled to lien even though

“nothing was done towards the actual construction of the building.” Freeman,

.

The court reasoned that the Act requires that the architect’s services be provided “for the purpose

of building any house” and that “[w]hen an architect draws plans and specifications for a

building, *** he performs services for the purpose of building it.”

.

¶ 32 Similarly, in Crowen, the court rejected the property owners’ argument that an architect

who prepared plans and specifications for a building that was never constructed was not entitled

to a mechanic’s lien on their property. Crowen,

. The court ruled that the language

of the Act “gives to the architect a lien for services rendered for the purpose of improving

property.”

Thus, the architect was entitled to a lien for the plans and specifications he

prepared for a building that was never constructed.

¶ 33 The Second District also ruled that an architect can assert a lien for plans prepared but

never put into use by the property owner. See Butler v. Metz, Train, Olson & Youngren, Inc.,

(1978). In Butler, the court ruled that an architect was entitled to a lien for plans

he furnished for two buildings even though only one building was built.

. The court

11 stated: “The filing of a mechanic’s lien is not only proper and legal but is often the only

practical and expedient way a contractor or architect can enforce his claim.”

¶ 34 The Act, thus, allows a lien to be imposed regardless of whether the services actually

“improved” the land (In re California Steel Co.,

(Bankr. N.D. Ill. 1982) (citing

Freeman,

, and Butler,

)) as long as the services were

performed “for the purpose of improving” a tract of land. See Freeman,

; Crowen,

.

¶ 35 Preliminary engineering work is performed for the purpose of improving property. See

Midland Mortgage Co. v. Sanders England Investments,

(Okla. 1984);

Ramey Kemp & Associates, Inc. v. Richmond Hills Residential Partners, LLC,

(N.C. Ct. App. 2003); Mutual Savings Ass’n v. Res/Com Properties, L.L.C.,

(Kan. Ct. App. 2003); see also Frank Pisano & Associates v. Taggart,

(Cal. Ct. App. 1972) (“significant engineering services,” including drawing and recording a

subdivision map, “constituted a work of improvement upon the property”). This is true even if

no physical building is ever erected. See Chas. H. Sells, Inc. v. Chance Hills Joint Venture,

(N.Y. Sup. Ct. 1995) (engineering services that enabled property to receive

municipal approval constituted a “permanent improvement”); Nolte v. Smith,

(Cal. Dist. Ct. App. 1961) (engineer’s services, which included surveying, planning, and

preparing subdivision map, constituted “constructive improvement” to the project even though

project was not completed).

¶ 36 Architects and engineers who prepare preliminary plans for property are entitled to a

mechanic’s liens even if construction is never begun on the property through no fault of their

own. See Crowen,

; Freeman,

; Cubit Corp. v. Hausler, 1992-NMSC-

12 050, ¶ 15,

; Tuttle & Associates, Inc. v. Gendler,

(Neb.

1991); Dunham Associates, Inc. v. Group Investments, Inc.,

(Minn. 1974);

Zions First National Bank v. Carlson,

(Utah 1970); Altom Construction Co. v.

BB Syndication Services, Inc.,

(Mo. Ct. App. 2012); Merrick & Co. v.

Estate of Verzuh,

(Colo. App. 1999); Design Associates, Inc. v. Powers,

(N.C. Ct. App. 1987); O’Hara v. Architects Hartung & Ass’n,

(Ind. Ct. App. 1975); Warshaw v. Pyms,

(Fla. Dist. Ct. App. 1972);

Chas. H. Sells,

.

¶ 37 Professionals who design buildings and developments should not be penalized for an

owner’s choice not to proceed with a construction project. See Cubit Corp.,

,

¶ 50,

; Seracuse Lawler & Partners, Inc. v. Copper Mountain,

(Colo. App. 1982); Chas H. Sells,

; In re Morrell,

(Bankr.

N.D. Cal. 1984). “If a landowner fails to take a project through to completion, for whatever

reason, the claims for work done to improve the property are no less entitled to the benefits of

this [mechanic’s lien] statute.” Chas H. Sells,

. It would be “manifestly

unjust” to deny architects and engineers liens because the person with whom they contracted did

not complete the project as planned. Morrell,

. “[T]hey can do nothing

themselves to begin work on the ground to make their liens valid.”

One court stated:

“For the purposes of the mechanics’ lien law, the claimant is not to be

charged with another’s mistake in judgment which results in the noncompletion of

the project. To hold otherwise would defeat the purpose of the statute. An owner

could easily shutdown a project before substantial completion, and, arguing that a

partially completed project represents no value enhancement to the property, he

13 could thereby leave those who worked on the project without any lien remedies.”

Seracuse Lawler,

.

¶ 38 Because architects and engineers rely on their entitlement to a lien, lien statutes should

not be construed so narrowly as to defeat their intent and purpose. Cubit Corp., 1992-NMSC-

050, ¶ 16,

. “To do so would undermine the purpose of insuring payment to those

who render services toward a project that has been abandoned through no fault of a claimant.”

¶ 39 The majority makes passing reference in footnotes to two cases to support its decision to

affirm the trial court’s denial of plaintiff’s lien. See supra ¶ 18 nn. 2, 3. In Ohrenstein, a case

lacking any precedential value, the court ruled that architects who prepared sketches for a

property owner were not entitled to a lien because the sketches “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 improvement.” Ohrenstein,

. Unlike the

architects’ sketches in Ohrenstein, which were never used by the property owner, the documents

prepared by plaintiff, including a final plat of the subdivision, were used by Harkins to obtain

financing and municipal approval for the subdivision. The work completed by plaintiff was

performed for the purpose of improving the property, not just to inform Harkins about what

improvements were possible.

¶ 40 The other case cited by the majority does not support its decision to deny plaintiff a lien

in this case. Although the court in Rinaldi ruled that the services of a “developer” are not

covered by the Act, it stated that “[u]nder the Act *** professional engineers *** who perform

any service or incur any expense for any purpose are entitled to a lien.” Rinaldi,

at 184, 186. The court further stated that certain professionals, including engineers, can claim a

lien on property even if no structure is located thereon.

.

¶ 41 Presumably, the majority is suggesting that plaintiff’s work was akin to that of a

developer. However, nothing in the record supports such a position. Unlike developers, who

make things “ ‘visible or manifest’ ” (id. (quoting Webster’s Third New International Dictionary

618 (1986)), engineering services lay the groundwork for the physical enhancement of property.

See New England Savings Bank v. Meadow Lakes Realty Co.,

(Conn. 1998).

Professional engineers prepare plans and specifications for construction projects and prepare

plats for proposed developments. See Fireman’s Fund Insurance Co. v. SEC Donohue, Inc.,

(1997); Petterson v. City of Naperville,

(1956); Clark v. Village

of Oswego,

(1973).

¶ 42 Plaintiff’s services in this case, including planning sewers and roads and preparing the

final plat of the subdivision, were those of a professional engineer. See Petterson,

; Clark,

. A professional engineer is listed in the Act as one who is

entitled to a lien for the services he performs and the expenses he incurs. 770 ILCS 60/1 (West

2012). Thus, plaintiff’s services fall squarely within the Act.

¶ 43 The majority’s conclusion that the services provided by plaintiff are not covered by the

Act renders meaningless the legislature’s 1951 amendment that allows liens for the performance

of services by “professional engineers.” The only way to give meaning to all provisions of the

Act, as we must do (K.M.,

), is to interpret the Act to include the services

of plaintiff, a professional engineer, which were performed “for the purpose of improving” the

property even though the project did ultimately come to fruition. See Freeman,

;

Crowen,

.

15 ¶ 44 II

¶ 45 Next, I find that although plaintiff is entitled to a mechanic’s lien, it is necessary to

remand the case to the trial court to determine the proper amount of plaintiff’s lien.

¶ 46 The Act permits a lien on property where a benefit has been received by the owner of the

property. See Mostardi-Platt,

. The theory underlying the Act is that an

owner benefited by improvements to his property should pay for the benefit when it was induced

or encouraged by his acts.

¶ 47 Here, the lien claimed by plaintiff covers all of the engineering work it performed, both

before and after Harkins bought the property. However, Harkins and Schenck testified that

plaintiff’s work was not intended to and did not benefit Schenck. Because Schenck did not

benefit from plaintiff’s work, any work performed by plaintiff while Schenck owned the property

should not be subject to plaintiff’s mechanic’s lien.

¶ 48 As set forth above, plaintiff’s work benefitted Harkin because it allowed him to obtain

financing and municipal approval for the property and moved the land toward becoming

developed. Without plaintiff’s services, the land could not have been developed. Thus, the work

performed by plaintiff after Harkins purchased the property should be subject to plaintiff’s

mechanic’s lien.

¶ 49 Because the record is unclear regarding when plaintiff’s services were performed, I

would remand the cause to determine the proper amount of plaintiff’s mechanic’s lien. Plaintiff

should have a lien only on the services performed during Harkins’ ownership of the property

since only Harkins benefitted from plaintiff’s services.

16