a Fandel Construction, Plaintiff-Appellant, v. TIFFANY ALLEN, Defendant-Appellee, 398 Ill. App. 3d 177

Source: Illinois Appellate Court

Date: 2010-01-14

Jurisdiction: Illinois

Docket: No. 3—08—0237

Citation: 398 Ill. App. 3d 177

Opinion

JUSTICE McDADE delivered the opinion of the court: Plaintiff, David Fandel, doing business as Fandel Construction, performed construction work for defendant, Tiffany Allen, on defendant’s home. After the project was complete, plaintiff recorded a “claim for lien” and commenced suit to foreclose the lien after defendant stopped payment on the check she tendered in payment of the services. Plaintiff now appeals from the trial court’s granting of

summary judgment in favor of defendant. We reverse and remand. FACTS In July 2007, defendant contacted plaintiff and requested that plaintiff submit a bid to replace the roof on her home. Plaintiff inspected the roof. The day after his inspection, plaintiff tendered a written, itemized work order to defendant for her consideration. Plaintiff did not provide defendant with a copy of a consumer rights brochure prepared by the Attorney General’s office. The work order specified the work to be done, the materials to be used, and the total cost of $9,581 to complete the work.

The work order was not signed by defendant. Instead, defendant merely advised plaintiff to proceed in accordance with the itemized work order. The job was completed August 1, 2007, and defendant tendered a check to plaintiff pursuant to the work order plus $100 for a change defendant requested, thereby totaling $9,681. Defendant subsequently stopped payment on the check. Plaintiff filed a “claim for a mechanic’s lien” in the recorder’s office of Bureau County. On October 17, 2007, plaintiff commenced a suit to foreclose the lien. Defendant filed a response and a motion for

summary judgment arguing that plaintiffs failure to comply with sections 20(

a) and 30 of the Home Repair and Remodeling Act (Home Repair Act) (815 ILCS 513/1 et seq. (West 2006)) barred him from asserting a lien upon her property. Upon hearing argument, the trial court granted defendant’s motion, thus denying plaintiff any payment for the work he had done. ANALYSIS Plaintiff appeals the trial court’s order granting defendant’s motion for

summary judgment. The sole issue in this appeal is whether plaintiffs failure to comply with sections 20(

a) and 30 of the Home Repair Act (815 ILCS 513/1 et seq. (West 2006)) bars him from asserting a mechanic’s hen upon defendant’s property. Principles of statutory construction dictate that the language of a statute be given its plain and ordinary meaning. First Bank & Trust Co. of O’Fallon v. King, 311 Ill. App. 3d 1053, 1058-59, 726 N.E.2d 621, 625 (2000). When the language of the statute is clear and unambiguous, the court should not add exceptions, limitations, or conditions that the legislature did not express. First Bank, 311 Ill. App. 3d at 1059, 726 N.E.2d at 625.

A court should interpret a statute as a whole so that no term is rendered superfluous or meaningless. Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d 262, 270, 695 N.E.2d 481, 485 (1998). The standard of review for both statutory construction and

summary judgment is de novo. Swavely v. Freeway Ford Truck Sales, Inc., 298 Ill. App. 3d 969, 976, 700 N.E.2d 181, 187 (1998); Sears Roebuck & Co. v. Acceptance Insurance Co., 342 Ill. App. 3d 167, 171, 793 N.E.2d 736, 739 (2003). We begin by setting out the pertinent sections of the Home Repair Act in their entirety.

Section 20(

a) of the Home Repair Act states: “§20. Consumer rights brochure, (

a) For any contract over $1,000, any person engaging in the business of home repair and remodeling shall provide to its customers a copy of the ‘Home Repair: Know Your Consumer Rights’ pamphlet prior to the execution of any home repair and remodeling contract.

The consumer shall sign and date an acknowledgment form entitled ‘Consumer Rights Acknowledgment Form’ that states: T, the homeowner, have received from the contractor a copy of the pamphlet entitled “Home Repair: Know Your Consumer Rights.” ’ The contractor or his or her representative shall also sign and date the acknowledgment form, which includes the name and address of the home repair and remodeling business.” 815 ILCS 513/20 (West 2006).

Section 30 of the Home Repair Act states: “§30. Unlawful Acts. It is unlawful for any person engaged in the business of home repairs and remodeling to remodel or make repairs or charge for remodeling or repair work before obtaining a signed contract or work order over $1,000 and before notifying and securing the signed acceptance or rejection, by the consumer, of the binding arbitration clause and the jury trial waiver clause as required in

Section 15 and

Section 15.1 of this Act. This conduct is unlawful but is not exclusive nor meant to limit other kinds of methods, acts, or practices that may be unfair or deceptive.” 815 ILCS 513/30 (West 2006).

Section 5 of the Home Repair Act sets forth the policy statement of the General Assembly in enacting the Home Repair Act. It states: “§5. Policy. It is the public policy of this State that in order to safeguard the life, health, property, and public welfare of its citizens, the business of home repair and remodeling is a matter affecting the public interest.

The General Assembly recognizes that improved communications and accurate representations between persons engaged in the business of making home repairs or remodeling and their consumers will increase consumer confidence, reduce the likelihood of disputes, and promote fair and honest practices in that business in this State.” 815 ILCS 513/5 (West 2006).

It, thus, appears to us that the legislative purpose is to empower the Attorney General and State’s Attorney to correct a potential harmful practice, not to deny an honest and competent workman the fair value of his work or to give a homeowner a valuable benefit without paying for it. In the present case it is undisputed that the written work order provided by plaintiff to defendant was not signed by defendant. It is also undisputed that plaintiff did not provide defendant with a copy of the consumer rights brochure.

Plaintiff acknowledges that when he began work for defendant, the anticipated costs were over $1,000. Plaintiff, however, asserts that because the Home Repair Act does not provide individual homeowners with a private right of action to enforce violations of the Home Repair Act, defendant is not entitled to judgment as a matter of law. Plaintiff also alleges that the trial court’s holding improperly implies a judicial repeal of the Mechanics Lien Act (Lien Act) (770 ILCS 60/0.01 et seq. (West 2006)).

At the time this case was argued, there were only two Illinois appellate opinions relevant to our analysis: a previous decision by this court, Central Illinois Electrical Services, L.L.C. v. Slepian, 358 Ill. App. 3d 545, 831 N.E.2d 1169 (2005), and the Fourth District’s decision in Smith v. Bogard, 377 Ill. App. 3d 842, 879 N.E.2d 543 (2007). Since that time the First District decided K. Miller Construction Co. v. McGinnis, 394 Ill. App. 3d 248, 913 N.E.2d 1147 (2009).

While we are aware that the parties have not had the opportunity to brief and orally argue the impact of the Miller holding, we discuss the case briefly in footnotes 6 and 7. In Slepian, the plaintiff, Central Illinois Electrical Services (CIES), entered into an oral contract with the homeowners to provide electrical work as part of a remodeling project. Upon completion of the project, the Slepians failed to pay CIES. CIES subsequently sued to foreclose a mechanic’s lien on the Slepians’ property and, in addition, alleged claims for unjust enrichment and quantum meruit.

In response, the Slepians alleged that CIES had violated the Home Repair Act by failing to provide a written contract. Thus, the Slepians argued that the oral contract was void and therefore could not be the basis of recovery under a mechanic’s lien. After a bench trial, the trial court found in CIES’s favor with respect to the mechanic’s lien, dismissed CIES’s additional counts as moot, and denied, on the merits, all of the Slepians’ claims pursuant to the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/10a (West 2006)).

On appeal, we discussed CIES’s claim that the Home Repair Act did not apply to it because it was a successor contractor without a clearly defined project against which to itemize expenses and reversed that portion of the trial court’s order that relied upon the finding that the Home Repair Act was not applicable. Slepian, 358 Ill. App. 3d at 550, 831 N.E.2d at 1173. Specifically, we stated: “The language of the Act clearly and unambiguously requires anyone engaged in the business of home repair and remodeling to obtain a signed contract before initiating work that will exceed $1,000 in cost.

The trial court erred in concluding the Act did not apply in the instant case, and the court should now hear any claims that were dismissed on that basis. Thus, to the extent that the trial court’s rulings relied upon a finding that the Act was not applicable, this cause is reversed and remanded for proceedings consistent with this opinion.” (Emphasis added.) Slepian, 358 Ill. App. 3d at 550, 831 N.E.2d at 1173.

In addition, we affirmed the trial court’s dismissal of the Slepians’ Consumer Fraud Act counts acknowledging that the trial court was the proper entity to determine that the charges for the work were not unreasonable. Slepian, 358 Ill. App. 3d at 550, 831 N.E.2d at 1173. We also determined that the outcome of the proceedings would not have been different had the Slepians been allowed to proceed on their Consumer Fraud Act claims. Slepian, 358 Ill. App. 3d at 550, 831 N.E.2d at 1173. We believe the holding in Slepian is very narrow.

Specifically, the Slepian court: (1) held that the Home Repair Act applies to CIES regardless of the fact that it is a successor contractor, (2) affirmed the dismissal, on the merits, of the Slepians’ Consumer Fraud Act counts, and (3) reversed and remanded the matter so that the trial court could hear any challenges under the Home Repair Act. See Slepian, 358 Ill. App. 3d at 550, 831 N.E.2d at 1173.

We further believe that the limited nature of Slepian is reinforced by Justice Barry’s dissent, which concentrates entirely on whether CIES, as a successor contractor, knew enough to comply with the Home Repair Act or whether the Slepians were in the class of consumers the Home Repair Act was intended to protect. See Slepian, 358 Ill. App. 3d at 551-54, 831 N.E.2d at 1175-77 (Barry, J., dissenting). Ultimately, he would have found the Home Repair Act inapplicable. It is for these reasons that we find Slepian both factually and legally distinguishable from the present case.

The Bogard court and the dissent, however, read Slepian much more broadly, apparently finding the implicit creation of the use of the Home Repair Act as an affirmative defense. Inasmuch as there was no discussion of rights of action or affirmative defenses or other uses of the Home Repair Act, we would suggest such a reading is incorrect. In Bogard, the plaintiff, Dan Smith Building Services (Smith), entered into an oral contract with the homeowners to build a living-room addition. The Bogards refused to pay the last installment, in the amount of $10,515.85 claimed due for the work performed.

Smith filed a breach of contract claim and, in addition, alleged claims for unjust enrichment and quantum meruit. The Bogards filed a motion to dismiss claiming that Smith violated the Home Repair Act by not securing a written contract prior to initiating construction and failing to provide them with the consumer rights brochure. They claimed that these violations precluded Smith from recovery. Upon hearing argument, the trial court granted the Bogards’ motion in its entirety, finding that because Smith had failed to comply with the Home Repair Act, he was precluded from recovery on his breach of contract claim.

The court further found that because Smith was unable to recover under an action at law, he was precluded from recovery under any equitable theory as well because such a recovery would defeat the entire purpose of the Home Repair Act and the public policy behind it. On appeal, Smith argued that a disputed issue of whether the Home Repair Act applies to him remains, and even if the Home Repair Act does apply to him, he is not precluded from recovery under the theories of unjust enrichment and/or quantum meruit.

The Fourth District rejected Smith’s claim that he was merely a subcontractor and thus not required to comply with the Home Repair Act. Bogard, 377 Ill. App. 3d at 847-48, 879 N.E.2d at 548. The court also rejected Smith’s claim that he is entitled to recovery under the theories of unjust enrichment and/or quantum meruit. Bogard, 377 Ill. App. 3d at 848, 879 N.E.2d at 548.

Erroneously relying upon our decision in Slepian, the court stated: “Because Smith is obligated to comply with the provisions of the Act, and because he failed to do so, he is precluded from recovering any amounts he claims due for work performed.

Allowing a contractor a method of recovery when he has breached certain provisions of the Act would run afoul of the legislature’s intent of protecting consumers, would reward deceptive practices, and would be viola-tive of public policy. [Citations.] Based on the record before us, we conclude the trial court did not err in granting the Bogarás’ motion to dismiss because we find that an affirmative matter (Smith’s violation of the Act) defeated Smith’s claim for recovery.” Bogard, 377 Ill. App. 3d at 848, 879 N.E.2d at 548.

With the above authority in mind, we now turn to plaintiffs claim that because the Home Repair Act does not provide individual homeowners with a private right of action to enforce violations of the Home Repair Act, defendant is not entitled to judgment as a matter of law. Plaintiff argues that violations of the Home Repair Act alone do not affirmatively preclude a contractor from asserting a mechanic’s lien upon a homeowner’s property. Instead, plaintiff asserts that the homeowner must prove that “the violation, through

Section 10(a) [sic] of the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/10(a) (West 2006)) [sic], caused her to suffer actual damages as a proximate result of the deficiency.” We agree. At the outset, we note that the Home Repair Act does not contain any language that explicitly or implicitly provides that a violation of the Home Repair Act may be enforced by consumers in a private cause of action. Rather,

section 35 states that the Attorney General or the State’s Attorney “may bring an action in the name of the people of this State against any person to restrain and prevent any pattern or practice violation of this Act.” 815 ILCS 513/35 (West 2006).

Section 35(

b) also states that “[a]ll remedies, penalties, and authority granted” to the Attorney General or the State’s Attorney “by the Consumer Fraud and Deceptive Business Practices Act [(815 ILCS 505/1 et seq. (West 2006))] shall be available to him or her for enforcement of this Act.” 815 ILCS 513/35 (West 2006). Moreover, “any violation of this Act shall constitute a violation of the Consumer Fraud and Deceptive Business Practices Act.” 815 ILCS 513/35 (West 2006). Here on appeal, defendant does not assert that she was unaware of her consumer rights at the time she instructed plaintiff to begin work on her roof.

Instead, she has merely alleged that plaintiff’s procedural errors in not securing her signature on the written contract prior to initiating construction and failing to provide her with the consumer rights brochure bar him from asserting a mechanic’s lien upon her property. In the present case, plaintiff asserted a mechanic’s lien against defendant’s property under the Lien Act. The purpose of the Lien Act is “to require a person with an interest in real property to pay for improvements or benefits which have been induced or encouraged by his or her own conduct.” Leveyfilm, Inc. v.

Cosmopolitan Bank & Trust, 274 Ill. App. 3d 348, 352, 653 N.E.2d 875, 877 (1995).

Section 1 of the Lien Act permits a lien upon premises where the value or the condition of the property has been increased by reason of the furnishing of labor and materials. 770 ILCS 60/1 (West 2006). Specifically,

section 1(

a) states in pertinent part: “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 and upon adjoining or adjacent lots or tracts of land of such owner ***.” 770 ILCS 60/l(a) (West 2006).

As seen above, the Lien Act makes no distinction between oral and written contracts. Moreover, Illinois law provides that a contractor’s right to a mechanic’s lien under the Lien Act derives from the contractor’s performance of the contract. Leveyfilm, Inc. v. Cosmopolitan Bank & Trust, 274 Ill. App. 3d 348, 354, 653 N.E.2d 875, 879 (1995). Thus, the pertinent question in the present case regarding whether plaintiff can assert a lien against defendant’s property revolves around the validity of the agreement between the two parties and the plaintiffs performance of that agreement.

The legal capacity to foreclose a mechanic’s lien depends upon the validity of the lien. G.M. Fedorchak & Associates, Inc. v. Chicago Title Land Trust Co., 355 Ill. App. 3d 428, 433, 822 N.E.2d 905, 909 (2005). The lien, in turn, must be based upon a valid contract, and in its absence, the lien is unenforceable. G.M. Fedorchak, 355 Ill. App. 3d at 433, 822 N.E.2d at 909. In the present case, defendant requests that we find the agreement she entered into with plaintiff invalid because plaintiff failed to comply with sections 20(

a) and 30 of the Home Repair Act. While plaintiff’s failure to comply with these sections does constitute an unlawful violation under the Home Repair Act, we find that this unlawful violation does not act to automatically invalidate the agreement between the parties. In coming to this conclusion, we note once again that the Home Repair Act is void of any language which serves to invalidate the parties’ agreement when the contractor fails to secure a written contract or fails to provide the homeowner with a consumer rights brochure.

Instead, the Home Repair Act merely provides that these procedural errors, along with the other procedural errors contained within its provisions, constitute unlawful violations. 815 ILCS 513/30 (West 2006). These unlawful violations, however, do not act to invalidate an otherwise enforceable agreement. We have previously held that “ ‘[ujnless a bargain necessarily involves an illegal act, it is not unenforceable, and if it is later performed in a way that involves some slight violation of law, not seriously injurious to the public order, the person performing may recover on his bargain.’ ” Amoco Oil Co. v.

Toppert, 56 Ill. App. 3d 595, 597, 371 N.E.2d 1294, 1296 (1978), quoting 6 Williston on Contracts §1767, at 5018 (rev. ed. 1938). The First District stated this principle more broadly: “ ‘ “[W]here a contract could have been performed in a legal manner as well as in an illegal manner, it will not be declared void because it may have been performed in an illegal manner, since bad motives are never to be imputed to any man where fair and honest intentions are sufficient to account for his conduct.

The rule has been stated to be that if an agreement can by its terms be performed lawfully, it will be treated as legal, even if performed in an illegal manner ***.” ’ ” Mani Electrical Contractors v. Kioutas, 243 Ill. App. 3d 662, 666, 611 N.E.2d 1167, 1170 (1993), quoting Meissner v. Caravello, 4 Ill. App. 2d 428, 431-32, 124 N.E.2d 615, 616-17 (1955), quoting 12 Am. Jur. Contracts §153, at 647. Here, the parties entered into an oral agreement to repair defendant’s roof. Specifically, defendant sought out plaintiff and asked him to submit a bid to replace the roof.

Plaintiff tendered a written, itemized work order to defendant for her consideration. Defendant advised plaintiff to proceed in accordance with the itemized work order. Plaintiff completed the job and defendant tendered a check to defendant for the amount stated in the work order plus $100 for a change defendant had requested, thereby totaling $9,681. Defendant subsequently stopped payment on the check.

While plaintiffs failure to provide defendant with a copy of the consumer rights brochure and secure a written contract does constitute an unlawful violation under the Home Repair Act, the underlying bargain to repair defendant’s roof did not provide for or require any violation of law. Thus, we find that the underlying agreement between the parties was valid and plaintiffs procedural violations relative to that agreement do not bar recovery. Defendant is incorrect in asserting that such an

interpretation renders sections 20(

a) and 30 of the Home Repair Act meaningless. While the Home Repair Act does not prohibit a contractor from recovery in the event a contractor fails to secure a written contract or fails to provide the homeowner with the consumer rights brochure, it does exact penalties for these violations. Specifically, the Home Repair Act states that the Attorney General may seek penalties against the contractor in case of violation. 815 ILCS 513/35 (West 2006).

More importantly for our consideration, however, the Home Repair Act plainly and unambiguously provides that “any violation of this Act shall constitute a violation of the Consumer Fraud and Deceptive Business Practices Act.” 815 ILCS 513/35 (West 2006).

Section 10a of the Consumer Fraud Act provides defendant with the right to bring an action against plaintiff for any actual damages she suffered as a result of any violation of the Consumer Fraud Act. 815 ILCS 505/10a (West 2006). It is through

section 10a of the Consumer Fraud Act that plaintiff can recover for any actual damages she suffered as a result of plaintiffs failure to comply with sections 20(

a) and 30 of the Home Repair Act. This court, in Slepian, has previously recognized this fact by affirming the trial court’s dismissal of plaintiffs Consumer Fraud Act claims on the merits, not as a matter of procedural inapplicability. Slepian, 358 Ill. App. 3d at 550, 831 N.E.2d at 1173. It is clear based on a reading of both the Home Repair Act and the Consumer Fraud Act that the legislature did not intend to provide homeowners with a private right of action under the Home Repair Act.

Nor do we believe the legislature intended to allow homeowners to use the Home Repair Act as an affirmative defense to mechanic’s liens. To hold otherwise would result in a judicial repeal of the Lien Act. In coming to this conclusion, we reject the holding announced in Bogard, as we believe it was incorrectly decided. We have already stated that we believe the holding in Slepian is extremely narrow and both factually and legally distinguishable. However, to the extent that one accepts the broad

interpretation of Slepian, as both the Bogard court and the dissent do, we would find that Slepian was incorrectly decided. Moreover, we reject the dissent’s contention that our holding here on appeal “deviate[s] from the rationale” in our previous decision in Route 50 Auto Sales, Inc. v. Muncy, 331 Ill. App. 3d 515, 771 N.E.2d 635 (2002). 398 Ill. App. 3d at 196. Initially, we note that our decision in Muncy did not even deal with the Home Repair Act.

Instead, the defendants in Muncy filed a motion to dismiss plaintiff’s complaint, asserting that plaintiff was precluded from enforcing a contract because it did not meet the requirements of the Sales Act (815 ILCS 375/1 et seq. (West 2006)). It is on this basis that we find Muncy factually distinguishable from the instant case.

We would, however, also note that while we believe the holding in Muncy is inapplicable, the court specifically held: “[F]ailure to comply with the provisions of the [Sales Act] does not render the contract void or unenforceable. [Citation.] The remedy for noncompliance with the Sales Act is limited to the penalties provided in the statute.” Muncy, 331 Ill. App. 3d at 517, 771 N.E.2d at 637. The quote above clearly illustrates that Muncy does not stand for the proposition that the Sales Act can be used to void an existing legal contract.

Instead, the contract remains valid, but the noncomplying party is subject to the penalties provided in the statute. Muncy, 331 Ill. App. 3d at 517, 771 N.E.2d at 637. To this extent, we believe the Muncy court’s

interpretation of the Sales Act is consistent with our

interpretation of the Home Repair Act. Based upon a review of the record, it appears that the failure to provide defendant with a copy of the consumer rights brochure and to secure a signature on the itemized work order were oversights on the part of plaintiff grounded in ignorance of the statute. The public welfare which these sections were calculated to protect was not injured and defendant received her new roof. All elements for a valid contract existed, including offer, acceptance and consideration. None of these terms provided for or required a violation of law.

Thus, we find that the oral agreement between the parties does constitute a valid oral contract under Illinois law. Consequently, we hold that plaintiff’s subsequent performance of that agreement creates a right to a mechanic’s lien under the Lien Act. See Leveyfilm, 274 Ill. App. 3d at 354, 653 N.E.2d at 879. Because the Home Repair Act is void of any language which serves to invalidate the parties’ agreement, defendant cannot now use the Home Repair Act to bar plaintiff from asserting this hen.

However, if defendant has suffered any actual damages as a result of plaintiff’s unlawful violations, the statute has created a cause of action for her under

section 10a of the Consumer Fraud Act. See 815 ILCS 513/35 (West 2006); 815 ILCS 505/10a (West 2006). Moreover, the Attorney General or the State’s Attorney is free to seek penalties against plaintiff for his unlawful violations. For the foregoing reasons, we reverse the judgment of the Bureau County circuit court and remand the matter for further proceedings. Reversed and remanded. While defendant argues plaintiff waived this contention, we note that the waiver rule is binding on the parties but not on this court. Catholic Charities of the Archdiocese of Chicago v. Thorpe, 318 Ill.

App. 3d 304, 311, 741 N.E.2d 651, 655 (2000). We are aware of our supreme court’s holding in MD Electrical Contractors, Inc. v. Abrams, 228 Ill. 2d 281, 888 N.E.2d 54 (2008). This holding, however, is not relevant to our analysis in that it dealt solely with the question of whether the Home Repair Act applied to subcontractors.

The court concluded that the Home Repair Act does not apply to subcontractors who, by virtue of their working for a general contractor, did not make “representations” to a homeowner, did not negotiate with a homeowner, did not present written contracts to a homeowner, and were not in a position to accept counteroffers. Abrams, 228 Ill. 2d at 291-92, 888 N.E.2d at 60-61. The court found the remaining issue of whether subcontractors are able to recover in quantum meruit was forfeited. Abrams, 228 Ill. 2d at 299-300, 888 N.E.2d at 65.

While we offer no position on this issue, we recognize that an argument can be made that the holding in Abrams, which held that the Home Repair Act did not apply to subcontractors, overruled our previous holding in Slepian that the Home Repair Act applies to CIES regardless of the fact that it is a successor contractor. The resolution of this question would appear to rest in whether CIES made “representations” to the Slepians, negotiated with the Slepians, presented written contracts to the Slepians, or was in a position to accept counteroffers. See Abrams, 228 Ill. 2d at 291-92, 888 N.E.2d at 60-61.

While some may argue that our position would require homeowners to engage in dual litigation in that they would have to come hack to court after a mechanic’s lien has been secured against their property, this reasoning is simply incorrect in that it ignores the fact that trial courts can hear both a contractor’s mechanic’s lien claim and a homeowner’s Consumer Fraud Act claim in the same hearing. We note that this type of combined hearing is exactly what occurred in Slepian. See Slepian, 358 Ill. App. 3d at 550, 831 N.E.2d at 1173.

Moreover, the Home Repair Act is void of any condition restricting the time a homeowner can bring a Consumer Fraud Act action. Instead, the Home Repair Act simply provides that “any violation of this Act shall constitute a violation of the Consumer Fraud and Deceptive Business Practices Act.” 815 ILCS 513/35 (West 2006).

The authority relied upon by the dissent which illustrates situations where courts have allowed a defendant to use a plaintiffs violation of other acts, such as the Motor Vehicle Retail Installment Sales Act (Sales Act) (815 ILCS 375/1 et seq. (West 2006)), as an affirmative defense against a plaintiffs claim even though the acts limit enforcement to the Attorney General or State’s Attorney is distinguishable and simply has no bearing on this appeal. These cases are all distinguishable on the grounds that they deal with entirely different factual scenarios and with entirely different bodies of law.

We note that on August 10, 2009, the First District in Miller denied a builder’s claims for breach of contract and lien foreclosure due to the builder’s failure to comply with

section 30 of the Home Repair Act. Miller, 394 Ill. App. 3d at 253-54, 913 N.E.2d at 1152. For the reasons stated above, we disagree with this holding. The Miller court held, however, that the equitable remedy of quantum meruit remained available to the builder. Miller, 394 Ill. App. 3d at 265, 913 N.E.2d at 1161. We offer no opinion on this specific issue, as we have already found that a valid contract exists in the present case. The use of “void” in

section 15.1(

c) of the Home Repair Act does not act to void a valid contract.

Section 15.1 deals with situations where the contractor presents the homeowner with a written offer containing provisions whereby the homeowner agrees to submit all disputes to arbitration and waive her right to a trial by jury. See 815 ILCS 513/15.1 (West 2006).

Section 15.1(

b) requires the contractor to give the homeowner the “option of accepting or rejecting both the arbitration clause and the jury trial waiver clause.” 815 ILCS 513/15.1(b) (West 2006). It also requires that the homeowner sign “her name and write the word ‘accept’ or ‘reject’ in the margin next to each *** clause[ ].” 815 ILCS 513/15.1(b) (West 2006).

Section 15.1(

c) merely states: “Failure to advise a consumer of the presence of the binding arbitration clause or the jury trial waiver clause or to secure the necessary acceptance, rejection or consumer signature as provided in this

Section shall render null and void each clause that has not been accepted or rejected and signed by the consumer.” (Emphasis added.) 815 ILCS 513/15.1 (West 2006). In using

section 15.1 to reject the builder’s claim that

section 30 does not bar oral contracts, the Miller court has misread and incorrectly applied

section 15.1. Had the legislature intended to allow a contractor’s “unlawful violation” to be used to void a valid contract, it could have included such language in

section 30, as it did in

section 15.1.

Loading document…