Artisan Design Build, Inc. v. Bilstrom

• Decision Date: 22 September 2009
• Docket Number: No. 2-08-0855.,2-08-0855.
• Citation: 337 Ill. Dec. 238,397 Ill. App. 3d 317,922 N.E.2d 361
• Parties: ARTISAN DESIGN BUILD, INC., Plaintiff-Appellant, v. David BILSTROM and Jody Bilstrom, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

922 N.E.2d 361

ARTISAN DESIGN BUILD, INC., Plaintiff-Appellant, v. David BILSTROM and Jody Bilstrom, Defendants-Appellees.

No. 2-08-0855.

Appellate Court of Illinois, Second District.

September 22, 2009.

As corrected March 4, 2010.

John P. Lynch Jr., Matthew J. Weiss, Cremer, Shaughnessy, Spina, Jansen & Siegert, LLC, Chicago, for Artisan Design Build, Inc.

James F. McCluskey, James S. Harkness, Lauryn E. Parks, Momkus McCluskey, LLC., Lisle, for David Bilstrom and Jody Bilstrom.

Presiding Justice ZENOFF delivered the opinion of the court:

Plaintiff, Artisan Design Build, Inc., appeals from an order of the circuit court of Du Page County dismissing its complaint against defendants, David and Jody Bilstrom, for failing to furnish defendants with a consumer rights brochure, in violation of the Illinois Home Repair and Remodeling Act (Act) (815 ILCS 513/20 (West 2006)). The lawsuit arose out of a contract to remodel defendants' Hinsdale Illinois, home. For the reasons that follow, we affirm the judgment of the circuit court in part and reverse in part, and we remand the cause.

BACKGROUND

On April 18, 2008, plaintiff filed an amended verified complaint for foreclosure of its mechanic's lien and other relief. In count I of the amended complaint, plaintiff sought to foreclose its mechanic's lien; count II alleged a breach of contract; and count III pleaded a cause of action for unjust enrichment. The amended complaint alleged the following facts. Plaintiff is a contractor with its principal place of business in Monroe, Wisconsin. Defendants are a married couple residing in Hinsdale, Illinois. On or about January 10, 2005, defendants entered into a written contract with plaintiff to make improvements to defendants' home for the sum of $534,970.¹ The parties agreed to eight change orders, which significantly increased the contract price. Plaintiff submitted six draws to defendants, which they paid. Defendants failed to pay the seventh draw despite plaintiff's repeated requests for payment. Plaintiff alleged that it provided material and labor pursuant to the contract terms, including the change orders, until September 20, 2006, at which time the project was "substantially complete." According to the amended complaint, defendants locked plaintiff out of the project on September 20, 2006, and advised plaintiff that they had hired another contractor to complete the work. Plaintiff alleged that it was not given an opportunity to cure any defects and that, as of September 20, 2006, after allowing for all credits, defendants owed it in excess of $208,695.69.

On May 23, 2008, defendants filed a motion to dismiss the amended complaint pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2006)). The first part of the motion to dismiss was based on the Act and alleged that plaintiff's failure to provide defendants with the consumer rights brochure, its failure to commence or complete work within the contracted time period, and its failure to obtain and maintain the requisite insurance were all violations of the Act, which precluded plaintiff's recovery under its legal and equitable claims. The second part of the motion to dismiss alleged that plaintiff's breach of the contract precluded recovery. After plaintiff requested discovery on the breach-of-contract portion of the motion to dismiss, defendants withdrew the breach-of-contract argument as a basis for dismissal "in order to proceed to a ruling on a pure question of law" and to preserve the scheduled trial date. On June 23, 2008, the trial court entered an order withdrawing the breach-of-contract argument in support of the motion to dismiss "in its entirety." On August 15, 2008, the trial court granted the motion to dismiss on the basis that plaintiff admittedly did not furnish defendants with the consumer rights brochure as provided for in the Act.

Article 10, section 10.1, of the contract provided that disputes between the parties "shall be subject to and decided by mediation or arbitration." According to transcripts, after plaintiff filed its original complaint in the circuit court and before it filed its amended complaint, the parties by agreement continued the case from time to time, citing efforts to resolve the matter by informally exchanging documents and experts' opinions. When the case did not informally resolve, plaintiff filed an arbitration complaint with the American Arbitration Association, alleging that defendants breached the contract. In response, defendants filed a motion in the circuit court to stay and strike arbitration, arguing that the contract was void because of plaintiff's failure to follow the requirements of the Act and that the arbitration clause in the contract was void because plaintiff waived it by filing suit in the circuit court. The trial court ruled that plaintiff waived the arbitration clause by filing the lawsuit, "which requested complete relief." Thereafter, plaintiff filed the amended complaint, which, as noted above, the trial court dismissed with prejudice. Plaintiff filed a timely notice of appeal.

ANALYSIS

Plaintiff raises two issues in this appeal. It first contends that it did not violate the Act and the trial court erred in dismissing the amended complaint. Plaintiff's second issue is that it did not waive the contract's arbitration clause. Before we address either issue on the merits, we will dispose of two outstanding motions we ordered taken with the case.

The first is plaintiff's motion for leave to cite Kunkel v. P.K. Dependable Construction, LLC, 387 Ill.App.3d 1153, 327 Ill.Dec. 648, 902 N.E.2d 769 (2009), as additional authority, which we grant. The second is plaintiff's motion to strike the introductory paragraph of defendants' brief and to strike the statement of facts in defendants' brief. Plaintiff asserts that both sections offend supreme court rules.

Supreme Court Rule 341(h)(2) (210 Ill.2d R. 341(h)(2)) governs the requirements of the introductory paragraph. It provides that the introductory paragraph consist of a statement of the nature of the action, the judgment appealed from, whether the judgment is based upon a jury's verdict, and whether any question is raised on the pleadings. 210 Ill.2d R. 341(h)(2). Moreover, only the appellants' brief is required to contain an introductory paragraph. The appellee's brief may include one to the extent that the presentation by the appellant is deemed unsatisfactory. 210 Ill.2d R. 341(i). Argument is not to be included in the introductory paragraph. SBC Holdings, Inc. v. Travelers Casualty & Surety Co., 374 Ill.App.3d 1, 15, 313 Ill.Dec. 250, 872 N.E.2d 10 (2007). Defendants' introductory paragraph is two pages long with one footnote. As vigorously as defendants try to justify it, the entire introductory paragraph is argumentative in violation of the rule. Accordingly, we grant the motion to strike.

Plaintiff moves to strike defendants' statement of facts as argumentative, fraught with misstatements, and containing material from their withdrawn argument in support of the motion to dismiss, that plaintiff breached the contract. Rule 341(h)(6) (210 Ill.2d R. 341(h)(6)) provides that the statement of facts shall contain the facts necessary to an understanding of the case, stated accurately and fairly, without argument or comment, and with appropriate reference to the pages of the record. We agree with plaintiff that defendants' statement of facts in large part is argumentative in violation of the rule. The last sentence of the opening paragraph is illustrative: "[Defendants], however, have done nothing wrong and have been subjected to [plaintiff's] breaches of the law for far too long." Much of the statement of facts is an argument justifying why defendants stopped paying plaintiff, punctuated with underlining and exclamation points. This portion of the statement of facts appears to be an effort to sway the court with matters not germane to the issues on appeal. Defendants portray this as necessary to counter what they perceive as similar tactics by plaintiff. We remind defendants' counsel that they are required to follow Rule 341(h)(6), having opted to include a statement of facts in the appellees' brief. Village of Roselle v. Commonwealth Edison Co., 368 Ill.App.3d 1097, 1103, 307 Ill.Dec. 1, 859 N.E.2d 1 (2006). Rather than strike the entire statement of facts, we disregard the portions that violate the rule and admonish counsel for defendants to comply with the supreme court rules in the future. Village of Roselle, 368 Ill.App.3d at 1103, 307 Ill.Dec. 1, 859 N.E.2d 1. Accordingly, plaintiff's motion to strike the statement of facts is denied.

The first issue in this appeal is whether plaintiff's legal and equitable claims were subject to dismissal for its failure to furnish defendants with a consumer rights brochure as provided in section 20 of the Act (815 ILCS 513/20 (West 2006)), which specifically provides as follows:

"(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: `I, 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. The acknowledgment form shall be in duplicate and incorporated into the pamphlet. The original acknowledgment form shall be retained by the contractor and the duplicate copy shall be retained within the pamphlet by the consumer.

(b) For any contract for $1,000 or under, any person engaging in the business of home repair and...