Fandel v. Allen

• Decision Date: 14 January 2010
• Docket Number: No. 3-08-0237.,3-08-0237.
• Citation: 937 N.E.2d 1124,398 Ill.App.3d 177,344 Ill.Dec. 783
• Parties: David W. FANDEL, Individually and d/b/a Fandel Construction, Plaintiff-Appellant, v. Tiffany ALLEN, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

937 N.E.2d 1124 398 Ill.App.3d 177 344 Ill.Dec. 783 David W. FANDEL, Individually and d/b/a Fandel Construction, Plaintiff-Appellant, v. Tiffany ALLEN, Defendant-Appellee. No. 3-08-0237. Appellate Court of Illinois, Third District. Jan. 14, 2010.

Roger C. Bolin (argued), Boyle & Bolin, Hennepin, IL, for David W. Fandel.

James R. Angel (argued), May, May, Angel & Harris, Princeton, IL, for Tiffany Allen.

Justice McDADE delivered the opinion of the court:

[344 Ill.Dec. 784, 398 Ill.App.3d 178]

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 plaintiff's 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 plaintiff's 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 mechanics' lien 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, 244 Ill.Dec. 646, 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, 244 Ill.Dec. 646, 726 N.E.2d at 625. A court should interpret a statute as a whole so that no term is rendered superfluous or meaningless.

[344 Ill.Dec. 785, 937 N.E.2d 1126, 398 Ill.App.3d 180]

Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill.2d 262, 270, 230 Ill.Dec. 991, 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, 233 Ill.Dec. 80, 700 N.E.2d 181, 187 (1998); Sears Roebuck & Co. v. Acceptance Insurance Co., 342 Ill.App.3d 167, 171, 275 Ill.Dec. 965, 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: '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.'' 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 [citations] 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 HRRA 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 nor 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

[344 Ill.Dec. 786, 937 N.E.2d 1127]

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)).¹ 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, 294 Ill.Dec. 844, 831 N.E.2d 1169 (2005), and the Fourth District's decision in Smith v. Bogard, 377 Ill.App.3d 842, 316 Ill.Dec. 476, 879 N.E.2d 543 (2007).² Since that time the First District decided K. Miller Construction Co. Inc. v. McGinnis, 394 Ill.App.3d 248, 332 Ill.Dec. 857, 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 mechanics' 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 HRRA 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 505/10(a) (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, 294 Ill.Dec. 844, 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

[344 Ill.Dec. 787, 937 N.E.2d 1128]

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, 294 Ill.Dec. 844, 831 N.E.2d at 1173.

In addition, we affirmed the trial court's dismissal of the Slepians' CFA counts acknowledging that the trial court was the proper entity...