Fleissner v. Fitzgerald

• Decision Date: 06 August 2010
• Docket Number: No. 2-09-0805.,2-09-0805.
• Citation: 403 Ill.App.3d 355,937 N.E.2d 1152,344 Ill.Dec. 811
• Parties: Hans FLEISSNER, doing business as Hans Fleissner Builders, Plaintiff-Appellant, v. Timothy R. FITZGERALD and Tracy E. Fitzgerald, Defendants-Appellees (The City of Rockford Water Department, Unknown Owners, and Nonrecord Claimants, Defendants).
• Court: United States Appellate Court of Illinois

937 N.E.2d 1152
403 Ill.App.3d 355
344 Ill.Dec. 811

Hans FLEISSNER, doing business as Hans Fleissner Builders, Plaintiff-Appellant,
v.
Timothy R. FITZGERALD and Tracy E. Fitzgerald, Defendants-Appellees (The City of Rockford Water Department, Unknown Owners, and Nonrecord Claimants, Defendants).

No. 2-09-0805.

Appellate Court of Illinois,
Second District.

Aug. 6, 2010.

937 N.E.2d 1155

Jody L. Beilke, Barrick, Switzer, Long, Balsley & Van Evera, LLP, Rockford, for Hans Fleissner.

Scott C. Sullivan, Joel M. Huotari, WilliamsMcCarthy LLP, Rockford, for City of Rockford Water Dept., Timothy R. Fitzgerald, Tracy E. Fitzgerald.

Justice BOWMAN delivered the opinion of the court:

344 Ill.Dec. 814, 403 Ill.App.3d 356

Plaintiff, Hans Fleissner, doing business as Hans Fleissner Builders, appeals the circuit court order dismissing his complaint on a motion filed by defendants, Timothy R. Fitzgerald and Tracy E. Fitzgerald, pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2008)). We reverse and remand.

I. BACKGROUND

On May 7, 2009, plaintiff filed his first amended complaint, which alleged the following. Plaintiff was in the business of general contracting residential and commercial improvements in northern Illinois and southern Wisconsin. On May 15, 2006, defendants orally contracted with plaintiff for a remodeling project at defendants' home in

403 Ill.App.3d 357

Rockford. Plaintiff performed the work between May 18, 2006, and March 1, 2007, within the scope of the oral contract and within the scope of section 3 of the Mechanics Lien Act (770 ILCS 60/3 (West 2008)). Plaintiff billed defendants a total of $183,122.50 for the project, of which defendants paid $143,355.46. After applying a $1,200 credit for some damaged window screens, plaintiff alleged that defendants still owed $38,447.04 for the work performed under the oral contract.

Count I of the amended complaint pleaded a foreclosure claim of the mechanic's lien that plaintiff recorded on February 17, 2009, in the sum of $48,456, which included interest and attorney fees. Count II consisted of a breach-of-an-oral-contract claim. Count III was an unjust-enrichment claim, alleging that defendants have unjustly retained the benefits of

344 Ill.Dec. 815, 937 N.E.2d 1156

plaintiff's services in the improvement of the property. Count IV pleaded quantum meruit, alleging that plaintiff conferred benefits upon defendants by improving their property and that it was unjust for defendants to retain the benefits without properly compensating plaintiff.

On March 18, 2009, defendants moved to dismiss plaintiff's complaint in its entirety pursuant to section 2-619(a)(9) of the Code because plaintiff violated provisions of the Home Repair and Remodeling Act (Act) (815 ILCS 513/1 et seq. (West 2008)). Specifically, defendants argued that, plaintiff breached the Act by failing to work under a written contract pursuant to section 15 of the Act (815 ILCS 513/15 (West 2008)) and by failing to provide defendants a copy of the "Home Repair: Know Your Consumer Rights" pamphlet pursuant to section 20 of the Act (815 ILCS 513/20 (West 2008)). Citing Smith v. Bogard, 377 Ill.App.3d 842, 848, 316 Ill.Dec. 476, 879 N.E.2d 543 (2007), defendants argued that, because plaintiff's violations of the Act constituted an "unlawful act" under section 30 of the Act (815 ILCS 513/30 (West 2008)), the oral contract was void and plaintiff's claims were barred.

Plaintiff responded to defendants' motion by arguing that the Act did not clearly provide an affirmative defense to defendants. The legislative history of the Act demonstrated that the Act was intended to protect homeowners from the fraudulent business practices of those contractors that directly solicited offers for work. Plaintiff argued that defendants contacted him to perform the work because of his previous work for Tracy's father. Thus, defendants did not fall into the intended protected class of the Act. Further, no case law addressed whether the Act barred a contractor's recovery under equitable claims, such as quantum meruit and unjust enrichment. Plaintiff also argued that the Act did not bar him from recovering under the theory of an oral contract. Finally, plaintiff argued that defendants should be equitably estopped from using the Act as an affirmative defense where

403 Ill.App.3d 358

defendants understood and recognized the binding nature of their oral contract with plaintiff.

On July 1, 2009, the trial court issued a written order stating that plaintiff failed to comply with the provisions of the Act. Therefore, citing Smith, plaintiff was precluded from recovering any amount that he claimed was due for the work performed, whether based upon a legal or an equitable theory. The trial court dismissed the complaint with prejudice and determined that the lien referred to in count I was void and unenforceable. The order included language pursuant to Supreme Court Rule 304(a) (210 Ill.2d R. 304(a)). Plaintiff timely appealed. On appeal, plaintiff makes many of the same arguments, including: (1) his equitable claims are not barred by the Act; (2) the legislative history of the Act makes the Act inapplicable to the facts at bar; and (3) equitable estoppel prevents defendants from asserting the Act as an affirmative defense.

II. ANALYSIS

Section 2-619(a)(9) permits dismissal where the "claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 2008). An "affirmative matter" in a section 2-619 motion is something in the nature of a defense that negates the cause of action completely. Tom Geise Plumbing, Inc. v. Taylor, 396 Ill.App.3d 289, 300, 335 Ill.Dec. 145, 917 N.E.2d 1209 (2009). A motion to dismiss under section 2-619 admits all well-pled facts in the complaint and all reasonable inferences that may be drawn therefrom.

344 Ill.Dec. 816, 937 N.E.2d 1157

In re Chicago Flood Litigation, 176 Ill.2d 179, 184, 223 Ill.Dec. 532, 680 N.E.2d 265 (1997). We review de novo a dismissal under section 2-619 of the Code. Tom Geise Plumbing, Inc., 396 Ill.App.3d at 300, 335 Ill.Dec. 145, 917 N.E.2d 1209.

We first reject plaintiff's argument that defendants are equitably estopped from raising the Act as an affirmative defense at all. Equitable estoppel would bar defendants from raising the Act as a defense where: (1) there were words or conduct by defendants that amounted to a misrepresentation or concealment of material facts; (2) defendants knew at the time the representations were made that they were untrue; (3) the truth respecting defendants' representations was unknown to plaintiff when the representations were made and when they were acted upon; (4) defendants intended or reasonably expected that their conduct or representations would be acted upon by plaintiff; (5) plaintiff, in good faith, reasonably relied upon the representations to his detriment; and (6) plaintiff acted, because of such representations or conduct, such that he would be prejudiced if defendants were permitted to deny the truth thereof. Vaughn v. Speaker, 126 Ill.2d 150, 162-63, 127 Ill.Dec. 803, 533 N.E.2d 885 (1988). Plaintiff failed to argue any of the six elements of

403 Ill.App.3d 359

equitable estoppel and failed to address what misrepresentations defendants made to induce plaintiff's detrimental reliance. Therefore, we reject plaintiff's claim that equitable estoppel bars defendants from raising the Act as an affirmative defense.

Further, we reject plaintiff's argument that the legislative history and statutory interpretation of the Act "do not provide for application" of the Act in this case because plaintiff was not a "fly by night" contractor that solicited business from defendants. We disagree that the Act applies only to contractors that solicit business and prey on the public, because the unambiguous language of the Act indicates that it applies to "persons engaged in the business of making home repairs or remodeling." 815 ILCS 513/5, 15, 20 (West 2008). Regardless of the legislative history of the Act, the plain language of the statute does not indicate that it applies only to persons engaged in the solicitation of home repair or remodeling business. See Artisan Design Build, Inc. v. Bilstrom, 397 Ill.App.3d 317, 327-28, 337 Ill.Dec. 238, 922 N.E.2d 361 (2009). Rather, it applies to any person who contracts with a homeowner for home repair or remodeling exceeding $1,000.

Before proceeding to plaintiff's final argument on appeal, we note that in plaintiff's headings, he argues that the trial court erred in dismissing all counts, including his foreclosure and breach-of-contract claims. However, plaintiff's argument section fails to address why the trial court erred in dismissing the foreclosure and breach-of-contract counts. Accordingly, any arguments relating to the dismissal of counts I and II are forfeited. 210 Ill.2d R. 341(h)(7); Gay v. Frey, 388 Ill.App.3d 827, 832, 328 Ill.Dec. 799, 905 N.E.2d 333 (2009).

We now consider plaintiff's final argument, that equitable remedies are available to contractors in spite of their violations of the Act. We admonish plaintiff for his failure to clearly argue that both his quantum meruit and his unjust-enrichment claims should not have been dismissed. The brief seems to focus only on the quantum meruit count. Regardless of plaintiff's mediocre argument on this issue, we find the minimal reference to both counts III and IV sufficient to review the dismissal of both counts.

The Act sets forth the policy behind it in section 5:

937 N.E.2d 1158, 344 Ill.Dec. 817

"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

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