dissenting:
The court’s decision today rests on the assumption that the Home Repair and Remodeling Act is an affirmative defense to the cause of action asserted in this case. The court’s opinion, however, never addresses if this assumption is correct. The court’s analysis is therefore incomplete. Additionally, the court’s decision rests upon its discussion of the relationship of a “subcontractor” to a “general contractor.” This is problematic for a number of reasons, not the least of which is the fact that the court’s understanding of that relationship comes from “facts” not found in the record. In fact, operation of the Home Repair and Remodeling Act in this case has nothing to do with notions regarding the relationship between general and subcontractors at all — the Act does not even use the terms, a fact all but ignored by the court. Instead, the Act concerns only the nature of work done and whether the work has been done pursuant to the Act’s requirements concerning accuracy of communications about that work to the consumer. Facts about these things are entirely underdeveloped in this record, a fault of plaintiffs complaint to be sure, but a fault that the court condones. In utterly failing to allege any specifics about the contract in this case and the work undertaken, the complaint hardly offers a proper foundation for this court’s first opportunity to address the Home Repair and Remodeling Act.
The court is not bothered by any of this, or the niceties of proper procedure for that matter. The result is an opinion of near-advisory nature and a confusing one at that. Readers of the court’s opinion may try, as I have, to determine exactly what the court’s ruling is. As far as I can perceive, it is this: the Home Repair and Remodeling Act applies only to entities that contract directly with consumers and, to the extent that plaintiff claims that it was not such an entity, the Act does not apply to it. This perhaps would be an acceptable ruling, if there were any basis in the record for it. The record, however is far too underdeveloped to allow for that conclusion, and I therefore respectfully dissent.
Procedural Background & Controlling Principles
The first indication that the court’s opinion is offtrack appears early on in its “Background” section. In a footnote, the court explains that because neither party has “claimed that plaintiff was anything other than a subcontractor,” it need not address the fact that the record reflects that plaintiff may have “ceased to act as a subcontractor.” 228 Ill. 2d at 285 n.1. The court asserts that this discrepancy has no bearing on its analysis because such a dispute is a “factual question and beyond the scope of this opinion.” 228 Ill. 2d at 285 n.1.
I am not entirely sure what the court means by “beyond the scope of this opinion.” This case is before us on the dismissal of plaintiffs complaint pursuant to section 2 — 619 of the Code of Civil Procedure (735 ILCS 5/2 — 619 (West 2004)). Generally, the existence of such a disputed question of fact is enough, in and of itself, to preclude dismissal under section 2 — 619, as was explained in Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115 (1993). Based on statements made in the parties’ affidavits, I disagree that “neither party has claimed that plaintiff was anything other than a subcontractor.” The parties are in dispute about plaintiff’s status. In my opinion, the existence of a disputed factual question is not “beyond the scope” of an opinion that supposedly addresses whether the circuit court correctly dismissed the cause of action under section 2 — 619.
It could be said that all of the problems in today’s opinion stem from the court’s inability to properly frame the central issue before it. As I have noted, the question raised in this appeal is whether the circuit court properly dismissed plaintiffs complaint. The court, however, sees the issue differently, stating that, in this appeal, it is asked “to decide whether and to what extent the *** Act applies to subcontractors.” 228 Ill. 2d at 288. The court’s failure to accurately recognize the issue leads it to assert that the standard of review in this case is de novo because the case is “one of statutory interpretation.” 228 Ill. 2d at 286. This, of course, is wrong. Athough the circuit court’s decision to dismiss raised an ancillary question concerning the interpretation of a statute (a legal question to which rulings made by the circuit court are given no deference on appeal), the standard of review in all appeals, including this one, is governed by the circuit court’s ultimate disposition, nothing else. In this case, that disposition was the dismissal of plaintiffs complaint pursuant to section 2 — 619. An appeal from such a ruling is the “same in nature” as an appeal following the grant of summary judgment and is “likewise a matter given to de novo review.” Kedzie, 156 Ill. 2d at 116. The reviewing court must consider whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law. Kedzie, 156 Ill. 2d at 116-17. See also 4 R. Michael, Illinois Practice §41.9 (1989).
Defendant’s motion to dismiss was presumably brought pursuant to subsection (a)(9) of section 2 — 619. I say “presumably” because the motion does not specify the subsection under which it was brought, a fact that does not appear to bother the court much.2 Subsection (a)(9) is appropriate where the basis asserted for dismissal relies on “affirmative matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2 — 619(a)(9) (West 2004). The important point is that a section 2 — 619(a)(9) motion “admits the legal sufficiency of the plaintiffs cause of action much in the same way that a section 2 — 615 motion to dismiss admits a complaint’s well-pleaded facts.” Kedzie, 156 Ill. 2d at 115. However, such motions do not admit conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest. Meyer v. Murray, 70 Ill. App. 3d 106 (1979).
What, then, did plaintiff allege in its complaint? The complaint alleged in conclusory fashion that, over the course of a five-month period in 2004, plaintiff “furnished sub-contractor services, which consisted of providing electrical materials, equipment, labor and services” at defendants’ residence. The complaint, all of a page and a half, alleged that “no contract existed between plaintiff and defendants to govern the method by which plaintiff would be compensated for its services.” Plaintiff sought the reasonable value of its services. The complaint otherwise failed to specifically allege what “subcontractor services” were actually performed or even the scope of its subcontract in relation to the rest of the general contract.
2I find it ironic that the court gives the parties a pass on the shoddy pretrial practice that took place in the circuit court, but then seizes, in its typical arbitrary fashion (see, e.g., People v. McCarty, 223 Ill. 2d 109 (2006) (reaching argument despite defendant’s failure to comply with Rule 315)), on defendants’ failure to follow Rule 315.
All of the other facts in this case come by way of affidavits submitted for consideration upon the motion to dismiss. The affidavits defendants attached to their motion stated that they did not enter into any written contract with plaintiff and did not receive any pamphlet required by the Home Repair and Remodeling Act. The affidavit of Michael J. O’Brien, which was attached to plaintiff’s response, stated that plaintiff contracted with Apex Builders, Inc., the general contractor, “for electrical material and services to be installed and/or performed” at defendant’s residence. O’Brien’s affidavit stated that Apex had a “contractual relationship” with defendants. The affidavit stated further that, “during an initial walk-through,” defendants “approved the preliminary plans and authorized said work to begin.” Plaintiff “performed services including but not limited to installation of conduit, brackets, electrical boxes, recessed lighting and bathroom fans.”
That affidavit also stated, however, that other work, outside of Apex’s contract, was performed by plaintiff. O’Brien’s affidavit stated that “during the same initial walk-through, [defendants] requested that [plaintiff] provide additional material and services not included in the original plan including but not limited to under-cabinet lighting; television and data wiring; and full electrical services to an additional family room and an additional bathroom.” (Emphasis added.)
Importantly, O’Brien’s affidavit says nothing about the central concern for this case: whether the recovery sought by plaintiff represented costs for work “not included in the original plan” as opposed to costs for work that plaintiff performed under Apex’s contract with the defendants.
Finally, defendants supported their reply with affidavits which stated that neither Apex nor plaintiff provided them “with a written agreement or change order for additional work claimed by plaintiff, namely under-cabinet lighting, television and data wiring, and full electrical services to an additional family room and an additional bathroom.” Defendants also stated that they were never “provided with an updated estimate of the cost for any such ‘additional work.’ ”
What are the consequences of these alleged facts? A section 2 — 619 motion is designed to test, like a motion for summary judgment, if a material or genuine disputed question of fact is raised. If so, the circuit court may decide the motion
“upon the affidavits and evidence offered by the parties, or may deny the motion without prejudice to the right to raise the subject matter of the motion by answer and shall so deny it if the action is one in which a party is entitled to a trial by jury and a jury demand has been filed by the opposite party in apt time.” 735 ILCS 5/2 — 619(c) (West 2004).
See also Castro v. Chicago, Rock Island & Pacific R.R. Co., 83 Ill. 2d 358 (1980). Therefore, section 2 — 619, unlike a motion for summary judgment, allows the trial judge the discretion to litigate disputed questions of fact if a jury demand has not been made. In exercising this discretion, the judge may hear and determine the merits of the dispute based on the pleadings, affidavits, counter-affidavits, and other evidence presented, but may not weigh conflicting affidavits. In re Estate of Silverman, 257 Ill. App. 3d 162 (1993). When presented with conflicting affidavits, the judge must hold “an evidentiary hearing” at which “the unresolved issue or issues of fact must be determined on the basis of a preponderance of the evidence.” 4 R. Michael, Illinois Practice §41.8, at 336 (1989), citing Chapman v. Huttenlocher, 125 Ill. App. 2d 39 (1970); Calloway v. Kinkelaar, 168 Ill. 2d 312, 331-32 (1995) (Freeman, J., specially concurring) (noting the shifting burdens in section 2 — 619 practice).
Application of the Law
Whether the circuit court correctly dismissed plaintiffs complaint turns upon whether the Act has any application to this case in light of the facts actually alleged, and not on generalizations about the relationship between subcontractors and contractors. As an initial matter, I note that both this court and the appellate court have accepted the underlying premise of defendants’ section 2 — 619 motion — that the Act serves as an affirmative defense to plaintiff’s cause of action. As a result, neither court has engaged in any analysis on the question of whether the legislature intended, by virtue of the Act’s passage, to abolish the common law remedy of quantum meruit or even to provide individual consumers like defendants with a private right of action to enforce violations of the Act. Certainly, the plain language of the Act is silent as to both of these related issues. The Act’s stated purpose is to “increase consumer confidence, reduce the likelihood of disputes, and promote fair *** practices” between consumers and those “engaged in the business of making home repairs or remodeling” by way of “improved communications” and “accurate representations.” 815 ILCS 513/5 (West 2004); see also Smith v. Bogard, 377 Ill. App. 3d 842 (2007). To that end, the Act requires that prior to initiating home repairs or remodeling work for over $1,000, a written contract must be presented to the customer. 815 ILCS 513/15 (West 2004). A written pamphlet that explains consumers’ rights must also be presented to the customer by the home repairer or remodeler. 815 ILCS 513/20 (West 2004). As I noted at the outset of this separate opinion, the Act does not speak in terms of subcontractors and contractors. Rather, the Act makes it unlawful for those who engage in home repair 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.” 815 ILCS 513/30 (West 2004).3 The Act does not contain language that explicitly provides that violations of the 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 2004). In enforcing the Act, either the Attorney General or the State’s Attorney
“may accept an assurance of voluntary compliance from anyone engaged in any conduct, act, or practice deemed in violation of this Act. Failure to perform the terms of any such assurance constitutes prima facie evidence of a violation of this Act.” 815 ILCS 513/35 (West 2004).
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.] shall be available to him or her for enforcement of this Act ***.” 815 ILCS 5/35 (West 2004). Moreover, “any violation of this Act shall constitute a violation of the Consumer Fraud and Deceptive Business Practices Act.” 815 ILCS 513/35 (West 2004). Given the plain language of the statute, I believe analysis on the question of whether the Act is, in fact, an affirmative defense as defendants assert is warranted. This is particularly so in this case which marks this court’s first opportunity to interpret this recently enacted legislation.
Rather than provide that analysis, the court chooses to confine the focus of this case to the issue of whether the terms of the Act apply to subcontractors such as plaintiff. In this regard, the court again accepts, without question, the assertions of the litigant — this time plaintiffs assertion that it is a subcontractor. The court’s analysis proceeds then on the assumption that plaintiff is a subcontractor even though an examination of the record shows that plaintiffs subcontractor status is far from clear. The pleadings and affidavits show that the dispute between the parties lies in whether the work identified in plaintiffs complaint was part of the project that was the subject of defendants’ original remodeling contract with Apex. In other words, was the work performed by plaintiff for defendants specified in a written contract signed by them in accordance with section 30 of the Act? If the services identified in plaintiff’s complaint were performed pursuant to a written general contract that was signed by the homeowner, section 30 of the Act has no application to this case because the work was performed pursuant to the requisite written contract. However, if the services identified in the complaint were not part of the written general contract signed by the homeowner, as both plaintiffs and defendants’ affidavits suggest, then it would appear that plaintiff has run afoul of the Act in that it “remodel [ed] or ma[d]e repairs or charge[d] for remodeling or repair work before obtaining a signed contract or work order over $1,000.” 815 ILCS 513/30 (West 2004).
None of these concerns, however, can be answered from the record in front of us. What the case needs for proper disposition is development of evidence, as the complaint failed to allege the relevant facts and the affidavits merely hinted at them. The relevant questions are: What was the scope of the work defined in the contract between defendants and Apex? What portion of that work did plaintiff agree with Apex to perform? What was the extent of the additional work ordered by defendants and agreed to by plaintiff? Was there a written contract signed by the homeowner with respect to this additional work? Without answers to these factual questions, it is impossible to discern the Act’s applicability in this case.
Given the existence of these factual questions, the circuit court’s dismissal of plaintiffs complaint was, at best, premature and, at worst, incorrect. The record before us does not indicate that plaintiff filed a jury demand at the commencement of the proceedings as required by section 2 — 1105 of the Code of Civil Procedure. See 735 ILCS 5/2 — 1105 (West 2004) (requiring that a plaintiff “desirous” of a jury “file a demand” with the clerk “at the time the action is commenced”). There being no jury demand having been made by the opponent of the motion, I would therefore vacate the circuit court’s order of dismissal and remand the cause with instructions that the circuit court litigate these disputed questions in an evidentiary hearing.4 If the work performed by plaintiff for defendants was, indeed, covered by the written general contract signed by the homeowner, then the Act has no application to this case because a written contract was in existence, as the Act requires, and the motion should be denied. If the additional work was not subject to a written contract, then the Act is implicated.5
Rather than construe the actual terms of the Act and apply them to the facts — such as they are — the court’s analysis is dependent on its discussion about contractors and subcontractors. Worse yet, the court relies on its own notions regarding these terms. Indeed, after setting forth the standard of review — which the court gets right, but for the wrong reason — it prefaces its analysis by noting that “the use of general contractors and subcontractors is a common business practice in the home repair and remodeling industry.” 228 Ill. 2d at 286. Further musings on industry practice ensue. 228 Ill. 2d at 286-87. From where does this information come? Were it even relevant, none of this is alleged in the complaint or supplied by other, appropriate evidence related to the motion. The discussion is not appropriate by way of judicial notice notwithstanding that the term “subcontractor” is given to various meanings. See 770 ILCS 60/21 (West 2004) (defining subcontractor under the Mechanics Lien Act as “every mechanic, worker *** who shall furnish any materials *** or perform services or labor for the contractor”); Baker & Conrad, Inc. v. Chicago Heights Construction Co., 364 Ill. 386, 394-96 (1936) (defining “subcontractor” under Worker’s Compensation Act as those “contracting directly with the original contractor” as well as those “who have contracted with one whose contract is subordinate to a previous agreement, regardless of whether it is the original or general contract” and noting that “subcontractor” has a less restrictive meaning under the Worker’s Compensation Act than under the Mechanics Lien Act). Given that the Act does not even speak in terms of contractors and subcontractors, it is both unnecessary and unwise for the court to engage in this discussion.
Unfortunately, the court’s discussion leads to an analysis based on little more than conjecture. Specifically, the court states that “ [subcontractors do not directly contract with a homeowner/customer” so the Act cannot apply to them. 228 Ill. 2d at 292. However, even the paltry facts before us suggest that such a generalization is not always true. Here, plaintiff, Apex’s subcontractor, may have directly contracted with the homeowner/ customer about additional work that was not a part of the original contract. The court further states that “[subcontractors, by virtue of their working for a general contractor, do not make ‘representations’ to a homeowner” 228 Ill. 2d at 291. Again, this generalization is not always true, as the record before us suggests. Plaintiff may have made “representations” to the homeowner even though it was “working for a general contractor.” Because the court’s discussion is not founded in either fact or law, the result is an interpretation of the Act that is oftentimes difficult to understand and even more difficult to apply. By directly contracting with the homeowner and making direct representations to the homeowner, plaintiff, described throughout the court’s opinion as a “subcontractor,” would seem to fall within the class of home repairers and remodelers that the legislature sought to regulate in the Act.
The court’s treatment of this case is unfortunate because the Act is a relatively new piece of legislation that has been the subject of few published decisions. In fact, in addition to the appellate court’s opinion in this case, only two other decisions have addressed questions of the Act’s interpretation. See Smith v. Bogard, 377 Ill. App. 3d 842 (2007); Central Illinois Electrical Services, L.L.C. v. Slepian, 358 Ill. App. 3d 545 (2005). A thorough, fact-based opinion from this court would have been help-fill to those who work in the home repair and remodeling industry as well as to the consumers the Act intended to protect.
JUSTICE BURKE joins in this dissent.
I note that section 30 makes only the failure to obtain the signed written contract required in section 15 “unlawful.” 815 ILCS 5/30 (West 2004). Section 30 does not contain a similar provision with respect to the consumer rights brochure required in section 20.
The court’s opinion provides little guidance to either the parties or the trial judge with respect to the remand. Based on the conclusory allegations in the complaint and the few additional facts offered in the affidavits, the record here is simply too thin for the court to say with certainty that the circuit court’s dismissal was wrong. That is why I would remand for further proceedings on the section 2 — 619 motion. The court’s opinion reverses the dismissal order but what happens next? In light of the inattention to procedural detail shown by the parties thus far, I find the court’s failure to provide specific directions to be particularly problematic.
I express no opinion as to (i) whether the Act provides consumers with a private right of action to enforce violations of the Act in this manner and (ii) whether, in enacting the Act, the legislature intended to abolish the common law remedy of quantum meruit. I submit that these are the important questions under the Act. See K.A.L.M. Construction, Inc. v. Stiefbold, No. 2 — 07—1131 (December 4, 2007) (unpublished order under Supreme Court Rule 23), 227 Ill. 2d 582 (2008). I might also point out that the circuit court here, in trying to help the parties to properly frame the issue, repeatedly raised the issue of quantum meruit.