concurring in part, dissenting in part, states:
I respectfully disagree with the majority’s holding that the trial court erred in concluding the Act did not apply to the instant case. The majority states “there is no exception under the Act for projects billed on a time and material basis, or projects that become unpredictable in scope and nature. To the contrary, the Act appears designed to help define some reasonable boundaries for a home improvement project. The Act requires an estimate of ‘reasonable particularity.’ ” 358 Ill. App. 3d at 549. By all accounts, the Slepian remodeling project was not one which became unpredictable in scope and nature. Rather, it was unpredictable in scope and nature from the outset, and therefore, it would have been impossible for CIES to provide a written estimate of the “total cost, including parts and materials listed with reasonable particularity” as required by section 15 (815 ILCS 513/15 (West 2002)).
At the beginning of the job, no particular plans or specifications had been provided by the Slepians. The owner of CIES and the electricians who worked in the home testified that at the beginning of the job, there was no way to know what the scope was going to be because Mrs. Slepian did not outline the details regarding the work she wanted done. She never provided an overview of the project, but, rather, she directed the electricians day by day, room by room, and fixture by fixture. No testimony was ever offered by the Slepians that they did in fact define the scope of the project at the outset so as to make an estímate of the total cost possible. The record reflects that Mrs. Slepian never expressed exactly what the project would entail at the beginning of the relationship. In fact, it is clear that she was not certain what she wanted CIES to accomplish because she changed her mind on a daily basis regarding the locations of fixtures, the switching, and the general layout, causing the CIES electricians to redo the same rooms multiple times. At one point, one of the electricians, who was an acquaintance of the Slepians, approached Mr. Slepian and told him that his wife was “racking one massive bill here” to which Mr. Slepian responded “don’t worry about it. She’s having the time of her life.” Cost was never mentioned at the outset of the relationship.
The majority opines that the Act required CIES to obtain a signed contract from the Slepians because the anticipated costs were over $1,000. It notes that the estimate must be of reasonable particularity but suggests that a contractor could provide an updated estimate as circumstances warrant. However, under the circumstances, any contract CIES could have drafted at the beginning of this relationship would have been meaningless from the start since a master electrical plan did not even exist. The majority states that the language of the Act is unambiguous, but this interpretation is overly simplistic.
The Act was drafted to protect consumers from home repair fraud. In fact, the Act directs contractors to provide customers with a pamphlet entitled “Home Repair: Know Your Consumer Rights” and sets out the exact language to be included in the pamphlet as follows:
“ ‘AVOIDING HOME REPAIR FRAUD
Please use extreme caution when confronted with the following warning signs of a potential scam:
(1) Door-to-door salespersons with no local connections who offer to do home repair work for substantially less than the market price.
(2) Solicitations for repair work from a company that lists only a telephone number or a post-office box number to contact, particularly if it is an out-of-state company.
(3) Contractors who fail to provide customers references when requested.
(4) Persons offering to inspect your home for free. Do not admit anyone into your home unless he or she can present authentic identification establishing his or her business status. When in doubt, do not hesitate to call the worker’s employer to verify his or her identity.
(5) Contractors demanding cash payment for a job or who ask you to make a check payable to a person other than the owner or company name.
(6) Offers from a contractor to drive you to the bank to withdraw funds to pay for the work.
CONTRACTS
(1) Get all estimates in writing.
(2) Do not be induced into signing a contract by high-pressure sales tactics.
(3) Never sign a contract with blank spaces or one you do not fully understand. If you are taking out a loan to finance the work, do not sign the contract before your lender approves the loan.
(4) Remember, you have 3 business days from the time you sign your contract to cancel any contract if the sale is made at your home. The contractor cannot deprive you of this right by initiating work, selling your contract to a lender, or any other tactic.
(5) If the contractor does business under a name other than the contractor’s real name, the business must either be incorporated or registered under the Assumed Business Name Act. Check with the Secretary of State to see if the business is incorporated or with the county clerk to see if the business has registered under the Assumed Business Name Act.
(6) Homeowners should check with local and county units of government to determine if permits or inspections are required.
(7) Determine whether the contractor will guarantee his or her work and products.
(8) Determine whether the contractor has the proper insurance.
(9) Do not sign a certificate of completion or make final payment until the work is done to your satisfaction.
(10) Remember, homeowners should know who provides supplies and labor for any work performed on your home. Suppliers and subcontractors have a right to file a lien against your property if the general contractor fails to pay them. To protect your property, request hen waivers from the general contractor.
BASIC TERMS TO BE INCLUDED IN A CONTRACT
(1) Contractor’s full name, address, and telephone number. Illinois law requires that persons selling home repair and improvement services provide their customers with notice of any change to their business name or address that comes about prior to the agreed dates for beginning or completing the work.
(2) A description of the work to be performed.
(3) Starting and estimated completion dates.
(4) Total cost of work to be performed.
(5) Schedule and method of payment, including down payment, subsequent payments, and final payment.
(6) A provision stating the grounds for termination of the contract by either party. However, the homeowner must pay the contractor for work completed. If the contractor fails to commence or complete work within the contracted time period, the homeowner may cancel and may be entitled to a refund of any down payment or other payments made towards the work, upon written demand by certified mail.
Homeowners should obtain a copy of the signed contract and keep it in a safe place for reference as needed.’ ” 815 ILCS 513/20 (West 2002).
After reviewing this language, it is clear that the Slepians do not fall into the class of consumers the legislature was seeking to protect and CIES does not fall into the category of contractors from whom the legislature was seeking to protect consumers. CIES did not employ door-to-door salesmen using high-pressure tactics. One of its electricians knew the Slepians socially and Mrs. Slepian asked him if he could come and take a look at the house because they had recently fired their general contractor and the electrician who had started the job went with him. The Slepians were not naive or inexperienced consumers in danger of being defrauded by CIES. In fact, CIES worked in the Slepians home for well over a year with the Slepians paying their monthly invoices in a timely fashion with no complaints as to the cost or the workmanship. For the Slepians to now complain that they were somehow disadvantaged by CIES’s failure to draft a contract at the beginning of the relationship is simply disingenuous.
Moreover, CIES would have been unable to draft a contract including the essential terms as set out by the pamphlet, because the Slepians never provided a specific or even a broad scope of the remodeling project. CIES would have been unable to describe the work to be performed with any specificity. The company could have provided a start date but the completion date would have been open-ended. Most importantly, CIES had no way of estimating the total cost of the project because the amount of labor and the cost of materials was unknown. For these reasons, the trial judge was correct in his determination that no specific estimate was possible and I would affirm his finding in favor of CIES regarding the mechanic’s lien. Therefore, I dissent from the majority’s opinion on this issue.
I concur with the majority’s opinion affirming the trial court’s rulings on the remaining issues.