specially concurring:
I concur, but write separately to point out some additional reasons as to why I believe that Justice McDade’s construction of the Home Repair Act is the correct one.
Nowhere does the Home Repair Act say that a contract that does not strictly comply with the statute is void or otherwise unenforceable. The section of the statute titled “Enforcement” contains no such language. 815 ILCS 513/35 (West 2006). It does not state that one who fails to get a signature on a written work order and/or hand out a consumer rights brochure cannot collect for his or her work. It does say that the Attorney General may take action against the contractor and it also points out that the homeowner has an action under the Consumer Fraud Act. See 815 ILCS 513/35 (West 2006). This statute is in derogation of the common law and must be strictly construed. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 809 N.E.2d 1248 (2004). Consequently, applying the rules of statutory construction, I believe that expressio unius est exclusio alterius applies.
At common law, a contract that is otherwise legal is not unenforceable simply because it is performed in an illegal manner as long as the subject matter is legal. Federal Land Bank of St. Louis v. Walker, 212 Ill. App. 3d 420, 571 N.E.2d 242 (1991). There is nothing inherently illegal about contracting to put a new roof on a house. For example, a contract to build a home or an addition to a home may violate municipal ordinances if done without the requisite permits. Nonetheless, the violation of the law in performing the contract does not render the contract unenforceable. Meissner v. Caravello, 4 Ill. App. 2d 428, 124 N.E.2d 615 (1955); Lavine Construction Co. v. Johnson, 101 Ill. App. 3d 817, 428 N.E.2d 1069 (1981); Mani Electrical Contractors v. Kioutas, 243 Ill. App. 3d 662, 611 N.E.2d 1167 (1993).
There are three appellate court cases to date dealing with the Act. Slepian was decided in 2005. Central Illinois Electrical Services, L.L.C. v. Slepian, 358 Ill. App. 3d 545, 831 N.E.2d 1169 (2005). A close reading of Slepian discloses that the decision states the Home Repair Act is applicable in a mechanic’s lien action. It does not even discuss the “So, what?” of that statement. It does not hold that the failure to strictly comply with the Home Repair Act renders a contract for home repair or remodeling unenforceable.
Smith v. Bogard is an interesting case. Smith v. Bogard, 377 Ill. App. 3d 842, 879 N.E.2d 543 (2007). There was an oral contract to build an addition to a home for “ ‘$20,000 or less.’ ” Smith v. Bogard, 377 Ill. App. 3d at 843. At some point before construction was completed, the homeowner paid the contractor $15,000. Upon completion, the contractor gave the homeowner a final bill for approximately $25,500 (25% more than the high estimate). The appellate court held that the contractor could not recover the additional $10,500 allegedly due because it failed to comply with the provisions of the Home Repair Act. Reasonable people can look at the Bogard case and decide that it seems like a very fair result based on a contractor attempting to overreach. One has to wonder whether the appellate court would have reached the same result had the homeowner paid nothing up front or had the homeowner countersued for the return of the $15,000 he paid up front. After all, if the contract is void and unenforceable because of a violation of the Home Repair Act, then the homeowner owed nothing, as the homeowner alleges she owes here. The Bogard court rejected the contractor’s claims based on breach of contract, unjust enrichment and quantum meruit. The contractor did not attempt to plead a cause of action under the Mechanics Lien Act. I might add that the result could have been the same even without applying the Home Repair Act by virtue of the defenses available to the homeowner under the Mechanics Lien Act. 770 ILCS 60/13 (West 2006).
The court in the Miller Construction case, in my opinion, got the right result with the wrong analysis. K. Miller Construction Co. v. McGinnis, 394 Ill. App. 3d 248, 913 N.E.2d 1147 (2009). I agree with Justice Wolfson that it makes no sense to deny contract damages on the basis that the contract violates public policy and then, in the next breath, to award equitable relief. K. Miller Construction Co., 394 Ill. App. 3d at 267, 913 N.E.2d at 1162-63 (Wolfson, J, dissenting).
However, Justice Wolfson further asserts that failing to perform home repair work in strict compliance with the Home Repair Act renders a contract to do so unenforceable. K. Miller Construction Co., 394 Ill. App. 3d at 267-68, 913 N.E.2d at 1162 (Wolfson, J., dissenting). He concludes that the legislature intended this result without any analysis to support that conclusion. I submit that this conclusion that performing a contract in violation of the law, renders the contract void and unenforceable flies in the face of the contract law discussed above and set forth and summarized nicely in Mani Electrical Contractors v. Kioutas, 243 Ill. App. 3d 662, 611 N.E.2d 1167 (1993). Justice Wolf-son’s dissent fails to acknowledge that it was not the legislature that said any violation of the Home Repair Act, ipso facto, renders the contract unenforceable; it was some judges. In an ironic twist, Justice Wolfson cites Chief Justice John Marshall in support of his judicial restraint argument. K. Miller Construction Co., 394 Ill. App. 3d at 268, 913 N.E.2d at 1163 (Wolfson, J. dissenting).
There is nothing in the Home Repair Act to lead one to believe that the legislature intended it to be a giant legal “Gotcha!” permitting a homeowner to improve his or her house at the expense of an honest contractor. As pointed out by Justice McDade, the enforcement section allows the Attorney General to take action and gives the homeowner an action under the Consumer Fraud Act for any damages the homeowner might have sustained.
Apparently some courts fear that unless a violation of the Home Repair Act renders a contract for home repair unenforceable, homeowners will not be protected. Not so. In a mechanics lien action, the contractor still must prove faithful performance of a contract or an excuse for nonperformance. 770 ILCS 60/11 (West 2006). Poor performance, nonperformance, and/or fraud in the inducement will defeat or reduce recovery by the contractor in a mechanics lien action. 770 ILCS 60/13 (West 2006). The same is true in a common law contract action.
It is apparent that those who favor the Bogard construction of the Home Repair Act feel such a construction is necessary to “put teeth” in the Act. Thirty-five years ago, the Peoria police department had a police dog named Prince. Prince had teeth. Real sharp ones. Powerful jaws, too. The dog was to use those teeth to bite and subdue criminals who were fleeing or fighting police. The problem was, Prince bit virtually anybody and everybody, except his handler. Prince bit as many officers and citizens as he did combative criminals. In some instances, we are not talking about just drawing blood. There were gaping holes, missing tissue, and broken bones where human flesh used to be. After paying out a small fortune in personal injury settlements, the city decided it was time to retire Prince and pay for well-trained police dogs that use their teeth only as intended.
I submit the Bogard construction of the Home Repair Act, in addition to being unsupported by the statutory language, has created another Prince. There is no need to unleash a dog that bites indiscriminately. If there is fraud or failure to perform, the contractor’s recovery under the Mechanics Lien Act will either be denied or reduced, depending on the facts of the particular case. The dissent believes that anything other than strict compliance with the Act means no recovery for the work performed. In the real world, this can mean financial hardship or even ruin for an unsophisticated, small-time contractor who expends great time and materials on a project. Nothing in the language of the Home Repair Act supports this draconian interpretation.
Justice Wolfson also points out the obvious: the contractor can protect himself by simply having the homeowner sign the work order and handing him/her a consumer rights brochure. K. Miller Construction Co., 394 Ill. App. 3d at 267, 913 N.E.2d at 1162-63 (Wolfson, J., dissenting). Absolutely a true statement, as far as it goes. However, the evil the Home Repair Act targets is not the failure to satisfy some societal need for more signatures or more brochures. It is dishonest contractors.
The legislature chose not to say that failure to secure a signature or hand a homeowner a brochure means the homeowner gets a free roof or addition. It did provide for other penalties. Courts should not ignore long-standing contract principles absent explicit statutory language to the contrary.