Is Failure to Secure a Written Contract Before Initiating Construction a Violation of Home Repair Act ?
In Smith v. Bogard, 377 Ill. App. 3d 842, 879 N.E.2d 543, 316 Ill. Dec. 476 (2007), the plaintiff, Dan Smith Building Services (Smith), entered into an oral contract with the homeowners to build a living-room addition. the Bogards refused to pay the last installment, in the amount of $ 10,515.85 claimed due for the work performed.
Smith filed a breach of contract claim and, in addition, alleged claims for unjust enrichment and quantum meruit.
The Bogards filed a motion to dismiss claiming that Smith violated the Home Repair Act by not securing a written contract prior to initiating construction and failing to provide them with the consumer rights brochure. They claimed that these violations precluded Smith from recovery.
Upon hearing argument, the trial court granted the Bogards' motion in its entirety, finding that because Smith had failed to comply with the Home Repair Act, he was precluded from recovery on his breach of contract claim.
The court further found that because Smith was unable to recover under an action at law, he was precluded from recovery under any equitable theory as well because such a recovery would defeat the entire purpose of the Home Repair Act and the public policy behind it.
On appeal, Smith argued that a disputed issue of whether the Home Repair Act applies to him remains, and even if the HRRA does apply to him, he is not precluded from recovery under the theories of unjust enrichment and/or quantum meruit.
The Fourth District rejected Smith's claim that he was merely a subcontractor and thus not required to comply with the Home Repair Act. Bogard, 377 Ill. App. 3d at 847-48, 879 N.E.2d at 548.
The court also rejected Smith's claim that he is entitled to recovery under the theories of unjust enrichment and/or quantum meruit. Bogard, 377 Ill. App. 3d at 848, 879 N.E.2d at 548.
Erroneously relying upon our decision in Slepian, the court stated:
"Because Smith is obligated to comply with the provisions of the Act, and because he failed to do so, he is precluded from recovering any amounts he claims due for work performed.
Allowing a contractor a method of recovery when he has breached certain provisions of the Act would run afoul of the legislature's intent of protecting consumers, would reward deceptive practices, and would be violative of public policy.
Based on the record before us, we conclude the trial court did not err in granting the Bogards' motion to dismiss because we find that an affirmative matter (Smith's violation of the Act) defeated Smith's claim for recovery." Bogard, 377 Ill. App. 3d at 848, 879 N.E.2d at 548.