Page 8 - John Hundley 2010

sign the work order. Allen had him complete the work and tendered a check for the full amount, but she
then stopped payment on it. Fandel commenced suit to foreclose the mechanic’s lien and Allen moved to
dismiss, arguing plaintiff’s failure to provide the brochure and his not securing a signature on the contract
barred him from asserting a lien. However, an appellate panel found that the oral agreement constituted a
valid contract, held that plaintiff’s performance of that agreement created a right to a mechanic’s lien, and
virtually overruled Slepian. But same court with a different majority on the panel recently reached a
contrary result. Roberts v. Adkins, __ Ill.App.3d __, 921 N.E.2d 802 (3d Dist. 2010).

In Artisan Design Build, Inc. v. Bilstrom, __ Ill.App.3d __, 2009 WL 3052362 (2d Dist. 2009 as
corrected March 10, 2010), a contractor appealed dismissal of its complaint
because of failure to furnish the brochure. The suit arose out of a written
contract to remodel a home with improvements totaling $534,970. Owners also
agreed to eight change orders which significantly increased the contract price.
They paid six draws but refused to pay a seventh, locked plaintiff out of the
project and hired another contractor to complete work which was already
“substantially complete”. Plaintiff alleged defendants owed over $208,695.
The panel concluded that one must look at the Act as a whole and that the
brochure is only an advisement of rights, not an embodiment of rights them-
selves. It said that to bar recovery due to mere failure to deliver the brochure “would lead to
mischief and a result the legislature could not have intended.”
In Behl v. Gingerich, __ Ill.App.3d __, 920 N.E.2d 665 (4th Dist. 2009), an appellate panel ruled that
the Act was subject to a standard of substantial compliance. Where a detailed contract was delivered and
the owner’s acceptance shown by multiple payments thereunder, the panel said no actionable violation
arose from the contractor’s failure to deliver the brochure and to require owner to sign the contract.

Regardless of whether the Act gives the consumer the right to stiff the contractor, it purports to make
at least some violations actionable under the Consumer Fraud & Deceptive Business Practices Act, 815
ILCS 513. However, Kunkel v. P.K. Dependable Const., LLC, 387 Ill.App.3d 1153 (5th Dist. 2009), holds
that for a private right of action to exist for failure to deliver the brochure, the plaintiff must prove that
the damages were proximately caused by failure of the contractor to provide the brochure. Ruling
similarly on that point is the Roberts case referenced above.

Based on these decisions, many conditions and instances remain unclear. If a contractor gives the
consumer a written estimate but fails to have the consumer sign it or fails to give the
consumer the necessary brochure, and the homeowner allows the contractor to
complete the work, which ultimately increases the value of the homeowner’s
property, is it fair to deny an honest, competent contractor the fair value of his work
and give the homeowner a valuable benefit without paying for it? Can the Act
protect an unscrupulous homeowner, sometimes at the expense of an honest and
competent contractor? Unless the Act is amended to clarify these issues (and
attempts in that regard are underway), these problems are for the courts to decide,
and Supreme Court review of the divergent results reached in the Appellate Court
certainly would be helpful. In the meantime, complying fully with the Act will protect both the honest
contractor and the honest consumer.
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