the next case that our caller is agenda number eleven case number one zero nine one five six ok miller construction company versus joseph jamie g decision of the appellate court the following three reasons first if the court erred when it held that the home repair remodeling act was ambiguous the plain language of the act is not impede us and it does not give the contractor the right to charge the homeowner without a written contract second the common law remedy of quantum erowid is repugnant to the home repair remodeling act third if quantum or would claims are available to contractors who not comply with the act the purpose and policy of the home repair remodeling act is totally defeated turning in my first point the language of the act when residents entirety bars all the relief for this contractor for the home repair and remodeling act first came to this court's attention in the case of n d electrical vs abrams well the case is factually different than the one we have today this court did examine the policy of the act in now policy is relevant to our discussion this morning section five of the act states that policy and it states that the act was passed in order to safeguard the property and welfare of illinois citizens the purpose was to provide the consumers with improved communication and accurate representations and those are the those are the phrases used in the section by the persons engaged in home repair remodeling in order to avoid the likelihood of the disputes such as the one we have with us here this morning to accomplish the purpose of the general assembly has made it mandatory that the contractor that is the person most knowledgeable about the costs of the project that consumers is going to undertake that the contractor provide a written contract to the homeowner before the work begins yes your client's is an attorney is act makes no distinction among consumers whether it's a lawyer whether it's a judge or whether it's another home improvement contractor the act still protect that consumer and you argued that the general assembly intent had intention to make sure that the act was abided by is that correct that's correct and then why didn't they amend the statute of rights to indicate that such contracts have to be in writing and that homeowner for work to be done in for more than a thousand dollars has to be in writing the act is very clear is there anything you know in section thirty  yes i think it does and says that it is unlawful to charge the case using the onset of the requirements of section fifteen of the act also requires that there be a written document if you have a written document the intent of the legislature at that it would indicate the intent of the current legislature not the general assembly as of the date that this act was put in place and that the corrective mission no there's no such indication in the amendment that this is to correct any any problem to accomplish charging the consumer well the quantum arrow is is is an equitable doctrine that talks about recovering reasonable value of services and not allowing one party to services performed that is what the definition of charge the verb charges it's to collect in demand payment for services rendered and goods provided so that if you incorporate definitions of those words into section thirty it's clear that quantum or any common law remedy that will have the consumer pay for work done without the protection of game would be worth the money yes of course there is i mean there's no there's no admission that it that's the value that was put into this property that's the allegation in the complaint but you know it is it is a disputed by the home owner is the the issue though is the act is designed to provide to the homeowner the ability to understand and know in budget for its project the homeowners project it's not the contractors project and if they're if the homeowner is not afforded a written contract which is now the general assembly's requirement and it provides with reasonable particularities the costs that the homeowner is expected to pay at the end said this is this is how much you're supposed to pay and there were no oral agreements that this is how much this change order is going to pay it was simply no communication and again that's what the statute is all about communicating to the consumer in advance what you're going to be expected to pay and in our case there simply was no communication of what this consumer was going to ultimately buy into our communication army no claimed oral communication there was the very beginning there was a during the during the course of these change orders there's no allegation that there was a statement by the contractor that said if you want this done you're going to be charged this much money so going back to justice thomas question there was communication with regard to consumer so that the consumer can be apprised of why do you just going to have to pay in the project is done that was not done here so your argument would be you know do this is a three unit a permanent building right now it's a it had  been a two family a two flat that was converted into a single family residence ok well let's just say for for purposes of argument that and i'm just trying to understand your argument let's say for purposes of argument that half of that was agreed or a way to do it a hundred eighty five thousand and then the homeowner says by the way through the second unit through the second floor your argument would be the same that if that forget to change order woma door your argument would be even if it was extensive work where the homeowner would have to know that the price would be different than initially agreed upon he would have no obligation to pay under water merit because the contractor did not supply a change or i think it's especially under those circumstances where the homeowner who is not the professional who is not the person that knows about the costs comes to the contractor and says what you've indicated double the size of this project if the contractor doesn't explain to the homeowner what the cost will be then it's a violation of this of this act but the general assembly has has enacted this statute for the protection of the consumers against for themselves for their own for their benefit so that they can put some fiscal control over a project so they can identify whether they have the wherewithal to proceed with such a a more elaborate construction project in your example that's what this is this what this is to do if you don't have that protection then you were then the homeowner is working for the contractor that's not what the statute is all about the statute is to protect the consumer and protect  homeowner by providing the homeowner with knowledge and information about the cost of the project it's the can it's the contractor who's the professional it's the contractor who is aware of these costs not the consumer  indicates that no writing no money if that's exactly what the statute says if you think it is unlawful to charge the consumer unless there is a writing by the contractor or a work order from the contractor that's what section thirty cents if you read the legislative history i have looked at the legislative history yes and it it does concerted so it's been fraud especially with respect to the elderly so how can we conclude from looking at the for the benefit of the consumers how it is not an onerous request to have a contractor put it in writing before the project begins that's also in the legislative history and secondly i think the the language that's used in the act directly supports our position that it is unlawful for contractors to charge a consumer without a written contract there's no there's no ambiguity in the language that's used if you want to take the next step and look at the definitions of the words unlawful and charge and insert them into the into section thirty and even quantum arrowing take those definitions and insert them in the section thirty the result is exactly the same  narrowed is repugnant to the to the purpose in the policy of the home repair remodeling it is unlawful to charge unlawful means not authorized by law charge means to demand payment for for services rendered or goods no figures in there as to what the ultimate amount would be if the the language it's used in the statute is that there has to be a contract which states the total costs with reasonable  have a title materials contract that articulate what those costs were with as much of a reasonable particularly as possible but i think it would pass muster under the act i don't think there's certainly nothing inherent in the words that are and without a written contract without a written agreement without any representation that consumer is denied the opportunity to assert any fiscal control over its project again it's not the contractors project it's the consumers project council was the original projected cost and given in writing now and is there any reason anything shown in the record or any any significance to the fact your clients paid sixty five thousand or something like that as i recall would be one hundred seventy seven thousand plus there's thirty four thousand in some kind of character claims that they paid in the allegation which is correct there's an additional sixty six about sixty six thousand in subcontractor claims did it was there some point in time that where were they said they were going to pay more until the project was completed that's an allegation and complaint yes ok but what is the record show that's the allegation in the complaint we're dealing with the second round of complaint and what does the where does this hundred seventy seven thousand dollars i mean is that in those were payments that were made over the term of the project prime no but i being done so far but also when your client have knowledge of what they talked about about what would be done in the future and could could figure out what the cost might be you know again the the homeowner is not the contractor the homeowner is not the professional in charge of the costs of the project you know but based on what was already paid for by the homeowner and there's certainly nothing in the record that would indicate that the homeowner could have anticipated the final bill that they were given based on what working been done in the past it certainly is not in the record anywhere and it would be just rank speculation even suggest that that's that would be the case conclusion the repaired remodelling act in our view has a legitimate public policy that policy is clearly expressed in the statute it places a burden on the contractors to communicate to the homeowner the cost of the job in advance of the work this is to be done in a written contract so the homeowner can exercise some fiscal control over its project the protection of the consumer is directly provided by the act which makes  unlawful for the contractor to charge for the work without a signed agreement and her claim case there was a clear violation of every element of the contract section twenty of the act provides for a brochure for the home owner he tells what should be included in a contract terms such as the commencement and completion date a payment schedule none of that was given to our client there was no written agreement at any time to the homeowner during the project this was unlawful conduct by miller is defined by the home repair and remodeling act as a consequence yack makes it expressly unlawful for the contractor to charge the mcginniss is for the balance that's in statute here section thirty is that ambiguous it is ambiguous that word on waffle it in the context we're talking about in this case does the word unlawful abolish two hundred years of the doctrine of doctrine of crime to maryland in fact if we take it into english common law which is a part of the law of the state under the common law and it goes back four hundred years did that word absolutely clearly and  well america for an act which is now against the law respect that's the issue and the answer most respectfully is that only if the legislature plainly and clearly abolish position of the owners is that the word on lawful unlawful unlawful to charge constitutes a clear unambiguous repeal of the common law here in our position is absolutely it doesn't never written isn't that incomplete isn't that completely incompatible with a lot of there are no i don't think it is i come america has been the a lot illinois for so long you cannot remove it with this simple phrase in this statute before that's correct neither can get anywhere nor did the legislature intend to do and maybe this is an unfair question and you can tell me if it is can you point to a statute that has ever held that a position that has been so long held in the law is remains unless it's specifically remove and attorneys i've got one for it all right said in the trial court i can think of cases just homeowner contract or no contract right everybody's raising the right hand take an oath stories diametrically opposed as to what was agreed upon somebodies line right majority has to make a decision isn't isn't the purpose of this act is the purpose is to eliminate those type of things on the purpose her writing is to try to do that there's that's absolutely true of course and what about the fact in this case that i believe the stance of what was a two thousand and it came out i mean there are two thousand there is no doubt that at least the contractor should have been aware of the statute right yes and what happened here was that you had eyes never just as perky asked back you had two people who had a pretty existing friendship for which the contractor had previously done remodeling work act the owner's home at a different location and this was going to be a job based on the time the materials the labor of the services rendered and his friend to the owner an attorney he thought would never do this to him and what happened here was an outrage he did all this work it was vastly increased in scope during the term of the job that's why there was such an increase in the amount of money involved alleged in the complaint which the court mistake is true for appeal the owners went through the property and inspected it made periodic payments found nothing wrong with the work except one three hundred dollar hunch list item that was fixed up told the contractor while he was working we will finish paying you in full when you complete the job he went out and he borrowed money or did he not know until now the homeowner according to the complaint the homeowner had the architect go back and do vast changes in the plans there were new plans and specifications this was a huge increase a ballpark thing there's no allegation in the complaint one way or the other and they are so the owner tells the contractor when this job is finished you finance it mr contractor but when this is finished you will be paid in full and then it's finished to the owner satisfaction no complaints except for that little three hundred dollars punch list item that's fixed up and then in the words of the concurring justice of the appellate court in the fan belt case that just came down from the third district this was one giant gotcha the owner said sorry you didn't have a writing we won't pay you the remaining three hundred  twenty six thousand dollars that we owe you and we don't have to even though i'm an attorney at law i can to trade my practice in real estate i've been a general counsel for a title insurance company for ten years they don't but i don't have to pay you because you didn't get a writing from me it's an outrage of what happened here and the law of quantum hero it for several hundred years has been designed to take care of it and if the plaintiff can't prove the reasonable value of the services then the plaintiff deserve to loose my client deserves to lose if this case goes back and he can't prove the reasonable value of what he did but most respectfully submit he certainly can't and it  because they were waiting to cash this contract or with that statute that we're here today that's the only reason this wasn't a case of what the legislature was trying to get at which was the fly by night contractor the brochure says to consumers be aware of the contractor who comes around knocking on your door once you do some work be aware of people like that this wasn't what that was these people these two fellows were friends for years and they had a preexisting business relationship in this kind of work this wasn't a fly by night contractor knocking on the door trying to take advantage of a poor little homeowner this was the owner who outrageously took advantage of the contractor when he caught for three hundred twenty six thousand dollars pleadings and it comes up an alternative counts count one is the action and the mechanics lean statute which requires the existence of a stanch you count two is the breach of contract action which requires exertion the existence of a country and the count three is the quantum mero it action which basically says there is a contract we can still prevail and count one bet but there was a contract if if the court believes that there was a contract here that is not fair brigaded by the stat and force me to soley and the attorney general so that your defense of the act falls you yes yes i do now interestingly this should have been brought as a two six one nine eighty nine motion raising the statute was brought as a two six one five because i i don't know if they were thinking in those terms that if they brought it into two six one nine eighty nine that the statute is the affirmative defense and it might raise this issue of whether there's a private right of action or not and i think fan del is right that enforcement seems to be solely in the attorney general but the statute is not an affirmative defense indeed the issue is and there are two six one five does the complaint plead a valid cause of action and the answer is yes it does now if you i would also respectfully submit respond to justice freeman's question for the gap a lie about the bill pending before the legislature it's pretty clear that the purpose of this bill that i think was introduced by the owners how to interpret it is there a private right of action is there not a private right of action and if that bill passes that's going to eliminate the problem here now the impact it will have on this case i don't know that would do the hand on it if affect on existing actions so i don't know but for the future it's going to eliminate the problem here because it's going to take the word unlawful out of the statute and that's the end of the issue so i think legislative intent in that manner but i think the more reason to interpretation would be that they're trying to get rid of the problem which is that that word lawful is as used  statute i believe that we have alleged pretty clearly in count three that there isn't a country here and i don't know if there was ever a meeting of the minds to create any  contract there's been some reference to it as a normal country but in count three there is no allegation of a country there is just an allegation that the the parties got together he looked at the plans he looked at  the scope of the work he was hired to do work any and he went to work but was there a meeting of the minds on the price i don't think so and can count three does not allege that there was a contract so it's clearly the classic case for quite america the work is undertaken there is no contract the work has substantial value it would be unjust to allow someone to benefit for ruled that if you can repeal the common law by implication when the statute covers the same elements and that's what we have exactly right here in the home repair remodeling and secondly council again disparages of the mcginnis is by claiming he read brings up the gotcha phrase that came up from me concurring opinion in fandom it's a complete red herring there is absolutely nothing contained in the complaint not the first count not the second count not the third count that would indicate any impropriety by my clients yet he brings this up in his briefs it's the biggest that read hearing to inflame the passions of this  miller is guilty of no unlawful conduct the contractor is guilty of unlawful conduct conduct is the fine by the act if in fact there were these serious problems that that is intimated in the briefs then i would invite the contractor to bring a separate claim or cause of action for fraud if he thinks that there is such a thing there isn't there wasn't and that's why there is no claim there is nothing in the second amended complain about any such conduct and so to bring it up in his brief in his arguments i think is wholly improper and unnecessary secondly about whether or not what about the inference from the bac question is why didn't the contractor make a demand for payment before he expended any additional funds why didn't the contractor provide to the consumer a statement in writing that this is what was going to be this is what the project was going to cost and insist on being paid as he went then didn't happen again the whole purpose of this act is to provide the consumer with information in advance of the work so that the consumer knows how much it's going to cost not a protection for the contractor it's a protection for the consumer for the homeowner it's true it's to provide the homeowner with some ability to take physical control over the homeowners project not the contractors project contractor elected to finance the project and that's how he chooses to run his business but the act is not designed to prescribe the conduct of the contractor in running his business it's designed to protect the again the issue in question came up about affirmative defenses and i know just as freeman has expressed some reservations about that in the dissent in the original and the electrical case i think the use of this type of sta an affirmative defense first of all his it was it was used in that way in both the miller case in the breach of contract claim and the foreclosure of mechanic's lien claim it was using his as an affirmative defen a roberts versus adkins case in the smith versus boger case all of those dealing with the home repair remodeling act where they permitted section thirty to be used as a defense to the claims of the contractor who failed to comply with the act secondly again this issue does come up in the fandom case while we're not arguing the fan will case i would point the court to the concurring opinion by justice lytton in their case he does a much better job than i ever could certainly within the timeframes here of detailing the history of allowing consumers in consumer protection statutes the use the statute to to protect themselves against conduct which is not permitted a by the stance you thirdly section thirty can be read for no other purpose except to give a defense to the homeowner certainly as originally written in two thousand that that's all that was it is unlawful for the contractor to charge the consumer that it had no other purpose you didn't need it for section thirty five to be implemented by the attorney general or the state's attorney and you didn't need it for any other purpose so it can only be used as a defense for the been made in response to requests for pay fors well i don't know that that was ever statement made by my client and i don't know that that's even an allegation that my client ever made such a s the i just don't know that it was ever said that way mike my client was never informed and counsel has admitted that there's no allegation that they were ever informed as to what my client was going to be asked to pay at the conclusi was their requests for additional funds and that were denied until the contract was completed then an allegation in the complaint is that at some point the contractor was informed that they wouldn't be paid until the completion of the