Docket No. 109156.



### IN THE SUPREME COURT OF THE STA TE OF IL LINOIS

K. MIL LER CONSTRUCTION

COM PANY, INC., Appellee, v. JOSEPH J. McGI

NNI S et al., Appellan

ts.

Opinion filed September 23, 2010.

JUSTICE BURKE deliver ed th e judgme nt of the c ourt, with opinion. Chief Justice Fitzgerald and Justices Freema n, Thomas , Kilbride, Garman, and Karmeier concur red in the judgment and opinion.

OPINION

The Home Repa

ir and Rem

odeling Act (815 IL CS 513/15 (We st 2006)) states that, “[p]rior to initiating home repa ir or remodeling work for over $1,000, a

person e ngag ed in the b

usiness of

home repair or remodeling shall furnish to the customer f or signa ture a writtencontract or work o rder.” A t issue he re is whe ther a ho me remodelingcontractor who violates this provision andenters into an oral contract for home remodeling work over $1,000 may

enforce the oral contr a ct or seek recovery in quantum m eruit

agains t a homeowner

who has refused to pay

for a completed home remodeling project

. The appellate court concluded that such a contr actor may not enforce the oral cont ract but may se ek recovery in quantum m eruit

. 394 Ill. Ap p. 3d 248. For the reasons that follow, we hold that-2- recove ry is availa ble under both theor

ies.

Background The plaintiff, K. Miller Construction Com pany, I nc., filed a second-amended

complaint in the circ ui t court of Cook County agains tthe defenda

nts, Joseph a

nd Frances McG innis. The complaint allege d the f

ollo wing. Plaintiff is an Illinois construction firmwhose sol e owner

is Keith Miller. Defendant

Joseph McGinnis is an Illinois real estate attorney who has been

in practice since 1970 and been a division counsel for United General Title Insura

nce Company for

10 years. D efen da nt Frances McGinnis i s Joseph McGinnis’s wi fe. Plain tif f has done remodelingwork for defendants in the past and, prior to the initiation of this litig ation, Jose

ph McGinn

is and Mille

r were f riends. Inthe spring of

2004, defendants purchased a three- flat apartment building in Chicago. Defendants intended to conver t the buildi

ng into

a single- family

residence by

demolishing and rebuilding the interior of the building while retai ning t he building’s exterior structure. Architectural plans were drawn up and several discussionstook place among defendants, the archi te ct and Miller about the scope and details of the wo rk to be pe rformed . In the fall

of 200 4, plaintiff entered into an oral contract with defendants to undertake the remodeling project as gene ral contractor for the sum of $187,000. InDecember 2004 and

January 2005, defenda

nts told Miller that they wanted to “vastly incr

ease” the work to be perf ormed on the building and that the architect wo uld deve lop new plans and specifications for the expanded project. The new work included, among other things, lowering of the basement

foundation and floor, installation of

steel beams and framework to repla ce wood material s, replacement

of plumbin

g, insta llation of

additiona

l heating , v entilation and air conditioning, and related chang es. Thes e modifications raised the total cost of the projec t to appro ximately $500,000. Defend ants instructed Miller to assist them in obtai ning a new building permit for the construction changes. The permit was issued by the City of Chicago in Januar

y 20 05. Plainti ff proc eeded to perform the construction ordered by defendants accordi ng to the-3- revised archite ctural p lans and t

he new bu

ilding pe rmit. Defend ants paid the first $65,000 of invoices issued by plaintiff fromApril 2005 to June 2005. In September 2005, plaintiff submitted an invoice to defen

dants for $58,000. Defendants refused to pay the invoi ce and told Miller they did not want to make any further pay ments until all construction wor k on the project was completed. Plaintiff was unable to finance the remainder of the construction on its own and, therefore, obtained a bank line of cred it for $15 0,000 to complete the remo deling project. Defend ants visited the

construc tion sit e atleast weekly in 2005 and 2006 to revie

w and gi ve approval to construction work plaintiff had performed. In June and July of 2006, defendants conducted final wal k-throughs of the property . Defendants approved all of th e c onstruction work with the exception of certain floori ng tha t defenda nts estimate d would co st $300 to repair. Plaintiff’s final day of construction on the project was July 10, 20 06. Defendants made

some additional payments to plaintiff but at the close of construction, the balance due to plaintiff for labor and materials furnished was over $300,000. Defend

ants ref used to pa

y pl aintiff a

ny o f this amou

nt. Plaintiff thereaft er filed a three- count, secon d-amended complaint agai nstde fendants. Count I sought to forec lose a mechanic’s lien. Count II alleged a breach of c ontract. Count III, which was pled in the alternative, sought recovery in quantum m eruit

for t he reas onable value of plaintiff’s work. Defend ants filed a

motion to dismiss pursuant to section 2–615 of the Code of Civil Procedure (735 I LCS 5/2 –615 (West

2006)). Wi

th respect to count I I of p lain tiff’s c omplaint, defendants maintained that the oral contract plaintiff entered into with defendants “viol ate s Illinois law and is

therefore not

enforc eable.”

In su pport, de fendant s pointed to section 15 of the Home Repa ir and Rem

odeling Act (Ac t) (815 IL CS 513/15 (West 2006)), which states that persons “engage d inthe business of home repair or remodeling” sha ll provide customers with

“a written contract

or work order” prior to beginning work on a project costing more than $1,000, and section 30 of the Act (815 IL CS 513/30 (West 2006 )), whic h at the time plaintiff

filed its complain t, stated tha

t it is “unlawf

ul” to eng age in

home remodeling “before obtaining a signed contract or wor k ord er over $1,000.” Defend ants noted tha

t plaintif f’s comp laint alle ged th at the-4- remodelingcontract was not in writing and that i

t w as for wor

k totaling mo re th an $1,000 . Based on these f

acts, de fendant s maintained

that the contract violated the Act a nd was une

nforce able and, therefore, that count I I of plaintiff’s complai nt shou ld be stricken. Further, because a mecha nic’s lienmay

be enfor ced only if there is a valid

underlying

contract, defendants contended that count I of plaintiff’s complaint should also be stricken. Withrespect

to count I II of plainti ff’s co mplaint, de fendant s cited to Smith v. B ogard

, 377 Ill. App. 3d 842, 848 (2007 ), wherein the appella te court he ld that all owing a contractor to recove

r in quantum meruit when he has brea

ched the writing require me nt of the Act “would run afoul of

the legislature’s intent of p rotectin g consu mers, wou ld rewar d decep tive pra ctices, and would

be violat ive of pub lic policy.” Relying on Bogard

, defend ants cont ended tha t c ount III of plaintiff’s complaint shou ld be stricken and plaintiff’s action dismissed. The circuit

court granted defendants’ motion and dismissed plaintiff’s cause of action with prejudice. The appella

te court affirme d in part a

nd rever sed in par t. 394 I ll. App. 3d 248. The

appella te court unanimous ly

agreed that plaintiff’s claims for breach of contract

and fore closure

of mecha nic’s lie n could not go forward. The appellate court re asoned that because the Ac t imposes a writing

requir ement for remodeling work costing over $1,000, the Act necessarily “bars the enforcement of an or a l contract.” 394 Ill. App. 3d at 254. However, on the question of wh ether plaintiff could re cover in quantum meruit , the appellate court was divi ded. J ustice Garcia, writing the lead opinion for the court, concluded that plaintiff could pr oce ed with its quantum m eruit

claim because there was “no clea r and pl ain inten

t in the Act to do away

with quantum m eruit , an equitabl e remedy

that is a part of our common law going back to the times when Abraham Lincoln pra cticed in our

courts.” 394 Ill. App. 3d at 258. I

n reach ing this c onclusion , Justice Ga rcia expr essly disagreed with the appellate court’s decision in Bogard . 394 Ill. App. 3d at 258-61. Justice Robert G ordon agreed with the result reac hed by Justice Gar cia, but not his r

easoning . Justice Gordon point ed to th e las t-5- sentence of section 30 of the Act, which, at the time plai ntiff’s complaint was filed, stated that

the failure to obtain a written contract is “unlawf

ul but i s not exclu sive nor meant to limit other kinds of methods, acts , or p ractices that may be unfair or deceptive” (815 IL CS 513/30 (West 2006)). Just ice Gord on conclu

ded that t

his sentence “leaves the door open to equitable remedies, such as the quantum meruit

claim in this case.” 394 Ill. App. 3d at 266 (Gordon, J., specially concurring

). Justice Wolfson dissented. Ju stice Wolfson concluded that quantum meruit

was unavailable to plaintiff, as there was no authority “supp or ting the proposition that an act declared unlawful by the legislature can be sanitized by filtering it through a court of equity .” 394 Ill. App. 3d at 267 (Wolfson, J., dissenting). We allowed defendants’ petition for leave to appea l. 210 Ill. 2 d R. 315.

Analysis The circuit court granted defe ndants’ motion to dismiss brought pursuant to section2–615 of the Code of Civil Procedure (735 IL CS 5/2–615 (West 2006 )). A sec tion 2–615 m

otion to dismiss challenges the legal sufficiency

of a complaint based on

defect s appare

nt on its face. Pooh-Bah Enterprises, Inc. v. County of Cook , 232 Ill. 2d 463, 473 (2009). I

n ruling on a sect

i on 2–6 15 motion, only

those fa cts apparent from the face of the pleadings, matter s of which the court

can take judicial notice, and judicial admissions in the record may be considered. Pooh-Bah Enterprises, Inc. , 232 I ll. 2d at 473. The court must also accept

as true all w ell-plea

ded facts in the complaint an d all

reasona ble inferences that may

be drawn from those facts. Pooh-Bah Enterpris es, Inc. , 23 2 Il l. 2d at 473. We review de novo an order granting a se ction 2–615 motion to dismiss. Pooh-BahEnterpris es, Inc. , 232 Ill. 2d at 473. At the ou tset, pla intiff sug

gests th at defe

ndants’ motion to dism

iss

s ho uld have been brought under section 2–619(a )(9) of the Code of Civil Proce dure (73 5 IL CS 5/2–619( a)(9) ( West 2006)) because the motion rais ed an affirmative defense, i.e. , that the oral contract b etwe enplaintiff

and defe

ndants vio lates the

Act and, hence, is unenfor ceable as a matter

of public policy. See 735 I

LCS 5/2–613(d)-6- (West 2006) (li sti ng il legality a s an affirmative defense). Howeve r, section2–619(a)(9 ) s peaks in terms of affirmative matter , not affirmative defenses : “If the grounds do not

appear on the face of the pleading atta cked the motion shall be supported by aff idavit: *** (9) That the claim asserted against defe nd ant is b arred by

other affirmative matter

avoiding the legal

effect of or defeating

the claim.” 735 IL CS 5/2–619(a)(9) (West 2006). An affirmative defense may be raised in asection 2–615 motion where the defense is “established by the facts apparent on the face of the complaint” and no ot her facts alleged in the complaint negate the defense. 3 R. Michae l, Ill inois Practice §27.2, at 492 (1989). Here, the factu al basis o f defen

dants’ affirmative defense

is f ound in plaintiff’s own allegations that the remodelingcontract was or al and was for work totaling more than $1,000. Turning to the merit s, defen dants con tend that the appe llate court erred when it concluded that plaintiff could pursue relief in quantum meruit and reversed the circuit court’s dismissal of count I II of plaintiff’s co mplaint . Accor ding to de fendant s, it is inconsistent to hold, as the ap

pellate c ourt did, t

hat plain tiff may not reco ver in contract fo r h av in g v io la te d t he Ac t, bu t t ha t i t m ay r ec ov er in eq ui ty. Citing to Bogard

, defend ants fur ther ar gue tha t to allow a contractor who fails to comply

with the writing requirement of the Act to seek relief in quantum m eruit would de feat the intent of the General Assembly and viola te the pub lic policy

expresse d in the Act. Plaintiff disputes defendants’ as s ertion tha t quantum m eruit is unavaila ble and also c

halleng es the ap

pella te co urt’s holding that plaintiff’s claim for breach of contract in count I I wa s proper ly stricken by the circ uit court. We address the latter issue first. I f there is no public p olicy

that would

prohibit p laintiff

from rec overing

in contract, then ther

e is no inconsistency

in plaintif

f pursuin g relie f in q uantum meruit. Accordingly , our resolution of whether plaintiff may pursue its claim for brea ch of contract may also determine whether plaintiff may seek r

elief in quantum m eruit

. Section 178 of

the Restatement (Second) of Contra cts (1981 ) sets forth the fo llow ing rul e regard ing t h e unenforceability of a contractual term because of the violation of

a statute or other public po li cy: “§178 When a Term Is Unenfor ce able on Grounds of-7- Public Policy (1) A promise or other term of an a greement is unenforce a ble on grounds of public policy if legislation provides that i t is un enforc eable or the inter

est in its enforcement

is clearly outwe ighed in the ci rc um st an ce s b y a public pol icy

agains t the enf

orceme nt of such terms. (2) In we ighing

the inter est in the enforcement of a

term, account is taken of (a) the parties’ justified

expectat ions, (b) any forf

eiture that would resul t if e nforcement were denied, and (c) a ny spec ial public interest in the enforcement of the part icular te rm. (3) I n weighing a public policy against enforcement of a term, account is taken of ( a) the strength of that policy as manifested by legisla tion or jud

icial dec isions, (b) the likelihood that a refusal to enfor ce t he term wi ll fu rt he r t ha t p ol ic y, ( c) the seriousness of any misconduct involved an d the extent to which it was deliberate, and (d) the d irectness of the connection between that misconduct

and the term.” Restatemen t (S econd) of Contracts §178 (1981). Pursuant to the Restatem ent, in

considering whether a contrac tual termis unenforceabl e as aga inst public

policy because of a statutory violation, the first step is to examine the relevant statute itself. If the statute explicitly

provides that a contractual term which

violates the statute is unenforceable then, barring a ny constitutional objection, t he termis unenforceabl e. Conversely , if it is clear that the leg islature did notintend for a violation

of the sta tute to render the contractual term unenforceable, and that

the penalty for

a violation of the statute lies elsewhere, then the contract may be enforced. But where

the statut e is s ilent, then the court must balance the public policy expressed i n the statute against the countervailing policy in enforc ing contractual agree ments:-8- “Only infrequently doe s legislation, on ground s of public po li cy, provide that a term is unenforceable. When a cour t reaches that conclusion, it usually does so on the basis of a public policy deri ved either from its own perception of the

ne edto p rotect some aspect of the public welfare or from legislation

that is re le v an t t o t ha t p ol ic y al th ou gh it sa ys nothing ex pl ic it ly a bo ut un en fo rc ea bi li ty. See §179. I n some cases the contravention of public policy is so grave, as when

anagreement involves a serious crime or tort, that unenfor ceabilit y is pl ain . In other ca ses the c ontrave ntion is so t riv ial as t hat it pl ain ly do es n ot pre clu de e nfo rce men t. In doubtful cases, howeve r, a dec ision as to e nforce ability

is

reac hedon ly after a

careful balancing, in the light of a ll the circumst ances, of the interest in the enforcement of the particular promise a

gainst the policy ag ainst the enforcement of such ter ms. The mos t commo n fac tors in the balancing process are set out in S ubsections (2) and (3). Enforcement will be denie d only

if the fa

ctors tha t argue agains t enforcement

clearly outwe igh the law’s traditional interest in protectingthe expectations of the part ie s, its abhorrence of any un ju st en ri ch me nt , a nd an y public interest in the enforcement

of the particular term.” Restatement (Second) of Contract s §178, Comm ent b , at 8 (1981). Imp or ta nt ly, the fact that there has been a statutory violation does not, in itself, automatically render a contract unenforceable: “The s trength of the public policy involved is a critical factor in the balancing process. Even when the policy is one manifested

by leg islation, i t may

be too insu

bstantial to outwe igh the in

terest i n the enf

orceme nt of the te

rm in question.” Re st atement (Second) of Contracts §178, Comment c , at 8 (1981). See also 5 R. Lord, Williston on Contracts §12:4, at 995-96 (4 th ed. 2009) (“To assert, however, as som e c ourts have, that all unlawful agree ments are ipso

facto vo id is oppose d to ma ny d ecisi ons and unfortunate in its consequences, for it may protect a guilty de fendant frompaying

damages to an innocent plaintiff”); 15 Corbin on Contract s §89.1, at 614 (rev. ed. 2003) (“The decision of whethe r and how to enforce a contract involving a prohibited performance is and-9- must be based on policy c

hoices and

a balancing of relevant fa ctors”). Illi nois law is in a

ccord with the Res tatement . For exa mple, in Pascal P. Paddock, Inc. v. Glennon , 32 Ill. 2d 51 (1964), a contractor entered into a wri

tten ag reemen t with cer

tain prop erty

owners to construct a pool and bathhouse. After th e o wn er s r ef

us ed to pa y, the contractor

brough t s uit to fore close a m echanic s’ lien. T he prope rty

owners contende d, howeve r, that th e und erlying

contract was unenfor ceable because the contractor had used unlicensed plumbers inthe cons tr

uction of the pool, in violation of the Illinois Plumbing Lic ense Law (Ill. Rev. Stat. 1961, ch. 1111⁄2 , par. 116.38). The appella te court ag

reed wit h the prop erty

owners, but this cour t reversed. Inso doi ng , we noted that a statutory violation does not automatic ally

render a contract unenforc eable: “the mere fact that [ a contrac t] w as performed in violation of law will not invalidate the resulting lien if not ser

iously injurious t

o the public order.” Paddock, 32 Ill. 2d at 53-54. Applying this rule, we then examined the facts and concluded

that the contract

could be enforced because a ny violation of the licen sing sta

tute which may

have oc curred

was not “ seriously injurious to the public order.” Paddock, 32 Ill. 2d at 54. Seealso, e.g. , Federal Land Bank of St. Louis v. Walker , 212 Ill. App. 3d 420, 422 (1991) (“Merely

because a contract may

violate some law o r some regulation

does not necessarily

make that contract unenforceable” ); Duncan v. Cannon , 204 Ill. App. 3d 160, 169-70 (1990) (pa rty ’s failure to strictly abide by a municipal ordinance did not operate as a bar to r ecovery

for breach of contract); South Center Plumbing & Heating Supply Co. v. Charles , 90 Ill. A pp. 2d 15, 1 8 (1968) ( “not all violations of law brought about inthe performance of a contrac t are considered

serious enough to prevent recover y on the contract by the party who violates the la

w”). Withthe foreg oing pri

nciples in mind, we tu

rn to the case at hand. Inholding the oral con

tract at issue her e unenfo rceabl e, the ap

pellate court re lied on se ctions 15 a nd 30 of the

Act. Sec tion 15 pro vides: “§15. Written contract; co st s enumer ated re quireme

nts; contents

. Prior to initiating home repair or remodeling work for over $1, 000, a pe

rson eng aged in

the busine ss of

home repair or remodeling shall furni sh to the customer for signature a written contract or work order that

states the total-10- cost , including

parts an d materia ls listed wi

th reasonable particul arity

an d any cha

rge for an estimate. I

n addition, the contract shall stat

e the busi

ness name

and addr

ess of t he person engag ed in the b

usiness of hom e repai r or rem odeli ng. If the person engaged in the business of home repai r o r remodelinguses a post office box or mail receiving service or agent to rece ive home r

epair or remodel ing business correspondence, the contract also shall state the residence address of the person engage d

in the business of

home rep air or remodeling.” 815 I

LCS 513/15 (West 2006). Section 30, at the time plaintiff’s complaint was filed, stated:

“§30. Unlawfu

l acts. It is unlawful for

any person e

ngaged inthe business of home repairs and remodeling to remodel or make repairs or char

ge for remodel ing or r

epair work before obtaining a signed contract or w ork ord er over $1,000 and before notifying and se curing the signed acce pt ance or rejection, by the consumer, of the bi ndi ng arb itration c lause and the jury trial waive

r clause as required in Section 15 and Section 15.1 of this Act. Thi s c onduct is unlawful but is not exclusive nor mean t to limit other

kinds of me

thods, acts, or practices that

may be unfa

ir or deceptive.” 815 IL

CS 513/30 (West 2006). Based on these provisions, the appellate court rea soned:

“Whenthe Mil ler cons truction c ompany began home remodelingwork for the Mc Ginni ses wi thou t obt ainin g a si gned contract or work order, it violated the term s of th e Home Repair Act and, therefore, was precluded fr om proving up an oral contract, as the Act declar es such contract s ‘unlawful.’ ” 394 Ill. App. 3d at 265. Inother wo rds, according to the appella te court , becau se there

was a statutory violation or “unlawful” act, the contract was, ipso facto , unenforceable. This was e rror. The Gener

al Assemb ly iscapa

ble of st ating when a c ontract ual term t

hat viola

tes a stat

ute i s unenforceable. See, e.g. , 720 I LCS 5/28–7 (West 2008) (gambling contracts are “null and

void”); 5 0 IL CS 105/3 (West 2008 ) (contr acts inwhich a p

ublic off icial has a financi al intere st and may be calle d to vote upon are “void”); 625 IL CS 5/18c–4105 (West Supp. 2009)-11- (indemnit y agreements in motor carrier tra nsportat ion contracts are “void and unenforceable”). The G eneral Assembly did not do so here. See Fandel v. Allen , 398 Ill. App. 3d 177, 192 (2010) (Schmidt, J., special ly concurring) (“it was not the legislature tha t said any violation of the Home Repa ir Act, ipso facto , renders the contract unenforceabl e; it w as some ju dges” ); Universal Structures, Ltd. v. Buch man , __ Ill. App. 3d __, __ (2010) (“the Act is void of any langua ge which serves to invalidate the parties’ agreement when the contractor

fails to sec ure a si gn e d written contract or work order”);

see also Restatement (Second) of Contracts §179, Comment b , at 16 (1981) (“legislators seldom address themselves ex plicitly to the problems of con tract la

w that may

arise in c onnection with [proscribed ] conduct. *** Usual ly they do not eve

n have the se problems in mind and say nothing as to the enforceability

of terms”). Sections 15 and

30 of the Act make p lain

that an oral contract for home remodel ing ove

r $1,000 is

a statutory violation. Howeve r, the Act left it an open question as to whether a statutory violation

re nd ered an oral c ontract

unenfor ceable . Accor

dingly , the appe llate court should have conducted

a balancing analy

sis and considered the relevant facts and public policies be fore concluding that plaintiff could not p

ursue re lief for

breach of contr act. Having determined that the appellate court erred, w e ordi nar ily would either remand

to th e appellate court to perform the require d balancinganalysis or condu ct the analysis ourselves. See , e.g. , Asdourian v. Araj , 38 Cal. 3d 276, 289-94, 696 P.2d 95, 104-07, 211 Cal. Rptr . 703, 711-1 5 (198 5) (con ducti ng a bala ncing analy sis and

c oncluding that an oral contract for remodeling was enforceab le , notwithstanding a statute which required that remodeling

contracts in

excess of $500 be in writing and which made violations of the statut e
a misde me anor offense). However, we need not do so here. L egis lation which wa s enacte d after the appe llate cou

rt rende red its decisionin the ca se at bar has clarified that the G eneral

Assembly

did notintend for violations of the writing requirement under the Actto render oral contracts unenforc eable. Public Act 96–1023, e ffectiv e July 12, 2010, has entire ly

re wr itten section 30 of the Act, removing all refer ences to the word “unlawf ul” and indicatin g that th e remed

y f or violati ons of the

Act is to be had un

der th e C onsumer Fraud and Decept ive Business-12- Practices Act (815 IL CS 505/10(a) (West 2008)). The se ction now reads: “Sec. 3 0. Action for actual damages. Any person who suffers actual damage as a result o f a viola tion of this

Act may bring an action pur s uant to Section 10a of the Consumer Fraud and Deceptive Busines s Pra ctices Act.” Public Act 96–1023, eff. July 12, 2010. “A subsequent amendment to a statute may be an appropriate source for discerning legislative intent.” In re Detention of Lieberman , 201 Ill. 2d 300 , 320- 21 (20 02) (ci ting People v. Parker , 123 I ll . 2d 20 4, 211 (1988), and Carey v. Elrod , 49 Ill. 2d 464, 472 (19 71)). As w e have explai ned, whi le an amendatory change in the languag e of a statute create s a presu

mption that

it was inte

nded to ch ange the law

as it previously existed, “ ‘the presumption is not contro llin g [citations ] and may

be overcome by

other considerations.’ ” Parker , 123 Ill. 2d at

211, q uoti ng People v. Nunn , 77 Ill. 2d 243, 248 (1979). “The ci rcumstances surrounding the amendment should be considere d and: ‘If they indicate that the le gislatu

re inten ded only to interpret the original act, t he presu

mption of a

n intention

to chang e the law

is rebutted.’ ” Parker , 123 Ill . 2d at 211, q uoti ng People v. Youn gbe y , 82 Ill. 2d 556, 563 (1980). A number of factors may indicate whether

anamendment is merely a clarification rather t

han a substantive change in the law : “whether the enacting body declared that it was clarifying a prior enactment; whether a

conflict or ambiguity

existed prior to the ame

ndment; a

nd wheth er t he amendment is consistent with a reasonable interpr etation of the pr ior enactment and

its legislative history.” Middleton v. City of Chicago , 578 F.3d 655, 663- 64 (7th Cir. 20 09); s ee also 1A N. Singer, Sutherland on Statutory Construction §22.3 0, at 3 66, 37 4-75 ( 6th ed . 2002 rev.) ( “Alth ough ge ne ra ll y, a statutory amendme nt is presumed to have been intended to chang e the law , th e legi slative history may indicate that the amendment

was intended

instead as a clarification. *** [In addition, the] time and c ir cumsta nces surrounding the enactment of the amendment

may indicate that the c

hange wrought

by the amendment

was formal only -that the

legisla ture inte nded mer ely to interpret the original act”). At the time th e Gener

al Assemb ly was cons idering Senate B ill 2540 (the bill w

hich woul d become

Public Act 96–1023), there was-13- disagreement

in our appellate court as to the effect a violation of the Act ha d o n t he le ga l c la im s t ha t c ou ld be pu rs ue d b y a contractor. For example, as noted previously, the a ppellate court in Smith v. B ogard , 377 Ill. App. 3d 842 (2007), had concluded tha t a co nt ractor who violated the writing requirement of the Ac t could not r ecover in quantum meruit , while the appell a te court in the case at bar had concluded

the opposite. Further , while the appella te court in b oth this

caseand others had concluded that recovery in con tra ct was per se unavailable, the appe llate cou rt in Fan del v. Allen , 398 Ill. App. 3d 177, 186 (2010), had concluded that a violation of the Act “does not act to automatically inv alidat e the agreement betwee n the parties.” The doctrine of

substantial compliance had also been invoked by our appella te court in a

ddress ing vi olations of the Act. See Behl v. Gingerich , 396 Ill. App. 3d 1078 (2009). The existence

of these conflic ting app ellatedecisions negates the presumption that the l egisl ature’ s remova l of the word “unla

wful” fromsecti on 30 was a change in the law. B ecause of the differing views in the appellate c ourt, there was no clear interpretation of the law to be changed. I

t follows, therefore, that

Public Act 96–1023 was meant to clarify the pr

evious law and m a ke clear that a violation of the Act does not render ora l contrac ts unenforceabl e or rel ief in quantum meruit unav ailable and that, instead, the remedy for violations of the Act lies elsewhere. Legislative

history supports this conclusion. During the de bate on Senate Bill 2540, Senator Wilhelmi, the Senate s ponsor of the bill , stated: “Senate

Bill 2540 does two things. First, it resolves confusion

as to the proper remedy

for the courts to apply

by providing that any person w

ho suffers actual damages as a result of a violation of

the Home Repair and Remodeling Act may bring

anactionunder the

Consumer F

raud and Decept ive Business Practic es Act. Secondly, the Home Repair and Remodeling Act requires a contractor t o giv e a pamph let to his–h

is–his customer, as well as to have a signed contract with that customer. However, what the courts have found is that some of these consumers are using the Act to get out of

paying the balance due on

a home re

pair or r emodelin g contr act. So the courts are asking for a clarif ication of this. I think what

we are-14- doing through this bill is saying that, unless ther e’s a ctual damage s, a consumer

cannot get out of pay

ing the balance due to a home repair or remodeling compa ny by using these

two technical provisions in the Act of requiring a pamphlet

to be gi ven and requiring a written contract befor e work on the project.” 96th I ll. Gen. Assem., Senate Proceedings, March 9, 2010, at 68 (statements of Senator Wilhelmi). Inlight of the foregoing, we conclude that

Public Ac t 96–1023 is

a clarification

of the pr ior statut e and must be accepted as a legislative declaration

of the meaning of

the original Act. There is, therefore , no public policy requiring

that oral contrac

ts for home

remodeling over $1,00 0 be held unenforceable or that relief in quantum m eru it b e denied. Accord

ingly , the appe llate court er red in upholding

the circ uit court’s dismissal of counts I and II of plaintiff’s com plaint, b ut properl y r everse d the dismis sal of co unt II I of p laintiff

’s compla int.

Conclusion For th e foreg oing re asons, we revers e that pa

rt of the a ppellate

co urt’s judgmen

t which af

firmed th e circu

it court’ s dismissa

l o f counts I and I

I. We affirm

that part of the appellate court’s judgment whichreversed the circuit court’s dismissal of count I II . T h e judgmen t of the c ircuit

court is r everse d, and the

cause is remanded to that co urt for f urther proceed

ings.

Appellate court judg

ment affir med in par

t and reve rsed in par

t; circuit court judgment reversed;

cause remanded.