Filed

12/ 21/ 09 NO. 4-08-0 974 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT JOHN BEH L, d/b/a BEHL CONS TRUCTION, Pla

intiff -Appell ee an d Cross-Ap pellant, v. DARYL GINGERI CH, D efen dant-Appe lla nt and Cross-Appellee. ) ) ) ) ) ) ) ) Appeal from Circuit Court of Coles Cou nty No. 07L M258 Honorable Brien O'Br

ien, Jud ge Presid ing.

JUSTICE A PPLE TON delivered the op inio n of the cou rt: Plaint iff, John Behl, d/b/ a Behl Constr uction, f iled a compl aint a

gainst defendant, Daryl

Ginger ich, alleg ing defendant

had failed t o pay plaintiff $15,5 00 for labor and materials plaintiff had provided un der a construction c ontract to remodel defendant's home. Defendant filed a motion to dismi ss, claiming plaintiff was precluded from recovering any amoun ts from him because p laintiff had violated the Home Repair and Remodeling Act (Act) (815 ILCS 513/1 through 999 (West 2006)). The trial
cou rt denied defendan t's moti on, and th e case pro ceeded to a bench trial.

Afte r tr ial, the tr ial co urt fo und in plaint iff's f avor and aw arde d him $9, 59 4. 03 in

dam ag es. De

fe nda nt a

ppe al ed, ar

guin g t hat pla intiff coul d no t e nfo rc e t

he contract due to the spe cific require mentsof the Act or , in the

alt erna tive, if the contr act was enf orce able , the court e rre d in cal culating the judgm ent a mount. Plaint iff f iled a
cross-a ppeal , al so ar

guing t hat the court e rre d in its ca

lculat ion of d amages on dif

ferent grounds. Plaintiff also claimed the c ourt erred in finding that h is mechani c's lien was- 2 -

unenforceable as u ntimely. We affirm in part, rever se in part, and remand for further proc eedi ngs. I. BACKGROUND

In Au gust 2 006, plain tiff bu ilt a room add ition , added an attached garage with a half bat

hroom, and per

forme d repair work on an ex isting porch at de

fendant's home. Th e "bid price" for this work was $ 55,395. Prior to startin g the job , plainti ff pro vid ed d ef

end ant wit h a w ri tt en w or k or der . P laintiff

per fo rm ed t he m ajo ri ty o f t

he work, and i n April

2007, he lef

t the jo b beca use he bel ieved his r

ela tions wit h defend ant were d eterio ratin g.

In August 20 07, pl aintif f fil ed a co mplaint fo r dam age s, see king $20,821. 93 as the bal ance due. According to plaintiff , defendant had paid $39,895 of the $55,395 to tal. He allowed de fendan t a credit in the amou nt of $3 ,296.07, leaving a bala nce due of

$12, 203.9 3. Pla

intiff alsoall ege d he had per formed a dditiona

l wor k in the amou nt of $8 ,618. Defendant fi led a motion to dism iss p laintiff' s comp laint, cla imi ng plaintiff

had faile d to

at ta ch an y wr itten a gree me nt b et

wee n the par tie s. The trial court dismissed the complaint with out preju dice.

In October

2007, plaint

iff f iled his f irst a mende d compl aint, all eging bre ach of co ntra ct (count I ) and fo recl osure of a mec hanic's lien (count I I). Def endant filed another motion to dismis s, claiming the "agreement" then attached to the amended complai nt did not sati sfy th e requi rements of th e Act (8 15 ILCS 513/1 throu gh 999 (20 06)) becau se de fend ant h ad no t sign ed a wri tten ag reemen t au tho rizin g the w ork. Defe nda nt a

lso fil ed a counter cla

im a skin g t

he t ri al cour t t o va cate a nd rel ea se t he- 3 -

mechan ic's lien filed by plai ntiff.

In Ja nuary 2008 , the tria l court gra nted de fendant's mo tion t o dismiss, finding the "allegations as th ey currently stand do n ot give rise to causes of action th at would survive an affir

mative def

ense raising t

he [Act]." The court al lowed plaint

iff 21 days to repl ead. Plaintiff t

imely file d a second amended co mplaint, alleg ing brea ch of
con tract ( cou nt I), f

oreclo su re of th e mech ani c's lien (cou nt II), a nd p romis sory estoppel (cou nt III). D efendant filed a motion to dismiss , renewing his arguments as they r ela te t o the Act

and cla iming pl aintif

f was pr ecluded f

rom r ecove ry under

any equitab le t heory w hen he viol ate d Ill

inois la w. Af ter consider

ing counsel s' ar

gument s, the trial co urt den ied defen dant's motion, fi ndin g:

"I t se em s to

me tha t b ase d upon

the al le ga tio ns in the pleadin g that the re are issu es of material fac t that sh ould
re quire t his c ase to gofo rw

ar d. Tha t do esn 't m ea n the [p]lai ntiff's going to wi n at trial. I'm goin g to have to h ear all of the eviden ce but Iam t rouble d and--a nd I've made this pret ty cle ar to bot

h of you abo ut the issue of the per iodic payments being au thorized. Perhaps it is s ignificant that [defe ndant] i nitiated the contac t ra ther t han [plaintiff

] doing so. Perhaps it is signif

icant that [def

endant] while the project was in th e proces s of goin g on that h e ask[ed ] [plai ntiff] to do e ven mo re wo rk. These a re a ll f acts pl ed in this case- 4 - that are a

bsent fro m the t

hree r epor ted a ppell ate court de cisio ns. A nd s o I'm go ing to err on th e sid e of ca uti on h ere and rather

[than] dismiss the case on the pleadings, I'm goin g to allow it to go forward to an e vid enti ary h earin g. Perhap s some d ay I'll be enli ghtened by the [ a]ppellate [c]ourt, as wil

l all trial judges in the State, so we all know whether there

can ever b e an except

ion to the applicat

ion of this Act. " Defe nda nt f

ile d his ans wer

to the second am end ed complaint , rais ing the foll owing a

ffir mati ve def enses: (1 ) plaint

iff f aile d to co mplete the w ork and defe ndant
wasfo rc ed to hir

e a not her contr actor

to fin ish t

he pr oje ct a nd (2 ) pl aintif

f v iol at ed t he Act by f ailing to sec ure a wr itte n and sig ned contract befo re b eginning

constr uction. On October

16 and 1 7, 2008, the trial court conducted a bench tria l. Prior to the prese ntation of e vidence, upon plaintiff's r equest, the court took judicial notice of the follow

ing ad missions o f def

endant : (1) in o r pr

ior t o August 2006 , be

for e const ructio n bega n, pla

int iff pr ovi ded

def end ant wit h a w ri tt en w or k or der tha t co nta ine d th e scope a nd cost ( $55, 395) of the propos ed construction w ork and (2) during

the construction project, plaintiff w ent with defendant to defe ndant's bank for the purpose of
receiving partia

l paym ents a nd signing lien w aiver s. Defendant was first to testify as plaintiff's adverse witness. He testified that during the summer o f 2006, he a pproached plaintif

f about perf

orming constr

uction work on his home. Def

endant , a pl

umbing co ntra ctor , had wo rked with pla intiff and- 5 -

was confident in the quality of h is work. Defendant wanted plaintiff to build a garage,
rem odel the interior

of the home, and wor

k on the e

xisting porch. Def

endant and his fiancé e (n ow hi s wi fe ), Robe rt a Ke nne dy, met w ith plaintiff

at the ir hom e t o di scuss the project. P laintiff i nitially su bmitted a wri tten bid for $80,00 0. Defendan t and plai ntiff discussed a different pl an to re duce the cost. Plaintif f then resubmitt ed a writ ten bid for $55,395, the document attached to plaintiff's co mplaint and identified as exhibit A at trial. Def

end ant agre ed to a llow p lain tiff to do th e sp ecif ied w ork for t hi s amo un t. Plaint iff e stima

ted t he job wo uld be co mpleted in three mo nths. Durin g the cou rse of the c onstru ction , plainti ff accomp anied d efendan t to the ba nk four t

imes f or pa rtia l dra ws and e xecutio n of l ien wai

vers . De fendant and Kenne dy resi ded in the h ome du ring con struc tion. "A t some po int in time," plai ntiff provid ed def

endant with ano ther i nvoice, a docume nt ident ified as exhibit

B, refl ecting a bal ance due o f $12 ,477.37 . De fendant said he

ref used to pa

y that a mount. The seco nd document

att ached t o plai ntiff

's compl aint, identif

ied as e xhibit C at trial , which indicat ed an amount due fo r "add itiona l wor k" of $8, 618 , wa s not provided to def endant by plai ntiff bu t by plai ntiff's attorney after th e lawsu it was fi led. Defendan t refused to pay th at amoun t as well.

Defendant testified that he created a three-page punc h list, identified as exhibit D, listing the items that remained u nfinish ed and setting a deadline for completion of April 24, 2006. He ga

ve this do cument t o plai ntiff , who co mpleted "a f

ew thing s" on the list before the deadline.

Plaint iff was the nex

t to testif y. He said he kne

w defe ndant f

rom w orking- 6 -

in the cons tructi on business a nd empl oyed him in t he past as his plumbing subcontr actor. In the summer of

2006, def

endant approached him about a remode ling project

on his home. Plaint

iff sa id he and de

fendant discussed t

he proje ct "[q] uite a b it." Defendant agreed to pay plaintiff $55,395 for the work set forth in the docu ment identified as exhib it A. Plai ntiff gave d efendan t a copy of the do cum ent before starti ng the p roject.

Plainti ff said d efendan t paid h im fou r installmen ts and d id no t object to any of th e work. Kenn edy was "there mo st of the time," and if sh e was no t satisfi ed with somet hing, she

would discuss it

with pla intiff . On o ccasion, she would give inst ructions on how she wanted t

hings done , which som etim es include d item s that w ere not wit hin the original scope of work. Plaintiff said h e tried to please her because he con sidered defe ndant a

frie nd, which, he expl ained, was "probably one rea son why [ther

e was] no signatu re." He said Kenne dy seem ed to be u nhap py "w ith a lot o f thin gs." Plai ntiff realize d th e sit uat ion was ge ttin g diff icu lt wh en h e recei ved d efend ant' s pu nch list
. Ma ny o f t

he item s onthe

punch list

wer e item s tha

t w er e no t in clud ed i n ex

hibit A (the writte n work orde r).

Plaint iff was tende red a

document , iden

tifie d as ex

hibit G, which was a copy of the punch list

(ex hibit D ) with hi s no ta

tio ns a s to

whic h items w

er e part of the origi nal bi d and whi ch were n ot. Ac cord ing to plai ntif f, 36 of t he 67 items list ed we re not contempla

ted in t he bid. Plaint

iff sa id he beg an wor

king on t he item s on the punch list that were included in the bid bu t stopped when he realized he was not going to get pai d. He s aid

def end ant sti ll compla ine d af te r p laintiff

had comple

te d so me of the items. According to plaintiff, the "additi onal work" listed on exhibi t C, which con sisted- 7 -

of wor k outside o f the b id amo unt and total ed $8, 618 , wer e ite ms re quested

by defendant and completed by plainti ff. Plaintiff testified that defendant owed him $ 12,477.37,
as s et fo rt h in e xhib it B , p lus $ 8, 61 8, as s et fo rt h in e xhib it C . P laintiff

dem and ed t

he
amoun t due , but defe ndant refu sed to p ay. As a res ult of d efendan t's refu sal, plain tiff file d and recorded a m echanic's lien on t he prope rty ( exhibit

E). Pl aintif

f said d efen

dant neve r aske d h im to l eave th e job ; h e left vo lun tarily
.

On cro ss-e

xa min ation , p laintiff

admitted n ot

pr ovi ding

def end ant wit h the consumer-rights br

ochure as required by t he Act. In fact, he said, he did not know anything about t he Act or the br ochure until

consulting

with an a

ttor ney abo ut filing

his lawsuit. Plaintiff cou ld not recall the date he began work but believed his last day was no later t han April

24, 2007. Plaint

iff r este d. The tr ial r esumed t

he next day. First

to te stify f

or de fendant was L

ewis Schrock, a l ocal contractor who had compl eted most of the item s on the punch list for defendant. Defe ndant had paid him $3,285. 89 on Dece mber 5 , 2007, and $5,24 2.90 on Febru ary 29, 2 008 , to corre ct th e work or com plete the t hi ngs n ot do ne by plai ntif f. Sch rock s aid h e typ ical ly wo uld get a si gned writte n agreem ent be fore do ing a ny w ork fo r c usto me rs but, since he

kne w de fe nda nt, he di d no t. He w as n ot fa miliar wit h the brochu re identi fied in the Ac t. Defendant p aid Sch rock in full des pite th e absenc e of a sign ed wri tten ag reemen t and with ou t recei vin g the b roch ure .

Rob er ta Gin ge ri ch, f/ k/ a R

obe rt a Ke nne dy, re cal

le d g ivi ng plaintiff

the punch list

on A pri l 1 0, 200 7. Pla

intiff to ld h er he w ould ta ke c ar e o f t

he item s onthe list. Gingerich described, in detail, those items s he felt plaintiff either did in an- 8 -

un workmanli ke mann er or failed to do . She also d escribed the work S chroc k did to
corr ect t he problems
. Defendant described his understandi ng of the scope of the work contemplated in his agreement with plaintiff, the quality and qu antity of the work performed by plaintiff, and the work per forme d by Schrock. In r ebutta

l, pl aintif

f te stifie d as to

the qual ity of

his work. In his opinio n, he performed each indi vidual job i n a workmanlike manner and the work completed by Sch rock w as ou tsid e the sco pe of t he o rigin al agreeme nt.

The parti es s ub mitte d wri tten c losi ng argu ments , and o n Nov ember 2 1,
20 08, the

tr ia l c our t e nt ered a d et aile d judgm en t, aw ardin g p la

int if f $ 9, 59 4. 03 p lus costs. The court

found pla

intiff had substant

iall y compl ied wit

h the Act b

y provi ding defendant with a written bid and work order after extensive discu ssions an d negotiations regarding the construc tion project. Of the $55,395 contract price, defendant had paid $39,895 , lea

ving a bal ance due of $15, 500. The court f ound plaintiff was not entitled to recover

any of the $8,6 18 amount bill ed for "a dditional wor k" as he had not provid ed def

endant with a wr

itte n work

orde r or invoice for

this amo unt prior

to fi ling hi s laws ui t. Th e parti es h ad no t nego tiated the c ost o r sco pe of t hi s "ad diti onal w ork."

The tr ial cour t f urt her fo und de

fe nda nt w

as e ntitl ed to a

cr edit in the
am ount of $3, 62 8. 97

fo r m at er

ial s, in t he f orm of fl oor ing , d oor s, and lo ck s et s, tha

t he had provided p laintiff during the p roject. In addition, defendant was entitled to an offset in the amoun t of $2,277 for the amount paid to Schrock. Defendant had reques ted an offs et in th e amou nt of $8 ,528.79 as the to tal amoun t he pai d Sch rock to- 9 -

comple te or corr ect pl aintif

f's wor k. However, the court f ound that b ecause S chrock had i nitial

ly o ff er ed to co mpl et e t

he item s onthe

punch list

fo r $4 ,9 50 , t

hat wa s the maximum amount of of fset to b e awarded. Because only 31 of the 67 items (or 4 6%) on the pu nch list were p art of the origi nal agreement betw een plai ntiff and defendan t, def end ant wa s entit

le d to an o ff set fo r t he co sts ass oci at ed w

ith t hose 31 items o nly . T

he court a ward ed def

endant an off set in t he amount of $2, 277, or 4 6% of $4,9 50. Finally, the trial

court found the mechanic's lien plaintif f had filed on Au gus t 30, 2 007, w as u ntim ely an d co uld not p roceed to a fore clos ure acti on. Th e cou rt cited s ectio n 7 of t

he Mecha nics Lien

Act (77 0 ILC S 60/ 7 (West 2006)) and fo und plainti ff filed th e lien more th an fou r months after he comp leted the w ork on A pril 24, 2007. This appea

l and cr oss-appe al f

ollo wed. II. ANAL YSIS In defend ant's ap peal, he c laims th e trial cou rt erred in awardi ng plain tiff monetary damages in light of plaintiff's violations of th e Act. Defendant insists th at plaintiff co mmitted "unlawf ul acts" by failing

to (1) secure a

signed contra ct and (2) provid e def

endant with a co nsumer-r

ights b rochure . These

fail ures, d efen dant cl aims, are fatal t o plai ntif

f's a ctio n for rec overy of any amou nt du e for th e con stru ctio n wo rk. Defendant argu es that, i n effect, th e cou rt's ju dgment h as created c ertain excep tions to stric t compl iance w ith the Act

and placed the

burden o f obt aining a signe d contract and recei pt of t he b roch ure up on th e con su mer.

Plaint iff cr oss-appe als, claiming the tria l court err ed in pr ecluding

his recovery for the "additional work." He also claims the cou rt erre d in denyi ng relief- 10 -

un der the Mec hani cs Lien Act. A. Re cover y Under the Act The issue in t his c ase is w het her pla intiff is pr ecl uded from r eco ver ing the amount he claim s is due from def endant when ther

e was no signed contract and no delivery by him of the co nsu mer-rights brochure to defendant. The trial cou rt denied defendant's motion to dis miss plaintiff's c omplaint and allowed plaintiff to recover des pit e no nco mpl ian ce w ith a ll the re quirem ent s of

the Act . D ef

end ant ar gue s the
cou rt's d ecis ion was e rror. We d isag ree.

The Act r

equire s that f

or a ny repa

ir or rem odel ing wor

k over $1,0 00, "a per soneng ag ed i n the

busin ess of

hom e r epa

ir or re mod el ing

shal l f urni sh to

the
cu stom er for si gnatu re a writ ten c ontrac t or work order." 815 ILCS 513 /15 (Wes t 200 6). This contr

act o r wor

k orde r must m eet cert ain discl osure require ments , incl uding cost and t he n ame an d add ress of th e con stru ctio n co mpan y (8 15 ILCS 513 /15 (Wes t 200 6)). The Act a

lso require s that " any person eng aging in the busines s of home repa ir and
re mo de li ng sha ll pr ov ide toit s cus to me rs a c opy of the 'Ho me Repa ir : Kn ow

Yo ur Consumer

Right s' pamphl et pr

ior t o the e

xecutio n of an

y home repair

and remodeling contract"; t

he tex t of t his brochure

appea rs in t

he stat ute itse lf. 815ILC S 51 3/20 (W est 2006). The Act specif

ies that it is "unlawful for any person enga

ged in the business of home repairs and remodeling to remodel or make repairs *** before obtaining a signed contract o r wor

k orde r [when t

he amount of the

work is] over $1,0 00." 81 5 IL

CS 5 13/3 0 (West 2006). The parti es do not d isp ute that the A ct ap plie s to th e facts of th is c ase.- 11 -

Nor do they d

ispute that

(1) de fendant did not

sign t he wor k orde r and ( 2) pla

intiff did not provide defendant with the brochu re. Given these facts, the issu e is whether plai ntif f su bstan tially comp lied with the A ct so as to a llow h im rec overy from de fend ant. Whether there

is substantial compliance with a statutor y provision is a question of la w, and our st andar

d of review

is de novo . Mashni C orp. v. Bo ard o f Ele ction C ommissio ners , 362 Ill. App. 3d 730, 739, 841 N. E.2d 60, 68 (2005).

The two statutory section s pertinent in th is case u se the word "sh all" when des cribi ng t

he co ntr actor 's dutie s. Fir

st, in se cti on 1 5, the

sta tut e st at es t

hat the contracto r "shal

l furnis h to the c

ustomer for signat ure a wr itte n contract o r wor

k orde r." 81 5 I LC S 5 13 /1 5 ( Wes t 2 006 ). The n, in se cti on 2 0, the le gi sla tur e pr osc ri be d th at the contract or "shall provide to its customer s a copy of" the brochure. 815 I LCS 51 3/20 (West 2006). Typically, u se of the word "shall" in a statutory provision i ndicates that the l egis latu re in tend ed a ma ndat ory, rath er tha n a di rectory , prov isi on. H owev er, a manda tor y provi sion doe s not a

lways req

uire str ict compliance . "Subst antia l compliance can satisf

y even a manda tor y provi sion." Jakstas v. Koske , 352 Ill. A pp. 3 d 861, 864, 81 7 N.E. 2d 200, 203 (2004).

Therefore, th e ques tion befo re us i s wh ether su bstanti al, rather than strict, compli ance wi

th a mandato ry sta

tutor y req uireme nt in this case is per missibl e and, if so, whether pl aintiff dem onstrate d such compliance. To answer this question, we conduct a t

wofol d anal

ysis. Fi rst, we lo ok to t he purpose o f the Ac

t to d eter

mine whether the pu rpose was achieved w ithou t strict compliance. Next, we decide whether defen dant su ffered a ny p reju dic e from p lain tiff' s fai lure to stri ctly comp ly wi th th e Act
.- 12 -

See Jones v. I ndustrial Comm'n , 188 Ill. 2d 314, 324-2 6, 721 N.E.2d 563, 568-69 (1999) (th e co urt

fo und t he pe tit ion er had subst ant

ial ly complie d with t

he req uire me nts of

the Wor ker s' C omp ens ationAct

toade quatel

y ful fil l t he pur pos e o f t he st atute

and the respondent was not

prejudiced by the petitioner 's actions). To ascertain the pu rpose of the Act, we look to the statutory language u sed there in an d giv e the words thei r plai n an d ord ina ry mean ing. MD El ectr ical C ontr actors, Inc. v. Abrams , 228 Ill . 2d 2 81, 287, 888 N. E.2d 5 4, 5 8 (2008). "[I]t is not suff

icient to re ad a po rtio n of t he stat ute in isol ation . We must, instead, rea d the st atute in its ent iret y, ke eping in

mind the subject it

addr esses and the l egisl ature 's appar ent object ive in e nacting

it." MD Elec trica l Cont ractors , 228 Il l. 2d at 287, 888 N .E.2d at

58. The Act went into ef

fect on January 1 , 2000. Its purpose was to improve communi cation between consu mers and persons engaged in the bu siness of h ome repairs o r rem odeling in order to "increase consumer confide nce, re duce the likelihood of disp utes , and promo te fair and h onest p ractices in [th e repair and remodelin g] bus iness in th is State." 8 15 ILCS 513/5 (West 200 6). As a mean s of ach ievin g this goal, the le gi sla tur e e nac

te d se cti on 1 5, the

sec tio n r ef er enc ed a

bov e r eq uiri ng t hat the contracto r, prior to ini tiating rep air or remodelin g work over $1,00 0, "sh all furni sh to the cu stomer for si gnature a w ritten con tract or work order th at states th e total cost, includ ing parts and materials listed with reasonable particularity and any charge for an est ima te . I n ad dition , t

he co ntr act shal l st at e t he b usine ss name

and add re ss o f t

he perso n enga

ged in the business o f home repa ir or rem odel ing. " 815ILC S 51 3/15 (West 2006). The contractor must alsoprovid e the custo mer with a co py of t

he pamphle

t:- 13 -

"Ho me Rep air: K now You r Cons um er Righ ts" p rior to the e xecu tion of any con tract. 815 ILC S 51 3/20 (W

est 20 06). Further , the Act pr ovides t hat it i s "unlawf

ul for any person enga

ged in the business of home re pairs and re modeling to remode l or ma ke repai rs ** * befo re obtai nin g a sign ed co ntrac t or work order [ for] ov er $1,0 00." 815 ILCS 5 13/30 (West 2 006).

It is clear from th ese statu tory secti ons th at the legis lature in tended to prot ect unsuspecti ng home owners fro m empl oying de ceptiv e cont ractors or

dishonest individualsposing a s contracto rs. Howev er, the Act , as w

ritten, not onl

y prot ects t

hose homeown ers co nsider ed "pre y" but al so pro mote s good business practices by re quiring that t he scope o f the pr

oject be reduced to

writ ing. As Justice W

olfs on said: "[T]here

is somet hing to b e said f

or predicta

bilit y of cos t and co nsumer e xpect ation ." K. Miller Constr uction Co. v. M cGinnis , 394 Ill. App. 3d 248, 268, 913 N.E.2d 1147, 1163 (20 09) (Wolf son , J ., diss ent

ing ). Tha

t is , n ot onl y hasthe le gi sla tur e so ught

to pr ot ect

the
un wary con su mer, it has codifi ed a sou nd bu sines s practi ce for the p rotection of both the h onest c ontractor an d the i nformed c onsu mer. "[T]h e Act app ears desi gned to h elp define some r easona ble b oundarie s for

a home[ -]improveme nt pro ject. " Centr

al I llino is Electrical Services, L.L.C . v. Slepian , 358 Ill. App. 3d 545, 549, 831 N. E.2d 1169, 1 173 (20 05). For fu rther gu idan ce in inte rpreti ng th e Act , we loo k to ou r comm on law
. Six Il lin ois publ ishe d ap pel

la te opi nio ns appl

y, int er pre t, ana lyz e, and disc uss t he provisions of the Act. See MD Elec trica l Cont ractors , 228 Il l. 2d at 286-96, 888 N.E. 2d at 5 8-63; Slepian , 358 Ill. App. 3d at 548-5 1, 831 N.E.2 d at 11 72-74 (Third D istrict);- 14 -

Smith v. Boga rd , 377 Ill. App. 3 d 842, 844-48 , 879 N.E.2d 543, 545-48 ( 2007) ( Fou rth Distr ict); Kunk el v. P.K. Dependable Construction, LLC , 387 Ill . App . 3d 1153 , 1157-61, 902 N .E. 2d 76 9, 774-7 7 (2009 ) (Fift h Distr ict); K. Mill er Constr

uction , 394

Ill . App. 3d at 25 5-65 , 91 3 N.E .2d a t 11 52-6 1 (Fir

st Dis tric t); Artisan De sign Build, Inc. v. Bilstrom , No. 2-08-0855, slip op. at 5-18 (September 22, 2009), ___ Ill. App. 3d ___, ___,

___ N. E. 2d _

__ , _
__ (Se con d D ist ri ct) . Not one of the se p ubli shed

opi nio ns a ddress es t

he issu e cu rrently before th is cou rt: wheth er a written, u nsign ed work orde r sub stantially satisf ies the r equire mentsof the

Act. We wil

l discuss those

repo rte d decisio ns in chr ono lo gi cal

or der to est ab lis h the

fr am ewo rk

thus f ar of the cour ts' app lic ationof

the Act. First , in Slepian , the Third District held that the Act applied to

a successor ele ctri cal co ntra ctor

despite the contractor's ur

ging that it did not "i nitiate" the co nstruction p roject for the homeowners as required by sec tion 15 of the Act (815 ILCS 513/1 5 (West 2006 )). The court re versed the trial court 's decision that the Act did not apply an d remanded for furth er proceedi ngs, noti ng that th e contracto r had faile d to provide the homeown ers with "a written work order of reasonable particularity" as requ ired b y se ctio n 15. Slepian , 358 Ill . App. 3d at 5 49, 831 N .E. 2d at 117 2-73. Nex t, in Smith , this cou rt held that the contractor's failure to provide a writ ten co ntra ct or

work orde r and t

he consumer -rig

hts bro chure prio r tobeg inning
con stru ctio n defeated h is le gal and equ itabl e clai ms fo r recov ery. Smith , 377 Ill . App. 3d at 848, 879 N.E. 2d at 548. The contractor had proceeded with con struction after provid ing the homeow

ners o nly wit

h an ora l est imat e of "$2 0,000 o r le ss" as the cost- 15 -

for labo r and m aterial s. Smith , 377 Ill. App. 3d at 843, 879 N.E.2d at 545. We held that the contractor's f

ailure to com ply wit h sever al pr

ovisions o f the Ac

t pre cluded his bre ach-of- contract and qua nt um - mer uit clai ms. Smith , 377 Ill. App. 3d at 848, 879 N.E.2 d at 54 8.

In MD Elec trica l Cont ractors , the supreme court a ffir med t he Seco nd District' s deci sion and h eld that " it is c lear that th e statu te un ambigu ous ly appli es only to thos e who directl

y contract wi

th a home owner ," which, in that case did not include the p lain tiff s ub con tracto r. MD Elec trica l Cont ractors , 228 Ill. 2d at 291, 888 N.E.2d at 60. The court did n ot reach the issu e of whether the su bcontractor was able to recover
un der the equ itable the ory of qua nt um mer uit , as th e cou rt deem ed th at is su e forfei ted. MD Elec trica l Cont ractors , 228 Ill. 2d at 299-3 00, 888 N.E.2d at 65.

Next, the Fifth Distr

ict held that the consumer could have a cause of action un der the Consu mer Fraud and Deceptive Bu siness P ractices Act (815 ILCS 505/1 th rou gh 12 ( West 200 2)) w hen the c ontrac tor fai led to prov ide t he c ons um errig hts bro chure, a s req

uired by se ction 2 0 of t he Act (81 5 IL

CS 5 13/2 0 (West

2002)), if the con su mer cou ld prove th at the failu re to provid e the broc hu re was a proxi mate
cau se of h is o r her d amages . Kunk el , 387 Ill. App . 3d at 1160, 902 N.E.2d at 776.

The First Dis tric

t re jecte d this court 's decisio n in Smith and hel d th at

the contracto r's vio

lat ions of t he Act did not pre clude his re cover y in qua nt um mer

uit
. K. Miller Construction , 394

Ill . App. 3d at 2 54-5 5, 9 13 N. E.2d a t 11 50. The court

considere d the par

ties' o ral agr eeme nt for

rem odel ing wor

k on the consumers ' home a nd found that

such an agr

eeme nt was n ot enf

orce able under the

Act due to

the Act 's writ

ing- 16 -

requ iremen t. K. Mill er Constr uction , 394 Ill. A pp. 3 d at 252 , 913 N.E.2 d at 1152. However, t

he court concluded t

hat the writ ing r equire ment o f the Ac t did not foreclo se an equitable t

heory of recovery be

tween, in t

hat particular

case, an honest co ntracto r and a "so ph isti cated " co nsu mer. K. Mill er Constr uction , 394 Ill. A pp. 3 d at 250 , 913 N.E. 2d at

114 9-50 . Finally , the Secon d Distric t cons idered wh ether a con tractor's fai lure to provide the homeowne rs with the consumer-rig hts brochure in violation of section 20 of the Act (81 5 ILC S 513/ 20 (West 2006)) f orfeit ed his legal

and equitable ca

uses of acti on. Artisan Design , s lipop. at 13 , _
__ Il l. App. 3d a

t _

__ , _
__ N. E. 2d a

t _

__ . T he part ies had e ntered into

a wr itte n and sig ned contract for the r emode

ling o f the de

fendant s' h ome. Artisan Design , slip op. at 2 , ___ Ill. A pp. 3 d at ___ , ___ N.E.2 d at ___
. The de fendan ts locked the plai ntiff ou t of the p roject and hired anoth er contractor to fini sh the w ork wh en a p ortio n of th e con tract p rice re main ed u npa id. Artisan Design , slip o p. at 2, ___ Ill. App . 3d at ___, ___ N.E.2d at __ _. The h omeowne rs moved to dis mis s th e con tracto r's la wsu it agai nst them , clai min g he w as p reclu ded f rom rec overy du e to h is fa ilu re to pro vid e the m wit h th e con su mer-ri ghts broch ure . Artisan Design , slip o p. at 2, ___ Ill. App . 3d at ___, ___ N.E.2d at __ _. The co urt con clud ed that a contract or's failure to provide the brochure may provide a homeowner with a cause of action un der the Consu mer Fraud and Deceptive Bu siness P ractices Act (815 ILCS 505/1 through 12 (West 2006)) bu t does not "vitiate the contractor's right to recover either in equity o r in l aw." Artisan Design , slip op. at 15, ___ Ill. App. 3d at ___, ___ N.E.2d at ___.- 17 -

The question presented i n the case sub judice has not been answ ered by the appellate or supreme court: wh ether a written but uns igned work order, tendered by the co ntra ctor

to the homeow

ner, substant

iall y compl ied wit

h the inte nt of the Act so as to a llow th e con tracto r to pu rsu e recov ery of a ny o uts tand ing a mou nt h e clai ms d ue . We find that, in thi s case, plaintiff su bstantially complied with the Act and the trial
cou rt did not err i n den yin g defen dant 's mo tion to di smi ss.

The te st im ony

at tr ia l r ev ea le d t hat de fe ndant

co nt ac te d pl ai nt if

f a bo ut remod elin g hi s h ome. Th e two h ad wo rked to gethe r on c ons truc tion jobs in th e pas t. They met to dis cus s the s cope of th e projec t, and after thei r discu ssio n, plain tiff subm itted to de

fe nda nt a

wr itten b id f

or $80, 000 . D ef

end ant re jec te d th at bid , a nd t

he two parties reworked th e scop e of the p roject. Pri or to ini tiating th e work, plain tiff submitted to defendant a written work order in the amou nt of $55,395. This work order contained (1) plaintiff's name, address, and telephone nu mber; (2) defendant's name, address , and teleph one nu mber; (3) a somewh at detailed d escrip tion of th e projec t, inclu ding a li st of sp ecific ations and materials ; (4) th e cost of eac h in divi dua l job as w ell as the to tal cost; an d (5) a no te that defen dant wou ld provi de the elec trical, plu mbing, heat ing, a nd c onc rete mate rials and l abor.

Our dec isio n that p laintiff s ubs tantially c omplied with the Ac t rests primarily on the fact that there existed a writing between the parties and eviden ce that each par ty had a ccepte d the wr

iting as their

contract. Each side k

new the cost a nd scope of the ent ire pr oject based on that writ ten wo rk or

der. Unlike

the par ties in K. Miller Construction , Smith , and Slepian , the contractor and homeowner in thi s case had- 18 -

neg ot iated t

he scope and cos t o f t he pr oje ct a nd reduc ed i

t t o wr iti ng. Inea ch of

the previ ou s dec isi ons , the re spe ctiv e cou rt has held that the A ct u namb igu ou sly b ars enforcement of an oral contract. S ee K. Mill er Constr uction , 394 Ill. A pp. 3 d at 254 , 913 N.E. 2d at

115 2; Smith , 377

Ill . App. 3d at 8 45, 879 N .E. 2d at 546 ; Slepian , 358 Ill . App. 3d at 5 49, 831 N .E. 2d at 117 2. As t

he supreme

court st ate d in MD Elec trica l Cont ractors , the Act "wa s de sig ned

to re gul at e t

he co mm unica

tio ns b et wee n co ntr

actor s an d th e
consumer

/home owner ." MD Elec trica l Cont ractors , 228 Ill. 2d at 289, 888 N.E.2d at 59. The best evidence of those "commu nications" is a written documen t, rather than each per son's inte rpre

tat ion of v erb al co mmunicat

ions. Def endant appro ached pl aintif

f abo ut perf

ormi ng the work . This is signif icant in ter ms of t he purpose o f the Ac

t bec ause the l egisl ature intende d to pr

otect hom eo wne rs from b ein g a ppr oa ched

by disho nes t in div

idua ls w ho ho ped

to deceiv

e t he unwary. "Accordin g to the floor debates, t he Act was desi gned to deal with con tracto rs th at 'p rey on sen iors [and ] h omeow ners aft er dis aste rs' (9 1st I

ll. Gen. Assem. , House Pr oceed ings, May 20, 1 999, at 17

(statements of Representative Fritchey)), and those who 'simply go up and down the street lo oking for the el der ly, [an d] l ook

ing fo r t he unp ro te cte d, lo oki ng f or the unin formed' (91st Ill. Gen. Assem., House Proceedin gs, May 20, 1 999 , at

20 (sta teme nts of

Represent ative

Winter s))." K. Miller Construction , 394 Ill. App. 3d at 263, 913 N.E.2d at- 19 - 1159. In this case, pla

intiff and def

endant, both engage d in the construction trades, negotiated the scope and cost of the project u ntil they finally reached an agreement as to wh at the proj ect wou ld entail. Be fore beginn ing con struc tion, plai ntiff tend ered to defen dant a writt en wo rk orde r that repres ented thei r fina l agreemen t. Def endant did not d

ispute the contents of t hat wor k orde r, a

nd plaint

iff b ega n constr

uctio n. Thr oug

hout the course o f t

he pr oje ct, def end ant pai d pl aintif

f se ver al dr aws . T

he fact th at th eir relat ion sh ip s ou red h ad no thi ng to d o wit h p lain tiff' s fai lure to sec ure defendan t's si gnature o n a con struc tion c ontract.

Nor can de

fendant ar

gue that he suffere d any prejudice by plaintiff 's failu re to strictly comply with the prov isio ns of th e Act, in clud ing plai ntiff's failure to provid e him wit

h the consumer

-rig hts bro chure. As t

he court he

ld in Artisan , t

he br ochure m er el

y ins tr ucts the hom eo wne r t o co nta ct t he S ta te 's At to rne y or the Attorn ey Gen eral if h e feels he h as bee n def raud ed by a con tracto r. Artisan , slip op. at 14 , _
__ Il l. App. 3d a

t _

__ , _
__ N. E. 2d a

t _

__ . B eca

use d ef end ant (1 ) ne go tia

te d th e scop e and co st of the project, ( 2) accep ted the w ritten work o rder provid ed by p laintiff before plain tiff began th e cons tructi on proj ect, and ( 3) pai d plain tiff in s everal ins tallments durin g the course of the project, h e cannot reasonably argue that he su ffered prejudi ce or that he had been defraud ed by plaintiff. Defendant may have been diss atisfied with plainti ff's qu ality of wo rk and fou nd it n ecessa ry to hi re Schroc k to remedy some of his comp laints. However, defendant did not contend th at he hired Schrock beca use plaint

iff had enga ged in decept

ive pr actice s. Unde r thes e fa cts,- 20 -

defen dant cann ot dem ons trate th at plai ntif f's failu re to se cu re hi s si gnatu re on th e work orde r or plaint iff's f ailure to provide him

with the consumer- rig hts bro chure proximately caused h im damages. See Artisan , slip op. at 12, ___ I ll. App. 3d at ___, ___ N.E. 2d at

___; Kunk el , 387 Ill . App . 3d at 1160, 902 N.E.2d at 776. In su m, based on the record before us , we find p laintiff s ubs tantially compli ed wit

h the pro

visions a nd purpose o f the Ac t by ne gotiating

with def endant regarding the scope of the work and cost and by presenting defendant with a written work orde r, w hich containe d the de

tail s of t he proje ct wit

h "rea sonabl e par

ticular ity" and incl uded plain

tiff 's business na me and

addr ess as r

equire d by sect

ion 15of the

Act (815 ILCS 51 3/15 (West 2006)). We further find defendant was n ot prejudic ed by pla intiff 's f ail ure to str ict ly comply w

ith e ver y provi sio n of

the Act . T hus, w e ho ld t he tria l court did not e rr i n denying

defe ndant'smotio n to dismiss. B. Calculation of Damages Defendant next contends that the tria l court er

red in calculat

ing plaintiff

's dam ag es. Spe cif

ica ll y, he a rg ues t hat he w as e ntitl ed to a n am ount grea te r t han t he $2,277 awarded as cre dit fo r the amounts he paid to Schrock . On t

he other hand, plaint iff co ntends t

he court' s calcul ation

of the offs et a mount wa s prope r; howe ver, in his c ro ss-a

ppe al , he conte nds he

is e ntitl ed to dama ge s fo r t he "addit

ion al wor k" t hat he complete d. Because we find t he court erred in its calculation of the offset

amount, we reverse the award of damages and remand for the court to recalculate the proper amount to be credited to defendant. We affirm the award of damages in all other respe cts.- 21 - "Under the doct rine o f substa ntial

perf orma nce, t he general

rule r ega rding building contracts is that a builder is not r equire d to pe rfo rm pe rfe ctly b ut, ra ther, is only hel d to a

duty of subst antia

l per formance

in a wor kmanl ike manner. " Howard v. Jay , 2 03 Ill . A

pp. 3d 5 39, 54 4, 56 1 N .E .2 d 27 4, 27 8 (1 99 0). The

hom eo wne r, who receives subs tantial performance of the building contract, must p ay the price bargained for, les s an y offs et for d efects in w hat h e recei ved as comp ared to wha t stri ct pe rformanc e wou ld h ave gi ven h im. Howa rd , 203 Ill. App. 3d at 544, 5 61 N.E.2d at 27 8. See al so R est at em ent

(Se con d) o f C ont ra cts§34 7, at 11 2 (1 98 1) (th e in

jure d pa rt

y hasa r ight to damag es as measured by t he loss in the value to him caused by the other party's breach, plus any incidental or consequ ential loss, less any cost that h e has avoided by not having to per

form). The evid ence pr

esent ed at

tria l re veal ed that

defe ndant o

wed the bala nce of $15,500 from the original contract price. The trial court foun d that plaintiff had substant iall y perf orme d the cont

ract and wa s due that

bala nce, l ess the costs of

floo ring and oth er items th at defendan t had p aid for in the amou nt of $2,20 9.29, leaving a balance due of $1 3,290.7 1. Beca use defendant had hired Schrock to complete items on the pu nch list th at were not completed by plaintiff, defendant was entitled to an offset for those items. Defendant had paid Sch rock $8,528.79. However, the court fou nd that much of the work that Schrock performed was not contemplated in th e original agreement between plainti ff and defen dant. Ac cordin g to plainti ff's testi mony, 3 1 of the 67 items on th e pu nch list (or 46% ) were i nclu ded i n th e sco pe of t he o rigin al agreeme nt. Sch rock h ad in itia lly offered to perform all of th e 67 ite ms on the p un ch list for $4,9 50.- 22 -

Beginning with that sum as th e maximum amoun t of offset to which defendant was entitled, the court reduced th e amount by 46%. The cou rt ruled defendant was entitled to an o ffse

t in the amount o f $2, 277 f or t he punch-list it ems paid to S chrock. We find thi s cal cu latio n to b e in error.

The evidence d oes not su pport the trial court's apparent assu mption that every one o f the 31 ite ms on the punch list cost the same to co mplete in t erms of materi als an d labo r. A more accu rate offs et amou nt sh ou ld be c alcu lated. T he c ou rt should conside r add

itiona l evid ence, if nece ssary, in orde r tocalcula te t he amount defendant paid to Sch rock for each of the 31 items that Schrock comp leted, items that plai ntif f sh ou ld h ave co mplet ed as part of the o rigin al work order. With the e

xcept ion of t he tri al co urt's pe rcent age -base d calc ulatio n, we

do not dist urb the co urt's f

indings. Ever

y other calcula tion refer

enced a bove was supported by t

he evidence, including the court's f inding that plaintif

f is precluded fr

om
reco veri ng any f

urther amount f

rom d efen dant f

or "a dditiona

l wor k." No evide nce in the record suggests defendant was n otified or aware that the original work order had been amended or modified, and therefore, plaintiff is not entitled to any addition al
amoun t. As stat ed ab ove, the Act prohibits the enf

orce ment o f any o ral

construction or rem odel ing cont

ract . Se e 815

ILC S 51 3/1 through 9 99 (W est 20 06). "Not

hing in the Act pr ecl udes a co ntr

actor from p ro

vid ing an up dated e sti ma

te or wor k or der as t he circumst ances m ay war rant ." Slepian , 358 Ill. A pp. 3 d at 549, 8 31 N.E.2 d at 1173
. Plaint iff did not provide de

fendant wit

h any writ

ten updat e until t

he law suit was f

iled,- 23 -

and theref

ore, plaintiff is pr

ecluded from r

ecovering

any amount for "a dditional wor k" not c onte mplat ed in the o rigin al work order. C. Mechanic's Lien In his cross-appe al, plaint iff a lso con tends t hat the tria l court err ed in holding that his mechanic's lien was unenforceable b ecause it was not tim ely file d. He
con tend s th at sec tion 7 of th e Mech ani cs Li en A ct (7 70 ILCS 60/7 (W est 20 06)) refers only t o a li mita

tion pe riod r

ela ting to the co ntractor 's lien as it r ela tes t o other

creditors, not rel ating to

the time within which a lawsuit aga inst the homeowner m ay be file d. We agr ee wit h plaintiff, reverse t

he tri al co urt's judgm ent, and remand f or f urther proce edings related to th e Mech ani cs Li en A ct.

Section 7 provides, in rel evant part , as f

ollo ws: "No contractor shall be allowed to enforce such lien against or to the prejudic e of any other creditor or incumbrancer or purchaser, unless within [ four] months after completi on, *** he or sh e shall ei ther brin g an action to enf or ce hi s or

her lie n the re

fo r o r s hal

l f ile in t he o ff ice of the recorder of th e cou nty ** * a claim fo r lien." 770 ILCS 60/7 (West 2006). Whereas , section 9 provid es, in p art: "If payment

shall not be made to t

he contracto r having a lien by virtue of thi s act ***, then s uch contractor may bring suit to enforce hi s lien ***. Su ch su it shall be com-- 24 - me nce d *** wit

hin t wo y ea rs af te r t he co mpl etionof

the contract ***." 770 IL

CS 60/9(West 2006). Section 7 requires a contractor to file a suit, or to record a lien claim, within fou r months after completion of the work so as to give thi rd parties dealing wi th the propert

y notice of the e

xistence, nature, and character of the lien. The contract or's failure tocompl

y with the four-m onth limitat ion per iod wil l pre clude him f

rom enforcing h is lien against an y othe r creditor. In th e event th e contracto r fails to com ply wi th section 7 of the Act, the lien may n ot be enforceable aga inst su ch thi rd parties, but may nonethe less b e enf

orce d aga

inst the orig inal o wner pursuant to

sectio n 9. T

he contractor h as two years from th e com pleti on of the c ontrac t to fil e a laws ui t to en force h is li en. See Apollo Heat

ing & Air Conditioning C orp. v. American Na tional Bank & Tr

ust Co. , 135 Il l. App. 3d 97 6, 979-80, 482 N.E.2 d 690, 6 93 (1985 ). We re vers e that

port ion of t he tri al co urt's judgm ent t hat r ele ases pl aintiff's claim for lien and remand for further proceedings pu rsuant to the Mechan ics Lien Act (77 0 ILC S 60/ 0.01

through 39 (West

2006)) and count I I of plaint iff's s econd amended complai nt. III. CONCLUSION

For the foregoing reasons, we affirm in part and rever se in part the trial
cou rt's j ud gment a nd rem and for fu rther p roceed ings con sis tent w ith ou r opi nio n. Specifically, we hold that plain tiff substantially complied with the statu tory requirementsof the

Act and was ent

itle d to e nforce his cont ract with def endant for the r emodeling of defendant's home. We further hold t hat the court er

red in its cal culation- 25 -

reg ardin g the a

mount of

credit towhich defe ndant w as ent itle d. I n all

other respe cts, the court 's cal culatio ns and factual f indings are a

ffir med. We r ever

se the co urt's f

inding that defen dant was entitled to an offset i n the am oun t of $2,277 for th e amou nts pai d to a third-par

ty contractor a nd rem and fo r a r edet erm inatio n of t

he prope r am ount consistent wi th our opi nion above. We further hold th at the court erred in findin g that plai ntif f's li en fi led p urs uan t to th e Mech ani cs Li en A ct was un timel y. We th erefore
rever se the court's orde r rel easing plaint iff's lien as unenforceable a nd remand fo r further proce edings
. Affi rmed i n pa rt and revers ed in part; cau se rema nde d wi th d irect ion s. KNEC HT an d POP E, JJ., c onc ur.