Behl v. Gingerich

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Behl v. Gingerich

State: Illinois

Court: 4th District Appellate

Docket No: 4-08-0974 Rel

Case Date: 12/21/2009

Preview:Filed 12/21/09

NO. 4-08-0974 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

JOHN BEHL, d/b/a BEHL CONSTRUCTION, Plaintiff-Appellee and Cross-Appellant, v. DARYL GINGERICH, Defendant-Appellant and Cross-Appellee.

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Appeal from Circuit Court of Coles County No. 07LM258 Honorable Brien O'Brien, Judge Presiding.

JUSTICE APPLETON delivered the opinion of the court: Plaintiff, John Behl, d/b/a Behl Construction, filed a complaint against defendant, Daryl Gingerich, alleging defendant had failed to pay plaintiff $15,500 for labor and materials plaintiff had provided under a construction contract to remodel defendant's home. Defendant filed a motion to dismiss, claiming plaintiff was precluded from recovering any amounts from him because plaintiff had violated the Home Repair and Remodeling Act (Act) (815 ILCS 513/1 through 999 (West 2006)). The trial court denied defendant's motion, and the case proceeded to a bench trial. After trial, the trial court found in plaintiff's favor and awarded him $9,594.03 in damages. Defendant appealed, arguing that plaintiff could not enforce the contract due to the specific requirements of the Act or, in the alternative, if the contract was enforceable, the court erred in calculating the judgment amount. Plaintiff filed a cross-appeal, also arguing that the court erred in its calculation of damages on different grounds. Plaintiff also claimed the court erred in finding that his mechanic's lien was

unenforceable as untimely. We affirm in part, reverse in part, and remand for further proceedings. I. BACKGROUND In August 2006, plaintiff built a room addition, added an attached garage with a half bathroom, and performed repair work on an existing porch at defendant's home. The "bid price" for this work was $55,395. Prior to starting the job, plaintiff provided defendant with a written work order. Plaintiff performed the majority of the work, and in April 2007, he left the job because he believed his relations with defendant were deteriorating. In August 2007, plaintiff filed a complaint for damages, seeking $20,821.93 as the balance due. According to plaintiff, defendant had paid $39,895 of the $55,395 total. He allowed defendant a credit in the amount of $3,296.07, leaving a balance due of $12,203.93. Plaintiff also alleged he had performed additional work in the amount of $8,618. Defendant filed a motion to dismiss plaintiff's complaint, claiming plaintiff had failed to attach any written agreement between the parties. The trial court dismissed the complaint without prejudice. In October 2007, plaintiff filed his first amended complaint, alleging breach of contract (count I) and foreclosure of a mechanic's lien (count II). Defendant filed another motion to dismiss, claiming the "agreement" then attached to the amended complaint did not satisfy the requirements of the Act (815 ILCS 513/1 through 999 (2006)) because defendant had not signed a written agreement authorizing the work. Defendant also filed a counterclaim asking the trial court to vacate and release the

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mechanic's lien filed by plaintiff. In January 2008, the trial court granted defendant's motion to dismiss, finding the "allegations as they currently stand do not give rise to causes of action that would survive an affirmative defense raising the [Act]." The court allowed plaintiff 21 days to replead. Plaintiff timely filed a second amended complaint, alleging breach of contract (count I), foreclosure of the mechanic's lien (count II), and promissory estoppel (count III). Defendant filed a motion to dismiss, renewing his arguments as they relate to the Act and claiming plaintiff was precluded from recovery under any equitable theory when he violated Illinois law. After considering counsels' arguments, the trial court denied defendant's motion, finding: "It seems to me that based upon the allegations in the pleading that there are issues of material fact that should require this case to go forward. That doesn't mean the [p]laintiff's going to win at trial. I'm going to have to hear all of the evidence but I am troubled and--and I've made this pretty clear to both of you about the issue of the periodic payments being authorized. Perhaps it is significant that [defendant] initiated the contact rather than [plaintiff] doing so. Perhaps it is significant that [defendant] while the project was in the process of going on that he ask[ed] [plaintiff] to do even more work. These are all facts pled in this case

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that are absent from the three reported appellate court decisions. And so I'm going to err on the side of caution here and rather [than] dismiss the case on the pleadings, I'm going to allow it to go forward to an evidentiary hearing. Perhaps some day I'll be enlightened by the [a]ppellate [c]ourt, as will all trial judges in the State, so we all know whether there can ever be an exception to the application of this Act." Defendant filed his answer to the second amended complaint, raising the following affirmative defenses: (1) plaintiff failed to complete the work and defendant was forced to hire another contractor to finish the project and (2) plaintiff violated the Act by failing to secure a written and signed contract before beginning construction. On October 16 and 17, 2008, the trial court conducted a bench trial. Prior to the presentation of evidence, upon plaintiff's request, the court took judicial notice of the following admissions of defendant: (1) in or prior to August 2006, before construction began, plaintiff provided defendant with a written work order that contained the scope and cost ($55,395) of the proposed construction work and (2) during the construction project, plaintiff went with defendant to defendant's bank for the purpose of receiving partial payments and signing lien waivers. Defendant was first to testify as plaintiff's adverse witness. He testified that during the summer of 2006, he approached plaintiff about performing construction work on his home. Defendant, a plumbing contractor, had worked with plaintiff and

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was confident in the quality of his work. Defendant wanted plaintiff to build a garage, remodel the interior of the home, and work on the existing porch. Defendant and his fianc

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