Smith v. Bogard

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Smith v. Bogard

State: Illinois

Court: 4th District Appellate

Docket No: 4-07-0240 Rel

Case Date: 12/26/2007

Preview:Filed 12/26/07

NO. 4-07-0240 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

DAN R. SMITH, d/b/a DAN R. SMITH BUILDING SERVICES, Plaintiff-Appellant, v. CORY W. BOGARD and ANGELA M. BOGARD, Defendants-Appellees.

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Appeal from Circuit Court of Clark County No. 05LM49 Honorable Brian O'Brien, Judge Presiding.

PRESIDING JUSTICE APPLETON delivered the opinion of the court: Plaintiff, Dan R. Smith, doing business as Dan R. Smith Building Services (Smith), performed construction work for defendants, Cory W. Bogard and Angela M. Bogard (the Bogards), as part of a remodeling project on the Bogards' home. After the project was complete, Smith sued the Bogards for the unpaid balance on the work he had performed. The Bogards filed a motion to dismiss, claiming Smith was precluded from recovery because he had violated various provisions of the Home Repair and Remodeling Act (Act) (815 ILCS 513/1 through 999 (West 2004)). The trial court agreed with the Bogards and dismissed Smith's complaint. Smith appeals, claiming the trial court erred in dismissing his complaint because (1) the Act does not apply to him as a subcontractor, and (2) even if the Act does apply to him, and his violations of the provisions of the Act preclude his recovery under contract theories, he is still entitled to recover the amount due under the equitable theories of unjust enrichment and/or quantum meruit.

For the following reasons, we find the trial court did not err in granting the Bogards' motion to dismiss because, under the facts of this case, the Act does apply to Smith and his violations of the Act preclude his recovery of any unpaid balance for the work he had performed under both contract and equitable theories. We affirm. I. BACKGROUND In September 2003, Smith met with the Bogards to discuss the construction of a 26' x 20' living-room addition to the Bogards' home in Casey, Illinois. According to the Bogards, Smith gave them an oral estimate of "$20,000 or less" as a cost for labor and materials for completion of the job. Smith began construction in October 2003 and completed the project in February 2004 at a total cost of $25,515.85. Smith acknowledged that the Bogards had previously paid him $15,000, leaving a balance due of $10,515.85. The Bogards have refused to pay the balance Smith claims due because they say Smith abandoned the project. On October 14, 2005, Smith filed a complaint against the Bogards for a breach of contract seeking $10,515.85 plus interest. On November 6, 2006, Smith filed an amended complaint, adding two additional counts--one for unjust enrichment and one for quantum meruit. On November 27, 2006, the Bogards filed a motion to dismiss pursuant to section 2619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2004)) on the grounds that Smith's claim was barred by an affirmative matter that avoids the legal effect of or defeats his claim. The Bogards claimed Smith violated the Act by not securing a written contract prior to initiating construction and by failing to provide them with the consumer-rights pamphlet. They claim these violations preclude Smith's

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recovery. On January 19, 2007, the trial court conducted a hearing on the Bogards' motion to dismiss. After considering the arguments of counsel, the court granted the motion in its entirety, finding that because Smith had failed to comply with the Act, he was precluded from recovery on count I

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