Friday, February 12, 2010

The Illinois Home Repair and Remodeling Act - The 5th District

Previously in this series I introduced the Illinois Home Repair and Remodeling Act (HRRA), summarized the statute, and noted what the Illinois Supreme Court (IL SC) has done to interpret the law statewide.  At this point, Illinois Appellate Courts disagree on what the law means.  So the next five posts in this series will evaluate the HRRA law in each appellate district, starting with the Fifth District.  There are five appellate districts in Illinois, as shown in this map.  The Fifth District is the southernmost district in the state, and the appellate court meets in Mt. Vernon.

A note on precedent - Illinois Supreme Court decisions and legal interpretations are binding throughout the state.  Appellate Court decisions and legal interpretations are binding on trial courts throughout the state, unless there is a conflict among the appellate court districts.  In that event, an individual circuit (trial) court is bound by the decision in the most recent decision of the appellate court for its own district.  If there is no controlling decision from its own district, the trial court can choose between the decisions of the other districts.*   To date there have only been ten Illinois Appellate Court cases interpreting the HRRA.  One of these was heard by the IL SC.1  Of the remaining nine HRRA appellate court decisions, only one case was heard by the Fifth District - Kunkel v. P.K. Dependable Construction, LLC, a February 2009 decision.2   

Kunkel is an interesting case because it is one of the few HRRA appellate cases were the homeowner sued the contractor, not the other way around.  After signing a written contract with the defendant to replace their roof and paying in full, the Kunkels claimed that the contractor's roof replacement work was defective; the roof leaked.  For three years, they sought to have the defendant fix the roof pursuant to a warranty.  The contractor apparently came back out and tried to fix the leaks some 20 - 25 times, but the leaks continued.  Finally the Kunkels sued the contractor for breach of contract, breach of warranty, and for violating the Illinois Consumer Fraud and Deceptive Business Practices Act (CFDBPA).3  The CFDBPA claim was based on language in the law indicating that a violation of the HRRA could amount to a CFDBPA claim.  The HRRA violation was that the contractor had failed to give the homeowner the required consumer rights brochure. 

The trial court found that the contractor did breach its contract and warranty, and also found for the plaintiff on the CFDBPA claim (which was important because the CFDBPA provides for the winning plaintiff to recover its attorney fees and legal costs).  The Fifth District Appellate Court affirmed the trial court's ruling as to the breach of contract and warranty claims.  It overruled the trial court on the CFDBPA claim though and vacated the award of attorney fees and costs, because the Kunkels failed to show that they were actually damaged by the contractor's failure to give them the brochure, failed to provide evidence that the contractor "knowingly" violated the HRRA per CDFDBPA Section 2Z, and failed to send the contractor a written demand by certified mail for a refund as required by the CFDBPA Section 2Q(c).  The court noted but did not resolve an inconsistency between the HRRA, which says that "any violation of this Act shall constitute a violation of the [CFDBPA]," and the CFDBPA Section 2Z, which requires a knowing violation of the HRRA to be actionable. 

1  M.D. Elect. Contractors, Inc. v. Abrams, 228 Ill.2d 281 (2008).
2  Kunkel v. P.K. Dependable Construction, LLC, 902 N.E.2d 769 (5th Dist. 2009).
3  The CFDBPA claim was for alleged violations Sections 2Q(c) and 2Z of the CFDBPA. 


*  Corrected on 2/12/2010 from original post.  See Garcia v. Hynes & Howes Real Estate, Inc, 331 N.E.2d 634 (3d Dist. 1975) and State Farm Fire & Casualty Co. v. Yapejian, 605 N.E.2d 539 (1992).   I would like to thank Naperville attorney Bryan Sims of the Sims Law Firm, Ltd. for bringing to my attention the error in the original post.  

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