{ "id": 3630533, "name": "K. MILLER CONSTRUCTION COMPANY, INC., Appellee, v. JOSEPH J. McGINNIS et al., Appellants", "name_abbreviation": "K. Miller Construction Co. v. McGinnis", "decision_date": "2010-09-23", "docket_number": "No. 109156", "first_page": "284", "last_page": "301", "citations": [ { "type": "official", "cite": "238 Ill. 2d 284" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "394 Ill. App. 3d 248", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4291003 ], "weight": 8, "pin_cites": [ { "page": "254" }, { "page": "258" }, { "page": "258-61" }, { "page": "266", "parenthetical": "Gordon, J., specially concurring" }, { "page": "267", "parenthetical": "Wolfson, J., dissenting" }, { "page": "265" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/394/0248-01" ] }, { "cite": "377 Ill. App. 3d 842", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4273049 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "848" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/377/0842-01" ] }, { "cite": "232 Ill. 2d 463", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3619367 ], "weight": 4, "year": 2009, "pin_cites": [ { "page": "473" }, { "page": "473" }, { "page": "473" }, { "page": "473" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/232/0463-01" ] }, { "cite": "32 Ill. 2d 51", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2839388 ], "weight": 3, "year": 1964, "pin_cites": [ { "page": "53-54" }, { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0051-01" ] }, { "cite": "212 Ill. App. 3d 420", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2600594 ], "year": 1991, "pin_cites": [ { "page": "422", "parenthetical": "\"Merely because a contract may violate some law or some regulation does not necessarily make that contract unenforceable\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/212/0420-01" ] }, { "cite": "204 Ill. App. 3d 160", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2576534 ], "year": 1990, "pin_cites": [ { "page": "169-70", "parenthetical": "party's failure to strictly abide by a municipal ordinance did not operate as a bar to recovery for breach of contract" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/204/0160-01" ] }, { "cite": "90 Ill. App. 2d 15", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2897897 ], "year": 1968, "pin_cites": [ { "page": "18", "parenthetical": "\"not all violations of law brought about in the performance of a contract are considered serious enough to prevent recovery on the contract by the party who violates the law\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/90/0015-01" ] }, { "cite": "398 Ill. App. 3d 177", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4296479 ], "weight": 2, "year": 2010, "pin_cites": [ { "page": "192", "parenthetical": "Schmidt, J., specially concurring" }, { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/398/0177-01" ] }, { "cite": "402 Ill. App. 3d 10", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5768615 ], "year": 2010, "pin_cites": [ { "page": "20", "parenthetical": "\"the Act is void of any language which serves to invalidate the parties' agreement when the contractor fails to secure a signed written contract or work order\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/402/0010-01" ] }, { "cite": "38 Cal. 3d 276", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 1977057 ], "year": 1985, "pin_cites": [ { "page": "289-94" } ], "opinion_index": 0, "case_paths": [ "/cal-3d/38/0276-01" ] }, { "cite": "696 P.2d 95", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1985, "pin_cites": [ { "page": "104-07" } ], "opinion_index": 0 }, { "cite": "211 Cal. Rptr. 703", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1985, "pin_cites": [ { "page": "711-15", "parenthetical": "conducting a balancing analysis and concluding that an oral contract for remodeling was enforceable, notwithstanding a statute which required that remodeling contracts in excess of $500 be in writing and which made violations of the statute a misdemeanor offense" } ], "opinion_index": 0 }, { "cite": "201 Ill. 2d 300", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477020 ], "year": 2002, "pin_cites": [ { "page": "320-21", "parenthetical": "citing People v. Parker, 123 Ill. 2d 204, 211 (1988), and Carey v. Elrod, 49 Ill. 2d 464, 472 (1971)" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/201/0300-01" ] }, { "cite": "123 Ill. 2d 204", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550939 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "211" }, { "page": "211" }, { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0204-01" ] }, { "cite": "49 Ill. 2d 464", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2909373 ], "year": 1971, "pin_cites": [ { "page": "472" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/49/0464-01" ] }, { "cite": "77 Ill. 2d 243", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5489868 ], "year": 1979, "pin_cites": [ { "page": "248" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0243-01" ] }, { "cite": "82 Ill. 2d 556", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5474979 ], "year": 1980, "pin_cites": [ { "page": "563" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0556-01" ] }, { "cite": "578 F.3d 655", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 4048269 ], "year": 2009, "pin_cites": [ { "page": "663-64" } ], "opinion_index": 0, "case_paths": [ "/f3d/578/0655-01" ] }, { "cite": "396 Ill. App. 3d 1078", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4293217 ], "year": 2009, "opinion_index": 0, "case_paths": [ "/ill-app-3d/396/1078-01" ] } ], "analysis": { "cardinality": 1195, "char_count": 30422, "ocr_confidence": 0.853, "pagerank": { "raw": 1.11221010661068e-07, "percentile": 0.5709975755343265 }, "sha256": "50c6604b364974a65ea9dca943d55480de0e2f1fa08cff5c0e61b34d03f5df30", "simhash": "1:fbb75d56bb8554fa", "word_count": 4920 }, "last_updated": "2023-07-14T20:45:32.940545+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "K. MILLER CONSTRUCTION COMPANY, INC., Appellee, v. JOSEPH J. McGINNIS et al., Appellants." ], "opinions": [ { "text": "JUSTICE BURKE\ndelivered the judgment of the court, with opinion.\nChief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride, Garman, and Karmeier concurred in the judgment and opinion.\nOPINION\nThe Home Repair and Remodeling Act (815 ILCS 513/15 (West 2006)) states that, \u201c[plrior to initiating home repair or remodeling work for over $1,000, a person engaged in the business of home repair or remodeling shall furnish to the customer for signature a written contract or work order.\u201d At issue here is whether a home remodeling contractor who violates this provision and enters into an oral contract for home remodeling work over $1,000 may enforce the oral contract or seek recovery in quantum meruit against a homeowner who has refused to pay for a completed home remodeling project. The appellate court concluded that such a contractor may not enforce the oral contract but may seek recovery in quantum meruit. 394 Ill. App. 3d 248. For the reasons that follow, we hold that recovery is available under both theories.\nBackground\nThe plaintiff, K. Miller Construction Company, Inc., filed a second-amended complaint in the circuit court of Cook County against the defendants, Joseph and Frances McGinnis. The complaint alleged the following.\nPlaintiff is an Illinois construction firm whose sole 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 Insurance Company for 10 years. Defendant Frances McGinnis is Joseph McGinnis\u2019s wife. Plaintiff has done remodeling work for defendants in the past and, prior to the initiation of this litigation, Joseph McGinnis and Miller were friends.\nIn the spring of 2004, defendants purchased a three-flat apartment building in Chicago. Defendants intended to convert the building into a single-family residence by demolishing and rebuilding the interior of the building while retaining the building\u2019s exterior structure. Architectural plans were drawn up and several discussions took place among defendants, the architect and Miller about the scope and details of the work to be performed. In the fall of 2004, plaintiff entered into an oral contract with defendants to undertake the remodeling project as general contractor for the sum of $187,000.\nIn December 2004 and January 2005, defendants told Miller that they wanted to \u201cvastly increase\u201d the work to be performed on the building and that the architect would develop 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 replace wood materials, replacement of plumbing, installation of additional heating, ventilation and air conditioning, and related changes. These modifications raised the total cost of the project to approximately $500,000.\nDefendants instructed Miller to assist them in obtaining a new building permit for the construction changes. The permit was issued by the City of Chicago in January 2005. Plaintiff proceeded to perform the construction ordered by defendants according to the revised architectural plans and the new building permit.\nDefendants paid the first $65,000 of invoices issued by plaintiff from April 2005 to June 2005. In September 2005, plaintiff submitted an invoice to defendants for $58,000. Defendants refused to pay the invoice and told Miller they did not want to make any further payments until all construction work 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 credit for $150,000 to complete the remodeling project.\nDefendants visited the construction site at least weekly in 2005 and 2006 to review and give approval to construction work plaintiff had performed. In June and July of 2006, defendants conducted final walk-throughs of the property. Defendants approved all of the construction work with the exception of certain flooring that defendants estimated would cost $300 to repair. Plaintiffs final day of construction on the project was July 10, 2006. 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. Defendants refused to pay plaintiff any of this amount.\nPlaintiff thereafter filed a three-count, second-amended complaint against defendants. Count I sought to foreclose a mechanic\u2019s lien. Count II alleged a breach of contract. Count III, which was pled in the alternative, sought recovery in quantum meruit for the reasonable value of plaintiffs work.\nDefendants filed a motion to dismiss pursuant to section 2 \u2014 615 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 615 (West 2006)). With respect to count II of plaintiffs complaint, defendants maintained that the oral contract plaintiff entered into with defendants \u201cviolates Illinois law and is therefore not enforceable.\u201d In support, defendants pointed to section 15 of the Home Repair and Remodeling Act (Act) (815 ILCS 513/15 (West 2006)), which states that persons \u201cengaged in the business of home repair or remodeling\u201d shall provide customers with \u201ca written contract or work order\u201d prior to beginning work on a project costing more than $1,000, and section 30 of the Act (815 ILCS 513/30 (West 2006)), which at the time plaintiff filed its complaint, stated that it is \u201cunlawful\u201d to engage in home remodeling \u201cbefore obtaining a signed contract or work order over $1,000.\u201d Defendants noted that plaintiffs complaint alleged that the remodeling contract was not in writing and that it was for work totaling more than $1,000. Based on these facts, defendants maintained that the contract violated the Act and was unenforceable and, therefore, that count II of plaintiffs complaint should be stricken. Further, because a mechanic\u2019s lien may be enforced only if there is a valid underlying contract, defendants contended that count I of plaintiffs complaint should also be stricken.\nWith respect to count III of plaintiff\u2019s complaint, defendants cited to Smith v. Bogard, 377 Ill. App. 3d 842, 848 (2007), wherein the appellate court held that allowing a contractor to recover in quantum meruit when he has breached the writing requirement of the Act \u201cwould run afoul of the legislature\u2019s intent of protecting consumers, would reward deceptive practices, and would be violative of public policy.\u201d Relying on Bogard, defendants contended that count III of plaintiff\u2019s complaint should be stricken and plaintiff\u2019s action dismissed.\nThe circuit court granted defendants\u2019 motion and dismissed plaintiff\u2019s cause of action with prejudice.\nThe appellate court affirmed in part and reversed in part. 394 Ill. App. 3d 248. The appellate court unanimously agreed that plaintiff\u2019s claims for breach of contract and foreclosure of mechanic\u2019s lien could not go forward. The appellate court reasoned that because the Act imposes a writing requirement for remodeling work costing over $1,000, the Act necessarily \u201cbars the enforcement of an oral contract.\u201d 394 Ill. App. 3d at 254.\nHowever, on the question of whether plaintiff could recover in quantum meruit, the appellate court was divided. Justice Garcia, writing the lead opinion for the court, concluded that plaintiff could proceed with its quantum meruit claim because there was \u201cno clear and plain intent in the Act to do away with quantum meruit, an equitable remedy that is a part of our common law going back to the times when Abraham Lincoln practiced in our courts.\u201d 394 Ill. App. 3d at 258. In reaching this conclusion, Justice Garcia expressly disagreed with the appellate court\u2019s decision in Bogard. 394 Ill. App. 3d at 258-61.\nJustice Robert Gordon agreed with the result reached by Justice Garcia, but not his reasoning. Justice Gordon pointed to the last sentence of section 30 of the Act, which, at the time plaintiffs complaint was filed, stated that the failure to obtain a written contract is \u201cunlawful but is not exclusive nor meant to limit other kinds of methods, acts, or practices that may be unfair or deceptive\u201d (815 ILCS 513/30 (West 2006)). Justice Gordon concluded that this sentence \u201cleaves the door open to equitable remedies, such as the quantum meruit claim in this case.\u201d 394 Ill. App. 3d at 266 (Gordon, J., specially concurring).\nJustice Wolfson dissented. Justice Wolfson concluded that quantum meruit was unavailable to plaintiff, as there was no authority \u201csupporting the proposition that an act declared unlawful by the legislature can be sanitized by filtering it through a court of equity.\u201d 394 Ill. App. 3d at 267 (Wolfson, J., dissenting).\nWe allowed defendants\u2019 petition for leave to appeal. 210 Ill. 2d R. 315.\nAnalysis\nThe circuit court granted defendants\u2019 motion to dismiss brought pursuant to section 2 \u2014 615 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 615 (West 2006)). A section 2 \u2014 615 motion to dismiss challenges the legal sufficiency of a complaint based on defects apparent on its face. Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 473 (2009). In ruling on a section 2 \u2014 615 motion, only those facts apparent from the face of the pleadings, matters of which the court can take judicial notice, and judicial admissions in the record may be considered. Pooh-Bah Enterprises, Inc., 232 Ill. 2d at 473. The court must also accept as true all well-pleaded facts in the complaint and all reasonable inferences that may be drawn from those facts. Pooh-Bah Enterprises, Inc., 232 Ill. 2d at 473. We review de novo an order granting a section 2 \u2014 615 motion to dismiss. Pooh-Bah Enterprises, Inc., 232 Ill. 2d at 473.\nAt the outset, plaintiff suggests that defendants\u2019 motion to dismiss should have been brought under section 2 \u2014 619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2 \u2014 619(a)(9) (West 2006)) because the motion raised an affirmative defense, i.e., that the oral contract between plaintiff and defendants violates the Act and, hence, is unenforceable as a matter of public policy. See 735 ILCS 5/2 \u2014 613(d) (West 2006) (listing illegality as an affirmative defense). However, section 2 \u2014 619(a)(9) speaks in terms of affirmative matter, not affirmative defenses: \u201cIf the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit: *** (9) That the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.\u201d 735 ILCS 5/2 \u2014 619(a)(9) (West 2006). An affirmative defense may be raised in a section 2 \u2014 615 motion where the defense is \u201cestablished by the facts apparent on the face of the complaint\u201d and no other facts alleged in the complaint negate the defense. 3 R Michael, Illinois Practice \u00a727.2, at 492 (1989). Here, the factual basis of defendants\u2019 affirmative defense is found in plaintiff\u2019s own allegations that the remodeling contract was oral and was for work totaling more than $1,000.\nTurning to the merits, defendants contend that the appellate court erred when it concluded that plaintiff could pursue relief in quantum meruit and reversed the circuit court\u2019s dismissal of count III of plaintiff\u2019s complaint. According to defendants, it is inconsistent to hold, as the appellate court did, that plaintiff may not recover in contract for having violated the Act, but that it may recover in equity. Citing to Bogard, defendants further argue that to allow a contractor who fails to comply with the writing requirement of the Act to seek relief in quantum meruit would defeat the intent of the General Assembly and violate the public policy expressed in the Act.\nPlaintiff disputes defendants\u2019 assertion that quantum meruit is unavailable and also challenges the appellate court\u2019s holding that plaintiff\u2019s claim for breach of contract in count II was properly stricken by the circuit court. We address the latter issue first. If there is no public policy that would prohibit plaintiff from recovering in contract, then there is no inconsistency in plaintiff pursuing relief in quantum meruit. Accordingly, our resolution of whether plaintiff may pursue its claim for breach of contract may also determine whether plaintiff may seek relief in quantum meruit.\nSection 178 of the Restatement (Second) of Contracts (1981) sets forth the following rule regarding the unenforceability of a contractual term because of the violation of a statute or other public policy:\n\u201c\u00a7178 When a Term Is Unenforceable on Grounds of Public Policy\n(1) A promise or other term of an agreement is unenforceable on grounds of public policy if legislation provides that it is unenforceable or the interest in its enforcement is clearly outweighed in the circumstances by a public policy against the enforcement of such terms.\n(2) In weighing the interest in the enforcement of a term, account is taken of\n(a) the parties\u2019 justified expectations,\n(b) any forfeiture that would result if enforcement were denied, and\n(c) any special public interest in the enforcement of the particular term.\n(3) In weighing a public policy against enforcement of a term, account is taken of\n(a) the strength of that policy as manifested by legislation or judicial decisions,\n(b) the likelihood that a refusal to enforce the term will further that policy,\n(c) the seriousness of any misconduct involved and the extent to which it was deliberate, and\n(d) the directness of the connection between that misconduct and the term.\u201d Restatement (Second) of Contracts \u00a7178 (1981).\nPursuant to the Restatement, in considering whether a contractual term is unenforceable as against 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 any constitutional objection, the term is unenforceable. Conversely, if it is clear that the legislature did not intend for a violation of the statute 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 statute is silent, then the court must balance the public policy expressed in the statute against the countervailing policy in enforcing contractual agreements:\n\u201cOnly infrequently does legislation, on grounds of public policy, provide that a term is unenforceable. When a court reaches that conclusion, it usually does so on the basis of a public policy derived either from its own perception of the need to protect some aspect of the public welfare or from legislation that is relevant to that policy although it says nothing explicitly about unenforceability. See \u00a7179. In some cases the contravention of public policy is so grave, as when an agreement involves a serious crime or tort, that unenforceability is plain. In other cases the contravention is so trivial as that it plainly does not preclude enforcement. In doubtful cases, however, a decision as to enforceability is reached only after a careful balancing, in the light of all the circumstances, of the interest in the enforcement of the particular promise against the policy against the enforcement of such terms. The most common factors in the balancing process are set out in Subsections (2) and (3). Enforcement will be denied only if the factors that argue against enforcement clearly outweigh the law\u2019s traditional interest in protecting the expectations of the parties, its abhorrence of any unjust enrichment, and any public interest in the enforcement of the particular term.\u201d Restatement (Second) of Contracts \u00a7178, Comment b, at 8 (1981).\nImportantly, the fact that there has been a statutory violation does not, in itself, automatically render a contract unenforceable:\n\u201cThe strength of the public policy involved is a critical factor in the balancing process. Even when the policy is one manifested by legislation, it may be too insubstantial to outweigh the interest in the enforcement of the term in question.\u201d Restatement (Second) of Contracts \u00a7178, Comment c, at 8 (1981).\nSee also 5 R. Lord, Williston on Contracts \u00a712:4, at 995-96 (4th ed. 2009) (\u201cTo assert, however, as some courts have, that all unlawful agreements are ipso facto void is opposed to many decisions and unfortunate in its consequences, for it may protect a guilty defendant from paying damages to an innocent plaintiff\u2019); 15 Corbin on Contracts \u00a789.1, at 614 (rev. ed. 2003) (\u201cThe decision of whether and how to enforce a contract involving a prohibited performance is and must be based on policy choices and a balancing of relevant factors\u201d).\nIllinois law is in accord with the Restatement. For example, in Pascal P. Paddock, Inc. v. Glennon, 32 Ill. 2d 51 (1964), a contractor entered into a written agreement with certain property owners to construct a pool and bathhouse. After the owners refused to pay, the contractor brought suit to foreclose a mechanics\u2019 lien. The property owners contended, however, that the underlying contract was unenforceable because the contractor had used unlicensed plumbers in the construction of the pool, in violation of the Illinois Plumbing License Law (Ill. Rev. Stat. 1961, ch. IIIV2, par. 116.38). The appellate court agreed with the property owners, but this court reversed.\nIn so doing, we noted that a statutory violation does not automatically render a contract unenforceable: \u201cthe mere fact that [a contract] was performed in violation of law will not invalidate the resulting hen if not seriously injurious to the public order.\u201d Paddock, 32 Ill. 2d at 53-54. Applying this rule, we then examined the facts and concluded that the contract could be enforced because any violation of the licensing statute which may have occurred was not \u201cseriously injurious to the public order.\u201d Paddock, 32 Ill. 2d at 54. See also, e.g., Federal Land Bank of St. Louis v. Walker, 212 Ill. App. 3d 420, 422 (1991) (\u201cMerely because a contract may violate some law or some regulation does not necessarily make that contract unenforceable\u201d); Duncan v. Cannon, 204 Ill. App. 3d 160, 169-70 (1990) (party\u2019s failure to strictly abide by a municipal ordinance did not operate as a bar to recovery for breach of contract); South Center Plumbing & Heating Supply Co. v. Charles, 90 Ill. App. 2d 15, 18 (1968) (\u201cnot all violations of law brought about in the performance of a contract are considered serious enough to prevent recovery on the contract by the party who violates the law\u201d).\nWith the foregoing principles in mind, we turn to the case at hand. In holding the oral contract at issue here unenforceable, the appellate court relied on sections 15 and 30 of the Act. Section 15 provides:\n\u201c\u00a715. Written contract; costs enumerated requirements; contents. Prior to initiating home repair or remodeling work for over $1,000, a person engaged in the business of home repair or remodeling shall furnish to the customer for signature a written contract or work order that states the total cost, including parts and materials listed with reasonable particularity and any charge for an estimate. In addition, the contract shall state the business name and address of the person engaged in the business of home repair or remodeling. If the person engaged in the business of home repair or remodeling uses a post office box or mail receiving service or agent to receive home repair or remodeling business correspondence, the contract also shall state the residence address of the person engaged in the business of home repair or remodeling.\u201d 815 ILCS 513/15 (West 2006).\nSection 30, at the time plaintiff\u2019s complaint was filed, stated:\n\u201c\u00a730. Unlawful acts. It is unlawful for any person engaged in the business of home repairs and remodeling to remodel or make repairs or charge for remodeling or repair work before obtaining a signed contract or work order over $1,000 and before notifying and securing the signed acceptance or rejection, by the consumer, of the binding arbitration clause and the jury trial waiver clause as required in Section 15 and Section 15.1 of this Act. This conduct is unlawful but is not exclusive nor meant to limit other kinds of methods, acts, or practices that may be unfair or deceptive.\u201d 815 ILCS 513/30 (West 2006).\nBased on these provisions, the appellate court reasoned:\n\u201cWhen the Miller construction company began home remodeling work for the McGinnises without obtaining a signed contract or work order, it violated the terms of the Home Repair Act and, therefore, was precluded from proving up an oral contract, as the Act declares such contracts \u2018unlawful.\u2019 \u201d 394 Ill. App. 3d at 265.\nIn other words, according to the appellate court, because there was a statutory violation or \u201cunlawful\u201d act, the contract was, ipso facto, unenforceable. This was error. The General Assembly is capable of stating when a contractual term that violates a statute is unenforceable. See, e.g., 720 ILCS 5/28 \u2014 7 (West 2008) (gambling contracts are \u201cnull and void\u201d); 50 ILCS 105/3 (West 2008) (contracts in which a public official has a financial interest and may be called to vote upon are \u201cvoid\u201d); 625 ILCS 5/18c \u2014 4105 (West Supp. 2009) (indemnity agreements in motor carrier transportation contracts are \u201cvoid and unenforceable\u201d). The General Assembly did not do so here. See Fandel v. Allen, 398 Ill. App. 3d 177, 192 (2010) (Schmidt, J., specially concurring) (\u201cit was not the legislature that said any violation of the Home Repair Act, ipso facto, renders the contract unenforceable; it was some judges\u201d); Universal Structures, Ltd. v. Buchman, 402 Ill. App. 3d 10, 20 (2010) (\u201cthe Act is void of any language which serves to invalidate the parties\u2019 agreement when the contractor fails to secure a signed written contract or work order\u201d); see also Restatement (Second) of Contracts \u00a7179, Comment b, at 16 (1981) (\u201clegislators seldom address themselves explicitly to the problems of contract law that may arise in connection with [proscribed] conduct. *** Usually they do not even have these problems in mind and say nothing as to the enforceability of terms\u201d).\nSections 15 and 30 of the Act make plain that an oral contract for home remodeling over $1,000 is a statutory violation. However, the Act left it an open question as to whether a statutory violation rendered an oral contract unenforceable. Accordingly, the appellate court should have conducted a balancing analysis and considered the relevant facts and public policies before concluding that plaintiff could not pursue relief for breach of contract.\nHaving determined that the appellate court erred, we ordinarily would either remand to the appellate court to perform the required balancing analysis or conduct 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, 711-15 (1985) (conducting a balancing analysis and concluding that an oral contract for remodeling was enforceable, notwithstanding a statute which required that remodeling contracts in excess of $500 be in writing and which made violations of the statute a misdemeanor offense). However, we need not do so here. Legislation which was enacted after the appellate court rendered its decision in the case at bar has clarified that the General Assembly did not intend for violations of the writing requirement under the Act to render oral contracts unenforceable.\nPublic Act 96 \u2014 1023, effective July 12, 2010, has entirely rewritten section 30 of the Act, removing all references to the word \u201cunlawful\u201d and indicating that the remedy for violations of the Act is to be had under the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/10(a) (West 2008)). The section now reads:\n\u201cSec. 30. Action for actual damages. Any person who suffers actual damage as a result of a violation of this Act may bring an action pursuant to Section 10a of the Consumer Fraud and Deceptive Business Practices Act.\u201d Pub. Act 96 \u2014 1023, eff. July 12, 2010.\n\u201cA subsequent amendment to a statute may be an appropriate source for discerning legislative intent.\u201d In re Detention of Lieberman, 201 Ill. 2d 300, 320-21 (2002) (citing People v. Parker, 123 Ill. 2d 204, 211 (1988), and Carey v. Elrod, 49 Ill. 2d 464, 472 (1971)). As we have explained, while an amendatory change in the language of a statute creates a presumption that it was intended to change the law as it previously existed, \u201c \u2018the presumption is not controlling [citations] and may be overcome by other considerations.\u2019 \u201d Parker, 123 Ill. 2d at 211, quoting People v. Nunn, 77 Ill. 2d 243, 248 (1979). \u201cThe circumstances surrounding the amendment should be considered and: \u2018If they indicate that the legislature intended only to interpret the original act, the presumption of an intention to change the law is rebutted. \u2019 \u201d Parker, 123 Ill. 2d at 211, quoting People v. Youngbey, 82 Ill. 2d 556, 563 (1980). A number of factors may indicate whether an amendment is merely a clarification rather than a substantive change in the law: \u201cwhether the enacting body declared that it was clarifying a prior enactment; whether a conflict or ambiguity existed prior to the amendment; and whether the amendment is consistent with a reasonable interpretation of the prior enactment and its legislative history.\u201d Middleton v. City of Chicago, 578 F.3d 655, 663-64 (7th Cir. 2009); see also 1A N. Singer, Sutherland on Statutory Construction \u00a722.30, at 366, 374-75 (6th ed. 2002 rev.) (\u201cAlthough generally, a statutory amendment is presumed to have been intended to change the law, the legislative history may indicate that the amendment was intended instead as a clarification. *** [In addition, the] time and circumstances surrounding the enactment of the amendment may indicate that the change wrought by the amendment was formal only \u2014 that the legislature intended merely to interpret the original act\u201d).\nAt the time the General Assembly was considering Senate Bill 2540 (the bill which would become Public Act 96 \u2014 1023), there was disagreement in our appellate court as to the effect a violation of the Act had on the legal claims that could be pursued by a contractor. For example, as noted previously, the appellate court in Smith v. Bogard, 377 Ill. App. 3d 842 (2007), had concluded that a contractor who violated the writing requirement of the Act could not recover in quantum meruit, while the appellate court in the case at bar had concluded the opposite. Further, while the appellate court in both this case and others had concluded that recovery in contract was per se unavailable, the appellate court in Fandel v. Allen, 398 Ill. App. 3d 177, 186 (2010), had concluded that a violation of the Act \u201cdoes not act to automatically invalidate the agreement between the parties.\u201d The doctrine of substantial compliance had also been invoked by our appellate court in addressing violations of the Act. See Behl v. Gingerich, 396 Ill. App. 3d 1078 (2009).\nThe existence of these conflicting appellate decisions negates the presumption that the legislature\u2019s removal of the word \u201cunlawful\u201d from section 30 was a change in the law. Because of the differing views in the appellate court, there was no clear interpretation of the law to be changed. It follows, therefore, that Public Act 96 \u2014 1023 was meant to clarify the previous law and make clear that a violation of the Act does not render oral contracts unenforceable or relief in quantum meruit unavailable and that, instead, the remedy for violations of the Act lies elsewhere.\nLegislative history supports this conclusion. During the debate on Senate Bill 2540, Senator Wilhelmi, the Senate sponsor of the bill, stated:\n\u201cSenate Bill 2540 does two things. First, it resolves confusion as to the proper remedy for the courts to apply by providing that any person who suffers actual damages as a result of a violation of the Home Repair and Remodeling Act may bring an action under the Consumer Fraud and Deceptive Business Practices Act. Secondly, the Home Repair and Remodeling Act requires a contractor to give a pamphlet to his \u2014 his\u2014his 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 repair or remodeling contract. So the courts are asking for a clarification of this. I think what we are doing through this bill is saying that, unless there\u2019s actual damages, a consumer cannot get out of paying the balance due to a home repair or remodeling company by using these two technical provisions in the Act of requiring a pamphlet to be given and requiring a written contract before work on the project.\u201d 96th Ill. Gen. Assem., Senate Proceedings, March 9, 2010, at 68 (statements of Senator Wilhelmi).\nIn light of the foregoing, we conclude that Public Act 96 \u2014 1023 is a clarification of the prior statute and must be accepted as a legislative declaration of the meaning of the original Act. There is, therefore, no public policy requiring that oral contracts for home remodeling over $1,000 be held unenforceable or that relief in quantum meruit be denied. Accordingly, the appellate court erred in upholding the circuit court\u2019s dismissal of counts I and II of plaintiff\u2019s complaint, but properly reversed the dismissal of count III of plaintiff\u2019s complaint.\nConclusion\nFor the foregoing reasons, we reverse that part of the appellate court\u2019s judgment which affirmed the circuit court\u2019s dismissal of counts I and II. We affirm that part of the appellate court\u2019s judgment which reversed the circuit court\u2019s dismissal of count III. The judgment of the circuit court is reversed, and the cause is remanded to that court for further proceedings.\nAppellate court judgment affirmed in part and reversed in part; circuit court judgment reversed; cause remanded.", "type": "majority", "author": "JUSTICE BURKE" } ], "attorneys": [ "Raymond J. Ostler, Nazia J. Hasan, Charles T. Little and John J. Lydon, of Gomberg, Sharfman, Gold & Ostler, EC., of Chicago, for appellants.", "Richard Lee Stavins and Edward S. Salomon, of Robbins, Salomon & Patt, Ltd., of Chicago, for appellee.", "Joel J. Huotari and Scott C. Sullivan, of Williams-McCarthy, LLR of Rockford, for amici curiae Timothy R. Fitzgerald and Tracy Fitzgerald." ], "corrections": "", "head_matter": "(No. 109156.\nK. MILLER CONSTRUCTION COMPANY, INC., Appellee, v. JOSEPH J. McGINNIS et al., Appellants.\nOpinion filed September 23, 2010.\nRaymond J. Ostler, Nazia J. Hasan, Charles T. Little and John J. Lydon, of Gomberg, Sharfman, Gold & Ostler, EC., of Chicago, for appellants.\nRichard Lee Stavins and Edward S. Salomon, of Robbins, Salomon & Patt, Ltd., of Chicago, for appellee.\nJoel J. Huotari and Scott C. Sullivan, of Williams-McCarthy, LLR of Rockford, for amici curiae Timothy R. Fitzgerald and Tracy Fitzgerald." }, "file_name": "0284-01", "first_page_order": 296, "last_page_order": 313 }