text:
    Robert Iuffues WEBB II, Plaintiff-Appellant, v. Janice HOLMES, Defendant-Appellee.
    Appeal No. 3-17-0167
    Appellate Court of Illinois, Third District.
    Opinion filed September 14, 2018
    Robert Iuffues Webb II, of Joliet, appellant pro se.
    J. Genice Holmes, of Joliet, appellee pro se.
   PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Robert Iuffues Webb II, who is not an attorney, brought an action against defendant, Janice Holmes, for unjust enrichment and breach of an implied or oral contract relating to defendant's alleged failure to pay plaintiff for legal services that plaintiff had performed for defendant. Defendant filed a motion to dismiss plaintiff's complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-615 (West 2016) ). Plaintiff filed a response and opposed the motion. Following a hearing, the trial court granted defendant's motion and dismissed plaintiff's complaint with prejudice. Plaintiff appeals. We affirm the trial court's judgment.

¶ 2 FACTS

¶ 3 In September 2016, plaintiff filed a verified two-count complaint against defendant in the trial court for unjust enrichment and for breach of an implied-in-fact contract or, alternatively, an oral contract. Plaintiff alleged in the complaint that (1) he was a well-known community activist and a self-represented civil- and constitutional-rights litigator; (2) he entered into a verbal and "handshake" contractual agreement with defendant whereby plaintiff was to assist defendant with legal research and technical writing in defendant's effort to file and proceed with a discrimination case in federal court; (3) in return, defendant was to pay plaintiff $150 plus 10% of any settlement she received; (4) pursuant to the parties' agreement, plaintiff advised defendant how to proceed with the federal case, drafted numerous documents for defendant (a complaint, other court-filed documents, and documents relating to discovery), and accompanied defendant to the federal courthouse to show defendant where to file the case and where the courtrooms and certain offices were located; (5) as plaintiff was working on the case, defendant paid plaintiff $150 plus some other money she had "rolled up"; (6) at some point, plaintiff contacted defendant to inquire as to the status of certain discovery matters, and defendant told plaintiff that she had hired an attorney to represent her in the federal case and that plaintiff was not to contact her anymore; (7) in July 2016, plaintiff checked with the clerk's office for the federal court and learned that defendant had settled her case the previous month; (8) plaintiff tried to contact defendant by telephone and text message to remind defendant about their agreement but was not successful in obtaining any further money from defendant; (9) plaintiff conferred a benefit upon defendant, of which defendant had knowledge, and defendant voluntarily accepted and retained that benefit; (10) under the circumstances of the present case, it would be inequitable for defendant to retain the benefit she received unless defendant paid plaintiff the value of that benefit; (11) defendant had been unjustly enriched at the expense of plaintiff; (12) in addition, as a result of the parties' agreement, there arose an implied obligation on the part of defendant to compensate plaintiff for the amount of time and energy that plaintiff contributed toward the legal research and technical writing necessary to commence and proceed with defendant's federal case; (13) despite the terms of the parties' agreement, defendant failed to honor and fulfill her obligation to plaintiff; and (14) plaintiff was entitled to damages as a result of defendant's unjust enrichment and breach of implied or oral contract.

¶ 4 In November 2016, defendant filed a section 2-615 motion to dismiss plaintiff's complaint. Among other things, defendant claimed in the motion that (1) plaintiff had essentially alleged in his complaint that he had agreed to perform legal services for defendant and that she had agreed to pay him for those services $150 plus 10% of any settlement she received in her litigation against her former employer (the federal case); (2) even if plaintiff's allegations were true, plaintiff was not entitled to any relief because he was seeking compensation for legal services and did not allege in his complaint that he was licensed to practice law; (3) plaintiff was not, and had never been, licensed to practice law; (4) the Attorney Act ( 705 ILCS 205/1 (West 2016) ) prohibited any person who was not a licensed attorney from receiving compensation for providing legal services; (5) based upon his own allegations, plaintiff engaged in the unauthorized practice of law; (6) pursuant to the Attorney Act, plaintiff could not be compensated for the legal services he provided; and (7) plaintiff's complaint, therefore, should be dismissed with prejudice. Plaintiff filed a response and opposed defendant's motion to dismiss. In the response, plaintiff complained that defendant's motion had been improperly "ghost written" by a licensed attorney in violation of Illinois Supreme Court Rule 137 (eff. Jul. 1, 2013), that defendant's motion was actually an improper unsupported motion for involuntary dismissal under section 2-619(a)(9) of the Code ( 735 ILCS 5/2-619(a)(9) (West 2016) ), and that he had told defendant in their initial discussions that he was not a licensed attorney. Defendant filed a reply to that response and maintained her initial position and also asserted that her motion was a motion for judgment on the pleadings pursuant to section 2-615(e) of the Code (id. § 2615(e) ).

¶ 5 In January 2017, a hearing was held on defendant's motion to dismiss. At the conclusion of the hearing, the trial court took the case under advisement. The following month, the trial court issued a written decision. In its ruling, the trial court found that (1) plaintiff had provided defendant with legal services; (2) under the Attorney Act, plaintiff was unable to seek compensation for those services; and (3) it was clearly apparent that no set of facts could be proven that would entitle plaintiff to recovery. The trial court, therefore, granted defendant's section 2-615 motion and dismissed plaintiff's complaint with prejudice. Plaintiff appealed.

¶ 6 ANALYSIS

¶ 7 On appeal, plaintiff argues that the trial court erred in granting defendant's motion to dismiss. In support of his argument, plaintiff makes two main assertions. First, plaintiff asserts that the defendant and the attorney who "ghost wrote" defendant's pro se motion violated Rule 137 because the attorney drafted the motion but did not file an appearance in the trial court and did not sign the motion as the drafter. Instead, the motion was only signed by defendant pro se . Second, plaintiff asserts that defendant's motion was actually a section 2-619(a)(9) motion for involuntary dismissal because it attempted to assert affirmative matter-the Attorney Act-to defeat plaintiff's claims. Plaintiff asserts further that defendant's motion should have been denied as such because it was not properly supported by affidavit or documentary evidence. Plaintiff contends that had defendant's motion been properly classified as a section 2-619(a)(9) motion to dismiss and properly supported, he would have been given an opportunity to submit a counteraffidavit to show that defendant's motion was filed in bad faith and that it should have been denied outright. For those reasons, plaintiff asks that we reverse the trial court's judgment, that we remand this case with directions for further proceedings, and that we impose sanctions upon defendant and the attorney who "ghost wrote" her motion to dismiss.

¶ 8 Defendant argues that the trial court's ruling was proper and should be upheld. In response to plaintiff's contentions, defendant asserts first that Rule 137 specifically allows a licensed attorney to assist a pro se litigant in drafting documents without having to file an appearance and without having to sign the documents. Furthermore, defendant points out that she stated in open court during the trial court proceedings that the attorney who represented her in her federal case was going to be helping her with this case. Thus, defendant contends that there was no "ghost writer" in this case and that there was no violation of Rule 137. Second, defendant asserts that her motion to dismiss was a proper section 2-615(e) motion for judgment on the pleadings and not a section 2-619(a)(9) motion to dismiss as plaintiff contends. In making that assertion, defendant notes that the law she cited in her motion to dismiss was not an affirmative matter under section 2-619 but, rather, was an Illinois statute and regulation that the trial court could properly take judicial notice of in a section 2-615(e) proceeding. Defendant maintains, therefore, that the trial court correctly granted her motion to dismiss and that this court should affirm the trial court's judgment.

¶ 9 After having reviewed defendant's motion in the present case, despite the parties' contentions to the contrary, we find that defendant's motion is best characterized as a section 2615 motion to dismiss and not as a section 2-615(e) motion for judgment on the pleadings or a section 2-619(a)(9) motion for involuntary dismissal. Unlike a section 2-615(e) motion for judgment on the pleadings, defendant's motion in the present case was not filed after the pleadings were closed and was not directed toward certain admissions in the pleadings. See 3 Richard A. Michael, Illinois Practice, Civil Procedure Before Trial § 27:2 (1989) (indicating that a section 2-615(e) motion for judgment on the pleadings is usually filed after all of the pleadings are closed and is usually based upon certain admissions in the pleadings). In addition, even if section 1 of the Attorney Act was affirmative matter that could be raised in a section 2-619(a)(9) motion to dismiss, defendant still would have been able to properly raise that matter in her section 2-615 motion in the instant case because the factual basis of that affirmative defense was set forth in the allegations contained in plaintiff's own complaint wherein plaintiff alleged that pursuant to the parties' agreement, he was entitled to a percentage of the defendant's federal settlement for legal services he had performed. See id. ; K. Miller Construction Co. v. McGinnis , 238 Ill. 2d 284, 291-92, 345 Ill.Dec. 32, 938 N.E.2d 471 (2010) (recognizing that an affirmative defense may be properly raised in a section 2-615 motion to dismiss when the defense is established by the facts apparent on the face of the complaint and no other facts alleged in the complaint negate the defense). From this point forward, therefore, we will treat defendant's motion as being a section 2-615 motion to dismiss.

¶ 10 It is well settled that a section 2-615 motion to dismiss challenges the legal sufficiency of a complaint based upon defects that are apparent on the face of the complaint. Heastie v. Roberts , 226 Ill. 2d 515, 531, 315 Ill.Dec. 735, 877 N.E.2d 1064 (2007). In ruling upon a section 2-615 motion, a court may consider only those facts apparent from the face of the complaint, matters of which the court can take judicial notice, and judicial admissions of record. K. Miller Construction Co. , 238 Ill. 2d at 291, 345 Ill.Dec. 32, 938 N.E.2d 471. In addition, the court must accept as true all well-pled facts and all reasonable inferences that may be drawn from those facts. Heastie , 226 Ill. 2d at 531, 315 Ill.Dec. 735, 877 N.E.2d 1064. "The critical inquiry in deciding upon a section 2-615 motion to dismiss is whether the allegations of the complaint, when considered in a light most favorable to the plaintiff, are sufficient to state a cause of action upon which relief can be granted." Board of Directors of Bloomfield Club Recreation Ass'n v. The Hoffman Group, Inc. , 186 Ill. 2d 419, 424, 238 Ill.Dec. 608, 712 N.E.2d 330 (1999). A cause of action should not be dismissed pursuant to section 2-615 unless it is clearly apparent that the plaintiff cannot prove any set of facts that will entitle the plaintiff to relief. Heastie , 226 Ill. 2d at 531, 315 Ill.Dec. 735, 877 N.E.2d 1064.

¶ 11 Section 1 of the Attorney Act, which is relied upon by defendant in the instant case, provides, in pertinent part, that:

"No person shall be permitted to practice as an attorney or counselor at law within this State without having previously obtained a license for that purpose from the Supreme Court of this State.
No person shall receive any compensation directly or indirectly for any legal services other than a regularly licensed attorney, nor may an unlicensed person advertise or hold himself or herself out to provide legal services.
* * *
Any person practicing, charging or receiving fees for legal services or advertising or holding himself or herself out to provide legal services within this State, either directly or indirectly, without being licensed to practice as herein required, is guilty of contempt of court and shall be punished accordingly, upon complaint being filed in any Circuit Court of this State. The remedies available include, but are not limited to: (i) appropriate equitable relief; (ii) a civil penalty not to exceed $5,000, which shall be paid to the Illinois Equal Justice Foundation; and (iii) actual damages. Such proceedings shall be conducted in the Courts of the respective counties where the alleged contempt has been committed in the same manner as in cases of indirect contempt and with the right of review by the parties thereto." 705 ILCS 205/1 (West 2016).

¶ 12 In the instant case, after having reviewed plaintiff's complaint and having considered the statute cited above, we find that the trial court properly granted defendant's section 2-615 motion to dismiss. The allegations of plaintiff's complaint, taken as true, establish that plaintiff performed legal services for defendant (see People ex rel. Chicago Bar Ass'n v. Tinkoff , 399 Ill. 282, 288, 77 N.E.2d 693 (1948) (recognizing that in addition to representing a party in court, actions such as giving advice, counseling, drafting legal documents, and participating in transactions may also constitute the practice of law) ) and that defendant agreed to pay plaintiff $150 plus 10% of the settlement in her federal case in exchange for the services rendered. Plaintiff did not allege, however, that he is an attorney, and it is clear that plaintiff is not an attorney. Thus, under Illinois law, plaintiff cannot, under any circumstances, receive compensation for the legal services he performed. See 705 ILCS 205/1 (West 2016). Indeed, upon the filing of an appropriate contempt complaint, the trial court could have found plaintiff guilty of contempt for charging for legal services. See id. Furthermore, there is no amendment that plaintiff could have made to his complaint that would have allowed him to receive compensation for the legal services he performed. See id. The trial court, therefore, correctly granted defendant's section 2-615 motion to dismiss plaintiff's complaint. See Heastie , 226 Ill. 2d at 531, 315 Ill.Dec. 735, 877 N.E.2d 1064.

¶ 13 Having reached that conclusion, we must take a moment to comment upon plaintiff's claim that Rule 137 was violated in this case because a licensed attorney improperly "ghost wrote" defendant's motion to dismiss without filing an appearance and without signing the motion as drafter. Contrary to plaintiff's assertion, however, Rule 137(e) makes clear that such assistance, provided by an attorney, is completely appropriate. See Ill. S. Ct. R. 137(e) (eff. July 1, 2013) (indicating that an attorney may assist a self-represented person in drafting or reviewing a pleading, motion, or other document without making a general or limited scope appearance and without signing the pleading, motion, or other document). We, therefore, find no merit to plaintiff's Rule 137 claim.

¶ 14 CONCLUSION

¶ 15 For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

¶ 16 Affirmed.

Justices Holdridge and O'Brien concurred in the judgment and opinion.

      Defendant also claimed, in the alternative, that even if plaintiff was a licensed attorney, the parties' agreement would still be unenforceable because the agreement did not comply with the requirements for contingent-fee agreements under the Illinois Rules of Professional Conduct of 2010 (Ill. R. Prof'l Conduct (2010) R. 1.5(c) (eff. Jan. 1, 2010) ). The trial court did not address that argument in its later decision.


source: Caselaw Access Project

license: Public Domain

text:
    Lloyd BELL and Rebecca Bell, Plaintiffs-Appellees, v. Ralph RING, d/b/a Patton-Ring Truck, Trailer & Engine Specialists, Defendant-Appellant.
    Appeal No. 3-17-0649
    Appellate Court of Illinois, Third District.
    Opinion filed September 17, 2018
   PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs, Lloyd and Rebecca Bell, filed a small claims case against defendant, Ralph Ring, d/b/a Patton-Ring Truck, Trailer & Engine Specialists, for violations of the Automotive Repair Act (Repair Act) ( 815 ILCS 306/15 (West 2016) ) and the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) ( 815 ILCS 505/2Z (West 2016) ) in connection with defendant's repair of plaintiffs' semitruck (truck). Plaintiffs sought the return of the truck, damages, and other relief. After a bench trial, the trial court ruled in plaintiffs' favor; granted plaintiffs possession of the truck; and awarded plaintiffs damages, costs, and attorney fees. Defendant appeals. We affirm the trial court's judgment.

¶ 2 FACTS

¶ 3 Plaintiff, Lloyd Bell, owned and operated a 2007 Freightliner semitruck and was a truck driver for Cedar Rapids Steel Transport (Cedar Rapids). Lloyd had worked for Cedar Rapids as an owner-operator for the past 23 years. Defendant, Ralph Ring, was the owner and operator of Patton-Ring Truck, Trailer & Engine Specialists (Patton-Ring). Patton-Ring was a commercial truck and trailer repair facility that performed repair work on heavy trucks and equipment, trailers, and motor coaches.

¶ 4 On January 3, 2017, Lloyd's truck broke down. Soon thereafter, Lloyd contacted Truck Centers, Inc. (Truck Centers), a repair shop in Morton, Illinois, and obtained an estimate of approximately $3300 for the cost of repairs, not including the cost of towing the truck to the repair shop. Lloyd then contacted defendant in an effort to obtain an estimate for the repair work and to see if defendant could match the estimate Lloyd had received from Truck Centers. Defendant had previously conducted repairs on Lloyd's truck for Cedar Rapids and routinely did work on Cedar Rapids' semitrucks. Defendant initially refused to repair Lloyd's truck because defendant was too busy with other repairs and did not have time to give Lloyd an estimate, and defendant told Lloyd as much. Lloyd persisted in trying to have defendant perform the repairs because of defendant's experience and reputation in repairing those types of trucks. Defendant eventually agreed to have Lloyd's truck towed from Chicago to defendant's shop in East Peoria so that he could determine what needed to be repaired.

¶ 5 Shortly after Lloyd's truck arrived at defendant's shop, defendant conducted a preventative maintenance checklist inspection on the truck. At the bench trial in the instant case, the parties disagreed as to what happened next. Lloyd testified that he contacted defendant and defendant's wife, who performed the administrative functions for Patton-Ring, numerous times over the next month trying to obtain an estimate from defendant on how much the repair work would cost. According to Lloyd, he never gave defendant permission to go forward with the work because he needed to get a loan to pay for the repairs and was waiting for defendant to give him an estimate of the cost. Lloyd testified further that on February 10, 2017, he and his wife, Rebecca, went to defendant's shop to check on the status of the truck, only to learn that defendant had already completed the repairs. At that time, plaintiffs requested an invoice for the work, and defendant presented them with a handwritten invoice listing the total cost for labor and materials as approximately $9000, which plaintiffs refused to pay. Defendant later provided plaintiffs with a typewritten invoice and reduced the cost of the repairs to approximately $8600, which plaintiffs refused to pay as well. Because plaintiffs refused to pay for the work, defendant refused to return the truck to them. As a result, Lloyd had to rent a truck so that he could continue in his work for Cedar Rapids. Lloyd confirmed during his testimony that he did not have any type of ongoing maintenance or repair contract with defendant whereby defendant would be the person who would fix plaintiffs' truck whenever it broke down.

¶ 6 Defendant, on the other hand, testified that Lloyd came to his shop shortly after the truck was towed to that location. Defendant went over the preventative maintenance checklist inspection with Lloyd and showed Lloyd everything that needed to be repaired on the truck. Lloyd was in a hurry to get the truck repaired, instructed defendant to go forward with the repairs, and told defendant that he wanted to make sure that his truck was not going to break down again. In their discussions, defendant had told Lloyd that he could match or beat Truck Centers' estimate as to the same repairs and had also told Lloyd that many more repairs were needed. Defendant maintained that Lloyd had instructed him to go forward with the work, even though defendant had told Lloyd that he was too busy to give Lloyd an estimate for the total cost of the repairs. Defendant confirmed in his testimony that he did not provide Lloyd with a written or oral estimate and that he did not have Lloyd sign a written waiver of an estimate for the work. According to defendant, the majority of his customers were businesses or people who owned their equipment to run a business and it was not his practice to give his customers, including Cedar Rapids, estimates before starting repair work. Defendant stated further that it was also not the practice of other truck repair shops to provide estimates to their customers before starting repair work. Defendant commented that he later reduced Lloyd's bill because he was trying to maintain a good working relationship with Lloyd. Defendant also confirmed that he had worked on that particular truck before but stated that the work was done for, and billed to, Cedar Rapids. Defendant's wife also testified and confirmed that she and defendant had told Lloyd that defendant would not be able to give him an estimate for the repairs and that Lloyd persisted with having defendant repair the truck, despite being told that an estimate would not be provided.

¶ 7 In April 2017, plaintiffs filed the instant small claims case against defendant. In the complaint, plaintiffs alleged that defendant violated the Repair Act and the Consumer Fraud Act by not providing a written estimate of the work that was to be completed and by not obtaining prior authorization from plaintiffs for that work. Plaintiffs sought the return of the truck, damages, and other relief.

¶ 8 Over two days in June and July 2017, a bench trial was held on plaintiffs' complaint. Three witnesses were called to testify: Lloyd, defendant, and defendant's wife. In addition, several exhibits were presented, including the estimate that plaintiffs had received from Truck Centers, the handwritten invoice that plaintiffs had received from defendant, the typewritten invoice that plaintiffs had received from defendant, the truck rental lease that Lloyd had entered into, and the preventative maintenance checklist inspection form that defendant had prepared. After all of the evidence had been presented and the closing arguments had been made, the trial court took the case under advisement. The trial court later issued a written decision, ruling in plaintiffs' favor; granting plaintiffs possession of the truck; and awarding plaintiffs damages, costs, and attorney fees. Following the denial of defendant's motion to reconsider, defendant appealed.

¶ 9 ANALYSIS

¶ 10 On appeal, defendant argues that the trial court erred in ruling in plaintiffs' favor after the bench trial on plaintiffs' complaint for violations of the Repair Act and the Consumer Fraud Act in connection with defendant's work on Lloyd's truck. In support of that argument, defendant makes three different assertions. First, defendant asserts that the Repair Act did not apply in this case and that defendant, therefore, was not required to provide Lloyd with a written estimate or to obtain prior authorization for all of the work performed because defendant's work on Lloyd's truck fell under one or more of the exceptions to the Repair Act. Specifically and citing his own reading of the statute, defendant contends that his work on Lloyd's truck fell under the commercial fleet exception, the ongoing services exception, and the maintenance transactions exception to the statute. Second, and in the alternative, defendant asserts that even if the Repair Act applied, he was not required to provide Lloyd with a written estimate because Lloyd waived the estimate requirement by his conduct. In making that assertion, defendant points out that the Repair Act allows for waivers of the estimate requirement (see 815 ILCS 306/45 (West 2016) ) and claims that Lloyd's conduct of insisting that defendant perform the work after being informed that defendant did not have time to provide Lloyd with an estimate constituted a valid waiver of the estimate requirement. Third and also in the alternative, defendant asserts that even if the Repair Act applied and even if Lloyd did not waive the estimate requirement, plaintiffs were still not entitled to damages under the Consumer Fraud Act because plaintiffs failed to prove that defendant knowingly violated the Repair Act, as required for a Consumer Fraud Act violation. In making that assertion, defendant cites to some of the case law on this issue, but in different contexts, and claims that to establish an unlawful practice under the Consumer Fraud Act based upon a knowing violation of the Repair Act, the plaintiffs must show that the defendant knew about the Repair Act's requirements and intended to violate them. See, e.g. , Kunkel v. P.K. Dependable Construction, LLC , 387 Ill. App. 3d 1153, 1159-60, 327 Ill.Dec. 648, 902 N.E.2d 769 (2009) (finding that the plaintiffs failed to prove the "knowing" requirement under section 2Z of the Consumer Fraud Act relating to roof repair work because the plaintiffs failed to present either evidence of the defendants' state of mind in failing to provide the plaintiffs with a required consumer rights pamphlet or evidence supporting a knowing violation, even though the plaintiffs testified that defendants did not provide them with the required pamphlet); Wendorf v. Landers , 755 F.Supp.2d 972, 978 (N.D. Ill. 2010) (finding that plaintiffs failed to allege sufficient facts to establish the "knowing" requirement under section 2Z of the Consumer Fraud Act relating to automatic gym membership payments because the plaintiffs did not allege directly or by inference that the defendant intentionally violated the underlying statute). For all the reasons stated, defendant asks that we reverse the trial court's ruling, that we enter judgment in defendant's favor, and that we award defendant approximately $9000 in damages.

¶ 11 Plaintiffs argue that the trial court's ruling was proper and should be upheld. Responding to each of defendant's assertions in turn, plaintiffs contend first, although somewhat implicitly, that the trial court correctly found that defendant violated the Repair Act by failing to give Lloyd an estimate before performing the work on Lloyd's truck. In support of that contention, plaintiffs assert that defendant's work on Lloyd's truck did not fall within one of the exceptions to the Repair Act and that defendant's claim to the contrary goes against the plain and unambiguous language of the statute. Second, plaintiffs contend that there was no waiver of the Repair Act's estimate requirement in the present case. In making that contention, plaintiffs note that defendant presented no evidence at trial to establish that Lloyd had signed a written waiver of the estimate requirement as mandated by section 20 of the Repair Act ( 815 ILCS 306/20 (West 2016) ) and claim that to allow a constructive waiver of the estimate requirement, as defendant suggests, would defeat the effect of section 20. Third and finally, plaintiffs contend that the trial court correctly found that defendant acted knowingly and that the defendant violated the Consumer Fraud Act. Plaintiffs claim that defendant's assertion to the contrary misconstrues the "knowing" requirement under the Consumer Fraud Act and ignores the longstanding legal principle that ignorance or mistake of law is no defense to a violation of the law. In support of their claim, plaintiffs point to case law interpreting the "knowing" requirement under other consumer-fraud-type statutes and maintain that defendant's acts here were intentional and were not the result of a mistake about material facts relating to the estimate requirement. See, e.g. , Baker v. G.C. Services Corp. , 677 F.2d 775, 779 (9th Cir. 1982) (stating that the evidence, which, at best, showed that the appellant had been mistaken about the law was insufficient to support the bona fide error defense under the Fair Debt Collection Practices Act ( 15 U.S.C. § 1692k(c) (1982) ); Rutyna v. Collection Accounts Terminal, Inc. , 478 F.Supp. 980, 982 (N.D. Ill. 1979) (stating that the bona fide error defense under the Fair Debt Collection Practices Act did not immunize mistakes of law and was designed to protect those defendants who tried to prevent the prohibited conduct but failed to do so, even though they maintained procedures reasonably adapted to avoid those errors); Turner v. J.V.D.B. & Associates, Inc. , 211 F.Supp.2d 1108, 1109 (N.D. Ill. 2002) (stating in a case under the Fair Debt Collection Practices Act that a mistake of fact may constitute a defense, but a mistake of law is never a defense), rev'd on other grounds , 330 F.3d 991, 995-96 (7th Cir. 2003). For all of the reasons set forth, plaintiffs ask that we affirm the trial court's judgment.

¶ 12 In ruling upon this appeal, we are called upon to perform two different tasks. First, we are asked to perform statutory interpretation of various provisions of the Repair Act and the Consumer Fraud Act. In performing that task, which is a question of law, we will apply a de novo standard of review. See Gaffney v. Board of Trustees of the Orland Fire Protection District , 2012 IL 110012, ¶ 50, 360 Ill.Dec. 549, 969 N.E.2d 359. Second, we are asked to review the findings made by the trial court after a bench trial. In performing that task, we will apply a manifest weight standard of review and will not reverse the trial court's findings unless they are against the manifest weight of the evidence. See Eychaner v. Gross , 202 Ill. 2d 228, 251, 269 Ill.Dec. 80, 779 N.E.2d 1115 (2002) ; Meyers v. Woods , 374 Ill. App. 3d 440, 449, 312 Ill.Dec. 760, 871 N.E.2d 160 (2007). A finding is against the manifest weight of the evidence only if it is clearly apparent from the record that the trial court should have reached the opposite conclusion or if the finding itself is unreasonable, arbitrary, or not based upon the evidence presented. Best v. Best , 223 Ill. 2d 342, 350, 307 Ill.Dec. 586, 860 N.E.2d 240 (2006). Under the manifest weight standard, deference is given to the trial court as finder of fact because the trial court is in a better position than the reviewing court to observe the conduct and demeanor of the parties and witnesses. Id. A court of review, therefore, will not substitute its judgment for that of the trial court regarding the credibility of witnesses, the weight to be given evidence, or the inferences to be drawn. Id. at 350-51, 307 Ill.Dec. 586, 860 N.E.2d 240.

¶ 13 The principles of statutory construction are well established. The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature. Gaffney , 2012 IL 110012, ¶ 56, 360 Ill.Dec. 549, 969 N.E.2d 359. The most reliable indicator of that intent is the language of the statute itself. Id. In determining the plain meaning of statutory terms, a court should consider the statute in its entirety and keep in mind the subject the statute addresses and the apparent intent of the legislature in enacting the statute. Blum v. Koster , 235 Ill. 2d 21, 29, 335 Ill.Dec. 614, 919 N.E.2d 333 (2009) ; 5 ILCS 70/1.01 (West 2016) (in construing a statute, "[a]ll general provisions, terms, phrases and expressions shall be liberally construed in order that the true intent and meaning of the General Assembly may be fully carried out"). If the statutory language is clear and unambiguous, it must be applied as written, without resorting to further aids of statutory construction. Gaffney , 2012 IL 110012, ¶ 56, 360 Ill.Dec. 549, 969 N.E.2d 359. A court may not depart from the plain language of the statute and read into it exceptions, limitations, or conditions that are not consistent with the express legislative intent. Id.

¶ 14 One of the obvious purposes of the Repair Act is to protect customers. See 815 ILCS 306/5 (West 2016) ; Jandeska v. Prairie International Trucks, Inc. , 383 Ill. App. 3d 396, 400, 323 Ill.Dec. 401, 893 N.E.2d 673 (2008). Section 15 of the Repair Act requires a motor vehicle repair facility that is covered by the Act to provide a consumer with a written estimate (or written price limit) of the work to be performed and to obtain specific prior authorization from the consumer for any work that exceeds $100. 815 ILCS 306/15 (West 2016). Pursuant to the Repair Act, an "[a]utomotive repair facility" or "a motor vehicle repair facility" is defined as "any person, firm, association, or corporation that for compensation engages in the business of automotive repair or diagnosis, or both, of malfunctions of motor vehicles." Id. § 10. In the context of the present case, an "[a]utomotive repair" includes, but is not limited to:

"All repairs to motor vehicles that are commonly performed in a motor vehicle repair facility by a motor vehicle technician, including the diagnosis, installation, exchange, or repair of mechanical or electrical parts or units for any vehicle, the performance of any electrical or mechanical adjustment to any vehicle, or the performance of any service work required for routine maintenance or repair of any vehicle. The term does not include commercial fleet repair or maintenance transactions involving 2 or more vehicles or ongoing service or maintenance contracts involving vehicles used primarily for business purposes." Id. § 10(1).

¶ 15 A consumer may waive the right to receive a written estimate if he or she does so voluntarily and without being coerced by the motor vehicle repair facility. Id. § 45. Section 20 of the Repair Act provides a specific form that is to be used for any such waiver. See Id. § 20. A knowing violation of the Repair Act constitutes an unlawful practice and is actionable under the Consumer Fraud Act. 815 ILCS 505/2Z (West 2016).

¶ 16 In the present case, after having reviewed the facts, the statutes at issue, and the case law, we conclude that the trial court's finding-that defendant had violated the Repair Act and the Consumer Fraud Act in his repair of Lloyd's vehicle-was well supported by the evidence. Contrary to defendant's assertions, we find that the statutory language of section 10(1) of the Repair Act is clear and unambiguous. For our purposes here, the section establishes two exceptions to the estimate and authorization requirements (two categories of repairs that are not classified as "[a]utomotive repair" for the purposes of the Repair Act): (1) commercial fleet repair or maintenance transactions involving two or more vehicles and (2) ongoing service or maintenance contracts involving vehicles used primarily for business purposes. See 815 ILCS 306/10(1) (West 2016). Neither of those two exceptions is present in the instant case, where there was only one vehicle involved and where there was no ongoing service or maintenance contract between the parties. See id. Defendant's assertions to the contrary are unpersuasive, as defendant relies upon a strained reading of the statute to suggest that more exceptions exist and improperly attempts to group Lloyd's vehicle together with other vehicles from Cedar Rapids to fit the repair work into one of defendant's claimed statutory exceptions.

¶ 17 Based upon our reading of section 10(1), however, we conclude that the Repair Act applied to defendant in this case. See id. Defendant, therefore, was required to provide Lloyd with a written estimate prior to the work being performed and to obtain Lloyd's prior authorization for the completion of the work. See id. § 15. Lloyd could not have validly waived those requirements because a valid waiver form, as required by section 20 of the Repair Act, was never signed by Lloyd. See id. § 20.

¶ 18 Finally, despite defendant's claim to the contrary, the evidence in this case was sufficient to show that defendant knowingly violated the Repair Act as necessary to establish an actionable violation under the Consumer Fraud Act. See 815 ILCS 505/2Z (West 2016). This is not a case where defendant inadvertently failed to provide an estimate. Rather, defendant knowingly and intentionally elected not to provide an estimate because he was "too busy" and never sought to obtain a written waiver from Lloyd for the estimate requirement. Instead, defendant chose to rely on his erroneous belief that the work was not covered by the Repair Act and did over $9000 worth of work on Lloyd's truck without giving Lloyd an estimate and without obtaining prior authorization from Lloyd. However, the problem with defendant's reliance in that regard, as plaintiffs correctly note, is that it is contrary to the fundamental legal principle that a person's lack of knowledge or mistake about the law is generally not a defense to a violation of the law. See Jones v. Board of Education of the City of Chicago , 2013 IL App (1st) 122437, ¶ 22, 375 Ill.Dec. 37, 996 N.E.2d 1093 (stating that "it has long been the law that everyone is presumed to know the law and ignorance of the law excuses no one"); Baker , 677 F.2d at 779 ; Rutyna , 478 F.Supp. at 982 ; Turner , 211 F.Supp.2d at 1109. Furthermore, to the extent that case law decisions in other contexts state or suggest that a defendant must know the underlying statute and specifically intend to violate it to satisfy the Consumer Fraud Act's "knowing" requirement, we disagree with those decisions. Contra Kunkel , 387 Ill. App. 3d at 1159-60, 327 Ill.Dec. 648, 902 N.E.2d 769 ; Wendorf , 755 F.Supp.2d at 978.

¶ 19 CONCLUSION

¶ 20 For the foregoing reasons, we affirm the judgment of the circuit court of Tazewell County.

¶ 21 Affirmed.

Justice Lytton concurred in the judgment and opinion.

Justice Holdridge dissented, with opinion.

¶ 22 JUSTICE HOLDRIDGE, dissenting.

¶ 23 I dissent. In my view, the trial court erred in granting judgment for the Bells because the Bells failed to demonstrate that Ring "knowingly" violated the Repair Act ( 815 ILCS 306/15 (West 2016) and therefore failed to establish an actionable violation of the Consumer Fraud Act ( 815 ILCS 505/2Z (West 2016). Because the Repair Act does not provide a private right of action for parties harmed by an automotive repair facility's violation of the Repair Act, the Bells' claim can succeed only if the Bells can show that Ring violated the Consumer Fraud Act. Section 2Z of the Consumer Fraud Act provides that any person who "knowingly" violates the Repair Act (or several other statutes) "commits an unlawful practice within the meaning of [the Consumer Fraud Act]." 815 ILCS 505/2Z (West 2016). Courts interpreting section 2Z, including our appellate court, have held or suggested that a party commits a "knowing" violation sufficient to support a claim under the Consumer Fraud Act only when the underlying statutory violation was committed "with the intent to disregard the law." Wendorf v. Landers , 755 F.Supp.2d 972, 978 (N.D. Ill. 2010) ; see also Kunkel v. P.K. Dependable Construction , LLC , 387 Ill. App. 3d 1153, 1160, 327 Ill.Dec. 648, 902 N.E.2d 769 (2009) (holding that violation of Home Repair and Remodeling Act ( 815 ILCS 513/20(a) (West 2002) ) did not violate section 2Z of the Consumer Fraud Act because plaintiff failed to provide either evidence of defendant's state of mind or evidence supporting a knowing violation).

¶ 24 The majority acknowledges these decisions but declines to follow them. Supra ¶ 18. According to the majority, Ring "knowingly" violated the Repair Act by intentionally failing to provide the Bells with an estimate of the repairs at issue, even if (as Ring claims) Ring did not know the Repair Act required him to provide an estimate. I disagree. Section 2Z of the Consumer Fraud Act provides a private right of action only against parties that "knowingly violate" the Repair Act. On the majority's view, unintentional violations of the Repair Act would be actionable under the Consumer Fraud Act so long as the conduct at issue (here, the failure to provide an estimate) was performed intentionally. But that would render the Consumer Fraud Act's explicit requirement of a knowing violation meaningless and superfluous. Wendorf , 755 F.Supp.2d at 978. We should avoid construing the statute in this manner. See Merritt v. Department of State Police , 2016 IL App (4th) 150661, ¶ 20, 404 Ill.Dec. 609, 56 N.E.3d 593 (a reviewing court should avoid an interpretation that renders one of a statute's provisions superfluous). Such an interpretation would seem particularly inappropriate here because the legislature declined to provide a private right of action in the Repair Act and expressly conditioned the availability of a remedy under the Consumer Fraud Act upon proof that the defendant "knowingly violate[d]" the Repair Act. Accordingly, I find Kunkel and Wendorf to be well reasoned, and I would follow them here.

      It is unclear from the record whether Lloyd's wife, Rebecca Bell, was a co-owner of the truck.

      In closing arguments, defendant's attorney told the court that defendant was asserting a counterclaim for the total cost of the repairs that defendant performed. It does not appear from the record, however, that defendant filed a written counterclaim.


text:
    IN RE ESTATE OF Eugene Elwyn LAY, Deceased.
    (Beverly Ann Bateman Kelton, Petitioner-Appellant, v. Delbert Miller, Executor, Respondent-Appellee).
    Appeal No. 3-17-0378
    Appellate Court of Illinois, Third District.
    Opinion filed September 18, 2018
    Mark R. Steffen, of Kankakee, for appellant.
    David M. Jaffe, of Kankakee, and Jerome C. Shapiro, of Aroma Park, for appellee.
   JUSTICE McDADE delivered the judgment of the court, with opinion.

¶ 1 The petitioner, Beverly Ann Bateman Kelton, filed a petition to contest the will of the decedent, Eugene Elwyn Lay. The circuit court dismissed the petition after finding that Kelton was not an interested person under the Probate Act of 1975 (Probate Act) ( 755 ILCS 5/1-1 et seq. (West 2016) ) and lacked standing to contest the will. Kelton appealed, alleging that the court's decision was erroneous. We reverse and remand for further proceedings.

¶ 2 FACTS

¶ 3 Lay died in Kankakee on January 29, 2016. He executed a will one day prior to his death in which he left the entirety of his estate to Delbert Miller, who was also nominated as executor of the estate. The will was signed by two witnesses whose signatures are illegible. A petition for probate was filed on March 9, 2016. The will was admitted to probate the next day with letters of office as executor issued to Miller.

¶ 4 On September 8, 2016, Kelton timely filed a petition to contest the validity of Lay's 2016 will. Kelton stated that she was the sister of Lay's wife, Billie, who had predeceased Lay. The petition alleged that except for a $2000 gift to Miller, Lay's previous will had left the entirety of his estate to Kelton and her siblings. The petition questioned the soundness of Lay's mind at the time he executed the 2016 will and also alleged that (1) Lay "was suffering from lung cancer and * * * was not receiving medical treatment, but may have received hospice or other palliative care"; (2) Lay was "suffering from various mental and physical infirmities and illnesses * * * and had been recently administered status altering medication"; (3) at the time the 2016 will was executed, Miller and his daughter were managing some of Lay's financial affairs and were therefore fiduciaries; (4) Kelton had spoken to Lay on January 27, 2016-two days before his death and one day before the challenged will was signed-but he was too weak and disoriented to respond; (5) the 2016 will did not provide for Lay's family "nor for [Kelton] who [sic ] he treated like a sibling and referred to as his family"; (6) Miller and his daughter improperly influenced Lay to execute the 2016 will; and (7) the 2016 will was not published nor was it witnessed by two independent persons because one of the witnesses was Miller.

¶ 5 Miller filed a motion to dismiss Kelton's petition pursuant to section 2-619 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619 (West 2016) ), alleging that she lacked standing because she failed to attach a copy of the prior will and an affidavit stating facts to show that the original was not accessible to her. The motion also alleged that Kelton was not an interested person under the Probate Act.

¶ 6 Kelton requested and received leave to file a copy of Lay's prior will. This will was dated July 3, 1979, and left the entirety of his estate to his wife. If she predeceased him, the will provided, in relevant part, for the following distribution: (1) $2000 to Miller and (2) the remainder of his estate in equal shares to the brothers and sisters of his wife, which included Kelton. Lay also nominated his wife to be executrix, with Kelton named as the successor.

¶ 7 The circuit court heard arguments on May 11, 2017, and issued a written decision four days later. The court found that Kelton failed to meet her burden of proving that the prior will was unrevoked at the time of Lay's death, she was not an interested person under the Probate Act, and she lacked standing to contest the 2016 will.

¶ 8 Kelton appealed.

¶ 9 ANALYSIS

¶ 10 On appeal, Kelton argues that the circuit court erred when it granted the motion to dismiss her petition. Specifically, she claims that, as a legatee under the previous will, she is an interested person under the Probate Act with standing to contest the 2016 will. She also denies any requirement that she produce the original of the 1979 will or prove that it was still valid.

¶ 11 This appeal challenges the grant of respondent's section 2-619 motion to dismiss. Our review is de novo . In re Estate of Schlenker , 209 Ill. 2d 456, 461, 283 Ill.Dec. 707, 808 N.E.2d 995 (2004).

¶ 12 In relevant part, section 2-619 of the Code allows a defendant to file a motion for involuntary dismissal based on an allegation "[t]hat the claim asserted * * * is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 2016). An allegation that a plaintiff lacks standing to bring his or her claim constitutes an affirmative matter that can be asserted under section 2-619(a)(9). Schlenker , 209 Ill. 2d at 461, 283 Ill.Dec. 707, 808 N.E.2d 995. The burden of pleading and proving an affirmative defense always rests with the person asserting it. Id. Not only does a plaintiff faced with a standing challenge have no duty to allege facts or present evidence to establish his or her standing to sue, "a court must accept as true all well-pleaded facts in plaintiff's complaint and all inferences that can reasonably be drawn in plaintiff's favor." Id.

¶ 13 Standing to sue requires an injury in fact to a legally cognizable interest. Greer v. Illinois Housing Development Authority , 122 Ill. 2d 462, 492, 120 Ill.Dec. 531, 524 N.E.2d 561 (1988). The doctrine of standing requires that a party assert his or her own legal rights and interests, rather than the rights and interests of third parties. In re Estate of Schumann , 2016 IL App (4th) 150844, ¶ 15, 409 Ill.Dec. 153, 67 N.E.3d 365. The purpose of the standing requirement is to "ensure[ ] that issues are raised only by parties having a real interest in the outcome of the controversy." (Internal quotation marks omitted.) Id.

¶ 14 In the probate context, standing to contest a will comes not from the common law, but from statute. Id. ¶ 19. Pursuant to section 8-1(a) of the Probate Act, within six months of the admission of a will to probate, any "interested person" may file a petition to contest the validity of that will. 755 ILCS 5/8-1(a) (West 2016). Section 1-2.11 of the Probate Act defines "interested person" as "one who has or represents a financial interest, property right or fiduciary status at the time of reference which may be affected by the action, power or proceeding involved, including without limitation an heir, legatee, creditor, person entitled to a spouse's or child's award and the representative." Id. § 1-2.11.

¶ 15 Prior to our supreme court's 2004 decision in Schlenker , Illinois law was clear that a legatee under a previously executed will had standing to contest a subsequently executed will as long as the legatee had section 1-2.11's requisite interest in the outcome of the matter. Schumann , 2016 IL App (4th) 150844, ¶ 21, 409 Ill.Dec. 153, 67 N.E.3d 365. We do not read Schlenker as affecting the clarity of that law.

¶ 16 The question presented in Schlenker was whether an heir attempting to challenge a will could successfully assert a financial interest in a will contest when multiple wills in which she inherited nothing stood between her and either (1) a will further down the chain in which she did have an interest or (2) the interest she had by virtue of intestacy if all of the intervening wills were found invalid. The Schlenker majority held that an heir always has a financial interest created by the potential, however tenuous, of the estate eventually passing by intestacy. Schlenker , 209 Ill. 2d at 466, 283 Ill.Dec. 707, 808 N.E.2d 995. In reaching its decision, the Schlenker majority expressly distinguished the situation of an heir from that of a legatee under a previous will. Id. at 465, 283 Ill.Dec. 707, 808 N.E.2d 995. Justice Garman's special concurrence challenged the majority's ultimate conclusion as rendering superfluous the portion of section 1-2.11 that required an affected interest. Id. at 467-68, 283 Ill.Dec. 707, 808 N.E.2d 995 (Garman, J., specially concurring). However, because she found, citing well-settled law, that the revocation clause in the most recent will had no effect until the will contest was complete, she concurred in the finding that the particular heir had an interest affected by the action. Id. at 468-69, 283 Ill.Dec. 707, 808 N.E.2d 995. The majority articulated no disagreement with the legal principles relied upon by Justice Garman.

¶ 17 Schlenker is not our case, and its issue is not our issue. Nor, as the Fourth District ultimately found in Schumann , was it that case. The facts and procedural history in Schumann and those in the instant case track one another in all salient respects. See Schumann , 2016 IL App (4th) 150844, ¶¶ 4-9, 409 Ill.Dec. 153, 67 N.E.3d 365. The Fourth District noted, as have we, that the "fundamental" holding of Schlenker was that an heir possesses an unconditional right to contest a will; that court also concluded that the remainder of the decision constituted dicta . Id. ¶ 35. Moreover, the Fourth District explained that the Schlenker court's presumption-that the probated will's revocation clause invalidated the previous wills-was based on the applicable burden of proof, rather than a broad statement of the power of revocation clauses in probated wills: "[w]e read Schlenker less as establishing a new rule that all prior revoked wills must be considered void than as reaffirming the well-established rule that all inferences must be drawn in the plaintiff's favor when considering a section 2-619 motion to dismiss." (Emphases omitted.) Id. ¶ 36. We agree. Reading Schlenker as the respondent proposes would effectively foreclose any legatee under a prior will from contesting a will, admitted to probate, which disinherits him or her. This is neither the effect nor the intent of long-settled Illinois law.

¶ 18 In the instant case, the will contest petitioner, Kelton, has alleged that she was a named beneficiary and successor executor under a will executed by the decedent in 1979 and in effect until the day before his death when he purportedly executed the will that had been admitted to probate. She claims that the 2016 will was executed without testamentary capacity and was the product of undue influence. Miller's motion to dismiss under section 2-619 challenged the petitioner's standing to maintain the will contest. The question presented to us is whether the petitioner has standing as a legatee under the decedent's immediately preceding will to pursue a will contest; in other words, whether Kelton had "a financial interest, property right or fiduciary status at the time of reference which may be affected by the action, power or proceeding involved."

755 ILCS 5/1-2.11 (West 2016). Reduced to its essence, Kelton has standing in this case if she has something financial to gain if she prevails in the will contest or to lose if she does not.

¶ 19 Respondent was able to convince the circuit court that under Schlenker , the 2016 will presumptively revoked the 1979 will and that Kelton had the burden of proving that the 1979 will was unrevoked at the time of Lay's death. However, the circuit court's ruling-and Miller's argument on appeal-are premised on inapposite case law. The circuit court cited to In re Estate of Koziol , 366 Ill. App. 3d 171, 177, 303 Ill.Dec. 300, 851 N.E.2d 198 (2006), for the following proposition:

"Where a last will and testament, after its execution, is retained by the testator and cannot be found upon his death, it is the well-settled rule of this and of the majority of jurisdictions that it will be presumed to have been destroyed by him animo revocandi . [Citations.] The same cases establish that the presumption is subject to being rebutted by circumstances which tend to show a contrary conclusion, and that the burden is on one seeking to probate such a will to prove that it was unrevoked at the testator's death." (Emphasis added and internal quotation marks omitted.)

Unlike Koziol , this case does not involve an individual attempting to probate a will that could not be found. Kelton was not attempting to probate the 1979 will; she was attempting to challenge a will offered to probate by Miller. Accordingly, Koziol has no application to the instant case.

¶ 20 As previously stated, when ruling on a section 2-619 motion to dismiss for an alleged lack of standing, all well pled allegations in the complaint are taken as true, all presumptions and inferences are drawn in favor of the nonmoving party (Kelton), and it is the burden of the moving party (Miller) to prove a lack of standing. Schlenker , 209 Ill. 2d at 461, 283 Ill.Dec. 707, 808 N.E.2d 995. As the movant, Miller was not entitled to a presumption of the 1979 will's invalidity. See Schumann , 2016 IL App (4th) 150844, ¶ 46, 409 Ill.Dec. 153, 67 N.E.3d 365. Further, Kelton was not required to prove she had standing to contest the 2016 will. See id. These principles were not followed in this case. Consequently, the trial court's ruling runs afoul of long-established legal precedent and improperly insulates Lay's suspect will from the legal challenge of a potentially interested person. See id. ¶ 40.

¶ 21 For the foregoing reasons, we hold that the circuit court erred when it granted Miller's section 2-619 motion to dismiss, and we remand the case for further proceedings.

¶ 22 CONCLUSION

¶ 23 The judgment of the circuit court of Kankakee County is reversed, and the cause is remanded for further proceedings.

¶ 24 Reversed and remanded.

Justices Lytton and Wright concurred in the judgment and opinion.