2020 IL App (1st) 192026-U
SIXTH DIVISION November 6, 2020
No. 1-19-2026
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
AMERICAN REMODAL & CONSTRUCTION, INC., ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 17 M 54900 ) FELIX FERNANDEZ, ) Honorable ) John Hynes, Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE MIKVA delivered the judgment of the court. Justices Connors and Harris concurred in the judgment.
ORDER
¶1 Held: Trial court’s judgment in plaintiff’s favor on breach of contract claim affirmed where the evidence at trial demonstrated the existence of a valid oral contract to remodel property, performance by plaintiff, breach by defendant, and resulting injury to plaintiff; trial court’s award of damages was also supported by the evidence at trial.
¶2 Defendant Felix Fernandez appeals from a decision of the trial court awarding plaintiff
American Remodal Corporation, Inc. (ARC), an Illinois corporation, $28,828.67, plus costs, on its
breach of contract claim. In its ruling, the trial court found ARC substantially performed under a No. 1-19-2026
valid oral contract and that Mr. Fernandez still owed ARC $39,728.67 in compensation for that
work. The court reduced the award by $10,900 due to various deficiencies in performance. On
appeal, Mr. Fernandez argues that the trial court’s judgment was against the manifest weight of
the evidence and ARC failed to make a prima facie showing of a valid contract. For the reasons
that follow, we affirm.
¶3 I. BACKGROUND
¶4 On February 28, 2018, ARC filed the operative complaint in this action, alleging breach of
contract. ARC also brought a claim for quantum meruit in the alternative, but that claim is not at
issue on appeal. The complaint alleged that Mr. Fernandez had entered into an oral contract with
ARC to remodel a two-flat apartment building located at 2326 South Wolcott Avenue in Chicago
(Wolcott Property) for “the agreed upon sum.” The complaint further alleged that Mr. Fernandez
accepted the offer, that ARC fully performed the remodeling work, and that Mr. Fernandez still
owed ARC $70,538.02 for labor and materials.
¶5 Mr. Fernandez filed his answer, affirmative defenses, and a counterclaim on April 18,
2018. Mr. Fernandez’s affirmative defenses were that he fully performed under the “alleged
agreement;” ARC failed to fully perform under the agreement; ARC failed to state a cause of
action; ARC failed to mitigate its damages; and ARC’s claims were barred (1) by the doctrine of
unclean hands, (2) due to fraud and illegality, and (3) by its own breach. In his counterclaim, Mr.
Fernandez alleged that ARC breached the parties’ contract because it did not finish its remodeling
obligations. Mr. Fernandez requested damages of $30,000 for the breach or, in the alternative, the
amount ARC had been unjustly enriched.
¶6 A bench trial was held on August 21, 2019. Both Sergio Huerta, a general contractor and
the owner of ARC, and Mr. Fernandez testified at trial. Both attested to an agreement between
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them for a total rehabilitation of the two-flat apartment building at the Wolcott Property. According
to Mr. Huerta, the parties agreed Mr. Fernandez would pay Mr. Huerta $35 an hour and Mr.
Huerta’s employees $25 an hour, Mr. Fernandez would pay for all materials purchased for the job,
and ARC would receive a bonus upon the completion of the project equaling 10% of the total
charges. Mr. Huerta testified that he obtained the permit from the city “as a favor” for Mr.
Fernandez and that they negotiated the agreement thereafter. According to Mr. Huerta, Mr.
Fernandez said his “right-hand man” Luis Ballesteros would be present at the worksite the entire
time and would monitor the work done by each individual.
¶7 Mr. Huerta testified that after obtaining a building permit for the property on June 6, 2013,
he began construction in the first or second week of January 2014. He kept his own records
regarding the hours he and his employees worked, which were submitted as exhibits at trial. He
testified that he would give these time sheets to Mr. Fernandez or one of Mr. Fernandez’s
employees periodically. He testified that no one ever said there was an issue with the hourly
breakdown. Included in the time sheets were notes concerning cash payments made to Mr.
Ballesteros’s uncle who did tuckpointing work at the Wolcott Property. Mr. Huerta testified that
he wrote those payments down “so that [he] kn[e]w that [he] gave it to [Mr. Fernandez]” and so
he could “tell Mr. Fernandez *** [he] paid [Mr.] Ballesteros this week and [Mr. Ballesteros] paid
his uncle.”
¶8 In addition to the time sheets, Mr. Huerta testified that he provided Mr. Fernandez or one
of Mr. Fernandez’s employees receipts for materials purchased for the Wolcott Property every two
or three weeks. Mr. Huerta testified that Mr. Fernandez would, at various times, reimburse him for
materials or pay him in advance for materials purchased for the Wolcott Property. When Mr.
Huerta hired a subcontractor, he would get an estimate of the cost from the subcontractor, notify
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Mr. Fernandez, and then Mr. Fernandez would give him the money, “but not—not the whole thing.
Only what is necessary. Like, let’s say the roofer, right. If he says, ‘I need $3,000’ ” then Mr.
Huerta would tell Mr. Fernandez, “I need this much to continue the project, but I need $3,000
extra so I can, you know, give to the roofer. But usually, he give me 10,000, 15,000, 20,000, you
know. I mean, you can see the checks.” A record of checks Mr. Fernandez made out to ARC—
usually for between $10,000 and $20,000, for work on the Wolcott Property starting in January
2013 and ending in October 2014—was included as a joint exhibit.
¶9 According to the permit inspection history, submitted as evidence by both parties,
inspectors from the Department of Buildings gave final approval of the Wolcott Property in
November 2014. Mr. Huerta testified that “the job was completed” after that approval. Mr. Huerta
also testified that he reached out to Mr. Fernandez requesting payment in full for his work, but Mr.
Fernandez “kept pushing it” and never paid the final amount due.
¶ 10 Mr. Fernandez testified as an adverse witness during ARC’s case in chief. He stated that
he was a joint owner of the Wolcott Property with his son, Antonio Fernandez. Mr. Fernandez
testified that he contracted with Mr. Huerta to do work on the property after previously hiring him
for a different remodeling project. He testified that discussions on the Wolcott Property began in
March 2013 and led to an agreement in early 2014 that ARC would “do the remodeling and two
permits.” Mr. Fernandez testified that the parties agreed to a flat rate of $120,000. However, when
confronted with his deposition testimony—where he specifically stated the $120,000 figure was
an approximation and not a flat rate that the parties agreed to for the work—Mr. Fernandez
testified, “[u]nder my credit, I was—thought that it was going to be no more than 120. And it was
going to be—maybe I [was] mistaken that I did—that I didn’t pay attention on that.” He agreed,
however, that the parties did not put any conditions on the fees and acknowledged that, as he was
4 No. 1-19-2026
getting older, he was starting to have memory problems.
¶ 11 Mr. Fernandez testified that he was living in Mexico for much of the remodeling and “left
the payment” up to Mr. Ballesteros, who was also working on the Wolcott Property. Mr. Fernandez
testified that he visited the property about four times during the remodeling and only saw Mr.
Huerta once. Mr. Fernandez detailed the payment procedure: “I would not be receiving any invoice
from [Mr. Huerta]. [Mr. Huerta] would just give these invoices to Mr. Ballesteros. And then Mr.
Ballesteros would go through my stuff and ask for the check, and we will give it to him.” Mr.
Fernandez testified that he did not know anything further about the payment transactions because
he “was not in the dealings of the paperwork.” He testified that his accountant, his secretary, and
Mr. Ballesteros all worked for him and were authorized to accept bills and make payments on his
behalf.
¶ 12 ARC also called Juan Sanchez, Salvador Rodriguez, Joel Gamez, Carlos Ramos, and
Antonio Resendiz as witnesses. These men had all done work on the property and testified that
Mr. Huerta was there almost every day.
¶ 13 Mr. Gamez, a licensed plumber, testified that that he believed he completed the installation
of the toilet properly and that the city code required 13 inches from the wall to the center of the
toilet. Mr. Gamez explained, however, that “sometimes when there’s like the joint or support or
something at the bottom, you cannot cut the toilet. So sometimes the toilet can be a little bit more
on the front.” He testified that the toilet was stable when he installed it, but that after five years it
could have become unstable. Mr. Gamez testified that the toilet passed inspection and that he was
never made aware of an issue with his installation of it.
¶ 14 Mr. Ramos, who installed the flooring on the first and second floor of the Wolcott Property,
testified that he checked to make sure the floor was level just by looking at it.
5 No. 1-19-2026
¶ 15 Mr. Resendiz was brought on to the project as a mechanical contractor by Mr. Fernandez’s
son, Rudolfo Fernandez. Mr. Resendiz testified that he installed a Decane-brand heating and
cooling unit instead of a Carrier-brand unit because that “was the agreement that [he] had with Mr.
Fernandez’s son.” He testified that Decane was “mid-grade equipment.”
¶ 16 Both parties stipulated to the admissibility of all exhibits offered as evidence in the case.
The exhibits demonstrated that the remodeling was divided into three separate stages and detailed
the amounts owed for each stage of work, including the costs of materials, labor, and subcontractor
fees. The three stages, together, totaled $214,908.67. The parties stipulated that Mr. Fernandez had
paid ARC a total of $175,180.00. Additional exhibits contained the blueprints for the Wolcott
Property, which called for Carrier as the brand of heating and cooling unit to be installed, pictures
of the Wolcott Property, estimates for repairs, and the permit history from the Department of
Buildings.
¶ 17 Following the close of ARC’s case-in-chief, Mr. Fernandez moved for a directed finding.
The trial court granted the motion as to ARC’s quantum meruit claim, holding that because there
was no dispute as to the existence of a contract, the elements for quantum meruit relief were not
met. The trial court denied the motion as to the breach of contract claim. The trial court found that
Mr. Fernandez forfeited his Statute of Frauds argument by failing to raise it as an affirmative
defense, and that, regardless, application of the rule turns on whether the contract “could have been
performed within a year” and “[i]n this case, it’s clear that this contract—oral contract—could
have been performed within a period of one year.” The court noted: “Mr. Fernandez testified that
the agreement was not to begin until 2014. The work was done in 2014, completed within the year
of 2014.” The trial court further found that ARC “established a prima facie case by presenting at
least some evidence [on] each and every element assigned to the underlying cause of action
6 No. 1-19-2026
contained in the complaint.”
¶ 18 Mr. Fernandez then testified for the defense as to a variety of issues with the renovations
ARC performed. He testified that the floors sagged and were uneven, the deck stairs were too
short, the handrails were unstable, the tuckpointing was poorly done, and the water gutters were
not finished. He testified that he spent $16,000 to finish the remodel. Antonio Fernandez, Mr.
Fernandez’s son, who moved into the Wolcott Property after the remodeling was complete, also
testified to issues with the remodel: installation of the rear deck blocked a door, the front door had
a gap at the base, the floors were chipped and uneven, the toilets leaked and were unstable, a rear
deck handrail was loose, the rear deck steps were too shallow, and there were issues with the
masonry. He said that there were no issues with the heating and cooling system.
¶ 19 Jose Marin Lorena testified that in October 2018 he prepared an estimate for the cost of
repair work to the Wolcott property, which he said was necessary to bring the building into
compliance with the city code. He also testified that he could not give an opinion as to what the
property might have been like in 2014.
¶ 20 Isaac Rojas testified that he placed a bid to do heating and cooling work at the Wolcott
Property and that Mr. Huerta asked him to increase that bid by $3,000, which he declined to do.
Mr. Rojas testified that he did not get the bid and a cheaper brand of equipment was installed than
the one he would have used.
¶ 21 The court made its findings on September 6, 2019. First, it determined that both sides
agreed an oral contract existed between ARC and Mr. Fernandez to remodel the Wolcott Property,
and that they only disagreed as to the terms of that contract. Regarding the terms, the court found
that Mr. Huerta’s testimony as to hourly wages was supported by the exhibits in the case,
particularly “the handwritten time sheets prepared by [Mr. Huerta] on a daily basis” and the
7 No. 1-19-2026
“invoices and receipts submitted.” The court found that Mr. Fernandez’s testimony concerning a
$120,000 limit was impeached by his deposition testimony, in which he stated that was an estimate.
The court noted Mr. Fernandez “was also impeached by the fact that he continued to pay the
invoices even though as per his testimony, he had the ultimate decisions, and that the 120,000 mark
after reviewing the exhibits was actually reached sometime around August of 2014 well before the
job was completed.” The court also considered Mr. Fernandez’s admission that he had memory
problems.
¶ 22 The court found “that the $120,000 was an estimate, not a total flat rate[,] *** the workers
were paid on an hourly basis[, and] *** the materials, labor, [and] subcontractors were paid during
the course of this project through these draws that were approved by [Mr. Fernandez], who was
the ultimate decision maker.” As the $120,000 was not a flat rate, the trial court found that Mr.
Fernandez failed to meet his burden for his counterclaim. The court found that there was no
corroborating evidence for the 10% bonus, so it did not include the bonus as a term of the contract.
¶ 23 The court also found that ARC substantially performed under the contract, noting that Mr.
Huerta was personally on the job almost every day, as were his employees. The court stated:
“Both sides agree that [the exhibits] accurately show the amount of—amount expended by
[ARC] and the work done. Although [Mr. Fernandez] contests that the fact that all the work
was done in a workman like manner, or that it was not up to the specifications according
to the code, or the specifications according to the blueprint plans, the [c]ourt finds that
[ARC] has substantially performed under the contract.”
¶ 24 Using the exhibits stipulated to by both parties, the court calculated that ARC spent
$214,908.67 on labor and materials and Mr. Fernandez paid $175,180.00. Accordingly, the court
found that Mr. Fernandez still owed ARC $39,728.67.
8 No. 1-19-2026
¶ 25 Finally, the court addressed “whether [Mr. Fernandez] proved an affirmative defense that
he would defeat [ARC]’s claim in total, or in the alternative reduce the amount of damages
awarded.” The court held Mr. Fernandez did not meet his burden for most of his affirmative
defenses. However, on the affirmative defense that ARC was in breach for doing substandard work
and work that did not comply with the city code or the blueprints, the court found some merit and
reduced the amount that he would have otherwise awarded. In doing so, the trial court addressed
Mr. Fernandez’s major areas of concern with the quality of the workmanship.
¶ 26 The court first noted that while Mr. Fernandez alleged the upstairs toilet was improperly
installed because the tank was too far from the wall, Mr. Gamez disputed this, and the city inspector
had approved the toilet. The court found Mr. Fernandez did “not prove[ ] that [ARC] breached the
contract with regards to the toilets.” The court next considered the installation of the heating unit,
where ARC installed a Ducane unit, which was inferior to the Carrier brand provided for in the
blueprints. Because Mr. Resendiz testified that he installed the Ducane unit based on an agreement
with Mr. Fernandez’s son, the unit passed inspection, and Antonio Fernandez never complained
about the heating or cooling in the apartment, the court determined that Mr. Fernandez failed to
prove breach on that portion of the contract. The court also found that the tuckpointing on the
Wolcott Property was completed by individuals hired by Mr. Fernandez and, therefore, any defect
in the tuckpointing did not amount to a breach by ARC.
¶ 27 The court found, however, that ARC failed to install the floors in a workmanlike manner
and reduced the damages award by $8,400 based on figures provided by Mr. Lorena. Finally, the
court considered the back deck, which it determined was also installed in an unworkmanlike
manner, and further reduced ARC’s damages by $2,500, resulting in a final award of $28,828.67.
¶ 28 Mr. Fernandez now appeals.
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¶ 29 II. JURISDICTION
¶ 30 The trial court entered its final judgment in this case on September 6, 2019, and Mr.
Fernandez timely filed his notice of appeal on October 3, 2019. This court has jurisdiction pursuant
to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff. July 1, 2017), governing
appeals from final judgments entered by the trial court in civil cases.
¶ 31 III. ANALYSIS
¶ 32 On appeal, Mr. Fernandez argues that the trial court’s judgment in favor of ARC was
against the manifest weight of the evidence, that ARC failed to mitigate its damages, that damages
were not properly calculated, and that the trial court should have granted his motion for a directed
finding. For the reasons that follow, we reject each of these arguments.
¶ 33 Mr. Fernandez’s arguments rest, in part, on defenses or defense theories that he has
forfeited by not presenting them to the trial court or including them in his answer. It is well settled
that, if an appellant failed to raise a defense to a claim before the trial court, that defense is forfeited
and cannot be raised for the first time on appeal. Daniels v. Anderson, 162 Ill. 2d 47, 58 (1994). In
addition, a party generally forfeits affirmative defenses it does not plead. Enterprise Recovery
Systems, Inc. v. Salmeron, 401 Ill. App. 3d 65, 76 (2010).
¶ 34 Mr. Fernandez’s brief is riddled with claims he has forfeited. While he relies on the Illinois
Frauds Act (Statute of Frauds) (740 ILCS 80/1 (West 2016)), he failed to allege this as an
affirmative defense in the trial court. While he claims in this court that ARC violated the Home
Repair and Remodeling Act (Remodeling Act) (815 ILCS 513/15 (West 2016)), he did not raise
this statute in his pleadings or at trial. Finally, while he now argues there was no valid offer or
acceptance, he never argued this at trial. Bearing this in mind, we address Mr. Fernandez’s
arguments for reversal to the extent that those arguments have not been forfeited. In addition,
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because forfeiture is a limitation on the parties and not on the court (Wilson v. Humana Hospital,
399 Ill. App. 3d 751, 757 (2010)), we will also address the forfeited arguments where we find it
appropriate to do so.
¶ 35 A. The Final Judgment Was Not Against the Manifest Weight of the Evidence
¶ 36 The trial court, after hearing and weighing the evidence before it, determined that Mr.
Fernandez breached the oral contract he made with ARC by failing to pay ARC in full for the work
it performed. “In order to establish a claim for breach of contract, a plaintiff must allege and prove
the following elements: (1) the existence of a valid and enforceable contract; (2) performance by
the plaintiff; (3) breach of contract by the defendant; and (4) resultant injury to the plaintiff.”
(Internal quotation marks omitted.) Burkhart v. Wolf Motors of Naperville, Inc. ex rel. Toyota of
Naperville, 2016 IL App (2d) 151053, ¶ 14. Mr. Fernandez argues the trial court erred because,
based on the weight of the evidence, (1) there was no valid contract, (2) ARC did not fully perform
its obligations under the contract, (3) Mr. Fernandez did not breach the contract, and (4) ARC
failed to mitigate its damages. For the following reasons, we disagree.
¶ 37 1. There Was a Valid Contract
¶ 38 Mr. Fernandez argues that review of the trial court’s judgment is de novo, as it is a “review
from a trial court’s interpretation of a contract as a matter of law.” It is true that, generally, matters
of contract interpretation are legal questions reviewed de novo. In re Liquidation of Lumbermens
Mutual Casualty Co., 2018 IL App (1st) 171613, ¶ 62. However, the issue before us is not one of
contract interpretation. The trier of fact must “observe the conduct and determine the credibility
of the witnesses when making findings of fact about the existence and terms of an oral contract.”
Mormat Electrical & Construction Services, LLC v. Hunter Construction Services, Inc., 2019 IL
App (5th) 170316, ¶ 8. In cases concerning oral contracts, then, the trial court’s findings as to the
11 No. 1-19-2026
intent of the contracting parties and its ultimate judgment should not be set aside unless it is against
the manifest weight of the evidence. Id. “A [finding or] judgment is against the manifest weight
of the evidence where the opposite conclusion is clearly evident or where the finding is
unreasonable, arbitrary, or not based on the evidence presented.” In re Estate of Bennoon, 2014 IL
App (1st) 122224, ¶ 70.
¶ 39 To allege the existence of a valid and enforceable contract, “a plaintiff must plead facts
indicating there was an offer, an acceptance, and consideration.” Talbert v. Home Savings of
America, F.A., 265 Ill. App. 3d 376, 380 (1994). A valid and enforceable contract also requires a
“meeting of the minds or mutual assent as to the terms of the contract.” Midland Hotel Corp. v.
Reuben H. Donnelley Corp., 118 Ill. 2d 306, 313 (1987). However, “[i]t suffices that the conduct
of the contracting parties indicates an agreement to the terms of the alleged contract. [Citations.]
Otherwise, a party would be free to avoid his contractual liabilities by simply denying that which
his course of conduct indicates.” (Internal quotation marks omitted.) Id. at 313-14.
¶ 40 Here, Mr. Fernandez argues, for the first time on appeal, that there was no valid offer or
acceptance because “important and necessary terms were not definite or communicated to the other
party so that mutual agreement as to the terms could be met.” First, as noted above, Mr. Fernandez,
having never argued this at trial, has forfeited this theory of defense. Daniels, 162 Ill. 2d at 58.
Moreover, this defense fails on the merits.
¶ 41 Conduct of the parties can indicate agreement to the terms (Midland Hotel Corp., 118 Ill.
2d at 313-14) and the trial court found that Mr. Fernandez continued to pay ARC based on the
hourly wages Mr. Huerta testified to and also continued to do so after the $120,000 “limit” was
met. The trial court’s finding as to the agreed upon contract terms is clearly supported by the
evidence.
12 No. 1-19-2026
¶ 42 To the extent that Mr. Fernandez is relying on his own testimony that there was no
agreement between the parties or that the agreement was only to pay $120,000, “[w]e give great
deference to the trial court’s credibility determinations” and such determinations will not be
reversed unless they are against the manifest weight of the evidence. Vician v. Vician, 2016 IL
App (2d) 160022, ¶ 30. The trial court found Mr. Huerta to be more credible than Mr. Fernandez.
This credibility determination is not “arbitrary, unreasonable, or not based on the evidence” (id.)
where Mr. Huerta’s testimony was supported by his hourly time records and Mr. Fernandez paid
ARC according to the specified hourly breakdown, reimbursed ARC for materials and
subcontractor fees, and continued to do so after the parties reached the $120,000 threshold.
¶ 43 Mr. Fernandez argues that the contract between the parties needed to be in writing to be
valid under section 1 of the Statute of Frauds (740 ILCS 80/1 (West 2016)). The trial court held
that Mr. Fernandez failed to raise the Statute of Frauds as an affirmative defense and that,
regardless, it would fail on the merits because the contract could be performed within a year. Mr.
Fernandez maintains his allegation of “fraud and illegality” as an affirmative defense was an
allegation of a violation of the Statute of Frauds. Alleging fraud generally, however, is not the
same as alleging a violation of the Statute of Frauds.
¶ 44 The elements of common law fraud are: “(1) a false statement of material fact;
(2) defendant’s knowledge that the statement was false; (3) defendant’s intent that the statement
induce the plaintiff to act; (4) plaintiff’s reliance upon the truth of the statement; and (5) plaintiff’s
damages resulting from reliance on the statement.” Connick v. Suzuki Motor Co., Ltd., 174 Ill. 2d
482, 496 (1996).
¶ 45 Section 1 of the Illinois Frauds Act, also known as the Statute of Frauds, states in relevant
part:
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“No action shall be brought *** upon any agreement that is not to be performed within the
space of one year from the making thereof, unless the promise or agreement upon which
such action shall be brought, or some memorandum or note thereof, shall be in writing, and
signed by the party to be charged therewith, or some other person thereunto by him lawfully
authorized.” 740 ILCS 80/1 (West 2016).
¶ 46 Manifestly these are different concepts requiring different allegations. We agree with the
trial court that Mr. Fernandez has forfeited this claim and that by pleading fraud he did not assert
that the Statute of Frauds was violated.
¶ 47 Moreover, the trial court is correct that, even if there was no forfeiture, this claim would
fail. As ARC and the trial court both point out, the test under the Statute of Frauds is not whether
the contract was completed in a year, but whether the contract could be completed within one year.
Gilliland v. Allstate Insurance Co., 69 Ill App. 3d 630, 632-33 (1979). The trial court found it to
be quite possible that the contract could have been completed within a year, citing the testimony
at trial that ARC completed the physical labor on the Wolcott Property in 2014. Mr. Fernandez
makes no argument that this finding was against the manifest weight of the evidence.
¶ 48 Mr. Fernandez also argues that the contract was required to be in writing to be enforceable
under section 15 of the Remodeling Act. Mr. Fernandez is raising this argument for the first time
on appeal and has therefore forfeited it. Daniels, 162 Ill. 2d at 58. And, furthermore, even if it were
not forfeited, it would also not require reversal in this case.
¶ 49 Section 15 of the Remodeling Act states:
“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
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with reasonable particularity and any charge for an estimate.” 815 ILCS 513/15 (West
2016).
¶ 50 Mr. Fernandez argues that because the parties engaged in home remodeling work for more
than $1,000, the contract was required to be in writing to be valid. In support of this argument, Mr.
Fernandez cites a Rule 23 order—Roberts v. Adkins, No. 3-09-0187 (2011) (unpublished order
under Illinois Supreme Court Rule 23)—and two overruled cases—K. Miller Construction Co. v.
McGinnis, 394 Ill. App. 3d 248 (2009), and Smith v. Bogard, 377 Ill. App. 3d 842 (2007). Rule 23
orders are “not precedential and may not be cited by any party except to support contentions of
double jeopardy, res judicata, collateral estoppel or law of the case.” Ill. Sup. R. 23(e)(1) (eff.
April 1, 2018). Those exception clearly do not apply here.
¶ 51 K. Miller Construction was appealed to our supreme court, and the supreme court reversed
the appellate court’s decision—while also overruling Smith—and explicitly held that violation of
section 15 of the Remodeling Act does not automatically render a contract unenforceable. K. Miller
Construction Co. v. McGinnis, 238 Ill. 2d 284, 297 (2010). Rather, the court determined that “the
[Remodeling] Act left it an open question as to whether a statutory violation rendered an oral
contract unenforceable” and the court should “conduct[ ] a balancing analysis and consider[ ] the
relevant facts and public policies before concluding that [a] plaintiff could not pursue relief for
breach of contract.” Id. at 297-98. Here, Mr. Fernandez has made no argument for why a balancing
analysis should come out in his favor and we will not supply one for him, especially considering
that he has forfeited this issue on appeal. See, e.g., Wing v. Chicago Transit Authority, 2016 IL
App (1st) 153517, ¶ 11 (an appellant must make arguments that are supported by citations to
authority in order to avoid procedural default).
15 No. 1-19-2026
¶ 52 2. ARC Fully Performed Under the Contract
¶ 53 Mr. Fernandez next argues that ARC did not fully perform because it did not adhere to the
blueprints and “aspects of the rehab were not performed properly,” particularly referring to the
fact that a different heating unit and a different type of flooring from those indicated in the
blueprints or requested by Mr. Fernandez were installed.
¶ 54 “The general rule is that a builder is not required to perform perfectly, but rather is held
only to a duty of substantial performance in a workmanlike manner.” J.R. Sinnott Carpentry, Inc.
v. Phillips, 110 Ill. App. 3d 632, 675 (1982). “[S]ubstantial performance means performance in all
the essential elements necessary to accomplish the purpose of the contract.” W.E. Erickson
Construction, Inc. v. Congress-Kenilworth Corp., 115 Ill. 2d 119, 127 (1986). Whether a party
substantially performed is a question of fact that will not be disturbed unless it is against the
manifest weight of the evidence. Id.
¶ 55 Here the purpose of the contract was to perform a remodeling of the Wolcott Property.
ARC completed a full remodel, spending over $200,000 on labor and materials, that passed city
inspection. It installed a different heating unit than the blueprint specified, however, the evidence
showed that the unit was installed at the direction of Mr. Fernandez’s son. As to the flooring, the
trial court deducted the cost of repair from the award, and Mr. Fernandez makes no argument that
the defects in the flooring thwarted the purpose of the contract. Accordingly, the trial court’s
determination that ARC substantially performed its obligations under the contract was not against
the manifest weight of the evidence.
¶ 56 3. Mr. Fernandez Breached the Contract
¶ 57 Mr. Fernandez argues that he did not breach because he paid $175,180.00 and ARC “never
introduced any testimony or evidence showing that Mr. Fernandez failed to pay according to the
16 No. 1-19-2026
terms.” His argument, which contains no citation to authority, ignores the trial court’s
determination, based on stipulated evidence, that ARC spent $214,9008.67 on materials, labor,
and subcontractors to complete the Wolcott Property remodeling, that Mr. Fernandez paid
$175,180, and that he owed the difference based on the terms of the contract describe above, after
subtracting for deficient performance. The trial court’s finding that Mr. Fernandez breached was
not against the manifest weight of the evidence. Timan v. Ourada, 2012 IL App (2d) 100834, ¶ 24
(whether a party breached a contract is a factual question and will not be disturbed unless it is
against the manifest weight of the evidence)
¶ 58 4. There is No Evidence that ARC Failed to Mitigate
¶ 59 Mr. Fernandez next argues ARC “did not mitigate its damages and therefore is not entitled
to [the] judgment award.” Mr. Fernandez does not direct this court to any facts to support this
argument but instead just lists general principals of law. “A reviewing court is entitled to have the
issues on appeal clearly defined with pertinent authority cited and a cohesive legal argument
presented. The appellate court is not a depository in which the appellant may dump the burden of
argument and research.” (Internal quotation marks omitted.) Gandy v. Kimbrough, 406 Ill. App.
3d 867, 875 (2010). Mr. Fernandez simply points this court to look in “subsection ii” of its brief
for an explanation of how ARC failed to mitigate. The only mention of mitigation there is that the
“failure to present a final bill and instead pursue this litigation not only shows that [Mr. Fernandez]
did not breach any ‘contract’ but also goes to [Mr. Fernandez’s] affirmative defense of failure to
mitigate damages.” Mr. Fernandez’s contention that ARC failed to mitigate is simply unsupported
on appeal.
¶ 60 B. The Damages Awarded to ARC Were Supported by the Evidence
¶ 61 Mr. Fernandez next argues that the trial court’s award was against the manifest weight of
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the evidence because it failed to account for all the defects in performance when awarding
damages. Again, we disagree.
¶ 62 A trial court’s award of damages will not be reversed unless it is against the manifest weight
of the evidence. Doornbos Heating and Air Conditioning, Inc. v. James D. Schlenker, M.D., S.C.,
403 Ill. App. 3d 468, 485 (2010). “A damage award is against the manifest weight of the evidence
only where it is apparent that the trial court ignored the evidence or that its measure of damages
was erroneous as a matter of law.” (Internal quotation marks omitted.) Id.
¶ 63 Here, the trial court based its award on the exhibits the parties jointly submitted and the
testimony of the witnesses. Based on that evidence, it calculated that ARC spent $214,908.67 on
labor and materials and Mr. Fernandez paid $175,180, leaving a balance of $39,728.67. The court
then considered whether ARC’s unworkmanlike performance of various aspects of the remodel
warranted a deduction, specifically considering the toilets, the heating unit, the tuckpointing, the
floors, and the back porch. The court determined that there was insufficient evidence to show
unworkmanlike performance by ARC as to the toilets, the heating unit, and the tuckpointing.
However, the court found that both the floors and back porch were installed in an unworkmanlike
manner and deducted a total of $10,900 based on an estimate of the cost to replace the floors and
install a new back porch.
¶ 64 Mr. Fernandez argues “[a]side from the flooring and deck, the trial court failed to consider
and take into account the other problems—toilet leakage, cabinets not level and not closing,
window issues, etc.” It is true that the trial court did not address every potential defect cataloged
by Mr. Fernandez and his son Antonio at trial. However, it is well settled that “[a] court need not
explicitly mention every piece of evidence that it considers in reaching its decision” (Young v.
Herman, 2018 IL App (4th) 170001, ¶ 68) and nothing indicates the court was anything other than
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careful and considerate.
¶ 65 Mr. Fernandez further argues that the trial court erred in failing to deduct from the damages
expenses ARC charged Mr. Fernandez during the remodel that Mr. Fernandez now argues he
should not have had to pay. Specifically, he directs us to a receipt for one package of toilet paper,
gas for Mr. Huerta’s truck, office supplies, payments made to Mario Juarez and Manuel Herrera
for work billed at $35 and $30 an hour, respectively, cash payments to Mr. Ballesteros’s uncle,
and the cost of the architect and permits.
¶ 66 The parties stipulated to the expenses ARC submitted at trial and the court determined the
total expenses ARC incurred based on the stipulated evidence. Nothing in the record indicates that
those expenses, some of which Mr. Fernandez—as the “ultimate decision maker”—paid as early
as 2013, were not payments both parties agreed to. No testimony regarding the receipts for toilet
paper, gas, or office supplies or the wages of Mr. Juarez and Mr. Herrera was elicited at trial and
Mr. Fernandez did not argue they were impermissible expenses until this appeal. As to the cash
payments to Mr. Ballesteros’s uncle, Mr. Huerta testified he wrote those down simply to “tell Mr.
Fernandez *** [he] paid [Mr.] Ballesteros *** and [Mr. Ballesteros] paid his uncle.” There is
conflicting testimony on whether ARC intended to expense the cost of the architect or the permits.
While Mr. Huerta said at trial that he retained the architect and got the permits for the Wolcott
Project as a “favor,” he clearly charged Mr. Fernandez for the architect and Mr. Fernandez himself
testified at trial that the permits were part of the original agreement. Accordingly, the trial court’s
award of damages is not against the manifest weight of the evidence.
¶ 67 C. The Trial Court Did Not Err in Denying Mr. Fernandez’s Motion for a Directed Finding
¶ 68 Finally, Mr. Fernandez argues that ARC did not present prima facie evidence of a valid
contract and the trial court’s failure to grant his motion for a directed finding on this basis was in
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error. Following a motion for directed finding, a trial court’s determination, after weighing the
evidence, that a plaintiff has made a prima facie case will not be set aside unless it is against the
manifest weight of the evidence. Minch v. George, 395 Ill. App. 3d 390, 398 (2009). As discussed
above, ARC presented sufficient evidence at trial that a valid and enforceable contract was formed
between the parties and that neither the Statute of Frauds (740 ILCS 80/1 (West 2016)) nor section
15 of the Remodeling Act (815 ILCS 513/15 (West 2016)) bars the enforceability of that contract.
Therefore, the trial court’s denial of Mr. Fernandez’s motion for a directed verdict was not against
¶ 69 IV. CONCLUSION
¶ 70 For the reasons stated above, we affirm the judgment of the trial court.
¶ 71 Affirmed.