People Ex Rel. Hartigan v. All American Aluminum & Construction Co.

524 N.E.2d 1067, 171 Ill. App. 3d 27, 121 Ill. Dec. 19, 1988 Ill. App. LEXIS 722
CourtAppellate Court of Illinois
DecidedMay 19, 1988
Docket87-2465
StatusPublished
Cited by22 cases

This text of 524 N.E.2d 1067 (People Ex Rel. Hartigan v. All American Aluminum & Construction Co.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People Ex Rel. Hartigan v. All American Aluminum & Construction Co., 524 N.E.2d 1067, 171 Ill. App. 3d 27, 121 Ill. Dec. 19, 1988 Ill. App. LEXIS 722 (Ill. Ct. App. 1988).

Opinion

JUSTICE LINN

delivered the opinion of the court:

Plaintiff, the Attorney General of Illinois, brought an action in the circuit court of Cook County against defendants, the All American Aluminum and Construction Company, Inc., Steven Edelson, individually and as vice-president of All American, and Suzanne Reid, individually and as assistant secretary of the corporation. The Attorney General charged defendants with violating the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act or Act) (111. Rev. Stat. 1985, ch. 1211/2, par. 261 et seq.). The trial court dismissed the Attorney General’s third amended complaint with prejudice, ruling that it failed to state a cause of action. The Attorney General appeals, contending that the trial court erred in dismissing the complaint.

We reverse the order of the trial court and remand.

Background

In determining whether to allow a motion to dismiss, a court must take all well-pled allegations of fact contained in the complaint, and contained in any attached exhibits incorporated into the complaint, as true, and construe all reasonable inferences therefrom in the plaintiff’s favor. (Business Development Services, Inc. v. Field Container Corp. (1981), 96 Ill. App. 3d 834, 836, 422 N.E.2d 86, 89.) Here, the third amended complaint alleged that defendants were in the business of providing home remodeling and repair services to Illinois consumers. Defendant Edelson was vice-president and principal owner of All American, and defendant Reid was assistant secretary of the company. In their corporate capacities, they managed, controlled, directed and condoned the business practices of the company. All American involuntarily dissolved on February 2,1987.

The amended complaint further alleged that the defendants would enter into a contract with a customer for the performance of services in consideration for specified cash payments. The contract warranted that the materials used were of standard quality, guaranteed the workmanship, and also warranted that defendants would remedy substantial defects on written notice for one year after the date of substantial completion. Beyond the contractual guarantee, defendants orally represented to consumers that it would perform the services in a reasonable and workmanlike manner.

. The amended complaint went on to allege four separate instances where defendants essentially performed negligent work in violation of the contract and then disregarded their warranties of remedying defects. Specifically, the Attorney General alleged that defendants contracted with Michael Davis to install doors and windows in his home for $2,490, which Davis paid in full. However, the doors did not fit the door frames and the windows had no caulking. Despite Davis’ demands to cure the defects, defendants neither cured the defects nor refunded the money paid. Further, Davis was forced to pay an additional $800 to another home remodeling company to remedy the defects.

Also, defendants were charged with having contracted with Patricia Griggs to install a shower, toilet, vanity, and floor and wall tiles in her home for $3,500, of which she paid $1,000. Defendants tore down her bathroom walls, disconnected her plumbing and ripped up her bathroom tiles. Defendants, however, refused to install the vanity, floor, and toilet, despite Griggs’ many requests to do so. She ultimately paid another company to complete the job.

Additionally, defendants contracted with Mr. and Mrs. Ollie Davis to install a new roof, gutters, and aluminum siding for $5,000, which the Davises paid in full. Because of defendants’ negligent work, however, water leakage from heavy rainfall entered their home and caused extensive damage. Mr. and Mrs. Davis requested defendants to repair the roof and gutters, but defendants refused to do so.

Further, defendants also contracted with Mr. and Mrs. Roberto Alicea to install a new roof for $2,336, which they paid in full. Their home also suffered extensive damage from water leakage, due to defendants’ negligent work. Mr. and Mrs. Alicea repeatedly requested defendants to repair the defects, but defendants again refused to do so.

The third amended complaint also incorporated an appendix containing a list of 15 other dissatisfied consumers with a description of each of their complaints and another appendix containing a copy of defendants’ contract.

The Attorney General sought: (1) findings that defendants breached its contract with consumers by performing in an unworkmanlike manner, and also that defendants violated section 2 of the Consumer Fraud Act (111. Rev. Stat. 1985, ch. VZV-k, par. 262); (2) an injunction permanently preventing defendants from engaging in the home improvement repair business; (3) an order allowing - customers to rescind their contracts with defendants and enjoining defendants from enforcing mechanics’ liens or other means of collection against consumers;' (4) an order requiring defendants to pay restitution to the consumers whom defendants’ unlawful conduct had harmed; and (5) a civil penalty of $50,000 for each violation of the Act, and costs.

Pursuant to leave of court, the Attorney General filed his third amended complaint on March 4, 1987. On July 14, 1987, the trial court granted defendants’ motion to dismiss the complaint with prejudice. The Attorney General appeals.

Opinion

I

Before determining the sufficiency of the complaint, we must first address a matter of jurisdiction. Defendants claim that Edelson and Reid, both individually- and in their capacities as corporate officers of All American, are not proper parties to the litigation. Defendants contend that the Attorney General never obtained leave of court to add them as defendants; additionally, no appearances were filed on their behalf. Defendants argue, therefore, that the trial court never acquired jurisdiction over Edelson and Reid.

It is true that section 2 — 407 of the Code of Civil Procedure requires a party to obtain leave of court to add or drop a party to the litigation. (111. Rev. Stat. 1985, ch. 110, par. 2 — 407; Petrella v. Leisky (1981), 92 Ill. App. 3d 880, 881-82, 417 N.E.2d 134, 136.) However, section 2 — 616(a) of the Code provides in pertinent part:

“Sec. 2 — 616. Amendments, (a) At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, *** in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought ***.” Ill. Rev. Stat. 1985, ch. 110, par. 2 — 616(a).

Courts construe section 2 — 616(a) of the Code liberally so that a controversy may be decided upon its facts and merits, and in furtherance of justice. (Cain v. New York Central R.R. Co. (1962), 35 Ill. App. 2d 333, 338, 182 N.E.2d 910

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Bluebook (online)
524 N.E.2d 1067, 171 Ill. App. 3d 27, 121 Ill. Dec. 19, 1988 Ill. App. LEXIS 722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-hartigan-v-all-american-aluminum-construction-co-illappct-1988.