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Zankle v. Queen Anne Landscaping

February 01, 2000


Appeal from the Circuit Court of McHenry County. No. 94--LA--155 Honorable Maureen P. McIntyre, Judge, Presiding.

The opinion of the court was delivered by: Justice Inglis delivered the opinion of the court

Plaintiff, Greg Zankle, sued defendants, Queen Anne Landscaping and its owner, John Heider, alleging breach of contract, breach of implied warranty, negligence, and violations of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1992)). At the close of plaintiff's case, the trial court granted judgment for defendants (see 735 ILCS 5/2--1110 (West 1998)) on the counts for breach of implied warranty and consumer fraud but awarded plaintiff damages on the remaining counts. Plaintiff appeals the trial court's ruling on the consumer fraud count. We affirm.

We note that, although plaintiff states that this appeal is brought pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), the judgment from which plaintiff appeals disposed of the entire case. Therefore, our jurisdiction attaches under Supreme court Rule 301 (155 Ill. 2d R. 301). See generally O'Banner v. McDonald's Corp., 173 Ill. 2d 208, 210-11 (1996).

Defendants have not filed a brief. However, the record is short and we may decide the merits without the aid of an appellee's brief. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).

We summarize plaintiff's complaint. Counts I and II were for breach of contract against Queen Anne Landscaping and Heider, respectively. They alleged the following. On or about October 7, 1992, the parties signed a contract in which, for $4,800, defendants promised to grade, seed, and fertilize all of plaintiff's lawn and to spread 10 loads of topsoil on the lawn. Defendants agreed to fertilize the lawn in the spring and fall and to use a rock picker to remove rocks. A copy of the contract is attached as an exhibit to the complaint.

Counts I and II alleged further that defendants' seeding, grading, and fertilization were unsatisfactory and that defendants did not use a rock picker. As a result of defendants' breaches of the contract, the lawn soon washed out and developed ruts, and plaintiff had to hire a second landscaper to do repairs, including reseeding and refertilizing the lawn and removing rocks. The cost of this repair work was $5,984, which plaintiff demanded from defendants and defendants refused to pay. Plaintiff sought this amount in damages.

Count III alleged that defendants' lawn care materials and services breached an implied warranty of merchantability (810 ILCS 5/2--314 (West 1992)). This count requested the same damages as the first two counts. Count IV alleged that defendants negligently operated their landscaping equipment causing damage to plaintiff's trees.

Count V, the subject of this suit, alleged the following. In agreeing to the contract, plaintiff relied on defendants' representations that the defendants would use a rock picker on plaintiff's yard; that they would install 10 loads of topsoil; and that they would grade, seed, and fertilize the entire lawn in a workmanlike manner. After the work was completed, plaintiff discovered that defendants did not fulfill these representations. Defendants' "representations and failures to disclose" were unfair and deceptive conduct prohibited by the Consumer Fraud Act. Plaintiff sought $25,000 in compensatory damages plus punitive damages and attorney fees.

Plaintiff's witnesses at trial were himself, Heider, and Rick Laudick of Laudick Landscaping, the firm that repaired plaintiff's lawn. According to the certified bystander's report, plaintiff testified as follows. In September 1992, he contacted Heider about installing a new lawn on plaintiff's property. When Heider examined the property, he and plaintiff agreed that the whole property would be seeded, and plaintiff understood that defendants would remove rocks from the lawn.

According to plaintiff, defendants' work was unsatisfactory in several respects. Defendants promised to complete the work by October 7, 1992, but they took until November 7, 1992. Defendants damaged several trees with an estimated replacement cost of $1,000. Defendants failed to install topsoil on the back 20 feet of the property, and, although defendants did some sort of raking to remove rocks by hand, they did not use a rock picker. Plaintiff was not certain whether defendants fertilized the lawn in the fall, and they did not do so in the spring. Now, when plaintiff mows his lawn, "sometimes" rocks "heave up."

Shortly after the work was done, several days of rain caused considerable erosion of the lawn. In mid-November 1992, plaintiff called Heider about the problem; Heider spread a little dirt on the front and some straw over an eroded area in the back. In spring 1993, plaintiff noticed that weeds were growing on his property and that the topsoil defendants spread had been washed away. There were rocks where the soil had washed away. Further efforts to get defendants to repair the lawn got no response, so plaintiff hired Laudick Landscaping, whose efforts included reseeding the lawn and removing three tons of rocks. Since Laudick Landscaping finished its work, there had been no more problems.

Rick Laudick testified in pertinent part as follows. When he inspected the property, he saw weeds and wide ditches; the lawn had pretty much been washed away. Laudick reseeded the property, distributed dirt through the torn-up area, and provided erosion control. Laudick removed rocks from the property. At trial he explained that a rock picker sifts through six to eight inches of soil to bring up rocks. Laudick Landscaping did not use a rock picker because the cost to plaintiff would have been twice as much.

John Heider, called as an adverse witness, testified as follows.

The contract called for defendants to grade and seed the entire lawn, spread topsoil, fill in two holes, fertilize in the fall, and use a rock picker to remove rocks. Defendants did not own a rock picker and had not rented one in five years. He spread dirt on the property but skipped part of the back because, as he told plaintiff, he believed there was enough soil in that area. In fall 1992, plaintiff complained of soil erosion, which Heider treated with dirt or straw, and of tree damage, for ...

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