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Midstate Siding and Window Company, Inc. v. Rogers

April 24, 2003

MIDSTATE SIDING AND WINDOW COMPANY, INC., APPELLANT,
v.
KENNETH ROGERS ET AL., APPELLEES.



The opinion of the court was delivered by: Justice Freeman

UNPUBLISHED

Docket No. 89059-Agenda 13-January 2001.

In this appeal, we are asked to determine whether the Credit Services Organizations Act (Credit Services Act) (815 ILCS 605/1 et seq. (West 1996)) applies to a transaction between a retailer, Midstate Siding and Window Company, Inc. (Midstate), and homeowners Kenneth and Ella Rogers (Rogers). We find that the Credit Services Act does not apply. Consequently, we reverse the judgments of the appellate court and circuit court, and remand for further proceedings.

BACKGROUND

On December 2, 1996, Midstate filed a complaint in the circuit court of Knox County against the Rogers. In the complaint, Midstate alleged that it is in the home remodeling business, and that on July 24, 1996, it entered into a contract with the Rogers to install windows and siding at their home at a cost of $19,600. Midstate further alleged that the Rogers breached the contract by refusing to allow Midstate to perform the work at their home. Midstate sought damages of $4,000 for lost profit, costs and overhead. Midstate also sought to recover its costs of suit and attorney fees. Midstate attached a copy of the contract to its complaint.

In their answer to the complaint, the Rogers admitted that Midstate is in the home remodeling business, and that they signed the contract attached to the complaint. The Rogers also admitted notifying Midstate that they did not want Midstate to perform the work at their home. However, the Rogers maintained that the contract is not enforceable because: (1) it lacks definite and certain terms; (2) it violates the Credit Services Act (815 ILCS 605/1 et seq. (West 1996)), and the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1996)); (3) the Rogers informed Midstate of their intent to cancel the contract on July 28, 1996; (4) Midstate failed to obtain credit for the Rogers, a condition precedent to performance of the contract; (5) no payment is due under the terms of the contract; and (6) the Rogers believed they were signing an estimate, not a contract. In addition, the Rogers filed a counterclaim against Midstate. In the counterclaim, the Rogers alleged that Midstate's salesman, Alan Klunk, indicated that Midstate would obtain financing for the Rogers and/or provide advice or assistance to the Rogers in obtaining an extension of credit. However, in the contract, Midstate failed to describe the services Midstate was to provide in obtaining the extension of credit for the Rogers, in violation of the Credit Services Act and the Consumer Fraud and Deceptive Business Practices Act. The Rogers sought an award of court costs, attorney fees and punitive damages.

Midstate admitted that the Rogers filled out a credit application, and that Midstate forwarded the application to several lending institutions to obtain financing for the Rogers. Bank One, Illinois, N.A., one of the institutions Midstate contacted, agreed to provide a home equity loan to the Rogers. In a letter dated July 30, 1996, Bank One advised the Rogers of its commitment to lend the Rogers the sum of $24,000 at prime plus 3.15%. Midstate maintained that it provided a gratuitous service to the Rogers in forwarding their credit application to the financial institutions.

The matter proceeded to a bench trial at which testimony was heard but not recorded. Following the trial, the circuit court issued a letter opinion as follows:

"I have considered the evidence and your arguments. I find that the Credit Services Organization Act is applicable to the case at bar. I have considered the cases and find that the Act is to be liberally construed to protect consumers. Plaintiff qualifies as a Credit Services Organization i.e., that Plaintiff represented to Defendant that it would assist or obtain for her an extension of credit.

The contract between Plaintiff and Defendant is thereby unenforceable in that it does not comply with [815] ILCS 605/7.

Plaintiff argued that inadequate consideration existed to support a credit contract. This was simply not true. In order to remain competitive, the Plaintiff offered a service to prospective buyers to assist them in obtaining financing to purchase siding and windows. In fact, the agreement between the Plaintiff and Defendant would never have been consummated had the Plaintiff not helped them obtain financing. The Plaintiff's assistance was more than a mere service, but was part of the consideration to support the agreement."

The circuit court awarded the Rogers attorney fees and costs in the amount of $6,157.50. However, the court found that the Rogers were not entitled to an award of punitive damages. Subsequently, the circuit court denied Midstate's motion to reconsider and clarified that Midstate had violated section 7(a)(2) of the Credit Services Act (815 ILCS 605/7(a)(2) (West 1996)).

The appellate court affirmed the judgment of the circuit court, with one justice dissenting. 309 Ill. App. 3d 610. The appellate court reasoned that the Credit Services Act applies to retailers who, in exchange for valuable consideration, aid consumers in obtaining extensions of credit. 309 Ill. App. 3d at 611. The appellate court held that, by providing assistance to the Rogers with regard to obtaining an extension of credit as part of an agreement to side their home, Midstate acted within the purview of the Credit Services Act. In addition the court held that the Rogers were entitled to appellate attorney fees under the Credit Services Act.

We granted Midstate's petition for leave to appeal. 177 Ill. 2d R. 315.

ANALYSIS

A. Record on Review

As noted above, a transcript of the evidence at trial is not available because the trial was not recorded. In the absence of a transcript, it is incumbent upon the appellant to file a bystander's report of the proceedings (166 Ill. 2d R. 323(c)) or an agreed statement of facts (166 Ill. 2d R. 323(d)). Midstate failed to do so, leading the Rogers to argue that we must affirm the judgments of the lower courts because the record on review is incomplete. We disagree.

Midstate, as appellant, has the burden of presenting a sufficiently complete record of the proceedings at trial to support a claim of error (Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984); Landeros v. Equity Property & Development, 321 Ill. App. 3d 57, 63 (2001)), and, in the absence of such a record on appeal, the reviewing court will presume that the order entered by the trial court was in conformity with the law and had a sufficient factual basis (Webster v. Hartman, 195 Ill. 2d 426, 433 (2001); Foutch, 99 Ill. 2d at 392). The court will resolve any doubts arising from the incompleteness of the record against the appellant. Foutch, 99 Ill. 2d at 392; In re K.S., 317 Ill. App. 3d 830, 832 (2000). However, in the present case, we are not asked to determine whether the evidence presented at trial was sufficient to support the trial court's finding. See Buckholtz v. MacNeal Hospital, 313 Ill. App. 3d 521, 526 (2000) (plaintiff maintained that the record fails to establish that an expert witness' deposition fee was reasonable). Instead, we are asked to interpret a statute, the Credit Services Act, and determine whether the statute regulates the transaction at issue. This is a question of law, and the lack of a complete record does not bar our review. Candice Co. v. Ricketts, 281 Ill. App. 3d 359, 362 (1996); In re Estate of Day, 261 Ill. App. 3d 993, 996 (1994); In re B.H., 218 Ill. App. 3d 583, 586 (1991). Further, because the issue before us is a matter of statutory construction, our review is de novo. Sylvester v. Industrial Comm'n, 197 Ill. 2d 225, 232 (2001); Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141, 148 (1997).

B. Credit Services Act

In determining whether the Credit Services Act applies to the transaction at issue, we are guided by established principles. The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature. Bridgestone, 179 Ill. 2d at 149, quoting Illinois Power Co. v. Mahin, 72 Ill. 2d 189, 194 (1978); In re B.C., 176 Ill. 2d 536, 542 (1997). To do so, we examine the language of the statute, the most reliable indicator of the legislature's objectives in enacting the law. Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 504 (2000). We afford the language of the statute its plain and ordinary meaning (Michigan Avenue National Bank, 191 Ill. 2d at 504) and construe the statute as a whole (Sylvester, 197 Ill. 2d at 232). Words and phrases must not be viewed in isolation but must be considered in light of other relevant provisions of the statute. Sylvester, 197 ...


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