Stola v. American Workman Professional, Inc. ( 2019 )

2019 IL App (1st) 182410-UNo. 1-18-2410
Order filed December 12, 2019
Fourth Division
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 DISTRICT
______________________________________________________________________________
ANDREW STOLA, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. )
)
AMERICAN WORKMAN PROFESSIONAL, INC., ) No. 16 M1 12914
and ANTHONY PEREZ, )
)
Defendants )
) Honorable
(American Workman Professional, Inc., Defendant- ) Brendan A. O’Brien,
Appellant). ) Judge, presiding.
JUSTICE LAMPKIN delivered the judgment of the court.
Presiding Justice Gordon and Justice Reyes concurred in the judgment.
ORDER
¶1 Held: We reject the appellee’s contention that we lack appellate jurisdiction. However,
we affirm the circuit court’s judgment because the appellant has not provided a
record on appeal that is sufficient to support his claims of error.
¶2 Defendant American Workman Professional, Inc. (AWP) appeals the circuit court’s
judgment awarding plaintiff Andrew Stola damages and attorney fees under the Consumer Fraud
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Act. AWP contends that the judgment, entered following a bench trial, is against the manifest
weight of the evidence. Stola counters that we lack appellate jurisdiction because AWP did not
file a timely notice of appeal. For the reasons discussed below, we reject Stola’s contention that
we lack appellate jurisdiction, but we affirm the circuit court’s judgment because AWP failed to
provide a record on appeal that is sufficient to support its claims of error. 1
¶3 I. BACKGROUND
¶4 In June 2016, Stola filed a three-count complaint against AWP. 2 Count 1 alleged that
AWP breached a contract to perform repair work on Stola’s residence by failing to perform “in a
competent and workmanlike manner.” Count 2 alleged that AWP violated sections 2B and 2Q(c)
of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act or Act) (815
ILCS 505/1 et seq. (West 2016)). Stola alleged that AWP violated section 2B of the Act by
failing to inform him orally and in writing of his right to cancel the contract. See 815 ILCS
505/2B (West 2016) (providing that when a contract for the “sale of merchandise [or services]
involving $25 or more is made” between a consumer and “a seller who is physically present at
the consumer’s residence,” the contract must “contain[ ] a ‘Notice of Cancellation’ informing the
consumer that he may cancel the [contract] at any time within 3 days”); 815 ILCS 505/2B(c)
(West 2016) (requiring the seller to orally inform the consumer, “at the time he signs the contract
or purchases *** the goods or services, of his right to cancel” the transaction). Stola further
alleged that AWP violated section 2Q(c) of the Act by failing to return his down payment upon
1
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1,
2018), this appeal has been resolved without oral argument upon the entry of a separate written
order.
2
The complaint also named Anthony Perez as a defendant, but the circuit court entered
judgment for Perez on all counts and Stola has not challenged that judgment on appeal.
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No. 1-18-2410
request after AWP failed to complete its work under the contract. See 815 ILCS 505/2Q(c) (West
2016) (“A person engaged in the business of home repair *** who fails or refuses to commence
or complete work under a contract or an agreement for home repair, shall return the down
payment and any additional payments made by the consumer within 10 days after a written
demand sent to him by certified mail by the consumer.”). Finally, count 3 alleged that AWP
violated the Home Repair and Remodeling Act (Home Repair Act) (815 ILCS 513/1 et seq.
(West 2016)) by failing to give Stola a consumer rights pamphlet before entering into the home
repair contract with him. See 815 ILCS 513/20(a) (West 2016) (“For any contract over $1,000,
any person engaging in the business of home repair and remodeling shall provide to its
customers a copy of the ‘Home Repair: Know Your Consumer Rights’ pamphlet prior to the
execution of any home repair and remodeling contract.”). Pursuant to section 10a(c) of the
Consumer Fraud Act (815 ILCS 505/10a(c) (West 2016)), the complaint sought attorney fees
with respect to counts 2 and 3.
¶5 The case proceeded to trial, with a jury empaneled to hear the breach of contract claim
and the trial judge sitting as finder of fact on the statutory claims. We do not know what
evidence was presented at trial, however, because the record on appeal does not contain a trial
transcript, a bystander’s report, or an agreed statement of facts. See Ill. S. Ct. R. 323 (eff. July 1,
2017). All we know is the following: On December 15, 2017, at the close of trial, the jury
returned a verdict for Stola on the breach of contract count, awarding him $4,075 in damages. 3
And on January 9, 2018, the trial judge entered judgment for Stola on the Consumer Fraud Act
count, awarding him $300 in damages and finding that he was entitled to attorney fees, but
3
AWP does not challenge this judgment on appeal.
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No. 1-18-2410
reserving judgment on the amount of such fees. The record on appeal contains no findings of fact
or any other indication as to whether the court’s judgment on the Consumer Fraud Act claim
rested on section 2B of the Act, section 2Q(c) of the Act, or both. 4 On June 27, 2018, the trial
court entered a separate order awarding Stola $9,927.50 in attorney fees.
¶6 On July 27, 2018, AWP filed a postjudgment motion under section 2-1203 of the Code of
Civil Procedure (Code) (735 ILCS 5/2-1203 (West 2016)). AWP asked the court to vacate the
January 9 judgment, arguing that the evidence did not support a finding that it violated either
section 2B or section 2Q(c) of the Consumer Fraud Act. With respect to section 2B, AWP argued
that Stola presented no evidence that AWP intentionally withheld notice of Stola’s right to cancel
the contract or that Stola suffered any damages from the lack of notice. With respect to section
2Q(c), AWP argued that Stola could not establish that AWP “fail[ed] or refuse[d]
to *** complete work under [the] contract,” 815 ILCS 505/2Q(c) (West 2016), because Stola
alleged in his complaint that he had “discharged” AWP. AWP also asked the court to vacate the
June 27 judgment awarding Stola attorney fees because that judgment was predicated solely on
the finding that AWP violated the Consumer Fraud Act. The trial court denied AWP’s
postjudgment motion on October 12, 2018, concluding that it was untimely and that AWP
forfeited its arguments by failing to raise them either before or during trial. On November 9,
2018, AWP filed a notice of appeal.
4
The trial court also found that AWP violated the Home Repair Act, but it requested
additional briefing on whether that violation resulted in any damages. Stola later withdrew the
Home Repair Act count and it is not at issue in this appeal.
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¶7 II. ANALYSIS
¶8 On appeal, AWP argues that the trial court’s judgment finding that it violated the
Consumer Fraud Act was against the manifest weight of the evidence and that the trial court
erred in denying its postjudgment motion. Before we may turn to those questions, however, we
must address Stola’s contention that we lack appellate jurisdiction because AWP did not file a
timely notice of appeal.
¶9 The timely filing of a notice of appeal is jurisdictional. Huber v. American Accounting
Association, 2014 IL 117293, ¶ 19. Under Illinois Supreme Court Rule 303(a), a notice of appeal
must be filed “within 30 days after the entry of the final judgment appealed from, or, if a timely
posttrial motion directed against the judgment is filed, *** within 30 days after the entry of the
order disposing of the last pending postjudgment motion.” Ill. S. Ct. R. 303(a) (eff. July 1, 2017).
When an action involves multiple claims for relief, however, a judgment resolving less than all
of the claims is not immediately appealable unless the trial court expressly finds “that there is no
just reason for delaying either enforcement or appeal or both.” Ill. S. Ct. R. 304(a) (eff. Mar. 8,
2016). Absent that finding, a judgment resolving less than all of the claims in an action “is not
enforceable or appealable and is subject to revision at any time before the entry of a judgment
adjudicating all [remaining] claims.” Id. As relevant here, a request for attorney fees is a “claim”
within the meaning of Rule 304(a). See Marsh v. Evangelical Covenant Church of Hinsdale, 138
Ill. 2d 458, 464-68 (1990); Dewan v. Ford Motor Co., 343 Ill. App. 3d 1062, 1071-73 (2003).
¶ 10 The trial court entered judgment against AWP on the Consumer Fraud Act claim on
January 9, 2018. However, under Rule 304(a), that judgment was not immediately appealable
because Stola’s request for attorney fees remained pending. See F.H. Prince & Co., Inc. v.
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No. 1-18-2410
Towers Financial Corp., 266 Ill. App. 3d 977, 983-84 (1994). The January 9 judgment did not
become appealable until June 27, 2018, when the trial court entered its subsequent judgment
awarding Stola attorney fees, which resolved the last pending claim in the case. Accordingly,
under Rule 303(a), AWP’s notice of appeal was due within 30 days of June 27, 2018, or within
30 days of an order disposing of a timely filed postjudgment motion. AWP filed its notice of
appeal on November 9, 2018, more than 30 days after the June 27 judgment but within 30 days
of the trial court’s order denying its postjudgment motion. Accordingly, AWP’s notice of appeal
may be deemed timely only if its postjudgment motion itself was timely.
¶ 11 Under section 2-1203 of the Code, a postjudgment motion following a bench trial must
be filed “within 30 days after the entry of the judgment.” 735 ILCS 5/2-1203(a) (West 2016).
AWP filed its postjudgment motion on July 27, 2018, within 30 days of the June 27 judgment
awarding Stola attorney fees, but many months after the underlying judgment of January 9. Stola
contends that AWP’s postjudgment motion was directed solely at the January 9 judgment and
was thus untimely because it was not filed within 30 days of that judgment. If AWP’s
postjudgment motion was in fact directed solely at the January 9 judgment, then the question of
whether it was timely filed is unsettled. In Pempek v. Silliker Laboratories, Inc., 309 Ill. App. 3d
972, 977-80 (1999), another division of this court held that a postjudgment motion under section
2-1202 of the Code (the similarly worded analogue for postjudgment motions following jury
trials) must be filed within 30 days of the judgment that it challenges, even if that judgment
remains unappealable under Rule 304(a) due to the pendency of other claims. However, in
McDonald v. Health Care Service Corp., 2012 IL App (2d) 110779, ¶ 21, the Second District
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rejected Pempek and held that a postjudgment motion under section 2-1203 is timely so long as it
is filed within 30 days of “the entry of a final and appealable judgment.”
¶ 12 We need not resolve the conflict between Pempek and McDonald because we conclude
that AWP’s postjudgment motion was directed against both the January 9 judgment and the June
27 judgment and was thus timely regardless of which rule controls. 5 Although AWP’s
postjudgment motion primarily challenged the trial court’s January 9 judgment resolving the
underlying Consumer Fraud Act claim, it also expressly asked the court to vacate the June 27
judgment awarding attorney fees on that claim. Stola contends that the motion did not
sufficiently challenge the June 27 judgment because it did not contest the amount of fees
awarded but merely argued that no fees would be warranted if the court vacated the underlying
judgment. But the Illinois Supreme Court has “decline[d] to hold that post-judgment motions in
nonjury cases must contain some undefined degree of detail, lest the filer risk that the reviewing
court hold that the motion is not a [postjudgment] motion at all.” Kingbrook, Inc. v. Pupurs, 202
Ill. 2d 24, 33 (2002). Regardless of the arguments it advanced, AWP’s motion qualifies as a
postjudgment motion directed against the June 27 judgment because it “expressly asked the court
to vacate” that judgment. Affordable Housing Preservation Foundation v. Wiiams, 375 Ill. App.
3d 305, 307 (2007). It was thus a timely postjudgment motion under section 2-1203 and tolled
the time for AWP to file its notice of appeal under Rule 303(a). For that reason, AWP’s notice of
appeal was timely, and we may proceed to the merits of the appeal.
5
Stola does not dispute that if AWP’s postjudgment motion was directed against the June
27 judgment, then it tolled the time for filing a notice of appeal under Rule 303(a) and renders
AWP’s notice of appeal timely.
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¶ 13 On the merits, AWP contends that the trial court erred in finding that it violated section
2Q(c) of the Consumer Fraud Act. That section provides that, if a “person engaged in the
business of home repair *** fails or refuses to commence or complete work under a
contract *** for home repair,” he must “return the down payment and any additional payments
made by the consumer within 10 days after a written demand sent to him by certified mail by the
consumer.” 815 ILCS 505/2Q(c) (West 2016). A judgment entered following a bench trial is
generally reviewed under the manifest weight of the evidence standard. Battaglia v. 736 North
Clark Corp., 2015 IL App (1st) 142437, ¶ 23. “A judgment is against the manifest weight of the
evidence only when an opposite conclusion is apparent or when findings appear to be
unreasonable, arbitrary, or not based on evidence.” Judgment Services Corp. v. Sullivan, 321 Ill.
App. 3d 151, 154 (2001). AWP contends that any finding that it “fail[ed] or refuse[d]
to *** complete work under [the parties’] contract” is against the manifest weight of the
evidence because Stola conceded in his complaint that he “discharged” AWP. AWP argues that
this concession constituted a judicial admission. As AWP notes, “[a] factual admission in a
verified pleading constitutes a judicial admission, which has the effect of withdrawing a fact
from issue and makes it unnecessary for the opposing party to introduce evidence in support
thereof.” L.D.S., LLC v. Southern Cross Food, Ltd., 2011 IL App (1st) 102379, ¶ 35. According
to AWP, in light of Stola’s judicial admission that he “discharged” AWP, any finding that AWP
failed or refused to complete work under the contract, within the meaning of section 2Q(c) of the
Consumer Fraud Act, would be against the manifest weight of the evidence.
¶ 14 AWP cannot succeed on this argument, however, because it failed to provide us with a
record on appeal that is sufficient to support its claim of error. See Foutch v. O’Bryant, 99 Ill. 2d
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389, 391 (1984) (“[A]n appellant has the burden to present a sufficiently complete record of the
proceedings at trial to support a claim of error.”). “[I]n the absence of such a record on appeal, it
will be presumed that the order entered by the trial court was in conformity with law and had a
sufficient factual basis” and “[a]ny doubts which may arise from the incompleteness of the
record will be resolved against the appellant.” Id. at 392. As we noted above, the record on
appeal includes no trial transcript, bystander’s report, or agreed statement of facts. See Ill. S. Ct.
R. 323. We thus do not know what evidence was presented at trial or what findings of fact the
trial court made with respect to the Consumer Fraud Act count. Indeed, because Stola alleged
that AWP violated both section 2B and section 2Q(c) of the Act, without any specific findings of
fact from the trial court, we are unable to determine whether the court found a violation of
section 2Q(c) at all. Moreover, even if we could say that the trial court’s judgment rested on a
finding that AWP violated section 2Q(c), our inability to review the evidence that was presented
at trial makes it impossible for us to conclude that the judgment was against the manifest weight
of the evidence, regardless of the factual concession in Stola’s complaint. See Smith v.
Pavlovich, 394 Ill. App. 3d 458, 468 (2009) (whether a party’s factual concession “constitutes a
judicial admission must be decided under the circumstances in each case” and “in relation to the
other testimony and evidence presented”). AWP’s contention that Stola failed to prove damages
or proximate cause fails for the same reason. Without a trial transcript or other appropriate
substitute, we must presume that the trial court’s judgment was in conformance with the law and
was supported by a sufficient factual basis. Foutch, 99 Ill. 2d at 392.
¶ 15 Finally, AWP argues that the trial court erred in denying its postjudgment motion on the
grounds of untimeliness and forfeiture. We may again put to the side the question of whether the
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portion of AWP’s postjudgment motion challenging the court’s underlying judgment on the
Consumer Fraud Act claim was timely, because AWP has not shown that the trial court erred in
determining that it forfeited its postjudgment arguments by failing to raise them earlier. At the
outset, we hold that AWP has forfeited on appeal any contention that the trial court’s forfeiture
analysis was erroneous, as it failed to support this argument with any citation to authority in its
appellate brief. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018) (appellant’s opening brief must
“contain the contentions of the appellant and the reasons therefor, with citation of the authorities
and the pages of the record relied on”); Crull v. Sriratana, 388 Ill. App. 3d 1036, 1045 (2009)
(“A contention that is supported by some argument but no authority does not meet the
requirements of Rule 341 and is considered forfeited.”). Even were the argument not forfeited,
AWP has not demonstrated that the trial court abused its discretion in denying the postjudgment
motion. See General Motors Acceptance Corp. v. Stoval, 374 Ill. App. 3d 1064, 1078 (2007)
(“The decision to grant or deny a motion for reconsideration lies within the discretion of the
circuit court and will not be reversed absent an abuse of that discretion.”). The purpose of a
section 2-1203 motion is “to bring to the court’s attention newly discovered evidence, changes in
the law, or errors in the court’s previous application of existing law.” Id. AWP’s motion did not
bring to the court’s attention any newly discovered evidence, nor did it cite any change in law or
errors in the court’s application of existing law. The basis for AWP’s judicial admission
argument was available before and during trial, and the (incomplete) record on appeal suggests
that AWP failed to raise the argument at any point prior to the filing of its postjudgment motion.
In those circumstances, we cannot say that the trial court abused its discretion in finding the
contention forfeited. See Hall v. Cipolla, 2018 IL App (4th) 170664, ¶¶ 93-97 (holding that party
“forfeited her theory of judicial admissions” by “wait[ing] until posttrial proceedings to raise
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[the] legal theory”). Moreover, we cannot say that the trial court erred in denying AWP’s
argument that the evidence did not establish actual damages or proximate cause because AWP
has not provided a record on appeal that sufficiently supports its underlying claim of error. See
Tzakis v. Berger Excavating Contractors, Inc., 2019 IL App (1st) 170859, ¶ 51 (“[W]e may
affirm the trial court’s [order] on any basis supported by the record, even if the trial court did not
base its decision on that ground.”).
¶ 16 III. CONCLUSION
¶ 17 For the foregoing reasons, we affirm the circuit court’s judgment.
¶ 18 Affirmed.
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