delivered the opinion of the court:
Plaintiffs, Terry and Carrie Ekl, filed a complaint alleging that defendant, James Knecht, violated the Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 1989, ch. 121/2, par. 261 et seq.). Following a bench trial, the circuit court of Du Page County awarded plaintiffs $307 in compensatory damages and $4,700 in punitive damages. Defendant appeals and contends as follows: (1) that the trial court erred by ruling that a combination of defendant’s high prices and his failure to disclose those prices prior to performing the requested plumbing services violated the Act; (2) that the punitive damage award was excessive; and (3) that, in awarding punitive damages, the circuit court improperly considered certain testimony that had been stricken. Plaintiffs cross-appeal and argue that the court abused its discretion by denying their request for attorney fees pursuant to the Act. We affirm.
The following facts were brought out at trial. Knecht was the president, majority shareholder, and sole full-time employee of Knecht Services, Inc., which did business under the assumed name of AAA Knecht. The company, which operated out of Knecht’s home in Clarendon Hills, was engaged in the business of repairing plumbing fixtures and heating, ventilation, and air conditioning systems. Defendant was a licensed apprentice plumber.
The Ekls lived in a six-bedroom home in Clarendon Hills along with their three children. On the morning of December 10, 1988, a Saturday, Carrie Ekl called AAA Knecht because one of the three bathtubs in her home was draining slowly. Knecht’s wife, Elizabeth, took the call and stated that someone could probably be sent to the Ekl home that afternoon. Elizabeth Knecht then called defendant, who was working at a home in Darien, along with his helper, Reginald Wagner.
Defendant called Carrie Ekl to confirm that she wanted the work done. After completing the job in Darien, defendant and Wagner went to the Ekl residence. Defendant’s right leg was in a cast at the time and he was using crutches because of an injury to his achilles tendon. Sometime after their arrival, Carrie told them about the problem and also mentioned that her husband had left town to go skiing.
The drainage problem resulted from an obstruction in a section of pipe in the Ekl basement. Defendant and Wagner found the obstruction by cutting the pipe open with a hacksaw. They found and removed a small piece of plastic that apparently came from a toy belonging to one of the Ekl children. They then replaced the pipe that had been sawed off and installed a device called a PVC trap and tail assembly which could be easily removed and put back in if there was any future blockage.
After completing the repair, defendant prepared the invoice and presented it to Carrie Ekl. The total charge was $480. Carrie testified that she told defendant that the bill was ridiculous and the amount of money defendant was charging was outrageous. Defendant told her that she was to pay that amount.
Carrie further testified as follows. She asked Knecht if she could send a check on Monday after her husband had a chance to review the bill. Defendant stated that if Carrie did not pay him, he would undo the work and turn off the water in the Ekl home. Carrie then found her checkbook and wrote out a check to defendant in the amount of $480. She did this because she was afraid of him. According to Carrie, defendant and Wagner were in her home for 60 to 90 minutes.
When defendant testified, he denied ever threatening Carrie Ekl or any other customer. He also stated that she had not objected to the amount of the bill. Reginald Wagner corroborated defendant’s testimony in this respect. According to defendant, he and Wagner were at the Ekl home for two hours.
Terry Ekl returned home on Sunday, December 11. The next day he sent a letter to Knecht in which he requested a breakdown of his charges. There was no such breakdown on the invoice. The Ekls never received a response to the letter. The Ekls attempted to stop payment on the check Carrie had given defendant but Elizabeth Knecht had cashed the check on December 10.
Defendant testified that as of the time of the Ekl job, his minimal hourly rate was $59. Same-day service on Monday through Friday was billed at time and a half. Defendant charged double for same-day service on the weekends. Additionally, he billed a minimum of one hour of travel time for each job regardless of where the customer lived. Defendant’s two primary competitors were Econotemp, Inc., and Dunrite Plumbing. According to defendant’s testimony the rate he charged the Ekls was about SVz times the rate charged by Dunrite, which only bills straight time. Defendant also testified that Econotemp generally charges $40 per hour.
For the Ekl job, defendant charged $118 per hour for his services and $30 per hour for Wagner’s. He charged the Ekls for three hours of time, two hours at the Ekl residence and one hour of travel time. He added on a charge of $36 for the materials used to replace the pipe that was sawed off. Terry Ekl testified that he bought the same materials at a hardware store for $3.94. Defendant did not give Carrie Ekl an estimate or quote her his hourly rates before completing the work, nor did she inquire about those rates.
Two witnesses called by plaintiffs testified that defendant has a poor reputation for truth and veracity in Clarendon Hills. A minister called by defendant testified to the contrary. Susan Lindquist testified that defendant went to her home in Westmont and repaired her furnace on March 1, 1987. Lindquist asked why the invoice was so high. She then asked if defendant could bill her because she lacked sufficient funds to pay the invoice. Lindquist used a credit card to pay because defendant told her that if she did not pay immediately, he would remove the copper coil he had placed in the furnace.
Lindquist had previously testified against defendant at the trial of an action brought against defendant and Knecht Services, Inc., by the Illinois Attorney General in 1987 alleging numerous violations of the Act. After a lengthy bench trial in 1989, the circuit court of Du Page County ruled in defendants’ favor on several counts in the Attorney General’s suit. The court found in plaintiff’s favor on one count, ruling that defendants had violated the Act by charging rates much higher than competitors’ rates and failing to advise some customers of those rates prior to performing the requested services. The circuit court imposed a civil fine of $10,000 against defendants and entered a mandatory injunction requiring defendants, among other things, to disclose their rates to customers prior to doing any work. This court recently affirmed the circuit court’s judgment order in the Attorney General’s action although our reasoning differed from that employed by the circuit court. See People ex rel. Hartigan v. Knecht Services, Inc. (1991),
While testifying as an adverse witness in the present case, defendant testified that he raised his minimum hourly charge to $69 in 1989 because of the expenses resulting from the Attorney General’s action. After defendant finished testifying as an adverse witness, the trial court struck the above testimony on the basis that it was irrelevant. While announcing the judgment, the trial judge stated that he had reconsidered and reversed his prior ruling striking the above testimony.
The trial judge ruled that defendant had violated the Act by charging excessive rates and failing to advise Carrie Ekl of those rates prior to commencing work. The judge found that defendant had threatened Mrs. Ekl and based the punitive damage award upon the threat and defendant’s testimony that he increased his rates in 1989 because of expenses resulting from the lawsuit brought by the Attorney General. The court denied plaintiffs’ request for attorney fees under section 10a(c) of the Act (Ill. Rev. Stat. 1989, ch. 121%, par. 270a(c)). Defendant now appeals, and plaintiffs cross-appeal.
Defendant first challenges the trial court’s determination that he violated section 2 of the Act (111. Rev. Stat. 1989, ch. 121%, par. 262). That provision states as follows:
“Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, *** in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby. In construing this section consideration shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5(a) of the Federal Trade Commission Act.” Ill. Rev. Stat. 1989, ch. 121%, par. 262.
A violation of section 2 of the Act is established if the plaintiffs show that defendant is engaged in a trade or commerce and has committed acts or engaged in practices which are either unfair or deceptive. (People ex rel. Hartigan v. Knecht Services, Inc. (1991),
According to defendant, a tradesperson’s failure to disclose his or her rates prior to performing services does not violate the Act absent a special relationship between the parties which is not present here. Defendant also asserts that a tradesperson’s high prices do not violate the Act unless the services performed have little or no value. Under defendant’s analysis, the parties entered into an implied-in-fact contract pursuant to which defendant agreed to perform the requested plumbing services and Carrie Ekl agreed to pay his regular charges. Defendant argues that, in the absence of a finding that his prices were unconscionable, the trial court’s action constitutes an unwarranted interference with the parties’ contract, as the Act was not intended to protect consumers from their own carelessness in negotiating contracts.
Implied-in-fact contracts arise from promissory expressions which may be inferred from facts and circumstances that show an intent to be bound. (Century 21 Castles By King, Ltd. v. First National Bank (1988),
We do not agree, however, with defendant’s contention that payment of his regular charges was a term of that contract even though Carrie Ekl testified that she anticipated paying defendant’s regular charges. If there is an express or implied contract pursuant to which one party agrees to provide services to another and there is no provision setting forth the amount that is to be paid, the law implies an agreement to pay a reasonable price for the services. (Victory Memorial Hospital v. Rice (1986),
Even if Carrie had expressly agreed to pay defendant’s regular charges the result would not be different. In Victory Memorial Hospital, the defendant expressly agreed to pay the plaintiff’s regular charges, and in Protestant Hospital the defendant expressly agreed to pay the price designated by plaintiff. (Victory Memorial Hospital,
The court in Protestant Hospital also noted that if a party acquiesces to a statement of account rendered by another that party will be liable for the billed amount under the theory of an account stated. (Protestant Hospital,
There is no question that the threats defendant was found to have made were wrongful. Our prior analysis shows that at the time the threats were made the amount due defendant remained open to negotiation between the parties. Therefore defendant was not entitled to undo the work merely because Carrie Ekl refused to pay rates far in excess of what the trial court determined to be reasonable. By defendant’s own admission, the rate at which he billed the Ekls was about 31/2 times the rate generally charged by his main competitors. It is also obvious that defendant had no right to turn off the Ekls’ water. The threatened actions if carried out would have constituted the offense of criminal damage to property (111. Rev. Stat. 1989, ch. 38, par. 21 — 1(a)). These threats were wrongful in both a legal and a moral sense.
According to Carrie Ekl’s testimony, which the trial court determined to have been credible with regard to the alleged threats, she initially expressed outrage at the amount of the bill and stated that she wished to have her husband review it before paying. Defendant then made the aforementioned threats and Carrie paid the bill because she was afraid of him and wanted him out of the house. This testimony shows that Carrie agreed to pay the bill against her will and only because of a fear that defendant and his helper would carry out the threats. Therefore any agreement by Carrie to pay the amount billed by defendant was void because it was the product of duress. There was no valid agreement between the parties that the Ekls would pay $480 for defendant’s services; they were only obligated to pay a reasonable amount.
In determining whether a practice is unfair under the Act, courts are guided by the following factors: (1) whether the practice even if not unlawful offends public policy as established by statutes, the common law or otherwise, or, in other words, whether it is at least within the penumbra of some established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; and (3) whether it results in substantial injury to consumers. (Knecht Services, Inc.,
Applying the first of these criteria, it is apparent that defendant’s conduct is offensive to public policy. As we have seen, defendant threatened to commit the offense of criminal damage to property if Carrie did not pay the billed amount immediately. The common-law doctrine that contracts which are the product of duress will be voided is indicative of an established public policy against the use of threats to force others to enter into agreements. The threats that defendant was found to have made violated this established public policy.
The employment of such strong-arm tactics against a consumer who was acting within her rights when she questioned defendant’s substantial charges is immoral, unethical, oppressive, and unscrupulous. (See Knecht Services, Inc.,
The circuit court did not rely upon defendant’s threats to Carrie Ekl in its determination that defendant violated the Act. A reviewing court may, however, sustain the circuit court’s decision on the basis of any grounds which are apparent from the record. (Bell v. Louisville & Nashville R.R. Co. (1985),
Defendant also contends that the $4,700 punitive damage award was excessive and that the trial court in making the award erroneously considered certain testimony that had been stricken. The purposes of punitive damages are to punish the wrongdoer and to deter that party and others from committing similar wrongful acts. (Deal v. Byford (1989),
Defendant initially asserts that the nature of his wrongful actions is not such as to justify any award of punitive damages. Punitive damages may only be awarded for conduct that is outrageous either because the acts are done with an evil motive or because they are performed with a reckless indifference toward the rights of others. (Loitz v. Remington Arms Co. (1990),
According to defendant, the punitive damage award was excessive because his wrongful acts were not of a sufficient magnitude to justify such a substantial award and because plaintiffs failed to present evidence of defendant’s financial status. Although the ratio between the punitive and compensatory damage awards was greater than 15 to 1, there is no requirement that a punitive damage award bear any particular proportion to the size of the compensatory damage award. (Deal v. Byford (1989),
The fact that no evidence was presented concerning defendant’s financial circumstances does not change our view. In Deal, no evidence concerning the defendants’ financial status was introduced and the court held that plaintiff was not required to present such evidence. (
Defendant contends that the rule recently set forth in Black v. Iovino (1991),
Defendant also argues that it was error for the trial court to consider in awarding punitive damages his own testimony that a 1989 price increase resulted largely from expenses relating to the lawsuit filed by the Attorney General. Defendant first contends that the testimony was irrelevant because the increase occurred a year after he worked on the Ekl job. We disagree. The testimony indicates that expenses from the present suit, including a punitive damage award, could also be passed on to consumers, a relevant factor in determining an amount sufficient to deter similar future conduct.
The above testimony was presented while defendant was testifying as an adverse witness in plaintiffs’ case. Defendant also testified that his 1988 prices were higher than those of his competitors and this resulted from attorney fees and other expenses relating to the Attorney General’s lawsuit. When plaintiffs’ attorney completed his questioning, defendant’s attorney questioned him. After this took place, the trial court struck the testimony relating to the 1989 increase. When the trial judge announced the damage award, he stated that he had reconsidered this ruling and considered the previously stricken testimony in awarding punitive damages.
Defendant complains that the trial court’s consideration of this testimony was an unfair surprise which denied him the chance to rebut the testimony. We disagree for several reasons. First of all, the testimony defendant feels he should have been able to refute was his own testimony. Secondly, defendant’s attorney had an opportunity to rehabilitate defendant during the examination that occurred prior to the time the testimony was stricken. Defendant’s attorney did, in fact, ask several questions at this time about the Attorney General’s lawsuit and its effect upon defendant’s business. Finally, defendant’s testimony relating to his 1988 prices was never stricken. Defendant therefore still had the incentive to present evidence refuting his testimony concerning the effect of the Attorney General’s lawsuit upon his prices had he been able to do so. Therefore defendant was not prejudiced by the trial court’s action.
Plaintiffs cross-appeal and contend that the trial court abused its discretion by denying their request for attorney fees pursuant to section 10a(c) of the Act (Ill. Rev. Stat. 1989, ch. 121/2, par. 270a(c)). Section 10a(c) provides that in an action brought pursuant to the Act, the trial court may award attorney fees to the prevailing party. (Ill. Rev. Stat. 1989, ch. 121/2, par. 270a(c).) When the word “may” is used in a statute it generally implies permissive or discretionary rather than mandatory action. (Tague v. Molitor Motor Co. (1985),
In Tague, a substantial award of punitive damages was imposed by the jury and affirmed on appeal. The court also affirmed the trial court’s denial of fees under the Act, ruling that the denial of fees was not an abuse of discretion. (Tague,
Plaintiffs further contend, however, that they were at least entitled to a hearing on their fee request. As plaintiffs point out, in Beno v. McNew (1989),
In the case at bar, like Dayan and unlike Beno, a trial was held. Because section 10a(c) of the Act (Ill. Rev. Stat. 1989, ch. 121/2, par. 270a(c)) provides the trial court with discretionary authority to award attorney fees to the prevailing party, no hearing was necessary for the trial court to determine whether grounds for a fee award existed. Beno is therefore distinguishable and is not controlling in this case. The trial judge was aware that a statutory ground for an award of attorney fees existed, but he properly exercised his statutory discretion in denying such an award. No hearing was required under the circumstances of this case.
Finally, two motions have been filed which we have ordered taken with the case. Defendant has moved to strike those portions of plaintiffs’ reply brief dealing with matters other than the issue raised in the cross-appeal. We grant this motion because a cross-appellant must confine his or her reply brief to issues raised in the cross-appeal (134 Ill. 2d R. 343(b)(i)). Plaintiffs have moved to strike any reference in defendant’s briefs to the case of Black v. Iovino because the Appellate Court for the First District temporarily withdrew the opinion from publication. As this opinion has now been released for publication, plaintiffs’ motion is denied.
For the above reasons, the judgment of the circuit court of Du Page County is affirmed.
Affirmed.
NICKELS and GEIGER, JJ., concur.