AMERICAN BACKFLOW FIRE PREVENTION INC DAVID LOES KADEN HARBUT LINDSAY BOUFFARD v. ASSE INTERNATIONAL CHAPTER OF IAPMO LLC ASSE (2026)

OPINION

¶ 1 Plaintiffs David Loes, Kaden Harbut, and Lindsay Bouffard (collectively, the individual plaintiffs), employees of plaintiff American Backflow & Fire Prevention, Inc. (American Backflow), sought certification in fire sprinkler maintenance from defendant, American Society of Sanitary Engineering (ASSE). Although ASSE originally awarded the individual plaintiffs certifications in fire sprinkler maintenance, ASSE subsequently revoked those certifications after it determined that the individual plaintiffs had not submitted sufficient documented work experience to obtain their certifications. American Backflow and the individual plaintiffs thereafter filed a complaint against ASSE, asserting that ASSE had wrongfully revoked the individual plaintiffs’ certifications. The trial court granted ASSE summary judgment as to American Backflow, finding that American Backflow was neither in a contractual relationship with ASSE nor was it a third-party beneficiary to the contract between the individual plaintiffs and ASSE. A jury trial was held on the individual plaintiffs’ claims. After a jury awarded the individual plaintiffs damages for ASSE's wrongful revocation of their certifications, the trial court entered a judgment notwithstanding the verdict (JNOV) for ASSE, finding that the individual plaintiffs had not provided sufficient documented evidence of their work experience. American Backflow appeals from the summary judgment order, and the individual plaintiffs appeal from the JNOV order. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 American Backflow is a business that provides backflow, plumbing, and fire protection services for its clients. Dan Harbut (Harbut) is one of the owners of American Backflow. His son Kaden is an employee of American Backflow, as are Loes and Bouffard.

¶ 4 ASSE is a voluntary association. It issues the ASSE Series 15010 Water-Based Fire Protection Certification (15010 Certification), which it awards pursuant to the American National Standards Institute's accredited standard for fire sprinkler systems that use water. To obtain the certification, an applicant must first have five years of documented relevant work experience. The applicant must also attend a 40-hour class. ASSE issues the certification, but it does not teach the class, and it does not automatically review the applications for work experience unless the experience is challenged. The applicant must find an ASSE approved school that offers the class and must complete an application for that school. The applicant pays the fees and tuition costs directly to the approved school. At the end of the in-school training, applicants must pass the ASSE certification examination—consisting of a 200-question exam and a skill-based test—to obtain certification.

¶ 5 In February 2022, Harbut began researching certifications that would allow American Backflow fire sprinkler technicians to have the necessary certification to act as lead fire sprinkler technicians and to comply with a new Illinois law that would become effective on January 1, 2023.

¶ 6 To obtain ASSE 15010 Certification for himself as well as Kaden, Loes, and Bouffard, Harbut selected a school run by the American Fire Sprinkler Association (AFSA) that was located at the General Air Plant in Exton, Pennsylvania. American Backflow paid AFSA the application fee and tuition costs associated with the class on behalf of Harbut, Kaden, Loes, and Bouffard. In consideration for American Backflow paying for the cost of the certification, American Backflow entered into separate agreements with Kaden, Loes, and Bouffard that required them to repay American Backflow's cost of obtaining the certifications if they left American Backflow's employment within two years.

¶ 7 In August 2022, Harbut, Kaden, Loes, and Bouffard completed the classroom training, and they all passed the written exam and skill test. ASSE issued them the 15010 Certifications.

¶ 8 After the issuance of the certifications, ASSE received a written complaint from William Hincks, who challenged the work experience of Harbut, Kaden, Loes, and Bouffard.¹ The complaint stated that Harbut was American Backflow's owner and had “extremely limited field experience pertaining to fire sprinkler systems” and “a number of former [American Backflow] employees [were] willing to provide sworn affidavits detailing their observations pertaining to [his] lack of verifiable field experience with fire sprinkler systems.”² The complaint asserted that Kaden was 17 years old and “could not possibly have the five years of documented practical experience in the fire sprinkler industry” to obtain certification. The complaint alleged that Loes was American Backflow's operating manager and had “zero field experience with fire sprinkler systems.” The complaint additionally asserted that Bouffard was a field employee but did not have five years of practical experience in the fire sprinkler industry.

¶ 9 On December 7, 2022, ASSE informed the individual plaintiffs that a complaint had been filed regarding whether they had the necessary skills or experience required for certification. ASSE noted that the applications the individual plaintiffs had submitted only provided proof of experience from 2022. ASSE asked the individual plaintiffs to provide documentation showing that each possessed five years of documented practical work experience in the fire sprinkler industry and three years of experience in fire sprinkler inspection, testing, and maintenance. ASSE also noted that it did not accept underage work experience.

¶ 10 On December 30, 2022, American Backflow submitted documents to ASSE to support the individual plaintiffs’ assertions that each met the certification's work experience requirements. For Loes, the submitted documents were an October 26, 2016, offer letter from American Backflow and an excel spreadsheet of fire sprinkler work orders performed by him from January 1, 2020, through December 20, 2022. For Bouffard, the documents were her October 15, 2018, offer letter from American Backflow, an excel spreadsheet of fire sprinkler work orders she performed from January 1, 2019, through December 20, 2022, and a letter from her indicating that she had spent two years working for H & S Builders, which included doing fire restoration work. For Kaden, the submitted documents were an excel spreadsheet showing work done from January 1, 2020, through December 20, 2022, and a letter from Taras Turbovets, American Backflow's system development manager, who discussed Kaden's work experience since February 2017.

¶ 11 In response to Hincks’ complaint, ASSE formed a five-member “Complaint Committee.” The Complaint Committee reviewed the complaint submitted against the individual plaintiffs, the 15000 Series Standard, the 15000 Series Guidelines, and the documented work history that each individual plaintiff had submitted. The Committee determined that an applicant could not “self-certify” work experience by clicking a box on the application that they had the documented practical work experience but was required to provide proof of the appropriate work experience.

¶ 12 After reviewing each of the individual plaintiff's applications, the Complaint Committee recommended to ASSE's Board of Directors that Kaden's certification be revoked because of his age. The Committee determined that a 17-year-old could not accumulate five years of practical work experience starting at the age of 12.

¶ 13 As to Loes, the Committee noted that the complaint indicated that Loes was American Backflow's “Operations Manager” and that his offer letter from American Backflow concerned his managerial experience overseeing a company and no fire sprinkler work was mentioned. The excel spreadsheet that American Backflow submitted on his behalf only showed two and a half years of work experience in the fire sprinkler industry. The Committee therefore recommended that his certification be revoked as well.

¶ 14 Regarding Bouffard, the Committee noted that the excel spreadsheet she provided had less than five years of experience; however, she indicated that she had done prior work for an employer involved in “fire restoration.” The Committee determined that “fire restoration” work concerned “putting a home back together, which would include drywall or repainting and things of that nature.” Thus, the Committee concluded that “fire restoration” work was not equivalent to “practical experience in the fire sprinkler industry.” The Committee therefore recommended that Bouffard's certification be revoked.

¶ 15 On March 3, 2023, after reviewing the Complaint Committee's recommendations, ASSE's Board of Directors revoked the certifications for Kaden, Loes, and Bouffard.

¶ 16 On April 10, 2023, plaintiffs filed an amended four-count complaint against ASSE. The amended complaint asserted claims for breach of an implied contract, unjust enrichment, fraud, and promissory estoppel. The amended complaint alleged that (1) Kaden, Loes, and Bouffard had applied for the certifications; (2) American Backflow had paid for those certifications as well as the individual plaintiffs’ training and expenses; (3) ASSE wrongfully revoked those certifications; and (4) plaintiffs suffered damages due to the inconvenience of having to reschedule customers’ services, lost revenue, lost customers, and paying the individual plaintiffs a higher wage despite not having the certifications.

¶ 17 On June 29, 2023, the trial court dismissed the count alleging fraud.

¶ 18 On April 9, 2024, ASSE filed a motion for summary judgment as to the other three counts. Pointing to the deposition testimony, ASSE argued that all of the individual plaintiffs testified that they knew the certifications required five years of documented practical work experience in the fire sprinkler industry. All testified that they had five years of documented work experience in their applications for the certifications. However, all of the individual plaintiffs acknowledged that they did not provide ASSE with documents demonstrating that they had five years of work experience. As such, ASSE insisted that the individual plaintiffs’ claims failed because the plaintiffs were never entitled to certifications in the first place.

¶ 19 As to American Backflow, ASSE pointed to Harbut's deposition testimony that the certifications were issued to the individual plaintiffs, that American Backflow had nothing to do with them, and that the individual plaintiffs could have left their employment with American Backflow and taken their certifications with them. Thus, ASSE asserted that American Backflow was not an intended beneficiary of the certifications.

¶ 20 ASSE further argued that neither the individual plaintiffs nor American Backflow had provided any documentation or evidence of harm as a result of the revocation of the certifications. Absent proof of any damages, ASSE argued that summary judgment in its favor was also proper on those grounds.

¶ 21 On September 19, 2024, following a hearing, the trial court granted ASSE's motion for summary judgment as to American Backflow but denied it as to the individual plaintiffs. The trial court found that, other than paying the costs associated with the certifications, American Backflow did not satisfy any of the elements of a cause of action for an implied contract. The trial court further found that American Backflow was neither a party to the alleged implied contracts nor an intended third-party beneficiary. This was because ASSE had promised nothing to American Backflow in issuing the certifications to the individual plaintiffs, who could change jobs at any time, taking their certifications with them.

¶ 22 On December 17, 2024, the trial court denied American Backflow's motion to reconsider.

¶ 23 From March 10 to March 12, 2025, the trial court conducted a jury trial on the individual plaintiffs’ complaint against ASSE. All of the individual plaintiffs testified that, prior to applying for certification, they knew that they had to have five years of documented practical experience in the fire sprinkler industry, including three years of experience in inspection, testing, and maintenance. They all testified that the spreadsheets provided to ASSE were accurate and did not reflect five years of work orders for fire sprinkler jobs. Nonetheless, they testified that because their applications were “accepted,” they believed their work experience was “approved.”

¶ 24 The individual plaintiffs testified that American Backflow paid all of their expenses for the certifications, including travel, food, and wages. Bouffard and Kaden testified that they received a pay increase from American Backflow when they obtained their certifications. Loes did not.

¶ 25 After their certifications were revoked, Kaden and Bouffard obtained similar NICET III certification in 2023. Kaden testified, however, that his NICET III certification was subsequently revoked due to underage work experience.

¶ 26 All of the individual plaintiffs testified regarding agreements they had entered with American Backflow on December 20, 2022. In their agreements, Bouffard and Kaden agreed to repay all pay increases (including taxes, social security, and workman's compensation benefits) until they obtained an alternate certification allowing them to be a “lead fire sprinkler tech,” the cost of the AFSA class, the certification costs, and legal fees. Both Bouffard and Kaden testified, though, that American Backflow had never sought any repayment. In his agreement, Loes testified that he would not receive his $25,000 pay increase until ASSE's investigation was closed and his license was in good standing.

¶ 27 Jason Uloswceh testified as a damages expert. He testified that he reviewed the December 20, 2022, agreements and calculated the amount each individual plaintiff could potentially be required to repay. He testified that Kaden was potentially responsible for repaying $17,258 in salary and fringe benefits. Bouffard would potentially be responsible for repaying $12,150 in salary and fringe benefits. Uloswceh further estimated that each of the individual plaintiffs would potentially be obligated to repay $5,000 in travel expenses. He based that amount on his own experience rather than reviewing any receipts.

¶ 28 After the trial court denied ASSE's motion for a directed verdict, ASSE presented its defense. Anthony Marcello, ASSE's Senior Vice-President of Training and Credential Services, testified that ASSE requires documented experience to verify that applicants are competent for the work. He stated that just “[j]ust checking [the] box and signing the application” does not document “practical experience in the fire sprinkler industry.” Further, Marcello testified that an employer could not “document” an employee's work experience by sending an e-mail because the employer would be conflicted due to its interest in having certified employees.

¶ 29 Marcello testified that ASSE does not require any specific documents to meet the work experience prerequisite because it works with thousands of companies, each with different record-keeping systems, and that ASSE considers e-mails, invoices, work orders or “anything that would document that somebody did work *** involv[ing] fire sprinklers, [such as] inspection, testing, maintenance, design or installation” to show compliance with the 15010 Standard. Marcello testified that the individual plaintiffs submitted only job offer letters and excel spreadsheets. Prior to the litigation, ASSE was neither aware of the repayment agreements between the individual plaintiffs and American Backflow nor aware that the individual plaintiffs would receive pay increases for receiving the certifications.

¶ 30 Jason Shank, a past president of ASSE's Board of Directors and chair of the Complaint Committee, testified that the Board of Directors met on March 3, 2023, to determine whether the individual plaintiffs’ certification should be revoked. He explained that an applicant could self-certify, but only “up until somebody questions it,” and an applicant checking the box stating he or she met the condition precedent was not proof. He testified that a contractor that does fire sprinkler work could certify his employees’ work experience with documented proof—such as a W-2 or other “proof of time ***, how much time worked”—but none of these situations applied to the individual plaintiffs.

¶ 31 At the close of trial, the jury found that the individual plaintiffs met the condition precedent for the certifications and that ASSE breached the implied contracts by revoking the certifications. The jury awarded the following damages: $79,010 ($64,000 in direct damages plus $15,010 in emotional damages) to Loes; $47,268 ($27,258 in direct damages, $5,000 in incidental damages, and $15,010 in emotional damages) to Kaden; and $42,160 ($22,150 in direct damages, $5,000 in incidental damages and $15,010 in emotional damages) to Bouffard.

¶ 32 On April 11, 2025, ASSE filed a motion for JNOV, arguing that there was an absence of evidence to support the jury's verdict that the individual plaintiffs had satisfied the certification's work experience condition precedent and that the verdict was the result of a “rogue jury.” ASSE pointed out that the jury had not been instructed on emotional damages and that its award of $15,010 to each individual plaintiff corresponded to the 15010 Certification. ASSE also argued that the individual plaintiffs’ damages were not foreseeable when the implied contracts were formed and that they had failed to provide any evidentiary support for damages.

¶ 33 On that same day, American Backflow filed a notice of appeal from the trial court's September 19, 2024, order granting ASSE summary judgment. That appeal was docketed in this court as appeal No. 2-25-0154.

¶ 34 On June 24, 2025, the trial court granted ASSE's motion for JNOV. The trial court found that there was a “total lack of evidence regarding whether the [individual plaintiffs] complied with the [condition precedent to] be issued a certification.” The trial court noted that the individual plaintiffs’ applications did not qualify as “documented work experience” and that the individual plaintiffs “presented no other evidence to meet the five-year relevant work experience requirement.”

¶ 35 On July 18, 2025, the individual plaintiffs filed a timely notice of appeal from the trial court's order granting ASSE's motion for a JNOV. That appeal was docketed in this court as appeal No. 2-25-0304. On July 29, 2025, we consolidated appeal Nos. 2-25-0154 and 2-25-0304 for review.

¶ 36 II. ANALYSIS

¶ 37 Prior to considering the merits of plaintiffs’ appeal, we first address ASSE's argument that plaintiffs’ briefs should be stricken and their appeal dismissed for failing to comply with Illinois Supreme Court Rule 341(h) (eff. Oct. 1, 2020). Rule 341(h) governs the contents and requirements of an appellant's brief. Rule 341(h)(6) provides that that the statement of facts “shall contain the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment, and with appropriate reference to the pages of the record on appeal.” Ill. S. Ct. R. 341(h)(6) (eff. Oct. 1, 2020). Rule 341(h)(7) further provides that the argument section “shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on.” Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020). Rule 341(h) is not a mere suggestion, and this court has discretion to strike a noncompliant brief and dismiss the appeal. Niewold v. Fry, 306 Ill. App. 3d 735, 737 (1999).

¶ 38 ASSE points out that, in their statement of facts, plaintiffs include neither a single mention of evidence or testimony from trial nor a single citation to the record. (We granted plaintiffs’ motions to file an amended statement of facts. The amended statement of facts includes citation to the record but does not expound upon any of the relevant facts.) In their procedural history, plaintiffs include none of the trial court's reasoning in granting or denying any motion. See Jaskula v. Dybka, 2025 IL App (1st) 241756-U, ¶ 45 (determining that a procedural history that does not explain the basis for the trial court's rulings does not comply with Rule 341(h)(6)). In their argument section, rather than citing specific pages of the record, plaintiffs cite exhibits, some spanning hundreds of pages. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (appellant's brief “shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on”). Additionally, ASSE argues that plaintiffs’ briefs are insufficient because they cite only general propositions of law and not authority supporting their positions on appeal. See Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, ¶ 12 (party violates Rule 341(h)(7) by citing no pertinent authorities other than “boilerplate” cases).

¶ 39 Upon reviewing the plaintiffs’ briefs, we conclude that their briefs are deficient for the reasons that ASSE sets forth above. Nonetheless, because their violations do not hinder our review, we decline to strike their briefs. See McMackin v. Weberpal Roofing, Inc., 2011 IL App (2d) 100461, ¶ 3. Rather, we admonish counsel to follow carefully the requirements of the supreme court rules in the future. See Szczesniak v. CJC Auto Parts, Inc., 2014 IL App (2d) 130636, ¶ 8.

¶ 40 Turning to the merits, we note that the crux of these appeals is whether ASSE improperly revoked the certifications of the individual plaintiffs, thereby determining that they should not be licensed as fire sprinkler inspectors. Our General Assembly has recognized the crucial role that associations like ASSE serve in promoting the public welfare. In enacting the Fire Sprinkler Contractor Licensing Act (Act) (225 ILCS 317/1 et seq. (West 2022)), the General Assembly explained that “the improper service of fire sprinkler systems and associated components creates conditions that may adversely affect the public health and general welfare.” 225 ILCS 317/5 (West 2022). The Act is therefore intended to regulate the fire sprinkler service industry to “ensur[e] that those who hold themselves out as possessing professional qualifications to engage in service of fire sprinkler systems are qualified to render service, and provid[e] for the high standards of professional conduct by those licensed to service fire sprinkler systems.” Id. One way that a person can demonstrate that he is qualified to render service is to obtain “current ASSE 15010 certification in inspection, testing, and maintenance for water-based fire protection systems.” Id. § 17(b)(2).

¶ 41 Our supreme court has noted the historic deference that has been given to voluntary associations, such as ASSE, to manage their own internal affairs. In Poris v. Lake Holiday Property Owners Ass'n, 2013 IL 113907, ¶ 31, the supreme court explained:

“ ‘In churches, lodges, labor unions, and other like voluntary associations, each person on becoming a member, either by express stipulation or by implication, agrees to abide by all rules and regulations adopted by the organization. [Citation.] Courts will not interfere to control the enforcement of by-laws of such associations, but they will be left free to enforce their own rules and regulations by such means and with such penalties as they may see proper to adopt for their government.’ ” Id. (quoting Engel v. Walsh, 258 Ill. 98, 103 (1913)).

Thus, courts generally will not interfere with the internal affairs of a voluntary association absent mistake, fraud, collusion, or arbitrariness. Finn v. Beverly Country Club, 289 Ill. App. 3d 565, 568 (1997).

¶ 42 In developing its standards for those seeking certification as to fire sprinkler inspection, ASSE determined that, among other things, an applicant must have a minimum of five years of documented practical experience in that field. After questions arose concerning whether the individual plaintiffs had submitted five years of documented practical experience of fire sprinkler inspection, ASSE considered what constituted sufficient documentation. ASSE determined that acceptable documentation could not be based on (1) an applicant's self-certification, (2) an employer's certification of his current employee's work, (3) work allegedly done as a minor, or (4) work done in areas other than fire sprinkler inspection.

¶ 43 None of ASSE's determinations are arbitrary. They all reflect common sense and a desire to protect the public and are consistent with the purpose of the Act. Allowing an applicant to self-certify defeats the requirement to provide documented evidence of work experience. After all, certification becomes meaningless if applicants can simply claim to be qualified and assert that they have accrued the requisite experience. Similarly, it is also not arbitrary to determine that an employer cannot by itself certify that its employees have the requisite documented experience. Marcello explained that ASSE reached this determination because an “employer has a vested interest in an individual getting certified.” This is because, under the Act, if the employees were not certified, they could not work as fire sprinkler inspectors, and, thus, the employer's business would suffer. See 225 ILCS 317/12 (West 2022).

¶ 44 As to why a person could not accrue the requisite work experience before turning 18, Shank explained that the five years of documented work experience was premised on an applicant working 40 hours a week throughout the year in the industry. It could not be expected that someone in his early teens would be working that much. Such a determination is neither unreasonable nor arbitrary. Moreover, ASSE's determination that work outside the fire sprinkler industry does not constitute work within the industry was not arbitrary either.

¶ 45 Looking at the specific evidence of this case, none of the three individual plaintiffs provided sufficient documented evidence that they had the requisite experience as fire sprinkler inspectors. Loes provided only three years of documented experience. As Kaden was only 17 when he applied for certification, all of his alleged work experience occurred as a minor. Bouffard provided just less than four years of documented work experience. To find that Loes and Bouffard had more applicable experience, we would have to deem arbitrary ASSE's rejection of (1) Loes and Bouffard's self-certification; (2) American Backflow's certification of Loes and Bouffard's experience; and (3) Bouffard's work for a home restoration company as being equivalent to work as a fire sprinkler inspector. As explained above, ASSE's requirements for documentation of work experience are not arbitrary. As such, none of the three individual plaintiffs had the requisite documented work experience, and a jury verdict for them was improper. The trial court therefore properly granted a JNOV in ASSE's favor. See Ries v. City of Chicago, 242 Ill. 2d 205, 215 (we review de novo the trial court's granting of a JNOV; a JNOV should be granted only when the evidence and inferences therefrom, viewed in the light most favorable to the nonmoving party, so overwhelmingly favors the movant that no contrary verdict could ever stand).

¶ 46 In so ruling, we necessarily determine that the trial court also properly granted summary judgment in ASSE's favor on American Backflow's complaint. American Backflow's complaint is premised on the assertion that ASSE wrongly revoked the individual plaintiffs’ certifications. As explained above, that argument is without merit.

¶ 47 Finally, we consider ASSE's argument that American Backflow should be sanctioned for filing a frivolous appeal. ASSE argues that neither American Backflow's claims that there was an implied contract between itself and ASSE or that it was intended as a third-party beneficiary of the contract between ASSE and the individual plaintiffs was well grounded in law or fact.

¶ 48 The purpose of Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994) is to condemn and punish the abusive conduct of litigants and their attorneys who appear before us. Sterling Homes, Ltd. v. Rasberry, 325 Ill. App. 3d 703, 709 (2001). Specifically, Rule 375(b) allows us to impose an appropriate sanction upon a party or a party's attorney if

“it is determined that the appeal or other action itself is frivolous, or that an appeal or other action was not taken in good faith, for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, or the manner of prosecuting or defending the appeal or other action is for such purpose.” Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994).

Rule 375 also states an appeal will be deemed frivolous “where it is not reasonably well grounded in fact and not warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law.” Id. In determining whether an appeal is frivolous, we use an objective standard: the appeal is frivolous if it would not have been brought in good faith by a “reasonable, prudent attorney.” (Internal quotation marks omitted.) Thompson v. Buncik, 2011 IL App (2d) 100589, ¶ 21. Rule 375(b) sanctions are penal in nature and should only be applied to cases falling strictly within the language of the rule. Enbridge Energy (Illinois), L.L.C. v. Kuerth, 2018 IL App (4th) 150519-B, ¶ 72. The imposition of Rule 375 sanctions is “left entirely to the discretion of the reviewing court.” (Internal quotation marks omitted.) Mote v. Estate of McManus, 2025 IL App (4th) 241307, ¶ 77.

¶ 49 As such, we must determine whether American Backflow's argument was well grounded in law or fact. We thus consider whether there was an implied contract between American Backflow and ASSE or whether American Backflow was an intended third-party beneficiary of the contract between the individual plaintiffs and ASSE.

¶ 50 In the absence of an express contract, an implied contract can be created as a result of the parties’ actions. Trapani Construction Co., Inc. v. The Elliot Group, Inc., 2016 IL App (1st) 143734, ¶ 41. Illinois courts recognize two types of implied contracts—those implied in fact and those implied in law. Brody v. Finch University of Health Sciences/The Chicago Medical School, 298 Ill. App. 3d 146, 154 (1998). In this case, count I of American Backflow's complaint alleged a cause of action for breach of an implied-in-fact contract. Contracts implied in fact arise from a promissory expression that may be inferred from the facts and circumstances that demonstrate the parties’ intent to be bound. Benton v. Little League Baseball, Inc., 2020 IL App (1st) 190549, ¶ 34. As one court has explained, “ ‘[t]he only difference between an express contract and an implied contract in the proper sense is, that in the former the parties arrive at an agreement by words, either verbal or written, while in the latter the agreement is arrived at by a consideration of their acts and conduct.’ ” Litow v. Aurora Beacon News, 61 Ill. App. 2d 127, 133 (1965) (quoting People v. Dummer, 274 Ill. 637, 641 (1916)). The elements of an implied-in-fact contract are the same as those of an express contract—offer, acceptance, and consideration. Brody, 298 Ill. App. 3d at 154. Further, the plaintiff must show a mutual intent to contract, i.e., a meeting of the minds. iMotorsports, Inc. v. Vanderhall Motor Works, Inc., 2022 IL App (2d) 210785, ¶ 32. We review de novo whether a plaintiff alleged facts which, if proven, would establish that the parties entered into an implied contract. Paper Source LLC v. Sugar Beets, Inc., 2025 IL App (1st) 231878, ¶ 21.

¶ 51 Here, American Backflow points to no promise that ASSE made to it and thus there was no meeting of the minds between ASSE and American Backflow. The agreement was between the individual plaintiffs and ASSE; if the individual plaintiffs met the certification requirements, then ASSE would provide them with certification. Harbut acknowledged that, if the individual plaintiffs went to work for a different employer, they would take their certifications with them. Thus, the certifications belonged to the individual plaintiffs alone. American Backflow's only involvement was paying their employee's fees. American Backflow points to no authority indicating that such involvement was enough to create an implied contract with ASSE.

¶ 52 As to whether American Backflow is a third-party beneficiary to the contract between ASSE and the individual plaintiffs, this court set forth the applicable law in Salvi v. Village of Lake Zurich, 2016 IL App (2d) 150249, ¶ 53. We explained:

“ ‘ “The well-established rule in Illinois is that if a contract is entered into for the direct benefit of a third person, the third person may sue for a breach of the contract in his or her own name, even though the third person is a stranger to the contract and the consideration.” ’ ” Barba v. Village of Bensenville, 2015 IL App (2d) 140337, ¶ 21 (quoting Olson v. Etheridge, 177 Ill. 2d 396, 404 (1997)). In contract interpretation, however, there is a strong presumption that the contracting parties did not intend to confer benefits on noncontracting parties. Id. ¶ 22. Illinois law recognizes two types of third-party beneficiaries: intended and incidental. Hacker v. Shelter Insurance Co., 388 Ill. App. 3d 386, 394 (2009). Only an intended third-party beneficiary may enforce rights under a contract. Bank of America National Ass'n v. Bassman FBT, L.L.C., 2012 IL App (2d) 110729, ¶ 27. It is not enough that a third party will reap incidental benefits from the contract; the benefit must instead be intended. F.H. Paschen/S.N. Nielsen, Inc. v. Burnham Station, L.L.C., 372 Ill. App. 3d 89, 96 (2007). Intent to benefit a third party is to be determined from the contract provisions and from the circumstances attending the execution of the contract. Advanced Concepts Chicago, Inc. v. CDW Corp., 405 Ill. App. 3d 289, 293 (2010). So strong is the presumption against third-party-beneficiary status that an intent to benefit a third party must have ‘ “practically an express declaration.” ’ Barba, 2015 IL App (2d) 140337, ¶ 22 (quoting F.H. Paschen/S.N. Nielsen, Inc., 372 Ill. App. 3d at 96). The plaintiff bears the burden of showing her status as a third-party beneficiary. Martis v. Grinnell Mutual Reinsurance Co., 388 Ill. App. 3d 1017, 1020 (2009).” Id.

¶ 53 Barba v. Village of Bensenville, 2015 IL App (2d) 140337, demonstrates where one will be found to be an intended third-party beneficiary. There, the plaintiff, an individual firefighter retiree, was specifically named in an intergovernmental agreement between the Village of Bensenville and the Bensenville Fire Protection District No. 2. Id. ¶¶ 5, 9. That agreement stated:

“ ‘One sworn member of the Fire Department, Chief Jack Barba, will retire on or before the Effective Date. The Village will adjust Chief Barba's compensation for pension purposes in an amount sufficient to assure that Chief Barba will enjoy a retirement benefit equal to that which he would have enjoyed ha[d] he continued to serve at his present rank until February[ ] 2008, which would have been his 30th year of service. In addition, the Village will be responsible for directly compensating Chief Barba for his accumulated sick leave and vacation time. The District and the Village agree to jointly defend Chief Barba should the Bensenville Firefighters’ Pension Board challenge or otherwise deny or interfere with Chief Barba's pension benefits determined in accordance with the formula herein provided.’ ” Id. ¶ 9.

¶ 54 After the plaintiff's retirement in that case, the defendant village did not provide an appropriation for the plaintiff's pay increase, so the plaintiff sued the village and the district for breach of the intergovernmental agreement. The defendants argued that the plaintiff could not sue for breach of contract because he was not a third-party beneficiary to the agreement. Id. ¶¶ 11-12. This court disagreed and held that the plaintiff was a third-party beneficiary because the defendants had entered into the agreement for his direct benefit. We additionally held that the defendants had breached the agreement and that plaintiff could recover damages for his lost benefits. Id. ¶¶ 28, 34.

¶ 55 Here, American Backflow cannot plausibly argue that the implied contract between the individual plaintiffs and ASSE was entered into for its direct benefit. As discussed above, the purpose of that agreement was for the individual plaintiffs to obtain their certifications. The benefit for those certifications inured solely to the individual plaintiffs, since they could take their certifications with them if they left American Backflow's employment. As such, American Backflow's benefit from the underlying contract was at most incidental. Thus, American Backflow was not a third-party beneficiary to the contract at issue.

¶ 56 We further note that American Backflow's argument is analogous to one that has been repeatedly considered in the educational context. Since 2020, numerous parents have sued their children's colleges or universities because some classes were taught virtually rather than in person. The parents have argued that they paid for their children to have access to in-person classes, programs, and services and that they would not have paid as much if they knew that the courses would be virtual. As such, they have insisted that they suffered financial loss and are entitled to a refund for the lesser quality of a remote education.

¶ 57 Federal courts throughout the country have rejected the parents’ arguments. See, e.g., Fiore v. University of Tampa, 568 F. Supp. 3d 350, 365-67 (S.D.N.Y. 2021); Metzner v. Quinnipiac University, 528 F. Supp. 3d 15, 25-27 (D. Conn. 2021); In re University of Miami COVID-19 Tuition & Fee Refund Litigation, 524 F. Supp. 3d 1346, 1354-55 (S.D. Fla. 2021); Espejo v. Cornell University, 523 F. Supp. 3d 228, 235-37 (N.D.N.Y. 2021); Gociman v. Loyola University of Chicago, 515 F. Supp. 3d 861, 865-67 (N.D. Ill. 2021); Salerno v. Florida Southern College, 488 F. Supp. 3d 1211, 1215-17 (M.D. Fla. 2020). These courts have reasoned that parents cannot demonstrate that they have suffered any injury-in-fact traceable to the conduct of the educational institution defendants. See, e.g., Fiore, 568 F. Supp. 3d at 365-67 (parents were not intended third-party beneficiaries of the underlying contracts because the sole beneficiaries of those contracts are the students); Metzner, 528 F. Supp. 3d at 26 (“[I]t is the student and not the parent that has suffered the alleged injury-in-fact that is traceable to the alleged actions of Quinnipiac ***.”); University of Miami, 524 F. Supp. 3d at 1355 (while parents “have a parental interest in their children's education, the education—and the relationship with the university—belongs to the student, not to the parent” and thus the parents fail to allege a concrete injury); Gociman, 515 F. Supp. 3d at 866 (“Once a student reaches the age of majority, courts have routinely held that parents lack standing to bring claims against their adult children's colleges and universities, even when the parents pay tuition on behalf of their children.” (Internal quotation marks omitted.)); Salerno, 488 F. Supp. 3d at 1216-17 (“[T]he lack of injury to [the parent plaintiff] is clear regardless of whether [the parent plaintiff] provided financial support to her daughter. That arrangement was between mother and daughter.”).

¶ 58 Similar to the arguments the parents raised above, American Backflow's only argument as to why it can maintain its breach of contract action against ASSE is because it paid for its employees to receive certification. However, payment alone does not create a contractual relationship with ASSE or make American Backflow an intended third-party beneficiary. See Gociman, 515 F. Supp. 3d at 866.

¶ 59 As such, we agree with ASSE's assessment that no authority supports American Backflow's arguments. Nonetheless, we deem American Backflow's argument—that its employees’ implied contract with ASSE should extend to it as well—to be a good-faith argument, albeit an unpersuasive one. Further, American Backflow attempted to distinguish Salvi in arguing why it was a third-party beneficiary to the underlying contract. Just because one is wrong about the law does not mean that he should be sanctioned for making a losing argument. See Shea, Rogal & Associates, Ltd. v. Leslie Volkswagen, Inc., 250 Ill. App. 3d 149, 154 (1993) (a party need not be correct in his view of the law).

¶ 60 Further, we cannot say that American Backflow brought this appeal for an improper purpose. ASSE asserts that American Backflow has engaged in “lawfare” by bringing numerous frivolous and legally dubious claims, such as the companion case here involving the individual plaintiffs as well as American Backflow I. However, we made no determination that either of those appeals were frivolous. Moreover, cases imposing sanctions generally involve more egregious facts than those present here. See In re Baby Boy, 2025 IL App (4th) 241427, ¶¶ 129-32 (holding that petitioner's attorney's “[f]lagrant and unprincipled use of [artificial intelligence] without ensuring accuracy of the generated response” was an abuse of the adversary system and warranted sanctions); Stolfo v. KinderCare Learning Centers, Inc., 2016 IL App (1st) 142396, ¶¶ 33-34 (imposing sanctions after appellant was warned about filing frivolous motions); see also Black Reef Trust v. Starkman, 2021 IL App (2d) 200134-U, ¶¶ 13-15 (entering rule to show cause as to why sanctions should not be imposed where appellant failed to acknowledge basis of trial court's ruling which undermined entirety of appellant's argument on appeal). Accordingly, we decline ASSE's request that we impose sanctions.

¶ 61 III. CONCLUSION

¶ 62 For the reasons stated, we affirm the judgment of the circuit court of Lake County in appeal Nos. 2-25-0154 and 2-25-0304.

¶ 63 Affirmed.

FOOTNOTES

1.   In a separate action, American Backflow and Dan Harbut sued Hincks for the statements that he made to ASSE, alleging that they were defamatory. The trial court dismissed that complaint, and this court affirmed the dismissal. American Backflow & Fire Prevention, Inc. v. Hincks, 2025 IL App (2d) 250023 (American Backflow I).

2.   ASSE did not revoke Harbut's certification.

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.