                             2014 IL App (2d) 131328
                                  No. 2-13-1328
                         Opinion filed September 29, 2014
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

C. SZABO CONTRACTING, INC.,            ) Appeal from the Circuit Court
                                       ) of Du Page County.
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 10-L-956
                                       )
LORIG CONSTRUCTION COMPANY,            )
                                       )
      Defendant-Appellant              ) Honorable
                                       ) Dorothy French Mallen,
(JLA Construction, Inc., Plaintiff).   ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE ZENOFF delivered the judgment of the court, with opinion.
       Justices Schostok and Hudson concurred in the judgment and opinion.

                                           OPINION

¶1     The Illinois State Toll Highway Authority (Tollway) hired defendant, Lorig Construction

Company (Lorig), to be the general contractor on a construction project on Interstate 355 near

the Des Plaines River. Lorig subcontracted with plaintiff JLA Construction, Inc. (JLA), to install

storm sewers and perform other work. JLA, in turn, subcontracted with plaintiff C. Szabo

Contracting, Inc. (Szabo), to perform pipe-jacking, which involved installing underground storm

sewer pipes using tunneling instead of open excavation. After the pipe-jacking was complete

and no payment was received, Szabo and JLA sued Lorig using various theories, including

breach of contract and unjust enrichment based on quasi-contract. JLA voluntarily dismissed its
2014 IL App (2d) 131328


claims, and only Szabo’s quasi-contract claim went to trial. Following a bench trial, the court

found in Szabo’s favor and entered judgment against Lorig in the amount of $215,400. Because

we conclude that Lorig would be unjustly enriched if permitted to retain the benefit that it

specifically requested and agreed to pay for, we affirm.

¶2                                     I. BACKGROUND

¶3     On May 1, 2006, after the Tollway had hired Lorig as the general contractor on the

Interstate 355 project, Lorig subcontracted with JLA to install storm sewers and perform other

work on the project. The subcontract amount was approximately $2.8 million. On August 31,

2006, as an add-on to the original subcontract, Lorig authorized JLA to perform pipe-jacking.

The approved price for the pipe-jacking was $1,746 per linear foot of pipe.

¶4     After Lorig subcontracted with JLA and authorized it to complete the pipe-jacking, Lorig

discovered that JLA was not a Tollway-approved “Disadvantaged Business Enterprise” (DBE).

This was problematic, because Lorig’s agreement with the Tollway required it to subcontract a

portion of its work to a DBE. Consequently, Lorig sent a letter to JLA requesting that it assign

its subcontract to JLA & Sons, Inc., which was a DBE.

¶5     On March 20, 2007, in follow-up correspondence to JLA, Lorig specifically exempted

the pipe-jacking from the requested assignment to JLA & Sons. Lorig indicated that the pipe-

jacking was not part of the original subcontract and did not need to be completed by a DBE.

Although it would permit JLA to perform the pipe-jacking, Lorig expressed concern over JLA’s

ability to obtain union workers to do the work, as the Tollway required. Lorig threatened to take

over the work if JLA was unable to provide union workers within five days.

¶6     Upon receiving the follow-up correspondence from Lorig, JLA subcontracted the pipe-

jacking work to Szabo. The subcontract price was $266,274, which was calculated at a rate of



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2014 IL App (2d) 131328


$1,746 per linear foot of pipe. On March 22, 2007, Szabo sent a fax on its company letterhead to

Lorig indicating that it had obtained union workers and was “on the job continuing with the

bore,” which referenced the pipe-jacking. Lorig did not respond.

¶7     After the pipe-jacking was complete, JLA and Szabo sent Lorig a number of

communications. On April 10, 2007, JLA submitted to Lorig a lien waiver for completed work.

The waiver identified Szabo as the sub-subcontractor that performed the pipe-jacking. On April

11, 2007, Szabo faxed to Lorig a payment request of $266,274 for the pipe-jacking. On April 30,

2007, Szabo faxed to Lorig certified payroll records related to the pipe-jacking. On May 26,

2007, Szabo faxed to Lorig another payment request. JLA and Szabo received no responses.

¶8     On October 1, 2007, Szabo received a fax from Walter Simpson, Lorig’s senior project

engineer, requesting clarification about certain discrepancies in the “final numbers.” Attached to

the fax cover sheet were four pages that listed the pipe-jacking as well as all work completed

under JLA’s subcontract with Lorig before it was assigned to JLA & Sons. In response, Szabo

faxed invoices and notes explaining the discrepancies, some of which pertained to the pipe-

jacking and some of which pertained to work performed by JLA.

¶9     At the bench trial, Carl Szabo testified as follows. During the course of the Interstate 355

project, he was both president of JLA and vice president of Szabo. On behalf of JLA, Carl

signed the subcontract between JLA and Szabo.          Carl’s brother, James Szabo, signed the

subcontract on behalf of Szabo.      Before the pipe-jacking began, Carl had meetings with

Simpson, during which they discussed the pipe-jacking and “how soon we would be able to get

the proper forces out there to do the work.” According to Carl, Simpson “encouraged us to do

the work.” Carl also spoke with Simpson a couple of times on the job.




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2014 IL App (2d) 131328


¶ 10   Carl testified that Szabo started working on preparations for the pipe-jacking on March 5,

2007, which was before its March 20, 2007, subcontract with JLA.             The subcontract was

executed because Szabo had a contract with a union and could obtain the necessary union

workers. Szabo was on the project for about two months, and Carl was on the job daily.

¶ 11   On cross-examination, Carl acknowledged that, in addition to representing Szabo on the

jobsite, he also worked for JLA and JLA & Sons. To that end, he was on the jobsite during the

course of the entire Interstate 355 project, not just during the pipe-jacking. Carl further admitted

that the workers who started preparations for the pipe-jacking on March 5, 2007, also worked for

JLA.

¶ 12   Carl testified that Szabo was seeking only $215,400 in damages, instead of the full

$266,274 subcontract price, because Lorig paid some of Szabo’s suppliers directly. According to

Carl, under industry custom, Szabo would have paid its own suppliers. One of Szabo’s suppliers

was Elmhurst-Chicago Stone, which supplied concrete pipe and aggregate for the pipe-jacking.

An invoice from Elmhurst-Chicago Stone listed Szabo as the customer. On cross-examination,

Carl acknowledged that some of the other supplier invoices that Lorig paid in connection with

the pipe-jacking listed JLA as the customer.

¶ 13   When asked about the October 1, 2007, fax from Simpson requesting clarification about

the “final numbers,” Carl testified that, of the four pages attached to the fax cover sheet, only

three line items on the fourth page pertained to the pipe-jacking. The majority of the other work

listed was performed by JLA before it assigned its subcontract with Lorig to JLA & Sons. Carl

testified that Szabo never sought payment from JLA and that Lorig never paid either JLA or

Szabo for the pipe-jacking.




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2014 IL App (2d) 131328


¶ 14   David Lorig, president of Lorig, testified as follows.      In August 2006, when Lorig

authorized JLA to perform the pipe-jacking, the work became part of Lorig’s subcontract with

JLA. JLA’s assignment of the subcontract to JLA & Sons contained no exclusion for the pipe-

jacking. Neither JLA nor JLA & Sons notified Lorig that the pipe-jacking had been exempted

from the assignment. David believed that JLA & Sons was the subcontractor responsible for the

pipe-jacking and had in fact performed the work. During the course of the project, David had no

knowledge that Szabo was performing the pipe-jacking.

¶ 15   When asked about the October 1, 2007, fax that Simpson sent to Szabo, David testified

that it was a typical spreadsheet listing all work performed and materials used so that Lorig could

“make sure everybody [was] paid the correct amount.” According to David, Lorig paid for all of

the work that was performed on the project, including the pipe-jacking. At the close of the

project, Lorig paid “the remaining funds due” to JLA & Sons, because it was the subcontractor

with which Lorig had a contract.

¶ 16   David further testified that the Tollway paid Lorig approximately $40 million for the

project, which was payment in full. All work was successfully completed on the project,

including the pipe-jacking.    David acknowledged that a contract price of $266,274 was a

reasonable price for the pipe-jacking.

¶ 17   The trial court ruled in Szabo’s favor. The court found that Lorig knew that Szabo was

performing the pipe-jacking, because, when it needed additional information so that it could

process payment, it sent the October 1, 2007, fax to Szabo. The court further found that,

although Lorig did not entice Szabo to complete the pipe-jacking, it “certainly encouraged them

[sic] to get the people out there and get the work done.” The court found that Lorig had not

guaranteed Szabo that it would be paid for the pipe-jacking. However, the court noted, Szabo



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2014 IL App (2d) 131328


did not perform the work gratuitously and had an expectation of payment, just as “anybody

working on the job expected to be paid.”

¶ 18   The court found that Lorig retained a benefit, because it received payment in full from the

Tollway yet presented no credible evidence that it had paid anyone for the pipe-jacking. The

court did not find credible David’s testimony that Lorig paid JLA & Sons for the pipe-jacking,

noting that Lorig presented no documentation of payment. The court acknowledged that, prior to

trial, it had granted Szabo’s motion in limine to exclude from evidence certain documents related

to payment. 1    However, the court noted, the documents at issue referenced only generic

payments to JLA & Sons and did not indicate that any payment was specifically for the pipe-

jacking. The court reasoned that, if documentation existed establishing that Lorig paid for the

pipe-jacking, it would have been easy to produce.

¶ 19   The court concluded that, under the circumstances, it would violate the principles of

justice, equity, and good conscience for Lorig to retain the benefit it received while paying no

one for it. The court entered judgment in Szabo’s favor in the amount of $215,400. Lorig timely

appealed. 2

¶ 20                                       II. ANALYSIS



       1
           The court granted the motion in limine because Lorig had not timely tendered the

documents during discovery.
       2
           Lorig also appealed the denial of its motion for summary judgment but concedes in its

reply brief that the order is not reviewable on appeal. See Paz v. Commonwealth Edison, 314 Ill.

App. 3d 591, 594 (2000) (“[A]n order denying a motion for summary judgment is not reviewable

after an evidentiary trial, as any error in the denial is merged in the subsequent trial.”).



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2014 IL App (2d) 131328


¶ 21   On appeal, Lorig argues that the trial court applied an incorrect legal standard to the

evidence. According to Lorig, when an express contract exists between a subcontractor and a

sub-subcontractor, the sub-subcontractor may not pursue a quasi-contract claim for unjust

enrichment against a general contractor that has benefited from its work. Lorig maintains that, in

ruling in Szabo’s favor, the trial court improperly determined that a sub-subcontractor may

pursue such a claim if the general contractor has not paid anyone, including the subcontractor

with which it contracted, for the benefit it received.

¶ 22   Szabo responds that, even if Lorig is correct that the trial court applied a standard that is

unrecognized in Illinois, the judgment nevertheless is justified under existing Illinois law.

According to Szabo, quasi-contractual relief is available in the face of an express contract in two

scenarios: (1) when a general contractor entices a sub-subcontractor to perform or (2) when a

general contractor gives a sub-subcontractor a reasonable expectation of payment. Lorig does

not dispute Szabo’s statement of the law but disagrees that this case falls within either scenario.

¶ 23   Generally, a reviewing court will reverse a trial court’s judgment following a bench trial

only if it is against the manifest weight of the evidence. Eychaner v. Gross, 202 Ill. 2d 228, 251

(2002). A judgment is against the manifest weight of the evidence only when the opposite

conclusion is apparent or when the findings are unreasonable, arbitrary, or not based on

evidence. Eychaner, 202 Ill. 2d at 252. However, the issue of whether a trial court applied the

correct legal standard to the evidence presents a question of law, which is reviewed de novo.

Reliable Fire Equipment Co. v. Arredondo, 2011 IL 111871, ¶ 13.

¶ 24   Unjust enrichment is not an independent cause of action but a remedy that can be based

on, among other theories, a contract implied in law, otherwise known as a quasi-contract.

Chicago Title Insurance Co. v. Teachers’ Retirement System of the State of Illinois, 2014 IL App



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2014 IL App (2d) 131328


(1st) 131452, ¶ 17. A contract implied in law, or a quasi-contract, is one in which no actual

agreement exists between the parties but a duty is imposed to prevent unjustness.            Hayes

Mechanical, Inc. v. First Industrial, L.P., 351 Ill. App. 3d 1, 8 (2004). Generally, to be entitled

to the remedy of unjust enrichment in a quasi-contract action, a plaintiff must show that he or she

furnished valuable services or materials and that the defendant received them under

circumstances that would make it unjust to retain the benefit. Hayes Mechanical, 351 Ill. App.

3d at 9. It is not enough that a defendant has received a benefit; rather, circumstances must exist

such that the defendant’s retention of the benefit would violate the fundamental principles of

justice, equity, and good conscience. HPI Health Care Services, Inc. v. Mt. Vernon Hospital,

Inc., 131 Ill. 2d 145, 160 (1989); Hayes Mechanical, 351 Ill. App. 3d at 9.

¶ 25   Ordinarily, the remedy of unjust enrichment based on a quasi-contract is not available

when an express contract exists concerning the same subject matter.             Premier Electrical

Construction Co. v. La Salle National Bank, 132 Ill. App. 3d 485, 496 (1984); Industrial Lift

Truck Service Corp. v. Mitsubishi International Corp., 104 Ill. App. 3d 357, 360 (1982). Instead,

when work is done under a contract, a suit generally must be between the parties to the contract.

Daley v. G’Sell, 102 Ill. App. 3d 548, 551 (1981). Simply because a third party has benefited

from the work does not make that party liable. Daley, 102 Ill. App. 3d at 551; see also

Restatement (First) of Restitution § 110 (1937) (“A person who has conferred a benefit upon

another as the performance of a contract with a third person is not entitled to restitution from the

other merely because of the failure of performance by the third person.”). In other words, a party

performing pursuant to a contract who is disappointed by its co-party’s failure to pay generally

cannot turn to a third party for compensation. Hayes Mechanical, 351 Ill. App. 3d at 10.




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2014 IL App (2d) 131328


¶ 26   The parties here seem to agree that, despite this general rule, quasi-contractual relief is

available in the face of an express contract when a general contractor either has enticed a sub-

subcontractor to perform or has given a sub-subcontractor a reasonable expectation of payment.

However, the parties have not cited, and our research has not uncovered, any Illinois case

permitting quasi-contractual relief in either of these scenarios. Instead, both parties rely on

Midcoast Aviation, Inc. v. General Electric Credit Corp., 907 F.2d 732 (7th Cir. 1990).

¶ 27   In Midcoast Aviation, an aviation company hired the plaintiff to refurbish old planes and

obtained financing from the defendant. Midcoast Aviation, 907 F.2d at 734-35. The plaintiff

wanted assurances that it would be paid, so it went directly to the defendant, which gave the

assurances. Midcoast Aviation, 907 F.2d at 735-36. After it refurbished the planes and received

no payment, the plaintiff sued the defendant under a quasi-contract theory and obtained a verdict

in its favor. Midcoast Aviation, 907 F.2d at 736. The defendant appealed, arguing that quasi-

contractual relief was not available in the face of an express contract between the aviation

company and the plaintiff. Midcoast Aviation, 907 F.2d at 739.

¶ 28   On appeal, the Seventh Circuit noted that typically, “ ‘if you do work pursuant to a

contract with X, you don’t expect that Y, a nonparty, will pay you if X defaults, merely because

Y was benefited by your work.’ ” Midcoast Aviation, 907 F.2d at 739 (quoting Goldstick v. ICM

Realty, 788 F.2d 456, 467 (7th Cir. 1986)). The court determined, however, that this was not a

typical case, because the defendant not only benefited from the plaintiff’s work but also enticed

the plaintiff to undertake the work and fostered an expectation of payment. Midcoast Aviation,

907 F.2d at 739.     The court held that the defendant’s retention of the benefit under the

circumstances constituted unjust enrichment, and it affirmed the judgment in the plaintiff’s favor.

Midcoast Aviation, 907 F.2d at 741.



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¶ 29   No Illinois case has relied on Midcoast Aviation to allow a contracting party to pursue

quasi-contractual relief from a third party who benefitted from the contracting party’s

performance. The only Illinois case that has cited Midcoast Aviation simply distinguished it on

its facts. See Hayes Mechanical, 351 Ill. App. 3d at 10 (affirming the denial of a contractor’s

motion for leave to add quasi-contractual claims to its complaint against a landlord for work

done pursuant to a contract with a tenant). Although Illinois courts have allowed plaintiffs to sue

nonparties to an express contract despite the existence of that contract, these cases have involved

legal theories other than quasi-contract. For example, in Swansea Concrete Products, Inc. v.

Distler, 126 Ill. App. 3d 927, 933 (1984), the court held that subcontractors could prevail in a

promissory estoppel action against property owners who promised payment to the

subcontractors. Similarly, in Redd v. Woodford County Swine Breeders, Inc., 54 Ill. App. 3d

562, 565-66 (1977), the court held that, after a general contractor abandoned his contract with a

property owner, a subcontractor could sue the owner for breach of an express unilateral contract,

which arose when the owner gave assurances of payment on which the subcontractor relied. 3

¶ 30   Moreover, regardless of whether Midcoast Aviation presents an accurate summation of

Illinois law, the case is distinguishable. In that case, the plaintiff was unsure of its co-party’s

ability to pay for the renovation work, so it went directly to the defendant financier for

       3
           The parties also cite Woodfield Lanes, Inc. v. Village of Schaumburg, 168 Ill. App. 3d

763 (1988), as a case recognizing a guarantee of payment as a circumstance permitting a quasi-

contract claim for unjust enrichment. However, no express contract existed in Woodfield Lanes,

which involved an ordinance that required the village to compensate the plaintiff landowner for

expenses incurred in constructing a sewer and a water main. Woodfield Lanes, 168 Ill. App. 3d

at 767-68. Therefore, the case is of little assistance here.



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2014 IL App (2d) 131328


assurances that it would be paid, and it received those assurances. Midcoast Aviation, 907 F.2d

at 735-36. Here, by contrast, the court found that Lorig did not guarantee payment to Szabo.

Although the court noted that Szabo had an expectation of payment just as “anybody working on

the job expected to be paid,” this is far different from requesting and receiving assurances of

payment, as the plaintiff in Midcoast Aviation did.

¶ 31   Furthermore, although the trial court found that Lorig “certainly encouraged them [sic] to

get the people out there and get the work done,” it also found that Lorig did not “entice” Szabo to

complete the pipe-jacking. To the extent that Lorig encouraged anyone to complete the pipe-

jacking, the evidence suggests that it encouraged JLA, not Szabo.                 All of Lorig’s

communications regarding completion of the pipe-jacking occurred prior to March 20, 2007, the

date on which JLA subcontracted the work to Szabo. Moreover, all of Lorig’s correspondence

prior to that date was addressed to JLA, including its letter threatening to take over the pipe-

jacking. Although Szabo sent a fax to Lorig on March 22, 2007, indicating that it was “on the

job continuing with the bore,” Lorig did not respond. In fact, other than the October 1, 2007,

fax, there was no evidence of any communications from Lorig to Szabo.

¶ 32   Similarly, although Carl testified that he met with Simpson to discuss the pipe-jacking

and that Simpson “encouraged us to do the work,” Carl testified that these meetings took place

before the commencement of the pipe-jacking. According to Carl, the pipe-jacking work began

on March 5, 2007, 15 days before JLA subcontracted with Szabo and before there was any

indication that Szabo would be involved in the project. Thus, when he met with Simpson, Carl

must have acted in his capacity as president of JLA, as Szabo was not in any way involved in the

project.   Based on these considerations, to the extent that the trial court found that Lorig




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2014 IL App (2d) 131328


encouraged Szabo to perform the pipe-jacking, its finding is against the manifest weight of the

evidence.

¶ 33   The trial court’s finding that Lorig knew that Szabo was performing the pipe-jacking—a

finding based on Simpson’s October 1, 2007, fax to Szabo—does not alter our conclusion. In

Premier Electrical Construction, the court explained why mere knowledge that work is being

performed is insufficient:

       “As a general rule, the doctrine of unjust enrichment does not apply where the entire

       work is contracted for and placed under a general contractor who has the power to

       employ whom he chooses, because in such circumstances the owner has the right to

       presume that work is being done for and on behalf of the contractor.” Premier Electrical

       Construction, 132 Ill. App. 3d at 496.

Therefore, even if Lorig knew that Szabo was performing the pipe-jacking, this would not entitle

Szabo to pursue a quasi-contract claim against Lorig. Lorig subcontracted the pipe-jacking work

to JLA and had the right to presume that the work was being done for and on behalf of JLA.

¶ 34   In sum, we cannot affirm the trial court’s judgment on the basis that Lorig enticed Szabo

to perform or guaranteed payment. Therefore, resolution of this case turns on whether Szabo

was entitled to quasi-contractual relief because Lorig received the performance it requested but

paid no one for it. Although Lorig maintains that Szabo is not entitled to relief on this basis, it

does not contest the trial court’s finding that it paid no one for the pipe-jacking.

¶ 35   No Illinois case has addressed whether a party to a contract may pursue quasi-contractual

relief against a nonparty to the contract on the basis that the nonparty requested and received a

benefit but has paid no one for it. A number of out-of-state cases have addressed this factual

scenario. Some cases conclude that a party is unjustly enriched when it retains the benefit that it



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2014 IL App (2d) 131328


requested but does not pay anyone for it. See Flooring Systems, Inc. v. Radisson Group, Inc.,

772 P.2d 578 (Ariz. 1989) (holding that a subcontractor could pursue quasi-contractual relief

against a property owner when the owner paid no one for the work for which it contracted with a

general contractor); Morris Pumps v. Centerline Piping, Inc., 729 N.W.2d 898 (Mich. Ct. App.

2006) (holding that a general contractor was unjustly enriched when it retained materials

supplied by a subcontractor’s supplier but paid no one for them); Ontiveros Insulation Co., Inc.

v. Sanchez, 2000-NMCA-051, 129 N.M. 200, 3 P.3d 695 (N.M. Ct. App. 2000) (holding that,

where homeowners had not paid a very “substantial amount” of funds due to a general

contractor, the subcontractors could pursue quasi-contractual relief against the homeowners).

¶ 36   Other cases conclude that a general contractor’s or an owner’s failure to pay for a benefit

received is not sufficient by itself to allow an unpaid subcontractor to recover under an unjust-

enrichment theory. See Bennett Heating & Air Conditioning, Inc. v. Nationsbank of Maryland,

674 A.2d 534, 540-41 (Md. 1996) (holding that a subcontractor’s unjust-enrichment claim

against an owner does “not turn on whether the owner has fully paid the general contractor”);

Farwest Steel Corp. v. Mainline Metal Works, Inc., 741 P.2d 58, 65 (Wash. Ct. App. 1987)

(holding that a subcontractor’s supplier did not unjustly enrich a general contractor even though

the general contractor failed to pay the subcontractor in full for the supplied materials).

¶ 37   Many of the cases addressing this factual scenario contain little discussion, which makes

reasoned analysis of their holdings difficult. In order to determine whether Szabo is entitled to

relief, we must explore the considerations for and against permitting relief in this situation.

Ultimately, we conclude that the considerations in support of permitting relief outweigh the

considerations in opposition.




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¶ 38   In support of permitting relief in this situation is the consideration that, if a general

contractor or a property owner receives the very performance for which it contracted with

another, then, absent some valid defense to payment, it would receive a windfall if allowed to

retain the benefit while paying no one for it.          Reflecting this concern, section 25 of the

Restatement (Third) of Restitution and Unjust Enrichment provides that quasi-contractual relief

to prevent unjust enrichment is available where liability would not subject the defendant to a

“forced exchange.” Restatement (Third) of Restitution and Unjust Enrichment § 25 (2011). The

comments to section 25 explain that, in requiring a party to pay for a benefit that it requested,

“there is in principle no forced exchange to the extent that the defendant’s liability in restitution

is congruent with his own bargain.” Restatement (Third) of Restitution and Unjust Enrichment

§ 25 cmt. b (2011). The comments distinguish this scenario from one in which a defendant has

not requested the performance in question. In the latter situation, permitting recovery would

violate “restitution’s fundamental reluctance to require a defendant to pay money, at a price set

by someone else, for goods and services he had no adequate opportunity to select or to refuse.”

Restatement (Third) of Restitution and Unjust Enrichment § 25 cmt. b (2011).

¶ 39   The availability of quasi-contractual relief in the presence of an express contract often

turns on concerns of double recovery or double liability. See Pendleton v. Sard, 297 A.2d 889,

895 (Me. 1972) (noting that a property owner would be subjected to double liability if required

to pay a general contractor and a subcontractor for the same work); J.R. Kemper, Annotation,

Building and Construction Contracts: Right of Subcontractor who has Dealt only with Primary

Contractor to Recover against Property Owner in Quasi Contract, 62 A.L.R.3d 288 (1975)

(noting the “commonly cited” consideration “that the landowner had already paid to the general

contractor all, or a very substantial part, of the amount due the latter under the terms of the



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primary agreement between them, and that to allow the subcontractor to recover from the

landowner would therefore be to require him to pay twice”). In this vein, a number of courts

have held that, where a general contractor or an owner has paid someone for the benefit received,

there is no unjust enrichment. See, e.g., Commerce Partnership 8098 Ltd. Partnership v. Equity

Contracting Co., 695 So. 2d 383, 390 (Fla. Dist. Ct. App. 1997) (“[W]here an owner has given

consideration for the subcontractor’s work by paying out the contract price for the work, an

unpaid subcontractor’s claim that the owner has been unjustly enriched must fail.”); DJ Painting,

Inc. v. Baraw Enterprises, Inc., 776 A.2d 413, 417-18 (Vt. 2001) (holding that a property owner

was not unjustly enriched where it paid the general contractor for the value of work completed

by a painting subcontractor). These cases imply that, if the general contractor or owner had not

paid anyone for the benefit received, it would have been unjustly enriched. See Restatement

(Third) of Restitution and Unjust Enrichment § 25, Reporter’s Note b (2011) (“Most of these

decisions carry the reasonable implication, even if they do not state directly, that the plaintiff’s

restitution claim would be viable if the benefits in question had not been paid for.”).

¶ 40   Supporting the opposite result is the consideration that, when an express contract exists, it

defines the parties’ duties and allocates the risks between them. One Illinois court has explained

the basis for the general rule that quasi-contractual relief is unavailable in the presence of an

express contract as follows:

       “When parties enter into a contract they assume certain risks with an expectation of a

       return. Sometimes, their expectations are not realized, but they discover that under the

       contract they have assumed the risk of having those expectations defeated. As a result,

       they have no remedy under the contract for restoring their expectations. In desperation,

       they turn to quasi-contract for recovery. This the law will not allow. Quasi-contract is



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       not a means for shifting a risk one has assumed under contract.” Industrial Lift Truck,

       104 Ill. App. 3d at 361.

Some courts have noted that, when a party chooses to contract with only one party, it assumes

the risk that its co-party will not pay. See Hayes Mechanical, 351 Ill. App. 3d at 13 (reasoning,

in part, that a contractor could not pursue quasi-contractual relief against a landlord for services

performed under a contract with a tenant, because the contractor assumed the risk of loss when it

contracted with the tenant alone); Kemp v. Majestic Amusement Co., 234 A.2d 846, 848 (Pa.

1967) (holding that a landlord was not unjustly enriched by services that a contractor performed

for a tenant, because, among other reasons, the contractor relied solely on the financial credit of

the tenant when contracting to perform the services). Permitting a subcontractor to pursue quasi-

contractual relief against a nonparty to a contract in essence allows the subcontractor to shift the

risk of loss to the nonparty. See Kemp, 234 A.2d at 433 (reasoning that the contractor could not

“shift the loss” to a landlord who was a nonparty to the contract).

¶ 41   Another rationale supporting the denial of quasi-contractual relief when an express

contract exists is protection of the “rights of choice and personal autonomy.” Hayes Mechanical,

351 Ill. App. 3d at 11 (citing DCB Construction Co. v. Central City Development Co., 965 P.2d

115, 121 (Colo. 1998)). “[O]rdinarily, an owner [or a general contractor] should not be forced

into a legal relationship with someone other than the partner he has chosen.” Hayes Mechanical,

351 Ill. App. 3d at 11 (citing DCB Construction Co., 965 P.2d at 121).

¶ 42   Having weighed the various considerations for and against permitting quasi-contractual

relief in this situation, we conclude that Lorig’s retention of the benefit of the pipe-jacking

without paying anyone for it constitutes unjust enrichment and that Szabo’s subcontract with

JLA is not a barrier to recovery. Most importantly, Lorig received the exact performance that it



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requested and agreed to pay for, and it does not dispute that it paid no one for the work.

Requiring Lorig to compensate Szabo for the pipe-jacking results in no unfairness or “forced

exchange,” because Lorig is paying for the exact service it requested at the price it agreed to pay.

See Restatement (Third) of Restitution and Unjust Enrichment § 25 cmt. b (2011) (“[T]here is in

principle no forced exchange to the extent that the defendant’s liability in restitution is congruent

with his own bargain.”). Lorig agreed to pay JLA $1,746 per linear foot of concrete sewer pipe

jacked in place, and JLA subcontracted the pipe-jacking to Szabo at that price. At trial, Lorig

conceded that the pipe-jacking was completed satisfactorily and that the total price for the work

was reasonable. Furthermore, Lorig received payment in full from the Tollway. Under these

circumstances, requiring Lorig to compensate Szabo does not violate “restitution’s fundamental

reluctance to require a defendant to pay money, at a price set by someone else, for goods and

services he had no adequate opportunity to select or to refuse.”             Restatement (Third) of

Restitution and Unjust Enrichment § 25 cmt. b (2011).

¶ 43   In addition, under the facts of this case, there is no risk of double liability or double

recovery. JLA dismissed its claims against Lorig more than one year ago and thus would be

unable to obtain a judgment against Lorig. See 735 ILCS 5/13-217 (West 1994) (a party has one

year to refile an action that has been voluntarily dismissed). 1 Likewise, Szabo never requested

payment from JLA and clearly has no intention of seeking relief from it. Thus, there is no risk



       1
           As this court has explained, “[t]he version of section 13-217 in effect is the version that

preceded the amendments to Public Act 89-7 (Pub. Act 89-7, eff. March 9, 1995), which our

supreme court found unconstitutional in its entirety.” Domingo v. Guarino, 402 Ill. App. 3d 690,

698 n.3 (2010).



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that Lorig will be required to pay for the pipe-jacking twice or that Szabo will be compensated

twice.

¶ 44     Furthermore, by obtaining recovery, Szabo is not shifting to Lorig any risk that it

assumed under its subcontract with JLA. In Industrial Lift Truck, the plaintiff assumed the risk

that the party with whom it contracted would exercise its right to terminate the contract before

the plaintiff was fully compensated for work completed. Industrial Lift Truck, 104 Ill. App. 3d at

361. When its co-party terminated the contract, the plaintiff improperly attempted to avoid the

risk by pursuing quasi-contractual relief. Industrial Lift Truck, 104 Ill. App. 3d at 361. Here, by

obtaining relief from Lorig, Szabo is not shifting any similar risk to Lorig.

¶ 45     Although Szabo contracted only with JLA—and thus, strictly speaking, assumed the risk

that JLA might not pay it for the completed pipe-jacking—permitting Szabo to prevail on its

quasi-contract claim does not impose on Lorig any obligation beyond the obligation that it

agreed to incur. The cases that cite a party’s assumption of the risk of nonpayment as support for

denying quasi-contractual relief in the presence of an express contract typically involve a third

party who incidentally benefited from the plaintiff’s performance. See Hayes Mechanical, 351

Ill. App. 3d at 13 (involving a quasi-contract claim against a landlord who neither requested nor

agreed to pay for renovation work performed on behalf of a tenant); Kemp, 234 A.2d at 848

(same). Under those circumstances, shifting the risk of loss to the benefitting third party would

impose on that party an obligation that it never agreed to incur. Here, by contrast, Lorig

specifically requested and agreed to pay for the pipe-jacking.           Thus, requiring Lorig to

compensate Szabo for the pipe-jacking does not exceed the obligation that Lorig agreed to incur.

¶ 46     Similarly, protection of the rights of choice and personal autonomy is not a significant

concern under the facts of this case. Although Lorig chose to contract with JLA, Lorig received



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from Szabo the very performance that it requested and agreed to pay for. JLA subcontracted the

work to Szabo because Lorig threatened to take over the pipe-jacking if JLA could not obtain

union workers within five days and Szabo had a union contract and was able to obtain the union

workers on short notice. Under these circumstances, liability for the benefit Lorig requested and

received cannot be avoided out of concern for its rights of choice and personal autonomy. These

rights have not been violated in any significant sense.

¶ 47   At oral argument, Lorig asked us to impose a requirement that, before a contracting party

in Szabo’s position is entitled to pursue quasi-contractual relief from a nonparty, the party must

have exhausted its contractual remedies.        Some out-of-state cases have imposed such a

requirement. See Commerce Partnership 8098 Ltd. Partnership, 695 So. 2d at 389 (Fla. Dist. Ct.

App. 1997) (imposing two requirements for a subcontractor’s quasi-contract action against an

owner: (1) exhaustion of remedies against the contractor and (2) the owner’s receipt of the

benefit conferred without paying consideration to anyone); Paschall’s, Inc. v. Dozier, 407

S.W.2d 150, 155 (Tenn. 1966) (“[B]efore recovery can be had against the landowner on an

unjust enrichment theory, the furnisher of the materials and labor must have exhausted his

remedies against the person with whom he had contracted ***.”).

¶ 48   We decline to impose an exhaustion-of-contract-remedies requirement under the facts of

this case. As we have discussed, the circumstances of this case render inapplicable the rationales

underlying the general prohibition against quasi-contractual relief in the presence of an express

contract.   Furthermore, our supreme court has recognized that “[t]he doctrine of unjust

enrichment underlies a number of legal and equitable actions and remedies, including the

equitable remedy of constructive trust and legal actions of assumpsit and restitution or quasi-

contract.” HPI Healthcare Services, 131 Ill. 2d at 160. Where, as here, a party seeks money



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damages under an unjust enrichment theory in a quasi-contract action, the plaintiff’s action is

one “at law for a monetary recovery.” Partipilo v. Hallman, 156 Ill. App. 3d 806, 810 (1987).

Thus, the general rule that a party must exhaust its legal remedies before pursuing an equitable

remedy is inapplicable. Partipilo, 156 Ill. App. 3d at 810. We see no reason to require Szabo to

exhaust its contractual remedies before pursuing quasi-contractual relief against Lorig.

¶ 49                                   III. CONCLUSION

¶ 50   We conclude that Lorig’s retention of the benefit it specifically requested and agreed to

pay for, without paying anyone for it, constituted unjust enrichment. Therefore, we affirm the

judgment of the circuit court of Du Page County.

¶ 51   Affirmed.




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