                                Illinois Official Reports

                                       Appellate Court



                      C. Szabo Contracting, Inc. v. Lorig Construction Co.,
                                  2014 IL App (2d) 131328



Appellate Court           C. SZABO CONTRACTING, INC., Plaintiff-Appellee, v. LORIG
Caption                   CONSTRUCTION COMPANY, Defendant-Appellant (JLA
                          Construction, Inc., Plaintiff).


District & No.            Second District
                          Docket No. 2-13-1328


Filed                     September 29, 2014


Held                       Where defendant general contractor entered into a subcontract with
(Note: This syllabus plaintiff for storm sewers and other work on a construction project and
constitutes no part of the plaintiff entered into a sub-subcontract with plaintiff sub-
opinion of the court but subcontractor for the pipe-jacking work related to the storm sewers,
has been prepared by the but defendant did not pay anyone after the sub-subcontractor
Reporter of Decisions completed the pipe-jacking work, the sub-subcontractor sued the
for the convenience of general contractor for unjust enrichment based on a quasi-contract
the reader.)               theory, and the trial court’s judgment for the sub-subcontractor for the
                           full amount due for the pipe-jacking work was affirmed by the
                           appellate court, since even though an unjust enrichment claim based
                           on quasi-contract is generally not available when an express contract
                           governs the same matter, and such an action could not be sustained on
                           the grounds that the general contractor enticed the sub-subcontractor
                           to do the work or guaranteed payment, in the instant case, the
                           circumstances warranted a judgment for the sub-subcontractor,
                           especially when the general contractor’s retention of the benefit of the
                           completed pipe-jacking work without paying anyone amounted to
                           unjust enrichment.



Decision Under            Appeal from the Circuit Court of Du Page County, No. 10-L-956; the
Review                    Hon. Dorothy French Mallen, Judge, presiding.
     Judgment                 Affirmed.


     Counsel on               Pedro Cervantes and Rafael Rivera, Jr., both of Tristan & Cervantes,
     Appeal                   of Chicago, for appellant.

                              James F. McCluskey, Lauryn E. Parks, and Patrick R. Boland, all of
                              Momkus McCluskey, LLC, of Lisle, for appellee.




     Panel                    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 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.



                                                  -2-
¶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 $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.
¶ 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

                                                  -3-
       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.
¶ 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 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


          1
            The court granted the motion in limine because Lorig had not timely tendered the documents
       during discovery.

                                                   -4-
       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
¶ 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, 2014 IL App (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,

           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.”).

                                                      -5-
       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 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.
¶ 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.
¶ 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

                                                  -6-
       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
       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 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

           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.

                                                      -7-
       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 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. v. Sanchez, 2000-NMCA-051, 129 N.M. 200, 3 P.3d 695
       (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.


                                                   -8-
¶ 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 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:



                                                   -9-
                “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 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 848 (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 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

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       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). 4 Likewise, Szabo never
       requested payment from JLA and clearly has no intention of seeking relief from it. Thus,
       there is no risk 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 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 (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

           4
            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).

                                                      - 11 -
       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 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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