2020 IL App (2d) 190446-U No. 2-19-0446 Order filed February 14, 2020
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
GS PROPERTY INVESTMENT GROUP, ) Appeal from the Circuit Court LLC, ) of McHenry County. ) Plaintiff and Counterdefendant- ) Appellee, ) ) v. ) No. 17-LM-329 ) ANNA KUCHARCZYK, BARTLOMIEJ ) KUCHARCZYK, and UNKNOWN ) OCCUPANTS, ) ) Defendants ) ) Honorable (Anna Kucharczyk and Bartlomiej Kucharczyk, ) Michael J. Chmiel, Defendants and Counterplaintiffs-Appellants). ) Judge, Presiding. _________________________________________________________________________
JUSTICE ZENOFF delivered the judgment of the court. Justices McLaren and Hutchinson concurred in the judgment.
ORDER
¶1 Held: The appellate court held that the plaintiff failed to prove its claim for back rent; the appellate court affirmed the trial court’s judgment in favor of the plaintiff on the defendants’ counterclaim, where Bartlomiej failed to prove the elements of either quantum meruit or unjust enrichment and Anna was bound by a written lease.
¶2 Defendants and counter-plaintiffs, Anna Kucharczyk and Bartlomiej Kucharczyk (Bart),
appeal an order of the circuit court of McHenry County finding in favor of plaintiff and counter- 2020 IL App (2d) 190446-U
defendant, GS Property Investment Group, LLC, following a bench trial for forcible entry and
detainer. In the same trial, the court also found against defendants on their counterclaim for unjust
enrichment and quantum meruit. Defendants appeal that order as well. We affirm in part and
reverse in part.
¶3 I. BACKGROUND
¶4 On May 31, 2012, plaintiff and Anna entered into a written lease for residential property
located at 9823 Compton Drive, Huntley, Illinois (the property). The lease term was 24 months
commencing on June 4, 2012. The first month’s rent was $2043. Thereafter, the monthly rent was
$2270. Paragraph 4 of the lease provided that Anna’s husband Bart and their children were also
permitted to occupy the property. Paragraph 10 provided that Anna was responsible for repairs
under $5000 and that plaintiff would not honor any charges not specifically authorized in writing.
Paragraph 12 provided that the residence was rented in “as-is” condition. Paragraph 16 was titled
“Surrender and Holdover,” although that paragraph did not address a holdover situation. However,
paragraph 28 A provided that, in the event of default, plaintiff could “continue this Agreement ***
and continue to enforce all of Owner’s rights and remedies under the terms hereof, including the
right to recover the rent specified herein as it becomes due.”
¶5 Simultaneously with the execution of the lease, plaintiff and Anna executed an “Option to
Purchase Property” for $25,000 consideration. The property specified was the Huntley residence,
and the ultimate purchase price was $165,000. Anna never exercised the option.
¶6 When Anna took possession of the property under the lease, it lacked a furnace, air
conditioning, water, hot water heater, flooring, kitchen fixtures, and toilets. The property had been
in foreclosure, and plaintiff purchased it from the bank for $145,199. Bart, who was a carpenter
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and was also experienced in related trades, began making repairs. Plaintiff did not authorize those
repairs in writing.
¶7 On May 5, 2017, plaintiff filed an action against Anna, Bart, and “unknown occupants” for
forcible entry and detainer. The complaint alleged that the monthly payments were modified to
$2400 beginning on April 1, 2015, and that Anna had made “some partial payments” since January
2015. Plaintiff alleged that the total amount of back rent due was $24,610. Anna and Bart both
counterclaimed for unjust enrichment and quantum meruit, seeking in excess of $20,000 for repairs
that they made to the property. On May 23, 2017, defendants surrendered possession of the
property.
¶8 On December 3, 2018, the matter proceeded to a bench trial on plaintiff’s claim for back
rent and defendants’ counterclaim. Guennadi “Gene” Barshai, plaintiff’s manager, was plaintiff’s
first witness. Barshai testified that defendants asked plaintiff to purchase a property for them.
Plaintiff told defendants to find a property. Defendants chose the Huntley property, which was in
foreclosure. Plaintiff purchased that property and then entered into a rent-to-buy arrangement with
Anna.
¶9 Barshai identified the lease and its essential terms. He testified that he increased the rent in
April 2015, because past rent payments were “unstable.” Also, he said, when the option to purchase
expired, the parties commenced a “month-to-month” lease. According to Barshai, other than rent,
all provisions of the written lease remained the same. With respect to the option, Barshai testified
that Anna paid $25,000 consideration, but because she could not get financing, they never closed
the transaction. Under the terms of the option agreement, Anna forfeited the $25,000.
¶ 10 Barshai testified that he kept a ledger showing Anna’s rent payments. However, as he
testified on direct examination to the various monthly payments contained therein, he became
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confused and admitted that his ledger was not accurate. He stated that he would have to look at his
computer, which contained all of the information. Barshai then testified that, as of January 1, 2015,
Anna was current with rent. He testified that as of the trial date, he thought that she owed “about”
$27,000. Barshai said that it would be possible to calculate the exact amount of rent still owed by
using the ledger and a calculator. However, he did not perform that function while he was on the
witness stand. On cross-examination, Barshai identified a receipt that he gave Anna for $2900
dated March 21, 2012. Barshai did not record that amount in the ledger, nor did he know what it
represented. Barshai testified that he allowed Anna to “catch up” when she became delinquent, but
that, “from 2015 [on], [she was] never current.” Barshai testified that plaintiff eventually sold the
property to a third party for $249,000.
¶ 11 Next, plaintiff called Anna as a witness. Anna testified that she spoke Polish and that her
English was limited. She admitted that she signed the lease. However, she testified that Barshai
“was like the bank for us” and that the monthly rent payment was actually in the nature of a
mortgage payment. On cross-examination, Anna testified that the receipt for $2900 that Barshai
gave her in March 2012 was for earnest money that she paid at the closing when plaintiff purchased
the property from the bank. According to Anna, Barshai gave her and Bart the “okay” to start
remodeling the property at the beginning of June 2012. With that, plaintiff rested.
¶ 12 Defendants called Bart as a witness. Bart testified that he was a Polish national living in
the United States as a resident. He testified that he was experienced in carpentry, tile work framing,
small electrical work, small plumbing work, and “everything around the house.” Bart testified that
he was currently self-employed. According to Bart, when they moved into the property, it was
“doors only, and there was no furnace, no air-conditioning *** no water connected, [and] no gas
connected.” He also testified that the house had missing toilets, no carpets, part of a hardwood
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floor, and no appliances. Bart identified photographs of all the repairs and remodeling that he did
in the property. Bart also testified to many outside improvements that he made. Bart testified that
his work on the premises was not a “gift” to plaintiff. Bart also testified that Barshai was aware of,
and approved, his remodeling.
¶ 13 After Barshai served defendants with the five-day notice, Bart created “invoices” totaling
$42,646 for the work that he did to the property. According to Bart, those invoices reflected his
labor and material. Over objection, the court admitted the invoices into evidence.
¶ 14 Bart testified that he paid $2500 in rent by check in January 2015 and $4100 in rent in cash
in February 2016. He had bank statements showing the withdrawals but not the payee. On cross-
examination, Bart testified that he did not ask Barshai for a receipt for the cash because he trusted
him. Bart testified that the invoices that he prepared were “pretty much” just his estimates of the
work that he performed, the hours of labor, and the cost of materials. Bart admitted that he did not
present the invoices to plaintiff for payment. Bart also admitted that he had no contemporaneous
documentation of his work on the property. Defendants then rested.
¶ 15 Plaintiff called Barshai as a rebuttal witness. According to Barshai, plaintiff painted and
repaired the property after defendants vacated it. Barshai testified that defendants never asserted
that they had a mortgage on the property while they were tenants. Barshai also testified that he
never authorized Bart in writing to perform any work on the property.
¶ 16 The court analyzed the transaction as a simple lease, as the option to purchase was not at
issue. The court found that defendants acquired no ownership interest in the property. The court
credited Anna with Bart’s payments of $2500 and $4100 and then found that plaintiff was entitled
to back rent in the amount of $16,410. The court found in favor of plaintiff and against defendants
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on their counterclaim without making any findings, except that Anna was a holdover tenant.
Following denial of defendants’ motion to reconsider, defendants filed a timely notice of appeal.
¶ 17 II. ANALYSIS
¶ 18 A. Plaintiff’s Claim for Back Rent
¶ 19 Anna contends that the court’s determination that she owed $16,410 for back rent is against
the manifest weight of the evidence. Credibility of the witnesses is a matter for the trial court’s
determination, and we will not disturb such determination unless it is against the manifest weight
of the evidence. Orchard Shopping Center, Inc. v. Campo, 138 Ill. App. 3d 656, 665 (1985).
¶ 20 Here, the court based its decision on Barshai’s testimony that Anna owed “about” $27,000.
The court then gave Anna credit for two rent payments that Bart made. Deducting Bart’s two
payments totaling $6600 would reduce Anna’s arrearage to $20,400. The court did not explain
how it arrived at its judgment of $16,400. Anna argues, in part using plaintiff’s ledger, that she
actually overpaid rent.
¶ 21 Barshai testified that the ledger did not accurately reflect rent payments. He explained that
checks bounced and payments were missed and made up, so that the ledger inaccurately reflected
a surplus at one point. When plaintiff’s counsel asked Barshai whether Anna was current as of
January 1, 2015, Barshai answered: “January 1st, I believe close to this. I don’t have all information
[sic]. It’s on my computer. But I think it’s pretty much the same, they covered everything.”
Plaintiff’s counsel asked Barshai how much Anna owed as of the date of trial, and he answered:
“As of this date, about 2700, I think. I cannot—” Then, Barshai corrected the figure to $27,000.
He said that he could arrive at that number if he “worked with” a calculator. On cross-examination,
Anna’s counsel asked Barshai what a receipt for $2900 that he gave Anna in March 2012
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represented. Barshai testified that it was not for the closing when plaintiff purchased the property,
and then he said that he would have to “take a look at my account to see [what] it was.”
¶ 22 We hold that Barshai’s testimony was insufficient to establish the amount of back rent.
Barshai admitted that his ledger was inaccurate, he did not have all the information, and he could
not recall why he had given Anna a receipt for a significant amount of money. When he was asked
whether he could figure the back rent with a calculator, Barshai said that he could, but he was not
given a calculator and asked to do it. Instead, he testified that he “thought” that Anna owed “about”
$27,000.
¶ 23 Recovery for breach of a lease is limited to the amount due at the time of trial. Miner v.
Fashion Enterprises, Inc., 342 Ill. App. 3d 405, 416 (2003). Yet, at trial, Barshai did not know the
exact amount due. In 612 North Michigan Avenue Building Corp. v. Factsystem, Inc., 54 Ill. App.
3d 749, 753 (1977), the plaintiff’s witness’s testimony was found credible where there was no
“suggestion that he used the wrong figures in arriving at his computation of the rent due and
owing.” Factsystem, 54 Ill. App. 3d at 753. Here, by Barshai’s own admission, the figures on his
ledger were wrong, and he could arrive at a correct computation only by looking at his computer,
which he did not have available, or by using a calculator on the witness stand, which he did not
do. Moreover, after giving Anna credit for $6600, the court found that she owed $16,410. The
record does not show where that figure came from, as a deduction of $6600 from $27,000 leaves
$20,400. Accordingly, we determine that the court’s finding that Anna owed $16,410 in back rent
is against the manifest weight of the evidence.
¶ 24 B. The Counterclaim
¶ 25 Plaintiff argues that defendants cannot sue in quasi-contract because they had a written
lease. Generally, where parties have an express contract, there can be no quasi-contractual
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recovery. Stark Excavating, Inc. v. Carter Construction Services, Inc., 2012 IL App (4th) 110357,
¶ 38. That is certainly true of Anna. However, Anna maintains that the lease terminated in June
2014 and that there was no provision for a holdover.
¶ 26 The court found that Anna was a holdover tenant. We agree. Anna ignores paragraph 28 A
of the lease, which provided that, in the event of a default, plaintiff could “continue this Agreement
*** and continue to enforce all of Owner’s rights and remedies under the terms hereof, including
the right to recover the rent specified herein as it becomes due.” Barshai testified that he elected
to treat Anna as a holdover tenant under all of the provisions of the lease. If a lessee holds over
after the expiration of a lease, the lessor has the right to decide whether to treat the lessee as a
holdover tenant. Bransky v. Schmidt Motor Sales, Inc., 222 Ill. App. 3d 1056, 1061 (1991). In the
absence of contrary evidence, there is a presumption of a holding over under the terms of the
original lease. Bransky, 222 Ill. App. 3d at 1061.
¶ 27 Then, when plaintiff increased the rent in April 2015, and Anna stayed in the premises, she
assented to that new term, but was subject to the original lease as amended by that term. See Sheriff
v. Kromer, 232 Ill. App. 589, 593 (1924) (if holdover tenant remains after notice of a change in
terms, he or she is treated as subject to the original lease as amended by such notice). Despite
Anna’s testimony that her monthly payments were mortgage payments, she remained a tenant and
never became a vendee, because she never effectively exercised the option to purchase the
property. See Chapman v. Brokaw, 225 Ill. App. 3d 662, 667-68 (1992) (defendants remained
renters because of their failure to exercise option to purchase).
¶ 28 Bart, however, was not a party to the lease. Nevertheless, plaintiff argues that Bart’s
counterclaim fails, because (1) Bart was an “integral part” of the lease transaction and should be
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bound by the term of the lease that allowed plaintiff to retain all fixtures, (2) Bart improved
property knowing that he did not own it, and (3) Bart did not prove damages.
¶ 29 The court made no factual findings with respect to the counterclaim, other than Anna was
a holdover tenant. The court also commented that defendants did not allege any fraud or
wrongdoing on plaintiff’s part. The facts are not in dispute. In sum, defendants entered into a
transaction for the purchase of a single-family dwelling that allowed them to skirt traditional
mortgage requirements. (Anna testified that Barshai was like the bank.) However, in so doing,
defendants also gave up any consumer protections that might attach to a traditional transaction.
For instance, as a condition of extending financing to a buyer, the government can require a seller
to make repairs. Dodson v. Nink, 72 Ill. App. 3d 59, 63 (1979). In consequence of defendants’
decision to bypass conventional financing, Bart undertook to restore the premises himself. He now
looks to equity for relief. Where there is an obligation or duty and a receipt of a benefit related to
such duty, the law may imply a promise to pay from the circumstances or the relation of the parties.
Arthur Rubloff & Co. v. Drovers National Bank of Chicago, 80 Ill. App. 3d 867, 875 (1980). Such
a promise is fictitious, and it arises by implication of law wholly apart from the usual rules relating
to contracts. Arthur Rubloff, 80 Ill. App. 3d at 875. This “promise” exists where there is a “plain
duty and a consideration.” Arthur Rubloff, 80 Ill. App. 3d at 875.
¶ 30 Bart counterclaimed for quantum meruit and unjust enrichment. “Unjust enrichment” is
not a separate cause of action that, standing alone, justifies an action for recovery. Martis v.
Grinnell Mutual Reinsurance Co., 388 Ill. App. 3d 1017, 1024 (2009). Rather, the doctrine of
unjust enrichment underlies a number of legal and equitable actions and remedies. Martis, 388 Ill.
App. 3d at 1024. “Unjust enrichment” is a “condition” that results from unlawful or improper
conduct as defined by law, such as fraud, duress, or undue influence, and may be redressed by a
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cause of action based upon that improper conduct. Martis, 388 Ill. App. 3d at 1024. When an
underlying claim of fraud, duress, or undue influence is deficient, a claim for unjust enrichment
fails. Martis, 388 Ill. App. 3d at 1024. For a cause of action based on unjust enrichment to exist,
the plaintiff must establish a duty on the part of the defendant to act and the defendant’s failure to
meet that duty. Martis, 388 Ill. App. 3d at 1025.
¶ 31 “Quantum Meruit” exists in the absence of a contract, and it describes a cause of action
seeking recovery for the reasonable value of services nongratuitously rendered. Jameson Real
Estate, LLC v. Ahmed, 2018 IL App (1st) 171534, ¶ 60. To recover under quantum meruit, a
plaintiff must prove that (1) it performed a service to the benefit of the defendant, (2) it did not
perform gratuitously, (3) the defendant accepted the service, and (4) no written contracted existed
that prescribed payment for the service. Jameson, 2018 IL App (1st) 171534, ¶ 60. In addition to
the above discussion, quantum meruit is distinguished from unjust enrichment in the way damages
are calculated. Jameson, 2018 IL App (1st) 171534, ¶ 60. In an action for quantum meruit, the
measure of damages is the reasonable value of the work and material provided. Jameson, 2018 IL
App (1st) 171534, ¶ 60. In a claim for unjust enrichment, recovery is limited to the benefit
acquired. Herbert W. Jaeger & Assoc. v. Slovak American Charitable Assn., 156 Ill. App. 3d 106,
111 (1987). After a bench trial, the court’s findings of fact will not be disturbed unless they are
against the manifest weight of the evidence. Jameson, 2018 IL App (1st) 171534, ¶ 59.
¶ 32 We first address plaintiff’s contention that Bart should be bound by the lease. Plaintiff cites
no authority for its argument that equity and good conscience can bind a nonsignatory to a lease.
Consequently, plaintiff has forfeited this argument. See In re Marriage of LaRocque, 2018 IL App
(2d) 160973, ¶ 62 (failure to cite relevant authority results in forfeiture of the argument). We next
address Bart’s contentions.
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¶ 33 1. Unjust Enrichment
¶ 34 Bart relies on one case, Pope v. Speiser, 7 Ill. 2d 231 (1955). In Pope, the plaintiff married
the defendant’s daughter, and the newlyweds took possession as tenants of a farm owned by the
defendant. Pope, 7 Ill. 2d at 235. With the defendant’s knowledge and consent, and upon the
defendant’s repeated statements that the farm would someday belong to the plaintiff’s wife, the
plaintiff made extensive improvements to the property using his own money. Pope, 7 Ill. 2d at
236. Then, the plaintiff’s wife went back home to her parents. Pope, 7 Ill. 2d at 236. The defendant
contracted to sell the farm with all its improvements to a third party, and the defendant terminated
the plaintiff’s tenancy. Pope, 7 Ill. 2d at 236-37. The plaintiff sued for specific performance of
what he claimed was the parties’ contract for the defendant to leave the farm to the plaintiff’s wife.
Pope, 7 Ill. 2d at 234-35. The trial court denied relief on the ground that the alleged contract was
not sufficiently definite and certain. Pope, 7 Ill. 2d at 242. Our supreme court agreed that the
contract was too vague but held that the plaintiff was entitled to an equitable lien on the property.
Pope, 7 Ill. 2d at 242. The supreme court held that the uncontradicted facts proved unjust
enrichment and that neither party expected the plaintiff’s expenditures to be a gratuity. Pope, 7 Ill.
2d at 237.
¶ 35 Pope is readily distinguishable from the present case. Here, plaintiff made no promises to
Bart concerning Bart’s future ownership of the property. Bart’s only expectation was that Anna
would own the property if she exercised the option to purchase. Defendants never suggested that
Anna’s failure to exercise the option was procured through plaintiff’s fraud. Indeed, some 30 pages
of emails between Anna and Barshai establish that Barshai was eager, almost desperate, to
schedule the closing because he had his own financial obligations to meet, but Anna could not get
financing.
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¶ 36 Plaintiff relies on Worley v. Ehret, 36 Ill. App. 3d 48 (1976). In Worley, the defendant
occupied an improved tract of land, pursuant to a spurious deed, that was within the boundaries of
the plaintiff’s property. Worley, 36 Ill. App. 3d at 51. The appellate court held that the defendant
was not entitled to the value of her improvements, because she acted in bad faith in failing to
examine her chain of title and in failing to ascertain that the land which she occupied was the same
as that described in her deed. Worley, 36 Ill. App. 3d at 59. Here, plaintiff concludes that Bart
similarly acted in bad faith when he made the improvements without ascertaining that Anna did
not own the property. As noted, both Anna and Bart testified that the rent payments were mortgage
payments, indicating that they thought that they owned the property. However, if they sincerely
held that belief, it was not justified. The transaction between plaintiff and Anna unequivocally was
a lease with an option to buy. Anna’s emails show that she understood the contractual arrangement.
Nor could Anna have believed that she exercised the option where her own emails acknowledged
her inability to close for lack of financing. Apart from the contract provisions, plaintiff made no
other promises that defendants would someday own the property. Accordingly, we cannot say that
the trial court’s judgment in favor of plaintiff on the unjust enrichment count of the counterclaim
was against the manifest weight of the evidence.
¶ 37 2. Quantum Meruit
¶ 38 As noted, to recover under quantum meruit, a plaintiff must prove that (1) it performed a
service to the benefit of the defendant, (2) it did not perform gratuitously, (3) the defendant
accepted the service, and (4) no written contracted existed that prescribed payment for the service.
Jameson, 2018 IL App (1st) 171534, ¶ 60. Bart argues that he proved all four elements. Plaintiff
disputes that Bart proved that he did not perform gratuitously. Plaintiff argues that, while Bart
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testified that his improvements were not a gift, he also testified that he never sought payment until
after defendants were evicted. Plaintiff also argues that Bart failed to prove damages.
¶ 39 Even if Bart’s improvements were not gratuitous, we agree that he failed to prove damages.
In a quantum meruit claim, recovery is limited to the reasonable amount that the defendant was
enriched at the expense of the plaintiff. Jameson, 2018 IL App (1st) 171534, ¶ 64. The plaintiff
must provide a basis for assessing damages with a “fair degree of probability.” Jameson, 2018 IL
App (1st) 171534, ¶ 64. Uncontroverted testimony regarding amounts paid is admissible as proof
of damages. Mor-Wood Contractors, Inc. v. Ottinger, 205 Ill. App. 3d 132, 144 (1990). Here, Bart
did not have any receipts for the materials that he used in making the improvements. Nor did he
keep contemporaneous time and material records. The “invoices” that he created after the eviction
were made in anticipation of litigation, and he admitted that they were just estimates. This is in
contrast to Mor-Wood, where the plaintiff’s bookkeeper testified to expenditures that were
recorded in a ledger contemporaneously with the transactions. Mor-Wood, 205 Ill. App. 3d at 143-
44. Accordingly, we determine that the court’s judgment in plaintiff’s favor on the quantum meruit
count of the counterclaim is not against the manifest weight of the evidence.
¶ 40 III. CONCLUSION
¶ 41 For the reasons stated, we affirm the judgment in plaintiff’s favor on the counterclaim, and
we reverse the judgment on plaintiff’s complaint for back rent.
¶ 42 Affirmed in part; reversed in part.
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