Jameson Real Estate, LLC v. Ahmed ( 2019 )

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Jameson Real Estate, LLC v. Ahmed, 2018 IL App (1st) 171534Appellate Court JAMESON REAL ESTATE, LLC, and ART COLLAZO, Plaintiffs,
Caption v. AQUEEL AHMED and EURO COLLISION, INC., Defendants
(Jameson Real Estate, LLC, Plaintiff-Appellee, v. Aqueel Ahmed,
Defendant-Appellant).
District & No. First District, Fourth Division
Docket No. 1-17-1534
Filed September 28, 2018
Decision Under Appeal from the Circuit Court of Cook County, No. 2014-L-10486;
Review the Hon. Margaret Ann Brennan, Judge, presiding.
Judgment Affirmed.
Counsel on Richard M. Craig, of Law Offices of Richard M. Craig, P.C., of
Appeal Chicago, for appellant.
Hal. R. Morris and Michael A. Jacobson, of Saul Ewing Arnstein &
Lehr LLP, of Chicago, for appellee.
Panel JUSTICE GORDON delivered the judgment of the court, with
opinion.
Presiding Justice McBride and Justice Burke concurred in the
judgment and opinion.
OPINION
¶1 In this appeal, defendant Aqueel Ahmed claims the trial court erred in entering judgment
after a bench trial in favor of plaintiff Jameson Real Estate, LLC (Jameson), on plaintiff’s
quantum meruit claim that Ahmed failed to compensate Jameson for brokerage services it
provided to Ahmed in the purchase of certain real property. For the following reasons, we
affirm.
¶2 I. BACKGROUND
¶3 A. Complaint and Answer
¶4 Plaintiffs filed a complaint for real estate brokerage fees on October 8, 2014. After a
motion to dismiss for failing to state a cause of action was granted, plaintiffs filed an amended
complaint on April 21, 2015. The amended complaint contained five counts: (I) breach of
agreement, (II) breach of verbal agreement, (III) unjust enrichment, (IV) quantum meruit, and
(V) fraud. The only count at issue on this appeal is plaintiff’s quantum meruit claim against
defendant Ahmed.
¶5 In this count, plaintiff alleges that it is a real estate brokerage firm that employs plaintiff
Art Collazo, who submitted an offer to purchase White Glove Car Wash (car wash) from
Yoder, Inc., with an option to purchase the underlying real property from Terraco, Inc.
(Terraco). After negotiating with Terraco for several months, Collazo was introduced to
defendant Ahmed, owner of defendant Euro Collision, Inc. (Euro Collision), as a potential
partner for purchasing both the business and real property. Before being introduced to Collazo,
Ahmed was not aware that the business or real property was for sale. On October 31, 2012,
Collazo and Ahmed signed a Confidentiality and Non-Disclosure Agreement (confidentiality
agreement). After this agreement was executed, Collazo provided Ahmed with information
about the business and property. Ahmed told Collazo he was interested in purchasing the
business and property on behalf of his company, Euro Collision, Inc. In February 2013,
Collazo told Ahmed that he would release his rights to the partnership established in the
confidentiality agreement if Ahmed or his corporation, Euro Collision, paid plaintiff Jameson,
Collazo’s employer, a 5% commission as their broker when purchasing the business and
property. Ahmed orally agreed. Ahmed purchased the real property and car wash on behalf of
Euro Collision,1 based on the information provided to Ahmed by Collazo and for which
1
Ahmed testified that he purchased the real property in his individual capacity for $2.34 million as
part of a $2.479 million transaction that included the assets of the car wash business in addition to the
property itself. Defendant Ahmed stipulated at trial that SS 2130, an LLC owned by Ahmed, took title
to the property.
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Jameson was not compensated. Plaintiff Jameson alleged that the reasonable value of its
services to defendants was $115,000.2
¶6 Defendants Euro Collision and Ahmed each filed an answer, denying all the allegations
contained in count IV of plaintiffs’ amended complaint.
¶7 B. Trial
¶8 The matter proceeded to trial on May 22, 2017. Plaintiff Collazo and defendant Ahmed
each testified on their own behalf, and Robert Swanson, an employee of Terraco, testified on
plaintiffs’ behalf. Plaintiffs voluntarily dismissed defendant Euro Collision, Inc., from the suit
prior to trial since the corporation never took title to the business or real property.
¶9 1. Art Collazo
¶ 10 Art Collazo testified that he has been a licensed real estate broker in Illinois for 23 years,
was vice president of sales for Jameson, and is authorized to enter into contracts on the
company’s behalf. Collazo specializes in off-market commercial properties. Collazo explained
that a property is off-market when it is not publicly listed. To broker the sale of off-market real
estate, Collazo “pound[s] the pavement” to locate properties, finds purchasers for those
properties, and then negotiates “sales price, terms,*** anything that get[s] the deal down the
path and gets both sides talking and mutually agree.” According to Collazo, he is known as
“one of the top guys in the city to find off market property.”
¶ 11 When Collazo represents a purchaser on an off-market property, it is usual and customary
for the purchaser to pay his brokerage commission. An average brokerage commission is 10%
for a business and 6% for real property. The rate of commission can vary based on how many
people are involved, the fees, and the structure of the agreement. When Collazo is himself
planning to be a partner in a transaction, his compensation depends on his role in the
transaction and his capital contribution. This commission is paid at the closing of the
transaction in either the disbursements of the closing proceeds or a separate payment. The
commission is paid to Jameson, not to Collazo in his individual capacity.
¶ 12 While it is typical for Collazo to have a written agreement regarding the brokerage
commission, he does some work without a written agreement and performs brokerage services
before the agreement is signed in many instances. When he presents an opportunity to a client,
he asks them to sign a confidentiality agreement before he provides them information about the
property.
¶ 13 Collazo testified that, in addition to his work as a broker with Jameson, he purchases
businesses and real property in an individual capacity. Collazo purchases a business only if he
can own or control the real property component and the real property component is valuable
even if the business fails, so he has an “exit plan.” He has owned several businesses, including
a development company, a contracting company to build for his development company, and
two food establishments. He has developed over 60 buildings in Chicago, and his development
2
Collazo testified that he negotiated for Ahmed to purchase the real property for $2.3 million;
$115,000 is 5% of $2.3 million. Collazo did not testify to the price he negotiated for the car wash
business.
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company has also developed buildings for other developers. He does not currently own any
businesses.
¶ 14 Collazo was a customer of the car wash for over 10 years and knew Harold Yoder, the
owner of the car wash. Collazo repeatedly expressed to Yoder his desire to purchase the car
wash. Collazo believed purchasing the car wash would diversify his real estate portfolio and
provide a steady stream of income. In 2011 or 2012, Collazo initiated talks with Yoder about
the sale of the car wash. At Collazo’s request, Yoder provided him with the financial
information about the property. Collazo learned that the real property on which the car wash
business was located was owned by Terraco, a development company. Collazo informed Scott
Gendell, the president of Terraco, of his interest in purchasing the property. Collazo negotiated
directly with Robert Swanson, Terraco’s chief financial officer, while his attorneys modified
the terms of the purchase option agreement that was never executed.
¶ 15 The draft of the proposed purchase agreement for the property admitted into evidence is
dated April 1, 2012, and identifies the seller as White Glove Center, Limited Partnership, an
entity controlled by Terraco, and the purchaser as WGC, LLC (WGC), an LLC that Collazo’s
attorney was then in the process of forming. The asking price was $2.65 million on the real
estate. Collazo did not execute the purchase option with Terraco, because he had not
completed his negotiations with Yoder for the purchase of the business itself. Collazo was
“having a very difficult time deciphering” the profits and losses of the car wash and placed the
negotiations with Terraco “on hold” until he could better understand the car wash business.
¶ 16 In the fall of 2012, Collazo asked Matt Katsaros, one of Jameson’s “top commercial
brokers,” if Katsaros could recommend an individual who understood the car wash business.
Katsaros recommended defendant Ahmed as an individual with “a lot of money,” who had
previously owned and sold car washes. Ahmed had previously employed Jameson as his
broker in the purchases of two listed properties under a written agreement, and the
commissions for those purchases were paid from the seller’s proceeds. Collazo decided to
contact Ahmed about either partnering with Collazo to purchase the property or having Ahmed
employ Collazo as a broker in purchasing the property. Katsaros contacted Ahmed to
determine if he was interested. Ahmed agreed to meet Collazo, but before sharing information
about the property, Collazo required Ahmed to sign a confidentiality agreement. Katsaros
e-mailed this agreement to Ahmed. It was standard practice for Collazo to ask potential
purchasers in off-market transactions to sign these agreements, which prevented the other
party from “go[ing] behind” Collazo to purchase the property without compensating him and
allowed Collazo to recover the information if the other party lost interest in the property, so he
could quickly distribute it to another potential purchaser.
¶ 17 The “Confidentially and Non-Disclosure Agreement” was admitted into evidence and was
signed by Collazo and Ahmed. The three parties to the agreement were Ahmed, Collazo, and
WGC. The first page of the confidentiality agreement established that the parties were
“exploring the possible transaction” and that the recipient was required to agree to the
confidentiality requirements as “conditions precedent to receiving information concerning the
company.” He described the second paragraph as an “acknowledgment” of the work Collazo
had already performed to acquire the information and initiate negotiations with the seller. The
paragraph titled “Indemnification” states that the recipient is “not supposed to use the
information to further [himself] on this or enrich [himself] on this transaction” and establishes
certain liability expenses and penalties for doing so. The seventh section establishes that if the
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recipient is “not going to move forward” with the deal, then he or she must return the
information to Collazo.
¶ 18 The “Indemnification” paragraph of the agreement states that
“[t]he recipient will hold harmless the Company and its managers, members, assigns,
agents, and affiliates (collectively the ‘indemnitee’) from any liabilities and expenses
including but not limited to attorneys’ and accountants’ fees, investigation costs, travel
costs, transcript costs, disbursements, settlement amounts, judgment, fines or penalties,
which any Indemnitees incur in connection with any claims, actions, suits, or
proceedings, (whether civil, criminal, administrative, or investigative, including all
associated appeals) in which it is determined by a court of competent jurisdiction that
Recipient breach its confidentiality and obligations set forth in this Agreement.”
¶ 19 The seventh paragraph, titled “Return of Data-No Use,” states that
“[i]f the Recipient does not enter into any transaction with the Company, upon request
of the Company, the Recipient immediately will return to the company, or in the event
that any materials contain the Recipient’s analysis of the Confidential Information the
Company may elect to destroy all the Confidential Information and all notes, data,
plans, reference material, software, memoranda, programs, documents, records, copies
of any of the foregoing and all other information which in any way relates to the
Confidential Information. The Recipient will not retain any copies or abstracts of the
foregoing items in any media and acknowledges that this Agreement does not grant the
Recipient any use of or other rights in the Confidential Information, the Recipient’s
sole right being to review the Confidential Information for consideration of entering
into a transaction with the Company.”
¶ 20 Ahmed signed the confidentiality agreement on October 31, 2012. After Katsaros returned
the signed agreement to Collazo by e-mail, Collazo shared with Ahmed the financial
documents he had obtained from Yoder, including the profits and losses of the business and the
terms of its lease with Terraco. Ahmed and Collazo met to determine the right price to offer for
the business and the real property. Together, they were able to negotiate a lower price for the
business, but there is no evidence what that price was. Collazo negotiated down the price of the
real property from $2.65 million to $2.3 million. During these negotiations, Collazo and
Ahmed did not discuss whether they would be partners in the purchase or if Collazo would be
paid a broker’s commission. Nothing in the confidentiality agreement discussed the payment
of any broker’s commission.
¶ 21 On January 8, 2013, Collazo exchanged e-mails with Robert Swanson, the chief financial
officer of Terraco. The e-mails were admitted into evidence. Collazo shared with Swanson an
e-mail in which Ahmed stated he was interested in purchasing the car wash business. Swanson
responded by e-mailing the terms of the lease, including its “monthly minimum rent” of
$18,994, and that he was willing to meet with Ahmed if Ahmed agreed to the terms of the
lease. Collazo and Ahmed then met with Swanson and other representatives of Terraco at
Terraco’s offices. On January 16, 2013, Ahmed sent Collazo an e-mail that was admitted into
evidence and included Ahmed’s potential business plan to share with Terraco. Collazo sent
Ahmed’s business plan without modification to Swanson on January 17, 2013, by e-mail,
which was also admitted into evidence. After Terraco received this plan, negotiations
continued. Collazo desired to make Terraco comfortable with potential partners and was still
“trying to get to some final number.”
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¶ 22 In January 2013, personal matters began affecting Collazo’s involvement in the
negotiations. He decided that the car wash was “not such a great deal,” and that, instead of
being a partner in the purchase, he would pursue a broker’s commission and move on. Collazo
told Ahmed that he did not want to pursue a partnership with Ahmed to purchase the property
and instead would accept a brokerage fee. After this conversation, Collazo still continued to
assist with the transaction. In late January 2013, communication briefly ceased between
Collazo and Ahmed, as Ahmed dealt with a personal matter. On February 1, 2012, Collazo
texted Ahmed to ask if he was still interested in purchasing the property, Ahmed confirmed
that he was still interested, and they continued to communicate about the property. Collazo and
Ahmed’s communications via text message from December 12, 2012, to March 5, 2013, were
admitted into evidence. On February 5, 2013, Collazo and Ahmed met with Yoder and
Swanson at the car wash.
¶ 23 On the following day, February 6, 2013, Collazo met with Ahmed and handed him a hard
copy of a brokerage services agreement admitted into evidence. It listed the parties as Jameson
and Ahmed and stated that Ahmed would pay Jameson a 5% brokerage commission on the
price of the business and the real property involved in the transaction at the time of closing. A
5% commission on $2.3 million purchase price Collazo negotiated for the property would be
over $100,000.3 Following the meeting, Collazo e-mailed a copy of the agreement to Ahmed.
He signed this e-mail, “Art Collazo, Vice President of Jameson Subsidies International
Realty.” In a text message, Collazo asked Ahmed to sign and fax him a copy of the agreement.
That evening, Ahmed sent Collazo a text back stating: “I will take care of it first thing in the
morning. No worries.” Collazo texted Ahmed, “Thank you.” Ahmed responded, “No
problem!” This was the last text message Collazo received about the brokerage agreement.
Collazo understood the exchange to mean that Ahmed accepted the terms of the brokerage
agreement. In Collazo’s experience, if “somebody doesn’t discuss or send me something, it’s
understood [they are] fine with it unless [they are] going to negotiate it.” While typically,
Collazo would not act as a broker for a client without a signed brokerage agreement, he
decided to continue to act as a broker without a signed agreement in this transaction because he
had already performed the work of “negotiating and bringing [Ahmed] into the deal” and was
entitled under the confidentiality agreement to find a new client to purchase the property if
Ahmed decided not to purchase the property. At a later meeting, Ahmed offered to pay a fee to
Collazo individually as an alternative form of compensation to signing the brokerage
agreement with Jameson. Collazo refused the offer.
¶ 24 After February 6, 2013, Collazo continued to be involved in “communicating, negotiating,
[and] helping” Ahmed with the transaction. At no point in February 2013 did Ahmed ask
Collazo to stop working on his behalf. Collazo remained in communication with Ahmed,
Yoder, and Swanson. On February 13, 2013, Collazo texted Ahmed to discuss his negotiations
with Yoder. On February 27, 2013, Collazo received an e-mail from Ahmed, which included
the draft of a letter Ahmed was writing to Swanson to negotiate a lower price for the property.
Collazo responded with revisions he made to Ahmed’s letter to make it more likely to persuade
Terraco to lower its price. This exchange was admitted into evidence. A short time later,
Collazo met with Ahmed, who informed him that he no longer planned to purchase the
3
Though Collazo did not testify to the exact figure, a 5% commission on a $2.3 million purchase is
$115,000, the amount sought by the plaintiffs in their complaint.
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property. After this meeting, Collazo attempted to contact Ahmed several times, and Ahmed
did not respond. Collazo gave Ahmed a two-week opportunity to revisit the deal, then Collazo
attempted to contact Terraco on behalf of another potential purchaser for the property. After a
delay Collazo thought uncharacteristic of his prior dealings with Terraco, a Terraco
representative informed Collazo by e-mail that the potential purchaser should contact Terraco
directly. When the potential purchaser did so, Terraco responded that the property was already
under contract. Neither of these e-mails were admitted into evidence.
¶ 25 Collazo testified that he first learned the property was under contract in a conversation with
employees at the car wash in the spring of 2013. In August 2013, he received an e-mail from
Terraco, not admitted into evidence, confirming that the property was under a contract of sale
to Ahmed. Since Ahmed’s purchase of the property, Collazo has observed significant
renovations to the car wash, including the addition of a second floor to the structure. Ahmed
neither paid Jameson a brokerage fee nor returned the confidential information about the
business to Collazo.
¶ 26 2. Robert Swanson
¶ 27 Robert Swanson testified that he has been involved in commercial real estate for 48 years
and had been employed by Terraco for 30 years, working in property management, sales,
leasing, and as executive vice president from 2011 to 2013. In this capacity as executive vice
president, he oversaw Terraco’s brokerage services, but did not testify as to whether he was a
licensed broker. Swanson is currently semi-retired, but remains involved in “property
management and other brokerage situations.” Scott Gendell was the president of Terraco and
also the managing partner of White Glove Center Limited Partnership (White Glove
Partnership), an entity controlled by Terraco that actually owned the subject property. After
White Glove Partnership purchased the property in 2003 or 2004, Terraco managed the
property and was authorized to enter into contracts on the Partnership’s behalf. Terraco leased
the property for a car wash business to Harold Yoder. By 2012, the business was in financial
distress.
¶ 28 Swanson knew Collazo from the brokerage community and was aware that Collazo was
employed by Jameson, a development company he had done business with in the past. Terraco
initially retained Collazo to publicly list the property, 4 but began negotiating with Collazo as
he “tried to buy it as an individual or [as part of] a group.” Swanson was not aware that Collazo
had not listed the property. No listing agreement or other document referring to a listing
agreement between Collazo and Terraco was admitted into evidence. The beginning stages of
his negotiations with Collazo dealt with the price term and how Collazo would finance the
purchase. Collazo agreed to a one-year option contract to purchase the property, but did not
execute the written option.
¶ 29 Collazo introduced Swanson to Ahmed in Terraco’s offices. Swanson, Collazo, Gendell,
and Ahmed discussed Ahmed purchasing the assets of the car wash and maintaining the
existing lease. Prior to Ahmed’s introduction by Collazo, Swanson had not communicated
with Ahmed concerning the property. Swanson sent Collazo an e-mail, admitted into evidence,
4
Collazo did not testify to the existence of any listing agreement with Terraco. The trial court made
no mention of a listing agreement between Collazo and Terraco in its findings.
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on January 8, 2013, discussing the terms of the car wash lease. On January 17, 2013, Swanson
received an e-mail from Collazo containing Ahmed’s business plan for the car wash.
¶ 30 In February 2013, Swanson exchanged a series of e-mails with Ahmed and Gendell
concerning the property that was admitted into evidence. Ahmed sent an e-mail to Gendell on
February 13, 2013, discussing a sale of the real property. Gendell replied on February 14,
2013, stating that he had spoken to Ahmed on the phone and they had agreed to an 18-month
leasing agreement with an option to purchase and that when Ahmed purchased the car wash
from Yoder, Terraco would receive $100,000 for past due rent owed by Yoder. In his response
to Gendell, Swanson stated: “I assume there was no mention of any fees that may be due Art
Collazo.” Swanson testified that since the listing agreement by Terraco with plaintiff had
expired, Terraco would owe no fees to Collazo on the transaction.
¶ 31 Swanson sent an e-mail to Gendell on February 16, 2013, which was admitted into
evidence, referencing a “lengthy conversation” between Swanson and Collazo and stating that
Collazo had asked if Terraco would negotiate with Ahmed about selling the car wash
equipment if Terraco acquired the assets of the car wash. Swanson stated in the e-mail that he
assured Collazo that Terraco was moving forward to “finish a deal” with Ahmed. On February
19, 2013, Ahmed faxed Swanson a written offer, which was admitted into evidence, to
purchase the real estate for $2.3 million. This terms of the offer included a provision that
Ahmed would pay $100,000 in past due rent owed by Yoder, but did not mention the assets of
the car wash.
¶ 32 When Yoder filed for bankruptcy protection, Terraco obtained the assets of the car wash
and thus could transfer the car wash’s equipment to Ahmed with the real property. Swanson
did not recall whether there was a period between February and March 2013 in which Ahmed
abandoned his interest in the property. While Swanson did not recall contacting Ahmed to
resurrect the deal, he testified that once Terraco possessed the car wash’s assets, he would have
likely contacted a potential purchaser for the property. On March 21, 2013, Swanson sent an
e-mail to Ahmed, stating that Swanson and Gendell had received Ahmed’s letter of intent and
agreed to a purchase price of $2.34 million for the real property and the assets of the car wash,
plus an additional $100,000 to cover Yoder’s arrearage. These terms differed from those
proposed earlier by Collazo because they allowed Ahmed to acquire both the real property and
the car wash’s assets in a single transaction with Terraco, rather than purchasing the real estate
from Terraco and acquiring the car wash’s assets in a separate transaction to purchase the car
wash business from Yoder.
¶ 33 On April 25, 2013, Ahmed contracted to purchase the real property and former assets of the
car wash for $2.34 million and $100,000 in past due rent. The “Purchase and Sale Agreement”
identified “White Glove Center Limited Partnership” as the seller and “Aqueel Ahmed or his
assignee” as the purchaser of the property. Swanson signed the agreement on behalf of White
Glove Partnership, and Ahmed signed in his individual capacity. The premises purchased
consisted of the land, improvements including the building, and personal property used in
connection to those improvements. Between the signing of the purchase agreement and the
closing of the purchase on September 30, 2013, there were several meetings at the property to
perform certain work and eliminate potential hazards. The final price in the purchase
agreement was $2.479 million.
¶ 34 The Escrow Trust Disbursement Statement, prepared by Chicago Title and Trust Company
for the transaction, listed a $50,000 brokerage commission paid to Terraco from the seller’s
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proceeds. Swanson testified that it was common practice for Terraco to pay itself a brokerage
commission on the sale of a property it managed, that $50,000 was a fair commission for the
sale of the property, and that a purchaser’s broker would have received a commission of
approximately the same amount. The statement listed no brokerage fee paid to plaintiff.
¶ 35 After Swanson’s testimony, plaintiffs stipulated to the existence of an entity identified as
SS 2130, LLC, which took title to the real property on September 30, 2013, and that Ahmed is
the sole member of SS 2130, LLC.
¶ 36 Plaintiffs then rested, and defendant filed a motion for a direct finding on each count. The
trial court directed three counts in favor of defendant for insufficient evidence: (I) the breach of
agreement, (II) the breach of oral agreement, and (V) fraud. The trial court found sufficient
evidence for the (III) unjust enrichment and (IV) quantum meruit claims to move forward
because of the evidence presented that Collazo was the procuring cause by which Ahmed
became aware of the property.
¶ 37 3. Aqueel Ahmed
¶ 38 Aqueel Ahmed testified that he starts and manages automotive-related businesses,
including multiple car washes, collision shops, and a mechanical business. Ahmed had
employed Katsaros in his capacity as a Jameson broker on two prior purchases. In the first
purchase, Katsaros, on behalf of plaintiff, had been the listing agent for the seller, and Ahmed
signed a dual agreement allowing plaintiff to receive the entire commission. In the second
purchase, Ahmed employed Katsaros, on behalf of plaintiff, as one of multiple brokers in the
transaction. In both of these transactions, the broker’s commission was paid through the
seller’s proceeds.
¶ 39 Ahmed testified that Katsaros facilitated the introduction of Ahmed to Collazo in late
2012. Collazo called Ahmed and asked Ahmed for a meeting to sign a confidentiality
agreement. Collazo told Ahmed that he had to sign the confidentiality agreement before
Collazo shared any information.
¶ 40 Ahmed met with Collazo after he signed the agreement. Ahmed had not communicated
with the owners of the business or the real property about purchasing the properties before
receiving the confidentiality agreement from Collazo. After multiple conversations with
Collazo, Ahmed began to explore the feasibility of purchasing both the business and the real
property. From November 2012 through March 2013, Collazo assisted Ahmed in setting up
meetings with the sellers of the business and real property. However, during this time, Collazo
did not assist Ahmed in negotiating for the sale of the business and real property. Collazo was
first attempting to purchase the property himself and came to Ahmed to “figure out how to look
at the business.” At Collazo’s request, Ahmed composed a business plan for the car wash on
January 16, 2013.
¶ 41 Ahmed observed that the car wash at the subject property was “not doing well at all” and
“was on the brink of collapsing.” Ahmed identified multiple sources for this particular car
wash’s problems, including (1) a lack of business, (2) a lack of ownership, (3) a failure to
reinvest profits back into the business, and (4) an “extremely high” rent rate. Ahmed
communicated to Collazo that purchasing the business could only be a profitable enterprise if
the rent was lowered or the purchase included the real property on which the car wash was
located.
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¶ 42 Ahmed never agreed that Collazo would be his real estate broker. When Collazo handed
Ahmed a proposed brokerage agreement on February 5, 2013, Ahmed orally rejected the
agreement. Ahmed offered Collazo a cash payment, telling Collazo that in Ahmed’s
experience the brokerage commission was paid through the seller’s proceeds, but that Ahmed
did owe Collazo a “finder’s fee.” Ahmed did not agree to this fee being a 5% commission. On
February 6, 2013, Collazo e-mailed the proposed brokerage agreement to Ahmed. At 7:20 p.m.
on February 6, 2013, Collazo sent Ahmed a text message stating: “I sent over a commission
agreement at 4:45 p.m. today, please sign or e-fax it back, thanks Art.” Ahmed responded with
a message stating: “I will take care of it first thing in the morning, no worries.”
¶ 43 After February 6, 2013, Ahmed did not send any written communication rejecting
Collazo’s brokerage services, but Collazo continued to assist Ahmed. On February 13, Collazo
discussed negotiations with Yoder in a text message to Ahmed. On February 27, Ahmed sent
Collazo a text message, asking Collazo to call him upon receipt of an e-mail. Ahmed sent an
e-mail to Collazo at 11:59 a.m. on February 27, 2013, sharing ideas, so Collazo could assist
Ahmed in negotiations with Swanson for purchasing the property. At this time, Ahmed was
negotiating the sale of the business and the real property separately. Ahmed was “still putting
the numbers together” and sharing those numbers with Collazo. At 2:02 p.m. on February 27,
2013, Collazo responded to Ahmed’s e-mail by editing the e-mail before it was sent to the
owners of the property. Ahmed did not know Collazo’s motives in assisting him at that time.
¶ 44 On March 5, 2013, Ahmed, Collazo, Swanson, and Gendell met at Terraco. At this
meeting, Gendell told Collazo that Terraco would not pay Collazo a commission. After this
meeting, Ahmed decided the asking prices for purchasing the business and real property
separately was too high and articulated this conclusion to Collazo.
¶ 45 After informing Collazo he was no longer interested in purchasing the business or
property, Ahmed received a phone call from a representative of Terraco, informing him that
Terraco had obtained the car wash’s assets and asking to resurrect the deal to purchase the real
property. This proposed deal differed from the agreement negotiated by Collazo because it
would allow Ahmed to obtain the real property and assets of the car wash in a single
transaction.
¶ 46 After this phone call, Ahmed submitted to Terraco a letter of intent to purchase the
property a few days before March 21, 2013. No letter of intent matching this approximate date
was admitted into evidence. Ahmed testified that the letter of intent admitted into evidence and
dated February 19, 2013, was not faxed by Ahmed, despite his name appearing on the
document as the sender and potential purchaser. Ahmed is unaware of who faxed the document
to Swanson. Ahmed would have signed any letter of intent that he sent, and his signature is not
on the document. Ahmed also testified that the letter of intent was misdated and that the phone
call from Terraco is not mentioned in the letter because all of Ahmed’s letters of intent are
“pretty similar” and he only changes the addresses and “a few things here and there” before
sending them to sellers.
¶ 47 On March 21, 2013, Swanson notified Ahmed by e-mail that Terraco had reviewed
Ahmed’s letter of intent and accepted the offered price for the property. In the e-mail, Swanson
was referring to the March 2013 letter of intent, not the February 19, 2013, letter of intent
admitted into evidence. In April 2013, Ahmed informed Collazo that Ahmed was moving
forward with purchasing the property, but did not do so in writing. When entering into the
transaction with Terraco, Ahmed did not tell Terraco he was working with Collazo. Terraco
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could only include a commission to Collazo and Jameson if Ahmed informed Terraco of
Collazo’s involvement.
¶ 48 On September 30, 2013, the sale of the property closed, and Ahmed’s LLC took possession
of the property. In the settlement statement for the closing of the property in evidence, Ahmed
paid $2.34 million for the property. Ahmed was not certain whether a brokerage fee to Collazo
was reflected in that amount and believed it had to “do something with the seller.” The “top
price” for the property was $2.34 million, “whatever the commission agreements were, that’s
between Terraco and Art.” Ahmed paid $119,000 in disbursements to the proceedings. He paid
approximately $100,000 in back rent for the assets of the car wash.
¶ 49 4. Finding of the Trial Court
¶ 50 The trial court found that plaintiff was entitled to compensation under its quantum meruit
claim because plaintiff did in fact perform brokerage services for the defendant.
¶ 51 The trial court found that Ahmed was initially brought into the deal by a Jameson broker,
who introduced him to Collazo. When this introduction occurred, Collazo was deciding
whether he would be “making his own business deal” to purchase the property or “eventually
shift it over into brokerage.” While not all services provided by Collazo to Ahmed were
brokerage services, Ahmed would not have had the opportunity to connect with the sellers of
the property without plaintiff’s efforts.
¶ 52 The trial court found that the letter of intent was sent in the period of time in which the
brokerage agreement would have been active if it had been executed. The trial court further
found that it was reasonable to believe that Ahmed agreed to some aspects of the brokerage
agreement and that he sent a letter of intent no later than March 21, 2013, because Swanson
replied to the letter by e-mail.5 The trial court found that Ahmed’s testimony that the letter of
intent was not his agreement was “not entirely credible.”
¶ 53 The trial court found that, in a commercial real estate transaction with a dual agency, there
is often a rate set for the seller and another for the purchaser. The agreement between Terraco
and its agents in selling the property was evidence of what a reasonable fee would have been
for Jameson as the purchaser’s broker.
¶ 54 The trial court entered judgment in favor of plaintiff Jameson and against defendant
Ahmed individually in the amount of $50,000 on the quantum meruit claim only.
¶ 55 This appeal follows.
¶ 56 II. ANALYSIS
¶ 57 On appeal, defendant Ahmed argues that the court erred in entering judgment in favor of
plaintiff Jameson and against defendant Ahmed on the quantum meruit claim because (1) there
was no evidence at trial of the value of the brokerage services provided, (2) the beneficiary of
brokerage services was not Ahmed, but non-party Terraco or non-party SS 2130, and (3) the
broker acted in bad faith by pursuing an off-market sale, rather than publicly listing the
property as directed by Terraco.
5
Swanson’s e-mail is Plaintiffs’ Exhibit 14. In this e-mail, sent at 10:32 a.m. on March 21, 2013,
Swanson states, “I have reviewed you LOI with Scott” and proceeds to provide terms of an agreement
to purchase the real property.
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¶ 58 A. Standard of Review
¶ 59 After a bench trial, the fact-finding of the trial court will not be disturbed unless it is against
the manifest weight of the evidence. Gambino v. Boulevard Mortgage Corp., 398 Ill. App. 3d
21, 51 (2009). “A decision is against the manifest weight of the evidence only when an
opposite conclusion is apparent or when the findings appear to be unreasonable, arbitrary, or
not based on the evidence.” Eychaner v. Gross, 202 Ill. 2d 228, 252 (2002). “The manifest
weight of the evidence standard affords great deference to the trial court because the trial court
is in a superior position to determine and weigh the credibility of the witnesses, observe
witnesses’ demeanor, and resolve conflicts in their testimony.” Wade v. Stewart Title Guaranty
Co., 2017 IL App (1st) 161765, ¶ 59. Under this standard, this court may not “reweigh the
evidence presented or make an independent determination of the facts.” Board of Education of
Community Consolidated High School District No. 230 v. Illinois Educational Labor Relations
Board, 165 Ill. App. 3d 41, 55 (1987).
¶ 60 B. Quantum Meruit
¶ 61 “Quantum meruit, which literally means ‘as much as he deserves,’ describes a cause of
action seeking recovery for the reasonable value of services nongratuitously rendered, but
where no contract exists to dictate payment.” Bernstein & Grazian, P.C. v. Grazian & Volpe,
P.C., 402 Ill. App. 3d 961, 979 (2010). To recover under a quantum meruit theory, a plaintiff
must prove that (1) it performed a service to the benefit of the defendant, (2) it did not perform
the service gratuitously, (3) the defendant accepted this service, and (4) no written contract
existed to prescribe payment for this service. Installco, Inc. v. Whiting Corp., 336 Ill. App. 3d
776, 781 (2002). To recover, the service performed by the plaintiff must be “of some
measurable benefit to the defendant.” Van C. Argiris & Co. v. FMC Corp.,144 Ill. App. 3d 750,
753 (1986). A quantum meruit claim can be distinguished from an unjust enrichment claim by
its means of calculating damages. “In a quantum meruit action, the measure of recovery is the
reasonable value of work and material provided, whereas in an unjust enrichment action, the
inquiry focuses on the benefit received and retained as a result of the improvement provided.”
Hayes Mechanical, Inc. v. First Industrial, L.P., 351 Ill. App. 3d 1, 9 (2004).
¶ 62 “A broker who is the procuring cause of a sale is entitled to a commission under the theory
of quantum meruit where a party receives a benefit which is unjust for him to retain without
paying for it.” Halpern v. Titan Commercial LLC, 2016 IL App (1st) 152129, ¶ 22. When a
broker provides real estate brokerage services to a purchaser, the broker should not be deprived
of commission merely because the purchaser completed the sale without the broker’s direct
involvement, when the broker introduced the parties of the sale and the purchaser “admittedly
would have never known about the existence of the property” without the broker’s efforts.
Halpern, 2016 IL App (1st) 152129, ¶ 23. If the purchaser claims that the broker abandoned
the deal, “the evidence must show not only a discontinuance of his efforts by the broker, it
must show abandonment by the purchaser of all intention to buy the property.” Western Pride
Builders, Inc. v. Zicha, 23 Ill. App. 3d 770, 773 (1974).
¶ 63 C. Evidence of the Value of Brokerage Service Provided
¶ 64 In a quantum meruit claim, the amount awarded to a plaintiff is “purely a factual issue.”
Anderson v. Gewecke, 36 Ill. App. 3d 170, 176 (1976). Recovery “is limited to the reasonable
amount by which the trial court finds [the] defendant was unjustly enriched at the expense of
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the plaintiff.” Nardi & Co. v. Allabastro, 20 Ill. App. 3d 323, 328 (1974). In cases concerning
the failure to pay the commission of a real estate broker, damages may be calculated “based on
a percentage of the sales price.” Romanek-Golub & Co. v. Anvan Hotel Corp., 168 Ill. App. 3d
1031, 1043 (1988). They may also be calculated by the trial court’s determination of how much
the defendant saved by eliminating the broker’s fee from the transaction. Anderson, 36 Ill.
App. 3d at 176-77. The plaintiff must provide a basis for assessing damages with a “fair degree
of probability” but need not prove the exact amount of its loss. Benford v. Everett Commons,
LLC, 2014 IL App (1st) 130314, ¶ 30.
¶ 65 In the case at bar, there was sufficient evidence for the trial court’s finding that $50,000
was the reasonable value of the services provided by plaintiff Jameson to defendant. Defendant
argues that $50,000, 2.1376751% of the purchase price, is unsupported by the evidence and
“not intuitive” in the present case. However, as the trial court found, Terraco paid itself a
$50,000 commission as the seller’s broker in the transaction, and this was “evidence of a
reasonable fee” owed Jameson considering the practices of the real estate industry. The
$50,000 commission paid to Terraco was established by the testimony of both Swanson and
Ahmed, and Swanson described $50,000 as a reasonable commission for the purchaser’s
broker in the transaction. This amount is slightly less than half the 5% commission asked for in
the unexecuted brokerage agreement, and therefore consistent with splitting the commission
between the purchaser’s and seller’s brokers. Ahmed further testified that, in one of his
previous transactions in which Jameson served as broker for both purchaser and seller,
Jameson received a 5% commission, a $76,250 fee on a $1.525 million sale. We cannot find it
was against the manifest weight of the evidence for the trial court to rely upon this testimony in
determining the value of plaintiff Jameson’s brokerage services.
¶ 66 The issue in the present case is similar to the facts before this court in Halpern, 2016 IL
App (1st) 152129, ¶ 24, where this court determined that the trial court did not err in awarding
$50,000 (1.19% of the sale price) in damages to the broker in an off-market real estate
transaction. The trial court based this determination on the testimony of expert witnesses that a
reasonable broker’s commission for the property at issue would be between 1% and 6% of the
purchase price. Halpern, 2016 IL App (1st) 152129, ¶ 24. Defendant argues that this expert
testimony distinguishes Halpern from the present case and that a plaintiff needs expert
testimony to prove with reasonable certainty the amount it is owed in a quantum meruit claim
in the absence of a written agreement between the parties. However, the range provided by
expert testimony was not the only factor considered by the Halpern court in affirming the trial
court’s determination. Halpern, 2016 IL App (1st) 152129, ¶ 24. The Halpern court also cited
the testimony that the plaintiff had paid a $100,000 “ ‘finder’s fee’ to another real estate
professional” in its analysis. Halpern, 2016 IL App (1st) 152129, ¶ 24. The Halpern court was
thus clear that a trial court’s determination of the reasonable value of services must be based on
evidence, but it did not limit the types of evidence which could support such a determination.
¶ 67 The present case is clearly distinguishable from Benford, 2014 IL App (1st) 130314, ¶ 26,
in which the court considered the amount of damages a landlord owed a tenant for personal
property destroyed by water leakage. The court found the plaintiff could not recover damages
for the personal property because she could only offer evidence of the replacement value of the
property and the original cost of the items were not measures of the property’s fair market
value at the time it was destroyed. Benford, 2014 IL App (1st) 130314, ¶ 31. In the case at bar,
unlike Benford, two witnesses testified to Terraco’s brokerage fee in the transaction, which
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provided evidence of the value of brokerage services.
¶ 68 D. Collazo’s Dual Roles
¶ 69 Defendant also argues that Jameson improperly equated Collazo’s side business venture
with Collazo’s brokerage work on Jameson’s behalf and that Collazo’s activities as a
purchaser’s broker were so limited in their scope as to not to justify the award for those
services. A real-estate broker is entitled to a commission if it “is the procuring cause of a
consummated transaction which he was employed to negotiate.” Pietka v. Chelco Corp., 107
Ill. App. 3d 544, 549 (1982). A broker is the procuring cause if it “brings together the parties
who ultimately consummate the transaction [citation] or *** is instrumental in its
consummation.” Pietka, 107 Ill. App. 3d at 549. A trial court may determine that a broker is the
procuring cause of a transaction based on the broker’s role in negotiations or in disseminating
information which leads to the consummated transaction. Pietka, 107 Ill. App. 3d at 549.
¶ 70 In the case at bar, the trial court recognized that Collazo’s actions concerning the property
were not solely the performance of brokerage services and that Collazo’s “shifting positions”
were relevant in determining the amount Jameson would recover. However, the trial court’s
finding that Ahmed and Collazo’s earlier communications about the property occurred before
he decided whether he would be a broker or a partner in the purchase is not irreconcilable with
the finding that Jameson was the procuring cause of Ahmed purchasing the property. The trial
court found that Ahmed was introduced to Collazo by another Jameson broker, Katsaros, and
that, before this introduction, Ahmed was unaware that the property was for sale. Without this
introduction by a Jameson broker, Ahmed would not have received the information about the
property from Collazo, since the property was never publicly listed.
¶ 71 Furthermore, the trial court’s finding that Collazo did act as Ahmed’s broker on the
transaction, after Collazo’s withdrawal from a role as a potential purchaser, is supported by the
record. Collazo provided brokerage services to Ahmed after he presented Ahmed with the
brokerage agreement on February 6, 2013. This brokerage agreement, though never executed,
showed that Collazo was then acting in his capacity as a Jameson broker. Ahmed offered
Collazo a personal “finder’s fee” for the property, but Collazo refused and told Ahmed the fee
must be paid to Jameson. For weeks, Collazo acted as Ahmed’s broker, while Ahmed was
aware that Collazo believed Jameson would receive a commission for his labor. A few days
after Ahmed was provided with the brokerage agreement, Collazo forwarded a draft agreement
from Collazo to Terraco. Weeks later, Ahmed sent Collazo a draft of a letter, so Collazo could
review it with the goal of negotiating a lower price term. Ahmed did not communicate with
Collazo that Jameson would not be compensated, while he benefitted from Collazo’s efforts as
a Jameson agent.
¶ 72 In sum, the trial court’s determination that the efforts by Jameson’s agents, Katsaros and
Collazo, merited an award equivalent to Terraco’s commission as the seller’s broker in the
transaction was not against the manifest weight of the evidence and we therefore affirm the
trial court’s judgment on that issue.
¶ 73 E. Beneficiary of Brokerage Services
¶ 74 Defendant Ahmed next argues that the trial court’s judgment should be reversed because
he was not the beneficiary of any brokerage services by Jameson. The ability to purchase
property is a benefit in itself. Halpern, 2016 IL App (1st) 152129, ¶ 23. A plaintiff may have a
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valid quantum meruit claim against multiple defendants concerning the same transaction, and
therefore, the finding of one beneficiary does not exclude the finding of others. Much Shelist
Freed Denenberg & Ament, P.C. v. Lison, 297 Ill. App. 3d 375, 376 (1998). The determination
of whether a defendant benefited from a plaintiff’s brokerage services in a quantum meruit
claim is a question of fact and therefore will only be disturbed by this court when against the
manifest weight of the evidence. Halpern, 2016 IL App (1st) 152129, ¶ 17. As noted, a
“decision is against the manifest weight of the evidence only when an opposite conclusion is
apparent or when the findings appear to be unreasonable, arbitrary, or not based on the
evidence.” Eychaner, 202 Ill. 2d at 252.
¶ 75 In the case at bar, defendant Ahmed argues that the trial court erred in finding him to have
benefitted from plaintiffs’ brokerage services. Plaintiff argues that this claim should not be
considered by the court because it was raised for the first time on appeal and constitutes unfair
surprise. “It is well settled that issues not raised in the trial court are deemed forfeited and may
not be raised for the first time on appeal.” Martinez v. River Park Place, LLC, 2012 IL App
(1st) 111478, ¶ 29. Since Ahmed failed to raise his claims before the trial court, his argument
has been forfeited. Martinez, 2012 IL App (1st) 111478, ¶ 29. Under Illinois Supreme Court
Rule 366(a)(5) (eff. Feb. 1, 1994), an appellate court “may sometimes override considerations
of waiver or forfeiture in the interests of achieving a just result and maintaining a sound and
uniform body of precedent.” Jackson v. Board of Election Commissioners, 2012 IL 111928,
¶ 33. However, such an exception is not warranted here because Ahmed’s argument also fails
on its merits.
¶ 76 Defendant Ahmed provides two alternative beneficiaries to Jameson’s brokerage services.
First, defendant argues that “[i]f any entity was the beneficiary of any brokerage services
rendered by Jameson, it was Terraco” because the consummated transaction, initiated by
Terraco, was substantively different from the transaction being discussed at the end of
Collazo’s involvement and Collazo had initially been employed as Terraco’s broker in the
transaction. Defendant cites several facts to support this claim: (1) Swanson testified that
Terraco had once employed Collazo as its broker to sell the property, (2) Terraco could only
communicate with defendant to resurrect the deal, because Collazo had introduced defendant
to Terraco, and (3) the final agreement was different from those discussed in previous
negotiations by Collazo because it did not require a separate transaction to purchase the
business.
¶ 77 However, none of these facts shows that the trial court’s finding that defendant Ahmed was
the beneficiary of Jameson’s services was against the manifest weight of the evidence. Collazo
acted as Ahmed’s broker after informing Ahmed of the expectation a commission would be
paid to Jameson. Ahmed was a signatory to the purchasing agreement made possible by
Collazo’s efforts and his introduction to Collazo by another Jameson broker. In addition,
Ahmed only learned of the existence of the property through Collazo. Furthermore, the trial
court found that defendant’s testimony concerning who resurrected the negotiations was not
entirely credible, a decision we will not second-guess on appeal. Wade, 2017 IL App (1st)
161765, ¶ 59. Although normally real estate commissions are paid by the sellers, Collazo
testified that off-market commissions are usually paid by the purchaser. While the commission
had been paid out of the seller’s proceeds in the previous transactions for which defendant
employed Jameson, those purchases were not off-market properties.
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¶ 78 There is no evidence that Collazo was simultaneously acting as a broker for both parties in
this transaction. Swanson testified that the prior listing agreement with Collazo expired before
Ahmed was introduced as a potential purchaser and did not testify that he considered Collazo
to be Terraco’s broker during negotiations with Ahmed. In his interactions with Terraco during
this period, Collazo did not present himself as Swanson’s broker and did not approach
Swanson about a brokerage agreement. Gendell told Collazo that Terraco would not be paying
plaintiff any commission on the sale of the property. Furthermore, though the commission fee
was paid to itself, Terraco did pay a brokerage fee on the transaction to a party other than
Collazo. Accordingly, we do not find Ahmed’s claim that Terraco was the actual beneficiary to
be persuasive.
¶ 79 Alternatively, defendant Ahmed argues that SS 2130, not Ahmed, benefitted from
Jameson’s services as purchaser of the property. The trial court found that Jameson was the
procuring cause of the purchase of the property by defendant. The parties’ stipulation that SS
2130, a separate legal entity owned by Ahmed, took title to the property is consistent with this
finding. The purchase agreement listed the purchaser of the property as “Ahmed or his
assignee.” Ahmed’s ability to purchase and assign the property was a benefit of the brokerage
services performed by Jameson on his behalf. Ahmed was a party to the unexecuted brokerage
agreement. The purchase and sale agreement listed Ahmed as the purchaser, and he signed the
agreement in his individual capacity. The fact that his company was listed on the title does not
change the result that Ahmed personally obtained a benefit from Jameson’s brokerage
services.6
¶ 80 In sum, the trial court’s determination that defendant was a beneficiary of Jameson’s
brokerage services was not against the manifest weight of the evidence, and we therefore
affirm the trial court’s judgment on that issue.
¶ 81 F. Bad Faith
¶ 82 Finally, defendant Ahmed argues that plaintiff Jameson is barred from recovering under a
quantum meruit claim under the doctrine of “unclean hands” because Jameson’s agent,
Collazo, acted in bad faith by (1) failing to publicly list the property, while employed to do so
by Terraco, in order to purchase the property himself and (2) failing to assert a claim to the
brokerage fee in the period between his learning of the contract to sell the property and the
closing of the sale.
¶ 83 The doctrine of “unclean hands” precludes a party from taking advantage of its own wrong.
Long v. Kemper Life Insurance Co., 196 Ill. App. 3d 216, 218 (1990). It is an equitable doctrine
that bars relief when the party seeking that relief is guilty of misconduct in connection with the
6
We note that, at oral argument, Ahmed’s counsel suggested that SS 2130 was a necessary party
and that any quantum meruit claim should have been directed against it, as opposed to against Ahmed.
However, Ahmed never raised such an argument before the trial court, and his arguments in his
appellate brief concerned only the claim that SS 2130 was the beneficiary of any brokerage services. It
is well settled that “[p]oints not argued [in the appellant’s brief] are waived and shall not be raised in the
reply brief, in oral argument, or on petition for rehearing.” Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016).
Additionally, “an issue not presented to or considered by the trial court cannot be raised for the first
time on review.” Kravis v. Smith Marine, Inc., 60 Ill. 2d 141, 147 (1975). Accordingly, we do not
consider the arguments raised for the first time at oral argument.
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subject matter of the litigation. Thomson Learning, Inc. v. Olympia Properties, LLC, 365 Ill.
App. 3d 621, 634 (2006). The doctrine only applies when the party’s misconduct rises to a
level of fraud or bad faith. Thomson, 365 Ill. App. 3d at 634. The court must look to the intent
of a party to determine whether it acted with “unclean hands.” Thomson, 365 Ill. App. 3d at
634. The doctrine is only available when the misconduct was “toward the party against whom
relief is sought and *** connected with the transaction at issue in the litigation.” Zahl v. Krupa,
365 Ill. App. 3d 653, 658 (2006).
¶ 84 The doctrine of “unclean hands” is applied at the trial’s court discretion and therefore
cannot be disturbed on appeal absent a determination that the trial court abused its discretion.
Long, 196 Ill. App. 3d at 219. “A trial court does not abuse its discretion unless, in view of all
of the circumstances, its decision so exceeded the bounds of reason that no reasonable person
would take the view adopted by the trial court.” In re Marriage of Demar, 385 Ill. App. 3d 837,
852 (2008).
¶ 85 The doctrine of “unclean hands” is an affirmative defense. Long, 196 Ill. App. 3d at 218.
“Ordinarily, affirmative defenses must be set forth in the answer or reply to a complaint.”
Enterprise Recovery Systems, Inc. v. Salmeron, 401 Ill. App. 3d 65, 76 (2010). An affirmative
defense is “the defendant’s burden to plead and prove” and is “forfeited if not raised in a timely
fashion in the trial court.” Nationwide Advantage Mortgage Co. v. Ortiz, 2012 IL App (1st)
112755, ¶ 24. As noted, this forfeiture may be overlooked by the appellate court “in the
interests of achieving a just result and maintaining a sound and uniform body of precedent.”
Jackson, 2012 IL 111928, ¶ 33.
¶ 86 Defendant Ahmed did not raise the affirmative defense of “unclean hands” in his answer to
plaintiffs’ complaint or at trial. He raised it for the first time in his appellate brief. Therefore,
the affirmative defense was forfeited by Ahmed’s failure to raise it before the trial court.
Enterprise, 401 Ill. App. 3d at 76.
¶ 87 Furthermore, even if defendant Ahmed had raised his affirmative defense in a timely
manner, the “unclean hands” doctrine would still not bar plaintiff Jameson from recovering on
its quantum meruit claim. While Ahmed alleged that Collazo acted in bad faith by failing to
publicly list the property, Ahmed failed to allege or prove that Collazo’s act in bad faith was
directed towards Ahmed himself. If Collazo had indeed failed to publicly list the property in
order to purchase it in his individual capacity and maximize his realizable commission, then
his bad faith was directed against non-party Terraco, not Ahmed, and Ahmed’s defense of
“unclean hands” would not be applicable. Zahl, 365 Ill. App. 3d at 664.
¶ 88 With respect to his second claim, Ahmed offers no case law to support his argument that a
broker’s assertion of its claim after the closing of the sale on the property, when it could have
brought the claim during the period in which the property was under contract, constitutes an act
of bad faith. Ahmed argues that by not asserting a broker’s lien or any other claim during the
contract period, Collazo denied Ahmed and Terraco the opportunity to decide between
themselves whether a commission was owed to Collazo, who would pay that commission, and
whether judicial intervention was warranted. However, plaintiffs derived no financial
incentive from this delay, and Ahmed also did not contact Collazo during this period.
Furthermore, a broker’s lien may only be filed on a commercial party if there is a written
brokerage agreement and the property has already been conveyed to the buyer. 770 ILCS
15/10(a)(3), (e) (West 2010).
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¶ 89 Thus, a determination by the trial court that the doctrine of “unclean hands” was
inapplicable did not constitute an abuse of its discretion, and Ahmed’s forfeiture of the
affirmative defense does not inhibit the interests of achieving a just result. Jackson, 2012 IL
111928, ¶ 33.
¶ 90 III. CONCLUSION
¶ 91 In Allabastro, 20 Ill. App. 3d. at 327, Justice George Leighton wrote:
“In the law, the expression ‘quantum meruit’ means literally ‘as much as he deserves.’
[Citation.] It is an expression that describes the extent of liability on a contract implied
by law. [Citation.] This liability is predicated on the reasonable value of services
performed. Thus, the basis for recovery quantum meruit is receipt by a defendant from
a plaintiff of a benefit which it is unjust for him to retain without paying for it.”
¶ 92 Here, the trial court had before it the testimony of the persons involved, and the exhibits not
only reflected the relations between the parties, it showed their intentions. Collazo introduced
the property to defendant and acted as his agent throughout the negotiations until defendant
decided he would structure the deal in a different manner through the suggestions of the seller.
Defendant did so without plaintiff’s knowledge and permission. The evidence shows that
defendant was willing to pay a commission directly to the broker, but the commission was less
than what the broker requested. However, the recovery was limited to the reasonable amount
by which the trial court found defendant was unjustly enriched at the expense of the plaintiff.
¶ 93 For the foregoing reasons, we affirm the trial court’s finding for plaintiff Jameson against
defendant Ahmed on the quantum meruit claim for $50,000.
¶ 94 Affirmed.
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