2024 IL App (1st) 221016 

 SECOND DIVISION

 June 11, 2024 

No. 1-22-1016 

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

______________________________________________________________________________ 

BRIAN D. FINN and NORTH AMERICAN INSTALL, ) Appeal from the 

LLC, an Illinois Limited Liability Company, ) Circuit Court of 

 ) Cook County 

 Plaintiffs-Appellees, ) 

 ) 

 v. ) Case Nos. 15 L 11963 

 ) 16 CH 165 

PROJECT RESOURCE SOLUTIONS, LLC, an Illinois ) 

Limited Liability Company; IVEN ROSHEIM; SUSAN ) Honorable 

SCHACHT; and MICHAEL ROONEY, ) Diane Shelley,

) Thomas Donnelly,

Defendants. ) Judges Presiding 

) 

(Project Resource Solutions, LLC, and Iven Rosheim, ) 

Defendants-Appellants.) ) 

_____________________________________________________________________________ 

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

Presiding Justice Howse and Justice McBride concurred with the judgment and opinion. 

OPINION

¶ 1 Defendants Iven Rosheim and Project Resource Solutions, LLC (PRS), appeal two 

judgments entered against them after a joint jury and bench trial—one on the jury verdict and the 

other on the bench trial. First, the jury returned a $235,000 verdict against them on plaintiff 

Brian D. Finn’s defamation per se claims. The court then entered its judgment on Finn’s 

remaining claim under the Illinois Wage Payment and Collection Act (Wage Act) (820 ILCS 

115/1 et seq. (West 2012)). While the court ruled that Finn’s Wage Act claim failed, it instead 
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awarded him approximately $24,000 in quantum meruit/unjust enrichment damages—a theory 

he never pleaded.

¶ 2 On appeal, defendants challenge both judgments. First, they claim the jury verdict must 

be reversed because the court failed to properly instruct the jury regarding the law of defamation, 

particularly on the issue of qualified immunity. As to the quantum meruit judgment, their 

argument is simple: the court cannot render judgment on an unpleaded theory. 

¶ 3 We agree on the latter point. Unfortunately for defendants, however, we agree with 

Finn’s contention that defendants forfeited their challenge to the jury instructions. For the 

reasons stated below, we affirm the court’s judgment on the jury verdict and reverse its quantum 

meruit award.

¶ 4 BACKGROUND

¶ 5 The issues in this appeal revolve around a bifurcated trial in which Finn’s claim for 

defamation per se was tried to a jury, while his Wage Act claim was tried to the bench. Though 

there was no court reporter present for those proceedings, the parties prepared an agreed 

statement of facts pursuant to Illinois Supreme Court Rule 323(d) (eff. July 1, 2017). We draw 

most of our background from that agreed statement.

¶ 6 But for reasons that will become clear, our resolution of this case does not depend on 

minute details of trial testimony. So we will endeavor to keep our discussion abbreviated. 

¶ 7 PRS is a tech company that installs network and telephone hardware for its customers. 

Rosheim was one of three people who owns and operates PRS. Finn worked for PRS from 2005 

until his termination in 2015. During his decade there, Finn held several positions, eventually 

becoming the Vice President of National Accounts (VP) in 2013. Around the time he became 
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VP, Finn and PRS entered into a written compensation contract. As part of this agreement, Finn 

was entitled to commissions and reimbursement of certain expenses.

¶ 8 By mid-2015, the parties’ relationship had deteriorated. Finn testified that he began to 

have concerns over unpaid commissions and expense reimbursements he believed were due to 

him. For example, he believed that Rosheim intended to record a 2015 sale in 2016, which 

negatively affected his 2015 commissions. Finn confronted Rosheim on this point, which, in 

Finn’s opinion, led to his termination in mid-2015.

¶ 9 In November 2015, Finn brought a claim under the Wage Act, alleging that he was owed 

the unpaid compensation about which he confronted Rosheim. Meanwhile, Finn tried to find a 

new job but was unsuccessful. Ultimately, he decided to start his own information technology 

and telecommunications company, North American Install (NAI), in December 2015. Finn 

recruited to his new company the business of clients whom he had brought to PRS while working 

there, such as the ShopperTrak account and others. He also hired Ross Rasmussen, a PRS project 

manager who worked extensively on the ShopperTrak account.

¶ 10 Through a friend, Nick Hantzis, Finn learned that Rosheim held a company-wide meeting 

on December 15, 2015. According to the friend, at the meeting, Rosheim claimed Finn was 

terminated because he was not showing up for work and had made unauthorized purchases on 

the company credit card.

¶ 11 According to Hantzis, at this December meeting Rosheim also claimed to have text 

messages proving Finn had spent the last two or three years plotting to create his own company 

and steal PRS clients. Rosheim insisted that Finn was violating his noncompete and 

nondisclosure agreements. Rosheim believed NAI would soon be bankrupted by the lawsuit he 
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was going to bring against it. Rosheim also allegedly “encouraged” his employees to warn 

contractors that they would not receive any more PRS work if they worked with NAI.

¶ 12 After learning of this December meeting, Finn filed a second lawsuit in January 2016, 

alleging several claims, including defamation per se. Over the next several years, Finn’s claims 

were whittled down so that only a few proceeded to trial. (Of the claims that proceeded to trial, 

this appeal only concerns the two that went to judgment: the defamation per se claim and the 

Wage Act claim.)

¶ 13 In both April and September 2021, the parties filed written submissions on jury 

instructions and motions in limine. Both times, defendants filed written “Objections to Plaintiffs’ 

Proposed Jury Instructions.” In these written submissions, the defendants argued that the 

plaintiff’s instructions did not adequately instruct the jury regarding defamation per se. 

Defendants also proposed their own instructions, to which Finn objected.

¶ 14 On the eve of trial, the parties argued pretrial motions and instructions. (This November 

29 hearing was the one proceeding for which we do have a transcript.) Defendants’ counsel, as in 

their prior written submissions, argued that Finn’s proposed instructions misstated the law 

regarding defamation per se and “the issue of privilege.”

¶ 15 Ultimately, the court ordered Finn to redraft several of the defamation instructions, giving 

defendants the opportunity to “critique the issue instruction that Plaintiff will present tomorrow.” 

In preliminarily refusing defendants’ instructions on the issue, the court explicitly ruled that “I’m 

refusing these at this time, but all of this is contingent on what issue instruction is provided the 

Court. So if you don’t believe these are addressed in the issue instructions, you can bring it back 

up.” (Emphasis added.)
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¶ 16 That is the last time the record speaks on the subject. The parties returned to court the 

next day—November 30—for jury selection. The parties’ agreed statement of facts does not 

indicate whether defendants accepted the court’s invitation to object or otherwise revisit the jury 

instructions as revised overnight by Finn. The agreed statement of facts says only this: 

“Following the November 29, 2021 arguments on motions in limine and jury instructions, jury 

selection proceeded on November 30, 2021.” As to instructing the jury: “The court instructed the 

jury. The court then sent the jury off to begin deliberation.” 

¶ 17 After deliberations, the jury returned a $235,000 verdict in favor of Finn on the 

defamation claim. The court did not immediately enter judgment, ordering the parties to file 

written arguments regarding Finn’s remaining Wage Act claim. Before their arguments were 

due, Finn filed a motion for leave to amend his Wage Act claim “to conform with the trial 

evidence.” In that motion, Finn doubled down on his theory under the Wage Act and claimed 

that he proved he was entitled to additional unpaid compensation under the Act. (The court 

ultimately denied this motion in its judgment order.)

¶ 18 When the parties finally submitted their written trial briefs, Finn exclusively argued that 

he had proven his Wage Act claim and that he was entitled to damages under the Wage Act. For 

their part, defendants argued that Finn had not proven the existence of a contract or agreement, 

which is a prerequisite to recovery under the Wage Act. See Catania v. Local 4250/5050 of the 

Communications Workers of America, 359 Ill. App. 3d 718, 724 (2005) (Wage Act claim 

requires proof of contract or some agreement).

¶ 19 In mid-December, the court entered judgment on the jury verdict and took the Wage Act 

claim under advisement. Two weeks later, the court entered judgment in favor of Finn, but not 

under the Wage Act. Instead, the court ordered that “[j]udgment is entered in favor of Brian Finn 
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and against defendant PRS in the amount [of] $23,483.09 for services provided in 2014 and 2015 

under a theory of unjust enrichment.” (Emphasis added.)

¶ 20 The court reached this conclusion after agreeing with defendants that Finn’s Wage Act 

claim failed: “there was no oral agreement because there was no evidence of acceptance of an 

exact offer and a meeting of the minds as to the terms of the agreement.” The court further wrote 

that “Finn argues that even if there was no 2014 agreement, this court should apply the terms of 

the agreement under a theory of quantum meruit/unjust enrichment.” The court refused to 

superimpose the equitable theory of quantum meruit into the Wage Act but, reasoning that Finn 

had proven that he had performed some work deserving of compensation, concluded that he was 

entitled to quantum meruit relief under the common law.

¶ 21 Complicating matters, the judge presiding over the trial retired shortly after entering 

judgment on Finn’s claims. Post-trial motions were heard by a different judge.

¶ 22 In their post-trial motions, defendants challenged the jury verdict by arguing, among 

other things, that the court erred by providing the jury with faulty instructions on defamation 

per se. Finn responded, much as he does here, that defendants forfeited their challenge to the jury 

instructions.

¶ 23 While Finn was obviously happy with the jury verdict on his defamation claim, he 

challenged the court’s denial of his Wage Act claim. Defendants, for their part, argued (as here 

on appeal) that the court erred by awarding equitable relief on an unpleaded claim.

¶ 24 In ruling on all the post-trial motions, the new judge did not address whether defendants 

had forfeited their challenge to the jury instructions. Instead, it addressed the merits, concluding 

that “Rosheim fails to show the given instructions misled the jury and resulted in prejudice.” 

Regarding the quantum meruit/unjust enrichment award, the court relied on Edens View Realty & 
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Investment, Inc. v. Heritage Enterprises, Inc., 87 Ill. App. 3d 480 (1980), to conclude that the 

circuit court had the authority to enter judgment in Finn’s favor on that quasi-contractual relief 

even though he had not pleaded it in his complaint.

¶ 25 Thus finding no error, the court denied all the post-trial motions. Defendants timely 

appealed, challenging the defamation and quantum meruit/unjust enrichment judgments. Finn did 

not cross-appeal.

¶ 26 ANALYSIS

¶ 27 I

¶ 28 We begin with defendants’ challenge to the jury award on Finn’s defamation claim. To 

establish defamation, the plaintiff must prove that (1) the defendant made a false statement about 

the plaintiff, (2) the defendant published that false statement to a third party, and (3) the 

published statement damaged the plaintiff’s reputation. Project44, Inc. v. FourKites, Inc., 2022 

IL App (1st) 210575, ¶ 21, aff’d, 2024 IL 129227, ¶ 31; Goldberg v. Brooks, 409 Ill. App. 3d 

106, 110 (2011). To establish defamation per se, which presumes damages, the allegedly false 

statement must fit into one of the five categories recognized under Illinois law, including two 

that are alleged here: imputing a lack of integrity in the discharge of one’s employment and a 

lack of ability to conduct in business in one’s chosen profession. See Green v. Rogers, 234 Ill. 2d 

478, 491-92 (2009). 

¶ 29 But the law recognizes privileges, both absolute and qualified, to protect defendants from 

defamation liability under certain circumstances. Project44, 2022 IL App (1st) 210575, ¶ 47. As 

the only issue here is qualified privilege, we limit our discussion accordingly. 

¶ 30 The purpose of a qualified privilege is to protect honest communications of incorrect 

information in certain circumstances to facilitate the availability of correct information. Dent v. 
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Constellation NewEnergy, Inc., 2022 IL 126795, ¶ 30; Kuwik v. Starmark Star Marketing & 

Administration, Inc., 156 Ill. 2d 16, 24 (1993). A privileged communication is one that may be 

defamatory and actionable except for the circumstances under which the communication is 

made, typically one that society deems of sufficient importance that a free exchange of 

information is critical. Dent, 2022 IL 126795, ¶ 30. For example, we have sometimes found 

conversations in a business or employment setting regarding the conduct of other employees to 

be protected by a qualified privilege. See, e.g., Popko v. Continental Casualty Co., 355 Ill. App. 

3d 257, 264 (2005); Larson v. Decatur Memorial Hospital, 236 Ill. App. 3d 796, 799 (1992); 

Miller v. Danville Elks Lodge 332, 211 Ill. App. 3d 145, 153 (1991). 

¶ 31 A key point for our purposes is that a qualified privilege elevates a defamation plaintiff’s 

burden of proof. Dent, 2022 IL 126795, ¶ 30. In the absence of qualified privilege, a plaintiff 

need only show that the defendant acted with negligence in making the defamatory statement. Id.

Once a defendant establishes a qualified privilege, however, a plaintiff must show malice—that 

is, a direct intention to injure the plaintiff or a reckless disregard of the plaintiff’s rights and the 

resulting harm to the plaintiff. Id.; Kuwik, 156 Ill. 2d at 26, 30. 

¶ 32 That is where the rubber meets the road here. Defendants claim that the trial court failed 

to properly instruct the jury on qualified privilege and malice.1

1In their opening brief on this point of error, defendants make a few scattered references to the 

denial of their (oral) motion for directed verdict and the denial of their motion for judgment 

notwithstanding the verdict (JNOV). But as best we can discern, the argument regarding qualified 

privilege and malice always leads back to the discussion of faulty jury instructions. And defendants do 

not pray for outright reversal, which would be the result if we agreed that a directed verdict or JNOV 

should have been entered; they merely seek a new trial based on instructional error. To the extent 

defendants intended to raise a freestanding (though related) argument that the trial court erred in not 

granting a directed verdict or JNOV, that argument is forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 

2020). 
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¶ 33 Finn responds that defendants forfeited any claim of instructional error because they 

“agreed” to the instruction or, at a minimum, the record does not show that they objected to these 

final jury instructions. See Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516, 557 (2008) (“A party 

forfeits the right to challenge a jury instruction that was given at trial unless it makes a timely 

and specific objection to the instruction and tenders an alternative, remedial instruction to the 

trial court.”).

¶ 34 Defendants, though acknowledging the absence of a report of proceedings that 

affirmatively documents any objection, argue that “the proceedings leading up to and after the 

trial *** show that Rosheim continually and timely voiced his opposition to the proposed 

instructions.” That reply is true as far as it goes but a bit short of responsive. It is undeniably true 

that defendants raised objections to the jury instructions during pretrial proceedings, but it also 

true that the day before trial—November 29—the court gave Finn an opportunity to amend his 

instructions overnight, and the court advised defendants that they would have another 

opportunity to object after seeing them the following day:

“THE COURT: Yes. I just think [defendants’ proffered instruction] is a little 

cumbersome, so I’m going to refuse it, but you’ll be able to critique the issue instruction 

that the Plaintiff will present tomorrow. 

[DEFENSE COUNSEL]: Understood. 

THE COURT: That’s instruction number 27. Same with instruction number 28. 

Same with instruction 29. Same with instruction number 30. I’m going to refuse again—

counsel, I’m refusing these at this time, but all of this is contingent on what issue 

instruction is provided the Court. So if you don’t believe these are addressed in the issue 

instructions, you can bring it back up. 
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[DEFENSE COUNSEL]: Thank you, Your Honor.” (Emphases added.)

¶ 35 It is fundamental that a party must object to a proposed jury instruction to preserve its

right to challenge it on appeal. See id. As our supreme court has explained, the forfeiture rule in 

this context promotes judicial economy and fundamental fairness—its purposes are to “ensure 

that the trial court has the opportunity to correct a defective instruction and to prevent the 

challenging party from gaining an unfair advantage by failing to act when the trial court could 

remedy the faulty instruction and then obtaining a reversal on appeal.” Id. at 557-58; see People 

v. Roberts, 75 Ill. 2d 1, 11 (1979); People v. Wilson, 2017 IL App (1st) 143183, ¶ 22; People v. 

Banks, 2016 IL App (1st) 131009, ¶ 71; Majcher v. Laurel Motors, Inc., 287 Ill. App. 3d 719, 

735 (1997); Dean v. Keith’s & Ralph’s Tavern, Inc., 25 Ill. App. 3d 970, 972 (1975). 

¶ 36 Here, while Finn may be overstating it when he claims that defendants “agreed” to the 

revised instructions submitted on the day of trial, the record provides no indication that 

defendants objected to that final set of instructions, though invited to do so by the trial court. As 

noted above, we lack a transcript of proceedings, so we cannot know for certain what defendants 

did or did not say about these final set of instructions. We would note that defendants, on appeal, 

never actually come out and say that they did object; they point to their previous objections to 

earlier versions of the instructions only. 

¶ 37 But the more important point is that as the appellants here, defendants carry the burden of 

providing a complete record on appeal to support their legal arguments; all doubt arising from an 

incomplete record is resolved against the appellant. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 

(1984). We are left only with the agreed statement of facts, which says merely this about the 

final set of jury instructions: “Following the November 29, 2021 arguments on motions in limine

and jury instructions, jury selection proceeded on November 30, 2021.” And at the close of trial: 
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“The court instructed the jury. The court then sent [the] jury off to begin deliberation.” 

¶ 38 Defendants have given us no basis in the record to find that they timely objected to the 

final set of jury instructions. We obviously cannot merely assume that they did; to the contrary, 

given the burden on the appellants here, we must assume the opposite. If, as we must assume, 

defendants did not object, then the trial court had no reason to believe that defendants had any 

issue with the revised jury instructions proffered by Finn on the first day of trial. We must honor 

the forfeiture here and reject defendants’ challenge to the jury instructions.

¶ 39 II

¶ 40 We now turn to the court’s granting of relief to Finn under the equitable theory of 

quantum meruit after determining that Finn’s Wage Act claim failed for lack of a contract or 

agreement. The record alternatively shows an award for unjust enrichment and quantum meruit; 

on appeal, the parties settle on quantum meruit as the remedy. As the particular form of quasicontractual relief is not relevant to the outcome, we will use the parties’ preference for quantum 

meruit.

¶ 41 The critical and undisputed facts animating this question are that Finn never pleaded a 

cause of action for quantum meruit in his complaint, nor did he seek leave to so amend his 

complaint to do so. That is to say, Finn maintained his Wage Act claim, insisting that he had a 

valid contract with defendants, throughout this action—even after the close of proof, when he 

sought to amend his complaint not to add an alternative equitable claim like quantum meruit but 

to specify additional damages for his Wage Act claim based on the trial evidence. The court 

eventually determined that no valid contract existed between the parties, which was fatal to his 

Wage Act claim, as that claim requires an employment contract or agreement. See Majmudar v. 

House of Spices (India), Inc., 2013 IL App (1st) 130292, ¶ 11; 820 ILCS 115/1 et seq. (West 
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2012). But the court proceeded to rule that Finn was entitled to recovery under a theory of 

quantum meruit for the value of the services he performed.

¶ 42 We are thus required to answer this question: May a plaintiff recover under a cause of 

action that he never pleaded in his complaint at any time, even after the close of proof? The 

answer, we believe, is a resounding no. The only surprise here is that this answer is even 

remotely controversial.

¶ 43 In 1965, after two iterations of our codified civil practice laws were enacted (first in 

1934, then amended in 1956), this court wrote: “The plaintiff’s case must stand or fall upon the 

fraud and deceit charged. The issues in this litigation, as in all cases, are determined from the 

pleadings and evidence; and an issue cannot be sustained by evidence, absent a corresponding 

pleading, or by a pleading, without supporting evidence.” Broberg v. Mann, 66 Ill. App. 2d 134, 

137 (1965). We elaborated:

“It is a fundamental rule, with no exceptions, that a party must recover, if at all, on and 

according to the case he has made for himself by his pleadings. He cannot make one case 

by his averments, and have judgment on another and different ground, even though the 

latter is established by the proof.” (Internal quotation marks omitted.) Id. at 137-38. 

¶ 44 This rule is so deeply entrenched that it has made its way into notable Illinois civilpractice treaties. See Stanley Magic-Door, Inc. v. City of Chicago, 104 Ill. App. 3d 380, 385 

(1982) (“ ‘[I]ssues in a case are formed by the pleadings and allegations, and the proof must 

correspond to such. A plaintiff may recover only on the case made in his complaint. He cannot 

make one case by his allegations and recover on a different case made by the proof.’ ” (quoting 2 

Clark A. Nichols, Illinois Civil Practice § 874, at 89 (1979))).

¶ 45 We say much the same—even literally the same thing—today: 
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 “ ‘The issues in any litigation are determined by the pleadings and an issue cannot 

be sustained by evidence absent a corresponding pleading. [Citation.] It is a fundamental 

rule, with no exceptions, that a party must recover, if at all, on and according to the case 

he has made for himself by his pleadings. He cannot make one case by his averments, and 

have judgment on another and different ground, even though the latter is established by 

the proof. [Citation.] [A] party cannot plead one cause of action in its complaint and 

receive judgment on the basis of a different cause of action.’ ” Wheeler Financial, Inc. v. 

Law Bulletin Publishing Co., 2018 IL App (1st) 171495, ¶ 74 (quoting In re Estate of 

Bontkowski, 337 Ill. App. 3d 72, 77 (2003)). 

See also Lindblad v. Nelson, 2019 IL App (1st) 181205, ¶ 24 (“ ‘A plaintiff fixes the issues in 

controversy and the theories upon which recovery is sought by the allegations in his complaint.’ 

[Citation.] *** ‘If the defendant is entitled to judgment as a matter of law on the claims as pled 

by the plaintiff, the motion will be granted without regard to the presence of evidentiary material 

which might create a right of recovery against the moving defendant on some unpled claim or 

theory.’ ” (quoting Pagano v. Occidental Chemical Corp., 257 Ill. App. 3d 905, 911 (1994))). 

¶ 46 In Wheeler, 2018 IL App (1st) 171495, ¶ 75, the plaintiff pleaded the existence of an oral 

contract or alternatively an implied contract. But at trial, the plaintiff insisted that it had 

established a written contract and sought a directed verdict in its favor. Id. The plaintiff appealed 

the denial of its motion for directed verdict; this court held that the plaintiff could not recover on 

a theory it did not plead. Id. Likewise, in Bontkowski, 337 Ill. App. 3d at 77, an estate action 

challenging the conveyance of real property, the court invalidated the deed based on theories of 

fiduciary relationship and undue influence, neither of which the estate had pleaded. We held that 

“the circuit court erred in setting aside the *** deed on the grounds of fiduciary relationship and 
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undue influence where such theories were not pled.” Id. at 78. 

¶ 47 In Pagano, 257 Ill. App. 3d at 911, the plaintiff challenged the entry of summary 

judgment on her negligence claim, arguing that the evidence showed that the defendant 

maintained its property in an unsafe condition. We affirmed, noting that 

“the plaintiff never alleged in his complaint that [the defendant] was in any way negligent 

in the manner in which it maintained its property or that any condition upon the property 

caused the injuries for which he sought recovery. A plaintiff fixes the issues in 

controversy and the theories upon which recovery is sought by the allegations in his 

complaint. The very purpose of a complaint is to advise the defendant of the claim it is 

called upon to meet.” Id. 

¶ 48 The presence of evidence supporting an unpleaded theory was of no moment; other than 

attempting to amend the complaint after-the-fact, which the plaintiff did not do, “the plaintiff 

will not be heard to complain that summary judgment was inappropriately granted because of the 

existence of evidence supporting a theory of recovery that he never pled in his complaint.” Id.

¶ 49 Again, this strikes us as uncontroversial. To be sure, Illinois is generous in its pleading 

rules. We liberally permit amendments to the complaint, even after trial to conform to the proof. 

See 735 ILCS 5/2-616(a) (West 2020); Holloway v. Chicago Heart & Vascular Consultants, 

Ltd., 2017 IL App (1st) 160315, ¶ 31 (“ ‘courts are encouraged to freely and liberally allow the 

amendment of pleadings’ ” (quoting Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 467 

(1992))). And we allow pleading in the alternative when a plaintiff has multiple claims that are 

contradictory. See 735 ILCS 5/2-613(b) (West 2020). In fact, the alternative pleading of a 

breach-of-contract claim along with a quasi-contractual theory like quantum meruit is all but 

routine, even though the claims are mutually exclusive. See, e.g., Guinn v. Hoskins Chevrolet, 
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361 Ill. App. 3d 575, 604 (2005); Stephen L. Winternitz, Inc. v. National Bank of Monmouth, 289 

Ill. App. 3d 753, 759 (1997). 

¶ 50 Indeed, it is precisely because of these liberal rules—the ability to freely amend and, in 

particular, to plead in the alternative—that it is only fair to require a plaintiff to plead any 

possibly applicable causes of action in the complaint. A plaintiff loses nothing by pleading in the 

alternative; until trial, when the proof will show that one theory or the other (or perhaps neither) 

carries the day, the plaintiff maintains both options—but the defendant, at a minimum, is on 

notice of each theory and can prepare a defense accordingly.

¶ 51 Here, to bring the point home, Finn easily could have pleaded a quasi-contractual theory 

in the alternative to his Wage Act claim, if he had reason to fear that he could not prove the 

existence of a valid contract. But had he done so, defendants here could have prepared a defense 

for a claim of quantum meruit or unjust enrichment or the like. Instead, defendants went to trial 

focusing only on a Wage Act claim, choosing the (successful) strategy of attacking one particular 

element of that claim—the existence of an employment contract or agreement. They had no 

reason to prepare for an equitable, quasi-contractual claim, because over the six years this 

lawsuit pended, Finn never once pleaded one. 

¶ 52 And if Finn had tried to plead a quantum meruit claim at the midnight hour—either on 

the eve of trial or even at the close of proof—at least defendants would have had the opportunity 

to resist that effort, to argue that leave to amend should be denied under the familiar Loyola 

Academy factors. See Loyola Academy v. S&S Roof Maintenance, Inc., 146 Ill. 2d 263, 273 

(1992). Perhaps defendants would have asked to reopen the proof if Finn were permitted to raise 

a new cause of action at such a late juncture. But the bottom line is that each party could have 

had their say before the court ruled. 
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¶ 53 Here, however, the court essentially converted a statutory legal claim—a Wage Act 

claim—into an equitable quasi-contractual claim without any notice whatsoever to defendants. 

Defendants had no chance to defend that claim at trial, nor were they given the chance to argue

in advance against converting that claim via an amendment to the pleadings. 

¶ 54 It would seem obvious, then, that the court erred, just as the court erred in Wheeler and in

Bontkowski, by granting Finn relief based on a cause of action he did not plead. We have 

repeatedly stated over the years that limiting plaintiffs’ recovery to the causes of action they 

plead is “a fundamental rule, with no exceptions.” (Internal quotation marks omitted.) Wheeler, 

2018 IL App (1st) 171495, ¶ 74; Bontkowski, 337 Ill. App. 3d at 77; Broberg, 66 Ill. App. 2d at 

137-38; Seaburg v. Williams, 23 Ill. App. 2d 25, 30 (1959); Fornoff v. Smith, 281 Ill. App. 232, 

236 (1935).

¶ 55 But the answer here is not so obvious, as a body of case law—almost all from the last 

century—has observed or held, without analysis or commentary, that a plaintiff prosecuting a 

breach-of-contract action may nevertheless be entitled to quantum meruit relief without 

amending the complaint to plead that cause of action. See In re Marriage of Pavlovich, 2019 IL 

App (1st) 180783, ¶ 31; Edens, 87 Ill. App. 3d at 485; Slater v. Jacobs, 56 Ill. App. 3d 636, 638 

(1977); Nardi & Co. v. Allabastro, 20 Ill. App. 3d 323, 327-28 (1974). The circuit court here, for 

example, cited Edens in granting relief to Finn on an unpleaded quantum meruit claim.

¶ 56 The source of this appellate case law is the 1937 supreme court decision of Moreen v. 

Estate of Carlson, 365 Ill. 482 (1937), which does appear to support the proposition that a 

plaintiff who pleads a common-law contract action that ultimately fails may recover quantum 

meruit damages without amending her complaint. The cases cited above followed Moreen or its 

progeny without any further analysis, despite the many changes in our Code of Civil Procedure 
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over the years. As all roads lead to Moreen, and we are bound by that decision if applicable, no 

matter its age, a close analysis of that decision is in order. 

¶ 57 In Moreen, the plaintiff filed a claim in probate court against the decedent’s estate, 

claiming that she and the decedent had entered into a contract whereby, in exchange for the 

plaintiff caring for the decedent, the decedent would bequeath his estate to her upon his death. Id.

at 483. The trial court found that no valid contract was formed, but the plaintiff was entitled to 

quantum meruit damages. Id. The appellate court reversed that award of damages for two 

reasons—there was no evidence submitted of the value of the plaintiff’s services, and the 

plaintiff had not pleaded a cause of action for quantum meruit, only one for breach of contact. Id.

at 494; see In re Estate of Carlson, 286 Ill. App. 81, 90 (1936).

¶ 58 The supreme court held that it was proper to permit quantum meruit damages in this 

context. Moreen, 365 Ill. at 493. The court did not squarely address the fact that the plaintiff had 

not pleaded quantum meruit as an alternative cause of action; the court wrote only this one 

sentence on the entire topic: “In Anderson v. Biesman & Carrick Co. [citation], (decided since 

the rendition of its opinion in the present case,) the same division of the Appellate Court has 

reached a like conclusion supported by subdivision three of section 33 and section 42 of the Civil 

Practice act.” Id.

¶ 59 As the supreme court correctly noted, the earlier appellate decision of Anderson v. 

Biesman & Carrick Co., 287 Ill. App. 507, 511-12 (1936), held that a plaintiff raising a commonlaw contract claim may obtain quantum meruit damages without pleading that claim if the 

contract is found to be unenforceable. In Anderson, however, the plaintiff had claimed at trial 

that he was seeking quantum meruit damages in addition to a claim of breach of contract, telling 

the judge that “ ‘[m]y statement of claim is not predicated on the contract alone, but on a 
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reasonable amount. I am suing on two theories ... I can’t show then the reasonable value?’ ” Id.

at 509-10. The trial court ruled that the plaintiff had only technically pleaded a contract claim 

and ultimately disregarded any evidence relating to quantum meruit, even though the defendant 

amended its answer to respond to that quasi-contract claim. Id. at 510. 

¶ 60 The appellate court reversed, relying on the new Civil Practice Act that had taken effect 

in 1934—the first time Illinois had ever codified civil procedure—and in particular two 

provisions of that law. First, section 33 provided in part that “ ‘[p]leadings shall be liberally 

construed with a view to doing substantial justice between the parties.’ ” Id. at 512 (quoting Ill. 

Rev. Stat. 1935, ch. 110, ¶ 161). Second, section 42 of that 1934 law provided that “ ‘[n]o 

pleading shall be deemed bad in substance which shall contain such information as shall 

reasonably inform the opposite party of the nature of the claim or defense which he is called 

upon to meet.’ ” Id. (quoting Ill. Rev. Stat. 1935, ch. 110, ¶ 170).

¶ 61 Relying on these provisions, the appellate court reasoned “that by plaintiff’s statement of 

claim the defendant was reasonably informed in the matter as to plaintiff’s position and the 

evidence which would be brought forward in support thereof.” Id. The court thus reversed and 

remanded for a new trial on quantum meruit damages. Id.

¶ 62 So Anderson is a decision where the plaintiff made clear during the trial that he was 

pursuing a quantum meruit claim as well as a contract claim, and the defendant clearly 

understood as such and even responded to that claim in its answer (what was then known as a 

“statement of defense”). Anderson came down to a debate over the technicalities of the 

pleadings, notwithstanding that all parties were fully on notice, whereas in Moreen, from what 

we can gather, the plaintiff had never so much as mentioned a quantum meruit claim while 

prosecuting her contract action. It is a bit curious, then, that the supreme court in Moreen would 
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rely so heavily on Anderson given this fairly significant difference in the facts.

¶ 63 Regardless, it is not our place to disagree with a supreme court decision. If the decision in 

Moreen is controlling, as Finn here argues, we are obviously bound by it. For two reasons, 

however, we do not consider ourselves bound by Moreen. 

¶ 64 First, to the extent that Moreen remains viable nearly a century later, it stands as the only 

exception to the rule that, before a plaintiff may recover under a cause of action, it must plead 

that cause of action in its complaint—what we have previously deemed “a fundamental rule, 

with no exceptions.” (Internal quotation marks omitted.) Wheeler, 2018 IL App (1st) 171495, 

¶ 74; Bontkowski, 337 Ill. App. 3d at 77. A defendant is entitled, at a bare minimum, to know 

what claims it must defend. We have already cited a body of decisions for this modern view of 

pleadings. See Lindblad, 2019 IL App (1st) 181205, ¶ 24; Wheeler, 2018 IL App (1st) 171495, 

¶ 74; Bontkowski, 337 Ill. App. 3d at 77; Pagano, 257 Ill. App. 3d at 911; Stanley Magic-Door, 

104 Ill. App. 3d at 385; Broberg, 66 Ill. App. 2d at 137-38. We could cite countless more.

¶ 65 So we will certainly not extend this exception beyond the holding of Moreen, and we take 

our cue from another court that recently followed this same route. In Pavlovich, 2019 IL App 

(1st) 180783, ¶ 3, a marital dissolution case, a law firm (H&B) sought attorney fees from its 

client, Aneta. The trial court denied the fee petition because H&B did not have a written 

agreement for legal services with Anita as required by section 508 of the Illinois Marriage and 

Dissolution of Marriage Act. H&B then argued that, failing a written contract, it was entitled to 

fees as quantum meruit. Id. ¶¶ 9-12. 

¶ 66 We agreed with the trial court that section 508 required a written contract. Id. ¶ 23. We

refused to allow H&B to bootstrap a quantum meruit claim onto its case without ever having 

pleaded it, even after recognizing the Edens decision from 1980, part of the Moreen progeny: 
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“We recognize that, where a party brings a common-law claim for breach of contract and 

is unable to prove the existence of the contract, he is entitled to proceed under a theory of 

quantum meruit without amending his pleadings. See Edens View Realty & Investment, 

Inc. v. Heritage Enterprises, Inc. [citation]. Here, H&B did not bring a common-law 

action for breach of contract. Rather, it brought a fee petition under the very specific 

provisions of section 508 of the Act, despite the very clear limitations in the language of 

section 508 and despite the option of instituting an independent action for common-law 

quantum meruit without such limitations.” Id. ¶ 31. 

¶ 67 Likewise, here, Finn did not institute a common-law action for breach of contract. 

Instead, Finn filed a statutory claim under the Wage Act. True, the Wage Act requires a valid 

contract or at least an agreement, much like section 508 of the marriage statute, but it remains a 

claim based on a statute, not the common law. Nothing stopped Finn from raising common-law 

actions of either breach of contract, quantum meruit, or both. We agree with Pavlovich that the 

Moreen decision is inapplicable to a statutory claim and decline to extend Moreen to these facts.

¶ 68 Second, we agree with the recent observation of a sister appellate court that “a careful 

review of the evolution of the Illinois Civil Practice Act suggests that this holding in Moreen and 

its progeny may be at odds with the current iteration of the Act.” Roberson Construction, LLC v. 

Ellerby, 2021 IL App (2d) 191095-U, ¶ 95. Albeit in dicta, the court in Roberson noted that, at 

the time Moreen was handed down, “the revolutionary 1933 Civil Practice Act had just become 

effective, whereby substantial aspects of the common law were replaced by statute.” Id. ¶ 97.

¶ 69 And while this new law required litigants to plead separate causes of action for the first 

time and allowed them to plead in the alternative, the “former chancery practice of including a 

general prayer for relief still persisted despite the effort to abolish it.” Id. ¶ 98 (citing Civil 
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Practice and Procedure–Survey of Illinois Law for the Year 1947-1948, 27 Chi.-Kent L. Rev. 24, 

32 (1948)). So when the legislature redrafted the civil practice laws in the mid-1950s, it went to 

some lengths to emphasize that a plaintiff need not fear pleading inconsistent alternative theories 

in a complaint:

“In 1956, the Illinois Legislature enacted another overhaul of the Civil Practice Act. 

[Citation.] Section § 43 of the Act was amended to read, ‘When a party is in doubt as to 

which of two or more statements of fact is true, he may, regardless of consistency, state 

them in the alternative or hypothetically in the same or different counts or defenses, 

whether legal or equitable.’ (Emphasis added.) Id. § 43(2). The drafters of the 1956 Act 

stated in the Joint Committee Comments that the words ‘regardless of consistency’ were 

inserted to make clear ‘that alternative pleading of facts is sanctioned in spite of 

inconsistencies, removing any doubt in that regard under the present act.’ Id., Joint 

Committee Comments, at 514.” Id.

¶ 70 The court then noted that the current iteration of the Code of Civil Procedure retains this 

language about pleading in the alternative, even if theories are incompatible with one another, as 

well as the requirement that each cause of action be pleaded in a separate count. Id. ¶ 99; see 735 

ILCS 5/2-603(b) (West 2020) (“Each separate cause of action upon which a separate recovery 

might be had shall be stated in a separate count ***.”); 735 ILCS 5/2-613(b) (West 2020) 

(“When a party is in doubt as to which of two or more statements of fact is true, he or she may, 

regardless of consistency, state them in the alternative or hypothetically in the same or different 

counts or defenses.”). 

¶ 71 As we noted earlier, the ability to plead inconsistent theories in separate counts (or even 

the same count), which first appeared explicitly in the civil practice laws in 1956, is the principal 
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reason why no plaintiff should ever be excused from pleading whatever cause of action may be 

potentially applicable. If a plaintiff were required to choose between suing under an express 

contract and seeking equitable quasi-contractual relief, we might understand the desire to excuse 

a pleading deficiency, but the availability of alternative, inconsistent pleading removes that 

concern entirely. Indeed, our supreme court has repeatedly emphasized the availability of 

alternative, inconsistent pleading. See, e.g., McQueen v. Green, 2022 IL 126666, ¶ 43 (“ ‘Illinois 

law unquestionably allows litigants to plead alternative grounds for recovery *** as long as the 

alternative factual statements are made in good faith ***.’ ” (quoting Heastie v. Roberts, 226 Ill. 

2d 515, 557-58 (2007))). 

¶ 72 We agree with the court in Roberson that the Moreen decision may no longer be 

applicable in light of the modern changes to our civil practice laws that were not present at the 

time the supreme court rendered its 1937 decision. And we find it highly unlikely that the 

supreme court would agree with the outcome of Moreen today, nearly a century later, under the 

current version of the Code of Civil Procedure. 

¶ 73 In any event, as we find Moreen distinguishable, we need not decide the viability of that 

decision under the current civil practice laws. For the reasons we have given, the trial court erred 

in granting sua sponte relief under the unpleaded claim of quantum meruit. We reverse that 

award of damages.

¶ 74 CONCLUSION

¶ 75 We affirm the circuit court’s order entering judgment on the defamation jury verdict and 

reverse its award of quantum meruit damages.

¶ 76 Affirmed in part and reversed in part. 
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Finn v. Project Resource Solutions, LLC, 2024 IL App (1st) 221016

Decision Under Review: Appeal from the Circuit Court of Cook County, Nos. 15-L-11963, 

16-CH-165; the Hon. Diane Shelley and the Hon. Thomas 

Donnelly, Judge, presiding.

Attorneys

for

Appellant:

Michael A. Munson, of Chicago, and Grant O. Jaskulski, of 

Hewson & Van Hellemont, P.C., of Oak Park, Michigan, for 

appellants.

Attorneys

for

Appellee:

Laurie E. Leader, of Law Offices of Laurie E. Leader, LLC, of 

Lincolnshire, and Michael Lee Tinaglia, of Law Offices of 

Michael Lee Tinaglia, Ltd., of Park Ridge, for appellees.