Pozniak v. Duba
2022 IL App (1st) 192530-U
| Ill. App. Ct. | 2022Background
- Plaintiff Andrzej (Andrew) Pozniak, a licensed roofer and public adjuster, entered a written roof-damage consulting agreement (April 3, 2015) with defendants Roger Duba, Churchill Cabinet, and Chicago Gaming providing for a 33% contingency fee on recovered amounts. The contract’s original reference to owners’ insurance was crossed out and annotated "No - not our insurance company. They were not at fault."
- Defendants pursued a third-party liability claim against BRZ’s carrier, Travelers, rather than a first-party claim. Travelers initially offered ~$190,600, later raised its offer to $416,500; a check for $461,058.67 (including temporary repairs) was deposited to Churchill Cabinet. Andrew prepared a $1.2 million replacement estimate and participated in inspections and communications that led to a higher settlement offer.
- Roger terminated the consulting agreement in February 2016, accused Andrew of misrepresenting his role and of improper conduct, and refused to pay the 33% fee. Andrew sued in Cook County on theories including breach of contract, unjust enrichment, quantum meruit, and fraudulent misrepresentation; defendants counterclaimed under the Consumer Fraud Act.
- The circuit court (bench trial) found defendants’ witnesses not credible and Andrew generally credible; it held the February 2016 letter effectively terminated the contract but did not bar recovery for services performed beforehand.
- The trial court rejected defenses that the contract was void under the Public Adjusters Law, that Andrew had engaged in unauthorized practice of law, and that his hands were unclean. It awarded Andrew quantum meruit damages of $89,265 plus costs (33% of the increase in Travelers’ offer) and entered judgment for defendants on breach and unjust enrichment; the court also ruled for Andrew on the amended counterclaim.
- Defendants appealed and Andrew cross-appealed; the appellate court affirmed in full.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the contract is void as against public policy under the Public Adjusters Law | Pozniak: the contract was a third-party consulting agreement (roofing consultant), not a public-adjuster engagement regulated by the Public Adjusters Law | Duba: Pozniak, a licensed public adjuster, violated Public Adjusters Law (no required written form for first-party adjustment) and thus contract is void | Court: contract not void — Public Adjusters Law does not expressly prohibit a public adjuster from providing third-party consulting; freedom to contract applies unless clear statutory/public-policy contravention |
| Whether the agreement required unauthorized practice of law | Pozniak: he provided roofing/consulting services and consulted counsel on legal issues | Duba: the contract necessarily required Pozniak to perform legal services | Court: issue forfeited; alternatively, Pozniak’s services were technical/roofing, not legal practice — no unauthorized-practice problem |
| Whether the doctrine of unclean hands bars recovery | Pozniak: denied wrongdoing; his conduct did not amount to fraud or bad faith affecting the matter litigated | Duba: Pozniak failed to disclose conflicts, tried to coerce inflated claims, committed misconduct | Court: trial court did not abuse discretion — credibility findings favored Pozniak; alleged misconduct did not reach fraud/bad-faith level to invoke unclean hands |
| Proper remedy and damages after termination (quantum meruit vs. contract recovery; calculation) | Pozniak: entitled to contract amount (33% of recovery) or, at minimum, full quantum meruit for services rendered | Duba: termination precludes contract remedy; any equitable recovery barred by misconduct | Court: contract was terminable; Pozniak entitled to quasi-contract relief for services rendered — awarded $89,265 (33% of the difference between Travelers’ initial and final offer) as reasonable value; award not manifestly erroneous |
Key Cases Cited
- Eychaner v. Gross, 202 Ill. 2d 228 (discussing manifest-weight standard and trial-court deference)
- Founders Ins. Co. v. Munoz, 237 Ill. 2d 424 (statutes for public protection cannot be rewritten by private agreement)
- First Nat’l Bank of Springfield v. Malpractice Research, Inc., 179 Ill. 2d 353 (courts sparingly invalidate contracts on public-policy grounds)
- Jespersen v. Minn. Mining & Mfg. Co., 183 Ill. 2d 290 (contracts of indefinite duration generally terminable at will)
- Rome v. Upton, 271 Ill. App. 3d 517 (examples of contracts invalidated for contravening public policy)
- Kim v. Citigroup, Inc., 368 Ill. App. 3d 298 (strict test for declaring contracts void as against public policy)
- People ex rel. Ill. State Bar Ass’n v. Schafer, 404 Ill. 45 (practice of law includes services requiring legal skill; tests character of acts)
- Downtown Disposal Servs., Inc. v. City of Chicago, 2012 IL 112040 (Supreme Court authority over defining/practice of law)
- Bernstein & Grazian, P.C. v. Grazian & Volpe, P.C., 402 Ill. App. 3d 961 (quantum meruit elements and recovery for reasonable value of services)
- Fieldcrest Builders, Inc. v. Antonucci, 311 Ill. App. 3d 597 (appellate review of quantum meruit valuations)
- Doe v. Dilling, 228 Ill. 2d 324 (elements required to prove fraudulent misrepresentation)