Lawrence Hess v. Kanoski & Associat ( 2012 )


Menu:
  •                            In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 11-1850
    L AWRENCE J. H ESS and V ICKIE C. W ARREN,
    Plaintiffs-Appellants,
    v.
    K ANOSKI & A SSOCIATES, et al.,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Central District of Illinois.
    No. 09-3334—Michael P. McCuskey, Chief Judge.
    A RGUED S EPTEMBER 28, 2011—D ECIDED F EBRUARY 2, 2012
    Before B AUER, W OOD , and T INDER, Circuit Judges.
    W OOD , Circuit Judge. This case involves a spat over
    attorneys’ fees—in particular, the fees that the firm of
    Kanoski & Associates allegedly owes to its former associ-
    ate, Lawrence Hess. After some five years at the firm,
    Hess was abruptly dismissed. Afterwards, the firm
    settled several of the cases on which Hess had been
    working and refused to pay Hess bonuses or fees based
    on those settlements. Hess believes that he is entitled to
    2                                               No. 11-1850
    some of that money. He first tried to obtain the pay-
    ments by filing attorney’s liens in Illinois state courts.
    When that strategy failed, he filed this action in federal
    court against the firm, its president Ronald Kanoski,
    and Kennith Blan, Jr., a lawyer loosely associated with
    the firm who took over Hess’s cases.
    The district court granted the defendants’ motion
    for summary judgment. It held that the Illinois courts
    had already determined that the firm did not owe Hess
    any payments based on cases that had settled after he
    was fired. As we explain below, this was error. No
    court—neither the Illinois state courts nor the district
    court below—has ever decided whether Hess’s employ-
    ment agreement entitles him to compensation for work
    he did on those cases. Hess makes a plausible case that
    the agreement entitles him to at least some portion of
    these revenues. He notes that his contract required the
    firm to give him 30 days’ notice before terminating his
    employment, but it failed to do so. At the very least, in
    his view, he is entitled to a share in the settlements
    reached during that period. We agree with Hess that
    summary judgment was inappropriate for his contract
    theories, which he raises in Count I under the Illinois
    Wage Payment and Collection Act (IWPCA) and in
    Count IV under general contract law. The remainder of
    Hess’s complaint, however, was correctly dismissed.
    Accordingly, we affirm in all other respects.
    I
    Kanoski & Associates bills itself as the “largest personal
    injury law firm in central Illinois.” Kanoski & Associates,
    No. 11-1850                                             3
    http://www.kanoski.com/ (last visited Jan. 30, 2012). The
    firm hired Hess on May 9, 2001, to work primarily
    on medical malpractice cases. His employment was
    governed by an agreement that set out his salary and
    bonus pay. At first Hess apparently performed well for
    the firm and obtained several favorable settlements. But
    by 2007, things had gone south; on February 14 of that
    year, Ronald Kanoski (the firm’s president, as we men-
    tioned earlier) fired Hess. In the wake of that action,
    the firm transferred several of Hess’s cases to Kennith
    Blan, Jr., a lawyer working as an independent contractor
    for the firm. Over the course of the next year and a half,
    the firm—largely through Blan’s efforts—settled many
    of these cases. For example, in June 2008, one case
    settled for $1.25 million.
    Hess believed that Blan and the firm had pushed him
    out in order to settle his cases without sharing with him
    the generous compensation that accompanied the settle-
    ments. In May 2008 Hess began pursuing the fees
    to which he thought he was entitled. In a letter, he de-
    manded payment from the firm for $316,616.21 in
    unpaid bonuses. He also filed attorney’s liens in Illinois
    state court in two of the cases the firm had settled with-
    out him. Neither claim was successful, for the simple
    reason that Hess no longer had an attorney-client rela-
    tionship with the clients.
    Hess then turned to federal court, which had jurisdic-
    tion under 
    28 U.S.C. § 1332
     because both plaintiffs are
    citizens of Missouri and all defendants are citizens
    of Illinois; the amount in controversy easily exceeded
    4                                              No. 11-1850
    $75,000. His complaint raised a slew of state-law allega-
    tions against the firm. It contains eleven counts in all,
    including such claims as consumer fraud, conspiracy,
    and “intentional/negligent” spoliation of evidence. His
    wife, Vickie Warren, raised her own claim for loss of
    consortium.
    At its essence, this case boils down to a single question
    of contract interpretation: Was Hess entitled under his
    employment agreement to compensation arising out of
    any of the post-termination settlements? The district
    court did not decide this question. Instead, it granted
    summary judgment to the defendants on the ground
    that the state court litigation had already resolved this
    issue in the firm’s favor and thus Hess was collaterally
    estopped from litigating it anew.
    We review the district court’s grant of summary judg-
    ment de novo, drawing all reasonable inferences in the
    light most favorable to Hess, the nonmoving party. Egan
    v. Freedom Bank, 
    659 F.3d 639
    , 642 (7th Cir. 2011). Sum-
    mary judgment is appropriate only when there is no
    genuine issue as to any material fact and the moving
    party is entitled to judgment as a matter of law. 
    Id.
     As
    we explain, summary judgment was appropriate for
    most, but not all, of Hess’s claims.
    II
    A
    We begin with the two counts in Hess’s complaint
    that rest most directly on his employment agreement:
    No. 11-1850                                               5
    Count I, the claim under the IWPCA; and Count IV, the
    claim for breach of contract. Stating that Hess “had no
    right to bonus money for any recoveries which
    occurred after his termination,” the district court granted
    summary judgment for the firm. It gave two reasons for
    that conclusion: first, it believed that Hess had admitted
    in his deposition that he was paid all that he was due;
    and second, it understood that the state lien decisions
    had already determined that Hess had no right to
    post-termination payment and therefore that Hess was
    precluded from reopening the point. Neither rationale,
    however, stands up to scrutiny.
    The district court’s reading of Hess’s deposition testi-
    mony failed to construe all facts and reasonable infer-
    ences in Hess’s favor, as it should have done at this
    stage of the litigation. Cedar Farm, Harrison Cnty., Inc. v.
    Louisville Gas & Elec. Co., 
    658 F.3d 807
    , 810 (7th Cir.
    2011). The court focused on Hess’s admission that when
    he left the firm the bonuses he already had been paid
    were in the correct amounts. Later during the deposition,
    Hess clarified this response. He emphasized that he
    had not received all of the bonuses he believed he was
    owed because some settlements occurred after he
    was fired. As he put it, “there’s a handful [of cases] out
    there that, as an example, went to Mr. Blan. I didn’t get
    bonuses on those.” It was error for the district court to
    construe Hess’s statement that he had received some
    bonuses in the correct amounts as a broader admission
    that he had no claim to any other bonus. Nowhere in his
    deposition does Hess admit that the firm paid him
    the latter bonuses.
    6                                                No. 11-1850
    Nor does any state court decision preclude Hess from
    raising the issue of his post-termination bonuses. In the
    state lien matters the courts rejected Hess’s claims
    because Hess no longer had an attorney-client relation-
    ship with the clients. See Thompson v. Skeffington, et al.,
    4-09-076 (Ill. App. Ct. May 26, 2010) (“Hess did not have
    an attorney-client relationship with Thompson when
    he served his notice of an attorney’s lien. On that basis
    alone, the trial court’s striking Hess’s invalid attorney’s
    lien was proper.”); Lloyd v. Billiter, et al., 5-09-0065 (Ill.
    App. Ct. Oct. 15, 2010) (“Any attorney-client relation-
    ship between Hess and plaintiffs had long ceased.”).
    The district court focused on one sentence in Lloyd—
    that Hess’s “employment contract would bar any claim
    he has for further compensation for his work on the
    Lloyd litigation”—and thought that this settled the mat-
    ter. But the state court’s decision must be read in con-
    text. The state court was not evaluating Hess’s rights
    against the firm; it was looking at whether Hess could
    assert a right against the clients to be paid. The state
    court concluded that he could not pursue the clients
    both because he was no longer in an attorney-client
    relationship with the clients and because his contract
    gave him “no proprietary right or interest in representa-
    tion of [the firm’s clients].” The court never considered
    whether Hess had a claim for payment against his
    former employer. Since the issues were different, nothing
    in the state court decisions serves as a basis for issue
    preclusion. See, e.g., Wakehouse v. Goodyear Tire & Rubber
    Co., 
    818 N.E.2d 1269
    , 1275 (Ill. App. Ct. 2004).
    No. 11-1850                                               7
    This brings us to the merits of Hess’s claims. To
    succeed on his breach of contract claim, Hess must show
    “(1) the existence of a valid and enforceable contract;
    (2) performance by the plaintiff; (3) breach of contract
    by the defendant; and (4) resultant injury to the plain-
    tiff.” Henderson-Smith & Assoc., Inc. v. Nahamani Family
    Serv. Ctr., Inc., 
    752 N.E.2d 33
    , 43 (Ill. App. Ct. 2001). To
    prevail on his IWPCA claim, Hess must first show that
    he had a valid contract or employment agreement.
    Illinois courts have explained that an agreement under
    the IWPCA is “broader than a contract.” Zabinsky v. Gelber
    Group, Inc., 
    807 N.E.2d 666
    , 671 (Ill. App. Ct. 2004) (the
    IWPCA “requires only a manifestation of mutual assent
    on the part of two or more persons; parties may enter
    into an ‘agreement’ without the formalities and accompa-
    nying legal protections of a contract”). The IWPCA re-
    quires an employer to pay an employee any final compen-
    sation due under that contract or agreement at the time
    of separation; it defines final compensation to include
    “wages, salaries, earned commissions, earned bonuses, . . .
    and any other compensation owed by the employer
    pursuant to an employment contract or agreement
    between the two parties.” 820 ILCS 115/2 (2006).
    The parties do not dispute that Hess had a valid
    contract with the firm (his “employment agreement,” not
    to be confused with “agreement” as it is used by the
    IWPCA) and that, until his termination, he adequately
    performed as an employee under that contract. The
    dispute is solely over whether Hess’s employment agree-
    ment entitled him to bonuses on settlements that were
    8                                               No. 11-1850
    collected after he left the firm. The employment agree-
    ment originally provided that Hess would receive “15%
    of all fees generated over the base salary (or $5,000
    per month) with a guarantee of One Hundred and Twenty
    Five Thousand ($125,000). Bonus shall increase to 25% of
    all fees received annually in excess of $750,000.00.” The
    firm later modified Hess’s compensation on June 21,
    2002, increasing his base salary and changing the bonus
    structure to “40% of all fee revenue generated” (with
    some exceptions). (While the district court was ap-
    parently unsure whether the agreement included the
    terms found in a June 21 letter from the firm to Hess
    that Hess had never signed, we see no reason not to
    include that material. The critical signature is that of the
    party against whom the contract is being enforced, and
    that signature was present.)
    No court has ever resolved the question whether
    this contract requires the firm to pay Hess bonuses
    from post-termination settlements. The language of the
    contract is not clear because the contract does not define
    when fees are “generated.” Fees might be “generated”
    when work is performed on a case, because the work
    ultimately leads to the settlement. This does not seem
    odd if one considers the scenario in which an attorney
    works on a case until it is nearly ready for settlement,
    is fired, and then the next day the firm accepts a settle-
    ment without her. If, on the other hand, fees are “gener-
    ated” only when received by the firm, Hess would not
    be entitled to the post-termination settlement earnings.
    Under Illinois law, undefined terms are generally
    given their “plain, ordinary, and popular meaning” as
    No. 11-1850                                                 9
    found in dictionary definitions. Outboard Marine Corp. v.
    Liberty Mut. Ins. Co., 
    607 N.E.2d 1204
    , 1215 (Ill. 1993); see
    also Frederick v. Prof’l Truck Driver Training Sch., Inc., 
    765 N.E.2d 1143
    , 1152 (Ill. App. Ct. 2002). Resort to dic-
    tionary definitions often, however, does not settle the
    question; that is the case here. The infinitive “to generate”
    means (among other things) “to bring into existence”
    or “to be the cause of.” M ERRIAM-W EBSTER D ICTIONARY
    O NLINE, http://www.merriam-webster.com/dictionary/
    generated (last visited Jan. 30, 2012); see also O XFORD
    E NGLISH D ICTIONARY O NLINE , http://www.oed.com/
    viewdictionaryentry/Entry/77518 (defining “generated” as
    “[p]roduced, created; caused”) (last visited Jan. 30, 2012).
    Work performed before a settlement is obtained in
    some sense produces or brings that settlement into exis-
    tence. On the other hand, it is possible that the parties
    intended “generated” to be limited to the final act of
    bringing a fee into existence, i.e., actually obtaining
    the cash in hand. Where language in a contract appears
    to be “susceptible to more than one meaning,” Illinois
    courts will “consider extrinsic evidence to determine
    the parties’ intent.” Thompson v. Gordon, 
    948 N.E.2d 39
    , 47
    (Ill. 2011).
    Even if the district court concludes that Hess’s inter-
    pretation is too broad and thus the contract does not
    entitle Hess to bonuses on all of the post-termination
    settlements, Hess has a good argument that he is
    entitled at least to the fees related to settlements
    obtained within the 30-day period after he was fired. The
    contract required the firm to give Hess 30 days’ notice
    before it ended his employment, but it did not do so. A
    10                                                 No. 11-1850
    30-day provision is consistent with an at-will contract,
    H. Vincent Allen & Associates, Inc. v. Weis, 
    379 N.E.2d 765
    , 771-72 (Ill. App. Ct. 1978), but breach of the 30-day
    provision requires the firm to pay Hess whatever com-
    pensation he was due during that time. See, e.g., Equity
    Ins. Managers of Ill., LLC v. McNichols, 
    755 N.E.2d 75
    , 81 (Ill.
    App. Ct. 2001). At least one of the settlements Hess
    has identified—the Hoelscher settlement—was obtained
    within that 30-day period. He is entitled to press his
    argument that the contract gave him the right to bonuses
    in connection with that settlement, no matter what
    the parties meant by the term “generated.”
    Contract interpretation is something on which we
    conduct independent review, Holmes v. Potter, 
    552 F.3d 536
    , 538 (7th Cir. 2008), but “[w]here, as here, there is
    more than one reasonable way to read the parties’
    contract, it is not our role to choose among the com-
    peting reasonable interpretations.” Curia v. Nelson,
    
    587 F.3d 824
    , 832 (7th Cir. 2009). Especially in light of the
    fact that the parties have not fully briefed this question
    before our court, we remand for the district court to
    interpret the contract and consider the merits of Hess’s
    theories under Counts I and IV.
    B
    Hess has also asserted that the defendants induced a
    breach of contract (Count V) and tortiously interfered
    with his contracts (Count VI). These two counts are
    functionally the same: Illinois courts address allegations
    that parties have improperly induced breach under the
    No. 11-1850                                               11
    tortious-interference framework. See, e.g., Complete Con-
    ference Coordinators, Inc. v. Kumon N. Am., 
    915 N.E.2d 88
     (Ill. App. Ct. 2009); Cress v. Recreation Serv., Inc., 
    795 N.E.2d 817
    , 844 (Ill. App. Ct. 2003).
    To prove tortious interference, Hess must show “(1) the
    existence of a valid and enforceable contract between
    the plaintiff and another; (2) the defendant’s aware-
    ness of the contract; (3) the defendant’s intentional and
    unjustified inducement of a breach of the contract;
    (4) a subsequent breach by the other, caused by the defen-
    dant’s conduct; and (5) damages.” Complete Conference
    Coordinators, Inc., 
    915 N.E.2d at 93
    . We agree with the
    district court that Hess cannot meet these elements
    with respect to any defendant. As to the claim against
    the firm and Kanoski in his capacity as firm president,
    Hess founders because his contract with the firm is not
    with “another.” In Illinois, “[i]t is well established that
    a party cannot tortiously interfere with a contract to
    which he is a party.” Fiumetto v. Garrett Enter., Inc.,
    
    749 N.E.2d 992
    , 1004 (Ill. App. Ct. 2001).
    This leaves only Hess’s tortious interference claim
    against Blan. Hess had to point to some evidence in
    the record that could support a finding that Blan’s in-
    tentional conduct caused the firm to breach Hess’s em-
    ployment contract. The only evidence Hess offered was
    an allegation that Blan disparaged Hess’s work to a
    client, but he had no proof that anyone at the firm
    heard this comment. Without any evidence that Blan’s
    conduct caused the firm to breach its contract with
    Hess, summary judgment for Blan was appropriate.
    12                                                 No. 11-1850
    Hess also alleged that the defendants interfered with
    a variety of other rights, such as his attorney’s liens and
    alleged contractual arrangements he had with his former
    clients. The district court correctly dismissed all of
    these claims because the only contract to which Hess was
    a party was his employment contract, and under that
    contract, Hess had no right to an ongoing relationship
    with the firm’s clients. We therefore affirm the grant
    of summary judgment on Counts V and VI of the com-
    plaint.
    C
    The remainder of Hess’s complaint is a ragtag of
    poorly pleaded claims, and like the district court, we
    can quickly dispose of them. A few of Hess’s claims lack
    any support in Illinois law. Hess has no claim under the
    Illinois Consumer Fraud Act, Count II, because Hess
    was an employee, not a “consumer.” 815 ILCS 505/1(e). His
    claim for wrongful discharge, Count III, fails because
    Hess was an at-will employee and an at-will employee
    cannot sue for wrongful discharge. Hartlein v. Ill. Power
    Co., 
    601 N.E.2d 720
    , 728 (Ill. 1992). Even though at-will
    employees in Illinois can sometimes sue for retaliatory
    discharge, 
    id.,
     this does not apply to attorneys like Hess.
    Jacobson v. Knepper & Moga, P.C., 
    706 N.E.2d 491
    , 494 (Ill.
    1998). Hess’s claim in Count IX for breach of fiduciary
    duty is doomed because Hess’s relationship with the
    firm was that of employer/employee, and in Illinois, this
    relationship does not give rise to a fiduciary duty. Hytel
    Group, Inc. v. Butler, 
    938 N.E.2d 542
    , 548 (Ill. App. Ct. 2010).
    No. 11-1850                                                13
    Partners in a law firm may owe one another a fiduciary
    duty because of their profit-sharing arrangements, Dowd
    v. Dowd, Ltd. v. Gleason, 
    693 N.E.2d 358
     (Ill. 1998), but
    that doctrine does not help Hess because he was an
    employee, not a partner.
    Hess’s claims for unjust enrichment and quantum
    meruit in Count VII are also unsupported by Illinois law.
    Unjust enrichment is an equitable remedy that lies where
    a “defendant has unjustly retained a benefit to the plain-
    tiff’s detriment and . . . the defendant’s retention of the
    benefit violates the fundamental principles of justice,
    equity, and good conscience.” A.P. Properties, Inc. v.
    Rattner, ___ N.E.2d ___, 
    2011 WL 5321174
    , *3 (Ill. App. Ct.
    2011). Quantum meruit is a quasi-contract doctrine
    that allows courts to imply the existence of a contract
    to prevent injustice. Hayes Mech., Inc. v. First Indus., L.P.,
    
    812 N.E.2d 419
    , 426 (Ill. 2004). A plaintiff cannot pursue
    either action, however, if his relationship with a
    defendant is—like Hess’s with the firm—governed by
    an express contract. See Stathis v. Geldermann, Inc., 
    692 N.E.2d 798
    , 812 (Ill. App. Ct. 1998) (unjust enrichment);
    Keck Garrett & Assoc., Inc. v. Nextel Commc’ns, Inc., 
    517 F.3d 476
    , 487 (7th Cir. 2008) (quantum meruit).
    All that is left of Count VII are Hess’s claims for quantum
    meruit and unjust enrichment against Blan and Kanoski
    in his individual capacity, but they too lack merit. A
    plaintiff cannot recover under quantum meruit if he has
    no expectation that the defendant would be the one to
    pay for the services. Paradise v. Augustana Hosp. & Health
    Care Ctr., 
    584 N.E.2d 326
    , 329 (Ill. App. Ct. 1991). Any
    14                                            No. 11-1850
    payment Hess expected to receive would have been
    from the firm, not Blan or Kanoski individually. Nor can
    Hess show that either Blan or Kanoski were unjustly
    enriched. If Blan worked on the cases and was entitled
    to receive bonuses under his own contract, then he
    should have received those bonuses; Blan’s bonus was
    not received to Hess’s detriment. And Hess makes no
    allegation that Kanoski retained Hess’s bonus in his
    individual capacity. It is the firm that would have wrong-
    fully retained Hess’s bonus payments (assuming Hess
    succeeds on his contract and wage claims), not Kanoski
    individually.
    The district court properly disposed of the remaining
    counts because they lacked adequate development or
    support. This court has repeatedly explained that “per-
    functory and undeveloped arguments, and arguments
    that are unsupported by pertinent authority, are waived.”
    United States v. Hook, 
    471 F.3d 766
    , 775 (7th Cir. 2006).
    Hess has made no argument on appeal to support his
    claim in Count VIII for spoilation of evidence and thus
    has waived this claim. As to his claim in Count VIII for
    conversion, on appeal Hess focuses only on a dispute
    over vacation pay, but Hess admitted in his deposition
    that the parties had “worked . . . out” the vacation pay
    issue.
    Hess’s civil conspiracy claim in Count XI fares no
    better. Hess’s pleadings are bare of any factual allega-
    tions that support this claim. The complaint stated,
    without elaboration, that the “defendants combined
    with each other to commit unlawful acts mentioned
    No. 11-1850                                             15
    above or to cover up the unlawful acts mentioned
    above.” This is not enough. See Seng-Tiong Ho v. Taflove,
    
    648 F.3d 489
    , 502 (7th Cir. 2011). The only facts Hess
    has pointed to in this case with respect to Blan’s involve-
    ment—the disparaging remarks previously discussed—are
    insufficient to support a finding of causation, which is
    one of the elements of civil conspiracy. See Clarage v.
    Kuzma, 
    795 N.E.2d 348
    , 358-59 (Ill. App. Ct. 2003).
    Finally, we turn to Warren’s complaint for loss of con-
    sortium, raised in Count X. This claim is “necessarily
    predicated on the claim of a directly injured spouse.”
    Monroe v. Trinity Hosp.-Advocate, 
    803 N.E.2d 1002
    , 1005
    (Ill. App. Ct. 2003). Because Hess no longer has any live
    tort claims against defendants, his wife’s claim was
    correctly dismissed.
    ****
    We R EVERSE the district court’s grant of summary
    judgment on Counts I and IV and A FFIRM on all other
    counts. The case is R EMANDED for further proceedings
    consistent with this opinion. Each side is to bear its
    own costs.
    2-2-12