Rico Industries, Inc. v. TLC Group, Inc. ( 2018 )

2018 IL App (1st) 172279No. 1-17-2279
Fourth Division
December 27, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
)
RICO INDUSTRIES, INC., ) Appeal from the Circuit Court
) of Cook County.
Plaintiff and Counterdefendant-Appellee, )
) No. 12 CH 35979
v. )
) The Honorable
TLC GROUP, INC., ) Margaret Ann Brennan,
) Judge Presiding.
Defendant and Counterplaintiff-Appellant. )
)
______________________________________________________________________________
JUSTICE GORDON delivered the judgment of the court, with opinion.
Justices Reyes and Burke concurred in the judgment and opinion.
OPINION
¶1 The instant appeal arises from an agreement between plaintiff, Rico Industries, Inc., and
defendant, TLC Group, Inc., in which defendant was to be the exclusive sales representative
of plaintiff’s products sold to Walmart. Plaintiff later sought to terminate the agreement,
which contained a provision providing that it was only terminable upon the mutual consent of
the parties, so plaintiff filed a complaint for declaratory judgment seeking a declaration that
the agreement was terminable at will because it was a contract of indefinite duration. In
return, defendant filed a number of counterclaims, alleging that it had not been paid all of the
commissions to which it was entitled. Initially, the trial court granted defendant’s motion for
No. 1-17-2279
judgment on the pleadings pursuant to section 2-615 of the Code of Civil Procedure (Code)
(735 ILCS 5/2-615 (West 2012)), finding that the clause requiring a mutual agreement to
terminate the contract was enforceable. However, the trial court granted plaintiff’s motion to
certify the question for our review, and on appeal, we found that the contract was terminable
at will because it was a contract of indefinite duration. Rico Industries, Inc. v. TLC Group,
Inc., 2014 IL App (1st) 131522, ¶ 35. Accordingly, we reversed the trial court’s grant of
judgment on the pleadings and remanded for further proceedings. After remand, defendant
amended its counterclaims several times; the trial court dismissed the majority of the counts
and granted summary judgment on the two that survived dismissal. On appeal, defendant
challenges (1) the trial court’s grant of summary judgment on two counts of defendant’s
second amended counterclaim, (2) the trial court’s dismissal of six counts of its amended
counterclaims, and (3) several of the trial court’s evidentiary rulings. For the reasons that
follow, we affirm.
¶2 BACKGROUND
¶3 On September 24, 2012, plaintiff filed a complaint for declaratory judgment, alleging that
plaintiff was in the business of manufacturing and distributing gift and novelty products to
retail markets and that, on December 17, 2007, plaintiff and defendant entered into a written
sales commission agreement whereby defendant would serve as plaintiff’s sales
representative with respect to certain products in Walmart stores. 1 The complaint alleged that
plaintiff desired to terminate the agreement but that the agreement contained a provision
providing that the agreement was terminable only upon the written consent of both parties.
Accordingly, in count I of the complaint, plaintiff sought a declaratory judgment that such a
1
The complaint was amended twice, most recently on January 7, 2013.
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clause was unenforceable as against public policy and that the agreement was terminable at
will. In count II of the complaint, plaintiff alleged that there was a dispute as to whether
defendant was owed commissions for sales of certain products to Walmart, and plaintiff
sought resolution of that dispute. 2
¶4 Attached to the complaint was a copy of the agreement, the entirety of which comprised
approximately two-thirds of a page. As relevant to the instant appeal, the agreement provided
the following with respect to commissions:
“When Products are sold to Wal-Mart (including store level purchases) or a
purchase order is received by [plaintiff] from Wal-Mart, a commission is earned
(Commission). Commissions shall be calculated by multiplying the flat rate of twelve
per cent (12%) times the net sales. [Plaintiff] shall pay Commissions no later than the
20th of the month following the day the Commission was earned.”
¶5 On January 16, 2013, defendant filed a motion to dismiss count I of the second amended
complaint or, in the alternative, for judgment on the pleadings with respect to that count. On
the same day, defendant filed an answer to count II of the second amended complaint and a
five-count counterclaim, in which defendant raised claims for (1) an accounting; (2) breach
of contract, based on plaintiff’s alleged failure to pay commissions; (3) violation of the
Arkansas sales representative statute (Arkansas Act) (Ark. Code Ann. § 4-70-301 et seq.
(West 2012)); (4) in the alternative, violation of the Illinois Sales Representative Act
(Illinois Act) (820 ILCS 120/0.01 et seq. (West 2012)); and (5) in the alternative,
quantum meruit. All counts of the counterclaim were based on allegations that plaintiff had
2
On appeal, neither count of the complaint is at issue; the only issues concern defendant’s
counterclaims.
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failed to pay commissions after it sought to terminate the agreement and on allegations that
plaintiff had underpaid defendant commissions owed on prior sales.
¶6 On April 4, 2013, the trial court granted defendant’s motion for partial judgment on the
pleadings, finding that the termination provision was not unenforceable as against public
policy. Plaintiff requested the trial court to certify the question for interlocutory appeal, and
on May 1, 2013, the trial court entered an order doing so. On June 6, 2013, we granted
plaintiff’s petition for leave to appeal, and on February 7, 2014, we found that the
termination provision was unenforceable as against public policy and, accordingly, reversed
the grant of defendant’s motion for judgment on the pleadings and remanded the case to the
trial court. Rico Industries, Inc., 2014 IL App (1st) 131522, ¶¶ 35-36.
¶7 On April 2, 2014, plaintiff filed a motion to dismiss all counts of defendant’s
counterclaim pursuant to section 2-615 of the Code, and on July 17, 2014, the trial court
granted the motion without prejudice. On August 14, 2014, defendant filed an amended
counterclaim, and on September 25, 2014, plaintiff filed a motion to dismiss the amended
counterclaim pursuant to section 2-615 of the Code. On March 17, 2015, the trial court
granted the motion to dismiss and gave defendant leave to replead its counterclaim. On the
same day, the trial court entered an order transferring the case from the chancery division to
the law division because only contract claims for money damages remained.
¶8 On April 28, 2015, defendant filed its second amended counterclaim, in which it stated
seven causes of action. Count I was for violation of the Arkansas Act (Ark. Code Ann. § 4­
70-301 et seq. (West 2012)), alleging that defendant was an Arkansas corporation and that all
in-person communications between the parties occurred in Arkansas and all meetings and
orders with respect to Walmart occurred in Arkansas and claiming the parties were subject to
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the Arkansas Act. Count I alleged that plaintiff used defendant’s services until Walmart
selected plaintiff as a “preferred vendor” in 2012, after which plaintiff “concluded that it no
longer needed [defendant] to preserve and enhance its relationship with Wal-Mart” and
thereafter tried to modify or, in the alternative, terminate the agreement between the parties.
Count I alleged that plaintiff failed to pay defendant any commissions after September 2012
and also underpaid defendant for commissions it was owed between December 2007 and
September 2012. Count I alleged that under the Arkansas Act, this conduct entitled defendant
to treble damages, plus attorney fees and costs.
¶9 Count II was pleaded in the alternative and alleged violations of the Arkansas Act limited
to the failure to pay commissions on purchase orders and sales dated prior to September 24,
2012.
¶ 10 Count III was pleaded in the alternative and was for violation of the Illinois Act (820
ILCS 120/0.01 et seq. (West 2012)). As with count I, count III alleged that plaintiff failed to
pay commissions after September 2012, as well as underpaid commissions owed prior to that
date. As with the Arkansas Act, defendant alleged that the Illinois Act entitled it to treble
damages, plus attorney fees and costs.
¶ 11 Count IV, like count II, was pleaded in the alternative and alleged violations of the
Illinois Act limited to the failure to pay commissions on purchase orders and sales dated prior
to September 24, 2012.
¶ 12 Count V was pleaded in the alternative and was for promissory estoppel, alleging that
defendant relied upon plaintiff’s promises made in the agreement and that, in reliance on that
agreement, defendant lost the business of other vendors that it had previously represented
with respect to Walmart and the opportunity to represent those vendors to Walmart. Count V
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sought commissions on all purchase orders issued by Walmart to plaintiff after September
24, 2012, for the purchase of goods and merchandise covered by the terms of the agreement.
¶ 13 Count VI was based on the procuring cause doctrine, and alleged that as of September 24,
2012, defendant had already begun putting together plans for Walmart’s 2013 fall football
program and had shown Walmart all of plaintiff’s products for the 2013 April Major League
Baseball (MLB) program. Count VI alleged that Walmart had “verbally committed to placing
with [plaintiff] the purchase orders for said products for both programs,” which count VI
alleged were estimated to be in the range of $3 to $5 million. Count VI alleged that “[i]t was
then and had been the practice and procedure of Wal-Mart” that once Walmart had
committed to placing purchase orders for a program, Walmart would, in fact, place the
purchase orders for that program. Count VI alleged that, “[b]ased on the timing and stage of
the process, and the practice and procedure of Wal-Mart aforesaid, and the fact that [plaintiff]
had been placed in the position of being a preferred vendor to Wal-Mart through
[defendant’s] efforts as aforesaid, there existed a reasonable degree of certainty that said
purchase orders would be issued to and were issued to [plaintiff].” Count VI alleged that, as
the procuring cause of the purchase orders, defendant was entitled to commissions on the
orders.
¶ 14 Finally, count VII was pleaded in the alternative and was for quantum meruit. Count VII
alleged that plaintiff had been unjustly enriched by receipt and enjoyment of defendant’s
services without payment of commissions to defendant.
¶ 15 On September 25, 2015, plaintiff filed a motion to dismiss defendant’s second amended
counterclaim pursuant to section 2-615 of the Code. Plaintiff argued that defendant failed to
state a cause of action with respect to each count of its counterclaim. As a preliminary matter,
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plaintiff claimed that defendant’s counterclaim attempted to reinstate the agreement, when
our earlier opinion had expressly found that the agreement was terminable at will. With
respect to counts I and II, involving the Arkansas Act, plaintiff claimed that Illinois law
should apply. With respect to counts III and IV, involving the Illinois Act, plaintiff claimed
that the counterclaim did not allege conduct so egregious as to rise to the level of
quasicriminal conduct, which is required to state a claim for treble damages. With respect to
count V, for promissory estoppel, plaintiff claimed that such a cause of action was not
available in the presence of an enforceable contract between the parties. With respect to
count VI, for procuring cause, plaintiff claimed that such a cause of action was only available
where the contract did not expressly provide for when commissions will be paid, which was
not the case in the case at bar. Finally, with respect to count VII, for quantum meruit,
plaintiff claimed that quasicontractual recovery was unavailable where the parties had an
express contract governing the issue.
¶ 16 On January 8, 2016, the trial court entered an order dismissing counts I, II, III, V, and VII
of defendant’s second amended counterclaim for failure to state a cause of action. With
respect to counts I and III, the counts seeking commissions after September 24, 2012, under
the Arkansas Act and the Illinois Act, respectively, the trial court found that defendant could
not state a cause of action because both prior trial court rulings and our appellate court
opinion found that the agreement was justifiably terminated because the termination clause
was against public policy. With respect to count II, concerning the Arkansas Act, the trial
court found that Illinois, not Arkansas, law applied and that defendant’s “backdoor attempt to
undermine the First District Appellate Court’s ruling is unpersuasive.” The court found that
when we determined that the agreement was properly terminated, we “ruled that the Contract
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is to be governed under Illinois Law and the law of the case applies.” With respect to counts
V and VII, for promissory estoppel and quantum meruit, respectively, the trial court found
that neither cause of action was available where there was an express contract between the
parties concerning the same subject matter.
¶ 17 The trial court, however, denied the motion to dismiss with respect to counts IV and VI.
With respect to count IV, concerning violation of the Illinois Act for unpaid commissions
prior to the termination of the agreement, the trial court found that defendant’s allegations
that plaintiff intentionally and fraudulently failed to pay commissions owed to defendant
within 13 days of termination were sufficient to state a cause of action at the pleading stage
of the proceedings. Finally, with respect to count VI, concerning the procuring cause
doctrine, the trial court found that the agreement was ambiguous as to whether commissions
were limited to the term of the contract or could be earned after its termination. Accordingly,
the trial court found that defendant had stated a cause of action with respect to that count.
¶ 18 On June 8, 2016, defendant filed a motion for leave to file an amendment to its second
amended counterclaim, which was granted on June 27, 2016. The amendment to the second
amended counterclaim added a count VIII for “procuring cause for commissions earned on
reorders and replenishments by Wal-Mart after September 24, 2012,” claiming that defendant
was owed commissions for reorders and replenishments even after September 24, 2012,
because it was the procuring cause of such orders.
¶ 19 On July 19, 2016, defendant filed a motion to compel plaintiff to provide certain
documents in discovery concerning the sales of goods to Walmart. Defendant claimed that
plaintiff had produced approximately 7000 pages of documents but that they were
disorganized and only a fraction were responsive to the document requests. However,
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defendant claimed that these documents showed that plaintiff could produce the information
when it desired to, demonstrating that plaintiff was not unable to produce the rest of the
documents as it claimed. Accordingly, defendant sought an order directing plaintiff to
produce (1) its internal sales reports, commission statements, and records of purchase orders
that it received from Walmart since December 17, 2007; (2) all documentation available to
plaintiff from Walmart’s electronic data system or otherwise concerning or relating to the
purchase orders issued by Walmart to plaintiff from and after September 24, 2012, for the
2013 MLB program and the 2013 football program (which was also known as the “Back to
School” program); and (3) its internal sales reports, commission statements, and records of
purchase orders that it received from Walmart since September 24, 2012, that were for
replenishments or reorders of products for which Walmart had issued purchase orders to
plaintiff between December 17, 2007, and September 24, 2012, and for the 2013 MLB
program and the 2013 Back to School football program.
¶ 20 On July 25, 2016, plaintiff filed a motion to dismiss defendant’s amendment to its second
amended counterclaim 3 pursuant to section 2-615 of the Code, claiming that defendant’s new
procuring cause count, which sought commissions on all reorders even where defendant had
already received commissions on the initial order, was simply a repackaging of defendant’s
quantum meruit claim, which had previously been dismissed. Plaintiff also argued that the
procuring cause doctrine had no applicability to the instant case, where the language of the
agreement governed the payment of commissions.
3
We note that the file-stamped copy of the amendment to the second amended counterclaim
contained in the record on appeal bears the date of September 22, 2016. Plaintiff’s motion to dismiss the
amendment appears to have been based on the proposed amendment that was attached to defendant’s
motion for leave to file the amendment. However, the new procuring cause count of the proposed
amendment is identical to the subsequently filed amendment.
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¶ 21 On August 1, 2016, the trial court entered an order in which it ordered plaintiff “to
produce any commission or sales reports in its possession responsive to [defendant’s]
requests to produce to date. [Plaintiff] is not obligated to create any reports not in its
possession.” On October 20, 2016, the trial court entered a case management order in which
it ordered that plaintiff “shall file a certificate of compliance that it has fully complied with
its obligations to produce documents by October 28, 2016.”
¶ 22 On October 28, 2016, the trial court entered an order granting plaintiff’s motion to
dismiss defendant’s amendment to its counterclaim. The trial court found that the amendment
sought commissions for reorders of products that plaintiff had previously sold to Walmart
and that defendant “had no involvement with these reorders, and cannot allege that it
procured these specific sales.” Accordingly, the trial court dismissed defendant’s amendment
to its second amended counterclaim with prejudice. On November 30, 2016, defendant filed a
motion to reconsider the dismissal or, in the alternative, to give it leave to amend, which was
denied by the trial court on January 18, 2017.
¶ 23 On March 29, 2017, plaintiff filed a motion for summary judgment on the two remaining
counts of defendant’s second amended counterclaim: count IV, concerning violations of the
Illinois Act, and count VI, concerning the procuring cause doctrine. With respect to count IV
for violation of the Illinois Act, plaintiff argued that it was entitled to summary judgment
because the Illinois Act was not applicable because it was not intended to provide a remedy
to a representative that was challenging the termination itself and when the representative
was unable to identify a specific commission for which it was unpaid. Plaintiff further argued
that, since defendant challenged plaintiff’s right to terminate the agreement, it would have
been impossible for plaintiff to pay whatever was owed within 13 days of termination and
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that its declaratory judgment action insulated it from liability. Plaintiff also argued that
defendant ratified whatever commissions were paid to it, as defendant had “complete and
unfettered access” to plaintiff’s sales reports at all times and received checks and e-mails
specifically referencing the commission percentage it was being paid on certain sales.
¶ 24 With respect to count VI for procuring cause, plaintiff argued that it was entitled to
summary judgment because informal discussions with Walmart, or even verbal
commitments, did not obligate Walmart to purchase anything from plaintiff.
¶ 25 Attached to the motion for summary judgment were a number of excerpts from
deposition transcripts. First, in his discovery deposition, Tony Caire, defendant’s principal
owner, testified that he was unaware that he had been underpaid until he received
information in discovery from Walmart and that plaintiff had repeatedly refused his requests
for information. Caire testified that he discovered defendant was being paid 4%, not 12%, on
some sales and that he was unaware of this fact at the time; Caire denied that he had a
separate arrangement with plaintiff in which defendant would accept 4% commissions on
local, in-store sales as opposed to the 12% it received for corporate sales. However, he
admitted that he recalled a number of conversations to that effect with plaintiff in 2010 and
received several checks that indicated a 4% commission. Caire also testified that there were
occasions where he asked plaintiff to send him sales reports but that plaintiff did not always
send them. With respect to orders, Caire testified that he was entitled to commissions once
Walmart “gave the okay that there was going to be an order,” not when the purchase order
was actually placed. Caire testified that Walmart would verbally commit to an order 9 to 12
months in advance so that the supplier could begin processing the product but would not send
in a purchase order until 30 to 60 days prior to the shipment date. With respect to damages,
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Caire testified that he did not have the necessary information to compute the dollar amount of
his damages. Caire testified that his employees had access to Walmart’s Retail Link software,
but that he did not, and the access was terminated “probably sometime in 2011 or late 2010.”
¶ 26 Next, in an evidence deposition, Corbin Cauldwell testified that he worked for defendant
from August 2007 until September 2011 as a category manager. He had access to Retail
Link, which was a proprietary product from Walmart that permitted sales reports to be
generated and had the ability to generate any reports that defendant requested concerning its
relationship with Walmart. He did not recall Caire ever asking him to run Retail Link reports
in order to confirm sales and determine what the commissions should be. Cauldwell testified
that he had Retail Link access until the time he left defendant’s employment, at which point
his replacement took over. Cauldwell testified that he worked closely with Daniel Schack
from plaintiff in order to put corporate sales programs together and following up to determine
how plaintiff’s product was performing in the stores. Cauldwell further testified that a vendor
like plaintiff could obtain orders both from the corporate side, using a representative like
defendant, and through local, in-store representatives. If a local representative was used, that
representative would be entitled to a commission. Cauldwell recalled there being an issue
where defendant also wanted to be paid commissions on the local representatives’ sales but
could not recall how that issue was resolved.
¶ 27 One of the exhibits to Cauldwell’s deposition was a supplier agreement between Walmart
and plaintiff. The supplier agreement defined “Order” as “any written or electronic purchase
order for Merchandise issued by Company through an Authorized Buyer.” Paragraph 2 of the
supplier agreement concerned orders and provided, in relevant part:
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No. 1-17-2279
“Projections, past purchasing history and representations about quantities to be
purchased are not binding, and Company shall not be liable for any act or expenditure
(including but not limited to expenditures for equipment, labor, materials, packaging
or capital expenditures) by Supplier in reliance on them. Company may cancel all or
any part of an Order at any time prior to shipment.”
Paragraph 34 of the supplier agreement was entitled “No Business Expectation” and
provided:
“Company has no obligation and makes no promises to purchase any minimum
amount of Merchandise from Supplier. No person has authority, on Company’s
behalf, to make any representations or promises to Supplier of any expected or
possible level of business with Supplier or about Company’s intentions or
expectations regarding any present or future business with Supplier. Company will
never assume that Supplier will be willing to continue to deliver Merchandise under
this Agreement or to accept any specific volume of Orders. Conversely, Supplier
should never assume that Company will issue Orders for specific volumes, if any, of
Merchandise, even if Supplier’s impression is based on discussions Supplier may
have had with Company representatives. No Company representative has authority to
order Merchandise except an Authorized Buyer through an Order issued pursuant to
and subject to the terms of this Agreement.”
¶ 28 In his evidence deposition, Scott Malm testified that he worked for defendant from mid-
August 2011 until January 2012 and worked as Cauldwell’s “right-hand man.” Malm had
access to Retail Link for the entire time he was employed by defendant and would regularly
generate reports, including sales numbers.
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¶ 29 In his discovery deposition, Daniel Schack, vice president of sales for plaintiff, testified
that “various people” at defendant had access to Retail Link and that even Caire sent him a
Retail Link report on one occasion. Additionally, in an affidavit, Schack swore to the
accuracy of a number of e-mail communications between plaintiff and defendant in which
sales data was shared.
¶ 30 In his evidence deposition, Bryan Ford testified that he worked for defendant from
November 2011 through December 2012 and had worked at Walmart for 10 to 11 years prior
thereto. Ford testified that, while working at Walmart, it was his understanding that Walmart
did not have any obligation to purchase goods from a supplier in the absence of an active
purchase order. For defendant, Ford was a category analyst, working to build relationships
with the buyers for all of the suppliers that defendant managed. Ford testified that Walmart
revoked defendant’s Retail Link access in early 2012 and that Walmart indicated that it was
considering terminating its relationship with defendant and consolidating its sports licensing
business under one management group. Ford testified that, when working with plaintiff,
defendant would be paid a 12% commission for corporate sales. If plaintiff used a local
representative, separate from defendant, plaintiff would pay the local representative a similar
commission. Ford testified that it would not make “financial sense” for plaintiff to pay both
the local representative and defendant the same commission on the same sale since plaintiff
would not have the margins to support such payments and defendant did not have anything to
do with such sales. Ford recalled there being an issue between plaintiff and defendant in
which Caire wanted to be paid for sales made by local representatives, and plaintiff agreed to
pay “something” for those sales; he could not recall the precise number but, when informed it
was 4%, testified that “being able to afford to pay somebody else an additional four percent
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No. 1-17-2279
for something that they weren’t even a part of I think is very generous because I would have
offered them zero.” Ford testified that it was “really easy to calculate what your commission
should be” because defendant’s business was seasonal and involved only one or two
purchase orders per season. Ford testified that Walmart would make verbal or written
commitments several months in advance but could change its mind and not place its order, in
which case the supplier was left with the inventory. Ford testified that plaintiff sent defendant
checks once a week and that the checks would be placed on Caire’s desk until Caire
deposited them. Ford testified that sometimes Caire would contact plaintiff and ask to be paid
commissions in advance of the purchase orders coming in.
¶ 31 Finally, in her evidence deposition, Shelley Tabor testified that she worked for Walmart
as a buyer from 1995 until 2009, after which she briefly consulted for defendant with respect
to its dealings with Walmart. Tabor testified that when she worked at Walmart, it was the
normal course of dealing and was included as a term in supplier agreements that Walmart
had no obligation to purchase a product until a purchase order was actually placed.
¶ 32 On April 24, 2017, defendant filed a motion to deem certain facts admitted by plaintiff.
Defendant claimed that, in its requests to admit, it had requested that plaintiff admit the
accuracy of a “paid history report” produced by Walmart in response to a subpoena issued to
Walmart by defendant, as well as the accuracy of a document providing the “invoice date,
invoice number, amount paid, item number and department number” of all of plaintiff’s sales
to Walmart between January 1, 2007, through February 4, 2013. Plaintiff’s response to both
requests was that it could not admit or deny either of them because the documents were not
attached. Defendant claimed that, because these documents had been previously produced,
they were not required to be attached to the requests to admit and plaintiff therefore should
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No. 1-17-2279
be deemed to have admitted the accuracy of the documents. Defendant further claimed that
plaintiff had its own records and could compare them with the documents produced by
Walmart to confirm their accuracy.
¶ 33 In response, plaintiff argued that the documents were prepared by Walmart and that
plaintiff was not in a position to authenticate documents that it had not prepared. Plaintiff
further claimed that it had raised its objections in 2014, and defendant never filed a motion to
compel or sought to have the issue decided by the court until three years later. On May 1,
2017, the trial court denied defendant’s motion to deem the facts admitted.
¶ 34 On June 12, 2017, defendant filed a response to the motion for summary judgment,
arguing that the Illinois Act was applicable. Defendant further argued that it never agreed to
accept a 4% commission on direct-store sales and that Caire had no way of knowing that
plaintiff was underpaying defendant. Defendant also argued that it was not required to allege
in its complaint the specific amount of its damages and was only required to prove the
amount once at trial. Finally, defendant argued that it was the procuring cause of the 2013
MLB and football programs and that plaintiff had not produced any evidence of any other
procuring cause.
¶ 35 On the same day, defendant filed the affidavit of Caire, 4 in which he averred that Retail
Link was a proprietary program created by Walmart and that defendant never had a Retail
Link ID or password. Caire averred that Cauldwell, who worked at defendant’s offices, was a
category manager for Walmart, which gave him access to Retail Link. With respect to
commission checks, Caire averred that defendant received checks from plaintiff on a weekly
4
This affidavit does not appear to have been attached to defendant’s response to the motion for
summary judgment. A different affidavit from Caire was attached to the response, attesting to the
accuracy of the documents attached to the response.
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No. 1-17-2279
basis, but the checks were rarely connected with a specific purchase order and plaintiff did
not provide commission reports with the checks. Caire averred that many of the checks were
for periodic payments that were connected to Walmart’s commitments to plaintiff to
purchase items in the future or were for balances owed to defendant as a result of purchase
orders generating commissions that were in excess of the amounts previously paid. Caire
averred that plaintiff considered commitments by Walmart to purchase products in the future
to be the equivalent of products being “sold” to Walmart and paid commissions on those
sales. Caire averred that he was unaware that he was being paid less than 12% on certain
orders and, on the “rare occasion” that he received a check indicating a 4% commission, he
would call plaintiff and demand the discrepancy be corrected. Caire averred that he never
agreed to modify the agreement to accept a lower commission on direct-store sales.
¶ 36 On July 10, 2017, plaintiff filed a motion to strike Caire’s affidavit, as well as documents
attached to defendant’s response to the motion for summary judgment that were produced by
Walmart. With respect to Caire’s affidavit, plaintiff argued that the affidavit was based on
matters not within Caire’s personal knowledge or were supported by inadmissible documents
or documents not previously produced. Plaintiff also argued that defendant’s exhibit
No. 1(b), a 5425-page document produced by Walmart, 5 was inadmissible because there was
no evidentiary foundation. Plaintiff claimed that the only foundation was Caire’s second
affidavit, which was attached to the response to the motion for summary judgment and
merely attested that the documents were “true and correct copies of documents including e­
mails and other records produced to [defendant] during the course of this litigation in
response to subpoenas, request to produce or the website of Wal-Mart.” Plaintiff further
5
This exhibit is not contained in the record on appeal.
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No. 1-17-2279
claimed that these documents were “incomprehensible as presented” and merely listed
invoice numbers and amounts without referencing how any of the invoices pertained to
defendant, what work defendant did to generate a commission on the invoices, what products
were sold to generate the invoices, or include a copy of the invoices themselves. Plaintiff also
sought to strike several other exhibits that had not been previously produced.
¶ 37 In response to the motion to strike, in addition to arguments that the challenged
documents should not be stricken, defendant attached a “Certificate of Authenticity of
Domestic Business Records Pursuant to Federal Rule of Evidence 902(11)” from Walmart,
dated July 31, 2017, in which a senior paralegal averred that he was the custodian of records
for Walmart, that the documents produced by Walmart were made at or near the time of the
occurrence by a person with knowledge of those matters, that the records were kept in the
course of a regularly conducted business activity of Walmart, and that the records were made
by Walmart as a regular practice.
¶ 38 On August 15, 2017, parties came before the trial court for a hearing on the motion for
summary judgment and the motion to strike. With respect to the motion to strike, the trial
court found that Caire’s affidavit did not comply with the requirements of Illinois Supreme
Court Rule 191 (eff. Jan. 4, 2013) because much of the affidavit was based on matters not
within his personal knowledge. The court also found with respect to the Illinois Act, that
defendant had failed to establish the amount owed under the statute. The trial court entered
an order granting summary judgment in plaintiff’s favor on counts IV and VI of the second
amended counterclaim. This appeal follows.
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¶ 39 ANALYSIS
¶ 40 On appeal, defendant raises challenges to a number of the trial court’s rulings: (1) that the
trial court erred in granting summary judgment on counts IV and VI of the second amended
counterclaim; (2) that the trial court erred in dismissing counts I, II, and III of the second
amended counterclaim and count VIII of the amendment to the second amended
counterclaim; and (3) that the trial court erred in several of its evidentiary rulings.
¶ 41 As an initial matter, we note that the parties make arguments about the sufficiency of
defendant’s brief on appeal and that defendant’s brief was the subject of a motion to strike by
plaintiff. We denied the motion to strike because plaintiff was able to file an adequate
response to the brief and, as a result, was not prejudiced by its deficiency. However, we agree
with plaintiff that defendant’s brief contains serious deficiencies that hindered our review of
the issues presented by defendant. For instance, defendant’s statement of facts (which is
unnumbered and not included in defendant’s certification concerning the length of its brief)
contains very few citations to the record on appeal, and the bulk of the statement of facts are
taken from the affidavit of Caire, which was stricken by the trial court. Additionally, the
statement of facts contains absolutely no information about (1) the procedural posture of the
case; (2) the allegations contained in any of the pleadings, including the counts at issue on
appeal; and (3) the trial court’s rulings or reasoning on any issue before this court. Illinois
Supreme Court Rule 341(h)(6) requires that an appellant’s statement of facts “contain the
facts necessary to an understanding of the case, stated accurately and fairly without argument
or comment, and with appropriate reference to the pages of the record on appeal.” Ill. S. Ct.
R. 341(h)(6) (eff. Nov. 1, 2017). Supreme court rules are not advisory suggestions, but rules
to be followed. In re Marriage of Hluska, 2011 IL App (1st) 092636, ¶ 57; In re Estate of
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Michalak, 404 Ill. App. 3d 75, 99 (2010). “Where an appellant’s brief fails to comply with
supreme court rules, this court has the inherent authority to dismiss the appeal.” Epstein v.
Galuska, 362 Ill. App. 3d 36, 42 (2005) (citing In re Marriage of Gallagher, 256 Ill. App. 3d
439, 442 (1993)). In the case at bar, we previously declined to strike defendant’s brief
because plaintiff was able to file an adequate response to it, and we do not revisit that
decision here. However, the fact that we chose not to strike defendant’s brief should in no
way be taken by defendant as an indication that its brief was appropriate in light of the
serious deficiencies contained within it.
¶ 42 I. Motion for Summary Judgment
¶ 43 Turning, then, to the merits of defendant’s appeal, we first consider the trial court’s grant
of summary judgment on counts IV and VI of the second amended counterclaim. A trial
court is permitted to grant summary judgment only “if the pleadings, depositions, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.”
735 ILCS 5/2-1005(c) (West 2016). The trial court must view these documents and exhibits
in the light most favorable to the nonmoving party. Home Insurance Co. v. Cincinnati
Insurance Co., 213 Ill. 2d 307, 315 (2004). We review a trial court’s decision to grant a
motion for summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance
Co., 154 Ill. 2d 90, 102 (1992). De novo consideration means we perform the same analysis
that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578
(2011).
¶ 44 “Summary judgment is a drastic measure and should only be granted if the movant’s right
to judgment is clear and free from doubt.” Outboard Marine Corp., 154 Ill. 2d at 102.
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However, “[m]ere speculation, conjecture, or guess is insufficient to withstand summary
judgment.” Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328 (1999). The party
moving for summary judgment bears the initial burden of proof. Nedzvekas v. Fung, 374 Ill.
App. 3d 618, 624 (2007). The movant may meet his burden of proof either by affirmatively
showing that some element of the case must be resolved in his favor or by establishing “ ‘that
there is an absence of evidence to support the nonmoving party’s case.’ ” Nedzvekas, 374 Ill.
App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). “ ‘The purpose
of summary judgment is not to try an issue of fact but *** to determine whether a triable
issue of fact exists.’ ” Schrager v. North Community Bank, 328 Ill. App. 3d 696, 708 (2002)
(quoting Luu v. Kim, 323 Ill. App. 3d 946, 952 (2001)). We may affirm on any basis
appearing in the record, whether or not the trial court relied on that basis or its reasoning was
correct. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50 (1992).
¶ 45 A. Evidentiary Rulings
¶ 46 Defendant first claims that the trial court erred in several of its evidentiary rulings related
to the motion for summary judgment. Specifically, defendant challenges (1) the trial court’s
refusal to consider the report produced by Walmart, (2) the trial court’s denial of defendant’s
motion to compel, (3) the trial court’s denial of defendant’s motion to deem facts admitted,
and (4) the trial court’s striking of Caire’s affidavit.
¶ 47 First, defendant claims that the trial court erred in refusing to consider the report
produced by Walmart because it was admissible as a certified business record. The
determination that a record is admissible as a business record rests within the sound
discretion of the trial court, and such a decision will not be reversed absent an abuse of that
discretion. Northbrook Bank & Trust Co. v. Abbas, 2018 IL App (1st) 162972, ¶ 45. “An
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abuse of discretion occurs when the ruling is arbitrary, fanciful, or unreasonable, or where
there is an application of impermissible legal criteria.” Northbrook Bank & Trust, 2018 IL
App (1st) 162972, ¶ 45. In the case at bar, we cannot find that the trial court abused its
discretion in finding a lack of foundation for admission of the report. To admit business
records into evidence as an exception to the general rule excluding hearsay, the proponent
must lay a proper foundation by demonstrating that the records were made (1) in the regular
course of business, (2) at or near the time of the event or occurrence, and (3) that it was the
regular course of business to maintain such a record. Ill. R. Evid. 803(6) (eff. Apr. 26, 2012);
see also Northbrook Bank & Trust, 2018 IL App (1st) 162972, ¶ 47 (citing Gulino v.
Economy Fire & Casualty Co., 2012 IL App (1st) 102429, ¶ 27). Here, the trial court found
that Caire was not able to lay a foundation for the report because he did not have any
personal knowledge concerning the generation of the report. We cannot find this
determination to be an abuse of discretion, especially since the bulk of Caire’s
representations before the trial court involved the claim that he had no knowledge of sales
information.
¶ 48 Defendant also claims that the report was self-authenticating under Illinois Rule of
Evidence 902(11) (eff. Jan. 1, 2011), because defendant provided a certification from
Walmart’s custodian of records. However, this certification was only provided in response to
plaintiff’s motion to strike the report and was dated July 31, 2017, over a month after
defendant filed the report as an exhibit in response to the motion for summary judgment. We
thus cannot find it was an abuse of discretion for the trial court to decline to consider the
certification. We also note that the report itself is not contained in the record on appeal, so we
have no way of reviewing the contents of the report, but plaintiff claims that the report is
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No. 1-17-2279
incomprehensible without someone to explain it. Accordingly, we cannot find that the trial
court abused its discretion in declining to consider it.
¶ 49 Similarly, we can find no error in the trial court’s striking of Caire’s affidavit. Under
Illinois Supreme Court Rule 191, an affidavit submitted in connection with a motion for
summary judgment
“shall be made on the personal knowledge of the affiants; shall set forth with particularity
the facts upon which the claim, counterclaim or defense is based; shall have attached
thereto sworn or certified copies of all documents upon which the affiant relies; shall not
consist of conclusions but of facts admissible in evidence; and shall affirmatively show
that the affiant, if sworn as a witness, can testify competently thereto.” Ill. S. Ct. R.
191(a) (eff. Jan. 4, 2013).
“An affidavit submitted in the summary judgment context serves as a substitute for testimony at
trial. [Citation.] Therefore, it is necessary that there be strict compliance with Rule 191(a) ‘to
insure that trial judges are presented with valid evidentiary facts upon which to base a
decision.’ ” Robidoux v. Oliphant, 201 Ill. 2d 324, 335-36 (2002) (quoting Solon v. Godbole, 163
Ill. App. 3d 845, 851 (1987)). In the case at bar, we agree with the trial court that Caire’s
affidavit did not satisfy the requirements of Rule 191. A great deal of the affidavit was based on
matters not within his personal knowledge, such as his statements concerning the Retail Link
system and statements concerning plaintiff’s interpretation of when a product was “sold.”
Similarly, many of the documents on which Caire’s affidavit relied were documents such as
internet printouts or plaintiff’s internal e-mails on which Caire was not included and not based
on his personal knowledge. Accordingly, we cannot find that the trial court erred in striking his
affidavit.
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¶ 50 Finally, we cannot find that the trial court erred in denying defendant’s motion to compel
or motion to deem facts admitted. “Trial courts are vested with wide discretion in ruling on
discovery matters, and a reviewing court will not disturb a trial court’s discovery rulings
absent an abuse of that discretion.” Bankers Life & Casualty Co. v. American Senior Benefits
LLC, 2017 IL App (1st) 160687, ¶ 29. In the case at bar, defendant filed a motion to compel
plaintiff to plaintiff to produce (1) its internal sales reports, commission statements, and
records of purchase orders that it received from Walmart since December 17, 2007; (2) all
documentation available to plaintiff from Walmart’s electronic data system or otherwise
concerning or relating to the purchase orders issued by Walmart to plaintiff from and after
September 24, 2012, for the 2013 MLB program and the 2013 Back to School football
program; and (3) its internal sales reports, commission statements, and records of purchase
orders that it received from Walmart since September 24, 2012, that were for replenishments
or reorders of products for which Walmart had issued purchase orders to plaintiff between
December 17, 2007, and September 24, 2012, and for the 2013 MLB program and the 2013
Back to School football program. The trial court entered two orders in response to this
motion. First, on August 1, 2016, the trial court entered an order in which it ordered plaintiff
“to produce any commission or sales reports in its possession responsive to [defendant’s]
requests to produce to date. [Plaintiff] is not obligated to create any reports not in its
possession.” Second, on October 20, 2016, the trial court entered a case management order in
which it ordered that plaintiff “shall file a certificate of compliance that it has fully complied
with its obligations to produce documents by October 28, 2016.”
¶ 51 There is no indication that plaintiff failed to comply with those requests. Defendant
nevertheless claims that plaintiff did not produce all of the documents in its possession.
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No. 1-17-2279
However, defendant provides no facts or evidence in support of this assertion other than its
claim that plaintiff’s position that no further records existed was “inconceivable.” We also
note that defendant did not file any additional motions or produce any facts showing that
plaintiff’s production in light of these court orders was incomplete. Accordingly, we cannot
find any error in the trial court’s resolution of the motion to compel.
¶ 52 Similarly, with respect to the motion to deem facts admitted, defendant claimed that, in
its requests to admit, it had requested that plaintiff admit the accuracy of a “paid history
report” produced by Walmart in response to a subpoena issued to Walmart by defendant, as
well as the accuracy of a document providing the “invoice date, invoice number, amount
paid, item number and department number” of all of plaintiff’s sales to Walmart between
January 1, 2007, through February 4, 2013. The trial court denied defendant’s motion on
May 1, 2017. We cannot find that the trial court abused its discretion in doing so. As plaintiff
noted before the trial court, plaintiff was not in a position to admit or deny the authenticity of
the documents because they were prepared by Walmart, not by plaintiff. Additionally, as
plaintiff noted, plaintiff raised its objections in 2014, and defendant took no further action
until 2017. Accordingly, we cannot find that the trial court abused its discretion in denying
the motion to deem facts admitted.
¶ 53 B. Count IV
¶ 54 Turning to the merits of the trial court’s summary judgment rulings, defendant first
argues that the trial court erred in granting summary judgment on count IV, concerning
violation of the Illinois Act, on the basis that defendant was unable to prove its damages.
Under the Illinois Act:
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No. 1-17-2279
“All commissions due at the time of termination of a contract between a sales
representative and principal shall be paid within 13 days of termination, and
commissions that become due after termination shall be paid within 13 days of the
date on which such commissions become due. Any provision in any contract between
a sales representative and principal purporting to waive any of the provisions of this
Act shall be void.” 820 ILCS 120/2 (West 2012).
¶ 55 Further, under section 3 of the Illinois Act:
“A principal who fails to comply with the provisions of Section 2 concerning timely
payment or with any contractual provision concerning timely payment of
commissions due upon the termination of the contract with the sales representative,
shall be liable in a civil action for exemplary damages in an amount which does not
exceed 3 times the amount of the commissions owed to the sales representative.
Additionally, such principal shall pay the sales representative’s reasonable attorney
fees and court costs.” 820 ILCS 120/3 (West 2012).
¶ 56 In the case at bar, the trial court found that summary judgment was appropriate because
defendant could not establish the amount of its damages. “A plaintiff must prove damages to
a reasonable degree of certainty, and evidence cannot be remote, speculative, or uncertain.”
Dowd & Dowd, Ltd. v. Gleason, 352 Ill. App. 3d 365, 383 (2004). The party seeking
damages bears the burden to establish not only that it has sustained damages but also a
reasonable basis, or formula, for computation of those damages. Kay v. Prolix Packaging,
Inc., 2013 IL App (1st) 112455, ¶ 33. In his deposition, Caire testified that he was unable to
compute the amount of damages owed due to incomplete information; however, even in its
response to the motion for summary judgment, defendant still did not include any calculation
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No. 1-17-2279
of damages or formula to be used in computation of those damages other than asserting that it
would be able to prove them at trial. Defendant claims that the report provided by Walmart
would have shown the amount of damages, but, as discussed above, that report was properly
stricken by the trial court and cannot be used as a basis for damages under those
circumstances. Furthermore, there is no indication that such a document would have provided
the information necessary, as it apparently included only invoice numbers with no way of
tying the invoices to sales made by defendant. Defendant also claims that Caire would have
been competent to testify to the amount of commissions due. However, defendant does not
explain how Caire would be able to do so in the absence of the Walmart report. Accordingly,
we cannot find that the trial court erred in granting summary judgment on count IV.
¶ 57 C. Count VI
¶ 58 Defendant also claims that the trial court erred in granting summary judgment on count
VI of the second amended counterclaim, concerning the procuring cause doctrine. Defendant
claimed that it was entitled to commissions on the 2013 MLB and Back to School fall
football programs because it was the procuring cause of those sales. Under the doctrine
of procuring cause, “a party may be entitled to commissions on sales made after the
termination of a contract if that party procured the sales through its activities prior to
termination.” Technical Representatives, Inc. v. Richardson-Merrell, Inc., 107 Ill. App. 3d
830, 833 (1982). The doctrine is “designed to protect a salesperson who, although no longer
an agent or employee when the sale is made, has done everything necessary to effect the
sale.” Solo Sales, Inc. v. North America OMCG, Inc., 299 Ill. App. 3d 850, 852 (1998). In
employing the doctrine, courts “are attempting to remedy the harsh nature of ‘at will’
contracts.” Scheduling Corp. of America v. Massello, 151 Ill. App. 3d 565, 570 (1987).
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No. 1-17-2279
However, the procuring cause rule is a default rule and applies “only if the contract does not
expressly provide when commissions will be paid.” Technical Representatives, 107 Ill. App.
3d at 833.
¶ 59 In the case at bar, we agree with plaintiff that defendant’s argument is not entirely clear.
At times, defendant appears to be arguing that the verbal commitments made by Walmart
constituted “sales” so as to entitle it to commissions. At others, defendant appears to argue
that the “sales” occurred later but that its efforts prior to termination were sufficient to entitle
it to commissions. As the procuring cause doctrine applies only to the latter situation, it is
that situation we discuss.
¶ 60 Defendant claims that by the time of its termination, Walmart had committed to placing
its orders for both programs and so there was nothing left to do other than fulfill the orders.
However, the only support for these assertions is Caire’s affidavit, which, as discussed
above, was properly stricken. Multiple witnesses testified in their depositions that Walmart
was not obligated to purchase any products until after a purchase order was placed.
Furthermore, Ford testified in his deposition that while it was likely that defendant had done
some work on the MLB program, it was unlikely that it would have begun working on the
Back to School fall football program. “A plaintiff is not required to prove its case at the
summary judgment stage. A plaintiff must, however, present some facts to support the
elements of its claim,” and show that a factual issue exists. Technical Representatives, 107
Ill. App. 3d at 833. In the case at bar, defendant has not presented any evidence as to what
work it had performed on the two programs prior to its termination. Accordingly, we cannot
find that the trial court erred in granting summary judgment on the procuring cause claim.
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¶ 61 II. Motions to Dismiss
¶ 62 Defendant also challenges the trial court’s dismissal of counts I, II, and III of the second
amended counterclaim and count VIII of the amendment to the second amended
counterclaim. All of the counts were dismissed pursuant to section 2-615 of the Code. A
motion to dismiss under section 2-615 of the Code challenges the legal sufficiency of the
complaint by alleging defects on its face. Young v. Bryco Arms, 213 Ill. 2d 433, 440 (2004);
Wakulich v. Mraz, 203 Ill. 2d 223, 228 (2003). The critical inquiry is whether the allegations
in the complaint are sufficient to state a cause of action upon which relief may be granted.
Wakulich, 203 Ill. 2d at 228. In making this determination, all well-pleaded facts in the
complaint and all reasonable inferences that may be drawn from those facts are taken as true.
Young, 213 Ill. 2d at 441. In addition, we construe the allegations in the complaint in the light
most favorable to the plaintiff. Young, 213 Ill. 2d at 441. We review de novo an order
granting a section 2-615 motion to dismiss. Young, 213 Ill. 2d at 440; Wakulich, 203 Ill. 2d at
228. As noted, de novo consideration means we perform the same analysis that a trial judge
would perform. Khan, 408 Ill. App. 3d at 578. Again, we may affirm on any basis appearing
in the record, whether or not the trial court relied on that basis or its reasoning was correct.
Ray Dancer, 230 Ill. App. 3d at 50.
¶ 63 A. Counts I and II
¶ 64 Defendant claims that the trial court erred in dismissing counts I and II, which were based
on violations of the Arkansas Act, because Arkansas, not Illinois, law should apply to the
instant case. A choice-of-law determination is required only when a difference in law will
make a difference in the outcome. Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 155
(2007). In the case at bar, the difference between the Illinois Act and the Arkansas Act
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No. 1-17-2279
concerns the availability of treble damages. As discussed above, the Illinois Act permits the
imposition of treble damages for violations. 820 ILCS 120/3 (West 2012). However, Illinois
courts have found that treble damages are not automatic under the Illinois Act but instead are
left to the trial court’s discretion. See, e.g., Installco Inc. v. Whiting Corp., 336 Ill. App. 3d
776, 784 (2002); Maher & Associates, Inc. v. Quality Cabinets, 267 Ill. App. 3d 69, 80
(1994). By contrast, the Arkansas Act does not appear to vest the trial court with any
discretion on the matter, providing that a principal who violates the Arkansas Act “is liable to
the sales representative in a civil action for three (3) times the damages sustained by the sales
representative, plus reasonable attorney’s fees and costs.” Ark. Code Ann. § 4-70-306 (West
2012). Thus, we must determine which law applies.
¶ 65 “Subject to constitutional limitations, the forum court applies the choice-of-law rules of
its own state.” Townsend, 227 Ill. 2d at 155. In contract cases, Illinois applies the “most
significant contacts” test, set forth in the Restatement (Second) of Conflict of Laws. Safeco
Insurance Co. v. Jelen, 381 Ill. App. 3d 576, 580 (2008). Under that test, the court looks to
factors such as the place of contracting; the place of negotiations; the place of performance;
the location of the subject matter of the contract; and the domicile, residence, nationality,
place of incorporation, and place of business of the parties. Restatement (Second) of Conflict
of Laws § 188 (1971). However, this test “is a guide for courts; it is not black-letter law to be
upheld against all other considerations.” Maher, 267 Ill. App. 3d at 77. “Illinois is among
those States that generally follow the modern approach to choice-of-law questions, and this
approach places the greatest importance on the public policy of the State in which a case is
brought.” Maher, 267 Ill. App. 3d at 77.
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No. 1-17-2279
¶ 66 In the case at bar, the complaint alleges, and defendant does not dispute, that the contract
was negotiated and entered into at plaintiff’s offices in Illinois, that Caire traveled to Illinois
to negotiate the contract, and that the contract was executed in Illinois. The contract did not
include a clause that a particular state’s law would apply. Additionally, our courts have found
that the Illinois Act, which includes an anti-waiver clause, represents a “fundamental public
policy” of the state. Maher, 267 Ill. App. 3d at 76; English Co. v. Northwest Envirocon, Inc.,
278 Ill. App. 3d 406, 410 (1996). While defendant may have been located in Arkansas and
Walmart’s corporate offices were located in Arkansas, we cannot find that these facts mean
that the law of Arkansas should apply instead of the law of Illinois. Consequently, the trial
court properly dismissed the two counts of the second amended counterclaim that were based
on the Arkansas Act.
¶ 67 B. Count III
¶ 68 Defendant also challenges the trial court’s dismissal of count III of its second amended
counterclaim, which alleged that plaintiff violated the Illinois Act by failing to pay
commissions on orders placed after the termination. Defendant claims that plaintiff was
precluded from terminating the agreement under the doctrine of opportunistic advantage and,
accordingly, defendant was entitled to commissions for orders placed after September 2012.
A covenant of fair dealing and good faith is implied into every contract. Foster Enterprises,
Inc. v. Germania Federal Savings & Loan Ass’n, 97 Ill. App. 3d 22, 28 (1981); see also J&B
Steel Contractors, Inc. v. C. Iber & Sons, Inc., 162 Ill. 2d 265, 278 (1994). Thus, a party is
not permitted to engage in “opportunistic advantage-taking,” or “lack of cooperation
depriving the other contracting party of his reasonable expectations.” Hentze v. Unverfehrt,
237 Ill. App. 3d 606, 611 (1992). In its brief, defendant claims that “the exercise by
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No. 1-17-2279
[plaintiff] of its purported right to terminate the agreement, based solely upon a judicially
created aversion to contracts for an indefinite term, was not only contrary to the reasonable
expectation of the parties, it was directly contrary to their express written promise and in bad
faith.” However, “ ‘[t]he duty of good faith and fair dealing does not override the clear right
to terminate at will, since no obligation can be implied which would be inconsistent with and
destructive of the unfettered right to terminate at will.’ ” Mid-West Energy Consultants, Inc.
v. Covenant Home, Inc., 352 Ill. App. 3d 160, 164 (2004) (quoting Jespersen v. Minnesota
Mining & Manufacturing Co., 288 Ill. App. 3d 889, 895 (1997), aff’d, 183 Ill. 2d 290(1998)). Defendant identifies no “bad faith” conduct on the part of plaintiff other than its
deciding that it no longer wished to use defendant’s services and sought to enforce its right to
terminate the contract. We thus cannot find that the trial court erred in dismissing count III of
the second amended counterclaim.
¶ 69 C. Count VIII
¶ 70 Finally, defendant argues that the trial court erred in dismissing count VIII of the
amendment to the second amended counterclaim, in which defendant claimed that it was
entitled to commissions on reorders and replenishments after September 2012 pursuant to the
procuring cause doctrine. The trial court dismissed this count because it found that defendant
“had no involvement with these reorders, and cannot allege that it procured these specific
sales.” Defendant’s only argument is that it is entitled to commissions because it was
involved in the procurement of initial sales of the product. However, defendant provides no
authority for the theory that it is entitled to commissions in perpetuity on new orders placed
on the product after its termination simply because Walmart is purchasing something it had
previously purchased. The procuring cause doctrine is intended for the situation in which a
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No. 1-17-2279
salesman is discharged prior to the culmination of a sale but after he has done everything
necessary to effect the sale. Heuvelman v. Triplett Electrical Instrument Co., 23 Ill. App. 2d
231, 237 (1959). It is not intended to permit perpetual commissions where the salesperson
has done nothing additional to effect the sale. We find the cases relied upon by defendant
entirely distinguishable on this point, as they involved action on the part of the salesperson.
Accordingly, we cannot find that the trial court erred in dismissing count VIII of the
amendment to the second amended counterclaim.
¶ 71 CONCLUSION
¶ 72 For the reasons set forth above, we affirm the trial court’s judgment in all respects.
¶ 73 Affirmed.
33