Aasonn v. Delaney , 2011 IL App (2d) 101125 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Aasonn, LLC v. Delaney, 2011 IL App (2d) 101125
Appellate Court AASONN, LLC, Plaintiff-Appellant, v. MARY J. DELANEY and
Caption PERFORMANCE MANAGEMENT STRATEGIES, LLC, Defendants-
Appellees.
District & No. Second District
Docket No. 2-10-1125
Filed December 2, 2011
Held The trial court erred in dismissing plaintiff’s third amended complaint for
(Note: This syllabus breach of contract and fraud due to the lack of personal jurisdiction, since
constitutes no part of defendants, both from New York, purposefully established sufficient
the opinion of the court minimum contacts with Illinois and requiring defendants to litigate
but has been prepared plaintiff’s claims in Illinois would not offend traditional notions of “fair
by the Reporter of play and substantial justice,” and, furthermore, plaintiff sufficiently
Decisions for the pleaded the fraud counts of its complaint, despite defendants’ argument
convenience of the that the complaint did not meet the heightened specificity standard
reader.)
required for pleading fraud, especially when the allegations were very
detailed as to the hours billed by defendants, the tasks represented to have
been completed, and the specific tasks alleged to have been left undone.
Decision Under Appeal from the Circuit Court of Du Page County, No. 09-L-797; the
Review Hon. John T. Elsner, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Lawrence C. Cassano, of Cassano & Associates, of Naperville, for
Appeal appellant.
Kenneth T. Kubiesa, of Kubiesa Associates, P.C., of Oakbrook Terrace,
for appellees.
Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices Bowman and Hutchinson concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Aasonn, LLC, appeals from the trial court’s order granting the motion by
defendants, Mary J. Delaney and Performance Management Strategies, LLC, to dismiss its
third amended complaint for lack of personal jurisdiction. For the following reasons, we
reverse and remand for further proceedings.
¶2 BACKGROUND
¶3 Aasonn sued defendants for breach of contract and fraud. Defendants moved to dismiss
for lack of personal jurisdiction, pursuant to section 2-301 of the Code of Civil Procedure
(Code) (735 ILCS 5/2-301 (West 2010)). The trial court initially found that it did not have
jurisdiction over defendants on the breach of contract claims. With respect to the fraud
claims, the court found that the pleading, though conclusory, would be a sufficient basis upon
which to assert personal jurisdiction. The court granted Aasonn leave to replead three times.
The operative pleading is Aasonn’s third amended complaint for breach of contract and
fraud.
¶4 We derive the following facts from the third amended complaint and the affidavits and
exhibits in the record. Aasonn was an Illinois limited liability company. Delaney was a New
York resident and the president of Delaney Consulting Services, LLC. Aasonn and Delaney
Consulting Services–now known as Performance Management Strategies, LLC, a New York
limited liability company–entered into a “Strategic Alliance Agreement” (Agreement).
Pursuant to the Agreement, defendants performed consulting and implementation services
related to the computer software business of SuccessFactors, Inc., a Delaware corporation
with its principal place of business in California. SuccessFactors had previously contracted
directly with its consultants, including Delaney, but at some point prior to March 2007, it
terminated those relationships. SuccessFactors told its consultants that if they wanted to
continue providing their services, they would have to contract with one of its business
partners. Several of SuccessFactors’ business partners made presentations to Delaney and the
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other consultants.
¶5 In particular, SuccessFactors referred Delaney to Aasonn, one of its business partners,
by arranging an online meeting between Aasonn’s president, Allen Peterson, and nine of
SuccessFactors’ consultants, including Delaney. Peterson then scheduled a “WebEx
conference” with the consultants and sent the meeting information to them at their e-mail
addresses, which SuccessFactors had provided to him. Following the meeting, Peterson, in
Illinois, negotiated the Agreement terms with Delaney, in New York, by telephone, e-mail,
and Internet conferencing. In the negotiations, Delaney apparently also took a leading role
on behalf of the other eight consultants. Aasonn sought an individual contract with each of
the nine consultants, but it made each contract contingent on the acceptance of the other eight
consultants. Peterson sent a final copy of the Agreement, unexecuted, to Delaney on March
20, 2007. Two days later, Delaney e-mailed Peterson that she had executed the Agreement
and returned it to Aasonn. She requested that Peterson execute the Agreement and send her
a copy. According to Peterson, when he received the Agreement in Illinois, he “concluded
the contracting process on behalf of Aasonn and sent a confirmation to Delaney.”
¶6 Pursuant to the terms of the Agreement, Aasonn and defendants created a “strategic
alliance to perform certain complementary consulting services.” The initial term of the
Agreement was 2 years, and it would be automatically renewed for successive 1-year periods
unless either party gave written notice of termination at least 30 days prior to the date of
expiration. During the term of the Agreement, defendants were prohibited from engaging in
“any business that is competitive with the types and kinds of business” conducted by Aasonn.
Defendants were further restricted from using any acquired confidential information other
than for the benefit of Aasonn. Aasonn acted either as a subcontractor for SuccessFactors
(which referred clients to Aasonn) or as a prime contractor for clients that Aasonn or
defendants secured.1 Aasonn then offered assignments to defendants through “statements of
work” (the record contains “new project assignment forms”) setting forth the number of
hours allocated toward the completion of each project and the rate of compensation. It was
defendants’ responsibility to manage their consulting activities within the scope of the
statements of work, but any change in that scope required advance approval from Aasonn.
Defendants were also required to obtain advance approval from Aasonn for any hours of
work in excess of those allotted in the statements of work. Defendants were not permitted
to use employees, contractors, or other agents to fulfill their contractual obligations unless
Aasonn approved of such in advance. The Agreement required defendants to submit to
Aasonn itemized monthly invoices, which Aasonn was to pay within 30 days of receipt. In
turn, Aasonn directly billed the clients. The Agreement contained an Illinois choice-of-law
provision.
¶7 From March 2007 through May 2009, Aasonn directed in excess of 20 projects to
defendants, involving clients in New Jersey, Connecticut, New York, Texas, California, and
Abu Dhabi (United Arab Emirates). Aasonn was in regular contact with defendants, and
1
Based on the rate of compensation designated in the invoices at issue in Aasonn’s
complaint, we discern that Aasonn was acting as SuccessFactors’ subcontractor.
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work product and communications were exchanged and reviewed by and between the parties
via telephone, facsimile, e-mail, Internet messaging, and Internet connections. Defendants
submitted to Aasonn, via e-mail, monthly invoices for work performed, and they
contemporaneously entered into Aasonn’s online project management system the details of
hours worked on each project. Once Aasonn verified the number of hours invoiced with the
hours entered into the project management system, Aasonn submitted to defendants
electronic payment from its Illinois bank account. Defendants allegedly submitted to Aasonn
false billing statements for work they did not perform on five of the projects.
¶8 Defendants moved to dismiss Aasonn’s third amended complaint for lack of personal
jurisdiction. After hearing argument, the trial court granted the motion. Aasonn timely
appealed.
¶9 ANALYSIS
¶ 10 Aasonn argues that the trial court erred in dismissing its complaint for lack of personal
jurisdiction. The plaintiff bears the burden of proving a prima facie case for jurisdiction over
a nonresident defendant. MacNeil v. Trambert, 401 Ill. App. 3d 1077, 1080 (2010). Conflicts
in the affidavits and pleadings are resolved in the plaintiff’s favor. MacNeil, 401 Ill. App. 3d
at 1080. A plaintiff’s prima facie case for jurisdiction can be overcome by a defendant’s
uncontradicted evidence that defeats jurisdiction. MacNeil, 401 Ill. App. 3d at 1080. When,
as here, the trial court decides the issue of personal jurisdiction based solely on documentary
evidence, our review is de novo. MacNeil, 401 Ill. App. 3d at 1080.
¶ 11 Illinois courts may assert personal jurisdiction over a nonresident defendant only if the
assertion comports with section 2-209 of the Code (735 ILCS 5/2-209 (West 2010)), known
as Illinois’ long-arm statute, and with the due process guarantees of both the Illinois and the
United States Constitutions. Viktron Ltd. Partnership v. Program Data Inc., 326 Ill. App. 3d
111, 117 (2001). The long-arm statute provides, in relevant part:
“(a) Any person, whether or not a citizen or resident of this State, who in person or
through an agent does any of the acts hereinafter enumerated, thereby submits such
person, and, if an individual, his or her personal representative, to the jurisdiction of the
courts of this State as to any cause of action arising from the doing of any of such acts:
(1) The transaction of any business within this State;
(2) The commission of a tortious act within this State;
***
(7) The making or performance of any contract or promise substantially
connected with this State;
***
(c) A court may also exercise jurisdiction on any other basis now or hereafter
permitted by the Illinois Constitution and the Constitution of the United States.” 735
ILCS 5/2-209 (West 2010).
¶ 12 Prior to the enactment in 1989 of the “catch-all provision” in section 2-209(c), courts
analyzed whether the assertion of personal jurisdiction over a nonresident defendant was
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permitted by the long-arm statute and then separately examined due process concerns. Old
Orchard Urban Ltd. Partnership v. Harry Rosen, Inc., 389 Ill. App. 3d 58, 64 (2009).
However, because section 2-209(c) is coextensive with state and federal due process
requirements, Illinois courts now treat it as an independent basis for exercising personal
jurisdiction. MacNeil, 401 Ill. App. 3d at 1080. Therefore, we need examine only due process
considerations under the federal and state constitutions. Pace Communications Services
Corp. v. Express Products, Inc., 408 Ill. App. 3d 970, 973 (2011). Nonetheless, as a due
process analysis focuses on the defendant’s conduct, the bases of jurisdiction that Aasonn
argues under section 2-209(a) provide the groundwork for our analysis. See MacNeil, 401
Ill. App. 3d at 1081 (whether due process concerns are satisfied is dependent on the
defendant’s conduct).
¶ 13 Illinois due process requires that a court exercise jurisdiction over a nonresident
defendant only “when it is fair, just, and reasonable to require a nonresident defendant to
defend an action in Illinois, considering the quality and nature of the defendant’s acts which
occur in Illinois or which affect interests located in Illinois.” Rollins v. Ellwood, 141 Ill. 2d
244, 275 (1990). Our supreme court has held that the Illinois Constitution contains an
independent guarantee of due process separate from its federal counterpart. Kostal v. Pinkus
Dermatopathology Laboratory, P.C., 357 Ill. App. 3d 381, 387 (2005) (citing Rollins, 141
Ill. 2d at 275). However, it is generally true that, when federal due process concerns
regarding personal jurisdiction are satisfied, so are Illinois due process concerns. Wiggen v.
Wiggen, 2011 IL App (2d) 100982, ¶ 22 n.1 (citing Keller v. Henderson, 359 Ill. App. 3d
605, 620 (2005)). Consequently, and as the parties make no argument that the analyses
diverge, we address only the federal due process standard. See Wiggen, 2011 IL App (2d)
100982, ¶ 22 n.1.
¶ 14 Federal due process requires that a defendant have “certain minimum contacts” with the
forum state such that the assertion of personal jurisdiction does not offend “traditional
notions of fair play and substantial justice.” (Internal quotation marks omitted.) International
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Pace Communications, 408 Ill. App. 3d
at 973. The minimum contacts necessary for jurisdiction depend on whether general or
specific jurisdiction is asserted. Pace Communications, 408 Ill. App. 3d at 974. General
jurisdiction exists when a defendant has continuous and systematic contacts with the forum
state and may be exercised in a suit not arising out of or related to the defendant’s contacts
with the forum. Pace Communications, 408 Ill. App. 3d at 974. Specific jurisdiction, which
Aasonn asserts here, exists when the defendant purposefully directed its activities at the
forum’s residents and the cause of action arose out of those contacts. Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985); Pace Communications, 408 Ill. App. 3d at 974. An
Illinois court may assert specific jurisdiction over a nonresident defendant if: (1) the
defendant had minimum contacts with Illinois such that it was fairly warned that it may be
haled into an Illinois court; (2) the action arose out of or was related to the defendant’s
contacts with Illinois; and (3) it is reasonable to require the defendant to litigate in Illinois.
MacNeil, 401 Ill. App. 3d at 1081. The minimum contacts must be based on “some act by
which a defendant purposely avails himself of the privilege of conducting activities within
a state, thus invoking the benefits and protections of its laws.” MacNeil, 401 Ill. App. 3d at
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1081. The purposeful availment requirement ensures that jurisdiction will not be obtained
as the result of random, fortuitous, or attenuated contacts. Burger King, 471 U.S. at 475;
Morgan, Lewis & Bockius LLP v. City of East Chicago, 401 Ill. App. 3d 947, 954 (2010).
¶ 15 It is undisputed here that Aasonn’s complaint alleging breach of contract and fraud arose
from defendants’ contacts with Illinois. At issue is whether defendants had minimum
contacts with Illinois such that they were fairly warned that they might be haled into an
Illinois court and whether requiring them to litigate in Illinois was unreasonable. Aasonn
argues that defendants subjected themselves to personal jurisdiction in Illinois by transacting
business in Illinois under section 2-209(a)(1) of the long-arm statute, by entering into a
contract substantially connected with Illinois under section 2-209(a)(7), and by committing
a tortious act in Illinois under section 2-209(a)(2). Defendants respond that Aasonn has failed
to show “any act by which Defendants purposefully availed themselves of the protections and
benefits of Illinois law.”
¶ 16 When parties have contacts based on a contractual or business relationship, factors
relevant to purposeful availment include: (1) who initiated the transaction, (2) where the
contract was entered into, and (3) where performance was to occur. Wiggen, 2011 IL App
(2d) 100982, ¶ 30. Because the formation of a contract represents an intermediate step
linking prior negotiations with future consequences, the court should also consider other
relevant circumstances such as the parties’ prior negotiations, the contemplated future
consequences, the terms of the contract, and the parties’ actual course of dealing. Burger
King, 471 U.S. at 479; Commerce Trust Co. v. Air 1st Aviation Cos., 366 Ill. App. 3d 135,
143-44 (2006). A choice-of-law provision in the contract, though not dispositive, is relevant.
Bolger v. Nautica International, Inc., 369 Ill. App. 3d 947, 952 (2007). To assert personal
jurisdiction based on a defendant’s tortious conduct in the state, the plaintiff must allege that
the defendant performed a tortious act or omission and caused an injury in Illinois. Arthur
Young & Co. v. Bremer, 197 Ill. App. 3d 30, 36 (1990). Where, as in the instant case, the
injury is economic rather than physical or emotional, the plaintiff must also allege facts
showing that the defendant intended to affect an Illinois interest. West Virginia Laborers
Pension Trust Fund v. Caspersen, 357 Ill. App. 3d 673, 678 (2005). This intent requirement
mirrors the purposeful-availment requirement. Hyperquest, Inc. v. NuGen I.T., Inc., 627 F.
Supp. 2d 884, 894 (N.D. Ill. 2008).
¶ 17 Here, regarding the first factor, defendants did not initiate the contract; either Aasonn or
SuccessFactors did. Delaney had been a consultant for SuccessFactors prior to entering into
the Agreement with Aasonn. SuccessFactors sought to change the nature of its relationship
with Delaney, terminating their direct relationship and informing Delaney that, if she wanted
to continue performing consulting work related to its software, she would have to work with
one of its business partners. SuccessFactors then arranged an online meeting between Aasonn
and Delaney. Aasonn e-mailed materials for the meeting to Delaney. Notwithstanding
Aasonn’s conclusion to the contrary, defendants did not initiate the parties’ business
relationship.
¶ 18 Nevertheless, we agree with Aasonn that Delaney pursued the relationship with Aasonn
to continue her consulting work related to SuccessFactors’ software. The record reveals that
several of SuccessFactors’ business partners made presentations to Delaney and other former
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SuccessFactors consultants. Moreover, Delaney apparently represented the interests of eight
other consultants in the negotiations with Aasonn, and her contract with Aasonn was
contingent on those consultants signing contracts with Aasonn. Delaney had a fundamental
choice to terminate her SuccessFactors consulting work or to continue it. If she chose the
latter, she had the choice of working with Aasonn or working with another entity. Delaney,
leading the negotiations, chose Aasonn, an Illinois company.
¶ 19 With respect to the second factor, the contract was entered into in Illinois. Aasonn’s
president, Allen Peterson, sent an unsigned copy of the Agreement to Delaney in New York.
She signed it and returned it to Peterson in Illinois, requesting a copy of the document after
he signed it. Peterson signed the contract in Illinois and transmitted a copy to Delaney. Thus,
the last act necessary to effectuate the validity of the contract was done in Illinois, where the
contract was executed when Peterson signed it on Aasonn’s behalf. See Ideal Insurance
Agency, Inc. v. Shipyard Marine, Inc., 213 Ill. App. 3d 675, 681 (1991) (stating that Illinois
law is well established that a contract is formed in the place where the last act necessary to
give validity to the contract occurs).
¶ 20 The third factor, where performance was to occur, also weighs in favor of jurisdiction.
It is true that defendants performed consulting work from New York–not Illinois–for clients
located in California, Texas, New Jersey, Connecticut, New York, and Abu Dhabi. However,
based on the terms of their Agreement, defendants could perform that consulting work only
by virtue of their relationship with Aasonn in Illinois. Indeed, defendants were prohibited
from engaging in any business competitive with Aasonn. Moreover, Aasonn exercised a great
deal of control over defendants’ performance under the Agreement. Through the Agreement,
the parties created an ongoing relationship of at least two years. Aasonn was designated as
a subcontractor for SuccessFactors, which referred clients to Aasonn. Aasonn assumed the
ultimate responsibility for maintaining relationships with those clients. Aasonn, in turn,
offered projects to defendants via new project assignment forms, which, if they chose to
accept, defendants signed and returned to Aasonn in Illinois. The forms recited the client
contact information, the work to be performed, the number of hours in which it was to be
performed, and the rate of compensation. Any changes to the scope of the work or the
number of hours worked, as well as any use of employees or contractors, required advance
approval from Aasonn. Defendants were further restricted from using any acquired
confidential information other than for the benefit of Aasonn. Invoices and payments went
to and from Aasonn in Illinois.
¶ 21 The parties dispute whether defendants submitted work product to Aasonn for review.
In support of their motion to dismiss, defendants attached Delaney’s affidavit in which she
alleged that her work product was reviewed by SuccessFactors’ personnel located on the east
and west coasts and that her “primary managers” were SuccessFactors’ employees. Delaney
further averred that her communications with Allen Peterson were limited to sending status
reports. Aasonn’s response to defendants’ motion to dismiss the third amended complaint
incorporated its response to defendants’ first motion to dismiss, which included Allen
Peterson’s affidavit. Consequently, Aasonn’s response to defendants’ motion to dismiss the
third amended complaint incorporated Peterson’s affidavit, and we will consider it as a
counteraffidavit to rebut Delaney’s affidavit. Because we must resolve conflicts in the
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affidavits in Aasonn’s favor (see MacNeil, 401 Ill. App. 3d at 1080), we accept the
allegations in Peterson’s counteraffidavit as true. Therefore, to the extent that Peterson
contradicted Delaney’s allegation that she sent him only status reports, we must conclude that
Delaney did send work product to Peterson for his review. Yet, Peterson did not contradict
Delaney’s allegation that her work product was reviewed by SuccessFactors. As Peterson did
not allege that he was the only one to review Delaney’s work product, the allegations in both
affidavits could be true. However, SuccessFactors’ review of Delaney’s work product does
nothing to diminish the relationship that Delaney chose to create with Aasonn in Illinois;
neither does Delaney’s characterization of SuccessFactors’ employees as her “primary
managers.” The Agreement between the parties and their course of dealing demonstrate that
substantial performance of the contractual obligations occurred in Illinois.
¶ 22 Defendants argue that their work was not directed toward Aasonn, an Illinois resident,
but rather toward the clients, none of whom were Illinois residents. Notwithstanding
defendants’ prior relationship with SuccessFactors, defendants’ argument is unavailing. Even
accepting defendants’ characterization of Aasonn as a “middleman” between them and
SuccessFactors, the clients were Aasonn’s clients, not defendants’ clients. When defendants
chose to establish a relationship with Aasonn, they chose to work through Aasonn in Illinois.
Rather than being “minimal,” communications between defendants and Aasonn were key to
the new relationship between them established by the parties’ Agreement. Absent their
relationship with Aasonn, defendants would have had no consulting work with those clients.
¶ 23 Moreover, that defendants worked from New York and did not maintain an office in
Illinois does not change the fact that they voluntarily entered into a contract creating a
substantial connection with Illinois by virtue of the relationship they created with Aasonn.
A defendant’s lack of physical presence in a forum does not defeat jurisdiction there. Burger
King, 471 U.S. at 476 (stating that “it is an inescapable fact of modern commercial life that
a substantial amount of business is transacted solely by mail and wire communications across
state lines, thus obviating the need for physical presence within a State in which business is
conducted”); Heritage House Restaurants, Inc. v. Continental Funding Group, Inc., 906 F.2d
276, 281 (7th Cir. 1990) (holding that a defendant’s physical presence in a forum is not
necessary when the nature of telephone and mail contacts in an interstate relationship can
justify the assertion of personal jurisdiction).
¶ 24 Considering the quality and nature of defendants’ acts, defendants purposefully reached
out beyond New York to create a deliberate affiliation with an Illinois company from which
they derived financial benefit by accepting in excess of 20 projects. We hold that defendants
thus purposefully availed themselves of the privilege of conducting business in Illinois and
thereby invoked the benefits and protections of this state’s laws. Although not dispositive,
the Illinois choice-of-law provision contained in the Agreement supports this conclusion. See
Bolger, 369 Ill. App. 3d at 952. Therefore, defendants reasonably should have foreseen being
haled into an Illinois court. See Burger King, 471 U.S. at 480 (stating that the defendant’s
voluntary acceptance of the plaintiff’s long-term and exacting regulations of his business
made it, “at the very least, presumptively reasonable” for the forum to exercise personal
jurisdiction over the defendant).
¶ 25 Having determined that defendants purposefully established sufficient minimum contacts
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in Illinois, we must decide if requiring them to litigate in Illinois would offend traditional
notions of “ ‘fair play and substantial justice.’ ” Burger King, 471 U.S. at 476 (quoting
International Shoe, 326 U.S. at 320). A court may evaluate the burden on the defendant to
litigate in the forum, the forum’s interest in adjudicating the dispute, the plaintiff’s interest
in convenient and effective relief, and the interstate judicial system’s interest in the most
efficient resolution of a controversy. Burger King, 471 U.S. at 477. A defendant who
purposefully directed his activities at a forum must present a compelling case to defeat
jurisdiction. Burger King, 471 U.S. at 477.
¶ 26 Here, although defendants argue that they did not establish sufficient minimum contacts
with Illinois, they present no case, let alone a compelling one, as to why jurisdiction is
defeated based on traditional notions of fair play and substantial justice. Morgan, Lewis &
Bockius LLP, 401 Ill. App. 3d at 956; Viktron Ltd. Partnership, 326 Ill. App. 3d at 123. We
hold that requiring defendants to litigate in Illinois does not offend fair play and substantial
justice. Given Aasonn’s contractual obligation to pay defendants’ monthly invoices within
30 days of receipt, Aasonn has an interest in convenient and effective relief. At this stage of
the proceedings, it not clear when Aasonn billed the clients for the work that defendants
invoiced; it is even less clear whether Aasonn had any recourse if, as it alleged, it was
required to hire other consultants to complete the work that defendants failed to finish.
Nonetheless, accepting Aasonn’s allegations as true, it suffered the initial, and probably
ultimate, financial harm from defendants’ alleged conduct. Thus, Illinois has an interest in
providing a means of redress for its injured resident. See Burger King, 471 U.S. at 473 (“A
State generally has a ‘manifest interest’ in providing its residents with a convenient forum
for redressing injuries inflicted by out-of-state actors.”). Accordingly, because Aasonn
established that the trial court’s exercise of personal jurisdiction over defendants would
comport with federal due process requirements, and because defendants have not presented
a compelling case to defeat jurisdiction, the trial court erred in granting defendants’ section
2-301 motion to dismiss. See Burger King, 471 U.S. at 473-74 (stating that “where
individuals ‘purposefully derive benefit’ from their interstate activities, [citation], it may well
be unfair to allow them to escape having to account in other States for consequences that
arise proximately from such activities; the Due Process Clause may not readily be wielded
as a territorial shield to avoid interstate obligations that have been voluntarily assumed”).
¶ 27 Given the trial court’s conclusion that the fraud counts did not meet the heightened
specificity requirements for pleading fraud, on remand, defendants might file a motion
pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2010)) to dismiss the fraud
counts for failure to state a cause of action. The sufficiency of a pleading presents a question
of law. People v. $1,124,905 U.S. Currency & One 1988 Chevrolet Astro Van, 177 Ill. 2d
314, 335 (1997). Because the parties have fully briefed the issue of whether the fraud counts
were properly pleaded (using section 2-615 case law), and the trial court already addressed
it, in the interest of judicial economy, we address it now. See Petre v. Kucich, 331 Ill. App.
3d 935, 944 (2002) (deciding, in the interest of judicial economy, to address an issue likely
to recur on remand).
¶ 28 Defendants argue that Aasonn did not meet the heightened specificity standard required
for pleading fraud. Unless it is clearly apparent that no set of facts can be proved that would
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entitle the plaintiff to relief, a cause of action should not be dismissed pursuant to a section
2-615 motion. Tedrick v. Community Resource Center, Inc., 235 Ill. 2d 155, 161 (2009). The
elements of common-law fraud are: (1) a false statement of material fact; (2) the defendant
knew the statement was false; (3) the defendant intended that the statement induce the
plaintiff to act; (4) the plaintiff relied upon the truth of the statement; and (5) the plaintiff
suffered damages from his reliance on the statement. Connick v. Suzuki Motor Co., 174 Ill.
2d 482, 496 (1996). A complaint for common-law fraud “must allege, with specificity and
particularity, facts from which fraud is the necessary or probable inference, including what
misrepresentations were made, when they were made, who made the misrepresentations and
to whom they were made.” Connick, 174 Ill. 2d at 496-97. Conclusory allegations are
insufficient. Time Savers, Inc. v. LaSalle Bank, N.A., 371 Ill. App. 3d 759, 771 (2007).
¶ 29 In the instant case, there is no dispute that it was Delaney who made any alleged
misrepresentations and that she made them to Nathaniel Peterson when she submitted
invoices to Aasonn. The question is whether Aasonn identified any particular false statement
of material fact. Defendants argue that, for each of the five projects at issue, Aasonn failed
to allege that defendants did not perform the work they invoiced. They assert that Aasonn did
not identify any specific task that defendants invoiced but did not perform. Defendants
conclude that Aasonn’s allegations in its fraud counts merely restate their breach of contract
claims–namely, that defendants failed to complete the projects within the budgeted time. We
disagree.
¶ 30 The third amended complaint includes the following relevant allegations with respect to
the “Energy Cranes” project:
“24. On or about October 14, 2008, Aasonn submitted a New Project Assignment
Form to Delaney for customer Energy Cranes (‘Energy Cranes Project’). The purchased
modules to be implemented by Delaney were identified as ‘EE PM/GM,’ ‘Sprac
Comp/LP,’ and ‘Language Pack.’ The total number of hours budgeted for
implementation of the modules was 183 hours and the contract rate was to be $110 per
hour. ***
***
27. On October 31, 2008, Delaney submitted an invoice to Aasonn which included
10 hours of work performed on Energy Cranes–GM Profile, UK Language Pack
(Compensation and PM in Phase II). ***
28. On December 4, 2008, Aasonn paid Delaney’s October invoice by ACH payment
directly to her bank account. ***
***
41. In total Delaney invoiced Aasonn for 181 hours of work on the Energy Cranes
Project for a total of $19,910, all of which Aasonn has paid.
42. The 183 budgeted hours were sufficient to complete the Energy Cranes Project.
Delaney billed Aasonn for and received payment for 181 hours, yet as of Delaney’s
resignation date, a total of 118 hours of work still remained to be done to complete the
project. (See the Affidavit of Nate Peterson attached hereto as Exhibit I.) Thus, Delaney
billed and received payment from Aasonn for 116 hours of work she did not perform,
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representing $12,760.00.
43. Delaney billed Aasonn for her performance of the following work for Energy
Cranes, and Aasonn paid her for such work, but in fact, Delaney did not actually
complete or perform the work:
(a) Implementation and/or configuration of the Enterprise Performance
management software module for the customer;
(b) Implementation and/or configuration of a language pack for the customer, the
purpose of which is to translate user interface data to another language;
(c) Implementation and/or configuration of the SPRAC version of a
compensation software module for the customer;
(d) Such other implementation, configuration and/or work billed but not actually
performed by Delaney, as shown by the evidence.
44. After Delaney’s resignation from Aasonn, Aasonn retained another contractor to
complete the Energy Crane Project. Though Delaney had billed for 181 hours on the
Project (which was budgeted for 183 hours in total), after reviewing the status of the
Project and meeting with the customer it was determined the contractor had to work on
the Project as though it was a brand new one, and Delaney had not performed the work
she billed and claimed she performed. The contractor had to meet with the client and go
over even the most basic information because it had not been addressed by Delaney. The
contractor had to prepare the project plan and deliver it to the customer, prepare the
configuration notebook, provide the customer test user information, provide instruction
and/or guidance regarding the software, and configure and implement the Enterprise
Performance Management, SPRAC Compensation, and language pack software, among
other things.
45. Delaney billed virtually all the hours budgeted to complete the Energy Crane
Project. Though the budgeted hours were sufficient to complete it in its entirety, Delaney
did not come close to completing the Project and a total of 118 hours of work still
remained to be done, and had to be done by a replacement contractor, to complete the
Project after Delaney’s resignation.
46. Delaney billed for the work set forth above in paragraph 43, which work she did
not in fact perform. Thus, Delaney’s billing entries were false.
47. Delaney submitted billing entries for work she did not actually perform, and did
so with knowledge of their falsity and an intent to induce Aasonn to pay her, which
Aasonn subsequently did to its detriment.”
Similar allegations were included for the other four projects at issue. These paragraphs were
incorporated into the specific counts alleging fraud (one each against Delaney and
Performance Management Strategies, LLC). Aasonn then alleged that “Delaney represented
to [Aasonn] that certain work was completed by submitting invoices for said work. The
representations were false ***.”
¶ 31 Taken in their entirety, the allegations of the third amended complaint were pleaded with
sufficient specificity. The alleged misrepresentations of fact consisted of the invoices
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themselves in which Delaney represented that she had completed certain work. Aasonn’s
allegations were very detailed as to the hours billed, the tasks represented to have been
completed, and the specific tasks alleged to have been left undone. We cannot fathom what
specific facts could possibly be added to the complaint.
¶ 32 We also note that falsely representing that one has completed certain tasks differs from
breaching a contract where one fails to perform its obligations. As we have explained, “We
believe that a ‘deceptive act or practice’ involves more than the mere fact that a defendant
promised something and then failed to do it. That type of ‘misrepresentation’ occurs every
time a defendant breaches a contract.” Zankle v. Queen Anne Landscaping, 311 Ill. App. 3d
308, 312 (2000) (addressing a claim under the Illinois Consumer Fraud and Deceptive
Business Practices Act (815 ILCS 505/1 et seq. (West 2010))). Accordingly, Aasonn
sufficiently pleaded its fraud counts.
¶ 33 For the foregoing reasons, the judgment of the circuit court of Du Page County is
reversed and the cause is remanded for further proceedings consistent with this opinion.
¶ 34 Reversed and remanded.
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