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Berutti v. Dierks Foods

OPINION FILED JULY 30, 1986.

CLIFFORD BERUTTI, PLAINTIFF-APPELLEE,

v.

DIERKS FOODS, INC., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County; the Hon. John C. Layng, Judge, presiding.

JUSTICE STROUSE DELIVERED THE OPINION OF THE COURT:

Clifford Berutti filed an action for damages for breach of an employment contract when he was terminated by Dierks Foods, Inc. He was granted summary judgment in the amount of $15,800. Dierks Foods timely appeals from the summary judgment.

Dierks Foods sells grocery products to retail outlets. Berutti, who was employed by a competitor, was contacted in February 1983 by Stanley Weinstein, a personnel recruiter for Dierks Foods. Weinstein forwarded Berutti's resume to Ronald Dierks, president of Dierks Foods, Inc., who thereafter dealt with Berutti. There followed several interviews concerning sales volume and compensation. Dierks told Berutti that he would want an increase in sales in his assigned area which should generate a million dollars in sales volume.

Dierks regularly used a straight commission basis to compensate street salesmen. Berutti, who did not know how many of his former customers would come over with him, refused to be compensated on a commission basis. Therefore, Dierks agreed to start Berutti with a compensation package which included a base weekly salary of $750, a monthly auto expense reimbursement of $250, and company health benefits.

Berutti wanted a written confirmation of how Dierks was going to compensate him. Weinstein sent Berutti a letter dated April 21, 1983, which, in pertinent part, stated:

"Per your agreement with Mr. Ron Dierks, you will be joining the Company on 9, May, 1983. The following terms and conditions have also been agreed upon:

A. Guaranteed salary for twelve months of $750.00 per week. ($39K per annum).

B. Guaranteed auto allowance of $250.00 per month.

C. Usual and customary Company medical benefit program."

A copy was sent to Dierks.

Berutti contends this was an agreement to compensate him at the weekly rate of $750, for a period of a year, and to thereafter pay him on a commission basis. Dierks agues that the $750 was only a base salary, and that the letter did not include all the terms to which the parties had agreed. Neither party sought to modify the written agreement.

Berutti's sales volume decreased from $65,457 in May, to $40,867 in September. In September, Dierks told Berutti that he was dissatisfied with Berutti's sales performance and that if his sales "didn't increase, he would have to take some action." Berutti expressed his own dismay about his sales performance and stated that he would endeavor to increase his sales. Berutti's October sales decreased to $37,318. Dierks then terminated Berutti on the basis of his inadequate sales performance.

Judge Layng granted summary judgment for Berutti ruling that he had "a guaranteed no-cut contract." He concluded that the April 21, 1983, Weinstein letter was for "12 months whether his performance was good, bad, indifferent," and there were no circumstances, "unless he was a criminal [or] something of that nature," under which Berutti could be terminated. He assessed damages at $15,800 — the contract amount less monies received from unemployment-compensation disbursements. Dierks timely appealed.

On appeal from an order granting summary judgment, a reviewing court must consider all grounds and facts urged below to determine if genuine issues of material fact exist and whether the moving party was entitled to summary judgment as a matter of law. (Talos v. Youngstown Sheet & Tube Co. (1985), 134 Ill. App.3d 103, 108; Newell v. Field Enterprises, Inc. (1980), 91 Ill. App.3d 735, 741.) Defendant contends that the following issues of material fact are disputed: (1) the parties disagree ...


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