APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
536 N.E.2d 858, 181 Ill. App. 3d 28, 129 Ill. Dec. 808 1989.IL.336
Appeal from the Circuit Court of Cook County; the Hon. Albert Green, Judge, presiding.
JUSTICE LORENZ delivered the opinion of the court. MURRAY, P.J., and PINCHAM, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ
This appeal arises out of a breach of contract action in which plaintiff, H&M Driver Leasing Services, Unlimited, Incorporated , alleged defendant, Champion International Corporation (Champion), wrongfully hired a truck driver furnished by plaintiff to defendant under a driver leasing agreement. Following a bench trial, the circuit court ruled in favor of H&M, awarded $10,000 in liquidated damages, enjoined Champion from future breaches, and ordered payment of $6,300 in attorney fees and costs.
We affirm in part, vacate in part, and remand with directions.
The following facts are undisputed. On August 26, 1985, H&M and Champion entered into a duly executed contract whereby H&M agreed to lease truck drivers, as needed, to Champion. Pertinent here, paragraph 12 of the contract provided:
"[Champion] agrees that it will not hire any of the drivers that furnished to [Champion] for a period of one (1) year from the termination date of this Agreement. In the event that [Champion] does hire any of the drivers in violation of the terms of this Agreement, then [Champion] shall pay to all costs and expenses, including attorney's fees incurred by in enforcing the provisions of this Agreement including injunctive relief. [Champion] also agrees to pay $10,000.00 liquidated damages to , plus any and all actual damages resulting to ." (Emphasis added.)
In July of 1985, H&M hired Clifton Sweezy and, the following month, supplied him as a driver to Champion.
On March 14, 1986, H&M filed a complaint against Champion alleging that, in January of 1986, Champion had hired Sweezy as one of its own employees in violation of paragraph 12 of the contract. Plaintiff sought injunctive relief to prohibit Champion from hiring other drivers in future breach of the contract. Additionally, plaintiff sought, pursuant to paragraph 12, actual damages, $10,000 in liquidated damages, and attorney fees and costs.
In its answer, Champion admitted hiring Sweezy. However, Champion raised three affirmative defenses: (1) because Sweezy left Champion's employ in February 1986, the claim for injunctive relief was moot and any damage claim could not extend beyond that time; (2) the claim for $10,000 in liquidated damages was unenforceable as constituting a penalty provision; and (3) H& M waived any right under the contract with respect to the hiring of Sweezy.
After a two-day trial, the circuit court concluded Champion violated paragraph 12 of the contract by hiring Sweezy and granted judgment for plaintiff. The trial Judge concluded that, because actual damages were "incalculable," plaintiff was entitled to $10,000 in liquidated damages under paragraph 12. Subsequently, the Judge entertained ...