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May 16, 1994


Appeal from the Circuit Court of Lake County. NO. 92-L-885. Honorable Jack Hoogasian, Judge, Presiding.

PECCARELLI, Quetsch, Colwell

The opinion of the court was delivered by: PECCARELLI

JUSTICE PECCARELLI delivered the opinion of the court:

Plaintiff, Laura Pelon, appeals an order dismissing her three-count complaint against defendants, Bob Wall and Paul Seveska, and imposing sanctions pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137). The court dismissed the complaint pursuant to section 2-619(a)(4) of the Code of Civil Procedure (section 2-619(a)(4)) (735 ILCS 5/2-619(a)(4) (West 1992)), holding that the suit was barred by a judgment that dismissed plaintiff's complaint against Copley Press, the employer of defendants Wall and Seveska. At the time the trial court dismissed the complaint here, the judgment on which the court relied was on appeal to this court; since then this court has entered a judgment affirming in part and reversing in part the first order. See Pelon v. Copley Press (2d Dist. May 26, 1993), No. 2-92-0629 (unpublished order under Supreme Court Rule 23).

On appeal, plaintiff argues that: (1) the trial court erred inholding that res judicata barred the present action; and (2) the trial court abused its discretion in awarding defendants attorney fees under Rule 137. We reverse the judgment of the circuit court, and we remand for further proceedings.

On July 7, 1992, plaintiff filed the three-count complaint at issue in this case. The complaint alleged the following facts as the basis for each count. Until April 1991, plaintiff was employed by the Waukegan News-Sun as a salesperson. On or about April 26, 1991, plaintiff changed employment; she agreed to a contract for employment at will at her new job. On or about May 17, 1991, defendant Wall, advertising director for the News-Sun, called plaintiff and requested that she return for three days to train her replacement, as she had promised upon leaving that she would do.

When plaintiff returned to the News-Sun on May 20, 1991, she, Wall, and Seveska, who was an assistant to Glen Pfeil, the publisher of the News-Sun, met in Seveska's office. Seveska told plaintiff that he could secure her a lucrative employment package if she desired to return permanently to the News-Sun. Plaintiff expressed no interest in this general proposal at the time. Later, Seveska told plaintiff that Pfeil wanted her back and that plaintiff had Seveska "by the balls."

On or about May 22, 1991, plaintiff's third day of training her replacement, Seveska told her that he had been authorized to offer her a sales position at a large increase in pay; that plaintiff ought to talk to Wall; and that Wall had the written offer. At a meeting that day, Seveska asked plaintiff to notify her new employer as soon as possible so that, if plaintiff accepted the offer, she could be available for some important meetings with a client. Later that day, plaintiff met with Wall, who offered her a package that included, in part, a guarantee of $42,000 annual salary. Plaintiff replied that she would consider the offer.

On or about May 24, 1991, Wall telephoned plaintiff at plaintiff's new workplace and told her that the News-Sun needed her to start work right away. Plaintiff replied that she wanted the offer in writing. Wall told her that management had signed the agreement and that he could fax her a copy. Plaintiff declined the fax and Wall told her that the written offer would be available on May 24, 1991. Plaintiff told Wall that she accepted the offer that Wall had described to her.

After this conversation, plaintiff immediately notified her new employer of her decision, and she and her employer agreed that Friday, May 24, 1991, would be her last day on the job. Plaintiff immediately terminated her at-will employment contract.

On May 28, 1991, plaintiff returned to the News-Sun. On June13, 1991, Seveska told plaintiff that the News-Sun had decided not to give her the salary or the territory she had been promised.

Count I of the complaint alleged that Wall and Seveska were liable to plaintiff for fraud because they knowingly misrepresented the agreement that plaintiff was being offered, and they did so with the intent to induce plaintiff to rely on these misrepresentations. Plaintiff's reliance on the misrepresentation, including that there was a signed agreement, resulted in plaintiff being fired when she asserted her rights to have the alleged contract enforced and caused plaintiff further psychological, medical, and financial hardship. Count I alleged that the firing was in furtherance of the misrepresentations and that defendants' actions were willful and wanton, entitling plaintiff to punitive damages.

Count II of the complaint alleged, somewhat Conclusionally, that defendants intentionally interfered with plaintiff's employment and that they did so maliciously and wantonly. Count III sounded in negligent misrepresentation, alleging that defendants made representations that they knew or should have known were false, and that plaintiff suffered damages from her justifiable reliance on these false representations.

On August 18, 1992, defendants filed a motion to dismiss pursuant to section 2-619(a)(4), which authorizes dismissal of an action that is barred by a prior judgment. According to defendants' motion, the prior judgment barring this action was the circuit court's May 27, 1992, order dismissing with prejudice plaintiff's complaint in Pelon v. Copley Press. There, the trial court ruled that plaintiff's four-count complaint against Copley Press, alleging breach of contract, promissory estoppel, fraud, and intentional interference with contract, failed to state a cause of action. (See 735 ILCS 5/2-615 (West 1992).) The factual allegations of the complaint in Pelon v. Copley Press are practically identical to those in this case. The complaint in Pelon v. Copley Press (a copy of which defendants filed with their motion) also alleges that defendants acted within the scope of their employment with Copley Press when they made the alleged ...

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