Appeal from the Circuit Court of Cook County. Honorable Richard A. Siebel, Judge Presiding.
The opinion of the court was delivered by: Justice Hartman
Plaintiff, Installco Incorporated (Installco) filed a two count complaint against defendant, Whiting Corporation (Whiting). Count I sought contract damages for non payment of commissions on four construction projects, an accounting, and exemplary damages, costs and attorney's fees pursuant to the Sales Representative Act (the Act) (820 ILCS 120/1 et seq. (West 2000)). Count II sought quantum meruit compensation for a value engineering change proposal (VECP), which was done in connection with the Bonneville Dam project. This court previously reversed the circuit court's grant of summary judgment in favor of Whiting and remanded for further proceedings. See Installco Inc. v. Whiting Corp., 305 Ill. App. 3d 986, 713 N.E.2d 719 (1999) (Installco I). On remand, following a bench trial, the circuit court entered judgment in favor of Whiting and against Installco on the quantum meruit claim. The court further granted judgment in favor of Whiting and against Installco under count I on Installco's claim for an accounting, exemplary damages, freight charges, and commissions. Judgment was entered in favor of Installco, however, on Installco's claim for attorney's fees and costs under count I.
On appeal, Installco contends that the circuit court erred in: (1) granting judgment in favor of Whiting on Installco's claim for quantum meruit; (2) finding that Installco's waiver of the $31,500 commission on the Midwest Foundation Dam 18 project (Midwest Foundation project) was enforceable; (3) finding that Installco was not entitled to commission on freight costs under the 1988 agreement; (4) denying Installco's request for exemplary damages under the Act; and (5) denying Installco's request for a jury trial. Installco also contends that it was not compensated adequately for its attorneys's fees under the Act. Whiting filed a cross-appeal from the court's award of attorney's fees in favor of Installco contending that the court erred in rejecting Whiting's affirmative defense that Installco be estopped from contending that it was acting in the capacity of a sales representative for Whiting.
Prior to 1988, Installco was a government subcontractor, supplying machinery packages for moveable bridges, locks, and dams. John B. Ehret was the principal shareholder and sole officer of Installco. Ehret is also a licensed attorney and has represented Installco throughout its dealings with Whiting and in this litigation. Whiting engages in the manufacturing of heavy industrial equipment. On June 1, 1988, Installco and Whiting entered into a written contract (the 1988 agreement) which provided that Whiting would utilize Installco as a consultant on all bridge, lock, and dam projects on an exclusive basis. Installco's "[c]onsulting services [would] consist of *** assisting Whiting *** in the preparation of quotations, selling, manufacturing, and the purchase of O.S.M. *fn1 as deemed necessary by the product group manager."
In exchange for Installco's consulting services, Whiting agreed to pay Installco a fee of 5% of the selling price paid on orders received during the term of the 1988 agreement, payments to be made as set forth in Schedule A, attached to the 1988 agreement. Schedule A provided that Installco would be paid 10% of its fee thirty days after Whiting confirmed an order and the next 40% after Whiting collected at least 50% of the selling price. The final 50% was to be paid after Whiting received 100% of the selling price. The 1988 agreement by its terms provided that it superseded any previous written or verbal agreements between the parties.
In 1990, Installco requested that Whiting modify the 1988 payment schedule to provide that the final 50% of the Installco fee would be paid in the same proportion as Whiting was paid by the customer. In an internal Whiting memo dated October 30, 1990 (the 1990 memo), Whiting agreed to the accelerated payments on orders then in existence in exchange for Installco waiving its $31,500 commission on the Midwest Foundation project. Charles Bailey, a Whiting employee, testified that the 1990 memo applied only to projects that fell under Schedule A of the 1988 agreement where 50% had not yet been paid by the customer so Whiting was holding back compensation to Installco. Jeffrey L. Kahn, president of Whiting, testified that the 1990 memo applied to old jobs where 50% of the commission was being held.
The parties entered into a new contract, effective December 11, 1991 (the 1991 agreement). The 1991 agreement provided that it "supersedes any previous written or verbal agreements between the parties." The 1991 agreement added the word "engineering" to the list of consulting services Installco would provide Whiting. The 1991 agreement also added a definition of "selling price" which excluded all freight, established a new fee structure as set forth in a new Schedule A attached thereto, and changed the timing for payment of the final 50% of Installco's fee as set forth in Schedule B attached thereto, which adopted the accelerated payments contemplated by the 1990 memo.
Both the 1988 agreement and the 1991 agreement provided for termination by either party on 60 days written notice. By letter dated February 5, 1994, Installco terminated the 1991 agreement and demanded payment of commissions, including $2,640 for the Bay City Bridge project; $9,446 for the Bulk Head Lifter project; $10,577 for the New York City Bridges project; $9,126 for the Mississippi River Dam 16 project; and $22,417 for the VECP. After receipt of the termination letter, Whiting prepared and sent to Installco a payments analysis dated February 23, 1994, which substantially agreed with Installco's claims except as to commissions on freight and the VECP claim. Whiting made several conditional tenders which were rejected. Whiting made an unconditional tender of all commissions due Installco on January 10, 1996, in the amount of $30,154.74. Installco accepted that payment in August 1997.
On August 21, 2000, Installco filed its first-amended complaint adding allegations in count I that Installco was entitled to $10,000 in commissions on freight charges and $31,500 in commissions on the Midwest Foundation project.
The parties agree that all commissions have been paid in full except for Installco's claims for: (1) commissions on freight; (2) commissions on the Midwest Foundation project; and (3) $22,417 for the VECP.
Installco's original complaint included a jury demand on the legal issues. Upon remand following this court's decision in Installco I, Installco moved unsuccessfully for a substitution of judge and "reassignment to another Trial Judge with a JURY." Installco also unsuccessfully moved to transfer this cause to the law division for a jury trial.
Following the bench trial, the circuit court issued a memorandum order and opinion, granting judgment in favor of Whiting and against Installco on the quantum meruit claim. The court further granted judgment in favor of Whiting and against Installco under count I on Installco's claim for an accounting, exemplary damages, freight charges, and commissions. The court granted judgment in favor of Installco, however, on Installco's claim for attorney's fees and costs under count I. At a separate hearing on attorney's fees, the court awarded Installco $8,400 in attorney's fees and $274 in costs. Whiting moved unsuccessfully for a finding that Installco be estopped from seeking any relief under the Act. Whiting also moved unsuccessfully for reconsideration.
In a bench trial, the circuit court must weigh the evidence and make findings of fact. A reviewing court will not disturb the court's findings unless they are against the manifest weight of the evidence. Eychaner v. Gross, No. 91496 (Ill. Oct 3, 2002) (Eychaner). The court's conclusions of law are reviewed de novo. Eychaner, slip op. at 13.
Installco first contends that the circuit court erred in granting judgment in favor of Whiting on its claim for quantum meruit. Specifically, Installco argues that the court erred in finding that the ...