United States District Court, N.D. Illinois
May 6, 2004.
ITQ LATA, LLC, Plaintiff,
MB FINANCIAL BANK, N.A., Defendant
The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge
MEMORANDUM OPINION AND ORDER
This case involves a $110,156.57 claim for breach of contract,
account stated, and unjust enrichment brought by Plaintiff ITQ Lata, LLC
("Plaintiff or "ITQ"), against Defendant MB Financial Bank, N A.
("Defendant" or "MB"), arising out of public relations services performed
during the year 2002. The Court conducted a bench trial on March 8-9,
2004. The Court has considered carefully the testimony of the five
witnesses who testified at the trial, the parties' trial exhibits, the
parties `written submissions, and the excellent closing arguments.
The following constitute the Court's findings of fact and conclusions
of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. To
the extent certain findings may be deemed conclusions of law, they shall
also be considered conclusions of law. Similarly, to the extent matters
contained in the conclusions of law may be deemed findings of fact, they
shall also be considered findings of fact, I. ISSUES PRESENTED
1. Was the monthly advance a cap on the fees that could be charged for
base media services? ANSWER: No,
2. How much is still owed by MB to ITQ for public relations services in
2002? ANSWER: 578, 517.86, including interest.
3. Is MB liable to ITQ for services performed in connection with MB's
2001 annual report? ANSWER: No.
II. FINDINGS OF FACT
A. THE PARTIES
1. ITQ is a limited liability corporation organized under the laws of
the State of New Mexico, with its principal place of business in
Albuquerque, New Mexico. and offices in Denver, Colorado and Chicago,
Illinois. ITQ is duly authorized to do business in the State of Illinois,
and it specializes in information technology. It is wholly owned by Los
Alamos Technical Associates, Inc. ("LATA"), a New Mexico. corporation with
its principal place of business in Alburquerque, New Mexico. Robert
Kingsbury currently is the sole officer of ITQ and is one of the three
managers of that company. He is also President of LATA. During 2002, ITQ
had a public relations and marketing division, known as ITQ Minkus &
Dunne, operating in Chicago. ITQ Minkus & Dunne provided public
relations and marketing services for MB, which are at the center of this
dispute. 2. MB is a nationally chartered bank with its principal place of
business in Chicago, Illinois. At all times pertinent to this case, Karen
Perlman was Vice President and Director of Marketing for MB.
B. THE RELATIONSHIPS AMONG THE KEY ACTORS
3. Raymond Minkus co-founded an independent firm known as Minkus &
Dunne, which specialized in providing public relations and marketing
services. On or about December 1, 1999, Raymond Minkus, on behalf of
Minkus & Dunne, and Karen Perlman, on behalf of MB, entered into a
written contract (the "Agreement") calling for Minkus & Dunne to
provide certain public relations and marketing services to MB. Px 13,
Within weeks of entering into the Agreement with MB, Minkus & Dunne
became the public relations and marketing services division of ITQ,
Raymond Minkus became the head of the Chicago office of the newly formed
division, ITQ Minkus & Dunne.
4. After the creation of ITQ Minkus & Dunne, the Agreement remained
intact. For their respective companies, Raymond Minkus and Karen Perlman
supervised the public relations and marketing activities under the
Agreement. Karen Perlman was the sole authority at MB to approve or
reject invoices from ITQ. Raymond Minkus was responsible for the
preparation and approval of all of the invoices sent to MB.
5. In order to prepare for important announcements, Perlman trusted
Minkus with confidential information regarding mergers and acquisitions.
Raymond Minkus performed work for Karen Perlman with respect to those
confidential mergers and acquisitions. 6. Under the direction of Raymond Minkus, ITQ Minkus & Dunne
maintained an excellent relationship with MB during the years 2000 and
2001. During those years, Perlman remained within her marketing budget,
and there were no disputes over charges for services provided by ITQ to
MB in 2000 and 2001, except for services in December, 2001, Dx 19.
Between early 2001 and mid-2002, MB publicly announced the following
mergers and acquisitions:
On February 9, 2001, MB made public its acquisition of First
Savings & Loan of South Holland.
On April 20, 2001, MB made public its merger with Mid City Bank.
On December 3, 2001, MB made public its renaming after the Mid
City Bank merger.
On December 27, 2001, MB made public its merger with Lincolnwood
On July 22, 2002, MB made public its merger with LaSalle Leasing.
7. By mid-2002, Perlman's budget became constrained and Minkus's
relationship with ITQ simultaneously began to sour. Beginning in
mid-to-Iate 2002, business relationships between Minkus, ITQ, and MB
began to unravel. Perlman began to refuse to pay the full amount of
invoices from ITQ as her budget became strained. Minkus attempted to
reconcile the invoices and to obtain payment. Px. 25. He was only
partially successful. Px 27. Minkus ultimately resigned from ITQ,
communicating his decision by a letter dated December 5, 2002, He subsequently filed a complaint in the Northern
District of Illinois against ITQ and individual current and former
employees, officers, and directors of ITQ and its parent company. Dx 4.
ITQ then filed a counterclaim against Minkus. That litigation was still
pending at the time of trial.
8. Shortly after Raymond Minkus resigned from ITQ, Karen Perlman
terminated the Agreement between MB and 1TQ by letter dated December
18, 2002, Px 43. On January 31, 2003, Raymond Minkus, on behalf of the
newly-formed Minkus & Pearlman Public Relations, Inc., contracted
with Karen Perlman, on behalf of MB, to provide the same services that
Minkus & Dunne had provided to MB when it was a division of 1TQ. Px
C. THE AGREEMENT
9. The December 1, 1999 Agreement called for certain public relations
and marketing services to be provided to MB. Px 13. The parties continued
to operate under the terms of the Agreement, with one material oral
modification, until the termination of MB's relationship with ITQ in
December 2002. The Agreement stated that ITQ Minkus & Dunne would be:
responsible for providing media relations and other
communications services. When projects are initiated,
all parameters will be discussed, budgeted and agreed
upon before any services are performed, with the
exception of "as needed" consulting services as long
as it pre-disclosed that those services are in
addition to the monthly advance invoice or other
pre-approved projects. Professional time is based upon the personal effort
required to perform on [MB's] behalf and includes
client and internal meetings, all forms of written and
oral communications, media and supplier contact.
Px 13, at 6.
10. The Agreement also provided, in relevant part entitled "IIS VOICING
STRUCTURE," that, beginning January 1, 2000, MB would:
make a monthly commitment of a $5,000 advance towards
funding the base media relations program during the
next twelve months. Core public and media relations
activities will be accounted for monthly with the
balance fees beyond the advance to be invoiced at the
end of each month. Advance payments are due the 1st of
the month in which services are rendered.
Out of pocket charges and expenses are additional.
. . .
Any project work in excess of the above monthly fee
will be performed only upon approval. Fees for all
additional assignments and expenses will be budgeted
and invoiced separately and arc due upon receipt.
Questions regarding any invoices must be brought to
our [ITQ's] attention within seven days of receipt.
Px 13, at 7 (italicized emphasis added; underlining in original).
Pursuant to a material oral modification by Minkus and Perlman, this
section was amended to increase the amount of the monthly advance paid to
ITQ by MB from $5,000.00 per month to $7,000.00 per month effective in
the Spring of 2002.
11. The services referred to as the base media relations program and
core public and media relations activities that were provided by ITQ
included services described in ITQ's invoices as "General Media
Relations," "Communications Planning," "Media List Development," "Media Monitoring," "Strategic Planning," and "Press
Releases." See, e.g., Pl. Ex, 10. MB paid for these services out
of its marketing budget.
12. The services referred to as project work in this case include those
services related to MB's mergers and acquisitions, MB had special project
funds, separate and apart from its marketing budget, from which fees for
project work were paid.
13. The invoicing provisions of the Agreement were not strictly
followed by the parties. Invoices were not always sent at the end of each
month. MB did not always object to invoices within seven days of receipt.
At times, the parties chose not to invoice base work and project work
separately. The parties' failure to strictly adhere to the Agreement is
the genesis of the disputes arising in this case and arises out of the
excellent working relationship that existed between Minkus and Perlman in
2000 and 2001,
14. In 2001, fees for both "project work" and for base or core media or
public relations services appear on the face of the invoices. See
e.g., Px 16, The advance of $5,000,00 was invoiced separately and
was applied against the monthly invoice. There is no indication, however,
as to what extent the advance was being applied to "project work" or to
base or core media or public relations services. Px 16,
15. The disputes arising in this case in 2002 caused Karen Perlman
ultimately to object to several invoices because she believed they
included fees for unauthorized base media service work as well as fees
for an incomplete media kit, excessive work on a one-day project involving Ralph Bloch, and work on MB's 2001 annual report
that MB had contracted Grady Campbell, Inc., to perform.
16. In September 2002, Raymond Minkus attempted to reconcile the
disputes, sending memoranda dated September 11, 2002, to Karen Perlman to
explain that "with the volume of activity relating to special projects,
there may have been several instances where charges were miscoded on
[ITQ's] end," resulting in outstanding invoices from as far back as
December 2001. Px 25. Minkus subsequently corrected several invoices,
allocating amounts to special projects, which resulted in a payment from
MB to ITQ of $49,963,75 on October 10, 2002. Px 27.
17. On December 17, 2002, and December 31, 2002, after he resigned from
ITQ, Raymond Minkus met with Sandra Rezny, Perlman's marketing
coordinator, in an attempt to adjust, properly the disputed invoices. The
meetings did not result in additional payments.
18. In the meantime, when Karen Perlman terminated the Agreement via a
December 18, 2002 letter to Robert Kingsbury, she requested that a recap
for services provided in December be sent to Sandra Rezny and that ITQ
return all files and work product, Px 43, Perlman did not express any
dissatisfaction with the services performed by ITQ, Kingsbury replied
with an email and a letter dated December 19, 2002, acknowledging and
accepting the termination of service, canceling the December 2002 advance
invoice, promising to send an invoice for hours worked in December, and
agreeing to return all files and work product to MB only upon receipt of $94,638.81 past due from
seven invoices dating back to January 2002. Px 51.
19. On January 20, 2003, Kingsbury sent to Karen Perlman an email
stating that ITQ had not had any communication from MB regarding the
unpaid invoices since January 7, 2003, and he request a personal meeting
with Perlman. Px 52. On January 23, 2003, Kingsbury sent a spreadsheet to
Sandra Rezny listing all invoices since January 2001 and stating that
there were no more invoices in ITQ's system. Dx 9. He also informed MB
that Raymond Minkus no longer had authority on behalf of ITQ to discuss
the disputed invoices. Finally, on February 10, 2003, Kingsbury sent
another email to Perlman expressing his concern that ten invoices
remained unpaid for a total amount past due of $137,028.32. Px 53,
20. On February 18, 2003, MB issued a check to ITQ in the amount of
$47,938.00 for work performed by ITQ in 2002, Px 30. This lawsuit was
filed to resolve the dispute over the unpaid fees,
III. CONCLUSIONS OF LAW
21. This Court has diversity jurisdiction. 28 U.S.C. § 1332(a)(1). In a
diversity action, a federal court applies the substantive law of the
forum state. Alper v. Altheimer & Cray, 257 F.3d 680, 687 (7th Cir.
2000). In this case, the substantive law of Illinois applies. B. BREACH OF CONTRACT CLAIM
22. Under Illinois law, a breach of contract claim has four elements:
(1) the existence of a valid and enforceable contract; (2) the
plaintiff's performance of all of its contractual obligations; (3) the
defendant breached the contract; and (4) the resulting damages to the
plaintiff. Priebe v. Autobarn, Ltd., 240 F.3d 584, 587 (7th Cir. 2001);
Finch v. Ill. Cmty. College Bd., 734 N.E.2d 106,110 (Ill. App, Ct.
2000). The starting point of any contract analysis is the language of the
contract. MJ & Partners Restaurant Ltd, P'ship v. Zadikoff,
995 F. Supp. 929, 931 (N.D.Ill. 1998). The contract as a whole must be
considered and the intent of the parties must be determined. Finch, 734
N.E.2d at 110. If a contract is clear and unambiguous, the intent of the
parties is derived from the plain language of the contract, without
resorting to extrinsic evidence outside the "four corners" of the
document. Zadikoff, 995 F. Supp. at 931. Whether an agreement is
ambiguous is a question of law. In re Marriage of Wenc, 689 N.E.2d 424,
427 (Ill.App. Ct. 1998). A clear and explicit agreement must be enforced
as written. Rakowski v. Lucente, 472 N.E.2d 791, 794 (Ill. 1984).
23. Any ambiguity in a contract must be resolved against the drafter.
Guerrant v. Roth, 777 N.E.2d 499, 503 (Ill. App, Ct. 2002). If contract
language is ambiguous or capable of more than one interpretation, then
parol evidence is admissible to determine the parties' intent. Pepper
Constr. Co. v. Transcontinental Ins. Co., 673 N.E.2d 1128, 1130 (Ill.
App, Ct, 1996). The interpretation of an ambiguous contract is reserved
for the finder of fact. Id. 24. When a contract is susceptible to two conflicting constructions,
the implied duty of good faith and fair dealing is used as an aid to
determine the intent of the parties, unless that duty is expressly
disavowed. Citicorp. Savings of Ill. v. Rucker, 692 N.E.2d 1319, 1324
(Ill.App. Ct. 1998). The duty of good faith and fair dealing requires
that contractual discretion be exercised reasonably and with proper
motive, and not arbitrarily and capriciously. Zadikoff, 995 F. Supp. at
932; Rucker, 692 N.E.2d at 1324. This duty is viewed in reference to the
parties' reasonable expectations at the time the contract was drafted.
25. In this case, there is no dispute that a valid and enforceable
contract exists between the parties, nor is there a dispute that
Plaintiff performed its contractual obligations, namely, that it provided
Defendant with public relations and marketing services pursuant to the
Agreement. The threshold issue is whether the monthly advance provided
for in the Agreement (the "Advance Provision") is a cap on fees for core
public and media relations services performed by Plaintiff, If the
monthly advance is a cap, then Plaintiff is not entitled to fees in
excess of the advance that were incurred in performing base or core
services which were not pre-approved by Defendant. If the monthly advance
is not a cap, then Plaintiff is entitled to fees incurred in performing
base or core services above the advance. The Court finds that the advance
is not a cap.
26. The language of the Agreement and the course of conduct of the
parties both support the conclusion that the monthly advance is not a cap
on core public and media relations services. The language of the Agreement is unambiguous, and the
parties mere disagreement on the meaning of terms does not render the
terms ambiguous. Dean Mgmt, Inc. v. TBS Constr., Inc., 790 N.E.2d 934,
939 (Ill.App. Ct. 2003). The Advance Provision states that the monthly
advance is an "advance towards funding the base media relations program."
This Court must give these words their plain meaning, unless they are
defined in the contract. Id. The contract does not define these terms.
The plain meaning of the language, "advance towards," is clear. The
language means that the monthly advance is in partial fulfillment of the
final amount to be paid to Plaintiff at a later date for the work
performed on the base media relations program. Pursuant to the Agreement,
the balance of the fees for base media relations program work done beyond
the advance are to be invoiced at the end of each month. Px 13, p. 7,
There is no mention that this balance must be approved prior to the work
being performed, as is the case for other types of work provided for
under the Agreement. Looking at the contract as a whole, the base media
relations program as laid out in pages two and three of the Agreement
contemplates ongoing work to enhance the image and reputation of MB. Such
work includes generating media lists, preparing news releases, writing
source letters, doing media training, and monitoring the media for
success. There is no pre-approval requirement on this work. This lack of
restriction does not mean, however, that MB gave ITQ a blank check to do
base media services work for MB. MB had the right to object to invoices
submitted by TTQ within seven days and ITQ certainly was aware, even if the specifics were unkown, that
MB had a budget within which to operate.
27. The Agreement provides that pre-approval is required for another
type of work, designated as "project work" in the Agreement ("Project
Work Provision"). The first sentence of Paragraph Four, which is
underlined for emphasis, requires pre-approval from MB before any
"project work" in excess of the monthly advance is performed. Px 13, p.
7. This work was to be invoiced separately from base media services, and
included assignments different than those covered by the base or core
services. These assignments, such as extended writing assignments or
crisis communications, are more extensive or more urgent than the base or
core services. Additionally, projects must be initiated with set
parameters, budgeted, and agreed upon before the services are provided.
Px 13, p. 6. There is an exception for "as needed" consulting services,
but the fact that those are in addition to the monthly advance invoice or
pre-approved projects must be pre-disclosed. Id.
28. Thus, under the Agreement, the parties intended three categories of
work to be performed: (1) base or core media or public relations
services, which need no approval; (2) project work, which require
approval to the extent that it is not covered by the advance; and (3) "as
needed" consulting services, which must be pre-disclosed to the extent it
is not covered by the advance. The parties also contemplated that the
advance could be applied to any one of these categories, until the
advance was extinguished. For instance, so long as both base services and
"as needed" services could be performed for less than the advance, then ITQ was not required to obtain pre-approval or to pre-disclose the
work; but if the base services already had extinguished the advance, then
pre-disclosure of the "as needed" services would be required. Thus, the
advance was not a cap on the fees for any of these services, except to
the extent that ITQ failed to obtain pre-approval for "project work" or
to pre-disclose "as needed" consulting services. If JTQ failed to take
those steps, then it would not be entitled to fees for that work above
the advance. However, no such requirement exists for base media services.
29. The course of dealing between the parties supports the Court's
interpretation of the Agreement. Because the accounting records of both
MB and ITQ are confusing, the Court primarily must focus on the behavior
and testimony of the actors in this case.
30. At all times relevant to this dispute, Raymond Minkus billed his
time at either $250 or S295 per hour; the time for Stephanie Hamernik,
who initially worked for ITQ Minkus & Dunne part-time in mid-2000 as
an Account Executive and was promoted to Senior Account Executive in late
2000 to assist in the "development of marketing strategies, preparation
and presentation of client communication and the management of internal
resources in the execution of projects," Px 40, was billed at either $105
or $140 per hour. Dx 14, at 12.
31. MB paid the full invoice amount for all of the work performed by
ITQ through November, 2001. Those amounts include fees for both base
services and project work. Pl. Exs, 14, 15-18. The amounts allocated to
the base services alone were well beyond the advance each month. See, e.g., Pl. Ex. 14 ($11,082.50 in fees charged for
base or core media or public relations services). Thus, the course of
dealing indicates that the advance was not a cap on charges for base or
core media or public relations services.
32. Furthermore, the fact that Minkus reduced his staff's hourly rates
in 2002 does not support the finding of a cap because it is illogical for
him to charge less per hour in order to be able to squeeze more hours
under a cap, especially when the cap went up that year. Moreover, there
is no need for hourly rates for any work done under a cap. If ITQ could
expect no more than $7,000 per month for any work done, then as far as MB
is concerned the hourly rates of ITQ employees are of no consequence.
33. Defendant, however, posits that the amounts allocated to base
services over the advance were attributable to a secret budget created
within the marketing budget to protect the confidentiality of several
mergers and acquisitions in which MB was involved. Specifically, Perlman
instructed Minkus to record his time spent on confidential special
projects under base service categories. Only later would the special
project work fees be segregated out of the base service fees. The Court
has several problems with this position.
34. First, the foundations for this position rest solely upon the
testimony of Perlman and Minkus. However, they lack credibility on the
issue. They both are biased against Plaintiff. Perlman has terminated her
relationship with Plaintiff and has continued to use Minkus's new
company. Minkus has no interest in biting the hand that feeds him, MB,
through Perlman, is his company's largest client. Additionally, Minkus
and Plaintiff are locked in related litigation against each other. Therefore, the
Court views their testimony with skepticism. Indeed, both were impeached
during trial on a number of significant issues,
35. Second, the invoices do not indicate a shift in methodology.
Perlman testified that the reason all of the 2001 invoices were paid was
because they all represented base services performed at a rate of $5,000
per month and any additional fees were for confidential project work, even
though on the face of the invoices the work was for both base services
and non-confidential project work. The 2002 invoices, she argues, were
not paid in full because the fees were for non-confidential project work
and for base services in excess of the monthly $7,000 advance. She paid
only the amount of the advance plus the amount allocated to special
projects. She also testified that the base or core service fees were never
less than the advance. One problem with this testimony is that there is
no difference between the 2001 and the 2002 invoices on their faces.
Compare, e.g., Px 8 with Px 14. The significance of this situation is
that it requires the Court to believe that TTQ suddenly changed its
invoicing practice and began invoicing base or core service fees beyond
the monthly advance in 2002, which it did not do in 2001 even though it
was permitted to under the Agreement. The other problem with this
testimony is that there is no evidence of subsequent fee reallocation in
2001 due to confidentiality. In fact, Minkus did not keep a second set of
records for the purpose of reallocating confidential fees. The only fee
reallocation in 2002 was not due to confidentiality but rather
misallocation. Moreover, Minkus contemplated that the charges for the
base media services would exceed the monthly advance. Perlman recognized that base or core media or public relations services could
exceed the advance and acted accordingly by paying the fees in full.
36. What is clear is that in 2000 and 2001, Perlman readily paid in
full the invoice amounts from ITQ, and she remained under budget. In
2002, her situation changed, and when her budget became strained she
began to refuse to pay the full invoice amounts from ITQ. In an effort to
obtain as much payment as possible without affecting Perlman's marketing
budget, Minkus reallocated as many fees as he could from base media
services work, which were paid out of the marketing budget, to special
projects, which were paid out of a separate budget. Nonetheless, the
advance is not a cap on fees for base media services,
37. Because the monthly advance is not a cap and none of the base media
services in excess of the monthly advance need to be approved, the Court
finds that Defendant breached the Agreement.
38. The Court will now explore the reasonableness of the fees charged
to Defendant, Plaintiff has the burden of proving that the charges were
reasonable. Victory Mem'l Hosp, v. Rice, 493 N.E.2d 117, 119 (Ill.App.
Ct. 1984). There are four categories that must be addressed: (1) fees
charged for base or core media or public relations work; (2) fees charged
for the Bloch project;(3) fees charged for the Media Kit; and (4) fees
charged for work performed after the termination of the Agreement. 1. Fees Charged for Base or Core Media or Public Relations Work
39. Defendant objects to the fees charged by Plaintiff for base or core
media or public relations work. It challenges both the time and the rates
charged by ITQ for performing such work. This challenge fails, and the
Court finds both the time expended and the rates charged to be
reasonable. Plaintiff maintained time records for its employees. Px.
31-38. The work performed was similar to that in 2000 and 2001,
40. While working for ITQ, Ray Minkus initially billed MB at an hourly
rate of $295; Stephanie Hamernik's time initially was billed at an hourly
rate of $140. MB never objected to these rates when it paid them in 2000
and 2001. See Berthold Types Ltd. v. Adobe Sys. Inc., 186 F. Supp.2d 834,
839 (N.D. Ill. 2002) (finding payment of bills to be evidence that rates
41. In 2002, these rates were dropped to $250 and $105 respectively.
However, in 2003, after Perlman's budget crisis, Minkus raised his
hourly rate back to $295. Hamernik was no longer working for ITQ. The
Court finds the rates to be reasonable. The Court will now examine the
charges made for the specific services to which MB objects.
2. Fees Charged for the Ralph Bloch Project
42. For a one-day event, ITQ invoiced MB four times for a total of
$23,686.25. Px 5-7, 24. Ralph Bloch, of Raymond James, was in Chicago for
a wealth management seminar for MB, ITQ was involved in promoting media
exposure for that seminar by having Bloch appear on radio and television
interviews. It is clear that the attempts were not as successful as the parties would have liked, as Bloch only appeared
once on WBBM radio and on a small local Chicago television station. MB
refuses to pay for the Bloch project because it is not satisfied with the
results and it claims that the fees are excessive, in fact, on June
25, 2002, Karen Permian sent to Stephanie Hamernik an email stating: "What
is the value of [Bloch being on WBBM Radio] to [MB?] Ralph Bloch may not
even mention us. We are spending dollars of your time possibly working on
something that will bring us no visibility," Dx 13, Nonetheless, MB paid
TTQ $10,643,75 for this work after it first received an invoice showing
fees for the Bloch project. Px 24, 27.
43, Plaintiff now requests $13,042.50 in additional work, but has put
forth no evidence that the amount it seeks for this work is reasonable
and customary. Moreover, there is no explanation as to why MB was
invoiced three more times for the same work. Therefore, the Court finds
that ITQ is not entitled to recover any additional fees for work
performed on the Bloch Project,
3. Fees Charged for the Media Kit
44. MB objects to the fees charged by TTQ for work performed on
preparing the Media Kit for MB. The Court finds that Perlman did authorize
the work performed on the Media Kit, but other projects were given
priority. Perlman terminated the Agreement with ITQ before ITQ could
complete the Media Kit, Under the circumstances, ITQ should be
compensated for the work it performed in furtherance of an authorized
project. MB owes ITQ the full sum of the fees for the work performed on
the Media Kit prior to December 18, 2002. Those fees are included in the invoices discussed below in
section III.C of this opinion.
4. Fees Charged after the Termination of the Agreement
45. MB objects to the fees charged by TTQ for the work performed in
gathering and boxing MB's files after the Agreement had been terminated.
The Court finds that ITQ is not entitled to these fees, as such work
customarily is not charged to a former client. 5. Amounts Due and
Owing Under the Invoices
46. There are ten invoices in dispute under Plaintiff's breach of
contract claim. The Court finds that some or all of each of those invoice
amounts are due and owing. The Court will discuss the details of each
invoice below, but first makes the following observations. All of the
disputed service invoices, except invoice No, 02121672, have applied a
$7,000.00 advance to the amount due for each invoice. All disputed
invoices were sent to the attention of Karen Perlman. Many of these
invoices were sent several months after the last work date being
invoiced. All of the disputed service invoices, except invoice No.
02121672, include fees for both "project work" and for base or core media
or public relations services. Invoice No. 02121672 contains fees only for
base media services. The amounts actually paid by MB above the $7,000.00
advance were for "project work" only. MB failed to pay ITQ for the base
media services performed and invoiced above the $7,000.00 advance.
Finally, MB failed to pay ITQ for those out of pocket expenses shown in
the disputed invoices, to which ITQ is entitled under the Agreement, but
for ease of this discussion the Court has lumped them into the category of base or
core media or public relations services.
a. Invoice No. 2689
47. ITQ sent invoice No. 2689 dated January 2, 2002 for its February
2002 advance in the amount of $5,000.00. Px 1. MB has not paid that
invoice. The Court finds that, pursuant to the Agreement, MB owes TTQ the
amount of $5,000.00 to satisfy this invoice.
b. Invoice No. 02040659
48. ITQ sent invoice No. 02040659 dated May 15, 2002 in the amount of
$12,884.88 to the attention of Karen Perlman for work performed from
March 30 to April 26, 2002. Px 3. The April advance amount of $7,000.00
was deducted from the total, leaving a balance due of $5,884,88. The
invoice was sent on January 28, 2003 in preliminary format because ITQ
could not locate a copy of the original final invoice. Dx 1 1, There was
some speculation at trial that the invoice may not have been sent in
2002, but a September 11, 2002 memorandum from Raymond Minkus to Karen
Perlman demonstrates that the invoice was received prior to September
because the memorandum references an April invoice. Px 25 (9/11/02
Memorandum from Minkus to Perlman). The Court finds that because the
invoice was received by MB and it contains fees for only base or core
media or public relations services, ITQ is entitled to full payment of
the invoice. Therefore, MB owes ITQ $5,884.88 on this invoice. c. Invoice No. 2740
49, ITQ sent invoice No. 2740 dated June 6, 2002 for its July 2002
advance in the amount of $7,000.00. Px 4. MB has not paid this invoice.
The Court finds that, pursuant to the Agreement, MB owes ITQ $7,000.00 on
d. Invoice No. 02060784
50, ITQ sent invoice No. 02060784 dated July 29, 2002 in the amount of
$25,522.33 to the attention of Karen Perlman for work performed from May
26 to June 28, 2002, including work on the "Bloch Financial Presentation"
in the amount of $9,680.00. Px 5. The $7,000.00 June advance was applied
against the total for a remaining balance of $18,522.3 3, MB has not
paid this amount. For the reasons stated above, the Court finds that MB
does not owe ITQ the fee charged for the Bloch Project. MB, however, owes
ITQ the remaining balance of $8,842.33 on this invoice for work performed
on base or core media or public relations services.
e. Invoice No. 02071247
51, ITQ sent invoice No. 02071247 dated August 20, 2002 in the amount
of $26,258.00 to the attention of Karen Perlman for work performed from
June 29 to July 26, 2002, including fees for "Lincolnwood" in the amount
of $2,137.00, "LaSalle Systems Leasing" in the amount of $11,579.00,
"Bloch/Wealth Management" in the amount of $1,330.00, and "Media Kit
(Post Merger)" in the amount of $4,090.00. The $7,000,00 July advance was
applied against the total for a remaining balance of $19,258.00. Px 6, Of
that amount, MB paid $13,716.00. Px 30. That amount represents payment
for "Lincolnwood" and for "LaSalle Systems Leasing" (special projects),
which were approved on February 6, 2003 by Karen Perlman. Dx 17. As
previously determined, MB does not owe ITQ the fees for work performed on
the Bloch Project, MB, however, does owe ITQ the fee invoiced for the
work performed on the Media Kit. The remaining balance represents fees
for work performed on base or core media or public relations services, to
which ITQ is entitled. Therefore, MB owes ITQ $4,212.00 on this invoice.
f. Invoice No. 02080549
52. ITQ sent invoice No, 02080549 dated September 3, 2002 in the amount
of $24,907,35 to the attention of Karen Perlman for work performed from
August 2 to August 30, 2002, including "Lincolnwood" in the amount of
$1,530.00, "LaSalle Systems Leasing" in the amount of $5,745.00,
"Bloch/Wealth Management" in the amount of $2,032.50, and "Media Kit
(Post Merger)" in the amount of $4,737.50, Px 7. The $7,000,00 July
advance was applied erroneously to the total amount because the advance
already had been applied to invoice No. 02071247, but nonetheless left a
remaining balance of $17,907,35. Of that amount, MB paid $4,177.50, Px
30. As previously discussed, ITQ is not entitled to additional payment
for the Bloch Project. However, MB must pay ITQ for the work performed on
the base or core media or public relations services indicated in the
invoice, as well as for the Media Kit. Moreover, the amount paid is less
than the amount of "special project" fees shown on the face of the invoice. Therefore,
MB owes ITQ $11,697.35 on this invoice.
g, Invoice No. 02100807
53. ITQ sent invoice No. 02100807 dated November 21, 2002 in the amount
of $25,919.75 to the attention of Karen Perlman for work performed from
August 31 to September 27, 2002, including "ID/Naming Communications" in
the amount of $4,625,00, "Lincolnwood Merger" in the amount of $1,250.00,
and "Conversion PR" in the amount of $1,000.00. Px 8. The November
advance of $7,000.00 was applied to the total, for a remaining balance of
$18,919.75. Of that amount, MB paid $6,875.00. Px 30. The amount paid
represents the charges for the South Holland projects (listed as
"ID/Naming Communications"), for the Lincolnwood Merger, and for the
Conversion PR. Dx 19. The Court finds that MB owes ITQ the remaining
balance of $12,044,75 on this invoice for work performed on base or core
media or public relations services.
h. Invoice No. 02100813
54, ITQ sent invoice No. 02100813 (which duplicates the unpaid invoice
No. 02110652) dated December 10, 2002, in the amount of $24,984,86 to the
attention of Karen Perlman for work performed from September 27 to
October 25, 2002, including "Real Estate Finance" in the amount of
$5,500.00, "ID/Naming Communications" in the amount of $4,375.00, and
"Lincolnwood Merger" in the amount of $3,000.00. Px 9-10. The November
advance of $7,000,00 was applied erroneously to the total amount because
the advance already had been applied to invoice No. 02100807, but nonetheless left a
remaining balance of $17,984.86, Of that amount, MB paid $15,114.50. Px
30. That payment, pursuant to karen Perlman's February 6, 2003
authorization, is allocated to work performed on the "MB Real Estate
Finance" issue, on South Holland, and on "Lincolnwood." Dx. 20. On the
invoice, Perlman made handwritten changes to the categories (for
example, she changed "ID/Naming Communications" to "South Holland") and
reallocated several thousand dollars in fees to the three categories.
Id. However, she claimed $6,727.50 in authorized base media services,
which is $272.50 less than the $7,000.00 advance, but did not request a
refund under the advance. Id. The Court finds that MB owes ITQ the
remaining $2,870.36 on this invoice for work performed on base or core
media or public relations services,
i. Invoice No. 02110647
55. ITQ sent invoice No. 02110647 dated December 10, 2002 in the amount
of $24,992,85 to the attention of Karen Perlman for work performed from
November 1 to November 29, 2002, including "ID/Naming Communications," in
the amount of $250.00, and "South Suburban Trans," in the amount of
$5,180.00, Px 11, The $7,000.00 November monthly advance once again was
applied erroneously to the total because the advance already had been
applied to invoice No. 02100807, but nonetheless left a remaining balance
of $17,992.85. Of that amount, MB paid $8,055.00. Px 30. That amount was
paid pursuant to Karen Perlman's February 6, 2003 approval and allocated
to "Lincolnwood" (renamed from "ID/Naming Communications") and to "South
Holland" (renamed from "South Suburban Trans"), after fees were reallocated from other categories. Dx
21. The Court finds that MB owes ITQ the remaining $9,937,85 on this
invoice for work performed on base or core media or public relations
j. Invoice No. 02121672
56. ITQ sent invoice No, 02121672 dated January 13, 2003 in the amount
of $8558,30 to the attention of both Alan Kotlin, who remains
unidentified, and Karen Perlman for work performed from November 30 to
December 27, 2002. Px 12. No monthly advance was applied to the total
balance. This invoice was not paid and includes fees for base or core
media or public relations services only. As previously discussed, ITQ is
not entitled to fees for the work performed after the termination of the
Agreement on December 18, 2002. Therefore, MB owes ITQ the fees for the
time worked by Stephanie Hamernik and Raymond Minkus, the only employees
who worked on the account at that time, from November 30, 2002 to
December 18, 2002. During that time, Hamernik worked thirty-eight hours
on the MB account (coded on time sheets as 50128). Px 32 (Time Sheets for
Stephanie Hamernik dated 11/29/02, 12/6/02, and 12/13/02). ITQ should be
reimbursed for Hamernik's work at her hourly rate of $105, totaling
$3,990.00 in fees. Raymond Minkus worked ten hours on the MB account. Px
31 (Time Sheet for Raymond Minkus dated 12/6/02). ITQ should be
reimbursed for Minkus's work at his hourly rate of $250, totaling
$2,500.00 in fees. Thus, the Court finds that MB owes ITQ the total
amount of $6,490.00 for this invoice. 57. Therefore, the Court concludes that MB owes ITQ the sum total of
$73,979.52 on the outstanding invoices involved in the breach of contract
C. ACCOUNT STATED CLAIM
58. An `account stated" determines the amount of a preexisting debt
when parties who previously have conducted monetary transactions agree
that there truly is an account representing the transactions between them
and one party renders a statement of account to another who retains that
statement beyond a reasonable amount of time without objection, Best Buy
Co, Inc. v. Harlem-Irving Cos., Inc., 51 F. Supp.2d 889, 899-900 (N.D.
Ill. 1999). The retention of the statement of account for an unreasonable
amount of time without objection constitutes an acknowledgment and
recognition by the latter of the correctness of the account. Motive Parts
Co. of Am., Inc. v, Robinson, 369 N.E.2d 119, 122 (Ill.App. Ct. 1977).
What constitutes a reasonable amount of time within which to make an
objection depends upon the circumstances of the case, the ordinary course
of business, and the relationship of the parties. Chi. & E. Ill, R.R.
v, Martin Bros, Container & Timber Prods. Corp., 408 N.E.2d 1031, 1036
(Ill.App. Ct. 1980).
59. This claim focuses on invoices numbered 2689, 02040659, 2740,
02060784, 02071247, 02080549, 02100807, 02100813, 02110647, and
02121672, Px 1, 3-8, 10-12, because they are accounts representing the
transaction between the parties. This claim does not focus on invoice
number 0200405 83 A, Px 2, as that invoice is the subject of Plaintiff's
unjust enrichment claim, which is discussed in section III. D of this
opinion. 60. Because Plaintiff's invoices often were sent months after the work
was performed and Plaintiff had no reason for further delay, the Court
accepts the fact that the invoices in question were sent to Defendant on
or about the date of the invoice, except for invoice number 02040659
dated May 15, 2002, which clearly was sent in January 2003. Some concern
arises with regard to whether Defendant timely objected to the invoices.
61. Under the terms of the Agreement, MB must object within seven days
of receiving an invoice. In an answer to an interrogatory, however, MB
stated that it objected to invoices within thirty days. Px 42, at 2. At
trial, Perlman testified that the objections came within seven days of
receiving the invoices,
62. No one from ITQ knows when Perlman objected to the invoices. The
parties' course of dealing demonstrates that they did not insist upon
strict compliance with the invoicing procedure set forth in the
Agreement. Plaintiff did not always issue its invoices timely, and
Defendant did not always object timely. The fact that Minkus attempted to
resolve any disputes Perlman had with the invoices in August 2002
demonstrates that ITQ acknowledged Perlman's right to object, no matter
when the objection was made. See Maker & Assocs., Inc. v. Quality
Cabinets, 640 N.E.2d 1000, 1007 (Ill, App. Ct. 1994) ("Whether the terms
of a written contract are modified by acts or conduct is a question for
the trier of fact."). However, the Court finds that no objections were
made to, nor were objections permissible under the Agreement for,
invoices numbered 2689 and 2740 for the $5,000.00 and $7,000.00 monthly
advances. Therefore, the Court finds that MB owes TTQ the amount of $12,000,00 for accounts stated. This amount, however, already
has been included in the breach of contract award and is not in addition
to that award.
D. UNJUST ENRICHMENT CLAIM
63. A trial court has a duty to restore parties to their rights.
Yugoslav-American Cultural Ctr., Inc. v. Parkway Bank & Trust Co.,
763 N.E.2d 360, 367 (Ill.App. Ct. 2001). Thus, recovery under the theory
of unjust enrichment occurs when a defendant voluntarily has accepted a
benefit that would be inequitable for it to retain without payment since
the law implies a promise to pay compensation when the value of the
services are knowingly accepted. Id.
64. Plaintiff alleges that Defendant unjustly retained, to Plaintiff's
detriment, the benefit of valuable services rendered by Plaintiff without
payment and that the retention of that benefit without payment violates
fundamental principles of justice, equity, and good conscience. This
claim stems from work done by ITQ on MB's 2001 Annual Report.
65. MB retained Grady Campbell, Inc. to prepare and publish MB's 2001
Annual Report. At Perlman's suggestion, Grady Campbell, Inc. in turn
subcontracted ITQ to write the copy for that Annual Report. ITQ performed
the work and invoiced to Grady Campbell, Inc. the aggregate sum of
$9,882.50 for the work. Dx 23, at 3-4. Grady Campbell, Inc. paid that sum
to ITQ by a check dated July 15, 2002. Dx 14, at 7. On May 8, 2002, prior
to receiving that check, ITQ sent invoice No. 020040583 A to the
attention of "Don Campbell @ Grady Campbell, Inc. on Behalf of MB
Financial" for professional fees and expenses related to work done on the Annual Report from February 23, 2002
through March 29, 2002. Px 2. Invoice No. 02040583, which Plaintiff has
called a "companion invoice," in the amount of $13,588.63 was sent to the
attention of Karen Perlman on the same day and invoiced work performed
during the same period, but it does not include fees for work performed
in connection with the Annual Report, Px 20. Defendant paid $6,588.63 of
invoice No. 02040583, after the $7,000.00 advance was applied, but Grady
Campbell, Inc. did not pay invoice No. 0200405 83 A. Plaintiff now claims
that the $21,066.25 balance of invoice 020040583A is due and owing from
66. Plaintiff argues that Defendant has been unjustly enriched by
retaining without payment the value of the services Plaintiff rendered to
Defendant through the work done on the 2001 Annual Report. This claim is
without merit. Plaintiff's work on Defendant's Annual Report was at the
behest of Grady Campbell, Inc., which subcontracted Plaintiff to perform
services for it. Moreover, Grady Campbell, Inc. paid Plaintiff $9,882.50
for the work performed,
67. Regardless whether Defendant retained the benefits from the
services provided by Plaintiff, it is not inequitable for Defendant to
retain the benefit without payment because Plaintiff had no contract with
Defendant to perform these services and was paid by Grady Campbell, Inc.
Any further dispute regarding this issue is between Plaintiff and Grady
Campbell, Inc. Therefore, Defendant in this case can not be held
accountable for work performed for it indirectly, especially when
Defendant had paid a third party for these services. See Indus, Lift Truck Serv, Corp. v, Mitsubishi Int'l Corp.,
432 N.E.2d 999, 1002 (Ill.App. Ct 1982).
68. Plaintiff is entitled to statutory interest on the amount of
damages awarded in this case pursuant to the Illinois Interest Act. 815
ILCS 205/2 provides:
§ 2. Creditors shall be allowed to receive at the rate
of five (5) per centum per annum for all moneys after
they become due on any bond, bill, promissory note, or
other instrument of writing; on money lent or advanced
for the use of another; on money due on the settlement
of account from the day of liquidating accounts
between the parties and ascertaining the balance; on
money received to the use of another and retained
without the owner's knowledge; and on money withheld
by an unreasonable and vexatious delay of payment. Tn
the absence of an agreement between the creditor and
debtor governing interest charges, upon 30 days'
written notice to the debtor, an assignee or agent of
the creditor may charge and collect interest as
provided in this Section on behalf of a creditor.
Under Illinois law, statutory interest can be recovered at the discretion
of the court. Bank of Chi. v. Park Nat'I Bank, 660 N.E.2d 19 (Ill.App.
Ct. 1995). The statute is applied on "instruments of writing," such as
invoices. Sherwin-Williams Co. v. Mark Charcoal Co., Inc., No. 80 C
4541, 1985 WL 3932, at *6 (N.D. Ill. Nov. 15, 1985). The creditor must,
however, prove that the money due was a liquidated amount or subject to
easy computation. Ameritech Info, Sys., Inc. v. Bar Code Res.,
331 F.3d 571
, 575 (7th Cir. 2003).
69. In this case, the damages are what this Court has awarded on
Plaintiff's breach of contract and account stated claims. Those damages
were easily computable because they were set forth through invoiced fees
based upon amount of hours worked multiplied by hourly rates. Plaintiff, therefore, is awarded statutory interest
at an annual rate of 5%. For the sake of simplicity, the Court finds that
the interest will have begun to run thirty days from the date of the last
invoice ITQ sent to MB, dated January 13, 2003. Thus, MB owes ITQ interest
from February 13, 2003 to May 6, 2004 in the amount of $4,538.54.
For the foregoing reasons, Plaintiff ITQ Lata, LLC, is entitled to
damages from Defendant MB Financial Bank, N.A., for breach of contract
and account stated in the total amount of $73,979.52, which represents
amounts due and owing on the following invoices, plus interest in the
amount of $4,538.34:
Invoice No. 2689 $5,000.00 Invoice No. 02040659
$5,884.88 Invoice No. 2740 $7,000.00 Invoice
No. 02060784 $8,842.33 Invoice No, 02071247
$4,212.00 Invoice No. 02080549 $11,697.35 Invoice
No. 02100807 $12,044.75 Invoice No, 02100813
$2,870.36 Invoice No. 021 10647 $9,937.85 Invoice
No, 0212672 $6,490.00 Invoice No. 020040583A $0.00
Interest $4.538.34 Total
Judgment is hereby entered in favor of Plaintiff ITQ Lata, LLC, and
against Defendant MB Financial Bank, N.A., in the total amount of
$78,517.86 for all invoices under Count I (breach of contract) and in the
total amount of $12,736.08 for two monthly advance invoices numbered 2689 ($5,000.00) and 2740 ($7,000.00) plus interest
($736.08) under Count II (account stated) of its Amended Complaint. The
judgment under Count II is not in addition to the judgment under Count
I. Judgment is hereby entered in favor of Defendant MB Financial Bunk,
N.A., and against Plaintiff ITQ Lata, LLC, on Count III (unjust
enrichment) of Plaintiff's Amended Complaint. Plaintiff, as the
prevailing party, is entitled to recover its court costs against
SO ORDERED JUDGMENT IN A CIVIL CASE
Jury Verdict, This action came before the Court for a trial by
jury. The issues have been tried and the jury rendered its verdict.
Decision by Court. This action came to trial before the Court.
The issues have been tried and a decision has been rendered.
IT IS HEREBY ORDERED AND ADJUDGED that Judgment is hereby entered in
favor of Plaintiff ITQ Lata, LLC, and against Defendant MB Financial
Bank, N.A. in the total amount of $78,517.86 for all invoices under Count
I (breach of contract) and in the total amount of $12,736.08 for two
monthly advance invoices numbered 2689 ($5,000.00) and 2740 ($7,000.00)
plus interest ($736.08) under Count II (account stated) of its amended
complaint. The judgment under Count II is not in addition to the judgment
under Count 1. Judgment is hereby entered in favor of Defendant MB
Financial Bank, N.A., and against Plaintiff ITQ Lata, LLC, on Count III
(unjust enrichment) of Plaintiff's amended complaint. Plaintiff, as the
prevailing party, is entitled to recover its court costs against
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