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Sommese v. American Bank & Trust Company, N.A.

Court of Appeals of Illinois, First District, Fifth Division

May 5, 2017

FRANK SOMMESE, III, Plaintiff-Appellant,
AMERICAN BANK & TRUST COMPANY, N.A., Defendant-Appellee.

         Appeal from the Circuit Court of Cook County No. 12 L 008180 Honorable Sanjay Tailor, Judge, presiding.

          LAMPKIN JUSTICE delivered the judgment of the court, with opinion, Presiding Justice Gordon and Justice Reyes concurred in the judgment and opinion.



         ¶ 1 Plaintiff, Frank Sommese, III, appeals the order of the circuit court dismissing his claim against defendant, American Bank & Trust Company, N.A., to recover statutory damages and attorney's fees pursuant to the Illinois Wage Payment and Collection Act (Act) (820 ILCS 115/1 et seq. (West 2010)). Plaintiff contends his damages claim should not have been barred because it was filed after the effective date of the 2011 amendments to the Act and, therefore, did not require retroactive application thereof. Plaintiff additionally contends the circuit court erred in rejecting his claim for attorney's fees pursuant to the doctrine of collateral estoppel. Based on the following, we affirm.

         ¶ 2 FACTS

         ¶ 3 Plaintiff was employed by defendant from April 29, 2008, to December 20, 2010. On January 19, 2011, plaintiff filed a complaint[1] in Iowa, in relevant part, alleging that defendant breached the parties' employment agreement by failing to pay him the entirety of his outstanding wages and that defendant violated the Act by failing to pay those wages. The action was filed in Iowa pursuant to the forum selection clause in the employment agreement. Plaintiff, however, was an Illinois employee and resident. On September 28, 2012, the Iowa court entered an order granting defendant's motion for partial summary judgment and dismissing plaintiff's claim under the Act as an impermissible extraterritorial application of said Act. The breach of contract action proceeded to a jury trial. Ultimately, on December 14, 2012, the Iowa jury entered a verdict in plaintiff's favor for $997, 274.16, finding defendant breached the parties' employment agreement. The Iowa court denied defendant's motion for judgment notwithstanding the verdict or for a new trial, and defendant appealed. Plaintiff did not appeal the dismissal of his claims under the Act. The Iowa appellate court affirmed the lower court's ruling along with the jury verdict on November 13, 2014. In December 2014, defendant paid the judgment with interest to plaintiff.

         ¶ 4 Meanwhile, on July 20, 2012, plaintiff filed an action in the circuit court of Cook County alleging defendant violated the Act by failing to pay his earned wages during his employment, requesting payment of the outstanding wages, liquidated damages, and attorney fees pursuant to section 14(a) of the Act. On May 22, 2014, the circuit court entered an order granting partial summary judgment in favor of plaintiff on the matter of liability for the outstanding wages, applying the doctrine of collateral estoppel based on the Iowa jury verdict.

         ¶ 5 Thereafter, on July 14, 2014, plaintiff filed a petition for attorney fees and costs associated with both the Iowa and Illinois actions. Plaintiff requested reimbursement of nearly 2800 hours in attorney fees, the vast majority of which pertained to the Iowa action. On March 16, 2015, the circuit court denied plaintiff's request for attorney fees associated with the Iowa action. In so doing, the circuit court again applied the doctrine of collateral estoppel but concluded that collateral estoppel precluded plaintiff from obtaining fees for a claim dismissed at the summary judgment stage by the Iowa court "on the basis that the plaintiff could not state a cause of action insofar as he was seeking to apply the statute extraterritorially." The circuit court directed plaintiff to file a petition limited to those fees incurred in the Illinois action.

         ¶ 6 In response, on April 10, 2015, plaintiff filed a motion for statutory damages and attorney fees and costs pursuant to section 14(a) of the Act, seeking 2% statutory damages from January 1, 2011, until December 23, 2014, the date when defendant paid the outstanding wages, along with attorney fees and costs associated with the Illinois action. The total amount of requested statutory damages was $937, 437.56, and the total amount of attorney fees and costs at that time was $367, 075.88. Defendant then filed a motion to dismiss plaintiff's action for statutory damages and to strike plaintiff's attorney fee petition. Following a hearing, on January 12, 2016, the circuit court granted defendant's motion and dismissed plaintiff's action in its entirety. In so doing, the circuit court relied on Thomas v. Weatherguard Construction Co., 2015 IL App (1st) 142785, to hold that plaintiff was foreclosed from recovering statutory interest "because it would give retroactive effect to the amendments of the [Act]." The circuit court further held that, where plaintiff failed to recover any damages in his claim under section 14(a) of the Act, he was not entitled to any attorney fees because "the law is clear that if you-a plaintiff who leaves the Court empty-handed is not entitled to fees."

         ¶ 7 This appeal followed.

         ¶ 8 ANALYSIS

         ¶ 9 I. Statutory Damages

         ¶ 10 Plaintiff contends that the circuit court erred in dismissing his statutory damages claim as an improper retroactive application of the amendment to section 14(a) of the Act. Plaintiff argues that he was not seeking retroactive application of the amendment where he sought statutory damages only from the date the amendment became effective until the date defendant paid his outstanding wages. Plaintiff maintains that, even though his action for the improper withholding of wages accrued prior to the amendment, his action for statutory damages remained proper as a prospective application of the amendment. Plaintiff, therefore, insists the circuit court improperly applied Thomas in dismissing his claim.

         ¶ 11 The resolution of the question before us requires the interpretation of the amendment to section 14(a) of the Act. We, therefore, review this matter de novo. Thomas, 2015 IL App (1st) 142785, ¶ 63.

         ¶ 12 The legislature amended section 14(a) of the Act (Pub. Act 96-1407 (eff. Jan. 1, 2011)), to provide:

"Any employee not timely paid wages, final compensation, or wage supplements by his or her employer as required by this Act shall be entitled to recover through a claim filed with the Department of Labor or in a civil action, but not both, the amount of any such underpayments and damages of 2% of the amount of any such underpayments for each month following the date of payment during which such underpayments remain unpaid.
In a civil action, such employee shall also recover costs and all reasonable attorney's fees." 820 ILCS 115/14(a) (West 2010).

         ¶ 13 In determining whether an amendment applies prospectively or retroactively, we follow the approach established by the United States Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244 (1994). Under the first step of the analysis, "if the legislature has clearly indicated the temporal reach of the amended statute, that expression of legislative intent must be given effect, absent a constitutional prohibition." People ex rel. Madigan v. J.T. Einoder, Inc., 2015 IL 117193, ¶ 29. Under the second step of the analysis, if the amendment contains no express provision regarding its temporal reach, "the court must go on to determine whether applying the statute would have a retroactive impact." Id. If retroactive application of the statute "would impair rights a party possessed when [acting], increase a party's liability for past conduct, or impose new duties with respect to transactions already completed, " " 'the court must presume that the legislature did not intend that it be so applied.' " Id. ¶ 30 (quoting Caveney v. Bower, 207 Ill.2d 82, 91 (2003)). Illinois courts, however, rarely look beyond the first step of the Landgraf analysis because an amendatory act without a clear indication of legislative intent regarding its temporal reach will be presumed to have been framed in the view of the provisions of section 4 of our Statute on Statutes (5 ILCS 70/4 (West 2012)). Caveney, 207 Ill.2d at 94. Section 4 of the Statute on Statutes "represents a clear legislative directive as to the temporal reach of statutory amendments and repeals: those that are procedural in nature may be applied retroactively, while those that are substantive may not." Id. at 92.

         ¶ 14 In the case at bar, this court most recently recognized in Gilmore v. Carey, 2017 IL App (1st) 153263, that the General Assembly intended the amendment in question not have effect until January 2011, despite having signed the bill in July 2010. Id. ¶ 39. " '[A] statute that has an express delayed implementation date but is otherwise silent as to temporal reach will be applied prospectively.' " Id. (quoting People ex rel. Alvarez v. Howard, 2016 IL 120729, ¶ 23). "Here, the General Assembly did not even want the amendment to be effective from July 2010 to January 2011, so we have clear evidence that it intended that the amendment be applicable only to proceedings commenced on or after the date it became effective." Id. As a result, we agree with the circuit court that the amendment should be applied prospectively only.

         ¶ 15 As stated, plaintiff does not challenge the ability to apply the amendment in a retroactive fashion. Rather, plaintiff insists that his claim for statutory damages does not require retroactive application of the amendment where he seeks damages only for the time period from January 2011, when the ...

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