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Quality Transportation Services, Inc. v. Mark Thompson Trucking, Inc.

Court of Appeals of Illinois, Third District

October 24, 2017

MARK THOMPSON TRUCKING, INC., an Illinois corporation, Defendant-Appellee.

         Appeal from the Circuit Court of the 13th Judicial Circuit, La Salle County, Illinois. Circuit No. 15-L-114 The Honorable Eugene P. Daugherity, Judge, Presiding.

          JUSTICE WRIGHT delivered the judgment of the court, with opinion. Justices Lytton and O'Brien concurred in the judgment and opinion.



         ¶ 1 On appeal, plaintiff, Quality Transportation Services, Inc. (QTS), contends that the trial court erred by granting summary judgment in favor of defendant, Mark Thompson Trucking, Inc. (MTT). QTS argues that a question of material fact exists concerning whether MTT engaged in the solicitation of one of QTS's clients in breach of the nonsolicitation covenant contained in the transportation brokerage agreement. We reverse and remand.

         ¶ 2 FACTS

         ¶ 3 This case involves a contract dispute arising from the language of a transportation brokerage agreement, dated July 26, 2011, between plaintiff, QTS, an Illinois corporation, and defendant, MTT, an Illinois corporation. The terms of the agreement provided that QTS, a broker licensed by the Federal Motor Carrier Safety Administration, hired MTT, a registered carrier, to provide transportation services to QTS's customers. The agreement contained a nonsolicitation provision in paragraph 19, which stated as follows, in relevant part:

"CARRIER will not solicit traffic from any [s]hipper, consignor, consignee, or customer of Broker where (1) the availability of such traffic first become[s] known to CARRIER as a result of BROKER's efforts, or (2) the traffic of the shipper, consignor, consignee or Customer of BROKER was first tendered to CARRIER by BROKER. If CARRIER breaches this Agreement and directly or indirectly solicits traffic from customers of BROKER and obtains traffic from such customer during the term of this Agreement or for twelve (12) months thereafter, CARRIER shall be obligated to pay BROKER, for a period of fifteen (15) months thereafter, commission in the amount of thirty-five percent (35%) of the transportation revenue resulting from traffic transported for the Customer, and CARRIER shall provide BROKER with all documentation requested by BROKER to verify such transportation revenue."

         ¶ 4 Pursuant to the July 2011 agreement, MTT began providing trucking services for U.S. Silica Company (USS), one of QTS's customers. MTT provided motor carrier services for USS between the company's Ottawa and Utica facilities and the Rochelle facility.

         ¶ 5 In 2016, QTS filed an amended complaint against MTT alleging MTT directly or indirectly solicited USS in violation of the nonsolicitation clause of the agreement. The amended complaint alleged that on June 16, 2015, MTT began hauling traffic for USS over the same routes QTS assigned to MTT. QTS claimed that as a result of QTS's efforts, this traffic was first tendered to MTT by QTS during the term of the 2011 agreement. QTS asserted that "[b]ut for [MTT's] solicitation of traffic from USS, [MTT] would not be engaged in hauling for USS directly along the[se] lanes of traffic." According to the amended complaint, QTS received written notice from MTT of MTT's intent to terminate the agreement on June 29, 2015, two weeks after MTT began hauling directly for USS.

         ¶ 6 On August 23, 2016, MTT filed an answer to QTS's first amended complaint. MTT denied that the company breached the nonsolicitation provision in the agreement. MTT also denied that USS "was a shipper, consignor, consignee or customer of QTS."

         ¶ 7 On September 9, 2016, MTT filed a motion for summary judgment on all of QTS's claims. In the motion, MTT argued that the undisputed material facts showed that MTT did not solicit business from USS because it was undisputed USS initiated contact with MTT. MTT claimed the agreement allowed MTT to accept unsolicited business from QTS's client. Alternatively, MTT submitted the nonsolicitation provision of the agreement was unenforceable as a matter of law.

         ¶ 8 In support of the motion for summary judgment, MTT attached the deposition transcripts of several witnesses, including Janice Casey and Mark Thompson. In his deposition, Thompson, the president of MTT, testified that, while the agreement with QTS was in place, MTT provided hauling services for QTS that included shipments for USS with routes from Ottawa to Peru, Ottawa to Rochelle, and Utica to Rochelle. Thompson understood that QTS received a brokerage fee by charging the QTS customers for whom MTT was hauling freight more money than QTS paid MTT.

         ¶ 9 Thompson spoke with Casey in December 2014 at the Lotz Trucking Christmas party. Thompson testified that he does not recall the conversation but they did not discuss business. Thompson testified that he and Casey previously attended the same high school but they had not kept in contact following graduation.

         ¶ 10 Thompson testified that Casey initiated contact with Thompson by telephoning him in the winter of 2015 to discuss the possibility of MTT hauling for USS. Casey stated that USS was short on trucks and asked Thompson if he was interested in working for USS. Thompson testified that he told Casey he was interested and Casey stated she wanted to meet sometime. According to ...

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