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.
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
"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
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
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 ...