Armstrong v. Hedlund Corp.

• Decision Date: 29 September 2000
• Docket Number: No. 1-99-1280.,1-99-1280.
• Citation: 738 N.E.2d 163,250 Ill.Dec. 199,316 Ill.App.3d 1097
• Parties: Kate ARMSTRONG, Plaintiff-Appellant, v. HEDLUND CORPORATION and David Hedlund, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

738 N.E.2d 163

316 Ill.App.3d 1097

250 Ill.Dec. 199

Kate ARMSTRONG, Plaintiff-Appellant, v. HEDLUND CORPORATION and David Hedlund, Defendants-Appellees.

No. 1-99-1280.

Appellate Court of Illinois, First District, Third Division.

September 29, 2000.

Schwartz & Freeman (Bert Zaczek, Jacob J. Meister, of counsel), Chicago, for Appellant.

Berger, Newmark & Fenchel, P.C. (Frank T. Davenport, of counsel), Chicago, for Appellees.

Justice BURKE delivered the opinion of the court:

Plaintiff Kate Armstrong appeals from an order of the circuit court dismissing her complaint for unpaid commissions against defendants Hedlund Corporation and David Hedlund, with prejudice, based on the running of the five-year statute of limitations for oral contracts pursuant to section 2-619 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 1998)). On appeal, plaintiff contends that the trial court erred in finding that her cause of action accrued on the last day of her employment, October 18, 1993, as opposed to her next regularly scheduled payday, on October 31, 1993. For the reasons set forth below, we affirm.

In a letter dated October 15, 1998, plaintiff's counsel demanded that defendants make payment to plaintiff for certain unpaid wages, commissions, and "other related sums" she had earned while employed by defendants. The letter further stated that plaintiff's records showed that Hedlund Corporation owed her $11,152.89, including wages, commissions, and bonuses, but she only demanded that defendants pay $8,230 within three days of their receipt of the letter, as full and final payment, or she would file a lawsuit to collect the full amount plus interest, costs, and attorney fees.

On October 27, 1998, plaintiff filed a two count complaint against defendants, alleging breach of contract (count I) against Hedlund Corporation and a violation of the Wage Payment and Collection Act against Dave Hedlund (count II). In support of her claims, plaintiff alleged that she worked for Hedlund Corporation from October 7, 1990, to October 18, 1993, and that the corporation was involuntarily dissolved on November 1, 1993. Plaintiff further alleged that at the time her employment with the corporation ceased, her contract provided:

"7. * * * [Plaintiff's] wages would include a commission of 30% of all placement fees paid by companies for workers she placed with them; a commission of 10% of all placement fees paid by companies that she attracted to accept Hedlund Corporation's placement workers; and a bonus of 5% of her gross yearly commissions.

8. * * * Hedlund was to pay [plaintiff] twice per month, once on the fifteenth of each month and once on the last day of each month.

9. At the time [plaintiff's] employment ceased, she was owed $11,152.89."

In her prayer for relief under each count, plaintiff also requested prejudgment interest at five percent per year and attorney fees and costs. Plaintiff attached a copy of her October 15, 1998, letter to the complaint. No other documents were attached as exhibits.

On November 10, 1998, defendants filed a section 2-619 motion to dismiss plaintiff's complaint, arguing that plaintiff failed to file her action within the five-year statute of limitations applicable to oral contracts. Defendants attached a copy of a complaint filed by plaintiff against them in 1995 as an exhibit to their motion. The 1995 complaint contained a single count alleging that defendants violated the Wage Payment and Collection Act (Wage Act) (820 ILCS 115/1 est seq. (West 1998)) based on the same facts as the complaint filed by plaintiff in the present case in 1998. Also attached as an exhibit to defendants' motion to dismiss was a trial court order, dated December 7, 1995, striking plaintiff's original complaint pursuant to defendants' section 2-615 motion to dismiss, and allowing plaintiff 28 days to file an amended complaint. Defendants further stated in their section 2-619 motion to dismiss that plaintiff's 1995 lawsuit was dismissed for want of prosecution after plaintiff failed to file an amended complaint or to otherwise respond to their counterclaim or discovery requests filed in that case.

In her response to defendant's motion to dismiss, plaintiff argued that because defendants were only required to pay her on the fifteenth day and the last day of every month, the fact that her employment with the corporation ended on October 18, 1993, gave defendants the right to deliver her final paycheck by October 31 and that her cause of action, therefore, accrued on November 1, 1993, when defendants failed to make the payment. Plaintiff claimed that a cause of action for breach of contract did not accrue until payment of money under the contract was due and that the filing of her complaint on October 27, 1998, therefore, fell within the applicable five-year statute of limitations.

On February 24, 1999, the trial court granted defendants' motion to dismiss, finding that plaintiff's causes of action arose on October 18, 1993. The order specifically stated:

"Plaintiff's cause of action arose and accrued on October 18, 1993 (the date of her alleged termination) and not a later date that the Defendants could have relied upon under 820 ILCS 115/5 [Wage Act], the cause of action accrues for statute of limitations purposes under 820 ILCS 115/5 and 820 ILCS 115/13 as of the date of the employee's termination, 735 ILCS 5/13-205 applies to bar these claims as they were filed more than five years after termination, therefore, Defendants' joint motion to dismiss is granted with prejudice."

On March 26, 1999, plaintiff filed a motion to reconsider the trial court's February 24, 1999, order. Plaintiff argued that she had specifically pled that the terms of her contract required that she wait until October 31, 1994, for payment from defendants. In a footnote in her motion to reconsider, plaintiff stated:

"In the event that this motion is unsuccessful, Kate further wishes to clarify for the record that her claim for damages * * * is not alleging that she worked from October 16, 1994 [sic] to October 18, 1994 [sic], to be entitled to that sum of money. Rather, the terms of her employment contract specified that Kate would not be paid commissions until Hedlund Corporation received payments from the customers to whom Kate sold, and then, only in the next pay period after the pay period in which Hedlund received payment. Specifically, if Kate made a sale on October 1, 1994, and the payment was received by Hedlund on October 16, 1994, the next pay period would have been November 1, 1994. Kate's commission would then come due on November 15, 1994."

The trial court denied plaintiff's motion for reconsideration, and this appeal followed.

Following the filing of this appeal, defendants filed a motion to strike plaintiff's appellate brief based on their argument that it failed to comply with Supreme Court Rule 341. 177 Ill.2d R. 341. Defendants contend that plaintiff included in her brief "certain allegations, and corresponding arguments, which are wholly unsupported by the [r]ecord." The "unsupported allegations" in plaintiff's brief which defendants complain of include: (1) plaintiff's compensation from Hedlund Corporation consisted entirely of commissions and bonuses and not wages; (2) Hedlund Corporation paid her commissions in arrears so that they were "due in the next pay period immediately following the pay period in which Hedlund Corporation received payments from its clients"; and (3) Hedlund Corporation had not received certain payments from its clients by October 27, 1993. Defendants request that we strike plaintiff's appellate brief or, in the alternative, strike those portions of the brief not supported by the record. We took this motion with plaintiff's appeal.

When considering a motion to dismiss pursuant to section 2-619 of the Code, we accept all well-pleaded facts and reasonable inferences therefrom as true for the purpose of the motion. Barber-Colman Co. v. A & K Midwest Insulation Co., 236 Ill.App.3d 1065, 1073, 177 Ill.Dec. 841, 603 N.E.2d 1215 (1992). A party cannot assert on appeal matters that were not raised in the trial court. Ragan v. Columbia Mutual Insurance Co., 183 Ill.2d 342, 355, 233 Ill.Dec. 643, 701 N.E.2d 493 (1998). Supreme Court Rule 341(e) states:

"Appellant's Brief. The appellant's brief shall contain the following parts in the order named:

* * *

(6) Statement of Facts, which contain the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment and with appropriate reference to the pages of the record on appeal[.]" 177 Ill.2d R. 341(e)(6).

We first address defendants' contention that plaintiff has failed to provide any support for her assertion that she received only commissions as her payment from Hedlund Corporation. Paragraph "7" of plaintiff's complaint states that "[plaintiff's] contract with Hedlund Corporation provided, among other things, that her wages would include a commission * * * of all placement fees paid by companies[.]" (Emphasis added.) Additionally, paragraph "15" of plaintiff's complaint states that "[plaintiff] made a written demand upon Hedlund Corporation for payment of her wages." (Emphasis added.) The record does not contain any further description or explanation of the compensation earned by plaintiff from Hedlund Corporation. Based on the facts pled in the complaint, which we accept as true for purposes of defendants' motion to dismiss, and the record, we agree with defendants that the record does not support an assertion that plaintiff received only commissions as her compensation from Hedlund Corporation, and we, therefore, strike and do not consider any assertions in plaintiff's appellate brief inconsistent with our finding.

With respect to defendants' next contention that plaintiff has failed to support her assertion that Hedlund Corporation paid her commissions in "arrears," we also find from our review...