Pokora v. Warehouse Direct, Inc., No. 2-00-0458

• Decision Date: 07 June 2001
• Docket Number: No. 2-00-1129., No. 2-00-0458
• Parties: Mark POKORA, Plaintiff-Appellee and Cross-Appellant, v. WAREHOUSE DIRECT, INC., Defendant-Appellant and Cross-Appellee.
• Court: United States Appellate Court of Illinois

751 N.E.2d 1204

322 Ill. App.3d 870

256 Ill.Dec. 367

Mark POKORA, Plaintiff-Appellee and Cross-Appellant, v. WAREHOUSE DIRECT, INC., Defendant-Appellant and Cross-Appellee.

Nos. 2-00-0458, 2-00-1129.

Appellate Court of Illinois, Second District.

June 7, 2001.

Brian A. Bosch, Scott A. Weintstein, Garfield & Merel, Ltd., Chicago, for Warehouse Direct, Inc. in No. 2-00-0458.

James G. Sotos, Kimberly D. Fahrbach, Hervas, Sotos, Condon & Bersani, P.C., Itasca, for Mark Pokora in No. 2-00-0458.

Brian A. Bosch, Garfield & Merel, Ltd., Chicago, for Warehouse Direct, Inc. in No. 2-00-1129.

James G. Sotos, Hervas, Sotos, Condon & Bersani, P.C., Itasca, for Mark Pokora in No. 2-00-1129.

Justice GROMETER delivered the opinion of the court:

Plaintiff, Mark Pokora, filed a complaint in the circuit court of Du Page County against defendant, Warehouse Direct, Inc. (Warehouse Direct or defendant), alleging, inter alia, breach of an employment contract and promissory estoppel. The trial court granted summary judgment in plaintiff's favor on the aforementioned counts and awarded plaintiff $31,577 in damages. The trial court also granted plaintiff's motion for sanctions against defendant and denied defendant's motion for sanctions against plaintiff. On appeal, defendant contends (1) the trial court erred in granting summary judgment in plaintiff's favor; (2) the trial court erred in finding that plaintiff mitigated his damages; (3) the trial court erred in denying its request for sanctions; and (4) the trial court erred in granting plaintiff's motion for sanctions. In addition, plaintiff has filed a cross-appeal in which he contends that the trial court erred in failing to award damages beyond the date of trial. For the reasons that follow, we affirm the judgment of the circuit court.

I. BACKGROUND

Warehouse Direct is in the office-supply business. In September 1997, plaintiff began working for Office Depot, one of Warehouse Direct's competitors. In May 1998, a manufacturer in the office-supply business invited its customers to attend a Chicago Cubs baseball game. Plaintiff, who was still employed by Office Depot, attended the event. Also present was John Moyer, Warehouse Direct's president. After the game, Moyer and plaintiff discussed the benefits of working for Warehouse Direct. Moyer told plaintiff that Warehouse Direct offers a higher rate of commission and better customer service than Office Depot. Approximately two weeks later, Moyer and plaintiff met for lunch. At that meeting, plaintiff told Moyer that he sells about $40,000 worth of merchandise each month at Office Depot.

On May 29, 1998, Moyer sent plaintiff a letter offering him a sales position with Warehouse Direct. The letter offered plaintiff a commission of 26.5% of the gross margin on all sales. In addition, the letter stated:

"TO PROVIDE INCENTIVE FOR YOU TO JOIN U.S. AND TIME FOR YOU TO BUILD YOUR SALES, WAREHOUSE DIRECT WILL PAY YOU COMMISSION + WITH A GUARANTEE AS FOLLOWS:

COMMISSION + $2000/MONTH FOR FIRST 15 MONTHS

THEN COMMISSION + $1900/ MONTH FOR 1 MONTH,

THEN COMMISSION + $1800/ MONTH FOR 1 MONTH,

`+' PAY DECLINES BY $100/ MONTH TO 0,

AND WAREHOUSE DIRECT WILL GUARANTEE MINIMUM PAY OF $5,000/MO YOUR FIRST YEAR."

After receiving the letter, plaintiff spoke to Moyer about extending the guaranteed minimum pay of $5,000 a month from 12 months to 18 months. Plaintiff also asked Moyer if Warehouse Direct would reimburse him for $1,500 in business expenses and pay for the installation of a business telephone line in his home. On June 4, 1998, Moyer sent plaintiff a letter "clarifying] and superced[ing his] previous letter of May 29, 1998." The June 4, 1998, letter extended the guaranteed minimum pay of $5,000 to 18 months. In addition, Warehouse Direct agreed to plaintiff's other expense requests.

Upon receiving the June 4, 1998, letter, plaintiff communicated with Moyer again. Plaintiff told Moyer that he would start working for Warehouse Direct immediately if (1) the guaranteed minimum salary of $5,000 a month was increased to $5,500 a month and (2) the term was extended from 18 months to 24 months. As a result of this conversation, Moyer signed and delivered to plaintiff a third letter on June 8, 1998. Moyer's June 8, 1998, letter stated that it "clarifies and supercedes [his] previous letters of May 29, 1998 and June 4, 1998." The letter, which incorporated the changes requested by plaintiff, read in pertinent part:

"WAREHOUSE DIRECT COMMISSION IS 26.5% OF GROSS MARGIN ON ALL ORDERS. TO PROVIDE INCENTIVE FOR YOU TO JOIN U.S. AND TIME FOR YOU TO BUILD YOUR SALES, WAREHOUSE DIRECT WILL PAY YOU COMMISSION + WITH A GUARANTEE AS FOLLOWS:

COMMISSION + $2000/MONTH FOR FIRST 15 MONTHS

THEN COMMISSION + $1900/MONTH FOR 1 MONTH,

THEN COMMISSION + $1800/MONTH FOR 1 MONTH, `+' PAY DECLINES BY $100/MONTH TO 0,

AND WAREHOUSE DIRECT WILL GUARANTEE MINIMUM PAY OF $5,500/MO YOUR FIRST TWO YEARS."

Plaintiff began working for Warehouse Direct on June 23, 1998.

Unsatisfied with plaintiff's sales figures, Moyer spoke to him in August 1998. Plaintiff ensured Moyer that his sales volume would improve. In September, Moyer met with plaintiff to discuss his sales performance. That same month, Warehouse Direct decreased plaintiff's monthly salary to $5,000. In a letter dated September 28, 1998, plaintiff expressed his concern regarding the reduction of his monthly pay and asked Warehouse Direct to reinstate his original salary.

On October 1, 1998, Moyer responded to plaintiff's September 28, 1998, letter. Moyer explained that Warehouse Direct would have to terminate its relationship with plaintiff if plaintiff could not "produce a sales volume reasonable to [his] minimum and as represented in a reasonable period of time." In a letter dated October 7, 1998, plaintiff responded that he would "continue to do [his] best to develop sales volume for Warehouse Direct." On October 12, 1998, Moyer sent plaintiff a letter terminating his employment with Warehouse Direct.

On November 5, 1998, plaintiff instituted the instant action in the circuit court of Du Page County. Plaintiff's amended complaint, filed on January 14, 1999, contained three counts. Count I alleged that the June 8, 1998, letter between plaintiff and defendant constituted a contract guaranteeing a minimum salary of $5,500 a month for a period of two years. Plaintiff alleged that defendant breached the contract by first reducing his monthly pay and then by terminating his employment. Count II stated a claim for promissory estoppel in which plaintiff alleged that he resigned from his position at Office Depot in reliance on defendant's promise to pay him a guaranteed minimum monthly salary of $5,500 for two years. Count III of the complaint stated a claim for defamation per se. Plaintiff alleged that Moyer falsely told a Warehouse Direct employee that plaintiff misrepresented the amount of business he could bring to the company. Plaintiff later agreed to dismiss count III of his complaint, and the trial court entered an order dismissing count III with prejudice.

On July 12, 1999, defendant filed an answer and a counterclaim. Defendant's counterclaim alleged that plaintiff owed defendant more than $17,000 in overpaid wages. In response, plaintiff filed a motion to dismiss the counterclaim as frivolous and a motion for sanctions. At a hearing in August 1999, defendant requested and was granted until September 15, 1999, to respond to plaintiff's motion to dismiss. Defendant never responded to the motion to dismiss and, on October 6, 1999, defendant withdrew the counterclaim. The court granted defendant 28 days to file an amended counterclaim. The court denied plaintiff's motion for sanctions. Defendant did not file an amended counterclaim within the time specified by the trial court.

Early in November 1999, the parties filed cross-motions for summary judgment. On November 23, 1999, the trial court granted defendant's motion for leave to file instanter its amended counterclaim. The gist of defendant's amended counterclaim was that plaintiff misrepresented his monthly sales volume while employed at Office Depot and that defendant relied on plaintiff's representation in hiring him and paying him $5,500 per month.

On December 15, 1999, the trial court granted summary judgment in plaintiff's favor with respect to liability on counts I and II of his amended complaint. On March 23, 2000, the trial court held a hearing on damages. In its ruling, the court noted that plaintiff's employment contract did not expire until June 2000. However, the court held that Illinois law limits damages in wrongful-discharge cases to those damages occurring up to the date of trial. The court also determined that plaintiff mitigated his damages. Accordingly, the court entered judgment in favor of plaintiff in the amount of $31,577 plus the costs of the suit. The court's order contained language that it was final and appealable.

On April 18, 2000, plaintiff filed a bill of costs and a motion for sanctions against defendant pursuant to Supreme Court Rule 137 (155 Ill.2d R. 137). On April 24, 2000, defendant filed a notice of appeal from the trial court's December 15, 1999, and March 24, 2000, orders (No. 2-00-0458). On May 1, 2000, plaintiff filed a notice of cross-appeal, requesting a modification of damages owed to plaintiff to include interest and future damages. On May 25, 2000, defendant filed a motion for sanctions pursuant to Rule 137.

On June 21, 2000, the trial court granted plaintiff's bill of costs in the amount of $241, granted plaintiff's motion for sanctions in the amount of $1,625, and denied defendant's motion for sanctions. On July 24, 2000, defendant filed a motion to reconsider its request for sanctions and a notice of appeal from the December 15, 1999, March 24, 2000, and June 21, 2000, trial court orders (No. 2-00-0860). On our own motion, we dismissed appeal No. 2-00-0860. On August 17, 2000, defendant moved to...