T.E.C. & Assoc., Inc. v. Alberto-Culver Co.

• Decision Date: 19 March 1985
• Docket Number: No. 84-1566,ALBERTO-CULVER,84-1566
• Citation: 131 Ill.App.3d 1085,87 Ill.Dec. 220,476 N.E.2d 1212
• Parties: , 87 Ill.Dec. 220 T.E.C. & ASSOC., INC., an Illinois corporation, Plaintiff-Appellant, v.COMPANY, a foreign corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1212

476 N.E.2d 1212

131 Ill.App.3d 1085, 87 Ill.Dec. 220

T.E.C. & ASSOC., INC., an Illinois corporation, Plaintiff-Appellant, v. ALBERTO-CULVER COMPANY, a foreign corporation, Defendant-Appellee.

No. 84-1566.

Appellate Court of Illinois First District, Second Division.

March 19, 1985.

Marvin A. Miller & Assoc., Ltd., Chicago, for plaintiff-appellant; Marvin A. Miller and Vincent L. Ditommaso, Chicago, of counsel.

Fox & Grove, Chtd., Chicago, for defendant-appellee; Russell M. Kofoed and Jody M. Pucel, Chicago, of counsel.

STAMOS, Presiding Justice:

Plaintiff T.E.C. & Assoc., Inc., (TEC) is an Illinois corporation engaged in the business of recruiting individuals for employment vacancies in various business concerns. Alberto-Culver Company, (Alberto) is a foreign corporation licensed to do business in Illinois with an office in Melrose Park. In January of 1982, Alberto had an opening in its data processing department for a senior programmer. An applicant named Mark West had an interview with Alberto on January 28, 1982, for the senior programmer position, and was subsequently hired by Alberto in February of 1982 at a salary of approximately $19,000 per year.

At the time TEC first solicited Alberto to employ West, TEC was not licensed as an employment agency by the Illinois Department of Labor pursuant to the Private Employment Agencies Act (PEAA). Alberto admits it received TEC's invoice containing TEC's fee arrangement and fee schedule relative to Mark West but refused to pay TEC because of TEC's failure to obtain its employment agency license pursuant to the PEAA. Ill.Rev.Stat. 1981, ch. 111, par. 901.

On April 30, 1982, TEC sued Alberto for breach of contract, seeking damages, prejudgment interest, and attorney fees. On June 8, 1982, Alberto filed its answer and two affirmative defenses. Alberto's first affirmative defense was based on TEC's failure to have a license. Its second defense was based upon TEC's alleged wrongful solicitation of one of Alberto's programmers to leave the employ of Alberto at the same time TEC was attempting to place Mark West in the senior programmer position at Alberto.

A criminal action had been filed against Mark Leon d/b/a TEC because of the alleged violation of the PEAA. TEC's motion to dismiss that action, which contained an affidavit of Mark Leon, was granted on March 14, 1982.

On March 15, 1982, Alberto filed a motion for summary judgment which contained an affidavit of the vice president of Alberto in its Management Information Services section, and various other exhibits. In its motion, Alberto maintained that the failure of TEC to obtain the employment agency license precluded it from recovering any sums. Alberto further maintained that TEC did not fall within the exception to the licensing requirement because the senior programmer position was not an executive or professional position as used in the PEAA. The PEAA exempts from the licensing requirement those persons involved in management consulting who place individuals in executive or professional positions. Alberto relied on the definition of executive and professional contained in the Fair Labor Standards Act (29 C.F.R. part 541) which is used in Illinois to define those terms in its own minimum wage law. (Ill.Rev.Stat.1981, ch. 48, par. 1004a(2)(E).) TEC filed its response to Alberto's motion, which included an affidavit of Marc Leon, the president of TEC, as exhibit A, a group exhibit B containing TEC's motion to dismiss and amended motion to dismiss the criminal action previously brought against Leon, and Leon's affidavit attached in that proceeding, exhibit C, which was the order dismissing the criminal action, and exhibit D, which was the U.S. Department of Labor regulations for the Fair Labor Standards Act defining the term professional. (29 C.F.R. section 541.301 et seq. ) Alberto filed its reply to TEC's response moving to strike Alberto filed its reply to TEC's response moving to strike TEC's affidavits as insufficient under Supreme Court Rule 191, and to strike TEC's exhibit C.

After hearing arguments on the motion, the trial court struck the two affidavits of Marc Leon as well as exhibit C. The court also found that the senior programmer position at Alberto was not an executive or professional position under the PEAA and granted summary judgment in favor of Alberto. The counter-claim against TEC was ordered to remain pending and the court found no just reason to delay enforcement or appeal of the judgment.

TEC appealed, claiming that the trial court erred in striking its exhibits A, B, and C attached to its response, that there exists a genuine issue of material fact as to whether the senior programmer position at Alberto is an executive or professional position, that the programmer position is both an executive and a professional position, and that TEC is not barred from recovering on its contract with Alberto.

The first issue to be addressed by this court is whether the trial court erred when it struck the three exhibits filed by TEC in its response to Alberto's motion for summary judgment. The first two exhibits were affidavits filed by TEC's president, Marc Leon. Supreme Court Rule 191 (87 Ill.2d R. 191) requires that affidavits relied upon must consist of facts admissible in evidence to which the affiant could testify, not mere conclusions or other inadmissible matter. (Fooden v. Board of Governors (1971), 48 Ill.2d 580, 587, 272 N.E.2d 497.) Affidavits filed in opposition to a motion for summary judgment, like TEC's, will be liberally construed in favor of the non-movant. Hendricks v. Deterts (1973), 13 Ill.App.3d 976, 978, 301 N.E.2d 625.

Even under a liberal construction of the first affidavit, exhibit A, we find that it is insufficient under rule 191. The two key paragraphs are bald assertions by Mr. Leon representing his conclusion on one of the ultimate issues of the case, namely, the title to be afforded to those in the field of computer programming. These averments are not evidentiary facts. Also, it cannot be gleaned from the affidavit as a whole that Mr. Leon would be able to testify to these matters. The trial court was therefore correct in striking exhibit A because it contains mere conclusions of Mr. Leon. In addition, remaining portions of the affidavit are insufficient to rebut any of the material allegations of Alberto's motion and attached affidavit. An examination of the second affidavit, which formed a part of group exhibit B results in the same conclusion. This affidavit, like exhibit A, contains many conclusory statements that do not reasonably appear to be within the affiant's personal knowledge. The trial court was therefore correct in striking this affidavit as well.

Exhibit C is a copy of the order dismissing the criminal action that had been brought against Marc Leon. That order, however, does not contain any reason for the dismissal and merely recites the fact of dismissal. Assuming the order would be admissible in this case, it would be admissible only to show that the criminal action had been dismissed. It does not show, as TEC suggests, that TEC falls within the exception to the licensing requirement. Although Marc Leon d/b/a TEC was dismissed from the criminal action, that dismissal would not preclude a civil proceeding based on the same charge, assuming such a proceeding existed, because of the differing standards of proof involved in the two actions. (See Shallow v. Police Board of the City of Chicago (1981), 95 Ill.App.3d 901, 908, 51 Ill.Dec. 204, 420 N.E.2d 618.) A fortiori, the criminal dismissal does not suggest that TEC is exempt from the licensing requirement or that Alberto is precluded from raising the fact of non-licensure as a defense to TEC's contract action. Consequently, the relevancy of the order of dismissal is so tenuous that the trial court did not err in ordering it stricken.

The next question to be resolved is whether, after striking TEC's exhibits, entry of summary judgment for defendant was proper. Summary judgment will only be granted if the pleadings, affidavits and depositions on file disclose no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (Kroll v. Sugar Supply Corp. (1983), 116 Ill.App.3d 969, 975, 72 Ill.Dec. 396, 452 N.E.2d 649.) Upon review of the trial court's entry of summary judgment, the appellate court must determine whether the trial court was correct in ruling that no genuine issue of material fact was raised and whether entry of the judgment was correct as a matter of law. (Fuller v. Justice (1983), 117 Ill.App.3d 933, 938, 73 Ill.Dec. 144, 453 N.E.2d 1133.) Summary judgment "is to be granted only where the evidence, when construed most strongly against the moving party, establishes clearly and without a doubt his right thereto." (Motz v. Central National Bank (1983), 119 Ill.App.3d 601, 605, 75 Ill.Dec. 137, 456 N.E.2d 958.) Also, where well-alleged facts in the movant's affidavit are not contradicted by a counteraffidavit, they must be accepted as true "notwithstanding the existence of contrary averments in the adverse party's pleadings which merely purport to establish bona fide issues of fact." (Fooden v. Board of Governors (1971), 48 Ill.2d 580, 587, 272 N.E.2d 497.) In the present case, the trial court's striking of TEC's affidavits has effectively left the well pleaded facts in Alberto's supporting affidavit uncontroverted and hence admitted. However, even where counter-affidavits have not been filed, or where they have been stricken, the moving party should not be awarded summary judgment unless the affidavit in support of the motion establishes the judgment as a matter of law. (Motz, 119 Ill.App.3d at 605, 75 Ill.Dec. 137, 456 N.E.2d 958.) Consequently, in situations where summary judgment was granted on an uncontroverted affidavit, the order will be reversed if it is apparent that the moving party's affidavit does not support the...