Zabinsky v. Gelber Group, Inc.

• Decision Date: 19 March 2004
• Docket Number: No. 1-02-2317.,1-02-2317.
• Citation: 283 Ill.Dec. 61,807 N.E.2d 666,347 Ill. App.3d 243
• Parties: Harvey ZABINSKY, Plaintiff-Appellee, v. GELBER GROUP, INC., Gelber Management, Inc., Brian Gelber, d/b/a The Gelber Group, and Franklin Gelber, d/b/a The Gelber Group, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

807 N.E.2d 666

347 Ill. App.3d 243

283 Ill.Dec. 61

Harvey ZABINSKY, Plaintiff-Appellee, v. GELBER GROUP, INC., Gelber Management, Inc., Brian Gelber, d/b/a The Gelber Group, and Franklin Gelber, d/b/a The Gelber Group, Defendants-Appellants.

No. 1-02-2317.

Appellate Court of Illinois, First District, Fifth Division.

March 19, 2004.

Winston & Strawn, Chicago (Susan M. Benton-Powers, Reid R. Broda, of counsel), for Appellant.

Ashman & Stein, Chicago (Gary D. Ashman, of counsel), for Appellee.

Justice O'BRIEN delivered the opinion of the court:

Defendants, Gelber, Group Inc. (GGI), Gelber Management, Inc. (GMI), Brian Gelber, and Franklin Gelber, appeal the jury verdict in favor of plaintiff, Harvey Zabinsky, on his Claim under the Illinois Wage Payment and Collection Act (820 ILCS 115/1 et seq (West 1994)). Plaintiff cross-appeals the denial of his petition for attorney fees. We affirm the verdict in favor of plaintiff; we reverse and remand on the cross-appeal from the denial of the attorney-fee petition.

This case is before us for the second time. On October 20, 1997, we affirmed in part and reversed in part the dismissal of plaintiffs fifth amended complaint. See Zabinsky v. Gelber Group, Inc., No. 1-96-4209, 292 Ill.App.3d 1121, 240 Ill.Dec. 511, 717 N.E.2d 860 (October 20, 1997) (unpublished order under Supreme Court Rule 23). We recite a portion of our October 20, 1997, order, verbatim, because it is relevant to the issues on this appeal:

"In his fifth amended complaint, plaintiff alleged that Brian and Franklin Gelber conducted a group of related businesses under the trade name `The Gelber Group.' Those businesses included a futures commission merchant business, a futures and options business, a commodity pool operation and commodity trading advisor business and a broker dealer business.

Plaintiff pleaded that Brian and Franklin Gelber also owned controlling interests in Gelber Group, Inc. (GGI) and Gelber Management, Inc. (GMI), a wholly owned subsidiary of GGI. Brian was president of GGI and GMI, while Franklin was treasurer/secretary of GGI and GMI. At all relevant times, Brian and Franklin caused GGI to pay the salaries, medical insurance premiums and pension plan expenses of their employees, regardless of whether the employees were designated as Brian and Franklin's employees, GGI's employees, or GMI's employees.

Plaintiff pleaded that in December 1987, he met with Brian and Franklin Gelber at their office in Chicago. Brian, on his own behalf and on the behalf of Franklin, GGI and GMI, offered plaintiff the job of managing the Gelber Arbitrage Fund. Brian told plaintiff that if he accepted the job, plaintiff would receive an annual salary of $96,000, a quarterly bonus, retirement benefits under a pension plan, and medical benefits. Brian also informed plaintiff that `said salary, bonus and benefits would be paid and provided to Plaintiff for so long as the Fund was managed by himself, Franklin Gelber or one or more of the enterprises owned or controlled by himself and Franklin Gelber.' On or about January 1, 1988, plaintiff accepted the offer and began managing the Fund. Plaintiff managed the Fund until March 26, 1990, when Brian Gelber fired him. Brian Gelber, Franklin Gelber, or GMI or GGI continued to manage the fund until December 31,1990.

In Counts I, II, III, and IV, plaintiff pleaded, respectively, that Brian Gelber, Franklin Gelber, GGI, and GMI, breached the oral contract by failing to pay plaintiff his bonus for the first quarter of 1990 and his salary, quarterly bonuses and benefits for any period thereafter through December 31, 1990. Counts VII and VIII, labeled `Assumption of Obligations of Brian Gelber by GGI/ Third Party Beneficiary' and `Assumption of Obligations of Franklin Gelber by GGI/Third Party Beneficiary', basically repeat the allegations of count III that GGI breached the oral contract with plaintiff.

Counts VI, IX, X, XI, [XII], XIII, XIV [and XV and XVI] alleged * * * that Franklin Gelber, GGI, GMI, Brian Gelber, Thomas Towson (an officer of GGI), and Chris Stewart (an officer of GGI) violated the Illinois Wage Payment and Collection Act (the Act) by failing to pay plaintiff his first quarter 1990 bonus, as well as his second, third, and fourth quarter 1990 salary and bonus amounts." Zabinsky, slip op. at X-XX-XXXX.

Defendants filed a combined motion to dismiss, which the trial court granted. Upon appeal, this court: (1) affirmed the dismissal of the breach of contract counts because the oral contract, upon which plaintiff relied, violated the statute of frauds; (2) affirmed the dismissal of plaintiff's claims under the Act for his second, third, and fourth quarter salary and bonus because plaintiff was fired during the first quarter of 1990 and therefore never earned his second, third, and fourth quarter salary and bonus; and (3) reversed and remanded the dismissal of plaintiffs claim for an earned first quarter 1990 bonus under the Act because plaintiff had adequately pleaded that he had provided labor, service, or performance for the bonus pursuant to an agreement with the defendants. See Zabinsky, slip op. at X-XX-XXXX. Upon remand, a jury trial was held on plaintiff's claim under the Act for an earned first quarter 1990 bonus. The jury found in favor of plaintiff for $200,297.50. The trial court denied defendants' motion for judgment notwithstanding the verdict. Plaintiff presented his petition for attorney fees, which the trial court denied. Defendants appeal the jury verdict in favor of plaintiff. Plaintiff cross-appeals the denial of his petition for attorney fees.

I. DEFENDANTS'APPEAL

First, defendants argue that the plaintiff has failed to state a cause of action under the Act for recovery of his first quarter 1990 bonus and, thus, that the trial court erred by permitting this matter to proceed to trial.

In our October 20, 1997, order we held that plaintiff stated a cause of action under the Act for an earned first quarter 1990 bonus. See Zabinsky, slip op. at X-XX-XXXX. Our October 20, 1997, order is the law of the case on this issue. Under the law of the case doctrine, issues presented and disposed of in a prior appeal are binding and will control in the circuit court upon remand as well as in the appellate court in a subsequent appeal. Reich v. Gendreau, 308 Ill.App.3d 825, 829, 242 Ill.Dec. 355, 721 N.E.2d 634 (1999). Accordingly, the trial court did not err by permitting this, matter to proceed to trial. Next, defendants argue that the trial court erred by denying their motions for directed verdict and, later, judgment notwithstanding the verdict based upon plaintiff's failure to prove his case at trial. Our supreme court has held that "verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504 (1967).

The Act states that "[e]very employer shall pay the final compensation of separated employees in full, at the time of separation, if possible, but in no case later than the next regularly scheduled payday for such employee," 820 ILCS 115/5 (West 1994). The Act defines "final compensation" as "wages, salaries, earned commissions, earned bonuses, and the monetary equivalent of earned vacation and earned holidays, and any other compensation owed the employee by the employer pursuant to an employment contract or agreement between the 2 parties." (Emphasis added.) 820 ILCS 115/2 (West 1994).

Plaintiff testified at trial that he worked the first quarter of 1990 pursuant to an agreement that defendants would pay him a bonus based upon a mutually agreedupon formula. Plaintiff testified that according to the formula, defendants owed him a bonus of $200,297.70 for his work during the first quarter of 1990. Plaintiffs trial testimony was sufficient to establish his right to the bonus under the Act, as well as to the amount of the bonus, and defendants' liability therefor. Although there was some contrary testimony as to whether the agreement existed or whether plaintiff complied with the terms of the agreement, it was for the trier of fact to evaluate the credibility of the witnesses and weigh the evidence. Maple v. Gustafson, 151 Ill.2d 445, 452, 177 Ill.Dec. 438, 603 N.E.2d 508 (1992). Viewed in the light most favorable to the plaintiff, the evidence does not so overwhelmingly favor the defendants that no contrary verdict based upon that evidence could ever stand. Accordingly, the trial court did not err by denying defendants' motions for directed verdict and judgment notwithstanding the verdict.

Defendants argue, though, that the court should have granted a directed verdict or judgment notwithstanding the verdict because plaintiff failed to prove the existence of an enforceable contract for a bonus as required under the Act. Specifically, defendants contend that plaintiff failed to sufficiently identify the parties or terms of the contract, and failed to show that the contract complied with the statute of frauds.

Resolution of this issue requires us to construe the Act. Because the construction of a statute is a question of law, our review is de novo. O'Loughlin v. Village of River Forest, 338 Ill.App.3d 189, 191, 272 Ill.Dec. 853, 788 N.E.2d 157 (2003).

The primary rule of statutory construction is to ascertain and give effect to the true intent of the legislature. Augustus v. Estate of Somers, 278 Ill.App.3d 90, 97, 214 Ill.Dec. 784, 662 N.E.2d 138 (1996). In determining legislative intent, a court should consider the statutory language first, giving the terms of the statute their ordinary meaning. MQ Construction Co. v. Intercargo Insurance Co., 318 Ill. App.3d 673, 681, 252 Ill.Dec. 282, 742 N.E.2d 820 (2000). A dictionary may be used as a resource to determine the...