{ "id": 5479315, "name": "JEROME HARRIS, Plaintiff-Appellee, v. FAULTFINDERS, INC., Defendant-Appellant", "name_abbreviation": "Harris v. Faultfinders, Inc.", "decision_date": "1981-12-30", "docket_number": "No. 79-2113", "first_page": "785", "last_page": "792", "citations": [ { "type": "official", "cite": "103 Ill. App. 3d 785" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "413 N.E.2d 480", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "485" }, { "page": "486" } ], "opinion_index": 0 }, { "cite": "90 Ill. App. 3d 537", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3160487 ], "weight": 2, "pin_cites": [ { "page": "543" }, { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/90/0537-01" ] }, { "cite": "281 N.E.2d 323", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "326" }, { "page": "326" } ], "opinion_index": 0 }, { "cite": "51 Ill. 2d 143", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5390255 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "149" }, { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0143-01" ] }, { "cite": "339 N.E.2d 529", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "533" } ], "opinion_index": 0 }, { "cite": "33 Ill. App. 3d 1015", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2872291 ], "pin_cites": [ { "page": "1020" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/33/1015-01" ] }, { "cite": "372 N.E.2d 829", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "pin_cites": [ { "page": "831" } ], "opinion_index": 0 }, { "cite": "56 Ill. App. 3d 960", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3417098 ], "year": 1975, "pin_cites": [ { "page": "962" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/56/0960-01" ] }, { "cite": "606 F.2d 208", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1436428 ], "year": 1978, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/f2d/606/0208-01" ] }, { "cite": "64 N.E. 332", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "197 Ill. 61", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 844019 ], "opinion_index": 0, "case_paths": [ "/ill/197/0061-01" ] }, { "cite": "96 Ill. App. 84", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 871225 ], "year": 1902, "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/ill-app/96/0084-01" ] }, { "cite": "418 N.E.2d 1114", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1118" } ], "opinion_index": 0 }, { "cite": "94 Ill. App. 3d 703", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3128355 ], "pin_cites": [ { "page": "707" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/0703-01" ] }, { "cite": "35 Ill. App. 283", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5008089 ], "pin_cites": [ { "page": "294" } ], "opinion_index": 0, "case_paths": [ "/ill-app/35/0283-01" ] }, { "cite": "17 Ill. 477", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2593946 ], "year": 1890, "pin_cites": [ { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/ill/17/0477-01" ] } ], "analysis": { "cardinality": 747, "char_count": 16436, "ocr_confidence": 0.841, "pagerank": { "raw": 1.240482182189802e-07, "percentile": 0.6077780982597827 }, "sha256": "1a36a51df6223b4d6d7450b8adbfba75ef7f5d93be7d209e7393d70381df9f72", "simhash": "1:097dcba416a4ad60", "word_count": 2563 }, "last_updated": "2023-07-14T15:16:39.830915+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JEROME HARRIS, Plaintiff-Appellee, v. FAULTFINDERS, INC., Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE RIZZI\ndelivered the opinion of the court:\nPlaintiff, Jerome Harris, brought this action to collect unpaid commissions allegedly owed to him by defendant, Faultfinders, Inc. Plaintiff also sought to recover money owed to him pursuant to a profit sharing plan. Defendant filed counterclaims against plaintiff in which it alleged appropriation of trade secrets and confidential information, formation of a competing organization, breach of an employment agreement and unjust enrichment. In a bench trial, the trial court entered judgment in the amount of $10,000 in favor of plaintiff on the count relating to the unpaid commissions. The court entered judgment in favor of defendant on the count relating to the profit sharing plan. Judgment was entered in favor of plaintiff on the counterclaims. We affirm.\nPlaintiff began his employment with defendant in July or August of 1971. He was hired to open a Chicago service center, and he was to test printed circuit boards and sell equipment on which the circuit boards could be tested. While employed by defendant, plaintiff signed a document entitled \u201cConfidential Information and Patent Agreement.\u201d The agreement provides that the employee is to faithfully and to the best of his ability perform such duties as the company shall direct, and the employee is to devote all of his working time to such services and duties. The agreement further states that for a period of one year after termination of his employment, the employee is not to render services, directly or indirectly, to any competitive organization.\nIn 1972, while plaintiff was at a sales meeting, an incentive plan for service center employees was introduced. The plan is based on the company\u2019s two principal sources of income, which are sales of the company\u2019s products and test service work. During a certain accounting period (six months for product sales and two months for services), the employee\u2019s performance is monitored to determine his incentive pay. Under the plan, the company establishes a bogey for each employee, which is a base after which incentive pay is earned. Plaintiff\u2019s bogey was his salary squared divided by 1000. Incentive pay related to services begins when the sales in a two-month period equal an employee\u2019s bogey divided by 12. Incentive pay related to product sales begins when the sales in a six-month period equal an employee\u2019s bogey. The company agreed to reduce an employee\u2019s bogey pertaining to product sales in proportion to the attainment of his bogey pertaining to services.\nIn October 1974, plaintiff and Fred Wright, also an employee of defendant, incorporated a business known as Jefro. Plaintiff was an officer, director and 50% shareholder in the corporation. The business had been a partnership prior to its incorporation; the partnership began in approximately June of 1974. According to plaintiff, the sole purpose of the business was to service electronic game machines. Plaintiff had a friend who needed a technician to service the machines, and Wright was to perform the services. Plaintiff testified that he never solicited business on behalf of Jefro. He never attempted to sell any of Jefro\u2019s products or services to defendant\u2019s customers. The only service plaintiff performed for Jefro was that on one occasion he took a piece of equipment to Rockford.\nEdward Vesely, a former employee of Motorola who was responsible for ordering test equipment, testified that Motorola was a customer of defendant. He first heard of Jefro in the second quarter of 1974 when Wright approached him offering his services as a programmer of defendant\u2019s equipment. Motorola purchased software equipment from Jefro in May or June of 1974, and other programs were purchased in 1974 and part of 1975. Invoices and purchase orders from Jefro to Motorola were introduced into evidence.\nVesely testified that prior to December 1974, there was no connection of plaintiff to Jefro. According to Vesely, he first talked to plaintiff regarding Jefro in the fourth quarter of 1974. Vesely, plaintiff and Wright went to lunch, and plaintiff discussed the possibility of selling Motorola a holding fixture which would adapt defendant\u2019s machine to a board being tested. Subsequently, Vesely generated a purchase requisition for a holding fixture to Jefro. Plaintiff\u2019s name was on the purchase requisition, but it was scratched off.\nAccording to Vesely, he talked to plaintiff a second time in the last quarter of 1974. During this meeting, plaintiff discussed delivering additional holding fixtures from Jefro to fit defendant\u2019s systems or machines. Vesely stated that he spoke to plaintiff a third time at Motorola in February or March of 1975. Plaintiff pointed out some of the changes that could be made by interfacing defendant\u2019s machine to the printed circuit board being tested in order to overcome some inadequacies of the fixture.\nPlaintiff testified that at the first discussion with Vesely and Wright during the last quarter of 1974, they discussed defendant\u2019s operations and the programming and fixturing of defendant\u2019s machines for Motorola. Plaintiff did not make any solicitation regarding Jefro. When Vesely indicated that he was upset that he was not getting service or receiving programs from defendant\u2019s office in New York, Wright suggested that he could write programs for Motorola on a part-time basis. According to plaintiff, during the second meeting with Wright and Vesely, Wright discussed some problems regarding the programs he was writing for Motorola. Wright did not make any request that Vesely purchase anything from Jefro. Plaintiff was representing defendant at this meeting. Plaintiff denied that he was at the third meeting at Motorola in February or March of 1975.\nPlaintiff\u2019s employment with defendant was terminated in January 1975. In July 1975, plaintiff sold all of his stock in Jefro to Wright.\nMarilyn Kunz, an accountant, testified for plaintiff. Based on her calculations, plaintiff was owed $16,224 if plaintiff\u2019s bonus is included in his salary. If the bonus is not included in the salary, plaintiff was owed $20,624. Kunz\u2019s calculations were based on plaintiff\u2019s designations of figures on defendant\u2019s accounts receivable ledgers as being either product sales or services sales. Dan Casey, manager of accounting for defendant, testified that based on his calculations, plaintiff was owed $1754 in commissions if only Illinois customers were included. If some customers outside Illinois were included, plaintiff was owed $4973. Robert Sheedy, defendant\u2019s expert witness, testified that he had audited Casey\u2019s worksheets and the figures were reasonably accurate. Sheedy\u2019s independent determination of commissions showed that plaintiff was owed $1750 if only Illinois customers were taken into account and $4000 if some out-of-State customers were taken into account.\nThe trial court found that plaintiff did not compete with defendant or make any solicitation on behalf of Jefro. The court also found that plaintiff was entitled to certain commissions, but that there were errors in all computations. A judgment for $10,000 was entered in favor of plaintiff.\nDefendant first argues that the trial court\u2019s finding that plaintiff did not compete with defendant is against the manifest weight of the evidence. Defendant contends that plaintiff breached the valid and enforceable restrictive covenant found in the \u201cConfidential Information and Patent Agreement\u201d; that plaintiff breached the common law duty of loyalty owed to defendant; and that because' of these breaches, plaintiff had no right to salary or commissions during this period of competition.\nPlaintiff testified that he never solicited any business on behalf of Jefro and never attempted to sell any of Jefro\u2019s products to defendant\u2019s customers. According to plaintiff, the only service he performed for Jefro was that he took a piece of equipment to Rockford. There was no connection between this incidental trip and any of defendant\u2019s customers. Although Vesely testified that plaintiff had discussed the sale of Jefro\u2019s products to Motorola, this testimony was directly contradicted by plaintiff. Plaintiff acknowledged two meetings with Vesely but stated that he was representing defendant at these meetings. Plaintiff denied that he attended the third meeting mentioned by Vesely.\nDefendant argues that Wright\u2019s knowledge that Jefro was soliciting and performing services for defendant\u2019s customers must be imputed to plaintiff since the knowledge of one partner is imputed to all partners (see Haywood v. Harmon (1856), 17 Ill. 477, 479; McDonald v. Western Refrigerating Co. (1890), 35 Ill. App. 283, 294). However, we do not believe that principle is controlling here where the action is between plaintiff, as employee, and defendant, as his employer. The suit is not brought by or directed against the partnership or the partners as members of the partnership. It does not relate to partnership business but, rather, involves the actions of plaintiff as an employee and whether those actions constitute improper competition with his employer.\nUnder all the circumstances, we conclude that the trial court\u2019s finding that plaintiff did not compete with defendant, either during or after his employment, is not against the manifest weight of the evidence. Consequently, the finding of the trial court should not be disturbed. (National Acceptance Co. of America v. Pintura Corp. (1981), 94 Ill. App. 3d 703, 707, 418 N.E.2d 1114, 1118.) Defendant\u2019s arguments are therefore unavailing,\nDefendant next argues that the trial court\u2019s exclusion of some of its exhibits was error. Defendant\u2019s exhibit No. 1 consisted of plaintiff\u2019s mileage and expense reports. The trial court refused to admit the exhibit since it had not been produced pursuant to a request to produce filed by plaintiff. Plaintiff\u2019s request asked for documents relating to the calculation and payment of incentive pay, and it specifically defined \u201cdocuments\u201d as including expense reports. We conclude that the trial court did not abuse its discretion in determining that the mileage and expense reports should have been produced and in ruling that those reports should be excluded because of defendant\u2019s failure to produce them.\nOther exhibits were also excluded because of defendant\u2019s failure to produce them pursuant to plaintiff\u2019s request to produce. The request asked for \u201call documents relating to the calculation and payment of the \u2018Incentive Pay\u2019 of plaintiff * * 0 for the period from November 1, 1972, through and including April 30, 1975, including without limitation, purchase orders and invoices relating to \" * # all other sales and service work performed by plaintiff.\u201d Defendant maintains that the documents in question relate to sales outside plaintiff\u2019s assigned service area. However, plaintiff\u2019s service area was not specifically designated and was a matter for the trial court to determine. Also, the request plainly asked foV purchase orders and invoices relating to all sales and service work performed by plaintiff. Therefore, the trial court did not err in refusing to allow defendant to introduce these exhibits.\nDefendant next contends that the trial court erroneously allowed plaintiff to amend his bill of particulars after trial to include additional commissions. In his bill of particulars, plaintiff set forth the sales for which he was entitled to commissions and the amount of the commissions. The documents which apparently formed the basis of plaintiff\u2019s claims for additional commissions were produced subsequent to the filing of the bill of particulars and after plaintiff filed a motion for sanctions against defendant.\nA decision to allow the amendment of a bill of particulars lies within the sound discretion of the trial court. (Brownell Improvement Co. v. Critchfield (1901), 96 Ill. App. 84, 90, aff'd (1902), 197 Ill. 61, 64 N.E. 332.) Here, we cannot say that the trial court abused its discretion, especially since the documents which were the basis of the amendment were in defendant\u2019s possession, and therefore, defendant was not surprised.\nDefendant also contends that plaintiff waived any right to commissions. Defendant bases this contention on the fact that plaintiff did not include commissions in a letter in which he set forth his financial claims against defendant. By letter, defendant had requested that plaintiff submit all of his claims against the company by February 7,1975. Plaintiff responded, stating that the only claims he had were two weeks\u2019 severance pay, two weeks\u2019 vacation pay and his share of the profit-sharing plan. Plaintiff testified that when he wrote this letter, he did not think of commissions as money owed immediately. He also testified that he had continually made oral requests for commissions prior to his termination. Plaintiff also explained that he only had about seven days to answer defendant\u2019s letter, and he did not know the exact amount of commissions due. Approximately four months after sending this letter, plaintiff filed the instant suit.\nWaiver occurs when a party intentionally relinquishes a known right, either expressly or by conduct inconsistent with an intent to enforce that right. (Saverslak v. Davis-Cleaver Produce Co. (7th Cir. 1979), 606 F.2d 208, 213; see Hartford Accident & Indemnity Co. v. D. F. Bast, Inc. (1978), 56 Ill. App. 3d 960, 962, 372 N.E.2d 829, 831; Kubinski & Sons, Inc. v. Dockside Development Corp. (1975), 33 Ill. App. 3d 1015, 1020, 339 N.E.2d 529, 533.) Here, the letter plaintiff sent to defendant did not contain any express waiver of plaintiff\u2019s right to receive his commissions. Also, under the circumstances, we cannot say that the failure to list commissions in this letter constituted a waiver. Furthermore, plaintiff\u2019s conduct does not lead to the conclusion that he was relinquishing his right to commissions. Plaintiff had been making oral requests for commissions, and then he brought this suit seeking unpaid commissions only four months after his employment was terminated. Plainly, nothing in the record indicates that plaintiff was intentionally relinquishing his right to commissions. Defendant\u2019s argument is therefore without merit.\nDefendant finally contends that the award of $10,000 to plaintiff is not supported by the evidence and is manifestly erroneous. Defendant complains that plaintiff\u2019s evidence was impeached, and that plaintiff\u2019s calculations were erroneous because of the characterization of some product sales as service sales, the inclusion of sales outside plaintiff\u2019s assigned service area and the inclusion of a sale for which plaintiff should not have received credit.\nThe determination of damages by a trial court sitting without a jury will not be set aside unless manifestly erroneous. (Schatz v. Abbott Laboratories, Inc. (1972), 51 Ill. 2d 143, 149, 281 N.E.2d 323, 326; Society of Mount Carmel v. Fox (1980), 90 Ill. App. 3d 537, 543, 413 N.E.2d 480, 485.) In the present case, plaintiff\u2019s expert witness testified that plaintiff was entitled to $16,224 or $20,624, while defendant\u2019s expert witnesses testified that plaintiff was owed $1750-$1754 or $4000-$4973. However, the trial court specifically stated that both sides made errors in their computations. The court was entitled to believe only portions of each side\u2019s testimony; it did not have to accept either the figure offered by plaintiff or the figure offered by defendant. Based on the extensive testimony as to damages offered by both parties, there was a reasonable basis in the record for the damages awarded. The damages awarded were within the range of evidence, and we cannot say that the trial court\u2019s\ndetermination was manifestly erroneous. See Schatz v. Abbott Laboratories, Inc. (1972), 51 Ill. 2d 143, 149, 281 N.E.2d 323, 326; Society of Mount Carmel v. Fox (1980), 90 Ill. App. 3d 537, 544, 413 N.E.2d 480, 486. Accordingly, the judgment of the trial court is affirmed.\nAffirmed.\nLINN and WHITE, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE RIZZI" } ], "attorneys": [ "Coghlan, Joyce and Nellis, of Chicago (William J. Nellis, Robert P. Nolan, and Thomas C. Nyhan, of counsel), for appellant.", "Richard J. Hollander, of Silberman & Gershon, Ltd., and Wigoda & Wigoda, both of Chicago (William S. Wigoda, Robert M. Wigoda, and Gary I. Wigoda, of counsel), for appellee." ], "corrections": "", "head_matter": "JEROME HARRIS, Plaintiff-Appellee, v. FAULTFINDERS, INC., Defendant-Appellant.\nFirst District (3rd Division)\nNo. 79-2113\nOpinion filed December 30,1981.\nCoghlan, Joyce and Nellis, of Chicago (William J. Nellis, Robert P. Nolan, and Thomas C. Nyhan, of counsel), for appellant.\nRichard J. Hollander, of Silberman & Gershon, Ltd., and Wigoda & Wigoda, both of Chicago (William S. Wigoda, Robert M. Wigoda, and Gary I. Wigoda, of counsel), for appellee." }, "file_name": "0785-01", "first_page_order": 807, "last_page_order": 814 }