{ "id": 5203339, "name": "PHILIP GROARK, Plaintiff-Appellant, v. THORLEIF LARSEN AND SON, INC., et al., Defendants-Appellees", "name_abbreviation": "Groark v. Thorleif Larsen & Son, Inc.", "decision_date": "1992-06-17", "docket_number": "No. 1\u201491\u20140160", "first_page": "61", "last_page": "68", "citations": [ { "type": "official", "cite": "231 Ill. App. 3d 61" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "342 N.E.2d 800", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "35 Ill. App. 3d 807", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5306827 ], "pin_cites": [ { "page": "809" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/35/0807-01" ] }, { "cite": "549 N.E.2d 1010", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "193 Ill. App. 3d 431", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2497244 ], "pin_cites": [ { "page": "442" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/193/0431-01" ] }, { "cite": "478 N.E.2d 384", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "106 Ill. 2d 135", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138416 ], "pin_cites": [ { "page": "141-42" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0135-01" ] }, { "cite": "533 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "178 Ill. App. 3d 169", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2431211 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/178/0169-01" ] }, { "cite": "473 N.E.2d 935", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "105 Ill. 2d 158", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141983 ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0158-01" ] }, { "cite": "292 N.E.2d 205", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "9 Ill. App. 3d 408", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2850540, 2853479 ], "pin_cites": [ { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/9/0408-02", "/ill-app-3d/9/0408-01" ] }, { "cite": "328 N.E.2d 369", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "28 Ill. App. 3d 393", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5409336 ], "pin_cites": [ { "page": "396" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/28/0393-01" ] }, { "cite": "410 N.E.2d 902", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "88 Ill. App. 3d 581", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3171135 ], "pin_cites": [ { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/0581-01" ] }, { "cite": "394 N.E.2d 380", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "76 Ill. 2d 427", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2983269 ], "pin_cites": [ { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0427-01" ] }, { "cite": "490 N.E.2d 680", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "111 Ill. 2d 444", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166656 ], "pin_cites": [ { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0444-01" ] }, { "cite": "516 N.E.2d 427", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "162 Ill. App. 3d 1065", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3509034 ], "weight": 3, "pin_cites": [ { "page": "1070" }, { "page": "1070", "parenthetical": "a joint venture \"relationship is governed by the legal principles applicable to partnerships\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/162/1065-01" ] }, { "cite": "396 N.E.2d 524", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "77 Ill. 2d 313", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5490227 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "318" }, { "page": "317-18" }, { "page": "318", "parenthetical": "the rights and liabilities of the members of a joint venture are tested by the same legal principles which govern partnerships" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0313-01" ] }, { "cite": "446 N.E.2d 296", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "112 Ill. App. 3d 1020", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5431336 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/112/1020-01" ] }, { "cite": "488 N.E.2d 1103", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "140 Ill. App. 3d 618", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3530885 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/140/0618-01" ] }, { "cite": "473 N.E.2d 1280", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "105 Ill. 2d 143", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141727 ], "pin_cites": [ { "page": "150" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0143-01" ] }, { "cite": "384 N.E.2d 353", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "74 Ill. 2d 172", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994390 ], "year": 1984, "pin_cites": [ { "page": "184" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0172-01" ] }, { "cite": "562 N.E.2d 282", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "204 Ill. App. 3d 302", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2574356 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/204/0302-01" ] }, { "cite": "560 N.E.2d 942", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "202 Ill. App. 3d 1024", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2587296 ], "pin_cites": [ { "page": "1028" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/202/1024-01" ] }, { "cite": "505 N.E.2d 1087", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "153 Ill. App. 3d 311", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3608626 ], "weight": 3, "pin_cites": [ { "page": "315" }, { "page": "316" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/153/0311-01" ] }, { "cite": "377 N.E.2d 1208", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "61 Ill. App. 3d 315", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3346649 ], "pin_cites": [ { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/61/0315-01" ] } ], "analysis": { "cardinality": 754, "char_count": 14217, "ocr_confidence": 0.763, "pagerank": { "raw": 1.9092276885647922e-07, "percentile": 0.7314837660419584 }, "sha256": "a51f8a865b5be7b6eea62a971d94beacb66c935152ec05c7ebeb1a28a579a631", "simhash": "1:137d158ef6ee9997", "word_count": 2349 }, "last_updated": "2023-07-14T19:52:19.187731+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PHILIP GROARK, Plaintiff-Appellant, v. THORLEIF LARSEN AND SON, INC., et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE GREIMAN\ndelivered the opinion of the court:\nIn this retaliatory discharge action, plaintiff, Philip Groark, appeals from the circuit court\u2019s dismissal of his complaint as against one defendant, Larsen/Precision Joint Venture, upon its motion under section 2 \u2014 619 (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 619).\nWe affirm.\nPlaintiff filed a two-count second amended complaint seeking damages for retaliatory discharge against three named defendants: (1) Thorleif Larsen & Son, Inc. (Larsen); (2) Precision Contractors, Inc. (Precision); and (3) Larsen/Precision Joint Venture (Joint Venture). Count I of the complaint was directed against both Larsen and Joint Venture. Count II was directed against Precision only and is not at issue on this appeal. Joint Venture is the only defendant involved in this appeal.\nIn his complaint, plaintiff alleges that he was hired by Joint Venture in April 1986. From April 15, 1986, to October 12, 1987, he was employed by Joint Venture and Larsen at various times as a brick layer and as a foreman. The W-2 tax forms for 1987 attached to plaintiff\u2019s complaint reveal earnings of approximately $1,277 from Joint Venture and $12,338 from Larsen.\nOn April 8, 1987, plaintiff was injured while in the scope of his employment -with Joint Venture, but he continued to work through May 1, 1987, at respective times for Larsen and Joint Venture. On May 1, 1987, plaintiff notified Larsen and Joint Venture that he could no longer work due to his April 8 injury.\nJoint Venture or its insurer paid plaintiff\u2019s medical bills and temporary total disability through June 6, 1987. On July 16, 1987, plaintiff filed a workers\u2019 compensation claim against Joint Venture.\nOn October 11, 1987, plaintiff\u2019s doctor authorized him to return to work but plaintiff was then advised by Larsen and Joint Venture that his employment was terminated.\nIn the October 25, 1987, Chicago Tribune newspaper, an advertisement for bricklayers appeared for Larsen for a construction job in Oak Lawn.\nPlaintiff alleges that the sole reason for his termination was based on his seeking workers\u2019 compensation.\nBy affidavit, plaintiff also declares that Joint Venture and Larsen occupied the same office space, used the same telephones, and employed many of the same personnel. Plaintiff further states that Larsen exercised discretionary authority over the allocation of his assignments between Larsen and Joint Venture.\nBy written agreement, Joint Venture was created between Larsen and Precision for the sole and limited purpose to bid, obtain and perform the masonry work on one project, i.e., the construction of a terminal facility for United Airlines at O\u2019Hare Airport. The agreement specifically provides that \u201cthe parties hereto desire to enter into this Joint Venture Agreement for the joint performance of the CONTRACT of United Airlines.\u201d Larsen had a 70% interest and Precision had a 30% interest.\nThe airline project consisted of two phases. During phase I, Joint Venture employed up to 82 field personnel on a daily basis. Phase I was substantially completed by August 4, 1987. After the completion of phase I, Joint Venture reduced its work force to five or less workers. Phase II could not commence until March 1, 1988. Accordingly, when plaintiff attempted to return to work on October 11, 1987, Joint Venture did not require a bricklayer.\nOn May 21, 1990, the circuit court granted defendants\u2019 section 2\u2014 619 motion to dismiss count I of plaintiff\u2019s complaint as against Joint Venture and stated \u201c[y]ou [plaintiff] can\u2019t collect twice.\u201d On December 11, 1990, the circuit court denied plaintiff\u2019s motion to reconsider and indicated that it had dismissed count I against Joint Venture due to the unavailability of work at Joint Venture when plaintiff attempted to return to work.\nPlaintiff first submits that the circuit court erred when it dismissed his claim against Joint Venture on May 21, 1990, because the circuit court reasoned that he \u201ccan\u2019t collect twice.\u201d To the extent that the circuit court based its decision on the belief that a discharged employee could not pursue a retaliatory discharge action after receiving workers\u2019 compensation benefits, such reasoning is incorrect. However, \u201c[i]t is well settled that on appeal the correctness of the trial court\u2019s action, and not its reasoning, is the subject of review.\u201d Village of Northbrook v. Cannon (1978), 61 Ill. App. 3d 315, 319, 377 N.E.2d 1208.\nPlaintiff recognizes that the unavailability of work has been held to be a valid and nonpretextual basis to discharge an employee in Lewis v. Zachary Confections Co. (1987), 153 Ill. App. 3d 311, 505 N.E.2d 1087, but attempts to distinguish Lewis on the grounds that it did not involve a joint venture.\nIn response, Joint Venture contends that it cannot be held liable for retaliatory discharge because it had no work available at the time plaintiff attempted to return to work, relying on Lewis.\nSection 2 \u2014 619(a)(9) provides for the involuntary dismissal of an action where \u201cthe claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.\u201d (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 619(a)(9).) Accordingly, in a motion brought under section 2 \u2014 619, the court must consider whether the defendant has brought forth facts which constitute an affirmative defense that could defeat the plaintiff\u2019s cause of action. Prodromos v. Poulos (1990), 202 Ill. App. 3d 1024, 1028, 560 N.E.2d 942.\nIn the present case, plaintiff\u2019s cause of action is based on retaliatory discharge and the \u201caffirmative matter\u201d advanced by Joint Venture to defeat plaintiff\u2019s claim is the unavailability of work.\nAn at-will employment relationship generally may be terminated at any time for any reason or no reason at all. (Marin v. American Meat Packing Co. (1990), 204 Ill. App. 3d 302, 562 N.E.2d 282.) The tort of retaliatory discharge was recognized as an exception to the general rule in order to prevent employers from putting employees in a position of having to choose between their jobs and seeking their remedies under the Workers\u2019 Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.). (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 184, 384 N.E.2d 353.) Illinois has a strong public policy to insure the protection of workers covered by the Workers\u2019 Compensation Act. Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 150, 473 N.E.2d 1280.\nThree elements are necessary to state a cause of action for' retaliatory discharge for filing a workers\u2019 compensation claim: (1) the plaintiff\u2019s status as an employee of the defendant before injury; (2) the plaintiff\u2019s exercise of a right granted by the Workers\u2019 Compensation Act; and (3) the employee\u2019s discharge causally related to the filing of the workers\u2019 compensation claim. (Lewis, 153 Ill. App. 3d at 315.) The first two elements are not in dispute in the present case.\nThe mere discharge of an employee who has filed a workers\u2019 compensation claim does not satisfy the requirement of causal relationship if the basis for the discharge is valid and nonpretextual. Slover v. Brown (1986), 140 Ill. App. 3d 618, 488 N.E.2d 1103 (an employer may fire an employee for excessive absenteeism).\nA valid nonpretextual basis for discharge which would negate this element includes the discharge of an employee due to lack of work. (Lewis, 153 Ill. App. 3d at 316.) In Lewis, the court reversed a jury verdict for the plaintiff because the evidence was insufficient to support the verdict that the plaintiff was a victim of retaliatory discharge. The plaintiff, as well as 8 or 10 other employees, had been laid off due to a slowdown of production.\nSimilarly, where the uncontradicted evidence revealed that the plaintiff\u2019s termination was part of a general cutback in employment by the defendant, no retaliatory cause of action was found to exist. Armstrong v. Freeman United Coal Mining Co. (1983), 112 Ill. App. 3d 1020, 446 N.E.2d 296 (the court affirmed the entry of summary judgment for the defendant).\nLike the defendants in Lewis and Armstrong, Joint Venture had reduced its work force. In August 1987 after the work on phase I of the airline project had been completed, Joint Venture cut back the number of its employees from about 82 to 5 workers. Plaintiff wanted to return to work in October of 1987. Phase II of Joint Venture\u2019s project was to commence in March of 1988.\nIn light of Joint Venture\u2019s overall reduction in its work force, we find that the elements required to sustain a cause of action for retaliatory discharge against Joint Venture have not been met.\nNext plaintiff asserts that it was error to dismiss his complaint against Joint Venture because Joint Venture and Larsen are not separate entities. Plaintiff argues that Joint Venture cannot be treated separately from its participants, i.e., Larsen and Precision. Plaintiff submits that even if Joint Venture had no work available, Larsen had work available as evidenced by the newspaper ad for bricklayers. Thus, under plaintiff\u2019s \u201cone entity\u201d theory, the unavailability of work at Joint Venture is immaterial because work was available at Larsen and Larsen shifted its workers between assignments at Larsen and Joint Venture.\nA joint venture is an association of two or more persons to carry out a single enterprise for profit. (Smith v. Metropolitan Sanitary District of Greater Chicago (1979), 77 Ill. 2d 313, 318, 396 N.E.2d 524; Ambuul v. Swanson (1987), 162 Ill. App. 3d 1065, 516 N.E.2d 427.) A joint venture is not regarded as identical with a partnership, although, as a practical matter, the only distinction between the two entities is that a joint venture relates to a single specific enterprise or transaction while a partnership relates to a general business of a particular kind. Smith, 77 Ill. 2d at 317-18; Ambuul, 162 Ill. App. 3d at 1070.\nPartnership principles govern joint ventures. Bachewicz v. American National Bank & Trust Co. (1986), 111 Ill. 2d 444, 448, 490 N.E.2d 680; Smith, 77 Ill. 2d at 318 (the rights and liabilities of the members of a joint venture are tested by the same legal principles which govern partnerships); Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 438, 394 N.E.2d 380 (\u201c[w]hen a joint venture is found to exist, the legal principles pertaining to the relationship between partners govern\u201d); Ambuul, 162 Ill. App. 3d at 1070 (a joint venture \u201crelationship is governed by the legal principles applicable to partnerships\u201d).\nA joint venture, like a partnership, is liable to third persons for wrongful acts of its venturers done in the course of the joint venture agreement. See Tassan v. United Development Co. (1980), 88 Ill. App. 3d 581, 588, 410 N.E.2d 902 (\u201c[e]very member of a joint venture is liable to third persons for acts of his fellow venturers done in the course of the enterprise\u201d); Baker Farmers Co. v. ASF Corp. (1975), 28 Ill. App. 3d 393, 396, 328 N.E.2d 369 (\u201cone member of the joint venture is liable to third parties for acts of his fellow venturer made in the course of the enterprise\u201d); Joseph W. O\u2019Brien Co. v. Highland Lake Construction Co. (1972), 9 Ill. App. 3d 408, 413, 292 N.E.2d 205 (\u201ceach member of a joint venture, like a partner, is liable to third persons for the acts of any other member within the scope of the joint venture agreement\u201d).\nThe sole business purpose of Joint Venture related to the construction of the airline terminal at O\u2019Hare Airport. Applying the partnership liability principle, Joint Venture can only be liable to third persons for the acts or omissions of its members relating to that project. Accordingly, Joint Venture cannot be held liable because of the availability of work at Larsen\u2019s Oak Lawn project, such work being outside the stated scope of the joint venture.\nOur decision in this case regarding Joint Venture does not affect the remaining defendants, Larsen and Precision. An employee can state a valid cause of action for retaliatory discharge against an employer who discharges the employee for filing a workers\u2019 compensation claim against a former employer. Darnell v. Impact Industries, Inc. (1984), 105 Ill. 2d 158, 473 N.E.2d 935.\nNext plaintiff contends that even if no work was available in October of 1987, Joint Venture had a duty to recall him when work began on phase II in March of 1988. Plaintiff first advanced the right to recall issue in his reply brief to this court and relied on Motsch v. Pine Roofing Co. (1988), 178 Ill. App. 3d 169, 533 N.E.2d 1.\nWe find that plaintiff has waived this issue for purposes of appeal. Supreme Court Rule 341 mandates that points not argued in appellant\u2019s original brief \u201care waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.\u201d (134 Ill. 2d R. 341(e)(7); see also Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill. 2d 135, 141-42, 478 N.E.2d 384 (\u201can issue not raised in the circuit court cannot be raised for the first time on appeal\u201d); Yates v. Doctor\u2019s Associates, Inc. (1990), 193 Ill. App. 3d 431, 442, 549 N.E.2d 1010 (\u201can issue not presented to or considered by the trial court cannot be raised for the first time on review\u201d).) Failure to propose a particular theory before the circuit court and then to advance it before the appellate court is unfair to the other party, who had no opportunity to present pertinent rebuttal evidence on such theory which could have had a bearing on the disposition of the case. See People v. Edwards (1976), 35 Ill. App. 3d 807, 809, 342 N.E.2d 800.\nMoreover, the Motsch case is clearly distinguishable from the present case. Unlike plaintiff in the instant case, the plaintiffs in Motsch expressly alleged in their complaint a cause of action for retaliatory discharge and a separate count for retaliatory refusal to recall.\nJudgment affirmed.\nTULLY and CERDA, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE GREIMAN" } ], "attorneys": [ "McKenzie & McKenzie, P.C., of Chicago (Kevin D. Sprow and Robert E. McKenzie, of counsel), for appellant.", "Kirk L. Miller, of Highland Park, for appellees." ], "corrections": "", "head_matter": "PHILIP GROARK, Plaintiff-Appellant, v. THORLEIF LARSEN AND SON, INC., et al., Defendants-Appellees.\nFirst District (3rd Division)\nNo. 1\u201491\u20140160\nOpinion filed June 17, 1992.\nMcKenzie & McKenzie, P.C., of Chicago (Kevin D. Sprow and Robert E. McKenzie, of counsel), for appellant.\nKirk L. Miller, of Highland Park, for appellees." }, "file_name": "0061-01", "first_page_order": 81, "last_page_order": 88 }