Opinion
No. 1-12-3756
03-31-2015
IGOR VUGMAYSTER, Individually and on Behalf of Similarly Situated Persons, Plaintiff-Appellant, v. GROSSINGER MOTORCORP, INC., GROSSINGER AUTOCORP, INC., GROSSINGER CHEVROLET, INC., and JODY ADAMS, Defendants-Appellees.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 05 L 11318 The Honorable Michael B. Hyman Judge Presiding. JUSTICE LAVIN delivered the judgment of the court.
Presiding Justice Pucinski and Justice Ellis concurred in the judgment.
ORDER ¶ 1 Held: The trial court did not err by failing to strike an affidavit in its entirety under Illinois Supreme Court Rule 191 (eff. Jan. 4, 2013), or by granting defendants' motion to dismiss the purported class action under section 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)), where plaintiff's allegations showed that he was an at-will employee, where he accepted modification of his contract, and where he was tendered a check exceeding the amount of potential relief before he moved for class certification, thereby mooting this action. ¶ 2 This appeal arises from the dismissal of the seventh amended complaint filed by plaintiff Igor Vugmayster, individually and on behalf of similarly situated class members, against defendants Grossinger Motorcorp, Inc. (Motorcorp), Grossinger Autocorp, Inc. (Autocorp), Grossinger Chevrolet, Inc. (Chevrolet) and Chevrolet's general manager, Jody Adams, for breach of contract and violation of the Illinois Wage Payment and Collection Act (Wage Act) (820 ILCS 115/1 et seq. (West 2010)). Vugmayster, Chevrolet's employee, alleged that defendants unilaterally changed the terms of his contract and as a result, he was shorted compensation due under his commission-based vehicle sales position. The trial court dismissed the complaint, finding, in pertinent part, that Vugmayster was presumably an at-will employee, that he had accepted any modification, and that his claims were otherwise moot given that Chevrolet tendered payment to Vugmayster before he moved to certify the class. On appeal, Vugmayster asserts that in reaching its decision, the trial court improperly relied on an affidavit that failed to comply with Illinois Supreme Court Rule 191 (eff. Jan. 4, 2013), and that a genuine issue of material fact exists regarding whether he was an at-will employee. He also asserts the trial court overlooked that defendants restored the original contract terms after modifying the contract and that the amount tendered did not moot his claims. We affirm.
¶ 3 I. BACKGROUND
¶ 4 As a threshold matter, we decline Vugmayster's invitation to strike defendants' statement of facts. Having reviewed the record, we recite only those facts necessary to understand the procedural posture of this case and resolve the issues raised on appeal. Accordingly, we do not find the requested relief to be necessary. ¶ 5 In 2005, plaintiff Vito Partipilo, rather than Vugmayster, filed a class action. Partipilo, who worked at Chevrolet, alleged that Chevrolet improperly deducted a bank fee from his compensation when a customer had marginal credit. Subsequent proceedings revealed that when a customer with poor credit purchased a vehicle, the financing institution would charge Chevrolet a fee, i.e., a bank fee. As a result, Chevrolet would deduct that fee from a vehicle sale's profit before calculating a vehicle sales person's commission. Partipilo, and later Vugmayster, essentially alleged that their original agreements with Chevrolet did not permit the bank fee deduction to impact their commission. Specifically, each vehicle sales employee's commission earnings were governed by a sales pay plan, which did not set forth a bank fee deduction. Similarly, the employee manual did not refer to the bank fee. In response to Partipilo's several amended complaints, alleging breach of contract and violations of the Wage Act (820 ILCS 115/5, 9, 10 (West 2004)), defendants filed several motions to dismiss. Multiple judges presided over the proceedings below. ¶ 6 At one point, Judge Epstein dismissed the claims against Autocorp and Motorcorp, which were not alleged to have entered into a contract with Partipilo, and struck certain Wage Act claims. Later, Judge Epstein agreed with defendants' assertion that Partipilo was presumably an at-will employee absent allegations that he was employed for a fixed term. Judge Epstein also agreed that even assuming Partipilo's contract did not initially permit a bank fee deduction, Chevrolet modified the contract to permit the deduction and Partipilo accepted the modification by continuing to work there. Accordingly, Judge Epstein dismissed with prejudice Partipilo's claims based on bank fees deducted after he first received notice of the bank fee deduction. ¶ 7 Partipilo eventually filed a sixth amended complaint and, once again, defendants moved to dismiss it under section 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)). Defendants had recently offered Partipilo $138 plus costs incurred in the lawsuit, the entire amount he could possibly collect, and argued that because Partipilo did not move for class certification before defendants made that offer, his claims were moot. Judge Epstein denied without prejudice defendants' motion to dismiss based on the offer because they failed to attach an affidavit. Once again, however, the court dismissed claims against Motorcorp and Autocorp, and additionally, dismissed certain Wage Act claims sua sponte with prejudice. Partipilo's counsel subsequently informed the court that Partipilo had died in April 2010. In November, over defendants' objection, Judge Hyman granted leave to substitute Partipilo with Vugmayster, who worked at Chevrolet during the same period as Partipilo. ¶ 8 In December 2010, Vugmayster filed the seventh amended complaint. Like Partipilo, Vugmayster did not allege that he was hired for a fixed term. Vugmayster did allege that his sales pay plan did not state that a bank fee would be deducted. His allegations were, in respects relevant to this appeal, substantially the same as Partipilo's allegations. As expected, defendants moved to dismiss the complaint, largely repeating prior arguments and citing earlier rulings. They alleged Vugmayster began working at Chevrolet on April 29, 2004, and received his first commission sheet showing a bank fee deduction on July 6, 2004, but never challenged any bank fee deduction. The aforementioned commissioned sheet pertained to the sale of a vehicle to David Strasser on June 29, 2004. Chevrolet paid a $300 bank fee that was calculated in determining Chevrolet's profit, or in this case, Chevrolet's loss. The two salesmen involved, one of whom was Vugmayster, each received half of a mini commission, $25. ¶ 9 Defendants also provided the affidavit of Elizabeth Zwierzynski, Chevrolet's office manager. Zwierzynski alleged that she was responsible for overseeing the calculation and payment of commission to vehicle salespersons, as well as the records of those calculations. She alleged, "[t]his affidavit is based upon my personal knowledge, and my review of [Chevrolet's] books and records." In addition, Zwierzynski explained that salespersons were paid commissions on a weekly basis and that commissions were based on a percentage of Chevrolet's profit for each vehicle sale. Paychecks tendered to salespersons would be accompanied by a commission calculation sheet for each vehicle sold, which demonstrated how profit and commission were calculated. Zwierzynski's affidavit supported defendants' allegations regarding the hiring of Vugmayster, the Strasser transaction and the absence of any challenge by Vugmayster to bank fees deducted during his employment. Additionally, the Strasser commission calculation sheet was attached to Zwierzynski's affidavit. ¶ 10 In further support of their motion to dismiss, defendants alleged their attorney, Stuart Gordon, wrote Vugmayster's counsel on March 25, 2011, and, on behalf of Chevrolet, tendered a check to Vugmayster in the amount of $780.83. Defendants supported their motion with Gordon's letter, a copy of the check and Gordon's affidavit, which essentially contained the same allegations as the motion. Defendants argued that Vugmayster had not moved for class certification prior to the tender and as a result, this action became moot. Meanwhile, in April 2011, Vugmayster moved for class certification. ¶ 11 Vugmayster's response to defendants' motion to dismiss argued, in pertinent part, that defendants could not meet their burden under section 2-619 because Zwierzynksi's deposition testimony revealed that Vugmayster's first written sales pay plan and employee handbook were missing from his personnel file, and she had not reviewed Vugmayster's payroll record. Additionally, Vugmayster argued that Zwierzynski's deposition testimony contradicted her affidavit's assertion regarding when the first bank fee deduction impacted his commission. Specifically, her deposition testimony showed that the vehicle sale to Susan Vitello on June 7, 2004, was the first transaction in which Vugmayster was informed that a bank fee was charged, not the July 2004 Strasser transaction. Although Vugmayster was originally paid for the Vitello transaction without consideration of the bank fee, he was subsequently charged back the alleged overpayment of commission. Vugmayster also argued that the affidavits of Zwierzynski and Gordon failed to attach all documents purportedly relied on. Vugmayster attached to his response the transcripts of Zwierzynski's deposition testimony. ¶ 12 Zwierzynski's deposition testimony was taken on two different dates, which were nine months apart. At times, she failed to accurately recollect details concerning Vugmayster's employment. She also acknowledged certain record keeping mistakes. For brevity sake, we focus on testimony addressed by Vugmayster on appeal. Zwierzynski testified that she could not identify the terms in place when Vugmayster was hired, as the pay plan in effect at that time was missing. In addition, Zwierzynski's biller, Sue Higgins, had mistakenly failed to deduct a bank fee with respect to the Vitello sale on June 7, 2004, which resulted in Vugmayster being back charged for the overly high commission originally paid. He was paid $107.53 and then back charged to reflect a mini commission of $50. Zwierzynski also testified that bank fees charged to Chevrolet varied and she would have to look up the applicable bank fee for any given deal. While she had at one time looked at certain commission sheets, she had not reviewed them in some time. ¶ 13 Zwierzynski's testimony regarding whether Vugmayster had a demonstrator vehicle, whether he was charged a $1500 deductible for that vehicle and whether he was reimbursed for any charge, was uncertain. Zwierzynski would require further review of records to address those issues. In addition, Zwierzynski ultimately testified that repairs had been done on Vugmayster's demonstrator vehicle in the amount of $327.41, and that the amount was supposed to be deducted over a three-week period, but she would have to examine the relevant payroll form to determine if the deduction occurred. She acknowledged that she had not brought the relevant payroll form to her deposition or attached it to her affidavit. Similarly, she did not have Vugmayster's paychecks with her. Moreover, Vugmayster submitted a form asking Chevrolet to deduct $6,545 for taxing cash spiffs but she would need to examine payroll records to determine if the deduction was made. Upon inquiry, Zwierzynski testified that defendants' attorney, Gordon, provided the language for her affidavit. ¶ 14 Defendants' reply in support of the motion to dismiss agreed that contrary to Zwierzynski's affidavit, Vugmayster's commission was first reduced due to a bank fee in the Vitello transaction. Specifically, his commission was reduced by $57.53 ($107.53-$50). Nonetheless, Chevrolet's unconditional tender of $780.83 was substantially more than Vugmayster's diminished commission in that transaction. If Judge Hyman were to allow Vugmayster to recover only that first reduction in commission based on a bank fee, Chevrolet's tender rendered all claims moot, as the tender was made before Vugmayster moved for class certification. Additionally, Vugmayster's challenge to the sufficiency of Gordon's affidavit for failure to attach commission calculation sheets was disingenuous, as the purpose of that affidavit was only to attest that $780.83 had been tendered. ¶ 15 In his written opinion, Judge Hyman noted that Vugmayster had agreed to dismiss Adams from the breach of contract claim and granted defendants' motion to dismiss the breach of contract claim as to Autocorp and Motorcorp under section 2-615 (735 ILCS 5/2-615 (West 2010)). Judge Hyman also dismissed the Wage Act claims against those three defendants under section 2-615. Additionally, the court dismissed both counts against Chevrolet pursuant to section 2-619 because (1) Vugmayster did not allege he entered into a fixed-term employment contract; (2) he was consequently presumed to be an at-will employee; (3) Chevrolet could modify the at-will employment agreement as a condition of continued employment; and (4) Vugmayster accepted that modification by continuing to work there. Even if the original agreement did not permit a bank fee deduction, Vugmayster accepted the modified agreement and could not claim commission based on bank fees deducted after receiving notice. Thus, his potential recovery was limited to the impact of the bank fee deduction in the Vitello transaction, $57.53. Furthermore, defendants' tender of the check before Vugmayster moved for class certification rendered his claims moot, as the amount tendered was more than adequate. The court found that Gordon's affidavit was sufficient and Vugmayster did not attach any counter affidavits asserting that the amount tendered was inadequate.
Autocorp was added as a defendant in 2009.
Zwierzynski testified that a cash spiff would be paid to salespersons on the sales floor for selling a particular item. After the employee was paid in cash, the dealership would adjust records accordingly.
To the extent Vugmayster questions the finality of this judgment as to all claims, we note Judge Hyman's concluding statement, that "[t]his is a final order disposing of this case in its entirety," resolves any ambiguity.
¶ 16 II. ANALYSIS
¶ 17 A. Zwierzynski's Affidavit
¶ 18 On appeal, Vugmayster asserts the trial court erred by failing to strike or disregard Zwierzynski's affidavit for violating Rule 191(a). Specifically, he asserts that her affidavit's allegations were contradicted by her deposition testimony and that her deposition testimony otherwise demonstrated she lacked personal knowledge. Vugmayster asserts, and defendants do not dispute, that we review this appeal de novo. Compare JP Morgan Chase Bank, National Ass'n v. Ivanov, 2014 IL App (1st) 133553, ¶ 65 (applying a de novo standard of review to the sufficiency of an affidavit), with Farmers Auto Insurance Ass'n v. Neumann, 2015 IL App (3d) 140026, ¶ 14 (applying an abuse of discretion standard of review). Accordingly, we may affirm the judgment on any grounds found in the record, regardless of the trial court's reasons. Dratewska-Zator v. Rutherford, 2013 IL App (1st) 122699, ¶ 16. ¶ 19 Rule 191(a) states that "affidavits submitted in connection with a motion for involuntary dismissal under section 2-619 of the Code of Civil Procedure *** shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all documents upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto." In addition, Rule 191(a) must be strictly complied with to insure that trial courts are presented with valid evidentiary facts that may form the basis for a decision. Robidoux v. Oliphant, 201 Ill. 2d 324, 336 (2002). Even where noncompliance exists, however, the trial court is not required to strike the entire affidavit. Cincinnati Companies v. West American Insurance Co., 287 Ill. App. 3d 505, 514 (2002), aff'd, 183 Ill. 2d 317 (1998). On the contrary, the trial court may strike or disregard portions of the affidavit. Cincinnati Companies, 287 Ill. App. 3d at 514. ¶ 20 Initially, we first reject Vugmayster's reliance on Zwierzynski's deposition testimony that defense counsel provided the language for her affidavit. At best, this shows that counsel made information provided by Zwierzynski more concise and eloquent, not that counsel was the source of the allegations or that the allegations were unfounded. Regardless of who put her allegations on paper, Zwierzynski did not disown those allegations during her deposition testimony. ¶ 21 We also reject Vugmayster's assertion that Zwierzynski's deposition testimony disproved her affidavit's allegation that Vugmayster never challenged his bank fee deduction during his employment. Although Zwierzynski testified that she recalled no specific interaction with Vugmayster, she also testified that salesmen would bring complaints to her and that she would remember if an employee had complained. This testimony was entirely consistent with her prior allegation that Vugmayster never challenged the bank fee deduction. No other records were necessary to support her allegation. ¶ 22 Vugmayster further asserts that Zwierzynski lacked personal knowledge of (1) whether each subprime sales commission Vugmayster received had been properly calculated; (2) whether he had paid the amounts he purportedly owed Chevrolet at the end of his employment; and (3) whether the $1,500 demonstrator auto and cash spiff tax payroll deductions were taken or reimbursed. Vugmayster also argues Zwierzynski lacked personal knowledge that Vugmayster owed Chevrolet $658.96 at the time his employment ended. We are unpersuaded by these red herrings, as they are based on sums that the seventh amended complaint did not specifically seek, or sums that Chevrolet originally claimed Vugmayster owed it but later abandoned. Moreover, as will be discussed further, Vugmayster accepted any modification of the parties' agreement, rendering the majority of sales transactions irrelevant. Even assuming the trial court was required to disregard any suggestion that Zwierzynski had personal knowledge of the aforementioned items, it would not impact the result here.
Vugmayster's allegations below were vague at best with respect to the amount he believed defendants had failed to pay him or the amount he was entitled to be paid in the absence of a valid contract modification.
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¶ 23 B. Section 2-619
¶ 24 Upon filing a section 2-619 motion, the movant admits the complaint's well-pled facts and any reasonable inferences there from, rather than the complaint's legal conclusions, but urges the court to determine there is no set of facts which would entitle the plaintiff to relief. Downers Grove Associates v. Red Robin International, Inc., 151 Ill. App. 3d 310, 315 (1986). Stated differently, the movant asserts that an affirmative matter defeats the claim. Garland v. Sybaris Club International, Inc., 2014 IL App (1st) 112615, ¶ 44. In addition, the movant bears the initial burden of proving any affirmative defense relied on. Advocate Health and Hospitals Corp. v. Bank One, N.A., 348 Ill. App. 3d 755, 759 (2004). Where the affirmative matter asserted does not appear in the complaint, the motion must be supported by affidavit. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993). By providing adequate affidavits in support of the defense, a defendant satisfies the initial burden and the burden shifts to the plaintiff. Id. The plaintiff must then show that the defense is unfounded or requires the resolution of a material fact. Van Meter v. Darien Park District, 207 Ill. 2d 359, 367 (2003). In addition, the plaintiff may make this showing by counter-affidavit or other proof. Kedzie & 103rd Currency Exchange, Inc., 156 Ill. 2d at 116. ¶ 25 While such motions permit dismissal based on legal issues or easily proven facts, disputed questions are reserved for trial. Advocate Health and Hospitals Corp., 348 Ill. App. 3d at 759. Where no genuine issue of material fact exists and the defendant is entitled to judgment as a matter of law, the court may dismiss the complaint. Id. In addition, the court considers the pleadings, affidavits and depositions in the light most favorable to the plaintiff. Id. We review dismissal under section 2-619 de novo. Goral v. Kulis, 2014 IL App (1st) 133236, ¶ 31.
¶ 26 A. At-Will Employment
¶ 27 As defendants observe, Vugmayster has never alleged that his employment was for a fixed term, even when this omission was brought to his attention. It is well settled that an employee who has been hired without a fixed term is presumed to be an at-will employee. Ross v. May Co., 377 Ill. App. 3d 387, 389 (2007); Hanna v. Marshal Fields & Co., 279 Ill. App. 3d 784, 790 (1996). Although Vugmayster argues that this presumption constitutes a legal conclusion that cannot be reached at this stage, he disregards the factual omission from his complaint. Furthermore, Vugmayster's suggestion that defendants' loss of evidence impaired his ability to merely plead that a fixed-term employment agreement existed is entirely disingenuous. Litigants are not entitled to file baseless complaints. In addition, Vugmayster, as plaintiff, is responsible for knowing the nature of the contract that he alleged to have agreed to and that defendants are alleged to have breached. Clearly, Vugmayster has personal knowledge regarding whether he did or did not expect to work for a fixed period. He may not conduct a fishing expedition after filing his complaint to determine whether he has a viable claim. Taking the complaint's factual allegation as true, that Vugmayster entered into an employment contract, without specifying a particular time frame, Vugmayster was an at-will employee.
¶ 28 B. Contract Modification
¶ 29 An employer can modify an employment agreement that is terminable at will as a condition of the agreement's continuance. Geary v. Telular Corp., 341 Ill. App. 3d 694, 698 (2003). This right applies to modification of compensation terms. Id. Where an at-will employee continues working after his commission plan has been modified, he has accepted the modification. Id. ¶ 30 Zwierzynski's affidavit alleged that with each pay check, salespersons would receive a commission calculation sheet that showed how commissions earned were calculated. Zwierzynski's affidavit incorrectly stated that Vugmayster was given his first commission calculation sheet reflecting a bank fee deduction on July 6, 2004, but after Zwierzynski's deposition, it was undisputed that Vugmayster actually received his first commission calculation sheet reflecting that deduction somewhat earlier, on June 7, 2004, with respect to the sale of a vehicle to Susan Vitello. In addition, Chevrolet's biller, Sue Higgins, originally erred by omitting the bank fee deduction from the June commission sheet. Accordingly, while Vugmayster was paid $107.53, he ought to have received a $50 mini commission. Vugmayster was subsequently charged back the difference, $57.53. Even if bank fee deductions were not permissible under the parties' original contract, it is undisputed that Vugmayster continued to work at Grossinger after his commission plan was modified. As a result, Judge Hyman correctly determined that Vugmayster accepted this alleged modification to the contract and his potential recovery would be limited to $57.53, the amount of commission that he did not receive due to the first bank fee deduction. ¶ 31 Vugmayster essentially argues that the rule applied in Geary requires a different result because here, he received a new sales pay plan after the bank fee was first deducted. Specifically, he contends that the trial court failed to consider the effect of the written pay plan as revised on October 15, 2004, which did not expressly authorize a bank fee deduction. Thus, submits Vugmayster, the October pay plan restored the original compensation terms. We are unpersuaded. ¶ 32 Vugmayster's commission, as evidenced by the pay plans in the record, was generally based on a percentage of "profit." See Black's Law Dictionary (9th Ed. 2009), profit (defining "profit" as "[t]he excess of revenues over expenditures in a business transaction.") Even assuming Chevrolet was originally required to exclude the expenditure of bank fees charged to Chevrolet by banks from its calculation of profit, and in turn, Vugmayster's commission, he is deemed to have accepted the modification allowing that expenditure to be taken into account as of June 2004. Nothing in the October 2004 sales pay plan purported to alter that modification. Accordingly, the trial court reached the correct result. Assuming further still that the October 2004 sales plan did restore the original contract terms, Vugmayster apparently continued to work thereafter despite additional bank fee deductions. Accordingly, Vugmayster would at best be entitled to recover only an additional amount for the first bank fee deducted after October. Aside from his general protestation that Chevrolet's tender was insufficient, Vugmayster does not assert that the amount Chevrolet tendered would be insufficient to cover that additional amount; rather, it appears that Vugmayster only speculates that he would be entitled to some unidentified sum. As Judge Hyman noted, Vugmayster did not submit a counter affidavit, or any other documentation, showing that defendants, through Gordon, tendered inadequate compensation for his potential recovery. There is no genuine dispute here that the tender was adequate.
¶ 33 C. Moot Upon Tender of Payment
¶ 34 In a class action, a defendant's tender of relief may render a claim moot where the representative has not filed a motion for class certification before the defendant made its tender. Barber v. American Airlines, Inc., 241 Ill. 2d 450, 456-57 (2011); Gatreaux v. DKW Enterprises, LLC, 2011 IL App (1st) 103482, ¶ 23. This is because that motion is what brings the other class members' interests sufficiently before the court. Barber, 241 Ill. 2d at 457. Absent a filed motion, the other members' interests are not before the court and the case may be dismissed. Id. Furthermore, no exception exists where the plaintiff alleges it lacked reasonable opportunity to move for certification. Id. at 458-59. Remaining class members can pursue relief on their own. Id. at 59. ¶ 35 Here, defendants tendered a check sufficient to cover the maximum recovery potentially available to Vugmayster at a time before Vugmayster had moved for certification and thus, no other class members' interests were before the trial court. Defendants' tender rendered this action moot. Even considering the pleadings in the light most favorable to Vugmayster, defendants met their burden. The trial court properly dismissed the complaint. ¶ 36 For the foregoing reasons, we affirm the trial court's judgment. 15 ¶ 37 Affirmed.