                                       2015 IL App (1st) 142785
                                   Nos. 1-14-2785, 1-14-2807 (cons.)
                                                                        Fifth Division
                                                                   September 30, 2015
     ____________________________________________________________________________

                                         IN THE
                             APPELLATE COURT OF ILLINOIS
                                     FIRST DISTRICT
     ______________________________________________________________________________

                                                    )
     RAYMOND THOMAS,                                )
                                                    )   Appeal from the Circuit Court
           Plaintiff-Appellant and Cross-Appellee, )    of Cook County.
                                                    )
     v.                                             )   No. 07 L 13563
                                                    )
     WEATHERGUARD CONSTRUCTION COMPANY, )               The Honorable
     INC.,                                          )   Joan E. Powell,
                                                    )   Judge Presiding.
           Defendant-Appellee and Cross-Appellant.  )
                                                    )
     ______________________________________________________________________________

                JUSTICE GORDON delivered the judgment of the court, with opinion.
                Justices Lampkin and Palmer concurred in the judgment and opinion.

                                               OPINION

¶1         The instant consolidated appeals arise from the trial court’s finding, after a bench trial,

        that defendant Weatherguard Construction Company, Inc., was plaintiff Raymond Thomas’

        employer and owed plaintiff commissions on contracts that plaintiff procured on

        Weatherguard’s behalf. Weatherguard appeals the trial court’s finding that it was plaintiff’s

        employer, as well as the court’s findings concerning damages. Plaintiff appeals the trial

        court’s application of the Wage Payment and Collection Act (Wage Payment Act) (820 ILCS

        115/1 et seq. (West 2014)) as of the time of the filing of his complaint, instead of the

        application of the amended Wage Payment Act, which was in force at the time of the court’s
     Nos. 1-14-2785, 1-14-2807 (cons.)


        judgment. For the reasons that follow, we affirm the trial court’s judgment in plaintiff’s favor

        but remand the case to the trial court for the limited purpose of determining plaintiff’s

        reasonable attorney fees.

¶2                                         BACKGROUND

¶3          On December 5, 2007, plaintiff filed a complaint against defendant; the complaint was

        amended on July 14, 2008, and it is the amended complaint on which the parties went to trial.

        The amended complaint contains four counts, and alleges that defendant is in the business of

        repairing and replacing roofs, siding, doors, and windows for homes that sustained damage

        due to weather conditions. The complaint alleges that “[o]n or around April 7, 2007,

        Defendant hired Plaintiff as a commissioned sales representative to solicit orders (contracts)

        for repair work for and on behalf of Defendant” and “promised to pay Plaintiff commissions

        equal to twenty percent (20%) of the total value of any orders (contracts) that Plaintiff

        secured for and on behalf of Defendant.” The complaint alleges that plaintiff performed to

        the “reasonable satisfaction” of defendant and that plaintiff terminated his employment on

        July 9, 2007, after having secured orders in the amount of $245,010.57. The complaint

        alleges that based on this amount, plaintiff was entitled to commissions of $49,002.11, but

        was only paid $1,335.57. Plaintiff sent defendant a letter demanding payment of the unpaid

        commissions on September 4, 2007, but defendant refused to pay.

¶4          Count I of the complaint alleges that defendant violated the Sales Representative Act

        (820 ILCS 120/1 et seq. (West 2008)), which requires a principal to pay a sales

        representative earned commissions within 13 days after the sales representative’s termination

        of employment. Count I requested that the court award plaintiff all unpaid earned




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        commissions, as well as “exemplary damages equal to three (3) times the total amount of the

        unpaid earned commissions” and attorney fees.

¶5          Count II, pled in the alternative, alleges that defendant violated the Wage Payment Act,

        which required an employer to pay an employee final compensation at the time of the

        employee’s separation from employment or at the next regularly scheduled pay period. Count

        II requested that the court award plaintiff all unpaid final compensation, as well as attorney

        fees pursuant to the Attorneys Fees in Wage Actions Act (705 ILCS 225/0.01 et seq. (West

        2008)).

¶6          Count III, pled in the alternative, was for breach of contract and alleges that defendant

        breached its oral contract with plaintiff by failing to compensate him as agreed. Count III

        requested that the court award plaintiff $47,666.54 in unpaid compensation.

¶7          Finally, count IV, pled in the alternative, was based on unjust enrichment and alleges that

        defendant was being unjustly enriched by receiving payment for service contracts that

        plaintiff solicited and secured while not paying plaintiff compensation. Count IV requested

        that the court award plaintiff $47,666.54 in unpaid compensation, as well as punitive

        damages and attorney fees.

¶8          In its answer, defendant denied plaintiff was its employee, denied any business

        relationship with plaintiff, and denied that it owed plaintiff any commissions.

¶9          On June 12, 2010, defendant filed a motion for summary judgment, claiming it owed no

        liability to plaintiff because the Sales Representative Act did not apply to defendant.

        Additionally, defendant argued that it was not plaintiff’s employer, claiming plaintiff was

        employed by Dave Farbaky and his company DBar, an independent marketing company.




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¶ 10          On September 15, 2010, the trial court granted defendant’s motion for summary

          judgment as to count I of plaintiff’s amended complaint, concerning the Sales Representative

          Act, and denied the motion as to the other counts of the amended complaint.

¶ 11          On June 28 and 29, 2011, the parties appeared before the court for a bench trial. Plaintiff

          testified on his own behalf that in 2007, he came across an ad by defendant on the Career

          Builder website; the ad contained defendant’s name with no mention of Dave Farbaky or

          DBar. He submitted an online application, along with his resume, and received a call “from

          someone from the office for an interview.” The building at which he interviewed had

          defendant’s name on it and plaintiff did not observe DBar’s name anywhere. When plaintiff

          walked into the building he observed “several employees that had, like, [defendant’s]

          uniforms and stuff on.”

¶ 12          Plaintiff testified that he was interviewed by Farbaky, who was wearing a Weatheguard

          uniform. Plaintiff also spoke to Chad Hagen, who was also wearing a Weatherguard uniform.

          Plaintiff received a business card from Hagen at the same time, which had defendant’s name

          on it. After the interview, plaintiff received a call back from Farbaky, inviting plaintiff back

          to the office. When plaintiff returned to the office, he was invited on a “ride-along” with

          Farbaky to observe what the job entailed. Farbaky took plaintiff to customers’ homes and

          informed plaintiff “about the company.” Plaintiff had the opportunity to perform a roof

          inspection with Farbaky, who showed plaintiff the process of approaching the customer and

          inspecting the roof for damage. Plaintiff observed Farbaky ring a prospective customer’s

          doorbell and heard him state that “he was from Weatherguard Construction” and that they

          were in the area inspecting roofs for hail damage. Plaintiff further observed Farbaky inform

          the customer that if they observed damage on the roof, the customer could fill out


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          defendant’s claim form and possibly qualify for a replacement roof. Once the form was

          completed, an insurance adjuster would set up an appointment with defendant to inspect the

          site and verify defendant’s report of damage. Once the insurance adjuster approved it, the

          customer would be paid by the insurance company for the damage to the roof under the

          customer’s insurance policy. The customer would then pay defendant to perform the roof

          repairs.

¶ 13          After the ride-along, plaintiff called Farbaky and informed him that plaintiff “accepted,

          you know, the position of coming aboard as far as being a claims specialist for

          Weatherguard.” Plaintiff was given a map of the geographic territory, as well as a

          Weatherguard hat and a Weatherguard jacket. Farbaky also provided plaintiff a script to read

          in which plaintiff would identify himself as being “ ‘from Weatherguard Construction

          Company.’ ”

¶ 14          In May 2007, Farbaky handed plaintiff a business card, which had the Weatherguard

          name on it. At approximately the same time, plaintiff received business cards with plaintiff’s

          name on them; those business cards also had the Weatherguard name on it. Farbaky also

          applied for a solicitor’s permit on plaintiff’s behalf with the City of Naperville. Plaintiff

          explained that the permit “allow[ed] Weatherguard employees” to solicit business in

          Naperville. Plaintiff further testified that Farbaky arranged for Weatherguard logos to be

          placed on the sides of plaintiff’s personal vehicle.

¶ 15          Plaintiff testified that after accepting the job, he began going out into his territory every

          day and approaching customers. If he obtained a contract with a customer, he would either

          bring a copy of the contract back to the office or would hand it to Farbaky if he was in the




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          area. Plaintiff would then be contacted when the insurance adjuster was going to be at the

          home so that plaintiff could be present for the inspection.

¶ 16          After approximately two weeks of work, plaintiff “started kind of feeling like [he had] a

          kind of like suspicion about the company.” Upon beginning work, plaintiff “was expected to

          be paid 20 percent of the total job,” based on his conversations with Farbaky. When he

          received his first paycheck, it was a personal check from Farbaky with the word “ ‘draw’ ”

          written on the memo line. Plaintiff was “in disbelief” that he was receiving a personal check

          and asked Farbaky about it. Plaintiff was told that the term “ ‘draw’ ” meant that the check

          was “[j]ust money being paid up front until [plaintiff] actually got the dollar amount that was

          due [to him] from the jobs that [he] got.” Plaintiff continued to receive regular personal

          checks from Farbaky with the word “ ‘draw’ ” written on the memo line. Plaintiff never

          received a payroll check from Farbaky and never received any checks from defendant.

          Plaintiff received a total of $2,900 in personal checks.

¶ 17          As time passed and plaintiff had not received any checks from defendant, he “wasn’t

          feeling *** real [sic] good about the company,” but continued working for several months.

          However, plaintiff was then offered a full-time job as a store manager at Lowe’s and plaintiff

          decided to accept that position. Plaintiff testified that he worked for a total of three months

          procuring contracts for defendant. During the month of April 2007, he worked 10 hours per

          day; during May and June, he was involved in store manager training at Lowe’s and spent

          approximately four to five hours a day procuring contracts for defendant. Plaintiff stopped

          procuring contracts in July.

¶ 18          Plaintiff identified an exhibit that was admitted into evidence as a listing of all

          homeowners whose contracts plaintiff had procured for defendant. In each instance, plaintiff


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           had obtained the customer’s signature on the contract, had turned the contract in to

           defendant, and had met with the insurance adjuster to inspect the damage. The list included

           the contract price for each of the contracts, which plaintiff testified was a combination of

           plaintiff’s own estimate as to the dollar value of the contract and what plaintiff had learned

           about the contract’s value from insurance adjusters.

¶ 19           On cross-examination, plaintiff testified that Farbaky assigned plaintiff the area in which

           plaintiff worked and that he never spoke with Brett or Matt MacDonald. Plaintiff never

           received a paycheck, W-2, or 1099 from defendant and never completed a W-4 for

           defendant. Plaintiff also testified that he did not have any documentation to support the prices

           listed on the exhibit.

¶ 20           On redirect examination, plaintiff testified that he and Farbaky had discussed plaintiff’s

           compensation and that “[plaintiff] was told by Dave that each contract would be 20 percent

           of the total job.” Farbaky and plaintiff “talked about a salary in excess of a six figure salary,

           talked about 100,000-plus just based off of the commission that you would get for each job.”

           Plaintiff testified that when he first met Farbaky, Farbaky told him that his title was a “[f]ield

           supervisor” and that his supervisor was Chad Hagen. Farbaky told plaintiff that he worked

           for defendant and did not ever mention DBar.

¶ 21           Plaintiff called Brett MacDonald, 1 the president and owner of defendant, as a witness.

           MacDonald testified that defendant obtained customers by hiring independent marketing

           companies to solicit business after a storm. MacDonald testified that invoices that had been

           admitted into evidence reflected payments and credits submitted to defendant.




               1
                  MacDonald’s name is spelled “McDonald” in a number of places throughout the record on appeal. We use
       the spelling MacDonald provided when asked to spell his name on the witness stand.

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¶ 22          MacDonald testified that defendant had an office in Schaumburg, that the Weatherguard

          name appeared outside the office building, that Weatherguard employees worked in that

          office, and that Farbaky had worked in that office. MacDonald testified that Weatherguard

          had written checks to Farbaky and issued a 1099 to Farbaky. MacDonald testified that

          Farbaky was never an employee of defendant and that he would “absolutely” tell Farbaky to

          indicate that DBar was an independent marketing company.

¶ 23          MacDonald testified that he “knew that there were people going out and representing

          themselves as claims specialists on behalf of Weatherguard” and admitted that there was

          nothing in writing requiring the claims specialists to indicate that they were independent

          contractors, not employees of defendant. However, he testified that “Dave, specifically, knew

          not to tell people he’s an employee, absolutely.”

¶ 24          On July 13, 2011, defendant filed a motion for a directed finding, arguing that plaintiff

          had failed to prove the allegations in his amended complaint. On July 22, 2011, the trial court

          denied Weatherguard’s motion, finding that plaintiff had established a prima facie case

          supporting the allegations of his amended complaint.

¶ 25          The bench trial resumed on November 9 and 10, 2011, with defendant’s case-in-chief.

          Defendant’s only witness was MacDonald, who testified that defendant worked with

          independent marketing companies to solicit business. MacDonald explained that “[i]f a storm

          hits, what we need is a marketing force or people to go out and sell or market our services.

          So what we do is we engage in a relationship with an independent company, whether it’s

          they act as an individual or they hire on a group [of] people. That’s up to them. They

          designate their own territory, and they implement their own marketing plan, and

          Weatherguard will build out those contracts as they are turned in.” MacDonald testified that


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          defendant and the marketing company would typically split the net commission: “[t]heir

          responsibilities for that split are they handle everything with the homeowner, the insurance

          company, the invoice, and the collections of payment, meeting the inspector, specking [sic] it

          out. Weatherguard’s obligation is to provide the service of building the roof or the siding and

          follow up on warranty work if there is a warranty issued.” MacDonald testified that at any

          given time, defendant had no fewer than three to five marketing companies soliciting

          business in the marketplace. Defendant did not have written agreements with the marketing

          companies.

¶ 26          MacDonald testified that he was familiar with DBar Enterprises, Inc., which was “Dave

          Farbaky’s company that we have done a lot of work with.” MacDonald testified that Farbaky

          was never an employee of defendant and that DBar was an independent marketing company

          with which defendant had a contract. Defendant placed no restrictions on the way in which

          its independent marketing companies solicited business for defendant and did not advise

          them as to how to conduct business or how to perform their hiring practices.

¶ 27          MacDonald testified that the first time he heard plaintiff’s name was when plaintiff’s

          attorney contacted defendant. At the time that plaintiff was soliciting business for defendant,

          MacDonald was the only person who could enter into an employment agreement with anyone

          working on the sales side of defendant. MacDonald testified that he never entered into any

          sort of contract with plaintiff, that nobody else had the authority to do so, and that Farbaky

          did not have the authority to bind defendant to any agreements.

¶ 28          MacDonald testified that for an independent marketing company to earn a commission, it

          was not enough simply to obtain a contract with a customer. MacDonald explained that “[f]or

          the marketing company to earn a commission, they have to market for the business, so they


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          have to find a territory that has damage. They have to get assigned. They have to meet with

          the adjuster. They have to go over scope with the adjuster, measure the project, inspect the

          project for the production, get the project turned into production. If there [are] any shortages

          on the job, it’s something they have to manage. They have to handle customers’ particular

          bills. They have to handle invoicing, and all checks, first payment and final payment.”

          MacDonald testified that in situations where a marketing company left the job before it was

          completed and another marketing company took over, the two marketing companies would

          “come up with some sort of an arrangement” to split the commission.

¶ 29          MacDonald testified that when defendant and a marketing company decided to work

          together, the marketing company was “granted access to use any marketing or promotional

          [materials] we have.” MacDonald testified that “[a]ny job they turn into Weatherguard, ***

          ten percent of that price goes into overhead. So it’s up to them. They can use as much of it or

          as little as they want. They usually find it’s to their benefit that the more materials we have

          out there they can use.” The overhead that the marketing companies paid also granted them

          access to the use of defendant’s office space.

¶ 30          MacDonald testified that the agreement between defendant and DBar provided for a 40%

          commission, so DBar would receive 40% of the net profit or loss once a job was paid in full.

¶ 31          MacDonald testified that he searched defendant’s records for all of the jobs that plaintiff

          alleged he was owed commission on, and compiled an exhibit containing copies of

          defendant’s payments for each of those jobs. Defendant’s exhibit no. 8, which was admitted

          into evidence, was a summary chart, with the columns representing (1) the job number

          defendant used to track the job, (2) the homeowner’s name, (3) whether commission was

          paid on the job, (4) the total profit on the job, (5) DBar’s 40% commission, (6) the 20%


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          commission plaintiff alleged he was owed, and (7) the check number used to pay the job. As

          to the 20% commission, MacDonald testified:

                     “Q. So if the Court gets to damages, these are the damages that are appropriate.

                     That would be owed by DBAR to Mr. Thomas, just so we are clear on this, and so

                 the net if you deduct those out, the net commissions that Mr. Thomas should have

                 received from DBAR would have been what in addition?

                     A. I wouldn’t say should have. I would say what he potentially could have been

                 owed by DBAR would be 12,126.

                     Q. Why do you say potentially?

                     A. Because if he were to receive a full commission of 20 percent, that would be

                 what he would be owed. I know through the course of testimony that Thomas did not

                 stay around to complete the projects, so I don’t understand if I’m in Dave’s position

                 why Dave would be paying him a full commission for only doing a quarter of the

                 work that needed to be completed on the file.”

          MacDonald further testified that defendant had paid DBar in full all commissions owed on

          the jobs identified by plaintiff as jobs he had procured.

¶ 32          On January 25, 2013, the trial court issued a written order and opinion on the case. The

          court found that defendant held Farbaky out as its agent and as a result an apparent agency

          relationship occurred, finding:

                 “It allowed him to respond to job applications put into the market by Weatherguard. It

                 allowed its name to be the sole business entity on Farbaky’s and Thomas’ business

                 cards. It allowed use of its offices, address, hats, jackets, car boards, marketing

                 materials, web-site advertising, use of its name exclusively in training scripts, use of

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                 its secretarial staff and more. Weatherguard had some control over the day to day

                 practices of the claims specialists. It provided the contracts bearing its name. It

                 communicated with homeowners’ insurance adjusters and to arrange days when the

                 adjuster would view the house. It contacted the claims specialists to know the days

                 when the adjuster would be at the house so that the claim specialist could make a

                 point of being present. Further, Weatherguard’s production manager has final say on

                 whether the contract will be completed by Weatherguard.”

¶ 33          The court found plaintiff’s testimony credible and found that “[h]e offered sufficient

          indicia to establish apparent agency, so the Court finds that Farbaky was at all relevant times

          an agent of Weatherguard.” Consequently, the court found that defendant was bound by the

          oral agreement between Farbaky and plaintiff for plaintiff to work as a claims specialist for

          defendant. The court further explained:

                     “This is all to say that Weatherguard failed to sufficiently distance itself from the

                 claims specialists and independent contractors in its advertising and job applications.

                 That it allowed the use of its name and logo without explaining the company’s

                 internal structure, and that Weatherguard possessed full knowledge that claims

                 specialists represented themselves as Weatherguard people supports the notion that

                 the company did very little to distance itself from the benefits associated with having

                 customers assume the claims specialists were in fact Weatherguard agents and

                 employees.

                     Thomas gave clear and uncontradicted testimony that Farbaky wore a

                 Weatherguard uniform at the Weatherguard offices[;] that Farbaky responded to

                 Weatherguard job applicants at the Weatherguard office and explained the business;


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                     that Farbaky provided Weatherguard marketing material to Thomas including hat,

                     jacket, car logos, business cards, and customer introduction scripts; that Thomas

                     procured a solicitor permit d/b/a Weatherguard; that Farbaky trained Thomas to

                     represent that he was from Weatherguard[;] that customer contracts included

                     Weatherguard logos on them; and that the contracts were turned in to the

                     Weatherguard office. Mr. McDonald [sic] testified that he paid Dave Farbaky 40%

                     commission on the contracts and paid Farbaky by personal checks. He also testified

                     that Farbaky could call himself anything he wanted to and had knowledge that

                     Farbaky represented himself as a field manager and a claims specialist for

                     Weatherguard.”

¶ 34            The court found that “there seems to be some lack of clarity as to whether the 20%

           commission was to be paid per contract secured minus any materials and build out costs” but

           nevertheless found that “Thomas and Weatherguard had an oral contract whereby Thomas

           was to receive commissions of 20% of the completed contract, the net, that he secured.” 2 The

           court noted that plaintiff kept records of the contracts he secured, basing his commissions on

           numbers supplied to him by the insurance adjuster on each contract or on “an educated

           estimate based upon his walking the roof and reviewing the damage and what he had learned

           on the job dealing with the insurance adjusters.” The court found that plaintiff was entitled to

           a 20% commission on the net value of each of the 31 completed contracts plaintiff secured

           and ordered that “[i]n determining the 20% net of each of the 31 contracts, the Court directs

           the Parties to figure out the amount due on commissions according to the finding above. In




                2
                Since the trial court found that there was a contract, it declined to rule on plaintiff’s alternative unjust
       enrichment claim.

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          other words, use 20% of the net profits from each contract secured by Mr. Thomas that was

          accepted and built out by Weatherguard.”

¶ 35          The court also found that defendant violated the Wage Payment Act. The court found that

          defendant was plaintiff’s employer for purposes of the Wage Payment Act because “Mr.

          McDonald’s [sic] conduct indicated a manifestation of mutual assent to enter into an

          agreement with Mr. Thomas.” The court further found that defendant “assume[d] the duty to

          pay Thomas according to a compensation formula.” The court found that “Weatherguard, per

          contract with Farbaky, paid Farbaky approximately 40% commission on contracts he

          secured. Farbaky told Thomas that Weatherguard would pay him 20% on contracts Thomas

          secured. Weatherguard not only indirectly paid Thomas but by virtue of the Court’s finding

          that Farbaky was Weatherguard’s agent, Weatherguard directly paid Thomas and assumed

          the duty to pay per a compensation formula. Further, Thomas acted directly in the interest of

          Weatherguard and the contracts he secured directly benefitted Weatherguard.”          Due to

          defendant’s violation of the Wage Payment Act, the court doubled the amount of the

          commission award.

¶ 36          On April 4, 2013, defendant filed “Objections to the Court’s Procedure for Establishing

          Damages and to Plaintiff’s Proposed Judgment Order,” in which it objected to the trial

          court’s procedure for establishing damages. On April 5, 2013, the trial court entered an order

          sustaining defendant’s objections and stating that the court would determine the amount of

          damages to be awarded.

¶ 37          On April 17, 2014, the trial court entered a written order awarding plaintiff damages. The

          court found that plaintiff was promised a commission of 20% per contract he secured for

          Weatherguard but that “[a]t trial, Mr. Thomas failed to prove up his damages in terms of the


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          net percentage of each contract he secured.” The court found that “[h]e gave credible

          testimony that he secured thirty-one contracts which benefitted Weatherguard and that the

          gross total on these contracts amounted to approximately two hundred twenty-three thousand,

          nine hundred thirty-two dollars and sixty cents ($223,932.60).” However, although plaintiff

          sought 20% of the gross amount of the contracts, the court had previously determined that he

          was entitled to 20% of the net amount.

¶ 38          The court noted that “[n]o documents admitted into evidence at trial produced the amount

          netted on the contracts,” but further noted that MacDonald’s testimony on behalf of

          Weatherguard indicated that “materials costs and build out costs, among other costs, reduced

          the gross amounts.” The court recounted MacDonald’s testimony that “in reviewing

          Defendant’s exhibit #8, he reviewed all the jobs where Mr. Thomas alleged he should have

          earned a commission and correlated these jobs to checks paid out by Weatherguard to D’Bar

          [sic] and that amount is approximately twelve thousand, one hundred twenty-six dollars and

          fifty-two cents ($12,126.52).” The court found:

                     “Because the court cannot rely upon the speculative amounts sought by the

                 Plaintiff, the court will rely upon the testimony of Mr. Brett MacDonald and award

                 Mr. Raymond Thomas a total amount of Eighteen thousand, four hundred fifty-three

                 dollars and four cents ($18,453.04). That number is calculated by the $12,126.52

                 amount less the draw amount already paid, which is two thousand, nine hundred

                 dollars ($2,900.00), or Nine thousand two hundred twenty-six dollars and fifty two

                 cents ($9,226.52[)], doubled, plus court costs.”

¶ 39          Defendant filed a motion to reconsider on May 16, 2014. In one of its arguments,

          defendant claimed that the trial court’s doubling of the commission amount pursuant to the


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          Wage Payment Act was an incorrect application of the law. In his response to defendant’s

          motion to reconsider, plaintiff argued that the trial court should have applied the 2011

          amendment to the Wage Payment Act, which added a provision providing for attorney fees

          and increased the penalty for nonpayment of wages.

¶ 40          On August 14, 2014, the trial court entered an order granting defendant’s motion to

          reconsider in part and denying it in part. The court vacated the April 17, 2014, judgment in

          part and awarded plaintiff $9,226.52 plus costs, striking the doubling of the damages award.

¶ 41          On September 11, 2014, plaintiff filed a notice of appeal in appeal No. 1-14-2785,

          appealing the modification of the damages award. On September 12, 2014, defendant filed a

          notice of appeal in appeal No. 1-14-2807. The two appeals were consolidated on November

          4, 2014.

¶ 42                                            ANALYSIS

¶ 43          On appeal, defendant argues that the trial court’s finding that Farbaky was defendant’s

          agent, its finding that plaintiff was entitled to a 20% commission, and its award of damages

          to plaintiff were against the manifest weight of the evidence. We note that defendant does not

          argue on appeal that it was not an employer under the Wage Payment Act or that plaintiff

          was not an employee under the Wage Payment Act; the only issue on appeal is whether the

          trial court erred in finding that plaintiff was defendant’s employee and not DBar’s. Thus, we

          have no need to consider the propriety of the trial court’s rulings on the applicability of the

          Wage Payment Act, other than its underlying findings that Farbaky had the apparent

          authority to hire plaintiff on defendant’s behalf and to enter into a binding contract with him.

¶ 44          Plaintiff, by contrast, argues that the trial court should have applied the amended Wage

          Payment Act to its damages award. We consider each argument in turn.


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¶ 45                                     I. Trial Court’s Findings

¶ 46          All three of defendant’s arguments are focused on the trial court’s findings. “The trial

          judge, as the trier of fact, is in a position superior to a reviewing court to observe witnesses

          while testifying, to judge their credibility, and to determine the weight their testimony should

          receive.” Bazydlo v. Volant, 164 Ill. 2d 207, 214-15 (1995). “A reviewing court should not

          overturn a trial court’s findings merely because it does not agree with the lower court or

          because it might have reached a different conclusion had it been the fact finder.” Bazydlo,

          164 Ill. 2d at 214. Consequently, we will not reverse the trial court’s judgment unless it is

          against the manifest weight of the evidence. Farmers Automobile Insurance Ass’n v.

          Gitelson, 344 Ill. App. 3d 888, 891-92 (2003). “A judgment is against the manifest weight of

          the evidence only when an opposite conclusion is apparent or when findings appear to be

          unreasonable, arbitrary, or not based on evidence.” Bazydlo, 164 Ill. 2d at 215.

¶ 47                                            A. Agency

¶ 48          Defendant first argues that the trial court erred in finding that defendant had created the

          appearance that Farbaky had the authority to hire plaintiff on defendant’s behalf. “Generally,

          the question of whether an agency relationship exists and the scope of the purported agent’s

          authority are questions of fact.” Kaporovskiy v. Grecian Delight Foods, Inc., 338 Ill. App. 3d

          206, 210 (2003). In the case at bar, we cannot find that it was against the manifest weight of

          the evidence for the trial court to find that Farbaky was defendant’s apparent agent for the

          purpose of hiring plaintiff.

¶ 49          Apparent authority is that authority which a reasonably prudent person would naturally

          suppose the agent to possess, given the words or conduct of the principal. State Security

          Insurance Co. v. Burgos, 145 Ill. 2d 423, 431-32 (1991). “It is a well-established precept of


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          agency law that a principal will be bound by the authority he appears to give to another, as

          well as that authority which he actually gives.” (Emphasis in original.) Burgos, 145 Ill. 2d at

          431 (citing Lynch v. Board of Education of Collinsville Community Unit District No. 10, 82

          Ill. 2d 415, 426 (1980)). Once the principal has created the appearance of authority, he is

          estopped from denying it to the detriment of a third party. Burgos, 145 Ill. 2d at 432. To

          establish apparent agency, the party alleging the existence of the agency must prove that (1)

          the principal or its agent acted in a manner that would lead a reasonable person to believe

          that the individual allegedly at fault was an employee or agent of the principal; (2) the

          principal had knowledge of and acquiesced in the acts of the agent; and (3) the injured party

          acted in reliance upon the conduct of the principal or its agent, consistent with ordinary care

          and prudence. Wilson v. Edward Hospital, 2012 IL 112898, ¶ 18.

¶ 50          In the case at bar, as the trial court noted:

                      “Defendant allowed [Farbaky] to respond to job applications put into the market

                  by Weatherguard. It allowed its name to be the sole business entity on Farbaky’s and

                  Thomas’ business cards. It allowed use of its offices, address, hats, jackets, car

                  boards, marketing materials, web-site advertising, use of its name exclusively in

                  training scripts, use of its secretarial staff and more. Weatherguard had some control

                  over the day to day practices of the claims specialists. It provided the contracts

                  bearing its name. It communicated with homeowners’ insurance adjusters and to

                  arrange days when the adjuster would view the house. It contacted the claims

                  specialists to know the days when the adjuster would be at the house so that the claim

                  specialist could make a point of being present. Further, Weatherguard’s production

                  manager has final say on whether the contract will be completed by Weatherguard.”


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          We agree with the trial court that such conduct would reasonably lead a person to believe that

          he was employed by defendant or an agent of defendant, not an employee or agent of an

          independent marketing company.

¶ 51          Defendant argues that this conduct demonstrated only that Farbaky was authorized to use

          defendant’s name in selling its services, not that Farbaky had the authority to hire plaintiff. In

          support, defendant cites Wing v. Lederer, 77 Ill. App. 2d 413 (1966). We do not find this

          argument persuasive. In Wing, the court rejected the plaintiff’s apparent authority claim

          because “[t]he plaintiff had no contact with [the defendant] either before or during the time in

          which the work was done, and [the defendant] neither did nor failed to do anything which

          would justify the plaintiff in assuming that [the purported agent] had authority to hire him.”

          Wing, 77 Ill. App. 2d at 417. In the case at bar, by contrast, plaintiff testified that he

          responded to an advertisement of defendant, arrived at defendant’s building, observed people

          with Weatherguard uniforms, and was given a Weatherguard business card, all of which

          MacDonald corroborated was permitted by defendant. Plaintiff further testified that Farbaky

          exclusively used defendant’s name and never mentioned DBar to plaintiff, even when

          plaintiff was interviewing for employment. We cannot find that it was against the manifest

          weight of the evidence for the trial court to conclude that a reasonable person would have

          believed that he was being hired to work for defendant.

¶ 52          Defendant further argues that plaintiff failed to exercise any diligence in determining

          whether Farbaky had the authority to hire him to work for defendant. Defendant is correct

          that one dealing with an agent has to act with reasonable diligence and prudence in

          determining the scope of the agent’s authority. Cove Management v. AFLAC, Inc., 2013 IL

          App (1st) 120884, ¶ 27. However, plaintiff testified that when he received a personal check


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          from Farabaky, he questioned Farbaky about it and was assured that it was merely an

          advance payment until plaintiff received his entire commission. The trial court heard

          plaintiff’s testimony and we will not second-guess the weight to be given his testimony. See

          Bazydlo, 164 Ill. 2d at 214-15 (“The trial judge, as the trier of fact, is in a position superior to

          a reviewing court to observe witnesses while testifying, to judge their credibility, and to

          determine the weight their testimony should receive.”). Accordingly, we cannot find that the

          trial court’s finding that Farbaky was defendant’s apparent agent was against the manifest

          weight of the evidence.

¶ 53                                           B. Oral Contract

¶ 54          Defendant next argues that the trial court erred in finding that Fabarky and plaintiff had

          agreed that plaintiff was entitled to 20% of the net profits on the contracts plaintiff secured.

          Plaintiff testified that Farbaky promised him that plaintiff would “be paid 20 percent of the

          total job.” In ruling, the trial court noted that “there seems to be some lack of clarity as to

          whether the 20% commission was to be paid per contract secured minus any materials and

          build out costs” but nevertheless found that “Thomas and Weatherguard had an oral contract

          whereby Thomas was to receive commissions of 20% of the completed contract, the net, that

          he secured.” We cannot find this finding to be against the manifest weight of the evidence.

¶ 55          “The existence of an oral contract, its terms, and the intent of the parties are questions of

          fact, and the trial court’s determinations on those questions will be disturbed only if they are

          against the manifest weight of the evidence.” Anderson v. Kohler, 397 Ill. App. 3d 773, 785

          (2009). In the case at bar, the trial court heard plaintiff’s testimony and determined that there

          was an oral contract in which plaintiff was entitled to a 20% commission on the net amount

          of the contracts he secured. Defendant contends that the trial court “rejected” plaintiff’s


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          testimony about the contract. However, the trial court merely noted that there was “some lack

          of clarity” as to whether the 20% was paid on a gross or net figure, and concluded that it

          should be paid on the net figure. Indeed, the trial court expressly noted that it found

          plaintiff’s testimony to be credible. Accordingly, it was not against the manifest weight of the

          evidence for the trial court to find that plaintiff and Farbaky had an oral contract for plaintiff

          to receive a 20% commission on the net amount of each contract plaintiff secured on behalf

          of defendant.

¶ 56                                            C. Damages

¶ 57          Finally, defendant argues that the trial court erred in awarding damages to plaintiff

          because plaintiff failed to prove his damages. “Damages are an essential element of a breach

          of contract action and a claimant’s failure to prove damages entitles the defendant to

          judgment as a matter of law.” In re Illinois Bell Telephone Link-Up II & Late Charge

          Litigation, 2013 IL App (1st) 113349, ¶ 19. In the case at bar, defendant argues that the trial

          court acknowledged that plaintiff’s evidence as to damages was speculative and accordingly,

          judgment should have been entered in its favor when it made its motion for a directed

          finding. We do not find this argument persuasive.

¶ 58          The trial court noted that plaintiff kept records of the contracts he secured, basing his

          commissions on numbers supplied to him by the insurance adjuster on each contract or on

          “an educated estimate based upon his walking the roof and reviewing the damage and what

          he had learned on the job dealing with the insurance adjusters.” Additionally, while testifying

          in plaintiff’s case-in-chief, MacDonald testified that invoices that had been admitted into

          evidence reflected payments and credits submitted to defendant. In determining whether a

          directed finding is appropriate, “[a] plaintiff must present at least some evidence on every


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          essential element of the cause of action or the defendant is entitled to judgment in his or her

          favor as a matter of law.” Sullivan v. Edward Hospital, 209 Ill. 2d 100, 123 (2004). Here,

          plaintiff did provide some evidence on damages in his case-in-chief and, accordingly,

          defendant was not entitled to a directed finding.

¶ 59          Furthermore, while testifying in defendant’s case-in-chief, MacDonald testified to a more

          precise damages amount, which the trial court relied on in its calculation of damages.

          Defendant argues that the trial court “mischaracterized” MacDonald’s testimony because he

          “testified that the $12,126.52 was not necessarily owed to” plaintiff. However, the trial court

          did not use MacDonald’s testimony to determine that plaintiff was entitled to 20% of the net

          proceeds. Instead, the trial court first determined that plaintiff was entitled to 20% of the net

          proceeds. Then, after making that determination, the trial court relied on MacDonald’s

          testimony, in which MacDonald had supplied the dollar amounts representing 20% of the net

          proceeds for each contract that plaintiff had secured. Thus, the trial court did not

          “mischaracterize” MacDonald’s testimony in any way. Accordingly, we cannot find that the

          trial court erred in awarding plaintiff damages and affirm the trial court’s judgment in

          plaintiff’s favor.

¶ 60                                       II. Wage Payment Act

¶ 61          In his appeal, plaintiff argues that the trial court erred by refusing to apply the 2011

          amendment to section 14 of the Wage Payment Act retroactively. The 2011 amendment

          added new language to the Wage Payment Act, which now provides:

                  “(a) Any employee not timely paid wages, final compensation, or wage supplements

                  by his or her employer as required by this Act shall be entitled to recover through a

                  claim filed with the Department of Labor or in a civil action, but not both, the amount


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       Nos. 1-14-2785, 1-14-2807 (cons.)


                 of any such underpayments and damages of 2% of the amount of any such

                 underpayments for each month following the date of payment during which such

                 underpayments remain unpaid. In a civil action, such employee shall also recover

                 costs and all reasonable attorney's fees.” 820 ILCS 115/14(a) (West 2010).

          Plaintiff argues that both the 2% monthly interest on unpaid wages and the attorney fees

          provisions of the amendment should be applied retroactively. We note that defendant does

          not make any argument concerning the applicability of the 2% monthly interest payment on

          unpaid wages. However, we consider both provisions in our analysis.

¶ 62          As an initial matter, defendant argues that plaintiff’s request to apply the amended statute

          is untimely, as it was raised for the first time in plaintiff’s response to defendant’s motion to

          reconsider. However, as plaintiff points out, part of defendant’s motion to reconsider was

          arguing that the trial court had not properly applied the Wage Payment Act in doubling

          plaintiff’s damages award. Thus, the proper application of the Wage Payment Act was raised

          by defendant in its motion to reconsider. Furthermore, forfeiture is an admonition to the

          parties, not a limitation upon the powers of courts of review. Flynn v. Ryan, 199 Ill. 2d 430,

          438 n.1 (2002). Accordingly, we choose to consider the merits of plaintiff’s argument.

¶ 63          Whether an amendment to a statute will be applied prospectively or retroactively is a

          matter of statutory construction. Deicke Center-Marklund Children’s Home v. Illinois Health

          Facilities Planning Board, 389 Ill. App. 3d 300, 303 (2009). Therefore, we review this issue

          de novo. Chicago Title Land Trust Co. v. Board of Trustees of the Village of Barrington, 376

          Ill. App. 3d 494, 498 (2007). De novo consideration means we perform the same analysis that

          a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).




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¶ 64          When called upon to determine whether an amended statute may be applied retroactively,

          Illinois courts follow the approach set forth by the United States Supreme Court in Landgraf

          v. USI Film Products, 511 U.S. 244 (1994). People ex rel. Madigan v. J.T. Einoder, Inc.,

          2015 IL 117193, ¶ 29. “The Landgraf analysis consists of two steps. First, if the legislature

          has expressly prescribed the statute's temporal reach, the expression of legislative intent must

          be given effect absent a constitutional prohibition. Second, if the statute contains no express

          provision regarding its temporal reach, the court must determine whether the new statute

          would have retroactive effect ***.” Allegis Realty Investors v. Novak, 223 Ill. 2d 318, 330-31

          (2006). Absent a retroactive effect, or impact, the amended statute will apply retroactively.

          Caveney v. Bower, 207 Ill. 2d 82, 91 (2003); see also Schweickert v. AG Services of America,

          Inc., 355 Ill. App. 3d 439, 442 (2005).

¶ 65          In Caveney v. Bower, 207 Ill. 2d 82, 94 (2003), the supreme court noted that Illinois

          courts will rarely need to go beyond step one of the Landgraf analysis. This is because an

          amendatory act which does not, itself, contain a clear indication of legislative intent

          regarding its temporal reach, will nevertheless be presumed to have been framed in view of

          the provisions of section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2000)). Caveney,

          207 Ill. 2d at 92. Construing this statutory language, the supreme court held that section 4

          “represents a clear legislative directive as to the temporal reach of statutory amendments and

          repeals: those that are procedural in nature may be applied retroactively, while those that are

          substantive may not.” Caveney, 207 Ill. 2d at 92.

¶ 66          “ ‘Procedure is the machinery for carrying on the suit, including pleading, process,

          evidence and practice, whether in the trial court, or in the processes by which causes are

          carried to the appellate courts for review, or laying the foundation for such review.’ ” Deicke,


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       Nos. 1-14-2785, 1-14-2807 (cons.)


          389 Ill. App. 3d at 303 (quoting Ogdon v. Gianakos, 415 Ill. 591, 596 (1953)). On the other

          hand, a substantive change in the law establishes, creates or defines rights. Schweickert, 355

          Ill. App. 3d at 443. Only those amendments that are procedural in nature may be applied

          retroactively. Schweickert, 355 Ill. App. 3d at 442.

¶ 67          However, even if a statutory amendment is procedural, it may not be applied retroactively

          if the statute would have a retroactive impact. Commonwealth Edison Co. v. Will County

          Collector, 196 Ill. 2d 27, 38 (2001). An amended statute will be deemed to have retroactive

          impact if application of the new statute would impair rights a party possessed when he acted,

          increase a party's liability for past conduct, or impose new duties with respect to transactions

          already completed. Allegis Realty, 223 Ill. 2d at 331.

¶ 68          In the case at bar, the parties agree that the 2011 amendment does not specifically

          indicate the temporal, or retroactive, reach of the amended statute. Thus, we begin by

          determining whether the 2011 amendment to section 14 of the Wage Payment Act is

          procedural or substantive. Defendant argues that the attorney fees portion of the 2011

          amendment cannot be applied retroactively because it creates a new type of liability and is

          therefore a substantive change. We do not find this argument persuasive.

¶ 69          Defendant relies primarily on People ex rel. Madigan v. J.T. Einoder, Inc., 2015 IL

          117193. In Einoder, the State filed a complaint against operators of an unpermitted landfill,

          alleging that the operators were dumping solid waste without a permit, in violation of the

          Environmental Protection Act (415 ILCS 5/1 et seq. (West 2000)). Einoder, 2015 IL 117193,

          ¶ 1. During the period that the landfill was operating, the part of the Environmental

          Protection Act that pertained to injunctions only permitted prohibitory injunctive relief, to

          restrain future violations. Einoder, 2015 IL 117193, ¶ 27. Accordingly, the State sought a


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       Nos. 1-14-2785, 1-14-2807 (cons.)


          preliminary injunction to prevent the landfill operators from future dumping of waste.

          Einoder, 2015 IL 117193, ¶ 14.

¶ 70          After the landfill had ceased operating and after the complaint was filed, the legislature

          passed an amendment to section 42(e) of the Environmental Protection Act, which allowed

          the State to seek a mandatory injunction to address past violations. Einoder, 2015 IL 117193,

          ¶ 1. Consequently, at the remedies phase of the bifurcated trial, the State additionally sought

          a mandatory injunction to force the landfill operators to remove the pile of solid waste.

          Einoder, 2015 IL 117193, ¶ 17. The landfill owners’ witness testified that the removal could

          cost between $65 and $130 million. Einoder, 2015 IL 117193, ¶ 18. While the State disputed

          the actual amount of the cost, even the State’s expert admitted that the mandatory injunction

          could cost the landfill owners $6.8 million in cleanup costs. Einoder, 2015 IL 117193, ¶ 18.

          The State argued that the amendment to section 42(e) was procedural in nature because it

          related to remedies, so it could apply retroactively. Einoder, 2015 IL 117193, ¶ 35.

¶ 71          The supreme court rejected the State’s argument that the amendment was procedural.

          Einoder, 2015 IL 117193, ¶ 36. Instead, the supreme court held that even though the

          amendment related to remedies for the State, the amendment also created an entirely new

          type of liability for the landfill owner, one that was not available under the preamended

          section 42(e). Einoder, 2015 IL 117193, ¶ 36. Citing Caveney, 207 Ill. 2d at 95, the supreme

          court held that the amendment’s creation of a new liability was a substantive change to the

          law that could not be applied retroactively. Einoder, 2015 IL 117193, ¶ 36.

¶ 72          Plaintiff argues that the amendment in this case is distinct from that at issue in Einoder

          because attorney fees were available prior to the 2011 amendment. We agree. The

          amendment in this case did not create the remedy of attorney fees in suits under the Wage


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       Nos. 1-14-2785, 1-14-2807 (cons.)


          Payment Act. Prior to the 2011 amendment, attorney fees could be sought in Wage Payment

          Act suits, under the Attorneys Fees in Wage Actions Act (705 ILCS 225/1 (West 2010)). The

          Attorneys Fees in Wage Actions Act provided a process to obtain attorney fees whenever an

          “employee brings an action for wages earned and due and owing according to the terms of

          the employment.” 705 ILCS 225/1 (West 2010). A suit brought under the Wage Payment Act

          falls within that category. See Andrews v. Kowa Printing Corp., 351 Ill. App. 3d 668, 683

          (2004), aff'd, 217 Ill. 2d 101 (2005); Schackleton v. Federal Signal Corp., 196 Ill. App. 3d

          437, 440 (1989). Thus, the provision of the 2011 amendment to section 14 of the Wage

          Payment Act that granted attorney fees merely changed the source of the statutory authority

          for a remedy that was already available to claimants.

¶ 73          By contrast, in Einoder, the amendment to the Environmental Protection Act provided a

          remedy to the State that was not available prior to the enactment of that amendment. At both

          the commencement of the lawsuit and all times when the landfill was operating, the landfill

          owners had no reason to suspect that they would be required to pay millions of dollars to

          remove the pile of solid waste. Not until the landfill ceased to operate was the mandatory

          injunction an option for the State. The mandatory injunction was an entirely new remedy and

          an entirely new liability. Therefore, the amendment in Einoder did more than alter procedure

          for remedies available to the State; it created a brand new one. See Einoder, 2015 IL 117193,

          ¶ 36. Because the attorney fees provision of the 2011 amendment does not create a new

          liability, but merely alters the statutory authority for that liability, that provision of the

          amendment is procedural.

¶ 74          However, while we agree with plaintiff concerning the attorney fees provision of the

          amendment, we cannot agree with its argument concerning the addition of an award of 2%


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       Nos. 1-14-2785, 1-14-2807 (cons.)


          monthly interest on the unpaid wages. To argue that the entire 2011 amendment to section 14

          of the Wage Payment Act is procedural, plaintiff relies in part on the analysis of the Northern

          District of Illinois in Brandl v. Superior Air-Ground Ambulance Service, Inc., No. 09 C

          06019, 2012 WL 7763427 (N.D. Ill. Dec. 7, 2012). The Northern District addressed the

          portion of the 2011 amendment to the Wage Payment Act that pertained to the 2% monthly

          interest on the unpaid wages. Brandl, 2012 WL 7763427, at *2. The court found that the

          amendment was procedural because it only related to remedies, which were traditionally

          given retroactive application in Illinois. Brandl, 2012 WL 7763427, at *2 (quoting Shoreline

          Towers Condominium Ass’n v. Gassman, 404 Ill. App. 3d 1013, 1023 (2010)). Therefore, the

          court applied the 2% monthly interest to the unpaid wages.

¶ 75          We decline to follow the Northern District’s reasoning in Brandl in light of the supreme

          court’s more recent decision in Einoder. The supreme court made clear in Einoder that when

          an amendment to a law creates a new liability, unavailable under the previous version of the

          law, that new liability is a substantive change. Einoder, 2015 IL 117193, ¶ 36. While the

          attorney fees were always a potential liability in this case, the 2% monthly interest on unpaid

          wages was not. Therefore, the 2% charge for each month of underpayment is a substantive

          change in the law and cannot be applied retroactively. Only the attorney fees provision of the

          amendment is procedural in nature.

¶ 76          A finding that the statutory change is procedural in nature, however, does not end our

          inquiry. Even if a statutory amendment is procedural, it may not be applied retroactively if

          the statute would have a retroactive impact or effect. An amended statute has a retroactive

          impact or effect if it (1) impairs rights that a party possessed when it acted, (2) increases a

          party's liability for past conduct, or (3) imposes new duties with respect to transactions


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          already completed. Schweickert, 355 Ill. App. 3d at 444. The attorney fees provision does not

          impair rights of the parties. The attorney fees provision also does not impose new duties on

          the parties, so the final step of our analysis considers the second possible retroactive impact:

          increased liability for past conduct.

¶ 77          We agree with plaintiff that the attorney fees do not increase liability for past conduct

          because the attorney fees were available before and after the 2011 amendment. Whether the

          amendment applied or not, defendant could be charged with reasonable attorney fees, either

          under the Attorneys Fees in Wage Actions Act or under the Wage Payment Act. The

          reasonableness of the fees would not change regardless of whether the amendment applied;

          so neither would the amount of the fees. Therefore, the attorney fees provision of the

          amendment does not have a retroactive impact and may be applied retroactively.

¶ 78          In the case at bar, the trial court denied plaintiff’s request for attorney fees because

          plaintiff did not meet the requirements for attorney fees under the Attorneys Fees in Wage

          Actions Act. Because the Wage Payment Act does not contain those requirements, we

          remand this case to the trial court for the limited purpose of applying the attorney fees

          provision of the 2011 amendment retroactively and awarding plaintiff “costs and all

          reasonable attorney's fees.” 820 ILCS 115/14(a) (West 2012).

¶ 79                                          CONCLUSION

¶ 80          We affirm the trial court’s judgment in plaintiff’s favor. However, we remand the case to

          the trial court for the limited purpose of determining reasonable attorney fees, as required by

          the 2011 amendment to the Wage Payment Act.

¶ 81          Affirmed; cause remanded for determination of attorney fees.




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