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                                    Appellate Court                          Date: 2019.04.16
                                                                             13:35:30 -05'00'



           Rico Industries, Inc. v. TLC Group, Inc., 2018 IL App (1st) 172279



Appellate Court        RICO INDUSTRIES, INC., Plaintiff and Counterdefendant-Appellee,
Caption                v. TLC GROUP, INC., Defendant and Counterplaintiff-Appellant.



District & No.         First District, Fourth Division
                       Docket No. 1-17-2279



Filed                  December 27, 2018



Decision Under         Appeal from the Circuit Court of Cook County, No. 12-CH-35979; the
Review                 Hon. Margaret Ann Brennan, Judge, presiding.



Judgment               Affirmed.


Counsel on             Alan E. Sohn, of Law Offices of Alan E. Sohn Chtrd., of Chicago, for
Appeal                 appellant.

                       Gary I. Blackman and Christina E. Lutz, of Levenfeld Pearlstein,
                       LLC, of Chicago, for appellee.



Panel                  JUSTICE GORDON delivered the judgment of the court, with
                       opinion.
                       Justices Reyes and Burke concurred in the judgment and opinion.
                                             OPINION

¶1        The instant appeal arises from an agreement between plaintiff, Rico Industries, Inc., and
     defendant, TLC Group, Inc., in which defendant was to be the exclusive sales representative of
     plaintiff’s products sold to Walmart. Plaintiff later sought to terminate the agreement, which
     contained a provision providing that it was only terminable upon the mutual consent of the
     parties, so plaintiff filed a complaint for declaratory judgment seeking a declaration that the
     agreement was terminable at will because it was a contract of indefinite duration. In return,
     defendant filed a number of counterclaims, alleging that it had not been paid all of the
     commissions to which it was entitled. Initially, the trial court granted defendant’s motion for
     judgment on the pleadings pursuant to section 2-615 of the Code of Civil Procedure (Code)
     (735 ILCS 5/2-615 (West 2012)), finding that the clause requiring a mutual agreement to
     terminate the contract was enforceable. However, the trial court granted plaintiff’s motion to
     certify the question for our review, and on appeal, we found that the contract was terminable at
     will because it was a contract of indefinite duration. Rico Industries, Inc. v. TLC Group, Inc.,
     2014 IL App (1st) 131522, ¶ 35. Accordingly, we reversed the trial court’s grant of judgment
     on the pleadings and remanded for further proceedings. After remand, defendant amended its
     counterclaims several times; the trial court dismissed the majority of the counts and granted
     summary judgment on the two that survived dismissal. On appeal, defendant challenges (1) the
     trial court’s grant of summary judgment on two counts of defendant’s second amended
     counterclaim, (2) the trial court’s dismissal of six counts of its amended counterclaims, and
     (3) several of the trial court’s evidentiary rulings. For the reasons that follow, we affirm.

¶2                                          BACKGROUND
¶3       On September 24, 2012, plaintiff filed a complaint for declaratory judgment, alleging that
     plaintiff was in the business of manufacturing and distributing gift and novelty products to
     retail markets and that, on December 17, 2007, plaintiff and defendant entered into a written
     sales commission agreement whereby defendant would serve as plaintiff’s sales representative
     with respect to certain products in Walmart stores. 1 The complaint alleged that plaintiff
     desired to terminate the agreement but that the agreement contained a provision providing that
     the agreement was terminable only upon the written consent of both parties. Accordingly, in
     count I of the complaint, plaintiff sought a declaratory judgment that such a clause was
     unenforceable as against public policy and that the agreement was terminable at will. In count
     II of the complaint, plaintiff alleged that there was a dispute as to whether defendant was owed
     commissions for sales of certain products to Walmart, and plaintiff sought resolution of that
     dispute.2
¶4       Attached to the complaint was a copy of the agreement, the entirety of which comprised
     approximately two-thirds of a page. As relevant to the instant appeal, the agreement provided
     the following with respect to commissions:
                 “When Products are sold to Wal-Mart (including store level purchases) or a
              purchase order is received by [plaintiff] from Wal-Mart, a commission is earned
        1
         The complaint was amended twice, most recently on January 7, 2013.
        2
         On appeal, neither count of the complaint is at issue; the only issues concern defendant’s
     counterclaims.

                                                -2-
              (Commission). Commissions shall be calculated by multiplying the flat rate of twelve
              per cent (12%) times the net sales. [Plaintiff] shall pay Commissions no later than the
              20th of the month following the day the Commission was earned.”
¶5        On January 16, 2013, defendant filed a motion to dismiss count I of the second amended
     complaint or, in the alternative, for judgment on the pleadings with respect to that count. On
     the same day, defendant filed an answer to count II of the second amended complaint and a
     five-count counterclaim, in which defendant raised claims for (1) an accounting; (2) breach of
     contract based on plaintiff’s alleged failure to pay commissions; (3) violation of the Arkansas
     sales representative statute (Arkansas Act) (Ark. Code Ann. § 4-70-301 et seq. (West 2012));
     (4) in the alternative, violation of the Illinois Sales Representative Act (Illinois Act) (820 ILCS
     120/0.01 et seq. (West 2012)); and (5) in the alternative, quantum meruit. All counts of the
     counterclaim were based on allegations that plaintiff had failed to pay commissions after it
     sought to terminate the agreement and on allegations that plaintiff had underpaid defendant
     commissions owed on prior sales.
¶6        On April 4, 2013, the trial court granted defendant’s motion for partial judgment on the
     pleadings, finding that the termination provision was not unenforceable as against public
     policy. Plaintiff requested the trial court to certify the question for interlocutory appeal, and on
     May 1, 2013, the trial court entered an order doing so. On June 6, 2013, we granted plaintiff’s
     petition for leave to appeal, and on February 7, 2014, we found that the termination provision
     was unenforceable as against public policy and, accordingly, reversed the grant of defendant’s
     motion for judgment on the pleadings and remanded the case to the trial court. Rico Industries,
     Inc., 2014 IL App (1st) 131522, ¶¶ 35-36.
¶7        On April 2, 2014, plaintiff filed a motion to dismiss all counts of defendant’s counterclaim
     pursuant to section 2-615 of the Code, and on July 17, 2014, the trial court granted the motion
     without prejudice. On August 14, 2014, defendant filed an amended counterclaim, and on
     September 25, 2014, plaintiff filed a motion to dismiss the amended counterclaim pursuant to
     section 2-615 of the Code. On March 17, 2015, the trial court granted the motion to dismiss and
     gave defendant leave to replead its counterclaim. On the same day, the trial court entered an
     order transferring the case from the chancery division to the law division because only contract
     claims for money damages remained.
¶8        On April 28, 2015, defendant filed its second amended counterclaim, in which it stated
     seven causes of action. Count I was for violation of the Arkansas Act (Ark. Code Ann.
     § 4-70-301 et seq. (West 2012)), alleging that defendant was an Arkansas corporation and that
     all in-person communications between the parties occurred in Arkansas and all meetings and
     orders with respect to Walmart occurred in Arkansas and claiming the parties were subject to
     the Arkansas Act. Count I alleged that plaintiff used defendant’s services until Walmart
     selected plaintiff as a “preferred vendor” in 2012, after which plaintiff “concluded that it no
     longer needed [defendant] to preserve and enhance its relationship with Wal-Mart” and
     thereafter tried to modify or, in the alternative, terminate the agreement between the parties.
     Count I alleged that plaintiff failed to pay defendant any commissions after September 2012
     and also underpaid defendant for commissions it was owed between December 2007 and
     September 2012. Count I alleged that under the Arkansas Act, this conduct entitled defendant
     to treble damages, plus attorney fees and costs.




                                                  -3-
¶9         Count II was pleaded in the alternative and alleged violations of the Arkansas Act limited
       to the failure to pay commissions on purchase orders and sales dated prior to September 24,
       2012.
¶ 10       Count III was pleaded in the alternative and was for violation of the Illinois Act (820 ILCS
       120/0.01 et seq. (West 2012)). As with count I, count III alleged that plaintiff failed to pay
       commissions after September 2012, as well as underpaid commissions owed prior to that date.
       As with the Arkansas Act, defendant alleged that the Illinois Act entitled it to treble damages,
       plus attorney fees and costs.
¶ 11       Count IV, like count II, was pleaded in the alternative and alleged violations of the Illinois
       Act limited to the failure to pay commissions on purchase orders and sales dated prior to
       September 24, 2012.
¶ 12       Count V was pleaded in the alternative and was for promissory estoppel, alleging that
       defendant relied upon plaintiff’s promises made in the agreement and that, in reliance on that
       agreement, defendant lost the business of other vendors that it had previously represented with
       respect to Walmart and the opportunity to represent those vendors to Walmart. Count V sought
       commissions on all purchase orders issued by Walmart to plaintiff after September 24, 2012,
       for the purchase of goods and merchandise covered by the terms of the agreement.
¶ 13       Count VI was based on the procuring cause doctrine, and alleged that as of September 24,
       2012, defendant had already begun putting together plans for Walmart’s 2013 fall football
       program and had shown Walmart all of plaintiff’s products for the 2013 April Major League
       Baseball (MLB) program. Count VI alleged that Walmart had “verbally committed to placing
       with [plaintiff] the purchase orders for said products for both programs,” which count VI
       alleged were estimated to be in the range of $3 to $5 million. Count VI alleged that “[i]t was
       then and had been the practice and procedure of Wal-Mart” that once Walmart had committed
       to placing purchase orders for a program, Walmart would, in fact, place the purchase orders for
       that program. Count VI alleged that, “[b]ased on the timing and stage of the process, and the
       practice and procedure of Wal-Mart aforesaid, and the fact that [plaintiff] had been placed in
       the position of being a preferred vendor to Wal-Mart through [defendant’s] efforts as
       aforesaid, there existed a reasonable degree of certainty that said purchase orders would be
       issued to and were issued to [plaintiff].” Count VI alleged that, as the procuring cause of the
       purchase orders, defendant was entitled to commissions on the orders.
¶ 14       Finally, count VII was pleaded in the alternative and was for quantum meruit. Count VII
       alleged that plaintiff had been unjustly enriched by receipt and enjoyment of defendant’s
       services without payment of commissions to defendant.
¶ 15       On September 25, 2015, plaintiff filed a motion to dismiss defendant’s second amended
       counterclaim pursuant to section 2-615 of the Code. Plaintiff argued that defendant failed to
       state a cause of action with respect to each count of its counterclaim. As a preliminary matter,
       plaintiff claimed that defendant’s counterclaim attempted to reinstate the agreement, when our
       earlier opinion had expressly found that the agreement was terminable at will. With respect to
       counts I and II, involving the Arkansas Act, plaintiff claimed that Illinois law should apply.
       With respect to counts III and IV, involving the Illinois Act, plaintiff claimed that the
       counterclaim did not allege conduct so egregious as to rise to the level of quasicriminal
       conduct, which is required to state a claim for treble damages. With respect to count V, for
       promissory estoppel, plaintiff claimed that such a cause of action was not available in the
       presence of an enforceable contract between the parties. With respect to count VI, for

                                                   -4-
       procuring cause, plaintiff claimed that such a cause of action was only available where the
       contract did not expressly provide for when commissions will be paid, which was not the case
       in the case at bar. Finally, with respect to count VII, for quantum meruit, plaintiff claimed that
       quasicontractual recovery was unavailable where the parties had an express contract governing
       the issue.
¶ 16        On January 8, 2016, the trial court entered an order dismissing counts I, II, III, V, and VII
       of defendant’s second amended counterclaim for failure to state a cause of action. With respect
       to counts I and III, the counts seeking commissions after September 24, 2012, under the
       Arkansas Act and the Illinois Act, respectively, the trial court found that defendant could not
       state a cause of action because both prior trial court rulings and our appellate court opinion
       found that the agreement was justifiably terminated because the termination clause was against
       public policy. With respect to count II, concerning the Arkansas Act, the trial court found that
       Illinois, not Arkansas, law applied and that defendant’s “backdoor attempt to undermine the
       First District Appellate Court’s ruling is unpersuasive.” The court found that when we
       determined that the agreement was properly terminated, we “ruled that the Contract is to be
       governed under Illinois Law and the law of the case applies.” With respect to counts V and VII,
       for promissory estoppel and quantum meruit, respectively, the trial court found that neither
       cause of action was available where there was an express contract between the parties
       concerning the same subject matter.
¶ 17        The trial court, however, denied the motion to dismiss with respect to counts IV and VI.
       With respect to count IV, concerning violation of the Illinois Act for unpaid commissions prior
       to the termination of the agreement, the trial court found that defendant’s allegations that
       plaintiff intentionally and fraudulently failed to pay commissions owed to defendant within 13
       days of termination were sufficient to state a cause of action at the pleading stage of the
       proceedings. Finally, with respect to count VI, concerning the procuring cause doctrine, the
       trial court found that the agreement was ambiguous as to whether commissions were limited to
       the term of the contract or could be earned after its termination. Accordingly, the trial court
       found that defendant had stated a cause of action with respect to that count.
¶ 18        On June 8, 2016, defendant filed a motion for leave to file an amendment to its second
       amended counterclaim, which was granted on June 27, 2016. The amendment to the second
       amended counterclaim added a count VIII for “procuring cause for commissions earned on
       reorders and replenishments by Wal-Mart after September 24, 2012,” claiming that defendant
       was owed commissions for reorders and replenishments even after September 24, 2012,
       because it was the procuring cause of such orders.
¶ 19        On July 19, 2016, defendant filed a motion to compel plaintiff to provide certain
       documents in discovery concerning the sales of goods to Walmart. Defendant claimed that
       plaintiff had produced approximately 7000 pages of documents but that they were
       disorganized and only a fraction were responsive to the document requests. However,
       defendant claimed that these documents showed that plaintiff could produce the information
       when it desired to, demonstrating that plaintiff was not unable to produce the rest of the
       documents as it claimed. Accordingly, defendant sought an order directing plaintiff to produce
       (1) its internal sales reports, commission statements, and records of purchase orders that it
       received from Walmart since December 17, 2007; (2) all documentation available to plaintiff
       from Walmart’s electronic data system or otherwise concerning or relating to the purchase
       orders issued by Walmart to plaintiff from and after September 24, 2012, for the 2013 MLB

                                                   -5-
       program and the 2013 football program (which was also known as the “Back to School”
       program); and (3) its internal sales reports, commission statements, and records of purchase
       orders that it received from Walmart since September 24, 2012, that were for replenishments
       or reorders of products for which Walmart had issued purchase orders to plaintiff between
       December 17, 2007, and September 24, 2012, and for the 2013 MLB program and the 2013
       Back to School football program.
¶ 20        On July 25, 2016, plaintiff filed a motion to dismiss defendant’s amendment to its second
       amended counterclaim3 pursuant to section 2-615 of the Code, claiming that defendant’s new
       procuring cause count, which sought commissions on all reorders even where defendant had
       already received commissions on the initial order, was simply a repackaging of defendant’s
       quantum meruit claim, which had previously been dismissed. Plaintiff also argued that the
       procuring cause doctrine had no applicability to the instant case, where the language of the
       agreement governed the payment of commissions.
¶ 21        On August 1, 2016, the trial court entered an order in which it ordered plaintiff “to produce
       any commission or sales reports in its possession responsive to [defendant’s] requests to
       produce to date. [Plaintiff] is not obligated to create any reports not in its possession.” On
       October 20, 2016, the trial court entered a case management order in which it ordered that
       plaintiff “shall file a certificate of compliance that it has fully complied with its obligations to
       produce documents by October 28, 2016.”
¶ 22        On October 28, 2016, the trial court entered an order granting plaintiff’s motion to dismiss
       defendant’s amendment to its counterclaim. The trial court found that the amendment sought
       commissions for reorders of products that plaintiff had previously sold to Walmart and that
       defendant “had no involvement with these reorders, and cannot allege that it procured these
       specific sales.” Accordingly, the trial court dismissed defendant’s amendment to its second
       amended counterclaim with prejudice. On November 30, 2016, defendant filed a motion to
       reconsider the dismissal or, in the alternative, to give it leave to amend, which was denied by
       the trial court on January 18, 2017.
¶ 23        On March 29, 2017, plaintiff filed a motion for summary judgment on the two remaining
       counts of defendant’s second amended counterclaim: count IV, concerning violations of the
       Illinois Act, and count VI, concerning the procuring cause doctrine. With respect to count IV
       for violation of the Illinois Act, plaintiff argued that it was entitled to summary judgment
       because the Illinois Act was not applicable because it was not intended to provide a remedy to
       a representative that was challenging the termination itself and when the representative was
       unable to identify a specific commission for which it was unpaid. Plaintiff further argued that,
       since defendant challenged plaintiff’s right to terminate the agreement, it would have been
       impossible for plaintiff to pay whatever was owed within 13 days of termination and that its
       declaratory judgment action insulated it from liability. Plaintiff also argued that defendant
       ratified whatever commissions were paid to it, as defendant had “complete and unfettered


           3
            We note that the file-stamped copy of the amendment to the second amended counterclaim
       contained in the record on appeal bears the date of September 22, 2016. Plaintiff’s motion to dismiss the
       amendment appears to have been based on the proposed amendment that was attached to defendant’s
       motion for leave to file the amendment. However, the new procuring cause count of the proposed
       amendment is identical to the subsequently filed amendment.

                                                       -6-
       access” to plaintiff’s sales reports at all times and received checks and e-mails specifically
       referencing the commission percentage it was being paid on certain sales.
¶ 24       With respect to count VI for procuring cause, plaintiff argued that it was entitled to
       summary judgment because informal discussions with Walmart, or even verbal commitments,
       did not obligate Walmart to purchase anything from plaintiff.
¶ 25       Attached to the motion for summary judgment were a number of excerpts from deposition
       transcripts. First, in his discovery deposition, Tony Caire, defendant’s principal owner,
       testified that he was unaware that he had been underpaid until he received information in
       discovery from Walmart and that plaintiff had repeatedly refused his requests for information.
       Caire testified that he discovered defendant was being paid 4%, not 12%, on some sales and
       that he was unaware of this fact at the time; Caire denied that he had a separate arrangement
       with plaintiff in which defendant would accept 4% commissions on local, in-store sales as
       opposed to the 12% it received for corporate sales. However, he admitted that he recalled a
       number of conversations to that effect with plaintiff in 2010 and received several checks that
       indicated a 4% commission. Caire also testified that there were occasions where he asked
       plaintiff to send him sales reports but that plaintiff did not always send them. With respect to
       orders, Caire testified that he was entitled to commissions once Walmart “gave the okay that
       there was going to be an order,” not when the purchase order was actually placed. Caire
       testified that Walmart would verbally commit to an order 9 to 12 months in advance so that the
       supplier could begin processing the product but would not send in a purchase order until 30 to
       60 days prior to the shipment date. With respect to damages, Caire testified that he did not have
       the necessary information to compute the dollar amount of his damages. Caire testified that his
       employees had access to Walmart’s Retail Link software, but that he did not, and the access
       was terminated “probably sometime in 2011 or late 2010.”
¶ 26       Next, in an evidence deposition, Corbin Cauldwell testified that he worked for defendant
       from August 2007 until September 2011 as a category manager. He had access to Retail Link,
       which was a proprietary product from Walmart that permitted sales reports to be generated and
       had the ability to generate any reports that defendant requested concerning its relationship with
       Walmart. He did not recall Caire ever asking him to run Retail Link reports in order to confirm
       sales and determine what the commissions should be. Cauldwell testified that he had Retail
       Link access until the time he left defendant’s employment, at which point his replacement took
       over. Cauldwell testified that he worked closely with Daniel Schack from plaintiff in order to
       put corporate sales programs together and following up to determine how plaintiff’s product
       was performing in the stores. Cauldwell further testified that a vendor like plaintiff could
       obtain orders both from the corporate side, using a representative like defendant, and through
       local, in-store representatives. If a local representative was used, that representative would be
       entitled to a commission. Cauldwell recalled there being an issue where defendant also wanted
       to be paid commissions on the local representatives’ sales but could not recall how that issue
       was resolved.
¶ 27       One of the exhibits to Cauldwell’s deposition was a supplier agreement between Walmart
       and plaintiff. The supplier agreement defined “Order” as “any written or electronic purchase
       order for Merchandise issued by Company through an Authorized Buyer.” Paragraph 2 of the
       supplier agreement concerned orders and provided, in relevant part:
                “Projections, past purchasing history and representations about quantities to be
                purchased are not binding, and Company shall not be liable for any act or expenditure

                                                   -7-
               (including but not limited to expenditures for equipment, labor, materials, packaging or
               capital expenditures) by Supplier in reliance on them. Company may cancel all or any
               part of an Order at any time prior to shipment.”
       Paragraph 34 of the supplier agreement was entitled “No Business Expectation” and provided:
               “Company has no obligation and makes no promises to purchase any minimum amount
               of Merchandise from Supplier. No person has authority, on Company’s behalf, to make
               any representations or promises to Supplier of any expected or possible level of
               business with Supplier or about Company’s intentions or expectations regarding any
               present or future business with Supplier. Company will never assume that Supplier will
               be willing to continue to deliver Merchandise under this Agreement or to accept any
               specific volume of Orders. Conversely, Supplier should never assume that Company
               will issue Orders for specific volumes, if any, of Merchandise, even if Supplier’s
               impression is based on discussions Supplier may have had with Company
               representatives. No Company representative has authority to order Merchandise except
               an Authorized Buyer through an Order issued pursuant to and subject to the terms of
               this Agreement.”
¶ 28       In his evidence deposition, Scott Malm testified that he worked for defendant from
       mid-August 2011 until January 2012 and worked as Cauldwell’s “right-hand man.” Malm had
       access to Retail Link for the entire time he was employed by defendant and would regularly
       generate reports, including sales numbers.
¶ 29       In his discovery deposition, Daniel Schack, vice president of sales for plaintiff, testified
       that “various people” at defendant had access to Retail Link and that even Caire sent him a
       Retail Link report on one occasion. Additionally, in an affidavit, Schack swore to the accuracy
       of a number of e-mail communications between plaintiff and defendant in which sales data was
       shared.
¶ 30       In his evidence deposition, Bryan Ford testified that he worked for defendant from
       November 2011 through December 2012 and had worked at Walmart for 10 to 11 years prior
       thereto. Ford testified that, while working at Walmart, it was his understanding that Walmart
       did not have any obligation to purchase goods from a supplier in the absence of an active
       purchase order. For defendant, Ford was a category analyst, working to build relationships
       with the buyers for all of the suppliers that defendant managed. Ford testified that Walmart
       revoked defendant’s Retail Link access in early 2012 and that Walmart indicated that it was
       considering terminating its relationship with defendant and consolidating its sports licensing
       business under one management group. Ford testified that, when working with plaintiff,
       defendant would be paid a 12% commission for corporate sales. If plaintiff used a local
       representative, separate from defendant, plaintiff would pay the local representative a similar
       commission. Ford testified that it would not make “financial sense” for plaintiff to pay both the
       local representative and defendant the same commission on the same sale since plaintiff would
       not have the margins to support such payments and defendant did not have anything to do with
       such sales. Ford recalled there being an issue between plaintiff and defendant in which Caire
       wanted to be paid for sales made by local representatives, and plaintiff agreed to pay
       “something” for those sales; he could not recall the precise number but, when informed it was
       4%, testified that “being able to afford to pay somebody else an additional four percent for
       something that they weren’t even a part of I think is very generous because I would have
       offered them zero.” Ford testified that it was “really easy to calculate what your commission

                                                   -8-
       should be” because defendant’s business was seasonal and involved only one or two purchase
       orders per season. Ford testified that Walmart would make verbal or written commitments
       several months in advance but could change its mind and not place its order, in which case the
       supplier was left with the inventory. Ford testified that plaintiff sent defendant checks once a
       week and that the checks would be placed on Caire’s desk until Caire deposited them. Ford
       testified that sometimes Caire would contact plaintiff and ask to be paid commissions in
       advance of the purchase orders coming in.
¶ 31        Finally, in her evidence deposition, Shelley Tabor testified that she worked for Walmart as
       a buyer from 1995 until 2009, after which she briefly consulted for defendant with respect to
       its dealings with Walmart. Tabor testified that when she worked at Walmart, it was the normal
       course of dealing and was included as a term in supplier agreements that Walmart had no
       obligation to purchase a product until a purchase order was actually placed.
¶ 32        On April 24, 2017, defendant filed a motion to deem certain facts admitted by plaintiff.
       Defendant claimed that, in its requests to admit, it had requested that plaintiff admit the
       accuracy of a “paid history report” produced by Walmart in response to a subpoena issued to
       Walmart by defendant, as well as the accuracy of a document providing the “invoice date,
       invoice number, amount paid, item number and department number” of all of plaintiff’s sales
       to Walmart between January 1, 2007, through February 4, 2013. Plaintiff’s response to both
       requests was that it could not admit or deny either of them because the documents were not
       attached. Defendant claimed that, because these documents had been previously produced,
       they were not required to be attached to the requests to admit and plaintiff therefore should be
       deemed to have admitted the accuracy of the documents. Defendant further claimed that
       plaintiff had its own records and could compare them with the documents produced by
       Walmart to confirm their accuracy.
¶ 33        In response, plaintiff argued that the documents were prepared by Walmart and that
       plaintiff was not in a position to authenticate documents that it had not prepared. Plaintiff
       further claimed that it had raised its objections in 2014, and defendant never filed a motion to
       compel or sought to have the issue decided by the court until three years later. On May 1, 2017,
       the trial court denied defendant’s motion to deem the facts admitted.
¶ 34        On June 12, 2017, defendant filed a response to the motion for summary judgment, arguing
       that the Illinois Act was applicable. Defendant further argued that it never agreed to accept a
       4% commission on direct-store sales and that Caire had no way of knowing that plaintiff was
       underpaying defendant. Defendant also argued that it was not required to allege in its
       complaint the specific amount of its damages and was only required to prove the amount once
       at trial. Finally, defendant argued that it was the procuring cause of the 2013 MLB and football
       programs and that plaintiff had not produced any evidence of any other procuring cause.
¶ 35        On the same day, defendant filed the affidavit of Caire, 4 in which he averred that Retail
       Link was a proprietary program created by Walmart and that defendant never had a Retail Link
       ID or password. Caire averred that Cauldwell, who worked at defendant’s offices, was a
       category manager for Walmart, which gave him access to Retail Link. With respect to
       commission checks, Caire averred that defendant received checks from plaintiff on a weekly

          4
           This affidavit does not appear to have been attached to defendant’s response to the motion for
       summary judgment. A different affidavit from Caire was attached to the response, attesting to the
       accuracy of the documents attached to the response.

                                                   -9-
       basis, but the checks were rarely connected with a specific purchase order and plaintiff did not
       provide commission reports with the checks. Caire averred that many of the checks were for
       periodic payments that were connected to Walmart’s commitments to plaintiff to purchase
       items in the future or were for balances owed to defendant as a result of purchase orders
       generating commissions that were in excess of the amounts previously paid. Caire averred that
       plaintiff considered commitments by Walmart to purchase products in the future to be the
       equivalent of products being “sold” to Walmart and paid commissions on those sales. Caire
       averred that he was unaware that he was being paid less than 12% on certain orders and, on the
       “rare occasion” that he received a check indicating a 4% commission, he would call plaintiff
       and demand the discrepancy be corrected. Caire averred that he never agreed to modify the
       agreement to accept a lower commission on direct-store sales.
¶ 36       On July 10, 2017, plaintiff filed a motion to strike Caire’s affidavit, as well as documents
       attached to defendant’s response to the motion for summary judgment that were produced by
       Walmart. With respect to Caire’s affidavit, plaintiff argued that the affidavit was based on
       matters not within Caire’s personal knowledge or were supported by inadmissible documents
       or documents not previously produced. Plaintiff also argued that defendant’s exhibit No. 1(b),
       a 5425-page document produced by Walmart, 5 was inadmissible because there was no
       evidentiary foundation. Plaintiff claimed that the only foundation was Caire’s second affidavit,
       which was attached to the response to the motion for summary judgment and merely attested
       that the documents were “true and correct copies of documents including e-mails and other
       records produced to [defendant] during the course of this litigation in response to subpoenas,
       request to produce or the website of Wal-Mart.” Plaintiff further claimed that these documents
       were “incomprehensible as presented” and merely listed invoice numbers and amounts without
       referencing how any of the invoices pertained to defendant, what work defendant did to
       generate a commission on the invoices, what products were sold to generate the invoices, or
       include a copy of the invoices themselves. Plaintiff also sought to strike several other exhibits
       that had not been previously produced.
¶ 37       In response to the motion to strike, in addition to arguments that the challenged documents
       should not be stricken, defendant attached a “Certificate of Authenticity of Domestic Business
       Records Pursuant to Federal Rule of Evidence 902(11)” from Walmart, dated July 31, 2017, in
       which a senior paralegal averred that he was the custodian of records for Walmart, that the
       documents produced by Walmart were made at or near the time of the occurrence by a person
       with knowledge of those matters, that the records were kept in the course of a regularly
       conducted business activity of Walmart, and that the records were made by Walmart as a
       regular practice.
¶ 38       On August 15, 2017, parties came before the trial court for a hearing on the motion for
       summary judgment and the motion to strike. With respect to the motion to strike, the trial court
       found that Caire’s affidavit did not comply with the requirements of Illinois Supreme Court
       Rule 191 (eff. Jan. 4, 2013) because much of the affidavit was based on matters not within his
       personal knowledge. The court also found with respect to the Illinois Act, that defendant had
       failed to establish the amount owed under the statute. The trial court entered an order granting
       summary judgment in plaintiff’s favor on counts IV and VI of the second amended
       counterclaim. This appeal follows.

          5
           This exhibit is not contained in the record on appeal.

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¶ 39                                             ANALYSIS
¶ 40        On appeal, defendant raises challenges to a number of the trial court’s rulings: (1) that the
       trial court erred in granting summary judgment on counts IV and VI of the second amended
       counterclaim; (2) that the trial court erred in dismissing counts I, II, and III of the second
       amended counterclaim and count VIII of the amendment to the second amended counterclaim;
       and (3) that the trial court erred in several of its evidentiary rulings.
¶ 41        As an initial matter, we note that the parties make arguments about the sufficiency of
       defendant’s brief on appeal and that defendant’s brief was the subject of a motion to strike by
       plaintiff. We denied the motion to strike because plaintiff was able to file an adequate response
       to the brief and, as a result, was not prejudiced by its deficiency. However, we agree with
       plaintiff that defendant’s brief contains serious deficiencies that hindered our review of the
       issues presented by defendant. For instance, defendant’s statement of facts (which is
       unnumbered and not included in defendant’s certification concerning the length of its brief)
       contains very few citations to the record on appeal, and the bulk of the statement of facts are
       taken from the affidavit of Caire, which was stricken by the trial court. Additionally, the
       statement of facts contains absolutely no information about (1) the procedural posture of the
       case; (2) the allegations contained in any of the pleadings, including the counts at issue on
       appeal; and (3) the trial court’s rulings or reasoning on any issue before this court. Illinois
       Supreme Court Rule 341(h)(6) (eff. Nov. 1, 2017) requires that an appellant’s statement of
       facts “contain the facts necessary to an understanding of the case, stated accurately and fairly
       without argument or comment, and with appropriate reference to the pages of the record on
       appeal.” Supreme court rules are not advisory suggestions but rules to be followed. In re
       Marriage of Hluska, 2011 IL App (1st) 092636, ¶ 57; In re Estate of Michalak, 404 Ill. App. 3d
       75, 99 (2010). “Where an appellant’s brief fails to comply with supreme court rules, this court
       has the inherent authority to dismiss the appeal.” Epstein v. Galuska, 362 Ill. App. 3d 36, 42
       (2005) (citing In re Marriage of Gallagher, 256 Ill. App. 3d 439, 442 (1993)). In the case at
       bar, we previously declined to strike defendant’s brief because plaintiff was able to file an
       adequate response to it, and we do not revisit that decision here. However, the fact that we
       chose not to strike defendant’s brief should in no way be taken by defendant as an indication
       that its brief was appropriate in light of the serious deficiencies contained within it.

¶ 42                                 I. Motion for Summary Judgment
¶ 43        Turning, then, to the merits of defendant’s appeal, we first consider the trial court’s grant of
       summary judgment on counts IV and VI of the second amended counterclaim. A trial court is
       permitted to grant summary judgment only “if the pleadings, depositions, and admissions on
       file, together with the affidavits, if any, show that there is no genuine issue as to any material
       fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS
       5/2-1005(c) (West 2016). The trial court must view these documents and exhibits in the light
       most favorable to the nonmoving party. Home Insurance Co. v. Cincinnati Insurance Co., 213
       Ill. 2d 307, 315 (2004). We review a trial court’s decision to grant a motion for summary
       judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90,
       102 (1992). 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).
¶ 44        “Summary judgment is a drastic measure and should only be granted if the movant’s right
       to judgment is clear and free from doubt.” Outboard Marine Corp., 154 Ill. 2d at 102.

                                                    - 11 -
       However, “[m]ere speculation, conjecture, or guess is insufficient to withstand summary
       judgment.” Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328 (1999). The party
       moving for summary judgment bears the initial burden of proof. Nedzvekas v. Fung, 374 Ill.
       App. 3d 618, 624 (2007). The movant may meet his burden of proof either by affirmatively
       showing that some element of the case must be resolved in his favor or by establishing “ ‘that
       there is an absence of evidence to support the nonmoving party’s case.’ ” Nedzvekas, 374 Ill.
       App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). “ ‘The purpose of
       summary judgment is not to try an issue of fact but *** to determine whether a triable issue of
       fact exists.’ ” Schrager v. North Community Bank, 328 Ill. App. 3d 696, 708 (2002) (quoting
       Luu v. Kim, 323 Ill. App. 3d 946, 952 (2001)). We may affirm on any basis appearing in the
       record, whether or not the trial court relied on that basis or its reasoning was correct. Ray
       Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50 (1992).

¶ 45                                        A. Evidentiary Rulings
¶ 46       Defendant first claims that the trial court erred in several of its evidentiary rulings related to
       the motion for summary judgment. Specifically, defendant challenges (1) the trial court’s
       refusal to consider the report produced by Walmart, (2) the trial court’s denial of defendant’s
       motion to compel, (3) the trial court’s denial of defendant’s motion to deem facts admitted, and
       (4) the trial court’s striking of Caire’s affidavit.
¶ 47       First, defendant claims that the trial court erred in refusing to consider the report produced
       by Walmart because it was admissible as a certified business record. The determination that a
       record is admissible as a business record rests within the sound discretion of the trial court, and
       such a decision will not be reversed absent an abuse of that discretion. Northbrook Bank &
       Trust Co. v. Abbas, 2018 IL App (1st) 162972, ¶ 45. “An abuse of discretion occurs when the
       ruling is arbitrary, fanciful, or unreasonable, or where there is an application of impermissible
       legal criteria.” Northbrook Bank & Trust, 2018 IL App (1st) 162972, ¶ 45. In the case at bar,
       we cannot find that the trial court abused its discretion in finding a lack of foundation for
       admission of the report. To admit business records into evidence as an exception to the general
       rule excluding hearsay, the proponent must lay a proper foundation by demonstrating that the
       records were made (1) in the regular course of business, (2) at or near the time of the event or
       occurrence, and (3) that it was the regular course of business to maintain such a record. Ill. R.
       Evid. 803(6) (eff. Apr. 26, 2012); see also Northbrook Bank & Trust, 2018 IL App (1st)
       162972, ¶ 47 (citing Gulino v. Economy Fire & Casualty Co., 2012 IL App (1st) 102429,
       ¶ 27). Here, the trial court found that Caire was not able to lay a foundation for the report
       because he did not have any personal knowledge concerning the generation of the report. We
       cannot find this determination to be an abuse of discretion, especially since the bulk of Caire’s
       representations before the trial court involved the claim that he had no knowledge of sales
       information.
¶ 48       Defendant also claims that the report was self-authenticating under Illinois Rule of
       Evidence 902(11) (eff. Jan. 1, 2011), because defendant provided a certification from
       Walmart’s custodian of records. However, this certification was only provided in response to
       plaintiff’s motion to strike the report and was dated July 31, 2017, over a month after defendant
       filed the report as an exhibit in response to the motion for summary judgment. We thus cannot
       find it was an abuse of discretion for the trial court to decline to consider the certification. We
       also note that the report itself is not contained in the record on appeal, so we have no way of

                                                    - 12 -
       reviewing the contents of the report, but plaintiff claims that the report is incomprehensible
       without someone to explain it. Accordingly, we cannot find that the trial court abused its
       discretion in declining to consider it.
¶ 49        Similarly, we can find no error in the trial court’s striking of Caire’s affidavit. Under
       Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013), an affidavit submitted in connection
       with a motion for summary judgment
                 “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.”
       “An affidavit submitted in the summary judgment context serves as a substitute for testimony
       at trial. [Citation.] Therefore, it is necessary that there be strict compliance with Rule 191(a) ‘to
       insure that trial judges are presented with valid evidentiary facts upon which to base a
       decision.’ ” Robidoux v. Oliphant, 201 Ill. 2d 324, 335-36 (2002) (quoting Solon v. Godbole,
       163 Ill. App. 3d 845, 851 (1987)). In the case at bar, we agree with the trial court that Caire’s
       affidavit did not satisfy the requirements of Rule 191. A great deal of the affidavit was based
       on matters not within his personal knowledge, such as his statements concerning the Retail
       Link system and statements concerning plaintiff’s interpretation of when a product was “sold.”
       Similarly, many of the documents on which Caire’s affidavit relied were documents such as
       internet printouts or plaintiff’s internal e-mails on which Caire was not included and not based
       on his personal knowledge. Accordingly, we cannot find that the trial court erred in striking his
       affidavit.
¶ 50        Finally, we cannot find that the trial court erred in denying defendant’s motion to compel
       or motion to deem facts admitted. “Trial courts are vested with wide discretion in ruling on
       discovery matters, and a reviewing court will not disturb a trial court’s discovery rulings absent
       an abuse of that discretion.” Bankers Life & Casualty Co. v. American Senior Benefits LLC,
       2017 IL App (1st) 160687, ¶ 29. In the case at bar, defendant filed a motion to compel plaintiff
       to plaintiff to produce (1) its internal sales reports, commission statements, and records of
       purchase orders that it received from Walmart since December 17, 2007; (2) all documentation
       available to plaintiff from Walmart’s electronic data system or otherwise concerning or
       relating to the purchase orders issued by Walmart to plaintiff from and after September 24,
       2012, for the 2013 MLB program and the 2013 Back to School football program; and (3) its
       internal sales reports, commission statements, and records of purchase orders that it received
       from Walmart since September 24, 2012, that were for replenishments or reorders of products
       for which Walmart had issued purchase orders to plaintiff between December 17, 2007, and
       September 24, 2012, and for the 2013 MLB program and the 2013 Back to School football
       program. The trial court entered two orders in response to this motion. First, on August 1,
       2016, the trial court entered an order in which it ordered plaintiff “to produce any commission
       or sales reports in its possession responsive to [defendant’s] requests to produce to date.
       [Plaintiff] is not obligated to create any reports not in its possession.” Second, on October 20,
       2016, the trial court entered a case management order in which it ordered that plaintiff “shall
       file a certificate of compliance that it has fully complied with its obligations to produce
       documents by October 28, 2016.”

                                                    - 13 -
¶ 51       There is no indication that plaintiff failed to comply with those requests. Defendant
       nevertheless claims that plaintiff did not produce all of the documents in its possession.
       However, defendant provides no facts or evidence in support of this assertion other than its
       claim that plaintiff’s position that no further records existed was “inconceivable.” We also note
       that defendant did not file any additional motions or produce any facts showing that plaintiff’s
       production in light of these court orders was incomplete. Accordingly, we cannot find any
       error in the trial court’s resolution of the motion to compel.
¶ 52       Similarly, with respect to the motion to deem facts admitted, defendant claimed that, in its
       requests to admit, it had requested that plaintiff admit the accuracy of a “paid history report”
       produced by Walmart in response to a subpoena issued to Walmart by defendant, as well as the
       accuracy of a document providing the “invoice date, invoice number, amount paid, item
       number and department number” of all of plaintiff’s sales to Walmart between January 1,
       2007, through February 4, 2013. The trial court denied defendant’s motion on May 1, 2017.
       We cannot find that the trial court abused its discretion in doing so. As plaintiff noted before
       the trial court, plaintiff was not in a position to admit or deny the authenticity of the documents
       because they were prepared by Walmart, not by plaintiff. Additionally, as plaintiff noted,
       plaintiff raised its objections in 2014, and defendant took no further action until 2017.
       Accordingly, we cannot find that the trial court abused its discretion in denying the motion to
       deem facts admitted.

¶ 53                                             B. Count IV
¶ 54       Turning to the merits of the trial court’s summary judgment rulings, defendant first argues
       that the trial court erred in granting summary judgment on count IV, concerning violation of
       the Illinois Act, on the basis that defendant was unable to prove its damages. Under the Illinois
       Act:
                “All commissions due at the time of termination of a contract between a sales
                representative and principal shall be paid within 13 days of termination, and
                commissions that become due after termination shall be paid within 13 days of the date
                on which such commissions become due. Any provision in any contract between a
                sales representative and principal purporting to waive any of the provisions of this Act
                shall be void.” 820 ILCS 120/2 (West 2012).
¶ 55       Further, under section 3 of the Illinois Act:
                “A principal who fails to comply with the provisions of Section 2 concerning timely
                payment or with any contractual provision concerning timely payment of commissions
                due upon the termination of the contract with the sales representative, shall be liable in
                a civil action for exemplary damages in an amount which does not exceed 3 times the
                amount of the commissions owed to the sales representative. Additionally, such
                principal shall pay the sales representative’s reasonable attorney fees and court costs.”
                820 ILCS 120/3 (West 2012).
¶ 56       In the case at bar, the trial court found that summary judgment was appropriate because
       defendant could not establish the amount of its damages. “A plaintiff must prove damages to a
       reasonable degree of certainty, and evidence cannot be remote, speculative, or uncertain.”
       Dowd & Dowd, Ltd. v. Gleason, 352 Ill. App. 3d 365, 383 (2004). The party seeking damages
       bears the burden to establish not only that it has sustained damages but also a reasonable basis,
       or formula, for computation of those damages. Kay v. Prolix Packaging, Inc., 2013 IL App

                                                   - 14 -
       (1st) 112455, ¶ 33. In his deposition, Caire testified that he was unable to compute the amount
       of damages owed due to incomplete information; however, even in its response to the motion
       for summary judgment, defendant still did not include any calculation of damages or formula
       to be used in computation of those damages other than asserting that it would be able to prove
       them at trial. Defendant claims that the report provided by Walmart would have shown the
       amount of damages, but, as discussed above, that report was properly stricken by the trial court
       and cannot be used as a basis for damages under those circumstances. Furthermore, there is no
       indication that such a document would have provided the information necessary, as it
       apparently included only invoice numbers with no way of tying the invoices to sales made by
       defendant. Defendant also claims that Caire would have been competent to testify to the
       amount of commissions due. However, defendant does not explain how Caire would be able to
       do so in the absence of the Walmart report. Accordingly, we cannot find that the trial court
       erred in granting summary judgment on count IV.

¶ 57                                               C. Count VI
¶ 58       Defendant also claims that the trial court erred in granting summary judgment on count VI
       of the second amended counterclaim, concerning the procuring cause doctrine. Defendant
       claimed that it was entitled to commissions on the 2013 MLB and Back to School fall football
       programs because it was the procuring cause of those sales. Under the doctrine of procuring
       cause, “a party may be entitled to commissions on sales made after the termination of a
       contract if that party procured the sales through its activities prior to termination.” Technical
       Representatives, Inc. v. Richardson-Merrell, Inc., 107 Ill. App. 3d 830, 833 (1982). The
       doctrine is “designed to protect a salesperson who, although no longer an agent or employee
       when the sale is made, has done everything necessary to effect the sale.” Solo Sales, Inc. v.
       North America OMCG, Inc., 299 Ill. App. 3d 850, 852 (1998). In employing the doctrine,
       courts “are attempting to remedy the harsh nature of ‘at will’ contracts.” Scheduling Corp. of
       America v. Massello, 151 Ill. App. 3d 565, 570 (1987). However, the procuring cause rule is a
       default rule and applies “only if the contract does not expressly provide when commissions
       will be paid.” Technical Representatives, 107 Ill. App. 3d at 833.
¶ 59       In the case at bar, we agree with plaintiff that defendant’s argument is not entirely clear. At
       times, defendant appears to be arguing that the verbal commitments made by Walmart
       constituted “sales” so as to entitle it to commissions. At others, defendant appears to argue that
       the “sales” occurred later but that its efforts prior to termination were sufficient to entitle it to
       commissions. As the procuring cause doctrine applies only to the latter situation, it is that
       situation we discuss.
¶ 60       Defendant claims that by the time of its termination, Walmart had committed to placing its
       orders for both programs and so there was nothing left to do other than fulfill the orders.
       However, the only support for these assertions is Caire’s affidavit, which, as discussed above,
       was properly stricken. Multiple witnesses testified in their depositions that Walmart was not
       obligated to purchase any products until after a purchase order was placed. Furthermore, Ford
       testified in his deposition that while it was likely that defendant had done some work on the
       MLB program, it was unlikely that it would have begun working on the Back to School fall
       football program. “A plaintiff is not required to prove its case at the summary judgment stage.
       A plaintiff must, however, present some facts to support the elements of its claim,” and show
       that a factual issue exists. Technical Representatives, 107 Ill. App. 3d at 833. In the case at bar,

                                                    - 15 -
       defendant has not presented any evidence as to what work it had performed on the two
       programs prior to its termination. Accordingly, we cannot find that the trial court erred in
       granting summary judgment on the procuring cause claim.

¶ 61                                        II. Motions to Dismiss
¶ 62        Defendant also challenges the trial court’s dismissal of counts I, II, and III of the second
       amended counterclaim and count VIII of the amendment to the second amended counterclaim.
       All of the counts were dismissed pursuant to section 2-615 of the Code. A motion to dismiss
       under section 2-615 of the Code challenges the legal sufficiency of the complaint by alleging
       defects on its face. Young v. Bryco Arms, 213 Ill. 2d 433, 440 (2004); Wakulich v. Mraz, 203
       Ill. 2d 223, 228 (2003). The critical inquiry is whether the allegations in the complaint are
       sufficient to state a cause of action upon which relief may be granted. Wakulich, 203 Ill. 2d at
       228. In making this determination, all well-pleaded facts in the complaint and all reasonable
       inferences that may be drawn from those facts are taken as true. Young, 213 Ill. 2d at 441. In
       addition, we construe the allegations in the complaint in the light most favorable to the
       plaintiff. Young, 213 Ill. 2d at 441. We review de novo an order granting a section 2-615
       motion to dismiss. Young, 213 Ill. 2d at 440; Wakulich, 203 Ill. 2d at 228. As noted, de novo
       consideration means we perform the same analysis that a trial judge would perform. Khan, 408
       Ill. App. 3d at 578. Again, we may affirm on any basis appearing in the record, whether or not
       the trial court relied on that basis or its reasoning was correct. Ray Dancer, 230 Ill. App. 3d at
       50.

¶ 63                                          A. Counts I and II
¶ 64        Defendant claims that the trial court erred in dismissing counts I and II, which were based
       on violations of the Arkansas Act, because Arkansas, not Illinois, law should apply to the
       instant case. A choice-of-law determination is required only when a difference in law will
       make a difference in the outcome. Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 155
       (2007). In the case at bar, the difference between the Illinois Act and the Arkansas Act
       concerns the availability of treble damages. As discussed above, the Illinois Act permits the
       imposition of treble damages for violations. 820 ILCS 120/3 (West 2012). However, Illinois
       courts have found that treble damages are not automatic under the Illinois Act but instead are
       left to the trial court’s discretion. See, e.g., Installco Inc. v. Whiting Corp., 336 Ill. App. 3d
       776, 784 (2002); Maher & Associates, Inc. v. Quality Cabinets, 267 Ill. App. 3d 69, 80 (1994).
       By contrast, the Arkansas Act does not appear to vest the trial court with any discretion on the
       matter, providing that a principal who violates the Arkansas Act “is liable to the sales
       representative in a civil action for three (3) times the damages sustained by the sales
       representative, plus reasonable attorney’s fees and costs.” Ark. Code Ann. § 4-70-306 (West
       2012). Thus, we must determine which law applies.
¶ 65        “Subject to constitutional limitations, the forum court applies the choice-of-law rules of its
       own state.” Townsend, 227 Ill. 2d at 155. In contract cases, Illinois applies the “most
       significant contacts” test, set forth in the Restatement (Second) of Conflict of Laws. Safeco
       Insurance Co. v. Jelen, 381 Ill. App. 3d 576, 580 (2008). Under that test, the court looks to
       factors such as the place of contracting; the place of negotiations; the place of performance; the
       location of the subject matter of the contract; and the domicile, residence, nationality, place of
       incorporation, and place of business of the parties. Restatement (Second) of Conflict of Laws

                                                   - 16 -
       § 188 (1971). However, this test “is a guide for courts; it is not black-letter law to be upheld
       against all other considerations.” Maher, 267 Ill. App. 3d at 77. “Illinois is among those States
       that generally follow the modern approach to choice-of-law questions, and this approach
       places the greatest importance on the public policy of the State in which a case is brought.”
       Maher, 267 Ill. App. 3d at 77.
¶ 66       In the case at bar, the complaint alleges, and defendant does not dispute, that the contract
       was negotiated and entered into at plaintiff’s offices in Illinois, that Caire traveled to Illinois to
       negotiate the contract, and that the contract was executed in Illinois. The contract did not
       include a clause that a particular state’s law would apply. Additionally, our courts have found
       that the Illinois Act, which includes an anti-waiver clause, represents a “fundamental public
       policy” of the state. Maher, 267 Ill. App. 3d at 76; English Co. v. Northwest Envirocon, Inc.,
       278 Ill. App. 3d 406, 410 (1996). While defendant may have been located in Arkansas and
       Walmart’s corporate offices were located in Arkansas, we cannot find that these facts mean
       that the law of Arkansas should apply instead of the law of Illinois. Consequently, the trial
       court properly dismissed the two counts of the second amended counterclaim that were based
       on the Arkansas Act.

¶ 67                                             B. Count III
¶ 68        Defendant also challenges the trial court’s dismissal of count III of its second amended
       counterclaim, which alleged that plaintiff violated the Illinois Act by failing to pay
       commissions on orders placed after the termination. Defendant claims that plaintiff was
       precluded from terminating the agreement under the doctrine of opportunistic advantage and,
       accordingly, defendant was entitled to commissions for orders placed after September 2012. A
       covenant of fair dealing and good faith is implied into every contract. Foster Enterprises, Inc.
       v. Germania Federal Savings & Loan Ass’n, 97 Ill. App. 3d 22, 28 (1981); see also J&B Steel
       Contractors, Inc. v. C. Iber & Sons, Inc., 162 Ill. 2d 265, 278 (1994). Thus, a party is not
       permitted to engage in “opportunistic advantage-taking,” or “lack of cooperation depriving the
       other contracting party of his reasonable expectations.” Hentze v. Unverfehrt, 237 Ill. App. 3d
       606, 611 (1992). In its brief, defendant claims that “the exercise by [plaintiff] of its purported
       right to terminate the agreement, based solely upon a judicially created aversion to contracts
       for an indefinite term, was not only contrary to the reasonable expectation of the parties, it was
       directly contrary to their express written promise and in bad faith.” However, “ ‘[t]he duty of
       good faith and fair dealing does not override the clear right to terminate at will, since no
       obligation can be implied which would be inconsistent with and destructive of the unfettered
       right to terminate at will.’ ” Mid-West Energy Consultants, Inc. v. Covenant Home, Inc., 352
       Ill. App. 3d 160, 164 (2004) (quoting Jespersen v. Minnesota Mining & Manufacturing Co.,
       288 Ill. App. 3d 889, 895 (1997), aff’d, 183 Ill. 2d 290 (1998)). Defendant identifies no “bad
       faith” conduct on the part of plaintiff other than its deciding that it no longer wished to use
       defendant’s services and sought to enforce its right to terminate the contract. We thus cannot
       find that the trial court erred in dismissing count III of the second amended counterclaim.

¶ 69                                        C. Count VIII
¶ 70       Finally, defendant argues that the trial court erred in dismissing count VIII of the
       amendment to the second amended counterclaim, in which defendant claimed that it was
       entitled to commissions on reorders and replenishments after September 2012 pursuant to the

                                                    - 17 -
       procuring cause doctrine. The trial court dismissed this count because it found that defendant
       “had no involvement with these reorders, and cannot allege that it procured these specific
       sales.” Defendant’s only argument is that it is entitled to commissions because it was involved
       in the procurement of initial sales of the product. However, defendant provides no authority for
       the theory that it is entitled to commissions in perpetuity on new orders placed on the product
       after its termination simply because Walmart is purchasing something it had previously
       purchased. The procuring cause doctrine is intended for the situation in which a salesman is
       discharged prior to the culmination of a sale but after he has done everything necessary to
       effect the sale. Heuvelman v. Triplett Electrical Instrument Co., 23 Ill. App. 2d 231, 237
       (1959). It is not intended to permit perpetual commissions where the salesperson has done
       nothing additional to effect the sale. We find the cases relied upon by defendant entirely
       distinguishable on this point, as they involved action on the part of the salesperson.
       Accordingly, we cannot find that the trial court erred in dismissing count VIII of the
       amendment to the second amended counterclaim.

¶ 71                                        CONCLUSION
¶ 72      For the reasons set forth above, we affirm the trial court’s judgment in all respects.

¶ 73      Affirmed.




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