                                  Illinois Official Reports

                                          Appellate Court



                Johnson v. Safeguard Construction Co., 2013 IL App (1st) 123616




Appellate Court              SCOTT JOHNSON, Plaintiff-Appellant, v. SAFEGUARD
Caption                      CONSTRUCTION COMPANY, INC., Defendant-Appellee.



District & No.               First District, First Division
                             Docket No. 1-12-3616


Filed                        December 30, 2013



Held                         In an action arising from plaintiff’s complaint about being denied a
(Note: This syllabus         substantial commission in his work as a representative of defendant
constitutes no part of the   corporation, which was in the business of restoring storm-damaged
opinion of the court but     homes by sending out representatives like plaintiff to meet with
has been prepared by the     homeowners, talk with insurance adjusters, and obtain contracts for
Reporter of Decisions        restoration work to be done by subcontractors using products meeting
for the convenience of       the preferences of the homeowners, the trial court properly entered
the reader.)                 summary judgment for defendant corporation on the count of
                             plaintiff’s complaint alleging that defendant violated the Sales
                             Representative Act, since defendant was not a purveyor of tangible
                             goods, defendant was not a “principal” for purposes of the Act, and the
                             Act did not apply.



Decision Under               Appeal from the Circuit Court of Cook County, No. 11-L-13695; the
Review                       Hon. Raymond W. Mitchell, Judge, presiding.



Judgment                     Affirmed.
     Counsel on               Law Offices of Richard D. Grossman, of Chicago (Richard D.
     Appeal                   Grossman, of counsel), for appellant.

                              Vedder Price P.C., of Chicago (Chad A. Schiefelbein, Joseph K.
                              Mulherin, and Benjamin A. Hartsock, of counsel), for appellee.


     Panel                    JUSTICE CUNNINGHAM delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Connors and Justice Hoffman concurred in the
                              judgment and opinion.


                                             OPINION

¶1          This appeal arises from the October 31, 2012 order entered by the circuit court of Cook
       County, which granted summary judgment on count I of a complaint in favor of defendant
       Safeguard Construction Company, Inc. (Safeguard), and denied summary judgment on count
       II in favor of plaintiff Scott Johnson (Johnson). Following Johnson’s voluntary dismissal of the
       surviving count of the complaint, the circuit court entered a final order. On appeal, Johnson
       argues that the circuit court erred in granting summary judgment on count I of the complaint.
       For the following reasons, we affirm the judgment of the circuit court of Cook County.

¶2                                         BACKGROUND
¶3         Safeguard is an Illinois corporation engaged in the business of insurance restoration by
       facilitating the repair of damaged homes. According to the deposition testimony of Kevin
       Schultz (Schultz), the owner of Safeguard, Safeguard dispatches independent sales
       representatives to storm-damaged areas for the purpose of interviewing homeowners about the
       damage to their homes, interfacing with insurance adjusters, and obtaining contracts from
       homeowners for the restoration of their damaged homes. Safeguard does not perform the
       actual repair work, but subcontracts the repair work to third parties, to whom Safeguard relays
       the homeowners’ preferences for the use of specific products and brands of products in the
       repair process.
¶4         On March 15, 2011, Johnson entered into an agreement with Safeguard by which he
       became Safeguard’s independent sales representative “for the sale of Safeguard products and
       services.” Pursuant to paragraph 6(c)(ii) of the agreement, Safeguard agreed to indemnify and
       hold Johnson harmless against any and all liabilities “arising directly or indirectly from the
       manufacturing of any Safeguard product or any services provided by Safeguard.” Paragraph 4
       of the agreement provided that, in consideration for the services performed by Johnson,
       Safeguard agreed to pay Johnson a percentage of its net profits. Johnson’s summarized duties
       and responsibilities were set forth in a document entitled “Field Representative (Next Steps).”

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¶5          On July 22, 2011, Safeguard cancelled its agreement with Johnson, after he allegedly
       complained to Safeguard that it had deprived him of a substantial commission by “going
       around him” on the procurement of a roofing job involving a church in Bolingbrook, Illinois.
¶6          In a letter dated August 5, 2011, Safeguard conveyed to Johnson that his “outstanding
       earned commissions” would not be paid unless Johnson agreed to waive any and all claims
       arising out of their agreement, or arising out of Johnson’s independent contractor relationship
       with Safeguard. Johnson refused to sign a proposed waiver of his rights.
¶7          On December 20, 2011, Johnson filed a two-count complaint against Safeguard, alleging
       that Safeguard violated the Sales Representative Act (820 ILCS 120/0.01 et seq. (West 2010))
       (count I), and engaged in breach of contract (count II). Thereafter, the parties engaged in the
       discovery process.
¶8          On September 18, 2012, Safeguard filed a motion for summary judgment in which it
       argued that Safeguard was not subject to the Sales Representative Act and that it did not breach
       its agreement with Johnson.
¶9          On October 31, 2012, the circuit court entered an order granting Safeguard’s motion for
       summary judgment as to the Sales Representative Act claim (count I), but denying the motion
       as to the breach of contract claim (count II). Thereafter, on November 6, 2012, Johnson filed a
       motion to voluntarily dismiss the surviving breach of contract claim (count II) of his
       complaint, pursuant to section 2-1009 of the Code of Civil Procedure (735 ILCS 5/2-1009
       (West 2010)). On November 7, 2012, the circuit court entered an order granting Johnson’s
       motion to voluntarily dismiss. The order further stated that it was a “final order” and that “final
       judgment is entered on count I.”
¶ 10        On December 4, 2012, Johnson filed a notice of appeal.

¶ 11                                         ANALYSIS
¶ 12       The sole issue on appeal is whether the circuit court erred in granting summary judgment
       with respect to the Sales Representative Act claim (count I) of the complaint in favor of
       Safeguard, which we review de novo. 1 See Collins v. St. Paul Mercury Insurance Co., 381 Ill.
       App. 3d 41, 45 (2008).
¶ 13       Johnson argues that the circuit court erred in granting summary judgment in favor of
       Safeguard. Specifically, he contends that Safeguard was subject to the Sales Representative
       Act because it was a “principal” within the meaning of the statute, and thus, the entry of
       summary judgment was erroneous.
¶ 14       Safeguard counters that the circuit court properly granted summary judgment on the Sales
       Representative Act claim (count I) of the complaint. Safeguard asserts that Johnson’s
       argument that Safeguard was a “purveyor of tangible goods” was without factual support, and
       that his arguments also lacked legal support.

          1
            Safeguard erroneously states that Johnson failed to include any reference to the appropriate
       standard of review, which was actually properly included on page 3 of Johnson’s opening brief on
       appeal.
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¶ 15       Summary judgment is proper where “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 2010). “In considering a motion for summary judgment, the court must view the record
       in the light most favorable to the nonmoving party.” Pielet v. Pielet, 407 Ill. App. 3d 474, 490
       (2010). “The purpose of summary judgment is not to try a question of fact, but to determine
       whether one exists” that would preclude the entry of judgment as a matter of law. Land v.
       Board of Education of the City of Chicago, 202 Ill. 2d 414, 421 (2002). “Thus, although the
       nonmoving party is not required to prove his case in response to a motion for summary
       judgment, he must present a factual basis that would arguably entitle him to judgment.” Id. at
       432.
¶ 16       Section 2 of the Sales Representative Act (the Act) provides in pertinent part that 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.” 820 ILCS 120/2 (West 2010). Section
       1(3) of the Act defines “principal” as follows:
                “ ‘Principal’ means a sole proprietorship, partnership, corporation or other business
                entity whether or not it has a permanent or fixed place of business in this State and
                which:
                    (A) Manufactures, produces, imports, or distributes a product for sale;
                    (B) Contracts with a sales representative to solicit orders for the product; and
                    (C) Compensates the sales representative, in whole or in part, by commission.”
                (Emphases added.) 820 ILCS 120/1(3) (West 2010).
       The plain language of the Act specifically refers to “products,” which this court has held was
       evidence of the legislature’s clear intent that the Act apply only to “purveyors of tangible
       goods, not services.” English Co. v. Northwest Envirocon, Inc., 278 Ill. App. 3d 406, 415
       (1996). In the case at bar, the parties dispute whether Safeguard was a “principal” within the
       meaning of the Act so as to subject Safeguard to the terms of the Act.
¶ 17       Johnson does not challenge the well-settled proposition that a company that exclusively
       provides “services” is not a “principal” under the Act. Rather, he argues that Safeguard, as a
       company that is a purveyor of both services and tangible goods, must be considered a
       “principal” for the purposes of the Act. In support of his contention that Safeguard was a
       purveyor of both tangible goods and services, Johnson directs this court’s attention to the
       references made to “products and services” on Safeguard’s website and in the parties’
       agreement.
¶ 18       Based on our review of the record, we find that the contents of Safeguard’s website and the
       terms of the parties’ agreement failed to raise a genuine issue as to whether Safeguard was a
       purveyor of tangible goods. According to Schultz’s deposition testimony, Safeguard’s website
       contained various descriptions of services and products, including specific brands of roofing,
       siding, window, and painting products by various manufacturers. Schultz testified that
       Safeguard did not have any agreements with the manufacturers of these brand-name products,
       but that the information about these products was posted on the website because Safeguard

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       believed them to be the best in the market. Schultz clarified that Safeguard did not perform the
       actual repair work, but subcontracted the repair work to third parties, to whom Safeguard
       relayed the homeowners’ preferences as to what specific brands of products to use in the
       repairs. Schultz testified that Safeguard did not manufacture, produce, import, or distribute any
       products that were used by the subcontractors in repairing the homes. Rather, when questioned
       about the language in the March 15, 2011 agreement by which Johnson became Safeguard’s
       independent sales representative “for the sale of Safeguard products and services,” Schultz
       explained that the terms “products and services” were interchangeable as the services
       Safeguard provided to homeowners–the installation or replacement of roofing and siding
       systems, gutters, and windows. Schultz testified that, as an example, a homeowner who
       already owned 5,000 shingles could hire Safeguard to install the shingles on the home, but that
       a homeowner who wanted to install his own shingles would not be able to buy 5,000 shingles
       from Safeguard and would be better served by purchasing the shingles from Home Depot or
       Menard’s. Schultz testified that, as an independent sales representative, Johnson was required
       to canvas storm-damaged neighborhoods to provide free inspections to homeowners, interface
       with insurance adjusters, and obtain contracts from homeowners for the restoration work.
       Johnson’s summarized duties and responsibilities were set forth in a document entitled “Field
       Representative (Next Steps),” which we find did not involve the selling of specific brand-name
       products to homeowners. Indeed, Johnson’s description of his work duties and responsibilities
       in his deposition testimony paralleled Schultz’s description, and Johnson specifically testified
       that Safeguard was in the business of providing restoration work to homes. Although Johnson,
       as the nonmoving party, was not required to prove his case in response to Safeguard’s motion
       for summary judgment, he must present a factual basis that would arguably entitle him to
       judgment. See Land, 202 Ill. 2d at 432. Based on our review of the record, we find that he has
       failed to do so. Thus, viewing the record in the light most favorable to Johnson, we find that
       Safeguard engaged exclusively in the sale of services and that no genuine issue was raised as to
       whether Safeguard was a purveyor of tangible goods.
¶ 19       Nonetheless, Johnson argues that any home repair work facilitated by Safeguard must
       involve tangible goods–such as paint, gutters, windows, shingles, drywall, and siding–that are
       necessary to replace the damaged parts of the home. Following this logic, he contends that
       Safeguard was a “principal” for the purposes of the Act because it “distributed” tangible goods
       along with the sale of home repair services. In support of this contention, Johnson cites an
       unreported federal district court case, Nicor Energy v. Dillon, No. 03 C 1169, 2004 WL 51234,
       at *1 (N.D. Ill. Jan. 7, 2004). We reject this contention.
¶ 20       In Nicor Energy, counterplaintiff Dillon was employed by counterdefendant Nicor Energy
       to market and sell natural gas and electricity services. Id. The district court found that Nicor
       Energy was a “principal” under the Act on the basis that the electricity and natural gas
       contracts that Dillon sold on behalf of Nicor Energy included agreements to sell specific
       quantities of natural gas and electricity to end users. Id. at *2. The Nicor Energy court further
       found these agreements to be “a combination of commodities and management services.” Id.
       The court further reasoned that, in this “mixed product case,” although the Act did not apply to


                                                   -5-
       the management services, it applied to tangible goods–the commodities of natural gas and
       electricity–that were sold. Id.
¶ 21       First, we note that federal court decisions, other than United States Supreme Court
       decisions, are considered persuasive authority and not binding on this court. Mekertichian v.
       Mercedes-Benz U.S.A., L.L.C., 347 Ill. App. 3d 828, 835 (2004). Second, we find Nicor Energy
       to be factually distinguishable from the case at bar. The circuit court in the case at bar, in
       distinguishing Nicor Energy, noted that “the focus of the contracts at issue [in Nicor Energy]
       was on the product–the main purpose was to provide commodities to customers.” We agree
       with the circuit court’s assessment. Unlike Nicor Energy, in the instant case, the main purpose
       of the contracts that Johnson solicited from homeowners was to provide repair services to their
       damaged homes, and any tangible goods associated with the repair work were merely
       incidental to the services provided. Rather, we find English Co. to be instructive.
¶ 22       In English Co., the defendant company entered into a sales representation agreement with
       the plaintiff to sell the defendant’s “environmental assessment and documentation” to
       companies in northern Illinois and southern Wisconsin, for which the plaintiff was paid fixed
       commissions for each sale. English Co., 278 Ill. App. 3d at 408. Upon termination of the
       parties’ agreement, the defendant allegedly refused to pay the plaintiff on all earned
       commissions. Id. at 409. Thereafter, the plaintiff filed an action against the defendant under the
       Act. Id. The trial court then granted the defendant’s motion for summary judgment, finding
       that the defendant only provided “services” rather than tangible goods and, thus, was not
       subject to the Act. Id. at 409-10. On appeal, the reviewing court held that the defendant was not
       a “principal” under the Act, finding that the Act only applied to purveyors of tangible goods,
       not services. Id. at 415. The court noted that, historically, the sale of services “is a much more
       personal transaction requiring a great deal more direct contact between the parties.” Id. at 414.
       The court then made a distinction between contracts to provide services, pursuant to which
       employees must “go to the client’s place of business,” and contracts to provide products,
       pursuant to which a company can “simply ship the device to the client” without any need to
       visit the client’s place of business. Id. Moreover, the court then noted that, even if a company
       sold tangible goods, it would not be considered a “principal” for the purposes of the Act where
       the company was not the originator of the product being sold but, rather, was “merely in the
       chain of distribution.” Id. at 415.
¶ 23       Like English Co., in the instant case, Safeguard was engaged in providing services of
       insurance restoration work by facilitating home repairs after certain losses. In order to satisfy
       the terms of the contracts with the homeowners, Safeguard sent subcontractors to perform the
       service of replacing the damaged parts of the homes and could not fulfill its obligations under
       the client contracts by simply shipping items to the homeowners. Because any tangible goods
       associated with the repair work were merely incidental to the services provided, we conclude
       that there was no genuine issue of material fact that Safeguard manufactured, produced,
       imported, or distributed a product for sale within the meaning of the Act. See 820 ILCS
       120/1(3)(B) (West 2010). While we are aware of Johnson’s arguments urging this court to
       uphold the applicability of the Act even where the involvement of tangible goods in the course
       of providing services to a client was merely incidental, we decline to do so. To hold as Johnson
                                                   -6-
       suggests would render meaningless the plain terms under the Act that a “principal” is a
       business entity which contracts with a sales representative “to solicit orders for the
       product”–language which shows that a tangible product sold must be a main purpose and focus
       of the client contracts. See 820 ILCS 120/1 (West 2010); see Ferguson v. Patton, 2013 IL
       112488, ¶ 28 (courts must construe a statute, if possible, so that no part of it is rendered
       meaningless or superfluous). Thus, we find that no genuine issue of material fact exists to show
       that Safeguard was a purveyor of tangible goods, and, therefore, Safeguard was not a
       “principal” within the meaning of the Act. Moreover, even assuming, arguendo, that the
       materials incidentally used in Safeguard’s home repairs could be considered products under
       the Act, Johnson’s claim would still fail as a matter of law because Safeguard was “merely in
       the chain of distribution” and was not the original source of those products so as to hold
       Safeguard liable as a “principal” under the Act. See English Co., 278 Ill. App. 3d at 415.
       Therefore, Safeguard was not subject to the provisions of the Act. Accordingly, we hold that
       the circuit court properly granted summary judgment in favor of Safeguard on count I of the
       complaint.
¶ 24       For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 25      Affirmed.




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