                                         2017 IL App (3d) 160761

                               Opinion filed October 24, 2017
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                    2017

     QUALITY TRANSPORTATION SERVICES, )           Appeal from the Circuit Court
     INC.,                                  )     of the 13th Judicial Circuit,
                                            )     La Salle County, Illinois.
             Plaintiff-Appellant,           )
                                            )
             v.                             )     Appeal No. 3-16-0761
                                            )     Circuit No. 15-L-114
     MARK THOMPSON TRUCKING, INC.,          )
     an Illinois corporation,               )     The Honorable
                                            )     Eugene P. Daugherity,
             Defendant-Appellee.            )     Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE WRIGHT delivered the judgment of the court, with opinion.
           Justices Lytton and O’Brien concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                OPINION

¶1          On appeal, plaintiff, Quality Transportation Services, Inc. (QTS), contends that the trial

     court erred by granting summary judgment in favor of defendant, Mark Thompson Trucking, Inc.

     (MTT). QTS argues that a question of material fact exists concerning whether MTT engaged in

     the solicitation of one of QTS’s clients in breach of the nonsolicitation covenant contained in the

     transportation brokerage agreement. We reverse and remand.
¶2                                                FACTS

¶3          This case involves a contract dispute arising from the language of a transportation

     brokerage agreement, dated July 26, 2011, between plaintiff, QTS, an Illinois corporation, and

     defendant, MTT, an Illinois corporation. The terms of the agreement provided that QTS, a broker

     licensed by the Federal Motor Carrier Safety Administration, hired MTT, a registered carrier, to

     provide transportation services to QTS’s customers. The agreement contained a nonsolicitation

     provision in paragraph 19, which stated as follows, in relevant part:

            “CARRIER will not solicit traffic from any [s]hipper, consignor, consignee, or

            customer of Broker where (1) the availability of such traffic first become[s]

            known to CARRIER as a result of BROKER’s efforts, or (2) the traffic of the

            shipper, consignor, consignee or Customer of BROKER was first tendered to

            CARRIER by BROKER. If CARRIER breaches this Agreement and directly or

            indirectly solicits traffic from customers of BROKER and obtains traffic from

            such customer during the term of this Agreement or for twelve (12) months

            thereafter, CARRIER shall be obligated to pay BROKER, for a period of fifteen

            (15) months thereafter, commission in the amount of thirty-five percent (35%) of

            the transportation revenue resulting from traffic transported for the Customer, and

            CARRIER shall provide BROKER with all documentation requested by

            BROKER to verify such transportation revenue.”

¶4          Pursuant to the July 2011 agreement, MTT began providing trucking services for US

     Silica Company (USS), one of QTS’s customers. MTT provided motor carrier services for USS

     between the company’s Ottawa and Utica facilities and the Rochelle facility.




                                                      2
¶5          In 2016, QTS filed an amended complaint against MTT alleging MTT directly or

     indirectly solicited USS in violation of the nonsolicitation clause of the agreement. The amended

     complaint alleged that on June 16, 2015, MTT began hauling traffic for USS over the same

     routes QTS assigned to MTT. QTS claimed that as a result of QTS’s efforts, this traffic was first

     tendered to MTT by QTS during the term of the 2011 agreement. QTS asserted that “[b]ut for

     [MTT’s] solicitation of traffic from USS, [MTT] would not be engaged in hauling for USS

     directly along the[se] lanes of traffic.” According to the amended complaint, QTS received

     written notice from MTT of MTT’s intent to terminate the agreement on June 29, 2015, two

     weeks after MTT began hauling directly for USS.

¶6          On August 23, 2016, MTT filed an answer to QTS’s first amended complaint. MTT

     denied that the company breached the nonsolicitation provision in the agreement. MTT also

     denied that USS “was a shipper, consignor, consignee or customer of QTS.”

¶7          On September 9, 2016, MTT filed a motion for summary judgment on all of QTS’s

     claims. In the motion, MTT argued that the undisputed material facts showed that MTT did not

     solicit business from USS because it was undisputed USS initiated contact with MTT. MTT

     claimed the agreement allowed MTT to accept unsolicited business from QTS’s client.

     Alternatively, MTT submitted the nonsolicitation provision of the agreement was unenforceable

     as a matter of law.

¶8          In support of the motion for summary judgment, MTT attached the deposition transcripts

     of several witnesses, including Janice Casey and Mark Thompson. In his deposition, Thompson,

     the president of MTT, testified that, while the agreement with QTS was in place, MTT provided

     hauling services for QTS that included shipments for USS with routes from Ottawa to Peru,

     Ottawa to Rochelle, and Utica to Rochelle. Thompson understood that QTS received a brokerage




                                                    3
       fee by charging the QTS customers for whom MTT was hauling freight more money than QTS

       paid MTT.

¶9             Thompson spoke with Casey in December 2014 at the Lotz Trucking Christmas party.

       Thompson testified that he does not recall the conversation but they did not discuss business.

       Thompson testified that he and Casey previously attended the same high school but they had not

       kept in contact following graduation.

¶ 10           Thompson testified that Casey initiated contact with Thompson by telephoning him in the

       winter of 2015 to discuss the possibility of MTT hauling for USS. Casey stated that USS was

       short on trucks and asked Thompson if he was interested in working for USS. Thompson

       testified that he told Casey he was interested and Casey stated she wanted to meet sometime.

       According to Thompson, when Casey first approached him, Thompson thought, “boy this would

       be a good outfit to get.”

¶ 11           Thompson testified he met with Casey a few days later at the McDonald’s in Peru,

       Illinois. Thompson chose the location. Casey and another hauler, Brian Ruff, were also present at

       the meeting. Thompson stated that he called Ruff and asked him to attend the meeting because

       Thompson learned that USS was looking for more than one carrier. Thompson testified the

       purpose of the meeting with Casey was to discuss the possibility of Thompson and Ruff

       providing trucking services for USS. Thompson testified that Casey mentioned that she wanted

       trucks for the routes from Utica to Rochelle and from Utica to Peru and requested that Thompson

       submit a rate for the route from Utica to Peru. Thompson responded that he would give it some

       thought but did not discuss or submit any specific rates during the meeting at the McDonald’s in

       Peru, Illinois.




                                                      4
¶ 12          Thompson testified that on the following day, February 12, 2015, Casey stopped by the

       MTT office to pick up Thompson’s proposed rate for the Utica to Peru route. This bid was not

       accepted by USS because MTT’s bid was too high.

¶ 13          On February 13, 2015, MTT submitted a rate to Casey for the USS route from Utica to

       Rochelle. The bid submitted by MTT to USS took the form of a proposed “Load and Rate

       Confirmation Agreement” between MTT and USS, which provided as follows:

                      “This agreement is presented in good faith between [MTT] and [USS].

              [MTT] will supply one truck and trailer and more as needed to transport silica

              sand to C.S.S. (U.S. Silica) Rochelle from Q.P.S. (U.S. Silica) Utica for a rate of

              $8.59/ton (all in).”

       USS did not accept this bid. On March 3, 2015, MTT lowered the bid for the USS route from

       Utica to Rochelle to $7.75 per ton. This bid was not accepted by USS. Thompson also submitted

       a rate proposal to USS for the route from Ottawa to Rochelle. All the routes for which MTT

       submitted rate proposals to USS were routes that MTT had previously hauled for USS pursuant

       to the agreement between MTT and QTS.

¶ 14          Several months later, in June 2015, Thompson had an opportunity to discuss his rate

       proposal with Casey. Casey told Thompson, “[Y]ou need to lower the rate, you know, that’s way

       out of the ballpark, you know.” On June 16, 2015, MTT again lowered its bid for the route from

       Utica to Rochelle to $7.50 per ton and submitted it to USS. USS accepted the $7.50 per ton rate

       for the Utica to Rochelle route, and MTT began hauling directly for USS on or about June 18,

       2015. Thompson testified that he terminated the agreement with QTS by sending a text message

       to the QTS dispatcher in the middle of June 2015. Thompson testified that he did not submit rate

       proposals for services to any other shipper during the same time period.




                                                       5
¶ 15          Casey’s deposition testimony was consistent with Thompson’s deposition testimony.

       According to Casey, she is employed by USS as the transportation coordinator for the company.

       Her assigned duties required her to approach carriers, trucking companies, and drivers and

       request the submission of rates for USS traffic. According to Casey, USS would advise the

       prospective carriers about the origin and destination of each route and wait for the carriers to

       submit bids for USS’s business. Once Casey received a rate, she would submit it to USS’s

       corporate office for approval. Casey did not have the authority to make an offer to any carrier,

       including MTT, or to accept any bid from a carrier. If the rate was not accepted by the corporate

       office, Casey could ask the carrier to submit a new quote at a lower rate. If the carrier did not

       submit a lower rate, then the process ended.

¶ 16          Casey testified that she has known Thompson for over 20 years and they went to high

       school together. Casey testified that in late 2014 or early 2015 she reached out to Thompson’s

       nephew, Dalton, and asked for Thompson’s phone number. After Casey obtained Thompson’s

       number from Dalton, she called Thompson and asked him “if he had any trucks available”

       because USS was short on trucks. Thompson replied that he did and Casey asked Thompson if

       he would propose a rate. However, Thompson did not submit a rate at that time.

¶ 17          Casey testified that she was not familiar with QTS and that her day-to-day

       communications were with Lotz Trucking, Inc. (Lotz). Casey testified that from September 2014,

       when she started with USS, through about June of 2015, she was not aware that MTT was under

       contract with a transportation broker. Casey testified that it was her understanding that

       Thompson was previously working for Lotz.

¶ 18          Sometime after the initial phone conversation between Casey and Thompson, Thompson

       began submitting rates for USS routes and then submitted requotes when he was informed his




                                                      6
       bids were not good enough. Thompson continued to communicate with Casey until the corporate

       office of USS accepted one of MTT’s proposed rates. Thereafter, Thompson began hauling for

       USS on a load-to-load basis, but Casey could not recall the date that MTT first started working

       directly for USS. MTT hauled for USS on routes from Utica to Rochelle, Ottawa to Rochelle,

       and Utica to Vectora. Casey testified that neither Thompson nor anyone at MTT solicited her or

       USS for business.

¶ 19          In opposition to MTT’s summary judgment motion, QTS submitted the affidavit of Kevin

       Kuntz, the president of QTS and Lotz. In the affidavit, Kuntz stated that Lotz is not a

       transportation broker but is a motor carrier that provides transportation services to shippers. QTS

       shares dispatch services with Lotz such that all carriers brokered by QTS are dispatched by Lotz

       dispatchers. Kuntz stated that when a shipper such as USS needs transportation services from

       QTS’s carriers, the shipper contacts Lotz dispatchers to convey this need, and a Lotz dispatcher

       will dispatch carriers brokered through QTS to fulfill the shipper’s request.

¶ 20          Kuntz also stated in his affidavit that QTS has had a business relationship with USS in

       La Salle County, Illinois, since 1993 pursuant to which, QTS, acting as broker, has arranged for

       motor carriers to transport silica sand for USS. Kuntz stated that, prior to the opening of the USS

       facility in Rochelle, Illinois, in 2012, QTS negotiated and entered into a motor carrier agreement

       with USS to provide trucking services for traffic from the USS facility in Ottawa, Illinois, to the

       new facility in Rochelle. Additionally, Kuntz stated that, prior to the opening of the USS facility

       in Utica, Illinois, in 2014, QTS negotiated and entered into a motor carrier agreement with USS

       to provide trucking services from Utica to Rochelle.

¶ 21          The trial court held a hearing on defendant’s motion for summary judgment on

       November 15, 2016. Without indicating the basis for the court’s ruling, the trial court summarily




                                                        7
       granted MTT’s motion for summary judgment in MTT’s favor. On December 9, 2016, QTS filed

       a notice of appeal.

¶ 22                                             ANALYSIS

¶ 23          On appeal, QTS challenges the trial court’s November 15, 2016, order granting summary

       judgment in favor of MTT by arguing that a genuine issue of material fact exists as to whether

       MTT’s conduct violated the nonsolicitation provision of the contract QTS seeks to enforce. MTT

       argues that the trial court correctly granted its motion for summary judgment because the

       agreement allowed MTT to accept unsolicited work from an existing QTS client. Alternatively,

       MTT claims that the nonsolicitation provision in the agreement is unenforceable.

¶ 24          The standard of review on an appeal from a trial court’s ruling on a motion for summary

       judgment is de novo. DeSaga v. West Bend Mutual Insurance Co., 391 Ill. App. 3d 1062, 1066

       (2009). Summary judgment is a drastic means of disposing of litigation and should only be

       permitted when the right of the moving party is clear and free from doubt. Woods v. Pence, 303

       Ill. App. 3d 573, 575-76 (1999). At the summary judgment stage, the trial court cannot weigh

       evidence, make credibility determinations, or decide the truth of the matter but, instead, must

       determine whether the case should go to trial at all. Essig v. Advocate BroMenn Medical Center,

       2015 IL App (4th) 140546, ¶ 88; Gulino v. Economy Fire & Casualty Co., 2012 IL App (1st)

       102429, ¶ 25. In other words, the role of the trial court is not to try a question of fact but to

       determine if one exists. DeSaga, 391 Ill. App. 3d at 1066. Summary judgment should be granted

       only where the pleadings, depositions, and admissions on file, together with any affidavits, when

       viewed in the light most favorable to the nonmoving party, show there is no genuine issue as to

       any material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-

       1005(c) (West 2016); Pekin Insurance Co. v. Pulte Home Corp., 404 Ill. App. 3d 336, 339




                                                      8
       (2010). A triable issue of fact precluding summary judgment exists where the material facts are

       disputed or, where the material facts are undisputed, reasonable persons might draw divergent

       inferences from the undisputed facts. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511,

       518 (1993).

¶ 25          In this case, we must construe the scope of conduct prohibited by the precise language of

       the nonsolicitation clause in the written agreement. The court’s primary goal in interpreting a

       contract is to give effect to the intent of the parties. Storino, Ramello & Durkin v. Rackow, 2015

       IL App (1st) 142961, ¶ 18. When the language of the contract is clear and unambiguous, the

       parties’ intent must be determined solely from the language of the contract itself and be given its

       plain and ordinary meaning. Id. Contracts should be construed as a whole, with each provision

       viewed in light of other provisions in the contract. Thompson v. Gordon, 241 Ill. 2d 428, 441

       (2011). The construction, interpretation, or legal effect of a contract is a question of law subject

       to de novo review on appeal. Martis v. Grinnell Mutual Reinsurance Co., 388 Ill. App. 3d 1017,

       1020 (2009).

¶ 26          To address QTS’s contention that a genuine issue of material fact exists as to whether

       MTT’s conduct constitutes solicitation, we look to the language of the nonsolicitation provision

       contained in paragraph 19 of the agreement:

              “CARRIER will not solicit traffic from any [s]hipper, consignor, consignee, or

              customer of Broker where (1) the availability of such traffic first become[s]

              known to CARRIER as a result of BROKER’s efforts, or (2) the traffic of the

              shipper, consignor, consignee or Customer of BROKER was first tendered to

              CARRIER by BROKER. If CARRIER breaches this Agreement and directly or

              indirectly solicits traffic from customers of BROKER and obtains traffic from




                                                        9
              such customer during the term of this Agreement or for twelve (12) months

              thereafter, CARRIER shall be obligated to pay BROKER, for a period of fifteen

              (15) months thereafter, commission in the amount of thirty-five percent (35%) of

              the transportation revenue resulting from traffic transported for the Customer, and

              CARRIER shall provide BROKER with all documentation requested by

              BROKER to verify such transportation revenue.”

       The term “solicit” is not defined in the agreement. However, both parties agree that it is

       appropriate to use the definition of “solicitation” contained in Black’s Law Dictionary, which

       defines the term as “[t]he act or an instance of requesting or seeking to obtain something” and

       “[a]n attempt or effort to gain business.” Black’s Law Dictionary 1520 (9th ed. 2009). The

       parties further agree that, based on the language of the contract, the mere passive acceptance of

       business would not violate the terms of the nonsolicitation provision because the term

       “solicitation” connotes taking some affirmative measures.

¶ 27          Illinois law provides guidance on the type of conduct that constitutes solicitation. In

       Tomei v. Tomei, the First District Appellate Court stated that “[w]hether a particular client

       contact constitutes a solicitation, depends upon the method employed and the intent of the

       solicitor to target a specific client in need of his services.” Tomei v. Tomei, 235 Ill. App. 3d 166,

       170 (1992). There, the court held that “the direct solicitation of insurance customers, as opposed

       to a general advertisement, suggests a private communication directed at a person or persons,

       known by the solicitor to have an immediate or potential need for insurance.” Id.

¶ 28          QTS argues that Tomei is instructive and supports QTS’s argument that a proper analysis

       of whether a party has “solicited” business involves a fact-intensive inquiry of multiple

       considerations regarding the conduct of each party. In our view, simply because MTT did not




                                                        10
       initiate the very first conversation with USS does not support an automatic conclusion that

       MTT’s subsequent communications with USS can never rise to the level of solicitation. 1 See,

       e.g., YCA, LLC v. Berry, No. 03 C 3116, 2004 WL 1093385, at *10-11 (N.D. Ill. May 7, 2004)

       (applying Illinois law and rejecting the notion that the identity of the party who makes the initial

       contact is outcome dispositive in determining whether solicitation occurred).

¶ 29           We recognize it is undisputed that Casey, acting as an agent for USS, initiated the first

       phone call to Thompson in early 2015. However, following the first telephone call, there were

       additional communications arguably initiated by MTT after large gaps of time that followed

       Casey’s initial phone call. Based on our de novo standard of review, when viewing the evidence

       in the light most favorable to the nonmovant, reasonable minds may differ as to whether MTT’s

       multiple and arguably separate contacts with USS violated the nonsolicitation provision of the

       agreement between QTS and MTT. See Williams v. Manchester, 228 Ill. 2d 404, 417 (2008) (a

       triable issue precluding summary judgment exists where the material facts are undisputed but

       reasonable persons might draw different inferences from the undisputed facts). While the facts

       are not contested, these facts could logically support different conclusions regarding MTT’s

       intent to solicit business away from QTS for the same routes that MTT was covering for QTS as

       part of the agreement. For these reasons, we reverse the trial court’s grant of summary judgment

       in favor of MTT and remand the matter for further proceedings for a trier of fact to determine

       whether MTT’s conduct amounts to solicitation in violation of the agreement.

¶ 30           As a final matter, we address whether the nonsolicitation provision is unenforceable, as

       MTT contends. The trial court did not expressly address this issue. The question of whether a

       restrictive covenant is enforceable is a question of law, the determination of which is reviewed

               1
                 Both sides rely on authority from various federal circuit courts to support their positions. We
       find it unnecessary to look to decisions from other jurisdictions because Illinois case law addresses what
       conduct constitutes solicitation. See Sadler v. Creekmur, 354 Ill. App. 3d 1029, 1037 (2004).


                                                          11
       de novo on appeal. Reliable Fire Equipment Co. v. Arredondo, 2011 IL 111871, ¶ 12. The

       Illinois Supreme Court has stated that, while a contract in total and general restraint of trade is

       void as against public policy, a restrictive covenant that imposes a partial restraint on trade will

       be upheld if the restraint is reasonable and the agreement is supported by consideration. Id. ¶ 16.

¶ 31          Here, we conclude that QTS has a legitimate interest in protecting its customer

       relationship with USS pertaining to a very finite number of routes MTT had driven on behalf of

       QTS. As QTS argues, invalidating the nonsolicitation provision at issue would completely

       undermine the business of brokers like QTS. Contrary to MTT’s contentions, there is also

       sufficient evidence in the record to show that QTS had a significant, longstanding business

       relationship with USS pertaining to the routes at issue. 2 Kevin Kuntz’s affidavit stated that, since

       1993, QTS, acting as broker, has arranged for motor carriers to transport silica sand for USS.

¶ 32          Here, the nonsolicitation provision is narrowly tailored to protect but not exceed QTS’s

       legitimate business interest. The restriction is limited to a one-year period after the termination of

       the agreement and only prohibits MTT from soliciting work directly from QTS’s customers for

       the particular traffic that MTT had either hauled or became aware of as a result of QTS’s efforts.

       The agreement allows MTT to accept unsolicited business from USS. Given the very limited and

       reasonable restrictions of the provision, we conclude the nonsolicitation requirement set forth in

       the agreement does not impose an undue hardship on MTT and is not injurious to the public. For

       these reasons, we conclude that the nonsolicitation provision contained in the agreement is

       reasonable and enforceable.


              2
                 MTT also asserts that QTS does not have a “near-permanent relationship” with USS. However,
       whether QTS has a “near-permanent relationship” with USS is no longer outcome-determinative. See
       Reliable Fire Equipment Co., 2011 IL 111871, ¶ 43 (stating the previously accepted two-factor test, in
       which a near-permanent customer relationship and the employee’s acquisition of confidential information
       through his employment are determinative, is no longer valid). Instead, whether a legitimate business
       interest exists is based on the totality of the facts and circumstances of each case. Id.


                                                         12
¶ 33                                   CONCLUSION

¶ 34   The judgment of the circuit court of La Salle County is reversed and remanded.

¶ 35   Reversed and remanded.




                                              13
