Thomas v. Weatherguard Construction Company, Inc.
42 N.E.3d 21
Ill. App. Ct.2015Background
- Raymond Thomas worked ~3 months in 2007 soliciting roof-repair contracts; he alleged Farbaky recruited him using Weatherguard branding and promised 20% commission per job.
- Thomas turned in 31 contracts he claims benefitted Weatherguard; he was paid $2,900 in personal "draw" checks and alleges $47,666.54 unpaid.
- Weatherguard asserted Thomas was employed by an independent marketer (DBar/Farbaky) and that Farbaky lacked authority to bind Weatherguard; Weatherguard paid DBar 40% commissions and issued 1099s to Farbaky.
- After bench trial the court found an apparent agency: Farbaky was held out as Weatherguard’s agent, binding Weatherguard to the oral commission agreement awarding Thomas 20% of the net on completed contracts.
- The trial court doubled damages under the Wage Payment and Collection Act (WPA), later vacating the doubling on reconsideration but keeping a judgment for unpaid commissions; Thomas appealed the damages modification and sought application of the 2011 WPA amendment for attorney fees and 2% monthly damages.
- The appellate court affirmed liability and damages calculation but remanded to determine reasonable attorney fees under the 2011 WPA amendment, holding the 2% monthly penalty could not be applied retroactively.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Apparent authority/agency — whether Farbaky was Weatherguard’s agent | Thomas: Weatherguard held Farbaky out (office, uniforms, cards, scripts), so a reasonable person would think Farbaky could hire/contract on Weatherguard’s behalf | Weatherguard: Farbaky/DBar were independent marketers; Weatherguard only allowed use of name and did not authorize hiring | Held: Appellate court affirmed trial court — evidence supported apparent agency (principal’s conduct created reasonable belief) |
| Existence/terms of oral contract — 20% commission on gross or net | Thomas: Farbaky promised 20% of the total job | Weatherguard: Terms unclear; DBar arrangements and completion obligations affect commissions | Held: Court’s factual finding stands — oral contract for 20% of the net on completed contracts was supported by testimony |
| Proof of damages — whether Thomas proved amount owed | Thomas: Kept records and estimated contract values; argued for 20% of listed amounts | Weatherguard: Thomas’s damages speculative; offered its own records showing amounts paid to DBar | Held: Court reasonably relied on Weatherguard’s financial evidence to compute net-based damages; judgment for Thomas affirmed |
| Retroactivity of 2011 WPA amendment — application of 2% monthly penalty and attorney fees | Thomas: 2011 amendment (2% monthly + attorney fees) should apply to judgment; at least attorney fees apply retroactively | Weatherguard: Amendments should not apply retroactively; 2% penalty and fee provisions alter liabilities | Held: 2% monthly penalty is substantive and not retroactive; attorney fees provision is procedural (fees were previously available via separate statute) and may be applied retroactively — remand to calculate reasonable fees |
Key Cases Cited
- Bazydlo v. Volant, 164 Ill. 2d 207 (trial-court credibility and manifest-weight standard governs findings)
- State Security Insurance Co. v. Burgos, 145 Ill. 2d 423 (apparent authority/principal bound by appearance of agent’s authority)
- Caveney v. Bower, 207 Ill. 2d 82 (procedural/substantive distinction for retroactivity under Statute on Statutes)
- Landgraf v. USI Film Products, 511 U.S. 244 (framework for assessing retroactive effect of statutes)
- People ex rel. Madigan v. J.T. Einoder, Inc., 2015 IL 117193 (amendment that creates new liability is substantive and not retroactive)
- Wilson v. Edward Hospital, 2012 IL 112898 (elements to establish apparent agency)