JUSTICE GORDON delivered the judgment of the court, with opinion.
Appeal from the Circuit Court of Cook County. No. 12 CH 35979 The Honorable Margaret Ann Brennan, Judge Presiding. 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. 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. ¶ 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 (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
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 (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.
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.
The complaint was amended twice, most recently on January 7, 2013.
On appeal, neither count of the complaint is at issue; the only issues concern defendant's counterclaims.
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.
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.
This exhibit is not contained in the record on appeal. --------
¶ 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) 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." Ill. S. Ct. R. 341(h)(6) (eff. Nov. 1, 2017). 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. 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 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, 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." Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013).
"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.
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 (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, 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 ¶ 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 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.