OJA ENTERPRISES INC PARKER CROMWELL ASSOC PARKER CROMWELL TEMPORARY SERVICES v. THE STATE OF ILLINOIS DEPARTMENT OF ILLINOIS LOTTERY (2001)

ORDER

This cause comes on to be heard upon Respondent's Motion to Dismiss, Claimant's Response, and Claimant's Motion for Summary Judgment. The Court being fully advised in the premises finds:

Respondent has not filed a Response to Claimant's Motion and the Motions will be considered in accordance with our Order of September 13, 2001.

I. Facts

Claimant has stipulated to the facts as stated by Respondent in its Motion to Dismiss. Claimant, a licensed employment agency, entered into a contract with the Lottery to provide temporary clerical services at the Lottery's Lombard office for one year, beginning July 30, 1999. Services were also to be provided for word processing per Attachment A of the executed contract submitted by the parties. The hourly rates to be paid to Claimant for supplying employees to the Lottery are $12.38 Clerical and $16.65 Word Processor per Attachment A. Attachment A also states Office may relocate during the fiscal year.

Compensation at paragraph 4 of the Contract states full payment under the contract is estimated at $24,000 for one year.

Claimant's employee, Ms. Frederick had worked at the Lottery office in Lombard for several months as a temporary worker from March 9, 1999 through April 15, 1999. Claimant and Lottery entered into a written contract for the same services Ms. Frederick previously performed. Ms. Frederick was again placed by Claimant in the Lottery office upon execution of the written contract and performed her duties as Claimant's employee from August 2, 1999 through November 19, 1999.

On or about August 31, 1999, the Lottery posted an opening for an Office Associate position at the Lottery's Lombard office. Ms. Frederick filled out an application, and took the requisite tests through the Department of Central Management Services (CMS). The Illinois Lottery, following the selection process established by CMS, offered the position to Ms. Frederick on or about November 15, 1999. On or about November 18, 1999, the Illinois Lottery delivered written notice of its intent to terminate the contract in 30 days per paragraph 7 at page 2 of the Contract. Ms. Frederick was hired as a permanent employee by Respondent and Claimant received no placement fees or further payments upon termination of its contract as Ms. Frederick was the only employee placed by Claimants at the Lottery office.

II. Procedural History

Claimant's claims for a permanent placement fee and additional invoices for the remainder of the Contract term were denied and refused by Respondent. Claimant filed a Complaint in four Counts on April 20, 2000 which we shall briefly summarize:

Count I. Alleges breach of an implied term of good faith (at par. 2(g), pg. 2 of Complaint, Count I) which resulted in benefits of the Contract accruing to Respondent without just compensation for Claimant's services upon termination. Claimant seeks $21,000 plus costs.

Count II. Re-alleges the theory of implied contract arising from the weekly execution of Claimant's time slips by Respondent's employees during term Claimant provided services. Claimant's time slips bear printed language asserting rights to permanent placement fees when temporary employees are subsequently placed in permanent positions. $4,105.92 is claimed.

Count III. Alleges unjust enrichment to Respondent based upon the implied contract asserted in Count II for a permanent placement fee. $4,105.92 is claimed.

Count IV. Re-alleges the breach of an implied contract for compensation for the full term of the written agreement and that Claimant's services for permanent placement would not be gratuitous.

Respondent's Motion to Dismiss asserts Claimant's failure to state a claim upon which relief may be granted.

Claimant's Response and its Motion for Summary Judgment rest upon its previously stated theory of recovery under implied contracts.

III. Analysis

Both Motions address virtually identical facts and legal issues. Hence, we shall simultaneously address both Motions in our analysis in the interest of judicial economy.

The Court must determine whether the Temporary Services Contract executed by the parties was breached by Respondent. If no breach is found, we must determine whether an implied contract may exist when an express contract addresses the same subject matter or services.

Claimant admits that Respondent had a right to terminate the written Temporary Services Contract (Contract) in conformance with par. 7 in its Motion for Summary Judgment at pg. 5. Claimant argues that Respondent's exercise of its legal right to terminate was an act of bad faith inconsistent with the reasonable expectations of the parties. Claimant asserts Respondent posted its notice for hiring an Office Associate to deprive Claimant of compensation under the Contract. Claimant cites several cases which are easily distinguished from the case before us as authority for finding of improper notice or bad faith.

Claimant makes no statement as to what benefit Respondent received by terminating the Contract and hiring a permanent employee. We find no facts alleged indicative of the probability that Claimant's employee would seek the posted job or succeed as the selected candidate. We also lack evidence as to Ms. Frederick's legal obligations, if any, to Claimant during her status as its employee or offers of proof as to existence of motive to injure Claimant.

Claimant's arguments as to the reasonable expectations of the parties are not persuasive due to the very nature of temporary employment services and the explicit language of Paragraph 22. Paragraph 22 states Department has no authority to contractually refuse to hire Contractor's employees who apply to the State of Illinois for employment. Paragraph 22 also imposes restrictions upon Claimant's solicitation and employment of Respondent's employees during the Contract term. Clearly, these provisions accepted by the parties indicate the possibility of the situation before us and thus, reasonably lead to a conclusion that Claimant has accepted such risk under the Contract.

The record is devoid of evidence or offers of proof to support a finding of breach of the Contract by Respondent.

Respondent argues that Claimant's remaining theories of recovery based upon implied contract and unjust enrichment must fail as an express written contract governs the equitable claims implied. People of the State of Illinois v. E & E Hauling, et. al., 152 Ill.2d. 473, 607 N.E.2d 165 (1992), citing Lathrop v. Bell Federal Savings and Loan Assn., 68 Ill.App.2d 375, 391 (1977). It is also well settled that implied contracts with State entities are looked upon with disfavor. Agles v. State, 37 Ill.Ct.Cl. 134 (1984). We have also consistently held that one dealing with an agent of the State must ascertain at his peril the authority of the agent. Dunteman v. State, 38 Ill.Ct.Cl. 51 (1985). Claimant's assertions of implied contract based upon time sheets signed by a supervisor are not supported by proof of authority to bind the State to the language pre-printed on Claimant's forms.

Claimant's claim for a permanent placement fee is further deflated by the explicit language of Paragraph 27 of the Contract. Paragraph 27 states that the Contract is the entire agreement of the parties and may not be modified or waived unless authorized representatives execute written documents evidencing such modifications or waivers.

Based upon the record we hereby grant Respondent's Motion to Dismiss all Counts of Claimant's Complaint and deny Claimant's Motion for Summary Judgment.

This cause is dismissed.

JANN, J.