## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Kay v. Prolix Packaging, Inc. , 2013 IL App (1st) 112455

Appellate Court Caption BA RRY KAY, Plaintiff-Appellant and Cross-Appellee
, v. PROL I X PACKAGI

NG, I NC., Defe ndant-Appe llee and Cross- Appellant.

District & N o. First District, Third Division Docke t No. 1-11-2455

Filed Rehea ring denied J une 12, 2013

J une 28, 2013

Held (Note : Thi s syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) I n an action arising from a dispute over the compensation due plaint i ff afte r he sold his packa g ing business to defen d ant and then took a sales position with defe ndant, the trial court e rre d in finding plaintiff was not entitled to estimate his damag es for the period during which there was no documentar

y evidenc e of his actua l damag es and the cause was rema nded for a hear ing to det er m i n e those damag es, but the denial of plaintiff’s
reque st to add claims for a violation of the Wage Pay ment and Collection Act an d for prejudg ment interest was upheld and plaintiff’s awa rd was

rec alculate d by

applying the corr ect c ommissi on rate

.

Dec ision Under
Review Appea l from the Circuit Cour t of Cook County
, No. 04-CH-2033; the Hon. Ronald Ba

rtkowicz, J udg e, pre siding.

J udg ment Affir med in part a

nd reve rsed in par

t; cause r emande d with directions.Counsel on

Appea l Steven M. Mora, of Chicag o, for a

ppellant.

Ba rry C. Kessler & Associates, of Glenview (B arr y C. Ke s s l er and L aure nce P. B ecke r, of c ounsel), for appellee

.

Panel J USTI CE HYMAN de livered the judgme nt of the cour t, with opinion.
J ustices Sterba a

nd Pierce concur

red in the judg ment and opinion.

OP INION

¶ 1 After defe ndant Prolix Packag ing, I nc., purcha sed the assets o f p l ai n t i ff’s b u siness throug h an assignment for the benefit of cr ed i t o rs, P rolix employ ed plainti ff Bar ry Kay as a sale sperson. Some five year s later Prolix sold its business to a third party and, ther eaf

ter, Kay sued Prolix for alleg edly failing to pay cer tain sales commissions under the employ ment ag ree ment. The foca l point of this appea l is whether or not Prolix owes Ka y fo r his commissions, and if so, how much. ¶ 2 Foll o wi n g a b en ch t ri al
, the court found in favor of Kay and awa rded damag es of $373,417.99. Kay ’s pos t t ri al motions for additional damag es, to add a count under the I llinois Wage Pay

ment and Collection Act (820 I L CS 115/1 et seq. (West 2010)), and for an

awa rd of prejudg ment interest wer e denied. Kay argues h e s h o u l d have been allowed to estimate his damag es, claiming Prolix wrong fully failed t o p ro d u ce summary business

rec ords, thus preve nting Kay from prese nting the full extent of actua l damag es for the entire time of his employ

ment. Kay further argues the trial court err ed by disallowing the additional count and by

denying his re quest for pr ejudg ment interest. ¶ 3 I n its cross-a

ppeal, Prolix contends the judgme nt should be vacated beca use no contra ct exis ted betwee n the parties. Prolix further contends the trial court err ed in computing Kay ’s damag es by ignor ing Kay ’s t es t i m o n y and his counsel’s admissions as to the appropr iate commission rate. L astly
, Prolix contends the trial court e rre d by holding Prolix ’s equitable defe nses wer e inapplica

ble. ¶ 4 We hold the trial court err ed by not a llowing Kay to introduc e evidenc e of estimates of his unpaid commissions based on his past sales for the 34 months in which no summary documents wer e produce d. This evidenc e is part of Kay ’s offe r of proof and exhibi t s and, there fore
, we rema

nd the case to allow plaintiff to further testify and defe ndant to defe nd on the sole issue of the a

mount of damag es for the 34 months. We hold the t rial court did not abuse its discretion in denying Kay ’s reque st for prejudg ment int er est and to amend his amende d complaint to include a count for violation of the Wage Pay ment and Collection Act. ¶ 5 Concerning Prolix ’s cross-a ppeal, we hold the trial cou rt ’s d et er m i n at i o n o f Kay ’s
customer master listi ng as the missing “Exhibi t A” to the employ ment ag ree ment was not ag ainst t he manifest weig ht of the evidenc e and, there fore
, is upheld. The trial court also

-2-proper ly det er m i n ed Prolix failed to meet its burden to show the equitable defe nses wer e

war rante d by the evidenc e. We find, howeve r, that the trial court err ed in c omputing Kay ’s damag es by disreg arding Kay ’s testimony and his counsel’s admissions as to the commission
rate to which Kay

was e ntitled.

¶ 6 BA CKGROUND ¶ 7 Plaintiff was the owner of The Ka y Gr o u p , I nc., a business that sold paper products, including groce ry

bag s, primarily

to g roce ry stores. Defenda nt Prolix Packag ing, Inc., wa s

a d i rec t competitor of The Kay Group, I nc. On J anuar y 20, 1999, Prolix Packag ing, I nc., purcha s ed the assets of The Kay Group, I nc., throug h an assig nment for the benef it of

cre ditors (the AB C transac tion). The p ar ties executed an employ ment ag ree ment, “Commissi oned Salesperson Employ ment, Consulti ng and Non-Competition Ag ree ment,” to provide Ka

y with two ty

pes of compensation: (1) a 5% commission on all product sales he made; and (2) a 2% overr ide commission on all sales m ad e b y Prolix to Kay ’s former
customers. Parag raph 7(A) of the contr ac t provided the 5% direc t sales commission;
para g raph 7(B ) of the contra ct define d the 2% indirect or overr ide commis s i o n

. The employ ment agree ment anticipated the parties ag ree ing on Kay ’s forme r cu s tomers and attaching a li st of t hem as “ Ex hibit A.” No document e ntitled “Exhibi t A” was attache d to the employ

ment ag ree ment, and the parties disag ree as to which of Kay ’s former customers

wer e to be include d in “Exhi bit A.” ¶ 8 For the next five y ears , P ro l i x m ad e regula r commission pay

ments to Kay
, and Ka

y

cre ated documents acknow ledg ing rec eipt of the pay ments. I t is undispute d th a t K a y was paid commissions on all direc t sales att ri butable to him. Kay admitted being paid a y ear ly commission of betwee n $100,000 and $125,000 on dire ct sales he made. ¶ 9 I n Dec ember 2003, Prolix sold its business t o Bu n z l

. Two months later, Kay filed an action ag ainst Prolix seeking to rec over compensation under the employ ment ag ree ment for the 2% overr ide commissions alleg edly due him for the indirect sales customers who would have be en identified in “ Ex hibit A.” ¶ 10 Although numerous documents wer e brought t o t h e AB C t ra n s ac t i o n cl o sing, the evidenc e at the bench tri al es tablished that none was ever marke d as “Exhibi t A” to the employ ment ag ree ment. Kay testified, “I want an acc ounting of all of the Kay Packing sales made by Prolix ’s other pe ople, of whic h Iwould be entitled to my 2 perc ent commission.” At his deposition, Kay stated t here was a document at closing entitled “Exhibi t A,” but he

rec anted that testimony at trial, admitting that the document he thought was “Exhibi t A,” was not. Kay further admitted that neither of the parties ever signe d off on or initialed an “Exhibi t A” to the e mploy

ment ag ree ment. ¶ 11 Kay ’s understanding of the employ ment ag ree ment was that “[o] n all of my sales that I
persona lly called on, I was to be paid a five perc ent commission. On all of my customers that

wer e alre ady on the Kay Packag ing list, I was to be paid another 2 perc ent.” Kay testified he

was paid the 5% commission on all his sales; howeve r, Prolix failed to pay the additional 2% commission for sales made to his former c ustomers. ¶ 12 E v a Ja

k u bowski, Prolix ’s president and co-owner with Caesar e J akubowski, te s ti f ie d th a t

-3-Prolix never ag ree d to a document as “Exhibi t A” to the employ ment ag ree ment. Concerning the commissions Kay was to rec eive for the customers he broug ht from Kay Packag ing, J akubowski testified that althoug h para g raph 7(B ) discussed the arr ay of customers f o r wh ic h Kay was to rec eive a 2% commission, Kay was paid “one- third beca use it was too much of

an acc ounting difficulty .” J akubowski explained that acc ording to t h e em p l oy ment ag ree ment, Kay was to be paid a 5% commission for brand new customers, those he did not bring with him from Kay Packag ing. Kay was actua lly paid a 7% commission on those sales. J akubowski said “we just lumped [t he five perc ent and the 2 perc ent] toge ther.” She testified Kay was paid a 7% commission for sales he made direc tly to his former customers, as well as for sales made to customers he broug ht with h i m fr o m Kay Packag ing that other P rolix employ ees service d. J akubowski explained that to be profitable, Prolix had to keep the profit
marg ins at 21% and so, Kay would rec eive one-t h i rd of the profit or 7%. She testified the parties a g ree d that if the profit marg in w as less than 21%, Prolix did not have to sell to the former clients of Kay Packag ing. J akubowski testi fi ed t hat Kay rec eived one-third of the profit, or 7%, f

or any client he sold to, reg ardle ss of how that client c ame to be. ¶ 13 Prolix ar gu es t h e re as o n “E x h i b it A” was not attache d to the signe d employ ment ag ree ment was beca

use the parties disag ree d as to which custom er s comprised overr ide
customers. Kay believed all former Kay Packag ing custo m er s s h o u ld be included. Prolix believed only th o s e cu s t omers who wer e purcha sing from Kay 30 day s befor e the AB C
transac tion repr esente d curr ent c u s to me r s of Kay Packag ing for which overr ide commissions

wer e owe d. ¶ 14 Kay testified that “Exhibi t A” was a computeriz ed l i s t o f Ka y P ackag ing c ustomers entitled “Customer Master L isting,” dated J anuar y 15, 1999. This customer list included all of Kay P ac k agi n g ’s customers that exis ted in 1997 throug h J anuar y 1999, just befor e the parties sig ned the employ ment ag ree ment, and a copy was at the AB C transac tion closing. J akubowski testified the Customer Ma ster L isting wa s not “Exhi bit A” to the employ ment ag ree ment and did not repr esent the c ustomers of Ka y Packag ing f

or which K ay

should be
compensated under the overr ide commission provision. She said the par t i es h ad an oral understanding that only those customers of Ka y P ackag ing that order ed product from Kay Packag ing in the month proce eding the AB C transac tion wer e to b e co n s i d ered former customers for

which Ka

y was e ntitled to an override commission. ¶ 15 J akubowski further testified that the parties orally ag ree d that no customers to which both Kay Packag ing and Prolix wer e selling product to at the time just befor e the AB C transac tion

wer e to be considere d Kay Packag ing cust o m er s fo r the purposes of the employ ment ag ree ment. Kay denied this arr ang ement. Acc ording to Kay
, a few mont h s i n to his employ ment with Prolix
, he raised the issue of the underpa y ment of overr ide commissions, but when t h e i s s u e went unresolved he decide d not to pursue it further for fea r of jeopar dizi ng his employ

ment. Kay acknow ledg ed rec eiving sales commissions from Prolix d uring his employ

ment, but claims he believed he was only acknow ledg ing rec eipt o f commissions on hi s direct sa les. ¶ 16 For the first two months of 2000 an d al l o f 2 0 0 2 an d 2003, Kay obtained, throug h discovery
, actua l sales summaries from which his purportedly unpaid 2% commission could be easily calc ulated. Unava ilable, though, wer e simil ar sales summaries for the y ear s 1999,

-4-2001, and the last 10 months of 2000. For these 34 months, Kay mad e an o ff er of proof regard i n g h i s estimate of sales by Prolix to his former customers. The trial court did not allow Kay ’s offe r of pr oof to stand and denied Kay damag es for

the entire 34 months. The
t ri al court observe d that Kay ref used to wade throug h documents stored by Proli x i n a

war ehouse that showed ever y sale by ever

y Prolix salesper son, including Kay
, despite a court order splitt ing the cost of the revie w betwee n the parties. The documents would have enable d

a sales calc ulation for the missing months. Kay insisted that the ex er ci s e o f cre ating summaries from the sales rec ords in the war ehouse would have been overly time-consuming and too expensive. ¶ 17 During trial, the court acknow ledg ed the uncer tainty betwee n the parties conce rning the identity of “Exhibit A,” stating: “Up until today
, I don’t believe that there is any evidenc e that conclusively establishes what Ex hibit A was at or about the time in which th e co ntrac t was enter ed into. We attempted to see if we could g et some clar ification from the attorney s who wer e p ar t i ci pating in the transac tion and the result as least as far as my view is rea lly inconclusive. And the parties, the plaintiff and defe ndant [who] wer e actua ll y at the location of the closing are not quite sure in their own mind or in their testimony befor e

me what exactly Ex h i b i t A wa s , but it has to be resolved beca use Ex hibit A is a very important document.”
L ater , the court ruled that the Customer Master L isting offe red by Kay would constitute “Exhibi t A.” The court stated:
“One fac tual issue in dispute is the identification of Ex hibit A ref ere nced in Section 2A of the Ag ree ment. Kay maintains Ex hibit A is his Ex hibit 3 which was admitted over Prolix ’s objections. Prolix maintains their Ex hibit 27 is the corr ect version of Ex hibit A. After revie wing the trial testimony and the Parties’ proposed fi ndings, the Court finds Kay has m et hi s burden of proof establishing Kay ’s Ex hibit 3 as the correc t version of Ex hibit A refe renc ed in the Ag ree ment.”
I n so holding, the trial court said, “I don’t think Mr. Kay ’s testimony has been sever ely i m p ea ch ed o r i mpaired in terms of cre dibilit y

. So I am willing to acc ept Ex hibit A as he identified it and as it is in the rec ord.” ¶ 18 The court entered j u d gm en t i n favor of Kay
, awa rding $373,417.90 in damag es. I n enter ing its order
, the cou rt const rued the fifth rec ital of the employ ment ag ree ment as requiring one-third of t h e gro ss profit m arg in (ef fec tively 7%) to be paid as a commission
to Kay for sales made by Kay or by Prolix ’s salespeople to former customers of Kay Packag ing. ¶ 19 The c ourt denied posttrial motions by Kay (i) for additional damag es, (ii) to ame nd the amende d complaint to include a count under the I llinois Wage Pay ment and Collection Act (820 I L CS 115/1 et seq. (West 2010) ), and (iii) for an awa rd of prejudg ment interest under the Intere st Act (815 I L CS 205/ 2 et seq. (West 2010)). ¶ 20 Kay

filed a timely

notice of a

ppeal a nd Prolix filed its cross-a ppeal.

-5-¶ 21 ANALYSI S

¶ 22 Estimation of Damag es ¶ 23 Kay contends he should have b ee n al lowed to testify as t o his estimate of damag es for the 34 months for which he claims Prolix wrong fully withheld summary sales repor ts. Kay
argues the trial court err ed in holding as it did, contending that Prolix ’s failure to produce the
summary repor

ts or adequa

tely prese rve them caus e d th e d if f ic ulty in proving actua l damag es and, there fore
, Kay should not have been preve nted from estimating his damag es. Moreove r, Kay argues that reg ardle ss of whether the documents wer e available for revie w, beca use he testified to the fac ts from which he was able to estimate his sales and, there fore
, his commissions for the y ear s for which the summaries wer e not produce d, the evidenc e should have at least bee n considere d in determining his damag es. ¶ 24 Kay testified he reque sted al l d o cu ments from Prolix rele vant to sales made to Kay ’s former customers. The only documents m ade available to him, he said, wer e t h o usands of sheets which showed ever y sale by ever

y Prolix salesper son, not just Kay
, to ever y customer of Prolix ’s, not just Kay ’s f o r me r c u s to me r s , arr ang ed chronolog ically over a five-year period of time and available for revie w only in a cold war ehouse. Kay claims there “we re probably close to 100,000 piece s of paper org anized not by salesman or by sales but org anized by time when they came in a particula r day” and these sheets “we re totally worthless. *** There was

no possible way , unless we would have hired a team of fore nsic acc ountants, to come in and chec k all that. I t was useless.” ¶ 25 Kay test i fi ed he obtained limit ed summary documents, titled “Ana ly sis of De viation,” from B unzl. These documents wer e g ener ated by Prolix ’s computer sy stem and show total

s al es t o all Prolix customers for the y ear s 2002 and 2003. The repor t was printed in Dec em b er 2 0 03, at the same time as the sale of Prolix to Bunzl. Kay introduced this document as tria l exhi bit 8. ¶ 26 J ak u b owski testified that in response to Kay ’s reque st for production of docum en t s , Prolix made available for inspection rec ords of sales for ever y customer of Prolix from 1999 throug h 2003. Prolix also p rovided a computer- g ener ated document, entitled “Sales by S al es m en , ” for the first two months of 2000, which summarized Prolix ’s sales to Kay ’s former customers. ¶ 27 The court summarize d i t s u n d erstanding of J akubowski’s testimony stating, “unless I have it incorre ctly in my rec ord, that there are no summary repor ts she is awa

re of or has in her possession, but there are individual daily
, wee kly
, an d m o n t h ly repor ts.” J akubowski confirme d the cour

t’s understanding

. ¶ 28 Kay argues the analy sis of deviation, which he obtained from Bunzl, as well as the sales by salesman repor

t, show Kay could have easily proved up damag es had t h o s e summary repor ts been provided to Kay in their entirety as reque sted. Kay argues the only infere nce that

can be drawn from the documentar y evidenc e is that the summary documents wer e available for the entire time period of his employ ment and wer e intentionally withheld by Prolix

. Kay testified the only summary repor ts he rec eived wer e those from Bunzl for the y ear s 2002 and 2003, and a c omputer-g ener ated r eport fr om Prolix for the f irst two months of 2000. ¶ 29 The trial cou rt q u es t i oned J akubowski about the documents Prolix made available to

-6-Kay

. The evidenc e is c onfusing conce rning whether summary repor ts w ere made available
to Kay

. I niti al l y , J aku bowski’s testimony appea rs to be that summary repor ts wer e not available

. L ater , J akubows k i te s ti f ie d th e “ e ntire universe of documents” Prolix reta ined afte r its sale to Bunzl wer e made available to Ka y , i n cluding summary repor ts. J akubowski testified that as pa

rt of the sa le to Bunzl, Prolix ’s entire computer sy stem was turned over. She was unsure whether the information technolog y personne l had reta ined a backup sy stem for Prolix ’s files, but c laimed that all of the data from their computer sy stems w as reta ined in hard c opy

form and ma de ava ilable to Kay for r eview. ¶ 30 To overc ome t he lack of business re cords pr ovided by Prolix , Kay

prepa red e x hibit 12
to show the commissions he was due for 1999, a 10-month period in 2000, and 2001. Ex hibit 12 showed the sa les and c ommissi ons due Ka y for sales to his former customers by Prolix employ ees which wer e direc tly supported and proven by the business rec ords in the form of
summary repor

ts obtained from Bunzl along with Kay ’s estimates of sales and commissions for the 34 months for which no summary repor ts wer e produ ced. The estimates for the 34 months wer e based on an offe r of proof in which Kay testified from his knowledge and experience that sales to his customers wer e about the same for the entire t i m e o f his employ ment. Ex hibit 12 used the aver ag e amount of sales during the period, which was supported by Prolix ’s business rec ords to support the estimate of sales and commissions he

was owe d for the undoc umented per iod. ¶ 31 The trial court ruled that Kay ’s testimony was too speculative and, there fore
, the court refu s ed t o co n s i d er it as proof of hi s actua l damag es for those time periods. I n its order of judgme nt on J anuar

y 5, 2011, the trial cour

t refuse d to e nforc e a sanction ag ainst Prolix as reque sted by Kay for the spoliation of ev i d en ce. I n response to the parties’ dispute

conce rning the production of summary repor ts, the court stated that Prolix was only require d to produce documents maintained in the “ ordinary course of business.” ¶ 32 On the issue of damag es, the trial court only considere d the docu m en tary evidenc e of Kay ’s actua l sales, not the projec ted numbers testified to in the offe r of proof. The trial court held Kay failed to offe r evidenc e that the documents he neede d to show his actua l damag es

wer e not made available for inspection by Prolix

. The court explained that Prolix was not require d to “cr eate documents for [Kay ],” but rathe r, only to “make them available to [Kay ] in the manner in which the ordinary course of business they wer e kept.” The trial court found it signific ant that, despite having the opportunity to do so, Kay chose not to inspect Prolix ’s
actua l documents and, i n s t ea d, chose to rely on projec tions to support his reque st for damag es. The tr i al court rec og nized that in cer tain circ umstances projec tions may be admissible, but found that beca use Kay had an opportunity to view the actua l documents and chose not to g o throug h them, thi s s i t u ation was not a circ umstance in which projec ted damag es we re a

ppropriate

. ¶ 33 We revie w a challeng e to the t rial court’s ruling s afte r a bench trial using the man i fe st weig ht of the evidenc e standard of revie w. Fox v. Heimann
, 375 I ll. App. 3d 35, 46 (2007). To reve rse a finding of dama ges as a re v iewing court, we must find that the trial court ignor ed the evidenc e or that the measure of damag es was err oneous as a matter of law. B& Y Heav y Move rs, Inc. v. Fluor Constructors, Inc.
, 211 I ll. App. 3d 975, 984 (1991). The party seeking damag es bear s the burden to establish not only that it has sustained damag es, but also

-7-a rea sonable basis for computation of those damag es. Dowd & Dowd, Ltd. v. Gleason
, 352

I ll. App. 3d 365, 383-84 (2004). Speculation and conjec ture are not proper bases for an

awa rd of da mag es. Dowd & Dowd, Ltd. , 352 I ll. App. 3d at 383. ¶ 34 The trial court err ed in ref using to co n s i d er Ka y ’s estimation of his damag es for the undocumented period of his employ ment. Kay ’s estimation of his damag es was not improperly based on speculation a nd conjec ture, but on rea sonable infere nces based on his
persona l knowledg e and sales numbers for the surrounding t i m e p er i o d
, as well as the difficulty and cost-prohibitive nature of asce rtaining the actua l amount of his damag e for that period by inspecting the voluminous available documents. Kay testified to the fac ts by which he wa s able to estimate his sales a nd, there fore , his overr ide commi ssions for the y ear s for which summary documentar y evidenc e was unavailable

. He testified that the sales by Prolix employ ees to the former customers of Kay Packag ing rema ined about the same for his fivey ear period of employ

ment and also simil ar to his prior y ear s’ sales at Kay Packag ing. Under these circ umstances, Kay ’s testimony and his exhibi ts should have been allowed into evidenc e as a rea sonable estimation of his unpaid commissions for the undocumented time period. The sufficie ncy of t h e ev i dence of damag es g oes to the weig ht acc orded Kay ’s testimony
, but not t o i t s admi ssibili ty

. To the extent Prolix ’s conce rn is that Kay

overe stimated his damag es, Prolix ’s counsel proper ly could have cross-e x amined Kay as to his projections or off

ere d evidenc e to the contr ary

. ¶ 35 I n holding the trial court err ed in ruling that the estimation o f Ka y ’s d am ages was not

wa rr anted under these circ umstances, we make clea r that g oing forwa

rd, the trial court i s under no obligation to acc ept Kay ’s esti mations for the undoc umented time per iod as t hey

wer e provide d. I n a benc h trial, it is the re sponsibili ty of the trial judg e, as the trier of fac t, to resolve fac tual issues and to deter mine the credibility of t he witnesses, t h e weight t o be
g iven their testimony
, and the rea sonable infere nces to be drawn from the evidenc e. People v. Campbell , 146 I ll. 2d 363, 375 (1992). ¶ 36 We rema

nd this matter for the tri al co u rt t o co n s i d er Kay ’s testimony and exhibits

conce rning estimation of the damag es he sustained for the 34 months of his employ ment in which no summary documentation was provided from which he could definitively prove his damag es. The appropr iate damag es for this time period must be awarde d b y the t rial court using the 2% overr ide commission rate provided in para g raph 7(B ) of the parties’ employ ment ag ree ment.

¶ 37 Wage Pay ment and Collection Act Claim ¶ 38 Kay contends he should have been allowed to amend his complaint to include a count for violation of the I llinois Wage Pay ment and Collection Act (820 I L CS 115/1 et seq. (West 2010)). ¶ 39 The orig inal complaint was filed on Fe bruar y 3, 2004. Kay filed a motion to add a count for attorney fee s under the Sales Represe ntative Act (820 I L CS 120/1 (West 2010)), befor e the ons et of trial, which the court de nied. Trial was held and the evidence heard and taken befor e August 16, 2010. On J anuar y 5, 2011, the trial court enter ed its finding of liability and order ed Kay to submit his damag e computation b ef o re J an u ary 19, 2011. On J anuar y 27,

-8-2011, almost se ven y ear s afte r the filing of his or igina l c omplaint, Ka y filed his motion for leave to file a second amende d complaint to state a cause of action under the Wage Pay ment and Collection Act. The trial court denied Kay ’s motion on Marc h 17, 2011, stating there are “no provisions in the Wage Act that authorize the court to awa rd attorney fee s to a succe ssful litigant,” and holding that the motion would require reope ning of p ro ofs and, thus, was boug ht too late. ¶ 40 Kay argues that the trial court was incorre ct b ec au s e t h e am ended version of the Act, which beca

me eff ective J anuar

y 1, 2011, provided for attorney fee s t o be awa rded to a

succe ssful p l ai n t i ff, as well as 2% interest per month on the amount of wag es wrong fully withheld by the employ er. Kay contends that the exis ting I l linois Wage Pay ment and Collection Act g rante d the same relief Kay had soug ht at trial, the only rele vant chang e being the addition of a rig ht to attorney fe es an d an incre ase in the assessed penalty

. Although Kay ’s orig inal motion should have been filed under the Wage Pay ment and Collection Act,
not the Sale Represe ntative Act, he argues that allowing the amendment would not prejudice Prolix beca

use Prolix was awa

re of the fac ts nece ssary for a cause of action under the Wage Pay ment and Collection Act, an d t h e motion came befor e the court’s final ruling

. Kay contends the trial court abused its d i s cr et i o n in denying his motion to amend beca use his motion was one to confor m the pleading s to the proof and t h e trial court improperly considere d it untim ely

. ¶ 41 We revie w an order denying a motion seeking leave to amend a complaint using an abuse of disc re t i on standard. Mandel v. Hernande z , 404 I ll. App. 3d 701, 707-08 (2010). The
g ener al rule is that a

mendments should be g rante d liberally ; ne verthe less, a party ’s rig ht to amend is not absolute and unlimit ed. Goldberg v. Brooks
, 409 I ll. App. 3d 106, 113 (2011). As this court has explained: “The rig ht to amend pleading s is not absolute, and the timeliness of such a reque st may be considere d by the court in its discretion. [C itation.] The court should exercise its
power to permit amendment with a view toward al l o wing a party to prese nt fully his

cause s of action. [C i t at i o n .] Ordinar ily
, amendment should not be allowed wher e the
matters asser

ted wer e known by

the moving pa

rty at the time the orig inal pleading was draf ted and for which no excuse is offe red in explanation of the initial failure

. [C itation.] The test to be applied in deter mining whether th e trial court’s discretion was proper ly exercised is whether allowanc e of the amendment further s the ends of justi c e

. [C it a

ti o n .]” Trans W orld Air l i nes, Inc. v. Martin Automatic, Inc.
, 215 I ll. App. 3d 622, 627-28 (1991). ¶ 42 I n deter

mining whether to allow an amendment to the pleading s, the trial court c onsiders the following fac tors: (1 ) wh et h er the proposed amendment would cure a defe ct in the pleading s; (2) whether the proposed amendment would prejudice or surprise the other party ; (3) whether the proposed amendment is timely ; and (4) whether t h ere wer e previous opportunities to amend the ple ading

. Loyola A cadem y v. S& S Roof Maintenance

, Inc.
, 146 I ll. 2d 263, 273 (1992). “The test to be applied in deter mini n g whether the trial court’s discretion was proper ly exercised is whether allowanc e of the amendment further s the ends of justice.” Trans W

orld Airlines, Inc. v. Martin A utomatic, Inc. , 215 I ll. App. 3d 622, 628 (1991) (no abuse of discretion in denying defe ndant’s motion to file second amende d

-9-counter claim).

¶ 43 The trial court properly ex er ci s ed i t s discretion in denying Kay ’s request to amend his complaint for a second time to add a new claim seeking additional relief

. Considering eac h fac tor, none we ighs in fa

vor of a llowing Ka

y to amend his complaint. ¶ 44 Kay filed his motion for leave to file a second amende d complaint on J anuar y 27, 2011, almost seven y ear s afte r filing his orig inal complaint, five months afte r the close of evidenc e, and sever al wee ks afte r the court issued its order finding liability

. Although Kay technica lly
soug ht to amend his complaint befor e the court enter ed its fi n al j u d gm ent, Kay neither moved t o co n fo rm the pleading s to the proof nor offe red any explanation for filing his motion at such a late stag e in the proce eding s. “[W ]here the fac ts soug ht to be alleg ed on the

eve of or during trial are known t o t h e party at the time of orig inal pleading and no g ood

rea son is offe red for their not having been filed at that ti m e, l ea ve to amend is proper ly denied.” Carlis le v. Harp
, 200 I l l

. Ap p

. 3 d 908, 915 (1990) (citing First National Bank & Trust Co. of Evanston v. Sousanes , 66 I ll. App. 3d 394, 396 (1978)). ¶ 45 The trial court prop er l y fo u n d Ka y ’s motion to amend was untimely

. Kay had ample opportunities to amend his c omplaint. I n fac t, K ay was g rante d leave to a mend his or igina l complaint, but at that time, he did not reque st leave to add a claim under the Wage Pay ment and Collection Act, even though the fac ts neede d to prove t h e claim wer e known to him. Addit i o n all y , Kay ’s untimely reque st would have prejudice d Prolix

. Had the trial court allowed Kay ’s proposed amendment, plaintiff’ s p ra y er for relief would have incre ased signific antly

. Had plaintiff’s amendment been allowed, Prolix could have been liable not only for unpaid comm issions, but also signific ant penalties and possibly attorney fee s depending on whether the ame n d ed version of the W ag e P ay ment and C ollection Act was to be applied r etroa ctively

. ¶ 46 Kay ’s proposed amendment was not made to cure a defe ct in the pleading

. Instead, Ka y soug ht to amend his pleading s to add a new claim, seeking an amount of relief substantially
g reater than what was or igina lly soug ht. ¶ 47 L astly
, Kay has not shown the ends of justice would be further ed by g ranting his r equest to amend. The reque st to amend went only to the amount of recover y he sought, not to his rig ht to rec over. I n light of the fac t that Kay ’s reque st came afte r the trial had ended and afte r liability had been deter

mined, we cannot say allowing the amendment would have further ed the ends of justice

. ¶ 48 Since the amendment was proposed afte r the close of the trial and not during the pleading stag e, the trial court did not abuse its discr etion when it denied K ay ’s motion to amend the pleading s beca

use the motion was untimely
, prejudice d Prolix
, and could have been broug ht
at an ear lier time. We aff

irm the trial court’s decision denying Kay leave to file an amende d complaint to include a Wag e Pay ment and Collection Act c laim.

¶ 49 Prejudg ment I ntere st ¶ 50 L astly
, Kay contends the trial court err ed when it denied prejudgment interest under the I ntere st Act (815 I L CS 205/2 (W es t 2 0 10)). The trial court ruled that uncer tainty exis ted
reg arding the customer list and sales numbers until trial an d
, thus, the judgme nt was not

-10-subject to prejudg ment interest.

¶ 51 We reviewthe trial cour t’s decision under

the I ntere st A ct using an abuse of discretion standard. Gree nberger, Krause & Tenenbaum v. Catalf o , 293 I ll. App. 3d 88, 97 (1997). The I ntere st Act provides for the awa rd of interest when money is withheld “by an unrea sonable and vex atious delay of pay ment.” Gree nberger, Krau s e & Tenenbaum
, 293 I ll. App. 3d at 99. As the trial court corr ectly held, Prolix raised leg itimate arguments at trial conce rning the exis tence and enfor cea

bility of the overr ide commissions cl au s e in the employ ment ag ree ment and, there fore
, the trial court did not abuse its discretion in holding that Prolix ’s actions wer e not unrea sonable or vexatious and prejudg ment interest wa s not war rante d. Acc ording ly , we uphold the tria l court’s ruling

.

¶ 52 Cross-Appea l ¶ 53 “Exhibi t A” of Employ ment Ag ree ment ¶ 54 I n its cross-a

ppeal, Prolix contends the trial court’s judgme nt in favor of Kay should be

reve rsed wher e the evidenc e was undisputed that there was n o m ee t i ng of the minds as to “Exhibi t A,” which Prolix char acte rizes as essential to Kay ’s employ ment ag ree ment. Prolix
argues that by adopting the customer list offe red by Kay to constitute “Exhibi t A,” the court supplied a materia l term to the parties’ employ ment ag ree ment to which the parties had not ag ree d. Prolix acknow ledg es the parties ag ree d that an overr ide commission was to be paid
to Kay
, but argues the parties never agr eed on the identity of the customers for whom the

overr ide commi ssion was owed an d
, there fore
, they never rea ched an actual ag ree ment on this contract pr ovision. ¶ 55 I n a bench trial, it is the function of the trial judge
, as the trier of fac t , t o we i gh t h e evidenc e and make fac tual deter minations. Kalata v. Anheuser-Busch Cos.
, 144 I ll. 2d 425, 433 (1991). Whether

a contra ct exis ts be tween the parties, the pa rties’ intent in formingit, and the contract’s terms are all questions of fac t. Hedlund & Hanley, LLC v. Board of Trustees of Community College District No. 508 , 376 I ll. App. 3d 200, 205 (2007). Where the evidenc e is close and the finding s of fac t must be deter mined from the cre dibilit y of the witnesses, as a court of revie w, we defe r to the trial court’s fac tual finding s unless they are ag ainst the manifest weig ht of the evidenc e. Kalata
, 144 I ll. 2d at 433. A judgme nt is ag ainst the m anife st weig ht of t he evidence when the opposite conclusion i s appar ent or when the finding s are unrea sonable, arbitra ry , or not based on the evidenc e. Hedlund & Hanley, LLC
, 376 I ll. App. 3d at 205. ¶ 56 Prolix argues the trial court’s deter min at i o n t h at Ka y ’s p ro ff ered Customer Master L isting was meant to be “Exhibi t A” was not sufficie ntly supported by the evidenc e. Prolix contends the parties’ testimony is undisputed that despite there being numerous documents
prese nt at the AB C transac tion closing
, no document was marke d “Exhibi t A,” nor was there
any ag ree ment betwee n the parties as to which customers wer e to be included in “Exhibi t A.” Prolix argues these fac ts support its contention that the parties had differ ent views of which
customers should be included in “Exhibi t A” and, there fore
, the trial court’s find i ng as to what constitutes “Exhibit A” wa s unrea sonable a nd not based on the e vidence prese nted. ¶ 57 Rely ing on the supreme court’s decision in Acade my Chicago Publishers v. Cheev er , 144

-11-I ll. 2d 24 (1991), Proli x argues no enfor cea ble contract ex isted beca

use t he parties did not ag ree about the identity of the customers who wer e to comprise “Exhibi t A,” a prer equisite
to computing any overr ide commissions due plaintiff. I n Acade my Chicago Publishers
, the
supreme court foun d no contra ct exis ted betwee n the parties beca use the terms of the publishing ag ree ment wer e not def inite and ce rtain enoug h to allow the cour t to deter mine the intent of the pa

rties. Acade my Chicago Publishers , 144 I ll. 2d at 29. ¶ 58 Kay contends the trial court’s finding reg arding “Exhibi t A” was not an interpre tation of the contra ct as arg

ued by Prolix
, but a fac tual finding deter min i n g which documentar y evidenc e prese nted at trial was the document ref err ed to a s “Exhibi t A ” in the employ ment ag ree ment. Kay argues, there fore
, the trial court’s finding cannot be overturne d unless it was ag ainst the manifest we ight of the evidenc e, which K ay contends it was not. ¶ 59 Kay argues that beca use a written contra ct exis ted betwee n the parties, the trial court, a s trier of fac t, was char g ed with deter mining the m ea n i n g of the words of that contra ct, specific ally
, what documentar y evidenc e constituted “Exhibi t A.” Kay contends ample fac ts i n the rec ord support the trial court’s fac tual finding that the Customer Master L isting, Ex hibit 3, is what the par ties’ contemplated as “Ex hibit A” to the employ ment ag ree ment. The parties ag ree that copies of the C ustomer M aster L isting were at the closi ng and there

was no other document listi ng custom er s prese nt. The only rea son the Customer Master L isting was not attache d to the employ ment agree ment, acc ording to Kay
, was its hefty siz e. ¶ 60 Despite the absenc e of an “Exhibi t A,” the employ ment agree ment is enfor cea ble. As the Seventh Circuit Court of Appea ls has noted, “[t] he fac t that a contra ct is incomplete, prese nts interpre tive questions, bristles with unresolved conting encie s, and in short has as many holes

as a Swiss chee se does not make it unenfor cea ble for indefiniteness.” Haslund v. Simon Property Group
, Inc.
, 378 F.3d 653, 655 (7th C i r. 2004). Moreove r, the conduct of the parties in perf

orming under the employ ment agre em en t fo r almost five y ear s shows the parties could not have possibly intended that unless there was an ag ree d list of customers for purposes of the overr ide commissions, there would be no c ontrac t. ¶ 61 Ge n erally
, when the contra ct is a fully integ rate d writing the parol evidenc e rule ba rs evidenc e of understanding s rea ched befor e or contempora neously with the contra ct’s execution that vary or modify its terms. Eichengre en v. R ollins, Inc.
, 325 I ll. App. 3d 517, 521 (2001). But, the p arol evidenc e rule allows extrinsi c evidenc e of additional and consistent terms when the contra ct appea rs incomplete or ambig uous on its fac e. “I t is well settled that a court, when construing a contra ct, should asce rtain the intent of the parties and
g ive eff ect to that intent.” Id

. L ooking at the four corne rs of the instrument reve als whether

or not it is fully integ rate d. Midwest Builder Distributi ng, Inc. v. Lord & Essex, Inc.
, 383 I ll. App. 3d 645, 661-62 (2007) . Moreove r: “Where a contra ct is not expressive of the complete ag ree ment and understanding of the parties, consideration of antec edent proce eding s does not serve to vary the contra ct terms but exemplifies the t erms of the ag ree ment. Fur thermore , all rele vant evidence may be consi d er ed to deter

mine whether a particula

r writing is the complete agree ment of the parties.” Northern Trust Co v. Brentwood North Nursing & Rehabilitation Center, Inc.
, 225 I ll. App. 3d 1039, 1042 (1992) (c iting Lewis v. Loyola University of Chicago , 149

-12-I ll. App. 3d 88, 93 (1986)).

Having found the trial court proper ly deter m i ned there was an ambig uity in the contra ct

conce rning what constituted “Exhibi t A,” wher e no document entitled “Exhibi t A” was attache d to th e em ploy

ment ag ree ment, the t rial court proper ly admitted parol evidence of the par ties’ intent. ¶ 62 The employ

ment ag ree ment specific ally ref err ed to a customer list, “Exhibi t A,” that was to be incorpora

ted into the contra ct and, there fore
, the trial court proper ly conclude d that on its fac e, the contra ct was incomplete. The trial court considere d parol evidenc e, i.e.
, the conflictingtestimony

about the adopte d customer list, and conc luded the par ties meant for Kay ’s Customer Master L isting to b e “ E xh ibit A” to the employ ment ag ree ment. This finding is not ag ainst the manifest weig ht of the evidenc e. The evidenc e established, and Prolix never ref uted, that copies of the Customer Master L isting wer e prese nt in the room at the closing of the AB C transac tion. No other documents purporting to be a customer list were enter ed into evidenc e. J akubowski admitted she never put toge ther a differ ent customer list nor did she alleg e there was one; instead, she claimed the part i es had an oral understanding as to

wh ich former Kay Packag ing customers wer e to be considere d for overrid e c o mm is s io n s

. Sh e further acknow ledg ed that she rea d the employ ment ag ree ment at the AB C transac tion closing and that she knew it ref err ed to “Exhibi t A” as an alre ady exis ting document, not one to be cre ated by the parties at a later date. The trial court’s deter m i n at i o n that Kay ’s Customer Master L isting was “Exhibi t A” to the employ ment agree ment is supported by the evidenc e and, the ref

ore, w ill not be rever sed.

¶ 63 Computation of Damag es ¶ 64 Prolix argues the trial court err ed in its computation of the damag es due Ka y by failing
to g ive eff ect to the admissions of Kay and his counsel and the express lang uag e in para g raph 7(B ) of the parties’ employ ment ag ree ment that the commission rate attributable to overr ide sales wa s 2%. ¶ 65 The trial court enter ed judgme nt in favor of Kay in the amount of $373,417.99. I n doing
so, the court held Kay was entitled to rec eive a 7% commission on all sales to Kay ’s former
custom er s l i s t ed in “Exhibi t A.” The basis for the trial court’s holding was its ruling that

rec ital five of the emplo y m ent ag ree ment require d that Kay rec eive one-third of the g ross profit marg in “mea

nt to in cl u d e the two perc ent (2 perc ent) consulting fee being paid to plaintiff.” The trial court stated, “[t] he phrase consulting fee is not define d in the Ag ree ment and the Court construe s it to mean the two perc ent pay able under S ection 7(b).” The court explained:
“K ay ’s proposed damag es model calc ulates commission by applying two perc ent to Gross Sales. The model does not include a calc ulation of Gross Profit Marg in and as such is incomplete by failing to take into acc ount the provisi ons of R ecital 5. I n the C ourt’s view, Kay ’s damag es (compe nsation due) must be calc ulated by deter mining the Gross Sales Price for all product sold by Prolix to the customers listed in Ex hibit A. The result is then t o be mul tiplied by t he 21 perc ent ex pecte d profit and the result should then be divided 2/3 to Prolix and 1/3 to Kay

. *** I t should be noted Kay and Prolix agree d to this

-13-method when de termining commissions due to Kay for pr oducts sold by

him.” ¶ 66 Prolix filed a posttrial motion challeng ing the court’s calc ulation of damag es, which the trial court denied. On appea l, Prolix argues the trial court’s finding ignor ed Kay ’s counsel’s admission that th e fifth rec ital only ref err ed to direc t sales and not to commissions attributable to sales by Prolix ’s other employ ees, i.e.
, overr ide commissions. Prolix contends that by order ing a 7% commission due on overr ide sales, the court’s order rende red nug atory the entire provision in para g raph 7(B ), which limit ed the commission on overr ide sales to 2% of g ross sales. ¶ 67 I llinois law has long held that “an ad m i s s i o n b y an attorney for a party during the trial
superse des all p roofs upon the point in question.” Standard Managem ent Realty Co. v. Johnson
, 157 I ll. App. 3d 919, 924 (1987) (citing Darling v. Charleston Community Mem orial Hospital
, 50 I ll. App. 2d 2 5 3 (1 9 6 4)). “Judi cial admissions are define d as deliberate, clea

r, unequivoca l statements by a party about a concr ete fac t within that party ’s knowledge. ” Smith v. Pavlovic h
, 394 I ll. App. 3d 458, 468 (2009) (citing In re Estate of Rennick
, 181 I ll. 2d 395, 406 (1998))

. Admissions are “for mal acts of a party or its attorney in court, dispensing with proof of a fac t claimed to be true, a nd are used as a

substitut e for leg al evidenc e at trial.” Dremc o, Inc. v. Hartz Construction Co.
, 261 I ll. App. 3d 531, 535-36 (1994). “Attorne y s are deeme d ag ents of their clients for the purpose of making admissions in all matters relating to the prog ress and trial of an action.” Lowe v. Kang
, 167 I ll. App. 3d 772, 776 (1988). “ [W ]hether or not a state ment by an attorne y

in the course of [a] trial is a judicial admission depends upon the circ umstances of the individual case and the g iving of

a consistent meaning to the statement within the context in which it is found.” Lowe
, 167 I ll. App. 3d at 777. I n revie wing the trial court’s treatment of a judicial admission, we apply an abuse of discretion standard. Smith
, 394 I ll. App. 3d at 468. An abuse of discretion is found wher e no rea sonable person would take the view adopted by the t ri al court. Smith
, 394 I ll. App. 3d at 468. ¶ 68 Throug hout trial, Kay tes t i fi ed h e wa s s ee k i n g co m p en s at i o n fr o m P rolix for underpa y m ent of compensation for the 2% commissions attributable to indirect sales to customers listed on “Exhibit A” to the e mploy ment ag ree ment. Kay

testified:
“N o, they paid me my commission but I never g ot the two perc ent on t h e o t h er

acc ounts.”
“I was e ntitled to two perce nt.”
“I want an acc ounting of all of the Kay Packag ing sales made by Prolix ’s other people, of which I would be entitled to my

two perc ent commission.” Kay ’s counse l admitted at trial that the over ride c ommissi on rate was 2%. Counsel state d:
“Your Honor, we’ re not complaining about [pl aintiff’s] direc t sales. This [fifth]

rec ital ref ers to [pl aintiff’s] direc t sales, the sales he makes himself on which he g ets five
perc ent plus two perc ent. We’re not complaining a bout that in this case

. All we’ re complaining–as defe ndant well knows, all we’ re complaining about is the
two per ce n t t h at ’s ref

err ed to in para g raph 7(B ) that applies to his sales by Prolix salesmen to [plaintiff’s] customers on the master list.”

-14-The damag e calc ulation Kay tender ed to the court confirme d in i t s t i t l e that he was only

seekingthe 2% c ommissi on associate d with the overr ide sales:
“A n al y sis and Summary of Two Perce nt (2 perc ent) Commi ssions Due Ba rry Kay Pursuant to ‘Commissi oned Salesperson Emplo y me n t, Co n s u lt in g a

n d N on-Competition Ag ree ment’ with Prolix Packag ing, I nc.” ¶ 69 Prolix argues that beca use Kay admitted the overr ide commission rate was 2%, the court was bound to apply

the 2% ra

te to compute the c ommissi ons due Ka y

. ¶ 70 Kay submits there is nothing in the wording of the employ ment ag ree ment that require s

an overr uling of the trial court’s interpre tation of the contra ct on this issue, and the trial court could rule he was owed a 7% commission on all sales based on the behavior of the parties. ¶ 71 Kay ’s trial test i m o n y , as we l l as his counsel’s statements, establish that the over ride commission due for indirec t sales was 2% of g ross sales. The trial c ourt’s orde r over stated the damages due Kay by ignor ing the admissions of Kay and his counsel as to the proper interpre tation of the fifth recital and para g raph 7(B ) and, there fore
, applying a 7% commission rate , when a 2 % co m m ission rate should have been used. Additionally
, principals of contra ct construction sugges t t h at when a g ener al and specific clause can be

rea d inconsistently
, the specific clause should preva il. See Heifner v. Board of Education of Morris Community High School District No. 101
, 32 I ll. App. 3d 83, 88 (1975) (“Where one intention is expressed in one clause in an instrument and a differ ent conflicting i n tention
appea rs in another clause in the same instrument, it is the better rule that intention should be
g iven full eff

ect which appea

rs in the more principal and specific clause
, and that the g ener al clause should be subjected to such modification or qualification as the specific clause makes

nece ssary .”). Acc ording ly
, we find the trial court abused its discretion in failing to rule that Kay and counsel’s statements constituted a binding judicial admission that the overr ide commission rate for indirect sales was 2% and by issuing a ruling that rende red nug atory para g raph 7( B) in favor of the more g ener al clause in rec ital five of the pa rties’ c ontrac t. ¶ 72 That Prolix overpa id Kay for commissions assoc iated with indire ct sales doe s not alter the fact that under the express terms of the employ ment agre em en t , Kay was only entitled
t o re ce i v e commissions on sales made by Prolix ’s employ ees to customers identified in “Exhibi t A” at a

2% rate. ¶ 73 Prolix did not waive its rig ht to enfor ce the terms of the contra ct as written beca use the
contra ct containe d a “N on-Waiver” provision stating:
“E. No n -W ai v er

. The failure of any party to insist, in one or more instances, on perf ormanc e by the other in strict acc ordanc e with the terms and conditions o f t h is Ag ree ment shall not be deeme d a waiver or relinquishment of any rig ht grante d here under or of the future perf ormanc e of any such term or condition of this Ag ree ment unless such wa iver is containe d in writing sig ned by or on bef ore of all parties.” ¶ 74 Acc ording ly
, we rec alculate the awa rd to g ive meaning and eff ect to the express lang uag e of para g raph 7(B ) of the parties’ contra ct, as well as the admissions of Kay and his counsel that the commission rate for overri d e sales is 2%. Applying the corr ect rate of 2%, the

overr ide commissions for the first two months of 2000, and the y ear s 2002 and 2003, total $106,858.05 (($336,747.21 + $2,429,378.64 + $2,576,776.00) x .02).

-15-¶ 75 Prolix ’s Equitable De fense s

¶ 76 Prolix argues the trial court err ed as a matter of law in failing to ad d re s s its equitable defe nses of laches
, estoppel
, and unclea n hands. Prolix contends that beca use Kay acc epted commission pay

ments for five y ear s and waited until afte r the sale of the business, when Prolix no longe r had acc ess to its business rec ords, to bring his claims, Prolix ’s proff ere d equitable defe nses shoul d h av e b een considere d by the trial court. Prolix reque sts that the judgme nt be reve rsed to allow the trial court to consider the application of t he equitable defe nses to Kay ’s claim. ¶ 77 I n as s erting an aff irmative defe nse, the defe ndant bear s the burden of establishing th e defe nse b y a preponde ranc e of the evidenc e. O’Brien v. Mey er , 281 I ll. App. 3d 832, 834 (1996). The mere passag e of time does not constitute laches ; the party asser ting the doctrine
must show prejudice

. La Salle National Bank v. Dubin Residential Communities Corp.
, 337 I ll. App. 3d 345, 351 (2003). Estoppel require s a showing of prejudicia l relianc e on the other party ’s conduct. Trossman v. Philipsborn
, 373 I ll. App. 3d 1020, 104 0 -4 1 (2007). The unclea n hands doctrine require s consideration of the p ar t y ’s intent of fra ud or bad faith. Schivare lli v. Chicago Trans it Authorit y , 355 I ll. App. 3d 93, 103 (2005). ¶ 78 Prolix argues Kay ’s testimony supports its conclusion that Kay never informed it that he had any conce rn of being underc ompensated on overr ide commissions. But, Kay testified he spoke with both J ak ub o ws kis at the beg inning of his employ ment conce rning the underpa y ment of override commiss ions, and t h e J akubowskis t old him they would revie w the issue. Kay said he later followed up with them and they informed him they had revie wed the documents, but could not pay him the commissions

. ¶ 79 Ba sed on the evidenc e prese nted, Prolix failed to meet the requisite showing s to support its claim of equitable defe nses. Under these circ umstances, we cannot conclude the trial court’s finding that the defe nses wer e unavailable to Prolix was ag ainst the manifest weig ht of the e vidence

.

¶ 80 CONCL USI ON ¶ 81 The trial court err ed in holding Kay was not entitled to estimate his damag es for the 34- month time period in which no documentar y evidenc e was prese nted of his actua l damag es. Acc ording ly
, we rema

nd this matter for the trial court to reope n the case for the limit ed
extent of hear ing further testimony and other evidenc e reg arding an awa rd of the appropr iate damag es for this limit ed time period, using the 2% over ri de commission rate provided in
para g raph 7(B ) of the parties’ employ ment ag ree ment. We hold the trial court did not abuse its discretion in deny

ing Kay ’s reque st to amend his complaint to include a co unt for violation of the Wag e Pay ment and Collection Act a nd for pr ejudg ment interest. ¶ 82 Wit h respect t o P ro l i x ’s cr o s s-appe al, the trial court’s deter mination that the par

ties
meant for Kay ’s Customer Master L isting to be “ Ex hibit A” to the employ ment ag ree ment was not ag ainst the manifest we ight of the evidenc e and, theref

ore, w ill not be overturned. The trial court also proper ly deter mined Prolix failed to meet its burden to show the equitable defe nses wer e supported by the evidenc e. We do find, howeve r, that the trial court err ed in computing Kay ’s damag es without reg ard to Kay ’s admissions as to the commission rate to

-16-which he was entitled. We rec alculate the awa rd, apply ing the corr ect rate of 2% and, thus, the overr ide commissions for the first two months of 2000 and the y ear s 2002 and 2003 total $106,858.05.

¶ 83 Affir

med in part a

nd reve rsed in par

t; cause r emande d with directions.

-17-