2014 I LApp (1st) 131522 FI FTH DIVI SI ON FEB RUARY 7, 2014

No. 1-13-1522 RI CO I NDUSTRI ES, I

NC., an I llinois Corporation, ) Appea l from the ) Circuit Court of Plaintiff-Appellant, ) Cook County
. ) v. ) No. 12 CH 35979 ) TL C GROUP, I

NC., an Arka

nsas Corporation, ) Honora ble ) Diane L . L arse n, Def endant- Appellee
. ) J udg e Presiding
. PRES I DI NG JUS TI CE GORDON de livered the judgme nt of the cour t, with opinion. J ustices Palmer a

nd Taylor conc urre d in the judgme nt and opinion.

OP INION ¶ 1 Plaintiff Rico I ndustries, Inc. (Rico) , enter ed into an agree ment with defe ndant TL C Group, Inc. (TL C), makingTL C the exclusive sales repr esentative of its products to Wal-Mart Stores, Inc. (Wal-Ma

rt), and its af

filiates and subsidiarie s. The agree ment contained a termination provision which stated that the c ontrac t may only be ter minated by

the written ag ree ment of both parties. Rico f iled a dec laratory

judgme nt action, see king a judgme nt that the ag ree ment is terminable at will bec ause the termination provision cre ated a perpe tual contra ct and is thus contrar

y to I llinois public policy . In its answer, TL C pled counterc laims for bre ach of contra ct, quantum meruit , an ac counting , and ca uses of a ction under the Arka nsas salesNo. 1-13-1522

repr esentative statutes and the I llinois Sales Repre sentative Ac t. Ark. Code Ann. § 4- 70-301 et seq. (West 2012); 820 I L CS 120/ 0.01 et seq. (West 2012). ¶ 2 TL C filed a motion pursuant to section 2-615 of the I llinois Code of Civil P roce dure f or judgme nt on the pleading s reg ardingwhether the termination provision cre ated a perpe tual contra ct. 735 I L CS 5/ 2-615(a ), (e ) (West 2012). The trial court grante d the motion, finding that the termination provision was not unenf orce able a s a matter of

public policy . Rico filed a motion reque sting a

Rule 308 finding ( I ll. S. C t. R. 308 (eff. F eb. 26, 2010)) , and the tria l court ce rtified the followingquestion for our r eview: " Does a sales re prese ntative agree ment that can only be terminated upon the express written conse nt of both parties c ontain a spec ific objec tive event that rende rs the agree ment sufficie ntly definite in duration such that it is not terminable a t will? " F or the followingrea sons, we answ er the cer tified question "no," and, ther efor e, re verse and re mand for f urther pr ocee dings, inc luding c onsideration of TL C's c ounterc laims. ¶ 3 BA CKGROUND ¶ 4 The followingfac ts are ta ken fr om the pleading s and ar e not in dispute. Rico is an I llinois corpor ation eng ag ed in the business of manuf actur ing nove lty

products. TL C is an Arka nsas cor poration that ac ts as a sale s repr esentative. On Dec ember 17, 2007, Rico and TL C enter ed into the agree ment at issue, which wa s attache d as an e x hibit to t he complaint. TL C ag ree d to serve a s Rico's e x clusive sales r epre sentative to Wal-Mart a nd its subsi diaries a

nd aff iliates. The entire ty

of the a g ree ment is only

two-thirds of a pa g e long . Under the agree ment, TL C has the right to serve a s a sales r epre sentative to other c ompanies, so longas other companies' products do not direc tly compete w ith Ri co' s products.

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¶ 5 The a g ree ment includes a te rmination provision, which rea ds as follows: "Any chang e to,
canc ellation of, or ter

mination of this Agr eeme nt shall be made in wr iting by TL C Group and Rico. Any

chang e to, ca

ncellation of, or

termination of this Ag ree ment shall be null and void unless TLC

Group and Rico mutually agreein writ ing to do so ." ( Emphasis added.) In Rico' s amende d complaint for de clar atory judgme nt, Rico alleg es that it was not re prese nted by counsel duringthe neg otiating a

nd draf ting of the agree ment. ¶ 6 Rico also attache d as an e x hibit to i ts complaint a letter dated September 24, 2012. In the letter, Rico informe d TL C that Rico desired to terminate the agree ment and that Rico believe d it had the leg al rig ht to unilaterally terminate the ag ree ment. The letter argued that the ter

mination provision in the ag ree ment was " null and void, unenforc eable and ag ainst public policy . Under this provision, R ico could conc eivably be re quired to work w ith [ TL C] fore ver." Rico attache d to its l etter a

copy of its proposed complaint in the ca se at ba r. ¶ 7 On September

24, 2012, the same da

y it sent the letter, Rico filed its complaint for a decla ratory judgme nt. The complaint conta ins two counts. First, Rico asks the trial c ourt to deter mine that it had the rig ht to terminate the a g ree ment unilatera lly beca use the ter

mination provision cre ated a

perpe tual contra ct and is there fore contra ry to I llinois public policy . Second, Rico alleg es that a dispute e x ists reg ardingcommissions owed by Rico to TL C. TL C filed a motion to di smiss pursuant to section 2-615 of the I llinois Code of Civil P roce dure ( 735 I L CS 5/2-615 (West 2012)). The trial court grante d the motion as to count Iand denie d the motion as to count I I . The trial c ourt g rante d Rico leave to file an a mended c ount I . Rico filed an amended complaint for de clar atory judgme nt on J anuar

y 7, 2013, rea lleg ing in c ount Ithat the termination
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provision violates I llinois public policy and, ther efor e, the a g ree ment is terminable at will. Rico attache d the agree ment and the Septembe r 24, 2012, letter to the c omplaint as exhi bits. ¶ 8 On J anuar

y 16, 2013, TL C filed its answer, which included f ive counter claims. Count I reque sted an a ccounting , alleg ing that Rico cea sed makingcommission pay ments to TL C following the September

2012 letter. TL C alleg es that Rico direc tly bills W al-Mar

t for its sales and that TL C is entitl ed to a 12% commission on all sales to W al-Mar t. TL C alleg es that, as a result of the dire ct billing ar rang ement, Rico controls the infor mation neede d to determine the amount owed to TL C. TL C also alleg es that it "is informe d and believe s Rico underpa id it on sales made since the inc eption of" the agree ment. Count I Ialleg es a br eac h of contra ct, alleg ing that Rico' s failure to pay

commissions si nce the September 2012 le tter amounts to a bre ach. Count I I I alleg es a c ause of

action under

the Arka nsas sales r epre sentative a ct (Ar k. Code Ann. § 4-70-301 et seq. (West 2012)). Count I V alleg es, in the alter native, a c ause of

action under

the I llinois Sales Repre sentative Ac t (820 I L CS 120/ 0.01 et seq. (West 2012)). The Arka nsas sales repr esentative act a

nd the I llinois Sales Repre sentative Ac t provide that a pr incipal will be liable to a sales r epre sentative for three times the damag es sustained by a sale s repr esentative in the event that a

principal fa ils to compensate a sa les repr esentative for c ommissi ons owed unde r a contra ct. Ark. Code Ann. § 4-70-306 ( West 2012); 820 I L CS 120/ 3 (West 2012). Count V, also pled in the alter

native, alleg es a c ause of

action for quantum meruit rec overy . In count V, TL C alleg es that, eve n if the termination provision is found to be unenf orce able, it is still entitled to the agree d-upon commissions because Rico benef itted from the sale s repr esentative service s provided by

TL C during the period whe n the validity of the ter mination provision was contested.
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TL C alleg es that to deny

it quantum meruit rec overy would g rant Rico a w indfall. ¶ 9 TL C filed a par

tial section 2-615 motion to dism iss count I , or, in the alter native, for partial judg ment on the pleading s for c ount I
. TL C's motion to dismi ss argues that Rico fa iled to 1 state a c laim that the termination provision is contrary to public policy

and ther efor e void. In the alternative, TL C argues that it is entitled to judgment on the plea dings be cause the agree ment is not perpe tual beca

use it is terminable at the mutual a g ree ment of both parties. TL C argues that the contra ct may

also be ter

minated if Rico stops selling produc ts specified in the a g ree ment to Wal-Mart. On F ebrua

ry 15, 2013, Rico filed a c ross-motion for judg ment on the pleading s for count I , arguing that I llinois courts have held that contra cts which a re te rminable only

by mutual ag ree ment are contra

ry to public policy

and ther efor e ter

minable at will. ¶ 10 On April 4, 2013, the trial c ourt held a he aring on both section 2-615 motions. The trial court de nied Rico' s motion t o dismiss count I and g rante d TL C's motion for judg ment on the pleading s for c ount I . The trial c ourt found that the ter mination provision was not contrar y to public policy

beca use the provision cr eate d an " objective e vent," the mutual agree ment of the parties, that would ter

minate the contr act. The rema ining c ounts in Ri co' s decla ratory judgme nt and TL C's c ounterc laims remain pendingat the conc lusion of the motion hearing
. ¶ 11 On April 22, 2013, Rico filed a motion for a findingpursuant to I llinois Supreme Court Rule 308(a) (ef

f. F eb. 26, 2010). O n May 1, 2013, the trial cour

t gr anted Rico' s motion and
cer tified the followingquestion for interloc utory appea l:

The c opy of the motion included in Rico' s supporting r ecor d filed with its Rul e 308 1 petition is notdate- stamped. 5No. 1-13-1522 "D oes a sa les repr esentative ag ree ment that can only be ter minated upon the express written conse nt of both parties c ontain a spec ific objective e vent that re nders the a g ree ment sufficie ntly definite in duration such that it is not terminable at will? " Rico filed its petition for leave to appea l with this court on May 15, 2013, and we g rante d leave to appea l on J une 6, 2013. ¶ 12 ANALYSI S ¶ 13 I . Standard of Re view ¶ 14 A motion for judg ment on the pleading s "r aises the issue of the suffic iency

of the pleading s." Hankins v. Pe kin InsuranceCo. , 305 I ll. App. 3d 1088, 1091 (1999). A tria l court proper ly g rants a motion for judg ment on the pleading s, pursuant to section 2-615( e), " if the pleading s on file disclose no g enuine issues of material fa ct so that the movant is entitled to judgme nt as a matter

of law." Hope Clinic for W omen, Ltd. v. Flores , 2013 I L112673, ¶ 32. Since the trial c ourt rules a s a matter of law whe n decidinga motion for judg ment on the pleading s, our re view of the judgme nt is de novo
. Hope Clinic , 2013 I L112673, ¶ 32. De nov o consideration means we pe rfor m the same a

naly sis that a trial judg e would per form. Khan v. BDO Se idman, LLP , 408 I ll. App. 3d 564, 578 (2011). The only matters to be c onsidered in ruling on a motion for judg ment on the pleading s are the alleg ations of the plea dings. Hankins , 305 I ll. App. 3d at 1091. "I f a c laim or defe nse is founded upon a written instrument, a c opy there of *** must be attac hed to the plea ding a s an exhibitor re cited ther ein, unless the plea der attache s to his or her plea ding a n aff idavit stating fa cts showingthat the instrument is not

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acc essible to him or her." 735 I L CS 5/ 2-606 (West 2012). ¶ 15 I I . I llinois Public Pol icy ¶ 16 The trial c ourt conc luded that the agree ment was suff iciently definite so as not to be a perpe tual contra ct, and the que stion for us on appea l is whether the a g ree ment was suff iciently definite to esc ape the label of " a per petual contr act." ¶ 17 Our I llinois Supreme Court " has a longtradition of upholding the right of parties to fr eely contra ct." Mohanty v . St. John Heart Clinic, S.C. , 225 I ll. 2d 52, 64 (2006). " Consequently , [i ts] decisions have held that a pr ivate contr act, or provision therein, will not be dec lare d as void as contra ry to public policy

unless it is ' " clea

rly contra ry to what the constitution, the statutes or decisions of the courts have de clar ed to be the public policy " ' or it is clear ly shown that the contra ct is ' "ma

nifestly injurious to the public welfar e." ' " ( Emphasis added.) Mohanty , 225 I ll. 2d at 64-65 (quoting Vine Street Clinic v. He althlink, Inc. , 222 I ll. 2d 276, 300 (2006), quoting Schumann-Henik v . Folsom , 328 I ll. 321, 330 (1927)). Mohantyinvolved a plaintiff a rguing that restric tive covena

nts in phy sician-e mploy

ment contra cts wer e ag ainst the public policy of I llinois , and the I llinois Supreme Court found that the pla intiff "c arr [i ed] a heavy burden" to show that such re strictive cove nants wer e contr ary to I llinois public policy
. Mohanty , 225 I ll. 2d at 65. ¶ 18 I I I . Perpetua l Contracts Violate I llinois Public Pol icy ¶ 19 TL C arg

ues on appe al, first, that I llinois public policy does not prohibit perpe tual contra cts. Howe ver, in Jespe rsen v. M innesota Mining & Manufacturing Co. , 183 I ll. 2d 290, 291 (1998), our

I llinois Supreme Court found, in no unce rtain terms, that " [i ]thas longbeen
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rec og nized that contrac ts of indefinite duration are g ener ally terminable at the will of the parties." The I llinois Supreme Court fur ther found that "two important public policies" are ref lected in this g ener al rule. Jespe rsen , 183 I ll. 2d at 295. "F irst, in ge nera l, individuals shoul d be fr ee to or der their af fairs subjec t to important qualifications for instance s of fra ud, duress, or undue influence ." Jespe rsen , 183 I ll. 2d at 295. "Sec ond, perpetual contracts are disfavore d ." ( Emphasis added.) Jespe rsen , 183 I ll. 2d at 295 (citing Adkisson v. Ozme nt , 55 I ll. App. 3d 108, 112 (1977)). "

' For ever ' is a long time and fe w commer cial conc erns r emain viable f or eve n a dec ade. A dvance s in technolog y , chang es in consumer taste and c ompetition mean that once- profitable busine sses perish-r egularly ." Jespe rsen , 183 I ll. 2d at 295. As a re sult of this decision of our state' s highe st court, we find that perpe tual contra cts are contra ry to public policy . See Mohanty , 225 I ll. 2d at 64-65 (f inding that the de cisions of the cour ts are a source for de termining what constitutes public policy

). ¶ 20 I V. This Sales Repre sentative Agree ment ¶ 21 We must now determine whe ther the te rmination provision included in the ag ree ment betwee n Rico and TL C crea ted a pe rpetua l contrac t. I f it did create a pe rpetua l contrac t, the termination provision is contrary to public policy

and the a g ree ment is terminable at the w ill of the par ties. Jespe rsen , 183 I ll. 2d at 295. ¶ 22 Rico cites to (1) Jespe rsen and (2) R.J.N. Corp. v. Connelly Food Products, Inc

. , 175 I ll. App. 3d 655 (1988), to a

rgue that the a g ree ment is perpetua l. Although ne ither ca se is fac tually identical with the fa cts of the c ase at bar, we do find both case s instructive. ¶ 23 In Jespe rsen , the plaintiff agree d to serve a s a sales r epre sentative for a compa ny that was
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later pur chase d by

the def endant. Jespe rsen , 183 I ll. 2d at 292. Under the ag ree ment, the plaintiff bec ame the e x clusive distributor of the c ompany ' s products in the Chicag o are a. Jespe rsen , 183 I ll. 2d at 292. The agree ment provided that the pla intiff could terminate the ag ree ment upon 30 day s' written notice to the c ompany . Jespe rsen , 183 I ll. 2d at 294. I t also
enumer ated f

ive circ umstances unde r which the company could terminate the agree ment: " ' [The company ] may , upon not less than thirty (30) da y s notice to [the plaintiff], t erminate this ag ree ment for a ny of the following rea sons: (a) [The plaintiff' s] failure to rea sonably promote [the company ' s] products ***. (b) [The plaintiff' s] breach of any term or c ondition of this ag ree ment. (c) [The plaintiff' s] failure to make pa y ment ***. (d) The death, ba

nkruptcy , or insolvency

of [the plaintiff]. (e) The sale *** or transf er *** of all or any part of [the plaintiff' s] rights under this contra ct without the written appr oval and conse nt of [the company ].' " (Emphasis adde d.) Jespe rsen , 183 I ll. 2d at 293-94. After the def endant pur chase d the company , the def endant se nt a letter to the pla intiff, informing him that the defe ndant intended to ter minate the agree ment. Jespe rsen , 183 I ll. 2d at 292. The plaintiff filed a

lawsuit alleg ing that the defe ndant bre ache d the contra ct by terminatingit.
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Jespe rsen , 183 I ll. 2d at 292-93. The tria l court dismissed the lawsuit for fa ilure to state a c ause of ac tion on the gr ounds that the ag ree ment "w as of indef inite duration and thus terminable at will," and that the ag ree ment expressly g rante d the def

endant the r ight to ca

ncel a distributor's rig ht to use the company ' s name. Jespe rsen , 183 I ll. 2d at 293. ¶ 24 The supre me cour t affir med, findingthat the " termination provision is not sufficient to take this ag ree ment of indefinite dur ation out of the g ener al rule of at-will termination." Jespe rsen , 183 I ll. 2d at 294. First, the supre me cour t found that the languag e of the termination provision was " permissive and e quivocal; a pa rty ' may ' terminate f

or the stated grounds–the cle ar infere nce be ing that those g rounds ar e not the sole or e x clusive basis for termination." Jespe rsen , 183 I ll. 2d at 294. The supre me cour t found that this was distinct from a situation in which an othe rwise indef inite contrac t "include d an exclusive and spec ific rig ht to terminate for
cause ." Jespe rsen , 183 I ll. 2d at 294 (" ' the inclusion in this agr eeme nt of a spec ific rig ht to terminate f

or ca use *** militates ag ainst a construc tion of the ag ree ment that the licensor c an terminate at will' " (quoting Lichnovsky v. Ziebart International Corp. , 324 N.W.2d 732, 737 (1982)) ). Second, the supreme c ourt found that the e numerated eve nts allowing f or termination "a re the mselves instance s of mater ial brea ch, and anycontra ct is terminable upon the oc curr ence of a material bre ach." (Emphasis in orig inal.) Jespe rsen , 183 I ll. 2d at 294. "Where a contr act is indefinite in duration, the de lineation of instance s of mater ial brea ch in the conte x t of a permissive and none x clusive termination provision will not create a c ontrac t terminable for
cause ." Jespe rsen , 183 I ll. 2d at 295. ¶ 25 Unlike Jespe rsen , the termination provision in the ca se at ba r did not enumera

te a list of
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materia l brea ches. Instead, the te rmination provision stated that the agree ment may be terminated only

upon the written a g ree ment of both parties. This c ourt' s decision in R.J.N. Corp. v. Connelly Food Produc ts, Inc. conce rned a contra ct with a ter

mination provision that was not based on material bre ach. I n R.J.N. , the plaintiff wa s a " ' broker and/or sale s repr esenta

tive' of ice c rea m products," and the de fenda nt and its affiliates we re " wholesale rs/distributors of ice
cre am produc ts." R.J.N. , 175 I ll. App. 3d at 657. The plaintiff e ntere d into an ag ree ment with the def endant, whe rein the de fenda nt "a g ree d to make ice cre am deliver ies to [t he plaintiff' s] customers." R.J.N. , 175 I ll. App. 3d at 657. The a g ree ment provided that it would " ' rema in in eff ect f or as longas [the defe ndant] serves [the plaintiff' s] custom ers.' " R.J.N. , 175 I ll. App. 3d at 657. The de fenda

nt refuse d to make deliver ies to cer tain of the plaintiff' s customers, and eventua lly , the def

endant ter minated the agree ment. R.J.N. , 175 I ll. App. 3d at 657-58. The plaintiff filed a

lawsuit, alleg ing, a

mong othe r thing s, brea ch of c ontrac t on the basis of the defe ndant' s ref

usal to deliver to ce rtain customer s and its termination of the agree ment. R.J.N. , 175 I ll. App. 3d at 658. The trial c ourt g rante d summary judgme nt to the defe ndant on the brea ch of c ontrac t cause of ac tion, and the plaintiff appe aled. R.J.N. , 175 I ll. App. 3d at 659. ¶ 26 On appe al, the plaintiff a rgued that the a g ree ment was not terminable at will beca use it had a de finite duration, name ly " ' for a s long a s [t he def

endant] serve s [t he plaintiff' s] customers.' " R.J.N. , 175 I ll. App. 3d at 657. This court, howe ver, f ound that "the clause that

' this ag ree ment will remain in eff ect for as long as [t he defe ndant] serve s [the plaintif

f's ] customers ' (empha sis added) c annot be c onstrued as a n ' objective e vent,' the occ urre nce of which terminates the c ontrac t thereby makingit sufficiently

definite in duration." R.J.N. , 175 I ll. App.
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3d at 660. Instead, this court found that "a prac tical construc tion of the clause indicates a n indefinite duration of the c ontrac t based upon [the defe ndant' s] apparent option/decision to not
serve [t he plaintiff' s] custom ers at some point in t ime." ( Emphasis in origina l.) R.J.N. , 175 I ll. App. 3d at 660. The ag ree ment would rema in in effe ct only for a s long a s the defe ndant serve d the plaintiff' s customers, and, " there fore , when [t he def endant] would decide to no longe r ser ve [t he plaintiff' s] custom ers c ould not be asce rtained, making the duration of the c ontrac t indefinite and ter minable at will." ( Emphasis in origina l.) R.J.N. , 175 I ll. App. 3d at 660. ¶ 27 The pa

rties disag ree as to how to interpre t R.J.N. TL C argues that the ter mination provision in R.J.N. is disti ng uishable fr om the provision in the case at bar , which re quires mutual consent. TL C argues that in R.J.N. , the contra ct was te rminable at will because the provision expressly stated that the c ontrac t would remain in for ce until the def endant c hose to stop serving the plaintiff' s customers, and, the ref ore, the defe ndant could choose to stop serving customers at will. R.J.N. , 175 I ll. App. 3d at 660. TL C argues that this is differe nt from the provision at bar , which, re quires conse nt by both parties to terminate the provision, rathe r than a unilatera l decision. Howe ver, the rea soning in the Sec ond District' s decision in Donahue v . Rock ford Showcase &Fixture Co. , 87 I ll. App. 2d 47 (1967), which ne ither par ty cites, demonstra

tes why TL C's a rgument is not persuasive. In addition, a contra ct terminable only upon the written ag ree ment of the pa

rties is indefinite bec ause you cannot f orese e whe n that will happen and it may never happen, a

nd there fore it is of an indefinite duration. ¶ 28 Donahueconce rned a n employ ment contra ct betwe en the plaintiff, a n individual, and the defe ndant, a c orporation. Donahue , 87 I ll. App. 2d at 48-49. The pla intiff' s employ ment
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require d him to "re prese nt the defe ndant within a ce rtain spec ified ar ea a nd to sell its products." Donahue , 87 I ll. App. 2d at 48. After workingfor the de fenda

nt for 18 months, the plaintiff sent a letter to the defe ndant' s president whic h included the f ollowing pr ovision: " ' Due to [the plaintiff' s] contributi ons of abnor mally high e x penses, r elying on r eorde rs for a ctual net compensation above expenses, the agree ment to run until cancelled by mutual consent of both parties or changed by

mutual consent .' " ( Emphasis added.) Donahue , 87 I ll. App. 2d at 49. The de fenda

nt's pr esident sig ned the letter , in his capac ity as pre sident, benea

th the plaintiff' s signature. Donahue , 87 I ll. App. 2d at 49. Two months later, the pla intiff sent a sec ond letter, "

' sug g est[ing] that if [ the plaintiff' s] s hipments, in any twelve month per iod, fall below twe nty five thousand, *** our agreeme nt would be automatically cance lled .' " ( Emphasis added.) Donahue , 87 I ll. App. 2d at 49-50. Ag ain, both parties sig ned the letter
. Donahue , 87 I ll. App. 2d at 50. ¶ 29 Eventually , a dispute ar ose betwe en the pa rties, and the de fenda

nt sent a letter to the plaintiff informinghim that the defe ndant was te rminating his employ ment. Donahue , 87 I ll. App. 2d at 50. The plaintiff filed a lawsuit, arguing that the defe ndant' s unilateral ter mination brea ched the contra ct bec ause, by its terms, it could only

be ter minated if his commissions fell below $25,000 in any

12-month period. Donahue , 87 I ll. App. 2d at 50. The trial c ourt found that the par

ties had ente red into a va lid contrac t of employ ment, but that the contra ct was f or an indefinite per iod of time and, thus, terminable at will. Donahue , 87 I ll. App. 2d at 48. ¶ 30 On appe al, the Second D istrict affir med the trial c ourt. Donahue , 87 I ll. App. 2d at 53. The Sec ond District found that the letter s constituted a contra ct and that the f irst letter cr eate d a contra ct that would last until itwas " ' canc elled by mutual consent.' " Donahue , 87 I ll. App. 2d at
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52. Initially , the Second District f ound that the sec ond letter, whic h stated that the plaintiff' s employ ment would be automatica lly terminated if his c ommissi ons were less than $25,000 in any 12-month period, " did not chang e the f irst [ letter] in reg ard to the dur ation of the e mploy ment" and that, throug h both letters, " the agree ment was to be te rminated only with 'mutual c onsent.' " Donahue , 87 I ll. App. 2d at 52-53. Howe ver, on r ehea ring , the Second District " depar t[ ed]" fr om its opini on. Donahue , 87 I ll. App. 2d at 54. After ref lectingupon the sec ond letter, the Sec ond District found that the sec ond letter " added a condition of termination that was not pre sent in the first letter" : the automatic ca ncellation in the eve nt that the plaintiff' s commissions were less than $25,000 in any

12-month period. Donahue , 87 I ll. App. 2d at 54. "Unless both parties agree d, neither c ould terminate, a bsent ca use, unless the contingenc y were m et ." ( Emphasis added.) Donahue , 87 I ll. App. 2d at 54. The Sec ond District found that both letters provide d that the contra ct could be te rminated by mutual consent, but " the contra ct would have bee n for an indefinite duration and t hus terminable at will absent the c ondition added in the sec ond letter." (Emphasis adde d.) Donahue , 87 I ll. App. 2d at 54. In other wor ds, if the employ ment contra ct had bee n terminable only by the mutual consent of the parties, it would have amounted to a contra ct of indef

inite duration and thus bee n terminable at will. The Second District found that it was the c ommissi ons conting ency that amounted to the settingof a c ondition that removed the contra ct from the r ealm of inde finite duration. Donahue , 87 I ll. App. 2d at 54. ¶ 31 Ba sed on the Sec ond District' s rea soning in Donahue , ag ree ments that are terminable only by the mutual ag ree ment of the pa rties ar e contr acts of inde finite duration and, thus, ter minable at will. The ag ree ment betwee n Rico and TL C was terminable only by the written c onsent of both
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parties. As a

result, its duration was indef inite and must theref

ore be found to be ter

minable at will. Thus, we answe r the c ertified que stion "no," and re verse the trial cour t's grant of judg ment on the pleading s to TL C on count I
. ¶ 32 V. RemainingCounts ¶ 33 The pa

rties make a

rguments conce rningboth (1) the date on which the a g ree ment should be found to have bee n terminated a nd (2) the Arkansa s statute and the I llinois Sales Represe ntative Act. How ever , we de cline to re ach the se issues. The sole que stion certified under Rule 308 f

or our r eview w as: " Does a sales re prese ntative agree ment that can only be terminated upon the express written conse nt of both parties c ontain a spec ific objec tive event that rende rs the agree ment sufficie ntly definite in duration such that it is not terminable a t will? " We limit our ana ly sis to answeringthis question and decline to addr ess other matters re lated to the litigation. We rema

nd this case to the tria l court so that it can de termine what, if any thing, is owed, the date on which the c ontrac t was terminate d, and all other issues of fa ct and law

still pending
. ¶ 34 CONCLUSI ON ¶ 35 The I llinois Supreme Court has pr eviously held that I llinois public policy prohibits contra cts of indef

inite duration (

Jespe rsen , 183 I ll. 2d at 295), and the a ppellate c ourt has previously

deter mined that a contr act that is terminable only upon the mutual agree ment of the parties is indefinite in duration ( Donahue , 87 I ll. App. 2d at 54). As a r esult, a sales repr esentative ag ree ment terminable only upon the mutual ag ree ment of the pa rties is not

15No. 1-13-1522

sufficie ntly

definite in duration and is terminable at will. ¶ 36 Certified que stion answere d; order r ever sed and r emande d for f urther pr ocee dings.

16