2024 IL App (3d) 220405

Opinion filed April 9, 2024 

____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2024 

TIMOTHY N. SCHILLER and AMY )

SCHILLER, ) 

 ) 

 Plaintiffs-Appellants and Cross-Appellees, ) 

 ) 

 v. ) 

 ) 

HOMESERVICES OF ILLINOIS, LLC ) 

d/b/a Koenig & Strey Real Living, ) 

and NANCY NAGY, ) 

 ) 

Defendants ) 

 ) 

(HomeServices of Illinois, LLC d/b/a ) 

Koenig & Strey Real Living, ) 

 Defendant-Appellee and Cross-Appellant). ) 

)

Appeal from the Circuit Court

of the 18th Judicial Circuit, 

Du Page County, Illinois, 

Appeal No. 3-22-0405, 3-22-0411 

(cons.) 

Circuit No. 14-L-401 

Honorable 

David E. Schwartz, 

Judge, Presiding.

JUSTICE ALBRECHT delivered the judgment of the court, with opinion.

Presiding Justice McDade concurred in the judgment and opinion. 

Justice Hettel concurred in part and dissented in part, with opinion. 

____________________________________________________________________________

OPINION

¶ 1 In this consolidated appeal, plaintiffs, Timothy and Amy Schiller, appeal the Du Page

County circuit court’s ruling that their claim against defendant, HomeServices of Illinois, LLC, 

doing business as Koenig & Strey Real Living (K&S), under the Illinois Wage Payment and 
2 

Collection Act (Wage Act) (820 ILCS 115/1 et seq. (West 2016)) was not applicable to their 

circumstances. K&S also appeal, arguing that the court erred in denying its motion for summary 

judgment and two motions in limine; that the jury’s verdict was against the manifest weight of 

the evidence, and the court erred in denying its motion for judgment notwithstanding the verdict; 

and that the court improperly awarded the Schillers’ motion for additur. We affirm in part, 

vacate in part, reverse in part, and remand for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 Timothy and Amy Schiller are licensed real estate brokers who became affiliated with 

K&S in 2010, as a result of K&S’s acquisition of their family’s real estate brokerage firm under 

its HomeServices of Illinois, LLC (HomeServices), affiliate. When the Schillers began working

under HomeServices, they signed separate independent contractor agreements, wherein 

HomeServices agreed to act as the Schillers’ sponsoring broker. 

¶ 4 In pertinent part, Paragraph 6 of each agreement provided: “When Sales Associate shall 

perform any service whereby a commission is earned, said commissions shall be divided 

between Koenig & Stray GMAC and Sales Associate as stated in the Company Policy Manual.”

The Schillers also signed an addendum with their agreements, outlining the commission split 

they would receive for each purchase contract they executed.

¶ 5 The parties executed a second addendum to the agreements on December 31, 2013. The 

addendum provided, in relevant part: 

“a. Term. This Second Addendum is in effect beginning January 1, 2014 

and coinciding with the terms of Schiller’s IC Agreement. This Second 

Addendum will remain in effect until the parties agree in writing to revise this 

Second Addendum or until either party terminates the IC Agreement; 
3 

 b. Commission Split. During the Term, Schiller’s commission split shall 

be 90%. This term is strictly confidential and subject to Paragraph 6 below; 

c. Confidentiality. The existence of this Second Addendum and its content 

are strictly confidential. If Schiller discloses the existence of this Second 

Addendum or its contents to anyone without the prior written consent of K&S, 

this Second Addendum and all K&S’s obligations to Schiller set forth herein 

automatically terminate. Specifically, in the event Schiller discloses his 

commission split to anyone, the commission split set forth above becomes null 

and void and Schiller’s commission split reverts to 75%.

 d. Policy Manual. Notwithstanding anything to the contrary in the IC 

Agreement, terms not addressed in this Second Addendum are subject to current 

K&S company policies, as they may change from time to time and as they are 

published online in the company’s policy manual. Schiller acknowledges these 

policies and procedures are binding upon [him/her].” 

¶ 6 The policy manual, as amended in August 2013, stated in relevant part: 

“a. Policy. It is the policy of Koenig & Strey to charge a fee to broker 

associates who separate from the company, whether voluntarily or involuntarily, 

in exchange for releasing brokerage agreements. This policy is separate from and 

in some cases in addition to the company Policy on Listing Cancellation Fee 

which is a $500 Seller fee charged in exchange for early termination of a 

brokerage agreement. It is also the policy of Koenig & Strey to pay commission 

to terminated agents at a rate of 50% on all pending transactions closing after the 

agent’s termination date. 
4 

 b. The company shall pay commissions to terminated agents at the rate of 

50%. This commission rate applies to all pending transactions that close after the 

termination date of any Broker Associate, unless otherwise provided in an 

Independent Contractor Agreement dated before September 1, 2011.” 

¶ 7 The Schillers terminated their agreements with K&S on March 10, 2014. They left K&S

in favor of entering into a brokerage agreement with At World Properties. At the time of the 

separation from K&S, the Schillers had 36 open transactions under HomeServices. The last of 

these transactions closed in October 2014. 

¶ 8 When each remaining transaction closed after the Schillers’ termination date, K&S paid 

the Schillers 50% of the commission collected per the policy manual. When the Schillers 

received the commission from K&S, At World Properties paid the Schillers the difference 

between the commission received and what the Schillers would have received had K&S paid 

them 90% commission as set forth in the second addendum. The Schillers and At World 

Properties had reached an agreement that At World Properties would pay for the difference if 

K&S cut the Schillers’ commissions while in discussions about the Schillers’ move to At World 

Properties. The original offer letters between the Schillers and At World Properties outline this 

arrangement, but the eventual agreements signed by the Schillers do not include any provisions 

regarding these payments. 

¶ 9 The Schillers brought suit against K&S in order to recover the commission they allege 

were owed in order to repay At World Properties. Their suit, filed on April 23, 2014, alleged that 

K&S reduced their commission from 90% to 50% on 36 real estate transactions that closed after 

they left K&S, resulting in $171,490 lost commission payments. Their complaint alleged a 

breach of contract and a violation of the Wage Act. The complaint was later amended on June 
5 

27, 2016. In the amended complaint, the Schillers reduced their request for relief to $155,016.78 

lost commissions for 30 transactions. 

¶ 10 The matter spent several years in discovery procedures and pretrial motion practice. Of 

note, the circuit court heard and ruled on a motion for summary judgment from each party 

related to the breach of contract claim. In its motion for summary judgment, K&S argued that its 

agreements with the Schillers were clear and unambiguous, and the documents clearly stated that 

the Schillers were entitled to 50% commission because once the Schillers separated from K&S, 

the terms of the policy manual controlled. As it already paid the Schillers their 50% 

commissions, K&S maintained that the Schillers had been paid in full. 

¶ 11 The circuit court found that there were facts at issue that the jury must decide. It 

specifically pointed to the following facts in the record: (1) the second addendum created a 90% 

commission split during the term of the agreement; (2) the “term” of the agreement expired when 

the Schillers separated from K&S; (3) the policy manual, incorporated into the agreement, 

provided for a 50% commission split on transactions that closed after termination; and 

(4) testimony from Amy Schiller indicating that commission was not earned until a closing 

occurred. The court found that, when viewing the evidence in the light most favorable to either 

party, a jury could find in either party’s favor, and it denied both parties’ motions for summary 

judgment. 

¶ 12 Prior to the start of trial, several motions in limine were filed and argued. Relevant to this 

appeal, K&S sought to bar any reference to an oral contract between the Schillers and At World 

Properties to repay At World Properties from the damages awarded in this litigation if the 

Schillers were able to collect. K&S argued that the Schillers failed to produce any evidence 

detailing this agreement in discovery and should therefore be barred from referencing it. K&S 
6 

also filed another motion in limine to bar evidence or discussion of when commission is earned 

for the purpose of determining what commission percentage should apply to the transactions at 

issue. It argued that the policy manual provided when and at what rate a terminated agent should 

be paid and that there should not be any discussion to the contrary. The court denied both 

motions, finding that they were both questions for the jury to decide. 

¶ 13 The matter proceeded to trial in March 2022. The parties agreed that a jury would decide 

the breach of contract claim, while the court would decide the Wage Act claim. The evidence 

presented at trial established that the Schillers only received commissions while working for 

K&S and did not receive a base salary. They received those commissions after a closing took 

place for a real estate contract that they helped execute. If a contract they procured did not close, 

no commissions were paid out to the Schillers. The Schillers received commission checks within 

a few days or a few weeks after a closing occurred.

¶ 14 The jury returned a verdict in favor of the Schillers. When determining damages, the jury 

wrote onto the verdict form the amount of $96,885.50. This amount in damages, in addition to 

the commission originally received, equaled 75% of the total commission on the real estate 

transactions that closed after the Schillers parted ways with K&S. 

¶ 15 Both parties filed motions for judgment notwithstanding the verdict. The Schillers’ 

motion specifically argued that the damages award was incorrect, and it included an alternative 

motion for additur or a new trial for damages to increase their award to the originally requested 

amount. K&S’s motion argued that the jury’s award indicated that it did not believe the Schillers 

were entitled to the 90% commission they were seeking, thus the jury did not actually believe 

that K&S breached the contract.
7 

¶ 16 The circuit court ruled in the Schillers’ favor regarding the motions related to the breach 

of contract claim and increased the amount in damages awarded to $155,016.78. The court also 

entered judgment in favor of K&S for the Wage Act claim, finding that the language in the 

second addendum did not establish any commission was owed to the Schillers after they left

K&S, that the 90% split was only in effect until the parties terminated their agreement, and that 

the policy manual only allowed for the 50% commission K&S already paid. Specifically, the 

court found that: 

“[T]he language contained in the ‘Second Addendum’ does not establish that 

commission was owed after the Schillers left [K&S]. Specifically, the agreement 

provides that during the term the split shall be 90%. It also specifies that the 

agreement will be in effect until either party terminates the agreement. Here, there 

is no question that the plaintiffs terminated the agreement. When combined with 

the Policy Manual, the court finds that the plaintiffs have not met their burden of 

proof on the issue of any additional commission above the 50% that was already 

paid.

 In addition, the court agrees with the defendant that the plaintiff[s] did not 

provide sufficient evidence that the claimed commissions that were paid after the 

termination qualify as final compensation under the Wage Act.” 

¶ 17 Both parties filed an appeal. The Schillers appealed the court’s decision regarding the 

application of the Wage Act, while K&S appealed the decision related to the breach of contract 

claim.
8 

¶ 18 II. ANALYSIS

¶ 19 This matter involves two appeals. In appeal No. 3-23-0411, K&S raises the following 

arguments: (1) the circuit court erred when it denied its motion for summary judgment; (2) the 

court improperly denied its motions in limine and allowed testimony regarding the oral 

agreement between the Schillers and At World Properties regarding payment of the additional 

commissions At World Properties provided the Schillers and evidence regarding when 

commission is earned; (3) the jury’s verdict was against the manifest weight of the evidence, thus 

the court erred in denying K&S’s motion for judgment notwithstanding the verdict; and (4) the 

circuit court’s granting the Schillers’ motion for additur was improper. The Schillers, in appeal 

No. 3-23-0405, argue that the circuit court erred in its findings related to the Wage Act. We will 

address each argument for each appeal in turn.

¶ 20 A. No. 3-23-0411 

¶ 21 1. Summary Judgment

¶ 22 K&S first argues that the court erred in denying its motion for summary judgment. 

Specifically, it contends that the contract is clear and unambiguous—the Schillers were only 

entitled to 50% commission for post-term closings. Because the contract is clear, K&S argues 

that the circuit court should have granted its motion for summary judgment. 

¶ 23 The purpose of summary judgment is to determine whether an issue of fact exists in the 

cause of action, not to decide that question of fact. Adams v. Northern Illinois Gas Co., 211 Ill. 

2d 32, 42-43 (2004). Summary judgment is a drastic measure that should only be allowed when 

the right to relief is “clear and free from doubt.” Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). 

Granting a motion for summary judgment is appropriate when “the pleadings, depositions, and 

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to 
9 

any material fact and that the moving party is entitled to a judgment as a matter of law.” 735 

ILCS 5/2-1005(c) (West 2022). “ ‘A genuine issue of material fact exists where the facts are in 

dispute or where reasonable minds could draw different inferences from the undisputed facts.’ ” 

Buck v. Charletta, 2013 IL App (1st) 122144, ¶ 56 (quoting Morrissey v. Arlington Park 

Racecourse, LLC, 404 Ill. App. 3d 711, 724 (2010)). We review the circuit court’s ruling on a 

motion for summary judgment de novo. Murphy-Hylton v. Lieberman Management Services, 

Inc., 2016 IL 120394, ¶ 16. 

¶ 24 Generally, if a trial begins after a motion for summary judgment is denied, the order 

denying the motion merges with the judgment entered and is not appealable. Young v. Alden 

Gardens of Waterford, LLC, 2015 IL App (1st) 131887, ¶ 42. However, when the issue raised in 

the motion for summary judgment is a matter of law that would not be before the jury at trial, the 

order does not merge and may be reviewed on appeal. Labate v. Data Forms, Inc., 288 Ill. App. 

3d 738, 740 (1997). 

¶ 25 Here, the circuit court denied both parties’ motions for summary judgment. It found that 

there were questions of fact that required review by the factfinder. Specifically, the court found 

that there was a genuine issue of material fact regarding when commissions were earned and 

which commission split should be applied. Because this case proceeded to trial on issues of 

material fact, the circuit court’s decision regarding K&S’s motion for summary judgment is not 

appealable.

¶ 26 2. Motions in Limine

¶ 27 K&S next argues that the court improperly denied two of its motions in limine. First, 

K&S argues that the court erred in denying the motion pertaining to its request to bar testimony 

regarding any alleged oral contract for repayment between the Schillers and At World Properties. 
10 

Second, it argues that the motion regarding its request to bar discussion of when commission is 

earned also should have been granted. 

¶ 28 A circuit court receives great discretion in determining motions in limine and other 

evidentiary motions, thus such decisions will not be disturbed on review absent an abuse of 

discretion. In re Leona W., 228 Ill. 2d 439, 460 (2008). “A trial court will not be found to have 

abused its discretion with respect to an evidentiary ruling unless it can be said that no reasonable 

man would take the view adopted by the court.” Id. Even if an abuse of discretion occurred, 

reversal is not warranted unless the record establishes that it created “substantial prejudice 

affecting the outcome of the trial.” Id. 

¶ 29 “A motion in limine is an interlocutory order and remains subject to reconsideration by 

the court throughout the trial.” Cetera v. DiFilippo, 404 Ill. App. 3d 20, 40 (2010). However, the 

failure to raise an objection at the appropriate time at trial waives consideration of the issue on 

appeal. Id. Moreover, the issue must be further preserved by raising it in a posttrial motion, or 

else it is waived on appeal. Balsley v. Raymond Corp., 232 Ill. App. 3d 1028, 1029 (1992). 

¶ 30 Here, K&S failed to object at trial when the Schillers presented evidence regarding the 

alleged oral contract between the Schillers and At World Properties. Additionally, K&S failed to 

include this issue in its posttrial motion. This issue is therefore waived on appeal.

¶ 31 As for the motion in limine requesting a bar on testimony regarding when commission is 

earned, K&S also failed to preserve this issue on appeal. K&S did not object to the evidence 

when it was presented during trial. In fact, K&S provided its own witness who testified as to her 

opinion about when commissions were earned. Furthermore, K&S only directed its motion 

in limine on this issue toward the Wage Act claim. It cannot now argue that the court erred by 
11 

not granting a motion to bar evidence against a claim to which the motion did not originally

apply. Accordingly, we find that K&S also forfeited review of this issue on appeal. 

¶ 32 3. Judgment Notwithstanding the Verdict and Manifest Weight of the Evidence

¶ 33 K&S’s main argument is that the circuit court erred in denying its motion for judgment 

notwithstanding the verdict because the jury’s verdict was inconsistent with the damages award. 

It also argues that the jury’s verdict was against the manifest weight of the evidence for this same 

reason. 

¶ 34 A judgment notwithstanding the verdict should be entered “in those cases in which all of 

the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly 

favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. 

Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). We review de novo the circuit court’s 

decision to grant or deny a motion for judgment notwithstanding the verdict. Harris v. 

Thompson, 2012 IL 112525, ¶ 15. 

¶ 35 The standard for obtaining a judgment notwithstanding the verdict is a “very difficult 

standard to meet, limiting the power of the circuit court to reverse a jury verdict to extreme 

situations only.” People ex rel. Department of Transportation v. Smith, 258 Ill. App. 3d 710, 714 

(1994). The court may not enter a judgment notwithstanding the verdict if there is any evidence, 

together with reasonable inferences, that establishes a factual dispute or where the credibility of 

the witnesses or conflicting evidence is decisive to the outcome of the trial. Maple v. Gustafson, 

151 Ill. 2d 445, 454 (1992). We will not reweigh the evidence, make credibility determinations, 

or substitute our judgment for the jury’s merely because the jury could have drawn other 

inferences or conclusions or because we believe another result would be more reasonable. 

Thornton v. Garcini, 382 Ill. App. 3d 813, 817 (2008). 
12 

¶ 36 Additionally, a verdict is against the manifest weight of the evidence if the opposite 

conclusion is clearly evident or if the finding is unreasonable, arbitrary, or not based on the 

evidence. Schroeder v. Post, 2019 IL App (3d) 180040, ¶ 13. 

¶ 37 K&S asserts that the judgment in favor of the Schillers must be reversed because the 

contract is clear and unambiguous in stating that the Schillers should only receive a 50% 

commission under the policy manual. It further contends that the jury’s award of damages 

amounting to only 75% commission, an amount neither party suggested nor advocated for, 

establishes that the jury did not believe K&S actually breached the contract, thus making the 

verdict inconsistent with the facts and arguments presented. K&S argues that, at the very least, 

the damages award is arbitrary and not based on the evidence, thus making the jury’s verdict 

manifestly erroneous. 

¶ 38 To succeed in a breach of contract claim, the Schillers had to prove the existence of an 

enforceable contract, substantial performance on their part, a breach by K&S, and damages 

caused by that breach. Ivey v. Transunion Rental Screening Solutions, Inc., 2022 IL 127903, 

¶ 28. The jury here was specifically tasked with interpreting the terms of the parties’ original 

contract, the second addendum, and the policy manual to determine whether the policy manual 

applied to the Schillers in their current situation, and whether K&S breached the terms of their 

agreement by paying commission to the Schillers pursuant to the policy manual instead of the 

90% commission outlined in the second addendum. 

¶ 39 As the court found when denying K&S’s motion for judgment notwithstanding the 

verdict, it was reasonable for the jury to have found that all the elements of a breach of contract 

claim were proven: (1) a contract was formed between K&S and the Schillers, (2) the Schillers 

performed pursuant to the terms of the contract, (3) K&S failed to meet its obligations under the 
13 

contract by refusing to pay them the full 90% commission, and (4) the Schillers sustained 

damages as a result of K&S’s breach. See id. Here, the parties’ agreement regarding commission 

figured “during the term” of the agreement and when that commission becomes “earned” is 

ambiguous; there are two different yet not unreasonable interpretations of that language that may 

be, and were, argued at trial. The agreement here does not specifically state when the 

commission is earned. Thus, the contract is ambiguous as to this issue, and the settled rule 

regarding when a broker is entitled to receive a commission applies. Zink v. Maple Investment &

Development Corp., 247 Ill. App. 3d 1032, 1037 (1993). A plaintiff’s right to recover his 

commission is governed by his employment agreement with the defendant. Id. Accordingly, the 

case law indicates that the Schillers earned their commission when a viable real estate contract 

was executed. See id. 

¶ 40 Because the execution of the real estate contracts at issue in this litigation occurred 

during the term of the agreement, the Schillers earned their commission during the term of the 

contract and are entitled to a 90% commission split. See id. We cannot say that the jury’s 

determination in this case was unreasonable, arbitrary, and not based on the evidence presented 

or that the opposite conclusion is readily apparent. Therefore, the verdict was not against the 

manifest weight of the evidence, and the circuit court properly denied K&S’s motion for 

judgment notwithstanding the verdict. 

¶ 41 4. Additur

¶ 42 The last argument K&S raises in its appeal is that the court improperly granted the 

Schillers’ motion for additur. The jury awarded an amount equal to 75% of commission received 

on each real estate transaction at issue; however, this was not an amount offered or argued by 

either party. In finding that K&S breached its contract with the Schillers, the jury necessarily 
14 

found that the provision in the second addendum, awarding the Schillers a 90% commission 

split, controlled. By not awarding damages in the amount requested by the Schillers, the jury’s 

award is clearly inconsistent with its finding that K&S breached the contract.

¶ 43 The Schillers first argue that the court did not grant the increase under their additur

motion, but rather under their motion for judgment notwithstanding the verdict. However, a 

judgment notwithstanding the verdict is the incorrect avenue to correct an error in a jury’s 

damage award. See Allstate Insurance Co. v. Mahr, 328 Ill. App. 3d 915, 916 (2002) (finding 

that motions for judgment notwithstanding the verdict are limited to liability issues and that 

motions for additur are used to contest the amount of damages); see also Hughes v. Bandy, 404 

Ill. 74, 80 (1949) (finding that the fact that the amount in damages was not in dispute does not 

change the analysis regarding a motion for judgment notwithstanding the verdict). A court may 

not use a motion for judgment notwithstanding the verdict to increase a damages award. Thus, 

the court in the instant case must have granted the Schillers’ motion for additur. 

¶ 44 In general, courts are reluctant to interfere with a jury’s determination of the monetary 

amount that adequately compensates a plaintiff for his injuries. See Butkewicz v. Chicago Transit 

Authority, 252 Ill. App. 3d 914, 918 (1993). However, where a verdict is legally inconsistent, 

that verdict should be set aside. Wottowa Insurance Agency, Inc. v. Bock, 104 Ill. 2d 311, 316 

(1984). 

¶ 45 Under the doctrine of additur, there are only two options under which the circuit court 

may increase damages. When granting such a motion, the court may order a new trial based on 

the inadequacy of damages, or it may obtain the defendant’s consent to an increase in the award 

of damages. See J.I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, Inc., 118 Ill. 2d 447, 

456-57 (1987). Additur is appropriate only to rectify the omission of a liquidated or easily 
15 

calculated item of damages and is improper if the defendant does not consent to it as an 

alternative to a new trial. Hladish v. Whitman, 192 Ill. App. 3d 561, 565 (1989). 

¶ 46 Here the damages award is clearly inconsistent with the jury’s verdict, and the circuit 

court did not err in granting the Schillers’ motion for additur. However, when granting the 

motion, the court could only grant a new trial or increase damages if K&S consented to the 

increase. The court neither ordered a new trial nor requested K&S’s consent to increase the 

award. Thus, the court erred in increasing the amount in damages given to the Schillers; as such, 

the damages award must be vacated. The matter must be remanded, and the circuit court must 

provide K&S with an opportunity to consent to the damages increase or, if no consent is given, a 

new trial shall be held for the sole purpose of determining damages. 

¶ 47 B. No. 3-23-0405 

¶ 48 The Wage Act

¶ 49 We now move on to appeal No. 3-22-0405, which challenges the allegations under the 

Wage Act. The Schillers raise several arguments regarding the circuit court’s finding that the 

Wage Act was not applicable to the circumstances here, including (1) the court improperly 

interpreted the parties’ contract regarding when commission was earned, and the commissions 

did not qualify as final compensation under the Wage Act; (2) the court erred in holding that the 

Schillers’ resignation resulted in them relinquishing their right to those commissions; and (3) the 

court erred in finding that the policy manual “overrode” the commission split provided in the 

second addendum. To put it simply, the Schillers argue that the circuit court erred in its 

interpretation and application of the Wage Act to the facts of the case before it.

¶ 50 In interpreting a statute, courts must give effect to the intent of the legislature. Illinois 

Department of Healthcare & Family Services v. Warner, 227 Ill. 2d 223, 229 (2008). The most 
16 

reliable evidence of the legislature’s intent is the language of the statute itself, which should be 

given its plain, ordinary, and most popularly understood meaning. Id. Furthermore, when 

interpreting a statute, the court must presume that when the legislature enacted the law, it did not 

intend to produce a result that is absurd, inconvenient, or unjust. Vine Street Clinic v. HealthLink, 

Inc., 222 Ill. 2d 276, 282 (2006). In addition, we review contract interpretation de novo. 

Gallagher v. Lenart, 226 Ill. 2d 208, 219 (2007). 

¶ 51 The purpose of the Wage Act is to provide Illinois employees with a cause of action to 

receive timely payment of earned wages or final compensation when he or she separates from his 

or her employer. Majmudar v. House of Spices (India), Inc., 2013 IL App (1st) 130292, ¶ 11; see 

Armstrong v. Hedlund Corp., 316 Ill. App. 3d 1097, 1107 (2000) (The purpose of the Wage Act 

is “to insure the prompt and full payment of wages due workers at the time of separation from 

employment, either by discharge, layoff or quitting.”). To state a claim under the Wage Act, 

employees are “required to demonstrate that they are owed compensation from [the employer] 

pursuant to an employment agreement.” Enger v. Chicago Carriage Cab Corp., 812 F.3d 565, 

568 (7th Cir. 2016). There is no dispute regarding whether an employment agreement existed in 

this case; it is clear that one did.

¶ 52 The Wage Act defines “wages” as “compensation owed an employee by an employer 

pursuant to an employment contract or agreement between the 2 parties.” 820 ILCS 115/2 (West 

2016). “Final compensation” under the Wage Act is defined as wages, salaries, earned 

commissions and bonuses, earned vacation and holidays, and any other compensation owed 

pursuant to an agreement between the parties, that the employer must pay no “later than the next 

regularly scheduled payday.” Id. §§ 2, 5; see also Majmudar, 2013 IL App (1st) 130292, ¶ 17. 
17 

Final compensation payments must be determinable at the time of or very soon after separation. 

See McLaughlin v. Sternberg Lanterns, Inc., 395 Ill. App. 3d 536, 545 (2009). 

¶ 53 In finding that the language in the second addendum did not entitle the Schillers to 

receive commissions after their separation from K&S, the circuit court found that the 

commission split provided in the second addendum only applied “during the term” of the 

agreement and that the agreement only remained in effect until the Schillers’ and K&S’s 

business relationship ended. Thus, because the commissions the Schillers did not receive were 

not available until after their separation from K&S, the circuit court ruled that the terms of the 

second addendum did not apply. 

¶ 54 The right to recover a commission is governed by the parties’ employment contract. See 

Zink, 247 Ill. App. 3d at 1037. Paragraph 6 of the Schillers’ and K&S’s agreement provided: 

“When Sales Associate shall perform any service whereby a commission is earned, said 

commissions shall be divided between Koenig & Stray GMAC and Sales Associate as stated in 

the Company Policy Manual.” The language here creates a clear difference between when 

commission is earned and when that commission becomes payable to the Schillers. However, the 

language is less clear regarding what designates a commission as “earned.”

¶ 55 Because the contract is unclear, we follow the rule provided in Zink: 

“If a real estate broker produces a purchaser, within the time limit of his 

authority, who is ready, willing and able to purchase the property on the terms 

prescribed by the seller, he is entitled to a commission even if the seller refuses to 

perform the contract. [Citations.] The purchaser procured by the broker and the 

seller must enter into a valid and enforceable contract on the terms proposed in 

the brokerage agreement. [Citation.] The sales contract must be mutually 
18 

obligatory upon the seller and purchaser in order for the broker to recover the 

commission where the sale is not consummated. When there are contingencies in 

the contract which render it unenforceable by the seller, the broker is entitled to a 

commission only if he shows the contingencies have been met.” Id. 

Illinois appellate court precedent thus indicates that a broker’s commission is earned once a 

ready, willing, and able buyer is produced. Hallmark & Johnson Properties, Ltd. v. Taylor, 201 

Ill. App. 3d 512, 517 (1990). Once a seller enters into an enforceable sales contract with a 

purchaser procured by a broker, the broker’s right to commission accrues regardless of whether 

the sale is ever completed. Id.

¶ 56 We find that the Schillers earned their commission when they procured fully executed 

real estate contracts, all of which were “during the term” of their agreement with K&S. This 

commission was easily calculable as the commission represented a set percentage of the sale 

price provided in the real estate contract. Accordingly, the Schillers’ commissions constituted 

“final compensation” under the Wage Act, and the circuit court erred in finding that the Wage 

Act did not apply to the situation here. We therefore remand the matter for further proceedings 

related to the Wage Act claim.

¶ 57 III. CONCLUSION

¶ 58 The judgment of the circuit court of Du Page County is affirmed in part, vacated in part, 

reversed in part, and remanded for further proceedings under the Wage Act claim and to obtain 

K&S’s consent to increase damages or else hold a new trial on damages only if no consent is 

provided for the breach of contract claim.

¶ 59 Affirmed in part, vacated in part, reversed in part, and remanded for further proceedings. 

¶ 60 JUSTICE HETTEL, concurring in part and dissenting in part: 
19 

¶ 61 I agree with all of the majority’s conclusions in this case except its determination that the 

trial court erred in denying the Schillers’ Wage Act claim. I agree with the trial court that the 

Wage Act does not apply in this case. 

¶ 62 To establish a claim under the Wage Act, a plaintiff must demonstrate that “wages or 

final compensation is due to him or her as an employee from an employer under an employment 

contract or agreement.” Landers-Scelfo v. Corporate Office Systems, Inc., 356 Ill. App. 3d 1060, 

1067 (2005). Payments to separated employees are termed “final compensation,” which is 

defined as “wages, salaries, earned commissions, earned bonuses, and the monetary equivalent of 

earned vacation and earned holidays, and any other compensation owed the employee by the 

employer pursuant to an employment contract or agreement between the 2 parties.” (Emphasis 

added.) 820 ILCS 115/2 (West 2016). The Illinois Department of Labor’s regulations 

interpreting the Wage Act state as follows: “A separated employee has a right to an earned 

commission when the conditions regarding entitlement to the commission have been satisfied, 

notwithstanding the fact that, due to the employee’s separation from employment, the sale or 

other transaction was consummated by the principal personally or through another agent.” 

(Emphasis added.) 56 Ill. Adm. Code 300.510(a) (2014). 

¶ 63 Here, the Schillers were not owed or entitled to their commissions when they separated 

from K&S. Pursuant to the Sales Associate Agreement between the Schillers and K&S, the 

commissions were not due and payable to the Schillers until they were “collected” by K&S, 

which occurred at closings. Both Amy and Timothy testified that they were paid their 

commissions after the closings. Timothy further testified that he was owed a commission only 

“when and if a deal closes” and stated, “I didn’t get paid on deals that didn’t close.” 
20 

¶ 64 The conditions entitling the Schillers to the commissions they sought in their Wage Act 

claim were not satisfied until closings took place. Because the real estate transactions at issue 

had not yet closed at the time of the Schillers’ separation from K&S, the Schillers were not yet 

“owed” those commissions. Thus, any commission payments K&S owed the Schillers after the 

real estate transactions closed are outside the scope of the Wage Act. I would, therefore, affirm 

the trial court’s denial of the Schillers’ Wage Act claim. 
21 

Schiller v. HomeServices of Illinois, LLC2024 IL App (3d) 220405 

Decision Under Review: Appeal from the Circuit Court of Du Page County, No. 14-L401; the Hon. David E. Schwartz, Judge, presiding. 

Attorneys

for 

Appellant:

Aaron H. Stanton, Victoria R. Collado, Alexander D. Marks, and 

Brittany A. Martin, of Burke, Warren, MacKay & Serritella, 

P.C., of Chicago, for appellants. 

Attorneys

for 

Appellee:

Richard C. Perna and Mariah C. Nix, of Fuchs & Roselli, Ltd., 

of Chicago, for appellee.