In the

United States Court of Appeals

For the Seventh Circuit

Nos. 99-2734 & 99-2892

Susan Cooper Houben,

Plaintiff-Appellee/Cross-Appellant,

v.

Telular Corporation,

Defendant-Appellant/Cross-Appellee.

Appeals from the United States District Court 

for the Northern District of Illinois, Eastern

Division.

No. 97 C 1489--Ruben Castillo, Judge. 

Argued May 18, 2000--Decided November 3, 2000

 Before Posner, Diane P. Wood, and Williams,

Circuit Judges.

 Diane P. Wood, Circuit Judge. This case

is principally about the commissions

Susan Cooper Houben claimed she earned

working as the director of corporate

development for Telular Corporation, a

manufacturer of coupling devices for

telephones and cellular radios. Houben’s

employment with Telular came to a rather

abrupt end around the same time that she

sought to take a second maternity leave,

and she later sued for damages under a

number of theories. Five claims went to

trial, and a jury awarded Houben $98,364

in damages on two of them. Both sides

have appealed, Telular from the denial of

its motions for summary judgment,

judgment as a matter of law, and a new

trial, and Houben from the grant of

summary judgment in Telular’s favor on

two of her fraud claims. We find no

reversible error in any of the district

court’s rulings and therefore affirm

across the board.

I

 Houben became director of corporate

development for Telular in 1994. The next
year Telular asked her to head the

"Motorola Account Team" and focus her

energies on selling Telular products to

Motorola. As director of corporate

development, she was a salaried employee;

in her new sales position, however, her

compensation changed to a mix of salary

and commissions. In August 1995, Houben

received a memorandum explaining her new

compensation package. In addition to her

base annual salary of $75,000, she was

eligible to receive monthly sales

commissions, an annual bonus, and stock

options. The memo described monthly sales

commissions as follows: 

#2 Monthly Sales Commission

Your monthly sales commission will equal

one percent of all Motorola generated

revenues attributed to the Motorola team.

Unless specified differently in writing

the Telular team will be credited with

80% of Motorola revenues with the

remaining 20% being credit [sic] to the

geographic field organization where the

equipment was installed.

The maximum amount you can earn from

monthly commissions in any one fiscal

year is $90,000. Should such a cap be

invoked and should you continue to excel

in generating revenue above and beyond

the point where the cap takes effect,

management will recognize such

performance when considering the amounts

to be granted under items #3 [annual

bonus] and #4 [stock options].

 An April 19, 1995 memorandum titled

"Managing House Account" describes the

general operation of Telular’s commission

plan, including Telular’s policy on

revenue sharing: "Telular is prepared to

pay up to 3% of sales revenue whether

that revenue be generated by the

geographic field sales force or the

Corporate Development staff. . . ." The

memorandum went on to explain how the 3%

of sales revenues would be allocated

among various Telular teams. Neither the

general April 1995 memorandum nor

thespecific August 1995 memorandum to

Houben define the term "revenues." 

 During Houben’s tenure, Motorola was

competing for a large order from the

telecommunications agency in Hungary.

Houben and her team worked to have

Telular selected as Motorola’s supplier
for the deal. For three months of the

time leading up to Telular’s selection as

the supplier (from May 27 to August 21,

1995, to be exact) Houben was out on

maternity leave; even then, however, she

remained in touch with her team, speaking

with them over the telephone and at her

home. 

 The efforts of Houben and her team paid

off, as the Hungarian supply contract

eventually went to Telular. In the fall

of 1995, Telular announced the news that

Motorola had agreed to purchase $100

million in Telular products to service

the Hungarian deal. (The full $100

million in sales never materialized, but

Telular eventually shipped $8.586 million

of product to Motorola in 1996 and

$21.190 million in 1997.) On January 4,

1996, Houben informed Telular that she

was pregnant and would be taking a second

maternity leave in August of that year.

Later that month Houben was told she was

being fired; her employment was

terminated on February 2.

 Houben never received commission

payments related to the sales

attributable to the Motorola deal in

Hungary. Even though the initial purchase

order did not issue until March 1996--

after Houben had been terminated and left

Telular--she nonetheless believed that

she was entitled to commission payments

on the sales that were actually made,

because she and her team were responsible

for securing the underlying deal.

 Houben filed suit in March 1997. In

addition to alleging federal claims under

Title VII, the Pregnancy Discrimination

Act, and the Family and Medical Leave

Act, she alleged various state law claims

related to the breach of her employment

contract (e.g., breach of written

employment agreement, fraud, accounting,

etc.). In the end, only the three federal

claims and the state claims for breach of

employment contract and commissions under

the Illinois Wage Payment and Collection

Act (IWPCA), 820 ILCS 115/14, went to

trial. The jury returned a verdict in

favor of Telular on the federal claims

and in favor of Houben on the state law

claims, awarding her damages totaling

$98,364. 

II
 Before turning to the merits of the two

appeals, we must discuss an issue

concerning our appellate jurisdiction.

One of the theories under which Houben

proceeded, and for which the jury awarded

her damages, arose under the IWPCA. Under

that statute, an employer who is ordered,

either by the Illinois Department of

Labor or a court, to pay wages due an

employee and fails to do so within an

allotted time, is liable for statutory

penalties of 1% per calendar day of

delay. 820 ILCS 115/14(b). After the

district court denied Telular’s posttrial motions, including a motion to set

aside the IWPCA award, Houben argued that

Telular owed her statutory penalties

because it had failed to pay its damages

immediately. The district court did not

resolve the question of Telular’s

liability for penalties; instead, it

imposed a supersedeas bond of $200,000 on

Telular. Telular responded with a motion

to stay judgment and for a revised

supersedeas bond, requesting a ruling

that the IWPCA penalty provision did not

apply to this case. Again the district

court declined to rule on this issue, but

it stayed any penalties from accruing. 

 Normally the failure to rule on an issue

would deprive this court of jurisdiction,

as we have jurisdiction only over final

judgments of the district courts, 28

U.S.C. sec. 1291, which means that all

issues in the litigation must be

resolved. Alternatively, the district

court may enter a Rule 54(b) judgment if

there has been a final resolution of one

or more (but not all) claims, allowing

the parties to appeal from those parts of

the judgment while allowing the district

court and the parties to continue working

on the remaining issues in district

court. See, e.g., Union Oil Co. v. John

Brown E&C, 121 F.3d 305, 310-12 (7th Cir.

1997); King v. Gibbs, 876 F.2d 1275, 1277

(7th Cir. 1989).

 Even without a Rule 54(b) order,

however, there are narrow circumstances

in which the existence of unresolved

issues in the district court does not

defeat the finality of the judgment. The

most well known of these is the

collateral issue of attorneys’ fees,

where the failure to issue a final order

on fees does not mean that appellate

jurisdiction is lacking over the merits

appeal. Budinich v. Becton Dickinson &
Co., 486 U.S. 196, 200-01 (1988) (a

post-judgment award of attorneys’ fees is

separate from the judgment on the merits

for purposes of 28 U.S.C. sec. 1291 and

appeals can be taken separately from

each). Whether penalties under the IWPCA

should be treated the same way as fees is

the question now before us./1

 There are important functional

similarities between the IWPCA penalties

and attorneys’ fees. Like fees, IWPCA

penalties "cannot be quantified until the

entry of final judgment. So, if the

pendency of such a claim prevented the

judgment from becoming final, it could

never become final." Alonzi v. Budget

Constr. Co., 55 F.3d 331, 333 (7th Cir.

1995). See Budinich, supra; Patzer v.

Board of Regents of the University of

Wisconsin System, 763 F.2d 851, 859 (7th

Cir. 1985) (same). An outstanding request

for costs similarly does not defeat

finality. See Wielgos v. Commonwealth

Edison Co., 892 F.2d 509, 511 (7th Cir.

1989). Furthermore, unlike a subject like

prejudgment interest, which must be

resolved before the judgment and

incorporated into the judgment, see

Osterneck v. Ernst & Whinney, 489 U.S.

169, 175-76 (1989), penalties under the

IWPCA do not belong in the judgment. They

relate instead to the collection proceed

ings; indeed, a right to IWPCA penalties

may never even arise--a right to such a

payment depends entirely on post-judgment

facts. We conclude that the unresolved

nature of the IWPCA question does not

defeat our appellate jurisdiction, see

generally 15B Wright, Miller & Cooper,

Federal Practice and Procedure 2d sec.

3915.6, at 347-49 (1992), and we

therefore proceed to the merits of the

appeal and cross-appeal. 

III

A. Telular Appeal

 The jury found that Telular breached its

contract with Houben and that it had

violated the IWPCA for failing to pay her

the commissions to which she was

entitled. The jury was instructed that it

could find for Houben on the breach of

contract claim if the contract provided

that commissions were earned as soon as a

conditional sales agreement was entered

into or if it concluded that the contract

entitled Houben to commissions if she was

the "procuring cause" of the sales to
Motorola. Telular challenges both

theories on appeal. 

 Telular contends that the district court

erred in not finding as a matter of law--

in either its motions for summary

judgment or judgment as a matter of law--

that under the language of the Telular

commission plan, Houben was not entitled

to a commission for her work on the

Hungary Motorola project. Telular first

argues that the court should have found

that the commission plan was unambiguous,

and that it clearly barred Houben’s

claim. It thinks this turns on the

meaning of the term "revenue," which it

then argues can only be interpreted as

"income received after product was

shipped." Alternatively, it argues that

even if the term "revenue" in the

commission plan is ambiguous, the

extrinsic evidence so overwhelmingly

supported Telular’s interpretation that

the court should have found it to be the

only one supported by the facts. Finally,

it urges that even under Houben’s

interpretation of the commission plan, no

event giving rise to a right to

commissions occurred during Houben’s

tenure at Telular, because no orders were

received during that time period, and

that this fact alone should have

precluded her claim.

 We begin with the well-accepted

principle that when contract construction

is at issue, the question whether

contractual terms are ambiguous or not is

a question of law for the court to

decide. See, e.g., Independent

Construction Equipment Builders Union v.

Hyster-Yale Materials Handling, Inc., 83

F.3d 930, 932 (7th Cir. 1996). (We note

that the allocation of responsibilties

between judge and jury is a question of

federal law, see Mayer v. Gary Partners &

Co., 29 F.3d 330, 333-35 (7th Cir. 1994),

even though it is uncontested that the

substance of this contract is governed by

Illinois law.) If the contract is

ambiguous, the proper construction of the

contract’s terms--that which accords with

the intent of the parties--is a question

of fact, and we may turn to extrinsic

evidence to determine the intent of the

parties. See Rossetto v. Pabst Brewing

Co., 217 F.3d 539, 542 (7th Cir. 2000);

see also C.A.M. Affiliates, Inc. v. First

Am. Title Ins. Co., 715 N.E.2d 778, 782

(Ill. App. Ct. 1999).
 Although as we noted, the parties have

argued about the meaning of the term

revenue in these instruments, we believe

that debate misses the central point

here. Telular is not really arguing about

the meaning of the term "revenue" in

itself; its point has to do with the

questions of who is entitled to a

commission and at what time is that right

earned. The written instruments offer no

guidance on either point.

 The silence of the contract requires us

to turn to the extrinsic evidence, as we

did in Rossetto, supra. The evidence of

Telular’s long-standing practice

indicates that commissions were earned on

revenues actually generated from products

shipped. Houben has no quarrel with this

interpretation. She does not claim, for

example, that she is owed commissions on

the announced potential sales of $100

million on the Motorola Hungary project;

instead, she claims only commissions

based on the sales that actually went

through. Granting that Telular indeed

earned money from the Hungarian project,

the only dispute is about what events

entitled Houben to commission payments,

when those events occurred, and whether

such events had to occur during the time

of her employment in order for her to

receive a commission for those sales.

Telular contends that all of the

extrinsic evidence demonstrates that

under the commission plan, commissions

were not earned until the product was

shipped. It then concludes that because

no products for the Motorola Hungary

project were shipped during the time that

Houben was still employed with Telular,

she earned no commissions for that

project. 

 Even if we assume that the event

triggering a right to a commission was

the shipment of the product, there was

sufficient evidence for the jury to

conclude that the commission was

attributed to the salesperson or team

responsible for the sale at the time the

deal was struck, not at the time of

shipment. The evidence does not

demonstrate that commissions were as a

matter of practice no longer attributable

to the employee who did the legwork on

the sale simply because she left the

company, was fired, or moved to a

different job within the company between
the time the sale was closed and the

shipment of the product. One Telular

executive testified that "when the deal

is struck, you make your decision then as

to who the commissions--who is entitled

to commissions; but you physically don’t

pay the money until cash is received." In

addition, although Telular normally did

not pay a commission on a sale until it

had the money from the sale in hand,

there were exceptions to this practice.

Indicating that it regarded the right to

the commission as having accrued, even if

the money had not yet been paid out,

Telular allowed salespersons to take out

advances on expected commissions in order

to ease their cash flow. The company

treated the advance like a loan and

deducted it from the salesperson’s

eventual commissions; if the salesperson

was terminated before the commission came

through, however, the advance would be

forgiven. To similar effect (though also

susceptible to interpretation in

Telular’s favor), when Telular was

downsizing and asking people to leave,

the company paid the person "half

thecommissions he would have been

entitled to" as a type of severance

package. 

 In short, although the evidence in

Houben’s favor was not overwhelming, it

was enough for a reasonable jury to

conclude--as this one did--that Houben

was entitled to a commission on those

sales she helped to procure even though

she was no longer employed by Telular at

the time the products were shipped. We

therefore find that the district court

did not err in denying Telular’s motions

for summary judgment and judgment as a

matter of law, nor did it abuse its

discretion in denying Telular’s motion

for a new trial.

 We would reach the same result under the

procuring cause doctrine, which entitles

a party "to commission on sales made

after termination of a contract if that

party procured the sales through its

activities prior to termination." Hammond

Group, Ltd. v. Spalding & Evenflo Cos.,

69 F.3d 845, 850 (7th Cir. 1995), quoting

Scheduling Corp. of Am. v. Massello, 503

N.E.2d 806, 809 (Ill. App. Ct. 1987).

"The purpose of this rule is to protect a

salesperson who is discharged prior to

the culmination of a sale, but after he

or she has done everything that is
necessary to effect the sale." Furth v.

Inc. Publ’g Corp., 823 F.2d 1178, 1180

(7th Cir. 1987), citing Schroeder v.

Meier-Templeton Assocs., Inc., 474 N.E.2d

744, 750 (Ill. App. Ct. 1984). Telular

argues that Houben should not have been

able to present the "procuring cause"

theory to the jury, because the procuring

cause doctrine is unavailable if the

parties have specifically contracted

about when commissions were to be paid.

See Scheduling Corp., 503 N.E.2d at 809.

As explained above, however, the parties

to this contract did not specifically

contract as to when commissions were to

be paid, given the silence of the

contract regarding the accrual of the

right to a commission and the timing of

commission payments. 

 On the merits, Telular contends there

was insufficient evidence for the jury to

find that Houben was the "procuring

cause" of Telular’s sales to Motorola on

the Hungary project. Telular argues that

no firm commitment from Motorola was

received during Houben’s tenure, and that

Houben was only a minor participant in

the actual sales effort, as her duties

were largely administrative. 

 The jury was not compelled to see things

as Telular now portrays them. Although

Motorola placed no actual purchase order

during Houben’s tenure, Telular did win

the competition to be Motorola’s supplier

on the deal and it publicized that fact

several months before Houben’s departure.

One Telular executive testified that

Telular’s "victory" in the Motorola

Hungary deal constituted a "firm order":

"You would never go public like this

[with a press release] if you didn’t

believe [the order] was firm." Telular’s

argument that Houben was a minor

participant in the sale runs up against

the fact that the company created a

special sales team to focus on the

Hungary deal and placed Houben at its

head. She may not have been the

salesperson on the ground in Hungary, but

she was responsible for overseeing the

work of the sales team and figuring out

how to position Telular to get the

contract.

 Ultimately, whether Houben was the

procuring cause of the Motorola Hungary

sales was a question of fact to be

decided by the jury. Again, although the
evidence was not overwhelming, it was

sufficient for a reasonable jury to find

that Houben deserved credit--and a

commission--for the sale under Illinois’s

procuring cause doctrine. 

B. Houben Cross-Appeal 

 On her cross-appeal, Houben argues that

the district court erred in granting

summary judgment for Telular on her fraud

and constructive fraud claims. Briefly,

the basis for those claims was as

follows, taking the facts in the light

most favorable to Houben. At the same

time as Telular announced the first

Motorola contract for the Hungary deal,

it secretly decided not to continue

employing an in-house sales force, but

instead to outsource the sales function

and to stop paying commissions to its

sales people. It also decided to downsize

its workforce more generally. In

furtherance of this plan, it terminated

its relationship with an outside

consultant that had administered its

computerized commission payment system.

In November 1995, one of Houben’s

subordinates asked her what was afoot,

because he had seen troublesome documents

on another person’s desk. When Houben

inquired, however, her supervisor told

her (up through mid-January 1996) that

"nothing will change." Houben continued

to perform her job on that assumption.

 In order to establish fraud under

Illinois law, a plaintiff must prove that

(1) defendant made a false statement; (2)

of material fact; (3) which defendant

knew or believed to be false; (4) with

the intent to induce plaintiff to act;

(5) the plaintiff justifiably relied on

the statement; and (6) the plaintiff

suffered damage from such reliance.

Williams v. Chicago Osteopathic Health

Sys., 654 N.E.2d 613, 619 (Ill. App. Ct.

1995); Dresser Indus., Inc. v. Pyrrhus

AG, 936 F.2d 921, 934 (7th Cir. 1991).

"Promissory fraud" is a false

representation of intent concerning

future conduct, such as a promise to

perform a contract when there is no

actual intent to do so. Doherty v. Kahn,

682 N.E.2d 163, 176 (Ill. App. Ct. 1997).

As a general rule, promissory fraud is

not actionable in Illinois unless the

promise is part of a "scheme" to defraud.

Id.
 In granting Telular’s motion for summary

judgment, the district court reasoned

that Houben had failed to present any

facts demonstrating that Telular intended

to defraud her. In particular, Houben

presented no evidence that when Telular

promised her that she would receive sales

commissions the company in fact had no

intention of making those payments.

Houben argues that Telular’s decision to

restructure its sales operation and stop

paying commissions to its salespeople

provides the missing evidence of

Telular’s intent to defraud her. She also

points to company managers’ reassuring

statements that "nothing would change" as

further proof of a fraudulent scheme

designed to induce her to continue

working despite the planned changes in

sales force structure and compensation. 

 Like the district court, we find that

Houben’s evidence was not enough to

create a jury issue on either the

question of Telular’s fraudulent intent

or the "scheme to defraud" requirement of

promissory fraud. Evidence

regardingTelular’s decision not to pay

commissions relates to events beginning

in October 1995--after the commission

plan was released in April 1995 and after

Houben’s individual compensation memo was

drafted in August 1995. The comment that

"nothing would change" seems to be no

more than the general sort of platitude

that company managers are prone to utter

when a workforce is being restructured.

It cannot be stretched into evidence of a

fraudulent scheme. And even if the

comments could be seen as the kind of

intentional and false statements of

material fact Illinois requires, Houben’s

claim would also fail because she has

offered no evidence of any reliance on

those statements.

 Houben’s constructive fraud theory was

also properly rejected. Constructive

fraud "is a breach of a legal or

equitable duty that the law declares

fraudulent because of its tendency to

deceive others, irrespective of the moral

guilt of the wrongdoer." Beaton &

Associates, Ltd. v. Joslyn Mfg. & Supply

Co., 512 N.E.2d 1286, 1291 (Ill. App. Ct.

1987). An essential element of the claim

is "a breach of duty, especially

fiduciary duty." Kohler v. Leslie

Hindman, Inc., 80 F.3d 1181, 1188 (7th

Cir. 1996). Such a breach can be shown
where there is great inequality between

the parties. See In re Estate of

Neprozatis, 378 N.E.2d 1345, 1349-50

(Ill. App. Ct. 1978). But the mere breach

of an employment contract is insufficient

to give rise to a claim of constructive

fraud. See Gross v. University of

Chicago, 302 N.E.2d 444, 453-54 (Ill.

App. Ct. 1973) (employer/employee

relationship does not create fiduciary

duty on the part of the employer). Houben

argues that constructive fraud

nonetheless applies because Telular was

clearly dominant in the relationship: the

company had "superior knowledge" and

"overmastering influence." See Mitchell

v. Norman James Constr. Co., 684 N.E.2d

872, 879 (Ill. App. Ct. 1997). At bottom,

however, Houben’s case is

indistinguishable from any other case in

which an employer allegedly breached an

employment contract. She offers no legal

authority that would justify treating

this breach (assuming that is how it

should be viewed for these purposes)

differently from any other breach. We

therefore find that the district court

correctly granted summary judgment on

this claim.

* * * *

 The judgment of the district court is

AFFIRMED.

/1 For the sake of completeness, we note that the

district court’s decision not to rule on Telular-

’s argument that the IWPCA does not apply to this

case may leave open the question whether the

IWPCA was pre-empted by federal laws governing

the payment of judgments, such as 28 U.S.C. sec.

1961 and Fed. R. Civ. P. 62(d). In light of our

ruling here that this entire subject is a collateral issue analogous to attorneys’ fees, we leave

consideration of that question to the district

court in future proceedings. We express no opinion on the question whether Telular has properly

preserved such an argument, or if it was waived,

as that too is better addressed by the district

court in the first instance and it has not been

briefed in this court.