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FIFTH DIVISION

March 19, 2004

JUSTICE O'BRIEN delivered the opinion of the court:

Defendants, Gelber Group Inc. (GGI), GelberManagement, Inc. (GMI), Brian Gelber, and Franklin Gelber,appeal the jury verdict in favor of plaintiff, HarveyZabinsky, on his claim under the Illinois Wage Payment andCollection Act (820 ILCS 115/1 et seq (West 1994)). Plaintiffcross-appeals the denial of his petition for attorney fees. We affirm the verdict in favor of plaintiff; we reverse andremand on the cross-appeal from the denial of theattorney-fee petition.

This case is before us for the second time. On October20, 1997, we affirmed in part and reversed in part thedismissal of plaintiff's fifth amended complaint. SeeZabinsky v. Gelber Group, Inc., No. 1-96-4209 (October 20, 1997)(unpublished order under Supreme Court Rule 23). Werecite a portion of our October 20, 1997, order, verbatim,because it is relevant to the issues on this appeal:

"In his fifth amended complaint, plaintiffallege[d] that Brian and Franklin Gelber conducted agroup of related businesses under the trade name 'TheGelber Group.' Those businesses included a futurescommission merchant business, a futures and optionsbusiness, a commodity pool operation and commoditytrading advisor business and a broker dealer business.

Plaintiff pleaded that Brian and Franklin Gelberalso owned controlling interests in Gelber Group,Inc. (GGI) and Gelber Management, Inc. (GMI), a whollyowned subsidiary of GGI. Brian was president of GGIand GMI, while Franklin was treasurer/secretary ofGGI and GMI. At all relevant times, Brian and Franklincaused GGI to pay the salaries, medical insurancepremiums and pension plan expenses of their employees,regardless of whether the employees were designatedas Brian and Franklin's employees, GGI's employees, orGMI's employees.

Plaintiff pleaded that in December 1987, he metwith Brian and Franklin Gelber at their office inChicago. Brian, on his own behalf and on the behalfof Franklin, GGI and GMI, offered plaintiff the job ofmanaging the Gelber Arbitrage Fund. Brian toldplaintiff that if he accepted the job, plaintiff wouldreceive an annual salary of $96,000, a quarterly bonus,retirement benefits under a pension plan, and medicalbenefits. Brian also informed plaintiff that 'saidsalary, bonus and benefits would be paid and providedto Plaintiff for so long as the Fund was managed byhimself, Franklin Gelber or one or more of theenterprises owned or controlled by himself andFranklin Gelber.' On or about January 1, 1988, plaintiffaccepted the offer and began managing the Fund. Plaintiff managed the Fund until March 26, 1990, whenBrian Gelber fired him. Brian Gelber, Franklin Gelber,or GMI or GGI continued to manage the fund untilDecember 31, 1990.

In Counts I, II, III, and IV, plaintiff pleaded,respectively, that Brian Gelber, Franklin Gelber, GGI,and GMI, breached the oral contract by failing to payplaintiff his bonus for the first quarter of 1990 andhis salary, quarterly bonuses and benefits for anyperiod thereafter through December 31, 1990. CountsVII and VIII, labeled 'Assumption of Obligations ofBrian Gelber by GGI/Third Party Beneficiary' and'Assumption of Obligations of Franklin Gelber byGGI/Third Party Beneficiary', basically repeat theallegations of count III that GGI breached the oralcontract with plaintiff.

Counts VI, IX, X, XI, [XII], XIII, XIV [and XV and XVI]alleged *** that Franklin Gelber, GGI, GMI, Brian Gelber,Thomas Towson (an officer of GGI), and Chris Stewart(an officer of GGI) violated the Illinois Wage Paymentand Collection Act (the Act) by failing to pay plaintiffhis first quarter 1990 bonus, as well as his second,third, and fourth quarter 1990 salary and bonusamounts." Zabinsky, slip op. at 1-96-4209.

Defendants filed a combined motion to dismiss, whichthe trial court granted. Upon appeal, this court: (1)affirmed the dismissal of the breach of contract countsbecause the oral contract, upon which plaintiff relied,violated the statute of frauds; (2) affirmed the dismissal ofplaintiff's claims under the Act for his second, third, andfourth quarter salary and bonus because plaintiff wasfired during the first quarter of 1990 and therefore neverearned his second, third, and fourth quarter salary andbonus; and (3) reversed and remanded the dismissal ofplaintiff's claim for an earned first quarter 1990 bonusunder the Act because plaintiff had adequately pleadedthat he had provided labor, service, or performance forthe bonus pursuant to an agreement with the defendants. See Zabinsky, slip op. at 1-96-4209.

Upon remand, a jury trial was held on plaintiff's claimunder the Act for an earned first quarter 1990 bonus. Thejury found in favor of plaintiff for $200,297.50. The trialcourt denied defendants' motion for judgmentnotwithstanding the verdict. Plaintiff presented hispetition for attorney fees, which the trial court denied. Defendants appeal the jury verdict in favor of plaintiff. Plaintiff cross-appeals the denial of his petition forattorney fees.

I. DEFENDANTS' APPEAL

First, defendants argue that the plaintiff has failedto state a cause of action under the Act for recovery ofhis first quarter 1990 bonus and, thus, that the trial courterred by permitting this matter to proceed to trial.

In our October 20, 1997, order we held that plaintiffstated a cause of action under the Act for an earned firstquarter 1990 bonus. See Zabinsky, slip op. at 1-96-4209. OurOctober 20, 1997, order is the law of the case on this issue. Under the law of the case doctrine, issues presented anddisposed of in a prior appeal are binding and will controlin the circuit court upon remand as well as in theappellate court in a subsequent appeal. Reich v. Gendreau,308 Ill. App. 3d 825, 829 (1999). Accordingly, the trial courtdid not err by permitting this matter to proceed to trial.

Next, defendants argue that the trial court erred bydenying their motions for directed verdict and, later,judgment notwithstanding the verdict based uponplaintiff's failure to prove his case at trial. Our supremecourt has held that "verdicts ought to be directed andjudgments n.o.v. entered only in those cases in which allof the evidence, when viewed in its aspect most favorableto the opponent, so overwhelmingly favors movant thatno contrary verdict based on that evidence could everstand." Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510(1967).

The Act states that "[e]very employer shall pay the finalcompensation of separated employees in full, at the time ofseparation, if possible, but in no case later than the nextregularly scheduled payday for such employee." 820 ILCS115/5 (West 1994). The Act defines "final compensation" as"wages, salaries, earned commissions, earned bonuses, andthe monetary equivalent of earned vacation and earnedholidays, and any other compensation owed the employeeby the employer pursuant to an employment contract oragreement between the 2 parties." (Emphasis added.) 820 ILCS115/2 (West 1994).

Plaintiff testified at trial that he worked the firstquarter of 1990 pursuant to an agreement that defendantswould pay him a bonus based upon a mutually agreed-uponformula. Plaintiff testified that according to theformula, defendants owed him a bonus of $200,297.70 for hiswork during the first quarter of 1990. Plaintiff's trialtestimony was sufficient to establish his right to thebonus under the Act, as well as to the amount of thebonus, and defendants' liability therefor. Althoughthere was some contrary testimony as to whether theagreement existed or whether plaintiff complied with theterms of the agreement, it was for the trier of fact toevaluate the credibility of the witnesses and weigh theevidence. Maple v. Gustafson, 151 Ill. 2d 445, 452 (1992). Viewedin the light most favorable to the plaintiff, the evidencedoes not so overwhelmingly favor the defendants thatno contrary verdict based upon that evidence could everstand. Accordingly, the trial court did not err bydenying defendants' motions for directed verdict andjudgment notwithstanding the verdict.

Defendants argue, though, that the court shouldhave granted a directed verdict or judgmentnotwithstanding the verdict because plaintiff failed toprove the existence of an enforceable contract for abonus as required under the Act. Specifically, defendantscontend that plaintiff failed to sufficiently identify theparties or terms of the contract, and failed to show thatthe contract complied with the statute of frauds.

Resolution of this issue requires us to construe theAct. Because the construction of a statute is a question oflaw, our review is de novo. O'Loughlin v. Village of RiverForest, 338 Ill. App. 3d 189, 191 (2003).

The primary rule of statutory construction is toascertain and give effect to the true intent of thelegislature. Augustus v. Estate of Somers, 278 Ill. App. 3d 90, 97(1996). In determining legislative intent, a court shouldconsider the statutory language first, giving the terms ofthe statute their ordinary meaning. MQ Construction Co.v. Intercargo Insurance Co., 318 Ill. App. 3d 673, 681 (2000). Adictionary may be used as a resource to determine theordinary and commonly accepted meaning of words. Melliere v. Luhr Bros., Inc., 302 Ill. App. 3d 794, 797 (1999). Wherethe language of the statute is clear, it will be given effectwithout resort to other aids for construction. Augustus,278 Ill. App. 3d at 97.

The Act specifically states that an employer shall paythe employee his earned bonus owed "pursuant to anemployment contract or agreement between the 2 parties."(Emphasis added.) 820 ILCS 115/2 (West 1994). An "agreement" isbroader than a contract and requires only amanifestation of mutual assent on the part of two ormore persons; parties may enter into an "agreement"without the formalities and accompanying legalprotections of a contract. Black's Law Dictionary 35(abridged 5th ed. 1983); Restatement (Second) of Contracts