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September 18, 2001

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JUSTICE McLAREN delivered the opinion of the court:

Defendant, Daniel Long, appeals from the trial court's ordergranting summary judgment in favor of plaintiff, ScenturaCreations, Inc., on its complaint for breach of a consignmentcontract. He also appeals from the trial court's order grantingplaintiff's petition for attorney fees and the trial court's orderthat denied leave to file a counterclaim against plaintiff based onthe Consumer Fraud and Deceptive Business Practices Act (ConsumerFraud Act or Act) (815 ILCS 505/1 et seq. (West 2000)). We reverseand remand.

Plaintiff is a manufacturer and distributor of renditionperfume products to independent wholesaler consignees. On November29, 1995, defendant entered into a consignment contract withplaintiff. Pursuant to the contract, plaintiff was to providedefendant with perfume products. Defendant would sell the productsto an end user for the consignment price. Payment of theconsignment price for the perfume products was due when defendantsold the products to an end user. The agreement was for a term of30 days and was automatically renewed unless one party gave writtennotice of termination. If defendant terminated the agreement, hewas to hold all merchandise in his possession for a period of 30days "until [plaintiff] shall have an opportunity to remove suchmerchandise."

Under the contract, defendant had the potential to becompensated by plaintiff for locating other consignees to enterinto a business relationship with plaintiff. In the eventplaintiff paid defendant a commission arising from the sale ofmerchandise by another consignee, the contract obligated defendantto pay plaintiff for the shipments of merchandise to the otherconsignees as though they had been shipped to defendant. Thisprovision of the contract was not specific concerning thecompensation to be given to defendant for locating otherconsignees. It allowed plaintiff sole discretion in determiningthe amount of compensation to be given, if any. Paragraph 19 ofthe contract provided as follows:

"From time to time, at SCENTURA'S sole discretion,SCENTURA may offer incentives to CONSIGNEE to encourage orreward CONSIGNEE for bringing other consignees or in assistingother consignees, to or in furtherance of a businessrelationship with SCENTURA. Any and all compensation paid forsuch efforts, whether in the form of commissions or otherwise,shall, at all times be solely at the discretion of SCENTURAand CONSIGNEE shall not be deemed in any way to have earned,or be entitled to, any compensation. It is further understoodand agreed that any compensation which may be paid toCONSIGNEE by SCENTURA arising out of the sales by SCENTURA toother consignees, notwithstanding any course of dealing orpractice by and between SCENTURA and CONSIGNEE to thecontrary, may be terminated by SCENTURA without notice at anytime, without any liability to CONSIGNEE. Under nocircumstances, will SCENTURA be obligated to pay to consigneeany commissions or other compensation, except in SCENTURA'ssole discretion, and notwithstanding anything to the contrary,SCENTURA shall not pay to CONSIGNEE any commissions or othercompensation following the date of the termination of thisagreement. It is further agreed by and between the partiesthat any commission or other compensation paid by SCENTURA toCONSIGNEE arising out of the sale of merchandise by any otherconsignee, shall be deemed for all purposes to obligateCONSIGNEE for any subsequent or future shipments by SCENTURAto such consignee whose sale of goods resulted in the paymentof a commission, to guarantee to SCENTURA those sameguarantees specified in paragraph 16 of this Agreement, as ifthe goods shipped to such other consignee had been shipped toCONSIGNEE herein. In that respect, any commissions or othercompensation paid to CONSIGNEE for such sales by thirdparties, shall be deemed a fee and consideration for theguarantee by CONSIGNEE of such third party's performance underany such third party's consignment agreement with SCENTURA. CONSIGNEE's guarantee of such third party's consignmentagreement with SCENTURA shall be for the entire amount thatmay be due to SCENTURA by such third party consignee,notwithstanding that other consignees might also, pursuant tothe provisions similar to those contained herein, haveguaranteed to SCENTURA such third party consignee'sperformance, it being understood and agreed that theirliability is joint and several."

Plaintiff delivered 2,284 bottles of perfume to defendant. The consignment price for the perfume was $10 per bottle.

On January 11, 1999, defendant contacted plaintiff and advisedthat he was terminating his relationship with plaintiff. OnJanuary 28, 1999, plaintiff mailed defendant a letter demanding thereturn of the perfume products in his possession. Plaintiff alsodemanded that defendant return the perfume products in thepossession of other consignees who entered into separate contractswith plaintiff.

Defendant returned all of the perfume in his possession toplaintiff. He also attempted to return the perfume of the otherconsignees as plaintiff requested. Nevertheless, on March 1, 1999,plaintiff filed a complaint against defendant, alleging breach ofthe consignment contract. The complaint alleged that plaintiffdelivered merchandise on consignment to defendant and thatdefendant failed to tender the consignment price for themerchandise or return it to plaintiff in the same condition asreceived. The complaint alleged that defendant owed plaintiff atotal of $31,236.44, plus court costs and attorney fees. Thecomplaint was filed in the arbitration division. On defendant'sfirst court appearance on March 31, 1999, an arbitration date ofJune 21, 1999, was assigned.

On April 1, 1999, defendant served plaintiff with a demand fora bill of particulars that sought a list of the merchandisedelivered to defendant, a list of merchandise not returned ordamaged, and a list of the cost of all items allegedly not returnedor damaged. In response, plaintiff provided documentationindicating that it sought to hold defendant liable for 2,954bottles of perfume at $10 per bottle not returned by otherconsignees, for 2,565 damaged perfume cartons at 50