Marcus & Millichap Investment Services of Chicago, Inc v. Tony Sekulovski

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1352
MARCUS & MILLICHAP INVESTMENT SERVICES
OF CHICAGO, INC.,
Plaintiff/Counter-Defendant-Appellee,
v.
TONY SEKULOVSKI,
Defendant/Counter-Plaintiff-Appellant.
v.
MARCUS & MILLICHAP REAL ESTATE INVESTMENT
SERVICES, INC.,
Counter-Defendant-Appellee,
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 5369—Harry D. Leinenweber, Judge.
ARGUED SEPTEMBER 8, 2010—DECIDED MARCH 23, 2011
Before EASTERBROOK, Chief Judge, and BAUER and
KANNE, Circuit Judges.

-- 1 of 26 --

2 No. 10-1352
KANNE, Circuit Judge. Real estate commercial brokerage
Marcus & Millichap Real Estate Investment Services,
Inc. (“REIS”), and its Illinois-based subsidiary, Marcus &
Millichap Real Estate Investment Services of Chicago,
Inc. (“M&M Chicago”), sued former agent Tony Sekulovski
for breach of contract, unjust enrichment, conversion,
fraud, and tortious interference. These claims were
based on allegations that Sekulovski fraudulently mis-
represented the work he and his partner contributed
to various real estate transactions and that he misap-
propriated transactions and commissions when he termi-
nated his relationship with the brokerage. Sekulovski
counterclaimed for breach of contract, declaratory relief,
unjust enrichment, and unlawful withholding of wages.
At the end of the parties’ presentation of evidence, the
district court entered a judgment as a matter of law in
favor of M&M Chicago on Sekulovski’s statutory wage
claim. The jury then found in M&M Chicago’s favor
on all counts. The district court denied Sekulovski’s
motions for a judgment as a matter of law or, alternatively,
for a new trial on each count. Because we find that the
district court did not err in its rulings, we affirm.
I. BACKGROUND
Sekulovski began working with REIS in 1999 as a real
estate agent for its Ohio subsidiary, M&M Ohio. REIS
pools some administrative resources at the national
level, providing ongoing access to all of its independent
contractors regardless of location. But each REIS
subsidiary operates as a distinct legal entity to comply

-- 2 of 26 --

No. 10-1352 3
with state licensing laws and enters into salesperson
agreements with agents it hires as independent con-
tractors. Each agreement must incorporate REIS’s Inde-
pendent Contractor Policy Manual (“Policy Manual”), and
agents’ continued affiliation with REIS depends upon
their compliance with its requirements.
Sekulovski transferred to M&M Chicago in 2005, termi-
nating his relationship with M&M Ohio. Sekulovski
availed himself of REIS resources while working in Chi-
cago. Yet despite Sekulovski “hanging his license” with
M&M Chicago and REIS’s policy requiring independent
contractor agreements, Sekulovski never signed a written
salesperson agreement with M&M Chicago. At trial,
Sekulovski stated that he had an oral agreement with
M&M Chicago that established his compensation
schedule, but he admitted to no other details of
his agency relationship. M&M Chicago argued its ar-
rangement with Sekulovski—whether oral or implied—
incorporated the Policy Manual.
REIS’s independent contractors do not earn salaries,
but receive commissions at the conclusion of real estate
transactions. The commissions are divided between the
subsidiary (throughout this case, M&M Chicago) and the
agent or agents involved in the transaction. Until an
agent meets a certain sales threshold each year, the com-
mission is divided evenly between M&M Chicago and
the agent. Once a senior agent reaches an annual thres-
hold, however, the agent’s share increases on a
graduated scale up to seventy percent of the commis-
sion. If more than one agent is involved in a transaction,

-- 3 of 26 --

4 No. 10-1352
For example, assume Agent A has reached the 70% cap on 1
his sales and Agent B has not reached the graduated scale. If
each agent contributed the same amount of work to a deal
generating a $100,000 commission, the booking statement
would allocate 50% of the work to each agent. Agent A
would receive $35,000 (50% of work * 70% share * $100,000),
Agent B would receive $25,000 (50% of work * 50% share *
$100,000), and M&M Chicago would retain $40,000.
they submit a booking statement to M&M Chicago identi-
fying the agents involved and allocating the amount of
work accomplished by each. For example, the booking
statement may show that Agent A performed two-thirds
of the work and Agent B contributed one-third of the
work to the transaction. The agents themselves agree to
the allocations; M&M Chicago generally approves the
arrangement without scrutiny, provided it is in writing.
If one agent is compensated on the graduated scale and
the other divides his share with M&M Chicago evenly,
each receives a portion of the overall commission
that reflects both the allocated work effort and the com-
pensation scale.1
Mark Luttner—a contractor Sekulovski had mentored
and supervised at M&M Ohio—followed Sekulovski to
M&M Chicago. The two began an informal partnership
in which they collaborated as real estate agents. At times
they spoke of leaving REIS and forming their own real
estate brokerage firm, though that plan never reached
fruition. They initially split their commissions evenly,
but in September 2006—when Sekulovski reached the
graduated scale for the year—they began to change their

-- 4 of 26 --

No. 10-1352 5
In contrast to the example in footnote 1, assume the booking 2
statement allocated 100% of the work to Agent A. M&M
Chicago would then retain only $30,000 of the $100,000 com-
mission, while Agent A would receive $70,000. Agent A could
then “kick back” $30,000 to Agent B, leaving each agent with
$5,000 more than if they had submitted a truthful booking
statement.
booking statement allocations. Over the course of seven-
teen deals at issue in this case, Sekulovski claimed a 75-
100% share of the commissions in his joint transactions
with Luttner. When M&M Chicago began investigating
the change, Sekulovski stated that his relationship with
Luttner had deteriorated and that Luttner’s share was
reduced to reflect Luttner’s lack of contributed work.
M&M Chicago claims that Sekulovski convinced Luttner
to approve the diminished or eliminated allocation by
giving Luttner a kick-back after he received the com-
mission; this arrangement would allow both Sekulovski
and Luttner to receive a greater share at M&M
Chicago’s expense.2
Sekulovski resigned from M&M Chicago in June 2007,
but he was unable to reach an agreement with M&M
Chicago regarding distribution of commissions from
his pending transactions. In apparent contravention of
state law and the Policy Manual, Sekulovski directed a
title company to pay two commissions to him rather
than to the brokerage. He also affiliated with NAI
Horizon (another national brokerage firm in Arizona), but
continued to represent some clients with whom he
had worked while at M&M Chicago. As a result, some

-- 5 of 26 --

6 No. 10-1352
transactions that commenced while Sekulovski had
“hung his license” with M&M Chicago closed while he
was with NAI Horizon. Sekulovski retained commissions
from these transactions. M&M Chicago protested that
those deals belonged to it, as the Policy Manual stated
that “any and all employment of any kind or nature
whatsoever by a salesperson in connection with the
real estate business must be taken in the name of the
firm.” M&M Chicago later asked one closing party to
hold its commission payment in escrow until the contro-
versy was resolved, rather than paying the commission
to Sekulovski directly.
In order to resolve the continuing dispute, REIS and
M&M Chicago sued Sekulovski in the U.S. District
Court for the Northern District of Illinois. The parties
stipulated to a dismissal of REIS’s claims before trial, so
it is a party to this appeal only as a Counter-Defendant-
Appellee. M&M Chicago sought damages based
on breach of contract, unjust enrichment, conversion,
fraud, and tortious interference theories. Sekulovski
brought counterclaims for breach of contract, unjust
enrichment, unlawful withholding of wages, and tortious
interference with contract. Luttner testified on M&M
Chicago’s behalf at trial, stating that he and Sekulovski
agreed to misrepresent allocations in booking state-
ments in order to maximize their take. The jury received
other evidence of the scheme, including emails pur-
portedly exchanged between Luttner and Sekulovski
confirming the kickback amounts. Sekulovski intro-
duced bias evidence to impugn Luttner’s credibility,
but the district court excluded additional evidence
Sekulovski proffered to further impeach him.

-- 6 of 26 --

No. 10-1352 7
The district court granted M&M Chicago’s motion for a
judgment as a matter of law on Sekulovski’s statutory
wage claim at the conclusion of the evidence. A jury then
rendered verdicts in favor of M&M Chicago on each of its
claims and against Sekulovski on each of his remaining
claims. The district court entered judgment on those
verdicts and subsequently denied Sekulovski’s post-trial
motions for a judgment as a matter of law or, in the
alternative, for a new trial on each claim. Sekulovski
timely appealed the district court’s final judgment.
II. ANALYSIS
Sekulovski “hung his license” with M&M Chicago for
over two years, using REIS staff and resources in his
work. He claims to have had an oral agreement with
M&M Chicago establishing a compensation schedule,
but also argues that no contract governed their relation-
ship because he never signed a new representation agree-
ment after he moved to Chicago. His inconsistent argu-
ments notwithstanding, we find that a contract clearly
existed between Sekulovski and M&M Chicago. See Al’s
Serv. Ctr. v. BP Prods. N. Am., Inc., 599 F.3d 720, 726
(7th Cir. 2010) (contract may be implied from the par-
ties’ conduct). Nothing in the record reasonably sug-
gests that Sekulovski and M&M Chicago were not in a
contractual relationship or that they did not expect
the terms of the Policy Manual to govern their interac-
tions, even in the absence of a signed agreement to that
effect. With this implied-in-fact contract in mind, we
turn to Sekulovski’s articulated issues.

-- 7 of 26 --

8 No. 10-1352
Sekulovski presents seven discrete issues with many
subparts. Apparently he hoped that at least one of his
buckshot arguments—which often stray from his
identified issues—would lead to reversal. We group his
allegations of error into four categories: evidentiary
rulings, jury instructions, application of the Illinois Wage
Payment and Collections Act, and denial of post-trial
motions. We will analyze each category in turn.
A. Evidentiary Rulings
Sekulovski argues that the district court erred by
limiting his cross-examination of Luttner and by excluding
evidence allegedly demonstrating Luttner’s bias. He
contends that these rulings prejudiced him because the
case turned on Luttner’s credibility. He alleges the
district court erred in preventing the introduction of or
restricting Sekulovski’s cross-examination about six
categories of bias evidence, including a post-trial email
purportedly showing that Luttner perjured himself
during his deposition.
We generally defer to district courts’ evidentiary deci-
sions. When a party appeals a district court’s decisions
to exclude evidence as erroneous, we will not overturn
the court’s decisions unless the court abused its discre-
tion. Lewis v. City of Chicago Police Dep’t, 590 F.3d 427,
440 (7th Cir. 2009). The same standard applies to our
review of a district court’s decisions to limit the scope of
cross-examination. Cruz v. Safford, 579 F.3d 840, 844 (7th
Cir. 2009). We will disturb the district court’s challenged
evidentiary rulings only if “no reasonable person could

-- 8 of 26 --

No. 10-1352 9
take the view adopted by the trial court.” Suarez v. Town
of Ogden Dunes, Ind., 581 F.3d 591, 598 (7th Cir. 2009).
Sekulovski is correct that evidence of a witness’s bias or
motive to lie is generally admissible for impeachment,
United States v. Abel, 469 U.S. 45, 50-51 (1984), and that
bias is a particularly appropriate topic for cross-examina-
tion, United States v. Salem, 578 F.3d 682, 686 (7th Cir. 2009).
But Sekulovski argues for a per se rule of admissibility
where the proponent of evidence seeks to prove bias. We
have repeatedly held to the contrary. Proffered bias
evidence is subject to both the Federal Rules of Evidence
and the discretion of the trial court. United States v.
Frankenthal, 582 F.2d 1102, 1106-07 (7th Cir. 1978). “Proof
of bias” is not a talismanic phrase that extinguishes the
trial court’s duty to evaluate and possibly exclude
evidence otherwise violative of the Rules. Regardless of
the importance of bias evidence, “the trial court has
considerable discretion as to how and when bias may
be proved and as to what collateral evidence for pur-
poses of impeachment is material.” United States v.
Higgins, 362 F.2d 462, 464 (7th Cir. 1966).
Sekulovski seeks support for his per se rule from Crowe
v. Bloduc, 334 F.3d 124 (1st Cir. 2003), but his reliance is
misplaced. In that case, the First Circuit considered
whether the district court abused its discretion when
it limited cross-examination of a witness on his contin-
gency fee arrangement—a bias inquiry the First Circuit
found to be vital. Id. at 132 (citing United States v. Valona,
834 F.2d 1334, 1343 (7th Cir. 1987)). The Crowe court
ultimately held that it was not an abuse of discretion

-- 9 of 26 --

10 No. 10-1352
to limit cross-examination of even witness bias pursuant
to Rule 403. Id. at 134.
We likewise find that the district court did not abuse
its discretion in its evidentiary decisions in this case. The
court properly applied the Federal Rules of Evidence,
ruling that some of the proffered evidence was of little
or no probative value, that its value would be sub-
stantially outweighed by risk of confusion or wasted
time, and that much of the evidence constituted inadmis-
sible hearsay. In his opening brief, Sekulovski never
addressed—let alone refuted—the district court’s Rule
401, 403, and 802 analyses. Only in his reply brief does
Sekulovski argue the propriety of any evidentiary
holding, and even if this abortive attempt had any
merit—which it did not—it would have been too late.
See Bodenstab v. County of Cook, 569 F.3d 651, 658 (7th
Cir. 2009). Regardless, a reasonable person could take
the well-reasoned view adopted by the district court, so
none of its challenged evidentiary rulings were erroneous.
Sekulovski’s ultimate argument is that the cumulative
effect of these evidentiary decisions was to prejudice
the jury because he was unable to attack Luttner’s cred-
ibility ad nauseam. The district court did note that
Luttner’s credibility was at issue in the trial, but correctly
concluded that it was quite unlikely that the jury found
Luttner’s truthfulness untarnished even in the absence
of Sekulovski’s proffered evidence. Sekulovski presents
a false dichotomy by assuming that the jury would
believe either him or Luttner. He fails to acknowledge
the very likely possibility that the jury found neither of

-- 10 of 26 --

No. 10-1352 11
them credible and pieced together its own version of
events based on corroborations and reasonable infer-
ences. The district court admitted redacted emails
clearly demonstrating Luttner’s hostility toward Sekulov-
ski, and the jury heard testimony from each party
alleging that the other’s witness fabricated documents.
As we noted in similar circumstances, “the jury had
the benefit of knowing that each party charged the
other with wrongdoing so that the claimed basis for
bias was evident. . . . We, therefore, do not view the
judge’s exercise of discretion to have been an abuse
of sound judgment.” United States v. Draiman, 784 F.2d
248, 257-58 (7th Cir. 1986).
Sekulovski’s last challenge regarding excluded evi-
dence was that Luttner’s post-trial email—which M&M
Chicago contends was fabricated by Sekulovski—militated
a new trial, especially in light of the other excluded
evidence. We will consider this challenge in our separate
discussion of his post-trial motions.
B. Jury Instructions
In his second salvo, Sekulovski contends that he is
entitled to a new trial because the district court improp-
erly instructed the jury on two points of law. We
review challenged instructions to determine whether “the
instructions as a whole were sufficient to inform the jury
of the applicable law,” and reverse “only if an instruction
so misled the jury that the deficiency prejudiced the
defendants.” Fox v. Hayes, 600 F.3d 819, 843 (7th Cir. 2010).

-- 11 of 26 --

12 No. 10-1352
First, Sekulovski asserts that the court gave erroneous
instructions regarding the jury’s calculations of fraud
damages. He argues that the district court should have
instructed the jury to discount from any damage award the
amount M&M Chicago would have been required to
pay Luttner had the fraud not occurred. He also argues
that the court should not have precluded him from in-
troducing evidence of those hypothetical amounts. He
reasons that, because they would not have been legally
retained by M&M Chicago, those amounts should not
have been considered as a part of M&M Chicago’s loss.
Under Illinois law, “damage awards for fraud are
based upon the plaintiff’s loss (rather than the
defendant’s gain).” LM Ins. Corp. v. Spaulding Enters. Inc.,
533 F.3d 542, 554 (7th Cir. 2008). The Illinois Supreme
Court has explained that the “plaintiff’s loss” shorthand
for damages computation is “based on the rationale
that the defrauded party is entitled to be placed in the
same financial position he would have occupied had the
misrepresentations in fact been true.” Price v. Philip Morris,
Inc., 848 N.E.2d 1, 56 (Ill. 2005). Yet the Illinois cases
giving rise to the “plaintiff’s loss” aphorism generally
involved consumer fraud, not the kind of misrepresenta-
tion involved in the present case. See Giammanco v.
Giammanco, 625 N.E.2d 990, 998 (Ill. App. Ct. 1993)
(“The . . . rule best fits the most common fraud scenario
where a buyer . . . has been misled about the quality
of property or some other matter relevant to a pecuniary
aspect of the transaction.”).
Here, Sekulovski’s misrepresentation did not in-
duce REIS to contract with him, but rather induced REIS

-- 12 of 26 --

No. 10-1352 13
to over-compensate him pursuant to his contract terms.
Sekulovski’s narrow, superficial interpretation of the
“plaintiff’s loss” measure thus does not provide a fitting
template for the circumstances of his specific case. His
interpretation would allow him to retain any portion of the
overall commissions that hypothetically would have
gone to Luttner, as if those portions were not a loss to
the brokerage occasioned by his misrepresentations.
The district court was not obligated to adopt Sekulov-
ski’s interpretation of the “plaintiff’s loss” measure
if adopting it would lead to nonsensical results. See id. at
1001 (noting that general damage measures “are only
guides to common sense to begin with” and that the
benefit-of-the-bargain and out-of-pocket measures are
not always perfect litmus tests for compensable damages).
We agree with the district court that the proper
measure of damages in this case was the amount that
Sekulovski received in commissions to which he would
not have been entitled but for his fraud. Accordingly,
the district court did not err in instructing the jury on
this point.
Whether M&M Chicago may rightfully retain the full
amount of that overpayment after recovering it from
Sekulovski—that is, whether it would be somehow obli-
gated to remit a portion of that amount to Luttner—is
irrelevant to the issue of how much Sekulovski caused
the brokerage to overpay him through his fraudulent
representations. That the defrauded party may have
had other financial obligations does not alter the impact
of the tortfeasor’s act or justify his retention of the dif-

-- 13 of 26 --

14 No. 10-1352
ference between the proposed damage measures. See
Gerill Corp. v. Jack L. Hargrove Builders, Inc., 538 N.E.2d
530, 538 (Ill. 1989) (noting that how defrauded parties
subsequently dealt with other liabilities after recovery
was irrelevant to the damages calculation). The district
court, therefore, did not err in excluding evidence of
how much REIS would have paid Luttner had Sekulovski
not misrepresented the true nature of their joint partici-
pation in the real estate deals.
Second, Sekulovski asserts that the court erroneously
instructed the jury regarding M&M Chicago’s tortious
interference claim. In a perfunctory three-sentence para-
graph, he suggests that the district court erroneously
instructed the jury on Illinois real estate licensing re-
quirements and that this error misled the jury as to
his relationship with M&M Chicago. At trial, he argued
that simply having hung his license at M&M Chicago
did not give M&M Chicago an automatic interest in
deals he began working during that period and that the
licensing law was, therefore, not applicable to the case.
The court responded that it found the statute pertinent
because it bore on M&M Chicago’s interest in certain
real estate deals on which Sekulovski worked while at
the brokerage.
The statute at issue—which Sekulovski never identifies
in his brief—is 225 Ill. Comp. Stat. 454/10-20(a): “A [real
estate] licensee may perform activities as a licensee only
for his or her sponsoring broker. A licensee must have
only one sponsoring broker at any one time.” At no point
in his opening brief does Sekulovski explain how the

-- 14 of 26 --

No. 10-1352 15
instruction was misleading or why the district court’s
assessment of the statute’s pertinence was incorrect.
Although he endeavors to provide at least some analysis
in his reply brief by arguing that the statutory scheme
does not allow for private enforcement of its require-
ments—a point irrelevant to the district court’s instruc-
tion—his arguments arrive too late to avoid waiver of
this issue on appeal. See Bodenstab, 569 F.3d at 658.
We conclude that the district court correctly deter-
mined that this statute, while not dispositive of M&M
Chicago’s interest in the disputed transactions, could
bear on the jury’s assessment of that interest. Sekulovski’s
perfunctory and undeveloped argument fails to con-
vince us that the instruction “so misled the jury that
[any] deficiency prejudiced” him. Fox, 600 F.3d at 843. The
district court sufficiently informed the jury of the
law applicable in this case. Because neither of his instruc-
tional error claims have merit, Sekulovski is not entitled
to a new trial based on the jury instructions.
C. Illinois Wage Act
Sekulovski’s third category of alleged error in-
volves the district court’s determination that he would
be classified as an independent contractor, as opposed to
an employee, under the Illinois Wage Collection and
Payment Act, 820 Ill. Comp. Stat. 115/1, et seq. (“Wage
Act”). We have previously recognized that “[t]his exclu-
sion is designed to distinguish between protected em-
ployees and independent contractors, who are not pro-

-- 15 of 26 --

16 No. 10-1352
tected.” Adams v. Catrambone, 359 F.3d 858, 862 n.4 (7th Cir.
2004).
The Wage Act’s purpose is to “protect[] employees in
Illinois from being stiffed by their employers.” Glass v.
Kemper Corp., 133 F.3d 999, 1000 (7th Cir. 1998). Although
the Wage Act’s definition of “employee” is broad, the
definition “does narrow the statute’s applicability by
denying recovery to those who are, essentially, independ-
ent contractors.” Landers-Scelfo v. Corporate Office Sys.,
Inc., 827 N.E.2d 1051, 1058 n.1 (Ill. App. Ct. 2005) (dis-
cussing 820 Ill. Comp. Stat. 115/2). Sekulovski would not
be M&M Chicago’s “employee” if (1) M&M Chicago
did not exert control and direction over the performance
of his work, (2) he performed his work outside all of
M&M Chicago’s places of business, and (3) he was in
an independently established trade, occupation, profes-
sion or business. Id. “These requirements are to be read
in the conjunctive.” Id.
Sekulovski claimed that M&M Chicago owed him
commissions that it withheld and that the Wage Act
applied to his relationship with M&M Chicago. Both
Sekulovski and M&M Chicago presented extensive evi-
dence and arguments to the district court regarding the
appropriate classification of Sekulovski’s working rela-
tionship. At the conclusion of the evidence, M&M
Chicago moved for a judgment as a matter of law on
Sekulovski’s Wage Act claims. The district court granted
the motion, finding that Sekulovski was not a pro-
tected party under the Wage Act. The jury’s verdicts then
showed that Sekulovski was not entitled to any of the

-- 16 of 26 --

No. 10-1352 17
In his reply brief, Sekulovski alleges the “narrow construc- 3
tion of the Wage Act adopted by the district court . . . is not
consistent with Illinois law.” (Appellant’s Reply Br. at 23.)
Yet he does not explain how the district court narrowly con-
strued the Act’s language or how its view of the independent
contractor exception did not comport with Illinois law.
commissions forming the basis of his Wage Act claims. In
his opening brief, Sekulovski argues in the alternative
that the district court misconstrued the Wage Act and
that the district court’s finding that he was outside the
Wage Act’s protection was against the manifest weight
of the evidence.
We review a district court’s interpretation of state
statutes, such as the Wage Act, de novo. Rexam Beverage
Can Co. v. Bolger, 620 F.3d 718, 724 (7th Cir. 2010). There
must, however, be an interpretation to review. At no
point in his opening brief does Sekulovski allude to
any construction of the statute by the district court, let
alone any interpretation that might conflict with state
or circuit precedent. By failing to argue any dispute
regarding the rule of law in his opening brief and by
failing to develop any such argument even in his reply
brief, Sekulovski has waived this line of argument. See3
Gross v. Town of Cicero, Ill., 619 F.3d 697, 704-05 (7th
Cir. 2010). We thus proceed with our analysis presuming
that the district court applied a correct interpretation of
the Wage Act.
Sekulovski’s actual grievance, put succinctly, is that the
district court determined that he was an independent

-- 17 of 26 --

18 No. 10-1352
contractor. We review de novo a district court’s grant of
a motion for a judgment as a matter of law, reversing if
the evidence and permissible inferences could sustain
a verdict in favor of the non-moving party. Harbor Motor
Co., Inc. v. Arnell Chevrolet-Geo, Inc., 265 F.3d 638, 644
(7th Cir. 2001). Classifying Sekulovski as either an em-
ployee or independent contractor involves a determina-
tion of fact, and the district court appeared to rely on
that determination as its sole ground for granting M&M
Chicago’s motion for a judgment of law. That ruling
would only have been appropriate if there was no
legally sufficient basis for the jury to find that Sekulovski
was an employee. Fed. R. Civ. P. 50(a); Zimmerman v.
Chicago Bd. of Trade, 360 F.3d 612, 623 (7th Cir. 2004).
We agree with the district court’s conclusion that
Sekulovski was clearly an independent contractor
under the Wage Act. He used the independent
contractor title pervasively in his pleadings and briefs;
he sought identification as an employee only when it
might be profitable to do so; and, on balance, the
totality of the evidence heavily suggests that he meets
each of the conjunctive statutory factors for exclusion
from the Wage Act. Yet our de novo review requires us
to apply the standard for granting a motion for judg-
ment as a matter of law rather than rest on our own view
of contested evidence. See Zimmerman, 360 F.3d at 623.
We instead ask whether the evidence, viewed in the
light most favorable to Sekulovski with all reasonable
inferences drawn in his favor, would have supported a
jury’s conclusion that Sekulovski was an employee.

-- 18 of 26 --

No. 10-1352 19
M&M Chicago did not have statutory “control” over 4
Sekulovski, as “control means that the employer has the right
to control and direct the worker, not only as to the work to be
done, but also as to how it should be done, whether or not
that control is in fact exercised.” Novakovic v. Samutin, 820
N.E.2d 967, 974 (Ill. App. Ct. 2004). Sekulovski clearly was
also in an independently established trade, occupation, profes-
sion, or business, as evidenced by the fact that his work
was potentially—and in fact later became—a freestanding
enterprise. Landers-Scelfo, 827 N.E.2d at 1058 n.1.
Because the three prongs of the independent contractor
exception are to be read in the conjunctive, Landers-Scelfo,
827 N.E.2d at 1058 n.1, M&M Chicago must have demon-
strated that no reasonable jury could determine that
Sekulovski fell outside of any of them. We easily
conclude that a reasonable jury could not have found in
Sekulovski’s favor on the first or third prongs. But the4
second prong gives us pause. The district court relied
heavily on the fact that the vast majority of Sekulovski’s
work activities occurred away from the actual offices of
M&M Chicago. But the Illinois Appellate Court—whose
opinions have persuasive force in cases turning on
Illinois law, Adams, 359 F.3d at 862—has explained that
under the Wage Act “[a]n employer’s place of business
is not limited only to its own home offices, but can
extend to any location where workers regularly rep-
resent an employer’s interest.” Novakovic, 820 N.E.2d
at 669. A jury might reasonably determine that
Sekulovski was representing M&M Chicago’s interests
while working despite his infrequent office presence, and

-- 19 of 26 --

20 No. 10-1352
striking real estate representation deals was well within
M&M Chicago’s usual course of business. Accordingly,
the district court may have erred in granting M&M Chi-
cago’s Rule 50(a) motion based on its determination
that Sekulovski was an independent contractor under
the Wage Act.
Nevertheless, we conclude that this potential error
does not require reversal. It is well established that we
may affirm the result below on any basis that appears
in the record, even if it was not the district court’s
ground for dismissing the suit. See Bivens v. Trent, 591
F.3d 555, 559 (7th Cir. 2010); Stockwell v. City of Harvey,
597 F.3d 895, 901 n.2 (7th Cir. 2010). As REIS and
M&M Chicago argued in their brief, the jury—in its
verdicts on other counts—found that Sekulovski was
not owed any of the commissions that formed the bases
of his claims for wages under the Wage Act. Sekulovski
did not address this point in his opening brief, and he
failed to develop any argument refuting it in his reply
brief. Even if a jury were to determine that Sekulovski
had been an “employee” under the Wage Act, Sekulovski
could not maintain a claim under the Wage Act because
he was not owed any commissions. Cf. Rakos v. Skytel
Corp., 954 F. Supp. 1234, 1240 (N.D. Ill. 1996) (noting that
a right to wages is a prerequisite to recovery). Ac-
cordingly, we will not reverse and order the district court
to hold a trial on Sekulovski’s Wage Act claims. Any
error in refusing to submit the claims to the jury was
rendered harmless by the jury’s verdicts. See Hoffman v.
Caterpillar, Inc., 368 F.3d 709, 720 (7th Cir. 2004).

-- 20 of 26 --

No. 10-1352 21
In his reply brief, Sekulovski argues for the first time that the 5
commissions forming the basis of M&M Chicago’s conversion
(continued...)
D. Post-Trial Motions
After the jury returned verdicts in favor of M&M Chi-
cago on each of its claims and against Sekulovski on his
counterclaims, Sekulovski filed two motions seeking to
avoid liability. He now contends that the district court
erred in denying his Rule 50(b) motion for a judgment as
a matter of law on each of M&M Chicago’s claims
because the jury’s verdicts were against the manifest
weight of the evidence. He also contends that the
district court abused its discretion in denying his
Rule 59 motion for a new trial in light of Luttner’s
alleged post-trial admission of perjury. Neither conten-
tion justifies reversal.
1. Judgment as a Matter of Law
Sekulovski appeals the denial of his Rule 50(b) motion
as to each of the jury’s verdicts against him. He
contends both that (1) there was insufficient evidence of
a fraudulent scheme between himself and Luttner to
prove the elements of fraud and to support the jury’s
verdicts and that (2) any employment contract between
him and M&M Chicago would not have incorporated
the Policy Manual and thus could not support the jury’s
verdicts on M&M Chicago’s breach of contract, conver-
sion, and tortious interference claims. The district court5

-- 21 of 26 --

22 No. 10-1352
(...continued) 5
claims would not support those claims because they were
general debts and not specific assets. We express no opinion
on the merit of this argument, pausing only to note that
he waived any argument on this point by delaying it until
his reply. Bodenstab, 569 F.3d at 658.
found that sufficient evidence of a fraudulent scheme
was before the jury, as the evidence showed that
Sekulovski’s booking statements did not accurately
reflect the work he and Luttner actually performed. The
district court also found that the parties had always
behaved as if the Policy Manual governed their relation-
ship, concluding that the jury had before it sufficient
evidence to determine the scope of their implied contract.
We review de novo the district court’s denial of
Sekulovski’s Rule 50(b) motion, viewing the evidence
available to the jury in the light most favorable to
M&M Chicago and drawing all reasonable inferences in
its favor. Waters v. City of Chicago, 580 F.3d 575, 580 (7th
Cir. 2009). Sekulovski presents no arguments on appeal
that undermine the district court’s compelling reasoning
below or that call into question the rationality of the
jury’s decisions. It borders on absurdity to suggest
either that Sekulovski and M&M Chicago did not
believe themselves to be in a contractual relation-
ship or that their contract did not incorporate the
Policy Manual. Sekulovski’s work as an agent for M&M
Chicago, in light of their contract and state law governing
real estate agents, provided the background for the jury
to conclude that the deals he entered into inured to

-- 22 of 26 --

No. 10-1352 23
M&M Chicago and that he breached his contract with
the firm. Because reasonable jurors could have found in
M&M Chicago’s favor on all counts given the evidence
before them, the district court did not err in denying
Sekulovski’s Rule 50(b) motion. See Waite v. Bd. of Trs. of Ill.
Cmty. Col. Dist. No. 508, 408 F.3d 339, 343 (7th Cir. 2005).
2. New Trial
Finally, Sekulovski appeals the denial of his Rule 59
motion for a new trial based upon both the cumulative
effect of the district court’s erroneous evidentiary rulings
and also a post-trial email allegedly authored by
Luttner. His argument distills to three points: (1) that
Luttner could not be trusted, and, because the district
court would not let him prove that, the verdicts were
based upon skewed evidence; (2) that erroneous jury
instructions required that the case be retried; and
(3) that even if the evidence sufficed to avoid his
Rule 50(b) motion, the jury’s verdict was nonetheless
against the manifest weight of the evidence. We have
already held that the district court’s jury instructions
were not erroneous, so no further discussion is called
for on that point.
We review the district court’s denial of Sekulovski’s
Rule 59 motion for a new trial for an abuse of discretion,
reversing only if “the verdict is against the weight of the
evidence, the damages are excessive, or if for other
reasons the trial was not fair to the moving party.” Pickett
v. Sheridan Health Care Ctr., 610 F.3d 434, 440 (7th Cir.
2010) (internal quotation marks omitted). We have ex-

-- 23 of 26 --

24 No. 10-1352
plained that appellants such as Sekulovski “bear a par-
ticularly heavy burden because a court will set aside a
verdict as contrary to the manifest weight of the evi-
dence only if no rational jury could have rendered the
verdict.” Lewis, 590 F.3d at 444 (internal quotation
marks omitted). Sekulovski provides no argument sug-
gesting that the members of the jury and the trial judge
were all irrational; he instead centers his appeal on the
contention that they were all mislead by the purported
contract. But as previously noted, the evidence clearly
supported the existence of a contract between Sekulovski
and M&M Chicago. In fact, the irrational position
would be to assume that the parties engaged in so
many transactions without having any ongoing under-
standing of the terms governing their relationship.
Sekulovski’s final attempt to pepper the target is the
most dramatic, but it no more warrants reversal than his
other arguments. He contends that Luttner’s post-trial
email confirmed Luttner was a lying witness for hire
and that—especially in light of the other credibility evi-
dence the district court excluded—it mandated a new
trial. The email, which M&M Chicago alleges was fabri-
cated by Sekulovski himself, states that REIS was
backing out of its agreement to pay Luttner’s legal bills
and that for $200,000 Luttner would “tell everyone the
truth and that [he] lied.” Sekulovski argues that his
proffer of this email in conjunction with his Rule 59
motion gave the district court the chance to rectify its
erroneous evidentiary exclusions at trial.
The email, if actually authored by Luttner, would cast
further doubt on Luttner’s veracity during his deposi-

-- 24 of 26 --

No. 10-1352 25
In his reply brief, Sekulovski belatedly suggests—without a 6
developed argument or legal support—that the email con-
stitutes a statement against Luttner’s interest and was thus
admissible under Fed. R. Evid. 804(3). We express no opinion
on this waived argument.
tion. But for Sekulovski to succeed on his motion, he
needed to show—among other criteria—both that the
evidence was not merely cumulative or impeaching
and that the email’s introduction at a new trial would
probably yield a different result. Envtl. Barrier Co. v.
Slurry Sys., Inc., 540 F.3d 598, 608 (7th Cir. 2008).
Sekulovski demonstrated neither the admissibility nor
the proper grounds for consideration of the email.
At the outset, we note that the alleged confession
is hearsay, and Sekulovski offers no argument in
his opening brief identifying any exception making it
admissible. The district court also correctly noted that6
Sekulovski offered the purported email merely to
impeach Luttner, which is not a ground for the consider-
ation of the new evidence. In addition, Luttner’s credi-
bility had already been called into question throughout
the trial. The jury surely harbored no doubts about
Luttner’s readiness to attack Sekulovski, especially after
seeing two of Luttner’s expletive-laced, hateful emails
allowed into evidence. Any further arguments to the
jury regarding Luttner’s credibility would have been
cumulative. Finally, Sekulovski presents no arguments
to refute the district court’s convincing reasoning that
a new jury would render the same verdicts even if
armed with the post-trial email.

-- 25 of 26 --

26 No. 10-1352
In summary, the jury’s verdicts were eminently rea-
sonable in light of the manifest weight of the evidence.
Sekulovski did not meet the criteria for securing a new
trial based on newly discovered evidence. The district
court thus did not abuse its discretion by denying
Sekulovski’s Rule 59 motion for a new trial.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
entry of judgment as a matter of law in favor of M&M
Chicago on Sekulovski’s Wage Act claims, its entry of
judgment on the jury’s verdicts as to all other claims,
and its denial of Sekulovski’s post-trial motions.
3-23-11

-- 26 of 26 --