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Associated Claims Serv. v. Rinella & Rinella

OPINION FILED DECEMBER 31, 1979.

ASSOCIATED CLAIMS SERVICE, INC., PLAINTIFF-APPELLANT,

v.

RINELLA AND RINELLA, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. MARY HEFTEL HOOTON, Judge, presiding.

MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

Associated Claims Service, Inc. (hereinafter Associated), brought an action alleging that Rinella and Rinella, a law firm (hereinafter Rinella) employed it to perform services for which it had not been paid. The trial court entered judgment for Rinella from which Associated appeals. We affirm for the reasons assigned below.

On May 9, 1977, Associated filed a complaint against Rinella alleging that it had failed to pay for services that Associated was employed to perform for it, seeking damages of $677.35 plus costs. Rinella entered a general appearance on May 9, 1977, and on June 1, 1977, filed a motion to join Joan Wrigley, and a Wisconsin law firm, Graves, Greenwald, Maier & Miner (hereinafter Graves) as additional defendants to this action. The affidavit in support of this motion stated that the affiant, Samuel A. Rinella, was a member of Rinella and Rinella; that the firm had represented Joan Wrigley in an Illinois marital dissolution action instituted by her; that the firm together with the Graves firm represented her in a Wisconsin marital dissolution action instituted by her husband; that any transaction undertaken by Rinella with Associated was as agent of Joan Wrigley upon whom primary liability for payment of plaintiff's services rests; and that Graves may be liable to Associated, solely or jointly, with Rinella.

On July 20, 1977, an order was entered authorizing joinder of Joan Wrigley and Graves as additional defendants. This order was subsequently vacated on August 12, 1977, pursuant to Associated's motion. On April 12, 1978, with leave of court, Rinella filed a third-party complaint for indemnity against Joan Wrigley and Graves, alleging that it hired Associated to perform the services but that any indebtedness for such services lies with Joan Wrigley because Rinella acted only as her agent, or, alternatively, that Rinella hired Associated but that any indebtedness for the services lies jointly with it and Graves.

A bench trial was conducted on August 7, 1978. After Associated presented its evidence, the trial court granted Rinella's motion for judgment, finding that Associated had failed to present a prima facie case that it was hired by the Rinella firm. Rinella then voluntarily dismissed its third-party action against Joan Wrigley and Graves.

Two material witnesses appeared for Associated at the trial. William B. Miller testified that he is presently employed by Associated and was so employed in July and August of 1976. On August 19, 1976, the office of Associated received a telephone call concerning subpoenas relating to the Wrigley file. Miller went to Rinella's office that day and a woman behind a receiving desk handed him about a dozen subpoenas. When he asked her for the witness fee checks, she told him that there was no one in the office to sign them. He told her that a Mr. Tasch was the only person from Associated authorized to sign such checks, who would not be available until the following day. She responded that such an arrangement would be agreeable. The subpoenas were served within a week thereafter.

On cross-examination, Miller testified that Associated's office receptionist received a telephone call on August 19 and asked him if he was familiar with the Wrigley case in which Rinella was involved. He told her that he was and took the call. The caller identified herself as a Mr. Litwin's secretary, then asked if anybody in Associated's office could serve subpoenas in the Wrigley case. He went to the Rinella office and picked up about a dozen subpoenas for the Illinois Wrigley case and personally served three of them. He received no written correspondence from Litwin, had never spoken with him, but believed him to have been a member of the Rinella firm because of the conversation he had with the woman who identified herself as his secretary.

John S. Tasch testified that he is an attorney and is the president and sole owner of Associated. On July 16, 1976, he was initially contacted in connection with the Wrigley suit by John P. Graves of the Wisconsin law firm. In this conversation, Tasch was informed that two actions had been filed entitled "Wrigley v. Wrigley," one in Illinois and one in Wisconsin. Graves requested that deposition subpoenas be served by Associated to witnesses in Chicago in connection with the Wisconsin suit. These subpoenas were served and Associated was thereafter paid for this service, but did not indicate by whom. On August 24, 1976, he telephoned Litwin, who told him he was in the Rinella firm. When Tasch explained there were some difficulties in serving the subpoenas, Litwin said to continue the attempt to serve them. Tasch stated that on October 7, 1976, he received a telephone call from a woman who identified herself as Litwin's secretary and asked if the subpoenas in the Wrigley case had been served yet.

On cross-examination, Tasch testified that he did not have any conversation with Samuel Rinella regarding the Wrigley case; that he did have a conversation with Litwin whom he had called on the telephone, apparently calling the Rinella office; and that he did not know what Litwin's capacity was with the firm.

• 1 On appeal, Associated argues that it established a prima facie case that Rinella hired it to perform the services, and that therefore Rinella is required to compensate Associated for those services on two alternate bases: apparent authority and judicial admission. Addressing the apparent authority issue, Associated contends that Litwin and Rinella's receptionist had the apparent authority to hire it, citing Barraia v. Donoghue (1977), 49 Ill. App.3d 280, 364 N.E.2d 952, and Winston v. Sears, Roebuck & Co. (1967), 88 Ill. App.2d 358, 233 N.E.2d 95. We need not reach this conclusion because of a judicial admission by Rinella in its third-party complaint which conclusively settles this point.

Paragraphs 2, 3 and 5 of the third-party complaint provide in pertinent part:

"2. That defendant and third party plaintiff and the said firm of GRAVES, GREENWALD, MAIER & MINER at various times and places and at the express request of JOAN WRIGLEY engaged the services of the plaintiff in connection with one or another of said causes.

3. That defendant and third party plaintiff in fact only engaged and transacted with plaintiff as agent for JOAN WRIGLEY, third party defendant, and that the primary liability, if any exists, for the payment of plaintiff's bill for services rendered rests with the said JOAN WRIGLEY.

5. That because of the actions of third party defendants, JOAN WRIGLEY and GRAVES, GREENWALD, MAIER & MINER, in engaging and cooperating with defendant, RINELLA and RINELLA, in the engaging and directing of the services of the plaintiff in this matter, it is impossible to obtain a full and final determination of this cause without the naming of GRAVES, ...


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