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04/22/94 WATERFORD EXECUTIVE GROUP v. CLARK/BARDES

April 22, 1994

WATERFORD EXECUTIVE GROUP, LTD., PLAINTIFF-APPELLANT,
v.
CLARK/BARDES, INC., AND W.T. WAMBERG, D/B/A CLARK/BARDES, INC., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County. No. 92-L-562. Honorable William D. Block, Judge, Presiding.

As Corrected April 24, 1994. Rehearing Denied May 24, 1994. Released for Publication May 24, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Doyle, Colwell, PECCARELLI

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

Plaintiff, Waterford Executive Group, Ltd. (Waterford), brought an action in the circuit court of Lake County for breach of contract against defendants, Clark/Bardes, Inc., and W.T. Wamberg (collectively referred to as Clark/Bardes). The suit sought compensation for plaintiff's presentation of a job applicant who was subsequently hired by defendants. Defendants filed motions to dismiss under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)) arguing that even if the contract alleged in plaintiff's complaint existed, it was illegal and void under the Private Employment Agency Act (Act) (225 ILCS 515/1 et seq. (West 1992)) because plaintiff and its agent, Patrick Atkinson, were not licensed to make such a contract. On January 6, 1993, the trial court granted defendants' section 2-619 motions and dismissed the matter with prejudice after determining, as a matter of law, that plaintiff did not fall within the "management executive recruiting" exception (see 225 ILCS 515/11 (West 1992)) to the licensing requirements of the Act.

On February 3, 1993, the trial court granted plaintiff's motion for leave to file, instanter, a "Motion for Rehearing or Reconsideration or Other Relief." Plaintiff's motion argued that the trial court had failed to consider material evidence which had not been available to the court and urged that the trial court's previous order be vacated. On February 5, 1993, an "Amended Motion for Rehearing or Reconsideration or Other Relief" was filed on plaintiff's behalf by Pat Hartnett, who was not an attorney of record in the matter. Defendants moved to strike both motions, arguing the latter motion had been filed in violation of Supreme Court Rule 137 (134 Ill. 2d R. 137) because it had not been signed by an attorney of record for plaintiff. On February 24, 1993, Hartnett filed a response to defendants' motions to strike to which was appended an undated form entitled "Substitution of Attorney." Later, on March 1, 1993, Hartnett filed a motion for substitution of attorneys on plaintiff' behalf which the trial court granted.

On March 3, 1993, the trial court denied plaintiff's motion for rehearing or reconsideration or other relief. All motions and filings by attorney Hartnett filed prior to his substitution in the case on March 1, 1993, were stricken because they had not been signed by an attorney of record. On March 29, 1993, plaintiff filed a "Motion for Leave to File an Amended Motion for Reconsideration and Response to Defendant's Motion to Strike." The trial court denied plaintiff's motion and this appeal followed.

Plaintiff raises two issues on appeal: (1) whether the trial court erred in determining that plaintiff was not engaged in a "management consulting" or "management executive recruiting" relationship with defendants; and (2) whether the trial court abused its discretion in denying plaintiff's motion for leave to file an amended motion for reconsideration.

Plaintiff's complaint stated, "On or about August 15, 1991, [Julieann Schneidereit (Schneidereit)] authorized [plaintiff] to seek employment or placement in the executive benefits consulting industry. The account representative was Patrick Atkinson." It alleged that on August 19, 1992, Clark/Bardes agreed to compensate plaintiff in an amount equal to 30% of Schneidereit's anticipated salary for her placement of Schneidereit if defendant did choose to offer her employment and she accepted that offer. Plaintiff further alleged that Atkinson called Schneidereit on August 20, 1991, and obtained her permission to send a faxed copy of her resume on plaintiff's letterhead to Clark/Bardes' Chicago office, and Atkinson transmitted the resume to defendants on the following day. Plaintiff's complaint stated that on September 19, 1991, Wamberg instructed Atkinson to send him one copy of Schneidereit's resume and another to John Walker, Clark/Bardes CEO, in Dallas, Texas. Atkinson transmitted these resumes on plaintiff's letterhead later that day.

The cover letter which accompanied the faxed resumes provided, in part:

"SERVICE CHARGE: 30% of the Candidate's Annual Estimated First Year Income

1. [Waterford] reserves the right to include a reasonable amount of commissions, bonuses and other cash incentives in addition to base salary when determining a candidate's annual estimated first year income. The candidate's current income and market value will be a strong determining factor.

2. An offer of employment to a referred candidate by a company shall indicate acceptance of this fee schedule.

3. Anyone referring a [Waterford] referred candidate to any other department, affiliated organization or any other company that subsequently employs that candidate shall ...


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