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05/06/94 KIRKPATRICK W. DILLING v. WILLIAM SERGIO

May 6, 1994

KIRKPATRICK W. DILLING, AND DILLING AND DILLING, PLAINTIFFS-APPELLANTS,
v.
WILLIAM SERGIO, AND PETER SPIEGEL, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. The Honorable Joseph N. Casciato, Judge Presiding.

Egan, Rakowski, Giannis

The opinion of the court was delivered by: Egan

PRESIDING JUSTICE EGAN delivered the opinion of the court:

This is an appeal by the plaintiffs, Kirkpatrick W. Dilling and Dilling and Dilling, an Illinois attorney and his law firm, from an order dismissing their breach of contract claim against clients to recover unpaid fees for legal services. The complaint was dismissed by the trial Judge on the ground that the plaintiff failed to establish that Illinois had jurisdiction over the defendants.

The complaint, which claimed in excess of $17,000 for legal fees, was filed against William Sergio and Peter Spiegel and Sergio and Spiegel Television, Inc. (S&S). William Sergio and Peter Spiegel filed special appearances and motions to quash service of process. S&S filed an appearance and answer. The defendants' motion to quash was supported by their own affidavits; and the plaintiffs submitted two affidavits of Kirkpatrick Dilling and answers to interrogatories made by William Sergio and Peter Spiegel. The issue, therefore, was presented to the Judge on the pleadings and the affidavits of the parties. After a hearing, the Judge granted the defendants' motions to quash service. He held that the plaintiffs had failed to establish that the "contact" the defendants had with Illinois would support a finding that Illinois had personal jurisdiction over the defendants. The order recited that the "motion to quash [service] was granted without prejudice to plaintiffs for leave to file an action in another forum."

The plaintiffs subsequently filed a motion for a special finding pursuant to Supreme Court Rule 304(a). (134 Ill. 2d R. 304(a).) The motion alleged that S&S was in bankruptcy and had no assets; in view of that fact the plaintiffs would not proceed further against S&S. The Judge allowed the motion and made a special finding under Rule 304(a) which permitted the plaintiffs to appeal.

The following facts appear from the affidavits, the answers to interrogatories, the complaint and documents attached to the affidavits and the complaint. William Sergio and Peter Spiegel are two marketers who incorporated S&S under the laws of Delaware to produce half-hour television programs, referred to as "showmercials." Sergio and Spiegel, in equal shares, owned S&S, which is only one of their corporations. S&S operated in California, and through S&S Sergio and Spiegel produced showmercials to market numerous products. S&S directly promoted the product Oxywhite. Another product, Oncor, was promoted by another corporation, Sergio & Spiegel Television for Oncor, Inc., incorporated under the laws of Nevada. At the time the complaint was filed, Spiegel was a resident of California and Sergio was a resident of Florida.

The Dilling law firm, based in Chicago, also operated a California office. Kirkpatrick W. Dilling first met Sergio and Spiegel at the Pasadena Hilton Hotel in California. Sergio and Spiegel introduced themselves to Dilling as "officer[s] of Sergio & Spiegel Television, Inc." S&S hired the plaintiff to render a legal opinion regarding a product to be marketed by S&S. A review of the plaintiffs' bills indicates that this legal opinion was rendered for the product Oxywhite. The defendants contend that the legal services were rendered on behalf of S&S, the corporation that promoted Oxywhite. Each of the defendants' affidavits state, "I did not hire the plaintiff to represent or render any legal services to me."

While the plaintiffs were working on the legal opinion for Oxywhite, a postal investigation arose concerning the marketing of the other product, Oncor. According to Kirkpatrick Dilling's affidavit, Sergio and Spiegel jointly telephoned him at his Chicago office on December 7, 1990, stating that "the U.S. Postal Service was holding up their mail at a box they held in Phoenix, Arizona." They also stated that the Postal Service was threatening that the withholding of their mail would be followed by legal action in the Phoenix Federal court. The affidavit stated that Dilling "conferred by telephone on such date with both Spiegel and Sergio, who then and there individually and jointly formally retained plaintiff and his firm to render any legal services necessary in conjunction with the matter." During the conversation, Dilling accepted the retention and informed the defendants of his fee rates. On December 11, 1990, the U.S. Postal Service commenced an injunction proceeding. The Postal Service's complaint named as defendants, "Sergio & Spiegel Television for Oncor Inc., a Nevada corporation," and "William Sergio, Peter Spiegel, individuals." Dilling prepared for the Phoenix hearing at his Chicago office and then flew to Phoenix for the preliminary injunction hearing.

Dilling's affidavit alleged that he "continued to represent both Sergio and Spiegel, individually, until January 28, 1991, when plaintiffs' legal services were terminated." According to a letter from Sergio, written on Sergio & Spiegel Television for Oncor, Inc. stationery, Dilling's services were terminated because the defendants made a decision to settle the Postal Service investigation using a Washington-based attorney.

The plaintiffs' claim for fees includes work done in connection with the marketing of Oxywhite and for the Federal investigation involving Oncor.

At the hearing on the motions to quash, the defendants first argued that they were acting solely as agents of S&S, and, therefore, were protected by the fiduciary shield doctrine. *fn1 Alternatively, they argued that, even if they were deemed to be acting as individuals, there were insufficient contacts with Illinois to support the exercise of personal jurisdiction. The defendants emphasized that, at most, they only entered into a contract with an Illinois law firm, whichalso had offices in California. According to the defendants, the relevant Illinois contacts amounted to telephone conferences between the parties from California to Illinois; the legal proceedings took place in Phoenix.

The plaintiffs argued that sufficient contacts existed to confer personal jurisdiction; and that by hiring Illinois attorneys, the defendants sought the benefit and protection of Illinois law. The plaintiffs also relied on the fact that a majority of the their legal work occurred in Illinois and that the defendants were individually named in the Postal Service complaint.

Where personal jurisdiction is challenged, the party asserting personal jurisdiction has the burden of establishing it by a preponderance of the evidence. ( Finnegan v. Les Pourvoiries Fortier, Inc. (1990), 205 Ill. App. 3d 17, 562 N.E.2d 989, 150 Ill. Dec. 186.) A reviewing court may not disturb the trial Judge's findings unless they are against the manifest weight of the evidence. ( Finnegan, 205 Ill. App. 3d at ...


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