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Vinzenz v. Hintzsche Fertilizer

January 27, 2003

MICHAEL J. VINZENZ, D/B/A AGRI-ASSOCIATES, PLAINTIFF-APPELLANT,
v.
HINTZSCHE FERTILIZER, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Kane County. No. 01-ARK-25 Honorable Richard J. Larson, Judge, Presiding.

The opinion of the court was delivered by: Justice O'malley

UNPUBLISHED

Plaintiff, Michael J. Vinzenz, d/b/a Agri-Associates, appeals from a summary judgment that the trial court entered in favor of defendant, Hintzsche Fertilizer, Inc. Plaintiff contends that, contrary to the trial court's ruling, he was entitled to a fee for the employment recruitment services he provided to defendant notwithstanding defendant's payment of a fee to another employment recruiter. Plaintiff argues that he was entitled to a fee because he referred a job candidate to defendant before the other recruiter referred the same job candidate whom defendant later hired for the job. For the reasons that follow, we affirm.

The material facts are not in dispute. Plaintiff is an employment recruiter who, for a fee, finds prospective employees for companies. Defendant is a corporation with its principal place of business in Kane County, Illinois.

In September 1999, defendant began a search for a new controller to replace the controller who would be resigning and leaving the company effective December 31, 1999. Steven Carlson, defendant's chief financial officer, was responsible for hiring the new controller. In seeking candidates for the job, Carlson contacted several employment recruiters. Carlson informed the recruiters that potential candidates should meet certain criteria. The criteria included a requirement as to location and a requirement that the candidate's current salary be less than $60,000.

Plaintiff was one of the recruiters that Carlson contacted. On September 22, 1999, plaintiff faxed the resumes of two potential candidates for the controller position to Carlson. One of the candidates was Larry Kakacek. Kakacek's resume indicated that he lived in Iowa and that he was currently earning $67,000. Plaintiff had previously sent Carlson a pamphlet containing his fee schedule. The fee schedule showed that plaintiff's general fee for recruiting, on a contingency basis, a job candidate that an employer hired was 25% of the employee's first year's earnings.

On September 23, 1999, Carlson telephoned plaintiff and told plaintiff that defendant was not interested in hiring Kakacek because defendant was looking for candidates who were located closer to defendant and who had a lower salary than Kakacek. Thereafter, plaintiff called Carlson every week or two and inquired about the controller position. Plaintiff did not submit any additional resumes to Carlson and did not ask Carlson to reconsider his rejection of Kakacek's resume.

On October 12, 1999, Rich Connell, another employment recruiter, faxed Kakacek's resume to Carlson for the controller position. In a subsequent affidavit, Carlson stated that when he received Kakacek's resume from Connell he did not recall previously seeing the resume. Carlson called Connell and told him that Kakacek was too expensive and too far away but that defendant was beginning to run out of options. Connell responded that Kakacek was anxious to find other work and might be willing to accept a pay cut. Thereafter, Connell arranged an interview between Kakacek and Carlson. Over the next several weeks, Connell facilitated communications between Kakacek and Carlson. Connell also initiated discussions with Kakacek regarding, inter alia, compensation, benefits, and a starting date.

On November 30, 1999, defendant hired Kakacek for the controller position at an annual salary of $67,000 and agreed that Kakacek could start his employment with defendant after January 1, 2000. Defendant later paid a recruitment fee to Connell. The fee was $16,750, 25% of Kakacek's first year's salary.

On January 5, 2000, plaintiff called Carlson and learned that defendant had hired Kakacek. Plaintiff told Carlson that he, plaintiff, was entitled to a recruitment fee for the services that he had provided to defendant with respect to Kakacek. Carlson responded that he did not recall plaintiff sending Kakacek's resume and that he did not believe that plaintiff was responsible for defendant's hiring of Kakacek.

After defendant refused to pay plaintiff a recruitment fee related to defendant's hiring of Kakacek, plaintiff filed a complaint initiating the instant lawsuit. Plaintiff sought to recover a fee for the recruitment services that he provided to defendant with respect to Kakacek. The parties filed cross-motions for summary judgment. The trial court granted defendant's motion and denied plaintiff's motion. Plaintiff's timely notice of appeal followed.

On appeal, plaintiff contends that the trial court erred in granting defendant's motion for summary judgment. Plaintiff argues that, under the circumstances of this case, there were two reasons why he was entitled to a fee for the services that he provided to defendant with respect to Kakacek: (1) there was a contract between the parties and he substantially fulfilled his obligations to defendant under the contract and (2) agency principles required it. Defendant responds that the trial court did not err in granting a summary judgment in its favor because (1) there was no contract between the parties; (2) even if a contract is deemed to have existed, plaintiff failed to fulfill his contractual obligations; and (3) plaintiff has waived any arguments based on agency principles.

Familiar principles guide us in resolving a challenge to a trial court's grant of a motion for summary judgment. A court should grant summary judgment where "there is no genuine issue as to any material fact and *** the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2--1005(c) (West 2000). While summary judgment can aid in the expeditious disposition of a lawsuit, it is a drastic measure and should be granted only "when the right of the moving party is clear and free from doubt." Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). Our standard of review with respect to a grant of a summary judgment is de novo. Sollami v. Eaton, 201 Ill. 2d 1, 7 (2002).

In this case, the parties agree that there is no genuine issue of material fact. The parties also agree that the controlling law as to whether plaintiff was entitled to a recruitment fee based on contract principles is stated in three Illinois cases: Clark v. General Foods Corp., 81 Ill. App. 3d 74 (1980); Snedden v. General Radiator Division of Chromalloy American Corp., 111 Ill. App. ...


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