1-00-3604 

SIXTH DIVISION

MARCH 14, 2003

JUSTICE TULLY delivered the opinion of the court:

This appeal arises from an order in the trial court granting summary judgment in favor ofthe defendant, Grecian Delight Foods, Inc. (Grecian Delight), and against the plaintiffs, LeonidKaporovskiy and Zhanetta Kaporovskaya. The plaintiffs raise two issues on appeal. For thefollowing reasons, we affirm the summary judgment order entered by the trial court.

As a preliminary matter, we address the jurisdictional issue raised by the defendant. Defendant filed a motion to dismiss this appeal which this court denied. Defendant again raisedthe issue of jurisdiction in its brief and incorporated the arguments from its motion. Defendantasserts that this court lacks jurisdiction over the orders entered by the trial court grantingsummary judgment in favor of the defendant because the Notice of Appeal fails to mention thoseorders. We disagree.

The Notice of Appeal specifying the September 20, 2000 Order of the circuit courtconferred jurisdiction on this Court. The Notice of Appeal states that the plaintiffs appeal theSeptember 20, 2000 Order entered by the trial court. The Notice further states that this Ordercontains 304 (a) language for the summary judgment granted in favor of defendant on Counts I,II, VII and VIII. The September 20, 2000 Order refers to the September 18, 2000 Order whichdenied plaintiffs' Motions to Reconsider and sustained the earlier grants of summary judgment. Although the September 18, 2000 Order was not specifically designated in the notice of appeal, itwas sufficiently closely related to the judgment of September 20, 2000. See Burtell v. FirstCharter Service Corp., 76 Ill.2d 427, 437 (1979).

Accordingly, for the same reasons this court denied defendant's motion to dismiss, wefind that this court has jurisdiction over this matter.

BACKGROUND

On July 15, 1996, Plaintiff Zhanetta Kaporovskaya was driving her automobile on IllinoisInterstate 294 when her car was struck by a truck driven by Paul Stowe. As a result of thecollision, Ms. Kaporovskaya's vehicle struck a median barrier and overturned. Ms.Kaporovskaya suffered injuries in the accident. Thereafter, Ms. Kaporovskaya and her husband filed a complaint against several defendants including Grecian Delight. The plaintiffs allegedtwo theories of liability against Grecian Delight: first, that Stowe was acting as anagent/employee of Grecian Delight when he caused plaintiffs injuries; and second, that Stowewas an employee of Motorsport Marketing, Ltd. and Grecian Delight was liable pursuant to ajoint venture agreement with Motorsport Marketing , Ltd.

On March 1, 1996, Grecian Delight entered into a sponsorship agreement withMotorsport Marketing, Ltd. The agreement provided that Motorsport would promote GrecianDelight food products at various auto-racing venues. Under the agreement, Grecian Delight wasthe exclusive supplier of the products and Grecian Delight provided the food at no charge. Motorsport would sell the food at its own expense and retain all proceeds. Grecian Delightprovided equipment for preparing and serving the food as well as t-shirts, hats, posters, sandwichwrappers and table tents. Motorsport was to display Grecian Delight's logo on its formula racecars, drivers' suits, crew uniforms, transporter and trailer. Motorsport was to participate in atleast twenty racing events during the term of the agreement which expired at the end of 1997.

In 1996, Motorsport reserved space at the Summer Olympic Games in Atlanta, Georgia. Motorsport determined that it could use the space it had reserved to sell both Grecian Foodsproducts as well as Lou Malnati's pizza. Motorsport, through Paul Stowe, contacted LouMalnati's and purchased both pizza and pizza ovens to be used in Atlanta.

In order to transport all of the food products to Atlanta, Motorsport had obtained a trailerand a truck, however, Motorsport determined that it needed another truck. Motorsport informedGrecian Delight that they needed a truck to transport food to Atlanta and Grecian Delight wasable to reserve a Ryder truck. A Motorsport employee picked-up the Ryder truck.

A few days prior to departure to Atlanta, Motorsport President Tommy Hormovitisdetermined that the Ryder truck was too small to carry the Grecian Delight food products toAtlanta. Mr. Hormovitis decided that the Ryder truck would instead be used to transport the LouMalnati's pizzas and the pizza ovens. In all, Motorsport was using three vehicles driven byMotorsport personnel to transport various food products to Atlanta.

On July 15, 1996, Paul Stowe drove the Ryder truck which had been rented under thecorporate account of Grecian Delight, to Northbrook, Illinois to pick up the Lou Malnati's pizzas. Then, Stowe drove to Addison, Illinois to pick up the pizza ovens. From there, Stowe departedfor Glenview, Illinois in order to pick up an associate. While traveling north on Interstate 294,Stowe was involved in a collision with the plaintiff.

DISCUSSION

The plaintiffs alleged two theories of liability against Grecian Delight. The first theory ofliability was based on an agency relationship between Stowe and Grecian Delight. The secondtheory of liability was based on a joint venture relationship between Motorsport and GrecianDelight. The trial court granted summary judgment in favor of Grecian Delight. On appeal,plaintiffs maintain that material questions of fact exist regarding the agency relationship betweenStowe and Grecian Delight precluding summary judgment. The plaintiffs also assert thatmaterial questions of fact exist regarding the joint venture relationship between Motorsport andGrecian Delight precluding summary judgment. We disagree.

Summary judgment is appropriate when the pleadings, depositions, and admissions,together with any affidavits, show there is no genuine issue of material fact and the movant isentitled to judgment as a matter of law. Champaign National Bank v. Babcock, 273 Ill.App.3d292, 299, 652 N.E.2d 848, 853 (1995). When ruling on a motion for summary judgment, a trialcourt must view all evidence in the light most favorable to the nonmovant. Rotzoll v. OverheadDoor Corp., 289 Ill.App.3d 410, 413, 681 N.E.2d 156, 158 (1997). We review de novo grants ofsummary judgment. Malone v. American Cyanamid Co., 271 Ill.App.3d 843, 845, 649 N.E.2d493, 495 (1995).

The plaintiffs first assert that questions of fact exist regarding whether Stowe was actingas an agent and/or employee of Grecian Delight. Plaintiffs argue that the Sponsorship Agreementbetween Grecian Delight and Motorsport created an agency relationship between Stowe andGrecian Delight. Plaintiffs further argue that a question of material fact exists as to the agencyrelationship because Stowe was driving a Ryder truck rented by Grecian Delight in furtherance ofthe Sponsorship Agreement with Motorsport. The plaintiffs also argue that a question of factexists as to whether Stowe was acting within the scope of his employment as the Ryder truckeventually transported Grecian Delight products after the Olympic Games.

An agency is a fiduciary relationship in which the principal has the right to control theagent's conduct and the agent has the power to act on the principal's behalf. Letsos v. Century21-New West Realty, 285 Ill.App.3d 1056, 1064, 675 N.E.2d 217 (1996). An agent's authoritymay be either actual or apparent, and actual authority may be either express or implied. C.A.M.Affiliates, Inc. v. First American Title Insurance Co., 306 Ill.App.3d 1015, 1021, 715 N.E.2d 778(1999). Only the alleged principal's words and conduct, not those of the alleged agent, establishthe agent's authority. First American Title Insurance Co. v. TCF Bank, F.A., 286 Ill.App.3d 268,274, 676 N.E.2d 1003 (1997).

Generally, the question of whether an agency relationship exists and the scope of thepurported agent's authority are questions of fact. Progress Printing Corp. v. Jane Byrne PoliticalCommittee, 235 Ill.App.3d 292, 306, 601 N.E.2d 1055 (1992). A principal-agent relationshipexists when the principal has the right to control the manner in which the agent performs hiswork and the agent has the ability to subject the principal to personal liability. Lang v. Silva, 306Ill.App.3d 960, 972, 715 N.E.2d 708 (1999).

The right to control the actions of another is a hallmark of agency. Restatement (Second)of Agency