MICHAEL J. VINZENZ, d/b/a Agri- | ) | Appeal from the Circuit Court |
Associates, | ) | of Kane County. |
) | ||
Plaintiff-Appellant, | ) | |
) | No. 01--ARK--25 | |
v. | ) | |
) | ||
HINTZSCHE FERTILIZER, INC., | ) | Honorable |
) | Richard J. Larson, | |
Defendant-Appellee. | ) | Judge, Presiding. |
JUSTICE O'MALLEY delivered the opinion of the court:
Plaintiff, Michael J. Vinzenz, d/b/a Agri-Associates, appealsfrom a summary judgment that the trial court entered in favor ofdefendant, Hintzsche Fertilizer, Inc. Plaintiff contends that,contrary to the trial court's ruling, he was entitled to a fee forthe employment recruitment services he provided to defendantnotwithstanding defendant's payment of a fee to another employmentrecruiter. Plaintiff argues that he was entitled to a fee becausehe referred a job candidate to defendant before the other recruiterreferred the same job candidate whom defendant later hired for thejob. For the reasons that follow, we affirm.
The material facts are not in dispute. Plaintiff is anemployment recruiter who, for a fee, finds prospective employeesfor companies. Defendant is a corporation with its principal placeof business in Kane County, Illinois.
In September 1999, defendant began a search for a newcontroller to replace the controller who would be resigning andleaving the company effective December 31, 1999. Steven Carlson,defendant's chief financial officer, was responsible for hiring thenew controller. In seeking candidates for the job, Carlsoncontacted several employment recruiters. Carlson informed therecruiters that potential candidates should meet certain criteria. The criteria included a requirement as to location and arequirement 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 potentialcandidates for the controller position to Carlson. One of thecandidates was Larry Kakacek. Kakacek's resume indicated that helived in Iowa and that he was currently earning $67,000. Plaintiffhad previously sent Carlson a pamphlet containing his fee schedule. The fee schedule showed that plaintiff's general fee forrecruiting, on a contingency basis, a job candidate that anemployer hired was 25% of the employee's first year's earnings.
On September 23, 1999, Carlson telephoned plaintiff and toldplaintiff that defendant was not interested in hiring Kakacekbecause defendant was looking for candidates who were locatedcloser to defendant and who had a lower salary than Kakacek. Thereafter, plaintiff called Carlson every week or two and inquiredabout the controller position. Plaintiff did not submit anyadditional resumes to Carlson and did not ask Carlson to reconsiderhis rejection of Kakacek's resume.
On October 12, 1999, Rich Connell, another employmentrecruiter, faxed Kakacek's resume to Carlson for the controllerposition. In a subsequent affidavit, Carlson stated that when hereceived Kakacek's resume from Connell he did not recall previouslyseeing the resume. Carlson called Connell and told him thatKakacek was too expensive and too far away but that defendant wasbeginning to run out of options. Connell responded that Kakacekwas anxious to find other work and might be willing to accept a paycut. Thereafter, Connell arranged an interview between Kakacek andCarlson. Over the next several weeks, Connell facilitatedcommunications between Kakacek and Carlson. Connell also initiateddiscussions with Kakacek regarding, inter alia, compensation,benefits, and a starting date.
On November 30, 1999, defendant hired Kakacek for thecontroller position at an annual salary of $67,000 and agreed thatKakacek could start his employment with defendant after January 1,2000. Defendant later paid a recruitment fee to Connell. The feewas $16,750, 25% of Kakacek's first year's salary.
On January 5, 2000, plaintiff called Carlson and learned thatdefendant had hired Kakacek. Plaintiff told Carlson that he,plaintiff, was entitled to a recruitment fee for the services thathe had provided to defendant with respect to Kakacek. Carlsonresponded that he did not recall plaintiff sending Kakacek's resumeand that he did not believe that plaintiff was responsible fordefendant's hiring of Kakacek.
After defendant refused to pay plaintiff a recruitment feerelated to defendant's hiring of Kakacek, plaintiff filed acomplaint initiating the instant lawsuit. Plaintiff sought torecover a fee for the recruitment services that he provided todefendant with respect to Kakacek. The parties filed cross-motionsfor summary judgment. The trial court granted defendant's motionand denied plaintiff's motion. Plaintiff's timely notice of appealfollowed.
On appeal, plaintiff contends that the trial court erred ingranting defendant's motion for summary judgment. Plaintiff arguesthat, under the circumstances of this case, there were two reasonswhy he was entitled to a fee for the services that he provided todefendant with respect to Kakacek: (1) there was a contractbetween the parties and he substantially fulfilled his obligationsto defendant under the contract and (2) agency principles requiredit. Defendant responds that the trial court did not err ingranting a summary judgment in its favor because (1) there was nocontract between the parties; (2) even if a contract is deemed tohave existed, plaintiff failed to fulfill his contractualobligations; and (3) plaintiff has waived any arguments based onagency principles.
Familiar principles guide us in resolving a challenge to atrial court's grant of a motion for summary judgment. A courtshould grant summary judgment where "there is no genuine issue asto any material fact and *** the moving party is entitled to ajudgment as a matter of law." 735 ILCS 5/2--1005(c) (West 2000). While summary judgment can aid in the expeditious disposition of alawsuit, it is a drastic measure and should be granted only "whenthe right of the moving party is clear and free from doubt." Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). Our standard ofreview 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 issueof material fact. The parties also agree that the controlling lawas to whether plaintiff was entitled to a recruitment fee based oncontract principles is stated in three Illinois cases: Clark v.General Foods Corp., 81 Ill. App. 3d 74 (1980); Snedden v. GeneralRadiator Division of Chromalloy American Corp., 111 Ill. App. 3d128 (1982); and Polytechnical Consultants, Inc. v. All-Steel Inc.,134 Ill. App. 3d 187 (1985).
In Clark, in response to a newspaper advertisement, theplaintiff employment recruiter, Clark, supplied to the defendantcorporation a resume for an anonymous job candidate. In responseto the defendant's request, Clark later supplied the defendant withthe information necessary for the defendant to contact the jobcandidate, Brian Hopkins. Interviews were set up, but beforeHopkins was interviewed, the defendant hired another candidate forthe position. Three months later, in response to advertisements,another employment recruiter sent the defendant Hopkins's resumefor a position that was similar to the earlier position. Thedefendant subsequently hired Hopkins for the second position andpaid the other recruiter a fee of approximately 22% of Hopkins'sstarting salary. After the defendant refused to satisfy Clark'ssubsequent demands for a recruitment fee, Clark sued the defendant.
In Clark, the appellate court found that a contract existedbetween Clark and the defendant from the moment that the defendantresponded to the resume sent to it by Clark by asking for Hopkins'sidentifying information. Clark, 81 Ill. App. 3d at 77. The courtalso determined that, based on custom and usage in the employmentrecruitment industry, the term of the contract was for one year. Clark, 81 Ill. App. 3d at 78-79. The court rejected thedefendant's argument that the filling of the first position actedto terminate the contract. Clark, 81 Ill. App. 3d at 80. Based onits findings and determinations, the appellate court agreed withthe trial court that Clark was entitled to a fee notwithstandingthe defendant's payment of a fee to the other employment recruiter. Clark, 81 Ill. App. 3d at 80.
In Snedden, in response to requests from the defendantcorporation, the plaintiff employment recruiter, Snedden, arrangedinterviews between the defendant and several job candidates. Oneof the candidates was Dale Bonnema. There was disputed evidence asto the nature of Bonnema's interview. The defendant's evidencetended to show that the interview of Bonnema was perfunctorybecause Bonnema already had accepted other employment with anothercompany, General Thermo, Inc. In any event, the defendant did nothire Bonnema, and Bonnema began employment with General Thermo. Afew months later, a supervisory employee at General Thermo advisedone of the defendant's agents that Bonnema was available foremployment with the defendant and sent Bonnema's resume to thedefendant. The defendant subsequently hired Bonnema. Sneddenlater filed suit against the defendant seeking a fee for theemployment recruitment services he had supplied to the defendantwith respect to Bonnema.
In Snedden, Snedden and an expert witness both testified thatthere was a long-standing custom in the employment recruitmentindustry that required an employer to pay a fee to a recruiter forany employee whom the employer hired within one year of arecruiter's referral of the employee to the employer. The expertwitness also testified that a recruiter must have met four criteriafor his agency to be entitled to a fee. The four criteria are:
"(1) the agency must have discussed the applicant with theemployer; (2) the employer [must have] agreed to interview theapplicant; (3) the applicant [must have] agreed to interviewwith the employer; and (4) the agency or the employer musthave set the arrangements in motion for the interview." Snedden, 111 Ill. App. 3d at 130.
In Snedden, the trial court entered a judgment in favor of thedefendant. The appellate court reversed the judgment and remandedthe cause to the trial court for the entry of a judgment in favorof Snedden that included a fee commensurate with Snedden's feeschedule. The appellate court determined that Snedden satisfiedthe criteria for entitlement to a fee and that the defendant hadconstructive knowledge of the custom and usage in the industry thatrequired an employer to pay a fee to an employment recruiter if thecriteria were satisfied and the employer hired the referredapplicant within one year of the recruiter's referral of theapplicant. Snedden, 111 Ill. App. 3d 130-32.
In Polytechnical Consultants, the plaintiff employmentagency's complaint alleged that it submitted to the defendantcorporation the resume of Floyd Borkhuis for a job opening as a diedesigner; that the defendant contacted the plaintiff for moreinformation about Borkhuis; that the plaintiff helped arrange aninterview between Borkhuis and the defendant; that the defendantthen hired Borkhuis for the position; and that the plaintiff wastherefore entitled to a fee for its services.
In Polytechnical Consultants, Don Vitullo testified that inOctober 1981, while he was an employment recruiter for ProfessionalEmployment, Inc. (PEI), an employment recruitment agency, he sentBorkhuis's resume to the defendant; that the defendant's personnelmanager, Colleen Reuland, then called him and told him that thedefendant had no interest in Borkhuis; that in November 1981 heleft PEI and went to work for the plaintiff; that in January 1982,on behalf of the plaintiff, he sent to the defendant Borkhuis'sresume, which was virtually identical to the earlier resume he hadsent to the defendant; that on January 12, 1982, Reuland called himand asked him to set up an interview with Borkhuis; that theinterview occurred on February 4, 1982; that a few days later thedefendant hired Borkhuis; and that the plaintiff then sent thedefendant a bill for its services related to Borkhuis. The recordalso contained an affidavit by Vitullo in which he asserted that,after he sent Borkhuis's resume to the defendant in October 1981,the defendant conducted a telephone interview with Borkhuis, butthe defendant did not then make Borkhuis a job offer and there wasno further contact with Borkhuis until Vitullo, as an employee ofthe plaintiff, sent Borkhuis's resume to the defendant in January1982.
In Polytechnical Consultants, Reuland testified that after hertelephone interview with Borkhuis in 1981 she determined that thedefendant was not interested in hiring Borkhuis because he was notinterested in a certain kind of work; that in January 1982, afterreceiving another resume from Vitullo for Borkhuis, she contactedVitullo and the next day had a telephone conversation withBorkhuis; that Vitullo then arranged an interview between thedefendant and Borkhuis; and that the defendant then hired Borkhuis. In an affidavit, Reuland stated that after receiving Borkhuis'sresume and interviewing him in October 1981 she found him to beacceptable for employment with the defendant; that Borkhuisaccepted a job offer from the defendant after a second interview inJanuary 1982; and that the defendant then paid a recruitment fee toPEI.
In Polytechnical Consultants, the trial court ruled that theplaintiff was entitled to the recruitment fee because, despitePEI's initial referral of Borkhuis to the defendant, the plaintiffwas the motivating force leading to the hiring of Borkhuis. Theappellate court noted that both parties relied on Clark andSnedden. The court stated that Clark and Snedden established that,according to custom and usage, the general rule in determiningwhether an employment recruitment agency was entitled to a fee wasthat "the agency which made the first referral of a job candidateearned the recruitment fee where that applicant was hired withinone year for the same or similar position, notwithstanding anintervening referral of that candidate by another agency." Polytechnical Consultants, 134 Ill. App. 3d at 191. The courtconcluded that the "motivating force test" that the plaintiff'sexpert had discussed and that the trial court apparently hadaccepted was a restatement of the criteria set out in Snedden forentitlement to a recruitment fee. In explaining how the motivatingforce test was related to the general rule, the court stated:
"Under our interpretation of Clark and Snedden, the properapproach is to first determine whether [PEI], which had apossible priority to the fee because it made the firstreferral of the candidate, also met the Snedden criteria. Ifso, that agency is entitled to the recruitment fee. If not,only then would plaintiff's activities be relevant." Polytechnical Consultants, 134 Ill. App. 3d at 191-92.
The court then concluded that PEI had satisfied the Sneddencriteria and that PEI was therefore entitled to the recruitmentfee.
Here, we agree with the parties that Clark, Snedden, andPolytechnical Consultants are controlling. We also agree with theprinciples enunciated in Polytechnical Consultants for determiningwhether plaintiff is entitled to a recruitment fee, i.e., that indetermining whether plaintiff was entitled to a fee because he madethe first referral of Kakacek to defendant, we must decide whetherplaintiff met the Snedden criteria.
Our review of the record shows that plaintiff met only one ofthe four Snedden criteria. The criterion that plaintiff met was that he discussed the applicant, Kakacek, with the employer. Thisoccurred when Carlson called plaintiff and told plaintiff thatdefendant was not interested in Kakacek because he lived too faraway and because his salary was too high. The record shows thatplaintiff did nothing further with respect to Kakacek's employmentprospects with defendant. We realize that, strictly speaking, theother Snedden criteria were ultimately satisfied. However,plaintiff did nothing to satisfy these criteria. Rather, it wasthe other agency that was the motivating force in satisfying theother criteria. Accordingly, to the extent that the trial courtbased its ruling on the principles enunciated in Clark, Snedden,and Polytechnical Consultants, we conclude that the trial court didnot err in granting summary judgment in favor of defendant. Therefore, it is not necessary for us to determine whether acontract existed between plaintiff and defendant.
We also agree with defendant that plaintiff has waived itsarguments that are based on agency principles. Plaintiff has notcited any authority in support of its agency-based arguments. Arguments not supported by citation to relevant authority aredeemed waived. See Official Reports Advance Sheet No. 21 (October17, 2001), R. 341(e)(7), eff. October 1, 2001.
Based on the foregoing, the judgment of the circuit court ofKane County is affirmed.
Affirmed.
HUTCHINSON, P.J., and BOWMAN, J., concur.