Lydon v. Eagle Food Centers, Inc.

No. 2--97--0791

________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

MICHELLE LYDON, ) Appeal from the Circuit Court
) of Lake County.
Plaintiff-Appellant, )
) No. 97--L--191
v. )
)
EAGLE FOOD CENTERS, INC., ) Honorable
) Terrence J. Brady,
Defendant-Appellee. ) Judge, Presiding.
________________________________________________________________

JUSTICE THOMAS delivered the opinion of the court:
Plaintiff, Michelle Lydon, appeals the dismissal of her
complaint. Plaintiff contends that the trial court erred in
concluding that she was precluded from pursuing this action because
she had already filed two actions regarding the same incident, one
of which was voluntarily dismissed and the other of which was
dismissed for want of prosecution.
Plaintiff's complaint alleges that, on March 21, 1993, she was
injured when she fell while at a store owned by defendant, Eagle
Food Centers, Inc. The plaintiff hired attorney Clay Mitchell, who
filed suit on her behalf on March 21, 1995, in the circuit court of
Lake County. On March 20, 1995, in the circuit court of Cook
County, attorney Robert Cleveland filed suit, allegedly on
plaintiff's behalf, regarding the same incident. Plaintiff does not
know Cleveland, has never spoken with Cleveland, and never retained
Cleveland to represent her. Cleveland filed a motion to voluntarily
dismiss the Cook County action, but he never presented it to the
court. On July 21, 1995, the Cook County action was dismissed for
want of prosecution.
On March 7, 1996, plaintiff voluntarily dismissed the action
pending in Lake County. Pursuant to section 13--217 of the Code of
Civil Procedure (Code) (735 ILCS 5/13--217 (West 1994)), on March
7, 1997, plaintiff refiled the action, again in the circuit court
of Lake County. Pursuant to section 2--619(a)(9) of the Code (735
ILCS 5/2--619(a)(9) (West 1996)), defendant moved to dismiss
plaintiff's action, arguing that section 13--217 allowed only one
refiling and that, since this was plaintiff's third filing based on
the same incident, her action was barred. The trial court granted
defendant's motion, finding that section 13--217 allows one and
only one refiling. Plaintiff filed a timely notice of appeal.
Section 2--619 affords litigants a means to dispose of issues
of law and easily proved issues of fact at the outset of a case.
Zedella v. Gibson, 165 Ill. 2d 181, 185 (1995). In deciding a
motion to dismiss under section 2--619, courts may consider the
pleadings, depositions, and affidavits. Zedella, 165 Ill. 2d at
185. We review a dismissal pursuant to section 2--619 de novo.
Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112,
116 (1993). On appeal, we consider whether the existence of a
genuine issue of material fact should have precluded the dismissal
or, absent such an issue of fact, whether dismissal is proper as a
matter of law. Kedzie & 103rd Currency Exchange, 156 Ill. 2d at
116-17.
Section 13--217 provides that, if the time to initiate an
action is limited, and if the plaintiff voluntarily dismisses the
action or the court dismisses the action for want of prosecution,
then, whether or not the time limitation for bringing such action
expires during the pendency of such action, the plaintiff *** may
commence a new action within one year or within the remaining period
of limitation, whichever is greater. 735 ILCS 5/13--217 (West
1994) (Public Act 89--7, 15, eff. March 9, 1995, amended section
13--217 to prohibit refilings after a voluntary dismissal or a
dismissal for want of prosecution unless the refiling occurs within
the original limitation period. The amendment does not apply to
plaintiff's claim, however, because her cause of action accrued
before the effective date of the amendment. See Public Act 89--7,
15, eff. March 9, 1995. Moreover, the supreme court has recently
declared Public Act 89--7 void in its entirety. Best v. Taylor
Machine Works, 179 Ill. 2d 367, 467 (1997). Section 13--217
provides a plaintiff with the absolute right to refile a complaint
within one year or within the remaining limitation period, whichever
is greater. Timberlake v. Illini Hospital, 175 Ill. 2d 159, 163
(1997). A plaintiff can refile the action only once, however.
Timberlake, 175 Ill. 2d at 163.
Here, defendant claims that plaintiff filed her first action
in Cook County and then exhausted her right to refile by filing the
Lake County action one day later. Alternatively, defendant contends
that if plaintiff did retain the right to refile her action, she had
to do so within one year of the dismissal of the Cook County action.
Since plaintiff filed her second Lake County action substantially
beyond that time, defendant concludes that plaintiff's action is
barred. We need not address these issues, however, because
defendant has not proved that plaintiff should be held accountable
for the filing of the Cook County action.
In general, the law of principal and agent applies to an
attorney-client relationship. Granite Properties Ltd. Partnership
v. Granite Investment Co., 220 Ill. App. 3d 711, 713 (1991). To act
for a client, an attorney must have either actual or apparent
authority to do so. Granite Properties, 220 Ill. App. 3d at 713.
If the agency relationship is so clear as to be undisputed, the
issue may be decided as a matter of law. Athanas v. City of Lake
Forest, 276 Ill. App. 3d 48, 54 (1995). Normally, however, whether
an agency relationship exists is a question for the trier of fact.
Granite Properties, 220 Ill. App. 3d at 714. [T]he words and
conduct of the alleged principal, not the alleged agent, create an
agency relationship. First American Title Insurance Co. v. TCF
Bank, 286 Ill. App. 3d 268, 274 (1997). The party asserting the
existence of an agency relationship must prove it by a preponderance
of the evidence. Granite Properties, 220 Ill. App. 3d at 714.
When an attorney appears of record on behalf of a party, a
rebuttable presumption arises that the party authorized the attorney
to do so. Gray v. First National Bank of Chicago, 388 Ill. 124, 129
(1944); Pinnacle Arabians, Inc. v. Schmidt, 274 Ill. App. 3d 504,
508 (1995). When, however, the facts show a lack of authorization,
express or implied, and there is no proof of ratification, the acts
of counsel are a nullity. Gray, 388 Ill. at 129. Thus, if
Cleveland lacked the authority to file the Cook County action, then
that filing is null and plaintiff's second Lake County action was
properly filed.
Plaintiff has filed an affidavit stating that she does not know
Cleveland, has never spoken with Cleveland, and never retained
Cleveland to represent her. In response to this, defendant's
attorney presented an affidavit stating that plaintiff's attorney
told him that plaintiff had previously hired Fred Tinglio to
represent her and that Cleveland may have been working on the
matter at the request of Mr. Tinglio. The affidavit also states
that plaintiff's attorney told defendant's attorney that Tinglio had
returned plaintiff's retainer to her and had withdrawn from the
action. Defendant's attorney's affidavit contains an additional
paragraph that the trial court struck. Defendant does not challenge
the striking; therefore, we do not consider the contents of the
stricken paragraph. After reviewing the record, we are unable to
conclude that, as a matter of law, plaintiff gave Cleveland the
authority to file the Cook County action.
Defendant argues that the facts demonstrate that Cleveland had
actual authority to file the action on behalf of plaintiff. Actual
authority can be either express or implied. Granite Properties,
220 Ill. App. 3d at 713-14. Express authority exists when a
principal explicitly grants an agent the authority to perform a
particular act. Progress Printing Corp. v. Jane Byrne Political
Committee, 235 Ill. App. 3d 292, 308 (1992). Here plaintiff's
affidavit establishes that she never spoke with or authorized
Cleveland to do anything. Defendant has presented no
counteraffidavits that establish a relationship between plaintiff
and Cleveland. Thus, we must accept plaintiff's affidavit as true.
See Meldoc Properties v. Prezell, 158 Ill. App. 3d 212, 216 (1987).
We therefore conclude that Cleveland lacked express authority to
file the action.
Implied authority is that authority which is inherent in an
agent's position (Progress Printing, 235 Ill. App. 3d at 308), and
is, simply, actual authority proved through circumstantial evidence
(Granite Properties, 220 Ill. App. 3d at 714). Here, the only
possible evidence that Cleveland may have had the implied authority
to file the action would be that plaintiff hired Tinglio and that
he had the implied authority to hire Cleveland, who then had the
authority to file an action for plaintiff. Such a conclusion is
tenuous at best, however, since the only evidence that reveals any
possible connection between Tinglio and Cleveland is defendant's
attorney's statement in his affidavit that plaintiff's attorney told
him that Tinglio may have hired Cleveland to file the action. This
evidence is nothing more than hearsay based upon speculation, and
it fails to account for the question of whether Tinglio had already
withdrawn from the case at the time that Cleveland filed the action.
These speculative and unsubstantiated facts are insufficient to
establish that Cleveland had the authority to file the Cook County
action.
Defendant attempts to analogize this situation to the one found
in Granite Properties. We find the analogy less than accurate. In
Granite Properties, the defendants received a notice of a hearing
to confirm arbitration. One defendant took the notice and
accompanying information to his attorney's office. The attorney was
on vacation and was not expected to return before the hearing date.
The defendant left the information with the attorney's secretary.
The secretary gave the information to an associate in the law firm,
and the associate filed a general appearance and sought a
continuance. The defendants subsequently filed a special appearance
and argued that they did not authorize the associate to represent
them. The trial court found that the associate had the authority
to represent the defendants. On appeal, the court concluded that
the facts established that the associate had the implied authority
to act for the defendants. Granite Properties, 220 Ill. App. 3d at
714. The evidence in Granite Properties showed a clear intent by
the defendants to have the vacationing attorney represent them.
Moreover, the evidence clearly established the existence of a
relationship between the attorney that the defendant hired and the
attorney that acted for the defendants. Here, however, the record
contains no credible evidence that would connect Tinglio with
Cleveland or that would support a conclusion that Tinglio
represented plaintiff when Cleveland filed the Cook County action.
Absent this evidence, we find Granite Properties factually
inapposite.
Defendant next argues that Cleveland had apparent authority to
file the action. Apparent authority arises when the principal,
through words or conduct, creates a reasonable impression that the
agent has authority to perform a certain act. Granite Properties,
220 Ill. App. 3d at 714. Defendant argues that Cleveland's apparent
authority to file the action arose from plaintiff's hiring of
Tinglio. While neither party disputes the fact that, at some time,
plaintiff hired and then fired Tinglio, the only evidence connecting
Tinglio with Cleveland is bare speculation and is clearly
insufficient to support a conclusion that plaintiff's action of
hiring Tinglio would create a reasonable impression that Cleveland
had the authority to represent her.
Defendant's final argument is that plaintiff ratified
Cleveland's action of filing the Cook County complaint.
Ratification is a form of equitable estoppel involving the express
or implied adoption of the acts of another by one for whom the other
assumes to be acting ***. Swader v. Golden Rule Insurance Co., 203
Ill. App. 3d 697, 704 (1990). The rationale behind the doctrine is
that the person ratifying the action obtains a benefit through the
person who is acting on his behalf. Swader, 203 Ill. App. 3d at
704. Before ratification will be found, the principal must have
full knowledge of the facts, and the choice to either accept or
reject the benefits of the transaction. Swader, 203 Ill. App. 3d
at 704-05. A principal can ratify an action by taking a position
inconsistent with nonaffirmation of the action. Athanas, 276 Ill.
App. 3d at 56. Further, ratification can occur if the principal
knows of the alleged agent's actions and fails to repudiate those
actions. Athanas, 276 Ill. App. 3d at 57.
Here, defendant has failed to prove that plaintiff ratified
Cleveland's filing of the Cook County action. First, defendant has
not shown what, if any, benefits plaintiff received from the filing
of the Cook County action, let alone shown that she accepted any
benefits. Plaintiff had a timely filed action pending in Lake
County. The Cook County action did not benefit her in any manner.
Moreover, her actions, instead of indicating that she was adopting
Cleveland's activities, indicate that she was disavowing her
connection with the Cook County action. She took no action with
respect to the suit pending in Cook County, while she fully
participated in the Lake County action. Defendant argues that
plaintiff's ratification is shown by the fact that she did not
consolidate the Cook County suit with the one pending in Lake County
or that she did not have Mitchell appear for her in the Cook County
action. While we note that these are relevant factors, they do not
conclusively establish that plaintiff was ratifying Cleveland's
actions. These facts could just as easily support an inference that
plaintiff took no action in Cook County for fear that, by doing so,
she would ratify Cleveland's actions. Instead, she chose to allow
the unauthorized suit to be dismissed while she proceeded with her
authorized suit in Lake County.
After reviewing the record, we believe that defendant has not
provided sufficient evidence to prove, as a matter of law, that an
agency relationship existed between plaintiff and Cleveland, or that
plaintiff ratified Cleveland's actions. Without such proof,
Cleveland's act of filing suit in Cook County must be deemed null.
If the filing of the first suit is deemed null, then plaintiff's
current action cannot be dismissed as a multiple refiling under
section 13--217. In reaching this conclusion, we do not hold that
no agency relationship existed between plaintiff and Cleveland. We
hold only that defendant has not proved that an agency relationship
existed between plaintiff and Cleveland. Without such proof,
defendant is not entitled to the dismissal of plaintiff's complaint.
The judgment of the circuit court of Lake County is reversed,
and the cause is remanded for further proceedings.
Reversed and remanded.
GEIGER, P.J., and RATHJE, J., concur.