Werner v. Botti, Marinaccio & DeSalvo

• Decision Date: 20 November 1990
• Docket Number: No. 5-89-0636,5-89-0636
• Citation: 563 N.E.2d 1147,205 Ill.App.3d 673,151 Ill.Dec. 41
• Parties: , 151 Ill.Dec. 41 Keith WERNER, Sole Proprietor of Medlaw, Plaintiff-Appellee, v. BOTTI, MARINACCIO & DeSALVO, Mark Loescher, and Marcia Loescher, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1147

563 N.E.2d 1147

205 Ill.App.3d 673, 151 Ill.Dec. 41

Keith WERNER, Sole Proprietor of Medlaw, Plaintiff-Appellee, v. BOTTI, MARINACCIO & DeSALVO, Mark Loescher, and Marcia Loescher, Defendants-Appellants.

No. 5-89-0636.

Appellate Court of Illinois Fifth District.

Nov. 20, 1990.

Howard R. Wertz, Botti, Marinaccio, DeSalvo & Tameling, Ltd., Oak Brook, for defendants-appellants.

Keith Werner, Madison, pro-se.

Justice HARRISON delivered the opinion of the court:

Defendants, Botti, Marinaccio & DeSalvo and Mark and Marcia Loescher, appeal from a judgment of the circuit court of Madison County which awarded plaintiff, Keith Werner, $717.02 in damages, plus court costs, on plaintiff's small claims action for breach of contract. On this appeal, defendants contend that the circuit court erred in allowing plaintiff to present various forms of hearsay evidence and that if this hearsay is excluded from the record, there is not sufficient competent evidence to sustain the circuit court's judgment. For the reasons which follow, we affirm.

Plaintiff is the sole proprietor of Medlaw, a company which provides experts, including doctors and nurses, to review medical records for attorneys for use in litigation. On September 1, 1988, plaintiff received a telephone call from Aldo Botti, an attorney with the law firm of Botti, Marinaccio & DeSalvo. Botti advised plaintiff that he was seeking a physician with experience testifying as an expert in court who could review medical records in a negligence action which Botti's firm was handling on behalf of Mark and Marcia Loescher. Plaintiff proposed a number of possible candidates to Botti and gave him information regarding their locations, credentials, and fee schedules. From these candidates, Botti selected Dr. Malcolm Brochin, a graduate of Harvard Medical School who was on the faculty at Yale and who practiced medicine in Connecticut.

Plaintiff informed Botti that he would charge $275 per hour for Brochin's services, plus incidental expenses such as postage, Federal Express bills, and telephone charges. He also advised Botti that Botti would have to pay a $500 retainer and provide him with all of the medical records, together with a cover letter. Plaintiff claims that Botti accepted these terms, tendered the requisite retainer check and forwarded the pertinent medical records. Plaintiff, in turn, supplied the records to Dr. Brochin, who conducted the review which Botti had requested.

Based upon his review of the records, which took four hours, Brochin could find no evidence of negligence, but recommended that the records be reviewed by a neonatologist. In a telephone conversation which plaintiff subsequently had with Botti, Botti disputed Brochin's findings. Plaintiff testified that he told Botti that Brochin felt strongly about his conclusions, and plaintiff asked Botti if he did in fact want the records reviewed by a neonatologist. According to plaintiff, Botti said that he did want such a review and that plaintiff should let him know what the retainer for this additional review would be. When plaintiff received the records back from Dr. Brochin, he therefore forwarded those records to Dr. Charles Brill, a board certified neonatologist, and requested Brill to let him know what it would cost to have the records examined. In the course of forwarding the records to Dr. Brill, plaintiff incurred an additional $68 in Federal Express shipping charges.

Plaintiff paid Brochin for his services and sent his own bill to defendants. That bill, dated September 29, 1988, included charges for four hours of work by Dr. Brochin at the quoted rate of $275 per hour, plus a Federal Express charge of $32, a charge of $10.22 for long distance telephone calls, and postage of $6.80, for a total of $1149.02. From this, plaintiff deducted the $500 retainer he had already received, leaving a balance due of $649.02.

After Botti received plaintiff's bill, plaintiff discussed the bill with him by telephone. During that conversation, Botti expressed concern over the amount he was charged. According to plaintiff, Botti told him that he thought that the charges were a little high and that Botti's firm normally had to pay only $1000 to have medical records reviewed by someone in Chicago, where Botti's office was located. Plaintiff explained to Botti that it was Botti who had selected Brochin, that Botti knew what the hourly charge would be, and that based on the size and complexity of the records, plaintiff did not think that the total charges were excessive. According to plaintiff, Botti then stated that he would pay the bill, although he indicated that in the future he would like "to have more said as far as how much it will cost to have records reviewed."

Despite Botti's assurance that the bill would be paid, such payment was not forthcoming. Plaintiff made two subsequent written requests for payment without avail, and attempts to contact Botti by phone proved unsuccessful. Finally, on January 10, 1989, plaintiff received a letter from Mr. Botti advising him that he regarded plaintiff's bill as excessive and would not pay it. Ten days later, on January 20, 1989, plaintiff brought his pro se small claims action against Botti's law firm and its clients, the Loeschers, seeking damages of $717.02, plus costs and interest. The $717.02 demanded included the $649.02 balance due under the September 29, 1988, bill plus the $68 in additional Federal Express charges plaintiff had incurred in forwarding the medical records to Dr. Brill.

Following an informal hearing pursuant to Supreme Court Rule 286(b) (113 Ill.2d R.286(b)), the circuit court entered judgment in favor of plaintiff and against the defendants in the amount of $717.02. The court also awarded plaintiff court costs of $29 for the filing fee and $15 for service fees. The court refused to grant plaintiff an award of prejudgment interest. A post-trial motion subsequently filed by defendants was denied, and this appeal followed.

On this appeal, defendants contend that the circuit court's judgment must be reversed because the circuit court allowed into evidence various matters which defendants believe constitute inadmissible hearsay. The specific offending matter to which defendants objected at trial included an affidavit by Dr. Brochin; plaintiff's testimony regarding the initial telephone conversation which he had with Botti on September 1, 1988; and plaintiff's testimony regarding a subsequent telephone conversation with Brochin in which Brochin related a conversation he had had with Botti.

Dr. Brochin resided in Connecticut, and there is no dispute that he was beyond the reach of compulsory process and could not be compelled to testify at trial. Plaintiff resorted to use of Brochin's affidavit after the circuit court turned down a pre-trial request he made pursuant to Supreme Court Rule 287(a) (113 Ill.2d R.287(a)) to take Brochin's deposition. At the hearing, the circuit court denied defendants' hearsay objections to Brochin's affidavit and to the challenged telephone conversations on the grounds that their admission was proper under Supreme Court Rule 286(b) (113 Ill.2d R.286(b)), which provides that where, as here, an informal hearing is held in a small claims case, "the court may relax the rules of procedure and the rules of evidence."

Defendants argue that this holding was incorrect because it was tantamount to finding that Supreme Court Rule 286(b) (113 Ill.2d R.286(b)) has abrogated the common law prohibition against hearsay evidence. In defendants' view, the rule cannot be given such an expansive construction because if it were and if hearsay evidence were admissible, they would be deprived of their right to cross-examine witnesses and this, in turn, would be a violation of their due process rights under the United States Constitution and article I, section 2 of the Illinois Constitution of 1970. Defendants further contend that if the challenged evidence is excluded from the record, the circuit court's judgment cannot be sustained.

As a preliminary matter, we note that defendants' constitutional claims were not raised before the trial court. The general rule in civil cases is that constitutional arguments which are not raised by objection at trial are considered waived for purposes of appeal. (In re Liquidations of Reserve Ins. Co. (1988), 122 Ill.2d 555, 567-68, 120 Ill.Dec. 508, 513-14, 524 N.E.2d 538, 543-44.) Even if we were to set aside considerations of waiver, however, defendants' constitutional arguments would be unavailing.

A reviewing court will decide constitutional questions only where resolution of those questions is essential to disposition of the appeal. (In re Application of County Collector of Kane County (1988), 172 Ill.App.3d 897, 902, 122 Ill.Dec. 769, 771, 527 N.E.2d 141, 143, aff'd (1989), 132 Ill.2d 64, 138 Ill.Dec. 138, 547 N.E.2d 107.) This is not such a case. To decide this appeal, there is no need to reach the issue of whether adherence to the common law rule against hearsay evidence is an invariable requirement of due process. Indeed, we do not believe that there is even any need to consider whether Supreme Court Rule 286(b) (113 Ill.2d R.286(b)) authorizes the admission of hearsay evidence in informal hearings on small claims actions. This is so because the evidence presented to circuit court in this case was either not objected to; did not, in fact, constitute hearsay; or, even if hearsay, was not necessary to support the court's judgment.

As we have indicated, defendants interposed hearsay objections at the hearing only to (1) plaintiff's testimony regarding the initial telephone conversation which plaintiff had with Botti on September 1, 1988; (2) plaintiff's testimony regarding a telephone conversation he had had with Brochin in which Brochin related a conversation he had had with Botti; and (3) Brochin's affidavit. Although defendants now cite various other examples of...