The Forest Preserve District Of Cook County v. Continental Community Bank And Trust Company

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Appellate Court Date: 2018.05.16
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Forest Preserve District v. Continental Community Bank & Trust Co.,
2017 IL App (1st) 170680Appellate Court THE FOREST PRESERVE DISTRICT OF COOK COUNTY,
Caption ILLINOIS, a Body Corporate and Politic of the State of Illinois,
Plaintiff and Respondent-Appellant and Cross-Appellee, v.
CONTINENTAL COMMUNITY BANK AND TRUST COMPANY,
an Illinois Corporation, as Successor to Maywood-Proviso State
Bank, as Trustee Under Trust Agreement Dated November 1, 1983,
Known as Trust No. 6173; JACK RIVO; and UNKNOWN OTHERS,
Defendants (Greg Bedell, Fee Petitioner-Appellee and
Cross-Appellant).–THE FOREST PRESERVE DISTRICT OF
COOK COUNTY, ILLINOIS, a Body Corporate and Politic of the
State of Illinois, Plaintiff and Respondent-Appellee, v.
CONTINENTAL COMMUNITY BANK AND TRUST COMPANY,
an Illinois Corporation, as Successor to Maywood-Proviso State
Bank, as Trustee Under Trust Agreement Dated November 1, 1983,
Known as Trust No. 6173; JACK RIVO; and UNKNOWN OTHERS,
Defendants (Greg Bedell, Fee Petitioner-Appellant).
District & No. First District, Fifth Division
Docket Nos. 1-17-0680, 1-17-0871 cons.
Filed December 22, 2017
Decision Under Appeal from the Circuit Court of Cook County, Nos. 15-L-50227,
Review 00-L-50726; the Hon. Kay M. Hanlon and the Hon. Eileen O’Neill
Burke, Judges, presiding.
Judgment Affirmed in part and vacated in part.
Cause remanded with directions.
Counsel on Neal & Leroy, LLC (Michael D. Leroy and Richard F. Friedman, of
Appeal counsel), and Dennis White, of Forest Preserve District of Cook
County, both of Chicago, for appellant.
Knabe Kroning & Bedell, of Chicago (Gregory A. Bedell, of counsel),
for appellee.
Panel JUSTICE ROCHFORD delivered the judgment of the court, with
opinion.
Presiding Justice Reyes and Justice Lampkin concurred in the
judgment and opinion.
OPINION
¶1 The Forest Preserve District of Cook County, Illinois, a body corporate and politic of the
State of Illinois (the District), originally filed this suit seeking to utilize its power of eminent
domain to acquire certain property held in trust by defendant, Continental Community Bank
and Trust Company, an Illinois corporation, as successor to Maywood-Proviso State Bank, as
trustee under a trust agreement dated November 1, 1983, known as trust No. 6173 (Trustee),
for the benefit of defendant, Jack Rivo (collectively referred to as Mr. Rivo, as he is both a
named defendant and the beneficiary of the trust).
¶2 In its current appeal (No. 1-17-0680), the District seeks (1) relief from a judgment for
attorney fees and costs awarded to Mr. Rivo’s former attorney, fee petitioner Greg Bedell, and
(2) reversal of the circuit court’s orders denying the District leave to file a complaint for
interpleader and denying its motion to declare invalid an attorney lien asserted by Mr. Bedell.
In his cross-appeal, Mr. Bedell seeks reversal of the circuit court’s denial of his petition to
adjudicate and enforce his attorney’s lien. Finally, in Mr. Bedell’s separate appeal (No.
1-17-0871), which he describes as a “secondary, alternative remedy” should this court rule in
the District’s favor on its appeal, Mr. Bedell again seeks reversal of the circuit court’s denial of
his petition to adjudicate and enforce his attorney’s lien.
¶3 With respect to the District’s appeal, while we affirm the circuit court’s decision to grant
Mr. Bedell an award for attorney fees and costs, we vacate that part of the judgment
determining the amount of fees and costs and remand for a recalculation of the proper amount
of that award under a theory of quantum meruit. In light of our resolution of this issue, all of the
remaining issues raised by the parties on appeal are rendered moot.
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¶4 I. BACKGROUND
¶5 This case has been the subject of many prior appeals to this court,
yielding—inter alia—decisions affirming the circuit court’s order granting summary
judgment in favor of Mr. Rivo with respect to the condemnation complaint, as the District
never passed a valid ordinance authorizing the acquisition of the property in question, and a
decision dismissing for lack of jurisdiction a prior appeal from the circuit court’s award of
attorney fees. See Forest Preserve District v. Continental Community Bank & Trust Co., No.
1-12-2211 (Sept. 6, 2012) (unpublished summary order under Illinois Supreme Court Rule
23(c)) (appeal dismissed for lack of jurisdiction); Forest Preserve District v. Continental
Community Bank & Trust Co., 2014 IL App (1st) 131652-U (appeal dismissed for lack of
jurisdiction); Forest Preserve District v. Continental Community Bank & Trust Co., 2016 IL
App (1st) 152145-U (summary judgment in favor of Mr. Rivo on condemnation complaint
affirmed); Forest Preserve District v. Continental Community Bank & Trust Co., 2017 IL App
(1st) 153512-U (appeal from attorney fee award dismissed for lack of jurisdiction). The orders
entered by this court in those prior appeals, including the factual background set out therein,
are incorporated herein by reference. Therefore, we restate here only those facts necessary to
our resolution of the appeals currently pending before us.
¶6 This dispute dates to 2000, when the District began filing a number of eminent domain
actions, including this suit in which the District sought to acquire 12.5 acres that were held by
the Trustee for the benefit of Mr. Rivo. In 2003, Mr. Rivo agreed to give the District fee simple
title to that property in exchange for $1.4 million, the circuit court entered an agreed judgment
order to that effect on March 6, 2003, and Mr. Rivo subsequently received the funds, less
$50,000 that was retained in an escrow account and was to be paid when Mr. Rivo finally
vacated the property.
¶7 Other property owners who had not entered into settlement agreements opposed the
condemnation of their properties. They argued, successfully, that the District never had legal
authority to condemn any of the relevant properties because the board had not properly
adopted the necessary ordinance. See, e.g., Forest Preserve District v. First National Bank of
Evergreen Park, No. 1-04-1536 (2008) (unpublished order under Illinois Supreme Court Rule
23). On October 27, 2003—in light of the success these other property owners had in opposing
condemnation of their properties—Mr. Rivo petitioned for relief from the agreed judgment
order entered in this matter, pursuant to section 2-1401 of the Code of Civil Procedure (Code).
735 ILCS 5/2-1401 (West 2004).
¶8 Mr. Rivo was represented by Mr. Bedell in the section 2-1401 proceeding, pursuant to a
retainer agreement executed in October 2003. With respect to the scope of Mr. Bedell’s
representation, the retainer agreement provided that Mr. Bedell’s representation of Mr. Rivo
would be “limited to seeking post judgment relief through the filing and prosecuting [of] a
petition to vacate the settlement and judgment entered against you under 735 ILCS 5/2-1401.”
With respect to Mr. Bedell’s compensation, the retainer agreement provided that Mr. Bedell
would be paid “a non-refundable $1,200.00 retainer and that in the event of recovery, whether
by settlement or trial, I will be paid 20% of the amount recovered. (The $1,200 will be
deducted from the 20% contingency fee in the event of recovery.) If there is no recovery, you
owe me no more fee than the retainer you paid.” Mr. Rivo was also responsible for the payment
of all “costs associated with this matter.” On July 22, 2009, a written notice of attorney’s lien
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detailing the contingency provision contained in the retainer agreement was served by hand
delivery upon the District’s general counsel.
¶9 The parties ultimately filed cross-motions for summary judgment on the section 2-1401
petition. In an order entered on February 15, 2012, the circuit court granted summary judgment
in favor of Mr. Rivo, denied the District’s cross-motion, vacated the agreed judgment order
previously entered on March 6, 2003, and reinstated the condemnation case. The District
attempted to appeal from this decision, but the appeal was dismissed for lack of appellate
jurisdiction. Forest Preserve District v. Continental Community Bank & Trust Co., No.
1-12-2211 (Sept. 6, 2012) (unpublished summary order under Illinois Supreme Court Rule
23(c)).
¶ 10 Thereafter, on October 10, 2012, Mr. Bedell filed both a petition for attorney fees and
costs, as well as a motion to withdraw as Mr. Rivo’s attorney. In the petition for fees, Mr.
Bedell contended that he had spent nearly 300 hours representing Mr. Rivo in the section
2-1401 proceedings, his usual and customary rate during that time ranged between $250 and
$350 per hour, and $1546.50 in costs had been incurred. Mr. Bedell therefore sought an award
of $93,116.50 in fees and costs. The fee petition did not reference or rely on the contingency
fee agreement contained in the retainer agreement in any way.
¶ 11 In the motion to withdraw, Mr. Bedell asserted that—in light of the summary judgment
granted in favor of Mr. Rivo on the section 2-1401 petition—he had satisfied his obligations to
Mr. Rivo under the original retainer agreement. Mr. Bedell also contended that, while he had
consulted with Mr. Rivo regarding the prosecution of additional damages claims against the
District, Mr. Rivo was unwilling to follow Mr. Bedell’s advice and there had been a
breakdown in communication between attorney and client. Noting these facts and his interest
in the outcome of his fees petition, Mr. Bedell asked the circuit court for leave to withdraw as
Mr. Rivo’s attorney and leave to file an appearance on his own behalf with respect to the fee
petition. Mr. Bedell’s motion to withdraw was granted on October 30, 2012.
¶ 12 Mr. Rivo subsequently obtained new counsel to represent him in prosecuting various
claims against the District. Those claims included counterclaims stemming from the
condemnation proceedings, including allegations that Mr. Rivo was entitled to millions of
dollars in damages and to reacquire title from the District. Mr. Rivo’s new counsel also filed a
motion for summary judgment on the District’s complaint for condemnation.
¶ 13 In response, the District filed a combined motion which sought to (1) vacate the prior
ruling granting Mr. Rivo’s section 2-1401 petition, (2) strike Mr. Rivo’s counterclaims, and (3)
deny Mr. Rivo’s motion for summary judgment in this condemnation action.
¶ 14 These motions were heard in 2013. In a three-part order entered on April 18, 2013, the
circuit court denied the District’s combined motion to vacate the prior ruling granting Mr.
Rivo’s section 2-1401 petition and to strike Mr. Rivo’s counterclaims and granted Mr. Rivo’s
motion for summary judgment on the condemnation complaint.
¶ 15 The District filed an appeal from the denial of its motion to vacate the prior ruling granting
the section 2-1401 petition. However, this court once again dismissed the District’s appeal for
lack of appellate jurisdiction. Forest Preserve District, 2014 IL App (1st) 131652-U, ¶ 10.
¶ 16 Upon remand, Mr. Rivo filed a motion seeking a finding of enforceability and appealability
with respect to the summary judgment ruling, pursuant to Illinois Supreme Court Rule 304(a)
(eff. Feb. 26, 2010), while the District filed a motion seeking reconsideration of the grant of
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summary judgment in favor of Mr. Rivo on its condemnation complaint. In an order entered on
June 26, 2015, the circuit court denied the District’s motion and granted Mr. Rivo’s motion,
finding that there was no just reason to delay appeal of “[t]he 4-8-13 order granting summary
judgment.” The District appealed, and this court concluded that the circuit court properly
granted summary judgment in favor of Mr. Rivo on the condemnation complaint. Forest
Preserve District v. Continental Community Bank & Trust Co., 2016 IL App (1st) 152145-U.
The District filed a petition for leave to appeal that decision with our supreme court which,
pursuant to a settlement agreement discussed below, was subsequently withdrawn on April 11,
2017.
¶ 17 Meanwhile, while Mr. Bedell’s original petition for fees was stricken for failure to attach
and account for the retainer agreement, he was granted leave to file an amended petition. The
operative amended fee petition was filed on September 15, 2015. Therein, Mr. Bedell
specifically relied upon section 10-5-70(a) of the Eminent Domain Act (Act) (735 ILCS
30/10-5-70(a) (West 2014)), which provides for the award of fees and costs where it is
determined that a plaintiff “cannot acquire the property by condemnation” and the defendant
incurs such fees and costs “in defense of the complaint.” He also primarily relied upon the
retainer agreement to support a claim for fees and costs. According to Mr. Bedell’s amended
petition, the retainer agreement entitled him to a fee of 20% of any amount recovered. Further,
Mr. Bedell asserted:
“When this Court granted the 2-1401 petition and vacated the order awarding the
Defendant’s property to the District, Bedell recovered for the Defendant his property.
As a basis of the fees to be awarded under the Act, the Court should award the fee due
from Defendant to Bedell under the fee agreement: using the conservative value of the
Defendant’s property, which the District determined in 2003 to be $1,400,000, Bedell
is entitled to a fee of $280,000 (minus $1,200 already paid as retainer). Costs of
$1,546.50 should also be awarded under the fee agreement.”
In the alternative, the amended petition sought an award of fees and costs, to be calculated on
an hourly basis as it was in the original fee petition, “if [the] Court determines that Bedell
should not be paid in accordance with his fee agreement.”
¶ 18 On September 30, 2015, the District filed a motion to dismiss the amended fee petition.
Therein, the District asserted—inter alia—that Mr. Bedell was not entitled an award of fees as
requested in the fee petition because (1) he was not entitled to any attorney fees under the
language of the Act, as he only represented Mr. Rivo in the section 2-1401 petition, (2) his
claim for a fee based upon the contingency fee provision in the retainer agreement was
improper where Mr. Bedell was a terminated attorney and could therefore only recover based
upon a theory of quantum meruit, and (3) even if the contingency fee provision was relevant to
the calculation of any fee award, that provision was not yet triggered because title to the
property had never been returned to Mr. Rivo, thus there had not been any “recovery.”
¶ 19 In a written order entered on November 6, 2015, the circuit court denied the District’s
motion to dismiss and granted Mr. Bedell’s amended petition for fees. The order specifically
held that “judgment is entered against [the District] in the amount of $280,000 for attorneys
fees and $1,546.50 in costs in favor of Gregory A. Bedell.” A judgment for fees was also
entered in favor of Mr. Rivo’s new attorneys under section 10-5-70(a) of the Act. While the
District previously appealed from the judgment entered in favor of Mr. Bedell, that appeal was
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dismissed for lack of appellate jurisdiction. Forest Preserve District v. Continental Community
Bank & Trust Co., 2017 IL App (1st) 153512-U.
¶ 20 Meanwhile, this matter continued in the circuit court with respect to the counterclaims filed
by Mr. Rivo’s new counsel. In open court on December 9, 2016, the parties spread of record
the general terms of a settlement agreement that had been reached with respect to the
counterclaims. The agreement was subsequently reduced to a written settlement agreement
executed on February 6, 2017. As relevant to this appeal, and subject to the approval of the
District’s board, the written settlement agreement provided that:
(1) The parties intended to settle all claims between them, with the specific
exception of the judgment entered in favor of Mr. Bedell for attorney fees and costs,
without any admission of liability.
(2) As full settlement of Mr. Rivo’s counterclaims, the District would pay Mr. Rivo
$1,650,000, plus whatever funds remained in the escrow account originally established
in connection with the original agreed judgment order entered in 2003, subject to
certain conditions that were contained in paragraph 17 of the settlement agreement
(discussed below).
(3) The settlement check would be made payable to Mr. Rivo and his current
attorneys.
(4) This payment would be paid as “additional just compensation” for the “taking”
of the property, with the settlement agreement acknowledging that summary judgment
on the District’s condemnation complaint had been previously granted in Mr. Rivo’s
favor and upheld on appeal. Upon payment Mr. Rivo would execute a quit claim deed
conveying the property to the District.
(5) Specifically including the judgment previously entered in favor of Mr. Rivo’s
new attorneys and specifically excluding the judgment previously entered in favor of
Mr. Bedell, Mr. Rivo and the District waived any claims against each other and would
bear their own fees and costs.
(6) The parties would move to vacate the judgment entered in favor of Mr. Rivo’s
new attorneys, and agreed to the entry of a “Stipulated Order of Dismissal with
Prejudice” with respect to the instant case, with the exception of any issues regarding
the judgment entered in favor of Mr. Bedell. The District would also move to dismiss
its petition for leave to appeal from this court’s prior order affirming summary
judgment in favor of Mr. Rivo on the condemnation complaint filed by the District.
¶ 21 In addition, as noted above, the settlement agreement contained further relevant provisions
in paragraph 17, which provided:
“Upon approval of this Agreement by the FPD Board, and in the event that a final
judgment is rendered in favor of Bedell and against the FPD for Bedell’s attorneys fees
in the instant matter, such judgment and interest shall be paid with the funds on deposit
in the Escrow Account, as follows: If such judgment equals or exceeds the amount on
deposit in the Escrow Account, the funds on deposit shall be used first (prior to FPD
funds) to satisfy the judgment. If the amount on deposit in the Escrow Account exceeds
the judgment for fees, the judgment for fees shall be paid from the Escrow Account and
any excess remaining on deposit in the Escrow Account after payment of the judgment
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for fees shall be paid by check to [Mr. Rivo and his current attorneys] as the remainder
of the Settlement Award.”
¶ 22 In an affidavit filed in connection with the settlement agreement, it was averred that the
escrow account contained a total balance of $61,813.41 as of February 10, 2017.
¶ 23 On February 7, 2017, the District’s board approved the settlement agreement negotiated by
the parties. Pursuant to that agreement, the court entered a “Stipulated Order of Dismissal with
Prejudice” on February 10, 2017, which in relevant part provided (1) this case was dismissed
on the merits and with prejudice, (2) the award of attorney fees entered in favor of Mr. Rivo’s
new attorneys was vacated, (3) with the exception of the judgment entered in favor of Mr.
Bedell, the parties would bear their own costs and fees, (4) the court made a finding that there
was no just reason to delay the enforcement or appeal of the November 6, 2015, judgment
entered in favor of Mr. Bedell, and (5) the circuit court retained jurisdiction to enforce the
parties’ settlement agreement.
¶ 24 However, in the days leading up to the entry of the dismissal order, the District filed a
motion to declare Mr. Bedell’s attorney’s lien invalid, in which the District contended that the
lien had not been properly served and, even if it was, such a lien was not enforceable against a
public body such as the District. The District also filed a counterclaim for interpleader, in
which the District asserted that, while Mr. Rivo claimed he was owed the entire settlement
award, Mr. Bedell asserted that he had a contingency lien on that award pursuant to the
attorney’s lien he had previously served on the District. After further contending that it was a
neutral, disinterested stakeholder with respect to the apportionment of the settlement award,
the District asked to be allowed to tender the payment of the settlement award to the court and
be dismissed from any further liability with respect to the settlement award.
¶ 25 In response, Mr. Rivo filed both a motion to enforce the settlement agreement and a motion
to dismiss the District’s interpleader counterclaim. With respect to the former, Mr. Rivo
asserted that the District’s attempt to file a counterclaim for interpleader and deposit the
settlement award with the court constituted an anticipatory breach of the settlement agreement.
With respect to the motion to dismiss, Mr. Rivo contended—inter alia—that the District was
not a neutral stakeholder in light of the obligations it undertook with respect to Mr. Bedell’s
fees in the settlement agreement and that the District’s proposed course of action would in fact
violate the terms of the settlement agreement.
¶ 26 On February 21, 2017, the circuit court (1) granted the motion to dismiss the District’s
counterclaim for interpleader, (2) granted Mr. Rivo’s motion to enforce the settlement
agreement, and (3) denied the motion to declare Mr. Bedell’s lien invalid. In the course of
making these rulings, the circuit court concluded—inter alia—that Mr. Bedell’s lien would not
attach to the money paid to Mr. Rivo under the settlement agreement. Mr. Bedell filed a motion
for clarification or reconsideration as to that finding, but that motion was denied.
¶ 27 Thereafter, Mr. Bedell filed a petition to adjudicate and enforce his attorney’s lien on
March 2, 2017. Therein, he asserted that his efforts “recovered” the property for Mr. Rivo, that
this recovery could be directly traceable to the $1.65 million settlement award the District was
to pay Mr. Rivo, and that Mr. Bedell should therefore have a lien on that award for the payment
of his contingency fee in excess of $280,000. After concluding that title to the property was
never actually returned to Mr. Rivo, the circuit court essentially concluded that Mr. Bedell did
not actually recover anything for Mr. Rivo such that Mr. Bedell could claim a lien on the
settlement award pursuant to the attorney’s lien.
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¶ 28 As noted above, in its current appeal (No. 1-17-0680), the District seeks (1) relief from a
judgment for attorney fees and costs originally awarded to Mr. Bedell on November 6, 2015,
and (2) reversal of the circuit court’s orders denying the District leave to file a counterclaim for
interpleader and denying its motion to declare the attorney lien asserted by Mr. Bedell invalid.
In his cross-appeal, Mr. Bedell seeks reversal of the circuit court’s denial of his petition to
adjudicate and enforce his attorney’s lien against the settlement award. Finally, in Mr. Bedell’s
separate appeal (No. 1-17-0871), Mr. Bedell again seeks reversal of the circuit court’s denial of
his petition to adjudicate and enforce his attorney’s lien, with the appeal having been filed in
the alternative to the cross-appeal should this court view the matters “are more properly
considered as a separate appeal.” In an order entered by this court on May 8, 2017, these
appeals were consolidated.
¶ 29 II. ANALYSIS
¶ 30 On appeal, the parties present a host of arguments supporting their respective positions on
the many issues raised in these consolidated appeals. However, with respect to the District’s
appeal, while we affirm the circuit court’s decision to award Mr. Bedell attorney fees and costs
under section 10-5-70(a) of the Act, we vacate the resulting judgment only as to the amount of
the award and remand for a recalculation of the proper amount of that award under a theory of
quantum meruit. This conclusion proves to be dispositive of these appeals as, in light of our
resolution of this issue, all of the remaining issues raised by the parties on appeal are rendered
moot.
¶ 31 As our supreme court has long recognized, Illinois follows the “American rule,” which
prohibits prevailing parties from recovering their attorney fees from the losing party absent an
express statutory or contractual provision. Sandholm v. Kuecker, 2012 IL 111443, ¶ 64.
Accordingly, statutes or contracts that allow for such fees are in derogation of the common law
and must be strictly construed. Id.; Powers v. Rockford Stop-N-Go, Inc., 326 Ill. App. 3d 511,
515 (2001). “That is, we construe the fee-shifting provision ‘to mean nothing more—but also
nothing less—than the letter of the text.’ ” Bright Horizons Children’s Centers, LLC v.
Riverway Midwest II, LLC, 403 Ill. App. 3d 234, 255 (2010) (quoting Erlenbush v. Largent,
353 Ill. App. 3d 949, 952 (2004)). Construing a fee-shifting statute is an exercise in statutory
construction. The rules applicable to this task are well-established and were recently outlined
in Hendricks v. Board of Trustees of the Police Pension Fund, 2015 IL App (3d) 140858, ¶ 14:
“The fundamental rule of statutory interpretation is to ascertain and give effect to
the intent of the legislature. [Citation.] The most reliable indicator of that intent is the
language of the statute itself. [Citation.] In determining the plain meaning of statutory
language, a court will consider the statute in its entirety, the subject the statute
addresses, and the apparent intent of the legislature in enacting the statute. [Citations.]
If the statutory language is clear and unambiguous, it must be applied as written,
without resorting to further aids of statutory interpretation. [Citation.] A court may not
depart from the plain language of the statute and read into it exceptions, limitations, or
conditions that are not consistent with the express legislative intent.”
¶ 32 Thus, it is well recognized that whether a party may recover attorney fees and costs
pursuant to a specific statutory provision is a question of law. Grate v. Grzetich, 373 Ill. App.
3d 228, 231 (2007). The circuit court’s resolution of such a question is therefore subject to
de novo review. Id. However, the circuit court’s application of such statutory language to the
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facts of a particular case is reviewed for an abuse of discretion. See Peleton, Inc. v. McGivern’s
Inc., 375 Ill. App. 3d 222, 226 (2007). An abuse of discretion occurs when no reasonable
person could take the view adopted by the circuit court. Fennell v. Illinois Central R.R. Co.,
2012 IL 113812, ¶ 21. Thus, whether the court has authority to grant attorney fees is a question
of law we review de novo, whereas a court’s decision to as to whether to award authorized fees
is reviewed for an abuse of discretion. Spencer v. Di Cola, 2014 IL App (1st) 121585, ¶ 35.
¶ 33 In light of the above, we first address the District’s contention that section 10-5-70(a) of the
Act does not grant the circuit court authority to award attorney fees and costs for the work Mr.
Bedell did on Mr. Rivo’s behalf. The relevant statutory language provides that, with respect to
a condemnation complaint, “if the final judgment is that the plaintiff cannot acquire the
property by condemnation, the court shall, upon the application of the defendants or any of
them, enter an order in the action for the payment by the plaintiff of all costs, expenses, and
reasonable attorney fees paid or incurred by the defendant or defendants in defense of the
complaint, as upon the hearing of the application shall be right and just, and also for the
payment of the taxable costs.” 735 ILCS 30/10-5-70(a) (West 2014).
¶ 34 The District specifically contends that this statutory language clearly authorizes an award
of fees and costs only by the circuit court presiding over a condemnation complaint, only where
the final judgment entered by that court concludes that the plaintiff cannot acquire the property
by condemnation, and then only for fees and costs actually paid or incurred by a condemnation
defendant for actions taken both in defense of the condemnation complaint and within the
condemnation proceeding itself. Noting that Mr. Bedell only performed work on Mr. Rivo’s
behalf in the context of the section 2-1401 proceeding, that section 2-1401 proceedings are
generally considered new, separate proceedings, and that section 2-1401 itself contains no
provision for the award of attorney fees, the District therefore contends that the circuit court
improperly concluded that Mr. Bedell’s amended fee petition could satisfy these statutory
requirements. The District also asserts that the fees and costs were awarded to Mr. Bedell not
within the condemnation proceedings, but rather within the section 2-1401 proceeding.
¶ 35 With respect to these contentions, it is indeed undisputed that all of Mr. Bedell’s work on
Mr. Rivo’s behalf took place within the context of the section 2-1401 proceeding.
Furthermore, it is also true that the filing of a petition pursuant to section 2-1401 of the Code,
which provides a procedure by which final orders, judgments, and decrees may be vacated
after 30 days from their entry (735 ILCS 5/2-1401 (West 2014); Smith v. Airoom, Inc., 114 Ill.
2d 209, 220 (1986)), is generally considered to constitute a new proceeding and not a
continuation of the original cause of action (Sarkissian v. Chicago Board of Education, 201 Ill.
2d 95, 102 (2002); Mills v. McDuffa, 393 Ill. App. 3d 940, 946 (2009)). Finally, we also agree
that section 2-1401 of the Code does not, itself, contain a fee-shifting provision. See 735 ILCS
5/2-1401 (West 2014). However, while we agree with these assertions made by the District, we
do not agree with the remainder of its contentions or its ultimate conclusion regarding the
circuit court’s authority to award fees and costs to Mr. Bedell under section 10-5-70(a) of the
Act.
¶ 36 For example, while the District contends that the ultimate merits of its condemnation
complaint and the award of fees to Mr. Bedell were issues addressed within the section 2-1401
proceeding in this matter, these assertions are simply incorrect. Here, summary judgment was
entered in Mr. Rivo’s favor with respect to the section 2-1401 petition on February 15, 2012,
pursuant to an order in which the circuit court granted summary judgment in favor of Mr. Rivo,
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denied the District’s cross-motion, vacated the agreed judgment order previously entered on
March 6, 2003, and reinstated the condemnation case. See Forest Preserve District v.
Continental Community Bank & Trust Co., 2014 IL App (1st) 131652-U (noting that pursuant
to the 2012 order, the condemnation case was reopened and reinstated).
¶ 37 It was only thereafter, well after the condemnation case was reinstated, that the circuit
court presiding over the condemnation case (1) granted summary judgment on the District’s
condemnation complaint in favor of Mr. Rivo on April 18, 2013, (2) made that ruling final and
appealable on June 26, 2015, and (3) granted Mr. Bedell’s amended fee petition on November
6, 2015, an order made final and appealable upon the entry of the stipulated order of dismissal
on February 7, 2017. Thus, the record clearly establishes that, in full compliance with section
10-5-70(a) of the Act, the court presiding over the condemnation case entered both a final
judgment finding that the District cannot acquire Mr. Rivo’s property by condemnation and,
thereafter, an order in that same action for the payment of Mr. Rivo’s attorney fees and costs.
See 735 ILCS 30/10-5-70(a) (West 2014).
¶ 38 Furthermore, we also reject the District’s contention that, because Mr. Bedell represented
Mr. Rivo solely in the context of the separate section 2-1401 proceeding, an award for Mr.
Bedell’s fees and costs is not authorized by the statute because they were not incurred by Mr.
Rivo “in defense” of the condemnation complaint, and within the condemnation proceeding, as
the District contends is required by section 10-5-70(a) of the Act.
¶ 39 It does not appear that this specific question—i.e., whether section 10-5-70(a) of the Act
allows for an award of fees and costs incurred in connection with a section 2-1401 proceeding
arising out of a condemnation proceeding—has previously been addressed by the appellate
court. However, we do find guidance in prior decisions that have addressed the propriety of an
award of fees and costs incurred in appeals from circuit court decisions in condemnation cases.
¶ 40 In Department of Public Works & Buildings v. Lanter, 15 Ill. 2d 33, 39-40 (1958), our
supreme court addressed whether a prior, but substantially similar, version of section
10-5-70(a) of the Act authorized the payment of the defendants’ attorney fees that were
incurred in connection with the defense of an appeal filed by a public entity from the circuit
court’s dismissal of a condemnation complaint. Our supreme court first recognized that the
terms of the substantially similar prior version of section 10-5-70(a) of the Act “do not restrict
the attorney fees payable to those incurred in the trial court.” Id. at 40. Our supreme court then
concluded that “[t]he plain intent of that provision is to pay defendants for all reasonable
attorney fees incurred in defense of the condemnation petition ***. Where that defense must be
made, not merely in the trial court, but also in a reviewing court because the Department has
taken an appeal to that court, and defendant has no choice in the matter, then the attorney fees
incurred in connection with that appellate court proceeding must be deemed to be an integral
part of the defense of the condemnation petition, and should be recoverable under the statute.”
Id. Our supreme court further reasoned that “[s]uch an interpretation in no way encourages
prolonged condemnation litigation, yet fairly compensates defendant for attorney fees if he is
compelled to defend beyond the trial court; and at the same time it is clearly consistent with the
terms of the statute.” Id. at 40-41.
¶ 41 Thereafter, in Village of Cary v. Trout Valley Ass’n, 297 Ill. App. 3d 63, 64-65 (1998), the
appellate court considered whether another prior, but substantially similar, version of section
10-5-70(a) of the Act authorized an award of attorney fees and costs incurred by a defendant in
connection with the defendant’s own appeal from the circuit court’s denial of a motion to
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dismiss a condemnation complaint. In finding that the statute did authorize such an award, and
relying on Lanter, the court first noted that the prior, substantially similar version of section
10-5-70(a) “in no way restricts the property owner’s right to recover appellate fees and
expenses.” Id. at 68.
¶ 42 Then, the court reasoned that the critical inquiry is whether the defendant was “ ‘compelled
to defend beyond the trial court’ ” (id. at 69 (quoting Lanter, 15 Ill. 2d at 40-41)) such that “the
appeal was taken ‘in defense of the complaint’ ” (id. at 68 (quoting 735 ILCS 5/7-123(a) (West
1996) (now 735 ILCS 30/10-5-70(a)))). Ultimately, the appellate court concluded that because
the “only means of protecting its property from an unlawful condemnation was to take the
appeal,” the defendant’s appeal in that case “was necessary to its defense of the ***
condemnation petition.” Id. at 69. Therefore, the court concluded that the defendant was
“entitled to recover all costs, expenses, and reasonable attorney fees incurred in prosecuting
that appeal.” Id.¶ 43 Here, the District’s condemnation complaint was originally resolved by the final, agreed
judgment order entered in 2003. More than 30 days later, but less than 2 years thereafter, Mr.
Rivo learned that the District never had legal authority to condemn his property because its
board had not properly adopted the necessary ordinance. In such circumstances, Mr. Rivo’s
only means of protecting his property from an unlawful condemnation was to file a section
2-1401 petition. See 735 ILCS 5/2-1401 (West 2014) (containing the sole procedure in the
Code by which final orders, judgments, and decrees may be vacated after 30 days, but less than
2 years, from their entry).
¶ 44 A section 2-1401 proceeding does indeed represent a new proceeding and not a
continuation of the original cause of action. However, the above authority clearly supports our
conclusion that such a proceeding—being one defendant was compelled to undertake to
protect his property—is still one prosecuted in defense of the condemnation complaint despite
the fact that it reaches beyond the original circuit court condemnation proceedings. Indeed,
because the plain language of section 10-5-70(a) does “not restrict the attorney fees payable to
those incurred in the trial court” (Lanter, 15 Ill. 2d at 40), precluding condemnation defendants
such as Mr. Rivo from recovering for fees and costs incurred in successful section 2-1401
proceedings would improperly depart from the plain language of the statute and read into it
exceptions, limitations, or conditions that are not consistent with the express legislative intent
(Hendricks, 2015 IL App (3d) 140858, ¶ 14). In contrast, interpreting section 10-5-70(a) as we
do here construes the “fee-shifting provision ‘to mean nothing more—but also nothing
less—than the letter of the text.’ ” Bright Horizons, 403 Ill. App. 3d at 255 (quoting Largent,
353 Ill. App. 3d at 952).
¶ 45 Thus, we conclude that the circuit court properly concluded that Mr. Bedell’s work in the
section 2-1401 proceeding represented costs, expenses, and reasonable attorney fees paid or
incurred by Mr. Rivo in defense of the condemnation complaint filed by the District, such that
it was compensable under section 10-5-70(a) of the Act.
¶ 46 Having found that the circuit court had the authority to enter an award of fees and costs for
Mr. Bedell’s work, we now turn to the question of whether the amount of that award
constituted an abuse of discretion.
¶ 47 In this case, Mr. Bedell’s amended fee petition primarily asserted that “the Court should
award the fee due from Defendant to Bedell under the [contingency] fee agreement: using the
conservative value of the Defendant’s property, which the District determined in 2003 to be
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$1,400,000, Bedell is entitled to a fee of $280,000 (minus $1,200 already paid as retainer).
Costs of $1,546.50 should also be awarded under the fee agreement.” In a written order entered
on November 6, 2015, the circuit court granted Mr. Bedell’s amended petition for fees and
costs and pronounced that “judgment is entered against [the District] in the amount of
$280,000 for attorneys fees and $1,546.50 in costs in favor of Gregory A. Bedell.” 1 Thus, in
2015, the circuit court granted an award of fees and costs premised upon the contingency fee
provision in the retainer agreement executed in 2003, despite the fact that, in October 2012,
Mr. Bedell had withdrawn as Mr. Rivo’s attorney. We find this to have been an abuse of
discretion, as it improperly compensated Mr. Bedell based upon a contingency fee agreement
that was no longer in force.
¶ 48 When an attorney-client relationship that was originally established under a contingent fee
contract terminates, the contract no longer exists and neither party can therefore seek to
enforce the terms of the nonexistent contract. McGill v. Garza, 378 Ill. App. 3d 73, 76 (2007);
Kannewurf v. Johns, 260 Ill. App. 3d 66, 75-76 (1994); Leoris & Cohen, P.C. v. McNiece, 226
Ill. App. 3d 591, 595-96 (1992). Because Mr. Rivo was no longer obligated to pay, and Mr.
Bedell was no longer entitled to be compensated, pursuant to the terminated contingency fee
agreement between Mr. Rivo and Mr. Bedell, such a contingent fee was not actually paid or
incurred “in defense” of the condemnation complaint. It was therefore improper for the circuit
court to rely solely upon that agreement as a basis for calculating the award of fees under
section 10-5-70(a) of the Act.
¶ 49 However, when the attorney has withdrawn and the court finds the attorney justifiably
withdrew from the case, then the attorney is entitled to proceed on a claim to recover fees based
on quantum meruit. McGill, 378 Ill. App. 3d at 76-77; Kannewurf, 260 Ill. App. 3d at 73;
Leoris & Cohen, P.C., 226 Ill. App. 3d at 597; Reed Yates Farms, Inc. v. Yates, 172 Ill. App. 3d
519, 533 (1988). Here, Mr. Bedell’s motion to withdraw contended that his request was based
upon a disagreement as to the strategy going forward with respect to seeking damages from the
District and a breakdown in communication. Courts have recognized these to be justifiable
reasons to withdraw, entitling the withdrawing attorney to recover reasonable fees based on
quantum meruit. See McGill, 378 Ill. App. 3d at 76-77 (collecting cases). In this case,
therefore, Mr. Rivo did in fact actually incur fees and costs “in defense” of the condemnation
complaint—albeit payable to Mr. Bedell only on a theory of quantum meruit—such that an
award of fees and costs to Mr. Bedell was proper.
¶ 50 Therefore, while we affirm the circuit court’s decision to award Mr. Bedell a judgment for
fees and cost under section 10-5-70(a) of the Act, we vacate that part of the judgment
determining the amount of fees and costs and remand for a recalculation of the proper amount
of that award under a theory of quantum meruit. Under the theory of quantum meruit, the trial
court is literally to award the attorney “ ‘as much as he deserves.’ ” Kannewurf, 260 Ill. App.
3d at 74 (quoting Lee v. Ingalls Memorial Hospital, 232 Ill. App. 3d 475, 478 (1992)). We
remand because the circuit court has “broad discretion in matters of attorney fees due to the
advantage of close observation of the attorney’s work and the trial judge’s deeper
understanding of the skill and time required in the case.” Kannewurf, 260 Ill. App. 3d at 74. In
making this determination, the circuit court should “assess all of the relevant factors, including
The circuit court’s judgment did not specifically account for the $1200 retainer already paid to Mr.
1
Bedell.
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the time and labor required, the attorney’s skill and standing, the nature of the cause, the
novelty and difficulty of the subject matter, the attorney’s degree of responsibility in managing
the case, the usual and customary charge for that type of work in the community, and the
benefits resulting to the clients.” (Emphasis omitted.) Id. The circuit court should also ensure
that both the $1200 retainer already paid by Mr. Rivo to Mr. Bedell and the provisions
contained in paragraph 17 of the February 6, 2017, settlement agreement are accounted for in
its analysis.
¶ 51 Finally, while the parties have raised a number of other issues, we find our resolution of the
above matters renders them moot. See In re Jonathan P., 399 Ill. App. 3d 396, 400 (2010).
(“ ‘An appeal is considered moot where it presents no actual controversy or where the issues
involved in the trial court no longer exist because intervening events have rendered it
impossible for the reviewing court to grant effectual relief to the complaining party.’
[Citation.] Generally, courts of review do not decide moot questions, render advisory opinions,
or consider issues where the result will not be affected regardless of how those issues are
decided.”).
¶ 52 As noted above (supra ¶¶ 24, 28), all of the other issues raised on appeal challenge various
rulings made by the circuit court that fundamentally concern the proper disposition of the
attorney lien asserted by Mr. Bedell against the settlement award. However, Mr. Bedell’s
assertion of his attorney lien was always premised upon his purported right to a lien based on
the contingency fee provision of the retainer agreement. Because we have already concluded
that the retainer agreement no longer exists and that Mr. Bedell can therefore no longer seek to
enforce the terms of the nonexistent contract, all of the circuit court’s rulings with respect to
the proper disposition of such a purported lien are moot.
¶ 53 III. CONCLUSION
¶ 54 For the foregoing reasons, while we affirm the circuit court’s decision to award Mr. Bedell
fees and cost under section 10-5-70(a) of the Act, we vacate the resulting judgment only as to
the amount of the award and remand for a recalculation of the proper amount of that award
under a theory of quantum meruit.
¶ 55 Affirmed in part and vacated in part.
¶ 56 Cause remanded with directions.
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