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

2017 IL App (1st) 170680Order filed: December 22, 2017
FIFTH DIVISION
Nos. 1-17-0680 and 1-17-0871 (consolidated)
______________________________________________________________________________
No. 1-17-0680 ) Appeal from the
) Circuit Court of
THE FOREST PRESERVE DISTRICT OF ) Cook County.
COOK COUNTY, ILLINOIS, a Body Corporate )
and Politic of the State of Illinois, )
)
Plaintiff and Respondent-Appellant and )
Cross Appellee, )
)
v. )
Nos. 15 L 50227
)
00 L 50726
CONTINENTAL COMMUNITY BANK AND TRUST )
(consolidated)
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 )
)
Honorable
(Greg Bedell, Fee Petitioner-Appellee and )
Kay M. Hanlon and
Cross-Appellant). )
Eileen O'Neill Burke,
______________________________________________ )
Judges Presiding.
)
No. 1-17-0871 )
)
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). )
Nos. 1-17-0680 and 1-17-0871 (consolidated)
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 Trust Agreement dated November 1, 1983, known as Trust No. 6173 (the 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’s fees and costs awarded to 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. 1-17-0680), 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
-2­
Nos. 1-17-0680 and 1-17-0871 (consolidated)
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.
¶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 of Cook County v. Continental Community Bank & Trust Co., No. 1-12-2211 (Sept. 6,
2012) (appeal dismissed for lack of jurisdiction); Forest Preserve District of Cook County v.
Continental Community Bank & Trust Co., 2014 IL App (1st) 131652-U (appeal dismissed for
lack of jurisdiction); Forest Preserve District of Cook County 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 of Cook County 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
-3­
Nos. 1-17-0680 and 1-17-0871 (consolidated)
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 of Cook County v. First National
Bank of Evergreen Park, Nos. 1-04-1536 and 1-04-3777 (consolidated) (2008) (unpublished
order under 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 (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 detailing the
-4­
Nos. 1-17-0680 and 1-17-0871 (consolidated)
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 of Cook County v. Continental Community Bank & Trust
Co., No. 1-12-2211 (Sept. 6, 2012).
¶ 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 $1,546.50 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
-5­
Nos. 1-17-0680 and 1-17-0871 (consolidated)
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) (Ill. S. Ct. R. 304(a) (eff. Jan. 1, 2015)), while the District filed a motion seeking
reconsideration of the grant of 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
-6­
Nos. 1-17-0680 and 1-17-0871 (consolidated)
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 that the
circuit court properly granted summary judgment in favor of Mr. Rivo on the condemnation
complaint. Forest Preserve District of Cook County 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 70(a) of the Eminent Domain Act (the 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 2-401 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.”
-7­
Nos. 1-17-0680 and 1-17-0871 (consolidated)
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 70(a) of the Act. While the District previously
appealed from the judgment entered in favor of Mr. Bedell, that appeal was dismissed for lack of
appellate jurisdiction. Forest Preserve District of Cook County 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
-8­
Nos. 1-17-0680 and 1-17-0871 (consolidated)
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”
-9­
Nos. 1-17-0680 and 1-17-0871 (consolidated)
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
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’s fees entered in favor of
Mr. Rivo’s new attorneys was vacated, (3) with the exception of the judgment entered in favor of
- 10 ­
Nos. 1-17-0680 and 1-17-0871 (consolidated)
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.
- 11 ­
Nos. 1-17-0680 and 1-17-0871 (consolidated)
¶ 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 in 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.
¶ 28 As noted above, in its current appeal (no. 1-17-0680), the District seeks: (1) relief from a
judgment for attorney’s 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. 1-17-0680), 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
- 12 ­
Nos. 1-17-0680 and 1-17-0871 (consolidated)
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 70(a) of the Eminent Domain 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 which 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:
- 13 ­
Nos. 1-17-0680 and 1-17-0871 (consolidated)
“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.
[Citation.]”
¶ 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 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, ¶ 34.
¶ 33 In light of the above, we first address the District’s contention that section 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
- 14 ­
Nos. 1-17-0680 and 1-17-0871 (consolidated)
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
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
- 15 ­
Nos. 1-17-0680 and 1-17-0871 (consolidated)
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 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 failure 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,
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 of Cook
County 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 70(a)
of the Act, the court presiding over the condemnation case entered both a final judgment finding
- 16 ­
Nos. 1-17-0680 and 1-17-0871 (consolidated)
that the District cannot acquire the 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 70(a) of the Act.
¶ 39 It does not appear that this specific question—i.e., whether section 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 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 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
- 17 ­
Nos. 1-17-0680 and 1-17-0871 (consolidated)
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
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 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 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 a prior version
of section 70(a) of the Act). 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.- 18 ­
Nos. 1-17-0680 and 1-17-0871 (consolidated)
¶ 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 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 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
- 19 ­
Nos. 1-17-0680 and 1-17-0871 (consolidated)
incurred by Mr. Rivo in defense of the condemnation complaint filed by the District, such that it
was compensable under section 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
$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 in 2012. 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);
1
The circuit court’s judgment did not specifically account for the $1,200 retainer already
paid to Mr. Bedell.
- 20 ­
Nos. 1-17-0680 and 1-17-0871 (consolidated)
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
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 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
- 21 ­
Nos. 1-17-0680 and 1-17-0871 (consolidated)
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 its determination, the circuit
court should “assess all of the relevant factors, including 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 client.”
(Emphasis omitted.) Id. The circuit court should also ensure that both the $1,200 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. [Citation.]”).
¶ 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
- 22 ­
Nos. 1-17-0680 and 1-17-0871 (consolidated)
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 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.
- 23 ­