The Forest Preserve District Of Cook County v. Continental Community Bank And Trust Company
98 N.E.3d 459
Ill. App. Ct.2018Background
- The Forest Preserve District (District) sought to condemn 12.5 acres held in trust for Jack Rivo; an agreed 2003 judgment conveyed the property to the District for $1.4M with $50,000 held in escrow.
- Rivo filed a 2-1401 petition (2003 retainer: Bedell 20% contingency, $1,200 retainer) after learning the District lacked a proper ordinance; Bedell represented Rivo in the 2-1401 proceeding and later withdrew in 2012.
- The circuit court granted Rivo’s 2-1401 petition (vacating the 2003 judgment) and later (2013) granted summary judgment in Rivo’s favor on the condemnation complaint; appeals followed with various jurisdictional dismissals.
- Bedell sought attorney fees under 735 ILCS 30/10-5-70(a) (Eminent Domain Act), initially claiming $280,000 (20% of $1.4M) plus costs; the circuit court awarded $280,000 and costs in 2015.
- Parties later settled Rivo’s counterclaims for $1.65M (subject to escrow payment rules); the District moved to interplead and to invalidate Bedell’s lien; the court enforced the settlement but held Bedell’s contingency contract had terminated and his lien issues became contested.
- On appeal the court: affirmed that the statute authorized an award for Bedell’s work, but vacated the amount and remanded for recalculation under quantum meruit because Bedell had withdrawn and the contingency contract was no longer enforceable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 735 ILCS 30/10-5-70(a) authorizes fees for work performed in a 2-1401 proceeding arising from a condemnation action | District: statute only covers fees "in defense" of condemnation within the condemnation proceeding; 2-1401 is a new, separate proceeding | Bedell/Rivo: fees for work that was necessary to protect property from unlawful condemnation are recoverable under the statute | Held: Statute authorizes fees for work in the 2-1401 proceeding because that work was compelled to defend the condemnation; Lanter and precedent support including proceedings beyond the trial court |
| Whether Bedell could be paid under the original 20% contingency after he withdrew as counsel before final recovery | District: contingency not enforceable because Bedell was a terminated attorney; no enforceable contingency payment was "incurred" | Bedell: contingency agreement entitled him to 20% of the value recovered (conservative $1.4M) | Held: Contingency contract terminated upon Bedell's withdrawal; awarding based on that unenforceable contract was an abuse of discretion |
| Proper measure of fees once contingency is unenforceable | District: (implicit) fees should not be based on contingency; recalculation needed | Bedell: alternatively requested hourly fees; argued value of recovery supports contingency amount | Held: Award remanded to circuit court to calculate reasonable fees under quantum meruit, accounting for time, skill, customary rates, benefits to client, $1,200 retainer, and settlement/escrow terms |
| Whether remaining appeals re: Bedell’s attorney lien and interpleader issues require resolution | District: sought leave to interplead and to invalidate Bedell’s lien | Bedell: sought enforcement of lien on settlement proceeds | Held: Because contingency contract is unenforceable and fees must be recalculated on quantum meruit, the lien/interpleader issues are rendered moot and need not be decided now |
Key Cases Cited
- Department of Public Works & Buildings v. Lanter, 15 Ill.2d 33 (1958) (statute covers reasonable fees incurred beyond trial court when compelled to defend condemnation)
- Village of Cary v. Trout Valley Ass'n, 297 Ill. App.3d 63 (1998) (defendant compelled to appeal to protect property; appellate fees recoverable under statute)
- Sandholm v. Kuecker, 2012 IL 111443 (2012) (American rule; fee-shifting statutes must be strictly construed)
- Kannewurf v. Johns, 260 Ill. App.3d 66 (1994) (when contingent-fee attorney withdraws, recovery is on quantum meruit)
- McGill v. Garza, 378 Ill. App.3d 73 (2007) (terminated contingent-fee counsel may recover reasonable fees via quantum meruit)