*1 DeKING, TIMOTHY Plaintiff-Appellee, v. URBAN INVESTMENT AND al., (John DEVELOPMENT COMPANYet Lowrey, Respond- Defendants J. ent-Appellant). (1st Division)

First District No. 86 — 0013 Opinion May 4, 1987. P.J.,

QUINLAN, dissenting. *2 III, Chicago, appellant. for

Henry B. Vess of Myers, & Joseph Myers, Joseph, Jack and Michael R both of Susman Chicago, appellee. for

JUSTICE delivered the of the court: opinion O’CONNOR County This is an from orders of the circuit court of Cook appeal of venue change John J. for a denying respondent Lowrey’s request resulting to determining and that had no Lowrey from as counsel. The replaced principal a case in which he had been subject jurisdiction issue on is whether the court had matter appeal Stat. par. under the lien statute Rev. theory to claim fees on other adjudicate Lowrey’s right where did not assert a lien under the statute. Lowrey basis 7, 1980, on and on November Timothy DeKing injured April was His law- damages resulting filed suit to recover from that injury. 7, 1982, the at that time was John J. On yer Lowrey (Lowrey). April Associates, Anesi, Ozmon, & substituting court entered an order Lewin (Ozmon), granting plaintiff Ltd. for as counsel for and Lowrey plaintiff adding leave to file an amended additional defendant. complaint 23, 1985, on July assigned Judge Sep- On the case was Breen and 23, 1985, tember it was dismissed to a settlement pursuant $2,500,000. amount of 7, 1985, pre-

Pursuant to notice to on Ozmon Lowrey, October Hearing sented a lien. was adjudicate Lowrey’s attorney’s motion 28, 1985, granted set on the motion for and leave Lowrey October to file a on that filed response date. On October services rendered legal two count suit fees and costs requesting interference with Lowrey’s for tortious DeKing seeking recovery the exist- allege did not legal complaint The representation DeKing. lien. such adjudication ence of lien or seek the any attorney’s the attor At the on the motion to hearing October lien, petition a written verified Lowrey’s presented counsel ney’s of Civil Procedure 1001(a)(1) under section Code change of venue 2— 110, (I 1001(a)(1)), upon based 2— ll. settlement nego- in extensive judge participated fact that the trial had tiations and other suit aspects DeKing and that testimony the court would therefore be material to the issues in both motion to adjudicate the lien and in Lowrey’s suit for fees. pending contended that extensive would discovery be to determine the relative values of the services rendered the three law firms and that a percentage value should assigned to each.

The for a venue was denied and an order was entered requiring Lowrey present the court with a fee petition by November 1985. did not present petition, a fee but on No- 12 he lien, vember filed a that he response stating did not assert a he had a separate suit DeKing and his other lawyers, that the court had no jurisdiction adjudicate his lien.

At a second hearing on the motion to adjudicate the on No- vember counsel Lowrey’s asserted that even if there was no lien, there still might be fees due to Lowrey. The court agreed but stated that unless Lowrey proceeded suit, the present the court him deny any right fees. Lowrey refused to submit his claim court, for fees arguing issue before the court was the adjudication Lowrey’s rights under the attorney’s lien not whether he entitled to fees on other basis. rejected Lowrey’s arguments and issued an order which

provided part: in pertinent

“1. That John Attorney J. has no attorney’s lien rights in of any proceeds the of settlement of this cause or lien rights against cause; any parties to this That

2. John J. Attorney Lowrey is entitled to attor- any fees in ney’s to this cause or relationship right to claim at- any Anesi, the or torney’s plaintiff his Oz- attorneys, mon, Associates, Marcus, Ltd., Lewin & Ltd. and & Williams to having present any declined evidence as to fees which he any claims.” order, from the of 2 of the

Lowrey appeals entry paragraph con- tending that the court lacked matter under the at- subject jurisdiction lien torney’s any judgment statute to enter of an beyond adjudication 2 attorney’s agree lien. We and reverse of the order. paragraph Although original jurisdiction circuit courts have over all jus VI, ticiable matters art. it is (Ill. Const. sec. well settled statute, a gov when court’s to act is controlled the court is power by (Brown (1930), erned the rules of limited v. VanKeuren by jurisdiction. 118, 122, 1; People 340 Ill. 172 N.E. ex rel. Illinois Hu Department of man v. Park 122 Rights Arlington Corp. (1984), Race Track Ill. App. 517, 521, 505.) 3d 461 .2d the no legislature generally N.E has While

597 to hear a jurisdiction to limit a court’s constitutional power preclude or matter, legislature right having exists the creates a an when exception has de legislature or since the counterpart equity, no in common law v. Skil enacting (Skilling the matter the statute. justiciable by fined 213, 219, attorney’s 432 104 Ill. 3d ling (1982), App. this to the circuit court’s lien statute within squarely exception falls limited jurisdiction and therefore the court’s general jurisdiction de the to consider what the statute language the statute by fined as a matter. justiciable statute, the statute

Since the lien is creature attorney’s construed, establishing as authorizing the lien must be both to strictly its American (Haj lien and as the action for enforcement. v. com 362, 366.) strictly 261 Ill. who do not (1913), Attorneys Bottle (Cazalet the no v. 322 rights. with statute have lien Cazalet ply 105, 107, insufficient (notice ordinary Ill. 54 N.E.2d 61 mail App. by Alton, v. registered mail); Reynolds where statute Granite & 211 Ill. 161 sent to (notice St. Louis Traction Co. (1918), App. rather than insufficient establish attorney party lien).) party However, lien is not the sole an who remedy fees. has not a lien is seeking perfected is collect An who former for his still entitled to sue client or co-counsel recover 587; See N.E. services. Baker Baker Ill. 474 N.E Schniederjon Krupa (1985), .2d 492. Sullivan v. Fawver Under lien trial court had matter subject so, had a lien and if jurisdiction only whether did amount of lien and the manner of its enforcement. The court so no 1 of the order stated that attor- paragraph which “[had] lien cause ney’s rights of settlement of this or proceeds rights against lien to this cause.” parties

The concluding provides of the statute paragraph “[o]n their competent such clients court of attorneys shall, on not than five notice the adverse jurisdiction days’ less rights and enforce lien.” party, adjudicate parties such par. 14.) phrase “adjudicate our opinion, such the court and enforce lien” restricts rights. interpret phrase lien To this any existing consideration of *4 than lien theory recovery allow court to consider other strictly that the statute con rights would violate requirement 271, 2d R. 117 Ill. (1969), App. strued. Crabb v. Robert Anderson 275-76, 551, Heilgeist 254 nom. v. N.E.2d denied sub Blowitz appeal Ill. (1970),42 2d 586.

598 25,

The that plaintiff argues the trial court’s order of October 1985, directing Lowrey to submit a for fees made it that clear the court intended to question the entire not merely whether had a lien. perfected Plaintiff contends that under sec tion 2—604 of the (Ill. 1985, 110, Code of Civil Procedure Rev. Stat. the court had this authority. provides: Section 2—604 2— default, “Except case of for prayer relief does not limit obtainable, relief but where sought other relief is the court

shall, orders, and by proper upon terms that bemay just, protect party against adverse reason of prejudice surprise.” This the fact argument ignores motion before the sought only the adjudication Lowrey’s attorney’s lien. There no prayer general was or alternative relief and the court’s jurisdic tion (Crabb was limited R. accordingly. (1969), Robert Anderson Co. 271, 275-76, Ill. 551, 117 2d 254 App. appeal denied sub nom. Heilgeist Blowitz v. 42 (1970), Ill. 2d Walsh v. Union Oil Co. 1015, 131 (1970), App. 1022, 706, Ill. 2d 268 N.E.2d and re aff'd manded on grounds 295, other 53 Ill. 291 (1972), 2d N.E.2d 644.) More over, section 2—604 does not excuse necessity pleadings the relief as proof support granted by section required 1301(a) 2— 1985, the Code of Civil Procedure 2—par. 1301(a)). though

Even the court ruled on November basis, had no to collect he di- nevertheless then Lowrey present rected that for fees request immediately, irrespective of pleadings proofs movants, absence or from the the Ozmon and Williams law firms. was time to given no conduct discovery to subpoena witnesses or records and was therefore not from protected reason of as prejudice by by section 2—604. surprise Plaintiff cites Pinelli Alpine Development (1979), Corp. Ill. 2d appeal denied support the contention that was for the trial court to appropriate Pinelli, relief grant requested plaintiff’s however, not pleadings. was a second after a second in which the court in appeal hearing appellate the first had appeal reversed remanded the case because in the trial, first the court relief granted requested pleadings had not after the aware of the trial concluded. Pinelli were and the relief trial prior pleadings original granted by court and prejudiced by given therefore were not when the relief surprise Pinelli v. requested. Alpine Development what had been precisely 1002-04, Corp. Ill. appeal de nied 2d 617. *5 not limited that the trial court was of his claim support

In further Arnold, Ltd. v. Leonard C. of a cites plaintiff to consideration in that even 157 for the Northern Trust Co. principle 116 Ill. 2d protect may procedures a court establish absence effect the fee contracts and to contingent rights attorneys Ry. in Rhoades v. & Western established policy Norfolk right meaningful client must have a Ill. 2d that a fee contingent a he has hired under attorney whom discharge contract. Judicial

The relevant issue Arnold was whether in the Nineteenth of an to establish judicial procedure Circuit could create a minor client. The a fee contract with a contingent who had attorney in contingent involving injured cases challenged provided rule that an exception minors would be limited to 25% with then the court for an additional amount. The court could could irrespec- the fee to an amount it considered fair and reasonable adjust tive of the 25% limitation. 9.20(e) found that Rule be Supreme proper

The Illinois Court re enforcing mechanism for a procedural cause it merely provided law, reasonable, that all fees striction embodied substantive of the State relative to contin modify but did not substantive law noted that the of the rule gent arrangements. purpose fee was to minors while trials over the reasonableness of protect avoiding fees in settlements to minors. The court rea involving personal injuries consuming soned that such trials could have the deleterious effect of create an ad substantial minor’s estate and would also portion Leonard C. and his relationship attorney. between the minor versary Arnold, Ltd. v. Northern Trust Co. 157,167. 116 Ill. 2d in Arnold majority promulgated by

The rule at issue had been Circuit, Supreme pursuant the circuit the Nineteenth judges relating “An Act 21(a) (87 21(a)); Court Rule Ill. 2d R. section 28 of and the (Ill. par. 72.28); the circuit courts” Rev. Stat. Civil 104(b)); pro Practice Act 1— contrast, case, In the trial court’s res present cedural in nature. rule, it olution of the fee issue was not to circuit nor was pursuant effect, the substantive law merely procedural. determining lien statute an exclusive vehicle making law rather than an addition to common right an attorney’s meruit, or the enforcement quantum contract, remedies of breach law liens. common interests in Arnold the eco- protecting compelling

The court’s be- relationship minor and injured preserving nomic interest of tween the minor client and his attorney also are not at issue here. In bar, the case at the reasonableness of the contingent issue, fee is not at nor is there a need to protect relationship between the minor and his attorneys. Plaintiff Timothy DeKing’s relationship with his present would not attorneys be impaired fee claims by any have, Lowrey may and the fact that Lowrey might have a to fees also does not di- minish DeKing’s right under Rhoades to one replace with an- other under a contingent contract. DeKing has already received his net proceeds from the settlement of this matter and under Rhoades would only be liable for one contingent fee. The apportionment of fees between Lowrey Ozmon, if any, would come out of the already allo- cated contingent fee and therefore would not threaten the estate of the plaintiff. minor

This court recognizes the importance of judicial economy, and to end, that it might be desirable to have a structure that would require the summary disposition of attorney fees under certain circumstances. In the present however, case the interests of the discharged attorney and the present are adverse and the fee at substantial, issue is presumably $800,000. excess of Under these circumstances, we do not that believe delay fee determination pending resolution of the rights of the discharged attorney would work an undue hardship on plaintiff’s present attorneys.

Having determined that the trial court jurisdiction lacked to adjudi- cate issue other than the lien, existence of an attorney’s we re- verse paragraph 2 of the 25, order of November 1985. Accordingly,we need not reach the issue of whether the trial court erred in denying Lowrey’s petition for venue.

Order in part. reversed

BUCKLEY, J., concurs. QUINLAN, PRESIDING JUSTICE dissenting: I dissent. The respectfully decision majority’s holds that the trial court lacked subject matter jurisdiction under the lien statute attorney’s ( to par. enter any judgment other Ill. than an adjudication of the existence or nonexistence of an attorney’s lien. Specifically, majority that the trial says court in this case only had subject matter jurisdiction adjudicate whether had a so, if the amount of the lien and the manner of its enforce Thus, ment. under the majority’s ruling, the here proceeding ap parently over when Mr. Lowrey response filed a with the on court No agree lien. I do not that he did not have a stating vember that of the lien statute and believe attorney’s with this interpretation is inconsistent with existing authority, such a resolution is contrary to the language contrary public policy of the and is plain State, as reflected lien statute. attorney’s itself, Ry. in Rhoades v. & Western Co. supreme Norfolk a client had an (1979), 78 Ill. 399 N.E.2d held while cause, attor even without right discharge attorney, absolute quantum on a meruit ney compensation was entitled determinable In basis, if he a lien lien statute. even did have Rhoades, claim to court had held that the had no appellate (on attorney’s petition other and directed that the grounds) 14) under the lien statute Stat. Rev. dismissed. & v. Rhoades (Chapman Chapman court, however, the reversing the appellate though supreme Rhoades court did not affirm the dismissal even lien; rather, court itself had found that there in fact no attorney’s our supreme court remanded the case to the circuit court with direc tions to determine the fees on meruit appropriate attorney quantum basis rather contingent than on a fee basis.

Additionally, legislature appears granted subject have broad matter jurisdiction to the courts under the attorney’s lien statute all permit adjudication act, claims to fees. The legal language allows for a full my opinion, clearly determination of believe, I (as, the Rhoades decision has so of all the indirectly held) potential res, claimants to the proceeds judgment settlement. McArdle v. Great American Indemnity Cf. 41 N.E.2d 964 at (court has broad powers *7 torney’s lien in which are joint pro and client claimant to the ceeds of lien of the judgment); McCallum Baltimore & Ohio R.R. Co. 60, (1942), 379 Ill. 39 N.E.2d 340 the for (judgment constituted res among plaintiff distribution and all Trust attorneys); Mid-City & Sav 471, Bank v. ings City Chicago (1937), 292 Ill. 11 N.E.2d 617 (where parties all were before court need not file in already, attorney suit dependent fees). situation,

In a similar where the less statutory language was even clear, our supreme Among court held that the Contribution Joint Tort 70, feasors Act (Contribution Act) (Ill. pars. Rev. Stat. ch. through 305) resolution of that action be determined with claim, the tort even the also had a underlying though sepa tortfeasor rate right of action contribution as did the here. Laue (1984), 105 Ill. 2d 473 N.E.2d 939. Leifheit The language Act, Contribution section estab- specifically lished a separate independent action for contribution similar to Mr. Lowrey’s underlying contractual right to fees. Section 5 provided:

“A cause of action for contribution among joint tortfeasors may be asserted aby separate action or payment, by before after counterclaim or by third-party complaint in a pending action.” (Emphasis added.) Rev. Stat. par. 305.) However, our supreme court held that this to contribution must enforced, be in the underlying action, tort if there is one. The court said:

“We believe it is clear from the statutory language in section 5 that if action, there is a pending which there was in the instant case, then the party seeking contribution must assert a claim by counterclaim or by claim in third-party that action.

In addition to the fact that the statutory language section 5 clearly requires filing of an action for contribution action, original there are strong public reasons for policy such a requirement. One jury should decide both the to the liability plaintiff and the percentages of liability among defendants, so as to avoid a multiplicity lawsuits in an already crowded court system and the possibility of inconsistent verdicts. Requir ing the parties to litigate the matter in one suit will also save court time and attorney fees.” Laue v. (1984), 105 Ill. Leifheit 191, 196-97, 941-42. I submit that the language of the lien attorney’s statute not authorizes, but clearly directs the trial court to adjudicate rights all res, settlement or and to judgment, then enforce the lien- appropriately upon res. The lien attorney’s statute provides pertinent part:

“Attorneys at shall claims, law have a lien upon all demands and causes of action ***. Such lien verdict, shall attach to any judgment or order entered and to or money property which may recovered, suits, on claims, account of such demands action, causes of from and after the time of service notice. petition On attorneys such or their clients any court ’ shall, competent jurisdiction on not less than 5 days notice to party, adverse en parties and force such lien.” (Emphasis added.) 14. It should be noted that here it Ozmon, second attorney,' also with a claim to an who filed this statute to adjudicate the lien upon the res of the settlement.

603 party, Ozmon notice Mr. the adverse gave requisite Lowrey, the This, the to determine the them. in requested my court between what the intends. opinion, is statute exactly case, in the there are rea- strong public policy as Lome Additionally, adjudication sons in this for the that a full requirement situation rights of all take in the place the matter before the parties presently Lome, court. As the court said in one court should decide the liability, here, of the client same court liability pay attorney should make of those be apportioned a determination how fees should also, between the claimant attorneys. requirement Such would of course, help litigation avoid of in our crowded multiplicity already Further, court system and of inconsistent decisions. as possibility noted, Laue court the matter requiring litigate in one suit will save time and fees. attorney court

If Lowrey Mr. were permitted pursue independent suit for issue attorney fees, the would then arise as to whether he would be by bound or affected a determination of the trial here court that the Ozmon’s, i.e., second attorney’s was valid and entitled Ozmon to the full fee. contingent Contrary majority’s statement that any apportionment fees in a second suit would come out of the “already by allocated the trial court fee [apparently contingent and there here] fore would not threaten” proceeds the settlement the client has received, fact, already any award fees would necessarily come out DeKing’s of Mr. Mr. is proceeds. against suit Lowrey’s his client, DeKing, be, Mr. as should because has a Mr. contract with addition, Mr. and not Ozmon. In neither the res of DeKing present lawsuit, the fee which reflect the contingent would full fee settlement, Ozmon fee percentage (at any nor least as con tract) would be before second suit. al Accordingly, though there no delay (again, majority’s would be to the contrary ob servation) Ozmon, in the fee determination for has Ozmon already been here, awarded the full contingent trial court there would be a in the final determination of Mr. delay DeKing’s net pro ceeds from the settlement there still because must a resolution the contingent liability DeKing may Mr. fees he owe Mr. Furthermore, Lowrey. Mr. lawsuit for fees not result Lowrey’s any apportionment Ozmon, the fees as Mr. with inasmuch has no agreement with Ozmon at concerning (Cf. these fees all. Sch neiderjon 656, 660, Krupa (1985), Sullivan Fawver client, It DeKing, is Mr. that Mr. can claim and, agreement therefore, basis for a suit for fees. with Hence, client, it is the attorney, and not the second who will face another It lawsuit. is also the client who will incur the obligation pay lawsuit, additional fees in defending this second which lawsuit will perhaps judgment result the client for even additional *9 fees on the basis of his underlying agreement with Mr. Low- rey. lawsuit, client, ayet DeKing, third Mr. not may may able to recover back Ozmon the judgment Lowrey owed Mr. legal value of his services. Arnold,

In a similar setting concerning Leonard C. Ltd. v. Northern (1987), Trust Co. 116 Ill. 2d our supreme court a circuit upheld court’s rule on basis that it was consistent with public i.e., it avoided minitrials policy, concerning fees in personal cases jury prevented depletion minor’s estate. While the finds majority ruling Arnold, its consistent with in fact the actual result in its decision will lead to numerous trials over the reasonable ness of fees in (which, course, settlements will discourage such set tlements) in personal injury suits and consume a “needlessly portion *** estate and automatically create an adversarial relationship be Arnold, tween the attorney (Leonard and his client.” C. Ltd. North (1987), ern Trust Co. 167.) Ill. 2d See American Bar Associa tion, Ethics, Canons of Professional Canon which mandates that lawsuits with clients are concerning fees to be avoided. I do not believe that Mr. entitled to

Finally, Lowrey change of venue here right. (See as matter of In re Marriage of Zannis 114 Ill. App. 892; 3d 449 N.E.2d Templeton First National Bank (1977), 47 Ill. 3d Rosewood cf. Corp. v. Transamerica Insurance Co. 673.) Mr. did not assert that the trial he judge prejudiced; claimed that the trial merely had judge personal knowledge what had occurred before him concerning Ozmon’s representation, which would, knowledge contended, Mr. determining be relevant an allocation of fees due. it questionable While is that such a con venue, was, tention event, can be a basis for a matter of discretion for the (Hengels trial court to decide. v. Gilski Here, the trial court did its abuse discretion in the motion. denying

Because Mr. the issue of concerning offered no evidence so, I his entitlement to a after he had been ordered to do affirm the decision of the trial court.