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Intaglio Serv. Corp. v. J.l. Williams & Co.

OPINION FILED JANUARY 27, 1983.

INTAGLIO SERVICE CORPORATION, PLAINTIFF,

v.

J.L. WILLIAMS & CO., INC., DEFENDANT AND THIRD-PARTY PLAINTIFF. — (MCCARTY BROTHERS, INC., THIRD-PARTY DEFENDANTS; J.L. WILLIAMS & CO., INC., PETITIONER-APPELLANT; D. CALVIN SINCOCK, RESPONDENT-APPELLEE.)



Appeal from the Circuit Court of Cook County; the Hon. Warren D. Wolfson, Judge, presiding.

PRESIDING JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 8, 1983.

D. Calvin Sincock, who had represented J.L. Williams & Co., Inc., in a lawsuit by Intaglio Service Corporation, withdrew from that litigation when he was not paid. Williams, while refusing to pay the fee, has since that time sought to force defendant to turn over his files in that case. Pursuant to that end, it has filed the present petition for a summary proceeding to compel defendant to surrender his files in exchange for such security as the trial court might determine just. The trial court ordered that Williams pay over $67,500 as security, $27,500 to be given directly to Sincock, and the rest to be held in escrow pending determination of the amount of attorney fees owed in an action already filed by the attorney. The order provided that it did not constitute a final determination as to whether there were fees due or the amount of such fees. Williams appealed. We affirm, holding:

(1) the order was final and appealable since it terminated the action filed by Williams;

(2) Williams waived any alleged error in the court's denial of the motion to dismiss when it failed to mention that order in its notice of appeal. In any event, since Williams failed to give the required 48-hour notice before filing the motion, the court did not abuse its discretion when it refused to dismiss the action unless Williams paid Sincock the attorney fees incurred in that 48-hour period;

(3) although by filing a suit to recover attorney fees Sincock became subject to discovery, he did not waive his right to his retaining lien;

(4) the trial court did not err in refusing Williams a jury trial since this is a summary proceeding; furthermore, Williams waived any right since it failed to make a jury demand when it filed its petition;

(5) the trial court did not err when it failed to allow Williams to put on its case since (a) there is nothing in the record indicating Williams sought to present any evidence, (b) there was no objection made at the time, (c) there was no offer of proof, and (d) even on appeal Williams has failed to suggest any relevant evidence which it might have introduced; and

(6) the evidence supports the judgment of the trial court.

Several years ago Intaglio Service Corporation filed a lawsuit against J.L. Williams & Co., Inc. Williams filed a third-party action against McCarty Brothers, Inc. Williams hired Sincock to represent it in the litigation. Sincock sent Williams bills as his work progressed; Williams at that time neither objected to the amount charged nor paid it. Intaglio's case was dismissed by the trial court. Intaglio appealed and this court reversed in Intaglio Service Corp. v. J.L. Williams & Co. (1981), 95 Ill. App.3d 708, 420 N.E.2d 634, and remanded the case for trial. During the pendency of the appeal, Sincock withdrew as counsel because he had not been paid. While still refusing to pay, Williams and his new counsel demanded the files in order to defend Intaglio's suit. Sincock refused to turn them over. He and his law firm filed a lawsuit entitled Burditt & Calkins v. J.L. Williams & Co. to recover costs advanced and fees for the over 1,350 hours of professional time spent. It appears from the record below that while not challenging the reasonableness of the amount charged per hour, Williams questioned whether the work was reasonable, contending that Sincock "churned" the filed and performed numerous unnecessary services.

While the Burditt case was pending, Williams on November 18, 1981, filed a petition to obtain the files so it could defend Intaglio's suit; this procedure involves a summary proceeding. (Upgrade Corp. v. Michigan Carton Co. (1980), 87 Ill. App.3d 662, 410 N.E.2d 159.) Williams did not at that time ask for a jury trial. On November 23, 1981, the court, after hearing arguments of counsel, ruled that Sincock had a retaining lien on the files; the firm had advanced $11,471.40 in costs; Sincock had provided necessary legal services and their value was $65,000; Williams should pay $11,471.40 for advanced costs to Burditt and Calkins instanter and a hearing on the method of payment or security for the fees would be heard a week later. At the hearing Williams, through counsel, had admitted that there was no doubt the services were rendered and the expenditures were made. Williams had no witness to testify the fees were unreasonable. A detailed breakdown of all services rendered was admitted into evidence. Ten days later, Williams moved to vacate that part of the order stating that Sincock provided necessary legal fees in the value of $65,000. Sincock agreed to the motion on the condition they could have an immediate hearing or one within a short day. For some reason, not explained in the record, the trial judge vacated not only the paragraph objected to but the rest of the order as well. He also transferred the case to another judge for hearing. On that same day (December 10) the parties appeared before this second judge, but Williams stated it was unprepared for trial. It also expressed concern that any finding of fees would be binding on the trial court in Burditt & Calkins. Sincock wanted that issue determined in the present case since Williams had filed the action. He introduced into evidence at that time the verified complaint in Burditt & Calkins which set forth in detail the hours worked and expenditures incurred. The judge indicated at this time he would not go through a useless hearing and his determination would be binding on Williams.

On December 14, 1981, Williams filed a jury demand. The trial court denied the demand since this was a summary proceeding. Williams again reiterated that it wanted a determination that would not be binding on the court in Burditt & Calkins; Sincock objected contending he should not be required to try his case more than once. The trial court said it was merely going to make a summary determination of the value of the services and then do something that would protect the lien. The court then continued the hearing until December 16, 1981.

On December 16, 1981, Williams, after it had made two motions which were denied, moved first orally, and then in writing without any prior notice being given as required by rule, to dismiss the case without prejudice. Section 52(1) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 52(1)) provides:

"(1) The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or his attorney, and upon payment of costs, dismiss his action or any part thereof as to any defendant, without prejudice, by order filed in the cause. Thereafter he may dismiss, only on terms fixed by the court (a) upon filing a stipulation to that effect signed by the defendant, or (b) on motion specifying the ground for dismissal, which shall be supported by affidavit or ...


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