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Ellerby v. Spiezer

OPINION FILED OCTOBER 25, 1985.

CAROL J. ELLERBY, PLAINTIFF-APPELLANT,

v.

JOSEPH P. SPIEZER ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Winnebago County; the Hon. David Smith, Judge, presiding.

JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 10, 1985.

Plaintiff, Carol J. Ellerby (Ellerby), filed a complaint for an accounting in the circuit court of Winnebago County following dissolution of her law partnership with defendants, Joseph P. Spiezer (Spiezer) and Robert L. Thorsen (Thorsen). The parties' dispute concerns the distribution of profits from pending cases the partnership was handling on a contingent fee basis at the time of dissolution. The trial court ordered distribution of the profits as follows:

"1. Incentive bonus:

a. Fees less than $5,000 — no bonus.

b. Fees $5,000 to $10,000-5% bonus to originating partners.

c. Fees $10,000 and over — 7 1/2% bonus to originating partners.

d. If more than one originating partner, said bonus shall be divided in equal shares between the originating partners.

2. Fifty percent of the balance of the fee after payment of the incentive bonus, if applicable, to the attorney or attorneys that complete the case.

3. The balance of the fee after disbursal under (1) and (2) above to be divided equally among the partners."

Ellerby appeals, contending the distribution ordered improperly differs from the distribution of profits mandated by the oral partnership agreement as it existed at the time of dissolution. Spiezer cross-appeals, arguing alternatively (1) the trial court's order is contrary to a provision of the oral partnership agreement concerning distribution of profits on dissolution, (2) the attorney handling a particular case was entitled to the total fee for that case less the value of services rendered prior to dissolution because the client chose to be represented by that attorney rather than the partnership after dissolution, and (3) the Uniform Partnership Act and In re Estate of Barbera (1973), 55 Ill.2d 235, 302 N.E.2d 302, do not prohibit, and cases from other jurisdictions support, compensating a partner for work he or she performs in winding up the partnership's business. Thorsen argues that the trial court's order followed the partnership formula for distributing profits and was fair and equitable. We reverse and remand for a redetermination of the distribution of profits from the cases of the partnership being handled on a contingent fee basis.

• 1 Spiezer's contention on cross-appeal that the oral partnership agreement provided for distribution of profits after dissolution will be considered first. A portion of Spiezer's testimony is supportive of this contention; however, it was neither pled in Spiezer's answer nor argued to the trial court. On this issue Spiezer is the appellant. An appellant is not permitted to argue on appeal a defense not interposed by his answer, even where there is evidence which would support the defense. (Downes Swimming Pool, Inc. v. North Shore National Bank (1984), 124 Ill. App.3d 457, 462, 464 N.E.2d 761, 764; Consoer, Townsend & Associates v. Addis (1962), 37 Ill. App.2d 105, 110, 185 N.E.2d 97, 99.)

"The issues are determined from the pleadings and the evidence. To have evidence without pleading an issue is just as fatal as pleading an issue and not supporting it with evidence. Both are essential and each must conform to the other." (Consoer, Townsend & Associates v. Addis (1962), 37 Ill. App.2d 105, 110, 185 N.E.2d 97, 99, quoted in Downes Swimming Pool, Inc. v. North Shore National Bank (1984), 124 Ill. App.3d 457, 462, 464 N.E.2d 761, 764-65.)

Accordingly, Spiezer's failure to plead it in his answer has waived his claim that a provision of the oral partnership agreement governed ...


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