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05/04/87 Timothy Deking, v. Urban Investment and

May 4, 1987





508 N.E.2d 377, 155 Ill. App. 3d 594, 108 Ill. Dec. 216 1987.IL.577

Appeal from the Circuit Court of Cook County; the Hon. John M. Breen, Judge, presiding.


JUSTICE O'CONNOR delivered the opinion of the court. BUCKLEY, J., concurs. PRESIDING JUSTICE QUINLAN, Dissenting.


This is an appeal from orders of the circuit court of Cook County denying respondent John J. Lowrey's request for a change of venue and determining that Lowrey had no right to attorney fees resulting from a case in which he had been replaced as counsel. The principal issue on appeal is whether the court had subject matter jurisdiction under the attorney's lien statute (Ill. Rev. Stat. 1985, ch. 13, par. 14), to adjudicate Lowrey's right to claim attorney fees on any other theory or basis where Lowrey did not assert a lien under the statute.

Timothy DeKing was injured on April 7, 1980, and on November 9, 1981, filed suit to recover damages resulting from that injury. His lawyer at that time was John J. Lowrey (Lowrey). On April 7, 1982, the court entered an order substituting Anesi, Ozmon, Lewin & Associates, Ltd. (Ozmon), for Lowrey as counsel for plaintiff and granting plaintiff leave to file an amended complaint adding additional parties defendant. On July 23, 1985, the case was assigned to Judge Breen and on September 23, 1985, it was dismissed pursuant to a settlement in the amount of $2,500,000.

Pursuant to notice to Lowrey, on October 7, 1985, Ozmon presented a motion to adjudicate Lowrey's attorney's lien. Hearing was set on the motion for October 28, 1985, and Lowrey was granted leave to file a response on that date. On October 23, 1985, Lowrey filed a two count suit requesting fees and costs for legal services rendered to DeKing and seeking recovery for tortious interference with Lowrey's legal representation of DeKing. The complaint did not allege the existence of any attorney's lien or seek the adjudication of any such lien.

At the October 28 hearing on the motion to adjudicate the attorney's lien, Lowrey's counsel presented a written verified petition for change of venue under section 2-1001(a)(1) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1001(a)(1)), based upon the fact that the trial Judge had participated in extensive settlement negotiations and other aspects of the DeKing suit and that the testimony of the court would therefore be material to the issues in both the motion to adjudicate the lien and in Lowrey's pending suit for fees. Lowrey contended that extensive discovery would be required to determine the relative values of the services rendered by the three law firms and that a percentage value should be assigned to each.

The petition for a change of venue was denied and an order was entered requiring Lowrey to present the court with a fee petition by November 11, 1985. Lowrey did not present a fee petition, but on November 12 he filed a response stating that he did not assert a lien, that he had filed a separate suit against DeKing and his other lawyers, and that the court had no jurisdiction to adjudicate his attorney's lien.

At a second hearing on the motion to adjudicate the lien, on November 25, 1985, Lowrey's counsel asserted that even if there was no lien, there might still be fees due to Lowrey. The court agreed but stated that unless Lowrey proceeded in the present suit, the court would deny him any right to fees. Lowrey refused to submit his claim for fees to the court, arguing that the only issue before the court was the adjudication of Lowrey's rights under the attorney's lien statute, not whether he was entitled to fees on any other basis.

The court rejected Lowrey's arguments and issued an order which provided in pertinent part:

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

2. That Attorney John J. Lowrey is not entitled to any attorney's fees in relationship to this cause or any right to claim attorney's fees against the plaintiff or his attorneys, Anesi, Ozmon, Lewin & Associates, Ltd. and Williams & Marcus, Ltd., having declined to present any evidence as to any fees which he claims."

Lowrey appeals from the entry of paragraph 2 of the order, contending that the court lacked subject matter jurisdiction under the attorney's lien statute to enter any judgment beyond adjudication of an attorney's lien. We agree and reverse paragraph 2 of the order.

Although circuit courts have original jurisdiction over all justiciable matters (Ill. Const. 1970, art. VI, sec. 9), it is well settled that when a court's power to act is controlled by statute, the court is governed by the rules of limited jurisdiction. (Brown v. VanKeuren (1930), 340 Ill. 118, 122, 172 N.E. 1; People ex rel. Illinois Department of Human Rights v. Arlington Park Race Track Corp. (1984), 122 Ill. App. 3d 517, 521, 461 N.E.2d 505.) While the legislature generally has no power to limit or preclude a court's constitutional jurisdiction to hear a matter, an exception exists when the legislature creates a right having no counterpart in common law or equity, since the legislature has defined the justiciable matter by enacting the statute. (Skilling v. Skilling (1982), 104 Ill. App. 3d 213, 219, 432 N.E.2d 881.) The attorney's lien statute falls ...

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