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05/07/87 William L. Paul, v. David E. Neely

May 7, 1987

WILLIAM L. PAUL, PLAINTIFF-APPELLEE AND CROSS-APPELLANT

v.

DAVID E. NEELY, DEFENDANT-APPELLANT AND CROSS-APPELLEE (INSURANCE COMPANY OF NORTH AMERICA, DEFENDANT-APPELLEE)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

508 N.E.2d 401, 155 Ill. App. 3d 241, 108 Ill. Dec. 240 1987.IL.596

Appeal from the Circuit Court of McLean County; the Hon. Luther H. Dearborn, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. SPITZ, P.J., and GREEN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

Defendant, David E. Neely (Neely), appeals from a judgment entered against him in favor of plaintiff, William L. Paul (Paul), in the amount of $5,246.95. Paul cross-appeals contending that the trial court erred in granting summary judgment against Paul and in favor of defendant, Insurance Company of North America , on Paul's claim seeking foreclosure of his purported attorney's lien relating to a claim Frances Bush was pursuing for personal injuries in a lawsuit filed by Paul on Bush's behalf. Paul also cross-appeals contending that the trial court erred in denying his claim against Neely based upon allegations of fraudulent conduct.

We first consider Paul's cross-appeal relating to the count in his complaint which alleged fraudulent conduct. Paul's brief does not contain citations to the portions of the record which he contends support his allegation of fraudulent conduct on the part of Neely.

Supreme Court Rule 341(e)(7) provides in pertinent part:

"The appellant's brief shall contain the following parts . . .:

(7) Argument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on." (103 Ill. 2d R. 341(e)(7).)

Paul's brief does not refer to portions of the record which support Paul's allegations that he relied on Neely's misrepresentations or that Neely made these misrepresentations in an effort to get Paul to withdraw from his representation of Bush and not assert any claim for attorney fees against her. Because Paul's brief does not contain citations to the portions of the record which he contends support his allegations of fraudulent conduct on the part of Neely, we hold that Paul has waived his claim that the circuit court erred in finding for Neely on count VI of Paul's second amended complaint.

We next consider Neely's contention that the trial court erred in entering a judgment in Paul's favor based upon a contractual theory. Paul entered into an attorney-client, one-third contingency-fee contract with Frances Bush, who was allegedly injured as a result of the conduct of an insured of INA. Paul subsequently filed suit on behalf of Bush, but on May 10, 1983, Bush notified Paul that she was discharging him as her attorney. On May 19, 1983, Paul served a notice of attorney's lien on INA. Neely subsequently contacted Paul, informing Paul that Neely was replacing Paul as the attorney representing Bush.

On June 13, 1983, Neely and Bush executed a contingent-fee agreement. This agreement provided that Neely's fee was to be 20% of any recovery of $15,000 or less, or 33 1/3% of any recovery in excess of $15,000 obtained before suit was filed or 33 1/3% of any recovery obtained after suit was filed. There followed a Discussion about Paul's claims for attorney fees and expenses incurred. Bush's lawsuit, with Neely's assistance, was subsequently settled for $25,000, and Paul brought the present lawsuit claiming that Neely had agreed to the payment to Paul of $5,000 attorney fees plus costs expended by Paul, or if the Bush recovery was less than $15,000, one-third of the amount of the settlement. Within the same complaint, Paul sought foreclosure of the purported attorney's lien, naming INA as a defendant.

Neely appeals a $5,246.95 judgment which the trial court entered in Paul's favor, suggesting that there was not sufficient evidence to find a contract existed between Paul and Neely because of the absence of mutual assent and because of the absence of bargained-for consideration. The evidence indicates that Paul had obtained a settlement offer in the amount of $15,000 which was rejected by Bush prior to the time that Paul was notified of his ...


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