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11/18/87 National Wrecking Company, v. Midwest Terminal

November 18, 1987

NATIONAL WRECKING COMPANY, PLAINTIFF AND COUNTERDEFENDANT-APPELLEE

v.

MIDWEST TERMINAL CORPORATION, DEFENDANT AND COUNTERPLAINTIFF-APPELLANT (RAYMOND HARKRIDER, APPELLANT)



Before reaching the merits of this appeal, we must answer plaintiff's contention that this court lacks jurisdiction to hear the appeal of both orders. Upon review we agree that we lack jurisdiction to review the disqualification order and we are therefore required to dismiss the appeal.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

518 N.E.2d 193, 164 Ill. App. 3d 621, 115 Ill. Dec. 668 1987.IL.1699

Appeal from the Circuit Court of Cook County; the Hon. Francis X. Golniewicz, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McNAMARA delivered the opinion of the court. RIZZI and WHITE, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Defendant Midwest Terminal Corp. and Raymond Harkrider appeal from two orders of the trial court. The first order disqualified Harkrider from representing defendant in the present litigation and ordered defendant to file the appearance of substitute counsel. The second order denied defendant's and Harkrider's motion to stay enforcement, force and effect of the court's earlier order disqualifying Harkrider as attorney. Both orders were consolidated for this appeal. On appeal, defendant and Harkrider contend that the trial court improperly granted plaintiff's motion to disqualify Harkrider and erred in refusing to stay enforcement, force and effect of the court's disqualification order. Plaintiff has challenged the jurisdiction of this court to hear the appeal of both orders.

Plaintiff filed a motion to disqualify Harkrider as attorney for defendant in plaintiff's mechanic's lien and breach of contract action against defendant. Plaintiff asserted that Harkrider acted on behalf of defendant in all contract negotiations which produced the contract between the parties. Plaintiff further asserted that as a result of the contract negotiations, Harkrider is likely to be called as a witness in this matter. Rules 5 -- 101(b) and 5 -- 102 of the Illinois Code of Professional Responsibility prohibit a lawyer from acting both as an advocate and as a witness on behalf of a client in the same matter. 107 Ill. 2d Rules 5 -- 101(b), 5 -- 102.

On December 22, 1986, after denying an earlier motion to do so, the trial court disqualified Harkrider, finding that he ought to be called as a witness, and ordered defendant to file the appearance of substitute counsel by January 30, 1987. The trial court denied defendant's motion for an express written finding that there was no just reason for delay of enforcement or appeal of the trial court's disqualification order pursuant to Supreme Court Rule 304(a). 107 Ill. 2d R. 304(a).

Defendant and Harkrider filed a notice of appeal of the disqualification order and the denial of a Rule 304(a) finding. Defendant and Harkrider subsequently filed a motion to stay enforcement, force and effect of the disqualification order in the trial court. The trial court denied defendant's motion to stay on February 11, 1987. Defendant and Harkrider renewed their motion to stay in this court pursuant to Supreme Court Rule 305(b), and this court denied that motion on March 9, 1987.

The first order from which defendant appeals is the order disqualifying Harkrider from representing defendant in the present litigation. Our supreme court has held that an order disqualifying an attorney is not an appealable interlocutory order. (Almon v. American Carloading Corp. (1942), 380 Ill. 524, 42 N.E.2d 78.) The Almon court rejected defendant's attempt to characterize an order disqualifying an attorney as an injunction under section 78 of the Civil Practice Act (Ill. Rev. Stat. 1941, ch. 110, par. 202), which authorized appeals from the trial court to the appellate court on matters pertaining to interlocutory orders on injunctions and appointments of receivers. Section 78 is the predecessor section of Supreme Court Rule 307, which allows interlocutory appeal of injunction orders. (107 Ill. 2d R. 307.) The Almon court held that the order appealed from was not of the character intended by the legislature to be covered by section 78 of the statute. Subsequent cases have held similar orders disqualifying or refusing to disqualify nonappealable. Leib v. Toulin, Inc. (1983), 113 Ill. App. 3d 707, 447 N.E.2d 900; Chicago Title & Trust Co. v. Guaranty Bank & Trust Co. (1978), 59 Ill. App. 3d 362, 375 N.E.2d 522.

Defendant and Harkrider, in their attempt to convince this court that we have jurisdiction, cite several cases where courts have considered the merits of a disqualification order on appeal. In Lavaja v. Carter (1987), 153 Ill. App. 3d 317, 505 N.E.2d 694, a case relied on by defendant and Harkrider, defendant appealed from the entry of a default judgment and claimed that the trial court abused its discretion by not disqualifying plaintiff's attorney upon defendant's motion. After a Discussion of the merits of the default judgment, this court considered the merits of the order denying defendant's motion to disqualify and affirmed the trial court. In Lavaja, the disqualification issue was appealed within the context of the final order of default judgment. It clearly differs from the case before us, where appellants are seeking interlocutory review of the disqualification order.

Another case relied on by defendant and Harkrider is Hannan v. Watt (1986), 147 Ill. App. 3d 456, 497 N.E.2d 1307, where the initial action in the case was an effort to enjoin a law firm from continuing to represent Northwest Orient Airlines in the aftermath of Northwest's merger with Republic Airlines. This case also differs from the case before us in that plaintiffs in Hannan sought an injunction and their appeal was from a final order denying their petition for injunctive relief.

Defendant and Harkrider finally rely on the case of Leckrone v. City of Salem (1987), 152 Ill. App. 3d 126, 503 N.E.2d 1093, to urge this court to consider the merits of the disqualification order. In Leckrone, without mentioning Almon, the Fifth District found that an order denying disqualification was final and appealable pursuant to Supreme Court Rule 301. We agree with the court in Leckrone that a disqualification order is similar to an interlocutory contempt order and should be held appealable. Nonetheless, Leckrone is in ...


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