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01/25/89 Robert W. Anderson, v. Joseph M. Sconza

January 25, 1989

ROBERT W. ANDERSON, PLAINTIFF-APPELLANT

v.

JOSEPH M. SCONZA, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

534 N.E.2d 445, 179 Ill. App. 3d 202, 128 Ill. Dec. 263 1989.IL.69

Appeal from the Circuit Court of Cook County; the Hon. Thomas P. Quinn, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Plaintiff, Robert W. Anderson, appeals from the trial court's granting of the motion of defendant, Joseph M. Sconza, for summary judgment and the denial of the cross-motion of plaintiff for partial summary judgment. Plaintiff's action alleges that defendant breached a contract for attorney fees for defendant's representation of plaintiff in an employment discharge proceeding before the Chicago Police Board.

On appeal plaintiff asserts that: (1) defendant failed to show that the fee agreement was made with good faith, fairness, adequacy of consideration, and without undue influence; (2) defendant failed to show that the agreement was reasonable; (3) the computation of fees under the agreement is incorrect; and (4) defendant was not entitled to relief on his counterclaim since he failed to file an amended counterclaim after plaintiff filed an amended complaint.

For the reasons stated below, we reverse the judgment of the circuit court.

The record indicates that prior to July 1980, charges had been filed with the Chicago Police Board seeking the separation of plaintiff from the police department for failure to have the psychological and emotional stability required to perform his duties as a police officer. In July 1980, plaintiff was referred to defendant for legal assistance, and defendant agreed to represent plaintiff regarding the police board proceeding. Defendant and his associate, Anthony Onesto, thereafter began to represent plaintiff in the matter, appearing before the police board on motions and otherwise preparing plaintiff's case before the board. On August 15, 1980, pursuant to defendant's request, plaintiff paid defendant $750 in attorney fees. Plaintiff paid defendant an additional $750 in attorney fees on March 23, 1981, and another $1,000 in attorney fees on June 12, 1981.

Also on June 12, 1981, the parties executed a written contingent fee contract providing that plaintiff would pay to defendant:

"1. A basic fee of $2,500.00, for representation before the Police Board only, not to include Administrative Review, $1,000.00 of which is refundable if client's total loss [ sic ] wages are recovered.

2. Plus 25% of client's loss [ sic ] wages, if any, that are recovered."

The police board case was argued on November 18, 1981. On February 10, 1983, the board entered its order dismissing the charges against plaintiff and reinstating plaintiff's position in the police department. Defendant had filed a notice of attorney's lien upon plaintiff's cause of action. In February 1983, the police department issued checks payable jointly to plaintiff and defendant for the back pay owed to plaintiff.

On April 28, 1983, plaintiff filed his action in the circuit court against defendant. During the pendency of the action, plaintiff died and his surviving spouse, Jane Anderson, was appointed as special administrator. Thereafter, defendant filed a motion for summary judgment and plaintiff filed a cross-motion for summary judgment. The depositions of defendant and defendant's associate, Anthony Onesto, were filed with the court. Defendant attached to his motion for summary judgment the affidavits of attorneys James J. Ahern and Thomas J. Royce. Plaintiff attached ...


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