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02/15/89 William P. Hapaniewski, v. John Rustin

February 15, 1989

WILLIAM P. HAPANIEWSKI, PLAINTIFF-APPELLANT

v.

JOHN RUSTIN, A/K/A JOHN RUSTON, A/K/A JOHN RUSTAMES, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

535 N.E.2d 24, 179 Ill. App. 3d 951, 128 Ill. Dec. 810 1989.IL.185

Appeal from the Circuit Court of Cook County; the Hon. Lawrence Carroll, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Plaintiff, William P. Hapaniewski, appeals from an order of the trial court denying his motion for summary judgment and granting defendant John Rustin's motion for summary judgment. Hapaniewski contends the trial court erred in concluding that he was not entitled to recover attorney fees under a contract theory and in quantum meruit, and in holding that Rustin was entitled to summary judgment on those issues.

The undisputed facts are as follows. Hapaniewski represented Rustin in an action captioned as Jupiter Petroleum Corp., Delphi American Corp., and John Rustin v. Alvin C. Johnson, Jr., individually, and Alvin C. Johnson, Jr., Inc., court docket No. 82 -- C -- 3544, in the United States District Court for the Northern District of Illinois ("Federal court case"). As compensation for his services in that case, Hapaniewski was to receive one-third of all amounts collected in the event the matter was settled before any depositions were taken, 40% after depositions were taken, and 50% if the matter was taken to a pretrial stage of trial. Rustin additionally agreed to pay all expenses that were incurred.

The Federal court case proceeded to the pretrial stage. Prior to trial, however, the parties entered into a settlement agreement pursuant to which Johnson was to pay Rustin the sum of $12,000. The agreement additionally provided that upon payment of the $12,000 to Rustin, the case was to be dismissed with prejudice and all claims against Johnson were to be released.

On December 11, 1984, Johnson tendered to his counsel, Douglas C. Tibble of McDermott, Will & Emery, an uncertified check in the sum of $12,000, payable to Tibble, representing payment pursuant to the settlement agreement. Tibble agreed to issue a certified check to Rustin upon confirmation that Johnson's check had cleared the issuing bank. The check was returned for insufficient funds. On December 21, 1984, Hapaniewski moved to reinstate the action in the Federal court.

On December 26, 1984, Johnson tendered a certified check to Tibble in the sum of $12,000, representing the funds due Rustin. On December 28, 1984, Tibble received a writ of attachment issued by the circuit court of Cook County in the case captioned as Konstantine Hatzopoulos v. Alvin C. Johnson, Jr. and John Rustin, individually, and Delphi American Corp., Successor to Jupiter Petroleum Corp., case No. 84 -- L -- 24475. The writ directed Tibble or his firm to hold and deliver to the sheriff of Cook County any funds in their possession belonging to Delphi and John Rustin. Hatzopoulos had agreed to dismiss the action against Rustin upon the attachment and disbursement of the $12,000 check.

On January 18, 1985, the Federal court entered a judgment order against Johnson for $12,000. On January 28, 1985, Johnson requested that this order be vacated and that a satisfaction of judgment be issued upon the tender of the settlement check held by Tibble to the sheriff of Cook County. At this time, Hapaniewski served Tibble with notice of his attorney's lien for fees in the Federal court case.

On March 15, 1985, the circuit court of Cook County ordered Tibble to deposit the funds with the court. Tibble did not tender the funds, but held them pending instructions regarding how the deposit was to be handled. Hapaniewski subsequently attempted to enforce his attorney's lien in the circuit court of Cook County. The court denied his request and dismissed the motion without prejudice.

Subsequently, Tibble received a court order directing that the $12,000 settlement check be disbursed as follows: $2,000 to Enrico Mirabelli, attorney for Rustin, and $10,000 to Konstantine Hatzopoulos and his attorney, Robert E. McAuliffe. Tibble tendered the check to the sheriff as directed.

Thereafter, Hapaniewski filed a motion for temporary restraining order and preliminary injunction against Johnson and Tibble in the Federal court. Hapaniewski sought to prevent the transfer of the $12,000 settlement check to Mirabelli and Hatzopoulos. The Federal court denied his motion and denied his request for attorney fees. The court found that Hapaniewski had failed to perfect his attorney's lien prior to the issuance of the State court writ of attachment. The court determined that Hapaniewski's rights under the lien were junior ...


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