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05/04/89 Rose Serio, Guardian of v. Equitable Life Assurance

May 4, 1989

ROSE SERIO, GUARDIAN OF THE ESTATE OF COSIMO SERIO, PLAINTIFF-APPELLEE

v.

EQUITABLE LIFE ASSURANCE ET AL., DEFENDANTS (LA SALLE NATIONAL BANK, INTERVENING PETITIONER-APPELLANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

540 N.E.2d 800, 184 Ill. App. 3d 432, 132 Ill. Dec. 878 1989.IL.661

Appeal from the Circuit Court of Cook County; the Hon. Philip A. Fleischman, Judge, presiding.

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. LINN and McMORROW, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

Intervening petitioner La Salle National Bank (hereinafter La Salle) appeals from an order of the circuit court of Cook County denying its petition to intervene. The sole issue for review is whether the trial court erred in denying La Salle's petition to intervene.

We reverse and remand.

Irving Drobny was retained to represent Cosimo Serio for injuries he sustained on June 5, 1978. The action was filed on June 5, 1980, by the law firm of Spivack, Drobny & Norman. Drobny had a written retainer agreement with Serio to receive a fee equal to 40% of plaintiff's total recovery.

In September 1982, Drobny referred the Serio case to the law firm of Joseph A. Rosin & Associates, Ltd. (now known as Robert A. Rosin & Associates, Ltd.) with the consent of plaintiff. Rosin filed an appearance in the case with the circuit court of Cook County on October 12, 1982.

Around 1982, Drobny was indicted by a Federal grand jury in Austin, Texas. He was tried and convicted sometime in July 1983. Thereafter his license to practice law in Illinois was revoked.

La Salle obtained judgments against Drobny on January 31, 1983, and May 10, 1984, in the amount of $116,726.98. After citation proceeding on July and August 16, 1984, La Salle, as judgment creditor of Drobny, obtained a restraining order issued by Judge Irwin Cohen. The order enjoined all parties to the Serio lawsuit and/or attorneys from disbursing any attorneys' fees or costs that may be due to Drobny by reason of his representation in the Serio case. The orders also provided that the court would maintain jurisdiction over the matter until the Serio case was resolved by judgment or settlement.

Subsequently, the Serio case was tried before Judge Warren Wolfson on February 22, 1985, and a judgment was rendered in favor of plaintiff in the sum of $601,150. Following a petition for leave to appeal, the matter was returned to trial before Judge Philip Fleischman. Prior to trial the case was settled in July 1987 for the sum of $465,000. Thereafter, plaintiff filed her "Petition For Order Approving Settlement and Distribution of Settlement Proceeds."

Pursuant to the orders rendered by Judge Cohen, La Salle received notice of the petition. La Salle appeared before Judges Fleischman and filed its objections to plaintiff's petition. Arguments were heard on July 22 and 31, 1987, concerning Drobny's entitlement to fees and the jurisdiction of Judge Cohen; however, no order was entered.

On August 4, 1987, La Salle, upon notice to all parties, presented its petition to intervene. Plaintiff filed an affidavit by Drobny, executed in July 1987, that stated in pertinent part: "In October 1983, the undersigned for good and valuable consideration released and waived all interests of any kind, and nature, including any right to attorney's fees or ...


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