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October 24, 1996



Rehearing Denied November 27, 1996. Released for Publication December 10, 1996.

Presiding Justice Hoffman delivered the opinion of the court. Cahill and O'brien, JJ., concur.

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

Petitioner, Llwellyn Greene-Thapedi (Thapedi), initiated this action to recover attorney fees allegedly owed to her by respondent Jeffrey M. Goldberg and Associates, Ltd. (Goldberg). Thapedi entered into a fee contract which referred four medical malpractice cases, including the instant action, to Goldberg. Shortly thereafter, Thapedi became a judge. Goldberg paid Thapedi a referral fee after one of the four cases settled, but refused to pay her such a fee upon settlement of the case at bar. Thapedi filed a petition seeking to enforce the referral contract. After an evidentiary hearing was initiated, Thapedi filed motions for judgment on the pleadings and for summary judgment. The trial court denied her motions but subsequently directed a finding in favor of Goldberg. Thapedi has appealed, and we reverse and remand this cause for further proceedings.

Prior to November 1, 1988, Thapedi was retained to recover damages for the wrongful death of Terrance Elane. Thapedi filed a complaint in this cause on February 6, 1991. Thapedi later referred this case and three other medical malpractice cases to Goldberg shortly before she assumed the bench in December 1992. The plaintiffs in the instant action agreed to retain Goldberg and consented to a division of fees between Goldberg and Thapedi.

The record indicates that one of the other referred cases, Buchanan v. University of Chicago Hospital, et al., was settled in April 1994 while Thapedi was a sitting judge. After Buchanan settled, Goldberg paid Thapedi $15,000 for her portion of the fees and $9,500 for her costs.

On December 8, 1994, the trial court approved a $750,000 settlement in the instant case and ordered a distribution of $200,000 in attorney fees to Goldberg. Thapedi made written and oral demands that Goldberg pay her a portion of the fees as per their referral fee contract. On April 17, 1995, Thapedi filed a "Petition for Adjudication of Entitlement to Attorney's Fees, Consistent with the Referral Fee Contract."

On June 19, 1995, the trial court began an evidentiary hearing. Thapedi identified her agreement with Goldberg and affirmed that it was entered into on or about December 4, 1992, before she was sworn in as a judge. She acknowledged that she could not practice law after assuming the bench, but said that she remained "a person who would be responsible for any litigation that might arise (on the referred cases) as a result of either malfeasance, malpractice or anything else." The hearing terminated before Thapedi completed her direct testimony and without any cross-examination. Both the fee referral agreement and the attorney retainer agreement were admitted into evidence, and the matter was continued to July 11, 1995.

Thapedi noticed an emergency motion for judgment on the pleadings for hearing on July 11. On that date, the court concluded that an evidentiary hearing was necessary, ordered a briefing schedule for the motion, and set the motion for hearing on August 22, 1995. On July 27, 1995, Goldberg filed an answer to Thapedi's petition, a response to Thapedi's motion for judgment on the pleadings, and a cross-motion for judgment on the pleadings. In its answer, Goldberg stated that the fee referral contract attached to Thapedi's petition "speaks for itself," but denied that the document represented the entire contract. Goldberg admitted entering into the "Attorney Retainer Agreement" covering this action which provided that Thapedi would receive 45% of the total attorney fees if the matter was settled or tried, and admitted receiving $200,000 pursuant to the court's settlement order. Goldberg also admitted it did not pay the referral fee to Thapedi, but claimed that its refusal was based on a belief that it was ethically prohibited from doing so. Goldberg included affirmative defenses which charged that (1) Patricia Elane's revocation of her consent to the splitting of fees between Goldberg and Thapedi had rendered the contract void under Rule 1.5(g) of the Rules of Professional Conduct, (2) Thapedi was prohibited from assuming legal responsibility as required under the Illinois Rules of Professional Conduct, and (3) Thapedi's failure to file suit before the statute of limitations precluded Patricia's recovery and, thus, vitiated Thapedi's entitlement to a referral fee.

On August 22, 1995, the trial court denied Thapedi's motion for judgment on the pleadings. The court concluded that an evidentiary hearing was required to determine whether the contract was enforceable and, if not, to determine the amount that Thapedi was entitled to on a quantum meruit basis. The matter was continued to October 17, 1995.

On September 29, 1995, Thapedi filed a motion for summary judgment which the trial court denied on October 17, 1995. Upon the denial of her summary judgment motion, Thapedi's counsel informed the court that she had no further evidence to present. Thereupon, Goldberg moved for a directed finding which the trial court granted. Judgment was entered in favor of Goldberg and Thapedi appealed.

Thapedi first contends that the trial court erred in denying her motions for judgment on the pleadings and for summary judgment. Thapedi argues that no genuine issue of fact existed and that the validity and enforceability of the contract were questions of law. Benn & Assoc., Ltd. v. Nelsen Steel & Wire, Inc., 107 Ill. App. 3d 442, 446, 437 N.E.2d 900, 63 Ill. Dec. 251 (1982). Goldberg counters that this court has no jurisdiction to review the denial of either motion.

We hold that the trial court properly denied Thapedi's motion for summary judgment because it was untimely. The purpose of summary judgment proceedings is to determine if any genuine issues of fact exist which require a trial. Hayes v. Board of Fire & Police Commissioners, 230 Ill. App. 3d 707, 712, 595 N.E.2d 683, 172 Ill. Dec. 322 (1992). Thapedi's motion, filed more than three months after the evidentiary hearing was initiated, was contrary to the very concept of summary judgment. Our conclusion that summary judgment is a pretrial motion is supported by the fact that section 2-1005 of the Code of Civil Procedure (Code), which addresses summary judgment proceedings, is found in part 10 ...

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