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Canel and Hale v. Tobin

April 12, 1999

CANEL AND HALE, LTD., A PROFESSIONAL CORPORATION, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,
v.
MARY P. TOBIN, AERA CROCKETT AND ANNETTE CROCKETT-COTTON, INDIV. AND AS CO-GUARDIANS OF THE ESTATE OF ADDEAN CROCKETT, A DISABLED PERSON, AND AS CO-ADM'S OF THE ESTATE OF ADDEAN CROCKETT, DECEASED; AND MUNDAY AND NATHAN, A PARTNERSHIP, DEFENDANTS-APPELLEES AND CROSS-APPELLANTS



The opinion of the court was delivered by: Justice Gallagher

Appeal from the Circuit Court of Cook County

Honorable David G. Lichtenstein, Judge Presiding.

Canel & Hale, Ltd. (plaintiff), brought this action to recover fees for legal services rendered to the estate of Addean Crockett, a disabled person, and for punitive damages. Mary P. Tobin, Aera Crockett, Annette Crockett-Cotton and Munday & Nathan (defendants) moved to dismiss the third amended verified complaint pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 1994)). Defendants also moved for Supreme Court Rule 137 (155 Ill. 2d R. 137) sanctions premised upon plaintiff's failure to comply with prior court orders and instructions regarding the amendment of plaintiff's previous complaints. Plaintiff also moved for Supreme Court Rule 137 sanctions based upon defendants' motion for sanctions.

The trial court dismissed plaintiff's third amended verified complaint with prejudice pursuant to section 2-615, for plaintiff's failure to state a cause of action. Subsequently, the court gave plaintiff leave to file a fourth amended complaint; however, plaintiff elected to stand on the legal sufficiency of its third amended complaint and moved the court to rule on defendants' section 2-619 motion to dismiss. The trial court declined to rule on defendants' section 2-619 motion to dismiss and denied both parties' motions for sanctions.

Plaintiff appeals the portion of the order granting defendants' section 2-615 motion to dismiss, alleging: (1) the trial court erred in finding plaintiff's third amended complaint failed to state a cause of action pursuant to section 2-615, specifically claims for (a) quantum meruit; (b) breach of contract; (c) breach of fiduciary duty; (d) interference with a contractual relationship and prospective economic advantage; (e) conspiracy; and (f) punitive damages. Furthermore, plaintiff alleges the trial court erred in declining to rule on defendants' section 2-619 motion and that this court should deny it.

Since plaintiff failed to address the denial of its motion for sanctions in its brief to this court, it has waived this issue on appeal. See People v. Wendt, 163 Ill. 2d 346, 351, 645 N.E.2d 179, 181 (1994)("points not raised or argued in an opening appellate brief are waived"); see 134 Ill. 2d R. 341(e)(7). Defendants filed a cross-appeal from the portion of the order denying their motion for Rule 137 sanctions.

Subsequently, plaintiff brought a motion to expunge defendants' cross-appeal due to lack of jurisdiction and defendants brought a motion to strike portions of plaintiff's brief. Both motions were taken with the case.

On July 29, 1992, Addean Crockett underwent a surgical procedure that rendered her unable to care for herself. Attorney Mary Tobin (defendant Tobin) referred Addean's daughters, Aera Crockett and Annette Crockett-Cotton (the Crocketts), to plaintiff to pursue a medical malpractice case for Addean's injuries.

On May 4, 1993, the Crocketts were appointed coguardians of the estate of Addean Crockett. On June 3, 1993, the Crocketts signed a fee disclosure form that also discussed the responsibilities of defendant Tobin and plaintiff to the Crocketts. On June 14, 1993, the Crocketts, as coguardians, signed the retainer agreement to employ plaintiff to pursue their medical malpractice case.

In September 1993, the Crocketts, as coguardians, discharged plaintiff and retained the law firm of Munday & Nathan to prosecute their malpractice case. Defendant Tobin's brother, James Tobin, was an associate attorney at Munday & Nathan.

On July 12, 1994, Addean Crockett died. The Crocketts were appointed coadministrators of her estate. In October 1996, Munday & Nathan reached a settlement with the defendants in that case. As a result, approximately $342,500 was available under court rules and law for attorney fees. The parties in this action were unable to agree upon a division of the fees. On December 10, 1996, plaintiff filed the present lawsuit seeking its share of the fees and punitive damages.

Prior to reaching the merits of the plaintiff's arguments on appeal, we must initially address one of the motions that has been taken with the case. The defendants filed a motion seeking to strike the statement of facts in the plaintiff's brief for the following reasons: (1) it includes argument and comment; (2) it contains information that is not found on the face of the third amended complaint; and (3) it includes information that is not included in the record.

Supreme Court Rule 341(e)(6) provides, in part, that the statement of facts section of an appellate brief "shall contain the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment." 145 Ill. 2d R. 341(e)(6). Defendants are correct in objecting to plaintiff's statement of facts in this case. Many of the questionable remarks were taken verbatim from plaintiff's third amended complaint and thus were combative. However, portions of plaintiff's statement of facts do comply with Rule 341(e)(6). Regardless, plaintiff's argumentative remarks and comments did not interfere with this court's review of the case since this court has made an effort to view plaintiff's statement of facts objectively. "Where violations of supreme court rules are not so flagrant as to hinder or preclude review, the striking of a brief in whole or in part may be unwarranted." Cottrill v. Russell, 253 Ill. App. 3d 934, 938, 625 N.E.2d 888, 890 (1993). Under the circumstances in this case, the statement of facts need not be stricken, but the remarks in question will simply be disregarded.

Defendants next argue that plaintiff's statement of facts should be stricken because it contains information that is not found on the face of the third amended complaint. We find no rule or authority that requires a complainant to state facts only found in a prior complaint. Therefore, the statement of facts need not be stricken for this reason.

Finally, defendants argue plaintiff's statement of facts should be stricken because it contains comments and statements not found in the record. While we do not condone the type of careless disregard for the supreme court rules evidenced by plaintiff's brief, due to the relative simplicity of the record before us, we elect to consider the merits of this appeal. Nevertheless, any inappropriate or unsupported statements in reviewing this matter will be disregarded by this court. See Falk v. Martel, 210 Ill. App. 3d 557, 559, 569 N.E.2d 248, 249-50 (1991). The motion to strike is denied.

Next, we will consider whether count I of plaintiff's third amended complaint states a cause of action for quantum meruit recovery. Defendants argue that plaintiff failed to provide the requisite factual support to sustain a claim for quantum meruit recovery in its third amended complaint. Specifically, defendants contend that "plaintiff does not state that it performed certain services. Nor does the plaintiff allege how such services benefitted the defendants, or how the services advanced the underlying medical malpractice claim." Plaintiff alleges that it "performed all obligations required of plaintiff to be performed under the terms of said agreement, i.e., to prosecute the Crockett's medical malpractice claim on behalf of Addean Crockett."

The trial court properly dismissed count I of plaintiff's third amended complaint concerning quantum meruit recovery pursuant to section 2-615 since plaintiff failed to plead sufficient facts to allow the trial court to determine whether plaintiff would be entitled to recover. However, from a review of the pleadings and the record, we have concluded that the quantum meruit count in plaintiff's second amended complaint was improperly criticized by the court, which led to its abandonment. In fact, plaintiff's second amended complaint was forsaken after the trial court admonished plaintiff that it was too specific. According to plaintiff, the trial court viewed the second amended complaint as "impermissibly telling a story" or "pleading surplusage." For the reasons stated below, we allow plaintiff the opportunity to file a fourth amended complaint on the issue of quantum meruit.

In reviewing the dismissal of a complaint, the court must take all well-pled facts as true (Steinberg v. Chicago Medical School, 69 Ill. 2d 320, 329, 371 N.E.2d 634, 639 (1977)) and must draw all reasonable inferences from those facts that are favorable to the pleader (Your Style Publications, Inc. v. Mid Town Bank & Trust Co., 150 Ill. App. 3d 421, 424, 501 N.E.2d 805, 807 (1986)). Dismissal of a cause of action on the pleadings is proper only where it is clearly apparent that no set of facts can be proven entitling the plaintiff to recover. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 483, 639 N.E.2d 1282, 1288-89 (1994).

Generally, the rule is that "'[w]here an amendment is complete in itself and does not refer to or adopt the prior pleading, the earlier pleading ceases to be a part of the record for most purposes, being in effect abandoned and withdrawn.'" Foxcroft Townhome Owners Ass'n. v. Hoffman Rosner Corp., 96 Ill. 2d 150, 154, 449 N.E.2d 125, 126 (1983), quoting Bowman v. County of Lake, 29 Ill. 2d 268, 272, 193 N.E.2d 833, 835 (1963). There are important policy considerations which support adherence to this universal rule. In particular is "the interest in the efficient and orderly administration of Justice." Foxcroft Townhome Owners Ass'n, 96 Ill. 2d at 154, 449 N.E.2d at 126. "It is expected that a cause will proceed to trial on the claims as set forth in the final amended complaint." Foxcroft Townhome Owners Ass'n., 96 Ill. 2d at 154, 449 N.E.2d at 126.

Nevertheless, in this case, the second amended complaint may be considered on review. In Stenwall v. Bergstrom, 398 Ill. 377, 382, 75 N.E.2d 864, 867 (1947), the court stated, "[i]t often becomes necessary, when a record is brought to this court for review, to review the entire record to do Justice between the parties in the cause." See Ill. Rev. Stat. 1945, ch. 110, par. 45(4). Furthermore, Supreme Court Rule 366 (134 Ill. 2d R. 366) provides: "(a) Powers. In all appeals the reviewing court may, in its discretion, and on such terms as it deems just *** (5) enter any judgment and make any order that ought to have been given or made, *** ." This provision recognizes: "the responsibility of a reviewing court for a just result and for the maintenance of a sound and ...


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