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W.T. Mechanical, Inc v. Heatmasters

September 15, 2011


The opinion of the court was delivered by: Charles P. Kocoras, District Judge:


This case comes before the Court on cross-motions for summary judgment filed pursuant to Federal Rule of Civil Procedure 56 by defendant and counterclaim-plaintiff, the United States of America (the "United States"), and counterclaim-defendant Bruce Rose ("Attorney Rose"). Attorney Rose also filed a motion to strike. For the reasons stated below, the United States' motion is granted and Attorney Rose's motions are denied.


Between October 7, 2002, and September 13, 2004, several federal employment tax assessments were made against W.T. Mechanical, Inc. ("WT Mechanical"). Notices of the assessments, and demands for payment, were sent to WT Mechanical on the dates of the assessments. Despite such notices and demands, WT Mechanical failed to pay the taxes. On January 19, 2005, the Internal Revenue Service (the "IRS") filed a tax lien against WT Mechanical with the Illinois Secretary of State. WT Mechanical is liable to the United States for unpaid federal taxes in the amount of $259,444.32, plus interest and other statutory additions accruing from and after April 15, 2011.*fn2

Around May 2003, WT Mechanical asked Attorney Rose to file a lawsuit on its behalf against Heatmasters, Inc. ("Heatmasters") in the Circuit Court of Cook County. Before filing the lawsuit, on June 4, 2003, Attorney Rose agreed to represent WT Mechanical in the litigation against Heatmasters for $150 per hour plus a twenty percent contingency fee. On September 5, 2003, Attorney Rose, on behalf of WT Mechanical, filed the lawsuit against Heatmasters. Approximately eight months after filing the lawsuit, on April 30, 2004, Attorney Rose and WT Mechanical amended their fee agreement, so that Attorney Rose would earn a contingency fee equaling one-third of any recovery against Heatmasters.

From March 2003 to May 2004, Attorney Rose represented WT Mechanical in other matters and wanted to secure payment of his fees from any amount recovered in the case against Heatmasters. For this reason, in May 2004, Attorney Rose and WT Mechanical orally agreed that Attorney Rose would continue to represent WT Mechanical on all other matters for $275 per hour and that WT Mechanical's payment would be deferred until Attorney Rose resolved the case against Heatmasters. WT Mechanical agreed that all of Attorney Rose's fees would "come off the top" of any recovery from Heatmasters. Attorney Rose eventually capped his fees for all hourly matters at $63,000.

On September 12, 2006, Attorney Rose and WT Mechanical again amended their fee agreement. According to Attorney Rose, the amendment memorialized the May 2004 oral agreement, even though it does not expressly refer to the date of the prior oral agreement. Pursuant to the amendment, WT Mechanical would use any money recovered from Heatmasters to first pay Attorney Rose the one-third contingency fee for work done in that case and then pay Attorney Rose $63,000 for work done in other matters.*fn3

In March 2007, WT Mechanical voluntarily dismissed its lawsuit against Heatmasters. The dismissal caused Attorney Rose and WT Mechanical to once more amend the fee agreement on July 26, 2007, to ensure that their previous fee agreement applied to any recovery from Heatmasters at any time, whether through litigation, arbitration, mediation, or otherwise. On February 29, 2008, WT Mechanical filed another lawsuit against Heatmasters in the Circuit Court of Cook County. This subsequent complaint was based on events occurring in 2002 and 2003 and contained allegations similar to those alleged in the original complaint against Heatmasters. On December 15, 2010, WT Mechanical and Heatmasters settled the pending claims for $122,500.

On February 22, 2011, Heatmasters paid the one-third contingency fee directly to Attorney Rose. In March 2011, the IRS was impleaded as a third-party defendant in the case against Heatmasters, so the court could decide the proper disposition of the remaining $81,670.75 in settlement proceeds. The IRS removed the case to this Court and the IRS and Attorney Rose filed cross-motions for summary judgment. The IRS asserts that it is entitled to all of the remaining settlement proceeds and Attorney Rose contends that he is entitled to $63,000 of the remaining settlement proceeds.


Summary judgment is appropriate when the pleadings, discovery materials, disclosures, and affidavits demonstrate no genuine issue of material fact, such that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Protective Life Ins. Co. v. Hansen, 632 F.3d 388, 391-92 (7th Cir. 2011). A genuine issue of material fact exists when, based on the evidence, a reasonable jury could find in favor of the non-moving party. Van Antwerp v. City of Peoria, Ill., 627 F.3d 295, 297 (7th Cir. 2010). When faced with cross-motions for summary judgment, the court "construe[s] all inferences in favor of the party against whom the motion under consideration is made." Edwards v. Briggs & Stratton Ret. Plan, 639 F.3d 355, 359 (7th Cir. 2011).


If a person who is liable to pay a tax neglects or refuses to pay the tax after a demand is made, the amount of the tax is a lien in favor of the United States on all property and rights to property belonging to such person. 26 U.S.C. § 6321. The federal tax lien arises at the time the assessment is made and continues until the liability is satisfied. 26 U.S.C. § 6322. The federal tax lien is not valid against any purchaser, holder of a security interest, mechanic's lienor, or judgment lien creditor, until notice of the lien has been properly filed. 26 U.S.C. § 6323(a).

Even if notice has been filed, the federal tax lien is not valid with respect to certain categories of liens which receive a super-priority status, including certain attorneys' liens. 26 U.S.C. ยง 6323(b)(8). Under Section 6323(b)(8), the federal tax lien is not valid as to settlement proceeds against an attorney who, under local law, holds a lien or contract enforceable ...

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