Appeal from the Circuit Court of Cook County. No. 08 L 00981, 08 L 02230 The Honorable Alexander P. White, Judge Presiding.
The opinion of the court was delivered by: Justice Harris
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Quinn and Justice Connors concurred in the judgment and opinion.
¶ 1 Plaintiff-appellant Hannafan & Hannafan, Ltd. (Hannafan), appeals
the order of the circuit court granting the third-party motion of
citation respondent-appellee Cotsirilos, Tighe & Streicker, Ltd.
(Cotsirilos), for an adverse claim. Hannafan had filed a motion to
compel Cotsirilos to turn over $25,000 paid to it by Bloom, defendant
in the underlying action, against whom Hannafan had secured a
$52,190.23 judgment. Cotsirilos filed an adverse claim alleging that
since Bloom had
made the payment pursuant to an advance payment
retainer, the monies became property of the firm not subject to a
turnover order. For the reasons set forth below, we affirm.
¶ 3 The trial court entered a final judgment in the instant case on February 8, 2011, and plaintiff filed his notice of appeal on March 10, 2011. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below.
Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).
¶ 5 In the underlying action, Hannafan brought suit against Bloom and his affiliated companies to collect unpaid attorney fees and expenses. Hannafan obtained a judgment against Bloom in the amount of $52,190.23 on May 4, 2010. Bloom and the other defendants did not appeal that decision. In order to collect on the judgment, Hannafan issued a citation to discover assets to Cotsirilos. In response, Cotsirilos produced, among other documents, an advance payment retainer agreement between Bloom and Cotsirilos executed in December 2007. The agreement states as follows:
"Before we begin work on this engagement, our firm requires payment by you of an advance payment retainer in the amount of $50,000.00. An 'advance payment retainer' is recognized and approved under Illinois law as a present payment by you to us as your attorneys, in exchange for our commitment to provide legal services to you. Ownership of this sum passes to our firm immediately upon receipt of your advance payment retainer, and therefore the funds will not be held in a client trust account. Illinois law permits other forms of retainer, such as the 'security retainer,' in which a client pre-pays an amount which remains the client's property but that must be held in trust by your attorney until it is applied toward fees. As we discussed, Cotsirilos, Tighe & Streicker has determined that your interests in this matter and the nature of our practice are best served by the 'advance payment retainer' and so we require such payment in this engagement.
After we receive this advance payment retainer we will bill you on a monthly basis for the fees and expenses we incur on your behalf each month, and you agree to pay those monthly bills in full within 30 days of receipt. The advance payment retainer will be applied to our last invoice for services to you. If the amount of advance payments made by you during this engagement exceeds the amount of fees and expenses we charge during the course of the engagement, we will make a payment to you for the amount of such difference at the conclusion of our representation."
¶ 6 Hannafan also discovered that in December 2008, per Bloom's request, Cotsirilos applied $25,000 of the advance payment retainer against the then-unpaid and outstanding balance. On August 31, 2010, Hannafan filed a motion to turn over funds, arguing that the remaining $25,000 in Cotsirilos' possession was a security retainer subject to collection in partial satisfaction of its judgment against Bloom. Cotsirilos filed an adverse claim, contending that Bloom made the payment pursuant to an advance payment retainer and therefore the monies belonged to Cotsirilos, not Bloom. The trial court granted Cotsirilos' motion for an adverse claim, finding that although ...