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In Re Estate of Ian A. F. Mcfadden, A Minor v. Kim Maccloskey and Associates

December 30, 2011

IN RE ESTATE OF IAN A. F. MCFADDEN, A MINOR
(TARA FULLER, AS GUARDIAN OF THE ESTATE, )
PETITIONER-APPELLEE,
v.
KIM MACCLOSKEY AND ASSOCIATES, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Winnebago County. No. 07-P-362 Honorable Lisa Fabiano, Judge, Presiding.

The opinion of the court was delivered by: Justice Hutchinson

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justice Burkeconcurred in the judgment and opinion.

Justice Schostokspecially concurred, with opinion.

OPINION

¶ 1 Respondent, the law firm of Kim MacCloskey & Associates, appeals the trial court's judgment that adjudicated respondent's attorney's lien to zero and extinguished respondent's claim for attorney fees pursuant to case law and the Attorneys Lien Act (the Act). 770 ILCS 5/1 (West 2006). Respondent contends that the trial court erred in interpreting the Act and abused its discretion when it determined that, pursuant to a quantum meruit theory, respondent was not entitled to attorney fees. We affirm.

¶ 2 This matter stems from personal injury litigation on behalf of Ian A. F. McFadden, a minor child, whose parents divorced five years prior to the child's injury. On February 13, 2003, petitioner, Tara Fuller, and James McFadden (James) obtained a judgment for dissolution of marriage. Petitioner was awarded full custody of the couple's two children, James Jr. and Ian. As of March 1, 2003, James was ordered to pay $367 per month in child support for the benefit of the children.

¶ 3 From March 1, 2003, through April 30, 2007, James was unemployed and failed to satisfy his child support obligations. On July 18, 2007, the trial court entered an order finding that James was $21,671.75 in arrears on his child support obligations and it issued a warrant for his arrest.

¶ 4 One month later, on August 21, 2007, 10-year-old Ian sustained a broken arm and multiple skull fractures after being struck by a tree limb that fell during tree removal operations performed by Tree Care Enterprises, an agent employed by the City of Rockford. On September 4, 2007, James, purporting to act in his capacity as Ian's father and next friend, retained the services of respondent to pursue a tort action relating to Ian's injuries.

¶ 5 On September 5, 2007, respondent sent notices of attorney's liens by certified mail to Tree Care Enterprises and the City of Rockford. The notices provided, in relevant part:

"[Y]ou are hereby notified that James McFadden on behalf of his minor son, Ian McFadden, has placed in my hands, as his attorney, for suit and collection, a claim, demand or cause of action, against you growing out of personal injuries he sustained on or about August 21, 2007, as a result of negligence or other conduct. James McFadden has agreed to pay me for such services ***."

Thereafter, respondent alleges, it performed legal research regarding strict liability based on ultrahazardous activities.

¶ 6 On September 5, 2007, petitioner, also purporting to act in her capacity as Ian's parent and next friend, retained attorney Anthony Kielty (petitioner's attorney) of the Law Office of Reno & Zahm, LLP, to pursue a personal injury action on Ian's behalf. On September 6, 2007, petitioner's attorney filed on petitioner's behalf a petition for guardianship of a minor, seeking to have petitioner appointed as guardian of the estate and person of Ian for the purpose of prosecuting Ian's personal injury claim.

¶ 7 That same day, September 6, 2007, respondent filed a complaint in the trial court on behalf of James, both individually and as next friend of Ian. The complaint alleged against Tree Care Enterprises and the City of Rockford negligence, res ipsa loquitur, strict liability, and counts under the family expense provision of the Rights of Married Persons Act (750 ILCS 65/15 (West 2006)).

¶ 8 Also on September 6, 2007, after respondent filed the complaint, petitioner's attorney notified respondent by letter that he had been retained to represent petitioner and Ian, and he asserted petitioner's right to act as Ian's representative. The letter further informed respondent that petitioner had filed a petition for guardianship, that James was not the custodial parent of Ian, that James was substantially in arrears on his court-ordered child support obligations for Ian's benefit, and that a warrant had been issued for James' arrest in connection with his child support arrearage. The letter directed respondent to take no further action with respect to Ian's personal injury action.

ΒΆ 9 Respondent verified the information alleged in the letter and spoke with James regarding the need to remedy the situation. Respondent provided James with the names and contact information of several attorneys who ...


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