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Richard C. Moenning v. Union Pacific Railroad Company

February 21, 2012


Appeal from the Circuit Court of Cook County. No. 04 L 8443 Honorable Eileen Mary Brewer, Judge Presiding.

The opinion of the court was delivered by: Justice Rochford

JUSTICE ROCHFORD delivered the judgment of the court, with opinion. Presiding Justice Hoffman and Justice Hall concurred in the judgment and opinion.


¶ 1 Plaintiff, Richard C. Moenning, an attorney, brought this action against defendant, Union Pacific Railroad Company (Union Pacific), for personal injuries he suffered while disembarking from a passenger train car, which was off the platform. Attorney Norman J. Lerum represented plaintiff in his pursuit of those claims in the trial court. Plaintiff now challenges the circuit court's orders granting Mr. Lerum's petition to adjudicate his attorneys's lien and denying plaintiff's motion to reconsider that order. We affirm.


¶ 3 In his complaint, plaintiff raised claims of negligence and wilful and wanton conduct against Union Pacific. The case proceeded to trial. The trial court granted defendant a directed verdict on plaintiff's wilful and wanton claim. On June 29, 2007, the jury returned a verdict in favor of plaintiff in the amount of $125,000, after finding plaintiff was 50% at fault for his injuries. Plaintiff, in a combined motion, moved for a new trial and for sanctions pursuant to Illinois Supreme Court Rule 137 (Ill. S. Ct. R. 137 (eff. Feb. 1, 1994)) against defendant for having denied it was negligent. Plaintiff's motions were denied. Plaintiff timely appealed from the judgment entered on the jury verdict and the order denying his combined posttrial motion and motion for sanctions. The notice of appeal stated:

"By this Appeal, the plaintiff will ask the Appellate Court to vacate and/or reverse the jury's finding that the plaintiff was 50% contributorily negligent and then enter judgment in plaintiff's favor for $250,000, the total amount of damages which the jury found the plaintiff had suffered as a proximate result of defendant Union Pacific Railroad Company's negligence. The plaintiff also will ask the Appellate Court to reverse and remand the denial of his Motion for Sanctions Pursuant to Supreme Court Rule 137.

Alternatively, the plaintiff will ask that the Appellate Court vacate the jury's verdict, reverse the aforementioned June 29, 2007, Judgment, and remand this matter for a new trial on damages only, or on all issues. Alternatively, the plaintiff will request such other and further relief as may be deemed appropriate."

Defendant did not appeal the judgment. Plaintiff, in his brief on appeal, made two arguments: (1) the jury's finding as to his contributory negligence was contrary to the evidence; and (2) the trial court erred in granting defendant a directed verdict as to the wilful and wanton claim. We affirmed the judgment of the circuit court on September 14, 2009. See Moenning v. Union Pacific R.R. Co., No. 1-08-0543 (2009) (unpublished order under Supreme Court Rule 23). Plaintiff filed a petition for leave to appeal, which was denied on March 24, 2010. Moenning v. Union Pacific R.R., 236 Ill. 2d 508. The mandate from this court to the circuit court issued on May 7, 2010.

¶ 4 On September 22, 2009, Mr. Lerum, who had represented plaintiff in the trial court but not on the appeal from the judgment on the personal injury suit, filed a petition to adjudicate and enforce his attorneys lien pursuant to the Attorneys Lien Act (770 ILCS 5/1 (West 2010)). The petition attached a copy of a signed contingency fee agreement (agreement), which provided that plaintiff agreed "to pay and hereby *** assign to Norman J. Lerum an amount equal to one-third (33a%) of all monies recovered (gross recovery) before, during or after trial, whether by suit, settlement or otherwise, excluding any recovery made during or after an appeal or a retrial." (Emphasis added.) Plaintiff also agreed to reimburse Mr. Lerum for all expenses incurred during the course of the litigation. The agreement did not obligate Mr. Lerum to represent plaintiff on any appeal.

¶ 5 In his petition, Mr. Lerum alleged that he expended 341.5 hours in connection with the pursuit of plaintiff's suit in the trial court and set forth, in detail, the services he performed on behalf of plaintiff, including: the preparation of pleadings, discovery and motions; court appearances; and preparation for and representation of plaintiff at trial. The petition itemized the unpaid litigation expenses, which totaled $9,471.03.

¶ 6 Mr. Lerum further alleged that, on July 13, 2007, a notice of attorneys lien (notice) was served by certified mail on Union Pacific at its Chicago office, located at 101 North Wacker Drive, Room 1920. The notice was addressed to Thomas W. Cushing, an attorney in the law department of Union Pacific. On July 18, 2007, the notice was accepted by a signature of "M. Bovenza." A copy of the notice and the certified mail receipt were attached to the petition. Mr. Lerum asserted that the notice was served on Union Pacific during his attorney-client relationship with plaintiff.

¶ 7 Plaintiff filed a response to Mr. Lerum's petition asserting, generally, that Mr. Lerum had not properly perfected his lien, and, therefore, the circuit court lacked subject-matter jurisdiction to adjudicate the lien. The trial court, after a hearing held on December 2, 2009, in a written order, granted the petition "in the amount of $51,137.69 plus a proportionate share of statutory interest from the entry of judgment." The order included findings that the service of the notice was proper, and the notice was properly directed to Thomas Cushing, "an attorney and officer of the Union Pacific Railroad." The record on appeal does not contain a report of proceedings or bystander's report as to the December 2, 2009, hearing.

¶ 8 In his motion to reconsider, filed on January 4, 2010, plaintiff, for the first time, asserted that the trial court was divested of jurisdiction to hear the petition to adjudicate the lien because his petition for leave to appeal as to the judgment in his personal injury suit was still pending, and, therefore, the mandate had not yet issued. Plaintiff also argued the trial court had made "erroneous findings" and failed to make "necessary findings" as to the sufficiency of the notice and petition. Finally, plaintiff contended the attorney-client relationship had terminated prior to the service of the notice, and the petition had failed to state the specific amount of the interest Mr. Lerum had in the judgment. Plaintiff's motion to reconsider did not include evidentiary support. On February 3, 2010, Mr. Lerum filed his response to the motion for reconsideration.

¶ 9 However, plaintiff failed to notice his motion to reconsider for hearing within 90 days of its filing, as provided in Circuit Court of Cook County Rule 2.3 (Cook Co. Cir. Ct. R. 2.3 (July 1, 1976)). On April 11, 2010, Mr. Lerum filed a motion to deny plaintiff's motion for reconsideration for violation of Rule 2.3. In his response, plaintiff argued his refusal to call his motion to reconsider for hearing was justified on the ground that the circuit court was without jurisdiction until the mandate from the appellate court as to the judgment on the jury verdict was returned.

ΒΆ 10 After hearing oral arguments on both motions, the trial court, on June 4, 2010, granted Mr. Lerum's motion to deny the motion for reconsideration and denied plaintiff's motion to reconsider. At that time, ...

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