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Ferris, Thompson, & Zweig, Ltd. v. Esposito

Court of Appeals of Illinois, Second District

February 5, 2014

FERRIS, THOMPSON, AND ZWEIG, LTD., Plaintiff-Appellee,
v.
ANTHONY ESPOSITO, Defendant-Appellant

Appeal from the Circuit Court of Lake County. No. 12-SC-622. Honorable Michael J. Fusz, Judge, Presiding.

Affirmed.

SYLLABUS

In an action to recover the fees plaintiff law firm was owed pursuant to a referral agreement under which defendant attorney was to represent two workers' compensation claimants before the Workers' Compensation Commission and plaintiff was to perform other services, including document preparation, interviews, and translation services, the trial court properly rejected defendant's contention that the claim should have been filed with the Commission, not in the trial court, and awarded plaintiff 45% of the fees recovered according to the referral agreement, notwithstanding the language of section 16a(J) of the Workers' Compensation Act suggesting that all disputes regarding attorney fees shall be resolved by the Commission, since the statute was referring to the fees of those representing claimants before the Commission, not the breach of a referral agreement such as the agreement at issue in the instant case where plaintiff did not represent the claimant before the Commission, but performed ancillary tasks, not services in connection with the Act.

Michael D. Furlong, of Trobe, Babowice & Associates, LLC, of Waukegan, for Appellant.

Saul M. Ferris, of Ferris, Thompson & Zweig, Ltd., of Gurnee, for Appellee.

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Hudson and Spence concurred in the judgment and opinion.

OPINION

BIRKETT, JUSTICE

Page 1127

Plaintiff, Ferris, Thompson, & Zweig, Ltd., referred to defendant, Anthony Esposito, two workers' compensation cases. According to the parties' agreement, plaintiff was to receive 45% of all attorney fees recovered in the cases, with defendant receiving the remaining 55%. When the cases were resolved, defendant never paid plaintiff. Accordingly, plaintiff sued defendant in the circuit court for breach of contract. Defendant moved to dismiss, arguing that the claim should have been filed with the Workers' Compensation Commission (Commission) and not in the circuit court. See 735 ILCS 5/2-619(a)(1) (West 2012). The circuit court denied that motion and, following a trial, ordered defendant to pay plaintiff the fees it was owed plus interest. On appeal, defendant argues that the circuit court lacked subject matter jurisdiction over the case. We disagree, and, thus, we affirm.

The following facts are relevant to resolving the issue raised. On February 3, 2012, plaintiff filed its complaint for breach of contract. Plaintiff alleged that it and defendant entered into an agreement whereby " [they] agreed to act as co-counsel in the legal representation of" two women who were injured during their employment. The workers' compensation cases were settled on November 29, 2010, for a total of $4,554.19. When plaintiff asked defendant for its share of the attorney fees, defendant refused to pay plaintiff.

Attached to plaintiff's complaint was the attorney-client agreement plaintiff had with the two women and defendant. According to that agreement, which plaintiff, defendant, and both women signed, both women asserted that they had retained the services of plaintiff and " underst[oo]d and agree[d] that [plaintiff] ha[d] contracted with [defendant] to pursue this workers' compensation claim on [the women's] behalf." The women further stated that they understood and agreed that plaintiff would have various responsibilities and receive a portion of any attorney fees. In that regard, the agreement provided:

" [Plaintiff] shall:
a. Assist [defendant] with initial interviews and document preparation necessary to the [workers' compensation] claim;
b. Be responsible for assisting [defendant] with client contact and communication in the offices of [plaintiff], as the need arises;
c. Provide translation services as the need arises. However, translation services performed outside of the Offices of [plaintiff] will be an expense assessed to the client[s];
d. Represent the client[s] in any third party action. In the event a third party ...

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