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

Court of Appeals of Illinois, Second District

August 10, 2016

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

         Appeal from the Circuit Court of Lake County. No. 13-L-483 Honorable Thomas M. Schippers, Judge, Presiding.

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

          OPINION

          BIRKETT JUSTICE.

         ¶ 1 Plaintiff, Ferris, Thompson, & Zweig, Ltd., and defendant, Anthony Esposito, had a longstanding work relationship. During that relationship, plaintiff referred a number of workers' compensation clients to defendant in return for a portion of the attorney fees defendant received. Each such referral was evidenced by a written agreement that each of the parties and the clients signed. When defendant refused most recently to pay plaintiff pursuant to some of these agreements, plaintiff sued defendant. Defendant moved to dismiss, claiming that the agreements did not comply with Rule 1.5(e)(1) of the Illinois Rules of Professional Conduct of 2010 (eff. Jan. 1, 2010) in that they did not expressly state that the parties assumed "joint financial responsibility" in representing the clients. The trial court granted the motion to dismiss. We reverse and remand.

         ¶ 2 The relationship between the parties began sometime around 2007. In 2012, before this appeal arose, defendant refused to pay plaintiff pursuant to two referral agreements, and plaintiff sued defendant in circuit court for breach of contract. Defendant moved to dismiss, arguing that the Worker's Compensation Commission, not the circuit court, had jurisdiction over the case. The trial court denied the motion, defendant appealed, and the trial court's decision was affirmed by this court (see Ferris, Thompson, & Zweig, Ltd. v. Esposito, 2014 IL App (2d) 130129) and our supreme court (Ferris, Thompson, & Zweig Ltd. v. Esposito, 2015 IL 117443) (Ferris I).

         ¶ 3 While Ferris I was pending in this court, defendant refused to pay plaintiff pursuant to 10 other referral agreements. As a result, plaintiff filed a 10-count complaint against defendant. Attached to the complaint were the referral agreements executed in each case. These agreements, which were executed between 2007 and 2010, provided, like the agreements in Ferris I, that the clients had retained plaintiff and that plaintiff had contracted with defendant for defendant to pursue the clients' workers' compensation cases on their behalf. The agreements also outlined which services each attorney would provide, and each agreement was signed by plaintiff, defendant, and the client. Nowhere did the agreements state that the attorneys assumed "joint financial responsibility" for representing the clients. Ill. R. Prof'l Conduct (2010) R. 1.5(e)(1) (eff. Jan. 1, 2010).

         ¶ 4 Defendant moved to dismiss pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2014)), arguing, among other things, that the agreements were unenforceable. Specifically, defendant claimed that the agreements did not comply with Rule 1.5(e)(1) in that the agreements did not state that plaintiff and defendant agreed to assume "joint financial responsibility." Ill. R. Prof'l Conduct (2010) R. 1.5(e)(1) (eff. Jan. 1, 2010). Plaintiff responded, claiming, among other things, that Rule 1.5(e), which governs referral agreements, does not mandate that a written referral agreement contain such an express statement. Ill. R. Prof'l Conduct (2010) R. 1.5(e) (eff. Jan. 1, 2010).

         ¶ 5 The trial court granted defendant's motion. Plaintiff moved the court to reconsider, the court denied the motion, and this timely appeal followed.

         ¶ 6 At issue in this appeal is whether plaintiff's complaint should have been dismissed. A section 2-615 motion to dismiss attacks the legal sufficiency of a pleading. Vernon v. Schuster, 179 Ill.2d 338, 344 (1997). We review de novo an order granting a motion to dismiss under section 2-615. Marshall v. Burger King Corp., 222 Ill.2d 422, 429 (2006).

         ¶ 7 Resolving whether defendant's motion to dismiss should have been granted is problematic, because, unfortunately, defendant has not filed a brief on appeal. While we may not reverse summarily on that basis alone, we need not serve as defendant's advocate or search the record for a basis upon which to affirm. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 133 (1976); Orava v. Plunkett Furniture Co., 297 Ill.App.3d 635, 636 (1998). As relevant here, unless the record is simple and the issues can be easily decided without the aid of an appellee's brief, we may reverse "if the appellant's brief demonstrates prima facie reversible error and the contentions of the brief find support in the record." Talandis, 63 Ill.2d at 133; see Orava, 297 Ill.App.3d at 636. " 'Prima facie means, "at first sight, on the first appearance, on the face of it, so far as can be judged from the first disclosure; presumably; a fact presumed to be true unless disproved by some evidence to the contrary." [Citation.]' " Talandis, 63 Ill.2d at 132 (quoting Harrington v. Hartman, 233 N.E.2d 189, 191 (Ind. App. 1968)).

         ¶ 8 We do not believe that the issue raised in this case can be easily decided. Therefore, we consider whether plaintiff's brief establishes prima facie reversible error. We hold that it does.

         ¶ 9 In so holding, we must examine Rule 1.5(e). In interpreting Rule 1.5(e), we apply the same principles that we employ in construing a statute. In re Marriage of Nettleton, 348 Ill.App.3d 961, 967 (2004). Our primary goal in construing a rule is to ascertain and give effect to the drafters' intent. Id. The surest and most reliable indicator of the drafters' intent is the language used in the rule. Macknin v. Macknin, 404 Ill.App.3d 520, 530 (2010). Accordingly, when the language in the rule is clear and unambiguous, we must apply it as written, giving the rule's language its plain and ordinary meaning. Id. However, if the rule is ambiguous, we may look beyond the rule's language to discern the drafters' intent, and we may consider the purpose of the rule and the evils that the rule was designed to remedy. People v. King, 349 Ill.App.3d 877, 879 (2004). Moreover, when a rule is ambiguous, courts may look to the rule's committee comments to ascertain the drafters' intent. In re Estate of Burd, 354 Ill.App.3d 434, 437 (2004). Regardless, whenever possible, we will avoid a construction that leads to absurd or unjust results, and we will presume that the drafters intended a sensible result rather than an absurd one. In re Marriage of Nettleton, 348 Ill.App.3d at 967. Like a ruling on a motion to dismiss, we review de novo the construction of a rule. See In re Marriage of Webb, 333 Ill.App.3d 1104, 1108 (2002).

         ¶ 10 Rule 1.5(e) provides:

"A division of a fee between lawyers who are not in the same firm may be ...

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