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Goldwater v. Greenberg

Court of Appeals of Illinois, First District, Sixth Division

December 15, 2017

BEN GOLDWATER, Plaintiff-Appellant,
v.
GEORGE S. GREENBERG and DENISE GREENBERG, Defendants-Appellees.

         Appeal from the Circuit Court of Cook County No. 16 M1113057 Honorable Patricia S. Spratt, Judge, Presiding.

          PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Justices Cunningham and Connors concurred in the judgment and opinion.

          OPINION

          HOFFMAN, PRESIDING JUSTICE

         ¶ 1 The plaintiff, Ben Goldwater, appeals from a judgment of the circuit court dismissing his single count complaint against the defendants, George S. Greenberg (George) and Denise Greenberg (Denise), for breach of a contract to pay legal fees for their son, Jason H. Greenberg (Jason). For the reasons which follow, we: affirm the dismissal of Denise as a party defendant; reverse the dismissal of the plaintiff's action against George; and remand this matter back to the circuit court for further proceedings.

         ¶ 2 The following factual recitation is taken exclusively from the facts alleged in the plaintiff's complaint. The plaintiff, an attorney licensed to practice law in Illinois, entered into a written retention agreement with Jason on March 23, 2012, pursuant to which he agreed to represent Jason in a domestic relations matter in exchange for Jason's agreement to pay the plaintiff $375 per hour for his services with an initial retainer of $5, 000. A copy of the retention agreement was attached to the complaint as an exhibit. At the time of the execution of the retention agreement, Jason advised the plaintiff that all billing should be sent to the defendants. Attached to the complaint is a copy of an undated note signed by Jason, stating: "Please send all bills to George S. Greenberg." George confirmed the instruction which "included the statement that the Defendants would pay all legal fees and costs in relation to the matrimonial action that was to be filed on behalf of Defendants' son[, Jason]."

         ¶ 3 On March 23, 2012, an initial retainer of $5, 000 was paid to the plaintiff by means of a check signed by George. A copy of that check was attached to the complaint. On May 2, 2013, the plaintiff sent a billing statement to the defendants, reflecting a balance due of $1, 097. That statement was addressed to Jason. The plaintiff received a $1, 097 check signed by George dated May 3, 2013. Copies of the billing statement and check were attached to the complaint. On May 12, 2015, the plaintiff sent an additional billing statement with a balance due of $4, 546.50 to the defendants. That statement was also addressed to Jason. The plaintiff received a check in the sum on $4, 546.50 dated May 20, 2015, signed by George. Copies of the billing statement and check were attached to the complaint.

         ¶ 4 The plaintiff represented Jason in his domestic relations matter through and including December 30, 2015, when the circuit court of Cook County entered a judgment of dissolution of marriage in the matter. On January 8, 2016, the plaintiff issued a final bill for his services and sent a copy to both the defendants and Jason. Neither Jason nor the defendants paid the final bill, and the plaintiff filed the instant action against the defendants seeking damages for breach of contract.

         ¶ 5 The defendants filed a motion which they labeled as a "MOTION TO STRIKE AND DISMISS COMPLAINT." According to the motion, it was brought pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2016)). In the body of the motion, the defendants argued that: (1) the attorney fees which are the subject of this litigation had been discharged in a bankruptcy proceeding filed by Jason; (2) they are not parties to the retention agreement upon which the plaintiff's complaint is based; (3) their alleged promise to pay their son's legal fees is unenforceable under the "Statute of Frauds;" and (4) no action may be maintained by the plaintiff based upon the theories of quantum meruit or unjust enrichment due to the existence of an express contract for the payment of Jason's legal fees.

         ¶ 6 The plaintiff filed a response to the motion in which he disclaimed the invocation of either the theory of quantum meruit or unjust enrichment as a basis for recovery against the defendants. As for the defendants' argument that Jason's obligation to pay for the plaintiff's legal services had been discharged in bankruptcy, the plaintiff argued that, since Jason is not a defendant and no relief is sought against him, Jason's bankruptcy is irrelevant to a claim for breach of contract against the defendants. In response to the defendants' argument that the claim against them is unenforceable under section 1 of the Frauds Act (statute of frauds) (740 ILCS 80/1 (West 2012)), the plaintiff asserted that the defendants' agreement to pay for Jason's legal fees was "an original undertaking and not merely a promise to pay a debt of another." In support of that argument, the plaintiff alleged additional facts which do not appear in the complaint. The response states that, although the written retention agreement was signed by Jason, "[w]hen it became apparent that Jason would no[t] pay the initial retainer, a new agreement was made with the Defendants for payment of the retainer and subsequent fees and costs." According to the plaintiff, when the defendants agreed to pay Jason's legal fees, no legal services had yet been rendered. The plaintiff also asserted that, following his receipt of the initial retainer, he had "numerous telephone conversations" and an office conference with the defendants during which they confirmed that they had assumed the obligation to pay Jason's legal fees.

         ¶ 7 On October 24, 2016, the circuit court granted the defendants' motion to "strike and dismiss" the plaintiff's complaint, finding that "the agreement between the parties is collateral, and thus falls within the Statute of Frauds." The circuit court also found that "the complaint contains no reference to Denise Greenberg. As such she is eliminated as a defendant." This appeal followed.

         ¶ 8 In urging reversal of the circuit court's order dismissing the instant action, the plaintiff argues both that the defendants' agreement to pay for Jason's legal fees was "an original undertaking" to which the statute of frauds does not apply and that the statute of frauds has no application to the defendants' agreement to pay Jason's legal fees as he fully performed the contract. Before addressing the merits of the plaintiff's arguments, however, we first address the procedural context leading to the dismissal of the plaintiff's action.

         ¶ 9 As noted earlier, the defendants filed a motion to strike and dismiss the plaintiff's complaint pursuant to section 2-615 of the Code. A motion to dismiss under section 2-615 attacks the legal sufficiency of a complaint. Illinois Graphics Co. v. Nickum, 159 Ill.2d 469, 484 (1994). The only question before the court is whether the complaint states a cause of action upon which relief might be granted. Beahringer v. Page, 204 Ill.2d 363, 369 (2003). Such a motion does not raise affirmative defenses, but alleges only defects appearing on the face of the complaint. Illinois Graphics Co., 159 Ill.2d at 484.

         ¶ 10 In moving to dismiss the plaintiff's complaint, the defendants never argued that the complaint failed to allege facts supporting each element of a claim for breach of contract against them. Rather, they raised the statute of frauds as one of the grounds upon which they sought dismissal, and it was on that ground that the circuit court dismissed the action in its entirety. However, the statute of frauds is an affirmative defense which, if established, renders a contract voidable, not void. Cain v. Cross, 293 Ill.App.3d 255, 258 (1997). Consequently, the contract may be enforced unless the defendant raises the statute of frauds as a defense. Id. As the statute of frauds is an affirmative defense, it does not attack the sufficiency of a complaint and is not generally the basis for a dismissal pursuant to section 2-615 motion of the Code. Payne v. Mill Race Inn, 152 Ill.App.3d 269, 277 (1987).

         ¶ 11 Section 2-619 of the Code (735 ILCS 5/2-619 (West 2016)) provides that a defendant may seek the involuntary dismissal of an action based upon certain defects or defenses. If the grounds for the motion do not appear on the face of the complaint, the motion must be supported by affidavit (735 ILCS 5/2-619(a) (West 2016)). Unlike a section 2-615 motion, a section 2-619 motion admits the legal sufficiency of the plaintiff's complaint and asserts a defense which defeats the claim. Wallace v. Smyth, 203 Ill.2d 441, 447 (2002). One of the enumerated grounds for a ...


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