Court of Appeals of Illinois, First District, Sixth Division
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.
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
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 ...