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

• Citation: 406 Ill.Dec. 258,60 N.E.3d 160
• Decision Date: 10 August 2016
• Docket Number: No. 2–15–1148.,2–15–1148.
• Parties: FERRIS, THOMPSON, AND ZWEIG, LTD., Plaintiff–Appellant, v. Anthony ESPOSITO, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

60 N.E.3d 160

406 Ill.Dec. 258

FERRIS, THOMPSON, AND ZWEIG, LTD., Plaintiff–Appellant,

v.Anthony ESPOSITO, Defendant–Appellee.

No. 2–15–1148.

Appellate Court of Illinois, Second District.

Aug. 10, 2016.

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

Anthony Esposito, of Waukegan, appellee pro se.

OPINION

Justice BIRKETT delivered the judgment of the court, with opinion.

¶ 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, 378 Ill.Dec. 754, 4 N.E.3d 1126 ) and our supreme court (Ferris, Thompson, & Zweig Ltd. v. Esposito, 2015 IL 117443, 388 Ill.Dec. 945, 25 N.E.3d 637 ) (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, 228 Ill.Dec. 195, 688 N.E.2d 1172 (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, 305 Ill.Dec. 897, 856 N.E.2d 1048 (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, 345 N.E.2d 493 (1976) ; Orava v. Plunkett Furniture Co., 297 Ill.App.3d 635, 636, 232 Ill.Dec. 321, 697 N.E.2d 1251 (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, 345 N.E.2d 493 ; see Orava, 297 Ill.App.3d at 636, 232 Ill.Dec. 321, 697 N.E.2d 1251. “ ‘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, 345 N.E.2d 493 (quoting Harrington v. Hartman, 142 Ind.App. 87, 233 N.E.2d 189, 191 (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, 285 Ill.Dec. 19, 811 N.E.2d 260 (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, 344 Ill.Dec. 564, 937 N.E.2d 270 (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, 283 Ill.Dec. 425, 807 N.E.2d 1266 (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, 289 Ill.Dec. 837, 820 N.E.2d 613 (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, 285 Ill.Dec. 19, 811 N.E.2d 260. 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, 267 Ill.Dec. 640, 777 N.E.2d 443 (2002).

¶ 10 Rule 1.5(e) provides:

“A division of a fee between lawyers who are not in the same firm may be made only if:

(1) the division is in proportion to the services performed by each lawyer, or if the primary service performed by one lawyer is the referral of the client to another lawyer and each lawyer assumes joint financial responsibility for the representation;

(2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and

(3) the total fee is reasonable.” (Emphases added.) Ill. R. Prof'l. Conduct (2010) R. 1.5(e) (eff. Jan. 1, 2010).

¶ 11 In ascertaining the meaning of Rule 1.5(e), we note that, in order for any fee-sharing agreement to be enforceable, the attorneys involved in the agreement must strictly comply with Rule 1.5(e). See Donald W. Fohrman & Associates, Ltd. v. Mark D. Alberts, P.C., 2014 IL App (1st) 123351, ¶ 41, 379 Ill.Dec. 969, 7 N.E.3d 807. For the purposes of this appeal, the question is whether strict compliance with Rule 1.5(e) occurs when a written referral agreement does not expressly state that the attorneys assume “joint financial responsibility” for representing the client. Ill. R. Prof'l. Conduct (2010) R. 1.5(e)(1) (eff. Jan. 1, 2010).

¶ 12 At first sight, as plaintiff argues, the unambiguous language of Rule 1.5(e) does not provide that a written referral agreement must contain an express statement that the lawyers assume “joint financial responsibility” for representing the client. Id. Rather, Rule 1.5(e)(2), which mentions a writing, states that the writing must include only the client's agreement to the “arrangement, including the share each lawyer will receive.” Ill. R. Prof'l. Conduct (2010) R. 1.5(e)(2) (eff. Jan. 1, 2010). “[T]he share each lawyer will receive” (id. ) seems to require the writing to show that “the division [of fees] is in proportion to the services performed by each lawyer,” which is mentioned in Rule 1.5(e)(1) (Ill. R. Prof'l. Conduct (2010) R. 1.5(e)(1) (eff. Jan. 1, 2010)). If the drafters had wanted the writing to expressly provide also that the attorneys assume “joint financial responsibility,” as is provided also in Rule 1.5(e)(1) ( id. ), they could have so stated in Rule 1.5(e)(2). Reading into Rule 1.5(e)(2) a requirement that the writing must expressly provide that the lawyers assume “joint financial responsibility” would violate a cardinal rule of construction. See State Farm Mutual Automobile Insurance Co. v. Hayek, 349 Ill.App.3d 890, 892, 286 Ill.Dec. 20, 812 N.E.2d 1035 (2004) (in construing a court rule, “courts may not alter the rule or read into it exceptions or limitations, no matter how beneficial or desirable the result”).

¶ 13 Moreover, even if the language of ...