Condon & Cook, L.L.C. v. Mavrakis, 1-15-1923

• Decision Date: 09 December 2016
• Docket Number: No. 1-15-1923,1-15-1923
• Citation: 2016 IL App (1st) 151923,69 N.E.3d 274
• Parties: CONDON AND COOK, L.L.C., Plaintiff-Appellee, v. Theodore MAVRAKIS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2016 IL App (1st) 151923

69 N.E.3d 274

CONDON AND COOK, L.L.C., Plaintiff-Appellee,

v.Theodore MAVRAKIS, Defendant-Appellant.

No. 1-15-1923

Appellate Court of Illinois, First District, FIFTH DIVISION.

Opinion filed December 9, 2016

Rehearing denied January 5, 2017

Arnold H. Landis, of Law Office of Arnold H. Landis, P.C., of Chicago, for appellant.

Paul S. Festenstein, of Condon & Cook, L.L.C., of Chicago, for appellee.

OPINION

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 In the case at bar, plaintiff law firm, Condon and Cook, L.L.C., filed a complaint against defendant Theodore Mavrakis, a former client, seeking attorney fees and costs in connection with the defense of an arbitration matter filed against defendant captioned VPC Pizza Franchise, L.L.C. v. Mavrakis. After the trial court entered a default judgment against defendant in the case at bar, defendant sought to negotiate a settlement because the default judgment was preventing him from closing on an unrelated financing deal with a bank. Defendant was represented by counsel who negotiated an oral settlement agreement in 45 minutes on April 24, 2015, the same day that defendant's refinancing deal was originally scheduled to close. The oral settlement agreement was to be memorialized in writing. The refinancing deal closed on April 30 and, after it was closed, defendant refused to sign the written settlement agreement sent by plaintiff, claiming that he had not agreed to the execution of mutual releases between the parties. Plaintiff then filed a motion before the trial court to enforce the settlement agreement and, after an evidentiary hearing, the trial court ordered its enforcement. It is this enforcement order which defendant now appeals.

¶ 2 On appeal, defendant does not dispute that his attorneys had his express authority to negotiate a settlement agreement, or that the agreement was done in haste because he required an immediate settlement or he would have lost his financial transaction with a bank. On appeal, he claims that his attorneys lacked his express authority to agree to mutual releases. For the following reasons, we affirm.

¶ 3 BACKGROUND

¶ 4 In the facts below, we provide, first, a summary of the documents in the common law record and then a description of the bystander's report filed after the commencement of this appeal. The report describes the evidentiary hearing before the trial court on May 14, 2015, that led to the trial court's order on the same date, ordering enforcement of the settlement. In our description of the facts, we name specific attorneys because who said what to whom and when is at the heart of this dispute.

¶ 5 I. Common Law Record

¶ 6 On November 10, 2014, plaintiff filed a lawsuit against defendant for legal services and costs from defending an arbitration filed against defendant known as VPC Pizza Franchise, L.L.C. v. Mavrakis, in which plaintiff alleged that it was retained based on an agreed hourly rate, that it rendered legal services which were billed, and that defendant failed to pay for legal services and costs.

¶ 7 On December 10, 2014, an attorney filed an appearance on defendant's behalf but never filed an answer. On February 17, 2015, plaintiff filed a motion for a default which was granted on February 24, 2015, setting a prove-up for March 18, 2015. Plaintiff served counsel for defendant by certified mail on February 24, 2015, with the order, and filed a motion on March 13, 2015, for a prove-up. In the motion, plaintiff alleged: that defendant had an oral agreement with plaintiff to pay attorney fees on an hourly basis; that defendant stopped paying the monthly invoices on July 31, 2014; that defendant "forced Plaintiff to seek withdrawal from his defense"; and that defendant "terminated the Plaintiff's legal services on October 16, 2014." Plaintiff sought an award of attorney fees in the amount of $110,538.05, and unspecified costs incurred in the defense of this litigation.

¶ 8 On March 18, 2015, the trial court entered an order which found that defendant had failed to appear in court and that "[j]udgment in the sum of $110,538.05 in attorney's fees and court costs in the sum of $397.00 is entered in favor of the Plaintiff, Condon & Cook LLC and against the Defendant Theodore Mavrakis."

¶ 9 On April 16, 2015, defense counsel Carol Mengel filed a motion pursuant to section 2-1301(e) of the Code of Civil Procedure (735 ILCS 5/2-1301 (West 2014) ) to vacate the default judgment, claiming defendant "had not yet been able [on March 18, 2015,] to retain counsel for this matter" and that defendant was "prepared to file its Answer to the Complaint upon entry of an order vacating default judgment." On April 23, 2015, attorney George C. Pontikes entered an "Additional Appearance on behalf of" defendant.

¶ 10 On April 23, 2015, the trial court entered an order continuing the motion to May 8, 2015. The next day, on April 24, defendant's additional counsel, George Pontikes, filed an emergency motion to have the matter heard on April 24, 2015, because defendant:

"had a financing transaction, which was to take place on April 24, 2015, which would be abrogated by the recorded Memorandum of Judgment."

¶ 11 On April 24, 2015, the parties' attorneys met at the courthouse for settlement negotiations, as detailed in a bystander's report which is described in section II of this opinion.

¶ 12 Following settlement negotiations, the trial court entered an order on April 24, 2015, which stated, in relevant part, that:

"[I]t is hereby stipulated and agreed as follows:

(1) The March 18, 2015 Judgment against the Defendant is hereby vacated, with right to reinstate.

(2) The Memorandum of Judgment filed by Plaintiff is vacated and released."

¶ 13 On May 8, 2015, plaintiff filed an emergency motion to enforce the settlement agreement. Although the parties agree in their briefs to this court that plaintiff filed this motion, it is not in our appellate record. Thus, the record lacks the motion, the granting of which is the basis of this appeal. If defendant filed a response to the motion, it is also not in the record.

¶ 14 On May 8, 2015, the trial court entered an order allowing Arnold Landis to substitute for counsel for defendant, and on May 14, George Pontikes withdrew his appearance of record and Landis entered his appearance.

¶ 15 On May 14, 2015, the trial court held an evidentiary hearing on plaintiff's motion to enforce the settlement agreement. After the evidentiary hearing, the trial court granted plaintiff's motion, finding that the terms of the oral settlement agreement included the mutual releases. The court found "that the Settlement is binding upon Plaintiff and Defendant and the agreement is set forth in Vincent Cook Affidavit Exhibit #11 to the Motion."

¶ 16 Attached to the order is exhibit no. 11, which is entitled "Settlement Agreement and Mutual Release." The agreement is five pages long, and it states that it was "[e]xecuted this 30th day of April, 2015, by the undersigned." The agreement is signed by Vincent Cook, as a partner of plaintiff. However, the signature line for defendant is not signed.¹ Paragraph 10(a) of the agreement states that "[u]pon [defendant's] receipt of [plaintiff's] signed Settlement Agreement and Mutual Release, [defendant] does hereby release" plaintiff from any claims that defendant "has, may have had, or which may hereafter arise against [plaintiff] related in any way to the Litigation" which was the subject of plaintiff's suit for attorney fees.

¶ 17 Paragraph 10(b) provides for a release by plaintiff but provides that, until defendant has paid in full, plaintiff "has the right to reinstate the collection action," as well as the judgment contained in the March 18, 2015, order.

¶ 18 On June 4, 2015, the trial court entered a "Memorandum of Judgment," stating that judgment had been entered by the court in favor of plaintiff and against defendant on May 14, 2015, in the amount of $115,935.05, with costs of $397.

¶ 19 On June 15, 2015, defendant filed a motion to reconsider the trial court's May 14, 2015, order. In his motion, defendant claimed that, on April 24, 2015, when the trial court granted defendant's motion to vacate the default judgment, "the parties discussed, but did not agree to, the basic terms of the settlement," and that his attorney "prepared a draft settlement agreement that contained the basic terms of the settlement (see attached)." Although defendant's motion states that the draft prepared by his attorney is "attached," it is not attached in the copy appearing in the appellate record.

¶ 20 The motion further claims that, on April 30, 2015, "for the first time, Plaintiff demanded that the settlement agreement contain a mutual release," which defendant "never agreed to." Attached to the motion are two affidavits: one from defendant; and one from his attorney, George Pontikes. Both affidavits were struck by the trial court.²

¶ 21 In an order dated June 23, 2015, the trial court denied defendant's motion to reconsider and held that "[t]he affidavits of [defendant] and [his counsel] George Pontikes attached to Defendant's Motion are hereby stricken." On July 6, 2015, defendant filed a notice of appeal, appealing both (1) the May 14, 2015, order which granted plaintiff's motion to enforce settlement and (2) the June 23, 2015, order which denied defendant's motion to reconsider. On July 13, 2015, defendant filed an amended notice of appeal because the prior notice had mistakenly referred to him as "plaintiff."

¶ 22 On June 30, 2016, defendant filed a supplemental record in this court which included a bystander's report certified by the clerk of the circuit court of Cook County. Ill. S. Ct. R. 323(c) (eff. Dec. 13, 2005).

¶ 23 II. The Bystander's Report

¶ 24 The bystander's report describes the evidentiary hearing on May 14, 2015, in which three witnesses testified: (1) Vincent P. Cook, plaintiff's attorney; (2) William Bazianos, one of defendant's attorneys; and (3) ...