Dobrofsky v. Richard J. Prendergast Ltd., 1-88-2624

• Decision Date: 10 December 1990
• Docket Number: No. 1-88-2624,1-88-2624
• Citation: 565 N.E.2d 243,207 Ill.App.3d 19,152 Ill.Dec. 1
• Court: United States Appellate Court of Illinois
• Parties: , 152 Ill.Dec. 1 Steven R. DOBROFSKY, Plaintiff, v. RICHARD J. PRENDERGAST LTD., Defendant-Appellee (Louis Wolf, Joseph Berke, and Benitta Berke, Defendants-Appellants; William J. Harte, Ltd., Defendant).

Page 243

565 N.E.2d 243

207 Ill.App.3d 19, 152 Ill.Dec. 1

Steven R. DOBROFSKY, Plaintiff, v. RICHARD J. PRENDERGAST LTD., Defendant-Appellee (Louis Wolf Joseph Berke, and Benitta Berke Defendants-Appellants; William J Harte, Ltd., Defendant).

No. 1-88-2624.

Appellate Court of Illinois,

First District, First Division.

Dec. 10, 1990.

Richard L. Hoffman, Chicago, for defendants-appellants.

Richard J. Prendergast Ltd., Chicago (Richard J. Prendergast, James Prendergast and Joseph E. Tighe, of counsel), for defendant-appellee.

Justice CAMPBELL delivered the opinion of the court:

In this interpleader action, defendants-appellants Louis Wolf, Joseph Berke and Benitta Berke appeal from the circuit court of Cook County's grant of summary judgment in favor of defendant-appellee Richard Prendergast Ltd. regarding the payment of attorney fees for services rendered to defendants-appellants and denying defendant-appellant Joseph Berke's petition for change of venue. Defendants-appellants argue that the trial court erred in denying the petition for change of venue and in granting summary judgment regarding the contested fees. For the following reasons, we affirm.

The facts giving rise to this appeal are as follows: Defendant-appellee Prendergast is a law firm which had served as counsel for defendants-appellants in at least two matters in the circuit court of Cook County. In the first matter, defendants-appellants retained the services of defendant-appellee Prendergast and defendant William J. Harte Ltd. ¹ In the second matter, which concerned a professional malpractice claim arising from the prosecution of the first matter, defendants-appellants entered into a contingent fee agreement with Prendergast. This second matter was settled for $800,000 and later dismissed with prejudice in the circuit court.

Later, defendants-appellants refused to go forward with the terms of the settlement. The defendant in the second matter filed a motion to enforce the settlement. A hearing on the motion was held on April 28, 1988. The hearing was attended by defendants-appellants Joseph and Benitta Berke, plaintiff Steven Dobrofsky (who had filed an appearance for defendants-appellants after the settlement), and representatives from Prendergast, Harte, and the firm representing defendant in the second matter. At this time, those present reached an agreement which permitted the exchange of releases, negotiation of the settlement check and the disposition of the settlement funds. However, this agreement provided that the sum of $140,180 be held in escrow by plaintiff Dobrofsky. These funds represented attorney fees payable to Prendergast and Harte. Prendergast and defendants-appellants later made competing claims on these escrowed funds.

Plaintiff Steven Dobrofsky filed a complaint pursuant to the interpleader statute (Ill.Rev.Stat.1987, ch. 110, par. 2-409) to settle these competing claims. Prendergast and Harte then filed their answer, counterclaim and third-party complaint. Plaintiff later successfully petitioned the court for a change of venue, and the case was reassigned to Judge O'Brien. On June 2, 1988, in the absence of Judge O'Brien, Judge Shields entered an order which stated that the third-party complaint would be treated as a counterclaim and cross-claim. On June 24, 1988, in the absence of Judge O'Brien, Judge Green ordered plaintiff to deposit the escrowed funds with the Clerk of the Circuit Court of Cook County.

Thereafter, on July 15, 1988, in the absence of Judge O'Brien, Judge Gillis set cross-motions for summary judgment and Prendergast's motion to direct payment of the funds for a hearing on July 21, 1988. At this hearing, defendant-appellant Joseph Berke presented a petition for change of venue pursuant to section 2-1001(a)(2) of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-1001(a)(2)), alleging fear of prejudice on the part of the judge. The court denied the petition, held that the interpleader action had been properly brought, awarded costs to plaintiff and allowed plaintiff to file a petition for attorney fees. Prendergast later obtained an amendment to the court's order in response to the Clerk's request that the order specify the exact amount to be paid. After defendants-appellants' motion to reconsider was denied, they filed their notice of appeal.

The first issue on appeal is whether the trial court erred in denying defendant-appellant Joseph Berke's petition for a change of venue. Defendants-appellants argue that it was error to deny a petition which was timely filed and complied with the statutory requirements. Defendant-appellee contends that defendant-appellant did not comply with the statutory requirement that reasonable notice of the petition be given to the adverse party.

Section 2-1001 of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-1001(a)(2), (c), (e)) provides that a change of venue may be granted:

"Where any party or his or her attorney fears that he or she will not receive a fair trial in the court in which the action is pending, because * * * the judge is prejudiced against him or her * * *. In any such situation the venue shall not be changed except upon application, as provided herein * * *.

* * * * * *

(c) Every application for a change in venue by a party or his or her attorney shall be by petition * * * [and] * * * shall not be granted unless it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case * * *.

* * * * * *

(e) The application may be made to the court in which the case is pending, reasonable notice thereof having been given to the adverse party or his or her attorney."

The provisions of section 2-1001 are to be liberally construed in favor of granting a change of venue, especially in cases where judicial prejudice is alleged. (Weisberg v. Pickens (1989), 193 Ill.App.3d 558, 140 Ill.Dec. 208, 549 N.E.2d 859; Oberman v. Byrne (1982), 104 Ill.App.3d 1046, 60 Ill.Dec. 786, 433 N.E.2d 1024.) A litigant generally has absolute right to change venue where the motion alleges judicial prejudice and conforms to the statutory requirements. Stoller v. Paul Revere Life Insurance Co. (1987), 163 Ill.App.3d 438, 115 Ill.Dec. 40, 517 N.E.2d 5; Intini v. Schwartz (1979), 78 Ill.App.3d 575, 33 Ill.Dec. 751, 397 N.E.2d 84.

One such statutory requirement is that reasonable notice of the motion be given to the adverse party. A trial court may, in its discretion, deny a motion for change of venue if this requirement has not been met in a given case. (Weisberg, 193 Ill.App.3d at 561, 140 Ill.Dec. at 209, 549 N.E.2d at 860.) Absent an abuse of that discretion, this court will not disturb the trial court's ruling on the reasonableness of the notice. Intini, 78 Ill.App.3d at 575, 33 Ill.Dec. at 751, 397 N.E.2d at 84.

In the present case, the record does not contain a report of proceedings from the hearing on the motion. Consequently, this court has no basis for holding that the trial court abused its discretion in denying the motion. Robinson v. Robinson (1986), 140 Ill.App.3d 610, 95 Ill.Dec. 6, 488 N.E.2d 1349.

Moreover, in Weisberg v. Pickens (1989), 193 Ill.App.3d 558, 140 Ill.Dec. 208, 549 N.E.2d 859, this court discussed prior cases regarding the reasonableness of notice. For example, Buckingham Corp. v. Modern Liquors, Inc. (1973), 16 Ill.App.3d 534, 306 N.E.2d 655, affirmed a finding of unreasonableness where the notice of motion and petition for change of venue was not presented to the adverse party until the day before trial. We also noted that in Hutson v. Wood (1914), 263 Ill. 376, 105 N.E. 343, our supreme court reached a similar result where notice was not given until the day before the hearing on the motion to the trial court.

This case falls within the scope of these precedents. There is no record of any attempt to notify defendant-appellee of the petition prior to the hearing itself. Accordingly, defendants-appellants have failed to demonstrate that the trial court erred in denying the petition for change of venue.

Defendants-appellants next argue that the trial court committed reversible error by...