Kovitz Shifrin Nesbit, P.C. v. Rossiello
| Decision Date | 30 June 2009 |
| Docket Number | No. 1-08-0696.,1-08-0696. |
| Citation | 911 N.E.2d 1180 |
| Parties | KOVITZ SHIFRIN NESBIT, P.C., Plaintiff and Counterdefendant-Appellee, v. Ernest T. ROSSIELLO and Ernest T. Rossiello and Associates, P.C., Defendants and Counterplaintiffs and Third-Party Plaintiffs-Appellants. (Sudler and Company, Third-Party Defendant-Appellee; Camille Anderson, Defendant; Prairie House Condominium Association, Third-Party Defendant). |
| Court | United States Appellate Court of Illinois |
Aukse S. Rimas, Kovitz Shifrin Nesbit, P.C., Buffalo Grove, IL, for Plaintiff and Counterdefendant-appellee.
Ernest T. Rossiello, Chicago, IL, for Defendants and Counterplaintiffs and Third-Party Plaintiffs-Appellants.
Jacqueline M. Satherlie, Kopka, Pinkus, Dolin & Eads, LLC, Buffalo Grove, IL, for Third-Party Defendant-Appellee.
This is an appeal from the circuit court's order allowing plaintiff and counterdefendant-appellee, Kovitz Shifrin Nesbit, P.C. (KSN), to voluntarily dismiss its complaint for interpleader, and dismissing the counterclaim for conversion filed by Ernest T. Rossiello and Ernest T. Rossiello and Associates, P.C. (Rossiello), the defendants, counterplaintiffs, and third-party plaintiffs-appellants. Rossiello claims that the circuit court erred in allowing KSN to dismiss its complaint for interpleader because Rossiello's pending motion for summary judgment remained unresolved. Additionally, Rossiello contends that the circuit court erroneously dismissed his counterclaim for conversion against KSN where KSN paid a settlement to his former client but failed to release his attorney fees, notwithstanding his valid attorney's lien claim. For the following reasons, we affirm in part and reverse in part and remand for further proceedings.
Rossiello represented Camille Anderson in her sexual harassment lawsuit against her former employer, Sudler and Company, and one of its related entities, Prairie House Condominium Association. Rossiello and Anderson entered into a contingent fee agreement wherein Anderson assigned one-third of any recovery plus $10,000 to Rossiello. After the execution of that agreement, Rossiello served a notice of attorney's lien on KSN, which represented Sudler and Prairie House, pursuant to the Attorneys Lien Act (Act) (770 ILCS 5/1 (West 2006)).
Anderson had previously filed a union grievance against Sudler, which was still pending at the time her sexual harassment claim was filed. After the successful resolution of her grievance, she asked Rossiello to obtain a copy of the arbitration award. She then discharged Rossiello as her attorney and negotiated directly with Sudler to settle her sexual harassment claim for $35,000. In the meantime, Rossiello notified KSN that Anderson discharged him but that he was nevertheless entitled to $2,125 in fees for services rendered. He also sent a copy of that letter and a copy of his invoice to Anderson. Anderson notified KSN that she disputed Rossiello's claim for fees.
Sudler's insurer paid $32,875 to "Camille Anderson c/o Kovitz Shifrin Nesbit" pursuant to their settlement agreement. KSN retained $2,125 in fees claimed by Rossiello and deposited it in its escrow account. KSN informed Anderson and Rossiello that it would not disburse the fees to either party without consent from the other. Rossiello countered that KSN was required to have included his name on the settlement check to ensure his payment pursuant to his lien. He also asserted that KSN's retention of the fees constituted conversion and threatened to sue KSN to recover the fees and any expenses incurred in doing so.
KSN responded by filing a complaint for interpleader. It alleged that it possessed the disputed funds and that it would open itself up to liability from one party if it paid the funds to the other. KSN requested that Anderson and Rossiello interplead against each other in the case and sought to deposit the disputed funds with the court pending an adjudication of Anderson's and Rossiello's rights to the funds. Both Anderson and Rossiello filed appearances in the case, but neither of them filed separate claims against each other. KSN later filed a motion in which it sought an order requiring Anderson and Rossiello to "interplead as to each other" pursuant to section 2-409 of the Code of Civil Procedure (Code) (735 ILCS 5/2-409 (West 2006)). In its prayer for relief, KSN also sought leave to deposit the disputed funds with the court pending an adjudication of Anderson's and Rossiello's rights. The court ordered KSN to deposit the disputed funds, plus interest, with the court but did not rule on KSN's motion to require Anderson and Rossiello to interplead.
Anderson then filed an answer in which she denied that Rossiello represented her in her claims against Sudler and Prairie Home. However, elsewhere in her answer, she admitted that she discharged Rossiello as her attorney and admitted that she informed KSN of that fact.
Before answering the complaint, Rossiello filed a combined "Motion for Summary Judgment and Motion to Enforce Attorney's Lien." Therein, he asserted that he and Anderson entered into a contingent fee agreement related to her sexual harassment lawsuit and he sent notice of his attorney's lien based on that agreement to KSN and Sudler. He also stated that he filed an appearance on Anderson's behalf in that case, but she later terminated the attorney-client relationship and settled with Sudler privately. He stated that he requested payment from Sudler and KSN for his attorney fees, "which was $2,125 on quantum meruit alone." He concluded that paying Anderson any part of the settlement without including his name on Anderson's settlement check, and failing to pay his attorney fees outright pursuant to the lien, violated the Act and constituted conversion by KSN. He sought payment of his reasonable attorney fees plus expenses incurred in trying to recover them. Rossiello agreed to KSN's request to defer briefing on the combined motion and also sought an additional extension of the briefing schedule, in anticipation of Sudler's appearance in the case.
In his verified amended answer, Rossiello admitted that after he served his attorney's lien on KSN, "[KSN] was informed that Anderson discharged [ ] Rossiello as her counsel." He also admitted that after Anderson discharged him, "Rossiello notified [KSN] that his assertion of a lien was now in the fixed amount of $2,125." In his verified amended counterclaim, filed with the answer, he formally alleged that KSN converted the disputed funds, as he previously argued in his summary judgment motion.
KSN then moved to dismiss the verified amended counterclaim under section 2-615 of the Code (735 ILCS 5/2-615 (West 2006)), arguing, inter alia, that it complied with the Act by initially withholding the amount of attorney fees claimed by Rossiello from Anderson's settlement, pending resolution of the dispute. Furthermore, it deposited the fees with the circuit court and no longer had control over the funds. Thus, Rossiello could plead no set of facts that constituted conversion.
In his verified answer to the amended motion to dismiss, Rossiello argued that he adequately plead all of the elements of a conversion claim based on his absolute and immediate right to possession of the funds by virtue of the attorney's lien. He asserted that he was entitled to $2,125 "in quantum meruit" for services rendered on Anderson's behalf before his discharge. He further argued that he was entitled to seek damages for the value of his services and his expenses incurred in recovering his property, as well as punitive damages for willful and reckless interference with the lien.
The court granted KSN's motion to dismiss the counterclaim for conversion, finding that In conclusion, the court stated, "I'm not giving [Rossiello] leave to refile because * * * there's no cause of action [he] could ever plead against [KSN]."
Counsel for Sudler then requested that KSN be permitted to voluntarily dismiss its complaint for interpleader. The court granted KSN's oral motion, stating that:
On appeal, Rossiello first contends that the circuit court erred in dismissing his counterclaim for failure to state a cause of action for conversion. He cites Cirrincione v. Johnson, 184 Ill.2d 109, 234 Ill. Dec. 455, 703 N.E.2d 67 (1998) for the proposition that a cause of action for conversion exists where a valid physician's lien has been violated. In essence, he argues that we should extend the holding in Cirrincione to make it applicable to an attorney's lien violation, such as the one he has alleged. However, we need not undertake that legal analysis. Even if Cirrincione did apply here, Rossiello's counterclaim must be dismissed because he cannot state a claim for conversion.
We review the dismissal of a complaint de novo. Davis v. Dyson, 387 Ill.App.3d 676, 682, 326 Ill.Dec. 801, 900 N.E.2d 698 (2008). We accept the well-pleaded facts in the complaint as true and construe them in the light most favorable to the plaintiff. Davis, 387 Ill.App.3d at 682, 326 Ill.Dec. 801, 900 N.E.2d 698. However, we must dismiss the complaint where no set of facts could be proved under the pleadings that would entitle the plaintiff to relief. Davis, 387 Ill.App.3d at 682, 326 Ill.Dec. 801, 900 N.E.2d 698.
To state a claim for conversion, a plaintiff must establish that: (1) he has a right to the...
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...the claim and thereby prevents that party from making a settlement in disregard of the lien. Kovitz Shifrin Nesbit, P.C. v. Rossiello, 392 Ill. App. 3d 1059, 1064, 911 N.E.2d 1180, 1186 (2009) (regarding attorney's lien). In order to collect, the rights of the parties must be adjudicated an......
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...the claim and thereby prevents that party from making a settlement in disregard of the lien. Kovitz Shifrin Nesbit, P.C. v. Rossiello, 392 Ill. App. 3d 1059, 1064, 911 N.E.2d 1180, 1186 (2009) (regarding attorney's lien). In order to collect, the rights of the parties must be adjudicated an......