Morris B. Chapman & Associates, Ltd. v. Kitzman

• Decision Date: 02 February 1999
• Docket Number: No. 5-97-1005,5-97-1005
• Citation: 302 Ill.App.3d 780,706 N.E.2d 1065,236 Ill.Dec. 191
• Court: United States Appellate Court of Illinois
• Parties: , 236 Ill.Dec. 191 MORRIS B. CHAPMAN & ASSOCIATES, LTD., Plaintiff-Appellant and Cross-Appellee, v. John KITZMAN and Edna Kitzman, Defendants-Appellees and Cross-Appellants.

Page 1065

706 N.E.2d 1065 302 Ill.App.3d 780, 236 Ill.Dec. 191 MORRIS B. CHAPMAN & ASSOCIATES, LTD., Plaintiff-Appellant
and Cross-Appellee,
v.
John KITZMAN and Edna Kitzman, Defendants-Appellees and
Cross-Appellants. No. 5-97-1005. Appellate Court of Illinois,
Fifth District. Feb. 2, 1999.

Page 1068

[302 Ill.App.3d 783] Morris B. Chapman, Clarence W. Harrison II, Morris B. Chapman & Associates, Ltd., Granite City, for Appellant.

William J. Knapp, Robert J. Evola, Burroughs, Hepler, Broom, MacDonald & Hebrank, Edwardsville, for Appellee.

Justice KUEHN delivered the opinion of the court:

John W. Kitzman III died in an industrial accident. His wife, Karen, hired Morris B. Chapman & Associates, Ltd. (Chapman), to

Page 1069

pursue a wrongful death action. Karen agreed to pay Chapman one-third of any recovery. Chapman recovered $800,000 but was only paid $227,040. This action ensued.

The lawsuit filed on behalf of Karen Kitzman in Missouri named Karen Kitzman and decedent's parents, John and Edna Kitzman, as his heirs. Chapman obtained an $800,000 settlement for the benefit of [302 Ill.App.3d 784] those heirs, prepared a petition for settlement approval, and noticed a hearing.

A few days prior to the Missouri trial court's hearing on the petition, John and Edna Kitzman retained separate counsel, attorney John A. Kilo. They agreed to pay Kilo one-third of their recovery in excess of $100,000. John and Edna Kitzman intervened and participated in the settlement approval and apportionment hearing.

After the apportionment hearing, the Missouri trial court entered an order distributing 86% of the settlement ($688,000) to Karen Kitzman and 7% ($56,000) each to John and Edna Kitzman. It further ordered that Chapman's fee would consist of one-third of Karen Kitzman's share ($227,040) only, while Kilo would receive one-third of John and Edna Kitzman's share over $100,000 ($4,000). The Missouri trial court based its fee apportionment on section 537.095(4)(2) of the Missouri Revised Statutes, which requires a trial court to order the claimant:

"To deduct and pay the expenses of recovery and collection of the judgment and the attorneys' fees as contracted, or if there is no contract, or if the party sharing in the proceeds has no attorney representing him before the rendition of any judgment or settlement, then the court may award the attorney who represents the original plaintiff such fee for his services, from such persons sharing in the proceeds, as the court deems fair and equitable under the circumstances." Mo.Rev.Stat. § 537.095.4(2) (1986).

The Missouri trial court stated that this provision required it to apportion attorney fees according to the existing contingency contracts for the following reason: "Once separate counsel appear for competing claimants, the statutory language directing payment of attorney's fees 'as contracted' must be given full effect."

Chapman filed the instant action in Madison County Circuit Court, seeking additional attorney fees from defendants, John and Edna Kitzman. Chapman's complaint originally consisted of a single quantum meruit count but was later amended to include a second count based upon the common-fund doctrine. The circuit court disposed of the action in an order that:

granted Chapman's oral motion to dismiss count I.

granted defendants' motion to dismiss count II of Chapman's complaint grounded on the common-fund doctrine's inapplicability to this case.

denied defendants' summary judgment motion based upon the full faith and credit clause of the United States Constitution (U.S. Const., art. IV, § 1).

denied defendants' motion for sanctions seeking attorney fees pursuant to Supreme Court Rule 137 (155 Ill.2d R. 137).

[302 Ill.App.3d 785] . denied Chapman's summary judgment motion, including Chapman's argument that a judge, rather than a jury, must determine the proper fee award.

On appeal, Chapman attacks the circuit court's dismissal of count II and its denial of summary judgment on the question of how a common-fund-doctrine fee award is determined. Defendants cross-appeal the circuit court's denial of their summary judgment motion and motion for sanctions.

We first address defendants' argument that the circuit court erred in denying their summary judgment motion. Specifically, defendants contend that the full faith and credit clause of the United States Constitution bars this action because the Missouri trial court's fee-apportionment order is res judicata as to Chapman's claim. This contention presents a disputed question of law that we review de novo. Statler v. Catalano, 293 Ill.App.3d 483, 485-86, 229 Ill.Dec. 274, 691 N.E.2d 384, 386 (1997).

"The full faith and credit clause of the United States Constitution [citation] generally

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requires every State to give a foreign judgment at least the res judicata effect which the judgment would be accorded in the State which rendered it." Pfaff v. Chrysler Corp., 208 Ill.App.3d 910, 922, 153 Ill.Dec. 337, 567 N.E.2d 52, 60 (1991), aff'd, 155 Ill.2d 35, 182 Ill.Dec. 627, 610 N.E.2d 51 (1992). Therefore, we must apply Missouri law in determining whether the Missouri trial court's order is res judicata as to the claim before us.

In Missouri, the res judicata doctrine bars a claim only if the following elements are satisfied: (1) the identity of the thing sued for, (2) the identity of the cause of action, (3) the identity of the parties to the action, and (4) the identity of the quality of the person for or against whom the claim is made. State of Missouri ex rel. Sanders v. Martin, 945 S.W.2d 641, 642 (1997). Our res judicata analysis need not go beyond the third element. Facing an attorney-fees dispute arising from a wrongful death action, the Missouri appellate court explained that attorneys seeking fees are not parties to a suit:

"The problem with the trial court's ruling is that the attorneys were not parties to the underlying litigation. Res judicata bars only claims by parties and privies. Attorneys claiming a portion of a party's fee have not previously been held to be in privity with their clients. The concept of privity for purposes of res judicata connotes interests so closely related that the party sought to be barred may be said to have had a day in court. The interest of an attorney with regard to a fee claim is not of this character." Floyd v. Shaw, 830 S.W.2d 564, 565 (Mo.App.1992).

Consequently, the case before us lacks an identity of parties with the underlying Missouri wrongful death action.

[302 Ill.App.3d 786] Defendants nevertheless claim that, though technically a nonparty in the underlying litigation, Chapman was an "actual interested party" with respect to the attorney-fees issue. Chapman was the petitioner for fees and had an opportunity to be heard. Thus, defendants argue, Chapman could have assailed the fee apportionment in the Missouri appellate court but may not attack it in an independent Illinois action. This contention is unsupported.

Missouri law does not allow a law firm to independently appeal the amount of an attorney-fees award:

"The right to appeal is purely statutory. [Citations.] Section 512.020 provides that any 'party to a suit aggrieved by any judgment of any trial court in any civil case ... may take his appeal to a court having appellate jurisdiction.' By its express terms, the statute limits appeals; only a 'party to a suit' may appeal. The firm was not a party. Therefore, the firm has no statutory right to appeal." Oberhellmann v. Oberhellmann, 950 S.W.2d 487, 488 (1997).

Similarly, appellate review of a wrongful death settlement distribution order must be sought pursuant to section 512.020 of the Missouri Code of Civil Procedure (Mo.Rev.Stat. § 512.020 (1986)). Although Chapman addressed the attorney-fees issue while representing Karen Kitzman in the settlement distribution hearing, it still had no statutory right to appeal the fee apportionment because it was not a party to the suit. Indeed, the only persons with standing to appeal were Karen Kitzman and defendants, none of whom were aggrieved by the fee apportionment. The simple fact remains that, without an identity of parties, we cannot give full faith and credit to the Missouri trial court's fee-apportionment order. Therefore, we affirm the circuit court's denial of defendants' summary judgment motion.

Observing that defendants' sanctions motion was predominantly based upon this same argument, we likewise affirm the circuit court's denial of that motion. "The purpose of Rule 137 is to penalize litigants who plead frivolous or false matters or bring suit without any basis in the law." Fischer v. Brombolich, 246 Ill.App.3d 660, 664, 186 Ill.Dec. 553, 616 N.E.2d 743, 745 (1993). The allowance of fees and expenses under this rule is within the trial court's discretion and will not be disturbed on appeal absent an abuse of discretion. Fischer, 246 Ill.App.3d at 664, 186 Ill.Dec. 553, 616 N.E.2d at 745-46. "A trial court exceeds its discretion only

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where no reasonable person would take the view adopted by it." Fischer, 246 Ill.App.3d at 664, 186 Ill.Dec. 553, 616 N.E.2d at 746. On the record before us, we conclude that a reasonable decision-maker could deny defendants' motion for sanctions.

We now turn to the merits of Chapman's appeal. Chapman [302 Ill.App.3d 787] contends that the circuit court erred in granting defendants' motion to dismiss count II of its complaint. Defendants' motion raised a conflict-of-laws issue, claiming that Missouri law should be applied because "[t]he situs of the incident which is the basis of this suit occurred in the state of Missouri * * *." Specifically, defendants argued that count II failed to state a cause of action under Missouri substantive law, as section 537.095 renders the common-fund doctrine inapplicable to attorney-fees claims in wrongful death cases. Alternatively, defendants urged that, even if Illinois substantive law applied, count...