                              2017 IL App (1st) 170680
                            Order filed: December 22, 2017

                                                                       FIFTH DIVISION


Nos. 1-17-0680 and 1-17-0871 (consolidated)
______________________________________________________________________________

No. 1-17-0680	                                     )               Appeal from the
                                                   )               Circuit Court of
THE FOREST PRESERVE DISTRICT OF                    )               Cook County.
COOK COUNTY, ILLINOIS, a Body Corporate            )
and Politic of the State of Illinois,              )
                                                   )
       Plaintiff and Respondent-Appellant and      )
       Cross Appellee,	                            )
                                                   )
v.                                                 )
        Nos.	 15 L 50227
                                                   )
              00 L 50726
CONTINENTAL COMMUNITY BANK AND TRUST )
                            (consolidated)
COMPANY, an Illinois Corporation, as Successor to  )

Maywood-Proviso State Bank, as Trustee under Trust )

Agreement dated November 1, 1983, known as Trust   )

No. 6173; JACK RIVO; and UNKNOWN OTHERS,           )

                                                   )

       Defendants                                  )

                                                   )
              Honorable

(Greg Bedell, Fee Petitioner-Appellee and          )
              Kay M. Hanlon and

Cross-Appellant).                                  )
              Eileen O'Neill Burke,

______________________________________________ )
                  Judges Presiding.

                                                   )

No. 1-17-0871                                      )

                                                   )

THE FOREST PRESERVE DISTRICT OF                    )

COOK COUNTY, ILLINOIS, a Body Corporate            )

and Politic of the State of Illinois,              )

                                                   )

       Plaintiff and Respondent-Appellee,          )

                                                   )

v. 	                                               )
                                                   )
CONTINENTAL COMMUNITY BANK AND TRUST )
COMPANY, an Illinois Corporation, as successor to  )
Maywood-Proviso State Bank, as Trustee under Trust )
Agreement dated November 1, 1983, known as Trust   )
No. 6173; JACK RIVO; and UNKNOWN OTHERS,           )
                                                   )

       Defendants                                  )

                                                   )

(Greg Bedell, Fee Petitioner-Appellant).           )

Nos. 1-17-0680 and 1-17-0871 (consolidated)

       JUSTICE ROCHFORD delivered the judgment of the court, with opinion. 

       PRESIDING JUSTICE REYES and JUSTICE LAMPKIN ____ in the judgment and

       opinion. 


                                               OPINION

¶1     The Forest Preserve District Of Cook County, Illinois, a body corporate and politic of the

State of Illinois (the District), originally filed this suit seeking to utilize its power of eminent

domain to acquire certain property held in trust by defendant, Continental Community Bank And

Trust Company, an Illinois corporation, as successor to Maywood-Proviso State Bank, as Trustee

under Trust Agreement dated November 1, 1983, known as Trust No. 6173 (the Trustee), for the

benefit of defendant, Jack Rivo (collectively referred to as Mr. Rivo, as he is both a named

defendant and the beneficiary of the trust).

¶2     In its current appeal (no. 1-17-0680), the District seeks: (1) relief from a judgment for

attorney’s fees and costs awarded to Rivo’s former attorney, fee petitioner Greg Bedell; and (2)

reversal of the circuit court’s orders denying the District leave to file a complaint for interpleader

and denying its motion to declare invalid an attorney lien asserted by Mr. Bedell. In his cross-

appeal, Mr. Bedell seeks reversal of the circuit court’s denial of his petition to adjudicate and

enforce his attorney’s lien. Finally, in Mr. Bedell’s separate appeal (no. 1-17-0871), which he

describes as a ”secondary, alternative remedy” should this court rule in the District’s favor on its

appeal, Mr. Bedell again seeks reversal of the circuit court’s denial of his petition to adjudicate

and enforce his attorney’s lien.

¶3     With respect to the District’s appeal, while we affirm the circuit court’s decision to grant

Mr. Bedell an award for attorney fees and costs, we vacate that part of the judgment determining

the amount of fees and costs and remand for a recalculation of the proper amount of that award




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under a theory of quantum meruit. In light of our resolution of this issue, all of the remaining

issues raised by the parties on appeal are rendered moot.

¶4                                                                        I. BACKGROUND

¶5     This case has been the subject of many prior appeals to this court, yielding—inter alia—

decisions affirming the circuit court’s order granting summary judgment in favor of Mr. Rivo

with respect to the condemnation complaint, as the District never passed a valid ordinance

authorizing the acquisition of the property in question, and a decision dismissing for lack of

jurisdiction a prior appeal from the circuit court’s award of attorney fees. See Forest Preserve

District of Cook County v. Continental Community Bank & Trust Co., No. 1-12-2211 (Sept. 6,

2012) (appeal dismissed for lack of jurisdiction); Forest Preserve District of Cook County v.

Continental Community Bank & Trust Co., 2014 IL App (1st) 131652-U (appeal dismissed for

lack of jurisdiction); Forest Preserve District of Cook County v. Continental Community Bank &

Trust Co., 2016 IL App (1st) 152145-U (summary judgment in favor of Mr. Rivo on

condemnation complaint affirmed); Forest Preserve District of Cook County v. Continental

Community Bank & Trust Co., 2017 IL App (1st) 153512-U (appeal from attorney fee award

dismissed for lack of jurisdiction). The orders entered by this court in those prior appeals,

including the factual background set out therein, are incorporated herein by reference. Therefore,

we restate here only those facts necessary to our resolution of the appeals currently pending

before us.

¶6     This dispute dates to 2000, when the District began filing a number of eminent domain

actions, including this suit in which the District sought to acquire 12.5 acres that were held by

the Trustee for the benefit of Mr. Rivo. In 2003, Mr. Rivo agreed to give the District fee simple

title to that property in exchange for $1.4 million, the circuit court entered an agreed judgment


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order to that effect on March 6, 2003, and Mr. Rivo subsequently received the funds, less

$50,000 that was retained in an escrow account and was to be paid when Mr. Rivo finally

vacated the property.

¶7     Other property owners who had not entered into settlement agreements opposed the

condemnation of their properties. They argued, successfully, that the District never had legal

authority to condemn any of the relevant properties because the board had not properly adopted

the necessary ordinance. See, e.g., Forest Preserve District of Cook County v. First National

Bank of Evergreen Park, Nos. 1-04-1536 and 1-04-3777 (consolidated) (2008) (unpublished

order under Supreme Court Rule 23). On October 27, 2003—in light of the success these other

property owners had in opposing condemnation of their properties—Mr. Rivo petitioned for

relief from the agreed judgment order entered in this matter, pursuant to section 2-1401 of the

Code of Civil Procedure (Code). 735 ILCS 5/2-1401 (2004).

¶8     Mr. Rivo was represented by Mr. Bedell in the section 2-1401 proceeding, pursuant to a

retainer agreement executed in October 2003. With respect to the scope of Mr. Bedell’s

representation, the retainer agreement provided that Mr. Bedell’s representation of Mr. Rivo

would be “limited to seeking post judgment relief through the filing and prosecuting [of] a

petition to vacate the settlement and judgment entered against you under 735 ILCS 5/2-1401.”

With respect to Mr. Bedell’s compensation, the retainer agreement provided that Mr. Bedell

would be paid “a non-refundable $1,200.00 retainer and that in the event of recovery, whether by

settlement or trial, I will be paid 20% of the amount recovered. (The $1,200 will be deducted

from the 20% contingency fee in the event of recovery.) If there is no recovery, you owe me no

more fee than the retainer you paid.” Mr. Rivo was also responsible for the payment of all “costs

associated with this matter.” On July 22, 2009, a written notice of attorney’s lien detailing the


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contingency provision contained in the retainer agreement was served by hand-delivery upon the

District’s general counsel.

¶9     The parties ultimately filed cross-motions for summary judgment on the section 2-1401

petition. In an order entered on February 15, 2012, the circuit court granted summary judgment

in favor of Mr. Rivo, denied the District’s cross-motion, vacated the agreed judgment order

previously entered on March 6, 2003, and reinstated the condemnation case. The District

attempted to appeal from this decision, but the appeal was dismissed for lack of appellate

jurisdiction. Forest Preserve District of Cook County v. Continental Community Bank & Trust

Co., No. 1-12-2211 (Sept. 6, 2012).

¶ 10   Thereafter, on October 10, 2012, Mr. Bedell filed both a petition for attorney fees and

costs, as well as a motion to withdraw as Mr. Rivo’s attorney. In the petition for fees, Mr. Bedell

contended that he had spent nearly 300 hours representing Mr. Rivo in the section 2-1401

proceedings, his usual and customary rate during that time ranged between $250 and $350 per

hour, and $1,546.50 in costs had been incurred. Mr. Bedell therefore sought an award of

$93,116.50 in fees and costs. The fee petition did not reference or rely on the contingency fee

agreement contained in the retainer agreement in any way.

¶ 11   In the motion to withdraw, Mr. Bedell asserted that—in light of the summary judgment

granted in favor of Mr. Rivo on the section 2-1401 petition—he had satisfied his obligations to

Mr. Rivo under the original retainer agreement. Mr. Bedell also contended that, while he had

consulted with Mr. Rivo regarding the prosecution of additional damages claims against the

District, Mr. Rivo was unwilling to follow Mr. Bedell’s advice and there had been a breakdown

in communication between attorney and client. Noting these facts and his interest in the outcome

of his fees petition, Mr. Bedell asked the circuit court for leave to withdraw as Mr. Rivo’s


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attorney and leave to file an appearance on his own behalf with respect to the fee petition. Mr.

Bedell’s motion to withdraw was granted on October 30, 2012.

¶ 12   Mr. Rivo subsequently obtained new counsel to represent him in prosecuting various

claims against the District. Those claims included counterclaims stemming from the

condemnation proceedings, including allegations that Mr. Rivo was entitled to millions of dollars

in damages and to reacquire title from the District. Mr. Rivo’s new counsel also filed a motion

for summary judgment on the District’s complaint for condemnation.

¶ 13   In response, the District filed a combined motion which sought to: (1) vacate the prior

ruling granting Mr. Rivo’s section 2-1401 petition, (2) strike Mr. Rivo's counterclaims, and (3)

deny Mr. Rivo’s motion for summary judgment in this condemnation action.

¶ 14   These motions were heard in 2013. In a three-part order entered on April 18, 2013, the

circuit court denied the District's combined motion to vacate the prior ruling granting Mr. Rivo’s

section 2-1401 petition and to strike Mr. Rivo's counterclaims, and granted Mr. Rivo's motion for

summary judgment on the condemnation complaint.

¶ 15   The District filed an appeal from the denial of its motion to vacate the prior ruling

granting the section 2-1401 petition. However, this court once again dismissed the District's

appeal for lack of appellate jurisdiction. Forest Preserve District, 2014 IL App (1st) 131652-U, ¶

10.

¶ 16   Upon remand, Mr. Rivo filed a motion seeking a finding of enforceability and

appealability with respect to the summary judgment ruling, pursuant to Illinois Supreme Court

Rule 304(a) (Ill. S. Ct. R. 304(a) (eff. Jan. 1, 2015)), while the District filed a motion seeking

reconsideration of the grant of summary judgment in favor of Mr. Rivo on its condemnation

complaint. In an order entered on June 26, 2015, the circuit court denied the District's motion and


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granted Mr. Rivo's motion, finding that there was no just reason to delay appeal of "[t]he 4-8-13

order granting summary judgment." The District appealed, and this court concluded that that the

circuit court properly granted summary judgment in favor of Mr. Rivo on the condemnation

complaint. Forest Preserve District of Cook County v. Continental Community Bank & Trust

Co., 2016 IL App (1st) 152145-U. The District filed a petition for leave to appeal that decision

with our supreme court which, pursuant to a settlement agreement discussed below, was

subsequently withdrawn on April 11, 2017.

¶ 17   Meanwhile, while Mr. Bedell’s original petition for fees was stricken for failure to attach

and account for the retainer agreement, he was granted leave to file an amended petition. The

operative amended fee petition was filed on September 15, 2015. Therein, Mr. Bedell

specifically relied upon section 70(a) of the Eminent Domain Act (the Act) (735 ILCS 30/10-5­

70(a) (West 2014)), which provides for the award of fees and costs where it is determined that a

plaintiff “cannot acquire the property by condemnation” and the defendant incurs such fees and

costs “in defense of the complaint.” He also primarily relied upon the retainer agreement to

support a claim for fees and costs. According to Mr. Bedell’s amended petition, the retainer

agreement entitled him to a fee of 20% of any amount recovered. Further, Mr. Bedell asserted:

       “When this Court granted the 2-401 petition and vacated the order awarding the

       Defendant’s property to the District, Bedell recovered for the Defendant his property. As

       a basis of the fees to be awarded under the Act, the Court should award the fee due from

       Defendant to Bedell under the fee agreement: using the conservative value of the

       Defendant’s property, which the District determined in 2003 to be $1,400,000, Bedell is

       entitled to a fee of $280,000 (minus $1,200 already paid as retainer). Costs of $1,546.50

       should also be awarded under the fee agreement.”


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In the alternative, the amended petition sought an award of fees and costs, to be calculated on an

hourly basis as it was in the original fee petition, “if [the] Court determines that Bedell should

not be paid in accordance with his fee agreement.”

¶ 18   On September 30, 2015, the District filed a motion to dismiss the amended fee petition.

Therein, the District asserted—inter alia—that Mr. Bedell was not entitled an award of fees as

requested in the fee petition because: (1) he was not entitled to any attorney fees under the

language of the Act, as he only represented Mr. Rivo in the section 2-1401 petition, (2) his claim

for a fee based upon the contingency fee provision in the retainer agreement was improper,

where Mr. Bedell was a terminated attorney and could therefore only recover based upon a

theory of quantum meruit, and (3) even if the contingency fee provision was relevant to the

calculation of any fee award, that provision was not yet triggered because title to the property

had never been returned to Mr. Rivo, thus there had not been any “recovery.”

¶ 19   In a written order entered on November 6, 2015, the circuit court denied the District’s

motion to dismiss and granted Mr. Bedell’s amended petition for fees. The order specifically

held that “judgment is entered against [the District] in the amount of $280,000 for attorneys fees

and $1,546.50 in costs in favor of Gregory A. Bedell.” A judgment for fees was also entered in

favor of Mr. Rivo’s new attorneys under section 70(a) of the Act. While the District previously

appealed from the judgment entered in favor of Mr. Bedell, that appeal was dismissed for lack of

appellate jurisdiction. Forest Preserve District of Cook County v. Continental Community Bank

& Trust Co., 2017 IL App (1st) 153512-U.

¶ 20    Meanwhile, this matter continued in the circuit court with respect to the counterclaims

filed by Mr. Rivo’s new counsel. In open court on December 9, 2016, the parties spread of

record the general terms of a settlement agreement that had been reached with respect to the


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counterclaims. The agreement was subsequently reduced to a written settlement agreement

executed on February 6, 2017. As relevant to this appeal, and subject to the approval of the

District’s board, the written settlement agreement provided that:

       1.	 The parties intended to settle all claims between them, with the specific exception of

           the judgment entered in favor of Mr. Bedell for attorney fees and costs, without any

           admission of liability

       2.	 As full settlement of Mr. Rivo’s counterclaims, the District would pay Mr. Rivo

           $1,650,000, plus whatever funds remained in the escrow account originally

           established in connection with the original agreed judgment order entered in 2003,

           subject to certain conditions that were contained in paragraph 17 of the settlement

           agreement (discussed below).

       3.	 The settlement check would be made payable to Mr. Rivo and his current attorneys.

       4.	 This payment would be paid as “additional just compensation” for the “taking” of the

           property, with the settlement agreement acknowledging that summary judgment on

           the District’s condemnation complaint had been previously granted in Mr. Rivo’s

           favor and upheld on appeal. Upon payment Mr. Rivo would execute a quit claim deed

           conveying the property to the District.

       5.	 Specifically including the judgment previously entered in favor of Mr. Rivo’s new

           attorneys and specifically excluding the judgment previously entered in favor of Mr.

           Bedell, Mr. Rivo and the District waived any claims against each other and would

           bear their own fees and costs.

       6.	 The parties would move to vacate the judgment entered in favor of Mr. Rivo’s new

           attorneys, and agreed to the entry of a “Stipulated Order of Dismissal with Prejudice”


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           with respect to the instant case, with the exception of any issues regarding the

           judgment entered in favor of Mr. Bedell. The District would also move to dismiss its

           petition for leave to appeal from this court’s prior order affirming summary judgment

           in favor of Mr. Rivo on the condemnation complaint filed by the District.

¶ 21   In addition, as noted above, the settlement agreement contained further relevant

provisions in paragraph 17, which provided:

              “Upon approval of this Agreement by the FPD Board, and in the event that a final

       judgment is rendered in favor of Bedell and against the FPD for Bedell’s attorneys fees in

       the instant matter, such judgment and interest shall be paid with the funds on deposit in

       the Escrow Account, as follows: If such judgment equals or exceeds the amount on

       deposit in the Escrow Account, the funds on deposit shall be used first (prior to FPD

       funds to satisfy the judgment. If the amount on deposit in the Escrow Account exceeds

       the judgment for fees, the judgment for fees shall be paid from the Escrow Account and

       any excess remaining on deposit in the Escrow Account after payment of the judgment

       for fees shall be paid by check to [Mr. Rivo and his current attorneys] as the remainder of

       the Settlement Award.”

¶ 22   In an affidavit filed in connection with the settlement agreement, it was averred that the

escrow account contained a total balance of $61,813.41 as of February 10, 2017.

¶ 23   On February 7, 2017, the District’s Board approved the settlement agreement negotiated

by the parties. Pursuant to that agreement, the court entered a “Stipulated Order of Dismissal

with Prejudice” on February 10, 2017, which in relevant part provided: (1) this case was

dismissed on the merits and with prejudice, (2) the award of attorney’s fees entered in favor of

Mr. Rivo’s new attorneys was vacated, (3) with the exception of the judgment entered in favor of


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Nos. 1-17-0680 and 1-17-0871 (consolidated)

Mr. Bedell, the parties would bear their own costs and fees, (4) the court made a finding that

there was no just reason to delay the enforcement or appeal of the November 6, 2015, judgment

entered in favor of Mr. Bedell, and (5) the circuit court retained jurisdiction to enforce the

parties’ settlement agreement.

¶ 24   However, in the days leading up to the entry of the dismissal order, the District filed a

motion to declare Mr. Bedell’s attorney’s lien invalid, in which the District contended that the

lien had not been properly served and, even if it was, such a lien was not enforceable against a

public body such as the District. The District also filed a counterclaim for interpleader, in which

the District asserted that, while Mr. Rivo claimed he was owed the entire settlement award, Mr.

Bedell asserted that he had a contingency lien on that award pursuant to the attorney’s lien he

had previously served on the District. After further contending that it was a neutral, disinterested

stakeholder with respect to the apportionment of the settlement award, the District asked to be

allowed to tender the payment of the settlement award to the court and be dismissed from any

further liability with respect to the settlement award.

¶ 25   In response, Mr. Rivo filed both a motion to enforce the settlement agreement and a

motion to dismiss the District’s interpleader counterclaim. With respect to the former, Mr. Rivo

asserted that the District’s attempt to file a counterclaim for interpleader and deposit the

settlement award with the court constituted an anticipatory breach of the settlement agreement.

With respect to the motion to dismiss, Mr. Rivo contended—inter alia—that the District was not

a neutral stakeholder in light of the obligations it undertook with respect to Mr. Bedell’s fees in

the settlement agreement, and that the District’s proposed course of action would in fact violate

the terms of the settlement agreement.




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¶ 26   On February 21, 2017, the circuit court: (1) granted the motion to dismiss the District’s

counterclaim for interpleader, (2) granted Mr. Rivo’s motion to enforce the settlement

agreement, and (3) denied the motion to declare Mr. Bedell’s lien invalid. In the course of

making these rulings, the circuit court concluded—inter alia—that Mr. Bedell’s lien would not

attach to the money paid to Mr. Rivo under the settlement agreement. Mr. Bedell filed a motion

for clarification or reconsideration as to that finding, but that motion was denied.

¶ 27   Thereafter, Mr. Bedell filed a petition to adjudicate and enforce his attorney’s lien on

March 2, 2017. Therein, he asserted that his efforts “recovered” the property for Mr. Rivo, that

this recovery could be directly traceable to the $1.65 million in settlement award the District was

to pay Mr. Rivo, and that Mr. Bedell should therefore have a lien on that award for the payment

of his contingency fee in excess of $280,000. After concluding that title to the property was

never actually returned to Mr. Rivo, the circuit court essentially concluded that Mr. Bedell did

not actually recover anything for Mr. Rivo such that Mr. Bedell could claim a lien on the

settlement award pursuant to the attorney’s lien.

¶ 28    As noted above, in its current appeal (no. 1-17-0680), the District seeks: (1) relief from a

judgment for attorney’s fees and costs originally awarded to Mr. Bedell on November 6, 2015;

and (2) reversal of the circuit court’s orders denying the District leave to file a counterclaim for

interpleader and denying its motion to declare the attorney lien asserted by Mr. Bedell invalid. In

his cross-appeal, Mr. Bedell seeks reversal of the circuit court’s denial of his petition to

adjudicate and enforce his attorney’s lien against the settlement award. Finally, in Mr. Bedell’s

separate appeal (no. 1-17-0871), Mr. Bedell again seeks reversal of the circuit court’s denial of

his petition to adjudicate and enforce his attorney’s lien, with the appeal having been filed in the

alternative to the cross-appeal should this court view the matters “are more properly considered


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as a separate appeal.” In an order entered by this court on May 8, 2017, these appeals were

consolidated.

¶ 29                                                   II. ANALYSIS

¶ 30   On appeal, the parties present a host of arguments supporting their respective positions on

the many issues raised in these consolidated appeals. However, with respect to the District’s

appeal, while we affirm the circuit court’s decision to award Mr. Bedell attorney fees and costs

under section 70(a) of the Eminent Domain Act, we vacate the resulting judgment only as to the

amount of the award and remand for a recalculation of the proper amount of that award under a

theory of quantum meruit. This conclusion proves to be dispositive of these appeals as, in light of

our resolution of this issue, all of the remaining issues raised by the parties on appeal are

rendered moot.

¶ 31   As our supreme court has long recognized, Illinois follows the “American rule” which

prohibits prevailing parties from recovering their attorney fees from the losing party absent an

express statutory or contractual provision. Sandholm v. Kuecker, 2012 IL 111443, ¶ 64.

Accordingly, statutes or contracts which allow for such fees are in derogation of the common law

and must be strictly construed. Id.; Powers v. Rockford Stop–N–Go, Inc., 326 Ill. App. 3d 511,

515 (2001). “That is, we construe the fee-shifting provision ‘to mean nothing more—but also

nothing less—than the letter of the text.’ ” Bright Horizons Children's Centers, LLC v. Riverway

Midwest II, LLC, 403 Ill. App. 3d 234, 255 (2010) (quoting Erlenbush v. Largent, 353 Ill. App.

3d 949, 952 (2004)). Construing a fee-shifting statute is an exercise in statutory construction.

The rules applicable to this task are well-established, and were recently outlined in Hendricks v.

Board of Trustees of the Police Pension Fund, 2015 IL App (3d) 140858, ¶ 14:




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               “The fundamental rule of statutory interpretation is to ascertain and give effect to

           the intent of the legislature. [Citation.] The most reliable indicator of that intent is the

           language of the statute itself. [Citation.] In determining the plain meaning of statutory

           language, a court will consider the statute in its entirety, the subject the statute

           addresses, and the apparent intent of the legislature in enacting the statute. [Citations.]

           If the statutory language is clear and unambiguous, it must be applied as written,

           without resorting to further aids of statutory interpretation. [Citation.] A court may

           not depart from the plain language of the statute and read into it exceptions,

           limitations, or conditions that are not consistent with the express legislative intent.

           [Citation.]”

¶ 32   Thus, it is well recognized that whether a party may recover attorney fees and costs

pursuant to a specific statutory provision is a question of law. Grate v. Grzetich, 373 Ill. App. 3d

228, 231 (2007) The circuit court's resolution of such a question is therefore subject to de novo

review. Id. However, the circuit court's application of such statutory language to the facts of a

particular case is reviewed for an abuse of discretion. See Peleton, Inc. v. McGivern's Inc., 375

Ill. App .3d 222, 226 (2007). An abuse of discretion occurs when no reasonable person could

take the view adopted by the circuit court. Fennell v. Illinois Central R.R. Co., 2012 IL 113812, ¶

21. Thus, whether the court has authority to grant attorney fees is a question of law we review de

novo, whereas a court's decision to as to whether to award authorized fees is reviewed for an

abuse of discretion. Spencer v. Di Cola, 2014 IL App (1st) 121585, ¶ 34.

¶ 33   In light of the above, we first address the District’s contention that section 70(a) of the

Act does not grant the circuit court authority to award attorney fees and costs for the work Mr.

Bedell did on Mr. Rivo’s behalf. The relevant statutory language provides that, with respect to a


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condemnation complaint, “if the final judgment is that the plaintiff cannot acquire the property

by condemnation, the court shall, upon the application of the defendants or any of them, enter an

order in the action for the payment by the plaintiff of all costs, expenses, and reasonable attorney

fees paid or incurred by the defendant or defendants in defense of the complaint, as upon the

hearing of the application shall be right and just, and also for the payment of the taxable costs.”

735 ILCS 30/10-5-70(a) (West 2014).

¶ 34   The District specifically contends that this statutory language clearly authorizes an award

fees and costs only by the circuit court presiding over a condemnation complaint, only where the

final judgment entered by that court concludes that the plaintiff cannot acquire the property by

condemnation, and then only for fees and costs actually paid or incurred by a condemnation

defendant for actions taken both in defense of the condemnation complaint and within the

condemnation proceeding itself. Noting that Mr. Bedell only performed work on Mr. Rivo’s

behalf in the context of the section 2-1401 proceeding, that section 2-1401 proceedings are

generally considered new, separate proceedings, and that section 2-1401 itself contains no

provision for the award of attorney fees, the District therefore contends that the circuit court

improperly concluded that Mr. Bedell’s amended fee petition could satisfy these statutory

requirements. The District also asserts that the fees and costs were awarded to Mr. Bedell not

within the condemnation proceedings, but rather within the section 2-1401 proceeding.

¶ 35   With respect to these contentions, it is indeed undisputed that all of Mr. Bedell’s work on

Mr. Rivo’s behalf took place within the context of the section 2-1401 proceeding. Furthermore, it

is also true that the filing of a petition pursuant to section 2–1401 of the Code, which provides a

procedure by which final orders, judgments, and decrees may be vacated after 30 days from their

entry (735 ILCS 5/2–1401 (West 2014); Smith v. Airoom, Inc., 114 Ill. 2d 209, 220 (1986)), is


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generally considered to constitute a new proceeding and not a continuation of the original cause

of action (Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 102 (2002); Mills v.

McDuffa, 393 Ill. App. 3d 940, 946 (2009)). Finally, we also agree that section 2-1401 of the

Code does not, itself, contain a fee-shifting provision. See 735 ILCS 5/2–1401 (West 2014).

However, while we agree with these assertions made by the District, we do not agree with the

remainder of its contentions or its ultimate conclusion regarding the circuit court’s authority to

award fees and costs to Mr. Bedell under section 70(a) of the Act.

¶ 36   For example, while the District contends that the ultimate merits of its condemnation

complaint and the award of fees to Mr. Bedell were issues addressed within the section 2-1401

proceeding in this matter, these assertions are simply incorrect. Here, summary judgment was

entered in Mr. Rivo’s failure with respect to the section 2-1401 petition on February 15, 2012,

pursuant to an order in which the circuit court granted summary judgment in favor of Mr. Rivo,

denied the District’s cross-motion, vacated the agreed judgment order previously entered on

March 6, 2003, and reinstated the condemnation case. See Forest Preserve District of Cook

County v. Continental Community Bank & Trust Co., 2014 IL App (1st) 131652-U (noting that

pursuant to the 2012 order, the condemnation case was reopened and reinstated).

¶ 37   It was only thereafter, well after the condemnation case was reinstated, that the circuit

court presiding over the condemnation case: (1) granted summary judgment on the District’s

condemnation complaint in favor of Mr. Rivo on April 18, 2013, (2) made that ruling final and

appealable on June 26, 2015, and (3) granted Mr. Bedell’s amended fee petition on November 6,

2015, an order made final and appealable upon the entry of the stipulated order of dismissal on

February 7, 2017. Thus, the record clearly establishes that, in full compliance with section 70(a)

of the Act, the court presiding over the condemnation case entered both a final judgment finding


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Nos. 1-17-0680 and 1-17-0871 (consolidated)

that the District cannot acquire the Mr. Rivo’s property by condemnation and, thereafter, an

order in that same action for the payment of Mr. Rivo’s attorney fees and costs. See 735 ILCS

30/10-5-70(a) (West 2014).

¶ 38   Furthermore, we also reject the District’s contention that, because Mr. Bedell represented

Mr. Rivo solely in the context of the separate, section 2-1401 proceeding, an award for Mr.

Bedell’s fees and costs is not authorized by the statute because they were not incurred by Mr.

Rivo “in defense” of the condemnation complaint, and within the condemnation proceeding, as

the District contends is required by section 70(a) of the Act.

¶ 39   It does not appear that this specific question—i.e., whether section 70(a) of the Act

allows for an award of fees and costs incurred in connection with a section 2-1401 proceeding

arising out of a condemnation proceeding—has previously been addressed by the appellate court.

However, we do find guidance in prior decisions that have addressed the propriety of an award

of fees and costs incurred in appeals from circuit court decisions in condemnation cases.

¶ 40   In Department of Public Works & Buildings v. Lanter, 15 Ill. 2d 33, 39-40 (1958), our

supreme court addressed whether a prior, but substantially similar, version of section 70(a) of the

Act authorized the payment of the defendants’ attorney fees that were incurred in connection

with the defense of an appeal filed by a public entity from the circuit court’s dismissal of a

condemnation complaint. Our supreme court first recognized that the terms of the substantially

similar prior version of section 70(a) of the Act “do not restrict the attorney fees payable to those

incurred in the trial court.” Id. at 40. Our supreme court then concluded that “[t]he plain intent of

that provision is to pay defendants for all reasonable attorney fees incurred in defense of the

condemnation petition ***. Where that defense must be made, not merely in the trial court, but

also in a reviewing court because the Department has taken an appeal to that court, and


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Nos. 1-17-0680 and 1-17-0871 (consolidated)

defendant has no choice in the matter, then the attorney fees incurred in connection with that

appellate court proceeding must be deemed to be an integral part of the defense of the

condemnation petition, and should be recoverable under the statute.” Id. Our supreme court

further reasoned that “[s]uch an interpretation in no way encourages prolonged condemnation

litigation, yet fairly compensates defendant for attorney fees if he is compelled to defend beyond

the trial court; and at the same time it is clearly consistent with the terms of the statute.” Id. at

40-41.

¶ 41     Thereafter, in Village of Cary v. Trout Valley Ass'n, 297 Ill. App. 3d 63, 64-65 (1998),

the appellate court considered whether another prior, but substantially similar, version of section

70(a) of the Act authorized an award of attorney fees and costs incurred by a defendant in

connection with the defendant’s own appeal from the circuit court’s denial of a motion to dismiss

a condemnation complaint. In finding that the statute did authorize such an award, and relying on

Lanter, the court first noted that the prior, substantially similar version of section 70(a) “in no

way restricts the property owner's right to recover appellate fees and expenses.” Id. at 68.

¶ 42     Then, the court reasoned that the critical inquiry is whether the defendant was

“ ‘compelled to defend beyond the trial court’ ” (id. at 69 (quoting Lanter, 15 Ill. 2d at 40-41))

such that “the appeal was taken “in defense of the complaint’ ” (id. at 68 (quoting a prior version

of section 70(a) of the Act). Ultimately, the appellate court concluded that because the “only

means of protecting its property from an unlawful condemnation was to take the appeal,” the

defendant’s appeal in that case “was necessary to its defense of the *** condemnation petition.”

Id. at 69. Therefore, the court concluded that the defendant was “entitled to recover all costs,

expenses, and reasonable attorney fees incurred in prosecuting that appeal.” Id.




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Nos. 1-17-0680 and 1-17-0871 (consolidated)

¶ 43      Here, the District’s condemnation complaint was originally resolved by the final, agreed

judgment order entered in 2003. More than 30 days later, but less than 2 years thereafter, Mr.

Rivo learned that the District never had legal authority to condemn his property because its board

had not properly adopted the necessary ordinance. In such circumstances, Mr. Rivo’s only means

of protecting his property from an unlawful condemnation was to file a section 2-1401 petition.

See 735 ILCS 5/2–1401 (West 2014) (containing the sole procedure in the Code by which final

orders, judgments, and decrees may be vacated after 30 days, but less than 2 years, from their

entry).

¶ 44      A section 2-1401 proceeding does indeed represent a new proceeding and not a

continuation of the original cause of action. However, the above authority clearly supports our

conclusion that such a proceeding—being one defendant was compelled to undertake to protect

his property—is still one prosecuted in defense of the condemnation complaint despite the fact

that it reaches beyond the original circuit court condemnation proceedings. Indeed, because the

plain language of section 70(a) does “not restrict the attorney fees payable to those incurred in

the trial court” (Lanter, 15 Ill. 2d at 40), precluding condemnation defendants such as Mr. Rivo

from recovering for fees and costs incurred in successful section 2-1401 proceedings would

improperly depart from the plain language of the statute and read into it exceptions, limitations,

or conditions that are not consistent with the express legislative intent (Hendricks, 2015 IL App

(3d) 140858, ¶ 14). In contrast, interpreting section 70(a) as we do here construes the “fee-

shifting provision ‘to mean nothing more—but also nothing less—than the letter of the text.’ ”

Bright Horizons, 403 Ill. App. 3d at 255 (quoting Largent, 353 Ill. App. 3d at 952).

¶ 45      Thus, we conclude that the circuit court properly concluded that Mr. Bedell’s work in the

section 2-1401 proceeding represented costs, expenses, and reasonable attorney fees paid or


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Nos. 1-17-0680 and 1-17-0871 (consolidated)

incurred by Mr. Rivo in defense of the condemnation complaint filed by the District, such that it

was compensable under section 70(a) of the Act.

¶ 46    Having found that the circuit court had the authority to enter an award of fees and costs

for Mr. Bedell’s work, we now turn to the question of whether the amount of that award

constituted an abuse of discretion.

¶ 47        In this case, Mr. Bedell’s amended fee petition primarily asserted that “the Court should

award the fee due from Defendant to Bedell under the [contingency] fee agreement: using the

conservative value of the Defendant’s property, which the District determined in 2003 to be

$1,400,000, Bedell is entitled to a fee of $280,000 (minus $1,200 already paid as retainer). Costs

of $1,546.50 should also be awarded under the fee agreement.” In a written order entered on

November 6, 2015, the circuit court granted Mr. Bedell’s amended petition for fees and costs and

pronounced that “judgment is entered against [the District] in the amount of $280,000 for

attorneys fees and $1,546.50 in costs in favor of Gregory A. Bedell.” 1 Thus, in 2015, the circuit

court granted an award of fees and costs premised upon the contingency fee provision in the

retainer agreement executed in 2003, despite the fact that in October, 2012, Mr. Bedell had

withdrawn as Mr. Rivo’s attorney in 2012. We find this to have been an abuse of discretion, as it

improperly compensated Mr. Bedell based upon a contingency fee agreement that was no longer

in force.

¶ 48    When an attorney-client relationship that was originally established under a contingent

fee contract terminates, the contract no longer exists and neither party can therefore seek to

enforce the terms of the nonexistent contract. McGill v. Garza, 378 Ill. App. 3d 73, 76 ( 2007);


        1
            The circuit court’s judgment did not specifically account for the $1,200 retainer already
        paid to Mr. Bedell.

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Nos. 1-17-0680 and 1-17-0871 (consolidated)

Kannewurf v. Johns, 260 Ill. App. 3d 66, 75-76 (1994); Leoris & Cohen, P.C. v. McNiece, 226

Ill. App. 3d 591, 595–96 (1992). Because Mr. Rivo was no longer obligated to pay, and Mr.

Bedell was no longer entitled to be compensated, pursuant to the terminated contingency fee

agreement between Mr. Rivo and Mr. Bedell, such a contingent fee was not actually paid or

incurred “in defense” of the condemnation complaint. It was therefore improper for the circuit

court to rely solely upon that agreement as a basis for calculating the award of fees under section

70(a) of the Act.

¶ 49   However, when the attorney has withdrawn and the court finds the attorney justifiably

withdrew from the case, then the attorney is entitled to proceed on a claim to recover fees based

on quantum meruit. McGill, 378 Ill. App. 3d at 76-77; Kannewurf, 260 Ill. App. 3d at 73; Leoris

& Cohen, P.C., 226 Ill. App. 3d at 597; Reed Yates Farms, Inc. v. Yates, 172 Ill. App. 3d 519,

533 (1988). Here, Mr. Bedell’s motion to withdraw contended that his request was based upon a

disagreement as to the strategy going forward with respect to seeking damages from the District

and a breakdown in communication. Courts have recognized these to be justifiable reasons to

withdraw, entitling the withdrawing attorney to recover reasonable fees based on quantum

meruit. See McGill, 378 Ill. App. 3d at 76-77 (collecting cases). In this case, therefore, Mr. Rivo

did in fact actually incur fees and costs “in defense” of the condemnation complaint—albeit

payable to Mr. Bedell only on a theory of quantum meruit—such that an award of fees and costs

to Mr. Bedell was proper.

¶ 50   Therefore, while we affirm the circuit court’s decision to award Mr. Bedell a judgment

for fees and cost under section 70(a) of the Act, we vacate that part of the judgment determining

the amount of fees and costs and remand for a recalculation of the proper amount of that award

under a theory of quantum meruit. Under the theory of quantum meruit, the trial court is literally


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Nos. 1-17-0680 and 1-17-0871 (consolidated)

to award the attorney “ ‘as much as he deserves.’ ” Kannewurf, 260 Ill. App. 3d at 74 (quoting

Lee v. Ingalls Memorial Hospital, 232 Ill. App. 3d 475, 478 (1992)). We remand, because the

circuit court” has broad discretion in matters of attorney fees due to the advantage of close

observation of the attorney's work and the trial judge's deeper understanding of the skill and time

required in the case.” Kannewurf, 260 Ill. App. 3d at 74. “In making its determination, the circuit

court should “assess all of the relevant factors, including the time and labor required, the

attorney's skill and standing, the nature of the cause, the novelty and difficulty of the subject

matter, the attorney's degree of responsibility in managing the case, the usual and customary

charge for that type of work in the community, and the benefits resulting to the client.”

(Emphasis omitted.) Id. The circuit court should also ensure that both the $1,200 retainer already

paid by Mr. Rivo to Mr. Bedell and the provisions contained in paragraph 17 of the February 6,

2017, settlement agreement are accounted for in its analysis.

¶ 51   Finally, while the parties have raised a number of other issues, we find our resolution of

the above matters renders them moot. See In re Jonathan P., 399 Ill. App. 3d 396, 400 (2010).

(“ ‘An appeal is considered moot where it presents no actual controversy or where the issues

involved in the trial court no longer exist because intervening events have rendered it impossible

for the reviewing court to grant effectual relief to the complaining party.’ [Citation.] Generally,

courts of review do not decide moot questions, render advisory opinions, or consider issues

where the result will not be affected regardless of how those issues are decided. [Citation.]”).

¶ 52   As noted above (supra ¶¶ 24, 28), all of the other issues raised on appeal challenge

various rulings made by the circuit court that fundamentally concern the proper disposition of the

attorney lien asserted by Mr. Bedell against the settlement award. However, Mr. Bedell’s

assertion of his attorney lien was always premised upon his purported right to a lien based on the


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Nos. 1-17-0680 and 1-17-0871 (consolidated)

contingency fee provision of the retainer agreement. Because we have already concluded that the

retainer agreement no longer exists and that Mr. Bedell can therefore no longer seek to enforce

the terms of the nonexistent contract, all of the circuit court’s rulings with respect to the proper

disposition of such a purported lien are moot.

¶ 53                                                      III. CONCLUSION

¶ 54   For the foregoing reasons, while we affirm the circuit court’s decision to award Mr.

Bedell fees and cost under section 70(a) of the Act, we vacate the resulting judgment only as to

the amount of the award and remand for a recalculation of the proper amount of that award under

a theory of quantum meruit.

¶ 55   Affirmed in part and vacated in part.

¶ 56   Cause remanded with directions.




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