                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                      In re Estate of McFadden, 2011 IL App (2d) 101157




Appellate Court            In re ESTATE OF IAN A.F. McFADDEN, a Minor (Tara Fuller, as
Caption                    Guardian of the Estate, Petitioner-Appellee, v. Kim MacCloskey and
                           Associates, Respondent-Appellant).



District & No.             Second District
                           Docket No. 2-10-1157


Filed                      December 30, 2011


Held                       In an action to adjudicate respondent attorney’s lien for representing
(Note: This syllabus       petitioner’s son in a personal injury action, the trial court’s judgment
constitutes no part of     granting petitioner’s request to adjudicate the lien to zero was affirmed,
the opinion of the court   even though the trial court erred in finding the lien invalid, since the
but has been prepared      minor’s father, purporting to act as next friend of his son, retained
by the Reporter of         respondent’s services to pursue the tort action, but the father had been
Decisions for the          divorced from petitioner for several years, did not have custody and was
convenience of the         substantially behind in child support and, therefore, lacked the ability to
reader.)
                           assert a claim for his son, and although that disqualification did not
                           invalidate respondent’s lien, any work respondent did after being notified
                           that petitioner was the appropriate party to act for the minor was done at
                           respondent’s own peril, respondent’s decision to continue working was
                           not reasonable, and in the absence of evidence of the work done, no
                           compensation was warranted.


Decision Under             Appeal from the Circuit Court of Winnebago County, No. 07-P-362; the
Review                     Hon. Lisa Fabiano, Judge, presiding.
Judgment                    Affirmed.


Counsel on                  Mary I. Wood, of Kim MacCloskey & Associates, LLP, of Rockford, for
Appeal                      appellant.

                            Scott A. Calkins and Arthur G. Kielty, both of Reno & Zahm LLP, for
                            appellee.


Panel                       JUSTICE HUTCHINSON delivered the judgment of the court, with
                            opinion.
                            Justice Burke concurred in the judgment and opinion.
                            Justice Schostok specially concurred, with opinion.




                                              OPINION

¶1          Respondent, the law firm of Kim MacCloskey & Associates, appeals the trial court’s
        judgment that adjudicated respondent’s attorney’s lien to zero and extinguished respondent’s
        claim for attorney fees pursuant to case law and the Attorneys Lien Act (the Act). 770 ILCS
        5/1 (West 2006). Respondent contends that the trial court erred in interpreting the Act and
        abused its discretion when it determined that, pursuant to a quantum meruit theory,
        respondent was not entitled to attorney fees. We affirm.
¶2          This matter stems from personal injury litigation on behalf of Ian A.F. McFadden, a
        minor child, whose parents divorced five years prior to the child’s injury. On February 13,
        2003, petitioner, Tara Fuller, and James McFadden (James) obtained a judgment for
        dissolution of marriage. Petitioner was awarded full custody of the couple’s two children,
        James Jr. and Ian. As of March 1, 2003, James was ordered to pay $367 per month in child
        support for the benefit of the children.
¶3          From March 1, 2003, through April 30, 2007, James was unemployed and failed to
        satisfy his child support obligations. On July 18, 2007, the trial court entered an order finding
        that James was $21,671.75 in arrears on his child support obligations and it issued a warrant
        for his arrest.
¶4          One month later, on August 21, 2007, 10-year-old Ian sustained a broken arm and
        multiple skull fractures after being struck by a tree limb that fell during tree removal
        operations performed by Tree Care Enterprises, an agent employed by the City of Rockford.
        On September 4, 2007, James, purporting to act in his capacity as Ian’s father and next
        friend, retained the services of respondent to pursue a tort action relating to Ian’s injuries.


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¶5         On September 5, 2007, respondent sent notices of attorney’s liens by certified mail to
       Tree Care Enterprises and the City of Rockford. The notices provided, in relevant part:
           “[Y]ou are hereby notified that James McFadden on behalf of his minor son, Ian
           McFadden, has placed in my hands, as his attorney, for suit and collection, a claim,
           demand or cause of action, against you growing out of personal injuries he sustained on
           or about August 21, 2007, as a result of negligence or other conduct. James McFadden
           has agreed to pay me for such services ***.”
       Thereafter, respondent alleges, it performed legal research regarding strict liability based on
       ultrahazardous activities.
¶6         On September 5, 2007, petitioner, also purporting to act in her capacity as Ian’s parent
       and next friend, retained attorney Anthony Kielty (petitioner’s attorney) of the Law Office
       of Reno & Zahm, LLP, to pursue a personal injury action on Ian’s behalf. On September 6,
       2007, petitioner’s attorney filed on petitioner’s behalf a petition for guardianship of a minor,
       seeking to have petitioner appointed as guardian of the estate and person of Ian for the
       purpose of prosecuting Ian’s personal injury claim.
¶7         That same day, September 6, 2007, respondent filed a complaint in the trial court on
       behalf of James, both individually and as next friend of Ian. The complaint alleged against
       Tree Care Enterprises and the City of Rockford negligence, res ipsa loquitur, strict liability,
       and counts under the family expense provision of the Rights of Married Persons Act (750
       ILCS 65/15 (West 2006)).
¶8         Also on September 6, 2007, after respondent filed the complaint, petitioner’s attorney
       notified respondent by letter that he had been retained to represent petitioner and Ian, and he
       asserted petitioner’s right to act as Ian’s representative. The letter further informed
       respondent that petitioner had filed a petition for guardianship, that James was not the
       custodial parent of Ian, that James was substantially in arrears on his court-ordered child
       support obligations for Ian’s benefit, and that a warrant had been issued for James’s arrest
       in connection with his child support arrearage. The letter directed respondent to take no
       further action with respect to Ian’s personal injury action.
¶9         Respondent verified the information alleged in the letter and spoke with James regarding
       the need to remedy the situation. Respondent provided James with the names and contact
       information of several attorneys who could offer James advice regarding his child support
       arrearage.
¶ 10       According to respondent’s brief, sometime between September 10, 2007, and September
       17, 2007, respondent drafted and mailed preliminary written discovery questions and
       performed research and investigation to obtain telephone numbers and addresses for the
       witnesses listed in James’s discovery answers. Respondent obtained Ian’s emergency room
       records, photographs of the injury scene, photographs of Ian during his hospital stay, and
       photographs of Ian after discharge. Respondent created maps of the scene, correlated to the
       photographs. Respondent also procured and redacted a deposition transcript from its closed
       files regarding a similar case against Tree Care Enterprises.
¶ 11       On September 17, 2007, the trial court appointed petitioner as guardian of Ian’s estate
       for the express purpose of pursuing all claims that Ian might have as a result of the personal

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       injuries he sustained on August 21, 2007. On September 19, 2007, the trial court granted
       respondent’s request to withdraw as counsel. On October 15, 2007, the trial court entered an
       order substituting petitioner’s attorney in place of respondent in Ian’s personal injury case.
       After respondent withdrew from the case, it assembled all of its work product and provided
       the information to petitioner’s attorney.
¶ 12       Thereafter, petitioner’s attorney twice amended the complaint in Ian’s personal injury
       case and prosecuted the matter through its conclusion. On October 4, 2010, petitioner filed
       a petition to adjudicate respondent’s attorney’s lien claim. On October 15, 2010, the trial
       court entered an order to settle Ian’s personal injury case for $800,000. On November 5,
       2010, the trial court determined that respondent’s lien claim was invalid and granted
       petitioner’s request to adjudicate respondent’s attorney’s lien to zero and extinguish
       respondent’s claim for attorney fees. Respondent timely appealed.
¶ 13       We first address respondent’s motion to strike petitioner’s brief. Respondent argues that
       we should strike petitioner’s brief, because its facts section is argumentative. See Beitner v.
       Marzahl, 354 Ill. App. 3d 142, 145-46 (2004) (argumentative language within the statement
       of facts is inappropriate and against the mandate of the supreme court rules). As respondent’s
       motion points out, briefs that violate the aforementioned rules may be stricken in whole or
       in part, or offending portions of such briefs may be disregarded. Id. at 146. Thus, as we will
       disregard any argumentative portions of petitioner’s brief, there is no need to strike the brief.
       We therefore deny respondent’s motion.
¶ 14       At issue in this appeal is whether the trial court erred when it found that respondent’s
       attorney’s lien claim was invalid, adjudicated respondent’s attorney’s lien to zero, and
       extinguished respondent’s claim for attorney fees. Respondent argues that (1) the trial court
       erred in adjudicating respondent’s attorney’s lien to zero and extinguishing respondent’s
       claim for attorney fees pursuant to the Act and (2) the trial court abused its discretion when
       it determined that, pursuant to a quantum meruit theory, respondent was not entitled to
       attorney fees. Petitioner responds that the trial court correctly adjudicated respondent’s
       attorney’s lien to zero and extinguished the claim, because James did not have standing to
       sue on Ian’s behalf.
¶ 15       Respondent’s first argument is that the trial court erred in adjudicating respondent’s
       attorney’s lien to zero and extinguishing respondent’s claim for attorney fees pursuant to the
       Act. Specifically, respondent argues that it strictly complied with all the requirements of the
       Act and thus has a valid lien. Petitioner responds that, because James did not have standing
       to sue on Ian’s behalf, pursuant to the language of the Act, respondent could not meet its
       requirements. As to the construction of the Act, our review is de novo. Solon v. Midwest
       Medical Records Ass’n, 236 Ill. 2d 433, 439 (2010).
¶ 16       The Act provides:
                “§ 1. Attorneys at law shall have a lien upon all claims, demands and causes of
           action, including all claims for unliquidated damages, which may be placed in their hands
           by their clients for suit or collection, or upon which suit or action has been instituted, for
           the amount of any fee which may have been agreed upon by and between such attorneys
           and their clients, or, in the absence of such agreement, for a reasonable fee, for the


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           services of such suits, claims, demands or causes of action, plus costs and expenses. In
           the case of a claim, demand, or cause of action with respect to which the total amount of
           all liens under the Health Care Services Lien Act meets or exceeds 40% of the sum paid
           or due the injured person, the total amount of all liens under this Act shall not exceed
           30% of the sum paid or due the injured person. All attorneys shall share proportionate
           amounts within this statutory limitation. If an appeal is taken by any party to a suit based
           on the claim or cause of action, however, the attorney’s lien shall not be affected or
           limited by the provisions of this Act.
                To enforce such a lien, such attorneys shall serve notice in writing, which service
           may be made by registered or certified mail, upon the party against whom their clients
           may have such suits, claims or causes of action, claiming such lien and stating therein the
           interest they have in such suits, claims, demands or causes of action. Such lien shall
           attach to any verdict, judgment or order entered and to any money or property which may
           be recovered, on account of such suits, claims, demands or causes of action, from and
           after the time of service of the notice. On petition filed by such attorneys or their clients
           any court of competent jurisdiction shall, on not less than 5 days’ notice to the adverse
           party, adjudicate the rights of the parties and enforce the lien.” 770 ILCS 5/1 (West
           2006).
¶ 17       The primary goal of statutory interpretation is to ascertain and give effect to the intent of
       the legislature. Solon, 236 Ill. 2d at 440. The best indicator of legislative intent is the
       language of the statute, which is given its plain and ordinary meaning. Id. When the statutory
       language is clear and unambiguous, it must be applied as written. Id. In interpreting statutory
       language, courts will not read into it exceptions, limitations, or conditions that are absent
       from the plain language of the law. Id. at 441. These general principles regarding statutory
       interpretation apply to the Act, which “must be strictly construed, both as to establishing the
       lien and as to the right of action for its enforcement.” People v. Philip Morris, Inc., 198 Ill.
       2d 87, 95 (2001).
¶ 18       In the current matter, respondent argues that it met the three general requirements for a
       valid attorney’s lien. Specifically, respondent asserts that James placed a cause of action in
       the hands of respondent, that written notice of the lien was provided to the opposing parties,
       and that such written notice was sent by certified mail. See 770 ILCS 5/1 (West 2006).
       Petitioner counters that respondent failed to meet the requirements of the Act because
       respondent was not hired by a client with an ability to assert a claim. Specifically, petitioner
       argues that the attorney asserting the lien must perfect the lien by serving written notice upon
       the party against whom the client has a claim. See 770 ILCS 5/1 (West 2006); see also Philip
       Morris, Inc., 198 Ill. 2d at 95 (citing Rhoades v. Norfolk & Western Ry. Co., 78 Ill. 2d 217,
       227 (1979)). According to petitioner, as James was not the guardian of Ian’s estate, he had
       no cause of action against the opposing parties in Ian’s personal injury case, and thus
       respondent could not perfect the lien by serving notice on Tree Care Enterprises and the City
       of Rockford.
¶ 19       We determine that respondent met the requirements of the Act pursuant to a strict
       construction of its language. Respondent was hired by James, who placed a cause of action,
       namely, Ian’s personal injury suit, in respondent’s hands. Taylor, 375 Ill. App. 3d at 501.

                                                 -5-
       Respondent sent notice of the lien to the opposing parties by certified mail. Although
       petitioner argues that, because James was later found unauthorized to sue on Ian’s behalf,
       respondent failed to perfect the lien because it did not serve written notice of the lien upon
       the “party against whom the client has a claim,” the language of the Act does not support
       petitioner’s claim. Instead, the Act provides:
                “To enforce such a lien, such attorneys shall serve notice in writing, which service
            may be made by registered or certified mail, upon the party against whom their clients
            may have such suits, claims or causes of action, claiming such lien and stating therein the
            interest they have in such suits, claims, demands or causes of action.” (Emphasis added.)
            770 ILCS 5/1 (West 2006).
       While James was later found without standing to assert a personal injury claim on behalf of
       Ian, the language of the Act does not make a distinction between a client who has a bona fide
       claim and a client who mistakenly believes that he or she has a claim. To the contrary, the
       language of the Act states that “service may be made by registered or certified mail, upon the
       party against whom their clients may have” a claim. (Emphasis added.) Id. Thus, pursuant
       to the language of the Act, respondent’s lien is valid.
¶ 20        Petitioner next asserts that, because respondent was not hired by Ian, the act of filing a
       notice of lien was insufficient to create a lien under the Act. See In re Chicago Flood
       Litigation, 289 Ill. App. 3d 937, 943 (1997). Citing case law from the 1940s, petitioner
       contends that a minor may make a valid contract by himself or through his next friend to hire
       an attorney to prosecute a lawsuit and may agree to pay reasonable compensation. Yellen v.
       Bloom, 326 Ill. App. 134, 142 (1945); Goldberg v. Permutter, 308 Ill. App. 84, 87 (1941).
       However, according to petitioner, because James was unauthorized to act as Ian’s next friend,
       any contract entered into between James and respondent is void ab initio. Illinois State Bar
       Ass’n Mutual Insurance Co. v. Coregis Insurance Co., 355 Ill. App. 3d 156, 164 (2004).
¶ 21        Petitioner further asserts that, due to a conflict of interest, James could not pursue any
       claim on Ian’s behalf. Petitioner asserts that, because James failed to pay his child support
       for Ian, James was prevented, as a matter of law, from suing on Ian’s behalf. As Ian is a
       minor, he was legally unable to enter into a contract that could be enforced against him and
       he could not bring a lawsuit in his own name. See Severs v. Country Mutual Insurance Co.,
       89 Ill. 2d 515, 520 (1982). With respect to the injuries Ian suffered on August 21, 2007, he
       could pursue litigation only through a guardian ad litem or “next friend.” Doe v. Montessori
       School of Lake Forest, 287 Ill. App. 3d 289, 298 (1997).
¶ 22        A minor with a meritorious cause of action is not left to the mercy of a self-constituted
       next friend to enforce the child’s rights. Severs, 89 Ill. 2d at 520. Rather, in the case of a
       parent, the law holds that the parent may sue on behalf of his or her minor child only if it is
       in the best interests of the child and the parent does not have interests that conflict with those
       of the child. See Stevenson v. Hawthorne Elementary School, East St. Louis School District,
       144 Ill. 2d 294, 301 (1991). According to petitioner, for well over 100 years, it has been the
       law of this state that a next friend whose interests are hostile to those of his or her ward is
       incompetent to act for the ward. Roodhouse v. Roodhouse, 132 Ill. 360 (1890). This “no
       conflict” requirement means that a noncustodial parent with a child support arrearage is


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       disqualified from serving as his or her minor child’s next friend for purposes of litigating a
       tort claim. Stevenson, 144 Ill. 2d at 301-02. The Stevenson court stated:
            “[The father] cannot maintain an action as ‘next friend’ of the child and, at the same
            time, defend himself against the child judgment-creditor. The conflict of interest is
            obvious. In addition, the best interests of the child would not be served by allowing a
            parent who is contemptuously delinquent to prosecute a tort claim as ‘next friend.’ ” Id.
¶ 23        Respondent does not dispute that a father who is delinquent in child support payments
       cannot act as next friend to pursue a tort claim on behalf of his child. Instead, respondent
       argues that Stevenson does not stand for the proposition that an attorney hired by a delinquent
       father is not authorized to file a suit, cannot hold a valid attorney’s lien, and is not entitled
       to be compensated for his or her services.
¶ 24        Respondent asserts that this is a question of standing and offers as instructive Dyer v.
       Zoning Board of Appeals, 179 Ill. App. 3d 294 (1989). In Dyer, the plaintiff landowners who
       filed suit to reverse a zoning determination were found to lack standing to pursue the claim.
       Id. at 298-300. The defendants brought a motion for sanctions against the plaintiffs, alleging
       that the finding of a lack of standing and the subsequent dismissal of the plaintiffs’ complaint
       indicated that the allegations in the complaint were “baseless and not warranted by existing
       law.” Id. at 301. The appellate court upheld the trial court’s holding and determined that the
       plaintiffs had a reasonable basis for their argument in favor of standing, despite their ultimate
       lack of success. Id. at 302-03. Respondent asserts that Dyer stands for the principle that a
       court’s ultimate decision on a party’s standing is not a per se finding that the cause of action
       was improper and thus a barrier to recoup fees. Petitioner responds that the case is
       inapplicable because, here, the trial court did not sanction respondent.
¶ 25        In the current matter, although the trial court ultimately found that respondent was not
       hired by a party with the ability to assert a claim on Ian’s behalf, this does not mean that
       respondent’s attorney’s lien was invalid. Assessment of a client’s standing is not a
       requirement of the Act. See 770 ILCS 5/1 (West 2006). Instead, attorney’s liens are
       invalidated only for failure to strictly follow the plain language of the Act. See Rhoades, 78
       Ill. 2d at 227 (holding that an attorney’s lien was invalid because notice of the lien was
       served on the adverse party after the attorney was discharged); also see Progressive
       Universal Insurance Co. of Illinois v. Taylor, 375 Ill. App. 3d 495, 501 (2007) (holding that
       an attorney’s lien was invalid because notice of lien was sent by ordinary mail rather than
       registered or certified mail). Petitioner does not offer and we are unable to locate any case
       law holding that a client’s eventual disqualification from acting as a next friend invalidates
       an attorney’s lien. Thus, we determine that the trial court erred when it determined that
       respondent’s lien was invalid.
¶ 26        Respondent’s next contention is that the trial court abused its discretion when it
       determined that, pursuant to a quantum meruit theory, respondent was not entitled to attorney
       fees. Despite respondent’s contention, the record reflects that the trial court did not reach the
       question of whether respondent was entitled to attorney fees pursuant to a quantum meruit
       theory. Specifically, in making its determination that respondent’s lien was invalid, the trial
       court stated:


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                “Ultimately, [respondent] did not have the reason; did not have the ability to bring
                the claim, and I don’t think that [respondent] can then have an attorney’s lien when
                [respondent] had a client; a contract with a client who had no right to bring the claim.
                The quantum meruit I don’t have to get into, so I won’t.”
       Thus, we determine that respondent’s second contention is unfounded.
¶ 27        Although we have determined that respondent’s lien was valid pursuant to strict statutory
       construction, we note that respondent was on notice that its client might not have been
       authorized to bring the personal injury claim on Ian’s behalf as of September 6, 2007, when
       respondent received the letter from petitioner’s attorney informing respondent that due to
       James’s child support arrearage he was unable to act as next friend to Ian. Respondent’s brief
       makes clear that, upon receiving the letter, it verified the information alleged and spoke with
       James regarding the need to remedy the situation. Nevertheless, respondent continued
       working on Ian’s personal injury claim until September 17, 2007, when the trial court
       determined that petitioner was the appropriate party to act as Ian’s next friend.
¶ 28        We determine that any work done by respondent after September 6, 2007, when it
       received notice that James was not authorized to file suit on Ian’s behalf, was done at
       respondent’s own peril. We will not award fees to respondent for work done after respondent
       was aware that James could not pursue the action on Ian’s behalf before paying his child
       support arrearage and clearing an outstanding arrest warrant. Although respondent argues
       that it continued working on Ian’s case because of the possibility that a court would
       eventually find that James was authorized to sue on Ian’s behalf, as respondent’s brief points
       out, after it verified the information alleged in the letter, it told James that he would need to
       first remedy his child support arrearage. It is clear to this court that respondent, as of
       September 6, 2007, was aware that James was not authorized to act as Ian’s next friend and
       could not pursue a claim on Ian’s behalf before remedying his child support arrearage. As
       James’s arrearage was $21,671.75 and there was an outstanding warrant for his arrest
       because of his substantial arrearage, we determine that respondent’s choice to continue
       working on Ian’s personal injury matter was not reasonable.
¶ 29        The amount of compensation owed to respondent for work done before it was put on
       notice remains undetermined. However, an exhaustive review of the record reflects that
       respondent failed to put forth any evidence supporting its assertion that it did work on Ian’s
       personal injury claim. The record fails to include time sheets, billing documents, or affidavits
       evidencing work conducted by respondent. Respondent’s bare-bones assertion of the work
       it claims it performed on Ian’s behalf is, without more, unpersuasive. The record reflects that
       respondent’s fee request was not based on the amount of work actually done by respondent,
       but instead was based on a percentage of the settlement awarded to Ian. Although we note
       respondent’s argument that time sheets are not required in a personal injury matter where the
       client will ultimately pay a contingent fee, this argument does not excuse respondent’s failure
       to evidence its work through affidavit or other means. Because respondent failed to include
       in the record any evidence that it performed work on Ian’s personal injury suit, we determine
       that respondent is not entitled to any compensation from the ultimate award to Ian. See
       Benson v. Stafford, 407 Ill. App. 3d 902, 912 (2010) (holding that the appellate court can
       affirm on any basis in the record, regardless whether the trial court relied on that basis or its

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       reasoning was correct).
¶ 30       For the reasons stated, we affirm the judgment of the circuit court of Winnebago County.

¶ 31      Affirmed.

¶ 32       JUSTICE SCHOSTOK, specially concurring:
¶ 33       I agree with the majority’s conclusion that the respondent is not entitled to any
       compensation from Ian’s estate. I write separately, however, because I believe that, even if
       the respondent had presented detailed evidence as to how much work it had done on Ian’s
       personal injury claim between September 4, 2007 (the day that the respondent was retained
       by James), and September 6, 2007 (the day that the respondent learned that James was not
       a proper party), the respondent would not be entitled to any compensation from Ian’s estate
       for that time period.
¶ 34       Supreme court rules should be construed in harmony with applicable statutes whenever
       possible. People v. Joseph, 113 Ill. 2d 36, 58 (1986) (Simon, J., dissenting). Illinois Supreme
       Court Rule 137 (eff. Feb. 1, 1994) provides in pertinent part:
               “Every pleading, motion and other paper of a party represented by an attorney shall
           be signed by at least one attorney of record in his individual name, whose address shall
           be stated. *** The signature of an attorney or party constitutes a certificate by him that
           he has read the pleading, motion or other paper; that to the best of his knowledge,
           information, and belief formed after reasonable inquiry it is well grounded in fact and is
           warranted by existing law or a good-faith argument for the extension, modification, or
           reversal of existing law, and that it is not interposed for any improper purpose, such as
           to harass or to cause unnecessary delay or needless increase in the cost of litigation.”
¶ 35       Reading the Act in conjunction with Rule 137, I believe that, before the respondent
       purportedly did any work on Ian’s behalf and sent its notice of lien, the respondent was
       required to do a reasonable inquiry as to James’s right and ability to prosecute an action on
       Ian’s behalf. Such a reasonable inquiry would have disclosed that (1) James and the
       petitioner were divorced; (2) James was not Ian’s custodial parent; and (3) James was
       delinquent in paying child support. Upon learning this, the respondent should have realized
       that James had no right to prosecute an action on Ian’s behalf (see Stevenson, 144 Ill. 2d at
       301-02), and thus no valid cause of action had been placed in the respondent’s hands by
       James. As no attorney fees would have been incurred on Ian’s behalf had the respondent
       done a reasonable inquiry, the respondent should not be entitled to any compensation under
       the Act for work it might have done from September 4 to September 6, 2007. I would
       therefore affirm for the reasons stated by the trial court.




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