{ "id": 1073634, "name": "STORM AND ASSOCIATES, LTD., Plaintiff-Appellant, v. DONALD CUCULICH et al., Defendants-Appellees", "name_abbreviation": "Storm & Associates, Ltd. v. Cuculich", "decision_date": "1998-08-28", "docket_number": "No. 1-98-0841", "first_page": "1040", "last_page": "1054", "citations": [ { "type": "official", "cite": "298 Ill. App. 3d 1040" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "398 N.E.2d 1211", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "79 Ill. App. 3d 1023", "category": "reporters:state", "reporter": "Ill. 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DONALD CUCULICH et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE HOFFMAN\ndelivered the opinion of the court:\nThe plaintiff, Storm & Associates, Ltd. (Storm), appeals from an order of the circuit court dismissing its four-count amended complaint. For the reasons that follow, we affirm the dismissal of count II, reverse the dismissal of counts I, III and IV( and remand this cause to the circuit court with directions and for further proceedings consistent with this opinion.\nFrom the allegations contained in Storm\u2019s amended complaint (complaint), it appears that the defendants, Donald and Nancy Cuculich, were the named plaintiffs in a class action suit pending in the circuit court of Cook County (hereinafter referred to as the Class Action) and were being represented in that action by Marshall Patner (Patner) and Marshall Patner & Associates, PC. (collectively referred to as the Patner Defendants). While the Class Action was pending and after the class had been certified, Patner retained Storm to act as co-counsel. Storm accepted the engagement on a contingent fee basis which was memorialized in a letter. Thereafter, Storm filed its appearance as additional counsel for the Cuculichs.\nStorm alleges that it performed legal services on behalf of the Cuculichs at Patner\u2019s direction prior to its engagement as co-counsel being terminated \u201cwithout cause.\u201d After the defendants refused to compensate Storm for the legal services it rendered as co-counsel in the Class Action, Storm instituted the instant action.\nCount I of Storm\u2019s complaint is a quantum meruit claim against the Cuculichs for the value of the legal services it rendered and expenses it incurred as co-counsel in the Class Action. This count is premised upon the allegation that Patner acted as the Cuculichs\u2019 agent in both retaining and terminating Storm. Count II of the complaint asserts a claim against the Patner Defendants for breach of an agreement in which they allegedly guaranteed payment of Storm\u2019s fees. In support of this count, Storm attached to the complaint a copy of a handwritten note that is signed by Patner and that provides in relevant part: \u201cAs I said in my phone message, I will protect your hours. But you did not include them with your letter; will you please do so, at your convenience.\u201d\nCount III purports to state a claim for tortious interference with contract against the Patner Defendants, alleging that they \u201cintentionally and with malice caused or induced\u201d the Cuculichs to terminate Storm \u201cwithout cause or justification.\u201d In count IV of its complaint, pled in the alternative to counts I, II and III, Storm asserts a quantum meruit claim against the Patner Defendants for the value of the legal services it rendered and the expenses it incurred as co-counsel in the Class Action.\nThe defendants responded to Storm\u2019s complaint with a combined motion to dismiss pursuant to section 2 \u2014 619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 619.1 (West 1996)). As to counts I and iy the defendants argued that: (1) the services Storm rendered did not confer any benefit upon the defendants individually, and (2) Storm was not yet entitled to recover any attorney fees because the Class Action was still pending and no fund had been created from which those fees could be paid. As to count II, the Patner Defendants claimed that: (1) the action was barred by the provisions of section 1 of the Frauds Act (740 ILCS 80/1 (West 1996)), and (2) the writing upon which Storm relied was not a guaranty as it contained no promise to pay any debt or obligation owed by the Cuculichs. In support of the dismissal of count III, the defendants argued that \u201c[a]n agent is not liable for wrongfully interfering with its principal\u2019s contract since the acts of the agent are imputed to the principal.\u201d\nIn its memorandum in opposition to the defendants\u2019 motion to dismiss, Storm addressed the merits of the motion as it related to counts I, II and IV of the complaint. Storm argued that dismissal of count III was premature prior to discovery and objected to the defendants\u2019 failure to specify whether they sought dismissal of counts I, II and IV under section 2 \u2014 615 (735 ILCS 5/2 \u2014 615 (West 1996)) or section 2 \u2014 619 (735 ILCS 5/2 \u2014 619 (West 1996)) of the Code.\nThe trial court entered a \u201cFinal Judgment Order,\u201d granting the defendants\u2019 motion to dismiss. Thereafter, Storm filed a timely notice of appeal, invoking our jurisdiction under Supreme Court Rule 301 (155 Ill. 2d R. 301).\nSection 2 \u2014 619.1 of the Code is a procedural statute that allows a litigant to combine a section 2 \u2014 615 motion to dismiss and a section 2 \u2014 619 motion for involuntary dismissal in one pleading. 735 ILCS 5/2 \u2014 619.1 (West 1996). However, this statute is not a legislative authorization for hybrid motion practice. Section 2 \u2014 619.1 specifically provides that a combined motion shall be divided into parts and each part shall be limited to and specify a single section of the Code under which relief is sought. 735 ILCS 5/2 \u2014 619.1 (West 1996). Meticulous practice dictates that the movants clearly state the section of the Code under which a motion to dismiss is brought. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 484, 639 N.E.2d 1282 (1994).\nOther than in part III of their motion, which is directed to count III of Storm\u2019s complaint, the defendants here failed to specify whether they sought relief under section 2 \u2014 615 or section 2 \u2014 619 of the Code. While failure to properly label a motion to dismiss is not a pleading practice that should be encouraged, reversal for such a deficiency is appropriate only when prejudice to the nonmovant results. Illinois Graphics Co., 159 111. 2d at 484. In reviewing the propriety of a dismissal resulting from an undesignated motion, we will examine the grounds for the motion, the relief requested and the treatment of the motion below to determine whether the motion is properly classified as one brought under section 2 \u2014 615 or section 2 \u2014 619. Illinois Graphics Co., 159 Ill. 2d at 484. Where, as in this case, the trial court fails to specify the grounds upon which it relied in granting a motion to dismiss, we will presume it was upon one of the grounds urged by the defendant. Zielinski v. Miller, 277 Ill. App. 3d 735, 739, 660 N.E.2d 1289 (1995).\nA section 2 \u2014 615 motion attacks the sufficiency of a complaint and raises the question of whether it states a cause of action upon which relief can be granted. Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 505, 565 N.E.2d 654 (1990); Janes v. First Federal Savings & Loan Ass\u2019n, 57 Ill. 2d 398, 406, 312 N.E.2d 605 (1974). When ruling on a section 2 \u2014 615 motion, the court may only consider the facts apparent from the face of the complaint, matters of which the court may take judicial notice, and judicial admissions in the record. Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d 110, 115, 660 N.E.2d 863 (1995).\nA section 2 \u2014 619 motion raises certain defects or defenses and poses the question of whether the defendant is entitled to judgment as a matter of law. Illinois Graphics Co., 159 Ill. 2d at 485, 494. If the grounds for such a motion do not appear on the face of the complaint, the motion must be supported by affidavit. 735 ILCS 5/2 \u2014 619(a) (West 1996). When, however, the only grounds for a section 2 \u2014 619 motion appear on the face of the complaint, the motion falls \u201cwithin the area of confluence\u201d between section 2 \u2014 615 and section 2 \u2014 619 (Illinois Graphics Co., 159 Ill. 2d at 486), and the appropriate method for reaching the defect is a section 2 \u2014 615 motion (Rowan v. Novotny, 157 Ill. App. 3d 691, 693-94, 510 N.E.2d 1111 (1987); Ill. Ann. Stat., ch. 110, par. 2 \u2014 619, Historical & Practice Notes, at 662 (Smith-Hurd 1983)).\nIn this case, the defendants supported their combined motion with an affidavit attesting to matters of record in the Class Action. However, we deem that affidavit to be surplusage as everything contained therein is the proper subject of judicial notice. See People v. Jackson, 182 Ill. 2d 30, 66, 695 N.E.2d 391 (1998).\nIn ruling on a motion to dismiss under either section 2 \u2014 615 or section 2 \u2014 619 of the Code, the court must accept all well-pled facts in the complaint as true and draw all reasonable inferences from those facts in favor of the plaintiff. See Miner v. Gillette Co., 87 Ill. 2d 7, 19, 428 N.E.2d 478 (1981); Your Style Publications, Inc. v. Mid Town Bank & Trust Co., 150 Ill. App. 3d 421, 424, 501 N.E.2d 805 (1986); Holubek v. City of Chicago, 146 Ill. App. 3d 815, 817, 497 N.E.2d 348 (1986). Because the resolution of either motion involves only a question of law, our review is de novo. Stephen L. Winternitz, Inc. v. National Bank, 289 Ill. App. 3d 753, 755, 683 N.E.2d 492 (1997). Further, since, in support of their motion to dismiss counts I, II and JA( the defendants relied on nothing other than the facts alleged in Storm\u2019s complaint and matters of which judicial notice can be taken, we find that Storm suffered no prejudice by reason of the defendants\u2019 failure to properly designate the section of the Code under which the dismissal of these counts was sought. Consequently, we will address the merits of the trial court\u2019s dismissal of each count of Storm\u2019s complaint.\nThe Cuculichs sought dismissal of the quantum meruit claim asserted against them in count I on the basis that Storm had conferred no benefit upon them individually and that its right to fees, if any, was contingent upon the ultimate success of the Class Action and the creation of a fund for payment of attorney fees. Storm argues that its right to seek recovery for the reasonable value of its legal services accrued immediately upon its discharge as co-counsel. Central to our resolution of this issue is the applicability of the holding in In re Estate of Callahan, 144 Ill. 2d 32, 578 N.E.2d 985 (1991), to the rights of a discharged attorney originally engaged to represent the plaintiffs in a class action suit.\nIn Callahan, our supreme court held that a cause of action for quantum meruit fees accrues in favor of an attorney engaged to represent a client on a contingent fee basis immediately upon discharge and prior to the resolution of the client\u2019s lawsuit. Callahan, 144 Ill. 2d at 37-42. The defendants argue that, while this rule is applicable to the circumstance where a single client discharges an attorney retained on a contingent fee basis, it has no application to the rights of a discharged attorney retained to represent members of a class. They contend that Illinois adheres to the \u201ccommon fund doctrine,\u201d under which an attorney\u2019s right to fees in a class action is contingent upon the ultimate success of the litigation and the creation of a fund from which those fees can be paid. See Fiorito v. Jones, 72 Ill. 2d 73, 377 N.E.2d 1019 (1978); Hamer v. Kirk, 64 Ill. 2d 434, 356 N.E.2d 524 (1976). The defendants reason that, since class action suits are maintained for the benefit of all class members, the costs of litigation should be paid from the common fund so as to spread them proportionately among those who benefit from the litigation.\nThe defendants are correct in their assertion that Illinois adheres to the \u201ccommon fund doctrine.\u201d However, we believe their reliance upon that doctrine is misplaced under the circumstances of the instant case.\nOur supreme court analyzed the \u201ccommon fund doctrine\u201d and revisited its origin and the rationale behind its application in Brundidge v. Glendale Federal Bank, F.S.B., 168 Ill. 2d 235, 238, 659 N.E.2d 909 (1995), explaining:\n\u201cIllinois has long adhered to the general American rule that the prevailing party in a lawsuit must bear the costs of litigation, unless a statutory provision or an agreement between the parties allows the successful litigant to recover attorney fees and the expenses of suit. [Citations.] However, where the outcome of the litigation has created a common fund, this court has adopted the \u2018common fund doctrine.\u2019 [Citations.] The common fund doctrine allows one who \u2018creates, preserves, or increases the value of a fund in which others have an ownership interest to be reimbursed from that fund for litigation expenses incurred, including counsel fees.\u2019 [Citations.] The doctrine finds its source in the court\u2019s inherent equitable powers [citation] and is founded on the rationale that successful litigants would be unjustly enriched if their attorneys were not compensated from the common fund created for the litigants\u2019 benefit [citation]. By awarding fees payable from the common fund created for the benefit of the entire class, the court spreads the costs of litigation proportionately among those who will benefit from the fund. [Citations.]\u201d\nThere is no doubt that, as the defendants argue, a number of reported cases have denied claims for the payment of attorney fees incurred on behalf of successful litigants in class action suits due to the absence of a common fund from which those fees could be paid. See Hamer, 64 Ill. 2d at 440-41; Client Follow-Up Co. v. Hynes, 105 Ill. App. 3d 619, 628-29, 434 N.E.2d 485 (1982). The defendants also correctly quote the court in Fiorito v. Jones, 72 Ill. 2d 73, 87, 377 N.E.2d 1019 (1978), when they argue that, \u201cin a class action, the right to attorneys\u2019 fees is contingent upon ultimate success and upon the presence of a fund from which fees can be paid.\u201d However, a closer examination of these cases reveals that they involve: (1) a request for an award of fees against either the defendants or the class members when, although the plaintiffs were successful in their class action, no fund had been \u201cbrought into court\u201d (Hamer, 64 Ill. 2d at 440-41; Client Follow-up Co., 105 Ill. App. 3d at 629; see also Hoffman v. Lehnhausen, 48 Ill. 2d 323, 329, 269 N.E.2d 465 (1971)); or (2) an analysis of the various factors to be used by a court in determining the amount of reasonable fees it will order to be paid from the common fund created for the benefit of the entire class (Fiorito, 72 Ill. 2d at 87-94). These cases do not address the rights of a discharged attorney as against the individual class representative who engaged him. To be sure, a class action is not \u201cthe usual contingent-fee case.\u201d Flynn v. Kucharski, 59 Ill. 2d 61, 66, 319 N.E.2d 1 (1974). It is distinguished by the fact that neither the attorney-client relationship nor the attorney\u2019s fee is the result of a voluntary agreement between the attorney and the class members as a group. However, the same cannot be said of the relationship between the attorney and the class representative. While it is true that the attorney\u2019s fee in a class action suit is set by the court, the attorney-client relationship between the attorney and the class representative is purely voluntary.\nThe rationale underlying the holding in Callahan is no less compelling when, as in this case, the discharged attorney was engaged on a contingent fee basis to represent the plaintiffs in a class action suit. Once the class representative discharges the attorney, the contract governing their relationship ceases to exist and the contingency term is no longer operative. Additionally, the value of the attorney\u2019s services rendered prior to discharge cannot be measured by the results obtained by another attorney, nor can the attorney\u2019s right to compensation for those services be made contingent upon the success or failure of another attorney. See Callahan, 144 Ill. 2d at 39-41. Recognition of a cause of action for quantum meruit fees in favor of a discharged attorney against the individual class representative that retained the attorney\u2019s services in a class action suit is nothing more than an acknowledgement of the implied promise of a recipient of services to pay for those services which are of value to him. See Callahan, 144 Ill. 2d at 40. The question of whether the class representative derived a benefit from the services rendered by the discharged attorney during the attorney\u2019s period of employment is a factor to be considered in measuring the reasonable value of those services. See Callahan, 144 Ill. 2d at 41. That question is one of fact and is, therefore, inappropriate for resolution on a motion to dismiss.\nIn accord with our recent decision in Much, Shelist, Freed, Denenherg & Ament, P.C. v. Lison, 297 Ill. App. 3d 375, 696 N.E.2d 1196 (1998), we reject the defendants\u2019 arguments and find that count I of Storm\u2019s complaint states a cause of action against the Cuculichs for quantum meruit fees. Consequently, we reverse the trial court\u2019s dismissal of count I.\nNext, we address the propriety of the trial court\u2019s dismissal of count II of Storm\u2019s complaint, which alleges a cause of action against the Patner Defendants for breach of a guaranty agreement.\nThe Patner Defendants argued that count II must be dismissed because any contract to answer for the debt of another must be in writing pursuant to section 1 of the Frauds Act (740 ILCS 80/1 (West 1996)). They pointed out that the writing upon which Storm relied contained only a promise to \u201cprotect [Storm\u2019s] hours,\u201d but failed to contain either a promise to pay a debt or obligation owed by the Cuculichs or the terms and conditions of the undertaking. We agree.\nIf, as Storm alleges, the Patner Defendants agreed to guarantee payment of its fees and become liable for the payment of those fees in the event that the Cuculichs failed to pay, the agreement is one to answer for the debt of another. Section 1 of the Frauds Act bars any action upon such an undertaking \u201cunless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.\u201d 740 ILCS 80/1 (West 1996). The issue then becomes whether the writing upon which Storm relies is sufficient to satisfy the requirements of the statute.\nA writing relied upon to satisfy the requirements of the Frauds Act must itself show the existence of a contract and its terms and conditions. Culbertson v. Carruthers, 66 Ill. App. 3d 47, 54, 383 N.E.2d 618 (1978). Even if the Patner Defendants\u2019 agreement to \u201cprotect\u201d Storm\u2019s \u201chours\u201d could reasonably be interpreted as an undertaking to guarantee payment of its fees, the writing does not identify the fees referred to, specify the amount guaranteed or the method by which that sum would be determined, or set forth the event that would trigger an obligation to pay. We find that the writing attached to count II of Storm\u2019s complaint fails to satisfy the requirements of section 1 of the Frauds Act (see Chapman v. Freeport Securities Co., 174 Ill. App. 3d 847, 854-55, 529 N.E.2d 6 (1988)), and, therefore, affirm the trial court\u2019s dismissal of count II.\nThe Patner Defendants sought dismissal of count III, in which Storm asserted a claim for tortious interference with contract against them, pursuant to section 2 \u2014 615 of the Code. Their only argument before the trial court in support of their motion to dismiss that count was their contention that \u201c[a]n agent is not liable for wrongfully interfering with its principal\u2019s contract since the acts of the agent are imputed to the principal.\u201d In response, Storm argued that the count should not be dismissed before discovery as \u201ca jury may find that Patner was not acting as agent for the Cuculichs at the time plaintiff was discharged.\u201d\nAt the outset, we reject Storm\u2019s argument that the defendants\u2019 section 2 \u2014 615 motion to dismiss count III was premature before discovery. The question of whether a complaint states a cause of action is determined based on the facts alleged therein and the reasonable inferences favorable to the plaintiff which can be drawn from those facts. Geick v. Kay, 236 Ill. App. 3d 868, 873, 603 N.E.2d 121 (1992). The question is one of law, not fact. Either the complaint contains factual allegations in support of each element of the claim that the plaintiff must prove in order to sustain a judgment or it does not. Schuler v. Abbott Laboratories, 265 Ill. App. 3d 991, 994, 639 N.E.2d 144 (1993). The notion that plaintiffs are permitted to plead an action against a defendant before they are possessed of sufficient information to satisfy each element of the claim runs counter to Supreme Court Rule 137, which requires that all pleadings be well grounded in fact to the best of the pleader\u2019s knowledge, information and belief after reasonable inquiry. 155 Ill. 2d R. 137.\nWe also reject the argument upon which the Patner Defendants premised their motion to dismiss count III. The proposition that an agent can never be held liable for wrongfully interfering with his principal\u2019s contracts is far too broad. Even in circumstances where an agent is cloaked with a qualified privilege, a claim for tortious interference may lie where the agent\u2019s actions in interfering with the principal\u2019s contract are unjustified or malicious, such as where the agent\u2019s conduct is totally unrelated or antagonistic to the principal\u2019s interests. HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc., 131 Ill. 2d 145, 156-59, 545 N.E.2d 672 (1989).\nAlthough we have rejected the broad proposition upon which the Patner Defendants sought dismissal of count III, we believe that further analysis of the count is necessary. Count III of Storm\u2019s complaint is captioned \u201cInterference with Contractual Relations.\u201d An action for tortious interference with a contract which is terminable at will, however, is classified as one for intentional interference with prospective economic advantage. Anderson v. Anchor Organization for Health Maintenance, 274 Ill. App. 3d 1001, 1013, 654 N.E.2d 675 (1995). Since the attorney-client relationship is terminable at will (LaRocco v. Bakwin, 108 Ill. App. 3d 723, 727-28, 439 N.E.2d 537 (1982)), the claim asserted in count III of Storm\u2019s complaint is more properly classified as one for intentional interference with prospective economic advantage (Anderson, 274 Ill. App. 3d at 1013).\nCount III of Storm\u2019s complaint alleges that, at all times relevant, the Patner Defendants acted as counsel for the Cuculichs in the Class Action. The existence of an attorney\u2019s fiduciary relationship with his client gives rise to a qualified privilege in favor of the attorney to advise the client without fear of personal liability to third persons if that advice later proves to be incorrect. Salaymeh v. Interqual, Inc., 155 Ill. App. 3d 1040, 1045, 508 N.E.2d 1155 (1987). When, as in this case, the existence of a privilege in favor of the defendant is apparent on the face of a claim for tortious interference with prospective economic advantage, it is the plaintiffs burden to plead and prove that the defendant\u2019s conduct was unjustified or malicious. Fellhauer v. City of Geneva, 142 Ill. 2d 495, 512, 568 N.E.2d 870 (1991).\nStorm alleged that the Patner Defendants \u201cintentionally and with malice caused or induced\u201d the Cuculichs to terminate Storm \u201cwithout cause or justification.\u201d A complaint, however, may not rest on mere unsupported factual conclusions. J. Eck & Sons, Inc. v. Reuben H. Donnelley Corp., 213 Ill. App. 3d 510, 515, 572 N.E.2d 1090 (1991). Illinois is a fact-pleading jurisdiction. Knox College v. Celotex Corp., 88 Ill. 2d 407, 426-27, 430 N.E.2d 976 (1981). Conclusions of fact will not suffice to state a cause of action regardless of whether they generally inform the defendant of the nature of the claim against him. Adkins v. Sarah Bush Lincoln Health Center, 129 Ill. 2d 497, 519-20, 544 N.E.2d 733 (1989).\nStorm\u2019s conclusory allegations standing alone are insufficient to satisfy its burden to set forth factual allegations from which it could be reasonably inferred that the conduct of the Patner Defendants in inducing the Cuculichs to discharge Storm was unjustified or malicious. HPI Health Care, 131 Ill. 2d at 158. The bare conclusions that the Patner Defendants acted intentionally, maliciously, and without cause or justification are insufficient to negate the protection of the privilege arising by reason of the attorney-client relationship here. Philip I. Mappa Interests, Ltd. v. Kendle, 196 Ill. App. 3d 703, 708-09, 554 N.E.2d 1008 (1990). Consequently, we find that count III of Storm\u2019s complaint fails to state a cause of action.\nAlthough we may affirm the dismissal of a complaint on any ground apparent from the record, even one not relied upon by the trial court (Material Service Corp. v. Department of Revenue, 98 Ill. 2d 382, 387, 457 N.E.2d 9 (1983)), we decline to affirm the dismissal of count III on the ground that it fails to state a cause of action. It would be inappropriate for us to do so because that deficiency was not addressed by the parties before either the trial court or this court and because it may be correctable by amendment. Geaslen v. Berkson, Gorov & Levin, Ltd., 155 Ill. 2d 223, 230-31, 613 N.E.2d 702 (1993); Keating v. Estate of Golding, 277 Ill. App. 3d 953, 957-58, 661 N.E.2d 541 (1996). Having determined that the Patner Defendants were not entitled to a dismissal of count III based on the arguments set forth in their motion to dismiss, we reverse the trial court\u2019s dismissal of that count. However, because we find the complaint to be factually deficient as discussed above, we instruct the trial court on remand to strike count III and afford Storm a reasonable opportunity to amend it.\nLastly, we will address the dismissal of count IV of Storm\u2019s complaint, in which it asserted a quantum meruit claim against the Patner Defendants. The Patner Defendants sought dismissal of count IV on the same grounds argued by the Cuculichs in support of dismissal of the quantum meruit claim asserted against them in count I. Consequently, for the same reasons stated in support of our reversal of the dismissal of count I, we also reverse the dismissal of count IV As was the case with count III, however, we have also identified a serious pleading deficiency in count IV which merits further analysis.\nIt has been long settled in Illinois that, when an agent entering into a contract with another discloses both his agency status and the name of his principal or when the party dealing with the agent knows that the agent is acting for his principal in making a contract, the agent is not liable on the contract unless he agrees to become personally liable. Chicago Title & Trust Co. v. De Lasaux, 336 Ill. 522, 526, 168 N.E. 640 (1929). As the court observed in Clark v. Maddux, 118 Ill. App. 3d 546, 548-49, 454 N.E.2d 1179 (1983), this rule has been applied in a number of cases involving attorneys. See Petrando v. Barry, 4 Ill. App. 2d 319, 322-23, 124 N.E.2d 85 (1955); International Service Corp. v. Ooms, 105 Ill. App. 2d 391, 395-96, 245 N.E.2d 571 (1969); McCorkle v. Weinstein, 50 Ill. App. 3d 661, 663-64, 365 N.E.2d 953 (1977); Associated Claims Service, Inc. v. Rinella & Rinella, 79 Ill. App. 3d 1023, 1027-28, 398 N.E.2d 1211 (1979).\nThe factual allegations in count IV of Storm\u2019s complaint establish it was aware that the Patner Defendants were serving as counsel for the Cuculichs when they retained Storm to act as co-counsel. Therefore, it is clear that Storm knew of the Cuculichs\u2019 identity and the Patner Defendants\u2019 status as their attorneys at the time it agreed to serve as co-counsel. Further, count IV contains no allegations which indicate that the Patner Defendants agreed or intended to become personally liable for the payment of Storm\u2019s fees. Although we find that count IV fails to state a cause of action against the Patner Defendants, we decline to affirm its dismissal for the same reasons that we declined to affirm the dismissal of count III. We reverse the trial court\u2019s dismissal of count IV but direct the trial court on remand to also strike count IV and afford Storm a reasonable opportunity to amend it.\nIn summary, we reverse the trial court\u2019s dismissal of counts I, III and IV of Storm\u2019s amended complaint, affirm its dismissal of count II, and remand this action to the circuit court with instructions to strike counts III and IV and afford Storm a reasonable opportunity to amend those counts and for further proceedings consistent with this opinion.\nAffirmed in part, reversed in part and remanded with directions.\nTHEIS and HOURIHANE, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE HOFFMAN" } ], "attorneys": [ "Timothy J. Storm, of Chicago, for appellant.", "Krasnow, Sanberg & Cohen, of Chicago (Colby M. Green, of counsel), for appellees." ], "corrections": "", "head_matter": "STORM AND ASSOCIATES, LTD., Plaintiff-Appellant, v. DONALD CUCULICH et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 1 \u2014 98\u20140841\nOpinion filed August 28, 1998.\nRehearing denied September 24, 1998.\nTimothy J. Storm, of Chicago, for appellant.\nKrasnow, Sanberg & Cohen, of Chicago (Colby M. Green, of counsel), for appellees." }, "file_name": "1040-01", "first_page_order": 1060, "last_page_order": 1074 }