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      "MORRIS B. CHAPMAN AND ASSOCIATES, LTD., Plaintiff-Appellant and Cross-Appellee, v. JOHN KITZMAN et al., Defendants-Appellees and Cross-Appellants."
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      {
        "text": "JUSTICE KUEHN\ndelivered the opinion of the court:\nJohn W. Kitzman III died in an industrial accident. His wife, Karen, hired Morris B. Chapman & Associates, Ltd. (Chapman), to pursue a wrongful death action. Karen agreed to pay Chapman one-third of any recovery. Chapman recovered $800,000 but was only paid $227,040. This action ensued.\nThe lawsuit filed on behalf of Karen in Missouri named Karen and decedent\u2019s parents, John and Edna Kitzman, as his heirs. Chapman obtained an $800,000 settlement for the benefit of those heirs, prepared a petition for settlement approval, and noticed a hearing.\nA few days prior to the Missouri trial court\u2019s hearing on the petition, John and Edna retained separate counsel, attorney John A. Kilo. They agreed to pay Kilo one-third of their recovery in excess of $100,000. John and Edna intervened and participated in the settlement approval and apportionment hearing.\nAfter the apportionment hearing, the Missouri trial court entered an order distributing 86% of the settlement ($688,000) to Karen and 7% ($56,000) each to John and Edna. It further ordered that Chapman\u2019s fee would consist of one-third of Karen\u2019s share ($227,040) only, while Kilo would receive one-third of John\u2019s and Edna\u2019s share over $100,000 ($4,000). The Missouri trial court based its fee apportionment on section 537.095(4)(2) of the Missouri Revised Statutes, which requires a trial court to order the claimant:\n\u201cTo deduct and pay the expenses of recovery and collection of the judgment and the attorneys\u2019 fees as contracted, or if there is no contract, or if the party sharing in the proceeds has no attorney representing him before the rendition of any judgment or settlement, then the court may award the attorney who represents the original plaintiff such fee for his services, from such persons sharing in the proceeds, as the court deems fair and equitable under the circumstances.\u201d Mo. Rev. Stat. \u00a7 537.095.4(2) (1986).\nThe Missouri trial court stated that this provision required it to apportion attorney fees according to the existing contingency contracts for the following reason: \u201cOnce separate counsel appear for competing claimants, the statutory language directing payment of attorney\u2019s fees \u2018as contracted\u2019 must be given full effect.\u201d\nChapman filed the instant action in Madison County circuit court, seeking additional attorney fees from defendants, John and Edna Kitzman. Chapman\u2019s complaint originally consisted of a single quantum meruit count but was later amended to include a second count based upon the common-fund doctrine. The circuit court disposed of the action in an order that:\n\u2022 granted Chapman\u2019s oral motion to dismiss count I;\n\u2022 granted defendants\u2019 motion to dismiss count II grounded on the common-fund doctrine\u2019s inapplicability to this case;\n\u2022 denied defendants\u2019 motion to dismiss both counts based upon the full faith and credit clause of the United States Constitution (U.S. Const., art. TV, \u00a7 1);\n\u2022 denied defendants\u2019 motion for sanctions seeking attorney fees pursuant to Supreme Court Rule 137 (155 Ill. 2d R. 137); and\n\u2022 denied Chapman\u2019s summary judgment motion, including Chapman\u2019s argument that a judge, rather than a jury, must decide a common-fund-doctrine case.\nOn appeal, Chapman attacks the circuit court\u2019s dismissal of count II and its decision that a common-fund-doctrine action may be tried to a jury. Defendants cross-appeal the circuit court\u2019s denial of their dismissal motion under the full faith and credit clause and the denial of their motion for sanctions.\nWe first address defendants\u2019 argument that the circuit court erred in denying their motion to dismiss both counts. Specifically, defendants contend that the full faith and credit clause of the United States Constitution bars this action because the Missouri trial court\u2019s fee-apportionment order is res judicata as to Chapman\u2019s claim. This contention presents a disputed question of law that we review de novo. See Statler v. Catalano, 293 Ill. App. 3d 483, 485-86, 691 N.E.2d 384, 386 (1997).\n\u201cThe full faith and credit clause of the United States Constitution [citation] generally requires every State to give a foreign judgment at least the res judicata effect which the judgment would be accorded in the State which rendered it.\u201d Pfaff v. Chrysler Corp., 208 Ill. App. 3d 910, 922, 567 N.E.2d 52, 60 (1991), aff\u2019d, 155 Ill. 2d 35, 610 N.E.2d 51 (1992). Thus, we must apply Missouri law in determining whether the Missouri trial court\u2019s order is res judicata as to the claim before us.\nIn Missouri, the res judicata doctrine bars a claim only if the following elements are satisfied: (1) the identity of the thing sued for, (2) the identity of the cause of action, (3) the identity of the parties to the action, and (4) the identity of the quality of the person for or against whom the claim is made. See State of Missouri ex rel. Sanders v. Martin, 945 S.W2d 641, 642 (Mo. App. 1997). Our res judicata analysis turns on the third element. Facing an attorney-fees dispute arising from a wrongful death action, the Missouri appellate court explained that attorneys seeking fees are not parties to a suit:\n\u201cThe problem with the trial court\u2019s ruling is that the attorneys were not parties to the underlying litigation. Res judicata bars only claims by parties and privies. Attorneys claiming a portion of a party\u2019s fee have not previously been held to be in privity with their clients. The concept of privity for purposes of res judicata connotes interests so closely related that the party sought to be barred may be said to have had a day in court. The interest of an attorney with regard to a fee claim is not of this character.\u201d Floyd v. Shaw, 830 S.W.2d 564, 565 (Mo. App. 1992).\nConsequently, the case before us lacks an identity of parties with the underlying Missouri wrongful death action.\nDefendants nevertheless claim that, though technically not a party to the underlying litigation, Chapman was an \u201cactual interested party\u201d with respect to the attorney-fees issue. Chapman was the petitioner for fees and had an opportunity to be heard. Thus, defendants argue, Chapman could have assailed the fee apportionment in the Missouri Appellate Court but may not attack it in an independent Illinois action. This contention is unsupported.\nMissouri law does not allow a law firm to independently appeal the amount of an attorney-fees award:\n\u201cThe right to appeal is purely statutory. [Citations.] Section 512.020 provides that any \u2018party to a suit aggrieved by any judgment of any trial court in any civil case ... may take his appeal to a court having appellate jurisdiction.\u2019 By its express terms, the statute limits appeals; only a \u2018party to a suit\u2019 may appeal. The firm was not a party. Therefore, the firm has no statutory right to appeal.\u201d Oberhellmann v. Oberhellmann, 950 S.W.2d 487, 488 (Mo. App. 1997).\nSimilarly, appellate review of a Missouri wrongful death settlement distribution order must be sought pursuant to section 512.020 of the Missouri Code of Civil Procedure (Mo. Rev. Stat. \u00a7 512.020 (1986)). Although Chapman addressed the attorney-fees issue while representing Karen in the settlement-distribution hearing, it still had no statutory right to appeal the fee apportionment because it was not a party to the suit. The only persons with standing to appeal were Karen and defendants, none of whom were aggrieved by the fee apportionment. The simple fact remains that, without an identity of parties, we cannot give full faith and credit to the Missouri trial court\u2019s fee-apportionment order. Therefore, we affirm the circuit court\u2019s denial of defend\u00e1nts\u2019 motion to dismiss both counts.\nLikewise, observing that defendants\u2019 sanctions motion was predominantly based upon this same argument, we affirm the circuit court\u2019s denial of that motion. \u201cThe purpose of Rule 137 is to penalize litigants who plead frivolous or false matters or bring suit without any basis in law.\u201d Fischer v. Brombolich, 246 Ill. App. 3d 660, 664, 616 N.E.2d 743, 745 (1993). The allowance of fees and expenses under this rule is within the trial court\u2019s discretion and will not be disturbed on appeal absent an abuse of discretion. See Fischer, 246 Ill. App. 3d at 664, 616 N.E.2d at 745-46. \u201cA trial court exceeds its discretion only where no reasonable person would take the view adopted by it.\u201d' Fischer, 246 Ill. App. 3d at 664, 616 N.E.2d at 746. On the record before us, we conclude that a reasonable decision maker could deny defendants\u2019 motion for sanctions.\nWe now turn to the merits of Chapman\u2019s appeal. Chapman contends that the circuit court erred in granting defendants\u2019 motion to dismiss count II of its complaint. Defendants\u2019 motion raised a conflict-of-laws issue, claiming that Missouri law should be applied because \u201c[t]he situs of the incident which is the basis of this suit occurred in the [S]tate of Missouri.\u201d Specifically, defendants argued that count II failed to state a cause of action under Missouri substantive law because section 537.095 renders the common-fund doctrine inapplicable to attorney-fees claims in wrongful death cases. Alternatively, defendants urged that, even if Illinois substantive law applied, count II still failed to state a cause of action because the common-fund doctrine\u2019s limited application would not extend to these facts and, furthermore, recovery under the fund doctrine otherwise was barred because they were unwilling recipients of Chapman\u2019s legal services.\nBefore we examine count II\u2019s sufficiency under Illinois procedural law (see Velle Transcendental Research Ass\u2019n v. Esquire, Inc., 41 Ill. App. 3d 799, 803, 354 N.E.2d 622, 626 (1976)), we must determine which jurisdiction\u2019s substantive law controls this case. We note that the circuit court\u2019s order does not expressly indicate which state\u2019s law governs this issue. However, this omission is inconsequential because we are not required to defer to a circuit court\u2019s choice-of-law decision; rather, our review of this question of law is de novo. See Malatesta v. Mitsubishi Aircraft International, Inc., 275 Ill. App. 3d 370, 384, 655 N.E.2d 1093, 1102 (1995).\nThe conflicts law of Illinois, the forum state, controls our determination of the proper substantive law in this case. See Esser v. McIntyre, 169 Ill. 2d 292, 298, 661 N.E.2d 1138, 1141 (1996). Illinois applies the most-significant-contacts rule embodied in the American Law Institute\u2019s second Restatement on the subject (Restatement (Second) of Conflict of Laws (1971)). See Esser, 169 Ill. 2d at 297-98, 661 N.E.2d at 1141. Under this approach, the law of the state with the most significant contacts controls substantive matters. See Boersma v. Amoco Oil Co., 276 Ill. App. 3d 638, 645, 658 N.E.2d 1173, 1180 (1995). We note that both Illinois and Missouri generally view the common-fund doctrine as based upon an unjust-enrichment theory. See Brundidge v. Glendale Federal Bank, F.S.B., 168 Ill. 2d 235, 238, 659 N.E.2d 909, 911 (1995); Jesser v. Mayfair Hotel, Inc., 360 S.W.2d 652, 661 (Mo. 1962). Hence, our conflict-of-laws analysis is governed by section 221 of the Restatement (Second) of Conflict of Laws pertaining to restitution, as it \u201capplies to claims, which are based neither on contract nor on tort, to recover for unjust enrichment.\u201d Restatement (Second) of Conflict of Laws \u00a7 221, Comment a, at 728 (1971).\nSection 221 requires that the law of the state that has \u201cthe most significant relationship to the occurrence and the parties under the principles stated in \u00a7 6\u201d controls. Restatement (Second) of Conflict of Laws \u00a7 221(1), at 727 (1971). Section 6(2) of the Restatement (Second) of Conflict of Laws provides that when two or more jurisdictions have an interest in applying their law to a case, the following factors are relevant in choosing which rule of law to apply:\n\u201c(a) the needs of the interstate and international systems,\n(b) the relevant policies of the forum,\n(c) the relevant policies of other interested states and the relative interests of those states in the determinations of the particular issue,\n(d) the protection of justified expectations,\n(e) the basic policies underlying the particular field of law, certainty, predictability!,] and uniformity of result, and\n(g) ease in the determination and application of the law to be applied.\u201d Restatement (Second) of Conflict of Laws \u00a7 6(2), at 10 (1971).\nSection 221(2) lists several important contacts that the forum will consider in applying the principles of section 6 to determine the law applicable to an issue:\n\u201c(a) the place where a relationship between the parties was centered, provided that the receipt of enrichment was substantially related to the relationship,\n(b) the place where the benefit or enrichment was received,\n(c) the place where the act conferring the benefit or enrichment was done,\n(d) the domicile, residence, nationality, place of incorporation!,] and place of business of the parties, and\n(e) the place where a physical thing, such as land or a chattel, which was substantially related to the enrichment, was situated at the time of the enrichment.\u201d Restatement (Second) of Conflict of Laws \u00a7 221(2), at 727 (1971).\nMoreover, we employ an interest-analysis approach in determining each factor\u2019s degree of significance for choice-of-law purposes:\n\u201cThis approach is based on the conclusion that \u2018[c]ontacts obtain significance only to the extent that they relate to the policies and purposes sought to be vindicated by the conflicting laws.\u2019 [Citations.] Instead of a mere counting of contacts, what is therefore required is a \u2018consideration of the interests and public policies of potentially concerned states and a regard as to the manner and extent of such policies as they relate to the transaction in issue.\u2019 \u201d Mitchell v. United Asbestos Corp., 100 Ill. App. 3d 485, 493, 426 N.E.2d 350, 355 (1981).\nGuided by our decision in Mitchell, we construe sections 6 and 221 together as giving rise to a three-step process for our conflict-of-laws analysis in this case: (1) isolate the issue and define the conflict, (2) identify the policies embraced in the conflicting laws, and (3) examine the contacts of the respective jurisdictions in order to determine which has a superior connection with the occurrence and thus would have a superior interest in having its policy or law applied. See Mitchell, 100 Ill. App. 3d at 494, 426 N.E.2d at 356-57; see also In re Estate of Barnes, 133 Ill. App. 3d 361, 367, 478 N.E.2d 1046, 1051 (1985); Jones v. State Farm Mutual Automobile Insurance Co., 289 Ill. App. 3d 903, 918, 682 N.E.2d 238, 249 (1997).\nWe have already isolated the issue: whether the common-fund doctrine is applicable to this case. Because a conflicts analysis is only required when a difference in law will make a difference in the outcome (see Kramer v. Weedhopper of Utah, Inc., 204 Ill. App. 3d 469, 474, 562 N.E.2d 271, 274 (1990)), we initially must detect a conflict and then define it. In Missouri, section 537.095.4(2) clearly renders the common-fund doctrine inapplicable to a Missouri wrongful death action where attorney-client contracts exist. See Keene v. Wilson Refuse, Inc., 788 S.W2d 324, 327 (Mo. App. 1990). Thus, the existence of a conflict hinges upon whether the doctrine applies to the facts before us under Illinois law.\nDefendants claim that Illinois law does not permit the common-fund doctrine\u2019s application to this case because it is restricted to class actions and subrogation cases. However, this contention belies our supreme court\u2019s interpretation of Illinois law. While \u201c[t]he common fund doctrine is most often applied to funds recovered by subrogees [citation] and funds recovered in class action suits [citation]\u201d (Village of Clarendon Hills v. Mulder, 278 Ill. App. 3d 727, 732-33, 663 N.E.2d 435, 440 (1996)), the supreme court has explained its broad scope:\n\u201cThe common fund doctrine permits a party who creates, 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. [Citation.] It is now well established that \u2018a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney\u2019s fee from the fund as a whole.\u2019 [Citation.] The underlying justification for reimbursing attorneys from a common fund *** is that, unless the costs of litigation are spread to the beneficiaries of the fund, they will be unjustly enriched by the attorney\u2019s efforts. [Citations.]\nThe common fund doctrine is a common law rule of general application. *** It applies generally to all funds created, increased[,] or preserved by a party in which others have an ownership interest. *** jji >\u00a1<\n*** [T]he common fund doctrine has been applied in many types of cases covering a large range of civil litigation.\u201d Scholtens v. Schneider, 173 Ill. 2d 375, 385-88, 671 N.E.2d 657, 662-64 (1996).\nWe recognize that the First District Appellate Court imposes another restriction on the common-fund doctrine\u2019s application to the present case, holding that, outside of the subrogation context, a court lacks authority to award attorney fees under the doctrine absent a full, segregated fund under its control. See City of Chicago v. Korshak, 276 Ill. App. 3d 597, 602, 658 N.E.2d 1165, 1169 (1995); Wolff v. Ampacet Corp., 284 Ill. App. 3d 824, 828-29, 673 N.E.2d 745, 748 (1996). However, because we are not bound by other appellate court district decisions (see State Farm Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533, 539, 605 N.E.2d 539, 542 (1992)), we decline to follow that holding.\nThe First District Appellate Court grounds its holding on our supreme court\u2019s opinions in Hamer v. Kirk, 64 Ill. 2d 434, 356 N.E.2d 524 (1976), and Hoffman v. Lehnhausen, 48 Ill. 2d 323, 269 N.E.2d 465 (1971), as well as several appellate court decisions relying on those cases. Noting that both Hamer and Hoffman involved circumstances where no fund was created (Hamer, 64 Ill. 2d at 440, 356 N.E.2d at 527; Hoffman, 48 Ill. 2d at 329, 269 N.E.2d at 469), we do not believe that the supreme court has placed such a restriction on the common-fund doctrine\u2019s application. See Taylor v. State Universities Retirement System, 203 Ill. App. 3d 513, 520, 560 N.E.2d 893, 897-98 (1990). Rather, the court permits the application of the doctrine where only part of the fund is within the control of the court. See Baier v. State Farm Insurance Co., 66 Ill. 2d 119, 361 N.E.2d 1100 (1977). Indeed, a court gains constructive control over such a partial fund by virtue of its in personam jurisdiction over the defendant(s). See generally Client Follow-Up Co. v. Hynes, 105 Ill. App. 3d 619, 628, 434 N.E.2d 485, 491 (1982). Although Baier is a subrogation case, the supreme court has never indicated that the doctrine\u2019s requirements should be applied inconsistently based upon the type of case. Therefore, we cannot impose on any case a requirement that the entire fund be under the control of the court in order for attorney fees to be awarded under the common-fund doctrine. Instead, we must interpret Illinois law to empower a court with constructive control of a partial fund based upon in personam jurisdiction to award attorney fees under the common-fund doctrine.\nGiven its general application, the common-fund doctrine applies to this case under Illinois law. Thus, the conflict is defined: Illinois law permits a common-fund doctrine action for attorney fees under the facts here, while Missouri law does not.\nNext, we must identify the policies inherent in these conflicting laws. Illinois\u2019s policy behind the common-fund doctrine is the prevention of unjust enrichment. See Scholtens, 173 Ill. 2d at 385, 671 N.E.2d at 663. Meanwhile, Missouri\u2019s policy in prohibiting that theory in this case is apparently to enforce the legislative intent of section 537.095. See Keene, 788 S.W.2d at 327.\nFinally, we must examine the relevant contacts of the respective jurisdictions. The relationship between Chapman and defendants was centered in Illinois because any and all communication between these Illinois residents seemingly occurred in Illinois. Moreover, Chapman\u2019s acts conferring the benefit or enrichment and defendants\u2019 receipt thereof occurred in both Illinois and Missouri, as Chapman pursued the case in a Missouri court but likely labored on the case to a large extent at its Illinois office. Most importantly, this case is brought by an Illinois corporation against Illinois-resident defendants domiciled in this state. Weighing these contacts, we conclude that Illinois has a superior connection with the occurrence and thus would have a superior interest in having its law applied.\nFurthermore, our decision is consistent with the modern approach to choice-of-law questions, which places the greatest importance on the forum\u2019s public policy. See Maher & Associates, Inc. v. Quality Cabinets, 267 Ill. App. 3d 69, 77, 640 N.E.2d 1000, 1006 (1994). A state\u2019s public policy must be sought in its constitution, legislative enactments, and judicial decisions. See Roanoke Agency, Inc. v. Edgar, 101 Ill. 2d 315, 327, 461 N.E.2d 1365, 1371 (1984). Illinois\u2019s public policy against unjust enrichment (see generally In re Estate of Moses, 13 Ill. App. 3d 137, 148, 300 N.E.2d 473, 480 (1973)) bolsters our decision to apply Illinois law in this case.\nThe alternative of applying Missouri law contravenes this public policy by fostering inequitable fee apportionments. While the Missouri legislature likely intended section 537.095.4(2) to produce equitable fee apportionments, we are troubled by its practical effect. Under this section, an attorney who creates a recovery may be subject to an inequitable attorney-fees apportionment from which that attorney cannot appeal. It affords a trial court the discretion to award the original plaintiffs attorney a fair and equitable fee from a claimant with whom that attorney has no written contract. But, according to the Missouri trial court, that discretion is eliminated if that claimant retains separate counsel any time before final judgment or settlement approval because the court must then apportion attorney fees \u201cas contracted.\u201d\nThe Missouri appellate court has taken notice of the circumstances that create this inherent inequity:\n\u201cThere is a point at which the interests of several claimants for damages for the same wrongful death diverge. Until there is a recovery by settlement or judgment, their interests are the same. All want the largest recovery possible. *** When the money is in hand, the respective claimants become adversaries in the carving of the pie, and all are entitled to the unencumbered services of their individual counsel.\u201d Floyd, 830 S.W.2d at 566.\nIn other words, the conflicting interests of multiple claimants at the distribution stage often necessitate the retention of individual counsel after recovery. Under Missouri law, that retention of separate counsel by a claimant with whom the original plaintiffs attorney has no written contract will relieve him or her of any duty to pay for the attorney\u2019s services, despite the fact that the attorney\u2019s representation of the claimant\u2019s interests in a wrongful death action created a fund benefiting him or her.\nThe present case exemplifies this injustice. Chapman alone handled this case for over three years and negotiated the settlement for the benefit of all heirs, including defendants. Chapman alone represented defendants\u2019 interests in reaching the settlement agreement, garnering $800,000 for the benefit of Karen and defendants. Yet the Missouri trial court\u2019s reading of section 537.095.4(2) required defendants to pay Chapman nothing because, after Chapman procured settlement funds, they entered into a written contract with a separate attorney to represent them in the distribution phase. Simply put, section 537.095.4(2) promotes unjust enrichment. Clearly, Illinois\u2019s policy of preventing unjust enrichment can only be furthered by the application of Illinois law, while the application of Missouri law would serve no worthwhile policy.\nWe now confront count II\u2019s sufficiency under Illinois substantive law. Chapman basically argues that, considering the common-fund doctrine\u2019s general application, count II states a cause of action and, hence, a dismissal under section 2 \u2014 615 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 615 (West 1996)) was unwarranted. We agree.\nUnder section 2 \u2014 615, a complaint is subject to dismissal if it fails to state a cause of action because of factual or legal insufficiency. See Cummings v. City of Waterloo, 289 Ill. App. 3d 474, 479, 683 N.E.2d 1222, 1225 (1997). \u201cIf a complaint fails to set forth a legally recognized claim upon which the plaintiff can recover, the complaint is infirm because of legal insufficiency, while a factually insufficient complaint fails to allege sufficient facts essential to the cause of action.\u201d Cummings, 289 Ill. App. 3d at 479, 683 N.E.2d at 1225. In addressing a dismissal motion under this section, the trial court must accept as true all well-pleaded facts in the complaint and all reasonable inferences drawn from these facts. See Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 8-9, 607 N.E.2d 201, 205 (1992). Furthermore, the court should interpret all pleadings and supporting documents in the light most favorable to the plaintiff. See Kaden v. Kagann, 260 Ill. App. 3d 256, 258, 635 N.E.2d 515, 517 (1994). It should not dismiss the complaint for failure to state a cause of action \u201cunless it clearly appears that no set of facts could be proven under the pleadings which would entitle the plaintiff to relief.\u201d Davis v. Temple, 284 Ill. App. 3d 983, 989, 673 N.E.2d 737, 741 (1996). On appeal, our review of the trial court\u2019s ruling on a motion to dismiss is de novo. See Cummings, 289 Ill. App. 3d at 479, 683 N.E.2d at 1225.\nTo state a cause of action for attorney fees under the common-fund doctrine, an attorney must allege that (1) his or her legal services created, preserved, or increased the fund from which fees are sought, (2) the claimant of the fund did not participate in its creation, its preservation, or its growth, and (3) the claimant benefitted or will benefit from the fund. See Village of Clarendon Hills, 278 Ill. App. 3d at 732, 663 N.E.2d at 440. Count II alleges that Chapman seeks fees from the settlement fund that its legal services created for defendants\u2019 benefit without their participation. Accepting these factual allegations as true, Chapman sufficiently states a cause of action under the common-fund doctrine.\nNevertheless, defendants contend on appeal that the dismissal of count II was proper because they were unwilling recipients of Chapman\u2019s legal services. Initially raising this affirmative matter in their dismissal motion by incorporating their cross-motion for summary judgment, defendants essentially contend that count II is barred under section 2 \u2014 619(a)(9) of the Code (735 ILCS 5/2 \u2014 619(a)(9) (West 1996)) because their status as unwilling recipients defeated Chapman\u2019s claim. We disagree.\n\u201cA section 2 \u2014 619 motion provides a means of disposing not only of issues of law but also of easily proven issues of fact.\u201d Barber-Colman Co. v. A&K Midwest Insulation Co., 236 Ill. App. 3d 1065, 1072, 603 N.E.2d 1215, 1221 (1992). Again, all well-pleaded facts are taken as true, and only the complaint\u2019s legal sufficiency is contested. See Zimmerman v. Fasco Mills Co., 302 Ill. App. 3d 308, 311, 704 N.E.2d 949, 951-52 (1998). The procedure under a section 2 \u2014 619 motion is very similar to that of a summary judgment motion. See Barber-Colman Co., 236 Ill. App. 3d at 1072, 603 N.E.2d at 1221. The issue presented is whether a genuine issue of material fact exists precluding dismissal or, absent such an issue of material fact, whether dismissal was proper as a matter of law. See Zimmerman, 302 Ill. App. 3d at 311, 704 N.E.2d at 952. We likewise review the granting of section 2 \u2014 619 motion de novo. See Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383, 687 N.E.2d 1042, 1049 (1997).\nIt is clear that \u201ca plaintiff may not recover attorney fees under the doctrine while rendering services for an unwilling recipient.\u201d Brase v. Loempker, 267 Ill. App. 3d 415, 419, 642 N.E.2d 202, 205 (1994). However, it is unclear whether defendants were unwilling recipients of Chapman\u2019s legal services. While the record does contain defendants\u2019 affidavits and deposition testimony supporting this contention, conspicuously absent from the record is evidence demonstrating that defendants decided to represent their own interests prior to settlement and affirmatively notified Chapman of that decision. See McGee v. Oldham, 267 Ill. App. 3d 396, 401, 642 N.E.2d 196, 199 (1994). On the record before us, the question of whether defendants were unwilling recipients of Chapman\u2019s legal services is not an easily proven issue of fact. We conclude that this genuine issue of material fact precludes dismissal. Therefore, we reverse the circuit court\u2019s dismissal of count II.\nFinally, we address the circuit court\u2019s refusal to grant summary judgment on Chapman\u2019s contention that a judge, rather than a jury, must decide a common-fund doctrine case. Summary judgment \u201cshall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\u201d 735 ILCS 5/2 \u2014 1005(c) (West 1996). \u201cThus, where the matter before the trial court can be decided as a question of law, the case is a proper one for summary judgment.\u201d First of America Bank, Rockford, N.A. v. Netsch, 166 Ill. 2d 165, 176, 651 N.E.2d 1105, 1110 (1995). \u201cOn appeal, courts review summary judgment orders de novo.\u201d Batson v. Pinckneyville Elementary School District No. 50, 294 Ill. App. 3d 832, 834, 690 N.E.2d 1077, 1078 (1998).\nThe common-fund doctrine \u201cfinds its source in the court\u2019s inherent equitable powers.\u201d Brundidge v. Glendale Federal Bank, F.S.B., 168 Ill. 2d 235, 238, 659 N.E.2d 909, 911 (1995). \u201cThere is no right to a jury trial in equitable proceedings or proceedings seeking equitable relief.\u201d Johnson v. Valspar Corp., 251 Ill. App. 3d 564, 569, 621 N.E.2d 999, 1005 (1993). Indeed, the application of the common-fund doctrine is a matter within the trial court\u2019s sound discretion. See In re Estate of Pfoertner, 298 Ill. App. 3d 1134, 1137, 700 N.E.2d 438, 440 (1998).\nLike defendants\u2019 unwilling-recipient defense, the elements of Chapman\u2019s claim may raise questions of fact. Because this action is an equitable proceeding, any such factual issues must be tried to the circuit court without a jury as a matter of law. Therefore, we reverse the circuit court\u2019s denial of summary judgment in Chapman\u2019s favor on this issue.\nFor the foregoing reasons, the judgment of the Madison County circuit court is affirmed in part and reversed in part, and this cause is remanded for proceedings in accordance with this opinion.\nAffirmed in part and reversed in part; cause remanded.\nHOPKINS and MAAG, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE KUEHN"
      }
    ],
    "attorneys": [
      "Morris B. Chapman and Clarence W Harrison II, of Morris B. Chapman & Associates, Ltd., of Granite City, for appellant.",
      "William J. Knapp and Robert J. Evola, both of Burroughs, Hepler, Broom, MacDonald & Hebrank, of Edwardsville, for appellees."
    ],
    "corrections": "",
    "head_matter": "MORRIS B. CHAPMAN AND ASSOCIATES, LTD., Plaintiff-Appellant and Cross-Appellee, v. JOHN KITZMAN et al., Defendants-Appellees and Cross-Appellants.\nFifth District\nNo. 5\u201497\u20141005\nOpinion filed August 27, 1999.\nMorris B. Chapman and Clarence W Harrison II, of Morris B. Chapman & Associates, Ltd., of Granite City, for appellant.\nWilliam J. Knapp and Robert J. Evola, both of Burroughs, Hepler, Broom, MacDonald & Hebrank, of Edwardsville, for appellees.\nThe original version of this case, filed February 2, 1999, and published at 302 Ill. App. 3d 780, was withdrawn."
  },
  "file_name": "0092-01",
  "first_page_order": 110,
  "last_page_order": 125
}