{ "id": 4277506, "name": "BRANDON APPAREL GROUP et al., Plaintiffs-Appellants and Cross-Appellees, v. KIRKLAND AND ELLIS, Defendant-Appellee and Cross-Appellant", "name_abbreviation": "Brandon Apparel Group v. Kirkland & Ellis", "decision_date": "2008-04-21", "docket_number": "No. 1\u201406\u20141432", "first_page": "273", "last_page": "287", "citations": [ { "type": "official", "cite": "382 Ill. App. 3d 273" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "841 N.E.2d 1084", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "opinion_index": 0 }, { "cite": "362 Ill. App. 3d 1211", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4260973 ], "year": 2006, "pin_cites": [ { "page": "1222" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/362/1211-01" ] }, { "cite": "718 N.E.2d 191", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "187 Ill. 2d 341", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1131036 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "357" }, { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/187/0341-01" ] }, { "cite": "885 A.2d 163", "category": "reporters:state_regional", "reporter": "A.2d", "year": 2005, "pin_cites": [ { "page": "174" } ], "opinion_index": 0 }, { "cite": "276 Conn. 257", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 3991555 ], "year": 2005, "pin_cites": [ { "page": "278-79" } ], "opinion_index": 0, "case_paths": [ "/conn/276/0257-01" ] }, { "cite": "414 N.W.2d 165", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1987, "pin_cites": [ { "page": "167" } ], "opinion_index": 0 }, { "cite": "163 Mich. App. 238", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 12126300 ], "year": 1987, "pin_cites": [ { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/mich-app/163/0238-01" ] }, { "cite": "11 S.W.3d 157", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 11472128 ], "year": 2000, "pin_cites": [ { "page": "159" } ], "opinion_index": 0, "case_paths": [ "/sw3d/11/0157-01" ] }, { "cite": "691 N.E.2d 834", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "295 Ill. App. 3d 17", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45709 ], "year": 1998, "pin_cites": [ { "page": "30" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/295/0017-01" ] }, { "cite": "818 N.E.2d 753", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2004, "opinion_index": 0 }, { "cite": "353 Ill. App. 3d 378", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3362731 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "387" }, { "page": "387" }, { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/353/0378-01" ] }, { "cite": "325 N.E.2d 357", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "26 Ill. App. 3d 637", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2788378 ], "weight": 3, "year": 1975, "pin_cites": [ { "page": "642" }, { "page": "642" }, { "page": "642" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/26/0637-01" ] }, { "cite": "201 N.E.2d 660", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "52 Ill. App. 2d 55", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5280400 ], "year": 1964, "pin_cites": [ { "page": "61" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/52/0055-01" ] }, { "cite": "347 N.E.2d 378", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "37 Ill. App. 3d 956", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2714445 ], "year": 1976, "pin_cites": [ { "page": "958" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0956-01" ] }, { "cite": "736 N.E.2d 145", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "316 Ill. App. 3d 340", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1096615 ], "year": 2000, "pin_cites": [ { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/316/0340-01" ] }, { "cite": "557 N.E.2d 438", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "199 Ill. App. 3d 674", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2466375 ], "year": 1990, "pin_cites": [ { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/199/0674-01" ] }, { "cite": "518 N.E.2d 187", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "164 Ill. App. 3d 610", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3581607 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "616" }, { "page": "616" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0610-01" ] }, { "cite": "448 N.E.2d 1039", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "114 Ill. App. 3d 479", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3592168 ], "year": 1983, "pin_cites": [ { "page": "480-81" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/114/0479-01" ] }, { "cite": "689 N.E.2d 1157", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "293 Ill. App. 3d 992", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 847490 ], "year": 1997, "pin_cites": [ { "page": "995" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/293/0992-01" ] }, { "cite": "587 N.E.2d 34", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "224 Ill. App. 3d 653", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5252515 ], "year": 1992, "pin_cites": [ { "page": "656" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/224/0653-01" ] }, { "cite": "707 N.E.2d 223", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "302 Ill. App. 3d 951", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1352878 ], "year": 1999, "pin_cites": [ { "page": "956" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/302/0951-01" ] }, { "cite": "850 N.E.2d 183", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "opinion_index": 0 }, { "cite": "221 Ill. 2d 195", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5703458 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "214-15" }, { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/221/0195-01" ] } ], "analysis": { "cardinality": 1095, "char_count": 35183, "ocr_confidence": 0.837, "pagerank": { "raw": 7.437979607385092e-08, "percentile": 0.4439716369564403 }, "sha256": "fb01b9f7938e57f901864252dfcf02da519c3584f54bc3c110c6fe2691e224ca", "simhash": "1:82b451f08d1c5d9d", "word_count": 5448 }, "last_updated": "2023-07-14T21:27:01.752924+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BRANDON APPAREL GROUP et al., Plaintiffs-Appellants and Cross-Appellees, v. KIRKLAND AND ELLIS, Defendant-Appellee and Cross-Appellant." ], "opinions": [ { "text": "JUSTICE GARCIA\ndelivered the opinion of the court:\nThe plaintiffs, Brandon Apparel Group (Brandon), Bradley A. Key-well, and Eric E Lefkofsky, retained the defendant law firm Kirkland & Ellis (Kirkland) to represent them in a dispute over certain loans. After a default judgment was entered against Brandon, Keywell, and Lefkofsky in that litigation, they filed the instant legal malpractice action against Kirkland.\nThe trial court granted Kirkland\u2019s amended motion for summary judgment, finding the plaintiffs had improperly assigned their legal malpractice claim. The court denied Kirkland\u2019s motion for partial summary judgment as to the plaintiffs\u2019 damages.\nThe trial court entered an order pursuant to Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)), finding there was \u201cno just reason for delaying either enforcement or appeal or both\u201d of its grant of summary judgment. The trial court also stayed proceedings on Kirkland\u2019s counterclaim pending appeal. For the reasons that follow, we reverse and remand.\nBACKGROUND\nThe alleged legal malpractice at issue in this case stems from the defendant law firm\u2019s representation of Brandon, Keywell, and Lefkofsky in Johnson Bank v. Brandon Apparel Group, Inc., No. 00\u2014CV256 (August 9, 2000), filed in the circuit court of Rock County, Wisconsin, in 2000 (the underlying litigation).\nI. The Underlying Litigation\nIn 1997, Brandon, a company specializing in the manufacture and sale of athletic apparel, obtained two loans from Johnson Bank. The loans included a $5 million term loan and a $4 million revolving credit loan. These loans were secured by Brandon\u2019s assets. Keywell and Lefkofsky, Brandon\u2019s principals, were guarantors of the loans.\nIn May 1999, Brandon entered into the \u201cFirst Amendment to Term Loan Agreement\u201d and the \u201cFirst Amendment to Revolving Credit Loan Agreement\u201d with Johnson Bank. As part of these amendments, Brandon acknowledged the total principal of its loans was approximately $10.1 million. Brandon also agreed to release Johnson Bank from \u201call claims, demands or causes of action of any kind.\u201d Although Lefkofsky expressed concern about the release\u2019s \u201cbroad-based waiver\u201d as to \u201call *** legal rights\u201d with regard to the loans, he and Keywell signed the amendments. Keywell and Lefkofsky also signed an \u201cAcknowledgment and Agreement of Guarantors\u201d for each loan. The acknowledgments released Johnson Bank from all \u201cdefenses, claims, offsets and counterclaims *** accrued to date.\u201d\nSoon after, Johnson Bank determined Brandon was in default of the loans. Brandon and Johnson Bank attempted to resolve the matter. On September 1, 1999, Brandon entered into the \u201cMoratorium Agreement\u201d with Johnson Bank. Keywell and Lefkofsky signed the agreement as guarantors. As part of this agreement, Brandon acknowledged $6.5 million was due and owing on the revolving credit loan and approximately $3.8 million was due and owing on the term loan.\nBrandon retained Kirkland after the execution of the Moratorium Agreement. Kirkland represented Brandon in connection with the negotiation of the \u201cSecond Moratorium Agreement\u201d with Johnson Bank. Pursuant to this agreement, Brandon, Keywell, and Lefkofsky acknowledged approximately $6.4 million plus interest due and owing on the revolving credit loan and $3.8 million plus interest due and owing on the term loan. As part of the agreement, Brandon, Keywell, and Lefkofsky released Johnson Bank from all \u201cclaims, demands or causes of action of any kind.\u201d\nOn March 8, 2000, counsel for Johnson Bank filed a complaint against Brandon, Keywell, and Lefkofsky in the circuit court of Rock County, Wisconsin. The complaint alleged Brandon was in default of the Second Moratorium Agreement. The complaint also alleged Key-well and Lefkofsky, as guarantors, were liable pursuant to their guarantees. The complaint asked for relief of approximately $10.7 million.\nKirkland attorney James Stempel entered into an agreement with Johnson Bank\u2019s counsel to answer or otherwise plead in the underlying litigation by April 14, 2000. This agreement was memorialized in a March 31, 2000, letter. When an answer was not filed by the agreed-to deadline, Johnson Bank filed a motion for a default judgment.\nOn May 18, 2000, Kirkland filed a motion in opposition to the entry of a default judgment. The motion (1) requested the court \u201cenlarge\u201d the time to answer or otherwise plead, (2) asked the court for leave to file an answer instanter, and (3) opposed the motion for a default judgment. In support of the motion, Kirkland attorney Stem-pel submitted an affidavit alleging the existence of an oral agreement with Johnson Bank\u2019s counsel, Albert Solochek, that further extended the time to answer the complaint.\nBrandon\u2019s answer, which Kirkland sought leave to file instanter, denied the complaint\u2019s allegations of money due and owing and asserted affirmative defenses.\nOn August 9, 2000, the Wisconsin circuit court granted Johnson Bank\u2019s motion for a default judgment. In September 2000, a judgment of approximately $11 million was entered against Brandon, Keywell, and Lefkofsky. A timely appeal was filed.\nThe Wisconsin appellate court reversed the entry of default judgment and remanded the case to the circuit court for an evidentiary hearing to determine whether the alleged oral agreement to extend the time to answer existed.\nOn January 4, 2002, the Wisconsin circuit court conducted an evidentiary hearing. Following the hearing, the circuit court concluded there was no oral agreement to extend the time to answer. The circuit court held that the entry of a default judgment was appropriate. On February 14, 2002, the circuit court entered a default judgment in the amount of $12,353,784 against Brandon, Keywell, and Lefkofsky. This amount included interest due and owing on the loans through January 14, 2002. Costs of approximately $37,000 were also entered against Brandon, Keywell, and Lefkofsky, with attorney fees to be determined at a later date.\nOn May 22, 2002, a Johnson Bank executive was appointed as a supplemental receiver of Brandon\u2019s property pursuant to a receivership order entered by the Wisconsin circuit court (the receivership order). The receivership order defined \u201cproperty\u201d to include \u201cany and all proceeds from any actions, claims or interests by or of [Brandon, Keywell, and Lefkofsky] against or as to Kirkland & Ellis.\u201d\nThe receivership order also required Brandon, Keywell, Lefkofsky, and their attorneys to confer with the receiver regarding the course of any malpractice claim against Kirkland. Should the two sides disagree as to litigation decisions, either party could seek a judicial remedy in the Wisconsin circuit court. Pursuant to the receivership order, Brandon, Keywell, and Lefkofsky could not \u201csettle, compromise, dismiss, or substantially impair [the malpractice litigation] without the express written consent\u201d of the receiver or of the Wisconsin circuit court after notice and a hearing.\nII. The Malpractice Litigation\nOn November 17, 2000, Brandon, Keywell, and Lefkofsky (the plaintiffs) filed a declaratory judgment action against Kirkland in the circuit court of Cook County. The plaintiffs alleged Kirkland\u2019s failure to file a timely answer in the underlying litigation led to the entry of a $12 million default judgment. Kirkland\u2019s answer denied the legal malpractice and asserted a counterclaim for unpaid attorney fees and costs.\nIn September 2002, the plaintiffs filed a five-count first-amended complaint. Count I sought a judicial declaration that the Wisconsin circuit court had made no determination denying Brandon\u2019s affirmative defenses against Johnson Bank and, as a result, Kirkland may be held liable for damages proximately caused by Kirkland\u2019s negligence. Count II sought a judicial declaration that (1) Kirkland breached its duty to the plaintiffs, (2) the plaintiffs had no further obligations to Kirkland, and (3) Kirkland must reimburse the plaintiffs for all sums previously paid to the firm. Count III alleged fraud, count IV alleged professional negligence, and count V alleged breach of contract. On February 18, 2003, the trial court entered an order dismissing counts I and III.\nAfter the filing of the first-amended complaint, the plaintiffs wished to retain new counsel. Johnson Bank disagreed with the plaintiffs\u2019 initial decision to retain counsel based on a contingency fee arrangement. Johnson Bank preferred the plaintiffs retain a firm based on an hourly billing arrangement. Johnson Bank\u2019s counsel stated Johnson Bank and the receiver \u201cwould consider the [contingency] fee arrangement *** provid[ed] [Keywell and Lefkofsky] deposited] sufficient sums *** to cover and protect the Bank and the Receiver\u201d from any additional amount that would be taken from the recovery because of a contingency fee arrangement as opposed to an hourly fee arrangement. Johnson Bank\u2019s counsel reminded Keywell, \u201cyou *** have acknowledged on many occasions, the Bank is the real and only beneficiary in the Kirkland case.\u201d Johnson Bank\u2019s counsel suggested the plaintiffs seek a judicial determination of the dispute in the Wisconsin circuit court pursuant to the receivership order. The plaintiffs did not seek a judicial remedy, instead retaining a firm pursuant to an agreement that included aspects of both billing arrangements.\nThe firm currently representing the plaintiffs, Connelly Roberts & McGinvey, was retained in 2004. In the engagement letter, plaintiffs\u2019 current counsel, Michael Connelly, acknowledged that any recovery in the malpractice litigation was the property of the receiver and that Johnson Bank would be paying his firm\u2019s invoices. The engagement letter also recognized that Johnson Bank could discontinue paying the plaintiffs\u2019 legal fees at any time. While the letter stated the firm would advance Brandon, Keywell and Lefkofsky\u2019s interests, it also acknowledged the firm could be discharged by Brandon, Keywell, Lefkofsky, or Johnson Bank.\nJohnson Bank\u2019s counsel and Connelly corresponded during the instant litigation regarding litigation strategy and expenditures. After receiving a litigation budget in the fall of 2004, Johnson Bank\u2019s counsel suggested that Connelly \u201ctemper the time *** put in this case.\u201d Counsel also \u201csuggested] that [Connelly] defer what [he could,] for now.\u201d Should plaintiffs\u2019 counsel have \u201cany questions as to whether a particular task should be undertaken,\u201d he was invited to discuss the matter with Johnson Bank\u2019s counsel. Johnson Bank\u2019s counsel also corresponded with Connelly regarding the cost, preparation, and filing of a potential motion for summary judgment.\nWhile the malpractice litigation was pending, Brandon, Keywell, and Lefkofsky entered into the \u201cCommon Interest Agreement\u201d with the receiver and Johnson Bank. In this agreement, the parties determined it was in their \u201cbest interest\u201d to consult regarding the malpractice litigation and such \u201cconsultations\u201d would be \u201csubject to the attorney-client privilege.\u201d\nThe trial court recognized this privilege in a February 4, 2005, order. In that order, the trial court denied Kirkland\u2019s motion to compel the production of documents and testimony regarding all communications between Johnson Bank, the receiver or its counsel, and the plaintiffs and their attorney. The trial court found the documents at issue were protected subject to the \u201ccommon interest doctrine\u201d because the documents were prepared in order to further the parties\u2019 \u201cjoint litigation strategy.\u201d\nOn March 17, 2005, Kirkland filed a motion for summary judgment which alleged the plaintiffs had improperly assigned their legal malpractice claim to Johnson Bank.\nIn their response to Kirkland\u2019s motion for summary judgment, the plaintiffs attached an affidavit from their attorney, Michael Connelly. Connelly stated that while he had \u201cconsulted\u201d with counsel for Johnson Bank regarding litigation strategy, he had not yielded control over decision making in the malpractice litigation to Johnson Bank or its counsel.\nKirkland moved for and was granted discovery regarding communications between Johnson Bank\u2019s counsel, Connelly, and the plaintiffs regarding the direction and control of the malpractice litigation.\nDuring this discovery, Kirkland deposed Connelly. Connelly testified in his deposition that when he was retained, he understood that while Johnson Bank would receive the proceeds of the malpractice litigation, Brandon, Keywell, and Lefkofsky were his clients. Connelly believed he had some \u201cfiduciary obligations\u201d to Johnson Bank because the bank was entitled to any recovery in the malpractice litigation. Because of this interest in the recovery, he consulted with Johnson Bank\u2019s counsel regarding progress in the malpractice litigation. Con-nelly further testified that when he was retained \u201cthe one thing that was made clear was that [he] could not settle the case without consulting\u201d Johnson Bank\u2019s counsel.\nConnelly testified that when he was told by Johnson Bank\u2019s counsel to defer work, he responded that he would do what was necessary to effectively represent his clients, Brandon, Keywell, and Lefkof-sky. Connelly also testified he filed pleadings and conducted depositions, including the depositions of Kirkland attorneys involved in the underlying litigation, without receiving Johnson Bank\u2019s counsel\u2019s approval in advance.\nAfter the conclusion of the discovery regarding the communications between the plaintiffs, Connelly, and Johnson Bank, Kirkland filed an amended motion for summary judgment on January 11, 2006. The amended motion argued that summary judgment was appropriate because Johnson Bank, a third-party judgment creditor, was the \u201creal\u201d beneficiary of the malpractice litigation and the malpractice claim had been improperly assigned to Johnson Bank. Kirkland argued the documentary evidence attached to its amended motion for summary judgment, including the deposition transcripts of Connelly and Johnson Bank\u2019s counsel, the receivership order, and correspondence between Johnson Bank, the plaintiffs, and Connelly, established that Johnson Bank controlled the malpractice litigation. In the alternative, Kirkland argued it was entitled to partial summary judgment on the issue of damages. According to Kirkland, it could not be held responsible for the $10.1 million Kirkland contended the plaintiffs owed Johnson Bank before Kirkland was retained.\nIn their response, the plaintiffs argued they remained the beneficiaries of the malpractice litigation and they had not assigned their legal malpractice claim to Johnson Bank.\nAttached to the plaintiffs\u2019 response to the amended motion for summary judgment was a copy of the \u201cSettlement Agreement and Release\u201d executed between Johnson Bank, Brandon, Keywell and Lefkofsky. The settlement agreement released and resolved all claims and obligations between Johnson Bank, Keywell and Lefkofsky, \u201cas well as any claims Brandon Apparel Group *** may have against [Johnson] Bank.\u201d Keywell and Lefkofsky agreed to pay Johnson Bank $1,125 million and in turn were released from the judgment entered in the underlying litigation and dismissed from all other litigation between Johnson Bank and Brandon.\nAdditionally, Keywell and Lefkofsky executed the \u201cAgreement of Cooperation\u201d as an addendum to the Settlement Agreement and Release. Pursuant to the Agreement of Cooperation, if Johnson Bank continued to fund the malpractice litigation, Keywell and Lefkofsky\n\u201ceach [agreed] to provide a minimum of 100 hours to assist the law firm of Connelly Roberts & McGivney, LLC (or any other firm that is acting on behalf of the Plaintiffs) in case and trial preparation, such assistance to be provided at the request and direction of the law firm. The 100 hours would include any deposition time in the case, but would not include time at trial. If necessary, in the opinion of trial counsel, *** Keywell and Lefkofsky would agree to attend each day of the trial proceedings in the case.\u201d\nAs a condition of the agreement, Keywell and Lefkofsky agreed to take no action that was inconsistent with the best interests of the malpractice litigation. If either Keywell or Lefkofsky breached the agreement, Johnson Bank was entitled to $400,000 in damages.\nThe cooperation agreement addressed how any potential recovery in the malpractice litigation would be divided. If Johnson Bank continued to fund the malpractice litigation, any recovery would first be used to reimburse Johnson Bank for amounts expended on attorney fees and costs. From any funds remaining after the payment of attorney fees and costs, Johnson Bank would receive the first $1 million. Any amount in excess of $1 million, but less than $2 million would be apportioned 95% to Johnson Bank and 5% to Keywell and Lefkofsky. Any recovery more than $2 million would be apportioned 90% to Johnson Bank and 10% to Keywell and Lefkofsky.\nIf Johnson Bank discontinued funding the malpractice litigation, Keywell and Lefkofsky could, but were not required to, pursue the litigation at their own expense. Should a recovery be made under those circumstances, it would be apportioned 90% to Keywell and Lefkofsky and 10% to Johnson Bank.\nOn March 29, 2006, the trial court granted Kirkland\u2019s amended motion for summary judgment as to the assignment of the legal malpractice claim but denied Kirkland\u2019s alternative motion for partial summary judgment as to damages. The court found that although the plaintiffs had not formally assigned the legal malpractice claim to Johnson Bank, in effect, an assignment had occurred. The court concluded that with the entry of the receivership order on May 22, 2002, Johnson Bank became the party entitled to any recovery in the malpractice litigation, as well as the party in control of the malpractice litigation. Thus, the court found a de facto assignment of the malpractice litigation had occurred.\nThe court also relied on the cooperation agreement entered into between Keywell, Lefkofsky, and Johnson Bank to determine that a de facto assignment had occurred. The court reasoned that if Keywell and Lefkofsky were still the \u201creal parties in interest\u201d to the malpractice litigation, there would be no reason to require their cooperation with routine case matters and trial preparation.\nThe trial court entered an order pursuant to Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)), finding there was \u201cno just reason for delaying either enforcement or appeal or both\u201d of the March 29, 2006, order. The plaintiffs filed a notice of appeal from the trial court\u2019s grant of summary judgment. Kirkland filed a notice of cross-appeal from the trial court\u2019s denial of its motion for partial summary judgment.\nANALYSIS\nThe plaintiffs assert the trial court erred in granting summary judgment in favor of Kirkland. The plaintiffs contend no assignment to Johnson Bank of their legal malpractice claim occurred because the receivership order entered by the Wisconsin circuit court was not an assignment.\nIn its cross-appeal, Kirkland contends it was entitled to partial summary judgment as to the amount of damages actually suffered by the plaintiffs as a result of Kirkland\u2019s alleged negligence. Kirkland contends that $10.1 million of the judgment entered against the plaintiffs in the underlying litigation was based on loan documents signed between the plaintiffs and Johnson Bank before Kirkland was retained and therefore not subject to challenge as a matter of law. Kirkland asks this court to consider its cross-appeal only if we reverse the trial court\u2019s entry of summary judgment.\n\u201cSummary judgment is appropriate only where \u2018the 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.\u2019 \u201d Governmental Interinsurance Exchange v. Judge, 221 Ill. 2d 195, 214-15, 850 N.E.2d 183 (2006), quoting 735 ILCS 5/2\u20141005(c) (West 2004). The court \u201cmust construe all evidence strictly against the movant and liberally in favor of the nonmoving party.\u201d Larry Karchmar, Ltd. v. Nevoral, 302 Ill. App. 3d 951, 956, 707 N.E.2d 223 (1999).\n\u201cOn appeal from a grant of summary judgment, a reviewing court\u2019s function is to determine whether the trial court properly concluded that there was no genuine issue of material fact, and if there was not, whether the judgment was correct as a matter of law.\u201d People ex rel. Burris v. Memorial Consultants, Inc., 224 Ill. App. 3d 653, 656, 587 N.E.2d 34 (1992). This court reviews the grant of summary judgment de novo. Governmental Interinsurance Exchange, 221 Ill. 2d at 215.\nI. The Legal Malpractice Claim\nLegal malpractice claims are not assignable in Illinois. Wilson v. Coronet Insurance Co., 293 Ill. App. 3d 992, 995, 689 N.E.2d 1157 (1997). This court has held that \u201csound public policy prohibits the assignment of [legal malpractice claims] since an assignee would be a stranger to the attorney-client relationship, who was owed no duty by the attorney and who suffered no injury from the attorney\u2019s actions.\u201d Clement v. Prestwich, 114 Ill. App. 3d 479, 480-81, 448 N.E.2d 1039 (1983).\nHere, the plaintiffs contend they have not assigned their legal malpractice claim to Johnson Bank. The plaintiffs contend the receivership order did \u201cnot constitute or effect an assignment of the plaintiffs\u2019 malpractice claim.\u201d Rather, it merely gave \u201cJohnson Bank a lien upon the proceeds\u201d of the malpractice litigation. Additionally, the plaintiffs argue that even if they had improperly assigned their legal malpractice claim to Johnson Bank, the trial court erred by entering summary judgment rather than merely voiding the assignment and allowing the plaintiffs to continue the malpractice litigation.\nA. The Receivership Order\nThe receivership order entered by the Wisconsin circuit court appointed an executive at Johnson Bank as the supplemental receiver of Brandon\u2019s property. The receivership order defined property to include, \u201cany and all proceeds from any actions, claims or interests by or of [Brandon, Keywell, and Lefkofsky] against or as to Kirkland & Ellis.\u201d It is undisputed that the receivership order made Johnson Bank the party entitled to the recovery in the malpractice litigation. The dispute between the parties centers on whether the receivership order, in light of the other circumstances present in this case, also effectively assigned the legal malpractice claim to Johnson Bank.\nThe receivership order required Brandon, Keywell, Lefkofsky, and their attorneys to consult with the receiver regarding litigation strategy and settlement. The order provided for resolution by the Wisconsin circuit court of any litigation disputes between the parties. The Agreement of Cooperation entered into between plaintiffs Key-well and Lefkofsky and Johnson Bank, at the time of their settlement agreement, provided a formula for the division of any recovery in the malpractice litigation. The trial court below concluded that the combination of the receivership order and the cooperation agreement gave Johnson Bank such control over the malpractice litigation that a de facto assignment occurred. Consistent with the trial court\u2019s ruling, Kirkland contends \u201cthe undisputed facts demonstrate that Johnson Bank has used its rights under the Receivership Order, and its funding of this litigation, to direct major decisions regarding the prosecution of this lawsuit.\u201d According to Kirkland, Johnson Bank\u2019s priority claim to any recovery from the malpractice suit and its control \u201cover virtually all major litigation decisions establishes a de facto assignment.\u201d\nNeither our research nor that of either of the parties has disclosed a case addressing the precise question before us: when is de facto assignment of a legal malpractice claim established as a matter of law? We look to cases involving the assignments in other areas of the law for guidance.\nThe legal landscape regarding what constitutes an assignment is fairly clear. An assignment occurs when \u201cthere is a transfer of some identifiable interest from the assignor to the assignee.\u201d Klehm v. Grecian Chalet, Ltd., 164 Ill. App. 3d 610, 616, 518 N.E.2d 187 (1987). \u201cGenerally, no particular form of assignment is required; any document which sufficiently evidences the intent of the assignor to vest ownership of the subject matter of the assignment in the assignee is sufficient to effect an assignment.\u201d Stoller v. Exchange National Bank of Chicago, 199 Ill. App. 3d 674, 681, 557 N.E.2d 438 (1990). A valid assignment \u201cneeds only to assign or transfer the whole or a part of some particular thing, debt, or chose in action and it must describe the subject matter of the assignment with sufficient particularity to render it capable of identification.\u201d Klehm, 164 Ill. App. 3d at 616. The assignment transfers to the assignee all the \u201c \u2018right, title or interest of the assignor in the thing assigned.\u2019 \u201d Owens v. McDermott, Will & Emery, 316 Ill. App. 3d 340, 350, 736 N.E.2d 145 (2000), quoting Litwin v. Timbercrest Estates, Inc., 37 Ill. App. 3d 956, 958, 347 N.E.2d 378 (1976). Thus, the assignee stands in the \u201cshoes\u201d of the assignor. City of Chicago in Trust for the Use of Schools v. Fischer, 52 Ill. App. 2d 55, 61, 201 N.E.2d 660 (1964).\nMore difficult is determining whether a de facto, rather than a formal, assignment has occurred. The \u201ccreation and existence of an assignment is to be determined according to the intention of the parties, and that intention is a question of fact to be derived not only from the instruments executed by them, but from the surrounding circumstances.\u201d Rivan Die Mold Corp. v. Stewart Warner Corp., 26 Ill. App. 3d 637, 642, 325 N.E.2d 357 (1975); Northwest Diversified, Inc. v. Desai, 353 Ill. App. 3d 378, 387, 818 N.E.2d 753 (2004). \u201cWhether an assignment has occurred \u2018is dependent upon proof of intent to make an assignment and that intent must be manifested.\u2019 \u201d Northwest Diversified, Inc. v. Desai, 353 Ill. App. 3d 378, 387, 818 N.E.2d 753 (2004), quoting Strosberg v. Brauvin Realty Services, Inc., 295 Ill. App. 3d 17, 30, 691 N.E.2d 834 (1998).\nThe language of the agreement between the plaintiffs and Johnson Bank as set out in the receivership order and the cooperation agreement is not disputed; however, the parties to the agreement itself reject that an assignment occurred. It is Kirkland, a stranger to the agreement, that contends the agreement constituted a de facto assignment of the plaintiffs\u2019 legal malpractice claim. Kirkland contends the receivership order effectively assigned the legal malpractice claim to Johnson Bank because the plaintiffs acknowledged that Johnson Bank was the \u201creal and only beneficiary\u201d of the litigation, and under the extant circumstances, the plaintiffs ceded control to Johnson Bank over the litigation.\nThe plaintiffs contend to the contrary; the receivership order provided no more than \u201ca right to be heard\u201d to the lienholder, Johnson Bank, regarding the subject of the lien. Brandon, Keywell, and Lefkof-sky deny they ever intended to assign their legal malpractice claim to Johnson Bank.\nThere are strong arguments on both sides of the issue.\nThe Wisconsin circuit court entered the receivership order on May 22, 2002. At that time, the malpractice litigation had been pending in Cook County for almost two years. If, as the plaintiffs contend, this litigation was their most valuable asset, they would presumably not enter into an agreement that created an assignment void under Illinois law, thereby possibly undoing the litigation the plaintiffs had filed two years prior. If the receivership order were an assignment of the legal malpractice claim, there would be no point in requiring Brandon, Keywell, and Lefkofsky to consult with the receiver regarding litigation strategy and settlement because the receiver, as as-signee, would presumably be entitled to make those decisions. Although Connelly consulted with Johnson Bank\u2019s counsel and recognized a fiduciary duty to Johnson Bank as the recipient of any recovery in the malpractice litigation, he also acknowledged that Brandon, Keywell, and Lefkofsky were his clients and it was their interests that he sought to advance in this litigation. While the plaintiffs and their counsel admitted Johnson Bank\u2019s counsel was vocal regarding the malpractice litigation, the plaintiffs\u2019 counsel characterized the comments as suggestions. In his deposition and again at oral argument, the plaintiffs\u2019 counsel denied surrendering control of the malpractice litigation to Johnson Bank or its counsel. Viewing the receivership order in the light most favorable to the plaintiffs, it may only have given Johnson Bank, through the receiver, the ability to delay litigation decisions or settlement, as there was no guarantee the Wisconsin circuit court would agree with Johnson Bank\u2019s position on a particular issue should judicial intervention be required. The receivership order, itself, did not give Johnson Bank the final word in the case of a disagreement with the plaintiffs.\nOn the other hand, Kirkland focuses on the exchange between Johnson Bank\u2019s counsel and the plaintiffs regarding the retention of new counsel as evidence of Johnson Bank\u2019s control of the litigation. While it is true Johnson Bank\u2019s counsel did not forbid the hiring of the plaintiffs\u2019 initial candidate as counsel, it is also clear Johnson Bank swayed the decision. Indeed, Johnson Bank\u2019s counsel suggested the plaintiffs take the disagreement before the Wisconsin circuit court. Of course, had the legal malpractice claim been truly assigned to Johnson Bank, it could have ended the discussion with a refusal rather than suggest presenting the dispute to the Wisconsin circuit court. The record does not reveal whether Johnson Bank went before the Wisconsin circuit court for a judicial determination of this matter. The fact that Johnson Bank could not unilaterally decide who to retain as new counsel indicates the receivership order did not transfer all rights in the malpractice litigation from Brandon, Keywell, and Lefkofsky to Johnson Bank.\nThe determination of the extent of the consultation with Johnson Bank and whether that consultation became control is a factual question that needs further development. The creation of an assignment is determined according to the parties\u2019 intentions. These intentions are a question of fact derived from the instruments executed and the surrounding circumstances. Rivan Die Mold Corp., 26 Ill. App. 3d at 642. The intent to make an assignment must be manifest. Northwest Diversified, Inc. v. Desai, 353 Ill. App. 3d at 387. Where the agreement at issue is capable of being understood in more than one sense, \u201cevidence of extrinsic facts and circumstances\u201d is necessary to determine the intent and agreement of the parties. Rivan Die Mold Corp., 26 Ill. App. 3d at 642.\nViewing the receivership order in the light most favorable to the plaintiffs, whether the receivership order created a de facto assignment of the instant legal malpractice claim is a question of fact not properly determined pursuant to a motion for summary judgment on the state of the record before us.\nB. Remedy for an Improper Assignment\nThe parties have presented two lines of cases that provide opposing consequences of an improper assignment.\nThe plaintiffs contend the proper remedy of an improper assignment would be to void the assignment and allow them to continue with the malpractice litigation. The plaintiffs rely on Mallios v. Baker, 11 S.W.3d 157, 159 (Tex. 2000), and Weston v. Dowty, 163 Mich. App. 238, 241, 414 N.W.2d 165, 167 (1987), for the proposition that a former client\u2019s right to bring his own cause of action for malpractice is not extinguished by the invalid assignment of a legal malpractice claim.\nKirkland, on the other hand, argues nothing \u201ccould remove the taint resulting from years of litigating under an impermissible assignment\u201d and that the proper remedy would be the entry of a judgment against the plaintiffs. Kirkland relies on Gurski v. Rosenblum & Filan, LLC, 276 Conn. 257, 278-79, 885 A.2d 163, 174 (2005), for the proposition that the proper remedy for an improper assignment of a legal malpractice claim is to terminate the litigation in the defendant\u2019s favor.\nBecause we conclude a question of fact remains whether the plaintiffs\u2019 intentions underlying the receivership order and the surrounding circumstances was to create an assignment of the plaintiffs\u2019 legal malpractice claim, which must be determined upon remand below, we do not express an opinion as to which of the opposing lines of cases Illinois would follow.\nII. Kirkland\u2019s Cross-Appeal\nKirkland contends the trial court erred by denying its motion for partial summary judgment as to $10.1 million of the judgment entered in the Wisconsin litigation based on loan documents signed between the plaintiffs and Johnson Bank before Kirkland was retained.\nOrdinarily, a trial court\u2019s order denying a summary judgment motion is not appealable as such an order is interlocutory. Arangold Corp. v. Zehnder, 187 Ill. 2d 341, 357, 718 N.E.2d 191 (1999). There are circumstances under which such an order may warrant review; for instance, when the trial court has ruled on cross-motions for summary judgment \u201con the same claim.\u201d (Emphasis omitted.) Arangold, 187 Ill. 2d at 358.\nThe plaintiffs here did not file a cross-motion for summary judgment on the partial damages issue. Also, the trial court determined that the release as part of the loan documents signed between the plaintiffs and Johnson Bank before Kirkland was retained \u201cwas silent as to the waiver of any defenses in the event the Plaintiffs were sued by Johnson Bank.\u201d Consistent with the trial court\u2019s ruling, we find Kirkland\u2019s attempt to apportion the default judgment amount between the damages proximately caused by any negligence by Kirkland and the indebtedness of plaintiffs to Johnson Bank flowing from the loan documents to be unamenable to resolution by summary judgment. Finally, we are remanding for further proceedings regarding whether a de facto assignment occurred. Consequently, we see no purpose in further addressing Kirkland\u2019s cross-appeal and we decline to do so. See Price v. Hickory Point Bank & Trust, 362 Ill. App. 3d 1211, 1222, 841 N.E.2d 1084 (2006).\nCONCLUSION\nFor the reasons stated above, we reverse the trial court\u2019s judgment and remand for further proceedings consistent with this decision.\nReversed and remanded.\nWOLFSON and R. GORDON, JJ., concur.\nShortly after the appeal was filed in the underlying litigation, Brandon, Keywell, and Lefkofsky filed this malpractice action against Kirkland in the circuit court of Cook County. The parties agreed to stay the malpractice action pending the outcome of the underlying litigation.", "type": "majority", "author": "JUSTICE GARCIA" } ], "attorneys": [ "Michael P. Connelly and William E. Snyder, both of Connelly Roberts & McGiveny, LLC, of Chicago, for appellants.", "Michael L. Shakman and Thomas M. Staunton, both of Miller Shakman & Beem, LLP, of Chicago, for appellee." ], "corrections": "", "head_matter": "BRANDON APPAREL GROUP et al., Plaintiffs-Appellants and Cross-Appellees, v. KIRKLAND AND ELLIS, Defendant-Appellee and Cross-Appellant.\nFirst District (1st Division)\nNo. 1\u201406\u20141432\nOpinion filed April 21, 2008.\nMichael P. Connelly and William E. Snyder, both of Connelly Roberts & McGiveny, LLC, of Chicago, for appellants.\nMichael L. Shakman and Thomas M. Staunton, both of Miller Shakman & Beem, LLP, of Chicago, for appellee." }, "file_name": "0273-01", "first_page_order": 291, "last_page_order": 305 }