{ "id": 4277511, "name": "SHELDON ENGEL, Plaintiff-Appellant, v. MARSHA LOYFMAN, Defendant-Appellee", "name_abbreviation": "Engel v. Loyfman", "decision_date": "2008-06-06", "docket_number": "No. 1-07-1468", "first_page": "191", "last_page": "198", "citations": [ { "type": "official", "cite": "383 Ill. App. 3d 191" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "211 N.E.2d 907", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "pin_cites": [ { "page": "912", "parenthetical": "indicating a discretionary ruling should be reversed where there has been an abuse of discretion or the court manifests a misapprehension of the law" } ], "opinion_index": 0 }, { "cite": "64 Ill. App. 2d 409", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5294157 ], "year": 1965, "pin_cites": [ { "page": "420", "parenthetical": "indicating a discretionary ruling should be reversed where there has been an abuse of discretion or the court manifests a misapprehension of the law" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/64/0409-01" ] }, { "cite": "220 N.E.2d 479", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "pin_cites": [ { "page": "484", "parenthetical": "reversing a discretionary ruling where the court misapprehended the controlling rule of law" } ], "opinion_index": 0 }, { "cite": "75 Ill. App. 2d 133", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2578307 ], "year": 1966, "pin_cites": [ { "page": "142", "parenthetical": "reversing a discretionary ruling where the court misapprehended the controlling rule of law" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/75/0133-01" ] }, { "cite": "865 N.E.2d 400", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "pin_cites": [ { "page": "406", "parenthetical": "a trial court abuses its discretion in a section 2 - 1401 proceeding where it fails to apply the proper legal criteria" } ], "opinion_index": 0 }, { "cite": "372 Ill. App. 3d 167", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4268631 ], "year": 2007, "pin_cites": [ { "page": "173", "parenthetical": "a trial court abuses its discretion in a section 2 - 1401 proceeding where it fails to apply the proper legal criteria" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/372/0167-01" ] }, { "cite": "770 N.E.2d 177", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 14, "year": 2002, "pin_cites": [ { "page": "186" }, { "page": "186" }, { "page": "186" }, { "page": "186" }, { "page": "186" }, { "page": "186" }, { "page": "186" }, { "page": "186" }, { "page": "186" }, { "page": "186" }, { "page": "185" }, { "page": "185" }, { "page": "186" }, { "page": "186" } ], "opinion_index": 0 }, { "cite": "199 Ill. 2d 325", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58932 ], "weight": 14, "year": 2002, "pin_cites": [ { "page": "338" }, { "page": "336" }, { "page": "338" }, { "page": "338" }, { "page": "338" }, { "page": "337" }, { "page": "337" }, { "page": "337" }, { "page": "337" }, { "page": "337" }, { "page": "335" }, { "page": "336" }, { "page": "338" }, { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0325-01" ] }, { "cite": "681 N.E.2d 166", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "170" } ], "opinion_index": 0 }, { "cite": "288 Ill. App. 3d 1053", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1596947 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "1058" }, { "page": "1057" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/288/1053-01" ] }, { "cite": "492 N.E.2d 1284", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "112 Ill. 2d 187", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5537916 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-2d/112/0187-01" ] }, { "cite": "835 N.E.2d 187", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "359 Ill. App. 3d 867", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3581931 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0978-01" ] }, { "cite": "671 N.E.2d 819", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "827" } ], "opinion_index": 0 }, { "cite": "284 Ill. App. 3d 171", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1260415 ], "year": 1996, "pin_cites": [ { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/284/0171-01" ] } ], "analysis": { "cardinality": 863, "char_count": 18776, "ocr_confidence": 0.811, "pagerank": { "raw": 7.326078377898546e-08, "percentile": 0.43995093922464207 }, "sha256": "c9f290a5e97642ac94ddb6a0ac6373c56b0e79461d887d9599cd528394ce4fb2", "simhash": "1:ba9475f803a58871", "word_count": 3038 }, "last_updated": "2023-07-14T19:46:05.228492+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SHELDON ENGEL, Plaintiff-Appellant, v. MARSHA LOYFMAN, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE McBRIDE\ndelivered the opinion of the court:\nSheldon Engel, a practicing attorney, appeals from a circuit court order granting the motion of his former client Marsha Loyfman to vacate an agreed settlement order in his suit to enforce an attorney retainer agreement. In addition to granting Loyfman\u2019s motion, the court sua sponte dismissed Engel\u2019s suit for lack of subject matter jurisdiction. The primary issue on appeal is whether the circuit court lacked subject matter jurisdiction over former counsel\u2019s breach of contract action because the action was filed before the expiration of the 90-day period specified in section 508(e)(1) of the Illinois Marriage and Dissolution of Marriage Act. 750 ILCS 5/508(e)(l) (West 2004). Engel contends the court misconstrued the statute and that the principles of waiver and equitable estoppel should have prevented Loyfman from challenging the agreed settlement order.\nLoyfman hired Engel in 2005 to pursue what were purportedly millions of dollars in assets concealed by her ex-husband during their 2004 divorce proceedings. After Loyfman executed Engel\u2019s retainer contract, he filed a petition under section 2 \u2014 1401 of the Code of Civil Procedure to vacate the financial portion of her divorce judgment. See 735 ILCS 5/2 \u2014 1401 (West 2004). Section 2 \u2014 1401, which is also relevant in the current proceedings, is a means \u201cto bring facts to the attention of the court which, if known at the time of judgment, would have prevented its entry.\u201d In re Marriage of Gorman, 284 Ill. App. 3d 171, 182, 671 N.E.2d 819, 827 (1996). When Loyfman subsequently asked Engel to withdraw the postjudgment petition, he surmised she and her ex-husband had reached a \u201csecret settlement\u201d that would limit the attorney fees he had been anticipating. Therefore, instead of complying with her directions, Engel sought the circuit court\u2019s leave to immediately withdraw from the postdissolution proceedings due to \u201cpersonal differences\u201d with his client. On January 20, 2006, the court granted Engel leave to withdraw instanter.\nTen days after his withdrawal, Engel initiated the current action by filing a pro se breach of contract complaint on January 30, 2006, based on the written retainer agreement. He alleged he was retained at the rate of $350 per hour, devoted 185 hours to Loyfman\u2019s case between April 16, 2005, and January 16, 2006, and was contractually entitled to attorney fees totaling $64,750 as well as reimbursement for litigation costs totaling $2,001. He further alleged that although Loyf-man tendered $51,116, she still owed him $15,635. Less than two weeks later, the circuit court entered an agreed order on February 9, 2006, which rendered judgment in Engel\u2019s favor but stayed execution of the $15,635 judgment so long as Loyfman was adhering to an installment payment schedule.\nHowever, on March 10, 2006, December 26, 2006, and February 5, 2007, respectively, Loyfman filed a motion, amended motion, and second amended motion to vacate the agreed judgment order, arguing in part that the court never had subject matter jurisdiction over the breach of contract suit, because Engel filed his complaint prematurely.\nLoyfman\u2019s lack-of-jurisdiction argument relied on the fact that Engel filed suit within just weeks of his withdrawal and on section 508(e)(1) of the Illinois Marriage and Dissolution of Marriage Act, which provides:\n\u201c(e) Counsel may pursue an award and judgment against a former client for legal fees and costs in an independent proceeding in the following circumstances:\n(1) While a case under this Act still pends, a former counsel may pursue such an award and judgment at any time subsequent to 90 days after the entry of an order granting counsel leave to withdraw[.]\u201d 750 ILCS 5/508(e)(l) (West 2004).\nIn addition to disputing the court\u2019s jurisdiction over Engel\u2019s action, Loyfman also contended in her various motions that the settlement agreement should be vacated because she did not have the benefit of legal counsel and Engel coerced her to enter into the settlement agreement with \u201crepresentations\u201d that a judgment would jeopardize her pending purchase of a home. She believed one of the purposes of the settlement agreement was to preclude a judgment altogether. Loyfman further contended that as a layperson, she was unaware she could contest the reasonableness of the amount of fees Engel was claiming and unaware that her ex-husband could have been ordered to bear at least some of the litigation expenses due to her inability and his ability to pay them. See Kaiser v. MEPC American Properties, Inc., 164 Ill. App. 3d 978, 518 N.E.2d 424 (1987) (a contract for payment of attorney fees does not relieve counsel of his burden to establish the reasonableness of the amount requested; an appropriate fee consists of reasonable charges for reasonable services; an adequate fee petition is based on detailed records maintained during the litigation which disclose specific facts and computations and specify the services performed, by whom they were performed, the time expended and the hourly rate charged); 750 ILCS 5/508(e)(2) (West 2004) (\u201cthe former client may bring in his or her spouse as a third-party defendant\u201d). Loyfman also cited section 508(d) of the Illinois Marriage and Dissolution of Marriage Act for the proposition that a consent judgment between an attorney and his or her own client is prohibited. 750 ILCS 5/508(d) (West 2004) (\u201cA consent judgment, in favor of a current counsel of record against his or her own client *** is prohibited\u201d). Loyfman personally verified that the statements in the second amended motion were true and correct.\nAfter considering the parties\u2019 written and oral arguments, the court granted Loyfman\u2019s motion and entered the order now on appeal:\n\u201cThe Defendant\u2019s second amended motion to vacate agreed order of February 9, 2006, is granted on the sole basis that *** the 508(e)(1) requirement that [a] former attorney may pursue a judgment for legal fees at any time subsequent to 90 days after withdrawal, is jurisdictional (as to subject matter) and not procedural. The complaint for fees filed in this cause, No. 06 Ml 106381, is dismissed without prejudice to refiling under a different case number.\u201d (Emphasis in original.)\nEngel contends this order is subject to de novo review because Loyfman\u2019s second amended motion to vacate the agreed settlement order presented a question of law. We disagree. Loyfman\u2019s second amended motion to vacate the agreed settlement order presented a handful of arguments, including an argument regarding the court\u2019s jurisdiction over Engel\u2019s action, which is a question of law. Nevertheless, because Loyfman was presenting the arguments as grounds for vacating the agreed judgment, and because she filed the motion more than 30 days after the agreed judgment was entered, she was presenting a section 2 \u2014 1401 petition for relief from judgment. See 735 ILCS 5/2 \u2014 1401(e) (West 2004). A section 2 \u2014 1401 petition is directed to the circuit court\u2019s sound exercise of discretion, and the resulting decision will not be disturbed on review unless the court has abused its discretion. Thompson v. IFA, Inc., 181 Ill. App. 3d 293, 296, 536 N.E.2d 969, 971 (1989). Thus, although one of the issues addressed by the circuit court was a question of law, the court\u2019s ruling on Loyfman\u2019s motion is reviewed for an abuse of discretion.\nEngel offers two arguments for reversal. He first contends that because more than 90 days passed between the filing of his complaint on January 20, 2006, and the hearing of Loyfman\u2019s motion on May 21, 2007, the statute\u2019s 90-day waiting period was satisfied and should have been deemed a moot issue. Engel presented this \u201cmootness\u201d theory in the circuit court, and although the written order on appeal does not expressly reject it, the court impliedly rejected it by concluding the statute was controlling. We find Engel waived this contention on appeal by failing to cite and apply precedent about statutory interpretation and the concept of mootness, as mandated by the rule about the contents of appellate briefs. See 210 Ill. 2d R. 341(h)(7) (formerly Rule 341(e)(7), the rule requires an appellant to provide supporting reasoning and citation to authority and the record on appeal). Waiver aside, Engel\u2019s mootness theory is not based on any statutory language and is not persuasive. Questions of statutory interpretation require us to ascertain and give effect to the intention of the legislature as indicated by the plain language used in the statute. Haber v. Reifsteck, 359 Ill. App. 3d 867, 870, 835 N.E.2d 187, 190 (2005). The plain language of this statute requires the expiration of least \u201c90 days after the entry of an order granting counsel leave to withdraw\u201d before the former representative \u201cmay pursue *** an award and judgment [for legal fees and costs in an independent proceeding].\u201d 750 ILCS 5/508(e)(l) (West 2004). This language clearly and unequivocally prevents counsel from even \u201cpursuing]\u201d legal fees and costs within the first 90 days after the court has given leave to withdraw as counsel. The statute gives no other options. The inescapable conclusion is that Engel violated the statute by filing the action 10 days after his withdrawal as Loyfman\u2019s counsel. His proposed interpretation of the statute is contrary to its plain meaning.\nEngel\u2019s other argument relies on the circumstances surrounding entry of the agreed settlement order. He argues the principles of waiver or equitable estoppel should have prevented Loyfman from seeking to vacate the agreed judgment order, because she implicitly waived the 90-day period by entering into the agreed judgment or because equity precluded a challenge to the agreed judgment once she benefitted from its terms when Engel did not immediately pursue its execution and thereby upset her plans to buy a new home in February 2006. Waiver, however, is the intentional relinquishment of a known right (see, e.g., Sexton v. Smith, 112 Ill. 2d 187, 492 N.E.2d 1284 (1986)), and Loyfman, an unrepresented layperson, alleged she was ignorant of her legal rights. She indicated she was unaware of the statute\u2019s 90-day waiting period when attorney Engel \u201cpressured and coerced\u201d her into the hasty agreement \u201cso as not to risk having a judgment placed against her\u201d when she was about to close on a real estate transaction after her divorce. Furthermore, her allegation that she entered into the agreement in order to avoid a judgment, when the agreement actually required the imposition of a judgment, suggests Loyfman did not understand its terms. Generally, courts do not vacate consent orders, but Loyfman\u2019s allegations implicate the principle that exceptions will be made upon a showing of coercion in the making of the agreement, gross disparity in the position or capacity of the parties, or errors of law apparent on the face of the record. Thompson, 181 Ill. App. 3d at 296, 536 N.E.2d at 971.\nEven so, the order on appeal indicates the circumstances that led to entry of the agreed settlement order were never fully explored in the circuit court, due to the court\u2019s erroneous belief that section 508(e)(1) deprived it of authority over Engel\u2019s claim, which necessitated the granting of Loyfman\u2019s section 2 \u2014 1401 petition and the dismissal of Engel\u2019s pleading. 750 ILCS 5/508(e) (West 2004); 735 ILCS 5/2 \u2014 1401 (West 2004). The court demonstrated its misapprehension of the law by stating in the written order on appeal that section 508(e)(1) (750 ILCS 5/508(e) (West 2004)) imposed a 90-day waiting period which was a \u201cjurisdictional\u201d impediment to former counsel\u2019s right to sue instead of a mere \u201cprocedural\u201d limitation. (Emphasis in original.) The court was indicating the statute\u2019s 90-day waiting period is an unwaiveable condition precedent for exercising subject matter jurisdiction, instead of a procedural limitation which can be waived. The court was apparently relying on the analysis in a case both Loyfman and Engel cited, In re Marriage of Fields, 288 Ill. App. 3d 1053, 681 N.E.2d 166 (1997), which concerned a statutory waiting period for spouses to live apart before seeking a divorce. However, the supreme court discredited this analytical approach in Belleville Toyota and indicated that after the 1964 amendments to the Illinois Constitution, this type of analysis is properly \u201cconfined to the area of administrative review.\u201d Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 338, 770 N.E.2d 177, 186 (2002).\nPrior to 1964, the circuit courts\u2019 \u201coriginal jurisdiction\u201d extended only to causes of action that were based on equitable principles or the common law. Belleville Toyota, 199 Ill. 2d at 336, 770 N.E.2d at 186, citing Ill. Const. 1870, art. VI, \u00a712. The right to divorce did not exist at common law and is \u201centirely statutory in origin and nature.\u201d In re Marriage of Fields, 288 Ill. App. 3d at 1058, 681 N.E.2d at 170. Under the pre-1964 system, if the legislature created a statutory cause of action, the legislature was dictating the terms by which the court obtained jurisdiction. Belleville Toyota, 199 Ill. 2d at 338, 770 N.E.2d at 186. A litigant\u2019s failure to conform strictly to all of the statutory requirements meant the court lacked authority to hear and determine the statute-based action. Belleville Toyota, 199 Ill. 2d at 338, 770 N.E.2d at 186. A limitations period in a statutory cause of action was considered more than \u201can ordinary statute of limitations; it [was] a condition of the liability itself and [went] to the subject matter jurisdiction of the court.\u201d Belleville Toyota, 199 Ill. 2d at 338, 770 N.E.2d at 186. However, the legislature amended the judicial article of the 1870 constitution as of 1964 and \u201cradically changed the legislature\u2019s role in determining the jurisdiction of the circuit court.\u201d Belleville Toyota, 199 Ill. 2d at 337, 770 N.E.2d at 186. \u201cUnder the new judicial article, the circuit court enjoyed \u2018original jurisdiction of all justiciable matters, and such powers of review of administrative action as may be provided by law.\u2019 \u201d (Emphasis added.) Belleville Toyota, 199 Ill. 2d at 337, 770 N.E.2d at 186, quoting Ill. Const. 1870, art. VI, \u00a79 (amended 1964). \u201cThus, the legislature\u2019s power to define the circuit court\u2019s [subject matter] jurisdiction was expressly limited to the area of administrative review.\u201d Belleville Toyota, 199 Ill. 2d at 337, 770 N.E.2d at 186. We are currently subject to the 1970 constitution, which retained this limitation. Belleville Toyota, 199 Ill. 2d at 337, 770 N.E.2d at 186, citing Ill. Const. 1970, art. VI, \u00a79. Accordingly, the \u201cprecedential value of case law which examines a court\u2019s jurisdiction under the pre-1964 judicial system is necessarily limited to the constitutional context in which those cases arose.\u201d Belleville Toyota, 199 Ill. 2d at 337, 770 N.E.2d at 186.\nThe supreme court specifically identified In re Marriage of Fields, 288 Ill. App. 3d 1053, 1057, 681 N.E.2d 166 (1997), as one of a handful of cases decided after 1964 which continues to state \u201cthat the legislature, in defining a justiciable matter, may impose \u2018conditions precedent\u2019 to the court\u2019s exercise of jurisdiction that cannot be waived.\u201d Belleville Toyota, 199 Ill. 2d at 335, 770 N.E.2d at 185. The supreme court continued:\n\u201cWe necessarily reject this view because it is contrary to *** [our current constitution]. Characterizing the requirements of a statutory cause of action as nonwaivable conditions precedent to a court\u2019s exercise of jurisdiction is merely another way of saying that the circuit court may only exercise that jurisdiction which the legislature allows. We reiterate, however, that the jurisdiction of the circuit court is conferred by the constitution, not the legislature. Only in the area of administrative review is the court\u2019s power to adjudicate controlled by the legislature.\u201d Belleville Toyota, 199 Ill. 2d at 336, 770 N.E.2d at 185.\nThus, post-1964 cases such as Fields, which use pre-1964 terminology and analysis outside the area of administrative review, are \u201ccreating confusion and imprecision in the case law.\u201d Belleville Toyota, 199 Ill. 2d at 338, 770 N.E.2d at 186.\nThe circuit court\u2019s reliance on an outdated rationale for granting Loyfman\u2019s second motion to vacate the agreed settlement order and for sua sponte dismissing Engel\u2019s action was a clear misapprehension of the law and a manifest abuse of discretion. The court did in fact have subject matter jurisdiction over Loyfman and Engel\u2019s dispute and could have resolved the substantive arguments that were presented. Belleville Toyota, 199 Ill. 2d at 337, 770 N.E.2d at 186. Accordingly, this case must be reversed and remanded to the circuit court for further proceedings as to Loyfman\u2019s motion. Robinson v. Ryan, 372 Ill. App. 3d 167, 173, 865 N.E.2d 400, 406 (2007) (a trial court abuses its discretion in a section 2 \u2014 1401 proceeding where it fails to apply the proper legal criteria). See also Sidwell v. Sidwell, 75 Ill. App. 2d 133, 142, 220 N.E.2d 479, 484 (1966) (reversing a discretionary ruling where the court misapprehended the controlling rule of law); Dallas v. Granite City Steel Co., 64 Ill. App. 2d 409, 420, 211 N.E.2d 907, 912 (1965) (indicating a discretionary ruling should be reversed where there has been an abuse of discretion or the court manifests a misapprehension of the law).\nA section 2 \u2014 1401 petition should be granted where the petitioner has pled and established a meritorious defense to the plaintiffs action as well as due diligence in presenting the defense and in filing the section 2 \u2014 1401 petition for relief. Thompson, 181 Ill. App. 3d at 298-99, 536 N.E.2d at 970. Loyfman\u2019s due diligence has never been in dispute. Loyfman filed her original motion to vacate within 30 days of entry of the agreed settlement order, and then filed her first and second amended versions in response to Engel\u2019s challenges to its sufficiency. In the event the court determines Loyfman\u2019s allegations of a meritorious defense to Engel\u2019s action were sufficiently controverted by Engel\u2019s written response, the court should resolve the issue by conducting an evidentiary hearing as to the circumstances surrounding the agreed settlement order.\nReversed and remanded.\nMcNULTY and O\u2019MALLEY, JJ., concur.\nThe statute was amended effective July 7, 2006, to change the phrase \u201cWhile a case under this Act still pends\u201d to \u201cWhile a case under this Act is still pending.\u201d Pub. Act 94 \u2014 1016, eff. July 7, 2006.", "type": "majority", "author": "PRESIDING JUSTICE McBRIDE" } ], "attorneys": [ "Jerome Marvin Kaplan, of Chicago, for appellant.", "Lawrence S. Starkopf, of Starkopf & Silverman, of Chicago, for appellee." ], "corrections": "", "head_matter": "SHELDON ENGEL, Plaintiff-Appellant, v. MARSHA LOYFMAN, Defendant-Appellee.\nFirst District (6th Division)\nNo. 1\u201407\u20141468\nOpinion filed June 6, 2008.\nJerome Marvin Kaplan, of Chicago, for appellant.\nLawrence S. Starkopf, of Starkopf & Silverman, of Chicago, for appellee." }, "file_name": "0191-01", "first_page_order": 207, "last_page_order": 214 }