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Longo v. Globe Auto Recycling, Inc.

Case Date: 01/22/2001
Court: 1st District Appellate
Docket No: 1-99-3380 Rel

No. 1-99-3380

FIRST DIVISION
January 22, 2001

JOSEPH A. LONGO,

          Plaintiff-Appoellant,

                  v.

GLOBE AUTO RECYCLING, INC., and
WILLIAM ZUCCARO,

          Defendants-Appellees.

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)		 Appeal from the
Circuit Court of
Cook County.

No. 98 M1 117557



Honorable
Michael F. Sheehan, Jr.,
Judge Presiding.


JUSTICE COHEN delivered the opinion of the court:

Plaintiff Joseph Longo filed a breach of contract action against defendants GlobeAuto Recycling, Inc. (Globe), and William Zuccaro (Zuccaro) seeking to recoverattorney fees. Following a verdict in plaintiff's favor, collateral proceedingswere held. On October 8, 1998, the trial court granted plaintiff's motion forcontractual attorney fees and also entered a contempt judgment against defendantsfor failure to pay a pretrial sanction. On May 19, 1999, a different trial judgevacated both of the trial court's collateral orders, finding that they were voidunder principles of res judicata. The trial court also levied a $1,618 sanctionagainst plaintiff on the ground that the October 8, 1998, orders were sought inbad faith. The issue in this appeal is whether the court erred in determiningthat the October 8, 1998, orders were void and further determining that plaintiffhad acted in bad faith when seeking the attorney fees that were awarded. For thereasons set forth below, we reverse.

I. BACKGROUND

On March 31, 1998, plaintiff Joseph Longo filed a five-count complaint againstdefendants Globe and Zuccaro alleging breach of contract in count I, accountstated in count II, quantum meruit in count III, unjust enrichment in count IV,and fraud in count V. Plaintiff had entered into a contract for legalrepresentation with Globe in December 1997, through its agent William Zuccaro. Plaintiff alleged that defendants owed $9,041.25 in outstanding attorney fees andcosts for plaintiff's representation of Globe in various legal matters betweenDecember 12, 1997, and February 16, 1998. In his prayer for relief, plaintiffalso sought an award of all present and future attorney fees incurred in theprosecution of the breach of contract action.

On July 8, 1998, the trial court entered an order of default against defendantGlobe for failure to answer or otherwise plead. Defendant Zuccaro was grantedleave to file an answer. The court set the matter for September 2, 1998, for adamages hearing on plaintiff's claims against Globe and a bench trial onplaintiff's claims against defendant Zuccaro. On August 24, 1998, the trial courtdenied Globe's motion to vacate the order of default.

On September 1, 1998, the trial court granted Globe's motion to reconsider thedenial of its motion to vacate the order of default. The court's September 1order stated that its vacatur of the default order was conditioned upon Globe's payment of $1,550 in attorneyfees to plaintiff by September 8, 1998. The order further specified that attorneyfees granted therein served as a sanction and were "not to act as a substitute toMr. Longo seeking further attorney fees for his time in this case."

On September 2, 1998, following a bench trial, Judge Gilbert J. Grossi entered ajudgment against both defendants Globe and Zuccaro in the amount of $8,689. Thetrial court's order stated that its judgment included fees for attorney Longo'sservices through January 23, 1998. The trial court's September 2 order did notaddress plaintiff's claim for attorney fees incurred in prosecution of the presentbreach of contract action.

On September 24, 1998, plaintiff filed a "motion for contractual attorney fees,costs and interest." In this motion, plaintiff alleged that a fee-shifting clausein his attorney-client agreement required defendants to pay all costs associatedwith plaintiff's collection efforts and 1