Illinois Official Reports 

Appellate Court

Forest Preserve District v. Continental Community Bank & Trust Co.,

2017 IL App (1st) 170680

Appellate Court 

Caption

THE FOREST PRESERVE DISTRICT OF COOK COUNTY, 

ILLINOIS, a Body Corporate and Politic of the State of Illinois,

Plaintiff and Respondent-Appellant and Cross-Appellee, v. 

CONTINENTAL COMMUNITY BANK AND TRUST COMPANY, 

an Illinois Corporation, as Successor to Maywood-Proviso State 

Bank, as Trustee Under Trust Agreement Dated November 1, 1983, 

Known as Trust No. 6173; JACK RIVO; and UNKNOWN OTHERS,

Defendants (Greg Bedell, Fee Petitioner-Appellee and

Cross-Appellant).–THE FOREST PRESERVE DISTRICT OF

COOK COUNTY, ILLINOIS, a Body Corporate and Politic of the 

State of Illinois, Plaintiff and Respondent-Appellee, v. 

CONTINENTAL COMMUNITY BANK AND TRUST COMPANY, 

an Illinois Corporation, as Successor to Maywood-Proviso State 

Bank, as Trustee Under Trust Agreement Dated November 1, 1983, 

Known as Trust No. 6173; JACK RIVO; and UNKNOWN OTHERS,

Defendants (Greg Bedell, Fee Petitioner-Appellant).

District & No. First District, Fifth Division 

Docket Nos. 1-17-0680, 1-17-0871 cons.

Filed December 22, 2017

Decision Under 

Review

Appeal from the Circuit Court of Cook County, Nos. 15-L-50227, 

00-L-50726; the Hon. Kay M. Hanlon and the Hon. Eileen O’Neill 

Burke, Judges, presiding.
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Judgment Affirmed in part and vacated in part.

Cause remanded with directions.

Counsel on

Appeal

Neal & Leroy, LLC (Michael D. Leroy and Richard F. Friedman, of 

counsel), and Dennis White, of Forest Preserve District of Cook 

County, both of Chicago, for appellant.

Knabe Kroning & Bedell, of Chicago (Gregory A. Bedell, of counsel), 

for appellee.

Panel JUSTICE ROCHFORD delivered the judgment of the court, with 

opinion.

Presiding Justice Reyes and Justice Lampkin concurred in the 

judgment and opinion.

 OPINION 

¶ 1 The Forest Preserve District of Cook County, Illinois, a body corporate and politic of the 

State of Illinois (the District), originally filed this suit seeking to utilize its power of eminent 

domain to acquire certain property held in trust by defendant, Continental Community Bank 

and Trust Company, an Illinois corporation, as successor to Maywood-Proviso State Bank, as 

trustee under a trust agreement dated November 1, 1983, known as trust No. 6173 (Trustee), 

for the benefit of defendant, Jack Rivo (collectively referred to as Mr. Rivo, as he is both a 

named defendant and the beneficiary of the trust). 

¶ 2 In its current appeal (No. 1-17-0680), the District seeks (1) relief from a judgment for 

attorney fees and costs awarded to Mr. Rivo’s former attorney, fee petitioner Greg Bedell, and 

(2) reversal of the circuit court’s orders denying the District leave to file a complaint for 

interpleader and denying its motion to declare invalid an attorney lien asserted by Mr. Bedell. 

In his cross-appeal, Mr. Bedell seeks reversal of the circuit court’s denial of his petition to 

adjudicate and enforce his attorney’s lien. Finally, in Mr. Bedell’s separate appeal (No. 

1-17-0871), which he describes as a “secondary, alternative remedy” should this court rule in 

the District’s favor on its appeal, Mr. Bedell again seeks reversal of the circuit court’s denial of 

his petition to adjudicate and enforce his attorney’s lien. 

¶ 3 With respect to the District’s appeal, while we affirm the circuit court’s decision to grant 

Mr. Bedell an award for attorney fees and costs, we vacate that part of the judgment 

determining the amount of fees and costs and remand for a recalculation of the proper amount 

of that award under a theory of quantum meruit. In light of our resolution of this issue, all of the 

remaining issues raised by the parties on appeal are rendered moot. 
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¶ 4 I. BACKGROUND 

¶ 5 This case has been the subject of many prior appeals to this court, 

yielding—inter alia—decisions affirming the circuit court’s order granting summary 

judgment in favor of Mr. Rivo with respect to the condemnation complaint, as the District 

never passed a valid ordinance authorizing the acquisition of the property in question, and a 

decision dismissing for lack of jurisdiction a prior appeal from the circuit court’s award of 

attorney fees. See Forest Preserve District v. Continental Community Bank & Trust Co., No. 

1-12-2211 (Sept. 6, 2012) (unpublished summary order under Illinois Supreme Court Rule 

23(c)) (appeal dismissed for lack of jurisdiction); Forest Preserve District v. Continental 

Community Bank & Trust Co., 2014 IL App (1st) 131652-U (appeal dismissed for lack of 

jurisdiction); Forest Preserve District v. Continental Community Bank & Trust Co., 2016 IL 

App (1st) 152145-U (summary judgment in favor of Mr. Rivo on condemnation complaint 

affirmed); Forest Preserve District v. Continental Community Bank & Trust Co., 2017 IL App 

(1st) 153512-U (appeal from attorney fee award dismissed for lack of jurisdiction). The orders 

entered by this court in those prior appeals, including the factual background set out therein, 

are incorporated herein by reference. Therefore, we restate here only those facts necessary to 

our resolution of the appeals currently pending before us. 

¶ 6 This dispute dates to 2000, when the District began filing a number of eminent domain 

actions, including this suit in which the District sought to acquire 12.5 acres that were held by 

the Trustee for the benefit of Mr. Rivo. In 2003, Mr. Rivo agreed to give the District fee simple 

title to that property in exchange for $1.4 million, the circuit court entered an agreed judgment 

order to that effect on March 6, 2003, and Mr. Rivo subsequently received the funds, less 

$50,000 that was retained in an escrow account and was to be paid when Mr. Rivo finally 

vacated the property. 

¶ 7 Other property owners who had not entered into settlement agreements opposed the 

condemnation of their properties. They argued, successfully, that the District never had legal 

authority to condemn any of the relevant properties because the board had not properly 

adopted the necessary ordinance. See, e.g., Forest Preserve District v. First National Bank of 

Evergreen Park, No. 1-04-1536 (2008) (unpublished order under Illinois Supreme Court Rule 

23). On October 27, 2003—in light of the success these other property owners had in opposing 

condemnation of their properties—Mr. Rivo petitioned for relief from the agreed judgment 

order entered in this matter, pursuant to section 2-1401 of the Code of Civil Procedure (Code). 

735 ILCS 5/2-1401 (West 2004). 

¶ 8 Mr. Rivo was represented by Mr. Bedell in the section 2-1401 proceeding, pursuant to a 

retainer agreement executed in October 2003. With respect to the scope of Mr. Bedell’s 

representation, the retainer agreement provided that Mr. Bedell’s representation of Mr. Rivo 

would be “limited to seeking post judgment relief through the filing and prosecuting [of] a 

petition to vacate the settlement and judgment entered against you under 735 ILCS 5/2-1401.” 

With respect to Mr. Bedell’s compensation, the retainer agreement provided that Mr. Bedell 

would be paid “a non-refundable $1,200.00 retainer and that in the event of recovery, whether 

by settlement or trial, I will be paid 20% of the amount recovered. (The $1,200 will be 

deducted from the 20% contingency fee in the event of recovery.) If there is no recovery, you 

owe me no more fee than the retainer you paid.” Mr. Rivo was also responsible for the payment 

of all “costs associated with this matter.” On July 22, 2009, a written notice of attorney’s lien 
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detailing the contingency provision contained in the retainer agreement was served by hand 

delivery upon the District’s general counsel. 

¶ 9 The parties ultimately filed cross-motions for summary judgment on the section 2-1401 

petition. In an order entered on February 15, 2012, the circuit court granted summary judgment 

in favor of Mr. Rivo, denied the District’s cross-motion, vacated the agreed judgment order 

previously entered on March 6, 2003, and reinstated the condemnation case. The District 

attempted to appeal from this decision, but the appeal was dismissed for lack of appellate 

jurisdiction. Forest Preserve District v. Continental Community Bank & Trust Co., No. 

1-12-2211 (Sept. 6, 2012) (unpublished summary order under Illinois Supreme Court Rule 

23(c)). 

¶ 10 Thereafter, on October 10, 2012, Mr. Bedell filed both a petition for attorney fees and 

costs, as well as a motion to withdraw as Mr. Rivo’s attorney. In the petition for fees, Mr. 

Bedell contended that he had spent nearly 300 hours representing Mr. Rivo in the section 

2-1401 proceedings, his usual and customary rate during that time ranged between $250 and 

$350 per hour, and $1546.50 in costs had been incurred. Mr. Bedell therefore sought an award 

of $93,116.50 in fees and costs. The fee petition did not reference or rely on the contingency 

fee agreement contained in the retainer agreement in any way. 

¶ 11 In the motion to withdraw, Mr. Bedell asserted that—in light of the summary judgment 

granted in favor of Mr. Rivo on the section 2-1401 petition—he had satisfied his obligations to 

Mr. Rivo under the original retainer agreement. Mr. Bedell also contended that, while he had 

consulted with Mr. Rivo regarding the prosecution of additional damages claims against the 

District, Mr. Rivo was unwilling to follow Mr. Bedell’s advice and there had been a 

breakdown in communication between attorney and client. Noting these facts and his interest 

in the outcome of his fees petition, Mr. Bedell asked the circuit court for leave to withdraw as 

Mr. Rivo’s attorney and leave to file an appearance on his own behalf with respect to the fee 

petition. Mr. Bedell’s motion to withdraw was granted on October 30, 2012.

¶ 12 Mr. Rivo subsequently obtained new counsel to represent him in prosecuting various 

claims against the District. Those claims included counterclaims stemming from the 

condemnation proceedings, including allegations that Mr. Rivo was entitled to millions of 

dollars in damages and to reacquire title from the District. Mr. Rivo’s new counsel also filed a 

motion for summary judgment on the District’s complaint for condemnation.

¶ 13 In response, the District filed a combined motion which sought to (1) vacate the prior 

ruling granting Mr. Rivo’s section 2-1401 petition, (2) strike Mr. Rivo’s counterclaims, and (3) 

deny Mr. Rivo’s motion for summary judgment in this condemnation action. 

¶ 14 These motions were heard in 2013. In a three-part order entered on April 18, 2013, the 

circuit court denied the District’s combined motion to vacate the prior ruling granting Mr. 

Rivo’s section 2-1401 petition and to strike Mr. Rivo’s counterclaims and granted Mr. Rivo’s 

motion for summary judgment on the condemnation complaint. 

¶ 15 The District filed an appeal from the denial of its motion to vacate the prior ruling granting 

the section 2-1401 petition. However, this court once again dismissed the District’s appeal for 

lack of appellate jurisdiction. Forest Preserve District, 2014 IL App (1st) 131652-U, ¶ 10. 

¶ 16 Upon remand, Mr. Rivo filed a motion seeking a finding of enforceability and appealability 

with respect to the summary judgment ruling, pursuant to Illinois Supreme Court Rule 304(a) 

(eff. Feb. 26, 2010), while the District filed a motion seeking reconsideration of the grant of 
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summary judgment in favor of Mr. Rivo on its condemnation complaint. In an order entered on 

June 26, 2015, the circuit court denied the District’s motion and granted Mr. Rivo’s motion, 

finding that there was no just reason to delay appeal of “[t]he 4-8-13 order granting summary 

judgment.” The District appealed, and this court concluded that the circuit court properly 

granted summary judgment in favor of Mr. Rivo on the condemnation complaint. Forest 

Preserve District v. Continental Community Bank & Trust Co., 2016 IL App (1st) 152145-U. 

The District filed a petition for leave to appeal that decision with our supreme court which, 

pursuant to a settlement agreement discussed below, was subsequently withdrawn on April 11, 

2017. 

¶ 17 Meanwhile, while Mr. Bedell’s original petition for fees was stricken for failure to attach 

and account for the retainer agreement, he was granted leave to file an amended petition. The 

operative amended fee petition was filed on September 15, 2015. Therein, Mr. Bedell 

specifically relied upon section 10-5-70(a) of the Eminent Domain Act (Act) (735 ILCS 

30/10-5-70(a) (West 2014)), which provides for the award of fees and costs where it is 

determined that a plaintiff “cannot acquire the property by condemnation” and the defendant 

incurs such fees and costs “in defense of the complaint.” He also primarily relied upon the 

retainer agreement to support a claim for fees and costs. According to Mr. Bedell’s amended 

petition, the retainer agreement entitled him to a fee of 20% of any amount recovered. Further, 

Mr. Bedell asserted: 

“When this Court granted the 2-1401 petition and vacated the order awarding the 

Defendant’s property to the District, Bedell recovered for the Defendant his property. 

As a basis of the fees to be awarded under the Act, the Court should award the fee due 

from Defendant to Bedell under the fee agreement: using the conservative value of the 

Defendant’s property, which the District determined in 2003 to be $1,400,000, Bedell 

is entitled to a fee of $280,000 (minus $1,200 already paid as retainer). Costs of 

$1,546.50 should also be awarded under the fee agreement.”

In the alternative, the amended petition sought an award of fees and costs, to be calculated on 

an hourly basis as it was in the original fee petition, “if [the] Court determines that Bedell 

should not be paid in accordance with his fee agreement.”

¶ 18 On September 30, 2015, the District filed a motion to dismiss the amended fee petition. 

Therein, the District asserted—inter alia—that Mr. Bedell was not entitled an award of fees as 

requested in the fee petition because (1) he was not entitled to any attorney fees under the 

language of the Act, as he only represented Mr. Rivo in the section 2-1401 petition, (2) his 

claim for a fee based upon the contingency fee provision in the retainer agreement was 

improper where Mr. Bedell was a terminated attorney and could therefore only recover based 

upon a theory of quantum meruit, and (3) even if the contingency fee provision was relevant to 

the calculation of any fee award, that provision was not yet triggered because title to the 

property had never been returned to Mr. Rivo, thus there had not been any “recovery.”

¶ 19 In a written order entered on November 6, 2015, the circuit court denied the District’s 

motion to dismiss and granted Mr. Bedell’s amended petition for fees. The order specifically 

held that “judgment is entered against [the District] in the amount of $280,000 for attorneys 

fees and $1,546.50 in costs in favor of Gregory A. Bedell.” A judgment for fees was also 

entered in favor of Mr. Rivo’s new attorneys under section 10-5-70(a) of the Act. While the 

District previously appealed from the judgment entered in favor of Mr. Bedell, that appeal was 
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dismissed for lack of appellate jurisdiction. Forest Preserve District v. Continental Community 

Bank & Trust Co., 2017 IL App (1st) 153512-U. 

¶ 20 Meanwhile, this matter continued in the circuit court with respect to the counterclaims filed 

by Mr. Rivo’s new counsel. In open court on December 9, 2016, the parties spread of record 

the general terms of a settlement agreement that had been reached with respect to the 

counterclaims. The agreement was subsequently reduced to a written settlement agreement 

executed on February 6, 2017. As relevant to this appeal, and subject to the approval of the 

District’s board, the written settlement agreement provided that:

 (1) The parties intended to settle all claims between them, with the specific 

exception of the judgment entered in favor of Mr. Bedell for attorney fees and costs, 

without any admission of liability. 

(2) As full settlement of Mr. Rivo’s counterclaims, the District would pay Mr. Rivo 

$1,650,000, plus whatever funds remained in the escrow account originally established 

in connection with the original agreed judgment order entered in 2003, subject to 

certain conditions that were contained in paragraph 17 of the settlement agreement 

(discussed below). 

 (3) The settlement check would be made payable to Mr. Rivo and his current 

attorneys. 

 (4) This payment would be paid as “additional just compensation” for the “taking” 

of the property, with the settlement agreement acknowledging that summary judgment 

on the District’s condemnation complaint had been previously granted in Mr. Rivo’s 

favor and upheld on appeal. Upon payment Mr. Rivo would execute a quit claim deed 

conveying the property to the District. 

 (5) Specifically including the judgment previously entered in favor of Mr. Rivo’s 

new attorneys and specifically excluding the judgment previously entered in favor of 

Mr. Bedell, Mr. Rivo and the District waived any claims against each other and would 

bear their own fees and costs. 

(6) The parties would move to vacate the judgment entered in favor of Mr. Rivo’s 

new attorneys, and agreed to the entry of a “Stipulated Order of Dismissal with 

Prejudice” with respect to the instant case, with the exception of any issues regarding 

the judgment entered in favor of Mr. Bedell. The District would also move to dismiss 

its petition for leave to appeal from this court’s prior order affirming summary 

judgment in favor of Mr. Rivo on the condemnation complaint filed by the District. 

¶ 21 In addition, as noted above, the settlement agreement contained further relevant provisions 

in paragraph 17, which provided: 

“Upon approval of this Agreement by the FPD Board, and in the event that a final 

judgment is rendered in favor of Bedell and against the FPD for Bedell’s attorneys fees 

in the instant matter, such judgment and interest shall be paid with the funds on deposit 

in the Escrow Account, as follows: If such judgment equals or exceeds the amount on 

deposit in the Escrow Account, the funds on deposit shall be used first (prior to FPD 

funds) to satisfy the judgment. If the amount on deposit in the Escrow Account exceeds 

the judgment for fees, the judgment for fees shall be paid from the Escrow Account and 

any excess remaining on deposit in the Escrow Account after payment of the judgment 
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for fees shall be paid by check to [Mr. Rivo and his current attorneys] as the remainder 

of the Settlement Award.” 

¶ 22 In an affidavit filed in connection with the settlement agreement, it was averred that the 

escrow account contained a total balance of $61,813.41 as of February 10, 2017. 

¶ 23 On February 7, 2017, the District’s board approved the settlement agreement negotiated by 

the parties. Pursuant to that agreement, the court entered a “Stipulated Order of Dismissal with 

Prejudice” on February 10, 2017, which in relevant part provided (1) this case was dismissed 

on the merits and with prejudice, (2) the award of attorney fees entered in favor of Mr. Rivo’s 

new attorneys was vacated, (3) with the exception of the judgment entered in favor of Mr. 

Bedell, the parties would bear their own costs and fees, (4) the court made a finding that there 

was no just reason to delay the enforcement or appeal of the November 6, 2015, judgment 

entered in favor of Mr. Bedell, and (5) the circuit court retained jurisdiction to enforce the 

parties’ settlement agreement.

¶ 24 However, in the days leading up to the entry of the dismissal order, the District filed a 

motion to declare Mr. Bedell’s attorney’s lien invalid, in which the District contended that the 

lien had not been properly served and, even if it was, such a lien was not enforceable against a 

public body such as the District. The District also filed a counterclaim for interpleader, in 

which the District asserted that, while Mr. Rivo claimed he was owed the entire settlement 

award, Mr. Bedell asserted that he had a contingency lien on that award pursuant to the 

attorney’s lien he had previously served on the District. After further contending that it was a 

neutral, disinterested stakeholder with respect to the apportionment of the settlement award, 

the District asked to be allowed to tender the payment of the settlement award to the court and 

be dismissed from any further liability with respect to the settlement award. 

¶ 25 In response, Mr. Rivo filed both a motion to enforce the settlement agreement and a motion 

to dismiss the District’s interpleader counterclaim. With respect to the former, Mr. Rivo 

asserted that the District’s attempt to file a counterclaim for interpleader and deposit the 

settlement award with the court constituted an anticipatory breach of the settlement agreement. 

With respect to the motion to dismiss, Mr. Rivo contended—inter alia—that the District was 

not a neutral stakeholder in light of the obligations it undertook with respect to Mr. Bedell’s 

fees in the settlement agreement and that the District’s proposed course of action would in fact 

violate the terms of the settlement agreement. 

¶ 26 On February 21, 2017, the circuit court (1) granted the motion to dismiss the District’s 

counterclaim for interpleader, (2) granted Mr. Rivo’s motion to enforce the settlement 

agreement, and (3) denied the motion to declare Mr. Bedell’s lien invalid. In the course of 

making these rulings, the circuit court concluded—inter alia—that Mr. Bedell’s lien would not 

attach to the money paid to Mr. Rivo under the settlement agreement. Mr. Bedell filed a motion 

for clarification or reconsideration as to that finding, but that motion was denied. 

¶ 27 Thereafter, Mr. Bedell filed a petition to adjudicate and enforce his attorney’s lien on 

March 2, 2017. Therein, he asserted that his efforts “recovered” the property for Mr. Rivo, that 

this recovery could be directly traceable to the $1.65 million settlement award the District was 

to pay Mr. Rivo, and that Mr. Bedell should therefore have a lien on that award for the payment 

of his contingency fee in excess of $280,000. After concluding that title to the property was 

never actually returned to Mr. Rivo, the circuit court essentially concluded that Mr. Bedell did 

not actually recover anything for Mr. Rivo such that Mr. Bedell could claim a lien on the 

settlement award pursuant to the attorney’s lien.
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¶ 28 As noted above, in its current appeal (No. 1-17-0680), the District seeks (1) relief from a 

judgment for attorney fees and costs originally awarded to Mr. Bedell on November 6, 2015, 

and (2) reversal of the circuit court’s orders denying the District leave to file a counterclaim for 

interpleader and denying its motion to declare the attorney lien asserted by Mr. Bedell invalid. 

In his cross-appeal, Mr. Bedell seeks reversal of the circuit court’s denial of his petition to 

adjudicate and enforce his attorney’s lien against the settlement award. Finally, in Mr. Bedell’s 

separate appeal (No. 1-17-0871), Mr. Bedell again seeks reversal of the circuit court’s denial of 

his petition to adjudicate and enforce his attorney’s lien, with the appeal having been filed in 

the alternative to the cross-appeal should this court view the matters “are more properly 

considered as a separate appeal.” In an order entered by this court on May 8, 2017, these 

appeals were consolidated. 

¶ 29 II. ANALYSIS 

¶ 30 On appeal, the parties present a host of arguments supporting their respective positions on 

the many issues raised in these consolidated appeals. However, with respect to the District’s 

appeal, while we affirm the circuit court’s decision to award Mr. Bedell attorney fees and costs 

under section 10-5-70(a) of the Act, we vacate the resulting judgment only as to the amount of 

the award and remand for a recalculation of the proper amount of that award under a theory of 

quantum meruit. This conclusion proves to be dispositive of these appeals as, in light of our 

resolution of this issue, all of the remaining issues raised by the parties on appeal are rendered 

moot. 

¶ 31 As our supreme court has long recognized, Illinois follows the “American rule,” which 

prohibits prevailing parties from recovering their attorney fees from the losing party absent an 

express statutory or contractual provision. Sandholm v. Kuecker, 2012 IL 111443, ¶ 64. 

Accordingly, statutes or contracts that allow for such fees are in derogation of the common law 

and must be strictly construed. Id.; Powers v. Rockford Stop-N-Go, Inc., 326 Ill. App. 3d 511, 

515 (2001). “That is, we construe the fee-shifting provision ‘to mean nothing more—but also 

nothing less—than the letter of the text.’ ” Bright Horizons Children’s Centers, LLC v. 

Riverway Midwest II, LLC, 403 Ill. App. 3d 234, 255 (2010) (quoting Erlenbush v. Largent, 

353 Ill. App. 3d 949, 952 (2004)). Construing a fee-shifting statute is an exercise in statutory 

construction. The rules applicable to this task are well-established and were recently outlined 

in Hendricks v. Board of Trustees of the Police Pension Fund, 2015 IL App (3d) 140858, ¶ 14: 

“The fundamental rule of statutory interpretation is to ascertain and give effect to 

the intent of the legislature. [Citation.] The most reliable indicator of that intent is the 

language of the statute itself. [Citation.] In determining the plain meaning of statutory 

language, a court will consider the statute in its entirety, the subject the statute 

addresses, and the apparent intent of the legislature in enacting the statute. [Citations.] 

If the statutory language is clear and unambiguous, it must be applied as written, 

without resorting to further aids of statutory interpretation. [Citation.] A court may not 

depart from the plain language of the statute and read into it exceptions, limitations, or 

conditions that are not consistent with the express legislative intent.”

¶ 32 Thus, it is well recognized that whether a party may recover attorney fees and costs 

pursuant to a specific statutory provision is a question of law. Grate v. Grzetich, 373 Ill. App. 

3d 228, 231 (2007). The circuit court’s resolution of such a question is therefore subject to 

de novo review. Id. However, the circuit court’s application of such statutory language to the 
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facts of a particular case is reviewed for an abuse of discretion. See Peleton, Inc. v. McGivern’s 

Inc., 375 Ill. App. 3d 222, 226 (2007). An abuse of discretion occurs when no reasonable 

person could take the view adopted by the circuit court. Fennell v. Illinois Central R.R. Co., 

2012 IL 113812, ¶ 21. Thus, whether the court has authority to grant attorney fees is a question 

of law we review de novo, whereas a court’s decision to as to whether to award authorized fees 

is reviewed for an abuse of discretion. Spencer v. Di Cola, 2014 IL App (1st) 121585, ¶ 35.

¶ 33 In light of the above, we first address the District’s contention that section 10-5-70(a) of the 

Act does not grant the circuit court authority to award attorney fees and costs for the work Mr. 

Bedell did on Mr. Rivo’s behalf. The relevant statutory language provides that, with respect to 

a condemnation complaint, “if the final judgment is that the plaintiff cannot acquire the 

property by condemnation, the court shall, upon the application of the defendants or any of 

them, enter an order in the action for the payment by the plaintiff of all costs, expenses, and 

reasonable attorney fees paid or incurred by the defendant or defendants in defense of the 

complaint, as upon the hearing of the application shall be right and just, and also for the 

payment of the taxable costs.” 735 ILCS 30/10-5-70(a) (West 2014). 

¶ 34 The District specifically contends that this statutory language clearly authorizes an award 

of fees and costs only by the circuit court presiding over a condemnation complaint, only where 

the final judgment entered by that court concludes that the plaintiff cannot acquire the property 

by condemnation, and then only for fees and costs actually paid or incurred by a condemnation 

defendant for actions taken both in defense of the condemnation complaint and within the 

condemnation proceeding itself. Noting that Mr. Bedell only performed work on Mr. Rivo’s 

behalf in the context of the section 2-1401 proceeding, that section 2-1401 proceedings are 

generally considered new, separate proceedings, and that section 2-1401 itself contains no 

provision for the award of attorney fees, the District therefore contends that the circuit court 

improperly concluded that Mr. Bedell’s amended fee petition could satisfy these statutory 

requirements. The District also asserts that the fees and costs were awarded to Mr. Bedell not 

within the condemnation proceedings, but rather within the section 2-1401 proceeding. 

¶ 35 With respect to these contentions, it is indeed undisputed that all of Mr. Bedell’s work on 

Mr. Rivo’s behalf took place within the context of the section 2-1401 proceeding. 

Furthermore, it is also true that the filing of a petition pursuant to section 2-1401 of the Code, 

which provides a procedure by which final orders, judgments, and decrees may be vacated 

after 30 days from their entry (735 ILCS 5/2-1401 (West 2014); Smith v. Airoom, Inc., 114 Ill. 

2d 209, 220 (1986)), is generally considered to constitute a new proceeding and not a 

continuation of the original cause of action (Sarkissian v. Chicago Board of Education, 201 Ill. 

2d 95, 102 (2002); Mills v. McDuffa, 393 Ill. App. 3d 940, 946 (2009)). Finally, we also agree 

that section 2-1401 of the Code does not, itself, contain a fee-shifting provision. See 735 ILCS 

5/2-1401 (West 2014). However, while we agree with these assertions made by the District, we 

do not agree with the remainder of its contentions or its ultimate conclusion regarding the 

circuit court’s authority to award fees and costs to Mr. Bedell under section 10-5-70(a) of the 

Act. 

¶ 36 For example, while the District contends that the ultimate merits of its condemnation 

complaint and the award of fees to Mr. Bedell were issues addressed within the section 2-1401 

proceeding in this matter, these assertions are simply incorrect. Here, summary judgment was 

entered in Mr. Rivo’s favor with respect to the section 2-1401 petition on February 15, 2012, 

pursuant to an order in which the circuit court granted summary judgment in favor of Mr. Rivo, 
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denied the District’s cross-motion, vacated the agreed judgment order previously entered on 

March 6, 2003, and reinstated the condemnation case. See Forest Preserve District v. 

Continental Community Bank & Trust Co., 2014 IL App (1st) 131652-U (noting that pursuant 

to the 2012 order, the condemnation case was reopened and reinstated). 

¶ 37 It was only thereafter, well after the condemnation case was reinstated, that the circuit 

court presiding over the condemnation case (1) granted summary judgment on the District’s 

condemnation complaint in favor of Mr. Rivo on April 18, 2013, (2) made that ruling final and 

appealable on June 26, 2015, and (3) granted Mr. Bedell’s amended fee petition on November 

6, 2015, an order made final and appealable upon the entry of the stipulated order of dismissal 

on February 7, 2017. Thus, the record clearly establishes that, in full compliance with section 

10-5-70(a) of the Act, the court presiding over the condemnation case entered both a final 

judgment finding that the District cannot acquire Mr. Rivo’s property by condemnation and, 

thereafter, an order in that same action for the payment of Mr. Rivo’s attorney fees and costs. 

See 735 ILCS 30/10-5-70(a) (West 2014). 

¶ 38 Furthermore, we also reject the District’s contention that, because Mr. Bedell represented 

Mr. Rivo solely in the context of the separate section 2-1401 proceeding, an award for Mr. 

Bedell’s fees and costs is not authorized by the statute because they were not incurred by Mr. 

Rivo “in defense” of the condemnation complaint, and within the condemnation proceeding, as 

the District contends is required by section 10-5-70(a) of the Act. 

¶ 39 It does not appear that this specific question—i.e., whether section 10-5-70(a) of the Act 

allows for an award of fees and costs incurred in connection with a section 2-1401 proceeding 

arising out of a condemnation proceeding—has previously been addressed by the appellate 

court. However, we do find guidance in prior decisions that have addressed the propriety of an 

award of fees and costs incurred in appeals from circuit court decisions in condemnation cases. 

¶ 40 In Department of Public Works & Buildings v. Lanter, 15 Ill. 2d 33, 39-40 (1958), our 

supreme court addressed whether a prior, but substantially similar, version of section 

10-5-70(a) of the Act authorized the payment of the defendants’ attorney fees that were 

incurred in connection with the defense of an appeal filed by a public entity from the circuit 

court’s dismissal of a condemnation complaint. Our supreme court first recognized that the 

terms of the substantially similar prior version of section 10-5-70(a) of the Act “do not restrict 

the attorney fees payable to those incurred in the trial court.” Id. at 40. Our supreme court then 

concluded that “[t]he plain intent of that provision is to pay defendants for all reasonable 

attorney fees incurred in defense of the condemnation petition ***. Where that defense must be 

made, not merely in the trial court, but also in a reviewing court because the Department has 

taken an appeal to that court, and defendant has no choice in the matter, then the attorney fees 

incurred in connection with that appellate court proceeding must be deemed to be an integral 

part of the defense of the condemnation petition, and should be recoverable under the statute.” 

Id. Our supreme court further reasoned that “[s]uch an interpretation in no way encourages 

prolonged condemnation litigation, yet fairly compensates defendant for attorney fees if he is 

compelled to defend beyond the trial court; and at the same time it is clearly consistent with the 

terms of the statute.” Id. at 40-41. 

¶ 41 Thereafter, in Village of Cary v. Trout Valley Ass’n, 297 Ill. App. 3d 63, 64-65 (1998), the 

appellate court considered whether another prior, but substantially similar, version of section 

10-5-70(a) of the Act authorized an award of attorney fees and costs incurred by a defendant in 

connection with the defendant’s own appeal from the circuit court’s denial of a motion to 
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dismiss a condemnation complaint. In finding that the statute did authorize such an award, and 

relying on Lanter, the court first noted that the prior, substantially similar version of section 

10-5-70(a) “in no way restricts the property owner’s right to recover appellate fees and 

expenses.” Id. at 68. 

¶ 42 Then, the court reasoned that the critical inquiry is whether the defendant was “ ‘compelled 

to defend beyond the trial court’ ” (id. at 69 (quoting Lanter, 15 Ill. 2d at 40-41)) such that “the 

appeal was taken ‘in defense of the complaint’ ” (id. at 68 (quoting 735 ILCS 5/7-123(a) (West 

1996) (now 735 ILCS 30/10-5-70(a)))). Ultimately, the appellate court concluded that because 

the “only means of protecting its property from an unlawful condemnation was to take the 

appeal,” the defendant’s appeal in that case “was necessary to its defense of the *** 

condemnation petition.” Id. at 69. Therefore, the court concluded that the defendant was 

“entitled to recover all costs, expenses, and reasonable attorney fees incurred in prosecuting 

that appeal.” Id.

¶ 43 Here, the District’s condemnation complaint was originally resolved by the final, agreed 

judgment order entered in 2003. More than 30 days later, but less than 2 years thereafter, Mr. 

Rivo learned that the District never had legal authority to condemn his property because its 

board had not properly adopted the necessary ordinance. In such circumstances, Mr. Rivo’s 

only means of protecting his property from an unlawful condemnation was to file a section 

2-1401 petition. See 735 ILCS 5/2-1401 (West 2014) (containing the sole procedure in the 

Code by which final orders, judgments, and decrees may be vacated after 30 days, but less than 

2 years, from their entry). 

¶ 44 A section 2-1401 proceeding does indeed represent a new proceeding and not a 

continuation of the original cause of action. However, the above authority clearly supports our 

conclusion that such a proceeding—being one defendant was compelled to undertake to 

protect his property—is still one prosecuted in defense of the condemnation complaint despite 

the fact that it reaches beyond the original circuit court condemnation proceedings. Indeed, 

because the plain language of section 10-5-70(a) does “not restrict the attorney fees payable to 

those incurred in the trial court” (Lanter, 15 Ill. 2d at 40), precluding condemnation defendants 

such as Mr. Rivo from recovering for fees and costs incurred in successful section 2-1401 

proceedings would improperly depart from the plain language of the statute and read into it 

exceptions, limitations, or conditions that are not consistent with the express legislative intent 

(Hendricks, 2015 IL App (3d) 140858, ¶ 14). In contrast, interpreting section 10-5-70(a) as we 

do here construes the “fee-shifting provision ‘to mean nothing more—but also nothing 

less—than the letter of the text.’ ” Bright Horizons, 403 Ill. App. 3d at 255 (quoting Largent, 

353 Ill. App. 3d at 952). 

¶ 45 Thus, we conclude that the circuit court properly concluded that Mr. Bedell’s work in the 

section 2-1401 proceeding represented costs, expenses, and reasonable attorney fees paid or 

incurred by Mr. Rivo in defense of the condemnation complaint filed by the District, such that 

it was compensable under section 10-5-70(a) of the Act. 

¶ 46 Having found that the circuit court had the authority to enter an award of fees and costs for 

Mr. Bedell’s work, we now turn to the question of whether the amount of that award 

constituted an abuse of discretion. 

¶ 47 In this case, Mr. Bedell’s amended fee petition primarily asserted that “the Court should 

award the fee due from Defendant to Bedell under the [contingency] fee agreement: using the 

conservative value of the Defendant’s property, which the District determined in 2003 to be 
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$1,400,000, Bedell is entitled to a fee of $280,000 (minus $1,200 already paid as retainer). 

Costs of $1,546.50 should also be awarded under the fee agreement.” In a written order entered 

on November 6, 2015, the circuit court granted Mr. Bedell’s amended petition for fees and 

costs and pronounced that “judgment is entered against [the District] in the amount of 

$280,000 for attorneys fees and $1,546.50 in costs in favor of Gregory A. Bedell.”1

 Thus, in 

2015, the circuit court granted an award of fees and costs premised upon the contingency fee 

provision in the retainer agreement executed in 2003, despite the fact that, in October 2012, 

Mr. Bedell had withdrawn as Mr. Rivo’s attorney. We find this to have been an abuse of 

discretion, as it improperly compensated Mr. Bedell based upon a contingency fee agreement 

that was no longer in force. 

¶ 48 When an attorney-client relationship that was originally established under a contingent fee 

contract terminates, the contract no longer exists and neither party can therefore seek to 

enforce the terms of the nonexistent contract. McGill v. Garza, 378 Ill. App. 3d 73, 76 (2007); 

Kannewurf v. Johns, 260 Ill. App. 3d 66, 75-76 (1994); Leoris & Cohen, P.C. v. McNiece, 226 

Ill. App. 3d 591, 595-96 (1992). Because Mr. Rivo was no longer obligated to pay, and Mr. 

Bedell was no longer entitled to be compensated, pursuant to the terminated contingency fee 

agreement between Mr. Rivo and Mr. Bedell, such a contingent fee was not actually paid or 

incurred “in defense” of the condemnation complaint. It was therefore improper for the circuit 

court to rely solely upon that agreement as a basis for calculating the award of fees under 

section 10-5-70(a) of the Act. 

¶ 49 However, when the attorney has withdrawn and the court finds the attorney justifiably 

withdrew from the case, then the attorney is entitled to proceed on a claim to recover fees based 

on quantum meruit. McGill, 378 Ill. App. 3d at 76-77; Kannewurf, 260 Ill. App. 3d at 73; 

Leoris & Cohen, P.C., 226 Ill. App. 3d at 597; Reed Yates Farms, Inc. v. Yates, 172 Ill. App. 3d 

519, 533 (1988). Here, Mr. Bedell’s motion to withdraw contended that his request was based 

upon a disagreement as to the strategy going forward with respect to seeking damages from the 

District and a breakdown in communication. Courts have recognized these to be justifiable 

reasons to withdraw, entitling the withdrawing attorney to recover reasonable fees based on 

quantum meruit. See McGill, 378 Ill. App. 3d at 76-77 (collecting cases). In this case, 

therefore, Mr. Rivo did in fact actually incur fees and costs “in defense” of the condemnation 

complaint—albeit payable to Mr. Bedell only on a theory of quantum meruit—such that an 

award of fees and costs to Mr. Bedell was proper. 

¶ 50 Therefore, while we affirm the circuit court’s decision to award Mr. Bedell a judgment for 

fees and cost under section 10-5-70(a) of the Act, we vacate that part of the judgment 

determining the amount of fees and costs and remand for a recalculation of the proper amount 

of that award under a theory of quantum meruit. Under the theory of quantum meruit, the trial 

court is literally to award the attorney “ ‘as much as he deserves.’ ” Kannewurf, 260 Ill. App. 

3d at 74 (quoting Lee v. Ingalls Memorial Hospital, 232 Ill. App. 3d 475, 478 (1992)). We 

remand because the circuit court has “broad discretion in matters of attorney fees due to the 

advantage of close observation of the attorney’s work and the trial judge’s deeper 

understanding of the skill and time required in the case.” Kannewurf, 260 Ill. App. 3d at 74. In 

making this determination, the circuit court should “assess all of the relevant factors, including 

 

1The circuit court’s judgment did not specifically account for the $1200 retainer already paid to Mr. 

Bedell. 
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the time and labor required, the attorney’s skill and standing, the nature of the cause, the 

novelty and difficulty of the subject matter, the attorney’s degree of responsibility in managing 

the case, the usual and customary charge for that type of work in the community, and the 

benefits resulting to the clients.” (Emphasis omitted.) Id. The circuit court should also ensure 

that both the $1200 retainer already paid by Mr. Rivo to Mr. Bedell and the provisions 

contained in paragraph 17 of the February 6, 2017, settlement agreement are accounted for in 

its analysis. 

¶ 51 Finally, while the parties have raised a number of other issues, we find our resolution of the 

above matters renders them moot. See In re Jonathan P., 399 Ill. App. 3d 396, 400 (2010). 

(“ ‘An appeal is considered moot where it presents no actual controversy or where the issues 

involved in the trial court no longer exist because intervening events have rendered it 

impossible for the reviewing court to grant effectual relief to the complaining party.’ 

[Citation.] Generally, courts of review do not decide moot questions, render advisory opinions, 

or consider issues where the result will not be affected regardless of how those issues are 

decided.”).

¶ 52 As noted above (supra ¶¶ 24, 28), all of the other issues raised on appeal challenge various 

rulings made by the circuit court that fundamentally concern the proper disposition of the 

attorney lien asserted by Mr. Bedell against the settlement award. However, Mr. Bedell’s 

assertion of his attorney lien was always premised upon his purported right to a lien based on 

the contingency fee provision of the retainer agreement. Because we have already concluded 

that the retainer agreement no longer exists and that Mr. Bedell can therefore no longer seek to 

enforce the terms of the nonexistent contract, all of the circuit court’s rulings with respect to 

the proper disposition of such a purported lien are moot. 

¶ 53 III. CONCLUSION 

¶ 54 For the foregoing reasons, while we affirm the circuit court’s decision to award Mr. Bedell 

fees and cost under section 10-5-70(a) of the Act, we vacate the resulting judgment only as to 

the amount of the award and remand for a recalculation of the proper amount of that award 

under a theory of quantum meruit.

¶ 55 Affirmed in part and vacated in part. 

¶ 56 Cause remanded with directions.