Langone v. Schad, Diamond and Shedden, P.C.

FIRST DIVISION
Opinion filed December 3, 2010
Modified upon denial of rehearing January 18, 2011

No. 1-09-2079
_________________________________________________________________

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
_________________________________________________________________

CHRISTOPHER V. LANGONE, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
) No. 08 L 12209
SCHAD, DIAMOND AND SHEDDEN, P.C.; )
ANTHONY J. MADONIA AND ASSOCIATES; )
and CHILDRESS, DUFFY AND GOLDBLATT, )
LTD., ) The Honorable
) Mary A. Mulhern,
Defendants-Appellees. ) Judge Presiding.
_________________________________________________________________

JUSTICE LAMPKIN delivered the judgment of the court, with
opinion.
Justices Hoffman and Rochford1 concurred in the judgment and
opinion.
OPINION

This case involves a dispute between law firms for the

attempted recovery of attorney fees awarded as part of a class

action settlement fund. Plaintiff, Christopher Langone, appeals

from the trial court’s order denying his motion pursuant to

section 2-1203 of the Code of Civil Procedure (Code) (735 ILCS

5/2-1203 (West 2008)), which sought the removal of “with

1
Justice Sebastian Thomas Patti originally sat on the panel
of this appeal and participated in its disposition. Justice
Patti is no longer with the appellate court. Therefore, Justice
Mary K. Rochford serves in his stead.
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prejudice” language from a prior order dismissing plaintiff’s

breach of contract action against defendants and co-class

counsel, Schad, Diamond & Shedden, P.C. (Schad), and Childress,

Duffy & Goldblatt, LTD. (Childress).

FACTS

In January 1999, plaintiff’s law firm, the Langone Law Firm,

and the law firms of Schad, Childress,2 and Anthony J. Madonia

and Associates3 (Madonia) entered into a contingent fee agreement

with class members in a putative class action against Royal

Macabees Life Insurance Company (Royal Macabees). Relevant to

this appeal, the terms of the agreement provided:

“4. *** If a court determines that CLIENT’S [class

representative James Miller] case should proceed as a

class action, then the LAW FIRMS’ [plaintiff’s firm,

Schad, Childress, and Madonia] fees will be set by the

court hearing the case.

***

6. If they decide it is appropriate, and the

client consents, the LAW FIRMS may, at their expense,

2
At the time of contracting, Schad was known as Beeler,

Schad & Diamond, P.C., and Childress was known as Childress &

Zdeb, Ltd.
3
Madonia was dismissed as a party to the instant appeal.

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associate with other attorneys in the prosecution of

CLIENT’S claim. CLIENT understands that as a result of

the services rendered by LAW FIRMS, LAW FIRMS will

share in the total fees paid on a pro rata basis

according to the amount of time each has expended or as

awarded by the Court hearing the case. The LAW FIRMS

assume equal legal responsibility for the performance

of legal services.” (Emphasis added.)

In October 2000, class certification was granted and

plaintiff’s firm, Schad, Childress, and Madonia were named as co-

class counsel. In August 2002, partial summary judgment was

granted to the class. By December 2004, the class secured breach

of contract liability against Royal Macabees and won summary

judgment on the majority of Royal Macabees’ affirmative defenses.

In 2005, a dispute arose in which there was a request for

the removal of plaintiff and Childress as class counsel and a

question as to which of the other firms should act as lead

counsel. Class counsel agreed to mediate the dispute. Following

mediation, an agreed order was entered in which Schad was

appointed lead counsel and Schad and Childress were appointed

trial counsel. No mention was made of plaintiff’s removal as

class counsel; however, the record contains an affidavit from

James Shedden of the Schad law firm stating that the mediator

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recommended plaintiff remain as cocounsel.

In January 2008, plaintiff filed a federal lawsuit alleging

breach of fiduciary duty against co-class counsel4 and seeking a

declaration of the parties’ respective rights and obligations

under the contingent fee agreement. Schad filed a motion to

dismiss, contending plaintiff’s claims were not ripe for

adjudication. The federal court dismissed plaintiff’s suit

without prejudice.

On January 11, 2008, the chancery court entered an order

providing preliminary approval of a class action settlement

agreement and providing the schedule for “Class Counsel’s

petition for attorneys’ fees and for reimbursement of expenses.”

The settlement agreement provided for a $93 million settlement

fund to satisfy the claims of the class members, as well as an

insurance rate rollback valued at approximately $34,600,000. In

the subsequent notice of class action settlement, the court

instructed class counsel to “petition the Court for an award of

attorneys’ fees, not to exceed one-third of the cash portion of

the Settlement, including accrued interest. Class Counsel will

also seek reimbursement of the expenses incurred by them in this

litigation. No attorney fees will be paid or any expenses

4
It is unclear from the record whether all three firms were

named as defendants.

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reimbursed except those approved by the Court.”

Thereafter, Schad, Childress, and Madonia filed a joint fee

petition seeking 33.3% of the settlement fund plus expenses.

Plaintiff did not join in the fee petition. The chancery court

requested detailed fee petitions from each law firm to ensure the

reasonableness of the fee award. Specifically, on February 19,

2008, an order was entered instructing plaintiff to file a fee

petition within 7 days and to exchange time records within 7

days. Schad, Childress, and Madonia complied with the request,

submitting voluminous time records totaling 41,381 hours of time

spent in connection with the litigation. Schad, Childress, and

Madonia claimed that a lodestar multiplier of 1.6 was a

reasonable fee.

Plaintiff filed an objection to the fee petition on behalf

of himself and one class member arguing that the fees and

expenses sought were excessive. Specifically, plaintiff argued

that the time records submitted in support of cocounsel’s fee

petition were inflated and the attorneys were entitled only to

10% of the settlement fund instead of 33.3% in light of the size

of the recovery in the case.

On April 4, 2008, the chancery court held a hearing for

final approval of the class action settlement and to determine

the issue of attorney fees. At the outset, plaintiff stated that

he did not object to the approval of the settlement. The final

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settlement was approved by the court. Plaintiff, however, argued

that he was not provided adequate notice with respect to the

notice of class action settlement, in that the notice was sent to

an old address. The court overruled plaintiff’s objection to

lack of adequate notice.

Turning its attention to the issue of attorney fees, the

court admonished plaintiff for failing to submit his time records

per the court’s request. The following relevant exchange between

the court and plaintiff ensued:

“MR. LANGONE: There has been a petition that has

been filed that seeks one-third of the fund as award to

Class counsel as a whole and there has been a petition

that has been filed that says that the Court should

award 10 percent of the fund to Class counsel as a

whole.

And this Court made it clear for the record when

the Court spoke on February 19th and said–-and I’m

quoting the Court-–and please make clear-–I will make

clear for the record there will be one award of

attorneys’ fees to Class counsel. And I think that the

Court’s intent in saying that was that the Court is not

going to get involved in this dispute that exists as to

how to divvy up the pie but just determine what size of

it is going to be. And if–-you know, if the Court

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wants to get into looking at all the lodestars of all

four law firms, obviously that’s --

THE COURT: I don’t have yours.

MR. LANGONE: -–within the Court’s discretion.

THE COURT: I don’t have yours. I don’t have

anything from you.

MR. LANGONE: Well, I submitted to them, and the

Court never indicated that it was going to be making

lodestar determinations.

THE COURT: Of course I did.

MR. LANGONE: The Court said we should exchange--

THE COURT: Of course I did. I said, and

specifically to your colleague who was here on that

day, that your own time should be filed if you were

seeking fees. I specifically said that. You haven’t

done it.

MR. LANGONE: Well, your Honor, your Honor said

that you were going to make one award of attorneys’

fees to Class counsel.

THE COURT: Mr. Langone, I’ve read the transcript.

I remember what I said.

MR. LANGONE: Well, I have it with me now.

THE COURT: I just read it.

MR. LANGONE: No, I have the time records with me.

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THE COURT: I don’t want them now.

MR. LANGONE: Okay. Well, I guess there’s several

issues with respect to the lodestar calculations,

right? One is that I don’t know what was submitted to

the Court. I didn’t know that the other lawyers’ time

had been submitted to the Court, and I did not–-I mean,

if they were–-for instance, I don’t know, did they

submit Mr. Madonia’s time records because I did not

receive any indication that they’ve done that or Mr.

Childress’ time records or my own time records, if

they’re submitting all of the time records to the Court

or are they just excluding mine, you know? It was not

clear--

THE COURT: Nobody submitted your time records, Mr.

Langone, and you know that. Don’t be silly. I

directed your colleague when you were here in February

that if you had a petition to submit, you should submit

it, and I gave you a date for that. You haven’t done

it.

MR. LANGONE: Okay. That was not clear to me.

THE COURT: I know you’re not relying on the Schad

firm to submit your fees. I know you aren’t.

MR. LANGONE: Well, that was not totally clear to

me. But, nonetheless, I was under the impression that

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the Court was indicating that it wanted us to exchange

time by a certain date, which we did, and we exchanged

the time records, and we gave them copies of our time

records. And then I was under the impression the

Court’s making a fund determination and not breaking

down the time records.

THE COURT: To the extent that you wanted your time

included in the lodestar, it had to be submitted. It’s

not included in the lodestar. I am going to make one

award of attorneys’ fees, but it won’t include any time

that you spent because it’s not included in the

lodestar.

MR. LANGONE: Okay. Well, your Honor, I mean, I

don’t want to talk about my time because I think this

is more about what the Class fee should be. I have–-

whatever your Honor awards, I have my rights under the

Lien Act and under my contract suits with them, and I

assume your Honor is not adjudicating any of my

separate rights and will make that clear because--

THE COURT: No

MR. LANGONE: No, you’re not?

THE COURT: No, I’m not.”

The court then provided plaintiff with an opportunity to

support his objection to the fee petition submitted by Schad,

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Childress, and Madonia. Defendants were provided an opportunity

to respond in support of their fee petition. The court took the

fee petition under advisement. Plaintiff informed the court that

he had filed an attorney’s lien in anticipation of the creation

of the settlement “fund.” Plaintiff also stated his intent to

file his time records with the clerk’s office.

On June 4, 2008, the chancery court issued a written order

ultimately concluding that $25 million was “a reasonable and

appropriate fee,” amounting to 26.9% of the common settlement

fund “with a risk multiplier on [an] adjusted lodestar multiplier

of 2.2.” The court denied the request for reimbursement of

expenses as there was no documentation to support the expenses.

In a footnote on the first page of the June 4, 2008, order, the

court said that the “opinion [named] the individual law firms

bringing the [fee] petition for clarification purposes”; however,

the court would only make a single award.

The court calculated the attorney fees using the “percentage

method” while cross-checking with the “lodestar method” to ensure

reasonableness. In so doing, the court determined that Schad,

Childress, and Madonia “significantly overstated” their lodestar

because the hours billed were inflated and the lodestar failed to

reflect a “reasonable time spent multiplied by a reasonable

hourly rate.” After thoroughly reviewing the time records, the

court found that Schad, in particular, logged significantly

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higher average billing hours while using multiple attorneys in

nonessential manners from 2005-08, after the class had already

secured breach of contract liability and had prevailed on summary

judgment, resolving the majority of Royal Macabees’ affirmative

defenses. Therefore, the “billable hours, attorney

representation, and strategy meetings increased in inverse

proportion to the reduced [litigation] risk.” Moreover, after

reviewing Schad’s time records, the court discovered that the

Schad attorneys with the highest billable rates performed the

vast majority of all of the work billed in connection with the

Royal Macabees case, “a result inconsistent with an attorney’s

obligation to use associates and paralegals.” The court noted

that, while it was awarding one sum to account for attorney fees,

“it [was] appropriate to analyze, for illustration purposes,

individual law firms’ billing submissions. In [that] respect,

the [Schad] time records [were] significant because they

[represented] roughly 75% of the total submitted hours.”

On July 15, 2008, a hearing was held on plaintiff’s petition

to adjudicate an attorney’s lien. The court concluded that

plaintiff could not recover under the Attorneys Lien Act (770

ILCS 5/0.01 et seq. (West 2008)). In so ruling, the court said:

“I just don’t see how it fits because the

prerequisites for asserting the lien are the existence

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of a client with a claim against somebody else who is

put on notice, and that’s not the factual situation

here. Your client doesn’t have a claim against your

co-counsel. Your firm does. You and your firm do, but

your client doesn’t.

* * *

On the petition to adjudicate attorney’s lien, the

Court invited the Langone firm to submit a petition for

fees along with the other fee petition submitted. This

the Langone firm declined to do. It instead

participated as an objector, arguing that the fund

should be limited to 10 percent, without any

significant analysis of the fees requested by Class

counsel.

Now the Langone firm is in on a petition to

adjudicate an attorney’s lien, not against the

settlement fund and not against Royal Macabees, but

against the attorney’s fees awarded by the Court from

the settlement fund. The Attorney’s Lien Act is a

statutory provision that must be strictly construed,

and as Mr. Langone has acknowledged, his client, [class

member], has no claim against co-Class counsel.

Rather, Mr. Langone is attempting to assert a claim

that he and his firm potentially have against co-Class

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counsel for fees.

This does not fall within the ambit of the

Attorney’s Lien Act. The only claim before the Court

is the one asserted under the [A]ct. There is nothing

before the Court under any other theory, nor would it

appear appropriate that it would be before the Court.

And so because the only claim asserted is under

the Attorney’s Lien Act and the Court has found that

under the circumstances the [A]ct does not apply, the

motion to adjudicate attorney’s lien is denied.

* * *

What I am going to add to this order is this is a

final and appealable order because the only thing

remaining apart from the jurisdiction I retained over

the administration of the settlement was this issue,

and I have resolved it.”

Plaintiff filed a notice of appeal on August 13, 2008,

citing the trial court’s July 15, 2008, final order and “all

prior orders, including the order dated June 4th, 2008," awarding

attorney fees and denying plaintiff’s claim for an attorney’s

lien. According to plaintiff, his appeal was dismissed for want

of prosecution. The dismissal order does not appear in the

record before us.

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On October 31, 2008, plaintiff filed a verified breach of

contract complaint against Schad, Childress, and Madonia for

failing to distribute plaintiff’s pro rata share of the attorney

fees awarded as a result of the class action settlement.5 On

January 6, 2009, Schad and Madonia filed a joint motion to

dismiss pursuant to section 2-619 of the Illinois Code of Civil

Procedure (Code) (735 ILCS 5/2-619 (West 2008)). Specifically,

Schad and Madonia argued that plaintiff’s complaint was barred by

a prior judgment, namely, the June 4, 2008, chancery court order,

and that the breach of contract claim was barred by an

affirmative matter avoiding the legal effect of or defeating that

claim, namely, the language of the parties’ contingency fee

agreement. See 735 ILCS 5/2-619(a)(4), (a)(9) (West 2008).

Childress joined in and adopted the section 2-619 motion filed by

Schad and Madonia. On February 13, 2009, plaintiff filed a

motion for summary judgment (735 ILCS 5/2-1005 (West 2008)),

contending that no genuine issue of material fact existed where

5
According to defendants, plaintiff simultaneously filed a

lawsuit to recover attorney fees against the Royal Macabees class

in federal court under the theory of quantum meruit. The class

moved for judgment on the pleadings, namely, the contingency fee

agreement. The motion was granted. See Langone v. Miller, 631

F. Supp. 2d 1067 (N.D. Ill. 2009).

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plaintiff’s complaint had not been controverted by an answer,

affidavit, or other pleading, and he was entitled to judgment as

a matter of law.

On April 20, 2009, the trial court dismissed plaintiff’s

breach of contract complaint with prejudice. In response, on May

15, 2009, plaintiff filed a combined motion pursuant to section

2-1203 of the Code (735 ILCS 5/2-1203 (West 2008)) to rehear,

modify, and/or vacate the trial court’s April 20, 2009, order, in

order to remove the “with prejudice” language, and pursuant to

section 2-616(a) of the Code (735 ILCS 5/2-616(a) (West 2008))

for leave to file an attached proposed amended complaint that

more specifically pled the breach of contract count with

additional facts, including a copy of plaintiff’s time records,

and added claims for breach of fiduciary duty and quantum meriut.

Schad and Madonia filed a response in opposition to plaintiff’s

motion. Childress joined in the opposition motion. In his reply

in support of his motion, plaintiff averred that the issue before

the trial court was restricted to the section 2-1203 portion of

the motion, i.e., whether the court would “reconsider”

withdrawing its dismissal of plaintiff’s complaint with prejudice

and instead dismiss the complaint without prejudice, so that his

section 2-616(a) motion to amend could be considered on its

merits.

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On July 10, 2009, following a hearing, the court denied

plaintiff’s section 2-1203 motion. Plaintiff appeals the court’s

July 10, 2009, order.

DECISION

Plaintiff has a very narrow contention on appeal. Plaintiff

contends the trial court erred in dismissing his first and only

complaint with prejudice and, pursuant to section 2-1203 of the

Code, the court should have modified its decision in order to

allow plaintiff the opportunity to seek leave to amend.

Plaintiff is clear that he does not challenge the dismissal of

the complaint itself, only the fact that the complaint was

dismissed with prejudice. At the July 10, 2009, hearing,

plaintiff’s counsel said:

“Judge, this is before the Court on the very

limited question of the 1203 motion to modify that

[April 20, 2009,] order to strike out the with

prejudice provisions and to make it without prejudice

and really nothing more. So that the interest of

justice can be served by then allowing the plaintiff to

present to Judge Ward the second half of the motion

which is for leave to amend the complaint by filing the

amended pleading that is attached to the motion.

* * *

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So the ends of justice will be served here by this

Court modifying its earlier order striking the with

prejudice language to make it without prejudice and

leave to Judge Ward to decide whether to allow the

filing of the first amended complaint and that--the

relief we ask for here today, the relief that Judge

Ward has said this Court may consider it is very

narrow, it’s just to modify that earlier order so that

the ends of justice can be considered at least by Judge

Ward in his deciding whether the plaintiff gets leave

to file his first, one and only amended pleading.”

Section 2-1203 of the Code provides:

“(a) In all cases tried without a jury, any party

may, within 30 days after the entry of the judgment or

within any further time the court may allow within the

30 days or any extensions thereof, file a motion for a

rehearing, or a retrial, or modification of the

judgment or to vacate the judgment or for other relief.

(b) A motion filed in apt time stays enforcement

of the judgment ***.” 735 ILCS 5/2-1203 (West 2008).

While addressing a section 2-1203 motion, this court has said:

“A motion to reconsider may be brought pursuant to

section 2-1203 or 2-1401 of the Code. [Citations.]

The purpose of a motion to vacate under section 2-1203

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is to alert the trial court to errors it has made and

to afford an opportunity for their correction.

[Citation.] Whether to grant or deny a motion to

reconsider is within the sound discretion of the trial

court. [Citation.] Whether a trial court has abused

its discretion turns on whether the court’s refusal to

vacate ‘ “violates the moving party’s right to

fundamental justice and manifests an improper

application of discretion.” ’ [Citation.] In re

Marriage of King, 336 Ill. App. 3d 83, 87, 783 N.E.2d

115 (2002).

We first note that plaintiff’s section 2-1203 motion did not

suffer the same defect as the motion in Shutkas Electric, Inc. v.

Ford Motor Co., 366 Ill. App. 3d 76, 81, 851 N.E.2d 66 (2006).

In Shutkas Electric, Inc., the plaintiff filed a motion entitled

“Motion to Modify Order Entered February 24, 2005 Pursuant to 735

ILCS 5/2-1203”; however, the body of the motion requested relief

in the form of adding a party plaintiff and leave to file a

second amended complaint. Shutkas Electric, Inc., 366 Ill. App.

3d at 81. A motion is defined by its substance rather than its

heading. Shutkas Electric, Inc., 366 Ill. App. 3d at 81. Here,

plaintiff’s motion sought at least one form of relief listed in

section 2-1203, namely, modification of the April 20, 2009,

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judgment, and provided that the grounds for requesting the

modification was for the consideration of a section 2-616(a)

motion for leave to amend. Plaintiff’s motion, therefore, was

unlike the motion in Shutkas Electric, Inc. even though it was a

precursor to the motion for leave to amend, in that it was a

motion directed against the April 20, 2009, judgment to the

extent that it challenged the “with prejudice” language. See

Shutkas Electric, Inc., 366 Ill. App. 3d at 81; compare

Vanderplow v. Krych, 332 Ill. App. 3d 51, 58-59, 773 N.E.2d 40

(2002). Accordingly, plaintiff’s motion was a postjudgment

motion under section 2-1203.

“ ‘The intended purpose of a motion to reconsider is to

bring to the court’s attention newly discovered evidence, changes

in the law, or errors in the court’s previous application of

existing law.’ ” Cable America, Inc. v. Pace Electronics, Inc.,

396 Ill. App. 3d 15, 24, 919 N.E.2d 383 (2009), quoting General

Motors Acceptance Corp. v. Stoval, 374 Ill. App. 3d 1064, 1078,

872 N.E.2d 91 (2007). We review whether the court erred in

dismissing plaintiff’s complaint.

A section 2-619 motion to dismiss admits the legal

sufficiency of the pleading (Valdovinos v. Tomita, 394 Ill. App.

3d 4, 17, 914 N.E.2d 221 (2009)) and takes as true all well-pled

facts and reasonable inferences drawn therefrom (Purmal v. Robert

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N. Wadington & Associates, 354 Ill. App. 3d 715, 720, 820 N.E.2d

86 (2004)). We, therefore, must accept as true that plaintiff

contributed over 1,041 hours to the Royal Macabees class action

lawsuit; that class counsel entered a contract; that counsel for

the class was awarded $25 million; and that plaintiff’s pro rata

share of the fee award was 3.2%. We, however, need not accept as

true plaintiff’s assertion that defendants breached their duty to

compensate plaintiff for his pro rata share because that is a

conclusion of law. Purmal, 354 Ill. App. 3d at 720 (“conclusions

of law and conclusory factual allegations not supported by

allegations of specific facts are not deemed admitted”). In

addition, we need not accept as true those facts plaintiff

submits as support for his arguments that were included in his

proposed amended complaint. The proposed amended complaint was

not properly before the court when it denied plaintiff’s motion

to reconsider. As repeatedly advised by plaintiff, the proposed

amended complaint was attached to the section 2-1203 motion

merely for purposes of consideration with the section 2-616

motion.

I. Opportunity to Amend

Plaintiff contends the trial court abused its discretion in

denying his request to modify the April 20, 2009, judgment

deleting the with prejudice language, where public policy

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supports the liberal granting of amendments. This argument

combined with plaintiff’s repeated statements that the only issue

before the trial court and before us on appeal is whether the

“with prejudice” language should have been removed leads us to

conclude that plaintiff suggests his section 2-1203 motion should

have been granted outright. We disagree. The law is clear that

it is within the trial court’s discretion whether to grant or

deny a section 2-1203 motion. In re Marriage of King, 336 Ill.

App. 3d at 87.

Moreover, plaintiff’s complaint did not suffer from pleading

defects; rather, pursuant to section 2-619 of the Code,

plaintiff’s complaint was considered sufficient and was dismissed

because it was defeated by some other affirmative matter outside

of the complaint. See 735 ILCS 5/2-619(a)(9) (West 2008). As a

result, we find the cases that plaintiff primarily relies on to

support his argument that amendments should be granted liberally

are distinguishable.

In both Droen v. Wechsler, 271 Ill. App. 3d 332, 648 N.E.2d

981 (1995), and Cantrell v. Wendling, 249 Ill. App. 3d 1093, 620

N.E.2d 9 (1993), the appellate court found that the lower courts

abused their discretion in denying motions to amend the

underlying complaints in order to resolve pleading defects.

Droen, 271 Ill. App. 3d at 335-36; Cantrell, 249 Ill. App. 3d at

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1095-96. The Cantrell court concluded that the plaintiff had not

been given ample opportunity to state a cause of action where it

was not apparent that no amendment could cure defects in the

pleading. Cantrell, 249 Ill. App. 3d at 1095-96. While it is

true that the Droen court advised that the “circuit court should

exercise its discretion liberally in favor of allowing amendments

so that cases are decided on their merits and not on procedural

technicalities,” the “technicality” at issue there was whether

the plaintiff was properly barred from amending her complaint

when she did not attach a proposed amended complaint but included

the substance of the proposed amendment in her motion. Droen,

271 Ill. App. 3d at 335-36. After reading Droen and Cantrell, we

find them inapposite to the case before us where plaintiff’s

pleading was not dismissed because it failed to state a cause of

action.

II. Res Judicata

Despite plaintiff’s repeated assertions that the substance

of his complaint and the reasoning for the court’s dismissal of

the complaint are not at issue, plaintiff argues that his

complaint should not have been dismissed on the basis of res

judicata where defendants failed to, and cannot, establish the

elements of the doctrine. We, therefore, must determine whether

the trial court abused its discretion in dismissing plaintiff’s

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complaint with prejudice thereby denying plaintiff the

opportunity to amend his complaint. In order to do so, we must

consider whether plaintiff’s complaint is capable of successful

amendment. The court’s April 20, 2009, written order does not

provide the basis upon which the court dismissed plaintiff’s

complaint with prejudice; however, the transcript of the court’s

denial of the section 2-1203 motion does. In denying plaintiff’s

section 2-1203 motion, the trial court said:

“Well, the motion to reconsider today–-or the

motion for me to modify or vacate the judgment I

entered on April 20 is one that the plaintiff--that

issue was one that the plaintiff goes to some length in

his reply to point out that that’s all I have before me

is whether or not under 2[-]1203 I should modify this

judgment. And Judge Ward reserved to himself in the

June 2 order whether or not the plaintiff would be

given leave to amend if necessary, which obviously

contemplates that if I don’t grant the 1203 relief,

then there is no reason to go to 2[-]616.

***

I have to say that I find it rather misleading,

and I don’t know if I should say disingenuous that at

Page 2 of [plaintiff’s] reply it is argued, one, two,

three times that Langone was pro se in his proceedings.

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That kind of misrepresents his status as a litigant.

According to the entry in the Sullivan’s directory Mr.

Langone has been an attorney for over 18 years. So to

describe him as a pro se in what appears to be an

effort for some sympathy or latitude with regard to

pleading or conduct of this lawsuit is incorrect and

will be disregarded.

There’s nothing in the motion or the reply that

tells me that my decision that this action is barred on

the basis of res judicata is incorrect. There’s no

case law that says its incorrect. This all revolves

around whether or not Mr. Langone is going to get a

share of the fees in a class action suit that was

concluded a couple years ago. Mr. Langone has had

ample opportunity to pursue his claiming for payment,

and as a matter of fact, Judge Mason addressed that in

her comments which are not only in *** the 1203 motion

in response, but also in the motion made by the

defendants that was granted on April 20. And so I

don’t think there’s any reason for me to modify or

vacate this order. I don’t think the movant has made

an adequate record that would warrant that, and so I

think that’s the end of this before it goes to the

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Appellate Court.”

The trial court, therefore, dismissed plaintiff’s complaint on

the basis of res judicata, finding that the chancery court’s June

4, 2008, order awarding fees to class counsel and not plaintiff

barred plaintiff’s breach of contract claim.

Res judicata is an equitable principle intended to prevent

multiple lawsuits between the same parties involving the same

facts and issues. Green v. Northwest Community Hospital, 401

Ill. App. 3d 152, 154, 928 N.E.2d 550 (2010). Res judicata bars

any subsequent actions when a final judgment was reached on the

merits by a court of competent jurisdiction between their same

parties or privies on the same cause of action. Green, 401 Ill.

App. 3d at 154. “Res judicata is conclusive as to any matter

that was offered to sustain or defeat the claim or demand, as

well as any other matter that might have been offered for that

purpose.” Dalan/Jupiter, Inc. v. Draper & Kramer, Inc., 372 Ill.

App. 3d 362, 367, 865 N.E.2d 442 (2007). Therefore, the moving

party must demonstrate (1) an identity of the parties or their

privies in the two lawsuits; (2) an identity to the causes of

action; and (3) a final judgment on the merits of the first

lawsuit. Dalan/Jupiter, Inc., 372 Ill. App. 3d at 367.

Plaintiff contends that defendants have not established and

cannot establish the first requirement of the doctrine of res

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judicata, i.e., sameness of parties, because plaintiff was not a

party to the Royal Macabees class action. In his initial brief,

plaintiff, however, admits that “he was in privity with a party,

the class representative, as their agent in the lawsuit and

adverse to Royal Macabees.”

For purposes of res judicata, the parties need not be

identical to be considered the same. Kapoor v. Fujisawa

Pharmaceutical Co., 298 Ill. App. 3d 780, 786, 699 N.E.2d 1095

(1998). Litigants are considered the same when their interests

are sufficiently similar, even if they differ in name or number.

Kapoor, 298 Ill. App. 3d at 786. Litigants are privies when “a

person is so identified in interest with another that he

represents the same legal right.” Jackson v. Callan Publishing,

Inc., 356 Ill. App. 3d 326, 340-41, 826 N.E.2d 413 (2005).

We find that plaintiff and defendants were in privity with

the Royal Macabees class action. Plaintiff and defendants

represented the class and their interests were aligned such that

all the attorneys sought a favorable outcome for their class

members. Moreover, plaintiff and defendants were parties in

interest in any action for attorney fees. See Cantwell v.

Reinhart, 244 Ill. App. 3d 199, 204-05, 614 N.E.2d 174 (1993)

(attorney in marriage dissolution proceedings was a party in

interest in the cause of action for recovery of attorney fees and

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dissolution order acted as bar for purposes of res judicata to

attorney’s subsequent action to recover attorney fees).

Plaintiff and defendants were, therefore, in privity for purposes

of res judicata.

Plaintiff contends that defendants have not demonstrated and

cannot demonstrate an identity of the causes of action because

plaintiff’s contractual rights are distinct from the Royal

Macabees class action.

To determine whether the causes of action are the same, we

apply the “transactional test.” Valdovinos, 394 Ill. App. 3d at

20. Under the “transactional test,” “separate claims will be

considered the same cause of action for purposes of res judicata

if they arise from a single group of operative facts, regardless

of whether they assert different theories of relief.” River

Park, Inc. v. City of Highland Park, 184 Ill. 2d 290, 311, 703

N.E.2d 883 (1998). Claims are “considered part of the same cause

of action even if there is not a substantial overlap of evidence,

so long as they arise from the same transaction.” River Park,

Inc., 184 Ill. 2d at 311. The focus of the inquiry, therefore,

is on whether the relief requested is based on substantially the

same facts. Jackson, 356 Ill. App. 3d at 337.

We conclude that there was an identity to the causes of

action between the July 15, 2008, order and plaintiff’s breach of

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contract complaint. In both instances, plaintiff relied on the

same contractual language, namely, pro rata share, to contend

that he was improperly frozen out of his share of the attorney

fee award. In both instances, plaintiff argued that he provided

a fee petition in the form of his objection to cocounsel’s fee

petition. Although the theories of relief differ, the operative

facts are the same. Plaintiff is attempting to relitigate his

right to a portion of the attorney fee award. This issue was

decided by the chancery court and is thus barred by the doctrine

of res judicata.

Plaintiff contends defendants have not demonstrated and

cannot demonstrate that there was a final judgment on the merits

in the prior proceeding because the chancery court’s June 4,

2008, memorandum and order was not a final and appealable order

where the court reserved jurisdiction to resolve additional

matters and provided a future status date.

We agree that the court’s June 4, 2008, memorandum and order

was not a final adjudication on the merits because the court

reserved jurisdiction to determine whether plaintiff’s cocounsel

were eligible for reimbursement of expenses. We, however, find

that, for purposes of res judicata, there was a final

adjudication on the merits of the attorney fee matter in the

court’s July 15, 2008, order. The chancery court dismissed

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plaintiff’s attorney lien claim and ordered the dispersal of the

awarded fees to Schad, Childress, and Madonia, expressly stating

that the order was final and appealable. The July 15, 2008,

order does not appear in the record before us; therefore, we base

our knowledge regarding that order on the transcript from that

date.

To the extent plaintiff argues that a final order was only

recently entered with the disbursement of the settlement fund,

nothing appears in the record to support that argument. As the

appellant, it was plaintiff’s duty to provide an accurate and

complete record. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92, 459

N.E.2d 958 (1984). In the absence of a sufficient record, we

must resolve any doubts arising from the incompleteness of the

record against the appellant and presume the trial court’s order

was in conformance with the law and supported by the evidence, or

lack thereof. Foutch, 99 Ill. 2d at 392. We recognize that, in

order for there to be an appeal from a final judgment of one or

more but fewer than all parties, Supreme Court Rule 304(a)

requires an express written finding that “there is no just reason

for delaying enforcement or appeal.” 155 Ill. 2d. R. 304(a);

Kral v. Fredhill Press Co., 304 Ill. App. 3d 988, 992, 709 N.E.2d

1268 (1999). We infer, based on the transcript appearing in the

record in which the court provided that the order was final and

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appealable, that the requisite Rule 304(a) language found in the

transcript was also contained in the written order and res

judicata does apply to the order. Foutch, 99 Ill. 2d at 392.

Plaintiff appealed the chancery court’s July 15, 2008,

order; however, the appeal was dismissed for want of prosecution

on March 12, 2009. Plaintiff argues that the act of appealing

the July 15, 2008, order prevents its finality for purposes of

res judicata. Plaintiff is incorrect. “A final judgment can

serve as the basis to apply the doctrines of res judicata and

collateral estoppel even though the judgment is being appealed.”

Illinois Founders Insurance Co. v. Guidish, 248 Ill. App. 3d 116,

120, 618 N.E.2d 436 (1993); see Kensington’s Wine Auctioneers &

Brokers, Inc. v. John Hart Fine Wine, Ltd., 392 Ill. App. 3d 1

(2009); In re Estate of Barth, 339 Ill. App. 3d 651 (2003).

We recognize there exists a split of authority on the

question of whether an order is final for purposes of res

judicata when an appeal is pending. Our supreme court continues

to cite Ballweg v. City of Springfield, 114 Ill. 2d 107 (1986),

for the proposition that “[f]or purposes of applying the doctrine

of collateral estoppel, finality requires that the potential for

appellate review must have been exhausted.” See In re A.W., 231

Ill. 2d 92 (2008) (collateral estoppel). It is important to note

that, in Rogers v. Desiderio, 58 F.3d 299 (7th Cir. 1995), the

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Seventh Circuit recognized the split in authority and noted that

Ballweg could be limited to issue preclusion (collateral

estoppel) and not claim preclusion (res judicata). In addition,

Ballweg relies on Relph v. Board of Education of DePue Unit

District No. 103, 84 Ill. 2d 436 (1981), to support the

proposition that an appeal bars the effects of res judicata;

however, in Relph, the “appeals” at issue were not final

judgments terminating litigation but, rather, were orders

remanding the cause to the trial court and thus only stood as the

law of the case at the time. Relph, 84 Ill. 2d at 442-43.

The split of authority is not relevant to our case because

Langone’s appeal was not pending when the breach of contract

claim was pending. Plaintiff appealed the chancery court’s July

15, 2008, order; however, the appeal was dismissed for want of

prosecution. We take judicial notice that plaintiff’s

consolidated appeal was dismissed on March 12, 2009. Plaintiff’s

appeal, therefore, was no longer pending when the trial court

dismissed plaintiff’s breach of contract claim on April 20, 2009.

Accordingly, plaintiff’s appeal did not disturb the finality of

the July 15, 2008, order.

In short, plaintiff has attempted several methods to recover

attorney fees, all of which would have been unnecessary had he

provided a detailed fee petition demonstrating his participation

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in the Royal Macabees case. The notice of class action

settlement advised plaintiff that he was required to file a fee

petition. The transcripts in the record reveal that plaintiff

failed to do so upon repeated request. The chancery court’s June

4, 2008, order expressly excluded plaintiff from the calculation

of attorney fees. While the chancery court did indicate that a

joint fee award was to issue, the judge made clear that the joint

award excluded plaintiff’s firm. In its concluding remarks, the

court advised plaintiff that “I made that award based on the

petition I received, which included [Schad], Childress Duffy, and

Madonia. It did not include yours, and I am not going to get

into this battle now. I am not going to.” Although a harsh

result, we conclude the trial court did not abuse its discretion

in denying plaintiff’s motion to reconsider the dismissal of his

breach of contract claim on the basis of res judicata.

III. Parties’ Contract

As we have stated, the trial court dismissed plaintiff’s

complaint on the basis of res judicata; however, defendants’

motion to dismiss also requested dismissal based on the parties’

contingency fee agreement. This court may affirm the trial

court’s judgment on any basis appearing in the record.

Dalan/Jupiter, Inc., 372 Ill. App. 3d at 366. In the contingency

fee agreement, the parties agreed that if a class action

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proceeded the attorney fees would be “set by the court hearing

the case.” The agreement went on to provide that the attorneys

would split any fee awarded pro rata “or as awarded by the Court

hearing the case.” Here, the court clearly decided that

plaintiff was not going to be awarded any portion of the fees

awarded because plaintiff failed to comply with the court’s

direct order to submit a detailed fee petition outlining the

hours plaintiff worked on the case on a timely basis.

Additionally, the court gave plaintiff an opportunity to support

his objection to his cocounsel’s joint fee petition; however, the

record demonstrates that plaintiff failed to provide support for

his claim that the attorneys, including himself, were entitled to

10% of the settlement fund.

Plaintiff cannot now request his pro rata share of a sum in

which his contribution was not accounted for. Our review of the

records at the time and shortly after plaintiff was ordered to

submit his time records demonstrates that plaintiff did not have

a record of his time in any cognizable format that could be

submitted and checked for accuracy and reasonableness.

Plaintiff’s repeated argument that his fee petition took the form

of his objection to cocounsel’s joint fee petition and

recommendation that the attorneys be awarded 10% of the

settlement fund had absolutely no support. The transcripts from

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the relevant time period demonstrate that plaintiff had no basis

for claiming the attorneys were entitled only to 10% of the fund.

Plaintiff agreed to let the court set the attorney fees. Had

plaintiff submitted the requisite fee petition, we agree that the

trial court left it up to the attorneys themselves to determine

the appropriate method for distributing the fees. In that case,

according to the contingency fee agreement, plaintiff would have

been entitled to his pro rata share. Plaintiff, however, cannot

now draw from a fee award in which he was not considered.

CONCLUSION

We conclude that the trial court did not abuse its

discretion in denying plaintiff’s section 2-1203 motion to

reconsider its dismissal of plaintiff’s breach of contract

complaint with prejudice. We, therefore, affirm the judgment of

the circuit court.

Affirmed.

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