dissenting:
I respectfully dissent. The majority’s decision holds that the trial court lacked subject matter jurisdiction under the attorney’s lien statute (Ill. Rev. Stat. 1985, ch. 13, par. 14), to enter any judgment other than an adjudication of the existence or nonexistence of an attorney’s lien. Specifically, the majority says that the trial court in this case only had subject matter jurisdiction to adjudicate whether Lowrey had a lien, and if so, the amount of the lien and the manner of its enforcement. Thus, under the majority’s ruling, the proceeding here was apparently over when Mr. Lowrey filed a response with the court on November 12, 1985, stating that he did not have a lien. I do not agree with this interpretation of the attorney’s lien statute and believe that such a resolution is contrary to existing authority, is inconsistent with the plain language of the statute, and is contrary to the public policy of the State, as reflected by the attorney’s lien statute.
The supreme court itself, in Rhoades v. Norfolk & Western Ry. Co. (1979), 78 Ill. 2d 217, 399 N.E.2d 969, held that while a client had an absolute right to discharge an attorney, even without cause, that attorney was entitled to compensation determinable on a quantum meruit basis, even if he did not have a lien under the attorney’s lien statute. In Rhoades, the appellate court had held that the attorney had no claim to any fee (on other grounds) and directed that the attorney’s petition under the attorney’s lien statute (Ill. Rev. Stat. 1985, ch. 13, par. 14) be dismissed. (Chapman & Chapman v. Rhoades (1978), 67 Ill. App. 3d 1037, 385 N.E.2d 723.) In reversing the appellate court, however, the Rhoades court did not affirm the dismissal even though the supreme court itself had found that there was in fact no attorney’s lien; rather, our supreme court remanded the case to the circuit court with directions to determine the appropriate attorney fees on a quantum meruit basis rather than on a contingent fee basis.
Additionally, the legislature appears to have granted broad subject matter jurisdiction to the courts under the attorney’s lien statute to permit adjudication of all claims to legal fees. The language of the act, in my opinion, clearly allows for a full determination of the right to fees (as, I believe, the Rhoades decision has indirectly so held) of all the potential claimants to the res, i.e., the proceeds of the judgment or settlement. Cf. McArdle v. Great American Indemnity Co. (1942), 314 Ill. App. 455, 41 N.E.2d 964 (court has broad powers to adjudicate attorney’s lien in which attorney and client are joint claimant to the proceeds of lien of the judgment); McCallum v. Baltimore & Ohio R.R. Co. (1942), 379 Ill. 60, 39 N.E.2d 340 (judgment constituted the res for distribution among plaintiff and all attorneys); Mid-City Trust & Savings Bank v. City of Chicago (1937), 292 Ill. App. 471, 11 N.E.2d 617 (where all parties were before court already, attorney need not file independent suit for fees).
In a similar situation, where the statutory language was even less clear, our supreme court held that the Contribution Among Joint Tortfeasors Act (Contribution Act) (Ill. Rev. Stat. 1983, ch. 70, pars. 301 through 305) required that resolution of that action be determined with the underlying tort claim, even though the tortfeasor also had a separate right of action for contribution as did the attorney here. Laue v. Leifheit (1984), 105 Ill. 2d 191, 473 N.E.2d 939.
The language of the Contribution Act, section 5, specifically established a separate independent action for contribution similar to Mr. Lowrey’s underlying contractual right to fees. Section 5 provided:
“A cause of action for contribution among joint tortfeasors may be asserted by a separate action before or after payment, by counterclaim or by third-party complaint in a pending action.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 70, par. 305.)
However, our supreme court held that this right to contribution must be enforced, in the underlying tort action, if there is one. The court said:
“We believe it is clear from the statutory language in section 5 that if there is a pending action, which there was in the instant case, then the party seeking contribution must assert a claim by counterclaim or by third-party claim in that action.
In addition to the fact that the statutory language of section 5 clearly requires the filing of an action for contribution in the original action, there are strong public policy reasons for such a requirement. One jury should decide both the liability to the plaintiff and the percentages of liability among the defendants, so as to avoid a multiplicity of lawsuits in an already crowded court system and the possibility of inconsistent verdicts. Requiring the parties to litigate the matter in one suit will also save court time and attorney fees.” Laue v. Leifheit (1984), 105 Ill. 2d 191, 196-97, 473 N.E.2d 939, 941-42.
I submit that the language of the attorney’s lien statute not only authorizes, but clearly directs the trial court to adjudicate the rights of all the parties to the res, i.e., settlement or judgment, and to then enforce the lien- appropriately upon the res. The attorney’s lien statute provides in pertinent part:
“Attorneys at law shall have a lien upon all claims, demands and causes of action ***. Such lien shall attach to any verdict, judgment or order entered and to any money or property which may be recovered, on account of such suits, claims, demands or causes of action, from and after the time of service of the notice. On petition filed by such attorneys or their clients any court of competent jurisdiction shall, on not less than 5 days ’ notice to the adverse party, adjudicate the rights of the parties and enforce such lien.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 13, par. 14.
It should be noted that here it was the second attorney,' Ozmon, also with a claim to an attorney’s lien, who filed this petition under the statute to adjudicate the attorney’s lien upon the res of the settlement. Ozmon gave the requisite notice to Mr. Lowrey, the adverse party, and requested the court to determine the rights between them. This, in my opinion, is exactly what the statute intends.
Additionally, as in the Lome case, there are strong public policy reasons in this situation for the requirement that a full adjudication of the rights of all the parties take place in the matter presently before the court. As the court said in Lome, one court should decide the liability, here, the liability of the client to pay attorney fees, and the same court should make a determination of how those fees should be apportioned between the claimant attorneys. Such a requirement would also, of course, help to avoid a multiplicity of litigation in our already crowded court system and the possibility of inconsistent decisions. Further, as the Laue court noted, requiring the parties to litigate the matter in one suit will save court time and attorney fees.
If Mr. Lowrey were permitted to pursue an independent suit for attorney fees, the issue would then arise as to whether he would be bound or affected by a determination of the trial court here that the second attorney’s lien, i.e., Ozmon’s, was valid and entitled Ozmon to the full contingent fee. Contrary to the majority’s statement that any apportionment of fees in a second suit would come out of the “already allocated [apparently by the trial court here] contingent fee and therefore would not threaten” the proceeds of the settlement the client has already received, in fact, any award of attorney fees would necessarily come out of Mr. DeKing’s proceeds. Mr. Lowrey’s suit is against his client, Mr. DeKing, as it should be, because Mr. Lowrey has a contract with Mr. DeKing and not Ozmon. In addition, neither the res of the present lawsuit, i.e., the fee which would reflect the full contingent fee percentage of the settlement, nor Ozmon (at least as to any fee contract) would be before the court in the second suit. Accordingly, although there would be no delay (again, contrary to the majority’s observation) in the fee determination for Ozmon, for Ozmon has already been awarded the full contingent fee by the trial court here, there would be a delay in the final determination of Mr. DeKing’s net proceeds from the settlement because there still must be a resolution of the contingent liability of Mr. DeKing for any fees he may owe Mr. Lowrey. Furthermore, Mr. Lowrey’s lawsuit for fees would not result in any apportionment of the fees with Ozmon, inasmuch as Mr. Lowrey has no agreement with Ozmon concerning these fees at all. (Cf. Schneiderjon v. Krupa (1985), 130 Ill. App. 3d 656, 660, 474 N.E.2d 805, 809; Sullivan v. Fawver (1965), 58 Ill. App. 2d 37, 42, 206 N.E.2d 492, 494.) It is only Mr. DeKing, the client, that Mr. Lowrey can claim any agreement with and, therefore, any basis for a suit for fees.
Hence, it is the client, and not the second attorney, who will face another lawsuit. It is also the client who will incur the obligation to pay additional attorney fees in defending this second lawsuit, which lawsuit will perhaps result in a judgment against the client for even additional attorney fees on the basis of his underlying agreement with Mr. Lowrey. In yet a third lawsuit, Mr. DeKing, the client, may or may not be able to recover back against Ozmon the judgment owed Mr. Lowrey for the value of his legal services.
In a similar setting concerning attorney fees, Leonard C. Arnold, Ltd. v. Northern Trust Co. (1987), 116 Ill. 2d 157, our supreme court upheld a circuit court’s rule on the basis that it was consistent with public policy, i.e., it avoided minitrials concerning fees in personal injury cases and prevented the depletion of the minor’s estate. While the majority finds its ruling consistent with Arnold, in fact the actual result in its decision will lead to numerous trials over the reasonableness of fees in settlements (which, of course, will discourage such settlements) in personal injury suits and “needlessly consume a portion of the *** estate and automatically create an adversarial relationship between the attorney and his client.” (Leonard C. Arnold, Ltd. v. Northern Trust Co. (1987), 116 Ill. 2d 157, 167.) See American Bar Association, Canons of Professional Ethics, Canon 14, which mandates that lawsuits with clients concerning fees are to be avoided.
Finally, I do not believe that Mr. Lowrey was entitled to any change of venue here as a matter of right. (See In re Marriage of Zannis (1983), 114 Ill. App. 3d 1034, 449 N.E.2d 892; Templeton v. First National Bank (1977), 47 Ill. App. 3d 443, 362 N.E.2d 33; cf. Rosewood Corp. v. Transamerica Insurance Co. (1974), 57 Ill. 2d 247, 311 N.E.2d 673.) Mr. Lowrey did not assert that the trial judge was prejudiced; he merely claimed that the trial judge had personal knowledge of what had occurred before him concerning Ozmon’s representation, which knowledge would, Mr. Lowrey contended, be relevant in determining an allocation of any fees due. While it is questionable that such a contention can be a basis for a change of venue, it was, in any event, a matter of discretion for the trial court to decide. (Hengels v. Gilski (1984), 127 Ill. App. 3d 894, 469 N.E.2d 708.) Here, the trial court did not abuse its discretion in denying the motion.
Because Mr. Lowrey offered no evidence concerning the issue of his entitlement to a fee after he had been ordered to do so, I would affirm the decision of the trial court.