dissenting:
I disagree with both the majority’s conclusion that the trial court’s order awarding attorney fees is void and its conclusion that Joseph P. Storto, P.C. v. Becker, 341 Ill. App. 3d 337 (2003), is inapplicable to the facts of this case and, therefore, I respectfully dissent.
First, the trial court erred in granting defendant’s motion to vacate, which, I believe, was an improper collateral attack on an order. The order awarding plaintiff attorney fees was entered on May 8, 2000. Defendant’s motion was filed almost 21 months later on February 5, 2002. Defendant brought his motion under the guise of a “Motion to Vacate the Void Orders of this Court.” Apparently, defendant relies on the legal principle that a void judgment may be attacked at any time (In re Estate of Steinfeld, 158 Ill. 2d 1, 12 (1994)) to excuse the extended delay in filing his motion. Defendant’s argument is twofold. On the one hand, defendant argues that the contract between plaintiff and its attorneys is void under public policy grounds and, therefore, the court’s order under the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/10a(c) (West 2002)), that defendant pay attorney fees, is also void. Alternatively, citing Remole Soil Service, Inc. v. Benson, 68 Ill. App. 2d 234 (1966), defendant argues the failure of plaintiffs attorneys’ corporation to register under Supreme Court Rule 721(c) (166 Ill. 2d R. 721(c)) has the effect of voiding the proceedings and resulting judgment.
A void order is one entered by a court without jurisdiction of the subject matter or the parties, or by a court that lacks the inherent power to make or enter the order involved. In re Estate of Steinfeld, 158 Ill. 2d at 12; In re Marriage of Mitchell, 181 Ill. 2d 169, 174 (1998). Even if defendant’s argument that the contract was void is correct, basing an order for attorney fees on a void contract would not make the order itself void. The invalidity of the contract does not strip the court of jurisdiction nor does it render the court inherently without power to make or enter the order for attorney fees. Defendant relies on Rome v. Upton, 271 Ill. App. 3d 517 (1995), for the proposition that the trial court lacked subject matter jurisdiction to enter the order because a contract to pay attorney fees to a professional corporation not authorized to practice law is against public policy. However, the court in Rome held only that a contract based on matters against public policy is void, not that a judgment based on such matters is void. Rome, 271 Ill. App. 3d at 519-22. Consequently, defendant has failed to cite any support for this proposition and I fail to see any reason why the invalidity of a contract, whether predicated on public policy reasons or not, has the effect of removing the jurisdiction of the trial court.
Furthermore, I believe defendant’s and the trial court’s reliance on Remole Soil Service, Inc. v. Benson, 68 Ill. App. 2d 234 (1966), for the proposition that the proceedings are void is misguided. The nullity rule enunciated in Remole states that proceedings by a person not authorized to practice law, and any resulting judgment, are void. Re-mole, 68 Ill. App. 2d at 239. However, “[t]he purpose of the rule is to protect litigants against the mistakes of those ignorant of the law and the schemes of the unscrupulous, and to protect the court itself in the administration of its proceedings from those lacking requisite legal skills.” Pratt-Holdampf v. Trinity Medical Center, 338 Ill. App. 3d 1079, 1083 (2003). In this case, neither purpose of the nullity rule is served and it should not be used to void the proceedings or judgment. As discussed below, we held in Storto that Rule 721(c) was not enacted for public protection purposes. Storto, 341 Ill. App. 3d at 344. Consequently, applying the nullity rule to a violation of Rule 721(c) would not protect litigants since Rule 721(c) was not designed to do so. We must keep in mind that at all times relevant to the court proceedings herein the individual in court on behalf of plaintiff was validly licensed to practice law. There are no allegations made in relation to the underlying action that the individual was ignorant of the law or unscrupulous. Additionally, the court is not protected by an application of the nullity rule to this case because a violation of Rule 721(c) simply indicates that the corporation is not properly registered, not that the attorney in question lacks requisite legal skills. Therefore, I do not believe it was appropriate for the majority to apply the nullity rule to void the judgment in this case.
Therefore, I conclude that the court’s award of attorney fees was not subject to a collateral attack, such as the one attempted by defendant, and the trial court should have denied the motion. In re Marriage of Mitchell, 181 Ill. 2d at 174.
Next, even if defendant had properly appealed the award of attorney fees within the applicable time to appeal that order, I believe defendant’s contention that he should not be required to pay plaintiffs attorney fees is incorrect. This court held in Storto that the failure of a law firm organized as a professional services corporation to pay its registration fees under Rule 721(c) did not relieve its clients of paying their attorney fees. I believe that the reasoning of Storto is equally applicable in this case. In Storto, we held that Rule 721(c) was not enacted for the protection of public safety and, therefore, contractual obligations owed to a corporation not properly registered under Rule 721(c) could not be voided absent a showing of prejudice resulting from the failure to register. Storto, 341 Ill. App. 3d at 342-44. We so held because to allow such an avoidance, absent prejudice, would be disproportionate to the wrong committed by the law firm. Storto, 341 Ill. App. 3d at 343. In this case, defendant was ordered to pay plaintiffs attorney fees under the Consumer Fraud and Deceptive Business Practices Act. 815 ILCS 505/10a(c) (West 2002). Defendant has not alleged that he was prejudiced in any way by plaintiffs attorneys not being properly registered. Furthermore, defendant’s contention that the contractual relationship between plaintiff and its attorneys was void as against public policy must fail because we held in Storto that Rule 721(c) was not enacted for public protection and, therefore, public policy is not implicated when the rule is violated. Consequently, under Storto, to allow defendant to avoid paying attorney fees, absent prejudice, because of plaintiffs attorneys’ failure to register would be disproportionate to any harm suffered by defendant.
The majority opinion states that because defendant was not the client, as was the case in Storto, and did not receive a benefit from the unregistered corporation, our decision in Storto is inapplicable. The only way I can see how this distinction would be relevant would be if our decision in Storto was predicated on an estoppel theory. That is, because the plaintiff in Storto accepted the benefit of her attorney’s services, she was estopped from attempting to avoid paying her attorney fees. However, this was not our reasoning in Storto. As I stated above, Storto turned on the fact that allowing the avoidance of contractual obligations because of the failure to register under Rule 721(c) would be disproportionate to the harm caused by the failure to register. Storto, 341 Ill. App. 3d at 343. In this case, to allow defendant to avoid his statutory duty to pay attorney fees would be even more disproportionate to the harm caused than was the case in Storto. The purpose, at least partly, of the attorney fees provision of the Consumer Fraud and Deceptive Business Practices Act is to encourage people to bring meritorious claims and to discourage the filing of frivolous claims. See Majcher v. Laurel Motors, Inc., 287 Ill. App. 3d 719, 730 (1997) (considering the relative merits of the parties’ positions as a factor in deciding whether or not to award attorney fees). To allow defendant to circumvent the objectives of a statutory provision with such an important public purpose would be even more disproportionate to any harm suffered by him than allowing the avoidance of a private contractual obligations would be. Since we refused to allow avoidance of private contractual obligations in Storto, I do not see how we can allow the avoidance of such a statutory obligation in this case.
For the foregoing reasons, I respectfully dissent from the majority opinion. I would reverse the trial court’s order voiding its award of attorney fees.