Dismissal of Duplicative Matters: Breaches of Contract and Fee Petitions

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Clarice G. Schmidt (“Schmidt”) filed a breach-of-contract claim against attorneys Audrey L. Gaynor and Richard D. Felice and the law firm Audrey L. Gaynor & Associates, P.C. (the “Defendants”).  She accused them of overbilling for their services during her ongoing divorce.  The Defendants moved to dismiss the breach-of-contract claim as duplicative under 735 ILCS 5/2-619(a)(3), since they had already filed fee petitions in Schmidt’s divorce case in order to address the legitimacy of their bills.  The trial court granted the motion and Schmidt appealed.

The Second District affirmed. Dismissal of a redundant matter under section 2-619(a)(3) requires two issues pending “between the same parties for the same cause.”  Id. at ¶9. The parties here were plainly identical. As for the causes of action, they are considered the same if they arise “out of the same transaction or occurrence” such that there is a “substantial similarity.”  Id.  The court noted that substantial similarity did not require “the legal theory, issues, burden of proof or relief sought” to be materially identical.

Here, the only allegations set forth in Schmidt’s breach-of-contract complaint were that the Defendants breached their attorney-client agreements by charging excessive fees. The Second District therefore concluded that the matters were the same, surmising that Schmidt “merely seeks to have a separate court perform another analysis as to the reasonableness and necessity of those same fees.”  Id. ¶12.  Schmidt asserted that her breach-of-contract claim was actually a legal-malpractice claim, but this argument was rejected.  “We are at a loss,” the court declared, “as to how plaintiff’s breach-of-contract suit transformed into one for legal malpractice, when she did not allege any of the elements of legal malpractice.”  Id. at ¶14.  Moreover, Schmidt tacitly acknowledged that she could obtain disgorgement in the divorce/fee-petition litigation because she included her breach-of-contract complaint as an affirmative matter therein.

Schmidt v. Gaynor, 2019 IL App (2d) 180426

(This is for informational purposes and is not legal advice.)

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