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Appellate Court Date: 2022.06.22
11:38:18 -05'00'
Glancy v. Brown, 2021 IL App (3d) 200468
Appellate Court STEVEN GLANCY; JANE OHAVER; and JANE E. OHAVER, P.C.,
Caption Plaintiffs-Appellees, v. JOEL BROWN; JOEL E. BROWN &
ASSOCIATES, P.C.; and THE LAW OFFICES OF JOEL E.
BROWN, a Professional Corporation, Defendants-Appellants.
District & No. Third District
No. 3-20-0468
Filed July 9, 2021
Rehearing denied August 3, 2021
Decision Under Appeal from the Circuit Court of Peoria County, No. 20-L-183; the
Review Hon. Christopher R. Doscotch, Judge, presiding.
Judgment Affirmed.
Counsel on Stephen M. Buck, of Quinn Johnston, of Peoria, for appellants.
Appeal
Christopher P. Ryan, of Law Office of Christopher P. Ryan, P.C., of
Peoria, for appellees.
Panel JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
Justices Daugherity and Lytton concurred in the judgment and
opinion.
OPINION
¶1 The plaintiffs, Steven Glancy, Jane Ohaver, and Jane E. Ohaver, P.C., filed a complaint
against the defendants, Joel Brown, Joel E. Brown & Associates, P.C., and The Law Offices
of Joel E. Brown 1 (collectively, Brown), seeking to enforce an alleged attorney fee-sharing
agreement related to the prosecution of a personal injury and wrongful death action in
Missouri. The trial court granted the plaintiffs a preliminary injunction, ordering Brown to hold
50% of the attorney fees in trust or escrow pending the disposition of the matter on the merits.
Brown appealed.
¶2 I. BACKGROUND
¶3 The plaintiffs’ complaint alleged breach of contract, breach of fiduciary duty, and tortious
interference with contract in conjunction with an attorney fee-sharing contract in a personal
injury and wrongful death action that was filed in Missouri. As alleged in the complaint, Donny
Lee Schroeder was seriously injured in an automobile accident that occurred on July 23, 2014.
Donny’s parents and brother were killed in the accident. Kelley Schroeder, Donny’s aunt, was
appointed the executrix of the deceaseds’ estates and the guardian of Donny. Kelley, who was
looking for legal representation for potential personal injury and wrongful death actions,
contacted Ohaver on the recommendation of the life insurance representative, and Ohaver
recommended Glancy and Brown. Kelley met jointly with Glancy and Brown. A “Contract for
Employment of Attorney” was signed on August 22, 2014, by Kelley as the executrix of the
deceaseds’ estates and as the next friend and guardian of Donny, with Joel E. Brown &
Associates, P.C., listed as the attorney. Paragraph three of the contract provided that the
attorney was entitled to 33⅓% of the gross settlement or judgment. Paragraph six of the
contract provided:
“Client is advised and consents to a referral fee, deducted from Attorney’s fee as
described above, payable to attorneys Steven Glancy and Jane Ohaver. Client
authorizes Attorney to retain Steven Glancy as co-counsel and to assist in the
representation of Client. The combined referral and co-counsel fee shall be 50% of the
fees described in paragraph 3 and will not increase any fees or costs payable by Client
as set forth above in paragraphs 3 and 4. Steven Glancy and Joel Brown are jointly
responsible for the case.”
¶4 The complaint further alleges that in 2016, Brown contacted Kelley regarding local
Missouri counsel, and Brown also reported to Kelley some alleged misconduct by Glancy.
That alleged misconduct included substance abuse issues and not performing professionally at
the office. On March 24, 2016, Brown cancelled the August 22, 2014, contract, a decision that
was allegedly retroactively approved by Kelley. On March 28, 2016, Kelley signed a new
“Contract for Employment of Attorney.” The contract was essentially the same as the prior
contract, except paragraph six, which now provided:
“Client is advised, authorizes and consents to a referral fee, deducted from Attorney’s
fee as described above, payable to attorney Jane Ohaver, in an amount to be determined
at the conclusion of the matter. Further, Client is advised, authorizes and consents to
1
The plaintiffs’ complaint was amended by court order dated August 11, 2020, to add The Law
Offices of Joel E. Brown as a defendant.
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Joel E. Brown to retain local counsel to serve in this matter. The fees for retaining local
counsel shall not increase the fees that may be payable under paragraph 3 above, and
the fees for local counsel may be a percentage of the attorney fees described in
paragraph 3 above, or may be paid by Joel E. Brown to local counsel on an hourly
basis. In no event shall the total combined attorney fees, referral fees or local counsel
fees exceed one-third of the gross recovery or settlement as described in paragraph 3
above.”
¶5 Then, after Donny’s eighteenth birthday, on September 30, 2017, Brown had Donny
execute the contract in his own capacity. The September contract contained the same terms,
except it stated that it was an addendum to and in addition to the March 28, 2016, contract.
¶6 The complaint alleges that the underlying wrongful death action settled in Missouri and
the settlement was approved on July 9, 2020. It is alleged that the settlement, along with an
earlier settlement, were in the amount of $21 million, putting approximately $6.9 million in
attorney fees at issue. Brown contended that he did not owe any fees to Glancy or Ohaver; in
response, Glancy and Ohaver brought the instant suit. In addition to the complaint, the
plaintiffs filed a petition for preliminary injunctive relief and a petition for an emergency
temporary restraining order (TRO), the latter pursuant to section 11-101 of the Code of Civil
Procedure (Code) (735 ILCS 5/11-101 (West 2018)). The trial court initially granted the TRO
without notice on August 3, 2020. Brown filed a motion to dissolve the TRO and filed an
opposition brief to the petition for preliminary injunctive relief; a hearing date was set for
September 18, 2020. Brown did not answer the complaint, but, on August 25, 2020, filed a
motion to dismiss the complaint pursuant to sections 2-613 and 2-619.1 of the Code (id. §§ 2-
613, 2-619.1).
¶7 At the hearing on the motion to dissolve the TRO and to grant the preliminary injunction,
Brown argued that his motion to dismiss should be decided first. As the trial court noted in its
order, Brown did not request a continuance of the preliminary injunction hearing to allow for
the plaintiffs to respond to the motion to dismiss and for a hearing on the motion to dismiss
prior to a hearing on the preliminary injunction. The trial court stated that it was hesitant to
leave the TRO in full force and effect without a request for a continuance from Brown. The
trial court decided that it would proceed with the injunction hearing and that the plaintiffs
should have the opportunity to respond to the motion to dismiss. The trial court found that
Brown answered the petition for a preliminary injunction, rather than filing a motion for
summary judgment or a motion to strike, so the injunction was at issue and could be decided.
The trial court directed Brown to incorporate his arguments regarding dismissal into his
argument regarding the elements necessary for preliminary injunctive relief. The motion to
dismiss would be addressed later.
¶8 At the hearing, Ohaver testified that she was contacted regarding the Schroeder litigation.
Ohaver testified that her husband, Glancy, had experience with trucking cases, so she
recommended him along with Brown, who was licensed to practice law in Missouri. Ohaver
testified that she understood the original August 22, 2014, contract to provide her one-third of
the attorney fees as a referring attorney. Ohaver testified that, as the referring attorney, she
understood that she had a legal obligation to the client. Between 2014 and 2016, Ohaver
worked on other Schroeder legal matters and provided a reference so that Brown could reinstate
his Missouri license. Ohaver had no issues with Brown until the spring of 2016. Ohaver denied
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that Glancy had any substance abuse problems or personal problems that affected his legal
representation.
¶9 Glancy testified that he rented office space from Brown and that Glancy and Brown shared
legal representation in various cases. Glancy executed the August 22, 2014, contract, along
with Brown and Kelley. Glancy testified that he and his wife, Ohaver, were the referring
attorneys and that Glancy was also cocounsel with Brown. Glancy testified that between 2014
and March 2016, he did research into jurisdictional issues and reimbursed Brown for half of a
$10,000 bill from an expert, but Glancy was going to be responsible for the medical aspect of
the litigation. Glancy was not aware of any problems with Brown until he received a copy of
an e-mail from Brown to Kelley dated March 20, 2016, that discussed a fee to be paid to local
counsel and recounted all of the work that Brown had done on the case to date. Glancy found
out in July 2016 that Brown was arguing that Missouri law barred Brown from paying a referral
fee.
¶ 10 Kelley testified that she met with Brown and Glancy in their office upon a referral from
Ohaver to pursue the wrongful death and personal injury actions. Kelley executed the original
attorney fee contract with Brown and Glancy on August 22, 2014. Kelley testified that Brown
explained to her that Glancy would be cocounsel and that Ohaver would receive a referral fee,
and Glancy and Ohaver’s combined portion would be half of the attorney fees. Thereafter, in
the spring of 2016, Brown contacted Kelley regarding hiring local counsel in Missouri and
regarding a dispute with Glancy about how local counsel would be paid. Kelley testified that
Brown told her that Glancy was having drug and alcohol problems that were affecting his work.
Brown also told Kelley that Glancy was not doing an equal amount of work on the case. Kelley
testified that she terminated Glancy as counsel in the case primarily because of the allegations
of drug and alcohol abuse and secondarily because Glancy had not done equal work on the
case. Kelley signed the March 28, 2016, contract on the basis that Brown told her that Ohaver
would still receive one-third of the attorney fees as a referral fee. At a settlement meeting with
Brown and Donny on July 3, 2020, Brown told Kelley that there would be no referral fee paid
to Ohaver because it was prohibited by Missouri law.
¶ 11 The trial court dissolved the TRO because the order did not explain why it was entered
without notice. In the same order, the trial court granted the plaintiffs’ motion for a preliminary
injunction. ln ruling on the preliminary injunction, the trial court stated that it considered the
verified complaint, attached affidavit of Brown, motion for preliminary injunction, answer to
preliminary injunction, Brown’s combined motion to dismiss, relevant case law, and the
testimony presented. The court rejected Kelley’s supplemental affidavit as hearsay but
considered her admissible testimony regarding the same. The trial court noted that the
settlement funds were in Brown’s trust account, and the preliminary injunction required Brown
to hold 50% of the attorney fees in trust or escrow pending the resolution of the matter. Brown
was not prohibited from distributing the remainder of the settlement, including costs and
payment to Missouri counsel. Also, the plaintiffs were required to post a bond. Brown
appealed.
¶ 12 II. ANALYSIS
¶ 13 As an initial matter, Brown argues that the trial court erred in proceeding with a preliminary
injunction hearing when Brown had a pending motion to dismiss that the plaintiffs had not yet
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answered and Brown had not filed an answer to the complaint. The plaintiffs argue that an
evidentiary hearing was appropriate in this case.
¶ 14 We find no error in the trial court’s decision to go forward with the hearing on the motion
to dissolve the TRO and the motion for a preliminary injunction to maintain the status quo
while the motion to dismiss was pending. As the trial court noted, Brown did not request a
continuance of the hearing to allow the plaintiffs time to respond to his motion to dismiss.
Also, Brown filed an answer addressing the merits of the motion for a preliminary injunction
rather than filing a motion for summary judgment or a motion to strike. The plaintiffs had filed
a verified complaint, and a temporary injunction could be issued based solely on the basis of
the complaint. See Carriage Way Apartments v. Pojman, 172 Ill. App. 3d 827, 835 (1988).
Considering that the preliminary injunction was granted, at worst the hearing benefitted Brown
by allowing him the opportunity to contradict the verified allegations of the complaint as the
trial court determined whether the plaintiffs had met their burden of showing a fair question as
to each necessary element. See id. at 836 (evidentiary hearing is not required when there are
no issues of material fact); cf. Russell v. Howe, 293 Ill. App. 3d 293, 296 (1997) (trial court
abused its discretion in denying a preliminary injunction based on extraneous evidence
received at evidentiary hearing rather than limiting its consideration to the legal sufficiency of
the complaint).
¶ 15 Brown argues that the trial court abused its discretion in granting the preliminary
injunction, contending that the plaintiffs failed to establish any of the elements necessary for a
preliminary injunction. Brown also argues that the preliminary injunction entered by the trial
court amounted to an improper equitable attachment and was too vague to be enforced. The
plaintiffs argue that the trial court did not abuse its discretion. The plaintiffs contend that they
raised a fair question as to each element required for injunctive relief.
¶ 16 A preliminary injunction is an extreme remedy that should only be employed where serious
harm would result if the injunction were not issued. Callis, Papa, Jackstadt & Halloran, P.C.
v. Norfolk & Western Ry. Co., 195 Ill. 2d 356, 365 (2001). The party seeking a preliminary
injunction must show a fair question as to each of the four required elements: “(1) a clearly
ascertained right in need of protection, (2) irreparable injury in the absence of an injunction,
(3) no adequate remedy at law, and (4) a likelihood of success on the merits of the case.”
Mohanty v. St. John Heart Clinic, S.C., 225 Ill. 2d 52, 62 (2006). The only question before this
court is whether there was a sufficient showing to sustain the order of the trial court,
specifically, whether the party seeking the injunction demonstrated a prima facie case that
there is a fair question as to the existence of the rights claimed. Callis, Papa, Jackstadt &
Halloran, P.C., 195 Ill. 2d at 366. We review a decision to grant or deny a preliminary
injunction for an abuse of discretion. Id.
¶ 17 The trial court found that the plaintiffs established there was a fair question that they had a
clearly ascertained right in need of protection, i.e., that they were entitled to a referral fee under
Illinois law. Illinois law allows the payment of a referral fee. Ill. R. Prof’l Conduct R. 1.5(e)
(eff. Jan. 1, 2010); Ferris, Thompson & Zweig, Ltd. v. Esposito, 2017 IL 121297, ¶ 32. The
trial court considered Brown’s motion to dismiss in making this finding, concluding that it did
not seem likely that the claims would be dismissed with prejudice. See Danville Polyclinic,
Ltd. v. Dethmers, 260 Ill. App. 3d 108, 115 (1994) (court could consider affirmative defenses
at a hearing on a request for preliminary injunction). In this case, the trial court properly
considered the sufficiency of the complaint in light of Brown’s motion to dismiss because an
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injunction is based on the pleadings as they exist at the time the injunction is entered. See
Miollis v. Schneider, 77 Ill. App. 2d 420, 427 (1966); see also Guns Save Life, Inc. v. Raoul,
2019 IL App (4th) 190334, ¶ 10 (“ ‘The right to injunctive relief necessarily brings into
question the sufficiency of the complaint ….’ ” (quoting Olympic Federal v. Witney
Development Co., 113 Ill. App. 3d 981, 984 (1983))). A preliminary injunction is intended to
preserve the status quo until the trial court “has an opportunity to consider the cause upon its
merits or upon a motion to dismiss.” Bowman Shoe Co. v. Bowman, 21 Ill. App. 2d 423, 440
(1959). The trial court concluded that it was possible that some of the claims would be
dismissed under sections 2-613 or 2-615 of the Code (735 ILCS 5/2-613, 2-615 (West 2018))
but not with prejudice. If the motion to dismiss under section 2-619.1 of the Code was granted,
the preliminary injunction would cease and Brown would be entitled to any damages.
¶ 18 The second and third elements, irreparable harm and adequate remedy at law, are closely
related. Happy R. Securities, LLC v. Agri-Sources, LLC, 2013 IL App (3d) 120509, ¶ 36. The
trial court found that the plaintiffs established a fair question with regard to an adequate remedy
at law even though they were only seeking monetary damages. Typically, if plaintiffs are
seeking only monetary damages, the remedy at law is adequate, and the plaintiffs cannot show
irreparable harm. Hensley Construction, LLC v. Pulte Home Corp., 399 Ill. App. 3d 184, 190
(2010). As the plaintiffs acknowledge in their brief, equitable attachments, whereby a creditor
seeks to restrain a debtor’s control over property in its possession and thereby enforce by
attachment a purely equitable claim that is not reduced to judgment, are not allowed in Illinois.
American Re-Insurance Co. v. MGIC Investment Corp., 73 Ill. App. 3d 316, 325 (1979) (citing
Dunham v. Kauffman, 385 Ill. 79 (1943)). Section 4-101 of the Code permits attachment in
only 10 specific circumstances, and the plaintiffs did not plead any of these circumstances. See
735 ILCS 5/4-101 (West 2018); Hensley Construction, LLC, 399 Ill. App. 3d at 191. There is
an exception, though, when the plaintiffs have an interest in a specific fund held by the
defendant, which is known as the specific fund exception. Hensley Construction, LLC, 399 Ill.
App. 3d at 191. “The exception contemplates specific funds such as insurance proceeds or
inheritances.” Grower Service Corp. v. Brown, 204 Ill. App. 3d 532, 535 (1990). The trial court
applied the specific fund exception to equitable attachments because the money at issue was a
specific fund and the trial court found that Brown’s alleged behavior weighed in favor of the
exception.
¶ 19 The existence of a remedy at law does not deprive a court of its equitable power to grant
injunctive relief unless the remedy is adequate. K.F.K. Corp. v. American Continental Homes,
Inc., 31 Ill. App. 3d 1017, 1021 (1975). To be adequate, the remedy “must be clear, complete,
and as practical and efficient to the ends of justice and its prompt administration as the
equitable remedy.” Id. In this case, the fund at issue is clearly subject to the court’s final order
and specific to the underlying dispute, and the trial court was taking steps to ensure that the
money was preserved until there could be a decision on the merits. See American Re-Insurance, 73 Ill. App. 3d at 325; see also Brown,
204 Ill. App. 3d at 535 (specific fund
exception contemplates specific funds such as insurance proceeds).
¶ 20 The trial court also found that the plaintiffs established a fair question of likelihood of
success on the merits, specifically, the application of Illinois law (which favors a referral fee)
rather than Missouri law (which allegedly does not allow referral fees) and whether they were
involved in a joint venture for purposes of administering this case.
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¶ 21 After determining that the plaintiffs have shown the four necessary elements, before
imposing a preliminary injunction, the trial court must balance the equities and conclude that
the benefits to granting the injunction outweigh any possible injury that the injunction will
cause. Travelport, LP v. American Airlines, Inc., 2011 IL App (1st) 111761, ¶ 48. In this case,
the trial court found that the balance of equities or hardships favored the plaintiffs due to
Brown’s actions, including his lack of transparency. Also, the trial court found that Brown did
not argue that holding half of $6.9 million in trust while the matter was litigated would inhibit
his ability to maintain his business. In addition, plaintiffs were required to post a bond. Public
policy was not a factor. Our review is limited to whether the plaintiffs made a sufficient
showing, i.e., raised a fair question, as to each element to sustain the trial court’s order. See
Smith v. Department of Natural Resources, 2015 IL App (5th) 140583, ¶ 22. We find that the
plaintiffs did so and the trial court did not abuse its discretion in granting the preliminary
injunction.
¶ 22 III. CONCLUSION
¶ 23 The judgment of the circuit court of Peoria County is affirmed.
¶ 24 Affirmed.
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