Clay v. County of Cook
Case Date: 10/23/2001
Court: 1st District Appellate
Docket No: 1-99-3829 Rel
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SECOND DIVISION
JUSTICE GORDON delivered the opinion of the court: Petitioner-Appellant Mark G. Slutsky (Slutsky) appeals froman order of the circuit court of Cook County awarding himadditional attorney fees pursuant to section 2-1114 of the Codeof Civil Procedure (735 ILCS 5/2-1114 (West 1998)) for performingextraordinary services in a medical malpractice action butawarding him a fee of less than one-third of the recovery in thatcase. On appeal, Slutsky argues that an award of additionalattorney fees pursuant to section 2-1114 is reviewed under themanifest weight of the evidence standard and that the trialcourt's refusal to award him one-third of the settlement wasagainst the manifest weight of the evidence. We affirm. BACKGROUND On February 18, 1984, James Clay (Clay), the plaintiff inthe underlying medical malpractice litigation, was stabbed on theright side of his face and taken to Cook County Hospital fortreatment. During the course of his treatment, he developed acondition which rendered him a quadriparetic. Clay subsequentlyretained several attorneys to represent him in a medicalmalpractice action against the county. Those attorneys filedsuit on Clay's behalf and later voluntarily dismissed the lawsuitwhen they failed, after an exhaustive search, to find an expertwho would testify that the county, through its agents, deviatedfrom the standard of care in treating Clay. Clay subsequently retained Slutsky to represent him in placeof the attorneys whom he had earlier retained and who were unableto secure an expert witness. Slutsky apparently found an expertwitness favorable to Clay and subsequently secured a settlementof three million dollars. On June 2, 1999, Slutsky filed averified petition for attorney fees and filed an amended verifiedpetition on June 22, 1999. In these petitions, Slutsky soughtadditional compensation beyond the maximum normally allowed bylaw in a medical malpractice action where an attorney does notprovide extraordinary services.(1) 735 ILCS 5/2-1114 (West 1998). Slutsky argued that he had performed extraordinary services andsought a fee of one-third of the gross recovery or $337,500 morethan he would otherwise receive pursuant to section 2-1114. In his amended verified petition, Slutsky contended that thecase was complex and difficult. He contended that he spent aninordinate amount of time attempting to develop theories ofrecovery and in locating experts who would testify in Clay'sfavor. Slutsky stated that he would provide, in camera, a listof some of the doctors he contacted in an attempt to procure anexpert witness. Slutsky alleged that he spent over 2000 hours onthe case and that approximately $114,000 was spent on preparationand prosecution of the case. Slutsky averred that the difficulty of Clay's malpracticecase was magnified by several decisions of Clay's prior attorneyswhich prevented the case from proceeding against several of thedoctors involved. In addition, one of the doctors involved wasnever located. Furthermore, the films which might have providedevidence of malpractice from a test which was performed on Claywhile he was still a patient at Cook County Hospital could not befound. Slutsky stated that he was frustrated in asserting acause of action against Cook County Hospital based on spoilationof evidence on the basis of these lost films because of the timethat had elapsed between the test and his taking the case. Slutsky attached several affidavits to his petition. Thefirst affidavit was of Clay, his client. Clay averred that hethought a fee of one-third of the amount recovered was "extremelyfair." The second affidavit was from Peter J. Troy, an attorneywho represented the opposing parties in Clay's medial malpracticeaction. Troy averred that the case was very difficult for theplaintiff; that Slutsky's representation of Clay "consisted ofextraordinary services involving more than usual participation,time and effort;" and that a fee of one-third of the recoverywould be fair and reasonable. The third affidavit was from PeterBehnke, one of the attorneys whom Clay initially retained beforehe retained Slutsky. Behnke averred that he contacted numerousphysicians in an attempt to find an expert witness, but could notfind a single one due to the complexity of the case. As aresult, Behnke dismissed the case. Behnke also averred that dueto the complexity of the case and the extraordinary resultobtained, Slutsky's representation of Clay constituted theperformance of extraordinary services and that a contingent feeof one-third was appropriate. The trial court found that Slutsky had performedextraordinary services and awarded him additional compensation inthe amount of $138,000, over and above the normal fee undersection 2-1114. No transcript of the hearing in which thisdetermination was made is present in the record. Slutskysubsequently filed a motion to reconsider. Apparently Slutskyattached three additional affidavits to his motion to reconsider. These affidavits from Arthur Sullivan, Dom J. Rizzi and SeymourSimon, all former judges, contended that a one-third contingentfee would be reasonable in this case because of the complexity ofthe case and the amount of work required.(2) The motion toreconsider was denied and no transcript of the hearing on themotion to reconsider is present in the record either. Thisappeal followed. ANALYSIS We must first resolve the issue of what standard of reviewapplies in this appeal. Slutsky contends that the standard ofreview under section 2-1114 is to determine if the court'sdecision is against the manifest weight of the evidence. Uponthis premise, Slutsky contends that the trial court's decision inthe case at bar was against the manifest weight of the evidence. Slutsky, however, has not presented and our research has notrevealed any case specifically addressing the standard of reviewfor a fee enhancement under section 2-1114. However, we findthis court's decision in DeSalvo v. Industrial Commission, 307Ill. App. 3d 628, 718 N.E.2d 572 (1999), to be highly analogousand persuasive, although it was decided under a differentstatute. In DeSalvo the court held that a refusal by the IndustrialCommission to award additional fees in excess of 20% of therecovery for extraordinary services by an attorney is reviewedfor an abuse of discretion. DeSalvo, 307 Ill. App. 3d at 634,718 N.E.2d at 576. In DeSalvo the court construed section 16a ofthe Workers' Compensation Act (820 ILCS 350/16a (West 1994)),which, inter alia, limits attorney fees in workers' compensationcases to 20% of the amount recovered unless the IndustrialCommission awards further fees. Concomitantly, the courtconstrued an Industrial Commission rule stating that further feesin excess of the standard 20% contingent fee may be awarded whenthe attorney provides "extraordinary services." DeSalvo, 307Ill. App. 3d at 632, 718 N.E.2d at 574 (citing 50 Ill. Adm. Code7080.10(a)(1)(1996)). The court held that the IndustrialCommission may thus award fees in excess of the 20% limit when anattorney performs extraordinary services. The court then addressed the question of what standard ofreview applied to an appeal of a decision by the IndustrialCommission refusing to award fees for such extraordinaryservices. The DeSalvo court rejected the contention that itshould be governed by the manifest weight of the evidencestandard. The DeSalvo court reasoned that since the abuse ofdiscretion standard is generally applied to awards of attorneyfees in other contexts, it should apply in the worker'scompensation context as well. The court stated that "[w]e agreethat there may be disputed questions of fact in connection withthe award of attorney fees, which may even include the questionof whether certain services are extraordinary. However, we thinkthe decision to award or refuse to award attorney fees in excessof 20% is more properly judged on an abuse of discretionstandard." DeSalvo, 307 Ill. App. 3d at 634, 718 N.E.2d at 576;accord Spinak, Levinson & Associates v. Industrial Commission,209 Ill. App. 3d 120, 127, 568 N.E.2d 41 (1990) (holding theCommission to an abuse of discretion standard in finding that alaw firm was not entitled to additional fees for "extraordinary"services). We agree with DeSalvo since, as articulated in DeSalvo, thatsame standard is generally applied to a review of judiciallyawarded attorney fees. See, e.g., In re Estate of Callahan, 144Ill. 2d 32, 43-44, 578 N.E.2d 985, 990 (1991) (award of fees todischarged attorney under quantum meruit reviewed for abuse ofdiscretion); In re Marriage of Bussey, 108 Ill. 2d 286, 299-300,483 N.E.2d 1229, 1235 (1985) (award of attorney fees indissolution action reviewed for abuse of discretion); Lewis X.Cohen Insurance Trust v. Stern, 297 Ill. App. 3d 220, 233, 696N.E.2d 743, 752 (1998) (award of attorney fees to prevailingplaintiff in action for breach of stock purchase agreementreviewed for abuse of discretion); Alcantar by Alcantar v.People's Gas Light & Coke Co., 288 Ill. App. 3d 644, 651, 681N.E.2d 993, 997 (1997) (award of attorney fees to defendant gascompany due to baseless suit brought against it reviewed forabuse of discretion); Perlman v. Time, Inc., 133 Ill. App. 3d348, 355, 478 N.E.2d 1132, 1138 (1985) (award of attorney fees ina class action reviewed for abuse of discretion). This holding is also consistent with our holding in Andersonv. Anchor Organization for Health Maintenance, 274 Ill. App. 3d1001, 654 N.E.2d 675 (1995). The Anderson court applied theabuse of discretion standard when it reviewed an award ofattorney fees to a discharged attorney in a medical malpracticeaction. The discharged attorney was awarded fees in quantummeruit. The trial court also awarded the attorney an additionalfee enhancement because, among other things, the award in quantummeruit was not a fair proportion of the total fees recovered byattorneys in the case. The court reversed the award ofadditional fees and reviewed both the award of fees in quantummeruit and the fee enhancement under an abuse of discretionstandard stating, "[a]s in any appeal from a discretionaryruling, our function on review is not to determine if the trialcourt wisely exercised its discretion, but only to determine ifthat discretion was abused." Anderson, 274 Ill. App. 3d at 1007,654 N.E.2d at 681. See also, Cole v. Bartels, 4 P. 3d 956, 958(Alaska 2000) (holding that an award of enhanced fees underAlaska Rule of Civil Procedure 82, which provides that aprevailing party shall be awarded fees in the amount of a fixedpercentage of a money judgement unless enhanced, is reviewed foran abuse of discretion). As noted, Slutsky has not presented any case law whicharticulates the standard of review specifically applicable to anaward of attorney fees under section 2-1114. Slutskynevertheless urges that this court follow two cases which heldthat fee awards by the Industrial Commission should be reviewedunder the manifest weight of the evidence standard. Those casesare, Stephens v. Industrial Commission, 284 Ill. App. 3d 269,275, 671 N.E.2d 763, 767 (1996), and Augustine v. IndustrialCommission, 239 Ill. App. 3d 561, 573-74, 607 N.E.2d 229, 237(1992). We do not find these cases to be persuasive. First, inAugustine, the court did not commit to the manifest weight of theevidence standard but appears to straddle the fence by alsoapplying the abuse of discretion standard. Augustine, 239 Ill.App. 3d at 574, 607 N.E.2d at 237 ("Nothing in the recordsuggests that the court abused its discretion in fixing a fee of***" (emphasis added)). While Stephens applies only the manifestweight of the evidence standard, it relies on Augustine as itssole authority for that standard. Stephens, 284 Ill. App. 3d at275, 671 N.E.2d at 767. Secondly, and more overridingly,Augustine and Stephens provide no analysis to support theadoption of the manifest weight of the evidence standard over theabuse of discretion standard. DeSalvo, on the other hand, offersa cogent reason with which we agree. As articulated in DeSalvo,there is no apparent reason to depart from the general ruleapplied to an award of attorney fees, which, as indicated arereviewed under an abuse of discretion standard. See, e.g.,Callahan, 144 Ill. 2d at 43-44, 578 N.E.2d at 990; Bussey, 108Ill. 2d at 299-300, 483 N.E.2d at 1235; Cohen Insurance Trust,297 Ill. App. 3d at 233, 696 N.E.2d at 752; Alcantar, 288 Ill.App. 3d at 651, 681 N.E.2d at 997; Perlman, 133 Ill. App. 3d at355, 478 N.E.2d at 1138. As in the forgoing cases, we find theabuse of discretion standard all the more appropriate undersection 2-1114 since the statute requires a qualitative ratherthan a quantitative determination, permitting the court to applyits own knowledge and experience to its determination. In reMarriage of Sanda, 245 Ill. App. 3d 314, 319, 612 N.E.2d 1346,1349 (1993); In re Estate of Miller, 197 Ill. App. 3d 67, 71, 556N.E.2d 568, 571 (1990). We must therefore now address whether the court abused itsdiscretion. In that respect we first note that Slutsky hasneglected to include a transcript of the hearing on his petitionfor fees in the record on appeal. An appellant has the burden topresent a complete record on appeal and any "doubts which mayarise from the incompleteness of the record will be resolvedagainst the appellant." Foutch v. O'Bryant, 99 Ill. 2d 389, 392,459 N.E.2d 958, 959 (1984). In "the absence of such a record onappeal, it will be presumed that the order entered by the trialcourt was in conformity with law and had a sufficient factualbasis." Foutch, 99 Ill. 2d at 392, 459 N.E.2d at 959. "In the absence of a report of the proceedings,particularly when the judgment order states that thecourt was fully advised in the premises, a reviewingcourt will indulge in every reasonable presumptionfavorable to judgment, order or ruling from which anappeal is taken and must presume that the evidenceheard by the trial court was sufficient to support thejudgment absent any contrary indication in the record." Mars v. Priester, 205 Ill. App. 3d 1060, 1066, 563N.E.2d 977, 981 (1990). See also, Foutch, 99 Ill. 2d at 392, 459 N.E.2d at 959 (where notranscript was presented on appeal of the hearing below on amotion to vacate there was no basis to hold that the trial courthad abused its discretion in denying the motion). This court's decision in EDN Real Estate Corp. v. MarquetteNational Bank, 263 Ill. App. 3d 161, 635 N.E.2d 738 (1994), isdirectly on point. In the facts of EDN Real Estate the plaintiffsued the defendant alleging breach of a lease. The defendantprevailed on the merits at trial and the trial court awarded thedefendants attorney fees pursuant to a section of the lease whichprovided for their recovery. On appeal, the plaintiff contendedthat the trial court's award of attorney fees was excessive. Thecourt refused to reverse the award, however, because notranscript of the hearing on the fees was present in the record. The court held that "where the record does not include a reportof the proceedings, where the judgment order states that thecourt found the fees to be reasonable, and where there is noindication to the contrary, it must be presumed that the evidencepresented to the trial court supported the judgment." EDN RealEstate, 263 Ill. App. 3d at 167, 635 N.E.2d at 743. Likewise, in the case at bar, no report of proceedings ofthe hearing on attorney fees is present in the record. The orderappealed from indicates that the court was "fully advised in thepremises." The order further states that Slutsky had providedextraordinary services and that the additional fee of $138,000was "an appropriate fee." We thus presume that the award ofattorney fees was adequately supported by the evidence presentedto and considered by the trial court. EDN Real Estate, 263 Ill.App. 3d at 167, 635 N.E.2d at 743. On that basis alone, we wouldbe compelled to decline Slutsky's attempt to reverse the trialcourt in rendering its attorney fee award. EDN Real Estate, 263Ill. App. 3d at 167, 635 N.E.2d at 743. However, even if we were to reach the merits of this issue,nothing in the record before this court indicates that the trialcourt abused its discretion in its award of attorney fees toSlutsky.(3) "An abuse of discretion occurs where no reasonable personwould agree with the position adopted by the trial court." Schwartz v. Cortelloni, 177 Ill. 2d 166, 176, 685 N.E.2d 871, 876(1997); accord Romack v. R. Gingerich Co., 314 Ill. App. 3d 1065,1067, 734 N.E.2d 29, 31 (2000). Thus, a "trial court cannot besaid to have abused its discretion if reasonable persons coulddiffer as to its decision." In re Adoption of D., 317 Ill. App.3d 155, 160, 739 N.E.2d 109, 113 (2000). Nothing in the statute requires the court to award anattorney fee of one-third of the recovery in the event that itfinds that the attorney rendered extraordinary services. 735ILCS 5/2-1114 (West 1998). Rather, the statute provides that thecourt may approve "additional compensation." 735 ILCS 5/2-1114(c) (West 1998). The statute thus permits a range of awardsfor attorneys who perform extraordinary services and not everyaward of additional fees will result in a fee of the samepercentage of the recovery. The statute recognizes that anattorney may perform and be compensated for extraordinaryservices without being entitled, or for that matter limited, toone-third of the recovery. Furthermore, as pointed out, therange of fees awarded under section 2-1114 is not quantified byspecific statutory criteria, but is left open ended to thediscretion of the trial judge. Accordingly, there is no reasonto assume that the usual factors to be considered by the courtsin their discretionary awards of attorney fees generally shouldnot apply to an award of additional attorney fees under section2-1114. 134 Ill. 2d R. 1.5. Slutsky concedes that the criteria enumerated in SupremeCourt Rule 1.5 may be utilized in evaluating fee awards under theprovisions of section 2-1114. Rule 1.5 provides: "The factors to be considered in determining thereasonableness of a fee include the following: (1) the time and labor required, the novelty anddifficulty of the questions involved, and the skillrequisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that theacceptance of the particular employment will precludeother employment by the lawyer; (3) the fee customarily charged in the locality forsimilar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or bythe circumstances; (6) the nature and length of the professionalrelationship with the client; (7) the experience, reputation and ability of thelawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent." 134 Ill.2d R. 1.5. See also In re Doyle, 144 Ill. 2d 451, 581 N.E.2d 669 (1991)(applying the predecessor to Rule 1.5 to determine if acontingent fee was excessive). Similar factors are generallyapplied by Illinois courts in determining an appropriate award ofattorney fees: "In assessing the reasonableness of fees, the trialcourt should consider a variety of factors, includingthe skill and standing of the attorneys employed, thenature of the case, the novelty and difficultly of theissues involved, the degree of responsibility required,the usual and customary charge for the same or similarservices in the community, and whether there is areasonable connection between the fees charged and thelitigation." Chicago Title & Trust Co. v. ChicagoTitle & Trust Co., 248 Ill. App. 3d 1065, 1072, 618N.E.2d 949, 955 (1993). Accord, Sampson v. Miglin, 279 Ill. App. 3d 270, 281, 664 N.E.2d281, 289 (1996); Anderson, 274 Ill. App. 3d at 1008, 654 N.E.2dat 681-82. While Slutsky has presented extrinsic submissions bearingupon several of these factors, there are certain factors forwhich no factual support was provided to the trial court. Moreover, while Slutsky has submitted affidavits with respect toseveral of these factors, the affidavits are largely conclusoryand without itemization or detail. Although it is one of the factors to be considered underRule 1.5 and under Chicago Title and Trust, no evidencewhatsoever was presented with regard to Slutsky's skill,reputation or standing in the community. Along the same vein,the submissions fall short of establishing "the usual andcustomary charge for the same or similar services in thecommunity." While several of the affidavits state that therequested fee is "reasonable," Slutsky did not provide the trialjudge with any testimony or documentary evidence of other similarinstances where the fees were increased to one-third of therecovery.(4) Moreover, while Slutsky presented several affidavitsfrom distinguished former jurists attesting to the "novelty anddifficulty" of the case, it must be noted that Slutsky's skilland mastery of these difficulties was never fully tested in atrial arena, albeit that it led to what has been attested as afavorable settlement. Even more overridingly, while Slutsky indicates in hispetition that he spent over 2000 hours in developing this case,he does not provide any detail as to how those hours were spent. Slutsky submitted no time sheets or time records of any kind. While 2000 hours represents a full year of labor (50 40-hourweeks), Slutsky makes no attempt to allocate in any detail howthis vast stretch of time was spent in pursuing his experts andin arriving at his theories of recovery. For example, Slutskydoes not indicate how many doctors he contacted or how much timehe expended with each of them in order to procure the necessaryexperts. While the affidavit of Behnke, Clay's prior counsel, issomewhat more detailed and expansive regarding the variousexperts whom Behnke contacted in his fruitless attempt to procurean expert, it does not address or disclose whom Slutsky contactedin his efforts to procure experts. Thus the affidavits which hesubmits attempt to sweep with a broad brush without specifying oritemizing the full gamut of time and effort which he expended onbehalf of Clay. We do not, by our analysis of Slutsky's submissions, attemptto minimize or diminish the effort of the petitioner and theresult obtained on behalf of his client. But at the same time weare not unmindful of the fact that the fee in the vicinity of$800,000 which Slutsky was permitted to recover is, in and ofitself, substantial and for which substantial expenditure ofskill, time and effort may be expected. While we would notnecessarily have felt the need to reverse an award by the trialcourt of the full one-third of the recovery (as in Anderson), wecannot conclude that the trial judge abused her discretion inawarding the lesser amount of approximately 26.68% of therecovery. Thus even if a transcript or bystander's report of thetrial court's hearing were included in the record we would, basedupon the record presented, sustain the trial court's exercise ofdiscretion in limiting the award as it did. For the reasons discussed above, the judgement of thecircuit court of Cook County is affirmed. Affirmed. CAHILL, J. and COUSINS, J., concur.
1. Section 2-1114 states in relevant part as follows: "(a) In all medical malpractice actions the totalcontingent fee for plaintiff's attorney or attorneysshall not exceed the following amounts: 33 1/3% of the first $150,000 of the sumrecovered; *** (c) The court may review contingent fee agreementsfor fairness. In special circumstances, where anattorney performs extraordinary services involving morethan usual participation in time and effort theattorney may apply to the court for approval ofadditional compensation." 735 ILCS 5/2-1114 (West1998).
3. Although Slutsky has not directed his arguments that thecourt erred in not awarding him a fee of one-third of therecovery to the abuse of discretion standard, we will use hisarguments directed to the manifest weight of the evidencestandard to determine if the court's decision rises to the levelof an abuse of discretion. Gerber v. Hamilton, 276 Ill. App. 3d1091, 1098, 659 N.E.2d 443, 447 (1995) (Rarick, J., dissenting)("More deference is shown the lower court under the abuse ofdiscretion standard than the manifest weight standard"). Oursupreme court has held that manifest weight of the evidence andabuse of discretion are different and distinct standards ofreview. People v. Andrews, 146 Ill. 2d 413, 428, 588 N.E.2d1126, 1135 (1992) (trial court's ruling on issue of prima faciecase is reviewed under manifest weight not abuse of discretionstandard). Our supreme court has also recognized that the abuseof discretion standard is "the most deferential standard ofreview available with the exception of no review at all." Peoplev. Coleman, 183 Ill. 2d 366, 387, 701 N.E.2d 1063, 1074 (1998);M. Davis, A Basic Guide to Standards of Judicial Review, 33S.D.L.Rev. 469, 470-71 (1988). If the two standards aredifferent, and abuse of discretion is the most deferentialstandard available, manifest weight review must therefore be lessdeferential than abuse of discretion review. 4. Slutsky does note in his brief one instance in a singlecase, Anderson, where the trial court apparently approvedattorney fees of approximately 37% of the recovery. Anderson,274 Ill. App. 3d at 1004, 654 N.E.2d at 679. However, even inthat one single instance, there is no indication given as to howmany of the factors enumerated herein were satisfied. |
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