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SIXTH DIVISION

September 13, 2002

PRESIDING JUSTICE GALLAGHER delivered the opinion of the court:

The appellant in this case, D'Ancona & Pflaum, L.L.C., (D'Ancona & Pflaum), is a lawfirm that represented plaintiffs, D. Stephen Guerrant and Marcia Guerrant (the Guerrants), in theunderlying litigation from March 1986 through September 2000. D'Ancona & Pflaum appealsfrom an order of the trial court finding that D'Ancona & Pflaum was entitled to recover only$2,940.92 for its costs and expenses⁽¹⁾ out of the $20,704.91 that it had claimed as costs andexpenses. In this appeal, D'Ancona & Pflaum seeks the following expenditures denied by thetrial court: computer-assisted legal research charges of $10,348.45 (Westlaw) and $443.83(LEXIS), photocopy charges of $2,028.61, one court reporter bill in the amount of $100,telephone toll charges of $57.50, and cab fare of $15.⁽²⁾ The primary issue in this appeal iswhether the expenditures denied by the trial court were recoverable pursuant to the terms of theparties' written contingent fee agreement.

Background

On March 8, 1996, D'Ancona & Pflaum commenced the underlying litigation when thefirm filed a complaint on behalf of the Guerrants in the circuit court of Cook County againstVincent & Roth, P.C., an Illinois law firm, and McCoy Real Estate Services, Inc., an Illinois realestate brokerage firm, alleging professional malpractice relating to a real estate claim.⁽³⁾D'Ancona & Pflaum, however, did not execute a written agreement with the Guerrants until June25, 1999. At that time, Mr. Dean Dickie was the lead attorney in the underlying litigation.D'Ancona & Pflaum prosecuted the Guerrants' case from 1996 through June 2000. Mr. Dickie,whose membership with D'Ancona & Pflaum was terminated effective June 30, 2000, took theGuerrants' case with him when he left the firm. He formally substituted as counsel on September25, 2000. A jury trial on the underlying litigation commenced in November 2000 during whichtime the case settled for $210,000. As a result of settlement, the trial court entered an order onNovember 29, 2000, dismissing the case with prejudice. The defendants in the underlyinglitigation subsequently refused to tender the settlement amount pending the resolution of thisdispute that arose between the Guerrants and D'Ancona & Pflaum regarding an attorneys' lienasserted by D'Ancona & Pflaum.

On February 7, 2001, the trial court entered an agreed order whereby it directed theGuerrants to pay D'Ancona & Pflaum $45,454.50 for the professional services rendered,pursuantto the written contingent fee agreement.⁽⁴⁾ However,the amount of $20,704.91 for costs andexpenses remained in dispute between D'Ancona & Pflaum and the Guerrants. Because theremainder of the disputed sum had dipped below the $30,000 minimum required for law divisionjurisdiction, the trial court transferred the case to the municipal division, where it was assigned toJudge Robert E. Gordon for further proceedings.⁽⁵⁾

On October 10, 2001, a trial commenced before Judge Gordon. Mr. Dickie representedthe Guerrants. After D'Ancona & Pflaum presented its case, Judge Gordon terminated the trialproceedings, called the attorneys into his chambers and rendered his decision. He allowedreimbursement of certain expenditures as set out in some of the trial exhibits. Judge Gordonallowed reimbursement for the entirety of travel expenses of $954.80, but denied cab fare of $15. Judge Gordon denied the remaining expenditures for computer-assisted research, photocopyingand telephone charges because they were not expressly provided for in the contingent feeagreement. The basis of the trial court's denial of the remaining expenditure of $100 for onecourt reporter bill is unclear.

Standard of Review

The parties here disagree on the standard of review that this court should apply. Generally, a trial court's decision to award attorney fees is not reversed absent an abuse ofdiscretion. Pietrzyk v. Oak Lawn Pavilion, Inc., 329 Ill. App. 3d 1043, 1046, 769 N.E.2d 136,137 (2002). The rationale for this standard is that a party challenging a trial court's decisionregarding attorney fees is actually challenging the trial court's discretion in determining what isreasonable. Pietrzyk, 329 Ill. App. 3d at 1046, 769 N.E.2d at 137. In the present case, the trialcourt's decision to disallow certain expenditures, with the exception of the $15 for cab fare andpossibly the $100 court reporter bill, was not premised upon a finding that the expenses wereunreasonable. Instead, the trial court concluded that, as a matter of law, the expenditures forcomputer-assisted legal research, photocopy charges and telephone toll charges were notrecoverable because they were not expressly included in the contingent fee agreement. Wherethe trial court here determined the construction of the contingent fee agreement as a matter oflaw, we construe the contract unrestrained by the trial court's judgment, and our standard ofreview is de novo. Pietrzyk, 329 Ill. App. 3d at 1046, 769 N.E.2d at 136 (applying de novostandard of review where plaintiff was not disputing trial court's calculations, but was contendingonly that trial court misapplied the law); see also Bank of Ravenswood v. Polan, 256 Ill. App. 3d 470, 474, 628 N.E.2d 194, 197 (1993)(explaining that where the trial court has determined theconstruction of a contract as a matter of law, reviewing court applies de novo standard on reviewand construes the contract unrestrained by the trial court's judgment). Thus, as to the trial court'sdecision to disallow reimbursement for computer-assisted legal research, photocopy charges andtelephone toll charges, we agree with D'Ancona & Pflaum that our standard of review is de novo.For the remaining expenditures found to be unreasonable by the trial court, we shall apply theabuse of discretion standard proposed by the Guerrants.

Analysis

It is well settled that, when interpreting a contract, a court "should ascertain the intent ofthe parties and give effect to that intent." Eichengreen v. Rollins, Inc., 325 Ill. App. 3d 517, 521,757 N.E.2d 952, 956 (2001). The relevant contractual language provides as follows:

"3. As compensation for professional services rendered, the Guerrantsagree to pay the Firm a fee equal to one-third of the total amount of any settlementor judgment in favor of the Guerrants.

4. In addition to the fee specified in Paragraph 3 above the Guerrants agreeto pay promptly all customary costs and reasonable out-of-pocket expensesincurred by the Firm in its pursuit of the claims covered by this Agreement. Theseexpenses include court reporting services, expert witness fees, reasonable travelexpenses, if any, fees paid to trial witnesses and the cost to create demonstrativetrial exhibits. At the firm's request the Guerrants agree to pay vendors directly forgoods and services provided pursuant to this paragraph." (Emphasis added.)

Both parties assert that the language of the contingent fee agreement is "clear and unambiguous." Nevertheless, each party offers a different interpretation of its meaning. Althougha contract isnot "ambiguous" merely because the parties disagree as to its meaning, a contract will be deemedambiguous if its language is susceptible to more than one reasonable interpretation. Owens v.McDermott, Will & Emery, 316 Ill. App. 3d 340, 348, 736 N.E.2d 145, 153 (2000); St. GeorgeChicago, Inc. v. George J. Murges & Associates, Ltd., 296 Ill. App. 3d 285, 290, 695 N.E.2d503, 507 (1998). Whether a contract is ambiguous is a matter of law for the court to determine.Newcastle Properties, Inc. v. Shalowitz, 221 Ill. App. 3d 716, 728, 582 N.E.2d 1165, 1172(1991). Thus, we must first examine the language to determine whether an ambiguity exists.

The parties disagree on the meaning of the word "include" as it is used in paragraph four of thecontingent fee agreement. The issue we must resolve is whether the enumerated items thatfollow the word "include" are illustrations or limitations.

The Guerrants' position is that the use of the word "include" in paragraph four of theparties' agreement should be interpreted as "include only." Under this interpretation, the word"include" is a term of limitation where that which follows is an exclusive list of expenses thatcannot be expanded. D'Ancona & Pflaum asserts that the word "include" in paragraph four is aterm of expansion used merely to preface illustrative examples and that what follows is anonexclusive list of expenses that may be added to, such that the word "include" must beinterpreted as "include, but are not limited to." Had the contract expressly contained either thephrase "include only" or "include, but are not limited to," the agreement would be unambiguous.

It has been recognized before by this court, in a contract situation, that the word"includes" may be susceptible to competing reasonable interpretations. Pekin Insurance Co. v.Benson, 306 Ill. App. 3d 367, 373, 714 N.E.2d 559, 564 (1999). In the present case, weconclude that each party's interpretation of the word "include" is a reasonable one. Theexistence of these two reasonable interpretations of the word "include" creates an intrinsic orpatent ambiguity in the agreement. Having determined that the contingent fee agreement isfacially ambiguous, we must next determine how to resolve the ambiguity.

In Pekin, this court was interpreting an insurance policy. Illinois law governing theconstruction of insurance contracts dictates that ambiguous policy terms must be construed infavor of the policyholder. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 119-21, 607 N.E.2d 1204 (1992). Therefore, after concluding that the word "includes" hadtwo reasonable interpretations, we construed the provision in favor of the insured. PekinInsurance Co. v. Benson, 306 Ill. App. 3d 367, 373, 714 N.E.2d 559, 564 (1999). The IllinoisSupreme Court has reiterated the principle that any ambiguous language in a contract must beresolved against the drafter of the disputed provision. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 693 N.E.2d 358 (1998); Duldulao v. Saint Mary of Nazareth Hospital Center, 115 Ill. 2d 482, 493, 505 N.E.2d 314 (1987). Although our research has disclosed no Illinois case that hassquarely dealt with the issue of the construction of an ambiguous contingent fee agreement in afee dispute between an attorney and a client, we believe that the rule that ambiguities in acontract are to be construed against the drafter is particularly applicable to a contingent feeagreement drafted by an attorney.

In the context of a disciplinary proceeding, the Illinois Supreme Court concluded that ahearing panel had properly found that the terms of a contingent fee agreement did not entitle anattorney to a fee. In re Teichner, 104 Ill. 2d 150, 470 N.E.2d 972 (1984). In so doing, the courtstated as follows:

"Given the fact that the unquestioned, routine payment here does not come withinthe normal definitions of a settlement, and did not result from a judgment, andthat ambiguities are to be construed against the drafter [citations] we cannotdisagree with the panel's finding that the terms of the [contingent fee] contract donot entitle respondent to a fee." (Emphasis added.) In re Teichner, 104 Ill. 2d at160, 470 N.E.2d at 977.

There is authority in other jurisdictions that obscurities or ambiguities in contingent feeagreements between an attorney and a client should be construed against the attorney as thedrafter of the agreement. See, e.g., Grace & Nino, Inc. v. Orlando, 41 Mass. App. Ct. 111, 114,668 N.E.2d 864, 866 (1996); Untiedt v. Grand Laboratories, Inc., 552 N.W.2d 571, 574 (Minn.App. 1996); Cohen v. Radio-Electronics Officers Union, District 3, 146 N.J. 140, 679 A.2d 1188(1996); Palmer v. Goudchaux/Maison Blanche, Inc., 613 So. 2d 704, 708 (La. App. 1993);Benalcazar v. Goldsmith, 400 Mass. 111, 114, 507 N.E.2d 1043, 1045 (1987); Shaw v.Manufacturers Hanover Trust Co., 68 N.Y.2d 172, 499 N.E.2d 864, 507 N.Y.S.2d 610 (1986);Lane v. Wilkins, 229 Cal. App. 2d 315, 40 Cal. Rptr. 309 (1964).

In Shaw, the court stated that "courts as a matter of public policy give particular scrutinyto fee arrangements between attorneys and clients, casting the burden on attorneys who havedrafted the retainer agreements to show that the contracts are fair, reasonable, and fully knownand understood by their clients." (Emphasis added.) Shaw, 68 N.Y.2d at 176, 499 N.E.2d at 866,507 N.Y.S.2d at 612. After determining that both parties' interpretations of the language of aretainer agreement were reasonable, the court explained that the law required that the agreementbetween client and attorney be construed most favorably for the client. Shaw, 68 N.Y.2d at 177,499 N.E.2d at 866, 507 N.Y.S.2d at 612. The court, noting that it was not insensitive to theattorneys' loss of a substantial portion of their fee, nonetheless explained that "it is essential thatthe terms of representation *** be set down with clarity. And the onus is upon the lawyers whodraft such agreements to do so." Shaw, 68 N.Y.2d at 179, 499 N.E.2d at 868, 507 N.Y.S.2d at614.

In Cohen, a New Jersey court, quoting Restatement of Law Governing Lawyers