In re Marriage of Pavlovich , 2019 IL App (1st) 180783 ( 2019 )

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Appellate Court Date: 2019.10.07
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In re Marriage of Pavlovich, 2019 IL App (1st) 180783
Appellate Court In re MARRIAGE OF SLOBODAN PAVLOVICH, Petitioner, and
Caption ANETA PAVLOVICH, Respondent-Appellee (Hoffenberg & Block,
LLC, Appellant).
District & No. First District, Second Division
Docket No. 1-18-0783
Filed June 28, 2019
Decision Under Appeal from the Circuit Court of Cook County, No. 14-CR-9779; the
Review Hon. Robert W. Johnson, Judge, presiding.
Judgment Affirmed.
Counsel on Paul J. Bargiel, of Paul J. Bargiel, P.C., and Alan D. Hoffenberg and
Appeal Gabriela O. Asrow, of Hoffenberg & Block, LLC, both of Chicago,
for appellant.
James J. Macchitelli, of Schaumburg, for appellee.
Panel JUSTICE PUCINSKI delivered the judgment of the court, with
opinion.
Justices Lavin and Mason concurred in the judgment and opinion.
OPINION
¶1 In this appeal, Hoffenberg & Block, LLC (H&B), the firm that formerly represented
respondent Aneta Pavlovich in these divorce proceedings, argues that the Cook County circuit
court erred in denying its final petition for attorney fees brought pursuant to section 508 of the
Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/508 (West 2016)).
According to H&B, the trial court erred when it concluded that attorney fees could not be
recovered under section 508 of the Act unless there was a written agreement between the
attorney and client. For the reasons that follow, we affirm.
¶2 BACKGROUND
¶3 On July 18, 2017, a week before the judgment of dissolution was entered in this case, H&B
filed its petition for final attorney fees and costs under section 508 of the Act. In that petition,
H&B alleged that on June 21, 2016, it was retained to represent respondent in her dissolution
proceedings and was later granted leave to withdraw on June 8, 2017. Between the time H&B
was retained and the time that it withdrew from representing respondent, H&B performed
extensive legal services for the benefit of respondent in her dissolution case. As a result,
respondent incurred attorney fees totaling $95,572.55 and costs totaling $2594.67. Respondent
paid $30,202.00 of the amount due, leaving an outstanding balance of $67,965.22.
¶4 On July 25, 2017, the trial court entered a judgment dissolving the marriage of petitioner
Slobodan Pavlovich and respondent.
¶5 Respondent filed a corrected motion to strike H&B’s fee petition 1 and, in the alternative,
a response to it. In the corrected motion to strike, respondent argued that H&B’s fee petition
should be stricken because H&B failed to attach detailed billing statements or time records and
failed to attach a written agreement between H&B and respondent that included a statement of
client rights and responsibilities, per the dictates of section 508(c)(2) of the Act (id.
§ 508(c)(2)). In her response to the fee petition, respondent again raised H&B’s failure to attach
time sheets or billing statements and also argued that the amount of fees sought was
unreasonable for the normal and uncomplicated issues involved in the dissolution proceedings.
Respondent also argued that the hourly rates charged by H&B attorneys were not usual and
customary and that respondent did not benefit from H&B’s services because H&B withdrew
its representation of respondent on the eve of trial.
¶6 Also included in the record is a reply filed by respondent in support of her corrected motion
to strike H&B’s fee petition. The record does not contain, however, H&B’s response to the
corrected motion to strike. In her reply in support of her corrected motion to strike, respondent
made a number of arguments in response to procedural arguments apparently raised by H&B
in its response to the motion to strike. More relevant, however, are respondent’s arguments
that H&B was not entitled to recover fees under section 508, because it could not demonstrate
that there was a written contract between H&B and respondent that contained a statement of
the client’s rights and responsibilities. She also argued that the reference to recovery under
quantum meruit in section 508(c)(3) of the Act (id. § 508(c)(3)) applied only to terms outside
of the written contract; in other words, quantum meruit was to be used only where the written
1
The original motion to strike is not in the record on appeal.
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agreement did not provide for a fair amount of fees. According to respondent, H&B could not
recover under section 508 of the Act in any form because it lacked a written agreement between
it and respondent; thus, H&B’s only recourse was to file an independent common-law action
for quantum meruit.
¶7 At the hearing on H&B’s fee petition and respondent’s corrected motion to strike the fee
petition, a number of witnesses testified. Gabriela Asrow and Gloria Block, attorneys with
H&B, testified regarding the work they did on behalf of respondent, the complicated nature of
respondent’s divorce proceedings, the fees and costs incurred by respondent, and the fact that
respondent never objected to any of the fees or bills. Alan Hoffenberg, also of H&B, testified
that he performed the initial consultation with respondent. At that meeting, respondent gave
him her retainer, and he gave her a copy of H&B’s retainer agreement and told her to take it
home to review, sign, and return it. No one at H&B was able to locate a written agreement
signed by respondent.
¶8 Respondent testified that she was never provided a written agreement by anyone with H&B
and that she never signed a written agreement with H&B. She also testified that she was not
given and did not sign a copy of the client’s rights and responsibilities. Further, she testified
that she questioned both Hoffenberg and Block at least 10 to 20 times about the large bills that
she received for their services. Both of them told her that they were only billing her because
they planned to seek contribution from petitioner and they needed the bills to use as proof.
¶9 In closing, H&B argued that it was seeking recovery of its fees under quantum meruit.
H&B argued that, not only did the Act allow for quantum meruit, but also that the trial court
was a court of general jurisdiction that could hear any type of case, including a common-law
claim for quantum meruit. H&B further argued that the Act did not require that a written
contract exist in order to recover under quantum meruit and that it would not make sense to
require a written contract in such a situation.
¶ 10 In response, respondent argued that section 508(c)(2) of the Act explicitly states that no
hearing shall be held on a fee petition unless there exists a written agreement between the
lawyer and client that includes a statement of the client’s rights and responsibilities. She also
argued that quantum meruit under section 508 only applies where the terms of the written
contract are uncertain or unclear. True quantum meruit, respondent argued, is only available if
H&B were to file a separate cause of action.
¶ 11 Following the hearing, the trial court entered an order denying respondent’s corrected
motion to strike the fee petition and indicating that it would subsequently enter an order on
H&B’s fee petition.
¶ 12 Thereafter, but before the trial court ruled on H&B’s fee petition, H&B filed a
memorandum in support of its fee petition. In it, H&B argued that it established all of the
elements of a common-law claim for quantum meruit and that the trial court could award it
fees based on quantum meruit under either section 508 of the Act or under the common law.
¶ 13 On March 16, 2018, the trial court entered an order denying H&B’s petition for fees on the
basis that H&B had not entered into a written fee agreement with respondent.
¶ 14 Thereafter, H&B instituted this appeal.
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¶ 15 STANDARD OF REVIEW
¶ 16 The sole issue in this appeal is whether section 508 of the Act permits an attorney to seek
attorney fees under the theory of quantum meruit if he or she does not have a written agreement
with the client. The answer to this question requires us to interpret the language of section 508.
The interpretation of a statute is a question of law subject to a de novo standard of review.
Taylor v. Pekin Insurance Co., 231 Ill. 2d 390, 395 (2008).
¶ 17 ANALYSIS
¶ 18 On appeal, there is no dispute that there is no written agreement between H&B and
respondent. Rather, H&B argues that the trial court erred in concluding that section 508
required a written agreement between the attorney and the client as a prerequisite to recovery
of attorney fees under the Act, even where the attorney seeks to recover under the Act via a
theory of quantum meruit. Alternatively, H&B argues, even if the trial court was correct in
concluding that the lack of a written agreement precluded an award of fees under section 508,
it could have heard H&B’s common-law claim for quantum meruit or should have transferred
H&B’s claim to the law or chancery division. We hold that H&B’s claims are without merit.
¶ 19 The primary goal in statutory construction is to ascertain the intent of the legislature. The
best indicator of this intent is the language of the statute, which must be given its plain and
ordinary meaning. People ex rel. Madigan v. Bertrand, 2012 IL App (1st) 111419, ¶ 20. In
interpreting a statute, we must view the statute as a whole, making sure not to read any of its
language in isolation. Board of Education of Woodland Community Consolidated School
District 50 v. Illinois State Charter School Comm’n, 2016 IL App (1st) 151372, ¶ 38. We must
avoid any interpretation that would render any portion of the statute superfluous, meaningless,
or void. Sylvester v. Industrial Comm’n, 197 Ill. 2d 225, 232 (2001). Just as we may not read
out any portion of the statute, we may not alter the plain meaning of a statute’s language by
reading into it exceptions, limitations, or conditions not expressed by the legislature. Board of
Education, 2016 IL App (1st) 151372, ¶ 38.
¶ 20 Section 508(a) of the Act permits a trial court in a dissolution action, after notice and
hearing, to make an award of attorney fees, not only between the parties but between one of
the parties and his or her former counsel. 750 ILCS 5/508(a) (West 2016). An award of attorney
fees to a party’s former attorney is governed by section 508(c) of the Act. Subsection (c)(2)
provides in relevant part that no final hearing may be had on an attorney fee petition unless
“the counsel and the client had entered into a written engagement agreement at the time the
client retained the counsel (or reasonably soon thereafter) and the agreement meets the
requirements of subsection (f).” Id. § 508(c)(2)(i). Subsection (f) requires that a written
engagement agreement have appended to it a statement of the client’s rights and
responsibilities, as delineated in subsection (f). Id. § 508(f).
¶ 21 The Act leaves the decision of whether to award attorney fees within the discretion of the
trial court. Id. § 508(c)(3). It then provides as follows:
“The court shall first consider the written engagement agreement and, if the court finds
that the former client and the filing counsel, pursuant to their written engagement
agreement, entered into a contract which meets applicable requirements of court rules
and addresses all material terms, then the contract shall be enforceable in accordance
with its terms, subject to the further requirements of this subdivision (c)(3). ***
Quantum meruit principles shall govern any award for legal services performed that is
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not based on the terms of the written engagement agreement (except that, if a court
expressly finds in a particular case that aggregate billings to a client were
unconscionably excessive, the court in its discretion may reduce the award otherwise
determined appropriate or deny fees altogether).” Id.
Fee petitions or writs of praecipe for fee hearings under subsection (c) must be filed within the
time frame for the filing of a postjudgment motion under section 2-1203 of the Code of Civil
Procedure (735 ILCS 5/2-1203 (West 2016)), i.e., within 30 days of the entry of judgment. 750
ILCS 5/508(a)(5) (West 2016).
¶ 22 Except as otherwise provided in section 508(e)(1), “subsection (c) of this Section is
exclusive as to the right of any counsel (or former counsel) of record to petition a court for an
award and judgment for final fees and costs during the pendency of a proceeding under this
Act.” Id. § 508(a). Section 508(e) provides in relevant part:
“(e) Counsel may pursue an award and judgment against a former client for legal
fees and costs in an independent proceeding in the following circumstances:
(1) While a case under this Act is still pending, a former counsel may pursue
such an award and judgment at any time subsequent to 90 days after the entry of an
order granting counsel leave to withdraw; and
(2) After the close of the period during which a petition (or praecipe) may be
filed under subdivision (c)(5), if no such petition (or praecipe) for the counsel
remains pending, any counsel or former counsel may pursue such an award and
judgment in an independent proceeding.
In an independent proceeding, the prior applicability of this Section shall in no way be
deemed to have diminished any other right of any counsel (or former counsel) to pursue
an award and judgment for legal fees and costs on the basis of remedies that may
otherwise exist under applicable law; and the limitations period for breach of contract
shall apply. *** After the period for the commencement of a proceeding under
subsection (c), the provisions of this Section (other than the standard set forth in
subdivision (c)(3) and the terms respecting consent security arrangements in subsection
(d) of this Section 508) shall be inapplicable.” Id. § 508(e).
¶ 23 The language of section 508 is abundantly clear: a written agreement between the party
and the attorney is required before a party’s former attorney will be permitted to recover
attorney fees on a petition brought under section 508. This conclusion is supported by several
parts of section 508. First, section 508(c)(2) explicitly states that no final hearing may be had
unless such a written agreement exists. Id. § 508(c)(2) (“No final hearing *** is permitted
unless: (i) the counsel and the client had entered into a written engagement agreement at the
time the client retained the counsel ***.”). Second, section 508(c)(3) specifically directs the
trial court to first consider the terms of the written agreement and to enforce those terms if the
agreement meets the relevant requirements and addresses all of the material terms. Finally,
even in situations where an attorney seeks to recover under quantum meruit, such recovery is
only permitted for legal services performed outside the written contract. Id. § 508(c)(3)
(“Quantum meruit principles shall govern any award for legal services performed that is not
based on the terms of the written engagement agreement ***.”). In other words, even where
quantum meruit is sought, there still must be a written contract so that it can be determined
whether the contract covers the services for which fees are sought.
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¶ 24 H&B argues that the quantum meruit language of section 508(c)(3) contemplates an award
of attorney fees absent a written contract. We disagree. Although it is certainly true that section
508(c)(3) permits recovery of some attorney fees by way of quantum meruit in a section 508
petition, such fees are limited to only those for legal services performed outside the written
contract. In other words, section 508(c)(3) does not permit a full claim for quantum meruit;
rather, quantum meruit is permitted only for those legal services that fall outside the terms of
the otherwise existing written agreement. This interpretation is supported by the fact that the
quantum meruit language immediately follows the directive that the trial court first consider
the required written contract and specifically refers to an “award for legal services performed
that is not based on the terms of the written engagement agreement.” (Emphasis added.) The
phrase “the written agreement,” as opposed to “a written agreement,” refers back to the written
agreement required under section 508(c)(2), indicating that even where a quantum meruit
award is made, there must still be a written agreement; the quantum meruit award is simply for
services performed outside the written agreement required under section 508(c)(2).
¶ 25 Moreover, it is impossible to reconcile an interpretation of the quantum meruit language of
section 508(c)(3) that permits recovery without a written agreement with section 508(c)(2)’s
dictate that no final hearing be held on an attorney fee petition unless there exists a written
agreement between the client and the attorney. After all, how can a quantum meruit award be
made absent a written agreement if the trial court is not even permitted to hold a hearing
without the presence of a written agreement? These provisions can only be reconciled if the
quantum meruit language is read, as we do, as only permitting recovery of fees for services
performed outside the otherwise existing written contract. See Hartney Fuel Oil Co. v. Hamer,
2013 IL 115130, ¶ 25 (“Statutory provisions should be read in concert and harmonized.”).
¶ 26 We note that during oral arguments in this matter, counsel for H&B referred to the case of
In re Marriage of Kosterka, 174 Ill. App. 3d 954 (1988), for the proposition that the Second
District held that, even where there is no written agreement between an attorney and a client,
a trial court may nevertheless make an award of attorney fees under section 508 on the basis
of quantum meruit. In Kosterka, an attorney who was retained as local counsel by the wife’s
primary counsel filed a section 508 petition for attorney fees against the wife. Id. at 956-57.
There was no written agreement between the local counsel and the primary attorney or between
the local counsel and the client. Id. at 956. The trial court awarded attorney fees to the local
counsel, but not in the full amount he requested. Id. at 957. The issues on appeal related to
whether the local counsel had standing to pursue attorney fees directly from the client, the
amount of the fees awarded, and whether the trial court was required to disclose the basis for
its order and failed to make specific findings in its order. Id.
¶ 27 Although the Second District did affirm the trial court’s award of attorney fees, which was
based on a theory of quantum meruit, we do not find its decision instructive, because the issue
of whether section 508 allows recovery of attorney fees on the basis of quantum meruit where
there is no written agreement was not raised by the parties or addressed by the Second District.
In fact, there was no discussion whatsoever regarding the impact that the lack of a written
agreement had upon the local counsel’s ability to recover attorney fees under section 508.
Thus, the Second District was not called upon to construe the specific provisions of section
508, as we are here, and its decision has no relevance to the determination we must make in
the present case.
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¶ 28 The remainder of H&B’s arguments are not directed to the language of section 508. First,
H&B argues that a written agreement is not necessary to the formation of an attorney-client
relationship. True or not, such a contention is irrelevant to the issue before us. The question at
bar is not whether there was an attorney-client relationship between H&B and respondent
(there is no dispute on that question) but rather is whether a written agreement is necessary to
recovery of attorney fees on a section 508 petition. The former issue has no effect on the latter.
¶ 29 Second, relying on Nottage v. Jeka, 172 Ill. 2d 386, 392 (1996), H&B argues that section
508 is not the sole means by which an attorney can seek to recover from a client attorney fees
incurred during a dissolution case. H&B argues that attorneys are free to bring independent
common-law claims for fees, such as for breach of contract or quantum meruit and that it, in
fact, made out a claim for common-law quantum meruit. H&B is absolutely correct that section
508 of the Act is not the sole means by which an attorney may recover fees from a client in a
dissolution action. Not only does Nottage stand for that proposition, but section 508 itself
explicitly provides that an independent action may be brought against a client, either 90 days
after the attorney has been granted leave to withdraw or after the time period for filing a section
508(c) fee petition. See 750 ILCS 5/508(e) (West 2016).
¶ 30 The problem with H&B’s contention, however, is that H&B chose not to bring an
independent action. Rather, H&B chose to pursue its claim for fees under section 508 of the
Act, thereby subjecting itself to the requirements and limitations of section 508. The
requirements and limitations under section 508 that we have discussed in this decision were in
full effect at the time that H&B filed its fee petition; nevertheless, H&B specifically invoked
section 508 in its petition. That H&B had the option to pursue other remedies against
respondent is of no matter now, as it chose to forgo those remedies in lieu of proceeding under
section 508. The facts that those other options existed and that H&B might have been
successful under them do not relieve H&B from compliance with section 508 once it chose to
proceed as it did.
¶ 31 Finally, H&B argues that if the trial court was inclined to deny its fee petition under section
508, as a court of general jurisdiction, it still could have heard H&B’s common-law claim for
quantum meruit or, at the very least, referred it to the law or chancery division for decision.
H&B’s argument fails for the reason that it never actually instituted a claim for common-law
quantum meruit. As discussed, H&B’s fee petition specifically invoked section 508 of the Act
and at no point mentioned quantum meruit as a basis of recovery, either under section 508 or
under the common law. Rather, based on the record before us, it appears that it was not until
the hearing that H&B indicated that it was entitled to recovery based on quantum meruit, both
under section 508 and under the common law. We recognize that, where a party brings a
common-law claim for breach of contract and is unable to prove the existence of the contract,
he is entitled to proceed under a theory of quantum meruit without amending his pleadings.
See Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc., 87 Ill. App. 3d 480,
485 (1980) (“[I]n Illinois, a plaintiff may recover under quantum meruit on a claim made under
an express contract without amendment of the pleadings where the plaintiff fails to establish
the express contract but does show that in fact services were rendered.” (Emphasis omitted.)).
Here, H&B did not bring a common-law action for breach of contract. Rather, it brought a fee
petition under the very specific provisions of section 508 of the Act, despite the very clear
limitations in the language of section 508 and despite the option of instituting an independent
action for common-law quantum meruit without such limitations.
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¶ 32 Moreover, although the trial court may be a court of general jurisdiction, we are aware of
no obligation of the trial court—and H&B does not cite any authority in support of the
proposition—to entertain a cause of action that was not properly pled and that H&B did not
raise until the hearing on its fee petition. In fact, it would have been improper. See Ligon v.
Williams, 264 Ill. App. 3d 701, 707 (1994) (“The court’s authority to exercise its jurisdiction
and resolve a justiciable question is invoked through the filing of a complaint or petition. ***
Thus, the circuit court’s jurisdiction, while plenary, is not boundless, and where no justiciable
issue is presented to the court through proper pleadings, the court cannot adjudicate an issue
sua sponte.”). H&B also fails to cite any authority for the notion that the trial court had an
obligation to fix H&B’s strategic misstep by transferring the fee petition to the law or chancery
division. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018) (requiring that the argument section
of an appellant’s brief contain “the contentions of the appellant and the reasons therefor, with
citation of the authorities and the pages of the record relied on”); see also Thrall Car
Manufacturing Co. v. Lindquist, 145 Ill. App. 3d 712, 719 (1986) (“A reviewing court is
entitled to have the issues on appeal clearly defined with pertinent authority cited and a
cohesive legal argument presented. The appellate court is not a depository in which the
appellant may dump the burden of argument and research.”).
¶ 33 Although we believe that the language of section 508 is plain in requiring the existence of
a written contract between the client and attorney, even where recovery is sought under section
508 based on quantum meruit, we also acknowledge that such a requirement seems somewhat
at odds with the often-stated purpose of section 508’s provisions allowing an attorney to collect
fees directly from a client under section 508. The divorce act that preceded the Act only
permitted one party to a divorce to recover attorney fees from the other party; attorneys were
not permitted to file a fee petition directly against their clients. Nottage, 172 Ill. 2d at 394.
According to numerous courts, the purpose of section 508 permitting attorneys to collect
directly from their clients is to “promote judicial economy by eliminating the need for an
attorney to bring a separate suit to collect fees from his client.” See, e.g., In re Marriage of
Baltzer, 150 Ill. App. 3d 890, 895 (1986). Clearly, in situations where there exists a written
contract between the attorney and client, section 508 eliminates the need for a separate suit for
fees. Because of the language chosen by the legislature, however, where a written contract
does not exist, section 508 does not eliminate the need for a separate proceeding at all. Rather,
an independent action for a common-law claim of quantum meruit is an attorney’s only
recourse under such circumstances.
¶ 34 We do not know whether the legislature intended such a result. Perhaps the legislature
intended to eliminate the need for separate suits only where there is a written contract, or
perhaps it intended to eliminate the need for separate suits under all circumstances but simply
failed in fashioning appropriate language to that effect. In any case, where the language of a
statute is plain, we are bound to enforce it as written. Gabriel Builders, Inc. v. Westchester
Condominium Ass’n, 268 Ill. App. 3d 1065, 1068 (1994) (“If [the language of the statute] is
clear and unambiguous, a court must enforce it as written and may not resort to other aids for
construction.”). Here, for the reasons discussed above, the language of section 508 clearly
requires the existence of a written contract before an attorney may recover fees under section
508, even if sought based on a theory of quantum meruit. If that is not the result the legislature
intended, then it is for the legislature to remedy, not us. See People v. Holland, 374 Ill. App.
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3d 121, 127-28 (2007) (“Whether this language was a check on the power of the Governor or
poor legislative drafting, it is a matter for the legislature to remedy, not this court.”).
¶ 35 In sum, we conclude that section 508 of the Act requires the existence of a written contract
between the client and the attorney before the attorney may recover attorney fees, whether
based on the written contract or on quantum meruit, in a petition brought under section 508.
Here, there is no dispute that there was no written agreement between H&B and respondent.
Accordingly, the trial court did not err in denying H&B’s fee petition brought under section
508 of the Act.
¶ 36 CONCLUSION
¶ 37 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 38 Affirmed.
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