In re Marriage of O'Hara , 2021 IL App (2d) 200648-U ( 2021 )

2021 IL App (2d) 200648-UNo. 2-20-0648
Order filed December 17, 2021
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the Circuit Court
JOANN O’HARA, ) of Kane County.
)
Petitioner-Appellant, )
)
and ) No. 16-D-667
)
DAVID O’HARA, ) Honorable
) René Cruz,
Respondent-Appellee. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BRIDGES delivered the judgment of the court.
Justices Jorgensen and Brennan concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in granting summary judgment for respondent. Therefore,
we affirm.
¶2 Petitioner, Joann O’Hara, and respondent, David O’Hara, were married on August 27,
1977, and their marriage was dissolved on December 19, 2017. Petitioner currently appeals from
the trial court’s grant of summary judgment for respondent on the issue of whether he should be
responsible for paying her attorney fees for her prior appeal. We affirm.
I. BACKGROUND
2021 IL App (2d) 200648-U¶3 In September 2018, petitioner filed a petition for rule to show cause why respondent should
not be held in contempt for failing to have a $300,000 death benefit coverage for maintenance, as
required by their modified dissolution judgment. Following a hearing on November 1, 2018, the
trial court found that respondent was not in contempt. It ruled that he was to maintain death benefits
in the amount of $200,000, with that total declining monthly based on maintenance payments.
¶4 Petitioner appealed, arguing that the trial court erred in: modifying the level of death benefit
coverage without a showing of a substantial change in circumstances; not conducting a meaningful
formal hearing on her petition for contempt; treating her petition for contempt as a motion to
modify; and denying her motion to reconsider. We held that the trial court erred in modifying the
amount of death benefit coverage for maintenance, because respondent never filed a motion to
modify. We further held that any error in not receiving a formal hearing on the petition for
contempt was invited error because petitioner acquiesced in the manner the trial court conducted
the hearing on the petition. We therefore affirmed in part, reversed in part, and remanded.
¶5 On March 2, 2020, petitioner filed a petition for attorney fees and costs, in which she sought
fees and costs for the appeal. She filed an amended petition on August 13, 2020. Petitioner alleged
that she had requested that her attorney, Benedict Schwarz, continue to represent her in the appeal
of the November 1, 2018, order; she substantially prevailed in the appeal; and section 508(a)(3.1)
of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/508(a)(3.1)
(West 2020)) allowed for an award of attorney fees and costs. That section states:
“The court from time to time, after due notice and hearing, and after considering
the financial resources of the parties, may order any party to pay a reasonable amount for
his own or the other party's costs and attorney’s fees. Interim attorney’s fees and costs may
be awarded from the opposing party, in a pre-judgment dissolution proceeding in
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2021 IL App (2d) 200648-Uaccordance with subsection (c-1) of Section 501 and in any other proceeding under this
subsection. At the conclusion of any pre-judgment dissolution proceeding under this
subsection, contribution to attorney’s fees and costs may be awarded from the opposing
party in accordance with subsection (j) of Section 503 and in any other proceeding under
this subsection. Fees and costs may be awarded in any proceeding to counsel from a former
client in accordance with subsection (c) of this Section. Awards may be made in connection
with the following:
***
(3) The defense of an appeal of any order or judgment under this Act,
including the defense of appeals of post-judgment orders.” Id.Petitioner requested attorney fees and costs of $74,509.15 and attached time sheets detailing the
work done.
¶6 Respondent filed a motion for summary judgment on June 29, 2020. Citing this court’s
decision in In re Marriage of Magnuson, 156 Ill. App. 3d 691, 701-02 (1987), he argued that a
precondition to entitlement for attorney fees under section 508(a) was that the party have an actual
underlying obligation to pay the fees in the first instance. Respondent asserted that petitioner made
admissions in her deposition showing that she lacked such an obligation.
¶7 On August 6, 2020, petitioner filed a response to the summary judgment motion arguing
that she and her attorney had a properly executed retainer agreement dated May 25, 2016, that
remained in full force and effect. On August 13, 2020, Schwarz submitted an affidavit stating that
he had continually represented petitioner from May 25, 2016, to the present date, and he attached
a copy of the retainer agreement.
¶8 Respondent filed a response on August 27, 2020, asserting that the retainer agreement
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2021 IL App (2d) 200648-Uspecifically stated that it did not apply to appeals.
¶9 A hearing on the motion for summary judgment took place on September 29, 2020. The
trial court issued its ruling on October 5, 2020, stating as follows. The fee agreement covering the
pendency of petitioner’s prior litigation stated: “Services required in any subsequent enforcement
or modification proceedings, appellate proceedings or proceedings attacking the trial court’s
judgment shall be subject to a new and separate agreement.” The last time the matter was in court
was in February 2018, so it appeared that the paragraph would apply to anything that would have
occurred subsequent to that time, and require a new agreement. Petitioner relied on the last
paragraph of the agreement, which stated: “Notwithstanding, [sic] the above, representation will
continue until judgment is entered or until I no longer represent you, at which time the remaining
balance is due in full unless other arrangements are made.” The trial court stated that because
judgment had already been entered and there was nothing pending in the trial court, it seemed that
under the agreement’s terms, the representation had ended.
¶ 10 The trial court further stated that respondent pointed to language in the agreement stating
that petitioner would be billed monthly, with payment expected within 10 days. Respondent also
pointed to the following language in petitioner’s deposition regarding the fees for the appeal:
“Q: So I noticed in your credit charges that starting in January you’ve made—from
January 1st [2020] till now you’ve made three payments to Mr. Schwarz’s office; is that
correct?
A: I believe it has been three. I don’t have the dates on it. But, yes, there have been
three, yes.
Q: And those were in payment of invoices that you’ve received from Mr. Schwarz’s
office?
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2021 IL App (2d) 200648-UA: Yes.
Q: And are those itemized statements?
A: Yes, they are.
Q: And are you current with his office presently?
A: No.
***
Q: All of 2019 you didn’t make any payments, correct?
A: Not that I can remember, no.
***
Q: Did you ever receive any invoices from Mr. Schwarz’s office while matters were
pending on appeal?
A: I don’t understand the question.
Q: Well, you obviously have made payments in *** January, March, and May
[2020], and I think those payments totaled up over $5,000, and you say you—
A: Yes.
Q: —think you owe over $6,000. That’s based on invoices you received from his
office; is that correct?
A: Yes. I had—they were all sent to me via email with Angela from his office, yes.
Q: All right. So in the—you get those once a month?
A: I don’t know when I got them. They were—they came out—probably not.
Q: It lists what work’s been done, telephone conference with client—
A: Yes.
Q: —letter to Attorney Doyen, court appearance, correct?
-5-
2021 IL App (2d) 200648-UA: Yes.
Q: So it basically itemized all the work done, correct?
A: Yes.
Q: And when did you begin receiving those invoices?
A: First off, I didn’t get any mail, so the ones that were mailed I didn’t see until I
came home here two weeks ago. The ones that were done online, whatever dates those
were sent out to me were the dates I saw them, but I don’t have my email open to tell you
when the dates were.
Q: Well, you weren’t—when did you go to Florida?
A: January 20th.
Q: All right. Did you receive any invoices before you went to Florida?
A: I don’t remember.
Q: Okay. You say you did not make any payment to Mr. Schwarz during 2019; is
that correct?
A: Not that I can remember.
Q: Do you recall getting any invoices during 2019?
A: I do not.
Q: So do you know why it is you were not getting invoices during 2019?
A: The only thing I can remember about 2019 was the appeal to the appellate court
for the contempt of court getting a life insurance policy, that would have been 2019.
Q: All right. Well, did you get invoices detailing the work that was being done on
the appeal?
A: You know, Mike, if I did they’re in a pile somewhere here.
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2021 IL App (2d) 200648-UQ: Well, did you pay any of them?
A: No.
Q: Why is that?
A: Because we didn’t resolve the problem yet?
Q: What do you mean ‘didn’t resolve the problem’?
A: Well, from what I understand, he appealed the amount of time and money he put
in because [respondent] was in contempt of court getting his life insurance policy, and he
took it to the appellate court and it took forever and ever for that to get to the appellate
court, and that was just, I think, in the end of January.
Q: So what does that have to do with paying your fees?
A: Because I wasn’t paying any fees until we figured out where we were at with all
that.
Q: What do you mean figured that out?
A: Well—
Q: Was there an agreement with Mr. Schwarz for payment of fees on the appeal?
A: No, there wasn’t an agreement. We just—I signed—at the time I signed the
information and he was taking it to the appellate court and we were going to discuss it
afterwards.
Q: So is there a signed agreement with regard to the fees incurred on the appeal?
A: I don’t know.
Q: Well, you just said you signed something.
A: Prior to him—when he was doing the motions—I don’t understand all the legal
things. I signed paperwork that he was going to try to appeal the fact that Judge Cruz had
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2021 IL App (2d) 200648-Udenied him having to get an insurance policy. Then I signed him to go into the appellate
court. That’s all I can recall.
Q: Have you paid any money to Mr. Schwarz for the fees or costs for the appeal?
A: For the appeals with regard to the life insurance policy?
Q: Correct.
A: No.
* * *
Q: So your testimony under oath is that Mr. Schwarz on your behalf undertook the
professional responsibility for filing an appeal, prosecuting an appeal through to final
resolution by the appellate court without any agreement between you and he as to how or
when any attorney’s fees would be paid?
A: That is correct.”1
The trial court stated that based on the contract and deposition testimony, it believed that there was
not a specific obligation or agreement, whether written or not, that existed between petitioner and
her attorney for fees, so she could not shift the obligation of paying any portion of the fees to
1
We have quoted the deposition testimony as set forth in the parties’ pleadings, and not
the trial court’s recitation of the deposition testimony, which paraphrased some sections.
Although not quoted by the trial court at the hearing, petitioner further stated in her
deposition that she did not receive regular invoices to know that the appellate fees were
approaching $74,000. Further, when asked, “And when you made the decision to authorize him to
pursue the appeal, what was your understanding of what your obligation was to pay him the fees?”,
petitioner replied, “I didn’t have one.”
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2021 IL App (2d) 200648-Urespondent for the expenses incurred on appeal. This was not a situation that might present an
exception to this rule, such as a pro bono case or one in which the fees were discharged.
Accordingly, the trial court granted summary judgment for respondent.
¶ 11 On November 2, 2020, the trial court entered a finding pursuant to Illinois Supreme Court
Rule 304(a) that there was no just reason for delaying the enforcement or appeal of the order.
Petitioner timely appealed.
¶ 12 II. ANALYSIS
¶ 13 On appeal, petitioner contests the grant of summary judgment for respondent. Summary
judgment is appropriate only where the pleadings, depositions, admissions, and affidavits on file,
when viewed in the light most favorable to the nonmoving party, show that there is no genuine
issue of material fact and that the moving party is entitled to judgment as a matter of law. 735
ILCS 5/2-1005(c) (West 2020). We review de novo a trial court’s ruling on a motion for summary
judgment. Nichols v. Fahrenkamp, 2019 IL 123990, ¶ 13.
¶ 14 Petitioner asserts that respondent took the position that she had no obligation to pay her
attorney fees and therefore could not transfer the obligation to respondent. According to petitioner,
respondent argued that she did not receive monthly billing statements, there was no fee agreement
regarding the appeal, and there was no ongoing litigation in the case from February to September
2018. Petitioner argues that, to the contrary, there were genuine issues of material fact such that
the trial court erred in granting summary judgment for respondent. Specifically, she points to her
deposition testimony that she received invoices via e-mail and that the bills were itemized;
answered “I don’t remember” in response to whether she received invoices in 2019 during the
appeal; and testified that the invoices could be in a pile somewhere. Petitioner also highlights her
testimony that she “wasn’t paying any fees until we figured out where we were at with all that,”
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2021 IL App (2d) 200648-Uand she asserts that she never stated that she did not have an obligation to pay attorney fees.
Petitioner maintains that her response of “I didn’t have one” when asked about her understanding
of her obligation to pay fees was not an assertion that she did not have an obligation to pay fees,
given the retainer agreement and her previous testimony. She argues that her responses show that
she was confused and did not understand many of the questions, and that she contradicted herself
many times. Petitioner maintains that her deposition testimony was at best unclear and ambiguous.
¶ 15 On the subject of the retainer agreement, petitioner emphasizes that although it states that
services required in appellate proceedings shall be subject to a new and separate agreement, it
subsequently states that “[n]otwithstanding, the above, representation will continue until judgment
is entered or until I no longer represent you, at which time the remaining balance is due in full
unless other arrangements are made.” (Emphasis added.) Petitioner argues that Schwarz’s
representation of her per the agreement was therefore ongoing. She additionally argues that
nothing prohibited her and her attorney from waiting to see if the trial court would award attorney
fees for the appeal before requiring her to pay the remaining balance. She contends that the proper
time to contest the validity of the retainer agreement would have been at a hearing on her petition
for fees, as opposed to on a motion for summary judgment.
¶ 16 Regarding whether there was ongoing litigation between February and September 2018,
she argues that no exhibits were provided to the court to support respondent’s contention that there
was no such litigation. Petitioner asserts that, to the contrary, Schwarz’s representation of her never
ceased. She highlights that the record shows that the trial court entered an order on February 9,
2018, regarding life insurance and other issues. She argues that there was also activity outside of
court, as shown by a letter dated August 6, 2018, from Schwarz to respondent’s attorney, which
was attached as an exhibit to her September 6, 2018, petition for indirect civil contempt. Petitioner
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2021 IL App (2d) 200648-Umaintains that in 2019, Schwarz continued to represent her with regard to her first appeal, and then
in response to respondent’s November 2019 petition to modify or terminate maintenance. She
argues that it is important to note that the aforementioned petition was served on Schwarz, as
respondent’s attorney knew that Schwarz was still representing her. Petitioner contends that the
record itself raises genuine issues of material fact regarding if and when her attorney-client
relationship with Schwarz ever ended.
¶ 17 Petitioner argues that the trial court erroneously failed to construe the pleadings,
depositions, admissions, and affidavits liberally in her favor, and further tried issues of fact instead
of determining that issues of fact existed.
¶ 18 Respondent argues that the “material fact determined by the trial court was that Petitioner
had no underlying obligation to pay the attorney’s fees and costs” and that the “matter of law
decided by the Trial Court is that because [p]etitioner had no obligation to pay the fees and costs[,]
there is no legal basis for shifting these fees and costs to [r]espondent.” He further contends that
petitioner never submitted any counter-affidavits or other documents to contradict her deposition
testimony or otherwise establish that she had an obligation to pay attorney fees and costs, nor did
her attorneys ask clarifying questions during the deposition. Respondent points out that without
supporting evidence, the suggestion that an issue of material fact exists is insufficient to create
one. See Sacramento Crushing Corp. v. Correct/All Sewer, Inc., 318 Ill. App. 3d 571, 575 (2000).
He argues that petitioner’s own pleadings support the trial court’s conclusion that there was no
genuine issue of material fact, as in her initial pleading she alleged that she engaged her attorney
to represent her on appeal, but later amended the pleading to recharacterize it as a continuation of
the original representation from the retainer agreement.
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2021 IL App (2d) 200648-U¶ 19 Respondent additionally argues that petitioner’s deposition testimony established that
neither she nor her attorneys were operating under the terms of the original retainer agreement. He
highlights, as did the trial court, that the agreement states that appellate proceedings are subject to
a new and separate agreement. He also notes that the agreement states that billing statements were
to be sent monthly, with balances due within 10 days. Respondent maintains that petitioner’s
deposition testimony makes clear that she did not receive monthly invoices while the matter was
pending on appeal; did not make any payments for services rendered on appeal; and began
receiving monthly invoices and making timely payments only once post-decree matters resumed
in the trial court.
¶ 20 Respondent argues that although petitioner never openly states so, it is clear that she and
her attorneys undertook the prior appeal with the understanding that she would not have an
obligation to pay fees and costs, and that if they were successful on appeal, they would seek
payment from respondent. Respondent argues that, under these circumstances, fee shifting cannot
occur under Magnuson.
¶ 21 In her response, petitioner highlights that respondent states that the trial court “determined”
a “material fact,” which is improper because the trial court may not determine material facts at the
summary judgment stage. See Voral v. Voral, 38 Ill. App. 2d 328, 331 (1962). She asserts that
although the trial court itself did not say that it was determining a material fact, it did so by ruling
on the most contested material fact, being the validity of the retainer agreement. Petitioner further
argues that she signed pleadings that stated that she had an obligation to pay her fees, and she
provided the court with a detailed transaction sheet showing the hourly work and fees incurred in
the 2019 appeal.
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2021 IL App (2d) 200648-U¶ 22 We note that Magnuson held that the phrase “ ‘necessarily incurred by the other spouse,’ ”
which was contained in the version of section 508 in effect at the time of Magnuson, meant that
the statute “require[d] a spouse to be personally liable for such fees before the other spouse can be
required to pay them.”2 Petitioner has not argued that Magnuson’s holding is incorrect or does not
apply to the current version of the statute, so we do not address that issue. See Ill. S. Ct. R.
341(h)(7) (eff. Oct. 1, 2020) (points not argued are forfeited); see also Khoury v. Niew, 2021 IL
App (2d) 200388, ¶ 31 (we may affirm a grant of summary judgment on any basis in the record
but may not reverse a grant of summary judgment on any grounds found in the record); Atlas v.
Mayer Hoffman McCann, P.C., 2019 IL App (1st) 180939, ¶ 33 (a reviewing court is not a
repository into which an appellant may dump the burden of argument and research, nor is it our
obligation to act as an advocate, and the failure to clearly define issues and support them with
authority results in forfeiture of the argument). Significantly, we should not sua sponte consider
issues unless there is an obvious error and we would not need to speculate what the parties’
arguments would be (People v. Givens, 237 Ill. 2d 311, 329-30 (2010)), which is not the situation
here. We will therefore apply Magnuson to this case.
¶ 23 Turning to the retainer agreement, we must determine whether it is ambiguous or
unambiguous, which is a question of law that we review de novo. Bozek v. Erie Insurance Group,
2015 IL App (2d) 150155, ¶ 20 (we review de novo contract interpretation issues, including
whether a contract is ambiguous). We interpret a contract to give effect to the parties’ intent.
2
We acknowledge that in In re Marriage of Putzler, 2013 IL App (2d) 120551, ¶ 42, we
stated in dicta that Magnuson was not applicable because “section 508(a) has been amended and
the ‘necessarily incurred’ language relied upon by the court in Magnuson was deleted.”
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2021 IL App (2d) 200648-URitacca Laser Center v. Brydges, 2018 IL App (2d) 160989, ¶ 15. A contract is ambiguous if its
language is susceptible to more than one reasonable interpretation. Id.¶ 24 The retainer agreement states that “[s]ervices required in any subsequent enforcement or
modification proceedings, appellate proceedings or proceedings attacking the trial court’s
judgment shall be subject to a new and separate agreement.” Under this provision, it is clear that
Schwarz’s appellate work for petitioner would not be covered. Petitioner relies on a subsequent
provision at the end of the contract stating, “Notwithstanding, the above, representation will
continue until judgment is entered or until I no longer represent you, at which time the remaining
balance is due in full unless other arrangements are made.” However, “ ‘[c]ourts and legal scholars
have long recognized that, where both a general and a specific provision in a contract address the
same subject, the more specific clause controls.’ ” Wood v. Evergreen Condominium Ass’n, 2021
IL App (1st) 200687, ¶ 51 (quoting Grevas v. United States Fidelity & Guaranty Co., 152 Ill. 2d
407, 411 (1992)). The first provision clearly and directly states that appellate proceedings shall be
subject to a new and separate agreement, whereas the second provision does not specifically
identify appellate proceedings at all. We recognize that we must construe a contract in a manner
that none of its terms are rendered meaningless or superfluous. Salce v. Saracco, 409 Ill. App. 3d
977, 982 (2011). Giving effect to the first provision does not render the second provision
superfluous, as the second provision is focused on recouping attorney fees due from the client for
work that has already been completed.
¶ 25 Schwarz’s behavior was consistent with our interpretation of the contract, as the deposition
shows that petitioner did not receive monthly invoices for work on the 2019 appeal, which the
retainer agreement specifies, and correspondingly was not required to pay for the invoices within
10 days. As respondent points out, when Schwarz began doing work for petitioner in the trial court
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2021 IL App (2d) 200648-Uagain, as opposed to the appellate work, he resumed sending out invoices, and petitioner had paid
him over $5,000. Therefore, the retainer agreement does not create a genuine issue of material fact
that would prevent summary judgment for respondent.
¶ 26 Looking more generally at petitioner’s deposition testimony, we similarly conclude that it
does not create a genuine issue of material fact that would defeat summary judgment. Petitioner
testified that she did not remember getting any invoices or making any payments to Schwarz during
2019, when the appeal was pending, and that she had not paid any fees for the appeal up to the
time of the deposition. When asked, “So your testimony under oath is that Mr. Schwarz on your
behalf undertook the professional responsibility for filing an appeal, prosecuting an appeal through
to final resolution by the appellate court without any agreement between you and he as to how or
when any attorney’s fees would be paid?”, petitioner replied, “That is correct.” Additionally, when
asked, “And when you made the decision to authorize him to pursue the appeal, what was your
understanding of what your obligation was to pay him the fees?”, petitioner replied, “I didn’t have
one.” Based on petitioner’s testimony, she did not have an obligation to pay any specific amount
of attorney fees as a result of the appeal, such that there is no genuine issue of material fact that
petitioner had not “incurred” nor was “personally liable” for the fees and costs of $74,509.15 that
she sought to charge to respondent.
¶ 27 Petitioner argues that some of her responses showed that she was confused and that she
gave contradictory answers, but the progression of the questioning shows that she was
understanding and addressing the issue more directly as the questioning continued; the quoted
portions above are subsequent to the sections of the deposition relied on by petitioner. “A party
opposing a motion for summary judgment cannot rest on its pleadings if the other side has supplied
uncontradicted facts that would warrant judgment in its favor [citation], and unsupported
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2021 IL App (2d) 200648-Uconclusions, opinions, or speculation are insufficient to raise a genuine issue of material fact.”
Valfer v. Evanston Northwestern Healthcare, 2016 IL 119220, ¶ 20. We agree with respondent
that the quoted deposition testimony supported his motion for summary judgment, and that
petitioner did not adequately contradict this testimony within the deposition testimony provided or
through other means, such as submitting invoices that were sent to her or copies of communications
regarding the payment of appellate court fees. Accordingly, the trial court did not err in granting
summary judgment for respondent.
¶ 28 III. CONCLUSION
¶ 29 For the reasons stated, we affirm the judgment of the Kane County circuit court.
¶ 30 Affirmed.
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