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In Re Marriage of Angiuli

OPINION FILED JUNE 28, 1985.

IN RE MARRIAGE OF NICK ANGIULI, PETITIONER-APPELLEE, AND LAILA ANGIULI, RESPONDENT (MARSHALL J. AUERBACH, APPELLANT).


Appeal from the Circuit Court of Lake County; the Hon. Harry D. Hartel, Jr., Judge, presiding.

PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Marshall J. Auerbach, an attorney, appeals from a judgment awarding additional attorney fees, costs and expenses of $5,057.95 to him against Nick Angiuli, who was his client in a dissolution of marriage proceeding against Laila Angiuli. The trial court determined that total fees of $36,000 were appropriate in this case and, noting Auerbach had already been paid $31,500 by his client, entered judgment for the $4,500 remaining due, together with costs and expenses.

The attorney contends the award was inadequate and he was entitled to a total of $62,202.25 for fees and $567.49 for costs and expenses incurred. He argues the trial court abused its discretion in determining the fees and that the award was contrary to the evidence. Auerbach also asserts that the initial payment of $31,500 by Angiuli for fees was by their agreement for his work to that point which the trial court improperly revalued in determining total fees earned.

The client argues that the trial court properly awarded a reasonable sum for attorney fees and costs and that the initial payment to Auerbach towards his fees neither estopped Angiuli from later challenging them as excessive nor prevented the trial court from evaluating the initial fees and services together with all services rendered in the case by Auerbach to determine what was a reasonable fee.

Auerbach represented Angiuli in the dissolution action from June 20, 1981, to October 1982. The judgment of dissolution of the marriage was entered on July 30, 1982; Laila Angiuli appealed and the judgment was affirmed by this court in an order pursuant to Supreme Court Rule 23 (87 Ill.2d R. 23). (In re Marriage of Angiuli (1983), 120 Ill. App.3d 1165.) Other counsel represented Angiuli in that appeal, in which the issues related to the division of the approximate $1.2 million marital estate accumulated by the parties over their 22-year marriage. It was comprised principally of parcels of improved and unimproved real estate; Smith, Barney and Merrill & Lynch investment accounts; and an incorporated general contracting business of which Nick Angiuli was the sole shareholder and sole beneficiary of a corporate pension plan. The evidence in that case disclosed Angiuli's salary from 1977 through 1980 averaged $167,625 per year. In affirming that judgment this court considered that the trial court had correctly apportioned the marital property approximately 45% to Laila and 55% to Nick, denied maintenance to Laila and directed each party to pay their own attorney fees.

Attorney Auerbach, whose offices are in Chicago, was retained by Nick Angiuli on June 20, 1981, to represent him in the dissolution proceeding to be brought against Laila Angiuli in Lake County. No written fee agreement was entered by them, and their testimony differed at the hearing of this matter as to the terms of employment. Auerbach testified that he told his client the fee would be at the rate of $150 per hour for both court and noncourt work; that he advised his client that associates of Auerbach would also work on the case, but at lower hourly rates; that the client expressed surprise at the fees, but agreed to them and paid a $3,500 retainer at this initial meeting.

Mr. Angiuli, however, testified the attorney did not advise him of the rates to be charged for his fees and, when the client asked what the fee would be, the attorney did not respond and changed the subject. The client stated he learned the hourly rate to be charged only when he received a final accounting of services performed. Also, while he was introduced to certain associates of the attorney, the client stated he was never told they would be working on the case.

Before trial and after representing Angiuli from June 1981 to April 1982, Auerbach billed Angiuli for his services. Although that invoice was not offered in evidence below, Auerbach testified it contained a detailed listing of various services totaling $33,897.49. These services included the pleadings in the dissolution action; numerous conferences with the client and with opposing counsel; discovery procedures; and, drafting five settlement agreements, which the wife refused to sign. Auerbach's petition for those fees reflect 12 pages of entries for work done from June 1981 to April 1982 on this case.

Angiuli testified he spoke with Auerbach after receiving that bill, telling him it was "crazy," but paid $28,000 after Angiuli was advised by the attorney he should do so as it would come out of marital assets. The client also testified that because the trial was coming up in a few days, he paid so as to not anger the attorney. Angiuli testified, too, that the bill did not state the hourly rate charged for the services. As he felt his case was not going anywhere, Angiuli also retained attorney Kathryn Marshall to advise him, as she was a matrimonial lawyer familiar with Lake County practice.

Auerbach's petition for fees also discloses that from April 1982 through the time of entry of the judgment for dissolution, Auerbach and certain of his associates performed further services in preparation for trial, including pretrial motions, depositions and a settlement conference. The fee petition entries for this period comprise 8 1/2 pages also showing client conferences; conferences with opposing counsel and witnesses; legal research and the drafting of trial memoranda. The record discloses the trial took seven days and related solely to property issues; grounds for dissolution were not contested and had been proved up earlier. The trial court also required counsel to submit written memoranda of facts and law in lieu of oral argument at the close of trial.

Subsequently, Auerbach billed Angiuli for the services performed from April 1982 through the completion of the case in the trial court. Angiuli filed a petition requesting the trial court to adjudicate the question of attorney fees, as he considered the demands to be excessive and unfair. Auerbach thereupon filed his petition in which he sought additional fees of $31,269.74, the sum due after crediting Angiuli with payment of $31,500 against the total fees claimed of $62,202.25. The petition sought fees for 384.5 hours expended on the case at $150 per hour by attorney Auerbach; 4.25 hours expended at $50 per hour by an associate; 25.75 hours at $65 per hour for another associate; and, 69.5 hours at $38 per hour expended by a paralegal. In addition, recovery of costs of $567.49 was sought.

At the hearing of the petitions the parties stipulated that Auerbach would testify that the number of hours claimed in his petition was accurate. Auerbach testified that certain issues presented by the case were novel or unusually difficult, thus requiring the extensive research applied to the case. He found unusual the question of how to value his client's corporate pension plan, as the client owned the corporation and on termination of the plan all funds would revert to him; Auerbach was unable to find any cases dealing with that situation. He also found extensive research was necessary when the wife requested a Mercedes automobile, the title of which was held by the client's corporation, to determine whether the corporate veil could be pierced even though the corporation was not a party to the cause. Auerbach expended considerable research to find case law which would support a request the wife receive 34% of the marital assets and be required to pay her own attorney fees if she received a substantial property award. Auerbach also testified his client's temperament made the case difficult and he had numerous telephone calls from him and at least 33 separate conferences.

Victor Newmark, a licensed attorney for more than 50 years who has concentrated on matrimonial law for 30 years, testified as an expert witness for Auerbach. He stated Auerbach, and all other attorneys in the case, were highly regarded in the domestic relations field. Newmark also testified that a reasonable hourly rate for an attorney of Auerbach's stature and experience in Chicago would be $150 to $200 per hour and the rates charged by Auerbach were reasonable, as were the rates charged by Auerbach's various associates, including the senior law student who performed 69.5 hours of research as a paralegal. The witness reviewed Auerbach's fee petition, the memorandum prepared in lieu of closing argument, the trial court's opinion, the judgment of dissolution and concluded the reasonable value of Auerbach's services exceeded $60,000.

The trial court sustained objections to inquiries directed to Newmark as to the difficulty of the case and the quality of Auerbach's representation, as the witness had not heard the evidence and the ...


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