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In Re Estate of Healy

OPINION FILED OCTOBER 8, 1985.

IN RE ESTATE OF STEPHEN A. HEALY, DECEASED (DONALD M. ORSTROM, PETITIONER-APPELLANT,

v.

GREGORY M. TIERNEY ET AL., RESPONDENTS-APPELLEES).



Appeal from the Circuit Court of Du Page County; the Hon. John S. Teschner, Judge, presiding.

JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:

Petitioner, Attorney Donald M. Orstrom, appeals from the trial court's order denying his petition for $45,298.91 additional attorney fees, which amount he claimed was owed to him by respondents.

For the purpose of this opinion, we recite only those facts that we consider relevant to the determination of whether the trial court abused its discretion in denying petitioner's request.

The voluminous record accompanying this appeal reflects the long, complicated history of a probate action concerning the estate of Stephen A. Healy, deceased, wherein petitioner represented respondents who shared a one-fifth interest in a testamentary trust. Although first hired to represent Grace Collins, upon her death petitioner was asked to represent respondents who succeeded to her one-fifth interest in the trust. An initial dispute in this case concerns the responsibility of respondents to pay the legal fees involved during the period before Grace Collins' death.

The record indicates that petitioner first stated that his fee was to be $60 an hour, and he claimed that respondents did not dispute this amount. Respondents, in turn, testified that the initial amount was in dispute and that petitioner had orally quoted to them a fee of $50 an hour or less.

Petitioner's actions on Grace Collins' and respondents' behalf included familiarization with the file, research concerning the filing of a constructive trust lawsuit (which was dismissed, amended, and again dismissed), filing objections to the first accounting (which were denied and the order was appealed from), filing objections to the second accounting and negotiating and signing a settlement agreement (which respondents claim was not in conformance with their settlement authority). Additionally, in alleged response to respondents' claim of being previously uninformed of the progress of the probate action by the executor and other attorneys, petitioner also wrote numerous long letters to respondents informing them in great detail of the various actions taken both in and out of court regarding the settlement of the estate.

Respondents testified that they instructed petitioner to negotiate a settlement of approximately $500,000 to $600,000 in cash as opposed to a percentage of the trust in the form of stock. They further testified that respondent was instructed to have the settlement funds paid into the trust prior to dismissal of any legal proceedings they had instituted. Petitioner started negotiations at a much higher figure and included in that demand a request for attorney fees of $73,000. The testimony of the respondents reflects their rejection of the $73,000 fee requested, although petitioner denies this. Petitioner testified, however, that the $73,000 fee was in excess of the hourly billing amount actually due him.

The final settlement was signed by petitioner, who submitted into evidence the letters of permission received from all but one of the respondents allowing petitioner to sign the settlement agreement. In apparent contradiction to respondents' settlement authority, the final settlement consisted of no specific amount, since it was dependent upon a final accounting. Also, the litigation was dismissed, and petitioner claimed fees in the amount of $80,000, to which amount respondents objected.

Thereafter, petitioner submitted a fee proposal of $85 an hour which he claims was never rejected by respondents. Respondents testified, however, that they orally rejected the $85 an hour amount.

Petitioner then arranged to have the estate fund $200,000 into respondents' trust account as partial distribution of their share of the estate. Two years elapsed before the filing of a final accounting and the funding of the balance of the settlement.

Petitioner was ultimately discharged by respondents other than Suzanne Glen, whom he billed for $6,920 plus costs for her portion of his fee. The other respondents were billed $38,194.73. Petitioner had already received $18,425.57 in fees from the estate.

To be noted also is that petitioner represented the Reidy children, other beneficiaries of the estate, and that many of the services rendered to the Reidy children and respondents overlapped. Consequently, petitioner charged only half of his fee to each. In 1982, petitioner filed the petition which is the subject of this appeal.

It is undisputed that an attorney who renders professional services has a right to be compensated for such services. (Greenbaum & Browne, Ltd. v. Braun (1980), 88 Ill. App.3d 210; Slater v. Jacobs (1977), 56 Ill. App.3d 636.) As a general rule this right must rest on the terms of an express or implied contract of employment with the person sought to be charged. (56 Ill. App.3d 636; Neville v. Davinroy (1976), 41 Ill. App.3d 706.) Although a representation agreement is not disputed in the present case, the record is nevertheless replete with conflicting testimony regarding the hourly rate and total fee agreed upon as part of that representation agreement. No written contract of employment signed by the respondents was presented in evidence. Petitioner's account statements and affidavit do not indicate the hourly rate charged, and petitioner failed to present any evidence of respondents' acceptance of his three separate fee proposals throughout the period of his representation, other than to argue that they did not reject the $85 an hour proposal. There was contrary testimony, however, indicating emphatic rejection of petitioner's proposals.

• 1 In actions to recover compensation for legal services the burden of proof rests on the attorney to establish his case. (Greenbaum & Browne, Ltd. v. Braun (1980), 88 Ill. App.3d 210.) Since no "meeting of minds" was adequately demonstrated by plaintiff in the present case, the propriety of the additional fee requested required proof like any other claim and was similar to cases where attorney fees are the subject of a court order against an opposing party. 64 East ...


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