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03/18/87 Continental Illinois v. Marshall C. Spiegel

March 18, 1987

CHICAGO, PLAINTIFF-APPELLEE

v.

MARSHALL C. SPIEGEL, DEFENDANT-APPELLANT (LEONARD A. NELSON, APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

CONTINENTAL ILLINOIS NATIONAL BANK & TRUST COMPANY OF

507 N.E.2d 58, 154 Ill. App. 3d 450, 107 Ill. Dec. 394 1987.IL.325

Appeal from the Circuit Court of Cook County; the Hon. George N. Marovich, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McNAMARA delivered the opinion of the court. RIZZI and WHITE, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Marshall Spiegel appeals from an order of the trial court awarding appellee, attorney Leonard Nelson, fees and costs in the amount of $4,065.90. The award was granted for Nelson's work in a previous appeal in which Spiegel challenged, among other things, an earlier fee award for Nelson's services as guardian ad litem of the unborn beneficiaries of the Oscar Spiegel Trust. Spiegel contends that the second award of fees was improper because Nelson had an undisclosed conflict of interest and because Nelson was simply acting to protect his earlier award of fees and not benefiting the unborn beneficiaries.

This is the third appeal to this court arising out of this cause of action. The Oscar Spiegel Insurance Trust was created in 1972 and Continental Bank was named as the corporate trustee of the trust. Marshall Spiegel was the sole beneficiary and became co-trustee upon reaching the age of 25 in 1981. Upon becoming the co-trustee, Spiegel attempted to remove Continental as trustee and demanded that the trust assets be turned over to him. Continental was allowed to interplead seeking judicial construction of the trust and claiming that the trust required Continental to turn the assets over to a succeeding corporate trustee. On Continental's motion, the trial Judge, Judge Reginald Holzer, appointed a guardian ad litem to represent the interests of Spiegel's unborn children. Nelson was later appointed as successor guardian to represent these interests.

On Continental's interpleader, the trial court ruled that the trust required appointment of a successor corporate trustee. The court also awarded Nelson's predecessor as guardian fees and costs in the amount of $4,787.50. Spiegel appealed the rulings, and on December 7, 1983, in a Rule 23 order (87 Ill. 2d R. 23), we affirmed both rulings of the trial court.

On remand from the first appeal, the trial court granted Nelson fees for work done on the appeal. Spiegel appealed from this award of fees, and on April 10, 1985, in another Rule 23 order, we affirmed the award of fees to Nelson. Shortly after the second appeal was decided, Judge Holzer was indicted and was no longer assigned to the matter.

On December 10, 1985, Nelson filed a petition for additional fees for work done on the second appeal. Spiegel objected to Nelson's petition for fees on the grounds that it had just been learned that Nelson was indebted to Continental and because of this undisclosed conflict of interest, Nelson was not entitled to serve as guardian. Spiegel also moved to vacate all of the orders which had been entered by Judge Holzer on the grounds that the Judge also had outstanding loans from Continental which had not been disclosed by the Judge or Continental and that Judge Holzer should have recused himself from the case.

On January 24, 1986, the Judge assigned to the case granted additional fees to Nelson. On March 11, the trial court denied Spiegel's motion to vacate all of Judge Holzer's orders. On Spiegel's motion for reconsideration of the order as to Nelson's fees, the trial court confirmed its intent to assess the fees against Spiegel personally. Spiegel filed a timely notice of appeal challenging both the award of fees to Nelson and the denial of the motion to vacate Judge Holzer's orders.

At appellee's request, this court denied Spiegel's motion for leave to withdraw and voluntarily dismiss from this appeal that part of the trial court's order refusing to vacate the orders entered by Judge Holzer. In his opening brief, Spiegel expressly stated that he wished to withdraw that part of his appeal and made no argument regarding the orders entered by Judge Holzer. In his reply brief, however, Spiegel challenges the trial court's denial of his motion to vacate Judge Holzer's orders. Consistent with Supreme Court Rule 341 and the cases interpreting this rule, any points not argued by appellant in the opening brief are waived and shall not be raised in the reply brief, at oral argument, or on petition for rehearing. (87 Ill. 2d Rules 341(e), (f); Coons v. Wilder (1981), 93 Ill. App. 3d 127, 416 N.E.2d 785.) We recognize that this waiver rule is not a limit on our jurisdiction. However, any exception to the rule would be inappropriate in a case such as this, where Spiegel, by filing a motion to dismiss this portion of the appeal and by not raising the issue in his opening brief, has chosen not to address the issue on appeal. We therefore hold that Spiegel's argument challenging the trial court's refusal to vacate all orders entered by Judge Holzer, argued for the first time in Spiegel's reply brief, is waived.

To reach Spiegel's contention regarding the award of fees to Nelson, we find Nelson's argument that Spiegel waived appeal of this issue to be without merit. It is clear that Spiegel intended to challenge Nelson's right to fees. Spiegel filed an objection to Nelson's petition for fees and objected to the trial court regarding Nelson's right to fees ...


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