APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
Moschettoni et al., Respondents-Appellees)
513 N.E.2d 17, 159 Ill. App. 3d 862, 111 Ill. Dec. 771 1987.IL.1126
Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.
PRESIDING JUSTICE McMORROW delivered the opinion of the court. LINN, J., concurs. JUSTICE JIGANTI, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW
The subject of this appeal is an order entered by the circuit court of Cook County which vacated a prior order awarding additional attorney fees to the petitioner, attorney Nathan Shefner (Shefner). We affirm the trial court's denial of additional attorney fees to Shefner.
Teresa Domenella was the mother of plaintiff and defendants. Upon her death, her property and assets came into the possession of defendants. Plaintiff, represented by Shefner, filed a complaint against his brothers, the defendants, seeking an accounting and equal distribution of the property and assets of their mother at the time of her death. The complaint requested a division of the property among the three sons of Teresa Domenella, but made no mention of any other heirs who might have an interest in the property.
In their answer, defendants admitted the existence of certain property left by their mother at the time of her death, but affirmatively alleged that Teresa Domenella was, in addition to plaintiff and defendants, also survived by two daughters, Josephine Moschettoni and Sister Lina Domenella, a missionary nun of the Catholic Church. These daughters are the respondents herein. The two daughters, both citizens of Italy, were not made parties to the suit and, consequently, did not retain counsel to represent their interests therein.
Defendants filed an itemized account of the property and assets which came into their possession following the death of their mother. The trial court ruled that three certificates of deposit were intestate property and, therefore, should be divided equally among the five children of Teresa Domenella.
Attorney Shefner had an express contract to receive compensation of one-third of the amount he was successful in recovering for plaintiff, his client. After the trial court's ruling, Shefner sought an award of additional attorney fees of the one-third share of the certificates of deposit that were awarded to respondents, the two daughters of Teresa Domenella. No opposition to the petition was presented and the trial court entered an order granting the additional fees, but stayed the effect of the order until respondents were notified of the fee award. Both respondents wrote letters to the trial court objecting to the award of fees out of their shares of the intestate property.
Defendants thereafter requested a rehearing of the petition for additional fees. The trial court granted defendants' request for rehearing and vacated its previous order granting Shefner's request for additional attorney fees to be awarded out of the respondents' property shares. Shefner was given leave to present an amended petition including time records and evidence of reasonable and customary charges for attorney fees in this matter.
Shefner represented to the trial court that he did not keep any record of the time expended in this case because his compensation from plaintiff was not to be computed on an hourly basis. Shefner did not present an amended petition and filed this appeal of the order vacating the award of additional fees. *fn1
Shefner contends that respondents received the benefit of his services in procuring for them an award from their mother's estate and thus should be required to pay him a reasonable fee., Respondents assert that Shefner cannot recover a fee for services from them ...