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04/13/89 In Re Marriage of Janet Pagano

April 13, 1989

IN RE MARRIAGE OF JANET PAGANO, PETITIONER-APPELLANT, AND


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

THOMAS PAGANO, Respondent (Rinella & Rinella, Ltd.,

Appellee)

537 N.E.2d 398, 181 Ill. App. 3d 547, 130 Ill. Dec. 331 1989.IL.525

Appeal from the Circuit Court of Du Page County; the Hon. Michael R. Galasso and the Hon. C. Andrew Hayton, Judges, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. LINDBERG and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

This is an appeal by petitioner, Janet Pagano, from the denial of a section 2-1401 petition to vacate an order for attorney fees awarded to Rinella & Rinella, Ltd. (Rinella). Ill. Rev. Stat. 1985, ch. 110, par. 2-1401 (formerly section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72)).

On appeal, petitioner contends that (1) the trial court lacked subject matter jurisdiction to enter fee awards in the absence of any pleading to seek such awards; (2) Rinella did not have standing in the absence of a fee petition; (3) petitioner was entitled to relief pursuant to section 2 -- 1401 of the Code of Civil Procedure; (4) petitioner is entitled to a hearing on the reasonableness and necessity of attorney fees; (5) Rinella had a fiduciary duty to petitioner which prevented it from entering into agreed orders with petitioner for attorney fees; (6) the agreed orders were not final orders which could be recorded as liens against marital property; (7) the agreed orders cannot stand in absence of proof as to the reasonableness of the fees; (8) the agreed orders violated section 2 -- 1301 of the Code of Civil Procedure; and (9) Rinella through its conduct has forfeited its right to collect attorney fees. We reverse and remand.

In her dissolution of marriage proceedings against Thomas Pagano, petitioner was represented by Rinella. On June 2, 1986, during the course of this proceeding, an agreed order was entered in the amount of $20,000 in favor of Rinella and against petitioner. That order provided:

"That Janet B. Pagano, having been advised of her right to a full and complete hearing with respect to her attorney's fees under section 508 of the Illinois Marriage and Dissolution of Marriage Act, and having knowingly waived her right to said hearing, agrees that she shall pay RINELLA & RINELLA, LTD. the sum of TWENTY THOUSAND ($20,000) DOLLARS as and for additional fees she has already paid said law firm.

2. That judgment is hereby awarded RINELLA & RINELLA against JANET P. PAGANO for said sum and said judgment shall be a lien against her interest in the residence located at 7 South 441 Donwood Drive, Naperville, Illinois, until paid in full."

On May 18, 1987, again during the course of the proceedings and prior to any judgment of dissolution, a second agreed order with substantially the same language was entered in favor of Rinella for $30,000 against Janet B. Pagano. With regard to this order, the trial court queried petitioner as follows:

"THE COURT: On the record, Mrs. Pagano, your attorney has just handed me an order which bears your signature acknowledging that you owe the firm of Rinella & Rinella the sum of $30,000 for their fees in their representation of you in this cause.

MRS. PAGANO: Yes, your Honor.

THE COURT: And you signed that order, is that correct, Mrs. Pagano?

MRS. PAGANO: That's correct."

We note that the first order has never been released or modified. Therefore, after entry of the second order, Rinella had and still has a total of $50,000 in judgments against petitioner.

On July 27, 1987, William J. Stogsdill filed an appearance as additional counsel on behalf of petitioner.

On September 14, 1987, Rinella was granted leave to withdraw as attorney of record for petitioner.

After obtaining the two judgments totaling $50,000, Rinella filed a petition for attorney fees on September 21, 1987. This petition was extensive. It requested fees for two attorneys for a total of 235.10 hours with hourly fees ranging from $125 an hour to $200 an hour. The total fees requested were in the amount of $37,034.15, $700 of which had been paid. Rinella prayed for a judgment of $36,334.15 and for such other relief as equity required. Attached to the petition was a breakdown alleging that various work had been performed and the time spent on such work.

Judgment for dissolution of marriage was entered on September 21, 1987.

On December 2, 1987, a hearing was held on Rinella's petition for attorney fees. Rinella did not present any evidence but stated that it was standing on the order entered on May 18, 1987, and on its petition for attorney fees. In ruling, the following colloquy occurred:

"THE COURT: Mr. Rinella, you give me no choice other than to state that the Court has previously entered an order and made a finding by the entry of that order relative to the reasonableness of the fees that were agreed to between you and your client for the sum of $30,000.00.

That order was entered in May of 1987. There has been no motion to vacate or set the order aside. The judgment has been entered in this case, is that correct?

MR. MARINACCIO: Yes, your Honor.

THE COURT: There has been no notice to appeal that I am aware of filed in this ...


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