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Whitney v. Oak Brook Bank

August 22, 2001


Appeal from the Circuit Court of Du Page County. Nos. 98-CH-1089;98-CH-1090 Honorable Robert E. Byrne, Judge, Presiding

The opinion of the court was delivered by: Justice Callum


Petitioners, Catherine J. Whitney, Robin Whitney, Ryan Whitney, Michael F. Harvey, and Marshal I. McMahon, appeal the trial court's denial of Harvey and McMahon's petition for attorney fees. Petitioners contend that the trial court abused its discretion in denying the petition. For the reasons that follow, we affirm.

Decedent, Steven Strange, died testate on September 26, 1996. Decedent was the father of Robin and Ryan Whitney (the minors). Catherine J. Whitney was the mother of the minors. Decedent was never married to Catherine. Pursuant to decedent's will, a trust was established for the benefit of each of the minors, and Catherine was named co-trustee. At the times relevant to this appeal, respondent, Oak Brook Bank (the Bank), was co-trustee and the corporate fiduciary for the minors. Craig Strange, decedent's brother, was executor of decedent's estate.

On November 15, 1999, attorneys Harvey and McMahon filed a petition for attorney fees and costs (the petition) seeking payment for legal services that they purportedly provided to Catherine and the minors between April 16, 1999, and October 29, 1999. Harvey requested $13,986, and McMahon requested $9,534. A 15-page statement was attached to the petition. The statement specified the dates, the services provided, and the time Harvey and McMahon spent in providing each claimed service.

In the petition, Harvey and McMahon stated that they were the attorneys for Catherine, as guardian of the minors and as co-trustee of the trusts; that they were the attorneys for the minors as beneficiaries of the trusts; that their hourly rate was $180; and that the statement of time and labor expended was reasonable in view of the novelty and difficulty of some of the questions involved. Harvey and McMahon asserted that they provided services on matters that included numerous motions and petitions attempting to replace the executor of decedent's estate; attempts to discover hidden assets of the estate; necessary discovery of relevant parties; and attempts to determine whether the legal charges that the Bank sought were appropriate. Harvey and McMahon also asserted that payment of their fees and costs was necessary to allow them to perhaps join in a related lawsuit to secure further assets for the trusts and to investigate the possibility that the minors could succeed to the rights of decedent regarding claims related to his estate.

The Bank filed a six-page objection to the petition. In the objection, the Bank asserted that the requests for fees and costs were not reasonable because the claimed services were either not necessary or did not pertain to the trusts. The Bank also asserted that the time claimed for certain services appeared excessive and that many entries in the time sheets were vague as to the purpose of the service and what was accomplished.

The executor of decedent's estate filed a four-page objection to the petition, seeking its denial and sanctions against Harvey and McMahon. The executor asserted that Harvey and McMahon filed motions and made arguments to the trial court that were "replete with misrepresentations and frauds committed upon the Court." The objection listed five examples of the alleged misrepresentations and frauds.

On January 24, 2000, the trial court conducted a hearing on the petition. The court noted that it had read both of the objections to the petition and Harvey's response to the objections. The court then asked Harvey (McMahon was not present) how he wished to proceed. Harvey replied that he would waive argument and rest on the pleadings but would respond if the other attorneys argued. The attorney for the executor made a short argument to which Harvey did not respond.

The trial court commented that it took all fee petitions very seriously because attorneys have a right to be compensated for their work. The court noted that it had approved prior requests for attorney fees that had been filed by various parties. The court stated that the factors to be considered in determining a reasonable fee include "the time and labor put in, the novelty and difficulty of the issues, the skill required, the preclusion of other matters, customary fees in the community, amount of money in the case, attorney's reputation, experience and ability and the results obtained."

The trial court then questioned the reasonableness of about 10 of Harvey and McMahon's specific fee requests. The court stated that its questioning of these fee requests was not meant to be a comprehensive analysis of the fee requests. The court referred to the objections filed by the Bank and the executor of decedent's estate and indicated that the objections had merit.

The trial court also noted that it had allowed only 50% to 60% of the amount that Harvey and McMahon requested in a previous petition for attorney fees. The court stated that it had "tried to send a message with that" but that "the message didn't get through." The court denied the petition in its entirety, and petitioners appealed.

On appeal, Harvey and McMahon contend that the trial court abused its discretion when it denied the petition. The gist of their argument is that the trial court did not allow them a fair hearing to meet their burden of proof with respect to the petition. Alternatively, Harvey and McMahon argue that they are entitled to quantum meruit for their services.

The Bank initially responds that the appeal should be dismissed because this court lacks jurisdiction. The Bank argues that Harvey and McMahon erroneously contend that this court has jurisdiction under Supreme Court Rule 304(b)(1) (155 Ill. ...

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