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Robert Thompson and Tina v. John Buncik

July 26, 2011

ROBERT THOMPSON AND TINA PLAINTIFFS AND RESPONDENTS-APPELLEES,
v.
JOHN BUNCIK, CHAD "DOE," A PERSON WHOSE LAST NAME IS NOT KNOWN, TOM HOWLETT, AND HOWLETT COMPANIES, INC., D/B/A TOM HOWLETT CONSTRUCTION, INC., D/B/A CHARTER SUPPLY COMPANY, AND D/B/A HOWLETT HOMES, DEFENDANTS



Appeal from the Circuit Court THOMPSON, Individually and Together, of Boone County. Honorable Fernando L. Engelsma, (Mort A. Segall, Petitioner-Appellant). Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Hutchinson and Birkett concurred in the judgment and opinion.

OPINION

¶ 1 Petitioner, Mort A. Segall, appeals the trial court's denial of his motion for modification of the judgment, arguing that the trial court erred when it based its award of attorney fees on an hourly rate of $175 instead of a "stipulated" hourly rate of $250. He further argues that the trial court erred when it failed to include prejudgment interest, computed at 5% per annum, in the judgment amount, pursuant to section 2 of the Interest Act (815 ILCS 205/2 (West 2004)). We affirm.

¶ 2 I. BACKGROUND

¶ 3 In 2005, plaintiffs, Robert and Tina Thompson, retained attorney Mort A. Segall to represent them in a lawsuit against a construction company. Segall was their attorney of record between July 20, 2005, when the complaint was filed, and April 21, 2006, when the trial court permitted him to withdraw at plaintiffs' request. On August 5, 2005, Segall served the defendants in the underlying lawsuit with an "attorneys lien" for "a reasonable fee on any amounts recovered in the within action pursuant to the Attorneys Lien Act (770 ILCS 5/1)." In their "Petition to Terminate Lien," filed April 20, 2009, plaintiffs asserted that Segall was properly compensated for his services in the case and they denied that they retained Segall at an hourly rate of $250. In their answer to Segall's first amended "Petition to Enforce Attorneys Lien," filed September 15, 2009, plaintiffs stated that no hourly rate was ever agreed upon.

¶ 4 On January 28, 2010, after a bench trial, the trial court found as follows:

"1. That on June 7, 2005, Petitioner, SEGALL, was hired by the respondent Plaintiffs, THOMPSONS, to represent them on a substandard construction claim originally filed in Winnebago County by their former attorney, George Hamilos.

2. That although the evidence is clear that the THOMPSONS retained the Petitioner, SEGALL, there is no contract of employment or credible evidence establishing terms of employment. More specifically, this Court finds there is no credible evidence supporting the Petitioner's, SEGALL['s], claimed hourly rate of $250.00.

4. Not being able to find an agreed amount of remuneration, this Court finds it appropriate to use the quantum meruit approach and, therefore, finds Petitioner SEGALL is entitled to compensation.

5. The rate of $175.00 per hour is a reasonable hourly rate for Petitioner, SEGALL, considering his experience, the complexity of the litigation, prevailing rate at the time, benefit THOMPSONS received from SEGALL's representation, and what was performed for the THOMPSONS, as well as *** considering the evidence and witness testimony presented."

The trial court further found that Segall had expended 48.75 hours on plaintiffs' behalf. The trial court set a fee rate of $175 per hour as a "reasonable hourly rate" and ordered plaintiffs to pay Segall $6,233.55.*fn1

ΒΆ 5 On February 11, 2010, Segall filed a petition under section 2-1203 of the Code of Civil Procedure (735 ILCS 5/2-1203 (West 2008)) for modification of the judgment, asking for fees at " 'a reasonable hourly rate' of $250.00" plus costs; additionally, Segall petitioned for prejudgment interest in the amount of $2,437.52 pursuant to statute (815 ILCS 205/2 (West ...


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