Pietrzyk v. Oak Lawn Pavilion, Inc.

• Decision Date: 26 April 2002
• Docket Number: No. 1-01-1608.,1-01-1608.
• Citation: 329 Ill. App.3d 1043,263 Ill.Dec. 932,769 N.E.2d 134
• Parties: Eryka PIETRZYK as Ex'x of the Estate of Anthony F. Pietrzyk a/k/a Antoni Pietrzyk, Deceased, Plaintiff-Appellant, v. OAK LAWN PAVILION, INC.; Anastasia Largosa; Kovilparambil Anthony; and Joanne Harlin, Defendants (Oak Lawn Pavilion, Inc., Defendant-Appellee).
• Court: United States Appellate Court of Illinois

769 N.E.2d 134

329 Ill. App.3d 1043

263 Ill.Dec. 932

Eryka PIETRZYK as Ex'x of the Estate of Anthony F. Pietrzyk a/k/a Antoni Pietrzyk, Deceased, Plaintiff-Appellant, v. OAK LAWN PAVILION, INC.; Anastasia Largosa; Kovilparambil Anthony; and Joanne Harlin, Defendants (Oak Lawn Pavilion, Inc., Defendant-Appellee).

No. 1-01-1608.

Appellate Court of Illinois, First District, Fifth Division.

April 26, 2002.

Steven M. Levin, Gregory C. Nikitas of Levin & Perconti, Chicago, for Appellant.

Martin A. Kanofsky, Donald G. Machalinski of Merlo, Kanofsky & Brinkmeier, Ltd., Chicago, for Appellee.

Justice GREIMAN delivered the opinion of the court:

This appeal arises from the trial court's order granting in part and rejecting in part plaintiff Eryka Pietrzyk's postjudgment motion, pursuant to section 3-602 of the Nursing Home Care Act (210 ILCS 45/3-602 (West 2000)), for attorney fees. For the reasons that follow, we affirm.

On October 28, 1996, the plaintiff, as executrix of the estate of Antoni Pietrzyk, filed a multicount claim against defendants Oak Lawn Pavilion, Inc. (Oak Lawn), Joanne Harlin, Kovilparambil Anthony, M.D., and Anastasia Largosa, M.D. Plaintiff engaged her attorneys pursuant to a one-third contingency fee arrangement. Count I of plaintiff's amended complaint sought recovery from Oak Lawn for a statutory violation of the Nursing Home Care Act (210 ILCS 45/1-101 et seq. (West 1996)) for three months of disability, medical expenses, and pain and suffering her husband endured after Oak Lawn's alleged neglect. ¹ Pursuant to section 3-602 of the Nursing Home Care Act, Pietrzyk also sought attorney fees and costs. Count II of the amended complaint sought recovery against Oak Lawn for common law negligence. Count III was a wrongful death action, pursuant to the Wrongful Death Act (740 ILCS 180/1 (West 1996)) that also sought recovery against Oak Lawn. That claim, however, was predicated upon common law negligence and was not covered by the Nursing Home Care Act. Pietrzyk did not seek attorney fees and costs in either count II or III. The remaining counts were directed against the other defendants.

On January 11, 2000, the trial court granted Dr. Anthony's motion for summary judgment. Before trial, Pietrzyk voluntarily dismissed Dr. Largosa and settled with Harlin for $ 50,000. Plaintiff then opted to pursue recovery on counts I and III of her amended complaint against only Oak Lawn (hereinafter defendant).

Because defendant admitted its liability, the only factual issue to be decided by the jury was the amount of money to be awarded to the plaintiff for the proven recoverable compensatory damages. On October 26, 2000, the jury returned the following itemized verdict:

"Past Medical Expenses: $ 26,530.55 General Expenses: $ 10,254.33 Disability: $100,000.00 Pain and Suffering: $175,000.00 Loss of Society to Eryka Pietrzyk: $287,000.00 Loss of Society to Dianne Bender: $ 50,000.00 Loss of Society to Alice Brackman: $ 50,000.00 Total: $698,784.85"

On November 21, 2000, Pietrzyk filed a motion to recover attorney fees, pursuant to section 3-602 of the Nursing Home Care Act, in the amount of $ 232,928.29—or one-third of the total verdict—as determined by her contingency fee agreement. Defendant filed a response in opposition to Pietrzyk's motion and argued that she was entitled to attorney fees only in the amount of one-third of the damages attributable to the claim brought under the Nursing Home Care Act. For that argument, defendant noted that Wills v. De Kalb Area Retirement Center, 175 Ill. App.3d 833, 125 Ill.Dec. 657, 530 N.E.2d 1066 (1988), held that wrongful death claims are not covered by the Nursing Home Care Act.

In reply, Pietrzyk asserted that the issue was not whether the wrongful death action was contemplated under the Nursing Home Care Act. Rather, plaintiff claimed that where the covered and noncovered claims arose out of a common core of facts and legal theories, her claim for attorney fees should not be reduced since the work involved in litigating the claims was identical. In support of her position, she cited precedent that established that where reasonable attorney fees are calculated on an "hours times rate basis," the claim is not reduced when noncovered claims are involved if the claim arises under a common core of facts. See Berlak v. Villa Scalabrini Home for the Aged, Inc., 284 Ill.App.3d 231, 238, 219 Ill.Dec. 601, 671 N.E.2d 768 (1996).

On March 30, 2001, the court entered a memorandum opinion and found that the plaintiff was not entitled to attorney fees in an amount of one-third of the wrongful death verdict and was only entitled to the amount of one-third of the Nursing Home Care Act claim. Accordingly, the court allowed a fee of $ 100,510.18 ($ 175,000 pain and suffering + $ 100,000 disability + $26,530.55 medical expenses = $ 301,530.55 ÷ 3 = $ 100,510.18), or one-third of the Nursing Home Care Act claim. Pietrzyk now appeals and argues that she is also entitled to attorney fees for one-third of the $ 397,254.33 wrongful death verdict, or $ 132,418.11, under the Nursing Home Care Act.

Initially, the parties disagree as to the standard of review that we are to apply. Plaintiff asserts that where, as here, the facts of a case are uncontroverted and the issue concerns only the trial court's application of the law to the facts, the standard of review is de novo. See Roubik v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 285 Ill.App.3d 217, 219, 220 Ill.Dec. 764, 674 N.E.2d 35 (1996). Defendant, however, argues that the abuse of discretion standard applies to the court's award of attorney fees. See Sampson v. Miglin, 279 Ill.App.3d 270, 215 Ill.Dec. 884, 664 N.E.2d 281 (1996). Moreover, it cites case law that holds that a reviewing court ought not conduct a de novo review of a fee petition to provide a second opportunity to address its reasonableness. See Ardt v. State of Illinois, 292 Ill.App.3d 1059, 227 Ill.Dec. 203, 687 N.E.2d 126 (1997).

Generally, it is well settled that "[a] trial court has broad discretionary powers in awarding attorney fees, and its decision will not be reversed on appeal unless the court abused that discretion." Weidner v. Szostek, 245 Ill.App.3d 487, 493, 185 Ill.Dec. 438, 614 N.E.2d 879 (1993), citing In re Estate of Callahan, 144 Ill.2d 32, 44, 161 Ill.Dec. 339, 578 N.E.2d 985 (1991). This is because a court must determine whether the party seeking attorney fees has met its burden of presenting sufficient evidence from which the court can render a decision as to the amount of reasonable attorney fees. Weidner, 245 Ill.App.3d at 493, 185 Ill.Dec. 438, 614 N.E.2d 879. Such a determination necessarily involves a weighing of facts, such as the type of fee arrangement at issue, the amount of hours worked, or the hourly fees charged. Accordingly, where a party on appeal is challenging the adequacy of attorney fees, that party is actually challenging the trial court's discretion in determining what is reasonable.

In this case, however, the plaintiff is not challenging the reasonableness of the trial court's findings. Indeed, as she notes in her reply brief, "[t]he trial court recognized that the parties were in substantial agreement as to the factual basis for an award of attorney fees." Specifically, the plaintiff sought a recovery of attorney fees based upon the contingency agreement of one-third of the entire verdict, whereas the defendant sought to limit the recovery of attorney fees to one-third of the verdict attributable to the damages awarded for the claim brought under the Nursing Home Care Act. Importantly, however, both parties agreed that a one-third contingency fee was a reasonable attorney fee for this case.

At that point, the court then had to determine the law that applied to the facts. The record reveals that even the trial court perceived the issue as a legal one:

"Thus, the question, as the court perceives it under the present status of the law and the facts before it is straightforward: does the [A]ct authorize attorney fees for a cause of action (wrongful death) not contemplated and for parties (a `resident's' heirs) not protected under the Act? Reluctantly, this court thinks not."

In short, once the court made its determination as to the reasonableness of the contingency agreement, it then had to make a determination on the law to be applied, which did not require it to weigh any facts whatsoever. Because the plaintiff here is not disputing the trial court's calculations, but is contending only that the trial court misapplied the law, we agree with plaintiff that the standard of review is de novo. See Romanek v. Connelly, 324 Ill.App.3d 393, 398, 257 Ill.Dec. 436, 753 N.E.2d 1062 (2001).

The plaintiffs only contention on appeal is that in a fee-shifting case, where there are covered and noncovered claims, a party is entitled to fees on a noncovered claim where the two claims "arise out of a common core of facts and related legal theories." For this, she cites the Supreme Court's decision in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), which was cited with approval by this court in Berlak v. Villa Scalabrini Home for the Aged, Inc., 284 Ill.App.3d 231, 238, 219 Ill.Dec. 601, 671 N.E.2d 768 (1996). Hensley stated:

"In [some] cases the plaintiff's claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Hensley, 461 U.S. at 435, 103 S.Ct. at 1940, 76 L.Ed.2d at 51-52.

In the present case, plaintiff argues that her two causes of action clearly arise out of a...