Guerrant v. Roth

• Decision Date: 13 September 2002
• Docket Number: No. 1-01-3690.,1-01-3690.
• Citation: 334 Ill. App.3d 259,777 N.E.2d 499,267 Ill.Dec. 696
• Parties: D. Stephen GUERRANT and Marcia Guerrant, Plaintiffs-Appellees, v. Robert ROTH, Vincent and Roth, P.C., an Illinois Corporation; and McCoy Real Estate Services, Inc., an Illinois Corporation, Defendants (D'Ancona & Pflaum, L.L.C., Appellant).
• Court: United States Appellate Court of Illinois

777 N.E.2d 499

334 Ill. App.3d 259

267 Ill.Dec. 696

D. Stephen GUERRANT and Marcia Guerrant, Plaintiffs-Appellees, v. Robert ROTH, Vincent and Roth, P.C., an Illinois Corporation; and McCoy Real Estate Services, Inc., an Illinois Corporation, Defendants (D'Ancona & Pflaum, L.L.C., Appellant).

No. 1-01-3690.

Appellate Court of Illinois, First District, Sixth Division.

September 13, 2002.

D'Ancona & Pflaum, L.L.C., Chicago (Paul E. Freehling, of counsel), for Appellant.

Rooks, Pitts & Poust, Chicago (Dean A. Dickie, of counsel), for Appellee.

Presiding Justice GALLAGHER delivered the opinion of the court:

The appellant in this case, D'Ancona & Pflaum, L.L.C., (D'Ancona & Pflaum), is a law firm that represented plaintiffs, D. Stephen Guerrant and Marcia Guerrant (the Guerrants), in the underlying litigation from March 1986 through September 2000. D'Ancona & Pflaum appeals from an order of the trial court finding that D'Ancona & Pflaum was entitled to recover only $2,940.92 for its costs and expenses¹ out of the $20,704.91 that it had claimed as costs and expenses. In this appeal, D'Ancona & Pflaum seeks the following expenditures denied by the trial court: computer-assisted legal research charges of $10,348.45 (Westlaw) and $443.83 (LEXIS), photocopy charges of $2,028.61, one court reporter bill in the amount of $100, telephone toll charges of $57.50, and cab fare of $15.² The primary issue in this appeal is whether the expenditures denied by the trial court were recoverable pursuant to the terms of the parties' written contingent fee agreement.

Background

On March 8, 1996, D'Ancona & Pflaum commenced the underlying litigation when the firm filed a complaint on behalf of the Guerrants in the circuit court of Cook County against Vincent & Roth, P.C., an Illinois law firm, and McCoy Real Estate Services, Inc., an Illinois real estate brokerage firm, alleging professional malpractice relating to a real estate claim.³ D'Ancona & Pflaum, however, did not execute a written agreement with the Guerrants until June 25, 1999. At that time, Mr. Dean Dickie was the lead attorney in the underlying litigation. D'Ancona & Pflaum prosecuted the Guerrants' case from 1996 through June 2000. Mr. Dickie, whose membership with D'Ancona & Pflaum was terminated effective June 30, 2000, took the Guerrants' case with him when he left the firm. He formally substituted as counsel on September 25, 2000. A jury trial on the underlying litigation commenced in November 2000 during which time the case settled for $210,000. As a result of settlement, the trial court entered an order on November 29, 2000, dismissing the case with prejudice. The defendants in the underlying litigation subsequently refused to tender the settlement amount pending the resolution of this dispute that arose between the Guerrants and D'Ancona & Pflaum regarding an attorneys' lien asserted by D'Ancona & Pflaum.

On February 7, 2001, the trial court entered an agreed order whereby it directed the Guerrants to pay D'Ancona & Pflaum $45,454.50 for the professional services rendered, pursuant to the written contingent fee agreement.⁴ However, the amount of $20,704.91 for costs and expenses remained in dispute between D'Ancona & Pflaum and the Guerrants. Because the remainder of the disputed sum had dipped below the $30,000 minimum required for law division jurisdiction, the trial court transferred the case to the municipal division, where it was assigned to Judge Robert E. Gordon for further proceedings.⁵

On October 10, 2001, a trial commenced before Judge Gordon. Mr. Dickie represented the Guerrants. After D'Ancona & Pflaum presented its case, Judge Gordon terminated the trial proceedings, called the attorneys into his chambers and rendered his decision. He allowed reimbursement of certain expenditures as set out in some of the trial exhibits. Judge Gordon allowed reimbursement for the entirety of travel expenses of $954.80, but denied cab fare of $15. Judge Gordon denied the remaining expenditures for computer-assisted research, photocopying and telephone charges because they were not expressly provided for in the contingent fee agreement. The basis of the trial court's denial of the remaining expenditure of $100 for one court reporter bill is unclear.

Standard of Review

The parties here disagree on the standard of review that this court should apply. Generally, a trial court's decision to award attorney fees is not reversed absent an abuse of discretion. Pietrzyk v. Oak Lawn Pavilion, Inc., 329 Ill.App.3d 1043, 1046, 263 Ill.Dec. 932, 769 N.E.2d 134, 137 (2002). The rationale for this standard is that a party challenging a trial court's decision regarding attorney fees is actually challenging the trial court's discretion in determining what is reasonable. Pietrzyk, 329 Ill.App.3d at 1046, 263 Ill. Dec. 932, 769 N.E.2d at 137. In the present case, the trial court's decision to disallow certain expenditures, with the exception of the $15 for cab fare and possibly the $100 court reporter bill, was not premised upon a finding that the expenses were unreasonable. Instead, the trial court concluded that, as a matter of law, the expenditures for computer-assisted legal research, photocopy charges and telephone toll charges were not recoverable because they were not expressly included in the contingent fee agreement. Where the trial court here determined the construction of the contingent fee agreement as a matter of law, we construe the contract unrestrained by the trial court's judgment, and our standard of review is de novo. Pietrzyk, 329 Ill.App.3d at 1046,

263 Ill.Dec. 932,

769 N.E.2d at 136 (applying de novo standard of review where plaintiff was not disputing trial court's calculations, but was contending only that trial court misapplied the law); see also Bank of Ravenswood v. Polan, 256 Ill.App.3d 470, 474, 194 Ill.Dec. 697, 628 N.E.2d 194, 197 (1993)(explaining that where the trial court has determined the construction of a contract as a matter of law, reviewing court applies de novo standard on review and construes the contract unrestrained by the trial court's judgment). Thus, as to the trial court's decision to disallow reimbursement for computer-assisted legal research, photocopy charges and telephone toll charges, we agree with D'Ancona & Pflaum that our standard of review is de novo. For the remaining expenditures found to be unreasonable by the trial court, we shall apply the abuse of discretion standard proposed by the Guerrants.

Analysis

It is well settled that, when interpreting a contract, a court "should ascertain the intent of the parties and give effect to that intent." Eichengreen v. Rollins, Inc., 325 Ill.App.3d 517, 521, 259 Ill. Dec. 89, 757 N.E.2d 952, 956 (2001). The relevant contractual language provides as follows:

"3. As compensation for professional services rendered, the Guerrants agree to pay the Firm a fee equal to one-third of the total amount of any settlement or judgment in favor of the Guerrants.

4. In addition to the fee specified in Paragraph 3 above the Guerrants agree to pay promptly all customary costs and reasonable out-of-pocket expenses incurred by the Firm in its pursuit of the claims covered by this Agreement.

These expenses include court reporting services, expert witness fees, reasonable travel expenses, if any, fees paid to trial witnesses and the cost to create demonstrative trial exhibits. At the firm's request the Guerrants agree to pay vendors directly for goods and services provided pursuant to this paragraph." (Emphasis added.)

Both parties assert that the language of the contingent fee agreement is "clear and unambiguous." Nevertheless, each party offers a different interpretation of its meaning. Although a contract is not "ambiguous" merely because the parties disagree as to its meaning, a contract will be deemed ambiguous if its language is susceptible to more than one reasonable interpretation. Owens v. McDermott, Will & Emery, 316 Ill.App.3d 340, 348, 249 Ill. Dec. 303, 736 N.E.2d 145, 153 (2000); St. George Chicago, Inc. v. George J. Murges & Associates, Ltd., 296 Ill.App.3d 285, 290, 230 Ill.Dec. 1013, 695 N.E.2d 503, 507 (1998). Whether a contract is ambiguous is a matter of law for the court to determine. Newcastle Properties, Inc. v. Shalowitz, 221 Ill.App.3d 716, 728, 164 Ill.Dec. 221, 582 N.E.2d 1165, 1172 (1991). Thus, we must first examine the language to determine whether an ambiguity exists. The parties disagree on the meaning of the word "include" as it is used in paragraph four of the contingent fee agreement. The issue we must resolve is whether the enumerated items that follow the word "include" are illustrations or limitations.

The Guerrants' position is that the use of the word "include" in paragraph four of the parties' agreement should be interpreted as "include only." Under this interpretation, the word "include" is a term of limitation where that which follows is an exclusive list of expenses that cannot be expanded. D'Ancona & Pflaum asserts that the word "include" in paragraph four is a term of expansion used merely to preface illustrative examples and that what follows is a nonexclusive list of expenses that may be added to, such that the word "include" must be interpreted as "include, but are not limited to." Had the contract expressly contained either the phrase "include only" or "include, but are not limited to," the agreement would be unambiguous.

It has been recognized before by this court, in a contract situation, that the word "includes" may be susceptible to competing reasonable interpretations. Pekin Insurance Co. v. Benson, 306 Ill.App.3d 367, 373, 239 Ill.Dec. 640, 714 N.E.2d 559, 564 (1999). In the present case, we conclude that each party's interpretation of the word "include" is a reasonable one. The existence of these two reasonable interpretations of the word "include" creates an intrinsic or patent ambiguity in the agreement. Having determined that the...