Clay v. County of Cook

• Decision Date: 19 June 2001
• Docket Number: No. 1-99-3829.,1-99-3829.
• Citation: 759 N.E.2d 6,259 Ill.Dec. 526,325 Ill. App.3d 893
• Parties: James CLAY, Plaintiff, v. COUNTY OF COOK, Defendant-Appellee (Mark G. Slutsky, Petitioner-Appellant).
• Court: United States Appellate Court of Illinois

759 N.E.2d 6

325 Ill. App.3d 893

259 Ill.Dec. 526

James CLAY, Plaintiff, v. COUNTY OF COOK, Defendant-Appellee (Mark G. Slutsky, Petitioner-Appellant).

No. 1-99-3829.

Appellate Court of Illinois, First District, Second Division.

June 19, 2001.

Rehearing Denied October 17, 2001.

Modified Upon Denial of Rehearing October 23, 2001.

Dom J. Rizzi, Miller Faucher and Cafferty LLP, Chicago, for Petitioner-Appellant.

Marcie Thorp, Assistant State's Attorney, Chicago, for Appellee.

OPINION UPON DENIAL OF REHEARING

Justice GORDON delivered the opinion of the court:

Petitioner-Appellant Mark G. Slutsky (Slutsky) appeals from an order of the circuit court of Cook County awarding him additional attorney fees pursuant to section 2-1114 of the Code of Civil Procedure (735 ILCS 5/2-1114 (West 1998)) for performing extraordinary services in a medical malpractice action but awarding him a fee of less than one-third of the recovery in that case. On appeal, Slutsky argues that an award of additional attorney fees pursuant to section 2-1114 is reviewed under the manifest weight of the evidence standard and that the trial court's refusal to award him one-third of the settlement was against the manifest weight of the evidence. We affirm.

BACKGROUND

On February 18, 1984, James Clay (Clay), the plaintiff in the underlying medical malpractice litigation, was stabbed on the right side of his face and taken to Cook County Hospital for treatment. During the course of his treatment, he developed a condition which rendered him a quadriparetic. Clay subsequently retained several attorneys to represent him in a medical malpractice action against the county. Those attorneys filed suit on Clay's behalf and later voluntarily dismissed the lawsuit when they failed, after an exhaustive search, to find an expert who would testify that the county, through its agents, deviated from the standard of care in treating Clay.

Clay subsequently retained Slutsky to represent him in place of the attorneys whom he had earlier retained and who were unable to secure an expert witness. Slutsky apparently found an expert witness favorable to Clay and subsequently secured a settlement of three million dollars. On June 2, 1999, Slutsky filed a verified petition for attorney fees and filed an amended verified petition on June 22, 1999. In these petitions, Slutsky sought additional compensation beyond the maximum normally allowed by law in a medical malpractice action where an attorney does not provide extraordinary services.¹ 735 ILCS 5/2-1114 (West 1998). Slutsky argued that he had performed extraordinary services and sought a fee of one-third of the gross recovery or $337,500 more than he would otherwise receive pursuant to section 2-1114.

In his amended verified petition, Slutsky contended that the case was complex and difficult. He contended that he spent an inordinate amount of time attempting to develop theories of recovery and in locating experts who would testify in Clay's favor. Slutsky stated that he would provide, in camera, a list of some of the doctors he contacted in an attempt to procure an expert witness. Slutsky alleged that he spent over 2000 hours on the case and that approximately $114,000 was spent on preparation and prosecution of the case.

Slutsky averred that the difficulty of Clay's malpractice case was magnified by several decisions of Clay's prior attorneys which prevented the case from proceeding against several of the doctors involved. In addition, one of the doctors involved was never located. Furthermore, the films which might have provided evidence of malpractice from a test which was performed on Clay while he was still a patient at Cook County Hospital could not be found. Slutsky stated that he was frustrated in asserting a cause of action against Cook County Hospital based on spoliation of evidence on the basis of these lost films because of the time that had elapsed between the test and his taking the case.

Slutsky attached several affidavits to his petition. The first affidavit was of Clay, his client. Clay averred that he thought a fee of one-third of the amount recovered was "extremely fair." The second affidavit was from Peter J. Troy, an attorney who represented the opposing parties in Clay's medial malpractice action. Troy averred that the case was very difficult for the plaintiff; that Slutsky's representation of Clay "consisted of extraordinary services involving more than usual participation, time and effort"; and that a fee of one-third of the recovery would be fair and reasonable. The third affidavit was from Peter Behnke, one of the attorneys whom Clay initially retained before he retained Slutsky. Behnke averred that he contacted numerous physicians in an attempt to find an expert witness, but could not find a single one due to the complexity of the case. As a result, Behnke dismissed the case. Behnke also averred that due to the complexity of the case and the extraordinary result obtained, Slutsky's representation of Clay constituted the performance of extraordinary services and that a contingent fee of one-third was appropriate.

The trial court found that Slutsky had performed extraordinary services and awarded him additional compensation in the amount of $138,000, over and above the normal fee under section 2-1114. No transcript of the hearing in which this determination was made is present in the record. Slutsky subsequently filed a motion to reconsider. Apparently Slutsky attached three additional affidavits to his motion to reconsider. These affidavits from Arthur Sullivan, Dom J. Rizzi and Seymour Simon, all former judges, contended that a one-third contingent fee would be reasonable in this case because of the complexity of the case and the amount of work required.² The motion to reconsider was denied and no transcript of the hearing on the motion to reconsider is present in the record either. This appeal followed.

ANALYSIS

We must first resolve the issue of what standard of review applies in this appeal. Slutsky contends that the standard of review under section 2-1114 is to determine if the court's decision is against the manifest weight of the evidence. Upon this premise, Slutsky contends that the trial court's decision in the case at bar was against the manifest weight of the evidence. Slutsky, however, has not presented and our research has not revealed any case specifically addressing the standard of review for a fee enhancement under section 2-1114. However, we find this court's decision in DeSalvo v. Industrial Commission, 307 Ill.App.3d 628, 241 Ill. Dec. 1, 718 N.E.2d 572 (1999), to be highly analogous and persuasive, although it was decided under a different statute.

In DeSalvo the court held that a refusal by the Industrial Commission to award additional fees in excess of 20% of the recovery for extraordinary services by an attorney is reviewed for an abuse of discretion. DeSalvo, 307 Ill.App.3d at 634,241 Ill.Dec. 1,718 N.E.2d at 576. In DeSalvo the court construed section 16a of the Workers' Compensation Act (820 ILCS 305/16a (West 1994)), which, inter alia, limits attorney fees in workers' compensation cases to 20% of the amount recovered unless the Industrial Commission awards further fees. Concomitantly, the court construed an Industrial Commission rule stating that further fees in excess of the standard 20% contingent fee may be awarded when the attorney provides "extraordinary services." DeSalvo, 307 Ill. App.3d at 632,241 Ill.Dec. 1, 718 N.E.2d at 574 (citing 50 Ill. Adm.Code 7080.10(a)(1)(1996)). The court held that the Industrial Commission may thus award fees in excess of the 20% limit when an attorney performs extraordinary services.

The court then addressed the question of what standard of review applied to an appeal of a decision by the Industrial Commission refusing to award fees for such extraordinary services. The DeSalvo court rejected the contention that it should be governed by the manifest weight of the evidence standard. The DeSalvo court reasoned that since the abuse of discretion standard is generally applied to awards of attorney fees in other contexts, it should apply in the worker's compensation context as well. The court stated that "[w]e agree that there may be disputed questions of fact in connection with the award of attorney fees, which may even include the question of whether certain services are extraordinary. However, we think the decision to award or refuse to award attorney fees in excess of 20% is more properly judged on an abuse of discretion standard." DeSalvo, 307 Ill.App.3d at 634, 241 Ill.Dec. 1, 718 N.E.2d at 576; accord Spinak, Levinson & Associates v. Industrial Commission, 209 Ill.App.3d 120, 127, 154 Ill.Dec. 41, 568 N.E.2d 41 (1990) (holding the Commission to an abuse of discretion standard in finding that a law firm was not entitled to additional fees for "extraordinary" services).

We agree with DeSalvo since, as articulated in DeSalvo, that same standard is generally applied to a review of judicially awarded attorney fees. See, e.g., In re Estate of Callahan, 144 Ill.2d 32, 43-44, 161 Ill.Dec. 339, 578 N.E.2d 985, 990 (1991)

(award of fees to discharged attorney under quantum meruit reviewed for abuse of discretion); In re Marriage of Bussey, 108 Ill.2d 286, 299-300, 91 Ill.Dec. 594, 483 N.E.2d 1229, 1235 (1985) (award of attorney fees in dissolution action reviewed for abuse of discretion); Lewis X. Cohen Insurance Trust v. Stern, 297 Ill.App.3d 220, 233, 231 Ill.Dec. 447, 696 N.E.2d 743, 752 (1998) (award of attorney fees to prevailing plaintiff in action for breach of stock purchase agreement reviewed for abuse of discretion); Alcantar by Alcantar v. Peoples Gas Light & Coke Co., 288 Ill.App.3d 644, 651, 224 Ill.Dec. 372, 681 N.E.2d 993, 997 (1997) (award of attorney fees to defendant gas company due to baseless suit brought against it reviewed for abuse of discretion); Perlman v. Time, Inc., 133 Ill.App.3d 348, 355, 88...