In re Marriage of Devick
| Decision Date | 14 November 2002 |
| Docket Number | No. 2-02-0061.,2-02-0061. |
| Citation | 269 Ill.Dec. 687,781 N.E.2d 484,335 Ill. App.3d 734 |
| Parties | In re MARRIAGE OF Susan D. DEVICK, Petitioner-Appellant, and Steven D. Devick, Respondent (Platinum Technology, Inc., Third-party Respondent-Appellee; Law Offices of William J. Stogsdill, Jr., P.C., Petitioner-Appellee). |
| Court | United States Appellate Court of Illinois |
Dennis C. Waldon, Lavin & Waldon, P.C., Chicago, for Susan D. Devick.
Nancy Scheurwater Hunter, Erin S. Shaw, Latham & Watkins, Chicago, for Steven D. Devick, Platinum Technology, Inc.
Stephen M. Deitsch, Deitsch & Preiner, Robert D. Boyd, Law Offices of William J. Stogsdill, Jr., Wheaton, for Appellee.
Petitioner Susan Devick (petitioner) appeals from two orders of the circuit court of Du Page County, entered pursuant to section 508(c) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/508(c) (West 2000)), which denied her petition for attorney fees against third-party respondent, Platinum Technology, Inc. (Platinum), and which granted the petition for attorney fees filed against her by her former attorney, petitioner William Stogsdill, Jr., P.C. (Stogsdill), in the amount of $13,743.86. For the following reasons, we dismiss petitioner's appeal as to the denial of her petition for attorney fees against Platinum, and we reverse and remand in part and affirm in part the order granting Stogsdill attorney fees.
This appeal stems from matters that arose out of a dissolution of marriage proceeding between petitioner and respondent, Steven Devick. It is necessary to a proper understanding of the issues in this appeal to set forth a brief history of this litigation.
On July 29, 1993, petitioner filed a petition for the dissolution of her marriage to respondent. During the marriage, petitioner and respondent acquired shares of Platinum stock in joint tenancy. Early in April 1996, respondent, as a director of Platinum, signed an affiliate agreement that effectively restricted the transfer of the Platinum stock until the next financial statement was issued. This was apparently required pursuant to a purchase of two other companies by Platinum. Petitioner was not aware of the affiliate agreement or the concomitant restriction on the transfer of the stock.
On April 16, 1996, the trial court entered a judgment of dissolution of marriage. On that same date, petitioner and respondent signed a marital settlement agreement, which awarded petitioner 127,616 shares of Platinum stock. Pursuant to the marital settlement agreement, respondent was required to effect the transfer of the stock to petitioner, which he did, through Merrill Lynch, the broker with regard to the shares. When petitioner received the shares on June 4, 1996, they contained the restriction that prohibited their transfer.
Petitioner then filed, under the case number of the dissolution proceeding, a petition to enforce the judgment of dissolution against respondent, seeking to obtain unrestricted shares. She later joined Platinum as a third-party respondent. Respondent filed a motion for summary judgment, contending that he had no control over Platinum's refusal to provide the unrestricted shares. The court granted respondent's motion for summary judgment.
Petitioner filed a motion for summary judgment against Platinum in which she argued, relying on section 8-401 of the Uniform Commercial Code (810 ILCS 5/8-401 (West 1998)), that Platinum had no authority to transfer the shares to her with the restrictions. On May 4, 1999, the trial court granted petitioner's motion for summary judgment. The May 4 order also provided that it "disposed of all pending issues" and "shall be final and appealable." On June 4, 1999, 31 days after the entry of the May 4 order, Platinum filed a motion to reconsider the May 4 order. Also, on June 10, 1999, Platinum filed in this court a motion for leave to file a late notice of appeal. Petitioner subsequently filed a memorandum in this court opposing Platinum's motion to file a late notice of appeal. This court, on June 25, 1999, issued an order denying Platinum's motion for leave to file a late notice of appeal.
Our June 25 order stated that the motion was denied because "the written order in the trial court was not a final appealable order pursuant to Supreme Court Rule 304(a)." Petitioner also moved to dismiss Platinum's motion to reconsider the May 4 order as being untimely. The trial court denied petitioner's motion to dismiss and, on September 17, 1999, denied, on its merits, Platinum's motion to reconsider. Platinum filed a timely notice of appeal, and this court affirmed. See In re Marriage of Devick, 315 Ill.App.3d 908, 248 Ill.Dec. 833, 735 N.E.2d 153 (2000).
Following her victory on appeal, petitioner filed, again as part of the dissolution proceeding, a petition for attorney fees on October 20, 2000, against Platinum. The petition for attorney fees was filed pursuant to sections 508(a)(2) and (a)(3) of the Act (750 ILCS 5/508(a)(2), (a)(3) (West 2000)). This petition asked for attorney fees in the amount of $152,400.86.
Two days earlier, petitioner's attorney, Stogsdill, filed a petition for attorney fees "pursuant to Section 508 of the Act." The Stogsdill petition sought attorney fees from petitioner in the amount of $79,610. On January 10, 2001, after being given leave to withdraw as required by section 508(c), Stogsdill filed an amended petition, again seeking $79,610.
The court conducted a hearing on the petitioner's petition for attorney fees against Platinum on January 2, 2001. On January 12, 2001, the court denied the petition for attorney fees and also denied petitioner's request to appeal the court's ruling pursuant to Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)). As of January 12, 2001, the Stogsdill fee petition was still pending.
In its petition for attorney fees against petitioner, Stogsdill sought, among other things, reimbursement from petitioner for sanctions it was ordered to pay pursuant to a Rule 137 (155 Ill.2d R. 137) proceeding brought by Merrill Lynch and for the time Stogsdill spent defending itself against the Rule 137 petition. The Rule 137 proceeding was based on a subpoena duces tecum issued to Joseph Ganotti of Merrill Lynch related to petitioner's efforts to obtain the unrestricted shares of Platinum. Ganotti's motion to quash the subpoena was granted, and he was given leave to file a petition for sanctions.
The petition for sanctions named Stogsdill only. Following a hearing, the court granted the motion for sanctions, finding that there was no good faith to issue the subpoena and that Stogsdill acted unreasonably in doing so. The court ordered Stogsdill to pay a sanction of $3,047.50. Petitioner paid Stogsdill $3,000, which she later testified was because she felt bad that Stogsdill was sanctioned. Stogsdill charged petitioner for the cost of the transcript and five hours of attorney time for defending itself against the petition for sanctions. Including interest, Stogsdill eventually billed petitioner $3,295.27 for the sanction, $3,062.50 for the attorney fees for defending itself in the sanction proceeding, and $316.80 in expenses.
On June 5, 2001, the court conducted a hearing on the Stogsdill attorney fee petition. At the start of that hearing, Stogsdill conceded that petitioner had paid $52,200 toward her attorney fees and that there were certain errors in its billing statement. It then adjusted its petition to the amount of $22,933.50. Also at the hearing, Stogsdill submitted its two fee agreements, one from 1995 and one from 1996. The 1995 agreement called for petitioner to pay .75% interest per month on the outstanding balance, and the 1996 agreement called for 1.50% interest per month on the outstanding balance. The 1996 agreement purported to apply to all postdecree work performed by Stogsdill on petitioner's behalf. Stogsdill also submitted an affidavit showing the various work performed and the applicable fees charged. Additionally, Robert Boyd and William Stogsdill, Jr., testified for Stogsdill, and petitioner testified on her own behalf.
On July 4, 2001, the court issued an opinion letter in which it ruled that the first fee agreement controlled and that the proper late charge was .75%. The court also ruled that the agreement did not provide for compound interest by applying the late fee to both the outstanding balance and the previous late charge.
The court also ruled that petitioner was obligated to pay the sanction and attorney fees incurred by Stogsdill in defending the Rule 137 petition. The court stated, based on the transcript of the hearing on the Rule 137 petition, that petitioner "was intimately involved and fully supported the law firm in the conduct that resulted in the sanctions." The court also noted that the unrebutted testimony at the hearing on the Stogsdill petition for fees showed that petitioner directed Boyd to subpoena someone from Merrill Lynch and that she directed Boyd to contest the petition for sanctions. Finally, the court ordered Stogsdill to recompute the amount of fees due using the late charge rate of .75% and "without adding the amount of the late charge to the balance due for purposes of computing subsequent late charges."
The parties subsequently submitted letters to the court stating their positions on the amount of fees due. Stogsdill's letter of November 16, 2001, included handwritten calculations and asserted an amount due of $16,469.59, which was based on interest due of $12,619.39 and an outstanding balance of $3,843.20. Petitioner sent a letter dated June 11, 2001, which included numerous attached documents but no calculations or statement as to the amount due. Petitioner sent a second letter dated June 21, 2001, that added two more items but which also did not include an assertion as to the amount owed. On November 14, 2001, instead of...
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