Nottage v. Jeka, 79861

• Court: Supreme Court of Illinois
• Citation: 667 N.E.2d 91,172 Ill.2d 386,217 Ill.Dec. 298
• Docket Number: No. 79861,79861
• Parties: , 217 Ill.Dec. 298 Rosaire M. NOTTAGE, d/b/a Nottage & Ward, Appellant, v. Richard F. JEKA, Appellee.
• Decision Date: 31 May 1996

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667 N.E.2d 91 172 Ill.2d 386, 217 Ill.Dec. 298 Rosaire M. NOTTAGE, d/b/a Nottage & Ward, Appellant,
v.
Richard F. JEKA, Appellee. No. 79861. Supreme Court of Illinois. May 31, 1996.

[172 Ill.2d 387] Grund & Starkof, Chicago (David I. Grund and Richard S. Zachary, of counsel), for appellant.

William F. White, of White & White, Downers Grove, for appellee.

William Ferguson and Martha Norman, Wheaton, for amicus curiae Du Page County Bar Association.

[172 Ill.2d 388] Terrence K. Hegarty, Dennis A. Rendleman, Athena T. Taite, David P. Pasulka and Michael A. Metoyer, Springfield, for amicus curiae Illinois State Bar Association.

Justice MILLER delivered the opinion of the court:

Plaintiff, Rosaire M. Nottage, an attorney, d/b/a Nottage & Ward, filed an action in the circuit court of Cook County seeking recovery of attorney fees from defendant, Richard F. Jeka. The firm of Nottage & Ward had represented Jeka in post-decree proceedings following the dissolution of Jeka's marriage, and Nottage brought the instant action to recover compensation from Jeka for work performed in the course of those proceedings

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[217 Ill.Dec. 299] by Nottage and other attorneys in the firm. Following a bench trial, the judge found in Nottage's favor. Jeka appealed. The appellate court vacated the circuit court judgment and dismissed the action, concluding that Nottage could not maintain the present common law action because section 508 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/508 (West (1992)) provides the sole recourse for the recovery of attorney fees in domestic relations matters. 274 Ill.App.3d 235, 210 Ill.Dec. 608, 653 N.E.2d 803. We allowed Nottage's petition for leave to appeal (155 Ill.2d R. 315(a)).

The procedural history of this case can be stated briefly. Nottage filed the present action in the circuit court of Cook County on July 1, 1993. In her complaint, she alleged that her firm, Nottage & Ward, and Jeka had entered into a retainer agreement for legal services on April 3, 1989, that she and her firm had performed their obligations under the contract, and that Jeka owed a balance of $4,238.72 in attorney fees. Attached to the complaint were copies of the signed retainer agreement and of the billing documentation prepared by the Nottage firm. The retainer agreement recited that it was [172 Ill.2d 389] for representation of Jeka in certain post-decree matters in the circuit court of Du Page County. It appears that the firm withdrew from representation while the matter was still pending, and substitute counsel was then obtained. The record does not disclose the resolution of the Du Page County matter.

Jeka moved to dismiss the complaint. He first argued that the action was barred by an identical and pending claim filed by Nottage in the circuit court of Du Page County, where the post-decree proceedings had occurred. Jeka separately argued that, because the Du Page County matter remained pending, the Du Page court alone could exercise jurisdiction over the petition for fees. Finally, Jeka contended that the action was being brought in an inconvenient forum and asked that the cause be transferred to the circuit court of Du Page County under the doctrine of forum non conveniens.

The trial judge refused to dismiss the action. In a subsequent answer to the complaint, Jeka denied that he owed Nottage & Ward anything for their work and raised, as an affirmative defense, the contention that he had already paid the Nottage firm a total of $10,514 in fees, an amount that he believed was full and reasonable compensation for the lawyers' services. Jeka filed a request for a jury trial together with his answer to the complaint.

The trial judge, on his own motion, struck Jeka's jury demand. Following a bench trial, the court ruled in Nottage's favor on the claim and awarded $4,009.72 in damages, plus costs. No report of proceedings, bystander's report, or agreed statement of facts is included in the record on appeal; a written order, however, states that the judge found the rates charged by the Nottage firm to be reasonable and the bulk of the hours billed to the client to be properly established. The difference between the amount sought by Nottage and the amount [172 Ill.2d 390] awarded by the trial judge apparently reflects the judge's disallowance of compensation for hours not properly established by the attorney.

Jeka appealed, and the appellate court vacated the circuit court judgment and dismissed Nottage's action. The court concluded that section 508 of the Illinois Marriage and Dissolution of Marriage Act was designed by the legislature to provide the sole means by which an attorney may recover a fee from a client for representation in a proceeding under the Act, and that any request for fees must therefore be maintained with the underlying domestic relations matter. Because the present action was not being prosecuted under section 508, the appellate court ruled that it must be dismissed.

In support of this holding, the appellate court pointed to a number of considerations that, it believed, demonstrated the legislature's intent to make section 508 an attorney's exclusive mode of recovery of fees in domestic relations matters. The appellate court observed that section 508, unlike a common law contract action, permits the allocation of attorney fees between spouses, so that responsibility for fees can be shifted from the less affluent spouse to the more affluent spouse. Additionally, the court believed that determining fees under the statute would enable the judge to consider the

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[217 Ill.Dec. 300] financial resources of the client in setting an appropriate award. The appellate court also noted that a petition for fees, if brought as part of the domestic relations case from which it arose, could be decided by the same judge who had heard the underlying matter and who would therefore already be familiar with the case. Conversely, the appellate court asserted that allowing the fee petition to go forward as a separate proceeding might place the case before a judge who did not customarily handle domestic relations cases and thus "may not have a daily familiarity with domestic relations cases [172 Ill.2d 391] and the changing nuances and charges involved in billing for legal services under the Act." 274 Ill.App.3d at 239, 210 Ill.Dec. 608, 653 N.E.2d 803. Finally, the appellate court believed that disposing of a fee claim with the underlying domestic relations case would promote judicial economy and would resolve with finality the various issues in the domestic relations matter. The court noted that the statute of limitations for actions on written contracts, including retainer agreements, is 10 years (735 ILCS 5/13-206 (West 1992)), a period the court deemed excessive in domestic relations cases.

Nottage filed a petition for rehearing, which was denied by the appellate court in an unpublished order, with one justice dissenting. We allowed Nottage's petition for leave to appeal. 155 Ill.2d R. 315(a). The Illinois State Bar Association and the Du Page County Bar Association were granted leave to submit briefs as amici curiae in behalf of Nottage. 155 Ill.2d R. 345.

Section 508(a) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/508(a) (West 1992)) provides:

"The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order any party to pay a reasonable amount for his own costs and attorney's fees and for the costs and attorney's fees necessarily incurred or, for the purpose of enabling a party lacking sufficient financial resources to obtain or retain legal...