Rosenthal v. First Nat. Bank of Chicago

• Decision Date: 22 July 1970
• Docket Number: Gen. No. 53895
• Citation: 127 Ill.App.2d 371,262 N.E.2d 262
• Parties: Marie--Louise ROSENTHAL, Plaintiff, v. The FIRST NATIONAL BANK OF CHICAGO, etc., et al., Defendants. Morgan, Halligan, Lanoff & Cook, Petitioner-Appellee. Appeal of MICHAEL REESE HOSPITAL AND MEDICAL CENTER, Respondent.
• Court: United States Appellate Court of Illinois

Page 262

262 N.E.2d 262

127 Ill.App.2d 371

Marie--Louise ROSENTHAL, Plaintiff, v. The FIRST NATIONAL BANK OF CHICAGO, etc., et al., Defendants.

Morgan, Halligan, Lanoff & Cook, Petitioner-Appellee.

Appeal of MICHAEL REESE HOSPITAL AND MEDICAL CENTER, Respondent.

Gen. No. 53895.

Appellate Court of Illinois, First District, Fourth Division.

July 22, 1970

George V. Bobrinskoy, Jr., Burton E. Glazov, of Mayer, Friedlich, Spiess, Tierney, Brown & Platt, Chicago, for Michael Reese Hospital and Medical Center.

Samuel M. Lanoff, John A. Cook, of Morgan, Halligan, Lanoff & Cook, Chicago, for Morgan, Halligan, Lanoff & Cook.

ENGLISH, Justice.

Respondent has appealed from an order of the trial court directing that $25,000 in attorneys' fees be paid to petitioner by respondent out of its trust estate. That estate was the subject of prior litigation which resulted in a decision that the trust created by plaintiff's father should be distributed to respondent. Rosenthal v. First Nat. Bank of Chicago, 88 Ill.App.2d 82, 232 N.E.2d 265, affirmed 40 Ill.2d 266, 239 N.E.2d 826. Included in this court's mandate reversing and remanding the prior action was a direction to the trial court to 'allow such additional fees as are just and reasonable.' The trial court then, after hearing, allowed petitioner $25,000 additional 'for services and costs incurred while acting for the appellees' in the earlier appeal.

Petitioner, a firm of attorneys, represented Phyllis and Diane Dreyfus as parties defendant in the will construction case before the trial court. When the trial court ruled adversely to its clients' claim, they, along with four other parties, filed separate notices of appeal to this court. When this court decided the will construction case in favor of the instant respondent, a petition for leave to appeal in the Illinois Supreme Court was filed by the instant petitioner on behalf of its clients. The petition was allowed, but subsequently the Supreme Court affirmed the judgment of this court.

Petitioner's request for additional fees ^* upon remand was based upon a detailed petition filed in the trial court listing 890 hours of time expended in connection with the preparation and handling of the two appeals. Petitioner requested $35,000 as additional fees and costs, and the trial judge allowed $25,000 as fees and $4,193.47 as costs.

Respondent seeks reversal of the trial court's decree, contending that this court's mandate to allow 'such additional fees as are just and reasonable' does not direct the trial court to award compensation to all attorneys in the case, as the language was construed by the trial judge, but was intended to direct the payment of only such fees as would be allowable under Illinois law. Respondent relies primarily upon Glaser v. Chicago Title & Trust Co., 401 Ill. 387, 82 N.E.2d 446, to support this contention. There, the parties agreed, as they have in the instant case, that an ambiguity in a will justifies a suit for its construction, and that fees are properly allowable to such a suitor, win or lose, to cover his costs in the trial court. As to fees for appeals, however, the court in Glaser considered that quite a different matter. After citing with approval Sherman v. Leman, 137 Ill. 94, 27 N.E. 57, and Dime Savings and Trust Co. v. Watson, 254 Ill. 419, 98 N.E. 777, which disallowed appellate fees, the court concluded, 401 Ill. at page 393, 82 N.E.2d at p. 448:

When the will has been construed by a court having jurisdiction of the subject matter and the parties, its decree affords authority to all interested persons for the administration thereunder according to its terms unless it be modified or set aside by a court of superior jurisdiction. The construction placed upon a will by the lower court may not be satisfactory to some of the parties and they may be able to have it changed on appeal, but, should they feel disposed to litigate beyond the court of original jurisdiction, this they must to at their own risk and costs. The better authority is in accord with this view.

Thus, the sole issue presented on this appeal is the proper determination of petitioner's status in the appeals to this court and to the Supreme Court from the will construction decree. Respondent contends that petitioner was an appellant at both levels of the appeal and is therefore precluded under the Glaser rule from receiving additional fees. This view of petitioner's status is borne out in the record which demonstrates that petitioner filed the initial notice of appeal to this court, filed briefs on behalf of its clients, filed a petition for rehearing before this court, and also the petitions for leave to appeal and for rehearing before the Supreme Court. Each of these documents described petitioner's clients as appellants, and sought reversal of both the trial court's judgment and the judgment of this court. While those judgments were quite different from each other, petitioner did not seek to affirm any part of either. We...