Nottage v. Jeka

NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of
the opinion to request a rehearing. Also, opinions are subject to
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mandate by the Clerk of the Court. Therefore, because the following slip
opinion is being made available prior to the Court's final action in this
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copy of the following opinion will be published by the Supreme Court's
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action by the Court.

Docket No. 79861--Agenda 13--March 1996.
ROSAIRE M. NOTTAGE, d/b/a Nottage & Ward, Appellant, v. RICHARD F. JEKA,
Appellee.

Opinion filed May 31, 1996.

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
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. 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 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 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 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 and the changing nuances and charges involved in billing for legal
services under the Act." 274 Ill. App. 3d at 239. 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 representation, expected to be incurred
by any party, which award shall be made in connection with the
following[.]"
Subsection (a) proceeds to list the services for which an award of attorney
fees may be obtained under the Act. Section 508(b) authorizes the recovery of
costs and legal fees from a party who, without cause or justification,
refuses to comply with an order or judgment. Finally, section 508(c)
authorizes the court to order that an award of fees be paid directly to the
attorney or to the relevant party.
The question before us is one of statutory interpretation. The
fundamental canon of construction is to ascertain and give effect to the
intention of the legislature. Varelis v. Northwestern Memorial Hospital, 167 Ill. 2d 449, 454 (1995). Courts will look first to the words of the statute
(Metropolitan Life Insurance Co. v. Washburn, 112 Ill. 2d 486, 492 (1986)),
for the language used by the legislature is the best indication of
legislative intent (Kirwan v. Welch, 133 Ill. 2d 163, 165 (1989); County of
Du Page v. Graham, Anderson, Probst & White, Inc., 109 Ill. 2d 143, 151
(1985)). When the statutory language is clear, no resort is necessary to
other tools of interpretation. Henry v. St. John's Hospital, 138 Ill. 2d 533,
541 (1990). Moreover, courts should not, under the guise of statutory
construction, add requirements or impose limitations that are inconsistent
with the plain meaning of the enactment. People ex rel. LeGout v. Decker, 146 Ill. 2d 389, 394 (1992); In re Estate of Swiecicki, 106 Ill. 2d 111, 120
(1985).
We believe the appellate court erred when it concluded that section
508 of the Marriage and Dissolution of Marriage Act is the sole means by
which an attorney may recover a fee from a client in a domestic relations
matter, to the exclusion of a common law action for contract damages, such as
that brought in this case. A consideration of the statutory language, as well
as of the practical difficulties that would result from the appellate court's
holding, persuades us that the legislature did not intend that result.
We find nothing in the plain language of the statute to indicate
that the legislature intended that the remedy provided by section 508(a)
would be an attorney's sole avenue of recourse against a client, precluding
any subsequent remedy brought after the termination of the underlying case.
As this court stated in Kosicki v. S.A. Healy Co., 380 Ill. 298, 302 (1942),
"Where *** a new remedy is given by statute, and there are no negative words
or other provisions rendering it exclusive, it will be deemed to be
cumulative only and not to take away prior remedies." In its operation,
section 508(a) supplements whatever other remedies an attorney might have in
obtaining fees from a client. Nothing in the statutory language suggests that
the legislature also intended to eliminate common law actions for fees, like
the one at issue here.
The statute employs the term "may" in authorizing the trial court
to award fees to an attorney: "The court *** may order any party to pay a
reasonable amount for his own costs or attorney's fees ***." "May" is
normally construed in a permissive rather than a mandatory fashion (People v.
Ullrich, 135 Ill. 2d 477, 484 (1990)), though its precise meaning can depend
upon the meaning of the statute as a whole (Castaneda v. Illinois Human
Rights Comm'n, 132 Ill. 2d 304, 325 (1989)). Nottage argues that "may" is
being used in a permissive sense in section 508(a), demonstrating that the
provision is not an attorney's exclusive remedy.
Jeka suggests that the term here simply means that the court might
or might not enter an award for fees, depending on the facts and
circumstances of the case. Jeka maintains that an attorney must either pursue
his claim for fees under section 508 or permanently forgo it, and that the
use of the term "may" does not by itself demonstrate that the legislature
understood the provision to be optional. Even if Jeka is right and the term
"may" is, at best, inconclusive regarding the legislature's intent, still he
is unable to point to any language in the statute in support of his
contention that the legislature intended that section 508(a) would serve as
the exclusive means by which an attorney may recover a fee from a client for
representation in a domestic relations dispute.
Jeka correctly observes that the provision in section 508(a)
authorizing an attorney to recover fees from the attorney's own client was
designed to promote judicial economy by allowing the request for fees to be
maintained in the underlying domestic relations matter. In re Marriage of
Pagano, 154 Ill. 2d 174, 183 (1992). Unlike the statutory scheme that
preceded it, the Illinois Marriage and Dissolution of Marriage Act, through
section 508, expressly enables an attorney to seek a fee from the attorney's
own client in the underlying action. Ill. Ann. Stat., ch. 40, par. 508,
Historical & Practice Notes, at 637 (Smith-Hurd 1980). Section 15 of the
former divorce act (Ill. Rev. Stat. 1975, ch. 40, par. 16) permitted one
spouse to obtain from the other an award for fees to prosecute or defend the
action. Under the former law it had been held, however, that an attorney
could not file a claim for a fee against the attorney's own client because
the divorce court lacked jurisdiction to resolve a claim of that nature. In
re Petition of Neiman, 8 Ill. App. 3d 454 (1972); Pressney v. Pressney, 339
Ill. App. 371 (1950). This result was later questioned, following the
adoption of the 1970 Constitution (Seniuta v. Seniuta, 49 Ill. App. 3d 329,
331 (1977) ("Under the Illinois Constitution of 1970, all differences between
law and equity were abolished and a circuit judge may hear any justiciable
matter")), and section 508(a) expressly permits an attorney to present his
claim in the same proceeding.
In this respect, section 508 differs from the corresponding
provision of the Uniform Marriage and Divorce Act, after which section 508
was patterned; section 313 of the Uniform Act is purely a fee-shifting
provision, authorizing only petitions by one party to obtain fees from the
other party. Uniform Marriage and Divorce Act 313, 9A U.L.A. 450 (1987);
Ill. Ann. Stat., ch. 40, par. 508, Historical & Practice Notes, at 637
(Smith-Hurd 1980) ("Subsection (a) is intended to promote judicial economy by
obviating the need for an attorney to sue his own client for attorney's fees
in a separate suit. Section 313 of the Uniform Act does not contain this
express authority for the court to order a party to pay his own attorney's
fees and costs"). As we view it, however, the principal purpose of section
508(a) is to enable a court to shift liability for attorney fees from one
party to another; secondarily, the statute permits an attorney to submit a
claim for fees against a client.
The appellate court has previously held that a petition for fees
initiated by an attorney against a client during the pendency of a related
domestic relations matter must be brought in the underlying case and
prosecuted as part of the same action. Gitlin v. Hartmann, 175 Ill. App. 3d
805 (1988); In re Marriage of Baltzer, 150 Ill. App. 3d 890 (1986). Without
addressing the merits of those decisions, we do not believe that the same
concerns of judicial economy that prompted the development of the rule
expressed in Gitlin and Baltzer must also bar an independent action brought
after the conclusion of the underlying case, as the appellate court
determined here. See Myers v. Brantley, 204 Ill. App. 3d 832, 835 (1990).
Indeed, we believe that the legislature would have clearly stated
its intent if it had proposed to bar independent actions for fees in those
circumstances, and we decline to imply a legislative intent where none is
expressed. The practical difficulties of the appellate court's approach and
the potential conflicts between an attorney and client under such a regime
are many. See In re Marriage of Pitulla, 141 Ill. App. 3d 956, 961 (1986). To
take but one example: An attorney representing a client who agrees to pay a
fee in installments or whose ability to pay a fee is doubtful would be faced
with the quandary of simply continuing the representation without submitting
a claim for fees, with the attendant risk of later being barred from bringing
an action against the client to recover the unpaid portion of the fee, of
prolonging the course of the underlying proceeding until the fee had been
entirely paid, or of submitting a claim in the underlying proceeding at the
risk of delaying the client's appeal from the underlying judgment. Requiring
an attorney to choose among the preceding alternatives would not be conducive
to vigorous representation. As the appellate court noted in In re Marriage of
Burton, 203 Ill. App. 3d 890, 893 (1990), in distinguishing Gitlin's
requirement that a fee request be joined with the pending, underlying
proceeding from which it arose, "We do not believe that Gitlin should be read
as enacting an outright bar to the pursuit of attorney fees in any forum
other than a dissolution action. To read it so could cause it to become a
sword aimed straight at the heart of attorney-client relationships."
In support of its holding, the appellate court likened the
treatment of fees under the Marriage and Dissolution of Marriage Act to
claims for sanctions in civil actions, which must be brought as part of the
underlying action. Marsh v. Evangelical Covenant Church, 138 Ill. 2d 458,
467-68 (1990); 134 Ill. 2d R. 137. The appellate court reasoned that requests
for fees, whether directed at the opposing party or at the attorney's own
client, must similarly be brought as part of the related case. 274 Ill. App.
3d at 243-44. We do not agree. A request for sanctions is readily
distinguishable from an attorney's claim for fees against his or her own
client. In some instances, an attorney's claim for fees will not arise until
much later, after the case has concluded, when the client declines to make
further payments toward satisfaction of an outstanding fee. Conduct giving
rise to a request for sanctions, in contrast, is already known at the time of
the underlying litigation.
The appellate court's stated concern that failure to calculate fees
under the guidelines of section 508 would ignore certain vital criteria (274
Ill. App. 3d at 239-40) is also misplaced. A claim for fees, whether made
under section 508 or in a separate common law action, as here, must satisfy
certain professional standards. Rule 1.5 of the Illinois Rules of
Professional Conduct requires that a fee for legal services be reasonable,
and the rule specifies standards relevant to that determination. 134 Ill. 2d
R. 1.5. Under the analysis proposed by the appellate court, a judge setting
a reasonable fee under section 508(a) would be allowed to take into account
the financial resources of the client. We question the relevance of that
consideration, however, when the fee is being sought from the attorney's own
client. As the appellate court noted in In re Marriage of Ransom, 102 Ill.
App. 3d 38, 41 (1981), in rejecting the contention of a client that the court
in a proceeding under section 508(a) erroneously failed to consider her
resources in determining the fee she owed her attorney, "Regardless of the
respective financial circumstances of the spouses, an attorney is still
entitled to seek payment for his services from his own client, and the
legislature in providing this procedure did not intend that it be conditioned
upon the financial abilities of the parties." We believe that a consideration
of financial resources is peculiarly suited to cases in which one party seeks
contribution for attorney fees from the opposing party, rather than when the
fee is imposed against the attorney's own client.
The appellate court also mentioned, in support of its holding, that
disposition of the fee issue as part of the underlying proceedings would
resolve with finality the questions in the case, and would place the issue
before a judge who is already acquainted with the litigation at hand and who
is familiar with domestic relations matters. These concerns may have some
merit in some circumstances, but they do not overcome the complete absence of
any language in section 508(a) indicating that the legislature intended for
the provision to provide the exclusive remedy of an attorney in a fee action
against a client. In addition, we believe that the appellate court overstates
the supposed benefits of its approach. We have every confidence that judges
who do not normally handle domestic relations matters are fully capable of
resolving fee disputes involving representation in those cases. Moreover,
there is no guarantee, particularly in a high-volume court, that a fee
petition will be heard by the same judge who ruled on the principal issues in
the underlying case.
In sum, we find nothing in the plain language of section 508(a) to
suggest that the legislature intended that the statute would provide the
exclusive means by which an attorney representing a party in a domestic
relations case may recover a fee from a client. As we have noted, a number of
practical considerations counsel against such an interpretation.
Jeka also briefly argues that Nottage's prior filing of a fee
petition in Du Page County was an additional bar to the separate Cook County
fee action and, further, that the trial court improperly struck his jury
demand. Our consideration of these issues is handicapped, however, by the
absence of a report of proceedings, agreed statement of facts, or bystander's
report from the circuit court. In addition, documentation that would support
these arguments is not found in the common law record. Jeka, as appellant
from the circuit court judgment, had the obligation to make a record that
would support his claims of error, and he has not. Foutch v. O'Bryant, 99 Ill. 2d 389 (1984).
For the reasons stated, the judgment of the appellate court is
reversed, and the judgment of the circuit court of Cook County is affirmed.

Appellate court judgment reversed;
circuit court judgment affirmed.