*1 Anthony Pietrzyk, F. PIETRZYK, Ex’x of the Estate ERYKA a/k/a PAVILION, Deceased, Plaintiff-Appellant, v. OAK LAWN Pietrzyk, Antoni (Oak Pavilion, Inc., Defendant-Appellee). INC., al., Defendants Lawn et Division) (5th No. 1 — 01—1608 District First Opinion April filed 2002. REID, J., dissenting. Nikitas, Perconti, Gregory & Levin and C. both of Levin
Steven M. Chicago, appellant. Kanofsky
Martin Machalinski, A. Merlo, Donald G. Kanofsky both of Brinkmeier, Ltd., Chicago, & appellee.
JUSTICE opinion GREIMAN delivered the of the court: appeal This arises from the trial order granting part court’s rejecting in part plaintiff Eryka Pietrzyk’s postjudgment motion, pur- (210 suant to seсtion 3—602 of the Home Care Act ILCS 45/ *2 (West 2000)), 3—602 for fees. For the follow, reasons that affirm. 28, 1996,
On plaintiff, October the as executrix of the estate of An- Pietrzyk, toni filed a multicount against claim defendants Oak Lawn (Oak Pavilion, Lawn), Inc. Harlin, Joanne Kovilparambil Anthony, M.D., and Largosa, Anastasia engaged M.D. Plaintiff attorneys her pursuant to a contingency one-third arrangement. fee I Count complaint amended sought recovery from Oak Lawn for а (210 statutory Nursing violation of the Home Care Act ILCS 45/1— (West 1996)) seq. 101 et for three of disability, expen- months medical ses, pain suffering and and her husband endured after Oak Lawn’s al- leged neglect.1 Pursuant to section 3—602 of Nursing Home Care Act, Pietrzyk sought also attorney fees and II costs. Count of the complaint amended sought recovery against Oak Lawn for common negligence. Count III a wrongful action, was death pursuant to (740 (West the Wrongful 1996)), Death Aсt ILCS sought also 180/1 recovery against claim, however, Oak That predicated Lawn. was upon negligence common law by Nursing was not covered Home Pietrzyk Care Act. did not seek costs in either count II remaining or III. The against counts were directed the other defendants. January
On granted Anthony’s the trial court Dr. motion summary judgment. trial, Before Pietrzyk voluntarily dismissed Largosa $50,000. Dr. and settled Harlin opted Plaintiff then pursue recovery to on I counts and III of her amended complaint (hereinafter defendant). against only Oak Lawn liability, Because defendant admitted its only factual issue to by be decided the jury money was the amount of to be awarded proven for the compensatory damages. recoverable On 26, 2000, itemized jury following October returned the verdict: (West (755 27—6 of the Act ILCS 1Pursuant section Survival 5/27 —6 1996)), after his death. her husband’s own cause of action remained viаble 26,530.55 $ Expenses: “Past Medical 10,254.33 $ Expenses: General $100,000.00 Disability: $175,000.00 Suffering: Pain and $287,000.00 Eryka Pietrzyk: Society Loss of 50,000.00 $ to Dianne Bender: Society Loss of 50,000.00 $ Brackman: Society Loss of Alice $698,784.85.” Total: 21, 2000, Pietrzyk On filed a motion to recover November Act, in Home Care pursuant to section 3—602 of $232,928.29 deter amount of one-third of the total verdict —as —or response by contingency agreement. mined her fee Defendant filed a Pietrzyk’s argued motion and thаt she was entitled to opposition to in the amount of one-third of the attribut attorney fees able to the claim Home Care Act. For De Retirement argument, defendant noted that Wills v. Kalb Area Center, held that death claims 3d 833 are not covered reply, Pietrzyk asserted that the issue was whether contemplated death action was claimed Rather, plaintiff
Care Act. that where the covered and noncov theоries, ered claims arose out of a core of facts and her *3 attorney claim for fees should not be reduced since the work involved litigating support position, in the claims was identical. In of her she precedent attorney cited that established that where reasonable fees basis,” reduced are calculated on an “hours times rate the claim is not are if the claim a com when noncoverеd claims involved arises Aged, mon core of facts. See Berlak v. Scalabrini Home the Villa (1996). Inc., App. 231, 284 Ill. 3d 30, 2001, opinion On March the court entered a and memorandum attorney found that the was not entitled to fees in an amount of the and entitled the only one-third of death verdict was Accordingly, amount of one-third of the Home Care Act claim. $100,510.18 ($175,000 pain suffering the court a fee of + allowed = $100,000 disability $26,530.55 $301,530.55 + expenses medical = $100,510.18), or оf the Home Care Act claim. one-third attorney Pietrzyk appeals argues now that she is also entitled to verdict, $397,254.33 wrongful fees for one-third of the death or $132,418.11, Home Care Act. that
Initially, parties disagree as to the standard of review where, here, the of a case apply. are to Plaintiff asserts that as facts ap- the trial court’s are uncontroverted and the issue concerns plication facts, of the law to the the standard of review de is novo. See Pierce, Smith, Lynch, Inc., Roubik v. Merrill Fenner & 285 App. Ill. 3d (1996). Defendant, however, argues that the abuse of discre tion applies standard to the court’s attorney award of fees. See Samp (1996). Miglin, son v. App. Moreover, 279 Ill. 3d 270 it cites case law reviewing that holds that a ought court not conduct a de nova review petition provide of a fee opportunity second its address Illinois, rеasonableness. See Ardt v. State App. 292 Ill. 3d 1059 Generally, it “[a] is well settled that trial court has broad fees, discretionary powers awarding attorney and its decision will not be appeal reversed on unless the court abused that discretion.” Szostek, App. (1993), citing Weidner 245 Ill. In re Estate Callahan, 144 Ill. 2d This is because a court must of determine party seeking attorney whether the fees has met its burden presenting sufficient evidence from which the court can render a attorney Weidner, decision as to the amount of reasonable fees. necessarily 3d at 493. Such a determination weighing involves a facts, type arrangement issue, such as the of fee the amount of worked, hourly charged. hours or the Accordingly, party fees where a on appeal challenging adequacy party is that is actually challenging determining the trial court’s discretion in is what reаsonable. case, however, challenging this is not Indeed, of the findings.
reasonableness trial court’s as she notes in her brief, reply recognized parties “[t]he trial court were agreement substantial as to the factual basis for an award of Specifically, plaintiff sought recovery fees.” upon agreement based contingency of one-third the entire verdict, sought recovery whereas the defendant to limit the of аt torney fees to one-third of the verdict attributable to the awarded for the claim however, parties agreed contingency
Importantly, both that a one-third fee was a reasonable fee for this case. ap- point,
At that the court then had to determine the law plied perceived to the facts. The record reveals that even the trial court the issue as a one:
“Thus, question, perceives the court it under the *4 straightforward: it does the status of the law and the facts before is death) (wrongful for a of action [A]ctauthorize cause (a heirs) contemplated parties protected and for ‘resident’s’ not Reluctantly, the Act? this court thinks not.” under the short, court made determination as to reasonable- once the its determina had to make a it then contingency agreement, ness of the weigh any it to require did not applied, which tion on the law to the trial disputing is nоt plaintiff Because the here facts whatsoever. misap that the trial court calculations, contending only court’s but is de the of review is law, agree plaintiff with standard plied the 393, App. Ill. 3d Connelly, novo. See Romanek v. fee-shifting is that in a plaintiffs only appeal
The
contention on
claims,
party
is
case,
and noncovered
where there are covered
out
the
claims “arise
entitled
fees on a noncovered claim where
two
to
this,
legal theories.” For
she
a common core of facts and related
Eckerhart, 461 U.S.
Hensley
Supreme
cites the
Court’s decision
(1983),
ap
cited
424,
40,
In the action plaintiff that her two causes of clearly arise out of a common core of facts because the elements neces- sary prove negligence wrongful to under the death count neglect virtually necessary prove are the same as the elements liability Specifically, prove claim, that the defendant’s plaintiff prove death must injuries death. To negligence leading caused the Act, plaintiff must prove liability Home Care statute, caused the prove neglect, that defendant’s in violation of the plaintiffs injuries. plaintiff Corp., then notes that in Harris v. Manor Healthcare Supreme determined Ill. 2d 366-67 the Illinois Court such, negligence virtually are identical. As neglect gave rise part
asserts that the conduct on the of the defendant same wrongful death actions. In to both the Home Care Act and addition, plaintiff points out that the verdict form submitted by jury asked it to assess the total amount of sufferеd question.” of the occurrence in proximate “as a result added.) plaintiff concludes that (Emphasis Ultimately, substance, overlap Act and death claims Home Care *5 1048
theories, discovery, Berlak/Hansen, therefore, and evidence. Under separated. verdict on the two claims should not be adopted Plaintiff notes that Illinois courts have analysis similar variety involving attorney in a of cases in example, feеs. For Ardt v. Illinois, App. (1997), State 292 Ill. 3d 1059 which dealt with the Il of (225 (West 1992)), seq. linois Dental Practice Act ILCS et this 25/1 court found that litigated all of the issues in the cause of action were *** inextricably plaintiff’s “so intertwined that the time attorney spent on each distinguished issue cannot and should not be for the purpose determining Ardt, the reasonable amount of fees due.” 292 App. Ill. 3d at 1067.
Moreover, notes, cases, in rights the context of civil principle samе adopted. City Chicago, has been See Becovic v. (1998) 236, 242 App. (citing Hensley, Ill. 3d court held that a this discriminated against blind man who was on the disability basis of his $2,500 compensatory damages, $14,200 was allowed to recover in in costs); attorney Brewington Department v. Illinois $430 Corrections, App. 54, 161 Ill. 3d 64-67 (765 adopted respect Mortgage It has been also Act (West 2000)), et seq. Decep ILCS and the Consumer Fraud and 905/2 (815 (West 2000)) seq. tive Business Practices Act ILCS et 505/1 (Consumer Act). Homes, Fraud In American Garden Inc. v. Gelbart Dressing, App. (1992), Fur 238 Ill. 3d was success ful only Mortgage complaint. on the Act count of a five-count amended argued Defendants that the other claims were not unsuccessful finding but unrelated and therefore not that all of the compensable. counts related to through attempts were each their to dismantle a partnership responsible any deadlock and to hold dеfendants dam “ ages, holding repeated previous this court its ‘where the work on the unsuccessful claim is related to the work on the successful (Northtown claim, attorney may appropriate.’ an fee Ford v. award 490.)” (1988), App. Ill. 3d American Rights Human Comm’n Garden, App. 238 Ill. 3d at 69.
Likewise, Inc., Ciampi Ogden Chrysler Plymouth, 262 Ill. App. plaintiff alleged 3d that the defendant commit ted fraud and fraud under the Consumer Fraud and both common law (West 1992)) (815 Deceptive sеq. Business Practices Act ILCS et 505/1 (Act), complaint by alleging then amended her an additional she (15 seq. § U.S.C. 1981 et violation of the federal odometer statute (1982)). argued that the trial court was misled into Ogden Defendant delineation as to awarding regardless any specific full than counts, brought against defendants other some which were Thus, contended, a App. 262 Ill. 3d at 114. he consider- Ciampi, him. matters in the fees involved amount of time tabulated аble 3d at 114. This Ciampi, App. concern him. 262 Ill. that did not even Ciampi’s claims complexities litigating court held: “Given defendants], materiality of these issues against [the as well as find defendants, trial court did not err in to all three we conclude the throughout this fees incurred ing Ogden responsible to be further respect at 114. With to his Ciampi, App. case.” 262 Ill. 3d part of his work contention that an must differentiate which issue, “the fraud performed on each this court found because was on the evidence and and the odometer claim were based same claims spent distinguished” (Ciampi, the time on each issue could not bé 115), infor petition provided Ill. it found “the fee sufficient App. 3d (Ciampi, mation as to the reasonableness of the fees” 115). *6 argues reject Accordingly,plaintiff that we should the defendant’s and that the must “claim-chopping” approach fees awarded operative “inextricably reflect the common core of facts involved in her linked and successful claims.” points
Defendant out that the section that allows for fees states, in Nursing pay Home Care Act “The licensee shall damages actual attorney[ facility ] and costs and fees to a resident rights, Act, whose in specified Part of Article II of this are (West 2000). Moreover, violated.” 210 ILCS it notes that the 45/3—602 pertinent pаrt: Survival Act states in “In addition to the actions which *** law, by following survive the common actions to also survive: (West damages injury person.” recover for an to the 755 ILCS 5/27—6 2000). Significantly, statutory the Survival Act does not create a cause action, and the decedent representative instead allows a statutory already maintain those or actions that had ac death, crued to the decedent an action prior e.g., thе decedent’s Home Act. National Bank Care See Co., Bloomington Ry. v. & Western 73 Ill. 2d Norfolk hand, Wrongful pertinent part: On the other Death Act states in wrongful person by
“Whenever the death of a shall be caused act, default, act, neglect neglect or and the or default is such as would, ensued, injured if party death had not have entitled the thereof, damages respect maintain an action and in then recover every person company corporation and in such case the or or who ensued, if death had not shall be li- which would have been liable damages, notwithstanding able to an action for the death of the (West2000). injured person ***.” 740 ILCS 180/1 Act could Consequently, defendant notes that while the Survival provide Care recovery injuries for actionable under the
Act that prior death, were sustained the decedent to the decedent’s Wrоngful only provides Death Act recovery to the decedent’s next of kin for their Szanto, loss. See Dettman-Brunsfeld 267 Ill. present case, find,
The Cross, is akin to that of Perkins v. (8th 1984). There, F.2d 1099 attorney prosecuted Cir. an rights civil on lawsuit behalf of six picketing. who were arrested while Their claims all arose out of the same common core of facts and were however, all based on the same theory; two of the prevailed. request fеes included fees incurred on held, behalf of the four plaintiffs. unsuccessful The court after considering Hensley, that “no award should be made for the time the spent lawyer appefiants rights on behalf of the four whose civil claims Perkins, were dismissed.” F.2d at 1100. claim
Similarly, respect fees in the case, multiple parties there are in interest with distinct causes of ac- noted, tion. As the trial court Wills held that no death ac- tions were еver envisioned under the Home Care Act: legislature remedy “Where the intended has to create for the life, clearly stated, decidedly leaving loss of it has so no doubt that it understood the difference ‘injury’ between words ***Here, enacting ‘death.’ Home Care Reform Act legislature fife, provision included no for the loss of recovery Wills, for the compensatory damages.” even App. 3d at 842. she, wife,
While correct that as the is a is deceased’s actions, only plaintiff both she is not the in the death ac- she, perspective, clearly tion. From that it has been delineated that along kin, of the next of are not entitled to for the with rest *7 True, death action under the she is brought entitled to fees for the claim under the Home Care Act, expressly Accordingly, we but that is allowable statute. agree trial that “the here benefit from with the court heirs who will standing [Nursing death award have no Home *** They Care] Act. do not fall within the class of individuals intended [Nursing [Nursing under Act. The protected Care] to be Home Act a not an heir of a resi- compensate Care] seeks ‘resident’ *** attorney dent. Thus heirs are not entitled to fees otherwise un- available under statute.” light plaintiffs redress to be afforded to potential Act, also Wrongful Home Care Act and the Death we Hensley, found in Bu-
agree with defendant that the factual scenarios covic, are mismatched with the Ciampi, and American Garden cases, pertained doctrine In those the common-core-of-facts scenario. varying degrees claims plaintiff pursuing multiple to the same with rationale, cases all focused Using those success. upon spent fees based hours alleged attorney on an miscalculation of claims. charged and dollars on successful not-so-successful way a for the court to Ultimately, provided the common-facts-doctrine have award fees to the who otherwise would received insufficient fees because of the limited success allowing their covered causes of actions fees or where charged litigating time the covered causes of actions was indistin- guishable charged in litigating from the time the uncovered сauses actions, claims regardless of all of the were successful. whether
Here, however, contingency parties agree because both that the arrangement upon was to be based one-third of the verdict and because it not disputed parts comprise damages has been which of the verdict for the Nursing comprise damages Home Care Act claim and which claim, for the wrongful death no such confusion exists. Furthermore, in Carson Pirie Scott & Co. v. State Illinois Ill.,
Department
Employment Security, 131
supreme court
prohibits
prevail
noted “that since the common law
ing party
recovering
from
statutes which allow for such
strictly
Consequently,
awards must be
construed.”
if
we were
allow
plaintiff to collect for attorney
fees incurred for an action
on
heirs,
holding
behalf of the deceased’s
our
run
would
afoul of the rule
(7th
Network, Inc.,
set out in Jardien v. Winston
QUINN, J., concurs. REID, dissenting:
JUSTICE I dissent. This unique case involves a set of facts where both sides one-third agree that the fee contingent ques- would fair. *8 jury that fee. The verdict dam- tian is how do we calculate awarded ages resulting question occurrence in and did not differenti- from the damages Though ate between the counts. some of the items would action, just not be recoverable if this lawsuit a I believe were survival there the focus should be on the work done on the entire case because effort. was bundled relief a plaintiffs [certain]
“In cases the claims for will involve legal theories. common core of facts or will be based on relаted generally litigation Much of counsel’stime will be devoted whole, making expended on a claim- a it difficultto dividethe hours a by-claim Such a lawsuit cannot be viewed as series basis. on the [trial] Instead the court should focus discrete claims. significance of the overall relief obtained relation reasonably expended litigation.” Hensley on the to the hours 40, 51-52, Eckerhart, 424, 435, 103 Ct. 461 U.S. 76 L. Ed. 2d S. 1933, 1940 Aged,
Berlak v. Villa Scalabrini Home for legal and related there exists such a common core of facts Because I should litigation, at the heart of this believe theories prove necessary The elements have received the full amount of fees. prove wrongful death count and to negligence passing than a Care Act have more neglect under the proof that the requires in a death count similarity. Liability death. Under injuries caused that led to negligenсe in violation of the Act, neglect proven that was both Survival must injuries. Here the claims share and the cause of the statute theories, discovery and evidence. Both seek majority nursing defendant home. acts of the remedy for “as a jury to assess the suffered verdict form itself asked the claims are question.” These result of the occurrence proximate higher level a sufficient nature that linked. I believe the link is of end, the trial court insofar To that I would reverse of fees is warranted. unique these of fees recoverable under limited the amount as the order facts and circumstances.