*1 RITO, SORENSON, FIO Plaintiff-Appellee, CATHERINE F. v. MICHAEL Defendant-Appellant. Division) (4th
First District No. 79-2005 Opinion 1980. filed November LINN, J., concurring part dissenting part. P. Fricano, Chicago, appellant.
Peter Cromartie, Sutter, Herbert, Mulroy, &Davis Hopkins, William Carlisle Chicago, appellee. the court: opinion
Mr. delivered JUSTICE JIGANTI Sorenson, attorney mal- brought F. plaintiff, Catherine defendant, Fio Rito. The defendant Michael practice against the action awarding County court of Cook of the circuit appeals judgment attorneys’ fees interest penalties, in the form of plaintiff damages timely file certain a result of the defendant’s failure to (1) alleges inheritance and tax that: estate forms. The defendant judgment weight manifest of the trial court was evidence; (2) (3) the court damages; the court did not assess evidence; (4) rulings committed reversible error in its various on the prejudiced the court was against the defendant. death, night
Catherine Sorenson that on the of her husband’s testified *2 telephone she had a attorney conversation with Michael Fio Rito. son-in-law, future arranged conversation was was a by Sorenson’s who good call, friend of if During Fio Rito. Sorenson asked Fio Rito she could signed use checks by her husband before his death to withdraw cash from the bank. He that she advised her could. later,
Sorenson stated that a and few months Fio Rito met with her discussed probating husband’s her estate. He told Sorenson since appeared the assets all in joint tenancy, to be there would be no problem in transferring the assets into her name alone. At the end of the meeting, Fio Rito took with him belonging several documents to Soren- son, houses, documents, including deeds to two trust certificates of deposit and a list of stocks. Sorenson said that she called Fio Rito month after this meeting, and him happening asked what was with her husband’s estate. He told her that he was taking everything. care of Sorenson further testified that she telephone April received a call in 1975 from an attorney named Seigan.Seigan Alvin helping told her that he was Fio Rito while Fio Rito out of town. bring He asked her to certain documents to his office, office. When Sorenson Seigan’s inquired arrived at he whether she spoken had with Fio Rito about fees. She him that there told had been no discussion about fees. that she made out a Sorenson testified check Seigan with the expressunderstanding money given months, to Fio During Rito. following allegedly Sorenson called time, Fio Rito from time to time to Rito inquire about the estate. Each Fio told her not to worry taking because he was of it. care attorney
Sorenson testified Greg McHugh, that she contacted a staff County the Cook Legal February of 1977. AssistanceFoundation She him told that a couple years passed nothing had had been done about her husband’s estate. When the Rito he contacted Fio was told that Fio Rito was taking care of matter. continued Sorenson to visit Fio Rito during the next few months. She testified that on one of occasions, said, these Fio got Rito lost “Youhave been too nice. You shuffle.” He also admitted that penalties. there would be some tax trial, testimony at speaking Fio Rito denied on the to Sorenson night of her husband’s death. him He claimed that she never asked work on the estate tax returns. Fio Rito testified that he first met Sorenson at the home of her daughter Although he over son-in-law. looked estate, certain having documents he taken them relating to the denied with him. Seigan, Fio Rito said that an “office he recommended Alvin Seigan, associate” to do Sorenson’s but tax work. Sorenson retained Seigan. would call Fio Rito from to time when she not reach time could later, Sometime Fio inform him Rito called Sorenson’sson-in-law to Seigan Alvin had about died. When Sorenson to ask called documents, bring told He Seigan Fio Rito Mrs. to his office. held them these them. year any documents for about a but did not work on Fio do Rito testified that he look “tax man” and advised Sorenson to for a new she agreed attorney by to let an the name of Weiner handle the David matter. Fio Rito’s last with Sorenson occurred December of contact 1975when he returned her He did not a fee from Sorenson. files. receive Lawrie, Henry attorney, Sorenson retained new June tax completed handle her husband’s inheritance estate. Lawrie September estate tax returns and 1977. Recause the filed them on late, $6,409.25 returns were filed pay Sorenson was penalties Also, $1500 and interest. Sorenson about attempts which refunds of the arose from unsuccessful to obtain charges. and interest trial, judicial Disciplinary
At the the court Rule took notice states, “A 101(A)(3) Responsibility, which of the Code Professional 6— lawyer The court neglect shall him.” also not matter entrusted to *3 applicable to Greg McHugh testify allowed the standard of care in practicing attorneys practicing McHugh in had been Chicago area. in May in Illinois Chicago practice he law area since was licensed Department employed 1976. of the He was as the head Senior he filed capacity, Cook In this County Legal Assistance Foundation. tax returns. many and estate State inheritance tax returns Federal that, skill ordinary in McHugh opinion, testified his exist for Chicago anticipate that deadlines knowledge area would returns in estate tax filing of State inheritance tax returns and Federal what those find out handling decedents’ estates and would know how to deadlines were. court the trial judgment first
The defendant contends that there was no against weight claims the manifest of the evidence. He employ- attorney-client into an that entered he Sorenson Sorenson. legal relationship ment services performed or he ever of the trial judgment A reverse the reviewing duty court has a the manifest against judgment court where determines 27, 362 3d App. Brongel (1977),48 weight v. (Brongel of the evidence. determination, court However, appellate 750.) making this inferences drawn trial must at view the evidence introduced below. party prevailing to the aspect favorable therefrom the most 403, 124 N.E.2d (Fetterman App. 2d v. Steel Co. (1954), 4 Ill. Production of the Therefore, court favor judgment by the trial in which, all together with should if there is evidence be sustained elements prove the essential plaintiff, tends to ferences favorable to the 363, 189 v. (1963), 40 Ill. claim. Fosdick Servis of the N.E.2d 538. the documents Fio Rito gave shows that Sorenson record that he expectation with the
relating to her husband’s estate Rito called Fio necessary. She perform whatever services time, told her he progress. his Each several times to check on occasion, Fio On worry. one and that she should not everything was fine by telling matter neglect his acknowledged Rito seemed to have Sorenson, in the shuffle.” got You lost “You have been too nice. attorney, Alvin retained another
Fio Rito claims that Sorenson It is husband’s estate. Seigan, with her perform services connection However, according to Seigan. true that a check to Sorenson made out just helping Fio her that he was testimony, Seigan explained Sorenson’s The trial money. Rito and assured her that Fio Rito would receive province It is testimony. this within apparently chose to believe weight and the credibility of the trial of witnesses court to determine the Fire Lynch Area Co. v. testimony. (Wyman-Gordon given to be to their 1055.) Based Protection District facts, court was not judgment of the trial upon these we conclude that the weight the manifest evidence. awarding as The defendant next contends that the trial court erred attempts her fees incurred Sorenson charges. obtain He claims refunds of the and interest rule,” which “American allowance of these fees violated the so-called fees and prohibits recovering litigant a successful allowing expenses. such litigation in the absence of statute (Kerns 859.) Since the Engelke v. Ill. 2d dealing specifically statute point could not to a situation, entitled to recover plaintiff is not the defendant claims that the legal expenses confuses the the defendant making argument,
We believe that in one who in Illinois is that exception general rule general with the rule. The ordinary and all of the illegal wrongful commits an or act is liable for Taylor (Philpot consequences natural of his act. *4 251, 256 Co. Mfg. Cylinder
Bimba Co. v. Starz Logically, this Damages (1968).) 15 Ill. L. & Prac. §32 the against a lawsuit bringing in any attorneys’ expended include fees attorneys’ However, the allowance wrongdoer. because it was felt that defending an uncertain or litigant prosecuting fees would deter a from claim, exception general the “American was the adopted rule” as an to rule. Supreme Court stated the rationale for the “American Rule” as follows: rule,
“In support argued it been American has since litigation is at penalized best uncertain one should not be for lawsuit, merely or defending prosecuting poor a and that the might unjustly instituting discouraged from actions to vindicate rights their if losing the fees of for included the their v. opponents’ Distilling Corp. Fleischmann Maier counsel.” Brewing 475, 386 U.S. L. 18 Ed. 2d 87 S. Ct. 1407.
It is clear from policy against awarding this statement attorneys’ only litigant fees intended to where a apply successful seeks to maintaining recover his costs in not it the lawsuit. We do believe preclude intended to recovering directly losses by caused simply happen the defendant’s conduct because those losses to take the form of attorneys’ attempting fees. The here is not to Rather, recover attorneys’ expended fees she bringing lawsuit. she seeks to recover in trying losses incurred to obtain of tax refunds penalties which solely result of against were assessed as a defendant’s negligence. Had been forced hire an ac- repair conduct, countant damage by caused the defendant’s she would undoubtedly have been fee as entitled recover accountant’s an ordinary element of for logic denying There no basis recovery of the type merely plaintiff required same of loss because instead of an accountant to correct the situation caused neglect. defendant’s the defendant liable for losses, we not violating litigant are the policy against “penalizing” a defending following a lawsuit. simply general We are rule of requiring wrongdoer consequences bear of his misconduct. legal expenses distinction between which are recoverable ordinary damages which not as costs are recoverable litigation Ritter recognized by Supreme the Illinois Court Ritter plaintiffs’ request denying N.E.2d 41. stated, action, fees in prosecuting the the Ritter proximate
“While is recognized that where the natural and consequences wrongful of a act have been involve others, litigation may recovery there be a act, against the author of such measured the reasonable the rule is litigation, yet such [citations] equally well based same established that where an action wrongful prosecuted by act has been issue, action subsequent he can a successful not
373 recover, action.” damages, as his costs and the former 549, 554-55, (381 41, 44.) Ill. 46 N.E.2d longer light defendant claims that this is viable in distinction no in Garris v. (7th 1977), the Federal F.2d Schwartz opinion court Cir. 551 156. He cites per Garris as support attorneys’ for his contention that fees se are not recoverable a statute or under Illinois law the absence of agreement to that effect. authority, they
While Federal court persuasive decisions constitute are not binding (City Chicago (1977), on this Ill. court. 68 Groffman 112, 891.) Garris, 2d 368 In for sued negligently causing probate. a revoked will to be admitted She claimed that as a result of the attorney’s negligence, she was forced to incur expenses in protecting her interest the estate. The asked court to award her legal expenses ordinary these as an element of damages. The court preclude determined that Illinois law would re- covery of attorneys’ fees under the circumstances. The Garris court based this determination on its interpretation appellate of certain recent court decisions. We believe readily distinguishable that those decisions are from the instant appeal.
In Reese v. Chicago Burlington R.R. Quincy & (1972), Ill. App. 5 450, 517, 3d 356, 283 N.E.2d grounds (1973), other 303 2d aff'd employee railroad injured by who was a defective crane sued the railroad. The railroad then sued the manufacturer of the crane for indemnity. The railroad claimed that it should to recover be allowed the attorneys’ fees it in defending original incurred action. The court claim, refused this holding attorneys’ fees are not an element of damages in an action for indemnity. was followed in Kerns holding This v. Engelke Kerns, 76 Ill. 2d In N.E.2d 859. a retailer was held injuries liable for by product caused a defective which he He sold. sued the manufacturer for indemnity, including attorneys’ expended in defending original brought by injured party. lawsuit fees, court request denied the stating for because retailer properly liable, sued as a strictly he should bear the expenses litigation. case, of the A Insurance appellate third court Company North America v. L. Hubbard Co. J. similarly along decided same set of principles.
We believe that neither Reese nor Kerns constitute authority denying cases, legal expenses appeal. claimed in this those both of the indemnity plaintiff properly subject by injured party. to suit The indemnity nothing subject defendant did to avoidable litigation and was pay resulting attorneys’ therefore not Here, hand, fees. on the other neglect the defendant’s was the direct cause legal expenses Had the defendant returns, necessary filed the tax there have been no need engage efforts to recover and interest charges.
Another
the Garris
case cited
support
court as
for its
is
Kniznik v. Quick
set forth in
Garris v. Schwartz
(7th
1977),
Cir.
The defendant in allowing next contends that the trial court erred the testify to relationship about her with the defendant because the is relationship was issues of the case. Evidence material immaterial to the (Joynt v. Barnes legitimate bearing disputed where has a on matters. 1298.) We believe that the App. 3d 388 N.E.2d importance. relationship Sorenson and Fio Rito was of central between that Rito was her Sorenson’s claim was based on her assertion Fio Therefore, concerning attorney. Fio Rito denied this assertion. their relationship allowed. Greg argues permitting
The defendant that trial court erred the Chicago McHugh to testify concerning applicable to the standard of care attorneys McHugh qualified expert an witness. In because was not House Maddox this court 360 N.E.2d the normally required respect held that to expert testimony while is client, testimony is not by standard of such lawyer care owed to record discloses always necessary. court stated that “where the The duty the explicit obvious failure to meet carelessness defendant’s expert require of him will not by plaintiff, care owed to the court (46 testimony already abundantly clear.” to define further that which is 68, 73, 580, 584.) Ill. App. 3d 360 N.E.2d The record shows the any regard defendant whatsoever here failed to take action is negligence matters him We find that such entrusted to the of care explicit expert testimony concerning so that the standard unnecessary. allowing in not
The trial court erred defendant next contends daughter as plaintiff’s the impeach testimony defendant the defendant. date of a certain conference between on collateral questioned While a a limited extent may witness matters, in the primarily scope rests and extent cross-examination Co. A. R. Matthews & v. Max (Sweeney discretion of the trial court. (1970), 46 in the record which nothing Ill. 2d 264 N.E.2d findWe suggests limiting scope that the trial abused its discretion cross-examination. allowing defendant also contends that trial court erred plaintiff had to introduce exhibits into evidence certain after
rested. Generally, it is judge within the of the trial whether discretion (Blackwell party allow a he has case. introduce evidence after rested its v. City National Bank & Trust
326.) Here, plaintiff’s day counsel announced the first trial he would wait until plaintiff’s, the end of the case to introduce plaintiff’s exhibits. Through oversight, plaintiff’s exhibits were not introduced until the close of the We find that the defendant whole case. surprised neither prejudiced by nor the trial court’s decision to allow to correct oversight. argues improper assessed were that approximately question acquired one-half the estate assets own contributions The defend- employment. ant claims may substantially completely fact or have reduced any eliminated tax liability had the Internal filed with Revenue Service an affidavit of Under U.S.C. contribution. §2040 (1978 Supp.), joint tenancy subject the full to the property value Federal joint estate tax except surviving to the extent that a tenant can show that portion belonged to the survivor. property originally *7 The plaintiff attorney record indicates that and her discussed possibility tracing joint of her own tenancy property some of the plaintiff’s attorney plaintiff contributions. The since the concluded that had no hers, of meet property originally records what was she could not proof necessary subject burden of estate to reduce the value of the tax. The this was defendant failed establish conclusion unreason- that able. proper. We therefore damages conclude that the assessed were
The defendant should bear the plaintiff next contends that alone liability for the to take charges interest because she failed steps to mitigate her losses. It is a that a matter well-established rule raised for (Bridges first appeal time on will not be considered. Neighbors 704, 233.) 32 336 App. Ill. 3d Since N.E.2d court, failed to argument this the trial he cannot it appeal. raise in this
376 prejudiced
The court was defendant last contends that the trial erroneously the defendant trial based judge and that the decision personal experiences on his own rather on than standards community. Although of the defendant’s the defendant asserts error, that the clearly alleged specify any record reveals the he fails to portion of supports persuaded the record which We are not assertion. that the improperly trial court toward or that it based acted the defendant its decision on an erroneous standard of care.
The plaintiff prove dissent states that the failed fees reasonably awarded as were in her unsuccessful efforts to mitigate is in its damages. This issue not raised the defendant unsuccessful, brief. The it attempts dissent states that because the upon incumbent show there a reasonable that possibility of success. is of This statement made without citation author- ity. We believe the as to the reasonable- clearly record contains evidence Lawrie, plaintiff’s attorney, ness of the efforts of the Mr. testified in response question, direct to a that he believed there was hope of success in obtaining refund. There was no cross-examination point. province It is the of the trier of fact to determine whether plaintiff’s court should finding efforts were reasonable. The of the trial (Larson clearly not be overturned it is v. Boudart unless erroneous. 227, 364.) Ill. 244 is App. N.E.2d There no indication 2d clearly is erroneous in this case. $1500 prove dissent also failed to states in the defendant’s reasonable amount. This also was not raised issue
brief. The dissent that in order to recover reasons produce detailing must services rendered records Marriage re It cites In charged for these services. Jacobson amounts 273, 411 proposition. for that App. Jacobson 3d Since to set-fees. the court was proceeding is a which divorce here, we believe set fees there was need for the court to Jacobson no the reason proved determining whether the inapplicable. is damages should ordinary principles expenditures, ableness presumptive paid It that a bill apply. been has held Ill. (1969), 114 (Saunders v. Wilson paid. amount reasonableness App. (1946), v. Matlin 253 N.E.2d Williams testimony Moreover, it is the uncontroverted proof. provides the itself which trial not the bill witnesses at Here, the 89, 90.) (Saunders, performed he of the services that the cost testified $1500. amounted claims connection with the refund toas cross-examination no There was paid she those fees. testified that
377 reasons, the we believe these $1500 For figure. of the the reasonableness as a result incurred damages she proving plaintiff burden in met her of conduct. the defendant’s court is circuit reasons, of the judgment foregoing
For affirmed.
Affirmed.
JOHNSON, J., concurs. LINN, dissenting concurring part in
Mr. PRESIDING JUSTICE in part: found agree holding
I the trial court majority’s with the as plaintiff paid penalties and interest plaintiff defendant liable to for the However, disagree I of of returns. filing result the late the estate’s tax with the of majority affirming portion judgment of the $1,500 attorneys’ the trial court for in which found defendant liable fees. Whether I would with law that these kinds agree proposition of attorneys’ fees should be in as present recoverable a case such the one is, believe, decision, I This prior irrelevant. court should not overrule a law, even a interpreting Federal decision necessary Illinois it is unless do I case, so. think it was in unnecessary assuming this for these even recoverable, kinds of attorneys’ fees are I plaintiff believe failed to meet her burden proving $1,500 that she damages. suffered these
The plaintiff had the proving damages burden of she had case, $1,500 suffered. allegedly suffered these attorneys’ fees as damages. damages These supposedly were incurred her interest, efforts penalties to recover the damages the actual Thus, suffered $1,500 in plaintiff allegedly spent the to mitigate efforts damages Expenses reasonably case. mitigate damages may an effort to be recovered as regardless of (Kane whether the effort is successful or unsuccessful. v. City Chicago 506; Chicago 392Ill. 64 Rys. Peck v. Corp. 110 N.E. Illinois Structural Steel Pathman Construction Co.
However, prove must these particulars three recover Second, First, expenses. prove expenses. must amount Third, expenses reasonably plain- prove must incurred. tiff prove must was reasonable. amount these
The only $1,500 evidence in the justify paid record to claim by plaintiff attorney to her paid testimony that she amount and following testimony attorney. said $1,500 paid to him as penalties his efforts to recover the fees, justification interest. As for these he said he had filed claims respective tax authorities and had contacted these authorities $1,500 several prove times. No other evidence was admitted to these this, plaintiff completely claimed Because I must assert that $1,500 prove recoverage failed to she suffered these fees as *9 reasonably Plaintiff prove failed to fees were mitigate damages. incurred as No her unsuccessful effort evidence presented any possibility to show that there was attempt to penalties recover the and interest could have succeeded. Since unsuccessful, attempt I penalties to recover the interest was believe that it present had to some to indicate that was evidence reasonable to even attempt penalties make an to recover the and interest. This would required present have her to some evidence from which could be possibility concluded that a reasonable of success existed.
Also, $1,500 prove paid by has failed to her as fees was a reasonable amount. In in which fees have been cases State, allowed to be recovered in this it has been some evidence, rendered, usually attorney’s detailing records the services records, services, including charged time for these and the amounts the record to show the reasonableness of the fees claimed and awarded. (See re Marriage Jacobson case, only the record to show the $1,500 reasonableness of the in fees is attorney’s testimony that he filed some claims and contacted the necessary authorities several times. This evidence is entirely prove insufficient to reasonableness fees.
Accordingly, I concur in majority’s is liable penalties interest, but I dissent in upholding the award of attorneys’ fees. prove Since failed to that she had suffered the $1,500as damages, I believe it unnecessary to take step the bold overruling prior decision in this case.