In Re Marriage of Kantar

581 N.E.2d 6, 220 Ill. App. 3d 323, 163 Ill. Dec. 55, 1991 Ill. App. LEXIS 1187

• Court: Appellate Court of Illinois
• Decided: July 10, 1991
• Docket: 1-89-3289
• Status: Published

Opinions

PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Petitioner, Sherry Kantar, appeals from an order granting her former divorce attorney’s motion for summary judgment and denying her section 2—1401 petition (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401) and her request for a hearing on attorney fees. She argues that: (1) there were genuine issues of material fact precluding entry of summary judgment; (2) she exercised due diligence in filing her section 2—1401 petition; (3) it was error not to grant the section 2—1401 petition, whether or not she exercised due diligence, because she alleged sexual misconduct by her divorce attorney and that the attorney fees were obtained as a result of undue influence, breach of fiduciary duty, coercion, duress, and fraud; (4) she had an absolute right to a hearing on the attorney fees awarded to her divorce attorney because she questioned the reasonableness of the fees; and (5) her divorce attorney breached a fiduciary duty by engaging in a sexual relationship with her while representing her.

Petitioner’s attorney, Albert Brooks Friedman, Ltd. (Friedman, Ltd.), filed a petition for dissolution of marriage on her behalf on May 24, 1985. A prove up hearing was held on March 31, 1988, and petitioner’s attorney, David M. Goldman, who was an attorney with Friedman, Ltd., asked petitioner the following questions concerning attorney fees and was given the following responses:

“Q. You also agreed that you each will be responsible for your own attorney’s fees; is that correct?

A. Yes.

Q. You have agreed today that you will be responsible for the sum of Fifteen Thousand Five Hundred Dollars ($15,500.00) to Albert Brooks Friedman, Ltd.?

A. Yes.

Q. You also agreed that the judgment will be entered against you today in that amount in favor of Albert Brooks Friedman, Ltd.?

A. Yes.

Q. Prior to agreeing to, you had an opportunity to discuss the attorney’s fees with myself and Mr. Friedman in his office; is that correct?

A. Yes.

Q. We gave you an itemized statement?

A. Yes.

Q. You have had an opportunity to review that statement?

A. Yes.

Q. Do you believe those fees incurred in this matter were fair and reasonable?

A. Yes.

Q. You understand that you have a right to have a hearing on your attorney’s fees; is that correct?

A. Yes.

Q. Knowing you have a right to a hearing on your attorney’s fees, you are agreeing to waive that right and have the judgment entered here today; is that correct?

A. Yes.

* * *

Q. Throughout the proceedings two lawyers from our office have represented you, Mr. Friedman and myself; is that correct?

A. Yes.

Q. You are satisfied with our representation; is that correct?

A. Yes.

* * *

Q. Do you have any questions about this agreement at this time?

A. No.”

On the same date, judgment was entered in favor of Friedman, Ltd., for $15,500.

The settlement agreement provided that each party was to be responsible for his own attorney fees and that the petitioner was responsible for the payment of the balance of her attorney fees of $15,500 to Friedman, Ltd. A judgment of dissolution of the marriage was entered on April 5, 1988.

On June 17, 1988, Michael Kantar, petitioner’s former husband, filed a petition for rule to show cause alleging that petitioner violated the judgment of dissolution. A section 2—1401 petition and a supporting affidavit were filed on June 21, 1988, by petitioner’s new attorney, Grace Wein. A copy of the petition was mailed to, but not served upon, Friedman, Ltd., on the same date. The notice of motion stated that on July 8, 1988, petitioner would present both her response to the petition for rule to show cause and her section 2—1401 petition. Also on June 21, 1988, Wein filed an appearance and petitioner’s response to Michael Kantar’s petition for rule to show cause.

On July 1, 1988, Friedman, Ltd., moved for, and was given, leave to withdraw as petitioner’s attorney on the basis of irreconcilable differences between it and petitioner as to the conduct of the litigation. Petitioner argues on appeal that Friedman, Ltd., was not given leave to withdraw, but the order appears in the supplemental record. Also on July 1, 1988, Michael Kantar filed a petition for rule to show cause and a petition for sanctions and attorney fees. On August 3, 1988, petitioner filed an emergency motion to reschedule the August 5, 1988, hearing, which apparently was related to the section 2 — 1401 petition because notice of the emergency motion was given to Friedman, Ltd., in addition to Michael Kantar. On August 3, 1988, Michael Kantar filed a motion to strike and dismiss the section 2 — 1401 petition and a motion to strike petitioner’s supporting affidavit. The August 5, 1988, hearing date was continued to August 19, 1988. On August 10, 1988, Michael Kantar filed a petition for rule to show cause to be heard on August 19, 1988. On August 22, 1988, the hearing on the petitions for rule to show cause was continued to August 30,1988.

On September 1, 1988, Michael Kantar’s petition for rule to show cause, petition for sanctions, and petition to strike were dismissed and withdrawn with prejudice, and petitioner’s section 2 — 1401 petition was dismissed with prejudice and withdrawn only as against Michael Kantar. On the same date, petitioner was given leave until November 1, 1988, to file an amended section 2 — 1401 petition, attorney Wein was given leave to withdraw, and a new attorney, Glen Kaufman, was given leave to file an appearance for petitioner.

Petitioner filed a pro se amended section 2 — 1401 petition on October 31, 1988, and another supporting affidavit on March 10, 1989. A notice of filing by Kaufman stated that on March 10, 1989, petitioner filed a “supplemental petition to vacate,” but the petition does not appear in the record. On March 13, 1989, petitioner filed a motion to compel the appearance of David Goldman at an April 14, 1989, hearing, and filed a notice to take Friedman’s deposition on March 20, 1989. On March 17, 1989, Friedman, Ltd., filed a motion to strike the supplemental petition to vacate which argued, in part, that no due diligence had been shown and that the original petition had not been served upon the law firm.

On May 15, 1989, petitioner filed a consolidated amended and supplemental petition to vacate. A copy was mailed to Friedman, Ltd. In part she alleged that: (1) she never willingly or knowingly agreed to pay to Friedman, Ltd., $15,500 for attorney fees; (2) the agreement to pay the attorney fees was procured by undue influence, coercion, misrepresentation, and intimidation; (3) the request for $15,500 in additional attomey fees was unconscionable and unfair; (4) Friedman, Ltd., repeatedly threatened to withdraw from representation if petitioner did not acquiesce to the demands of her husband; (5) the attorney fees were unreasonable and arbitrary without any basis in the amount of work performed; (6) a few days prior to the prove up, an attorney from Friedman, Ltd., stated to petitioner that if she did not sign the judgment for dissolution, she would lose everything and that the result could not be rectified; (7) on the day of the signing of the judgment for dissolution, petitioner had been in court for approximately six hours during which time an attorney from Friedman, Ltd., stated to her that she would have to negotiate her case on her own if she did not agree to its terms and that the bill would remain the same nevertheless; (8) Goldman told her on the day of the prove up that she could not get divorced unless she agreed to pay the fee; (9) she and Friedman engaged in sexual relations at least 20 times prior to the entry of the judgment of dissolution; (10) the billing statement contained fraudulent and untruthful entries about the time spent; (11) legal fees were billed for time during which petitioner and Friedman engaged in sexual relations and for personal telephone calls to her; (12) after she requested an itemized billing statement, Friedman stated that the fee would be $15,000 regardless of whether she received a statement; (13) the billing statement was handed to petitioner 10 minutes prior to the prove up hearing; (14) although requested to do so, neither Friedman nor anyone from his firm ever discussed the accuracy or legitimacy of the fee request; (15) as a result of being seduced, she was incapable of making a meaningful decision with regard to the payment of attorney fees on the day of the prove up; (16) at the time of the prove up, she was under extreme duress as a result of her relationship with Friedman; and (17) she exercised due diligence by filing the first petition within 60 days of the entry of the judgment of dissolution. Petitioner’s supporting affidavit was filed with the petition. The affidavit and petition did not repeat the allegations contained in the affidavit supporting the first petition that on April 13, 1988, petitioner spoke to Friedman and indicated her dissatisfaction with the settlement and that Friedman refused to take any legal action.

On June 9, 1989, Friedman, Ltd., filed a motion for summary judgment (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005). It argued that: (1) petitioner did not exercise due diligence in presenting the petition; and (2) the petition did not allege why petitioner did not move within 30 days to vacate the judgment. Friedman, Ltd., attached to a subsequent pleading a copy of a statement for its services dated July 18, 1986, for $5,377.50, less a $2,000 retainer fee. In addition, attached was a copy of a March 31, 1988, itemized statement of services rendered from January 16, 1985, through March 31, 1988, which stated a total of $22,150.50 that was reduced by a retainer fee of $4,500 which was further adjusted “per agreement” to $15,500. From this latter amount, deducted were a $1,615 payment made March 31, 1988, and a $50 delivery charge, and the final balance was $13,835.

The motion for summary judgment was granted on September 28, 1989. On October 10, 1989, petitioner filed a motion to reconsider. On October 26, 1989, petitioner filed a petition for a hearing to determine the appropriateness of the attorney fees. On October 30, 1989, both motions were denied and an order was entered that petitioner owed to Friedman, Ltd., $13,835 plus 9% interest for a total of $16,392.71.

Respondent argues on appeal that petitioner never exercised due diligence in filing her section 2—1401 petition, that the first section 2—1401 petition was not served as required by Supreme Court Rules 105 (134 Ill. 2d R. 105) and 106 (134 Ill. 2d R. 106), and that because service was not achieved until February 24, 1989, the original and amended petitions were nullities until that date.

In the motion to strike the petition to vacate, Friedman, Ltd., argued the merits by stating that petitioner’s allegations of sexual relations were a scurrilous attack and that many allegations were irrelevant, nonsensical, conclusory, and contained no information. The motion to strike further stated there was no allegation made that $2,000 paid by petitioner was not properly credited to her account.

We hold that any objection to service of the section 2—1401 petition was waived by Friedman, Ltd.’s response to the merits of the petition in its motion to strike. See Slade v. Bowman (1977), 49 Ill. App. 3d 242, 246, 364 N.E.2d 922, 925 (defects of service of petition to vacate were waived when defendant generally appeared to argue the motion).

A section 2—1401 petition must set forth specific factual allegations supporting these elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting the defense or claim to the circuit court in the original action; and (3) due diligence in filing the petition. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220-21, 499 N.E.2d 1381, 1386.) The following are the relevant dates in determining if petitioner exercised due diligence in filing her petition: (1) the prove up hearing was held on March 31,1988; (2) the judgment of dissolution was entered on April 5, 1988; (3) petitioner indicated to Friedman her dissatisfaction with the settlement and Friedman refused to take action on April 13, 1988; (4) the first section 2—1401 petition was filed on June 21, 1988; and (5) Friedman, Ltd., moved for leave to withdraw as petitioner’s attorney, and leave was granted, on July 1, 1988.

None of the section 2 — 1401 petitions specifically alleged how petitioner exercised due diligence in filing the petition about 11 weeks after the judgment was entered, but petitioner alleged that eight days after the judgment was entered, she discussed with Friedman her dissatisfaction with the judgment. The record shows that after he refused to take legal action, she hired a new attorney within 10 weeks at the latest because that is how much later the section 2 — 1401 petition was filed.

We hold that petitioner exercised due diligence in filing the section 2—1401 petition because she had to hire a new attorney in order to file a petition alleging Friedman, Ltd.’s wrongful conduct in connection with the attorney fees judgment sought to be vacated. See Chastain v. Chastain (1986), 149 Ill. App. 3d 579, 582, 500 N.E.2d 998, 1000 (due diligence exercised where section 2—1401 petition was filed three months after judgment and where petitioner changed attorneys before filing the petition); In re Marriage of Pagano (1989), 181 Ill. App. 3d 547, 557, 537 N.E.2d 402, 404 (due diligence exercised where a section 2—1401 petition to challenge attorney fees award in divorce case was filed two months after the judgment and where petitioner had to retain new counsel); In re Marriage of Pitulla (1986), 141 Ill. App. 3d 956, 960, 491 N.E.2d 90, 93 (the dismissal of a section 2—1401 petition for the lack of due diligence was reversed on the partial basis that the client diligently pursued out-of-court methods to settle her dispute with her divorce attorney about the amount of the attorney fees).

When attorney fees from a client are sought in a dissolution of marriage lawsuit, the attorney and client are in an unusual situation:

“While section 508 [of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 508)] permits judicial economy by eliminating the need for an attorney to sue his own client in a separate action to obtain a judgment for his attorney fee, we must not lose sight of the fact that it also places an attorney and his client in adversary positions during the course of court proceedings. Moreover, the situation presents a circumstance where the client is not represented by counsel although he or she is being opposed by counsel on a matter in which a judgment may be entered against a client. Plainly, what is permitted by section 508 is unique in, and is otherwise inimical to, the legal profession.” Pitulla, 141 Ill. App. 3d at 961, 491 N.E.2d at 93.

The relationship between a client and his attorney was also commented on in In re Marriage of Pagano (1989), 181 Ill. App. 3d 547, 555, 537 N.E.2d 398, 403:

“Because section 508 [of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 508)] puts clients in a position where they are effectively before the court without representation, we are of the opinion that precautions must be taken to ensure that any rights of the client are not relinquished unknowingly and that any resulting attorney fee is fair.”

We note that on March 31, 1988, shortly before the prove up of her divorce case, petitioner was presented with an itemized statement of attorney fees. The statement covered the period of January 16, 1985, through March 31, 1988, and consisted of eight pages and included 131 items. It is doubtful that petitioner could make a meaningful examination of the statement. She alleged that she only had a short time to examine and approve the statement before proceeding to the prove up hearing. She alleged that no one ever responded to her request to discuss the accuracy or legitimacy of the fee request. Petitioner included in her petition the allegation that the billing statement contained untruthful and unnecessary time spent by Friedman. Because the petition as a whole contains sufficient allegations of improprieties, petitioner is entitled to a hearing to decide the correct amount of attorney fees she should pay.

The facts that the client is no longer represented and is in an adversarial position with the attorney when he seeks his fees from the client were relied upon by Pagano (181 Ill. App. 3d at 557, 537 N.E.2d at 404), which stated that a hearing on the section 2—1401 petition alleging attorney impropriety should be granted even in the absence of due diligence. We need not determine whether due diligence is required where there are allegations of attorney impropriety, but we note the authority that holds that section 2—1401 relief can be granted in the absence of due diligence if required in the interests of justice. E.g., Zee Jay, Inc. v. Illinois Insurance Guaranty Fund (1990), 194 Ill. App. 3d 1098, 1103, 552 N.E.2d 1027, 1031.

The issue whether the alleged sexual relationship breached the attorney’s fiduciary duty also is not reached because the alleged attorney fees’ impropriety alone would be a sufficient reason, if proven, to vacate the judgment. See Davis v. Chicago Transit Authority (1980), 82 Ill. App. 3d 987, 989, 403 N.E.2d 615, 616 (purpose of petition to vacate is to bring before the court facts not appearing on the record which, if known to the court at the time the judgment was entered, would have prevented its rendition).

We also hold that the trial court erred in entering summary judgment in favor of Friedman, Ltd., because there were genuine issues of material fact, e.g., whether the charged attorney fees were accurate. Also, the entry of summary judgment was inappropriate because the merits of the petition were not reached by the trial court, which only held that petitioner had not exercised due diligence in filing the petition.

The judgments of the circuit court entering summary judgment and awarding $16,392.17 in attorney fees are reversed, and the cause is remanded.

Reversed and remanded.

RIZZI, J., concurs.