Will v. Northwestern University

• Court: Appellate Court of Illinois
• Decided: December 14, 2007
• Docket: 1-06-1566, 1-06-1642, 1-06-1643 Cons. Rel
• Status: Published

Opinion

FIFTH DIVISION December 14, 2007

Nos. 1-06-1566, 1-06-1642 and 1-06-1643 (cons.)

LINDA A. WILL and GEORGE WHEELER, JR., as Independent ) Appeal from the Coadministrators of the Estate of Rashidi Wheeler, Deceased, ) Circuit Court of ) Cook County. Plaintiffs-Appellants and Cross-Appellees, ) ) v. ) No. 05 L 1563 ) (formerly 01 L 10149) NORTHWESTERN UNIVERSITY, CHARLES TAYLOR, ) RANDALL WALKER, JERRY BROWN, TERRENCE ("Tory") ) AGGELER, LARRY LILJA, THOMAS CHRISTIAN, JUSTIN ) CHABOT, MICHAEL ROSE, MARK GARDNER, HOWARD ) SWEENEY, NEXT PROTEINS, INC., f/k/a Next Nutrition, Inc., ) d/b/a Next Proteins International, ULTIMATE ENERGY ) COMPANY, THE ULTIMATE ORANGE ENERGY ) COMPANY, LLC, CYTODYNE TECHNOLOGIES, INC., ) PHOENIX LABORATORIES, INC., and GENERAL ) NUTRITION CORPORATION, d/b/a General Nutrition ) Companies, Inc., a wholly owned subsidiary of Royal Numico NV, ) ) Defendants-Appellees and Cross-Appellants ) ) (Northwestern University, Charles Taylor, Randall Walker, Jerry ) Brown, Terrence ("Tory") Aggeler, Larry Lilja, Thomas Christian, ) Justin Chabot, and Michael Rose, ) ) Third-Party Plaintiffs-Appellees; ) ) Next Proteins, Inc., f/k/a Next Nutrition, Inc., d/b/a Next Proteins ) International, Ultimate Energy Company, The Ultimate Orange ) Energy Company, LLC, Cytodyne Technologies, Inc., Phoenix ) Laboratories, Inc., and General Nutrition Corporation, d/b/a ) General Nutrition Companies, Inc., a wholly owned subsidiary of ) Royal Numico NV, ) ) Third-Party Defendants-Appellees; ) ) Nos. 1-06-1566, 1-06-1642 and 1-06-1643 (cons.)

Cochran, Cherry, Givens, Smith & Montgomery, LLC, ) ) Petitioner-Appellee; ) ) Linda Will, Individually and as Coadministrator of the Estate of ) Rashidi Wheeler, Deceased, George Wheeler, III, Individually, ) and Hershel Will, Individually, ) The Honorable ) Kathy M. Flanagan, Respondents-Appellants). ) Judge Presiding.

PRESIDING JUSTICE FITZGERALD SMITH delivered the opinion of the court:

The instant cause involves multiple actions.

Plaintiffs-appellants and cross-appellees Linda A. Will (Linda) and George Wheeler, Jr.

(George Jr.), as coadministrators of the estate of their deceased son, Rashidi Wheeler (Rashidi),

filed a wrongful death and survival action against defendants-appellees and cross-appellants

Northwestern University and several of its employees, including Charles Taylor, Randall Walker,

Jerry Brown, Terrance Aggeler, Larry Lilja, Thomas Christian, Justin Chabot, and Michael Rose

(Northwestern).1 Following years of litigation which included the appointment of a guardian ad

litem, a bankruptcy proceeding, a mediation, a demand for settlement and an objection to this

settlement by Linda, the trial court approved settlement in the amount of $16 million. Linda, both

individually and in her capacity as coadministrator, and George Wheeler III (George III) and

Hershel Will (Hershel), members of the estate of Rashidi Wheeler (the Estate) and in their

1 Northwestern University filed a third-party cause of action against several drug

companies and stores. However, neither that action nor those parties are part of the instant cause

and, thus, none of them have filed a brief or appearance herein.

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individual capacities, appeal, contending that the trial court did not have the authority to direct the

acceptance of the settlement and execute documents over coadministrator Linda's objection.

Having assumed that liability has been resolved in their favor and against Northwestern, they ask

that we vacate the settlement and remand the matter for a trial on the sole issue of damages.

For its part, Northwestern has filed a brief on appeal in opposition to that of Linda,

George III and Hershel, contending that (1) they have no standing to challenge the settlement; (2)

the trial court did have the authority to accept the settlement in the name of the Estate; and (3)

even if the court improperly accepted the settlement, the appropriate remedy is not a trial solely

on damages but, rather, a remand for trial on all issues, including liability. Northwestern, which

has already paid out the settlement sum into an escrow account, has also filed a cross-appeal,

contending that the trial court erred in failing to include certain express language in its judgment

regarding the return of the settlement proceeds to it if the settlement is set aside. Thus,

Northwestern asks that we dismiss the instant appeal for lack of standing or, alternatively, that we

affirm the judgment of the trial court; Northwestern further asks that, were we to reverse the

judgment, we remand with instructions to order the return of the settlement proceeds, with

accrued interest, to it.

George Jr., in his capacity as coadministrator, has filed an appearance and brief as well.

Like Northwestern, he too contends that Linda, George III and Hershel do not have standing to

raise the instant appeal and that the trial court had the authority to direct that the settlement be

accepted and properly exercised that authority. Without addressing Northwestern's cross-appeal

regarding the return of settlement proceeds if the settlement is set aside, George Jr. asks that we

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affirm the settlement and judgment of the trial court.

Finally, petitioner-appellee, the law firm of Cochran, Cherry, Givens, Smith &

Montgomery, LLC (Cochran), which represented Linda as coadministrator of the Estate,2 has

filed an appearance and brief in the instant appeal. The trial court's settlement and judgment

ordered the payment of one-third of the portion received by Linda to Cochran, which she had

discharged shortly before the settlement was accepted and ordered. Respondents-appellants

Linda, George III and Hershel have devoted a portion of their brief on appeal to challenging this

ruling, contending that the trial court abused its discretion in awarding the one-third fee to

Cochran. While they ask that we vacate the fee award or, alternatively, that we reverse it and

remand for an evidentiary hearing on the sufficiency of the fee petition, Cochran maintains that the

trial court properly exercised its discretion and asks that we affirm the fee award.

For the following reasons, we dismiss the appeal with respect to Linda, George III and

Hershel in their individual capacities for lack of standing; we affirm the settlement and judgment

of the trial court with respect to Linda in her capacity as coadministrator, thereby rendering

Northwestern's cross-appeal moot; and we affirm the trial court's one-third fee award to Cochran.

2 Linda and George Jr., though coadministrators of the Estate, each had separate counsel

representing them in this capacity during the settlement negotiations. While Cochran represented

Linda, the law firm of Corboy & Demetrio, P.C. (Corboy) represented George Jr. Corboy is not

involved in the instant appeal other than in its capacity as appellate counsel for George Jr., in

conjunction with the law firm of Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C.

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BACKGROUND

On August 3, 2001, Rashidi Wheeler, a student and football player at Northwestern

University, died following a preseason conditioning drill during football practice. Rashidi had

never married and did not have any children at the time of his death; his mother and father, Linda

and George Jr.,3 were appointed coadministrators of his estate. On August 8, 2001, Linda signed

a contingency fee contract with Cochran, retaining that firm to represent her and agreeing to pay

it one-third of the gross amount of whatever she recovered for the death of her son.

Linda and George Jr., in their capacities as coadministrators, filed an amended complaint

on behalf of Rashidi's estate and his next-of-kin against Northwestern, alleging survival and

wrongful death claims.4 At this time, and throughout the entire litigation, Rashidi's estate

3 Linda and George Jr.'s union produced Rashidi and another son, George III. Linda Will

and George Jr. divorced long before Rashidi's death. Linda remarried and had a child (Hershel),

and George Wheeler, Jr. remarried and had two children (Matthew and Daniel Wheeler). 4 For the record, we note that Linda was first appointed independent administrator of the

Estate and, later, George Jr., represented by Corboy, moved to vacate this appointment as he too

sought to be an administrator. These parents agreed to become coadministrators and filed the

amended complaint against Northwestern together to reflect this. Cochran and Corboy agreed to

act as co-counsel for the Estate, with each to receive one-third of the recovery of the litigation,

whether by judgment or settlement, in proportion to the determination of allocation to the heirs of

Rashidi's Estate, with Cochran to receive one-third of the funds received by Linda and her sons

George III and Hershel, and with Corboy to receive one-third of the funds received by George Jr.

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consisted of six heirs: three adults--Linda, George Jr., George III (Rashidi's brother), and three

minor children, each of whom was a half-brother of Rashidi--Hershel, Matthew Wheeler and

Daniel Wheeler. None of these people filed any individual claim against Northwestern or any

other defendant. Northwestern denied liability in the death of Rashidi and filed claims against

multiple third-party defendants, who also denied liability.

In the meantime, Linda discharged Cochran and retained another firm to represent her.

However, within four months, she discharged that firm and again retained Cochran.

The cause proceeded through four years of discovery, which saw Cochran taking some 24

depositions, the removal of one defendant to bankruptcy court in New Jersey, and remand to the

circuit court of Cook County. Ultimately, the cause culminated in an extensive mediation before

Cook County Circuit Court Chief Judge Donald O'Connell. In March 2005, the parties reached

an understanding that if Linda and George Jr. as coadministrators made a demand of $16 million

in exchange for a settlement of all claims, Northwestern would accept the demand and pay this

amount. While Corboy and Cochran recommended that the coadministrators make the demand

and while George Jr. filed an affidavit stating that he wanted to make the demand, Linda objected.

At this point, Linda again discharged Cochran and refused to make the demand upon

Northwestern.

Due to this, and because three of the Estate's heirs were minors, the trial court appointed a

guardian ad litem to represent Hershel, Matthew Wheeler and Daniel Wheeler, and ordered him

and his sons Matthew and Daniel Wheeler. Other than this, Linda's contingency agreement with

Cochran did not change, but remained the same throughout the litigation.

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to investigate the proposed settlement to determine if it was appropriate. In July 2005, the

guardian ad litem submitted his report to the trial court, finding the proposed settlement to be fair

and recommending that it be accepted, as this was in the best interests of the minor heirs. In the

report, the guardian concluded that not making the demand to Northwestern would be "waste and

mismanagement of the only significant asset of the Estate," that it would be "reckless to refuse to

make such demand and to subject all of the beneficiaries of the Estate to the risks of trial," and

that the "rights of the Minors to recovery in a substantial amount will be endangered by a refusal

to make such a demand." Noting that Linda was seeking nonfinancial terms in a settlement, such

as the erection of a memorial to Rashidi and counseling for his collegiate peers, the guardian

believed that this represented "vindication" which, in light of the proposed monetary settlement,

was not as important in relation to the best interests of the minor heirs. The guardian suggested

that the only way to effectuate the proposed settlement was for the trial court to direct him to

begin proceedings in probate court to remove Linda as coadministrator. However, the guardian

later informed the court that, according to case law, sending the cause to probate court was not

necessary, as the trial court had the authority to effectuate the settlement under the circumstances.

On August 15, 2005, the trial court adopted the guardian ad litem's report and issued a

memorandum opinion and order approving the settlement. The court, relying principally on Ott v.

Little Company of Mary Hospital, 273 Ill. App. 3d 563 (1995), noted that it had a duty to prevent

the rejection of settlement offers which, in the minors' best interests, should be accepted.

Although it sympathized with Linda on the loss of her son, the court made clear that when a suit

is brought for survival and wrongful death, it is prosecuted by the estate for the benefit of all the

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heirs, not for the individual benefit of the administrators. Thus, while Linda would have the right

to reject a settlement offer of her own accord, "this case does not belong to [her] alone" as "she is

not the only heir." The court declared that it had considered all the evidence, including the

guardian's report, the circumstances surrounding Rashidi and his death, and the nonfinancial relief

sought by Linda that "could never be awarded to her or the estate by any jury" (emphasis in

original) and which had prompted her to reject the settlement. It determined that the

recommended settlement was "a superb result for this litigation" and that there was "no

reasonable expectation that a better result could be achieved by further mediation" but, rather, "an

immense risk that the proposed settlement amount could be greatly diminished" if the cause

proceeded to trial. Ultimately, the court held that it was "in the best interests of the minor heirs

*** to approve and accept the proposed settlement," and that no proceedings in the probate court

were necessary. Accordingly, the court ordered that the proposed settlement of $16 million be

approved and stated that it would execute any required document on Linda's behalf to effectuate

it.

Following this, the Estate sent a demand letter in the amount of $16 million to

Northwestern for complete settlement of the cause; Northwestern accepted and sent release

documents to the Estate with the express term that no finding of liability was or had been made

pursuant to the settlement. In September 2005, George Jr. as coadministrator, Thomas Demetrio

of Corboy on behalf of the Estate, the guardian ad litem on behalf of the minor heirs Hershel,

Matthew Wheeler and Daniel Wheeler, and the trial court in the stead of Linda as coadministrator

executed the settlement papers; George III neither participated nor objected.

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In light of Linda's disapproval of the settlement and initial actions she took to appeal the

matter,5 Northwestern filed a motion asking the trial court to direct that the settlement amount

not be paid until any appeals had been exhausted and that interest on this amount not begin to

accrue until that time. In response, Linda filed a motion to vacate the settlement or, alternatively,

to compel the payment of the settlement amount plus interest pursuant to the terms of the

agreement. Meanwhile, Cochran filed an amended verified petition against Linda for attorney fees

in the amount of one-third of her recovery in accordance with the contingency agreement she had

signed at the time she retained the firm on behalf of herself, George III and Hershel.

On March 10, 2006, the trial court denied Northwestern's motion and, instead, as

requested by Linda in her motion, entered judgment against it for the settlement amount and

ordered it to pay the amount into an interest-bearing escrow account, with interest to accrue at

9% until the money was paid therein in full. Northwestern made the payment.

Also on that date, the trial court issued a memorandum opinion and order regarding,

among other things,6 the allocation of the settlement proceeds following a dependency hearing

5 The record reflects that Linda attempted to appeal the settlement at this time, but

mistakenly appealed from a nonfinal order of the trial court and, thus, her appeal was dismissed

for lack of jurisdiction. 6 Other items considered by the trial court on this date included the amount of

compensation to be awarded to the guardian ad litem and to the court-appointed discovery

monitor. Ultimately, the court awarded certain amounts as compensation in this regard; no one

has objected to these and they are not part of the instant appeal.

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that had been held earlier, as well as the determination of the amount of fees to be award to

Cochran on its petition. In addressing the allocation of the settlement proceeds, the trial court

first distinguished between survival and wrongful death causes of action, noting that recovery

under the former is distributed in equal shares under intestate rules while recovery under the latter

requires a review of the "pecuniary injuries" sustained by each next-of-kin. The court allocated

$665,000 as damages for survival and the remainder of $15,335,000 as damages for wrongful

death. Accordingly, each of the six heirs of Rashidi's estate was allocated an equal sum of

$110,833.33 under the survival claim.

Regarding allocation under the wrongful death claim, the court discussed the losses

sustained by the various heirs, as well as the personal circumstances existing at the time of

Rashidi's death between him and his heirs, as presented during the dependency hearing. The court

distributed the wrongful death proceeds by allocating 70% to Linda, 20% to George Jr., 5% to

George III, and 5% to Hershel. Matthew and Daniel Wheeler did not take under this portion of

the settlement.

Finally, regarding Cochran's amended verified fee petition, the trial court noted several

factors that it was required to consider, including the firm's skill, standing, and time and labor

expended; the nature of the cause; the novelty and difficulty of the subject matter; the customary

charge for the work performed and the resulting benefits to the client. The trial court found that

the petition's itemization of services was sufficient evidence upon which to make an award and

concluded, after reviewing several factors, that Cochran had "zealous[ly] prosecut[ed]" the

lawsuit, "culminating in mediation and achievement of a settlement that was 'phenomenal.' "

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Thus, the court held that Cochran was entitled to the full one-third recovery as per its contingency

contract with Linda, to be deducted from that portion of the settlement distributed to Linda,

George III and Hershel.

Following the order of the court, Northwestern filed a motion to modify the judgment,

requesting that the court enter express language therein to make clear that any settlement

proceeds and interest would be returned to Northwestern if the settlement were set aside on

appeal. Meanwhile, on April 18, 2006, Hershel attained the age of majority. On April 28, 2006,

the trial court denied Northwestern's motion without comment, stating later only that "if and when

the appeal is over, if it's affirmed, then we're going to come back and calculate the disbursements

according to the provisions of the decision ***. If it's reversed, then nobody gets nothing."

ANALYSIS

As noted earlier, there are multiple causes of action on appeal in the instant case, namely,

(1) the appeal from the trial court's order directing settlement, which includes causes filed by

Linda, George III and Hershel in their individual capacities and Linda in her capacity as

coadministrator; (2) Northwestern's cross-appeal from the trial court's April 28, 2006, order

denying its motion to modify; and (3) the appeal from the trial court's order of the one-third fee

award to Cochran. We will address each, and their accompanying arguments, separately.

I. Trial Court's Order Directing Settlement

Linda, George III and Hershel in their individual capacities, and Linda in her capacity as

coadministrator of the Estate, appeal from the trial court's order directing settlement in their

causes against Northwestern. Failing to disclose in their opening brief that Hershel was a minor at

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the time of the settlement, they assert that the court misused its power to force settlement on

behalf of the Estate's minors (Matthew and Daniel Wheeler) in derogation of their rights as "adult

litigants" to seek redress from the courts and to a trial by jury. Attempting to distinguish Ott, as

relied upon by the trial court in its order, Linda, George III and Hershel claim that there was no

"legitimate basis" for the settlement, calling it "unprecedented" and an "unmistakable violation of

Illinois law" mandating reversal and remand for a trial solely on damages. They further argue that

once the trial court determined that Matthew and Daniel Wheeler would not take under the

wrongful death action, it should have vacated the settlement so that the adult beneficiaries could

have pursued their claims against Northwestern as they wished.

Northwestern, for its part, and along with George Jr., counters these contentions with the

initial argument that Linda, George III and Hershel, for various reasons, do not have standing. In

addition, Northwestern and George Jr. claim that the trial court did have authority to direct that

the settlement be accepted and properly exercised that authority, since Linda owed a fiduciary

duty to the Estate as coadministrator and since, pursuant to Ott, the trial court had a duty to

protect the interests of the minors. Northwestern further clarifies that, even were Linda, George

III and Hershel to prevail here, the appropriate remedy would be a vacation of the trial court's

judgment and remand for a trial on all issues, as Northwestern's liability was never established.

A. Standing

As a threshold matter, we examine the issue of standing. Linda, George III and Hershel

filed appeals in this cause in their individual capacities. However, none of them were parties of

record to the underlying cause of action in their individual capacities; rather, they were part of a

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group for whose joint benefit the cause was being brought. That is, the underlying cause involved

a wrongful death action, which asserts a claim on behalf of the next-of-kin that death resulted to

the decedent from a wrongful act, neglect or default (see Mio v. Alberto-Culver Co., 306 Ill. App.

3d 822, 825 (1999)), and a survival action, which asserts a claim for any action that would

otherwise be possessed by the decedent (see Howe v. Clark Equipment Co., 104 Ill. App. 3d 45,

50 (1982)). Illinois law has long made clear that, under both of these, the cause of action must be

brought by and in the name of the representative or administrator of the decedent's estate. See,

e.g., Miller v. Pinkney, 164 Ill. App. 576 (1911); see Mio, 306 Ill. App. 3d at 826, quoting

Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 361 (1995) ("[t]he personal

representative of the decedent 'must bring a single action on behalf of the class beneficiaries to

avoid multiple lawsuits' "); accord Pruitt v. Jockisch, 228 Ill. App. 3d 295, 299 (1992); see also

Rodgers v. Consolidated R.R. Corp., 136 Ill. App. 3d 191, 193 (1985) (wrongful death action

must be brought by and in name of representative of estate), Addison v. Health & Hospital

Governing Comm'n, 56 Ill. App. 3d 533, 535 (1977) (same); Wilmere v. Stibolt, 152 Ill. App. 3d

642, 646 (1987) (only administrator or executor of estate can maintain survival action), Howe,

104 Ill. App. 3d at 50 (same), Real v. Kim, 112 Ill. App. 3d 427, 432 (1983) (same). It is to this

administrator that the right of action accrues and it is this administrator who possesses the sole

right of action or control over the suit; the beneficiaries or heirs have neither a right of action nor

any control. See Mio, 306 Ill. App. 3d at 826, citing Rodgers, 136 Ill. App. 3d at 193; accord

Szymakowski v. Szymakowski, 185 Ill. App. 3d 746, 748 (1989); Addison, 56 Ill. App. 3d at

535; see also In re Estate of Harnetiaux v. Hartzell, 91 Ill. App. 2d 222, 227 (1968) (the right to

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institute a wrongful death action and to settle it "is with the personal representative of the

deceased and not with an heir"), Wilmere, 152 Ill. App. 3d at 646 (same for survival action); see,

e.g., Miller, 164 Ill. App. 576. Simply put, wrongful death and survival actions do "not create an

individual right in a beneficiary to bring suit." Rodgers, 136 Ill. App. 3d at 193; accord Mio, 306

Ill. App. 3d at 826; Wilmere, 152 Ill. App. 3d at 646.

In the instant case, suit was filed against Northwestern for wrongful death and survival

claims by the representatives of Rashidi's estate, namely, Linda and George Jr., as

coadministrators. It was to these two people in their coadministrative capacities, then, that these

causes of action accrued, and it was these two people in their coadministrative capacities who

possessed the sole right of action and control over the cause. Accordingly, Linda, George III and

Hershel, as individuals and beneficiaries to Rashidi's estate, had no right to bring suit against

Northwestern and, thus, were not parties to the underlying cause because they did not have

divisible or independent causes of action. And, ultimately, if they in their individual capacities

were not parties to the underlying cause, they in their individual capacities cannot be parties to the

instant appeal. Therefore, we find that they do not have standing and we dismiss their appeals.

See Rodgers, 136 Ill. App. 3d at 193 (parents of decedent had no right as beneficiaries to bring

own wrongful death suit simply because they alleged to suffer injury); Wilmere, 152 Ill. App. 3d

at 646 (parents and brothers of decedent as beneficiaries lacked standing to bring survival action).

This leaves Linda in her capacity as coadministrator. We find that, while we must dismiss

her claim in her individual capacity along with those of George III and Hershel, she properly filed

the instant appeal in her representative capacity of Rashidi's estate. See Mio, 306 Ill. App. 3d at

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826, and Wilmere, 152 Ill. App. 3d at 646 (representatives of deceased's estate have right to file

wrongful death and survival actions).

Northwestern argues, however, that Linda lacks standing even in her capacity as

coadministrator because of certain actions she took following the court's order of settlement.

Northwestern points to that fact that when it moved the court to direct that the settlement amount

not be paid until any appeals had been exhausted and that interest not begin to accrue, Linda filed

a motion in response to vacate the settlement or, alternatively, to compel the payment of the

settlement amount plus interest pursuant to the terms of the agreement. Northwestern claims that

the alternative portion of Linda's motion, as well as the trial court's subsequent decision ordering

Northwestern to immediately make payment as she asked, demonstrates that Linda acted

inconsistently by demanding performance while also objecting to the settlement as a whole and

that, accordingly, she waived her right to appeal by "accepting the fruits of the settlement order."

We disagree. As a practical matter, and in contrast to each of the cases Northwestern

cites in support of its argument here, Linda never received any portion of the $16 million

settlement and never asked the court for access to it. Cf. Davis v. Casey, 361 Ill. App. 3d 658

(2005) (party cashed insurance check but also sought appeal); Wilson v. Fullerton, 332 Ark. 111,

964 S.W.2d 208 (1998). To the contrary, she has objected to the settlement amount and terms at

every turn of the litigation process. The alternative portion of Linda's motion simply demanded,

in response to Northwestern's motion, that payment of the settlement and interest not be delayed

in accordance with the trial court's prior decision, which ordered that the $16 million be paid into

an interest-bearing escrow account. It is not our view, as Northwestern asserts, that Linda

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"initially object[ed ] but subsequently embrac[ed]" a ruling. Rather, in her coadministrative

capacity, Linda, through her motion, was exercising her fiduciary duties to insure that Rashidi's

estate would be protected pending her attempts at appeal, i.e., that Northwestern would be made

to pay the money it owed as agreed in the settlement and as ordered by the court and that interest

would accrue thereon for the Estate's beneficiaries were she to be unsuccessful in future

challenges to the validity of the settlement. See, e.g., In re Estate of Lashmett, 369 Ill. App. 3d

1013 (2007) (representative of estate has fiduciary duties to beneficiaries); accord In re Estate of

Lis, 365 Ill. App. 3d 1 (2006) (administrator must act in best interests of estate). Accordingly, we

find that Linda has standing as a coadministrator of Rashidi's estate to assert the instant appeal.

B. Ott and the Trial Court's Authority to Direct Settlement

We now turn to the merits of Linda's appeal. As noted earlier, the essence of her claim is

that the trial court did not have the power to accept the settlement and execute the settlement

documents in her name; she asserts that the court's actions here erroneously forced settlement in

derogation of the rights of the "adult litigants," namely, her, George III and Hershel, to seek

redress and to a trial by jury. We wholeheartedly disagree, finding that, for various reasons, the

trial court did indeed have the power to accept and execute the settlement between Rashidi's

estate and Northwestern and that it exercised this power properly in light of the circumstances

presented in the instant cause.

First, we again note the unique relationship involving Linda and George Jr. as

coadministrators, the Estate, and the trial court here. Linda and George Jr. had a duty to perform

the tasks associated with administering the Estate; i.e., they were to carry out the wishes of the

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decedent and, more importantly, to act in the best interest of the Estate which they together

represented. See Lis, 365 Ill. App. 3d at 10. This required them, as administrators, to uphold

their fiduciary relationship to the Estate's beneficiaries and to act in the utmost good faith to

protect their interests, exercising at the very least that degree of skill and diligence any reasonably

prudent person would devote to her own personal affairs. See Johnson v. Provena St. Therese

Medical Center, 334 Ill. App. 3d 581, 590 (2002); In re Estate of Heater, 266 Ill. App. 3d 452,

455 (1994). Ultimately, Linda and George Jr.'s function as administrators was to administer the

assets of Rashidi's estate to the end that any debts or obligations he had were paid and all his

beneficiaries received their just and proper benefits in an "orderly and expeditious manner." In re

Estate of Greenberg, 15 Ill. App. 2d 414, 424 (1957).

In addition to the obligations the administrator owes to the estate's beneficiaries, the

administrator has legal duties to the court. See Lashmett, 369 Ill. App. 3d at 1017. This is

because courts have the responsibility to oversee the administration of estates and to approve the

actions of an estate's administrators. See In re Estate of Wolfner, 58 Ill. App. 2d 423, 430

(1965). Thus, the powers of an administrator are derivative of the powers of a court, so that the

administrator is essentially acting as an agent of the court pursuant to its control and direction.

See Lashmett, 369 Ill. App. 3d at 1017. Accordingly, the administrator's conduct is subject to

review by the court. See Greenberg, 15 Ill. App. 2d at 424 (a court is to review any conduct of

administrator "detrimental to [her] end" of paying estate's debts and distributing benefits orderly

and expeditiously).

As a personal representative of Rashidi's estate working not on her personal behalf but on

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that of others, Linda, then, was an agent of the court subject to the court's control and direction.

She was to work in the best interests of Rashidi's estate and use the utmost good faith to protect

the interests of his six beneficiaries. Principally, Linda's duties as coadministrator were to pay off

Rashidi's debts (if any) and to insure that his beneficiaries received their just benefits from his

estate quickly.

Clearly, Linda's duties did not include an attempt to satisfy her own personal interests; yet,

that is precisely what occurred here and what prompted the trial court to intervene. Linda's

dissatisfaction with the settlement offered had nothing to do with the adequacy of the amount

suggested by Northwestern as a demand and ordered by the trial court. Rather, Linda refused to

accept the $16 million settlement because it did not include non-monetary items which she, alone,

insisted upon, particularly, that Northwestern erect memorials to her son and that it offer

counseling to all those who were present when he died. Yet, these non-monetary items could

never be ordered by any court, as the purpose of wrongful death and survival actions is to provide

beneficiaries with the pecuniary benefits they would have received from the deceased had his life

continued, not with non-monetary items. See Johnson, 334 Ill. App. 3d at 592; see also Williams

v. Manchester, 372 Ill. App. 3d 211, 222-23 (2007) (purpose of wrongful death claim is to

compensate for pecuniary losses sustained due to death); Patch v. Glover, 248 Ill. App. 3d 562,

573 (1993) (recoverable damages under survival action are "those compensatory damages which

the decedent would have been entitled to had he prosecuted the claim"). As the trial court noted,

this was not Linda's case alone; were it, her desires to reject the settlement in favor of what she

herself wanted would be her prerogative and her legal right, no matter what the risk. But the

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cause belonged to the Estate, not to Linda. Her conduct of continuing to insist on these non-

monetary items, which were otherwise unobtainable via any court proceeding, was in direct

opposition to coadministrator George Jr.'s desire to accept the settlement and was preventing

Rashidi's beneficiaries from expeditiously receiving their entitled benefits. Accordingly, it was

proper for the trial court, which had the ultimate authority to oversee Rashidi's estate, to review

Linda's actions as administrator. See Lashmett, 369 Ill. App. 3d at 1017; Wolfner, 58 Ill. App. 2d

at 430; accord Greenberg, 15 Ill. App. 2d at 424.

Second, and perhaps even more significant than these relational duties, the trial court had

the power to accept the settlement and execute the documents here because minors were involved

and affected by the outcome of the settlement proceedings.

It is well established that the rights of minors are to be carefully guarded. See Villalobos

v. Cicero School District 99, 362 Ill. App. 3d 704, 712 (2005); Ott, 273 Ill. App. 3d at 570 (this

is the public policy of Illinois). When involved in any sort of litigation, a minor is deemed a ward

of the court and the court "has a duty and broad discretion to protect the minor's interests." Ott,

273 Ill. App. 3d at 570-71; accord In re Tyrese J., No. 1-07-1078, slip op. at 25 (September 21,

2007) ("[w]e hold that the circuit court has an obligation to intervene when a minor's

representative fails to protect his interests"); First National Bank of LaGrange v. Lowrey, 375 Ill.

App. 3d 181, 204 (2007). This includes the duty to approve or reject any settlement agreement

proposed on the minor's behalf. See LaGrange, 375 Ill. App. 3d at 204; Ott, 273 Ill. App. 3d at

571. Neither a guardian of the minor's estate, nor his next friend or court-appointed guardian, nor

even his parents have any legal right to settle the minor's cause of action unless and until the court

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reviews the settlement and approves it. See Ott, 273 Ill. App. 3d at 571 (none of these has any

legal right to settle minor's cause; court review and approval of a settlement reached, even by

parent, is "mandatory"); accord Villalobos, 362 Ill. App. 3d at 712; Smith v. Smith, 358 Ill. App.

3d 790, 793 (2005); Wreglesworth v. Arctco, Inc., 316 Ill. App. 3d 1023, 1027 (2000).

When the court believes settlement to be in the minor's best interest, it may order a

guardian or conservator to effectuate the settlement. See LaGrange, 375 Ill. App. 3d at 204; Ott,

273 Ill. App. 3d at 571. If that person refuses to carry out the settlement in contradiction to the

court's determination, the court may appoint a guardian ad litem to settle the case on the minor's

behalf. See Ott, 273 Ill. App. 3d at 571-73, citing Davis v. Mather, 309 Ill. 284 (1923)

(appointing such when conservatrix of estate refused to follow court's best interest determination

for involved minor), and Lyons v. Whittington, 109 Ill. App. 3d 197, 202 (1982) (holding that

courts have "authority to order the compromise of litigation involving minors when settlement is

in the best interest of the minor"). Thus, concomitant with the general policy favoring

compromise and settlement is the principle that, while any adult plaintiff can voluntarily reject a

settlement no matter how advantageous, the same is not true in the case of minors. See Ott, 273

Ill. App. 3d at 573. Rather, when a minor is involved, "the *** court has a duty to prevent the

rejection of settlement offers which in the minor's best interests should be accepted" and, should

this impede upon the minor's guardian or parents' ability to control the direction of the case, then

so be it. Ott, 273 Ill. App. 3d at 573.

We further clarify that the court's authority to perform its duty in this regard extends only

to those cases where the evidence demonstrates that compromise is in the best interest of the

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minor. See Ott, 273 Ill. App. 3d at 573. Accordingly, the court is permitted to review the parties'

positions and the wishes of the minor's parents, analyze their potential strengths and weaknesses,

and estimate probabilities of liability and damage awards. See LaGrange, 375 Ill. App. 3d at 204;

Ott, 273 Ill. App. 3d at 573. Ultimately, "[w]hen the court has made such an examination and has

determined that settlement, rather than the uncertainties of trial, is in the best interest of the

minor, and when that determination is supported by the record, it will be affirmed." Ott, 273 Ill.

App. 3d at 574, citing Matthews v. Doner, 292 Ill. 592 (1920) (appellate court will affirm such

finding), and Hudson v. Thies, 35 Ill. App. 2d 189 (1962) (decision of trial court to approve such

settlement lies in its discretion and will not be overturned absent abuse).

Contrary to Linda's attempts to distinguish Ott, we find that this case, which the trial court

here relied upon in making its decision to effectuate the instant settlement, is on point with the

circumstances presented and that its holding is directly applicable. In Ott, the parents of a minor

filed a medical malpractice action on her behalf as the coguardians of her estate. They demanded

$4.5 million to settle the suit and rejected all other offers made by the defendants. During a pre-

trial conference to initiate settlement, the trial court suggested a $2 million present cash value

settlement. The defendants agreed to this, offering a structured settlement to the estate that

would yield a minimum of approximately $5.5 million and a maximum of $21 million, if the minor

lived her normal life expectancy. The court met with the parents multiple times to explain its

belief that this was a good settlement offer for the estate in light of the risks of trial, but the

parents expressly refused to accept the offer. The court appointed a guardian ad litem on behalf

of the minor, with instructions to review the discovery materials submitted in the cause and the

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proposed offer. In his report, the guardian ad litem concluded that, due to the risks of trial and

the gamble they presented, acceptance of the offer was in the best interest of the minor. The

court adopted the report, found the settlement to be in the best interest of the minor, and ordered

the guardian ad litem to execute all necessary documents to settle the case, over the parents'

objections. See Ott, 273 Ill. App. 3d at 565-70.

On appeal, the parents argued, in part, that the trial court improperly coerced settlement

of the cause by removing control of the minor's case from their control as parents and guardians

of the estate and, thus, deprived them of their right to trial. The Ott court held that the trial

court's determination that the settlement as offered was in the best interest of the minor and its

action of executing that settlement over the objection of the parents and guardians of the estate

were proper exercises of its powers. See Ott, 273 Ill. App. 3d at 574. In affirming the settlement

as ordered, the Ott court reviewed the same principles we outlined above, specifically that, in the

case of a minor, the trial court has a duty to prevent the rejection of settlement offers which in the

minor's best interest should be accepted, regardless of whether this impedes upon the minor's

parents or guardian of the estate's ability to control the cause and its resolution. See Ott, 273 Ill.

App. 3d at 573. The Ott court then analyzed the evidence presented to determine whether it

supported the trial court's conclusion that the settlement was in the minor's best interest. It noted

that the court had reviewed all the parties' position, including the wishes of the parents, who had

been appointed guardians of the estate, the guardian ad litem's report, important legal factors such

as proof of causation, average jury verdicts in similar cases and the admitted sincerity of the

parents to obtain the most compensation possible for the minor. See Ott, 273 Ill. App. 3d at 574.

22 Nos. 1-06-1566, 1-06-1642 and 1-06-1643 (cons.)

In light of the trial court's thorough examination, the Ott court concluded that its ultimate

determination and actions in accepting the settlement on the estate's behalf were not an abuse of

discretion. See Ott, 273 Ill. App. 3d at 574.

Although the instant case involves wrongful death and survival actions rather than a

medical malpractice action as in Ott, we find that it mirrors that case and merits the same result.

At the time Northwestern proposed the settlement demand to the Estate, three of six of Rashidi's

beneficiaries were minors: Hershel (who was a minor at the time of the settlement offer and until

it was executed and allocated), Matthew and Daniel. Accordingly, they were wards of the trial

court and court had a duty and the broad discretion to protect their interests in the Estate and the

resolution of this lawsuit. Neither Linda as the mother of Hershel, nor George Jr. as the father of

Matthew and Daniel, nor these two in their capacities as coadministrators of the Estate or

guardians of these minors, had the legal right to control Hershel, Matthew or Daniel's cause of

action against Northwestern or its resolution; rather, this was subject to mandatory review by the

trial court.

Once the settlement offer was made here, the trial court ordered that a guardian ad litem

be assigned on behalf of the three minors to review whether settlement would be in their best

interest. The guardian determined that this was indeed the case and submitted a written report to

the court which examined the discovery evidence, conferences with the parties, jury verdicts in

similar cases, the mediation conducted by Judge O'Connell and the risks of trial, concluding that

refusal of the proposed settlement amounted to waste and mismanagement of Rashidi's estate. In

addition to adopting the guardian's report, the trial court considered several other factors involved

23 Nos. 1-06-1566, 1-06-1642 and 1-06-1643 (cons.)

in this cause. For example, the court examined the decedent and the circumstances surrounding

his death, noting Rashidi's age, the fact that he left no dependents, his employment status, and his

potential future earnings. The court had also been presented with the discovery evidence, which it

investigated of its own accord. The court weighed the risks of trial, commenting that there was

no expectation that a better result could be achieved at trial but, rather, that it was more likely

that the proposed settlement amount could be greatly diminished if the case were tried, either by a

contrary or decreased verdict and/or by the additional costs that the Estate would incur. And,

while it sympathized greatly upon the loss of her son, the court could not ignore that Linda's

objection to the settlement rested on her desire to obtain non-monetary items that no trial verdict

could award her and that all those involved in procuring the settlement, including coadministrator

George Jr., his and Linda's attorneys, Judge O'Connell and the guardian ad litem, felt it to be

proper.

Based on all this, we find that the trial court not only had the power to accept the

settlement and execute all pertinent documents, but that it did so properly and without any abuse

of its discretion. Linda, as the Estate's representative, refused to effectuate the settlement in

direct contradiction to the trial court's reasoned determination that the settlement was in the best

interest of the minor beneficiaries she had been entrusted to represent. While she as an adult

plaintiff would otherwise have the ability to reject any settlement no matter how advantageous to

her in an individual cause of action, this was not the case here, where we have already concluded

she did not have an individual cause. Rather, she stood in this cause as a coadministrator and, as

such, the trial court here had a duty to prevent the rejection of this settlement, which it determined

24 Nos. 1-06-1566, 1-06-1642 and 1-06-1643 (cons.)

to be in the best interest of the minors, regardless of whether it impeded her ability to control her

minor child Hershel or to direct the resolution of the case as coadministrator of Rashidi's estate.7

See Ott, 273 Ill. App. 3d at 573.

Linda argues, in reliance upon the guardian ad litem's written report, that the trial court

failed to remove her as coadministrator in compliance with the Probate Act of 1985 (Act) (755

ILCS 5/1-1 et seq. (West 2006)) and that, because of this, the court's acceptance of the settlement

should be reversed. However, this argument has no merit. While Linda provides us with general

rules regarding the method of removal of the representative of an estate pursuant to the Act, she

fails to submit any case law to support her contention that this method was required here. To the

contrary, Linda was never removed as coadministrator of Rashidi's estate, and the trial court made

clear that it had no intention to ever remove her as such. Rather, the court was exercising its

7 We note for the record that Linda filed a motion with this court on January 10, 2007, to

cite as supplemental authority J.H. v. Ada S. McKinley Community Services, Inc., 369 Ill. App.

3d 803 (2006), for the propositions that there was no legitimate basis for the trial court's action

and that she and her sons were deprived of their rights. However, following the filing of this

motion, Linda failed to cite J.H. anywhere in her argument contained in her briefs on appeal. We

mention here, for the purpose of maintaining a complete record, that we have reviewed J.H.,

which held that a trial court's order appointing a guardian ad litem for competent adult plaintiffs

pursuing their own cause of action was void. See J.H., 369 Ill. App. 3d at 819. J.H. has no

relevance to the instant cause, as the guardian ad litem here was appointed only on behalf of the

minor beneficiaries and not on that of any adult involved herein.

25 Nos. 1-06-1566, 1-06-1642 and 1-06-1643 (cons.)

powers as described in Ott to secure the settlement since minors were involved; other than

accepting the settlement as it was authorized to do, the trial court did not interfere with Linda's

status as coadministrator or her ability to care for and manage the Estate, which she in fact

retained. As we have discussed, Linda's rights to represent and appear on behalf of the Estate

were not exclusive, as her powers as coadministrator were derivative of the powers of the court.

See Lashmett, 369 Ill. App. 3d at 1017. Moreover, removal of Linda as coadministrator was not

a prerequisite for the trial court to exercise its powers to find that the settlement was fair for the

minors; rather, this is an inherent power and duty of the trial court when minors are involved in

litigation. See, e.g., Ott, 273 Ill. App. 3d at 570-74. Even the guardian ad litem recognized this

when, while commenting on his written report in open court, he stated that his original suggestion

that the cause be remanded to probate court for Linda's removal "was a cumbersome way" for the

court to exercise the powers it so clearly had to control the cause here. Thus, as Linda was not

removed, and as there was no need for such removal in order for the trial court to accept and

effectuate the settlement, the Probate Act and its provisions cited by Linda are inapplicable to the

instant cause.

Linda further argues that, "[o]nce the trial court determined that no minors' interest were

implicated in the [w]rongful [d]eath action," it should have vacated the settlement so that the

"adult" beneficiaries could have pursued their own claims. However, even as Linda admits, she

provides us with no case law to support this argument. In addition, Linda's repeated insistence

that Hershel was an "adult beneficiary" is wholly incorrect, as is her contention that because the

only minors--Matthew and Daniel--shared in that portion of the settlement allocated for the

26 Nos. 1-06-1566, 1-06-1642 and 1-06-1643 (cons.)

survival claim but did not receive any portion of the wrongful death proceeds, the court erred in

accepting the settlement. First, there was never any demand made here by any party or anyone

represented by the Estate that the survival and wrongful death actions be severed. To the

contrary, Linda and George Jr. brought these actions together and they were coadministrators of

the Estate regarding both of the claims, and the six beneficiaries were beneficiaries under both of

the claims. That Matthew and Daniel were later determined, after settlement and during the

dependency hearing, not to be "dependent enough" upon Rashidi to share in the proceeds

allocated under the wrongful death claim, is irrelevant--they still had a viable interest in both

claims which, again, had been brought together and on their behalf as beneficiaries. Second, even

were this not the case, at all times relevant to the settlement of this cause, from the moment the

parties arrived at the $16 million demand offer to the moment the court issued its final order on

distribution of that amount and during all the moments in between (when the court appointed the

guardian ad litem, when the guardian submitted his report, when the court accepted the

settlement, and when the court conducted the dependency hearing), Hershel was a minor. Thus, it

cannot be disputed that there was a minor whose interests here straddled both the survival and the

wrongful death claims, as Hershel ultimately took under both of these. Therefore, the trial court

had a duty to protect the minors' interests as implicated under both portions of the settlement.

Accordingly, and in conjunction with our thorough review of the record and the

circumstances presented here, we hold that the trial court had the power to accept and effectuate

the settlement on behalf of Linda as coadministrator of Rashidi's estate and that it did so properly,

without any error or abuse of discretion.

27 Nos. 1-06-1566, 1-06-1642 and 1-06-1643 (cons.)

II. Northwestern's Cross-Appeal

As noted earlier, Northwestern has filed a cross-appeal here, contending that the trial

court erred in failing to include certain express language in its judgment regarding the return of

the settlement proceeds to it if the settlement is set aside. That is, Northwestern claims that the

trial court's March 10, 2006, order should have included express language that any settlement

proceeds Northwestern had paid into escrow should be returned to it if the settlement were

reversed on appeal and, thus, that its motion to this effect should not have been denied by the

court in its April 28, 2006, order.

We recognize Northwestern's cross-appeal and its desire that were we to reverse or vacate

the judgment of the trial court accepting and effectuating the settlement, we remand this cause

with instructions to order the return of the settlement proceeds, with accrued interest, to it.

However, having determined that the trial court properly accepted and effectuated the settlement,

and thereby affirming this portion of the cause, Northwestern's cross-appeal is rendered moot and

we find it unnecessary to consider the merits of that claim. See Kurczak v. Cornwell, 359 Ill.

App. 3d 1051, 1062 (2005), citing Fine Arts Distributors v. Hilton Hotel Corp., 89 Ill. App. 3d

881, 885 (1980) (in affirming trial court's decision, cross-appeal was rendered moot and it was

not necessary to consider its merits); accord Forest Preserve District of Du Page County v. Miller,

339 Ill. App. 3d 244, 257 (2003) (based on resolution of the plaintiff's appeal, issues that the

defendant raised in cross-appeal are moot and need not be addressed); Mann v. Upjohn Co., 324

Ill. App. 3d 367, 379 (2001).8

8 We also find to be moot one other argument presented by Northwestern, though we wish

28 Nos. 1-06-1566, 1-06-1642 and 1-06-1643 (cons.)

III. Cochran's Fee Award

Finally, Linda appeals from the trial court's order of a one-third attorney fee award to

Cochran to be disbursed from the portion of the settlement she, George III and Hershel received.9

She challenges this determination on two grounds, insisting first that Cochran was not entitled to

a "full one-third" amount and to award the firm such a fee is tantamount to champerty, and

second, that Cochran's fee petition was legally and factually insufficient in that it listed only

general tasks and time spent on the cause with no accompanying descriptions to assess the fees'

reasonableness, in contradiction to Kaiser v. MEPC American Properties, Inc., 164 Ill. App. 3d

978 (1987). We disagree on both grounds.

Initially, we note that while Linda formats her appellate contentions regarding the issue of

to mention it for the record. Northwestern aptly points out in its brief on appeal that Linda asks,

on more than one occasion, that we remand this cause to the trial court for a trial on damages

only. Northwestern claims that, were remand to be appropriate, it must be for a trial on all issues

including liability, since there has been no resolution of fault here and since the express terms of

the settlement agreement explicitly denied liability. Yet, because we have already affirmed the

settlement herein and, thus, will not remand the cause, we need not address the merits of this

argument. 9 We note that this portion of the appeal originates via Linda as coadministrator and via

Linda, George III and Hershel in their individual capacities. Having found that these parties do

not have standing in their individual capacities, but that Linda does as coadministrator, we address

this portion of the appeal accordingly.

29 Nos. 1-06-1566, 1-06-1642 and 1-06-1643 (cons.)

attorney fees in this manner, we choose to address her second contention first. Although she

labels this assertion regarding the legal and factual sufficiency of Cochran's fee petition as the

"merits" of the issue, it actually involves threshold procedural concerns that should be discussed

first, with the propriety of the amount awarded accounting for the true merits of the issue.

Accordingly, turning first to the sufficiency of Cochran's fee petition, we note that Linda

rests on Kaiser, which she claims is the "seminal authority" and " 'bedrock' for dealing with issues

relating to the imposition of attorney[] fees." Excising a portion of that case, as well as of Mars

v. Priester, 205 Ill. App. 3d 1060 (1990), which relies on Kaiser, Linda points out the holdings of

these, namely, that a party seeking fees has the burden of presenting sufficient evidence from

which a trial court can determine their reasonableness, and that to justify a fee, more than a mere

compilation of hours multiplied by a fixed hourly rate or bills issued to the client must be

presented in order for the court to make such a determination. See Kaiser, 164 Ill. App. 3d at

984 (petition must specify the services performed, by whom they were performed, the time

expended and the hourly rate charged); accord Mars, 205 Ill. App. 3d at 1065 ("[i]t is incumbent

upon the petitioner to present detailed records" containing facts and computations upon which

charges are predicated).

However, while we wholeheartedly agree with Linda that these are the holdings of Kaiser

and Mars, we cannot agree with her that, based on these, Cochran's fee petition in the instant case

was insufficient. This is because, pursuant to Johns v. Klecan, 198 Ill. App. 3d 1013 (1990), it is

markedly clear that those cases are wholly inapposite from the instant one.

In Johns, the clients, who were involved in a suit arising from an automobile accident, had

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retained a law firm to represent them pursuant to a contingent fee agreement. The firm's

attorneys performed various services for these clients over several months, which included

conducting interviews, corresponding with insurers and physicians, participating in negotiations

and filing a complaint. Later, the clients discharged the firm and retained a new firm to prosecute

their claim, which resulted in a settlement. The original firm sought attorney fees for its work

under the contingent fee agreement, but was denied by the trial court which, relying specifically

on Kaiser, held that the firm's evidence was inadequate to determine a reasonable fee since the

firm did not provide enough detail surrounding the work performed or the time expended on the

cause. See Johns, 198 Ill. App. 3d at 1018.

On appeal, however, the reviewing court reversed the trial court's decision, directly

addressing Kaiser's holding. See Johns, 198 Ill. App. 3d at 1022-23. The Johns court noted that

the similarity of the case under review to Kaiser began and ended with the calculation of

reasonable attorney fees. See Johns, 198 Ill. App. 3d at 1023. Whereas the fee sought in Johns

originated from the firm's request based upon its contingent fee agreement with the clients, the fee

sought in Kaiser originated from a lease contract in which the parties had agreed that the lessees

would pay the lessor's legal fees, which were based on an hourly fee rate. See Johns, 198 Ill. App.

3d at 1022-23 (distinguishing Kaiser on this basis). The Johns court reasoned that, because the

attorney in Kaiser sought payment of his fee pursuant to a contract that outlined payment on an

hourly basis, and because only reasonable fees could be allowed, a determination by the trial court

required detailed records of facts and computations regarding the attorney's work; without these,

such a determination could not be made. See Johns, 198 Ill. App. 3d at 1019. The public policy

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supporting this lay in the consideration that without requiring attorneys under contract to provide

detailed records of their work and time, some of them--particularly those who did little or no

work prior to discharge--would be able to recover full contract fees, thereby raising the possibility

of excessive fees. See Johns, 198 Ill. App. 3d at 1019.

The difference in Johns, however, was that the firm was seeking recovery of fees pursuant

to a contingent fee arrangement with the client or a quantum meruit recovery of legal fees. See

Johns, 198 Ill. App. 3d at 1018. This proved key; the Johns court explained that, since time and

labor expended in a case is only one of several factors to be considered in determining reasonable

attorney fees under the doctrine of quantum meruit, then "the failure to account for the time spent

on a case in exacting detail" should not preclude the recovery of fees. Johns, 198 Ill. App. 3d at

1019. The Johns court continued by noting that the policy concern expressed in Kaiser regarding

excessive fees did not play a role in contingent fee situations because trial courts "can adequately

guard against that possibility without requiring that contingent fee attorneys account for the time

they spend on a case with the same specificity and exactitude of hourly fee attorneys." Johns, 198

Ill. App. 3d at 1019. Thus, while Kaiser was still viable law in those situations where attorney

fees were to be calculated on an hourly basis according to a noncontingency contract, the fact that

Kaiser "did not involve either a contingent fee arrangement or a request for a quantum meruit

recovery of fees in a contingent fee setting" rendered it to be "so inapposite *** as to be

inapplicable" to what occurred in Johns. Johns, 198 Ill. App. 3d at 1023.

The instant cause mirrors Johns. Cochran's request for attorney fees here originates from

its contingent fee agreement with Linda, which she signed on her behalf and that of George III

32 Nos. 1-06-1566, 1-06-1642 and 1-06-1643 (cons.)

and Hershel. Contrary to Linda's assertion on appeal, then, this cause is not like Kaiser, or Mars

for that matter, which both involved hourly rates and fee contracts but did not involve contingent

fee agreements. Cf. Kaiser, 164 Ill. App. 3d 978; Mars, 205 Ill. App. 3d at 1060 (attorney fees

were contractual, not contingent). Therefore, her argument that Cochran's award should be

reversed because its petition was insufficient due to a lack of detail regarding the work perform

and time expended has no merit. Rather, as the holding of Johns makes clear, Cochran was not

required to present such detail to establish its right to a reasonable fee since it based its action on

its contingent fee agreement and a claim of quantum meruit. See Johns, 198 Ill. App. 3d at 1024-

25 ("we hold that an attorney working on a contingency basis *** is not required to present

evidence as detailed as that required in Kaiser to establish his right to a reasonable fee under

quantum meruit in case of discharge"); accord Anderson v. Anchor Organization for Health

Maintenance, 274 Ill. App. 3d 1001, 1008 (1995) (fact that attorney did not maintain detailed

time records did not preclude right to recovery asserted under quantum meruit pursuant to

contingent fee agreement; rather, records presented sufficient evidence from which a trial court

could determine a reasonable fee for services).

Even were Johns and its progeny somehow distinguishable here and Kaiser were to be

followed as Linda insists, we nevertheless would conclude that her contention that Cochran's fee

petition is legally and factually insufficient is simply incorrect. As we noted above, Kaiser holds

that, to justify a fee, a party must present more than a mere compilation of hours multiplied by a

fixed hourly rate or bills issued; rather, the party must specify the services performed, by whom

they were performed, the time expended and the hourly rate charged in order for the trial court to

33 Nos. 1-06-1566, 1-06-1642 and 1-06-1643 (cons.)

make a determination regarding reasonableness. See Kaiser, 164 Ill. App. 3d at 984. Having

reviewed Cochran's amended fee petition contained in the record, we conclude, contrary to

Linda's assertion, that Cochran meets the requirements announced in Kaiser. The documents

Cochran attached to its petition are quite lengthy and outline exactly the tasks performed during

the litigation, as well as the dates they took place, the attorneys who performed them, and how

much time they expended on each task. Accordingly, we find that, even were we held to the

standard of Kaiser,10 Cochran presented more than sufficient evidence upon which the trial court

could make a determination of the reasonableness of its fees.

Having so concluded, we turn now to Linda's assertion that Cochran was not entitled to

the award it received, namely, a one-third fee amount. She claims that she had an absolute right

to terminate Cochran, which she did in response to her disagreement with the firm's suggestion

that she accept the proposed settlement. She further asserts that the trial court's order requiring

her to pay Cochran a one-third amount rendered her right to terminate meaningless and conferred

upon Cochran "superior control" and proprietary rights over her cause of action, tantamount to

champerty. Again, we disagree.

Linda is correct that, under Illinois law, a client has the right to terminate her attorney at

any time, with or without cause. See In re Estate of Callahan, 144 Ill. 2d 32, 37 (1991); Rhoades

v. Norfolk & Western Ry. Co., 78 Ill. 2d 217, 227-28 (1979); Wegner v. Arnold, 305 Ill. App. 3d

10 However, to make explicitly clear, we reiterate that the rule announced in Johns dealing

with contingent fee agreements, and not that announced in Kaiser which deals with hourly

contract rates, controls here.

34 Nos. 1-06-1566, 1-06-1642 and 1-06-1643 (cons.)

689, 693 (1999). When this occurs, as here, in a contingent fee agreement setting, the agreement

becomes void and the contingency term is no longer enforceable. See Callahan, 144 Ill. 2d at 40;

accord In re Estate of Horwitz, 371 Ill. App. 3d 625, 631 (2007) (agreement ceases to exist and

contingency term is not longer operative); Wegner, 305 Ill. App. 3d at 693.

However, a discharged attorney is entitled to be paid a reasonable fee on a quantum

meruit basis for services rendered before termination. See Rhoades, 78 Ill. 2d at 230; accord

Horwitz, 371 Ill. App. 3d at 631; Wegner, 305 Ill. App. 3d at 693; see, e.g., Callahan, 144 Ill. 2d

32 (cause of action for quantum meruit accrues in favor of attorney engaged on contingency fee

basis immediately upon discharge and prior to the resolution of the lawsuit); In re Estate of

Simmons, 362 Ill. App. 3d 944, 947 (2005) (this recognizes that it is possible for client to receive

legal services yet not be enriched in tangible way). As the term suggests, under this theory, a trial

court is literally to award the attorney " ' "as much as he deserves." ' " Wegner, 305 Ill. App. 3d

at 693, quoting Kannewurf v. Johns, 260 Ill. App. 3d 66, 74 (1994), quoting Lee v. Ingalls

Memorial Hospital, 232 Ill. App. 3d 475, 478 (1992); see Simmons, 362 Ill. App. 3d at 947

(proceeding in this manner protects the client's right to control his cause of action while affording

the attorney the right to be paid for services rendered). In making its determination, the trial

court should assess several factors, including the time and labor required, the attorney's skill and

standing, the nature of the cause, the novelty and difficulty of the subject matter, the attorney's

degree of responsibility in managing the case, the ususal and customary charge for that type of

work in the community, and the benefits resulting to the client. See Callahan, 144 Ill. 2d at 44;

accord Horwitz, 371 Ill. App. 3d at 632, Wegner, 305 Ill. App. 3d at 693, Johns, 198 Ill. App. 3d

35 Nos. 1-06-1566, 1-06-1642 and 1-06-1643 (cons.)

at 1020 (all citing same factors for consideration). In those cases where an attorney who has

done much work is fired immediately before settlement is reached, these factors involved in

determining a reasonable fee "would justify a finding that the entire contract fee is the reasonable

value of services rendered." Wegner, 305 Ill. App. 3d at 693; see also Rhoades, 78 Ill. 2d at 228.

Since this evaluation rests with the trial court, it has broad discretion in its determination,

particularly because of its close observation of the attorney's work and its deeper understanding of

the skill and time required in the underlying case. See Wegner, 305 Ill. App. 3d at 693. While the

burden of proof is upon the attorney to establish the value of his services (Callahan, 144 Ill. 2d at

44), the trial court "is not limited to the evidence presented in arriving at a reasonable fee but may

also use the knowledge it has acquired in the discharge of professional duties to value legal

services rendered" (Johns, 198 Ill. App. 3d at 1022). Ultimately, the trial court's decision will not

be reversed on appeal unless it has abused its discretion. See Callahan, 144 Ill. 2d at 44.

In the instant cause, the trial court noted that, with the exception of a period of time when

the matter was removed to New Jersey for a bankruptcy hearing and to another Cook County

court for administrative dealings, it had "the responsibility for this case during its entire

pendency." It observed that the Cochran attorneys who had worked on it are "well known" and

have "well established reputations and standing in the legal community." The court continued by

describing that the work they performed and the rates for their services were "more than

appropriate," particularly "given their tireless and devoted representation" to Linda, George III

and Hershel. It explained that the cause against Northwestern was "arduous," that multiple issues

were involved and that the proceedings had been complex. The court concluded its analysis by

36 Nos. 1-06-1566, 1-06-1642 and 1-06-1643 (cons.)

commenting that Cochran provided "stellar services," as exhibited by the benefit Linda, George III

and Hershel received, with Cochran's "zealous prosecution of this lawsuit[] culminating in ***

[the] achievement of a settlement" that was " 'phenomenal.' " From all this, the court determined

that the reasonable value for Cochran's services amounted to the entire one-third contracted fee.

Based on our review of the record, we find no abuse of trial court's discretion. While it

undoubtedly was Linda's prerogative to terminate Cochran (for the second time) in June 2005, the

circumstances presented here clearly support the court's conclusion that Cochran merited one-

third of the amount received by Linda, George III and Hershel in fees, according to the

contingency agreement, for the services it rendered during the time it represented them in the

underlying lawsuit against Northwestern. First, as the trial court noted, save for the brief removal

to other jurisdictions, it had primary responsibility and direct supervision of the case for the clear

majority of the litigation period. Therefore, the trial court had a wealth of knowledge regarding

several of the factors outlined above, including Cochran's skill and standing; the nature, novelty

and difficulty of the cause; and the benefit obtained by Linda, George III and Hershel from

Cochran's work--all of which the trial court addressed in its decision.

In addition to this, we note several facts that support the award. Linda retained Cochran

in August 2001, whereupon Cochran filed a complaint at law against Northwestern. Cochran

then worked with Corboy and George Jr., who wanted to be a coadministrator of Rashidi's estate,

to establish this relationship, arrive at an agreement regarding any future monetary outcome, and

file an amended complaint on Linda's (and George Jr.'s) behalf. Linda then discharged Cochran in

November 2001, but rehired the firm only approximately five months later in April 2002. From

37 Nos. 1-06-1566, 1-06-1642 and 1-06-1643 (cons.)

this time until the demand offer was suggested by Northwestern in March 2005, Cochran took

some 24 depositions, attended the bankruptcy proceedings in New Jersey, negotiated settlements

with several third-party defendants, prepared a mediation presentation, and presented this during

the extensive mediation proceedings that took place before Cook County Circuit Court Chief

Judge Donald O'Connell. As evidenced by Cochran's detailed fee petition, the firm spent

approximately 1,965.8 hours on the underlying cause over a 3½-year period, involving the time of

5 attorneys (including Johnnie Cochran himself), 2 paralegals and 3 law clerks.

Moreover, following Northwestern's proposal, Cochran reviewed the settlement demand,

determined it was advantageous to Linda, George III and Hershel, and suggested they accept it.

It was not until three months after this proposal, and only two months before the trial court

ordered it to be accepted, that Linda terminated Cochran for the second time in June 2005 upon

her disagreement with the firm's suggestion. Significantly, Linda did not retain new counsel after

she terminated Cochran and before the settlement was entered,11 and nothing changed regarding

the demand after the termination. That is, the settlement ordered was exactly the amount which

Cochran negotiated: $16 million. Also, mediator O'Connell, coadministrator George Jr., Estate

co-counsel Corboy, the guardian ad litem and the trial court all affirmatively declared at several

points during the litigation process that the settlement reached was, at the very least, favorable for

Linda. While Linda was displeased because the award would not include the non-monetary items

11 Following this discharge of Cochran, the trial court afforded Linda time to find new

counsel. Linda located an attorney who, after reviewing the record and the settlement proposal,

declined to represent her.

38 Nos. 1-06-1566, 1-06-1642 and 1-06-1643 (cons.)

she sought, such as memorials to her son and counseling to his peers (the majority of whom,

incidentally, most likely were no longer attending Northwestern after four years following

Rashidi's death), and she had every right to discharge Cochran, this did not change the fact that

Cochran performed a wealth of professional duties for which it should be reasonably

compensated.

Therefore, it is clear to us that Linda was enriched by Cochran's legal services and, under

the circumstances presented here, we will not reverse the trial court's justified determination that

Cochran merited the entire contract fee of one-third as the reasonable value of its services

rendered. See Wegner, 305 Ill. App. 3d at 693 (entire contract fee justified where attorney has

done much work and is fired immediately before settlement is concluded); see, e.g., Rhoades, 78

Ill. 2d at 228.

CONCLUSION

Accordingly, for all the foregoing reasons, we dismiss the appeal with respect to Linda,

George III and Hershel in their individual capacities for lack of standing; we affirm the settlement

and judgment of the trial court with respect to Linda in her capacity as coadministrator, thereby

rendering Northwestern's cross-appeal moot; and we affirm the trial court's one-third fee award to

Cochran.

Appeal dismissed as to Linda, George III and Hershel individually; appeal affirmed as to

Linda as coadministrator; cross-appeal of Northwestern mooted and not considered; appeal

affirmed as to Cochran.

TULLY and GALLAGHER, JJ., concur.