By: Donald C. Schiller
Schiller DuCanto & Fleck LLP
Chicago, Lake Forest and Wheaton, Illinois
Telephone: (312) 641-5560; Facsimile: (312) 641-6361:
Michelle A. Lawless
The Law Office of Michelle A. Lawless LLC
180 N. LaSalle St. Suite 3700 Chicago, Illinois
Telephone: (312) 741-1092
1. Appellate Court reverses trial court order pertaining to sealed file. In a post-judgment action involving Robert Kelly and Andrea Kelly, Chicago Public Media Incorporated (WBEZ) intervened for the purpose of requesting the court to unseal the case file. At issue in the appeal were portions of a pleading entitled “Combined verified motions to change custody and to terminate and/or modify visitation and to appoint evaluator and guardian ad litem” (“Motion”). The trial court determined that it was in the children’s best interest that certain paragraphs and the prayer for relief be redacted and ordered the Clerk’s office to do so. The Clerk did not precisely follow the redaction order and left certain paragraphs unredacted which WBEZ noticed when the file was released to the general public. After several discovery motions concerning WBEZ’s right to report on the paragraphs which were not redacted for a certain period of time after the Clerk’s office released the file, the trial court did not modify its original order and WBEZ appealed, challenging the redactions to Paragraphs 26-29 and the entire prayer for relief. The Appellate Court reversed the trial court. These specific paragraphs did not contain confidential information relating to the parties’ children’s medical care; they did not identify any specific child; and the prayer for relief cites standard request made in dissolution of marriage cases. The redactions, at best, protected Robert from embarrassment, which is an impermissible basis to withhold material from the public. Further, the Court noted that unflattering information relative to Robert’s conduct was already in the broad public domain. In re Marriage of Robert Kelly and Andrea Kelly, 2020 IL App (1st) 200130.
2. Motion to dismiss petition for fees brought in contract claim remanded for further inquiry regarding fee enhancement provision. Plaintiff law firm filed a complaint against its former client to recover fees in a divorce action pursuant to an engagement agreement. The firm charged the client a $100,000 retainer and billed (and the client paid) a total of $3.74 million in fees. The firm sought an additional $9.75 million in an enhanced payment provision under the engagement agreement which permitted the firm to charge for a reasonable enhancement taking into account various factors delineated in the Illinois Rules of Professional Conduct. The client filed a motion to dismiss which the trial court granted, reasoning the enhancement provision was contrary to public policy because it essentially contained a contingency fee provision in addition to an hourly-rate provision. The trial court stated, “The enhancement to the hourly-rate based fee was thus, at least partially, contingent on the outcome of the divorce proceeding in McHenry County.” The law firm filed a motion to reconsider which was denied, and the law firm appealed. The Appellate Court reversed relying partially on the case of In re Marriage of Malec, 205 Ill. App. 3d 273 (1990), wherein a fee agreement was reached where a final bill would be provided which would include a fee “in addition to hourly rates.” Because the trial court failed to consider the parties’ agreement or whether the firm was entitled to any additional fees under the “final bill” provision, its decision was in error. The Court noted that that the trial court found the provision in the fee agreement for a final bill was a contingency fee provision because it considered the results obtained or because the results obtained were in addition to the hourly fees. However, neither is a basis to reject the parties’ agreement. Instead, it reasoned the trial court should have given consideration to the parties’ agreement expressed in a written contract for the final bill, giving consideration to the relevant factors, including the results achieved to determine whether the firm “is entitled to any additional fees beyond the hourly fees that “must, nonetheless, satisfy the reasonableness requirement.” The Court remanded the matter to the trial court for consideration of those questions. Grund & Leavitt, P.C., v. Richard Stephenson, 2020 IL App (1st) 191074.
3. Primary decision-making and parenting time allocated to father upheld on appeal in contentious parentage case. In an acrimonious case where both parents had difficulties co-parenting, the trial court granted father decision-making with respect to the minor child’s education and medical decisions as well as the majority of overnight parenting time. The mother appealed and the Appellate Court affirmed. Father alleged significant mental health concerns by the mother and the mother alleged abusive behavior by the father, including anger issues. The Court noted that the evidence showed the there was a toxic relationship between the parties who were both responsible for some questionable decisions, and that most of the testimony presented by one side was contested by the other. Mother’s house situation was unstable and she had been the parent responsible for failing to ensure the child had her proper wellness check-ups and vaccines. The trial court also found father was more credible than mother. There was no indication in the record that the trial court failed to consider any of the relevant statutory factors when reaching its decisions. Eric Jameson v. Courtney Williams, 2020 IL App (3d) 200048.
4. Appeal encompassing emergency motion for injunctive relief dismissed for lack of jurisdiction. In a divorce action, wife brought an interlocutory appeal surrounding an emergency motion she filed alleging that her husband secretly amended his revocable trust to remove her as the success trustee and beneficiary a few months before he filed his petition for divorce. Husband filed a motion to dismiss which was granted and wife subsequently filed a motion to reconsider which was denied. While she moved the trial court for a Rule 304(a) finding, she also filed a notice of appeal and then a docketing statement in the Appellate Court that her appeal was filed pursuant to Rule 307(a)(1) which allows an appeal as of right for an interlocutory order of the court refusing an injunction. Husband filed a motion to dismiss in the Appellate Court because wife’s Rule 307(a)(1) interlocutory appeal was untimely and because the orders on the motion to dismiss were not final nor appealable. The Appellate Court allowed wife to amend her docketing statement to include Rule 304(b)(1) as a basis for appeal, and the trial court denied wife’s request for 304(a) language. The Appellate Court ultimately dismissed the appeal for lack of jurisdiction. Under Rule 307, a party is allowed to appeal an interlocutory order as long as the appeal is perfected within 30 days from the entry of the interlocutory order. Wife failed to timely file her notice of appeal and the filing of a motion for reconsideration did not toll the time for such filing. The Court also declined to exercise jurisdiction under Rule 304(b)(1) which has a narrow application and apply to order that are final in character although entered in comprehensive proceedings that include other matters. In re Marriage of Salviola, 2020 IL App (1st) 182185.