2016 IL App (2d) 150774
No. 2-15-0774
Opinion filed December 29, 2016
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the Circuit Court
GREGORY PHILLIP KANE, ) of Du Page County
)
Petitioner-Appellee, )
)
and ) No. 14-D-1199
)
HEATHER ANN KANE, )
)
Respondent-Appellee ) Honorable
) Linda E. Davenport,
(Michael D. Canulli, Appellant). ) Judge, Presiding
______________________________________________________________________________
JUSTICE SPENCE delivered the judgment of the court, with opinion.
Justices McLaren and Schostok concurred in the judgment and opinion.
OPINION
¶1 This dispute concerns fees sought by attorney Michael D. Canulli, who represented
petitioner, Gregory Phillip Kane, during a portion of his dissolution-of-marriage proceeding.
Upon withdrawing as counsel, Canulli filed against Gregory a petition for setting final fees and
costs pursuant to section 508(c) of the Illinois Marriage and Dissolution of Marriage Act (Act)
(750 ILCS 5/508(c) (West 2014)), and against respondent, Heather Ann Kane, a petition for
contribution pursuant to section 503(j) of the Act (750 ILCS 5/503(j) (West 2014)). In both
petitions, Canulli sought an award of approximately $48,000, which was in addition to the
$37,500 that he had already been paid. Following a full evidentiary hearing, the trial court
2016 IL App (2d) 150774
denied Canulli’s request for contribution from Heather, but it awarded Canulli $12,500 on his
petition against Gregory. Because the trial court’s rulings on the petitions were not an abuse of
discretion, we affirm.
¶2 I. BACKGROUND
¶3 Gregory and Heather were married in 1995 and have two minor children. In June 2014,
Gregory filed a pro se petition for dissolution of marriage. He thereafter retained Canulli on July
1, 2014. Canulli and Gregory’s written engagement agreement provided that, if Gregory had an
objection regarding any of Canulli’s billing statements, he would notify Canulli in writing within
seven days of receiving the statement; otherwise the objection would be considered waived.
Canulli filed his appearance on behalf of Gregory on July 23, 2014. On September 23, 2014, the
trial court entered an order awarding Canulli $37,500 in interim attorney fees, by way of a
Qualified Domestic Relations Order that partially liquidated Heather’s retirement account.
Canulli’s billing records indicated that from July 1, 2014, through September 23, 2014, he billed
Gregory approximately $35,000 in attorney fees. On January 15, 2015, Canulli filed a second
petition for interim fees, seeking an additional $72,000. According to the petition, said sum
would satisfy his then-unpaid fees of $37,000 and provide an additional retainer of $35,000.
¶4 On February 4, 2015, Canulli sent Gregory an email stating that his balance due was
nearly $43,000, and that he would be willing to stay on the case if Gregory and Heather entered
an agreed order to each receive $200,000 from Heather’s retirement account, and that Gregory
would have to further agree to use $90,000 to pay Canulli’s fees, with the surplus funds
constituting an additional retainer.
¶5 Gregory did not agree, and on February 10, 2015, Canulli filed an emergency motion to
withdraw as counsel, alleging an inability to communicate with Gregory and unpaid attorney
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fees. On February 13, 2015, the trial court granted Canulli’s request to withdraw his appearance
and also granted him leave to file fee petitions. Gregory represented himself pro se for several
weeks and then retained new counsel, who entered an appearance on April 23, 2015. Said
counsel continues to represent Gregory in this appeal.
¶6 Within the dissolution action, on April 15, 2015, Canulli filed against Gregory a petition
for setting final fees and costs pursuant to section 508(c) of the Act. Canulli also filed against
Heather a petition for contribution pursuant to section 503(j) of the Act. The engagement
agreement and 28 pages of itemized billing statements were among the exhibits attached to the
fee petitions. In both petitions, Canulli acknowledged that he had already been paid $37,500 in
fees, but he alleged that he was owed an additional $48,000.
¶7 On May 1, 2015, the trial court entered a judgment for dissolution of marriage, which
incorporated a marital settlement agreement and a joint parenting agreement. Said judgment
awarded Gregory and Heather joint legal custody of the children, awarded Heather primary
residential custody of the children, established a visitation schedule, and awarded Gregory
$27,000 in maintenance in gross.
¶8 The trial court held a day-long evidentiary hearing on Canulli’s fee petitions on July 2,
2015. The court took judicial notice of the court file and admitted into evidence Canulli’s 28
pages of itemized billing statements, which reflected that he had billed Gregory for 268.7 hours
from July 2014 until he withdrew in February 2015. At the hearing, Canulli testified, in relevant
part, as follows. He had practiced family law for 38 years. Gregory filed a number of pleadings
pro se, which Canulli agreed was not normal or customary. The total fees incurred in Canulli’s
representation of Gregory were $85,529.86, of which he had been paid $37,500. Canulli thus
sought the remaining balance of more than $48,000. Gregory and Heather had no ability to
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communicate or resolve any matters in the case, and “the case was litigious on both ends.”
Gregory was “unusually extraordinarily emotional” about the divorce. Gregory and Canulli
exchanged emails almost every day, and sometimes more than once a day. Canulli also testified
as to his billing practices that he recorded services contemporaneously when rendered and that he
reviewed each bill for accuracy before mailing it to Gregory.
¶9 On cross-examination, Canulli was questioned regarding billing entries that opposing
counsel asserted were unreasonable and unnecessary. Much of the hearing was spent going line-
by-line through these entries. Canulli was questioned regarding time that he billed to review
pleadings that, according to his billing statements, were filed by Heather when in fact no such
pleadings had been filed. Canulli also billed for drafting motions that were not noticed or
presented to the court and in some cases never filed. Canulli acknowledged that he did not
prepare for trial, nor did he prepare a trial notebook, parenting agreement, or marital settlement
agreement. On several days he billed more than 10 hours on Gregory’s case.
¶ 10 Gregory testified as follows. He was employed by the Illinois River Winery, a
corporation of which he was the sole shareholder and director and from which he drew an annual
salary of $18,000. Gregory was awarded the business by way of the parties’ marital settlement
agreement. The corporation had recently emerged from Chapter 11 bankruptcy, and Gregory
operated it judgment-free. The gross receipts for the winery in 2014 were approximately
$500,000, and its checking account contained approximately $3000. The winery owned the real
property it was situated on, but the property was encumbered by several loans, totaling
approximately $200,000. By way of the marital settlement agreement, Gregory was receiving
maintenance from Heather, and he also received approximately $225,000 from Heather’s
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2016 IL App (2d) 150774
retirement account. In April 2015, Gregory received $20,000 from the settlement of a personal-
injury claim.
¶ 11 Heather then testified as follows. She earned approximately $134,000 per year working
at the Nielsen Company, and she had received a bonus in excess of $40,000 in each of the prior
three years. By way of the marital settlement agreement, Heather received the marital residence,
which was valued at $355,000 but encumbered by a mortgage of $208,000 and a home-equity
line of credit that exceeded $200,000, both of which were solely Heather’s responsibility. The
marital residence was “under water.” After the payment of her legal fees and a distribution to
Gregory pursuant to the marital settlement agreement, her retirement account was worth
approximately $200,000. Also pursuant to the marital settlement agreement, Heather was
responsible for $43,000 of credit card debt incurred by the parties during the marriage. Heather
paid tuition for the younger child to go to private school. She was paying maintenance to
Gregory, and she was not receiving child support from him.
¶ 12 At the conclusion of the hearing, the court first observed that the parties stipulated to the
reasonableness of Canulli’s $304 hourly rate, which included a $9 administrative fee. In ruling
on the reasonableness of Canulli’s fees, the court found that “the majority of the work that was
done was not necessary nor [sic] reasonable.” The court agreed that Gregory was a “difficult”
client who “contacted [Canulli] a lot,” but it stated that Canulli encouraged Gregory’s “rogue
behavior” by fostering, tolerating, and aiding him in filing pro se petitions, “which did nothing to
control the litigation” and allowed Gregory to take “unreasonable positions.” The court noted
that only two hearings were held while Canulli was on the case and that no depositions were
taken. The court stated that Canulli’s billing statements, though very detailed, were “absolutely
form over content at some point because [there were] no substantive things being done in the
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case.” The court denied Canulli’s request for contribution from Heather, but it found that he was
entitled to a total of $50,000 from Gregory for his work on the case. As Canulli had already
been paid $37,500, the court awarded Canulli $12,500, to be paid by Gregory.
¶ 13 II. ANALYSIS
¶ 14 Before addressing the merits of the appeal, we must first address our own jurisdiction.
We previously dismissed this appeal pursuant to In re Marriage of Knoerr, 377 Ill. App. 3d 1042
(2007). Though no party had raised the issue, we discovered that a contempt petition filed by
Gregory remained pending in the trial court when Canulli filed his notice of appeal on July 31,
2015. As the appealed order lacked a finding, pursuant to Illinois Supreme Court Rule 304(a)
(eff. Jan. 1, 2015), that there was no just reason for delaying either enforcement or appeal or
both, we dismissed the appeal as premature. In the dismissal order, we commented that Illinois
Supreme Court Rule 303(a)(2) (eff. Jan 1, 2015) could potentially allow Canulli to establish the
effectiveness of his July 31, 2015, notice of appeal. Reiterating the procedure set forth in
Knoerr, we stated that, “if the trial court has already disposed of the [contempt] petition *** and
all other subsequently filed claims, if any, Canulli may file a petition for rehearing and to
supplement the record with the appropriate orders to establish our jurisdiction over this appeal.”
¶ 15 Canulli timely filed a petition for rehearing and supplemented the record with several
filings and trial court orders. Included in the supplemental record is an order entered on
September 14, 2015, that disposed of the contempt petition. Said order also disposed of a motion
for sanctions that Heather had apparently filed, and the order indicated that the case would be
taken “off call.” Though an additional motion appears in the supplemental record, it was filed
more than thirty days after the entry of the September 14, 2015, order, and it was disposed of on
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April 12, 2016. Thus, based on our review of the supplemental record, all matters in the trial
court appear resolved.
¶ 16 Pursuant to Illinois Supreme Court Rule 367(d) (eff. Mar. 8, 2016), we ordered Gregory
and Heather to respond to the petition for rehearing, and they make similar arguments in
opposition to it. Though they acknowledge that the contempt petition was resolved on
September 14, 2015, they assert that we still lack jurisdiction because Canulli did not file a new
or amended notice of appeal within 30 days of that date. They also argue that Rule 303(a)(2)
cannot be used to establish the effectiveness of the July 31, 2015, notice of appeal because, as a
“condition precedent” for the rule to apply, a timely postjudgment motion must have been filed
in the trial court. Rule 303(a)(2) provides, in pertinent part, as follows:
“When a timely postjudgment motion has been filed by any party, *** a notice of
appeal filed before the entry of the order disposing of the last pending postjudgment
motion, or before the final disposition of any separate claim, becomes effective when the
order disposing of said motion or claim is entered.” Ill. S. Ct. R. 303(a)(2) (eff. Jan. 1,
2015).
Gregory and Heather stress that Gregory’s contempt petition was not a postjudgment motion,
because it did not request at least one of the forms of relief contained in section 2-1203 of the
Code of Civil Procedure (735 ILCS 5/2-1203 (West 2014)), namely: rehearing, retrial,
modification of the judgment, vacation of the judgment, or other relief directed against the
judgment.
¶ 17 Though we agree that a postjudgment motion was not filed in this case, the absence of
such a motion does not preclude Rule 303(a)(2) from “saving” a premature notice of appeal
where the notice was filed before the final disposition of any separate claim that is later resolved.
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2016 IL App (2d) 150774
Indeed, this court has long interpreted Rule 303(a)(2) to allow the effectuation of a notice of
appeal upon the resolution of a pending claim—even in the absence of a postjudgment motion.
See, e.g., McMackin v. Weberpal Roofing, Inc., 2011 IL App (2d) 100461; People ex rel.
Madigan v. Illinois Commerce Comm’n, 407 Ill. App. 3d 207 (2010); Suburban Auto Rebuilders,
Inc. v. Associated Tile Dealers Warehouse, Inc., 388 Ill. App. 3d 81 (2009); In re Marriage of
Valkiunas, 389 Ill. App. 3d 965 (2008); Knoerr, 377 Ill. App. 3d 1042.
¶ 18 In Valkiunas, 389 Ill. App. 3d 965, we rejected an argument similar to the one that
Gregory and Heather now advance. There, the petitioner appealed orders that were entered on
February 8, 2008, and March 3, 2008—neither of which contained a Rule 304(a) finding. We
initially dismissed the appeal pursuant to Knoerr because, when the petitioner filed her notice of
appeal, two civil contempt petitions remained pending in the trial court. Id. at 966. Following
the procedure set out in Knoerr, the petitioner thereafter filed a petition for rehearing and
supplemented the record with an order entered on June 24, 2008, that disposed of both contempt
petitions. However, the supplemented materials also reflected that, on May 14, 2008 (after the
notice of appeal was filed), the respondent filed a motion to disqualify the petitioner’s attorney
and the motion remained pending as of the June 24, 2008, order. The petitioner contended that
her notice of appeal became effective when the contempt petitions were resolved, despite the
pendency of the motion. She further argued that the motion to disqualify her attorney was not a
postjudgment motion. Id. at 968.
¶ 19 In interpreting Rule 303(a)(2), we noted that there is “nothing magical about the date the
notice of appeal was actually filed, and the plain meaning of the rule is that the notice of appeal
‘becomes’ effective on the date the impediment to our jurisdiction is removed.” Id. We held
that, although one jurisdictional impediment was removed on June 24, 2008, the pendency of the
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motion to disqualify impeded our jurisdiction such that the notice of appeal was still premature.
Id. In so ruling, we rejected the petitioner’s argument—that Rule 303(a)(2) did not apply
because the motion to disqualify is not a postjudgment motion—because it ignored the
possibility that the motion was a separate claim under Rule 303(a)(2). We also noted that a
“pending claim” under Rule 303(a)(2) is the same as a “claim” under Rule 304(a), meaning any
“right, liability or matter raised” in an action, and that the motion to disqualify was a pending
“matter” raised in the action. Id.
¶ 20 Based on our practice of interpreting Rule 303(a)(2) to allow the effectuation of a notice
of appeal upon the resolution of a pending claim, and especially in light of Valkiunas, we reject
Gregory’s and Heather’s argument that Rule 303(a)(2) is inapplicable and we find that the notice
of appeal became effective on September 14, 2015—when the contempt petition was resolved.
As a result, we have jurisdiction over this appeal, and we accordingly grant the petition for
rehearing.
¶ 21 We now turn to the merits of the appeal. Section 508(c) of the Act sets forth the rules for
a final hearing for a trial court’s determination of attorney fees and costs against the attorney’s
own client after the attorney has withdrawn. The statute provides, in relevant part, as follows:
“The determination of reasonable attorney’s fees and costs *** is within the
sound discretion of the trial court. The court shall first consider the written engagement
agreement and, if the court finds that the former client and the filing counsel, pursuant to
their written engagement agreement, entered into a contract which meets applicable
requirements of court rules and addresses all material terms, then the contract shall be
enforceable in accordance with its terms, subject to the further requirements of this
subdivision (c)(3). Before ordering enforcement, however, the court shall consider the
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performance pursuant to the contract. Any amount awarded by the court must be found
to be fair compensation for the services, pursuant to the contract, that the court finds were
reasonable and necessary.” 750 ILCS 5/508(c)(3) (West 2014).
¶ 22 Section 503(j) of the Act addresses contribution from an opposing party toward attorney
fees and costs before a final dissolution-of-marriage judgment is entered. 750 ILCS 5/503(j)
(West 2014). Ordinarily, the primary obligation for the payment of attorney fees rests on the
party on whose behalf the services were rendered. In re Marriage of Hassiepen, 269 Ill. App. 3d
559, 569 (1995); In re Marriage of Mantei, 222 Ill. App. 3d 933, 941 (1991). However, section
503(j) allows the trial court to order one party to contribute to the other party’s attorney fees.
750 ILCS 5/503(j) (West 2014). Unlike section 508(c) of the Act, section 503(j) does not
expressly require that the amount awarded be “reasonable.” Nevertheless, the statute has been
interpreted to incorporate a reasonability requirement. In re Marriage of Hasabnis, 322 Ill. App.
3d 582, 596 (2001).
¶ 23 It is worth noting that, pursuant to section 503(j), Canulli’s request for contribution
should have been heard and decided prior to entry of the judgment for dissolution of marriage.
Nevertheless, it appears that no party raised the issue in the trial court, and any objection is thus
forfeited. The timing provisions of section 503(j), although mandatory, are not jurisdictional
prerequisites and they therefore may be forfeited. In re Marriage of Cozzi-DiGiovanni, 2014 IL
App (1st) 130109, ¶ 40; In re Marriage of Lindsey-Robinson, 331 Ill. App. 3d 261, 269 (2002).
¶ 24 In his brief, Canulli argues various theories as to which standard of review we should
apply to this case, and he seemingly advocates for a number of standards that span the spectrum
from de novo to abuse of discretion. However, when an appeal concerns an award of attorney
fees, we review it for an abuse of discretion. In re Marriage of Harrison, 388 Ill. App. 3d 115,
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120 (2009); Wildman, Harrold, Allen & Dixon v. Gaylord, 317 Ill. App. 3d 590, 595 (2000). All
reasonable presumptions are in favor of the action of the trial court, and, absent an affirmative
showing to the contrary, the reviewing court will assume that the trial court understood and
applied the law correctly. In re Marriage of Walters, 238 Ill. App. 3d 1086, 1102-03 (1992).
¶ 25 It is well established that the burden of proof is on the attorney to establish the value of
his services and that appropriate fees consist of reasonable charges for reasonable services. In re
Marriage of Shinn, 313 Ill. App. 3d 317, 323 (2000). In order to justify the fees sought, the
attorney must present more than a mere compilation of hours multiplied by a fixed hourly rate.
In re Marriage of Angiuli, 134 Ill. App. 3d 417, 423 (1985). Rather, the attorney must provide
sufficiently detailed time records that were maintained throughout the proceeding, and those
records must specify the services performed, by whom they were performed, the time expended
thereon, and the hourly rate charged. Shinn, 313 Ill. App. 3d at 323. The trial court should
consider a variety of additional factors when assessing the reasonableness of fees, such as the
skill and standing of the attorney, the nature of the case, the novelty and/or difficulty of the
issues involved, the importance of the matter, the degree of responsibility required, the usual and
customary charges for similar work, the benefit to the client, and whether there is a reasonable
connection between the fees requested and the amount involved in the litigation. Kaiser v.
MEPC American Properties, Inc., 164 Ill. App. 3d 978, 984 (1987). The trial court should
scrutinize the records for their reasonableness in the context of the case. McHugh v. Olsen, 189
Ill. App. 3d 508, 514 (1989). In ruling on the reasonableness of fees, the trial judge may also
rely on his or her own experience. Richardson v. Haddon, 375 Ill. App. 3d 312, 315 (2007);
Heller Financial, Inc. v. Johns-Byrne Co., 264 Ill. App. 3d 681, 691 (1994). When a trial court
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awards less than the amount requested in a fee petition, the court’s ruling should include the
reasons justifying a particular reduction. Richardson, 375 Ill. App. 3d, at 315.
¶ 26 Canulli asserts that the trial court’s award of attorney fees was erroneous for a number of
reasons. Though they appear in multiple sections of his brief, many of his arguments are but one
argument phrased in varying ways. We also observe that a number of paragraphs are repeated
verbatim in two sections of his brief. Canulli’s main contention on appeal is that, when the trial
court ruled on his fee petitions, it was required to (1) review each billing entry line-by-line; (2)
state with specificity which line items it found unreasonable; and (3) provide a specific
explanation to support each individual reduction. For these propositions, he relies heavily on
Fitzgerald v. Lake Shore Animal Hospital, Inc., 183 Ill. App. 3d 655 (1989).
¶ 27 Fitzgerald involved an action to recover possession of commercial property that was
leased to the defendant, and the sole dispute concerned when the defendant would vacate the
premises. The trial court granted summary judgment in favor of the plaintiff, who then sought
attorney fees pursuant to a fee-shifting provision contained in the lease. Id. at 658-59. The
plaintiff sought fees of approximately $50,000, but the trial judge awarded $25,000, and the
judge commented that the amount was “as probably a wild a guess [as he could] take.” Id. at
661. On review, the appellate court found that the award was unreasonably high and remanded
the matter for a hearing on the fees. Id. at 662. In so holding, the court commented that the trial
judge “did not make clear what billings he was striking as duplicitous or unnecessary,” but rather
took a “Solomonic” approach when he “clove the baby in two.” Id. The court stated that
“[w]ithout a full, complete and detailed hearing on this matter, and without a ruling on each
billing entry, *** there can be no way of determining what a reasonable fee might be in this
case.” Id. The court indicated that the case was not complicated, and it stated that “the usual and
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customary charge for a simple eviction case surely must be far less than the fee that was awarded
here, to say nothing of the one demanded.” Id.
¶ 28 We find Fitzgerald distinguishable. In Fitzgerald, when the trial court simply halved the
fees requested in the fee petition, it did so without the benefit of a full evidentiary hearing and it
candidly characterized the award as a “wild guess.” Id. at 661; see also Heller Financial, Inc. v.
Johns-Byrne Co., 264 Ill. App. 3d 681, 693 (1994). In the instant matter, the report of
proceedings makes clear that the parties engaged in an exhaustive hearing wherein Canulli’s
itemized billing statements were scrutinized by Gregory and Heather, as well as the trial court.
The sole subject of the hearing was Canulli’s request for fees, and indeed the trial court devoted
an entire day to the consideration thereof. Here, nothing suggests that the trial court took a “wild
guess” or acted arbitrarily when it awarded Canulli an additional $12,500 in fees from Gregory.
Further, the court did not take a “Solomonic approach” and simply halve the requested fees. The
report of proceedings demonstrates that the court was engaged, asked numerous pointed
questions, and gave due consideration to the fee petitions, as well as the billing statements
attached thereto.
¶ 29 It should also be noted that, despite Canulli’s assertion, Fitzgerald does not require the
trial court to review the attorney’s billing entries line-by-line and affirmatively strike those
individual entries that it deems unreasonable, nor does Fitzgerald require the court to provide a
“specific explanation supporting each reduction.” No court has cited Fitzgerald for such
propositions, and we decline to do so now. Though the Fitzgerald court remanded the matter for
a “ruling on each billing entry,” it is clear that the court directed the trial court to make such
evaluations and rulings in light of the particular facts of that case.
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¶ 30 In addition to Fitzgerald, Canulli cites a number of cases to support his “itemization”
argument. He prefaces this list of cases with the introductory signal “see,” which should be used
only when an authority clearly and directly supports the proposition for which it is cited. People
v. Gonzalez, 292 Ill. App. 3d 280, 287 (1997). Simply put, none of the additional cases requires
the trial court to review each individual billing entry line-by-line before striking any as
unreasonable. Patton v. Lee, 406 Ill. App. 3d 195 (2010), concerned a request for sanctions
under section 226 of the Illinois Domestic Violence Act of 1986 (750 ILCS 60/226 (West
2008)), based on allegedly false statements made in an emergency petition for an order of
protection. We affirmed the trial court’s denial of sanctions, because, among several other
reasons, the party seeking the sanctions did not itemize the costs that he believed were caused by
the false statements. Id. at 201. In re Marriage of Heindl, 2014 IL App (2d) 130198, concerned
the trial court’s denial of interim attorney fees. We held that the trial court did not abuse its
discretion in denying interim fees where the petitions were not verified and did not include any
affidavits or other support for the request. Id. ¶¶ 32-33. Canulli also cites Cholipski v. Bovis
Lend Lease, Inc., 2014 IL App (1st) 132842, but notably absent from that case is any discussion
of attorney fees. Finally, he cites McHenry Savings Bank v. Autoworks of Wauconda, 399 Ill.
App. 3d 104 (2010), which involved the amount of fees a bank was entitled to collect from a
guarantor of a promissory note that was in default. At the conclusion of the trial, the bank filed a
verified petition for attorney fees, detailing the services performed and the time spent by each of
the seven attorneys who represented the bank. Id. at 108. We held that the trial court did not
abuse its discretion in reducing from 58 to 30 the compensable hours the bank spent preparing
and trying the case. Though the bank offered an argument similar to that now advanced by
Canulli regarding itemization, we did not reach the issue, because the trial court offered a
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reasonable explanation for reducing the fees. Id. at 119. Thus, these cases do not support
Canulli’s itemization argument.
¶ 31 Canulli insists that, because attorneys must provide sufficiently detailed time records
when seeking fees, “in fairness” the trial court should have a corresponding duty to detail the
specific entries that it finds unreasonable. Although it is well established that the absence of
specificity with regard to task and time precludes a finding of reasonableness by the trial court
(In re Marriage of Broday, 256 Ill. App. 3d 699, 707 (1993)), we reject Canulli’s implicit
assertion that the presence of specificity in an attorney’s billing records therefore mandates a
line-by-line finding of reasonableness (or unreasonableness) by the trial court. The purpose of
requiring such specificity by the attorney is to aid the trial court in its efforts to determine a
reasonable fee award (In re Estate of Bitoy, 395 Ill. App. 3d 262, 275 (2009)), and those efforts
would not be aided by requiring of the trial court the same degree of specificity, Canulli’s
fairness argument aside. While reviewing courts have commented favorably where trial courts
did undertake a line-by-line review (see Kaiser, 164 Ill. App. 3d at 988), there is simply no
requirement for trial courts to do so. Further, reviewing courts have upheld trial courts’
valuations of work performed by attorneys in terms of rounded numbers. See, e.g., In re
Marriage of Auriemma, 271 Ill. App. 3d 68 (1994) (finding that law firm was entitled to receive
a total of $90,000 in fees, rather than the $155,987.76 it sought, due to the firm’s failure in its
obligation to control the litigiousness of its client); 400 Condominium Ass’n v. Wright, 240 Ill.
App. 3d 546 (1992) (upholding award of $8,000 in fees when petition sought $24,164.21);
Angiuli, 134 Ill. App. 3d 417 (upholding trial court’s decision to reduce fees sought by attorney
against former client from $62,202.25 to $36,000).
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¶ 32 Canulli next asserts that Gregory waived his right to object to the fees, because he did not
object to any bill within seven days of receiving it, as required by the engagement agreement.
Based on this provision, and prior to the hearing on his fee petitions, Canulli filed a motion in
limine to bar Gregory from opposing his fee petitions. The trial court denied the motion and
proceeded to a full hearing on the petitions. Canulli cites no authority in support of his waiver
argument, and so the argument is forfeited. “The appellate court is not a depository into which a
party may dump the burden of research.” Hall v. Naper Gold Hospitality, LLC, 2012 IL App
(2d) 111151, ¶ 13.
¶ 33 Next, Canulli contends that the court abused its discretion by not applying the “required
criteria and factors” when it reduced his fees. This argument consists almost entirely of material
quoted from Goesel v. Boley International (H.K) Ltd., 806 F.3d 414 (7th Cir. 2015). In Goesel, a
law firm represented a minor and his parents in a personal-injury suit. Id. at 417. The parties
entered into a retainer agreement whereby the firm would receive one-third of any gross amount
recovered and the Goesels would be responsible for any litigation expenses. If there was no
recovery, they would owe no attorney fees. Id. The case settled prior to trial, and, after paying
the litigation expenses, the Goesels would be left with 42% of the total recovery. Because the
injured party was a minor, the trial court was required to approve the settlement before it could
be finalized. The court sua sponte objected to the contingent-fee agreement, invoked “ ‘fairness
and right reason,’ ” and “modified the fee structure so that the litigation expenses were deducted
off the top, prior to the one-third allocation to the law firm.” Id. at 418.
¶ 34 On appeal, the Seventh Circuit undertook a review of the objective reasonableness of the
retainer agreement’s provision for attorney fees. Looking to the factors that courts use to
determine the reasonableness of fees (see supra ¶ 25), the court found that the firm’s fees “easily
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passe[d] muster” and were not excessive. Id. at 421. In so holding, the court stated that the trial
court impermissibly relied on “ ‘fairness and right reason,’ ” which the reviewing court described
both as a “rhetorical flourish” and a factor outside the appropriate scope of its inquiry. Id. at
422-23. The court stated that, of the criteria that govern attorney fees in settlements involving
minors, none supported rewriting the terms of the agreement. Id. at 422.
¶ 35 At the outset, we note that federal appellate decisions are not binding on this court. See
People v. Kidd, 129 Ill. 2d 432, 457 (1989). While such decisions may be considered persuasive
authority (People ex rel. Ryan v. World Church of the Creator, 198 Ill. 2d 115, 127 (2001)), we
agree with Gregory and Heather that Goesel has little relevance to this matter. Indeed, much of
the Goesel court’s discussion concerns the “vital role” that contingent-fee contracts play in our
legal system. Goesel, 806 F.3d at 423. Also, while the Goesel court took issue with the trial
court’s reliance on “additional factors outside the appropriate scope of its inquiry” (id.), Canulli
does not indicate what factor or factors he believes the trial court here improperly relied on in
reducing the fees. Moreover, Goesel does not state that a court should “line item” billing
statements when reducing fees, nor does it require a court to articulate with particularity how it
evaluated each of the factors when assessing the reasonableness of the fees. Thus, Goesel does
not bolster Canulli’s arguments.
¶ 36 Our review of the record, as well as the report of proceedings concerning the hearing on
Canulli’s fee petitions, shows that the trial court provided numerous reasons for reducing the
fees, and we believe that the trial court’s award of fees was not an abuse of discretion. The court
commented on the absence of progress in the case, despite the more than $85,000 in fees that
Canulli billed to Gregory. The court stressed that only two hearings were held, that no
depositions were taken, and that there were “no substantive things being done” in the case.
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Indeed, these statements were supported by Canulli’s own acknowledgment that he did not
prepare for trial, that no experts were consulted or retained, and that he did not prepare a joint
parenting agreement or a marital settlement agreement. The record confirms that Canulli
participated in only two contested hearings: the hearing on Heather’s motion to vacate Gregory’s
pro se order of protection (which was granted) and the hearing on Heather’s petition for
exclusive possession of the marital residence (which also was granted). These observations were
clearly within the court’s province, as a judge is permitted to rely on his or her own knowledge
and experience when determining the reasonableness of fees. Richardson v. Haddon, 375 Ill.
App. 3d 312, 315 (2007); In re Marriage of McHenry, 292 Ill. App. 3d 634, 642 (1997); In re
Marriage of Sanda, 245 Ill. App. 3d 314, 319 (1993).
¶ 37 Further, Heather correctly points out that Canulli billed for drafting documents that were
either not presented or not filed with the court, including a motion to dismiss her petition for
exclusive possession of the marital residence and a notice of dissipation. Canulli’s billing
statements also contain several entries that indicate that he charged for reviewing an emergency
petition for an order of protection filed by Heather, though no such petition was ever filed.
Canulli’s statements also indicate that he billed Gregory for more than two hours after he was
granted leave to withdraw.
¶ 38 It is well established that unnecessarily increasing the cost of litigation is a relevant factor
for a trial court to consider when allocating attorney fees. In re Marriage of Patel, 2013 IL App
(1st) 112571, ¶ 117. Moreover, an attorney’s fees may be reduced if the attorney fails to control
the litigiousness of his or her client. Auriemma, 271 Ill. App. 3d at 74. In her findings, the trial
judge here clearly found these factors important, as she spoke directly to Canulli: “Yes, your
client was difficult. I understand that. But you fostered, you tolerated, and you actually aided
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him in filing pro se petitions, by your own testimony which, in fact, encouraged rogue behavior
and did nothing to control the litigation, which, I believe, is also part of an attorney’s obligation
when your client is taking unreasonable positions.”
¶ 39 The record indicates that Gregory filed four separate pro se submissions with the court
while represented by Canulli, including two emergency petitions for orders of protection, a
petition for temporary support, and a filing consisting of 40 pages of exhibits regarding
Heather’s private matters.
¶ 40 Gregory filed his first pro se emergency petition for an order of protection on September
15, 2014. Canulli’s billing statements indicate that, the day prior, he billed Gregory for
discussing “9/11 incident and Order of Protection and going forward on the same.” He also
emailed Gregory regarding the possibility of seeking an order of protection, stating: “FYI–I
received this from opposing counsel and it does not appear from this e-mail that they intend to
file a Petition for Order of Protection. *** If they do not file anything, don’t you think it is
necessary or in your best interests to do so? Possibly better to let things calm down and also
lessen the legal fees.” The trial court granted the emergency petition. Heather thereafter filed an
emergency motion to rehear the petition, and a hearing was held on September 23, 2014, wherein
Canulli represented Gregory. At the conclusion of the hearing, the court vacated the order of
protection. Canulli’s billing statements show that he charged Gregory for more than 16 hours of
work related to this petition, including time spent representing Gregory at the hearing, preparing
for the hearing, and exchanging phone calls and emails with Gregory and with opposing counsel.
Some two weeks after the hearing, Canulli sent Gregory an email stating: “[t]ruth be told, there
wasn’t enough for an order of protection and I wouldn’t have filed a petition based on what
happened.”
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¶ 41 Gregory filed a second pro se emergency petition for an order of protection
approximately three months later, and the court denied it after chastising Gregory for filing it.
Though Canulli testified that he did not help Gregory prepare the petition, he acknowledged that
he billed Gregory for reviewing the petition before Gregory filed it. In sum, Canulli billed for
nearly four hours related to this petition.
¶ 42 Gregory also filed pro se approximately 40 pages of exhibits that contained personal
information regarding Heather. Heather thereafter filed an emergency motion to impound the
exhibits, and Canulli billed Gregory for assisting him in preparing to appear pro se at the
hearing. Canulli testified at the hearing on his fee petitions that the emergency motion to
impound was noticed for a date on which he was not available. Canulli’s billing statements
show that he billed Gregory for nearly 6 hours for addressing the matter with opposing counsel,
conducting legal research, and preparing Gregory for his pro se court appearance. One billing
entry states, “review, select, copy and highlight cases to oppose Wife’s request to impound file
*** and very detailed email to client about what to do and say to Judge tomorrow w/multiple
attachments of highlighted cases.”
¶ 43 Gregory’s final pro se filing while Canulli represented him was a petition for temporary
maintenance. The court struck the petition on January 12, 2015, ordered Gregory not to file
pleadings in any other courtrooms, and granted Heather’s counsel leave to file a petition for
attorney fees for her time spent that day appearing in court. Canulli testified that he assisted
Gregory in preparing the pro se petition and the notice of it.
¶ 44 “The question for the reviewing court is not whether it agrees with the trial court’s
decision; rather, the reviewing court must analyze whether the trial court, in the exercise of its
discretion, acted arbitrarily without conscientious judgment or, in view of all the circumstances,
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exceeded the bounds of reason and ignored recognized principles of law so that substantial
injustice resulted.” In re Marriage of Baniak, 2011 IL App (1st) 092017, ¶ 9. Based on all of
the foregoing, we cannot conclude that the trial court’s decision to deny contribution from
Heather and award Canulli a total of $50,000 from Gregory was an abuse of discretion.
¶ 45 Finally, we consider the issue of sanctions. Canulli filed a motion for sanctions under
Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994) against Gregory, wherein he asserts that
Gregory’s reply brief quotes portions of Canulli’s emails out of context, thereby placing Canulli
“in a bad light.” Similarly, Heather has filed a motion for Rule 375(b) sanctions against Canulli,
asserting that Canulli’s briefs falsely state that she filed pro se pleadings in the trial court. We
ordered both of these motions taken with the case.
¶ 46 Rule 375 permits us to impose appropriate sanctions on a party if we determine that the
appeal or other action itself is frivolous or that the appeal or other action was not taken in good
faith or was taken for an improper purpose, such as to harass or cause unnecessary delay. The
purpose of Rule 375 is to condemn and punish the abusive conduct of litigants and their
attorneys who appear before us. Sterling Homes, Ltd. v. Raspberry, 325 Ill. App. 3d 703, 709
(2001).
¶ 47 We conclude that sanctions would not be appropriate in this case. Gregory’s
mischaracterization of Canulli’s emails by not quoting them in their entirety was de minimis, at
most. As for Heather’s motion, she is correct that Canulli’s briefs state that both parties filed pro
se pleadings, where the record is clear that she did not act pro se. Specifically, Canulli refers to
Heather’s emergency motion to impound as having been filed pro se, and he states that “the
record is replete with instances where Mrs. Kane filed pro se motions [and] sought pro se relief.”
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We decline to impose sanctions here, as Canulli’s misstatements likely reflect carelessness in
drafting his briefs, rather than a deliberate effort to mislead this court.
¶ 48 III. CONCLUSION
¶ 49 For the reasons stated, we affirm the judgment of the circuit court of Du Page County.
¶ 50 Affirmed.
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