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                                    Appellate Court                           Date: 2019.10.07
                                                                              16:21:12 -05'00'



                  In re Marriage of Pavlovich, 2019 IL App (1st) 180783



Appellate Court         In re MARRIAGE OF SLOBODAN PAVLOVICH, Petitioner, and
Caption                 ANETA PAVLOVICH, Respondent-Appellee (Hoffenberg & Block,
                        LLC, Appellant).



District & No.          First District, Second Division
                        Docket No. 1-18-0783



Filed                   June 28, 2019



Decision Under          Appeal from the Circuit Court of Cook County, No. 14-CR-9779; the
Review                  Hon. Robert W. Johnson, Judge, presiding.



Judgment                Affirmed.


Counsel on              Paul J. Bargiel, of Paul J. Bargiel, P.C., and Alan D. Hoffenberg and
Appeal                  Gabriela O. Asrow, of Hoffenberg & Block, LLC, both of Chicago,
                        for appellant.

                        James J. Macchitelli, of Schaumburg, for appellee.



Panel                   JUSTICE PUCINSKI delivered the judgment of the court, with
                        opinion.
                        Justices Lavin and Mason concurred in the judgment and opinion.
                                                OPINION

¶1        In this appeal, Hoffenberg & Block, LLC (H&B), the firm that formerly represented
     respondent Aneta Pavlovich in these divorce proceedings, argues that the Cook County circuit
     court erred in denying its final petition for attorney fees brought pursuant to section 508 of the
     Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/508 (West 2016)).
     According to H&B, the trial court erred when it concluded that attorney fees could not be
     recovered under section 508 of the Act unless there was a written agreement between the
     attorney and client. For the reasons that follow, we affirm.

¶2                                           BACKGROUND
¶3        On July 18, 2017, a week before the judgment of dissolution was entered in this case, H&B
     filed its petition for final attorney fees and costs under section 508 of the Act. In that petition,
     H&B alleged that on June 21, 2016, it was retained to represent respondent in her dissolution
     proceedings and was later granted leave to withdraw on June 8, 2017. Between the time H&B
     was retained and the time that it withdrew from representing respondent, H&B performed
     extensive legal services for the benefit of respondent in her dissolution case. As a result,
     respondent incurred attorney fees totaling $95,572.55 and costs totaling $2594.67. Respondent
     paid $30,202.00 of the amount due, leaving an outstanding balance of $67,965.22.
¶4        On July 25, 2017, the trial court entered a judgment dissolving the marriage of petitioner
     Slobodan Pavlovich and respondent.
¶5        Respondent filed a corrected motion to strike H&B’s fee petition 1 and, in the alternative,
     a response to it. In the corrected motion to strike, respondent argued that H&B’s fee petition
     should be stricken because H&B failed to attach detailed billing statements or time records and
     failed to attach a written agreement between H&B and respondent that included a statement of
     client rights and responsibilities, per the dictates of section 508(c)(2) of the Act (id.
     § 508(c)(2)). In her response to the fee petition, respondent again raised H&B’s failure to attach
     time sheets or billing statements and also argued that the amount of fees sought was
     unreasonable for the normal and uncomplicated issues involved in the dissolution proceedings.
     Respondent also argued that the hourly rates charged by H&B attorneys were not usual and
     customary and that respondent did not benefit from H&B’s services because H&B withdrew
     its representation of respondent on the eve of trial.
¶6        Also included in the record is a reply filed by respondent in support of her corrected motion
     to strike H&B’s fee petition. The record does not contain, however, H&B’s response to the
     corrected motion to strike. In her reply in support of her corrected motion to strike, respondent
     made a number of arguments in response to procedural arguments apparently raised by H&B
     in its response to the motion to strike. More relevant, however, are respondent’s arguments
     that H&B was not entitled to recover fees under section 508, because it could not demonstrate
     that there was a written contract between H&B and respondent that contained a statement of
     the client’s rights and responsibilities. She also argued that the reference to recovery under
     quantum meruit in section 508(c)(3) of the Act (id. § 508(c)(3)) applied only to terms outside
     of the written contract; in other words, quantum meruit was to be used only where the written

        1
         The original motion to strike is not in the record on appeal.

                                                    -2-
       agreement did not provide for a fair amount of fees. According to respondent, H&B could not
       recover under section 508 of the Act in any form because it lacked a written agreement between
       it and respondent; thus, H&B’s only recourse was to file an independent common-law action
       for quantum meruit.
¶7         At the hearing on H&B’s fee petition and respondent’s corrected motion to strike the fee
       petition, a number of witnesses testified. Gabriela Asrow and Gloria Block, attorneys with
       H&B, testified regarding the work they did on behalf of respondent, the complicated nature of
       respondent’s divorce proceedings, the fees and costs incurred by respondent, and the fact that
       respondent never objected to any of the fees or bills. Alan Hoffenberg, also of H&B, testified
       that he performed the initial consultation with respondent. At that meeting, respondent gave
       him her retainer, and he gave her a copy of H&B’s retainer agreement and told her to take it
       home to review, sign, and return it. No one at H&B was able to locate a written agreement
       signed by respondent.
¶8         Respondent testified that she was never provided a written agreement by anyone with H&B
       and that she never signed a written agreement with H&B. She also testified that she was not
       given and did not sign a copy of the client’s rights and responsibilities. Further, she testified
       that she questioned both Hoffenberg and Block at least 10 to 20 times about the large bills that
       she received for their services. Both of them told her that they were only billing her because
       they planned to seek contribution from petitioner and they needed the bills to use as proof.
¶9         In closing, H&B argued that it was seeking recovery of its fees under quantum meruit.
       H&B argued that, not only did the Act allow for quantum meruit, but also that the trial court
       was a court of general jurisdiction that could hear any type of case, including a common-law
       claim for quantum meruit. H&B further argued that the Act did not require that a written
       contract exist in order to recover under quantum meruit and that it would not make sense to
       require a written contract in such a situation.
¶ 10       In response, respondent argued that section 508(c)(2) of the Act explicitly states that no
       hearing shall be held on a fee petition unless there exists a written agreement between the
       lawyer and client that includes a statement of the client’s rights and responsibilities. She also
       argued that quantum meruit under section 508 only applies where the terms of the written
       contract are uncertain or unclear. True quantum meruit, respondent argued, is only available if
       H&B were to file a separate cause of action.
¶ 11       Following the hearing, the trial court entered an order denying respondent’s corrected
       motion to strike the fee petition and indicating that it would subsequently enter an order on
       H&B’s fee petition.
¶ 12       Thereafter, but before the trial court ruled on H&B’s fee petition, H&B filed a
       memorandum in support of its fee petition. In it, H&B argued that it established all of the
       elements of a common-law claim for quantum meruit and that the trial court could award it
       fees based on quantum meruit under either section 508 of the Act or under the common law.
¶ 13       On March 16, 2018, the trial court entered an order denying H&B’s petition for fees on the
       basis that H&B had not entered into a written fee agreement with respondent.
¶ 14       Thereafter, H&B instituted this appeal.




                                                   -3-
¶ 15                                   STANDARD OF REVIEW
¶ 16       The sole issue in this appeal is whether section 508 of the Act permits an attorney to seek
       attorney fees under the theory of quantum meruit if he or she does not have a written agreement
       with the client. The answer to this question requires us to interpret the language of section 508.
       The interpretation of a statute is a question of law subject to a de novo standard of review.
       Taylor v. Pekin Insurance Co., 231 Ill. 2d 390, 395 (2008).

¶ 17                                             ANALYSIS
¶ 18        On appeal, there is no dispute that there is no written agreement between H&B and
       respondent. Rather, H&B argues that the trial court erred in concluding that section 508
       required a written agreement between the attorney and the client as a prerequisite to recovery
       of attorney fees under the Act, even where the attorney seeks to recover under the Act via a
       theory of quantum meruit. Alternatively, H&B argues, even if the trial court was correct in
       concluding that the lack of a written agreement precluded an award of fees under section 508,
       it could have heard H&B’s common-law claim for quantum meruit or should have transferred
       H&B’s claim to the law or chancery division. We hold that H&B’s claims are without merit.
¶ 19        The primary goal in statutory construction is to ascertain the intent of the legislature. The
       best indicator of this intent is the language of the statute, which must be given its plain and
       ordinary meaning. People ex rel. Madigan v. Bertrand, 2012 IL App (1st) 111419, ¶ 20. In
       interpreting a statute, we must view the statute as a whole, making sure not to read any of its
       language in isolation. Board of Education of Woodland Community Consolidated School
       District 50 v. Illinois State Charter School Comm’n, 2016 IL App (1st) 151372, ¶ 38. We must
       avoid any interpretation that would render any portion of the statute superfluous, meaningless,
       or void. Sylvester v. Industrial Comm’n, 197 Ill. 2d 225, 232 (2001). Just as we may not read
       out any portion of the statute, we may not alter the plain meaning of a statute’s language by
       reading into it exceptions, limitations, or conditions not expressed by the legislature. Board of
       Education, 2016 IL App (1st) 151372, ¶ 38.
¶ 20        Section 508(a) of the Act permits a trial court in a dissolution action, after notice and
       hearing, to make an award of attorney fees, not only between the parties but between one of
       the parties and his or her former counsel. 750 ILCS 5/508(a) (West 2016). An award of attorney
       fees to a party’s former attorney is governed by section 508(c) of the Act. Subsection (c)(2)
       provides in relevant part that no final hearing may be had on an attorney fee petition unless
       “the counsel and the client had entered into a written engagement agreement at the time the
       client retained the counsel (or reasonably soon thereafter) and the agreement meets the
       requirements of subsection (f).” Id. § 508(c)(2)(i). Subsection (f) requires that a written
       engagement agreement have appended to it a statement of the client’s rights and
       responsibilities, as delineated in subsection (f). Id. § 508(f).
¶ 21        The Act leaves the decision of whether to award attorney fees within the discretion of the
       trial court. Id. § 508(c)(3). It then provides as follows:
               “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). ***
               Quantum meruit principles shall govern any award for legal services performed that is

                                                   -4-
               not based on the terms of the written engagement agreement (except that, if a court
               expressly finds in a particular case that aggregate billings to a client were
               unconscionably excessive, the court in its discretion may reduce the award otherwise
               determined appropriate or deny fees altogether).” Id.
       Fee petitions or writs of praecipe for fee hearings under subsection (c) must be filed within the
       time frame for the filing of a postjudgment motion under section 2-1203 of the Code of Civil
       Procedure (735 ILCS 5/2-1203 (West 2016)), i.e., within 30 days of the entry of judgment. 750
       ILCS 5/508(a)(5) (West 2016).
¶ 22        Except as otherwise provided in section 508(e)(1), “subsection (c) of this Section is
       exclusive as to the right of any counsel (or former counsel) of record to petition a court for an
       award and judgment for final fees and costs during the pendency of a proceeding under this
       Act.” Id. § 508(a). Section 508(e) provides in relevant part:
                    “(e) Counsel may pursue an award and judgment against a former client for legal
               fees and costs in an independent proceeding in the following circumstances:
                         (1) While a case under this Act is still pending, a former counsel may pursue
                    such an award and judgment at any time subsequent to 90 days after the entry of an
                    order granting counsel leave to withdraw; and
                         (2) After the close of the period during which a petition (or praecipe) may be
                    filed under subdivision (c)(5), if no such petition (or praecipe) for the counsel
                    remains pending, any counsel or former counsel may pursue such an award and
                    judgment in an independent proceeding.
               In an independent proceeding, the prior applicability of this Section shall in no way be
               deemed to have diminished any other right of any counsel (or former counsel) to pursue
               an award and judgment for legal fees and costs on the basis of remedies that may
               otherwise exist under applicable law; and the limitations period for breach of contract
               shall apply. *** After the period for the commencement of a proceeding under
               subsection (c), the provisions of this Section (other than the standard set forth in
               subdivision (c)(3) and the terms respecting consent security arrangements in subsection
               (d) of this Section 508) shall be inapplicable.” Id. § 508(e).
¶ 23        The language of section 508 is abundantly clear: a written agreement between the party
       and the attorney is required before a party’s former attorney will be permitted to recover
       attorney fees on a petition brought under section 508. This conclusion is supported by several
       parts of section 508. First, section 508(c)(2) explicitly states that no final hearing may be had
       unless such a written agreement exists. Id. § 508(c)(2) (“No final hearing *** is permitted
       unless: (i) the counsel and the client had entered into a written engagement agreement at the
       time the client retained the counsel ***.”). Second, section 508(c)(3) specifically directs the
       trial court to first consider the terms of the written agreement and to enforce those terms if the
       agreement meets the relevant requirements and addresses all of the material terms. Finally,
       even in situations where an attorney seeks to recover under quantum meruit, such recovery is
       only permitted for legal services performed outside the written contract. Id. § 508(c)(3)
       (“Quantum meruit principles shall govern any award for legal services performed that is not
       based on the terms of the written engagement agreement ***.”). In other words, even where
       quantum meruit is sought, there still must be a written contract so that it can be determined
       whether the contract covers the services for which fees are sought.


                                                   -5-
¶ 24        H&B argues that the quantum meruit language of section 508(c)(3) contemplates an award
       of attorney fees absent a written contract. We disagree. Although it is certainly true that section
       508(c)(3) permits recovery of some attorney fees by way of quantum meruit in a section 508
       petition, such fees are limited to only those for legal services performed outside the written
       contract. In other words, section 508(c)(3) does not permit a full claim for quantum meruit;
       rather, quantum meruit is permitted only for those legal services that fall outside the terms of
       the otherwise existing written agreement. This interpretation is supported by the fact that the
       quantum meruit language immediately follows the directive that the trial court first consider
       the required written contract and specifically refers to an “award for legal services performed
       that is not based on the terms of the written engagement agreement.” (Emphasis added.) The
       phrase “the written agreement,” as opposed to “a written agreement,” refers back to the written
       agreement required under section 508(c)(2), indicating that even where a quantum meruit
       award is made, there must still be a written agreement; the quantum meruit award is simply for
       services performed outside the written agreement required under section 508(c)(2).
¶ 25        Moreover, it is impossible to reconcile an interpretation of the quantum meruit language of
       section 508(c)(3) that permits recovery without a written agreement with section 508(c)(2)’s
       dictate that no final hearing be held on an attorney fee petition unless there exists a written
       agreement between the client and the attorney. After all, how can a quantum meruit award be
       made absent a written agreement if the trial court is not even permitted to hold a hearing
       without the presence of a written agreement? These provisions can only be reconciled if the
       quantum meruit language is read, as we do, as only permitting recovery of fees for services
       performed outside the otherwise existing written contract. See Hartney Fuel Oil Co. v. Hamer,
       2013 IL 115130, ¶ 25 (“Statutory provisions should be read in concert and harmonized.”).
¶ 26        We note that during oral arguments in this matter, counsel for H&B referred to the case of
       In re Marriage of Kosterka, 174 Ill. App. 3d 954 (1988), for the proposition that the Second
       District held that, even where there is no written agreement between an attorney and a client,
       a trial court may nevertheless make an award of attorney fees under section 508 on the basis
       of quantum meruit. In Kosterka, an attorney who was retained as local counsel by the wife’s
       primary counsel filed a section 508 petition for attorney fees against the wife. Id. at 956-57.
       There was no written agreement between the local counsel and the primary attorney or between
       the local counsel and the client. Id. at 956. The trial court awarded attorney fees to the local
       counsel, but not in the full amount he requested. Id. at 957. The issues on appeal related to
       whether the local counsel had standing to pursue attorney fees directly from the client, the
       amount of the fees awarded, and whether the trial court was required to disclose the basis for
       its order and failed to make specific findings in its order. Id.
¶ 27        Although the Second District did affirm the trial court’s award of attorney fees, which was
       based on a theory of quantum meruit, we do not find its decision instructive, because the issue
       of whether section 508 allows recovery of attorney fees on the basis of quantum meruit where
       there is no written agreement was not raised by the parties or addressed by the Second District.
       In fact, there was no discussion whatsoever regarding the impact that the lack of a written
       agreement had upon the local counsel’s ability to recover attorney fees under section 508.
       Thus, the Second District was not called upon to construe the specific provisions of section
       508, as we are here, and its decision has no relevance to the determination we must make in
       the present case.



                                                    -6-
¶ 28       The remainder of H&B’s arguments are not directed to the language of section 508. First,
       H&B argues that a written agreement is not necessary to the formation of an attorney-client
       relationship. True or not, such a contention is irrelevant to the issue before us. The question at
       bar is not whether there was an attorney-client relationship between H&B and respondent
       (there is no dispute on that question) but rather is whether a written agreement is necessary to
       recovery of attorney fees on a section 508 petition. The former issue has no effect on the latter.
¶ 29       Second, relying on Nottage v. Jeka, 172 Ill. 2d 386, 392 (1996), H&B argues that section
       508 is not the sole means by which an attorney can seek to recover from a client attorney fees
       incurred during a dissolution case. H&B argues that attorneys are free to bring independent
       common-law claims for fees, such as for breach of contract or quantum meruit and that it, in
       fact, made out a claim for common-law quantum meruit. H&B is absolutely correct that section
       508 of the Act is not the sole means by which an attorney may recover fees from a client in a
       dissolution action. Not only does Nottage stand for that proposition, but section 508 itself
       explicitly provides that an independent action may be brought against a client, either 90 days
       after the attorney has been granted leave to withdraw or after the time period for filing a section
       508(c) fee petition. See 750 ILCS 5/508(e) (West 2016).
¶ 30       The problem with H&B’s contention, however, is that H&B chose not to bring an
       independent action. Rather, H&B chose to pursue its claim for fees under section 508 of the
       Act, thereby subjecting itself to the requirements and limitations of section 508. The
       requirements and limitations under section 508 that we have discussed in this decision were in
       full effect at the time that H&B filed its fee petition; nevertheless, H&B specifically invoked
       section 508 in its petition. That H&B had the option to pursue other remedies against
       respondent is of no matter now, as it chose to forgo those remedies in lieu of proceeding under
       section 508. The facts that those other options existed and that H&B might have been
       successful under them do not relieve H&B from compliance with section 508 once it chose to
       proceed as it did.
¶ 31       Finally, H&B argues that if the trial court was inclined to deny its fee petition under section
       508, as a court of general jurisdiction, it still could have heard H&B’s common-law claim for
       quantum meruit or, at the very least, referred it to the law or chancery division for decision.
       H&B’s argument fails for the reason that it never actually instituted a claim for common-law
       quantum meruit. As discussed, H&B’s fee petition specifically invoked section 508 of the Act
       and at no point mentioned quantum meruit as a basis of recovery, either under section 508 or
       under the common law. Rather, based on the record before us, it appears that it was not until
       the hearing that H&B indicated that it was entitled to recovery based on quantum meruit, both
       under section 508 and under the common law. We recognize that, where a party brings a
       common-law claim for breach of contract and is unable to prove the existence of the contract,
       he is entitled to proceed under a theory of quantum meruit without amending his pleadings.
       See Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc., 87 Ill. App. 3d 480,
       485 (1980) (“[I]n Illinois, a plaintiff may recover under quantum meruit on a claim made under
       an express contract without amendment of the pleadings where the plaintiff fails to establish
       the express contract but does show that in fact services were rendered.” (Emphasis omitted.)).
       Here, H&B did not bring a common-law action for breach of contract. Rather, it brought a fee
       petition under the very specific provisions of section 508 of the Act, despite the very clear
       limitations in the language of section 508 and despite the option of instituting an independent
       action for common-law quantum meruit without such limitations.


                                                    -7-
¶ 32       Moreover, although the trial court may be a court of general jurisdiction, we are aware of
       no obligation of the trial court—and H&B does not cite any authority in support of the
       proposition—to entertain a cause of action that was not properly pled and that H&B did not
       raise until the hearing on its fee petition. In fact, it would have been improper. See Ligon v.
       Williams, 264 Ill. App. 3d 701, 707 (1994) (“The court’s authority to exercise its jurisdiction
       and resolve a justiciable question is invoked through the filing of a complaint or petition. ***
       Thus, the circuit court’s jurisdiction, while plenary, is not boundless, and where no justiciable
       issue is presented to the court through proper pleadings, the court cannot adjudicate an issue
       sua sponte.”). H&B also fails to cite any authority for the notion that the trial court had an
       obligation to fix H&B’s strategic misstep by transferring the fee petition to the law or chancery
       division. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018) (requiring that the argument section
       of an appellant’s brief contain “the contentions of the appellant and the reasons therefor, with
       citation of the authorities and the pages of the record relied on”); see also Thrall Car
       Manufacturing Co. v. Lindquist, 145 Ill. App. 3d 712, 719 (1986) (“A reviewing court is
       entitled to have the issues on appeal clearly defined with pertinent authority cited and a
       cohesive legal argument presented. The appellate court is not a depository in which the
       appellant may dump the burden of argument and research.”).
¶ 33       Although we believe that the language of section 508 is plain in requiring the existence of
       a written contract between the client and attorney, even where recovery is sought under section
       508 based on quantum meruit, we also acknowledge that such a requirement seems somewhat
       at odds with the often-stated purpose of section 508’s provisions allowing an attorney to collect
       fees directly from a client under section 508. The divorce act that preceded the Act only
       permitted one party to a divorce to recover attorney fees from the other party; attorneys were
       not permitted to file a fee petition directly against their clients. Nottage, 172 Ill. 2d at 394.
       According to numerous courts, the purpose of section 508 permitting attorneys to collect
       directly from their clients is to “promote judicial economy by eliminating the need for an
       attorney to bring a separate suit to collect fees from his client.” See, e.g., In re Marriage of
       Baltzer, 150 Ill. App. 3d 890, 895 (1986). Clearly, in situations where there exists a written
       contract between the attorney and client, section 508 eliminates the need for a separate suit for
       fees. Because of the language chosen by the legislature, however, where a written contract
       does not exist, section 508 does not eliminate the need for a separate proceeding at all. Rather,
       an independent action for a common-law claim of quantum meruit is an attorney’s only
       recourse under such circumstances.
¶ 34       We do not know whether the legislature intended such a result. Perhaps the legislature
       intended to eliminate the need for separate suits only where there is a written contract, or
       perhaps it intended to eliminate the need for separate suits under all circumstances but simply
       failed in fashioning appropriate language to that effect. In any case, where the language of a
       statute is plain, we are bound to enforce it as written. Gabriel Builders, Inc. v. Westchester
       Condominium Ass’n, 268 Ill. App. 3d 1065, 1068 (1994) (“If [the language of the statute] is
       clear and unambiguous, a court must enforce it as written and may not resort to other aids for
       construction.”). Here, for the reasons discussed above, the language of section 508 clearly
       requires the existence of a written contract before an attorney may recover fees under section
       508, even if sought based on a theory of quantum meruit. If that is not the result the legislature
       intended, then it is for the legislature to remedy, not us. See People v. Holland, 374 Ill. App.



                                                   -8-
       3d 121, 127-28 (2007) (“Whether this language was a check on the power of the Governor or
       poor legislative drafting, it is a matter for the legislature to remedy, not this court.”).
¶ 35      In sum, we conclude that section 508 of the Act requires the existence of a written contract
       between the client and the attorney before the attorney may recover attorney fees, whether
       based on the written contract or on quantum meruit, in a petition brought under section 508.
       Here, there is no dispute that there was no written agreement between H&B and respondent.
       Accordingly, the trial court did not err in denying H&B’s fee petition brought under section
       508 of the Act.

¶ 36                                        CONCLUSION
¶ 37      For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 38      Affirmed.




                                                  -9-
