author: JUSTICE FREEMAN

text:
      In re MARRIAGE OF JOHN MALEC, Petitioner-Appellee, and MICKIE FLANAGAN, Respondent (Jerome N. Zurla, Appellant).
    First District (3rd Division)
    No. 1—89—0314
    Opinion filed October 10, 1990.

      Gary A. Weintraub, of Chicago, for appellant.
    Leland W. Hutchinson, Jr., and Elizabeth D. Sharp, both of Freeborn & Peters, of Chicago, for appellee.
   JUSTICE FREEMAN

delivered the opinion of the court:

This is an appeal of an order of the circuit court denying Jerome Zurla’s (Zurla) petition for additional attorney fees.

This case originated as a dissolution of marriage between John Malee (Petitioner) and Mickie Flanagan. Petitioner entered into an agreement with Stuart Litwin (Litwin) to retain the law firm of Litwin, Zurla and Stein (LZ&S) to represent him in the dissolution of his marriage. Litwin required, and petitioner paid, a $15,000 retainer fee. Petitioner was told that the remainder of the fees would be settled, based on performance, at the end of the case. There was no written contract memorializing the agreement.

In June 1986, the LZ&S firm dissolved. Litwin and Zurla entered into an agreement with respect to the dissolution of the partnership which specified how the firm’s work in progress, including petitioner’s dissolution of marriage case, would be handled, and how post-partnership dissolution fees paid to either Litwin or to Zurla would be divided. Specifically, the agreement provided that Zurla would receive 40% and Litwin would receive 60% of any future fees paid on petitioner’s case to either Zurla or to Litwin.

Subsequent to the partnership dissolution, both Zurla and Litwin continued to represent petitioner. In August 1986, at the suggestion of Litwin and Zurla, petitioner hired the firm of Jenner & Block as additional counsel on the case. Thomas Sullivan, William Suriano and other Jenner & Block attorneys were actively involved. In January 1987, petitioner discharged Litwin, but continued to be represented by Zurla and the Jenner & Block attorneys.

Early in 1987, petitioner offered to pay Zurla $1 million if he obtained certain results in his dissolution of marriage. On June 5, 1987, petitioner met with Zurla to discuss the payment of fees. The meeting occurred in Edward Vrdolyak’s office; however, Vrdolyak was not present for the discussion. According to petitioner, Zurla demanded a $3 million fee. Petitioner was incensed and stated that the only fee previously promised was the $1 million fee, contingent upon the achievement of certain results. Petitioner stated that he did not owe Zurla $1 million because those contingencies had not been met. Zurla stated that he was only kidding when he suggested that he be paid $3 million.

On the following day, petitioner discharged Zurla as his attorney. Subsequently, petitioner and Zurla attempted to negotiate a settlement on the amount of fees. While a figure of $751,000 was discussed, no agreement was reached, and no additional fees have been paid.

It is undisputed that from the time petitioner began his dissolution action he has paid a total sum of $742,620 in connection with attorney fees, disbursed in the following manner:

(1) $15,000 initial retainer paid to LZ&S in December 1985,
(2) $135,000 additional retainer paid to LZ&S in July 1986,
(3) four additional monthly payments of $15,000 each to Zurla between January and April 1987,
(4) $150,000 paid to Litwin in June 1987,
(5) $105,000 paid on a personal guaranty loan to Harris Bank for Chicago Vote ’87, and
(6) $188,810 paid to Jenner & Block.

In Zurla’s second amended fee petition, he petitioned the court to award him fees in the amount of $1 million in quantum meruit and, alternatively, that the court award him $751,048.75 on a theory of accord and satisfaction. After a hearing, the trial court denied the fee petition and declined to award any additional fees. It is from this denial that Zurla now appeals. For the reasons stated below, we reverse and remand.

This case involves many facts and voluminous records. In the interest of brevity and clarity, relevant facts will be discussed in the body of this opinion as they pertain to the issues presented.

Zurla first contends that the trial court’s decision was based on a fundamentally erroneous approach. He argues that the court erroneously credited payments made by petitioner against the $1 million fee. We will address each disputed credit in turn.

THE JENNER & BLOCK PAYMENT

There is no dispute that petitioner independently retained the services of the Jenner & Block attorneys. Zurla argues that the trial court erroneously credited him with the $188,810 payment which petitioner made to Jenner & Block. His argument is premised on two points. First, Zurla claims that petitioner, in his closing argument, stated that he was entitled to a credit for all fees paid by him to all of the lawyers in the case. Second, following petitioner’s argument, the judge commented specifically that “over $180,000 [had been] paid to other lawyers at the firm of Jenner & Block.”

The record reveals that in closing argument, petitioner stated that he had paid $465,000 to or on behalf of Zurla and his partner. He concluded that, including Jenner & Block’s fees for this case, his total bill was over $723,000. Petitioner did not request that the Jenner & Block fees be credited against the Zurla bill.

Zurla has cited this court to the record of proceedings wherein the trial court stated its findings. However, we have not been provided with that portion of the record and we therefore decline to attach a meaning to the quoted statements of the court without benefit of considering them in their proper context. Moreover, the comments which Zurla quotes as having been “mentioned by the court” do not indicate to us that the court credited the Jenner & Block fees against him.

There is no requirement that the trial court make specific findings regarding fee awards (see In re Marriage of Kosterka (1988), 174 Ill. App. 3d 954, 960-61, 529 N.E.2d 12), and we decline to infer, merely from the denial of additional fees, that the court, in fact, credited Zurla with the Jenner & Block fees. That notwithstanding, we do agree with Zurla that any such credit would have been error. Thus, on remand, if the court did erroneously credit the Jenner & Block fees, it should make the necessary adjustment.

THE LITWIN PAYMENT

In January 1987, petitioner discharged Litwin as his divorce attorney. In a letter addressed to Litwin at “Litwin, Zurla & Stein,” petitioner stated that he had been dissatisfied with Litwin’s performance, and noted that he had already paid LZ&S $150,000. Petitioner wrote, “in the hopes that we still may have success and to avoid argument as to whether your efforts may have been partly responsible, I will agree to pay you an additional $150,000 fee upon fulfillment of [specified] conditions.” Included in the list of conditions was Litwin’s cooperation in transferring all files pertaining to the case, that petitioner obtain not less than joint custody and 50% time with his children, that the children be ordered to be schooled at the Latin school and that petitioner be able to keep all the stock that was then in his name. Petitioner concluded the letter by stating that he realized that Litwin could not ensure those results without being in the case and invited him to informally contact Zurla or Tom Sullivan from Jenner & Block with his “strategic suggestions, etc.”

Petitioner testified that Litwin, from the time he was discharged, continued to work on the case. He described that Litwin transferred all of the files and records, cooperated in briefing some of the medical experts, and cooperated with the Jenner & Block attorneys. In July 1987, one month after petitioner discharged Zurla, he paid Litwin the $150,000. He stated that he paid Litwin the $150,000 because he had “offered it to him and [he] felt the conditions were close enough to be met that [he] would pay him the amount.”

Zurla argues that there was no justification for crediting the payment to Litwin against the $1 million fee because petitioner made the payment voluntarily, without being billed or solicited for payment from Litwin.

Petitioner urges that the payment to Litwin was properly credited to Zurla based on principles of agency and partnership law. He argues that at the time this payment was made, the LZ&S partnership, though dissolved, was still in existence. Under the LZ&S partnership dissolution agreement, future fees received on the petitioner’s case were to be divided among the partners.

Litwin testified that at the time the partnership dissolution agreement was drawn, he and Zurla anticipated receiving the fees together, and the agreement pertained to fees paid to either of them. However, Zurla took the position that when Litwin was discharged, Zurla was also discharged and then rehired individually by Malee.

In March 1987, Litwin received a document from Zurla which proposed that each of them would keep whatever fees either of them had received or would receive in the future. The document further stated that Litwin would not share in any of the fees that Zurla might receive from petitioner. Zurla’s signature was on the document; however, Litwin did not sign it. There has been no agreement to rescind the partnership dissolution agreement.

Petitioner testified that he knew that after he had discharged Litwin, he would have to pay Zurla independently. He also stated that it was his understanding from Litwin and Zurla that all fees paid to either of them would be divided between the two. Petitioner further testified that Zurla continually told him that he was worried about his obligation to Litwin, that the fees might have to be split, and asked if petitioner would help him to get out of that agreement.

Petitioner’s testimony concerning the payment of attorney fees created a conflict. Resolution of the conflict and determinations regarding credibility of the witnesses were properly for the trial court. The court, apparently, believed that petitioner had not discharged the partnership and hired Zurla individually.

The Uniform Partnership Act provides that the dissolution of a partnership is the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on as distinguished from the winding up of the business. (Ill. Rev. Stat. 1987, ch. 106½, par. 29; Horton, Davis & McCaleb v. Howe (1980), 85 Ill. App. 3d 970, 971, 407 N.E.2d 766.) Upon dissolution, the partnership is not terminated, but rather continues until the winding up of partnership affairs is completed. (El. Rev. Stat. 1987, ch. 106½, par. 30.) Therefore, a dissolved partnership has legal existence. Horton, Davis & McCaleb, 85 Ill. App. 3d at 972.

We find Ellerby v. Spiezer (1985), 138 Ill. App. 3d 77, 485 N.E.2d 413, a case upon which petitioner relies, to be instructive. In Ellerby the law partnership dissolved. One of the partners argued that in the partnership contingent fee cases he was handling, the clients had all discharged the partnership and retained him individually after the dissolution. According to him, this entitled him to the entire fees from those cases, less a partnership claim for the reasonable value of services rendered prior to the dissolution. 138 Ill. App. 3d at 81.

The court, in rejecting the partner’s argument, stated that the result would be unsound. The court stated that the partner’s duty, in regard to the clients that he was handling, was to wind it up and complete it for the partnership. He was not entitled to take any action with respect to the unfinished business leading to purely personal gain, such as having the client discharge the partnership and hire him individually. (138 Ill. App. 3d at 81-82.) The court reasoned that to accept the partner’s reasoning would encourage partners of a law partnership facing dissolution to make attempts to convince clients with cases having the most lucrative potential to hire them individually and discharge the partnership. Further, it places the clients of the dissolved law partnership precisely where they should not be placed: in the middle of a dispute among the partners over money. 138 Ill. App. 3d at 82.

Here, the LZ&S partnership had been dissolved; however, there had been no termination. Zurla’s duty to the partnership, as was Litwin’s, was to wind up the business concerning petitioner’s dissolution case for the partnership. Petitioner’s rather cryptic letter to Litwin leaves unclear exactly what role Litwin was to play in the dissolution case. In one breath he is discharged, yet invited to offer strategic suggestions. Nonetheless, if the payment, or any part thereof to Litwin, was in fact for legitimate services he rendered in the dissolution case, the amount actually earned should be credited to the partnership, and likewise to Zurla.

We are unable to determine from the record whether, in fact, the payment to Litwin was compensation for his labors in the dissolution case. Therefore, on remand, the court should receive evidence to show what work Litwin actually performed, in the dissolution case in particular, entitling the partnership to the $150,000 payment. Absent proof that the payment, in whole or in part, was for legitimate services rendered in the dissolution case, the payment should not be credited to the partnership or to Zurla.

Before leaving this argument, we address one additional point. In his reply brief, Zurla argues that the partnership dissolution agreement between him and Litwin was erroneously admitted into evidence because petitioner was not a party to that agreement, and he had no standing to enforce its terms. We disagree.

Admissibility of evidence is generally left to the discretion of the trial court based upon its probative value and prejudicial effect. (American Fidelity Fire Insurance Co. v. General Ry. Signal Co. (1989), 184 Ill. App. 3d 601, 615, 540 N.E.2d 557, citing Laff v. Chapman Performance Products, Inc. (1978), 63 Ill. App. 3d 297, 313, 379 N.E.2d 773.) Absent a clear abuse of that discretion, the court’s ruling will not be overturned. Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 706, 450 N.E.2d 1199.

Here, the dissolution agreement was admitted for the limited purpose of determining whether petitioner should be credited with any payments which had already been made to the partnership, not to enforce the rights between the partners. We believe that the agreement was material to the court’s determination of the status of the partnership; whether there were fees due to Zurla, individually and apart from the partnership; and what payments which had been paid to the partnership should have been credited to Zurla. Thus, we find no abuse of discretion in allowing its admission.

THE LOAN GUARANTY PAYMENT

After the partnership dissolution, Zurla began sharing office space in the law offices of Edward Vrdolyak. The record reveals that Zurla consulted with Vrdolyak 70 or 80 times on petitioner’s case. According to petitioner, some time prior to the 1987 Chicago mayoral election, Zurla asked him to make a $100,000 donation to Vrdolyak’s mayoral campaign. Zurla assured petitioner that the donation would be credited against his attorney fees. Petitioner personally guaranteed a loan from the Harris Bank to Chicago Vote ’87. When Chicago Vote ’87 defaulted on the loan, petitioner paid both the principal and interest on the note.

Zurla disputes petitioner’s version of the facts. According to Zurla, petitioner had agreed to a $1 million fee with certain credits to be applied against that fee. When Sullivan contacted Zurla with the proposed fee settlement, among other credits, petitioner requested that the $100,000 loan to Chicago ’87 be credited. Zurla agreed to the credit, but only as a part of the settlement negotiation.

In his brief, Zurla states that petitioner’s loan agreement to Chicago Vote ’87, as evidenced by the unexecuted fee settlement agreement, was in return for Vrdolyak’s legal services. However, according to Vrdolyak, who attended the fee settlement meeting on Zurla’s behalf, he was never asked to sign the fee agreement, nor was he aware that his signature was necessary to the settlement of the fee dispute. Vrdolyak consistently testified that the fee was owed to Zurla.

Vrdolyak also testified that he was not affiliated in a partnership or other business association with Zurla. He was aware that Zurla represented petitioner, and occasionally, at petitioner’s request, Zurla consulted with him about petitioner’s divorce. According to Vrdolyak, petitioner told him that he wanted to help him (Vrdolyak) politically. Vrdolyak suggested that he make a donation to Chicago Vote ’87, a nonpartisan, voter registration organization. Vrdolyak stated that he thought that the $100,000 was a direct donation to Chicago Vote ’87; he was unaware that the donation was made possible because of a note which had been co-signed by petitioner and Zurla.

We are not persuaded that the loan agreement and its credit toward fees was not the plan of petitioner and Zurla. Further, we do not find, as Zurla suggests, that petitioner’s testimony conflicts with Vrdolyak’s. Merely because petitioner initiated the discussion about the contribution with Vrdolyak does not mean that the scheme was not previously the brainchild of petitioner and Zurla. Our belief is strengthened by the facts that Vrdolyak never testified that the loan guaranty was in satisfaction of fees owed to him by petitioner. He testified that he was unaware of the form of the contribution and that Zurla co-signed the loan.

The facts concerning this transaction are scant and conflicting, and we are at a loss to understand the motives of the parties in entering into this loan arrangement. The trial court was faced with the task of deciding which version of the facts was believable. To the extent that the testimony was conflicting, we repeat the old established rule that the credibility of the witnesses is for the trier of fact, who is in the best position to observe witnesses and their demeanor and assess the relative credibility of conflicting testimony on fact issues. (In re Marriage of Kaplan (1986), 149 Ill. App. 3d 23, 28, 500 N.E.2d 612; In re Marriage of Dulyn (1980), 89 Ill. App. 3d 304, 411 N.E.2d 988.) The trial court’s determination may not be disturbed on review unless it is clearly against the manifest weight of the evidence. (In re Marriage of Ligas (1982), 110 Ill. App. 3d 1, 6, 441 N.E.2d 1277.) Here, the trial court believed that petitioner and Zurla agreed that the $100,000 loan would be credited against Zurla’s fee. We will not substitute our judgment.

Zurla’s second contention on appeal is that the trial court failed to consider the relevant factors in determining the reasonableness of his fee. The determination of reasonable attorney fees is a matter within the sound discretion of the trial court. (Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 983, 518 N.E.2d 424.) Absent an abuse of that discretion, its decision will not be disturbed. Kaiser, 164 Ill. App. 3d at 984.

In determining the reasonableness of the fee, the trial court’s responsibility is not fulfilled merely by inquiring into the number of hours which counsel devoted to the matter. (Tippet v. Tippet (1978), 65 Ill. App. 3d 1018, 1021, 383 N.E.2d 13.) The criteria for determining whether fees are reasonable include the skill and standing of the attorneys; the difficulty of the questions in issue; the amount and importance of the subject matter, especially from a family law standpoint; the degree of responsibility involved in the management of the case; the usual and customary charge in the community; and the benefits resulting to the client. (In re Marriage of Armstrong (1982), 107 Ill. App. 3d 217, 219, 437 N.E.2d 761.) The most important of these factors is the amount of time necessarily spent on the case. (In re Marriage of Reczek (1981), 95 Ill. App. 3d 220, 222, 420 N.E.2d 161.) The fees allowed should be only in such amount as will compensate for the services rendered (Gasperini v. Gasperini (1978), 57 Ill. App. 3d 578, 582, 373 N.E.2d 576), and should be fair to both the party required to pay and to the attorney requesting them. (Gasperini, 57 Ill. App. 3d at 582.) Finally, the time charged for must have been necessary to handle the matter involved. Christian v. Christian (1979), 69 Ill. App. 3d 450, 459, 387 N.E.2d 1254.

Zurla first argues that the court failed to consider the complexity of the case and the fact that petitioner’s case precluded him from accepting other clients. In its written order, the court acknowledged that the case involved considerable assets. However, the court concluded that Zurla did not spend much time dealing with difficult issues concerning the assets, but rather, spent most of his time on visitation and custody matters, which did not involve novel or difficult issues.

It appears that the court did consider the complexity of the issues involved, but further determined that Zurla was not responsible for the more complex ones. We have examined the record, including Zurla’s compilation of time spent, a statement which designated the responsibilities of the attorneys in the case, and Zurla’s other exhibits. Review of Zurla’s time compilation reveals that while he devoted some time to the financial aspects of the case, most of the recorded time references visitation, custody, and the marital settlement agreement. Zurla was also responsible for the medical/psychological evidence in the case.

Zurla testified concerning the division of responsibilities. According to him, the Jenner & Block firm was responsible for the research regarding the transfer of stock, and the significance and characterization of those transfers. They were also responsible for discovery work for purposes of taking depositions and back-up trial work.

Because of the contested nature of this case concerning visitation and custody, Zurla was required to devote many hours of his time dealing with that issue. Even the slightest detail required his attention. Dr. Marshall Falk, a psychiatrist, who had been involved in the case, testified that in his experience this case required more than most custody and visitation matters.

However, Zurla is a seasoned matrimonial law attorney with experience in contested and uncontested cases. The fact that this matter was heavily contested and required his constant attention did not necessarily render the issues with which he dealt novel or difficult. We believe that the court gave proper consideration to this factor and that its conclusion was correct.

Concerning the preclusion of taking other cases, Zurla testified that he carried approximately 10 to 15 cases from the partnership, after the dissolution. While working on petitioner’s case, which required 80% of his time, he turned down other cases. In a 13-month period, he appeared in court on petitioner’s case 130 times, many of those appearances having been on emergency motions. According to him, the agreement with petitioner was that he would handle petitioner’s case exclusively.

Vrdolyak testified that petitioner’s ease took “probably all of [Zurla’s] time.” Additionally, John DeRose, an attorney who shared office space with Zurla, testified that Zurla referred two dissolution cases to him, and that Zurla was working solely on petitioner’s case for the six or seven months that they shared the office space.

In its written order, the trial court stated that there was no evidence presented that Zurla lost any business because of his work on petitioner’s case. We disagree. The testimony clearly established that he lost business. Accordingly, the court, on remand, should consider this factor in determining the reasonableness of Zurla’s fee. (See 107 Ill. 2d R. 2 — 106(b)(2).) Zurla next argues that the trial court failed to consider the “results achieved” as a factor in its determination of the reasonableness of the fees. This argument is premised on the court’s statement that it “[d]id not believe that either a multiplier or an enhanced fee is ever appropriate in a marital dissolution case.” Zurla relies on In re Marriage of Barry (1st Dist. 1988), Nos. 86— 1908, 86 — 2206 (unpublished order under Supreme Court Rule 23). In that order, this court stated that the circuit court’s determination that the attorney was not entitled to enhancement fees was supported by the evidence. From that language, Zurla concludes that enhancement fees have been approved by this court and are permissible.

As we have stated, the result obtained in a case, along with the various other factors, is a circumstance to be considered as a guide in determining the reasonableness of attorney fees. In order to avoid an irrational fee there must be a correlation between the services performed and the applicable factors. Based on the weight or value assigned to each of the relevant factors, the fee may be adjusted upward or downward. To that extent, the fee may be “enhanced” or decreased.

The key consideration in setting any fee is reasonableness. Thus, any “enhancement” or diminution which is justified by the applicable factors must necessarily be limited by what is reasonable and fair to the parties. We caution that financial ability does not warrant an allowance beyond a fair and reasonable amount. (Green v. Green (1976), 41 Ill. App. 3d 154, 170, 354 N.E.2d 661.) While we agree with the court that a multiplier would not be appropriate in a dissolution case (see Bellow v. Bellow (1981), 94 Ill. App. 3d 361, 419 N.E.2d 924), we do not agree that fees may not be “enhanced” in consideration of the circumstances involved.

Petitioner then argues that an enhanced fee or one that is based on results achieved is a contingent fee. He maintains that since contingent fee agreements in dissolution cases are void as against public policy, petitioner should be barred from recovering any fees. In re Fisher (1958), 15 Ill. 2d 139, 153, 153 N.E.2d 832; Stoller v. Onuszko (1973), 10 Ill. App. 3d 598, 295 N.E.2d 118.

Zurla responds, relying on Head v. Head (1986), 66 Md. App. 655, 505 A.2d 868, that since his fee was not based on a percentage of any amount recovered or saved it was not contingent. In Head, the court stated that because the result obtained is one of the factors considered in determining the fee, it does not render the fee contingent. (66 Md. App. at 668, 505 A.2d at 876.) In Illinois, the result obtained is also a factor to be considered as a guide in determining the reasonableness of a fee. (107 Ill. 2d R. 2 — 106(b)(4).) Thus, to the extent that Head stands for the proposition that consideration of that factor does not convert the fee into a contingency fee, we agree.

However, while Zurla’s fee arrangement would not have been contingent because of the consideration to be given to the results achieved factor, we do believe that it was contingent for another reason.

Canon 2 — 106 of the Code of Professional Responsibility defines a contingent fee agreement in the following manner:

“[A]ny agreement for the provision of legal services by a lawyer under which the amount of the lawyer’s compensation is contingent in whole or in part upon the successful accomplishment (by settlement or litigation) of the subject matter of the agreement, regardless of whether the fee is established by formula or in fixed amount.” 107 Ill. 2d R. 2 — 106(c)(1).

Here, sometime early in 1987, petitioner offered to pay Zurla $1 million if certain, particularized results were obtained. Zurla agreed to the terms of the representation, and he now argues that since those results were achieved, he should be paid the $1 million. Petitioner argues that, since the particularized goals which would trigger his requirement to pay the $1 million never occurred, he was not obligated to pay that amount. We find this agreement to be characteristic of contingent agreements as they are defined in the Code of Professional Responsibility.

Zurla alternately argues that even if the $1 million fee agreement is an illegal contingent fee contract, that should not be a bar to quantum meruit recovery. He then directs our attention to other jurisdictions wherein recovery has been allowed.

We are aware that in some jurisdictions contingent fee arrangements in divorce cases do not necessarily render the agreement void and unenforceable. The rationale in those cases is that this form of illegality does not permeate the entire contract. (See McDearmon v. Gordon & Gremillion (1969), 247 Ark. 318, 445 S.W.2d 488; Coons v. Kary (1968), 263 Cal. App. 2d 650, 69 Cal. Rptr. 712.) In still others, quantum meruit recovery has been permitted where the contingent fee arrangement was entered into after the divorce action had already been commenced. (See Hay v. Erwin (1966), 244 Or. 488, 419 P.2d 32; Morfeld v. Andrews (Wyo. 1978), 579 P.2d 426; Guenard v. Burke (1982), 387 Mass. 802, 443 N.E.2d 892.) However, the mere existence of a contrary rule in foreign jurisdictions does not persuade us toward repudiation of so well established a rule as the one here in Illinois.

Zurla then urges us to abandon our holding in Licciardi v. Collins (1989), 180 Ill. App. 3d 1051, 536 N.E.2d 840, and further, has cited to several Illinois cases wherein quantum meruit recovery has been permitted in illegal fee cases. (Brush v. City of Carbondale (1907), 229 Ill. 144, 82 N.E. 252; Nathan v. Peterson (1913), 177 Ill. App. 104; Papineau v. White (1904), 117 Ill. App. 51.) However, we note that the cases cited involved champertous transactions, not divorce. The underlying policy reasons for the prohibition of those types of agreements is to prevent multitudinous and useless lawsuits as enterprises and speculations. (7 Ill. L. & Prac. Champerty & Maintenance §2 (1954).) However, recovery of fees in those situations is permitted to prevent unjust enrichment.

In Licciardi, we held that an illegal contingency fee agreement in a dissolution case bars recovery, even under a theory of quantum meruit. We there stated that we believed that the underlying policy behind disallowing contingent fee arrangements in dissolution cases is “so important that, as long as an attorney’s services are employed with respect to the division of marital property, the rule bars contingent fees therefor.” (Licciardi, 180 Ill. App. 3d at 1061; see also In re Fisher (1958), 15 Ill. 2d 139.) Our interest in the preservation of the marital relationship is so strong as to outweigh our concerns that the party may have been unjustly enriched.

We decline to depart from our holding in Licciardi, and note that the arguments which petitioner now advances in opposition to the rule there were the same issues which were raised by the attorney in Licciardi and which we there rejected. Thus, under the rule of Licciardi, which is firmly rooted in our public policy and based on our canon of ethics, we conclude that Zurla is precluded, under any theory, from recovering on the $1 million contingency fee agreement.

However, even though we have determined that the $1 million fee agreement was illegal, we see no reason to bar Zurla recovery of any additional fees due him under the fee arrangement which was originally agreed upon between petitioner and the partnership. The policy against permitting contingent fees in divorce actions is based on a concern that if the attorney has a financial interest in the outcome of the case, reconciliation of the parties will be either deterred or prevented. (Fisher, 15 Ill. 2d at 153.) Here, the original agreement for fees was entered into prior to the filing of the petition for dissolution of marriage, and its terms were not conditioned on any particular result in the case. Thus, since the attorneys, at the time they entered into the original fee agreement with petitioner, had no interest in the outcome of the case, the agreement is not tainted by any illegality and Zurla may properly seek to recover fees based on its terms.

We are unable to determine from the record what consideration the trial court gave to the results achieved in this case. However, any determination which excluded consideration of that factor, based on the belief that to do so would be an improper “enhancement,” was error. Therefore, on remand, the court should give proper consideration to the relevant factors, including the results achieved. If, in applying these factors, it is determined that Zurla is entitled to any additional fees, they must, nonetheless, satisfy the reasonableness requirement.

Zurla’s third contention is that the court erred in not considering his time records. He argues that the fact that the records were not kept contemporaneously with the services performed should not preclude their consideration in determining the fee award. We agree.

In its written order, the trial court stated that it found that Zurla’s time records had not been kept contemporaneously and that they were not accurate. We are unable to determine, based on this finding, whether the court gave any consideration to the time records.

Zurla testified that the compilation of his time was prepared in October, November and December of 1987. The compilation was constructed by using his original time slips, daily diary, court pleadings, transcripts, telephone records which he had obtained from the telephone company, and personal notes. According to him, the entries on the compilation represented all of the hours he had worked in connection with petitioner’s case.

The burden of proving the reasonable value of the services performed clearly rests with the attorney, who must submit to the trial court evidence from which it can make a reasoned decision in accordance with the applicable law. (Fiorito v. Jones (1978), 72 Ill. 2d 73, 93, 377 N.E.2d 1019.) The preference that time records be kept contemporaneously with the performance of tasks is based on the rationale that the closer in time that the record is made, the more likely it is to be accurate. The failure to maintain contemporaneous records of the time spent rendering services greatly increases the difficulty in determining a proper fee. (Flynn v. Kucharski (1974), 59 Ill. 2d 61, 67, 319 N.E.2d 1.) However, estimates can properly be considered by the court (see Van Fleet v. Van Fleet (1977), 50 Ill. App. 3d 172, 176, 365 N.E.2d 1143), although they are clearly more susceptible to error, and thus more suspect than more properly maintained time records (Gasperini v. Gasperini (1978), 57 Ill. App. 3d 578, 585, 373 N.E.2d 576). Nonetheless, it is permissible for an attorney to reconstruct his hours from whatever information is available: date books, office records, court documents, etc. (Fiorito, 72 Ill. 2d at 94.) Moreover, proof of time spent can be evidenced not only by time records of the attorney, but also by oral testimony of persons rendering services. See In re Marriage of Collins (1987), 154 Ill. App. 3d 655, 660, 506 N.E.2d 1000.

The trial court should have considered all of the evidence concerning the time factor in order to determine what amount of time Zurla could be permitted to claim for his services. Deficiencies in documentation warrant reduction rather than denial of fees. (See Action on Smoking & Health v. Civil Aeronautics Board (D.C. Cir. 1984), 724 E2d 211, 220.) Zurla’s own testimony concerning the time, the claim that this was his only case, along with other documentation, could have cured some of the deficiencies in the compilation.

Petitioner presented expert testimony of James Hayes, a former Chicago police officer and forensic document examiner. Hayes testified that Zurla’s daily time slips had not been made contemporaneously with the services performed. Zurla testified to the contrary and maintained that the slips had been, at the least, recorded within two weeks of the time that the task was performed.

Zurla attempted to present testimony to impeach the credibility of the expert. Officer Ben Wieclawek, a detective in the Chicago police department, who was assigned to the personnel department, testified concerning Hayes’ personnel file. According to Wieclawek, he had custody of all of the personnel files, the file presented was a true and correct copy of Hayes’ personnel file and the file was kept in the ordinary course of business of the police department.

Petitioner objected to the admissibility of the personnel records. He argued that handwritten notes on the file made them untrustworthy. Petitioner maintained that unless there was proof of who had made the handwritten notes and when, the file should be excluded.

We believe that the file was improperly excluded. Supreme Court Rule 236, the business record exception to the hearsay rule, provides in pertinent part:

“(a) Any writing or record, whether in the- form of any entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but shall not affect its admissibility.” (Emphasis added.) 107 Ill. 2d R. 236(a).

Here, Wieclawek testified that the files were kept in the ordinary course of business, and he therefore satisfied the rule for their admissibility. The exclusion of the files based on Wieclawek’s lack of knowledge as to who made the handwritten notes thereon is clearly rebutted by the rule. The handwritten notes go only to the weight to be given the file, not its admissibility.

By our discussion here we intend no relaxation of the requirement that an attorney maintain contemporaneous and detailed time records. In fact, because the time element is so important, it is incumbent upon the attorney to keep detailed time records during the course of the representation. (Fiorito, 72 Ill. 2d at 88.) The trial court should not be overly burdened with the task of piecing together fragments of evidence in order to determine what fees are due. An attorney’s failure to maintain accurate records is rightfully a factor weighing against the possibility of total recovery of claimed fees.

We distinguish Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, a case upon which petitioner relies to preclude consideration of Zurla’s compilation. In Kaiser, the court found the attorney’s fee petition to be inadequate because it lacked sufficient detailed information concerning the nature of and the actual time expended on each of the tasks performed, the identity of who performed them, how they related to the litigation and whether they were necessarily required. There, petitioner’s time summary consisted of entries like “file review,” “document review,” “court appearances,” and “status,” and listed the amount of time spent on each task. There was no additional explanation or detail. The court held that the descriptions in the petition were too vague and general to satisfy the petitioner’s burden to demonstrate its entitlement to compensation.

Here, Zurla’s petition is problematic for reasons other than vagueness or over generalization. Since Zurla was the only attorney involved in petitioner’s case, there was no question as to who performed the identified tasks. While some entries contain more detail than others, we believe there is sufficient detail for the document to be useful in proving the time necessarily spent on petitioner’s case.

Zurla’s fourth contention is that the trial court erred in finding that there was no evidence offered to support his hourly rate. We agree.

Zurla testified that his highest hourly rate was $275, with no distinction between rates charged for court time and office time. It was David Grund’s, one of Zurla’s experts, belief that a reasonable hourly rate would be $275 an hour with the multiplier applied as an enhancer. Donald Schiller, another Zurla expert, stated that his minimum hourly rate was $225 per hour for non-court time and $275 for court time.

The trial court is not required to accept the attorney’s opinion of what is a reasonable fee. (Bellow, 94 Ill. App. 3d at 376.) It may rely on its own knowledge which it has acquired in the discharge of professional duties to value legal services rendered. (Richheimer v. Richheimer (1965), 59 Ill. App. 2d 354, 365, 208 N.E.2d 346.) However, attorneys are entitled to recover a fee based on what is usually and customarily charged and paid for like services in the court where the services are rendered. See Crane v. Village of Roselle (1910), 157 Ill. App. 595, 598.

Here, in addition to Zurla’s statement of what his rates are, the court heard the testimony of two experts who stated what they customarily charged in similar cases. The court’s finding that there was no evidence to support Zurla’s hourly rate was error. Based on the evidence presented, and in the trial judge’s considered judgment, the trial court should determine a reasonable hourly rate of compensation.

Zurla posits an additional argument on the issue of rates. He asserts that the trial court’s conclusion that there should be separate rates for office time and for court time has not been addressed by the Illinois Supreme Court.

While we have not found a supreme court case which addresses this issue, other Illinois case law is clear that when fees are granted in dissolution cases, it is based upon a separate hourly rate for court time and office time. (E.g., Christian, 69 Ill. App. 3d 450.) The court time rate is higher in recognition of the greater skill required. (Donnelley v. Donnelley (1980), 80 Ill. App. 3d 597, 603, 400 N.E.2d 56.) In Donnelley, the court found that the fact that there had been no distinction between court time and out-of-court time resulted in charging the client the same rate for obtaining simple motions as was charged for the analysis of financial documents. The court required that a distinction be made. (80 Ill. App. 3d at 603. See also In re Marriage of Kruse (1980), 92 Ill. App. 3d 335, 337-38, 416 N.E.2d 40 (court held that hours billed as court time should not have been since the work did not require courtroom skills); In re Marriage of Dulyn (1980), 89 Ill. App. 3d 304, 411 N.E.2d 988.) We are in agreement with and follow those cases cited herein.

Zurla’s fifth and final contention on appeal is that he should be permitted to recover $751,048.75 of the $1 million fee based on a theory of accord and satisfaction.

According to Zurla, petitioner verbally agreed to pay the sum of $751,048.75 to settle the fee dispute. The settlement amount was based on certain credits against the $1 million fee. A draft agreement of the settlement terms was drafted by Sullivan and presented for the signatures of the parties. The draft fee agreement was conditioned on the promises of Zurla and Vrdolyak not to disclose certain facts pertaining to petitioner’s dissolution case and business. Violation of the nondisclosure provision would result in liquidated damages. Zurla maintains that despite the fact that the agreement was never executed, there was an accord and satisfaction and that the nondisclosure provision was nothing more than what he was obligated to do under the Code of Professional Responsibility.

Zurla further testified that he agreed to sign the agreement but that Vrdolyak refused to do so, and that petitioner would not sign it unless Vrdolyak did so. The testimony of Vrdolyak was that he was not aware that he was to be a party to the agreement.

Our determination that Zurla may recover any reasonable fees obviates the need for us to consider his accord and satisfaction argument. However, we give the argument brief attention. In order to show an “accord and satisfaction,” there must be a bona fide dispute, the sum in dispute must be unliquidated, there must be a meeting of the minds with intent to compromise, and accord must be executed. Koretz v. All American Life & Casualty Co. (1968), 102 Ill. App. 2d 197, 201, 243 N.E.2d 586.

There was no accord and satisfaction here. First, there was apparently no meeting of the minds. Petitioner intended that Vrdolyak’s promise of nondisclosure would be a part of the agreement. However, Vrdolyak had no knowledge that he was even to be included in the settlement agreement. Additionally, the agreement was never signed. While the parties negotiated on the terms of the settlement, there was neither mutual assent nor execution of the agreement. Finally, there was no tender of the agreed-upon amount.

It is apparent to us that Zurla expended a great deal of time in his representation of petitioner. We find that the trial court failed to give due consideration to all of the necessary factors in determining whether Zurla was entitled to additional fees. Therefore, on remand the court should give careful consideration to the time factor, as well as to those other factors discussed herein, and consistent with this opinion, the court should determine a reasonable fee for necessary services rendered, applying, as credits against any award, those payments which have been discussed here.

For the foregoing reasons, we reverse and remand to the circuit court.

Reversed and remanded.

CERDA, P.J., and WHITE, J., concur.


source: Caselaw Access Project

author: JUSTICE EGAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIC ABRAMS, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—3646
    Opinion filed October 12, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Thomas M. Donnelly, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney of Chicago (Renee Goldfarb and Jane E. Loeb, Assistant State’s Attorneys,.of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

Following his plea of guilty to the offenses of aggravated criminal sexual assault and residential burglary, the defendant Eric Abrams was sentenced to consecutive sentences of 25 years for the sexual assault and 5 years for the burglary. The defendant unsuccessfully attempted to have the trial court reduce the 25-year sentence and to set concurrent sentences. He contends that the sentences were improper and that the court incorrectly considered the victim-impact statement during sentencing.

The stipulated facts are as follows: On the evening of August 24, 1986, the complainant was in her Chicago apartment located on West Chestnut Street where she lived with her roommate. Because she was alone that evening, the complainant checked the windows and doors within her apartment and determined that they were all locked except for her roommate’s bedroom window, which was slightly open due to the hot weather. That window, however, was secured by burglar bars. Sometime before 12:30 a.m., the complainant heard noises. She again checked the windows and doors and noticed that the burglar bars were still intact.

About 1 a.m. the complainant awoke when she felt the defendant touching her. Although she began to struggle, the defendant put his hands around her neck, started to choke her, and she began to lose her breath. He said that he was going to kill her. When the defendant lifted one of his hands, the complainant struggled free; the defendant followed her into the hallway, where he hit her in the stomach and neck, causing her to hit her head against a wall. The blow to her stomach doubled her over. The defendant then forced her back into her bedroom, where he first threw her to the floor and then pushed her onto the bed and forced her to submit to vaginal intercourse. She then began to scream, and the defendant fled through the back door of the apartment.

After calling the police, the complainant noticed that the burglar bars had been pried loose. It was determined that the defendant had taken jewelry and stationary cards from her roommate’s bedroom. The police later recovered the jewelry from the defendant’s girlfriend, Renee Jones. The defendant’s fingerprints were recovered from a picture frame in the roommate’s bedroom.

The complainant was examined at a nearby hospital. She had injuries on her face and lips. A vaginal swab taken from the complainant tested positive for the presence of semen.

The defendant was arrested eight days later when a resident who lived in the building next door to the complainant became suspicious of the defendant, whom he saw walking around the property, and called the police.

The defendant read and signed a statement summarizing his conversation with an assistant State’s Attorney. The defendant stated that he broke the burglar bars in front of a bedroom window and entered. He turned on a television set and looked for jewelry in a jewelry box. After he took some jewelry, he walked down the hallway “to check the rest of the apartment.” He entered another bedroom where he saw a woman sleeping. He went over to the woman and began-squeezing her neck when she “hollered.” The woman jumped up and-the covers came off her. He saw that she had no clothes on; he took off his clothes while he was holding her neck. The woman tried to run, but he pulled her back into the bed. He forced her to have sexual intercourse with him. After talking with her, he left the apartment. He later gave the jewelry he had taken to his girlfriend, Renee Jones, and told the police how to locate her.

Before the sentencing, the State filed a victim-impact statement in which the complainant said that she had lost her voice for a week as a result of the defendant choking her. She also sustained a cut lip which caused her mouth to become infected, thereby requiring that dental fillings be removed and her teeth refilled. In addition, because she could not live in her apartment, her parents came to Chicago from out of town to stay with her while she looked for a new place to live. Further, she had trouble sleeping after the incident. She missed work and sought professional help. She feared for her life during the incident, and she wanted the defendant to receive the maximum sentence. After hearing evidence in mitigation, including the testimony of the defendant, the judge imposed consecutive sentences.

Section 5 — 8—4(a) of the Unified Code of Corrections provides that a court shall not impose consecutive sentences for offenses which a defendant committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless the defendant was convicted of a Class X or Class 1 felony and the defendant inflicted severe bodily injury, in which event the court shall impose consecutive sentences. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—4(a).) Under section 5 — 8—4(b), a court shall also refrain from imposing consecutive sentences unless, having regard for the nature and circumstances of the offense and the character and history of the defendant, it is of the opinion that such a term is necessary to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—4(b).) In imposing consecutive sentences, the judge found that the theft of the jewelry and the rape were two separate acts.

Reduced to a syllogism, the defendant’s position may be summarized: Under the law, if the record shows that it was possible that the defendant entered the complainant’s apartment with the intent to commit theft and rape, consecutive sentences may not be imposed. Under this record, it was possible that the defendant entered the apartment with the intent to commit theft and rape. Therefore, the consecutive sentences were improper. We would agree with the defendant’s logic, if we accepted the first premise. We cannot accept it.

The defendant relies principally on People v. Davis (1986), 151 Ill. App. 3d 435, 502 N.E.2d 780. In Davis, the complainant was awakened by a man who put a hand over her mouth and a knife to her throat. He told her not to look at him or he would kill her children. After raping her, he tied her hands behind her back, left the room and walked around the house. He returned and asked where her money was. After she said she did not have any, he raped her again. After he left the house she determined that her purse containing $4, a video cassette recorder and her car were missing. The video cassette recorder was recovered from a woman who testified the defendant had given it to her. The complainant identified the defendant by his voice. The defendant was convicted of residential burglary, home invasion and aggravated criminal sexual assault.

At the sentencing hearing, another woman testified that less than one month before the rape for which the defendant was convicted, he wakened her in her bedroom. He wielded a knife and ordered her to remain silent or he would kill her. She screamed and struggled, and the defendant fled. She subsequently discovered that money from her pants pocket and purse, as well as her video cassette recorder, were missing. The court then imposed consecutive, extended-term sentences for the home invasion and aggravated criminal sexual assault.

The appellate court held that the imposition of consecutive sentences was error, stating as follows:

“We agree with defendant that there is nothing in the record to support the trial court’s finding that defendant’s sole objective in entering [the complainant’s] home was burglary and that he formed the intent to sexually assault [the complainant] only after he entered her home. It is equally possible under this evidence that defendant entered [the complainant’s] home with the intent to commit both a theft and a sexual assault. We conclude the trial court erred in imposing consecutive sentences. [Citation.]” 151 Ill. App. 3d at 445.

We conclude from the Davis opinion that its emphasis on what was “equally possible” arises from its reliance on People v. Morgan (1976), 44 Ill. App. 3d 459, 358 N.E.2d 280. In Morgan, the defendant was convicted of burglary and arson and given consecutive sentences. The evidence consisted of the defendant’s fingerprint found on a piece of glass at the scene and his implied admission. A witness testified that she asked the defendant what his purpose was in setting the fire, and he answered, “How do you know I did it?” She told him that his brother had told.her. His brother then told the defendant he might as well “own up to it because [the woman] knew it.” The defendant “just sort of laughed and shrugged it off.” (44 Ill. App. 3d at 462.) At the time of sentencing the judge said the following to the defendant:

“You went in there to steal, became mad and you decided to burn it. So considering [the section of the Code authorizing consecutive sentences] the court finds that there was a substantial change in the nature of the criminal objective and therefore that a consecutive sentence should be granted.” 44 Ill. App. 3d at 467.

The appellate court noted that there was nothing in the record upon which the trial judge could base such a finding. It added:

“It is possible that the defendant entered the [building that was burned] that night with the intent to commit a theft and burn the building. This possibility, however, is not evidenced in the record anymore than is the suggestion by the State that a change in the defendant’s intent and objective took place once
he failed to open the safe.
* * *
*** It is plausible that burning the building was part of defendant’s whole scheme. The record fails to disclose sufficient facts upon which to base an inference one way or the other. The judge must limit himself to the evidence adduced of record when imposing sentences. [Citations.]
An objective reading of the record fails to reveal anything to support the trial judge’s finding ‘that there was a substantial change in the nature of the criminal objective.’ Therefore, there is no basis for the court’s decision to impose consecutive sentences.” (Emphasis in original.) (44 Ill. App. 3d at 467.)

The Davis court relied on the appellate court language in Morgan that it was “ ‘possible that the defendant entered the [building that was burned] that night with the intent to commit a theft and burn the building.’ (Emphasis in original.)” Davis, 151 Ill. App. 3d at 445, quoting Morgan, 44 Ill. App. 3d at 467.

We do not believe that Morgan is support for so broad a rule that in determining the propriety of consecutive sentences a court is barred from imposing a consecutive sentence if there is any “possibility” that the criminal acts did not manifest a substantial change in the nature of the criminal objective. There is no evidence recited in the Morgan opinion to support any finding of an intent to steal. We assume from the State’s argument in that case that there was some evidence of an unopened safe. The court said that the record failed to disclose sufficient facts upon which to base an inference one way or another. (44 Ill. App. 3d at 467.) We agree with that observation of the court. However, that observation is not applicable in this case. Here, the defendant took property from an empty bedroom. He was unaware of the presence of the complainant until he saw her in the bedroom after he left her roommate’s bedroom, in his words, to “check the rest of the apartment.” When the woman jumped up and the covers came off her, he saw that she was nude. He then took his clothes off and raped her. In our judgment, the record did disclose sufficient facts upon which to base an inference that the intent to rape came after the defendant had stolen the property and thus supported the trial judge’s finding that there was a substantial change in the nature of the criminal objective.

Our rejection of the defendant’s argument is supported by the supreme court’s holding in People v. Williams (1975), 60 Ill. 2d 1, 322 N.E.2d 819. The defendant and another man forced their way into the home of the victims, husband and wife. A scuffle ensued, and the husband, who was carrying an unloaded revolver, was shot and killed. The two men then entered the wife’s bedroom and tied her up. They left the home after taking money and other property. The defendant was convicted of burglary, armed robbery and murder, and the court ordered the sentence for murder to be served consecutively to the sentences for burglary and armed robbery. In upholding consecutive sentences for robbery and murder, the supreme court held that the purpose of the entry was robbery, not murder, and that the criminal objective “shifted, at least partially,” to murder when the robbers confronted the husband with a gun. (60 Ill. 2d at 15.) We believe that under the facts of Williams it was possible that when the defendant entered the home with a gun he intended to kill someone. Implicitly, in our judgment, the supreme court has rejected the defendant’s argument.

The standard of proof urged upon us by the defendant is unknown to the law. Even conviction of a criminal offense does not require proof to such a degree. It is significant that in Morgan, relied on by the defendant, the court discussed the burden of proof for conviction in a circumstantial evidence case. It concluded that the “defendant’s guilt need not be proved beyond any possibility of a doubt” (emphasis added) (Morgan, 44 Ill. App. 3d at 465); and that a “jury is not required to search for a series of possible explanations compatible with innocence to elevate them to the status of reasonable doubt. [Citation.]” (Emphasis added.) 44 Ill. App. 3d at 466.

We also note that in sentencing a court need not be satisfied of the existence of aggravating circumstances beyond a reasonable doubt. (People v. Perez (1981), 101 Ill. App. 3d 64, 427 N.E.2d 820.) We see no reason why the same standard of proof should not apply to the factual determination by a trial judge of whether multiple criminal acts support the imposition of consecutive sentences. On review, the trial judge’s determination should not be gainsaid unless a reviewing court can say that the trial judge’s decision was manifestly erroneous. In this case, we believe that the evidence supports the trial judge’s finding and that the finding was not manifestly erroneous.

We have already expressed the view that Morgan, relied on by Davis, does not support the rule suggested by the defendant. In addition, we cannot be certain that the Davis court intended to express such a rule, and we prefer to restrict Davis to its facts. If the Davis opinion is to be read as the defendant suggests, we must respectfully express disagreement with it.

The defendant next contends that his sentences were excessive because he was a first-time offender, he had a good school performance record, a supportive family, he was 15 years old at the time of the occurrence and he was contrite about having attacked the victim. We have examined the remarks of the trial judge before sentencing and are convinced that he considered all factors required by the law, including all of the evidence in mitigation. (See People v. Plantinga (1985), 132 Ill. App. 3d 512, 477 N.E.2d 1299.) The crime itself, invading a woman’s home and raping her, is extremely heinous. Add to that the facts that the defendant choked her to the point she could not breathe, struck her in the stomach and face causing lacerations to her lip and repeatedly threatened to kill her. In our judgment, the record supports the judge’s exercise of discretion, and we would be usurping his function if we were to reduce the sentence. See People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.

The defendant’s last contention is that the court erred for a number of reasons in considering the complainant’s victim-impact statement. First he maintains that consideration of the statement violates article I, section; ll, of the Illinois Constitution. (Ill. Const. 1970, art. I, §11.) The Constitution provides that when determining the sentence to be imposed upon a defendant, the court must consider both the seriousness of the offense and the possibility of restoring the defendant to useful citizenship. The defendant argues that because those factors do not specifically include consideration of the crime’s effect on the victim, such consideration is barred under the Illinois Constitution. We do not agree. It is obvious that the victim-impact statement illustrates and elaborates upon the seriousness of the defendant’s crime which, in turn, includes its effect upon the complainant. It reasonably follows, therefore, that consideration of the victim-impact statement is not barred under the Illinois Constitution.

The defendant further contends that the victim-impact statement was inadmissible because he was denied the right to cross-examine the complainant. Although the victim-impact evidence is inadmissible in capital cases, such a rule does not apply to a noncapital sentencing hearing where facts about the victim may prove to be relevant. (People v. Turner (1989), 128 Ill. 2d 540, 539 N.E.2d 1196.) Pursuant to the reasoning of Turner, the complainant’s statement was admissible. Her statement was also admissible under the statutory requirement. Specifically, the statute provides that victims of violent crimes have the opportunity to prepare, as evidence in aggravation and mitigation, a written statement regarding how the crime has affected their lives. Such a statement must be prepared in conjunction with the State’s Attorney before it may be presented orally at the hearing. Any sworn testimony which the victim offers is subject to the defendant’s right to cross-examine. (Ill. Rev. Stat. 1985 ch. 38, par. 1005 — 4—1(a)(6).) Under the plain meaning of the statute, the oral presentation of the victim’s statement is permissive rather than mandatory. (Cf. People v. Felella (1989), 131 Ill. 2d 525, 546 N.E.2d 492.) Because the complainant’s statement was presented only as a written statement, it did not constitute sworn testimony within the purview of the statute, and thus the complainant was not necessarily subject to cross-examination.

For these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

LaPORTA, P.J., and RAKOWSKI, J., concur.


author: JUSTICE MURRAY

text:
    EDWARD MANN et al., Plaintiffs-Appellees, v. LA SALLE NATIONAL BANK, as Trustee, et al., Defendants-Appellants.
    First District (5th Division)
    No. 1—89—2105
    Opinion filed October 12, 1990.

      Craig Cooper, of Chicago (Sidney Z. Karasik and Paul R. Karasik, of counsel), for appellants.

      George B. Collins and Christopher Bargione, both of Collins & Bargione, of Chicago, for appellees.
   JUSTICE MURRAY

delivered the opinion of the court:

This appeal is from an order of the circuit court of Cook County granting plaintiffs title by adverse possession to a parcel of land whose legal titleholder had been trust No. 841, with Irene Breen as trustee and John Waters as beneficiary. Upon review of the record we find that the trial court’s award of title to plaintiffs was against the manifest weight of the evidence and so we reverse.

On September 14, 1987, Edward and Holly Mann (plaintiffs) filed an action to quiet title to a 35-foot by 131.31-foot parcel of land at 841 Park Plaine Avenue in Park Ridge, Illinois, which is immediately adjacent to property they own at 837 Park Plaine Avenue. The 35-foot strip of land is an unimproved partial lot located just north of plaintiffs’ property and situated at the southeast corner of the intersection of Park Plaine and Virginia Avenues. (See diagram.) Its legal description is as follows:

“North 35 feet of Lot 38 in Oakton Manor Second Addition, being a Subdivision in the East half of the Northeast quarter of the Northwest quarter of Section 27, Township 41 North, Range 12 East, of the Third Principal Meridian of Cook County, Illinois.”

Plaintiffs asserted title by adverse possession, claiming that they and their predecessors, Robert and Janet Nau, used the parcel of land openly, adversely, continuously, exclusively and notoriously for a period of time in excess of 20 years.

The evidence adduced at trial showed that in 1957 Robert and Janet Nau purchased a parcel of land, now known as 837 Park Plaine Avenue in Park Ridge. The legal description of this property is as follows:

“Lot 38 (except the North 35.0 feet thereof), in Oakton Manor Second Addition, being a Subdivision in the East half of the Northeast quarter of the Northwest quarter of Section 27, Township 41 North, Range 12 East, of the Third Principal Meridian;
Lot 8 in Oakton Manor Third Addition being a Subdivision of the West half of the North 3 acres of the South 10 acres of the following described parcels (taken as a tract) that part of the East half of the Northeast quarter of the Northwest quarter South of the Chicago and Northwestern Railroad of the East 9.971 chains of the North 1.26 chains of the Southeast quarter and the Northwest quarter of Section 27, Township 41 North, Range 12 East of the Third Principal Meridian in Cook County, Illinois.” (Emphasis added.)

As can be seen from the above description, the 35-foot strip of land in question was specifically excluded from the deed of title to the Naus’ property, and Robert Nau testified that he knew that the northern 35-foot strip of land adjacent to his property did not belong to him, although he did not know the owner of that parcel of land. In spite of this knowledge, Nau excavated and “brought up to grade” this parcel of land when he built his home on his own property. Thereafter, Nau planted grass, shrubs, and trees on this “side yard” and used the property as he would his own, mowing the lawn in the summer and shoveling the snow in the winter. Nau also testified that in 1963 or 1964 he installed a sandbox and swing set on the subject property which remained there for a period of five years or more.

In May 1981 the Naus entered into an installment agreement for a warranty deed to sell the property known as 837 Park Plaine Avenue to the plaintiffs. Mr. Nau testified that he told the plaintiffs that the 35-foot “side yard” was theirs to use as he had used it, but Nau did not convey title to this parcel of land in the warranty deed he issued to the Manns.

On cross-examination Mr. Nau was asked whether he attended a Park Ridge Zoning Board meeting in 1972 or 1973 concerning a zoning variance that had been sought for the 35-foot parcel. Although Mr. Nau claimed that he could not recall this, he was presented with various documents that indicated that he had presented a petition to the zoning board in opposition to the granting of the variance and that he had indicated at that meeting that he was attempting to purchase the subject property.

Edward Mann testified that when he obtained the warranty deed to the property at 837 Park Plaine Avenue in 1981 he believed that he was receiving title to the 35-foot parcel, but that he later discovered that the property in question was not contained within the legal description of the conveyance. However, Mr. Mann also testified that Mr. Nau had told him, in a conversation prior to the purchase of the property at 837 Park Plaine Avenue, that “he [Mr. Nau] had been using and maintaining the side yard and that he was giving it to me to do the same.” In any event, from June 1981, after taking up residence at the adjacent property, Mr. Mann used and maintained the 35-foot parcel, planted trees there, mowed the lawn and, in 1984, built a fence around the property.

Mr. Mann did admit, however, that after the fence was built he was contacted by Mr. Waters, asking that he stop using the 35-foot parcel and to remove the fence. In response Mr. Mann contacted an attorney, who wrote a letter to Mr. Waters indicating that the Manns would comply with Mr. Waters’ wishes if he could prove his ownership of the property.

The only additional evidence presented by the plaintiffs was the testimony of a neighbor, Don Rush, who stated that the only persons he saw on the 35-foot parcel of land, during the 23 years that he resided in the neighborhood, were the Naus and the Manns.

The defendants presented evidence to establish the legal chain of title to the subject property, as well as evidence to refute plaintiffs’ claim of adverse possession. It was shown that the record titleholder to the subject property had been Gladys Spenc, who conveyed by quitclaim deed to B. Voncke in 1961. B. Voncke, in turn, conveyed the property to La Salle National Bank under trust No. 24184. In 1973, La Salle National Bank conveyed to Ellenora Kelly, who was apparently a “strawperson” used to facilitate the transfer of the property from one trust to another, since the next day Ellenora Kelly conveyed to Irene Breen as trustee of trust No. 841, whose sole beneficiary was John Waters.

Mr. Waters testified that he purchased the subject property in January 1973, but that he had attended the Park Ridge Zoning Board meetings in June 1972, at which time a variance was sought to allow construction on the 35-foot parcel. Waters noted that Mr. Nau had been present and had vigorously opposed the variance, but that the variance had been granted over Nau’s objection.

Waters also stated that he visited the property on several occasions after purchasing it in 1973 and that the property always had the appearance of a vacant lot until approximately 1984, when Mr. Mann began cutting trees and then built a fence. Waters then immediately contacted Mr. Mann, asking him to stop using the property and to remove the fence. Waters also produced several receipts for the taxes he paid on the property during the years between 1973 and 1987.

Edward and Holly Mann were called as adverse witnesses. Holly Mann admitted that she saw Mr. Waters near the subject property, attempting to dislodge one of the fence posts, although this apparently took place in 1987, after the Manns filed their action. Mr. Mann, however, testified that he had written a letter in 1981 and that the intent of the letter was to inquire about purchasing the subject property.

Finally, Mr. Randal Derifield, the director of community preservation and development for Park Ridge, testified that he was the recordkeeper for the zoning board of appeals. He then produced several documents, kept in the course of business, which verified that a zoning variance had been sought and obtained by the record titleholder for the 35-foot parcel in question, over the objection of Mr. Nau.

After hearing closing arguments, the trial court ruled in favor of plaintiffs and against defendants, granting Edward and Holly Mann title in fee simple to the 35-foot parcel known as 841 Park Plaine Avenue in Park Ridge, Illinois, and divesting defendants of all interest in the same. It is the final order entered upon this ruling that defendants now appeal.

There is no dispute, and the trial court correctly held, that the law in Illinois pertaining to the acquisition of title to property by adverse possession requires a showing, by clear and unequivocal evidence, that during the 20-year prescriptive period, possession of the property by the claimant and any predecessors whose possession claimant seeks to “tack” was (1) continuous, (2) hostile or adverse, (3) actual, (4) open, notorious and exclusive, and (5) under a claim of title inconsistent with that of the true owner. (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 101; Thorman v. Cross (1989), 185 Ill. App. 3d 590, 594-95, 541 N.E.2d 840; Tapley v. Petersen (1986), 141 Ill. App. 3d 401, 404, 489 N.E.2d 1170.) Each element must have existed concurrently for the full 20-year period before the doctrine shall apply. (Joiner v. Janssen (1981), 85 Ill. 2d 74, 81, 421 N.E.2d 170.) Every presumption is in favor of the record titleholder (Perivoliotis v. Pierson (1988), 167 Ill. App. 3d 259, 521 N.E.2d 254; Morris v. Humphrey (1986), 146 Ill. App. 3d 612, 496 N.E.2d 1209) and to overcome the presumption requires strict proof of the element, which may not be made out by inference or implication. (In re Estate of Tobin (1988), 176 Ill. App. 3d 580, 586, 531 N.E.2d 440.) In light of these standards, plaintiffs’ proof with respect to the five elements falls short. We find, therefore, that plaintiffs failed to establish their right to the land by adverse possession and that the trial court’s finding in favor of plaintiffs was against the manifest weight of the evidence.

Plaintiffs obtained title to the property adjacent to the subject property in 1981 and began using the subject property at that time. Therefore, in order to meet their burden of proof concerning the “continuous” usage of the subject property for the statutory period, plaintiffs were required to show that their predecessors (the Naus) also held the subject property adversely, thereby allowing plaintiffs to link or “tack” their predecessors’ possession to that of their own.

Although evidence of the use and control over land is the typical manner by which any claimant establishes title by adverse possession, it must be clearly shown that the use of the land was adverse and not merely permissive, since permissive use of land, no matter how long, can never ripen into an adverse possessory right. (Thorman v. Cross, 185 Ill. App. 3d at 595.) In the present case, the land in question was essentially an unenclosed vacant lot until 1984. Therefore, any use of the property by the Manns until 1984 and by the Naus prior to 1981 was presumptively permissive and not adverse. See Morris v. Humphrey, 146 Ill. App. 3d at 615 (use of vacant and unenclosed land is presumed to be permissive).

In addition, other evidence contradicted plaintiffs’ claim that the use of the property during the 20-year period was hostile and exclusive. To be “hostile” or adverse a claim need not demonstrate any actual ill will, but merely an assertion of ownership incompatible with any other claim of right. In this case, however, there was evidence that Mr. Nau made attempts to purchase the property from the record titleholder. This type of offer to purchase indicates a recognition of a superior title to the property and may be interpreted as a disavowal of the right to possession, which serves to defeat a claim of title by adverse possession. See 3 Am. Jur. 2d, Adverse Possession §§52, 119, at 147-48, 207-08 (1986).

Furthermore, it is undisputed that the record titleholder sought and obtained a zoning variance for the subject property from the Village of Párk Ridge and that this variance was opposed by Mr. Nau, not on the basis of his claim of right of title to the property. The seeking of a variance was an act of dominion over the property by the record titleholder in 1972, and again in 1973, which served to interrupt the continuity of possession by the Naus. Additionally, recognition of the record titleholder by the Village of Park Ridge casts some doubt on plaintiffs’ claim that their possession, and that of their predecessors, was open, notorious and exclusive. See 3 Am. Jur. 2d, Adverse Possession §317, at 411 (1986).

For these reasons we find that the evidence of adverse possession by plaintiffs was insufficient to overcome the presumption in favor of the record titleholder and that the plaintiffs’ use of the premises was more aptly characterized as permissive rather than adverse.

The judgment of the circuit court of Cook County is reversed.

Reversed.

COCCIA, P.J., and GORDON, J., concur.


author: JUSTICE RAKOWSKI

text:
    MARILEE SEEF et al., Plaintiffs-Appellants, v. FRANK SUTKUS et al., Defendants-Appellees.
    First District (6th Division)
    Nos. 1—88—1835, 1—88—3180 cons.
    Opinion filed October 12, 1990.

      Michael W. Rathsack, of Chicago (Philip F. Maher and Stephen E. McLean, of counsel), for appellants.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Diane Cernivivo, and Gerald Haberkorn, of counsel), for appellees.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

This medical malpractice action arises from the stillbirth of an allegedly viable fetus. Plaintiffs Marilee and Michael Seef, parents of Baby Boy Seef, filed suit against defendants Frank Sutkus, M.D., and Ingalls Memorial Hospital, alleging that the death was caused by negligent failure to monitor the condition of the fetus and timely perform a caesarean section. The amended complaint sought recovery as follows:

(1) On behalf of Marilee Seef, alleging negligent infliction of emotional distress arising from the death of her viable fetus (counts I and II).

(2) On behalf of Michael Seef, for loss of his wife’s consortium as a result of her emotional distress (counts III and IV).

(3) On behalf of the estate of Baby Boy Seef, alleging medical malpractice and seeking, as part of the damages claimed, compensation for the parents’ loss of the fetus’ companionship and society (counts V and VI).

Defendants moved for dismissal of the amended complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). On May 9, 1988, the circuit court dismissed counts I through IV and struck those portions of counts V and VI (the wrongful death claim) that sought damages for parental loss of society. Plaintiffs later voluntarily dismissed the remaining portions of the wrongful death counts.

The issues presented on appeal are: (1) whether plaintiffs’ amended complaint stated a cause of action for negligent infliction of emotional distress when it did not plead that Mrs. Seef ever feared for her own safety as a result of defendants’ negligence, and (2) whether, in a wrongful death action, plaintiffs can claim damages for loss of society of an unborn child. We affirm on the first issue and reverse and remand on the second.

The facts alleged in the complaint are that Marilee Seef was under the care of defendant Sutkus during her pregnancy. On June 9, 1980, Mrs. Seef, 38 weeks pregnant, was admitted to defendant In-galls Memorial Hospital. At the time of admission to Ingalls, Mrs. Seef complained to Sutkus and to hospital personnel about “changes in the activities and responses of her fetus.” At that time, Baby Boy Seef was capable of separate and independent life. Defendants failed to monitor the condition of this unborn child and delayed in performing the caesarean section which would have saved his life. He died on June 10, 1980.

On November 16, 1981, Michael Seef was appointed special administrator of the estate of Baby Boy Seef. In that capacity, he filed a wrongful death action which claimed, among other things, that, as a result of the death of their child, he and his wife sustained damages for the loss of the society of Baby Boy Seef.

The trial court dismissed counts I and II for negligent infliction of emotional distress to Mrs. Seef because the complaint did not plead that she had been within the zone of danger and in fear for her own safety. The court also dismissed counts III and IV, which were derivative counts for loss of consortium suffered by Mr. Seef.

In striking those portions of counts V and VI (the wrongful death claim) that sought recovery for parental loss of society, the court followed the one Illinois case exactly on point at that time, Hunt v. Chettri (1987), 158 Ill. App. 3d 76, 510 N.E.2d 1324, appeal denied (1987), 116 111. 2d 555, 515 N.E.2d 108, from the fifth district.

When a court reviews a motion to dismiss on the pleadings, it must accept all well-pleaded facts as true and should not grant the motion unless it is clear that no set of facts can be proved which would entitle the plaintiff to relief. Ogle v. Fuiten (1984), 102 Ill. 2d 356, 360-61, 466 N.E.2d 224.

I

The plaintiffs first contend that the trial court erred in dismissing counts I and II (and the derivative counts III and IV) on the ground that plaintiffs did not state a cause of action for negligent infliction of emotional distress when they failed to plead that Mrs. Seef was- ever in the zone of danger for injury as a result of defendants’ negligence. We disagree.

For an action in negligence, a plaintiff must plead that: (1) the defendant owed a duty to that particular plaintiff; (2) the defendant breached this duty; (3) the defendant’s breach was the proximate cause of injuries to the plaintiff; and (4) these injuries caused damages. (Horak v. Biris (1985), 130 Ill. App. 3d 140, 144-45, 474 N.E.2d 13.) Courts generally have been reluctant to allow recovery for a plaintiff who suffered purely mental or emotional distress because such injuries are not easily foreseeable. (Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 555, 457 N.E.2d 1.) Thus, historically, plaintiffs with a cause of action for the negligent infliction of emotional distress had to plead some contemporaneous physical injury or impact to themselves. Rickey, 98 Ill. 2d at 553.

In Rickey, the Illinois Supreme Court eliminated the impact requirement and substituted a zone-of-danger rule to define the parties to whom the defendant might owe a duty. (Rickey, 98 Ill. 2d at 555.).Under this rule, “a bystander who is in a zone of physical danger and who, because of the defendant’s negligence, has reasonable fear for his own safety is given a right of action for physical injury or illness resulting from emotional distress.” (Rickey, 98 Ill. 2d at 555.) Thus, for negligent infliction of emotional distress, a plaintiff must now plead that either (1) he suffered direct impact or (2) he was in a zone of danger that caused him to fear for his own safety and further that he suffered physical injury or illness as a result of his emotional distress. Courtney v. St. Joseph Hospital (1986), 149 Ill. App. 3d 397, 403, 500 N.E.2d 703.

Parents of an unborn child are not ipso facto in the zone of danger for negligence involving that child. (Siemieniec v. Lutheran General Hospital (1987), 117 Ill. 2d 230, 260-62, 512 N.E.2d 691.) Illinois courts have found parents outside the zone of danger when negligent genetic counselling results in the birth of a hemophiliac child (Siemieniec, 117 Ill. 2d at 260-62); when hospital personnel allow a newborn to fall off a delivery table (Villamil v. Elmhurst Memorial Hospital (1988), 175 Ill. App. 3d 668, 670-72, 529 N.E.2d 1181); and when negligence is a factor in the delivery of a stillborn child (Hunt (1987), 158 Ill. App. 3d at 79-80; Robbins v. Kass (1987), 163 Ill. App. 3d 927, 930-32, 516 N.E.2d 1023).

On appeal the Seefs contend that they have pled a cause of action for negligent infliction of emotional distress. First, they allege that Mrs. Seef did suffer direct contemporaneous injury because she was still carrying Baby Boy Seef and, since she and her child were a single entity, she was also subject to any treatment he did or did not receive. Second, they claim that the zone-of-danger test does not apply because Mrs. Seef was herself a direct victim of the malpractice, not a bystander. Third, they assert that the zone-of-danger test is satisfied because of the inherently close relation between mother and unborn child.

To support their contention, the Seefs rely on Corgan v. Muehling (1988), 167 Ill. App. 3d 1093, 522 N.E.2d 153, and Hunt. However, the Corgan court decided the zone-of-danger test did not apply when a therapist had engaged in sexual relations with a patient because the plaintiff was suing directly for malpractice against herself, not for emotional distress over the treatment accorded a third party. (Corgan, 167 Ill. App. 3d at 1102.) Furthermore, the Hunt court stated that the unusual facts of that case may not fall into the zone-of-physical-danger rule contemplated in Rickey and then denied recovery for the parents of an unborn child. Hunt, 158 Ill. App. 3d at 80.

The Seefs’ complaint alleges facts very similar in relevant detail to those of Robbins. In that case, plaintiffs sued a hospital after their baby was stillborn while the parents waited for hospital personnel to return to their room and help them. The court denied recovery for negligent infliction of emotional distress on the basis that the zone-of-danger rule allows recovery only if plaintiffs suffer a reasonable fear for their own safety, not if they simply fear for the safety of a third person. Robbins, 163 111. App. 3d at 930.

The Robbins court did not treat the mother and child as a single entity. Nor did that court determine that the mother was, ipso facto, in the same zone of danger as her unborn child. Similarly, in this case, plaintiffs have not pleaded that Mrs. Seef feared for her own safety within a zone of danger. Thus, like the plaintiffs in Robbins, the Seefs did not plead the elements of negligent infliction of emotional distress.

Furthermore, plaintiffs have not pleaded any facts showing a direct injury to Mrs. Seef which could form an alternative to damages based on indirect harm through the death of Baby Boy Seef. SeeDralle v. Ruder (1988), 124 Ill. 2d 61, 72-74, 529 N.E.2d 209.

For these reasons, we affirm the decision of the trial court in dismissing counts I and II, and the derivative counts III and IV, for failure to state a cause of action.

II

Plaintiffs also contend that the trial court erred in dismissing those portions of counts V and VI which claimed loss of society due to the wrongful death of a viable unborn child.

Under the Illinois Wrongful Death Act:

“The state of gestation or development of a human being when an injury is caused, when an injury takes effect, or at death, shall not foreclose maintenance of any cause of action under the law of this State arising from the death of a human being caused by wrongful act, neglect or default.” (Ill. Rev. Stat. 1987, ch. 70, par. 2.2.)

The Act also provides that “the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death.” Ill. Rev. Stat. 1987, ch. 70, par. 2.

• 8 Courts have defined the meaning of pecuniary to include marital companionship, parental care, instruction, and many other aspects of family relationships. (Elliott v. Willis (1982), 92 Ill. 2d 530, 535-41, 442 N.E.2d 163.) The term does not, however, extend to the grief or mental anguish that family members suffer after a wrongful death. Elliott, 92 Ill. 2d at 539.

Illinois law has not fully delineated the bases for awarding damages for a wrongful death when a child dies before birth. (Ill. Rev. Stat. 1987, ch. 70, par. 1 et seq.) In Chrisafogeorgis v. Brandenberg (1973), 55 Ill. 2d 368, 304 N.E.2d 88, the Illinois Supreme Court found a cause of action for the wrongful death of a viable child born dead as a result of injuries negligently inflicted en ventre sa mere. In Jones v. Karraker (1983), 98 Ill. 2d 487, 489-92, 457 N.E.2d 23, the court found that a rebuttable presumption of substantial pecuniary loss was sufficient to support pecuniary damages for the death of a viable fetus, but the court did not specify if those damages included loss of society. In Bullard v. Barnes (1984), 102 Ill. 2d 505, 512-18, 468 N.E.2d 1228, the court held that the typical family experience no longer supports the presumption of loss of future earnings at the death of a minor child; instead, courts should presume loss of society. That court held further that defendants could rebut this presumption with evidence that a parent and child were estranged. (Bullard, 102 Ill. 2d at 517.) In Ballweg v. Springfield (1986), 114 Ill. 2d 107, 118-21, 499 N.E.2d 1373, the court allowed a presumption of damages for loss of society of an adult child. None of these decisions, however, indicate just when parents begin to enjoy the society of a child or suffer a loss of that society after wrongful death.

Plaintiffs assert that the Chrisafogeorgis court drew the proper line for damages in 1973 when it first held that there is a cause of action for the wrongful death of a viable child en ventre sa mere. (Chrisafogeorgis, 55 Ill. 2d at 374-75.) Since that decision, the 1980 amendment to the Wrongful Death Act extends the cause of action to any fetal death without limiting action to a viable fetus and without specifying the kinds of damages available at stages of fetal development. Ill. Rev. Stat. 1987, ch. 70, par. 2.2.

The relevant facts in this appeal are undisputed. Plaintiffs’ complaint alleges that defendants’ negligence caused the death of Baby Boy Seef before his birth. Thus, the question on appeal is whether we can affirm as a matter of law that damages under the Wrongful Death Act do not include loss of society for a viable, unborn fetus.

The trial court did so rule, relying on Hunt v. Chettri, a fifth district opinion. One Federal case has also followed Hunt, Denham v. Burlington Northern R.R. Co. (N.D. Ill. 1988), 699 F. Supp. 1253. Denham did not provide any reasoning in support of its decision. It simply followed Hunt. Recently, however, the first district has allowed parents of an unborn child to claim damages for loss of society in Smith v. Mercy Hospital & Medical Center (1990), 203 Ill. App. 3d 465.

We have carefully considered both Hunt and Smith, and we agree with the result reached in Smith. In so doing we are not unmindful of the reasoning set forth in Hunt. However, we do believe for the following reasons that Smith is more in accord with the supreme court pronouncements in Chrisafogeorgis and the 1980 amendment to the Wrongful Death Act.

The Hunt court defined “ ‘society’ ” as a term that “ ‘embraces a broad range of mutual benefits each family member receives from the others’ continued existence, including love, affection, care, attention, companionship, comfort, and protection.’ ” Hunt, 158 Ill. App. 3d at 78, quoting Sea-Land Services, Inc. v. Gaudet (1974), 414 U.S. 573, 585, 39 L. Ed. 2d 9, 21, 94 S. Ct. 806, 815.

Following Bullard, the court asserted that a presumption of damages for loss of society can be defeated by evidence of estrangement. (Hunt, 158 Ill. App. 3d at 78, citing Bullard, 102 Ill. 2d at 517.) This use of evidence, the court reasoned, presumes the existence of a tangible relationship.

The court reasoned further that “ ‘[w]hen children are wrongfully killed, the parents’ investment *** in affection, guidance, security and love is destroyed. Society recognizes the destruction of that value whether a child is a minor or an adult.’ ” (Hunt, 158 Ill. App. 3d at 79, quoting Ballweg, 114 Ill. 2d at 120.) When an unborn child dies, however, “no guidance, love, affection or security has been exchanged.” (Hunt, 158 Ill. App. 3d at 79.) Therefore, the court continued, allowing damages for an unborn child would be tantamount to compensating for mental anguish, which is prohibited under Illinois law in wrongful death cases (Hunt, 158 Ill. App. 3d at 79, citing Bullard, 102 Ill. 2d at 514-15; Elliott, 92 Ill. 2d at 539).

The court acknowledged that the loss suffered by parents could be virtually identical when a child is stillborn or dies immediately after birth. Nevertheless, the court held that the point to begin measuring loss-of-society damages is with bonding at birth, when, in the court’s view, a mutual relationship begins. Hunt, 158 Ill. App. 3d at 79.

To support this ruling, the Hunt court first stated it failed “to see how a defendant could produce evidence establishing that a parent and an unborn child were estranged.” (158 Ill. App. 3d at 78.) The court’s inability to see evidence of estrangement may arise because in most instances such evidence does not exist. While we agree that it may be difficult to prove that a mother was estranged from her unborn child, we fail to see how this fact either leads to the conclusion that no tangible relationship ever existed or somehow dictates a consequent inability to bring a cause of action based on that relationship. Chrisafogeorgis (55 Ill. 2d at 372), held that “[t]he right to bring an action is clearly distinguishable from the ability to prove the facts. The first cannot be denied because the second may not exist.” Certainly it follows from this statement that a cause of action should not be denied because of the defendant’s inability to prove facts which could defeat the claim.

The Hunt court conceded the existence of a relationship between parents and a newborn child. (158 Ill. App. 3d at 79.) Yet the problems of proving estrangement are just as severe in that instance as in the case of an unborn. Moreover, there are arguments available to defendant besides the presence of estrangement. A defendant could show, among other things, that a pregnant woman had endangered the unborn child through alcohol or drug abuse, or simply neglecting her own health. As Smith notes:

“[A] rebuttable presumption of pecuniary injuries does not necessarily guarantee recovery. It does, however, appropriately shift the burden of coming forward with proof that the damages are minimal or nonexistent onto the party who created the uncertainty surrounding the damages by causing the wrongful death.” Smith, 203 Ill. App. 3d at 477, citing Flynn v. Vancil (1968), 41 Ill. 2d 236, 242 N.E.2d 237.

The Hunt court also relies on the special concurrence in Bullard (102 Ill. 2d at 521). In that case, Justice Clark argued that the loss-of-society presumption should be extended to the parents of adult children. In support of this he stated the parents of the 17-year-old “could reasonably anticipate receiving advice, companionship and assistance” and that “[t]his presumption is equally valid for adult *** children.” The supreme court later held in favor of this presumption for the loss of adult children in Ballweg (114 Ill. 2d at 118-20). The Hunt court said that parents of an unborn child could not make such a claim. We agree. But neither could the parents of a newborn. And yet, under existing law, loss of society for the newborn is not only allowed, but presumed. The Smith court notes further that loss-of-society damages compensate plaintiffs for their future loss, not for their past enjoyment. Smith, 203 Ill. App. 3d at 473.

Next, Hunt held that recognition for loss of society is dependent on “the relationship of parent and child. In the death of an unborn fetus, no guidance, love, affection or security has been exchanged.” (158 Ill. App. 3d at 79.) The Hunt court therefore concluded that any award to the parents of an unborn could only be for mental anguish or bereavement, which are not elements of loss of society. This reasoning presupposes that a child has no society with his parents in útero but acquires society suddenly through “the initial bonding which takes place at birth.” (158 Ill. App. 3d at 79.) Thus, one minute distinguishes the fetus who does not exchange society with his parents from the child who does. While, this may be trae, other courts have noted that this distinction can lead to “ ‘bizarre results. Suppose, for example, viable unborn twins suffered simultaneously the same prenatal injury of which one died before and the other after birth. Shall there be a cause of action for the death of the one and not for that of the other?’ ” Chrisafogeorgis, 55 Ill. 2d at 374, quoting Stidam v. Ashmore (1959), 109 Ohio App. 431, 434, 167 N.E.2d 106,108.

We therefore cannot agree that as a matter of law a child does not develop any love or affection for his parents during the months before birth, but develops these feelings toward both immediately afterwards. While we agree that there would be differences between how an unborn may relate to a mother as opposed to a father, we believe in both instances that the existence and extent of these relationships are properly questions of fact requiring medical expertise and should not be decided as a matter of law.

Finally, Hunt would measure the loss experienced by the parents according to the “length, intensity and quality of the parent-child relationship” and states that “birth is [the] proper point ***, to begin to measure the loss of a child’s society.” (Hunt, 158 Ill. App. 3d at 29.) We believe that at best this is properly characterized as an unproven factual question. Long before birth parents may soothe, comfort, and even talk to their child. How or even if the child relates to these actions will determine whether or not society exists from child to parent. We do not believe that these questions should be decided as a matter of law without giving plaintiffs the opportunity to present evidence. It may very well be that plaintiffs will be unable to garner such evidence and defendant will be entitled to summary judgment. It could also be that conflicting evidence will be produced and the issue will then be a question for the trier of fact. Further, if the child’s capacity for bonding and society depends on social development, then one might argue that no society exists for a child who dies after birth but before meeting his father. If society depends on physical maturation, then one might argue that a nearly full-term child who dies just before birth, as the infant did here, has. a greater capacity for society than a six- or seven-month-old fetus who survives birth but dies soon after. We are not prepared to rule on such factual issues as a matter of law.

For the reasons stated, the judgment of the trial court is affirmed on counts I through IV and reversed and remanded on counts V and VI.

Judgment affirmed in part and reversed in part.

LaPORTA, P.J., and McNAMARA, J., concur.