text:
    (No. 49861.
    PHYLLIS FIORITO et al. v. THEODORE A. JONES, Director of Revenue, et al., Appellants. — (David P. Schippers et al., Appellees.)

      Opinion filed March 23, 1978.

    — Supplemental opinion filed on denial of rehearing July 14, 1978.

      CLARK and KLUCZYNSKI, JJ., took no part.
    William J. Scott, Attorney General, of Springfield (Paul J. Bargiel and Stephen R. Swofford, Assistant Attorneys General, of counsel), for appellants.
    David P. Schippers and Samuel J. Betar, of Chicago, pro se, appellees.
    Edward A. Berman, Ltd., and Lewis W. Schlifkin, of Chicago, pro se, appellees.
    Payne & Cooke, of Chicago (Philip J. Rock, of Rock, Fusco, Heneghan & Rachman, of counsel), pro se, appellees.
    Taussig, Wexler and Shaw, Ltd., and James C. Renzino, of Chicago, pro se, appellees.
    Cornelius J. Harrington, Jr., and John P. Sullivan, of Chicago, for appellee American National Bank and Trust Company of Chicago and pro se.

    Defrees & Fiske, of Chicago (Edward J. Griffin and Gary Schuman, of counsel), pro se, appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The defendant, Theodore Jones, Director of Revenue for the State of Illinois (State), appeals from the orders of the circuit court of Cook County which awarded final attorney and trustee fees in this, a taxpayer class action sxxit. The case has pended in the circuit court for more than 10 years and has been appealed on three previous occasions. The instant appeal was transferred to this court pursuant to Supreme Court Rule 302(b) (58 Ill. 2d R. 302(b)).

On July 25, 1967, plaintiff, Phyllis Fiorito, by her attorneys, David P. Schippers and Samuel J. Betar, instituted suit on behalf of herself and all others engaged in the business of graphic arts, challenging the constitutionality of the 1967 amendments to the Service Use Tax Act and the Service Occupation Tax Act (Ill. Rev. Stat. 1967, ch. 120, pars. 439.32, 439.33, 439.102, 439.103). The complaint sought an injunction against the Director of Revenue enjoining the collection of taxes thereunder.

The 1967 amendments increased the service occupation and use tax rates, but narrowed the class of individuals subject to the tax. The amendments imposed taxes on the gross receipts of only four groups of business entities, i.e., businesses which (1) sold specially made tools or equipment; (2) provided graphic art and related services; (3) repaired, renovated and reconditioned tangible personal property; or (4) sold prescription drugs or medicines. On July 27, 1967, a temporary injunction was issued ordering the State to impound all taxes collected pursuant to the amendments and to hold such taxes in a separate fund pending final disposition of the case.

Shortly thereafter, S. Hersenson and Carol Grier, by their respective attorneys, Louis W. Schlifkin and Edward A. Berman, intervened in the suit, individually and as representatives of all buyers who purchased goods and services from servicemen enumerated in the acts. They alleged that their class was a proper and necessary party to the action inasmuch as members of their class actually bore the burden of the challenged taxes.

On November 15, 1967, Robert H. Kochman and Tool Eqxxipment Research N Design, Inc., by their attorneys, James C. Renzino and Samuel H. Solomon, intervened. Kochman represented the class of businesses which repaired tangible personal property, and Tool Research represented the class of businesses which sold specially made tools and equipment. These parties took the position that each of the four classes taxed under the amended acts had to be represented in the class action.

The final party granted leave to intervene was R. Bertram Cooke. Cooke, through his attorney, Stanley W. Cooke of the law firm of Payne & Cooke, represented those who purchased from servicemen and who, in addition to having paid the State tax, had paid a corresponding tax under the municipal and county service occupation tax acts (Ill. Rev. Stat. 1967, ch. 24, par. 8 — 11—5, and ch. 34, par. 409.2). The latter two acts had not been challenged by the original complaint, although the taxes collected pursuant thereto were being held in the protest fund.

On December 6, 1967, the trial court’s final decree ruled the 1967 amendments invalid and a permanent injunction was entered enjoining the defendant from collecting the taxes thereunder. On appeal, three associations of tool and die makers (associations), represented by the law firm of DeFrees and Fiske, were granted leave to appear and file a brief as amici curiae. (The associations were also permitted to file an amici curiae brief in a later appeal.) On March 28, 1968, this court affirmed the trial court’s judgment and ordered refunds to all class members who actually bore the burden of the tax.

On January 30, 1969, the American National Bank and Trust Company of Chicago (trustee) was appointed to act as the fiduciary and depository of the protest fund and to assist in the administration of the refund program, subject to the trial court’s orders. The trustee received from the Treasurer of the State of Illinois approximately $34 million. Two million dollars of that amount was the statutory interest accrued to the date of payment, and another $10 million represented the tax due the State under the pre-1967 tax acts. Attorneys Cornelius J. Harrington and John P. Sullivan (trustee’s attorneys) were thereafter appointed to serve as legal counsel to the trustee.

Excluding the report of proceedings, papers concerning the verification and payment of claims constitute approximately two-thirds of the 3,664-page common law record of this case. The trustee processed nearly 46,000 claims involving more than 400,000 transactions. Through its attorneys, the trustee filed 418 petitions seeking instructions from the court as to the payment or denial of claims. Many of the claims were disallowed, and some were contested, thereby necessitating further hearings. At a minimum, more than 80 separate court hearings were conducted.

Approximately $7 million was refunded to the class members. All valid claims submitted were paid in full along with statutory interest accrued to the date of payment. By virtue of the trustee’s prudent investment and management skills, and despite the payment of $26 million to the State during the interim, the protest fund earned over $10 million, thereby bringing the total fund to more than $44.5 million.

At various times following this court’s decision in Fiorito v. Jones (1968), 39 Ill. 2d 531, plaintiffs’ attorneys filed petitions seeking interim fees. These petitions outlined the history of the case to date, described the attorneys’ roles, and discussed the significance of their participation in the prosecution of the matter.

The attorneys for amici cuñae also filed a petition in the trial court, said petition entitled “suggestions of Amici Curiae concerning their contribution to the resolution of the issues in this case.” The petition alleged that, at the time amici were allowed to file their original brief, they informed this court that they would not petition the trial court for fees in the event of a favorable decision but would accept any compensation the trial court saw fit to award them for their contribution. The amici attorneys, therefore, outlined for the trial court the significance of their participation.

The trustee and its attorneys filed their first petition for fees in December of 1971. This petition set forth the accomplishments of the trustee and its attorneys and the total number of hours expended by the trustee’s attorneys. The petition requested an interim trustee fee for services performed to date and a reasonable fee for the trustee’s attorneys.

Following a December 22, 1971, hearing, the trial court entered its first order awarding interim fees to the plaintiffs’ attorneys, the trustee and its attorneys, and the attorneys for amici curiae.

At this hearing, attorneys for amici curiae indicated to the court that they had received a retainer fee of $5,000 from their clients. The trial court awarded the amici attorneys an interim fee of $60,000, less the amount they had received from their clients. None of the parties objected.

A second interim fee award was made to the trustee on December 22, 1972. On June 21, 1974, interim fees were again awarded to all parties, including amici curiae. The final interim fee award was made on December 12, 1975, at which time no additional fees were awarded to the attorneys for amici curiae. At no time did the State object to the amount of the interim fees awarded.

On December 29, 1975, amici curiae filed a petition requesting additional interim fees. The State filed an answer opposing the petition and argued, among other things, that the request for additional fees was excessive, that the attorneys had been adequately paid by both their clients and the court, and that the attorneys had filed no appearance in the case and represented no named party in the case. The attorneys for amici filed a reply to the State’s answer and also amended their petition by setting forth the approximate number of hours expended on the case. The trial court did not award further interim fees to the amici.

The total amount of interim fees awarded were as follows: Schippers and Betar, $1,025,000; Schlifkin and Berman, $1,025,000; Payne and Cooke, $290,000; Renzino and Solomon, $225,000; trustee, $975,000; trustee’s attorneys, $760,000; DeFrees and Fiske (amici curiae), $75,000.

During November of 1976, the trial court conducted a series of hearings on the parties’ petitions for final fees. In their joint petition, which was later introduced into evidence, Schippers and Betar and Schlifkin and Berman summarized the history of the case, the complexities and difficulties encountered, and the benefits bestowed upon the class members. The petition also set forth and discussed a number of factors to be considered by the court in making its award. The other two groups of attorneys also filed petitions.

The trustee and its attorneys also petitioned for final fees. Their petitions recapitulated the problems of administering the fund and in refunding the claims. The trustee’s attorneys estimated that they had expended 9,865 hours in their representation of the trustee. The trustee requested $500,000 as a final fee, and its attorneys requested a reasonable final fee plus costs.

The State filed an answer opposing the further award of attorneys’ fees, but did not specifically object to the payment of further fees to the trustee. The State’s answer asserted that the additional requests by the attorneys were excessive, extravagant, and not justified by the circumstances of the case. The State argued that the attorneys had been generously paid and that the remaining funds should be paid to the State of Illinois.

Plaintiffs’ attorneys introduced into evidence the transcribed testimony of three expert witnesses, given in Hradek v. Korshak (Gen. No. 66CH7491), a Cook County circuit court case which involved the award of attorney’s fees in a similar but unrelated taxpayer class action. The State adopted the objections contained in the transcript of proceedings in the Hradek case as and for their objections in the instant case.

Also, two members of the bar, Thomas A. Foran and Jerome H. Torshen, testified as expert witnesses for plaintiffs’ attorneys. They outlined the factors that were to be considered by the court in awarding fees, and concluded that, with these factors applied to the case, an award of 20% to 25% of the total fund would constitute a reasonable overall sum for all of the plaintiffs’ attorneys. On cross-examination by the State, both experts testified that, at the time this case was filed, lawyers did not make it a practice of keeping time records in cases of this nature.

At a later hearing, each group of plaintiffs’ attorneys testified. Samuel Betar discussed, among other things, the criteria which he believed were applicable to the case. He concluded that, while an award of 20% to 25% would be reasonable, a total fee of 15% for all attorneys would be acceptable. Edward Berman testified similarly. James C. Renzino testified as to his own personal contribution to the case and to that of his late colleague, Samuel Solomon. Renzino adopted the testimony of the previous witnesses. Stanley Cooke introduced his fee petition into evidence and testified that 20% to 25% of the fund attributable to the county and municipal service occupation tax acts, which he had successfully challenged, would constitute a reasonable fee for himself.

On cross-examination by the State, each of the plaintiffs’ attorneys who testified stated that he had not kept time records. (One of plaintiff’s attorneys testified that, at the time this case commenced, there was no requirement for time records to be kept in this type of class action suit. Several others testified that it was not a customary practice to keep time records in cases of this nature.) The attorneys asserted that it would be impossible to reconstruct or estimate the amount of time expended. The State offered no evidence or argument to rebut the reasonableness of the fees requested by plaintiffs’ attorneys but, instead, relied upon its general objection. The State did not contradict the attorneys’ asserted inability to reconstruct time records.

Edward J. Griffin testified in behalf of the attorneys for amici curiae that, based on their contribution to the case and the number of hours expended, a total fee of $150,000 would constitute a reasonable award for their services.

During the course of the testimony, the trial court indicated that it would not award fees based on a percentage of the total fund, but would arrive at a reasonable figure based on the criteria outlined by the witnesses. In making the final award of attorneys’ fees, the trial court indicated that it took all “the facts and circumstances of the case” into consideration. Specifically, the court noted that it considered (1) the testimony adduced in the case; (2) the benefits bestowed on the class; (3) the intricacy, novelty and complexity of the issues; (4) the general difficulty of the case; (5) the contingent nature of the case; (6) the public benefit of the action; (7) the need to provide an incentive so as to encourage other attorneys to prosecute similar actions; (8) the established skills and qualifications of counsel; (9) the fact that all valid claims submitted had been paid in full and with interest to date of payment; (10) the fact that the State of Illinois to date had received $26 million from the protest fund; (11) the fact that the case had “been pending for a great number of years”; and (12) the fact that, in the court’s judgment, “everyone involved in the case did a superior job.” The trial court then awarded the following amounts as final fees: Schippers and Betar, $1,000,000; Schlifkin and Berman, $1,000,000; Payne and Cooke, $520,000; Renzino and Solomon, $125,000; DeFrees and Fiske (amici curiae), $30,000.

The totals of the fees awarded were as follows:

Schippers and Betar $2,025,000

Schlifkin and Berman 2,025,000

Payne and Cooke 810,000

Renzino and Solomon 350,000

DeFrees and Fiske 105,000

At a separate hearing, the trial court awarded the trustee and its attorneys final fees. Perry G. Callas, senior vice-president of the American National Bank and Trust Company of Chicago, testified in behalf of the trustee. Callas recapitulated the trustee’s involvement in the case and the difficulties associated with administering the fund and refunding the claims. He indicated that the implementation of a refund program of this size was without precedent. Callas reiterated that, through the trustee’s investment skills and despite the payment of over $26 million to the State during the administration of the fund, the fund earned over $10 million, and that the earnings covered all claims paid, plus practically all administration expenses, interim attorneys’ fees, and trustee’s fees. Callas concluded that, based on the work performed to date and the work to be done in completing the final accounting, $500,000 would constitute a reasonable final fee. The State indicated no objection to the trustee’s request and offered no contrary testimony as to the reasonable value of the services performed. The State, in fact, commended the trustee’s performance.

Of the trustee’s attorneys, Harrington requested a final fee of $200,000 plus costs, and Sullivan requested a final fee of $100,000. Again, the State offered no evidence to negate the reasonableness of the requests.

The court entered an order awarding the trustee a final fee of $775,000, $200,00 of that amount, plus costs, to be paid to Harrington, who was to remain in the case through the final accounting, and $75,000 to be paid to Sullivan, who was relieved of his duties as attorney for the trustee. With these sums, the total amounts awarded to the trustee and its attorneys were as follows:

Trustee $1,475,000

Harrington and Sullivan 1,035,000

plus costs.

The State claims that the fees awarded to plaintiffs’ attorneys are excessive. It argues, as it did in the trial court, that any further award of fees is unwarranted and unjustified under the facts and circumstances of this case. Over this general objection, the trial court determined that an additional award of $2,645,000 in attorneys’ fees was proper.

The amount of attorney fees awarded in class actions has sparked much criticism in recent years. (Leader v. Cullerton (1976), 62 Ill. 2d 483, 488.) In Flynn v. Kucharski (1974), 59 Ill. 2d 61, a case decided over seven years after the commencement of this action, the court reviewed the method by which the amount of class action attorney fees had been determined.

Because, in a class action, the right to attorneys’ fees is contingent upon ultimate success and upon the presence of a fund from which fees can be paid, it had been a custom and practice to equate class actions with the typical contingent-fee case and to award fees based upon a percentage of the fund. The percentage awarded in cases of the nature herein varied with the circumstances of those cases. In Flynn, this court noted that, although class action attorney’s fees are contingent upon success, a class action is not a typical contingent-fee case because the amount of the fee is not the result of a voluntary agreement between the client and his attorney. Rather, the fee is an amount taken, by order of the court, from money that belongs to others, and the amount is dependent upon the exercise of the court’s sound discretion.

Prior to Flynn, this court and the appellate court had never discussed the appropriateness of awarding class action fees on the basis of a percentage of the fund. The courts had, however, discussed the various factors that the trial court should have considered when called upon to determine the reasonable value of an attorney’s services. Among these factors, the amount of time expended had always been considered an important criterion. (See McMannomy v. Chicago, Danville & Vincennes R.R. Co. (1897), 167 Ill. 497, 504; Louisville, New Albany & Chicago Ry. Co. v. Wallace (1891), 136 Ill. 87, 93; Hofing v. Willis (1967), 83 Ill. App. 2d 384; Mueller v. Sloan (1961), 33 Ill. App. 2d 205; McKay v. Wilhelm (1942), 316 Ill. App. 397, 402-03; City National Bank & Trust Co. v. Sewell (1939), 300 Ill. App. 582, 589-90.

“Time being the lawyer’s sole expendable asset, the economic worth of his ability, training and experience is determined by the use of the hours available for the practice of his profession.”

Mueller v. Sloan (1961), 33 Ill. App. 2d 205, 207. Recognizing the court’s duty to safeguard the interest of others, particularly that of the unnamed class members, the Flynn court reemphasized the importance of the time element in determining the reasonable value of the services performed. The court held that “the time expended *** [by the attorney] is not to be relegated to a secondary or minor position ***.” (Flynn v. Kucharski (1974), 59 Ill. 2d 61, 67.) Because of the importance of the time element, it is incumbent upon the attorney to keep detailed time records during the course of the litigation.

Later, in Leader v. Cullerton (1976), 62 Ill. 2d 483, the court expounded further on the importance of the time expended as a means of determining the reasonable value of the attorney’s services. The court held that, although time expended is not the sole criterion, it should be considered as the starting point for the computation of fees. (62 Ill. 2d 483, 488.) By using time as the initial bench mark, the Leader court adopted an approach used by a majority of the Federal appellate courts. King v. Greenblatt (1st Cir. 1977), 560 F.2d 1024; City of Detroit v. Grinnell Corp. (2d Cir. 1977), 560 F.2d 1093; Grunin v. International House of Pancakes (8th Cir. 1975), 513 F.2d 114, cert. denied (1975), 423 U.S. 864, 46 L. Ed. 2d 93, 96 S. Ct. 124; Johnson v. Georgia Highway Express, Inc. (5th Cir. 1974), 488 F.2d 714; Brandenburger v. Thompson (9th Cir. 1974), 494 F.2d 885, 890 n.7; Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp. (3d Cir. 1973), 487 F.2d 161 (Lindy 1).

Pursuant to Leader, the trial court is not only to inquire into the total hours expended which benefited the unnamed class members, but also to determine in what manner the time was expended [e.g., court appearance, research, writing, discovery) and by whom [e.g., senior or junior partners, associates or law clerks). Hours which do not benefit the class members are to be disallowed. Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp. (3d Cir. 1976), 540 F.2d 102, 112 (Lindy 11); In re Equity Funding Corp. of America Securities Litigation (C.D. Cal. 1977), 438 F. Supp. 1303, 1328; In re Penn Central Securities Litigation (E.D. Pa. 1976), 416 F. Supp. 907, 917-18.) The court is obliged, also, to carefully weigh, according to its own knowledge, experience and expertise, whether the hours claimed and the tasks performed are reasonable in relationship to the time required by other attorneys to complete similar activities. In the event die court finds the hours claimed are the result of unnecessary, duplicative work efforts or inefficiency, it must reduce the excessive hours claimed. Leader v. Cullerton (1976), 62 Ill. 2d 483, 490-91; Johnson v. Georgia Highway Express, Inc. (5th Cir. 1974), 488 F.2d 714, 717; In re Penn Central Securities Litigation (E.D. Pa. 1976), 416 F. Supp. 907, 916-17.

When the court has determined the number of hours which benefit the class, it must then value the services by fixing a reasonable hourly rate for each attorney, taking into account the nature of the services performed, the complexity of the undertaking and the hourly fee charged for similar services by attorneys with similar skills and qualifications. (Leader v. Cullerton (1976), 62 Ill. 2d 483, 491-92.) The court may award hourly rates that differ according to the categories of services performed. (Lindy 1 (3d Cir. 1973), 487 F.2d 161, 167; Johnson v. Georgia Highway Express, Inc. (5th Cir. 1974), 488 F.2d 714, 717; Liebman v. J. W. Petersen Coal & Oil Co. (N.D. Ill. 1974), 63 F.R.D. 684, 691.) The appropriate hourly rates are then multiplied by the hours expended. The product of this multiplication is referred to as the “lodestar” computation. Lindy 1 (3d Cir. 1973), 487 F.2d 161, 168.

As noted above, an attorney’s compensation in class actions is contingent upon his success.

“No one expects a lawyer to give his services at bargain rates in a civil matter on behalf of a client who is not impecunious. No one expects a lawyer whose compensation is contingent upon his success to charge, when successful, as little as he would charge a client who in advance had agreed to pay for his services, regardless of success. Nor, particularly in complicated cases producing large recoveries, is it just to make a fee depend solely on the reasonable amount of time expended. Yet unless time spent and skills displayed be used as a constant check on applications for fees there is a grave danger that the bar and bench will be brought into disrepute, and that there will be prejudice to those whose substantive interests are at stake and who are unrepresented except by the very lawyers who are seeking compensation.” (Cherner v. Transitron Electroic Corp. (D. Mass. 1963), 221 F. Supp. 55, 61.)

The lodestar computation is, therefore, adjusted to account for the contingent nature of the undertaking and the benefits conferred upon the class. (Leader v. Cullerton (1976), 62 Ill. 2d 483, 492.) If the trial court, in the exercise of its discretion, determines that an amount over and above the lodestar computation is warranted, it may increase the lodestar computation or a portion thereof by applying a weighted multiplier commensurate with the value which the court attributes to the above two qualitative factors. See In re Equity Funding Corp. of America Securities Litigation (C.D. Cal. 1977), 438 F. Supp. 1303, 1330, 1336, and In re Penn Central Securities Litigation (E.D. Pa. 1976), 416 F. Supp. 907, 922 & n.43, wherein the courts refused to increase that portion of the lodestar computation which represented hours expended administering the claims after the settlement was attained.

In determining the weighted multiplier to be attributed to the contingent nature of the undertaking, the court must examine the probability or likelihood of plaintiff’s success at the time the suit was filed. In some cases, the defendant’s liability may have been virtually certain because of some prior judgment or decree against, the defendant in an action brought by the government or another private party. In such cases, a relatively small multiplier or no multiplier at all should be awarded for the contingent nature of the undertaking. In other cases, the defendant’s liability may actually have been quite remote. In this latter situation, the court, in making its determination, must evaluate the burden of proof which the plaintiff has had to overcome in order to succeed, the legal and factual complexity of the issues, and the difficulty encountered in proving damages. An objective measure of the amount of risk assumed by the attorney is the number of necessary hours expended or out-of-pocket cost incurred prior to the guarantee of remuneration.

There are no set guidelines for determining what value should be attributed to these considerations. Each case must be analyzed separately, keeping in mind that “the relevant issue is the contingent nature of the particular case involved, and not the risk factor in class actions generally.” In re Penn Central Securities Litigation (E.D. Pa. 1976), 416 F. Supp. 907, 914.

The value of the weighted multiplier should also reflect the benefits conferred upon the class. When the attorney succeeds in recovering the total claims of the class members, a greater multiplier may be warranted than when the recovery covers only a fraction of the class members’ claims or potential recovery. In the latter situation, each dollar awarded in attorney fees would further reduce the recovery of the class members. In making its determination, the court may also consider the noneconomic benefits accruing to the class and to the public at large. Hamer v. Kirk (1976), 64 Ill. 2d 434, 442-43.

If, upon evaluating the above factors, the trial court finds that an increased award is warranted under the circumstances, it should identify those factors which warrant the increase, state the value of the multiplier being used, and give a brief statement of the reasons therefor. See Lindy 11 (3d Cir. 1976), 540 F.2d 102, 117-18.

In Leader, the court used a factor of three. Examination of the numerous Federal cases which employed the “time expended” approach, reveals that, in the vast majority of cases, the maximum weighted multiplier employed has been three. We believe that, in any particular case, trebling the lodestar computation should more than adequately compensate counsel for the risk incurred and for the amount of benefits conferred upon the class. A trial court should rarely employ a weighted multiplier greater than three, and, in most instances, should not hesitate to employ a lesser number or fraction thereof.

Turning to the facts of the instant case, the State requests that we review the trial court’s award and set aside that amount of the award which we deem excessive under the circumstances. The State argues that the amount of time expended prior to the guarantee of remuneration was minimal, that the bulk of the work performed and time expended in refunding the claims was shouldered by the trustee and its attorneys, that there was substantial duplication of work effort by the plaintiffs’ attorneys, and that the plaintiffs’ attorneys could not have expended the amount of time which would justify the awarding of $5,210,000 in fees. The plaintiffs’ attorneys, on the other hand, contend that the State has waived any objection to the amount of fees awarded by having failed to advance these arguments in the trial court and by having failed to offer evidence to rebut the reasonableness of the fees awarded.

In response to the arguments of plaintiffs’ counsel, the record reveals that the State was precluded from raising its arguments presented here, for those arguments depended upon the presence of time records which plaintiffs’ attorneys testified they could not produce. The burden of proving the reasonable value of the services performed obviously rested with the plaintiffs’ attorneys, not with the State. It was incumbent upon the attorneys to submit to the trial court evidence from which it could make a reasoned decision in accordance with the applicable law. Until time records were submitted and an hourly rate determined, the burden did not shift to the State to rebut the reasonableness of the fees awarded.

Plaintiffs’ attorneys argue, however, that the time-expended analysis announced in Leader and Flynn is inapplicable to cases commenced prior to those decisions, and that it would be inequitable to require the attorneys, at this point in time, to reconstruct their hours. We are not persuaded by the attorneys’ assertion that they did not keep time records because it had not been the custom and practice to do so in cases of this nature (cf. Flynn v. Kucharski (1974), 59 Ill. 2d 61, 67), when, as earlier noted, time expended has always been considered an important factor in determining the reasonable value of an attorney’s services. While there is some language in Leader to the effect that in cases prior to Flynn the lack of available information might necessitate the use of a percentage computation, it is clear that the time-expended analysis in Leader and Flynn was not to be limited to future cases. It is to be emphasized that in both Leader and Flynn the attorneys furnished the amount of time expended, and the court reviewed the awards in light thereof.

Our review of the record convinces us that an objective determination of the value of the services performed cannot be made without an accounting of the time expended to serve as a starting point for the computation. In seeking fees, the attorneys should have reconstructed their hours from whatever information was available: date books, office records, court documents, etc. Although we are aware of the attorneys’ testimony asserting their inability to reconstruct their hours, it is clear from the record that they made no attempt to do so, and the trial court did not impose any such requirement upon them. The plaintiffs’ attorneys must, therefore, reconstruct and itemize the total number of hours expended. When the attorneys have submitted the reconstruction of their time records, the trial court should, in accordance with the guidelines announced herein, make its determination as to the reasonable value of the attorneys’ services.

The State next contends that, based on the evidence submitted by the trustee and its attorneys, the trial court did not have sufficient information from which it could render a decision as to the value of the services of the trustee and its attorneys. As with the plaintiffs’ attorneys, the trustee and its attorneys had the burden of proving the reasonable value of their services. Unlike plaintiffs’ attorneys, however, the trustee’s attorneys were entitled to compensation only for the actual time expended. Although the attorneys indicated to the court their total hours expended in representing the trustee, there was no evidence as to how or by whom these hours were expended. Neither was there evidence regarding the reasonable hourly rate charged by attorneys for performing legal services of similar character. The trial court merely awarded the trustee’s attorneys a fixed, lump sum. While the court is not bound by the customary hourly rate charged by attorneys for performing legal services similar in character (cf. Golstein v. Handley (1945), 390 Ill. 118, 125-26), such evidence should serve as an initial basis for determining the reasonable value of the court-appointed officer’s services.

Although there was some testimony by the trustee that the administration of a refund program of this size and nature was without precedent, there was no evidence to show how the trustee arrived at the amount it submitted as a reasonable fee. The trustee merely requested a fee of $500,000 for the services performed, and the trial court awarded that amount. The trial court is not and should not be bound by the standards which the trustee may employ in computing fees charged private customers (cf. Steele v. Ruprecht (1909), 147 Ill. App. 646, 657-59), but such standards do provide some basis for making an objective determination as to the reasonable value of the service performed. Other factors relevant in determining the amount of the trustee’s award are the time, labor and skill required by the undertaking, the dispatch with which the work was conducted, the difficulty of the task, the extent of responsibility assumed, and the results obtained. In light of the complexity of the undertaking, the work involved, and the results obtained, it may be that here the amount awarded to the trustee was reasonable, but, because of the paucity of the evidence, such a finding on review would be pure conjecture. Without evidence as to how or upon what basis or standard the trustee computed its fee, and without evidence concerning the value of comparable services, we cannot objectively review the trial court’s award to the trustee.

Finally, the State contends that the attorneys for amici curiae were not entitled to a final award of fees.

Three tool and die associations, represented by the law firm of DeFrees and Fiske, were, on two occasions, granted leave by this court to file a brief in each of two earlier appeals before this court. At the time leave was granted, the associations’ memberships were included within the classes represented by the named class members. A review of the orders entered by this court shows that the associations were permitted, on those occasions, to appear in this court only for the purpose of submitting a brief on appeal. According to the record, the associations have never been granted leave to intervene as parties in this action. By definition, an “amicus curiae” is not a party to the action, but a friend of the court. As such, the sole function of an amicus is to advise or make suggestions to the court. Bee Chemical Co. v. Service Coatings, Inc. (1969), 116 Ill. App. 2d 217, 226.

At the hearing on their petition for fees, attorneys for amici curiae indicated to the trial court that they had informed this court that they would be willing to accept any award the trial court saw fit to make. In making this statement, the attorneys implied to the trial court that this court had authorized the awarding of fees. This alleged authorization, however, is not borne out by the orders which this court entered. To the contrary, amici admit that they stated to this court that they would not petition the trial court for fees in the event of a favorable decision.

We recognize that amici have rendered valuable services, but these services were not performed at this court’s request. Rather, they were performed at the request of the client associations. We are aware of no authority, and the attorneys for amici have cited none, which would authorize the award of fees under the circumstances presented here. Courts which have discussed the awarding of fees to attorneys appearing'as or on behalf of amicus curiae have distinguished various situations from that presented here. In In re Phi Fathers Educational Ass’n (Mo. App. 1947), 203 S.W.2d 885, 887, wherein the court awarded fees for services rendered by an attorney at the request of the court, the court noted:

“It is to be kept in mind that in sustaining the right to compensation, we are speaking only of an amicus curiae in the sense in which Mr. Gleick served in the case at bar, that is, as one appointed by the court itself to aid and advise the court in a case pending before it with respect to material matters about which the court is in doubt. What we have said has no reference to one who, while formally purporting to act as a friend of the court which grants him leave to appear and be heard, is actually representing a private client with a personal interest in the ultimate result which is reached. Such a person, while denominated an amicus curiae, actually occupies a position more nearly akin to that of an intervener except that he does not become a party to the proceeding so as to be bound by the judgment which is rendered therein. Nor even where he is appointed to aid and assist the court will an amicus curiae be entitled to compensation if the purpose of his appointment is to vindicate the court’s honor, as, for instance, where he is called upon to investigate whether fraud had been practiced upon the court. [Citation.] ”

Accord, Universal Oil Products Co. v. Root Refining Co. (1946), 328 U.S. 575, 580-81, 90 L. Ed. 1447, 1452-53, 66 S. Ct. 1176, 1179; In re Mortimer (1976), 44 Ill. App. 3d 249, 251-52; City of Kansas City v. Kindle (Mo. 1969), 446 S.W.2d 807, 818-19.

Here, the attorneys for amici curiae represented private clients who had an interest in the outcome of the proceeding, and in such cases the attorney must look to his client for the payment of compensation. We find, therefore, that not only did the trial court err in awarding amici final fees, but it erred in awarding them interim fees.

Based on the foregoing, the orders awarding fees to the attorneys for amici curiae are reversed and the orders awarding final fees for the plaintiffs’ attorneys, the trustee and the trustee’s attorneys are vacated, and this cause is remanded for further proceedings in accordance with the views expressed in this opinion.

The judgment of the circuit court of Cook County is reversed in part and vacated in part, and the cause is remanded for further proceedings.

Reversed in part and vacated in part and remanded.

MR. JUSTICE CLARK took no part in the consideration or decision of this case.

Supplemental Opinion on Denial of Rehearing

In their petition for rehearing, the associations, as amici curiae, object to the reversal of the trial court’s orders which awarded interim and final fees to their attorneys.

It is argued that the State sought relief only from the order awarding final attorneys’ fees and that this court’s scope of review was thereby limited. We call to the associations’ attention Rule 366 (58 Ill. 2d R. 366(a)(5)), under which the reviewing court may, in its discretion and on such terms as it deems just, “give any judgment and make any order that ought to have been given or made *** that the case may require. ”

It is also argued that the interim orders were final and appealable (People ex rel. Russel v. Illinois State Bank (1924), 312 Ill. 613), and that, inasmuch as no appeal was taken, those orders cannot be challenged at this time.

Initially we nóte the record reveals no order by the trial court appointing the associations as amici curiae. By separate orders of this court, the associations were allowed to appear and file briefs as amici curiae in the two former appeals. Upon conclusion of those appeals in this court, the associations’ status as amici curiae terminated.

Under the “common fund” doctrine, the trial court, in this case, had jurisdiction to award attorneys’ fees only to those attorneys representing the plaintiff class. The associations’ members were already members of the plaintiff class and, as such, were adequately represented. The associations, in and of themselves, were not parties to the action arid, therefore, were not entitled to have their separate attorneys’ fees paid from the fund. Accordingly, the trial court’s interim and final orders allowing fees to the associations’ attorneys were not merely voidable orders (and therefore subject to attack on direct appeal) but void orders, subject to attack at any time.

For these reasons, this petition for rehearing is denied.

CLARK and KLUCZYNSKI, JJ., took no part.


source: Caselaw Access Project

author: MR. JUSTICE UNDERWOOD MR. CHIEF JUSTICE WARD, MR. JUSTICE RYAN,

license: Public Domain

text:
    (No. 49195.
    MARION C. WARNER, Appellant, v. THE CITY OF CHICAGO, Appellee.

      Opinion filed May 26, 1978.

      KLUCZYNSKI, J., took no part.
    WARD, C.J., and RYAN, J., dissenting.

      Philip E. Howard, Ltd., of Chicago (William J. Harte, Ltd., of counsel), for appellant.
    William R. Quinlan, Corporation Counsel, of Chicago (Daniel Pascale and Marsile J. Hughes, Assistant Corporation Counsel, of counsel), for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

A Cook County circuit court jury awarded plaintiff $53,996 as damages for injuries suffered in a fall on an allegedly defective city of Chicago sidewalk. The appellate court reversed, finding the defect to be so slight that it was not actionable as a matter of law. (43 Ill. App. 3d 691.) We granted plaintiff leave to appeal.

The injuries occurred March 26, 1965, near plaintiff’s residence on Ridgeway Avenue in Chicago. Although it had snowed on the previous day, the sidewalk had been shoveled and only about one-half inch of freshly fallen snow was on the sidewalk at the time of the occurrence. Plaintiff testified that while following a “light path” made by other pedestrians along the edge of the sidewalk, she stubbed her toe on a raised slab, lost her balance and fell. She stated that she did not see this defect as she was walking because it was covered by the snow. She denied slipping on the snow, asserting that tripping over the raised slab was the sole cause of her fall. According to plaintiff’s estimate, the slab was raised about 2 inches above the adjoining slab at the point where she stubbed her toe. A city investigator testified that he measured the height to be a maximum of 1 1/8 inches at the point where plaintiff’s toe struck the slab, but this measurement was taken 5¥t years after the accident occurred.

In finding for the plaintiff, the jurors answered special interrogatories indicating that they found the city negligent in its maintenance of the sidewalk and that this negligence was the proximate cause of plaintiff’s injury. In addition, the jury found that plaintiff had not been contributorially negligent. The city’s post-trial motion for judgment notwithstanding the verdict was denied.

The appellate court reversed, stating that, as a matter of law, plaintiff had failed to establish that the defect in the sidewalk would cause a reasonably prudent person to anticipate some danger to pedestrians, a necessary precedent to recovery under the rule of Arvidson v. City of Elmhurst (1957), 11 Ill. 2d 601. In Arvidson, plaintiff fell and was injured when she caught her heel on a defective slab of sidewalk which was 2 inches higher than the adjoining slab. The municipality maintained that plaintiff had no cause of action on these facts. This court there recognized the numerous and diverse authorities involving the difficult issue of whether height differences between adjoining sidewalk slabs constitute questions of fact for the jury or of law for the court. The court concluded that “[a] survey of the decisions does indicate *** that the law does not exact of a municipality the duty of keeping all sidewalks in perfect condition at all times, and that slight inequalities in level, or other minor defects frequently found in traversed areas, are not actionable. Storen v. City of Chicago, 373 Ill. 530; 19 McQuillin, Municipal Corporations, 3d ed., sec. 54.80.” (11 Ill. 2d 601, 604.) The court then noted the crucial question in such cases:

“The rule in Hlinois, reiterated in the case law, is that a jury question on the issue of the city’s negligence is presented only when the defect in the sidewalk is such that a reasonably prudent man should anticipate some danger to persons walking upon it. [Citations.] ” (11 Ill. 2d 601, 605.)

The court went on to hold that under the particular facts presented, “it cannot be found that all reasonable minds would agree that the 2-inch variation and the height of the adjoining slabs of the sidewalk near the curb was so slight a defect that no danger to pedestrians could reasonably be foreseen.” 11 Ill. 2d 601, 609.

There is no doubt that the observation in Arvidson that minor sidewalk defects are not actionable still represents the view of the great majority of jurisdictions. (See Annot., 37 A.L.R.2d 1187 (1954), as supplemented by A.L.R. Later Case Service (1977).) The diversity of opinion arises in determining which defects are “minor,” and in resolving that question each case must be examined as to its own particular facts. “[N] o mathematical standard can be adopted in fixing the line of demarcation ***.” (Arvidson v. City of Elmhurst (1957), 11 Ill. 2d 601, 604.) An unacceptable height variation in one location, such as a busy commercial area where pedestrians must be constantly alert to avoid bumping into one another, may be nonactionable in another area, such as a residential one. Carlin v. City of Chicago (1914), 262 Ill. 564, 573; Fischer v. Kansas City (Mo. App. 1969), 446 S.W.2d 451, 454; Westler v. City of Milwaukee (1967), 34 Wis. 2d 272, 276, 149 N.W.2d 624, 625; City of Beaumont v. Henderson (Tex. Civ. App. 1961), 349 S.W.2d 301, 304.

Turning to the facts in the case before us, we believe that the city’s evidence, a 1 1/8-inch-maximum height variation, would indicate that, in view of the surrounding circumstances, no cause of action would lie due to the minimal nature of the defect. However, the SMa-year delay in obtaining that measurement greatly reduces its probative value, and the jury could reasonably believe that plaintiff’s testimony more accurately described the condition of the sidewalk at the time of the occurrence. In our judgment a reasonably prudent person should anticipate some danger to those walking upon a sidewalk in the condition described by plaintiff. Nor do we believe the jury’s finding that plaintiff was exercising due care at the time of the accident was contrary to the manifest weight of the evidence. The defect was not apparent because it was obscured by the snow, and, in our opinion, it was not unreasonable for her to follow the path trod by others even though it traversed the raised slab. Were the defect uncovered and apparent to those upon the sidewalk, however, the question of plaintiff’s due care would be less easily resolved, but that is not the factual situation here. (See, e.g., Rider v. City of Norman (Okla. 1970), 476 P.2d 312.) We emphasize, too, that our holding should not be construed as diminishing the force of the general rule that a municipality is not liable for minor sidewalk defects. We decide only that in the circumstances of this case the evidence presented a question for the jury.

Defendant contends that the trial court erred in admitting certain photographs of the accident site because they portrayed the sidewalk without snow rather than the actual condition at the time of plaintiff’s fall. However, the fact that conditions had changed at the time the photographs were taken does not necessarily render them inadmissible, so long as the jury is not misled. (3 Jones, Evidence sec. 17:53 (6th ed. 1972).) Since it was made clear to the jury that the photographs merely depicted the nature of the defect and not the condition of the surface at the time of the occurrence, they were properly admitted into evidence.

Lastly, defendant contends that plaintiff simply slipped on the snow and fell, and that her testimony was manufactured subsequent to her injury, a suggestion denied by plaintiff. Defendant argued this theory to the jury, and there is nothing in this record to warrant our entering the province of the jury and rejecting its finding thereon.

Appellate court reversed; circuit court affirmed.

MR. JUSTICE KLUCZYNSKI took no part in the consideration or decison of this case.

MR. CHIEF JUSTICE WARD,

dissenting:

I dissent. The testimony here as to the difference in grade of the sidewalk was conflicting. The plaintiff testified that from her visual observation at the time of the accident the difference was “about 2 inches.” A witness for the defendant testified, on the basis of an actual measurement made by him some 5Vs years later using a depth gauge, that the differential was 11/8 inches. The majority states that the latter figure would constitute such a minimal defect as not to be actionable. The majority states, however, that the jury may have accepted the plaintiff’s figure, and that a differential of “about 2 inches ” makes the question of liability one for the jury to decide.

The evidence with respect to the difference in grade is in a somewhat unsatisfactory condition. The testimony on behalf of both the plaintiff and the defendant was given with reference to photographs taken by the plaintiff which were placed in evidence. These photographs were taken at some unspecified date between the time of the accident in March 1965 and the trial, which took place in November 1970. When the record was assembled for appeal, it was discovered that these photographs were no longer in the court files, and, by stipulation, other photographs were substituted. The defendant’s witness did testify at the trial, however, that the condition of the sidewalk when he measured it was the same as that shown in one of the photographs introduced into evidence by the plaintiff.

The majority’s conclusion that a difference in grade of “about 2 inches” requires that the jury be permitted to decide the question of liability purports to be based on Arvidson v. City of Elmhurst (1957), 11 Ill. 2d 601. I do not consider the decision in Arvidson to be controlling here. The defective sidewalk there was located next to a business street. It contained parking meters and abutted on stores. The plaintiff was there on an errand,' and had no previous knowledge of the condition of the sidewalk. See 11 Ill. 2d 601,609.

The court in Arvidson, in discussing the demarcation between questions for the jury and questions for the court, was at pains to note, “[N] o mathematical standard can be adopted in fixing the line of demarcation, and *** each case must be determined upon its own particular facts and circumstances.” (11 Ill. 2d 601, 604.) As the majority here acknowledges, “An unacceptable height variation in one location, such as a busy commercial area where pedestrians must be constantly alert to avoid bumping into one another, may be nonactionable in another area, such as a residential one.”

While the majority states that it is not diminishing the general force of the rule announced in Arvidson that slight inequalities in grade are not actionable, I believe that this decision nonetheless does so.

In Lansing v. County of McLean (1978), 69 Ill. 2d 562, 569-70, this court recently reaffirmed the rule announced in Strappelli v. City of Chicago (1939), 371 Ill. 72, that a municipality is not liable for failure to remove snow which has accumulated on a street or sidewalk from natural causes. Although liability here was not predicated on a claim that the plaintiff had slipped on the snow, but on a claim that she had stubbed her toe on a raised slab in the pavement, the result here is nevertheless inconsistent with Lansing and Strappelli.

The majority states that if the assumed 2-inch difference in grade had been visible “the question of plaintiff’s due care would be less easily resolved,” but that because the difference was obscured by snow, the jury’s finding that the plaintiff was in the exercise of due care was warranted. The place where the plaintiff fell was in a residential neighborhood only a.few doors from her home. She testified that she had traversed this distance twice a day over a period of 6 years, and that she had noticed the height differential every time she passed by. Had the defect been visible, I think a judgment n.o.v. in favor of the defendant would have been proper. See Shannon v. Addison Trail High School (1975), 33 Ill. App. 3d 953; Davis v. City of Chicago (1972), 8 Ill. App. 3d 94; Annot., 41 A.L.R.2d 739 (1955).

The implication of the decision is thus that a difference in grade which, if visible, would not lead to liability does so if it is concealed by a snowfall which, under the decision in Strappelli, the city had no obligation to remove.

MR. JUSTICE RYAN,

also dissenting:

I must respectfully dissent from the opinion of the majority of my colleagues because I feel that under the facts of this case a reasonably prudent man would not anticipate danger to a person using the sidewalk in question under the circumstances present on the date of the accident. Thus, no question of fact was presented for a jury’s determination. Arvidson v. City of Elmhurst (1957), 11 Ill. 2d 601, 605.

Although this court in Arvidson rejected the practice of fixing arbitrary standards with mathematical precision as to what constitutes minor defects in sidewalks which do not render a city legally responsible, I fear that the effect of the majority opinion is to fix such a line of demarcation at “about 2 inches.” The opinion states that the height variation of 1 1/8 inches established by the city’s evidence, “would indicate that, in view of the surrounding circumstances, no cause of action would lie due to the minimal nature of the defect.” The opinion suggests, however, that the jury may have rejected the city’s evidence and accepted the plaintiff’s version that the variation was “about 2 inches” and states:

“In our judgment a reasonably prudent person should anticipate some danger to those walking upon a sidewalk in the condition described by plaintiff. ”

Somehow, the magic words concerning height variation in sidewalks necessary to create a question of fact for the jury seem to have been established at “about 2 inches.” That was the language the court considered sufficient in Arvidson and the same “about 2 inches” has now been accepted by the majority of this court while stating that a 1 1/8-inch variation was not actionable.

I think it is necessary that this court definitely reject the acceptance of any arbitrary measurement as signifying that a question of fact for the jury exists and that we adhere to previous pronouncements that the reasonably-prudent-man test must be applied to the facts and circumstances of a particular case. It is my belief that a height variation of “about 2 inches” of two adjoining slabs of concrete in a sidewalk may well present a question for the jury under the facts of one case such as Arvidson, but that, under the facts and circumstances of this case, I feel that the city, as a matter of law, was not negligent in permitting this particular variation of “about 2 inches” to exist.

The majority acknowledges that an unacceptable height variation in one location, such as a busy commercial area, may be nonactionable in another area, such as a residential one. Nonetheless, the majority adheres to the “about 2 inches” criterion accepted by this court in Arvidson under facts and circumstances that bear no resemblance to the facts and circumstances in the case now under consideration.

In Cogdill v. City of Marion (1959), 22 Ill. App. 2d 99, 103, Shepard v. City of Aurora (1955), 5 Ill. App. 2d 12, 25, and Bradshaw v. City of East St. Louis (1954), 3 Ill. App. 2d 300, the appellate courts of this State have recognized that the municipality is only required to maintain its streets and sidewalks in a reasonably safe condition considering the use to be made and the amount and kind of travel which may be fairly expected upon them. In Welch v. City of Chicago (1925), 236 Ill. App. 520, 534, aff’d (1926), 323 Ill. 498, the court stated:

“Ordinary care on the part of the City as it pertains to such an area as exists at State and Madison streets *** —one of the busiest comers in the world — may be said to require a closer attention to physical conditions, and a somewhat smoother and safer surface in the street than is required where travel is sparse ***.”

This court in Arvidson, after acknowledging that slight inequalities in the level of the sidewalk or other minor defects are not actionable, emphasized that the evidence in the case it was considering established that the 2-inch difference in level “was near the curb of a business street, on which there were abutting stores and parking meters, so that it could reasonably be foreseen that the area would be traversed by pedestrians enroute to the stores.” (11 Ill. 2d 601, 609.) In fact, the plaintiff in that case had parked her automobile, inserted a coin in the parking meter, and, as she turned and walked toward a store, stepped on the uneven pavement and fell.

The facts in the case we are now considering present a sharply different picture. Here, the defect was located in a residential area. It appears from the testimony and photographs in evidence that the sidewalk was quite wide, plaintiff’s evidence indicating it was between 5 and 6 feet wide. The sidewalk runs north and south on the west side of North Ridgeway Avenue. The photographs show that there is a parkway between the sidewalk and the street and that there is a hedge at least knee high at the edge of the parkway adjacent to the east edge of the sidewalk. The spot where plaintiff fell, as indicated by a mark she made on a photograph, is on the east edge of the sidewalk adjacent to the hedge, which would be a part of the sidewalk that would not customarily be used by pedestrians. The plaintiff was walking in that area on the day she was injured because there was an accumulation of snow on the sidewalk and she was following a path in the snow that had been made by people who had been walking on the sidewalk. The raised part of the sidewalk was covered with snow and the plaintiff did not notice this defect. However, when she stumbled the snow was pushed away from the defect and she noticed that the square to the south of where she had stumbled was about 2 inches higher than the square to the north.

There is another reason which convinces me that as a matter of law, under the facts of this case, the city should not be liable. The plaintiff, herself, by way of explaining the difference between her evidence that the level variation was about 2 inches and the city’s evidence that it measured only 11/8 inches, has suggested that judicial notice be taken of the fact that changes in temperatures and seasons in Chicago can cause the sidewalks to rise and fall in elevation. The evidence would indicate that the variation in the sidewalk level fluctuates from year to year — a variation of 2 inches one year may be 1 1/8 inches the next year and vice versa. Obviously, a city cannot be expected to maintain all sidewalks perfectly level and free from all defects at all times. I also believe that a city cannot be expected to estimate that a variation in height óf 1 1/8 inches, which the majority holds is nonactionable, will be increased to about 2 inches at another time of year.

In Lance v. Senior (1967), 36 Ill. 2d 516, this court held that whether the law imposes a duty on an individual with regard to another does not depend upon foreseeability alone. The likelihood of injury, the burden of guarding against it, and the consequences of placing that burden upon the defendant must all be taken into account.

Through hindsight most events are foreseeable, which, I suggest, accounts for the qualification as that term relates to duty, that the event be reasonably foreseeable. In my opinion, the minimal nature of the defect and its location in a residential area on the edge of a sidewalk close to a hedge where a pedestrian would not customarily walk; the fact that plaintiff was using that part of the sidewalk because she was following a path in the snow; and the fact that she could not see the defect because it was covered with snow renders the foreseeability of this event quite remote and causes it to be somewhat less than reasonably foreseeable. Applying the criteria as to duty this court adopted in Lance, the likelihood of injury from the city’s failure to repair this minor defect is slight. On the other hand, the burden that would be placed on the city to repair all of .the minor defects of this nature on the hundreds of miles of sidewalk located in its residential areas would be substantial. Also, the constant surveillance required to estimate the changes climatic conditions may render from one season to another would be next to impossible to perform. For the reasons I have at length stated, I would hold that as a matter of law, under the facts and circumstances of this case, the city of Chicago is not liable.


author: MR. JUSTICE MORAN

text:
    (Nos. 49791, 50156, 50327 cons.
    JANET F. GALVIN, Appellee, v. CHARLES P. GALVIN, Appellant.

      Opinion filed May 26, 1978.

      KLUCZYNSKI, J., took no part.
    Richard C. Moenning, of Chicago, and Ronald L. Keyser, of Eliff, Keyser & Hallberg, of Pekin, for appellant.
    Sandman, Levy & Moltz, and Samuel K. Bell, of Chicago (Kerry L. Kessler, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

This matter, consolidated from three appeals, concerns the constitutionality of a venue provision in “An Act in relation to married men and women” (the Act). (Ill. Rev. Stat. 1975, ch. 68, par. 22 et seq.) The Act, in existence for over 100 years, has been repealed and superseded by the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.), which became effective October 1, 1977. The action is before this court pursuant to Supreme Court Rule 302(a) (58 Ill. 2d R. 302(a)) as a result of an order entered in the circuit court of Cook County declaring invalid section 2 of the Act (El. Rev. Stat. 1975, ch. 68, par. 23).

On June 6, 1977, plaintiff, Janet F. Galvin, filed an action for separate maintenance in Cook County, where, according to her complaint, she had resided apart from the defendant, her husband, for over six months. The complaint failed to allege where the defendant resided, but it is stipulated that he lived at the marital home in Tazewell County. The defendant was personally served on June 24 at the marital home. The defendant subsequently filed a special appearance to contest the court’s jurisdiction and to seek to quash the return of summons. He asserted that jurisdiction over the cause existed solely in the county where the defendant resided. In an order dated July 14, 1977, the trial court denied the motion to quash and asserted jurisdiction over the cause. The transcript of the proceedings indicates that the trial court sua sponte found that section 2 of the Act, which provides in part that “[p] roceedings *** shall be instituted in the county where the husband resides,” denies a woman equal protection of the laws. Upon denying defendant’s motion to quash, the trial court entertained plaintiff’s petition for temporary relief. The court ordered the defendant to pay temporary child support and temporary attorney’s fees.

On July 25, 1977, the court entered a rule to show cause why the defendant should not be held in contempt for failure to comply with the child-support order. The court further ordered that plaintiff be awarded temporary custody of the minor children, that the defendant return an automobile to the plaintiff, and that the defendant provide indicia of health insurance coverage. On the following day, the defendant filed his first notice of appeal to challenge the order which declared invalid section 2 of the Act and challenged all orders entered subsequent thereto.

On September 15, 1977, upon a finding of noncompliance with the July 25 order, defendant was held in contempt and a writ for the defendant’s body attachment was issued. The following day, the defendant filed a second notice of appeal challenging the September 15 order.

On October 27, 1977, the trial court entered an order which granted plaintiff leave to file an amended petition for dissolution of marriage, and held the defendant in contempt. The court issued another writ of attachment. It also entered judgment against the defendant for temporary attorney’s fees and costs. On November 14, defendant filed his third notice of appeal to challenge the October 27 order.

Plaintiff sought to dismiss the three appeals alleging mootness due to the enactment of the Illinois Marriage and Dissolution of Marriage Act. On November 22, we denied plaintiff’s motion to dismiss.

Section 2 of the Act provides:

“Proceedings under this act shall be instituted in the county where the husband resides, and process may be served in any county in the state; but the wife shall not be required to give bond for costs in any such proceeding: Provided, in case the husband shall abandon the wife without fault on her part, and remove to another county in this state, then and in that case such suit may be brought by the wife either in the county where they resided at the time of such abandonment as aforesaid or in the county where the husband resides at the time of the commencement of such suit.” (Ill. Rev. Stat. 1975, ch. 68, par. 23.)

On its face, the section purports to require that all separate maintenance actions, whether brought by the husband or by the wife, must be initiated in the county where the husband resides. The section cannot, however, be interpreted in stark isolation. Section 1 of the Act states, in pertinent part:

“Married (men or) women who, without their fault, now live or hereafter may live separate and apart from their (wives or) husbands may have their remedy, in their own names, respectively, against their said (wives or) husbands in the circuit court of the county where (the wife or) the husband resides, for a reasonable support and maintenance while they so live or have so lived separate and apart ***.” (Emphasis and parentheses added.) 111. Rev. Stat. 1975, ch. 68, par. 22.

The parentheses have been here added to the above provision to clarify an ambiguity created by the disjunctive “or.” The provision allows a married man a remedy for separate maintenance against his wife in the county where the wife resides. Similarly, a married woman has a remedy for separate maintenance against her husband in the county where the husband resides. Simply stated, the remedy lies only in the circuit court of the county in which the defendant resides. This construction comports with the general venue provision of the Civil Practice Act which authorizes venue in the county where any defendant, not any plaintiff, resides. Ill. Rev. Stat. 1975, ch. 110, par. 5.

A brief overview of the historical development of separate maintenance actions confirms this common sense construction. At common law, a woman compelled to live apart from her husband without her fault was not accorded a legal right to maintain an action for support in her own behalf. The original purpose of the separate maintenance action was to enable a married woman to sue in equity in her own name for her support. (See Ross v. Ross (1873), 69 Ill. 569, 572.) In 1877, an action for separate maintenance could be brought only by married women and the action could be instituted in the county where either the husband or the wife resided. (See Ill. Ann. Stat., ch. 68, secs. 22, 23, Historical Notes, at 66 and 114 (Smith-Hurd 1959).) In 1891, the Act was amended to require that suit be brought (by married women) only in the county where the husband (defendant) resided. The amendment also provided that in those cases in which the husband abandons the wife, the action might alternatively be brought in the county where they resided at the time of the abandonment. (See Hurd’s Rev. Stat. 1891, ch. 68, pars. 22, 23.) In 1935, the Act was amended to, for the first time, accord husbands similar rights to separate maintenance. The requirement that the action be brought only in the county where the defendant resided was preserved in section 1 of the Act. As was the case generally in other civil actions, separate maintenance actions had to be brought in the county where the defendant resided. (See Ill. Ann. Stat. and accompanying note, ch. 110, par. 135, at 1070-71 (Callaghan Supp. 1932-1935).) However, section 2 of the Act was not amended to reflect the substantive change in the law which enabled married men to bring separate maintenance actions. Such oversight created an apparent inconsistency in the Act: on the one hand, section 1 provided that all actions must be brought in the county where the defendant resides, and, on the other hand, section 2 appeared to require that all actions be brought where the husband (no longer synonymous with defendant under the 1935 amendment) resides.

A cardinal rule of statutory construction ordains that sections in pari materia must be considered with reference to one another so that both sections may be given harmonious effect. (Gillespie v. Riley Management Corp. (1974), 59 Ill. 2d 211, 215; People ex rel. Vaughan v. Thompson (1941), 377 Ill. 244, 249; 2A Sutherland, Statutes and Statutory Construction secs. 46.05, 51.03 (4th ed. 1973).) Both sections 1 and 2 frame the jurisdiction and venue of a separate maintenance action. It is apparent that when the legislature amended the Act in 1935, it intended to enable a married man to bring an action for separate maintenance. It so provided in section 1. It is also evident that the legislature intended to preserve the statutory requirement that all separate maintenance actions be brought in the county where the defendant resides. The amendment of section 1 accomplished this. Reading the sections in consort, we conclude that section 2 should be construed to refer to the husband in the status of defendant, as was the case when section 2 was first enacted in 1891. Read in this manner, actions under the Act, whether brought by the husband or by the wife, must be brought in the county where the defendant spouse resides, with the exception only of cases in which the husband abandons the wife. Consequently, the statutory scheme does not discriminate against the wife in defiance of equal protection.

Accordingly, we hold that the provisions of the former separate maintenance act, which required the plaintiff to bring her action for separate maintenance in the county in which her husband resided, were valid. Therefore, the action was improperly initiated in the circuit court of Cook County.

The plaintiff contends that even if the action was originally filed in the wrong venue, such error was cured when the court granted her leave to file an amended petition for dissolution of marriage pursuant to the Illinois Marriage and Dissolution of Marriage Act. However, because separate maintenance actions as well as divorce actions were, under the former acts, considered to be outside a court’s general equity power, jurisdiction to hear and determine such cases could be exercised only within the limits of the jurisdiction conferred by statute. (People ex rel. Christiansen v. Connell (1954), 2 Ill. 2d 332, 341 (divorce); Plotnitsky v. Plotnitsky (1926), 241 Ill. App. 166, 168-70 (separate maintenance).) The venue provisions of the Act regarding separate maintenance had consistently been construed to be mandatory and jurisdictional in nature. (Chrastka v. Chrastka (1971), 2 Ill. App. 3d 722, 725; Briney v. Briney (1921), 223 Ill. App. 119, 121.) It is axiomatic that a court without jurisdiction to proceed in the action lacks the power to enter orders incident to that action. (Dean v. Dean (1943), 381 Ill. 514, 515 (divorce); Brand v. Brand (1964), 53 Ill. App. 2d 190, 192 (separate maintenance).) Therefore, the order granting leave to file an amended petition for dissolution of marriage, as well as all orders entered subsequent to the court’s improper assertion of jurisdiction, must be vacated.

Accordingly, we reverse the trial court’s finding that section .2 of the Act is unconstitutional and vacate the trial court’s orders entered pursuant to its improper assertion of jurisdiction.

Judgment reversed; orders vacated.

MR. JUSTICE KLUCZYNSKI took no part in the consideration or decision of this case.


author: MR. CHIEF JUSTICE WARD

text:
    (No. 49535.
    RUSH BERRY, Appellant, v. THE INDUSTRIAL COMMISSION et al. —(Butler Manufacturing Company, Appellee.)

      Opinion filed May 26, 1978.

      Edward L. Welch, of Edwardsville, for appellant.
    Thomas G. West, of West, Neagle & Williamson, of Galesburg, for appellee.
   MR. CHIEF JUSTICE WARD

delivered the opinion of the court:

An arbitrator for the Industrial Commission denied Rush Berry’s claim for compensation under the Workmen’s Compensation Act on the ground that notice of his accidental injury was not given his employer, Butler Manufacturing Company (Butler), within the time required under the provisions of the Act (Ill. Rev. Stat. 1967, ch. 48, par. 138.1 et seq.). The Commission affirmed the decision of the arbitrator, and its decision wais confirmed by the circuit court of Knox County. The claimant has appealed directly to this court. 58 Ill. 2d R. 302(a).

The claimant had v been employed by Butler for approximately 21 years and had a history of back problems. At the time of this injury, he operated a forklift in the transportation department to move materials in the plant.

On the date of the claimed accident, according to his testimony, the claimant, shortly after he clocked into the plant at 7 a.m., stumbled over a board a few feet from his forklift truck. His legs gave way as he attempted to lift himself onto the truck. He notified his foreman of the pain in his legs and asked to be sent home. The foreman, however, referred him to the company nurse.

Testifying before the arbitrator, the claimant stated that he reported his injury to the nurse, but the nurse gave testimony that indicated she had not seen the claimant. On cross-examination she did state that she had not begun work that day until 8 a.m. and that it was improbable there ever would be a nurse on duty earlier than 8 a.m. The claimant testified that he later consulted his personal physician, who advised him to have surgery to correct the back condition which had been aggravated by his accident. He attempted to return to work several times, but in each instance was unable to continue work because of pain in his back and legs. The claimant underwent spinal disc surgery but testified he has not been able to resume work. It appears that immediately after his injury the claimant filed an application for and received payments under a nonindustrial group insurance plan of the respondent.

The only question presented on this appeal is whether the employer was given proper notice of the claimant’s accident. Section 6(c) of the Workmen’s Compensation Act, at the time of the injury here, provided:

“No proceedings for compensation under this Act shall be maintained unless notice of the accident has been given to the employer as soon as practicable, but not later than 45 days after the accident. ***
* * *
No defect or inaccuracy of such notice shall be a bar to the maintenance of proceedings of arbitration or otherwise by the employee unless the employer proves that he is unduly prejudiced in such proceedings by such defect or inaccuracy.
Notice of the accident shall give the approximate date and place of the accident, if known, and may be given orally or in writing.” Ill. Rev. Stat. 1967, ch. 48, par. 138.6(c).

The claimant argues that the respondent was aware of his work-related accident and that he testified to its awareness. Because of a stenographic error in the transcript of the proceeding before the arbitrator, this awareness is not evident, and he says the circuit court erred in not returning the case to the Commission for correction of the error. He says that seven months after his accident, when he inquired regarding payments under the nonoccupational group employee insurance policy, two of the respondent’s supervisory employees said that “the insurance would refuse to pay them because it was an inside accident, inside the plant, and I would have to get an attorney.” The transcript reads: “They said the insurance would refuse to pay them because it wasn’t an inside accident, inside the plant, and I would have to get an attorney.” If the transcript were thus corrected, the claimant argues, it would show that Butler knew of the accident, though it admittedly was seven months following the accident. However, he says, if one adds the consideration that the claimant applied for nonindustrial group insurance benefits immediately after the accident, it would establish the notice to Butler within the required 45-day period.

The point that the transcript allegedly was inaccurate was originally raised by the claimant by mailing a motion to have the transcript corrected to the arbitrator at his home. There was no ruling on the motion by the arbitrator. The motion was renewed orally before one of the commissioners, who told the claimant’s attorney that the motion “is really moot at this time. We will take everything under consideration in a new decision.” The attorney’s response was that the point would have to be argued later at a hearing before the Commission. The record does not contain a transcript of the proceedings before the Commission. It contains simply the Commission’s general holding which was adverse to the claimant, without reference to the motion, which may or may not have been renewed before the Commission. There was no motion in writing made before the Commission. If the motion was argued before the Commission, as the claimant’s attorney had proposed to do, we must conclude that it was denied. The Commission has the responsibility of determining factual questions, and it may have determined the transcript was not inaccurate. We would also note that the Act provides that “the Commission in its decision may in its discretion find specially upon any question or questions of law or fact which shall be submitted in writing by either party whether ultimate or otherwise ***” (Ill. Rev. Stat. 1971, ch. 48, par. 138.19(e)). The claimant did not submit any questions under this provision as to the accuracy of the arbitration transcript.

In any event the question the claimant presented to the circuit court, and the one he presents here, was not made and preserved for the record. This court stated in Plano Foundry Co. v. Industrial Com. (1934), 356 Ill. 186, 193: “It is clearly the duty of the party desiring to have the case reviewed, to see that a complete record relating to any issues raised is filed by the commission upon the return to the writ of certiorari. ” The circuit court on the record before it did not err in rejecting the claimant’s contention and confirming the Commission’s finding. Under the holding we have reached, there is no necessity of considering the merit of the claimant’s claim that if the transcript were to be “corrected” there would be a sufficient showing of notice of the accident. The judgment of the circuit court of Knox County is affirmed.

Judgment affirmed.


text:
    (No. 49966.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. STEVEN UNDERWOOD, Appellee.

      Opinion filed May 26, 1978.

      KLUCZYNSKI, J., took no part.
    William J. Scott, Attorney General, of Springfield, and Richard M. Baner, State’s Attorney, of Eureka (Donald B. Mackay and Melbourne Noel, Assistant Attorneys General, of Chicago, and Robert C. Perry and Jane F. Bularzik, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Brian M. Nemenoff, of Peoria, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Defendant, Steven J. Underwood, was convicted of aggravated battery and sentenced to imprisonment for a term of not less than 2 nor more than 6 years. The defendant was 15 years old at the time the offense was committed. The office of Court Services for Woodford County filed a petition to adjudge the defendant a ward of the court under the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, par. 704 — 1). Shortly thereafter, the State filed a petition to prosecute the defendant minor as an adult under the criminal laws pursuant to the Act (Ill. Rev. Stat. 1973, ch. 37, par. 702 — 7). After investigation and hearing, the court granted the State’s petition, and subsequently a grand jury returned an indictment charging defendant with aggravated battery.

The defendant appealed his conviction to the appellate court on the grounds that (1) the court abused its discretion in granting the petition to prosecute him as an adult, and (2) the court committed reversible error in not sua sponte giving a jury instruction to define the term “reasonably believes” which appears in the self-defense instruction. The appellate court held for the State on the first issue, but, in a two-to-one decision, reversed and remanded the cause on the second issue. (50 Ill. App. 3d 908.) We granted the State leave to appeal.

The determination to permit a minor to be prosecuted under the criminal law is one of judicial, not prosecutorial, discretion. (People v. Rahn (1974), 59 Ill. 2d 302, 304-05.) Section 2 — 7(3)(a) of the Juvenile Court Act (HI. Rev. Stat. 1973, ch. 37, par. 702 — 7(3)(a)) sets forth six factors to guide the court in making its determination. At the conclusion of the instant hearing, the trial court stated that it would take the matter under advisement for “a day or so.” However, when advised that the defendant had already been detained for 10 judicial days and was therefore entitled to be released pursuant to section 4 — 2 of the Act (a conclusion that need not be addressed), the court made its decision and granted the State’s petition to have the defendant prosecuted as an adult. Defendant now claims that the court, by rendering its decision immediately at the conclusion of the hearing, abused its discretion. He argues that the court made the immediate decision only to avoid releasing defendant from detention. Such claim is pure conjecture and without merit. Our review of the record reveals that there was sufficient evidence on each of the six factors to support the trial court’s determination. We therefore agree with the appellate court that the trial court did not abuse its discretion by allowing the minor to be prosecuted as an adult. That portion of the appellate court’s judgment is affirmed.

The incident precipitating defendant’s alleged aggravated battery is fully detailed in the appellate court opinion. For the purpose of this appeal, it will suffice to relate, that two altercations occurred. In the first, the victim disembarked from his truck carrying a chain, and confronted the defendant and two of defendant’s friends. Defendant and the victim scuffled. The victim returned to his truck and was preparing to leave when defendant taunted the victim to fight without the chain. The latter again got out of the truck. Whether the victim was, in fact, carrying the chain at that time was in dispute at trial. In any case, there was no evidence that the chain was used. During the ensuing scuffle, the defendant stabbed the victim three times in the stomach. Defendant’s theory of self-defense is that he “reasonably believed” that such force was necessary to prevent imminent death or great bodily harm to himself.

Both parties agree that the pivotal question before the jury was whether the defendant justifiably acted in self-defense. The following instruction defining self-defense was tendered to the jury in accordance with Supreme Court Rule 451(a) (58 Ill. 2d R. 451(a)).

“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.
However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.” (Emphasis added.) (Illinois Pattern Jury Instructions (IPI), Criminal, No. 24.06 (1968).)

During the conference on instructions, the defendant tendered a non-IPI instruction to define the term “reasonably believes.” The court correctly sustained the State’s objection, which was that the instruction was argumentative. At that time, the State advised that the proper instruction to define “reasonably believes” is IPI Criminal No. 4.13 (1968), which reads:

“When I use either of the phrases ‘reasonable belief’ or ‘reasonably believes’ I mean that the person concerned, acting as a reasonable man, believes that the described facts exist.”

Despite being so advised, the defendant neither submitted the suggested instruction nor requested additional time to prepare an alternative instruction. In this court, the defendant does not assert that the trial court improperly refused his non-IPI instruction. Rather, he contends that the trial court should have, sua sponte, given the last-above-quoted instruction.

Under Illinois law, the burden of preparing jury instructions is primarily on the parties, not on the trial court. (Ill. Rev. Stat. 1973, ch. 110, par. 67; 58 Ill. 2d R. 451.) Generally, the trial court is under no obligation either to give jury instructions not requested by counsel or to rewrite instructions tendered by counsel. (People v. Parks (1976), 65 Ill. 2d 132, 137; People v. Springs (1972), 51 Ill. 2d 418, 425; People v. Moorelander (1962), 25 Ill. 2d 309, 312.) Moreover, no party may raise on appeal the failure to give an instruction unless he shall have tendered it. (58 Ill. 2d R. 366(b)(2)(i).) This rule, a species of the procedural waiver doctrine, was explained in Onderisin v. Elgin, Joliet & Eastern Ry. Co. (1959), 20 Ill. App. 2d 73, 77-78:

“The purpose of the conference is to afford counsel an opportunity to object to or correct erroneous instructions. As officers of the court, counsel have a duty to cooperate with the trial judge to the end that the jury may be properly instructed. Enlightened trial practice does not permit counsel under the guise of trial strategy to sit idly by and permit instructions to be given the jury without specific objection and then be given the advantage of predicating error thereon by urging the error for the first time in a post-trial motion.”

In criminal cases, however, the waiver rule will not prevent review of “substantial defects” injury instructions “if the interests of justice require.” (58 Ill. 2d R. 451(c).) The object of this limited exception to the waiver rule is to insure that a defendant is not denied his right to a fair and impartial jury trial. Urging that this principle applies in the instant case, defendant relies for support on People v. Joyner (1972), 50 Ill. 2d 302. There it was held that the failure of the court in a murder trial to instruct sua sponte on the lesser included offense of voluntary manslaughter was a “substantial defect” which necessitated a remand for a new trial. The critical distinction between that case and the case at bar is that, in Joyner, the omitted instruction set forth elements of a substantive offense in addition to the one charged — an offense of which the defendant could have been found guilty. Here, had the court failed to instruct the jury on the law of self-defense, we would agree that Joyner would require the finding of a substantial defect. But that is not the fact. The jury was, on two occasions, instructed as to the law on the substance of defendant’s case — self-defense: it was first informed that, to find defendant guilty, the State must prove beyond a reasonable doubt that defendant was not justified in using the force which he used, and, second, it was given the aforequoted instruction on the justifiable use of force (self-defense).

The issue to be resolved is whether the definitional instruction omitted was so basic to the given instruction on self-defense that failure of the trial court to sua sponte give it resulted in an unfair trial. We conclude it did not. The omitted instruction merely informed the jury that “reasonably believes” means that the “person concerned, acting as a reasonable man, believes ***.”

We therefore hold that failure of the trial court to sua sponte give the omitted instruction did not constitute a substantial defect which would invoke the limited exception to the waiver rule. This is especially true since the defendant was specifically informed of its availability. That portion of the judgment of the appellate court holding to the contrary is reversed. The judgment of the circuit court of Woodford County is affirmed.

Appellate court affirmed in part and reversed in part; circuit court affirmed.

MR. JUSTICE KLUCZYNSKI took no part in the consideration or decision of this case.