{ "id": 8499375, "name": "MERRILL LYNCH, PIERCE, FENNER AND SMITH, INC., Plaintiff-Appellee, v. WILLIAM K. STORY, Defendant-Appellant", "name_abbreviation": "Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Story", "decision_date": "1991-08-23", "docket_number": "No. 1-89-3073", "first_page": "829", "last_page": "836", "citations": [ { "type": "official", "cite": "218 Ill. App. 3d 829" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "518 N.E.2d 424", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "164 Ill. App. 3d 978", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3581931 ], "weight": 2, "pin_cites": [ { "page": "983-84" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0978-01" ] }, { "cite": "226 N.E.2d 6", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "37 Ill. 2d 180", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2864902 ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0180-01" ] }, { "cite": "334 N.E.2d 864", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "31 Ill. App. 3d 851", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2710579 ], "year": 1967, "pin_cites": [ { "page": "853" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/31/0851-01" ] }, { "cite": "498 N.E.2d 597", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "147 Ill. App. 3d 826", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3604862 ], "weight": 2, "pin_cites": [ { "page": "831" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/147/0826-01" ] }, { "cite": "383 N.E.2d 681", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. App. 3d 127", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3322676 ], "weight": 2, "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0127-01" ] }, { "cite": "383 N.E.2d 1234", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. App. 3d 455", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3317537 ], "pin_cites": [ { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0455-01" ] } ], "analysis": { "cardinality": 692, "char_count": 14998, "ocr_confidence": 0.749, "pagerank": { "raw": 5.2296735136712706e-08, "percentile": 0.329724628733181 }, "sha256": "7a91320af3a90952f76203d987f4ff8cf0d0f000ddcedf3b5a1f28e58ca38691", "simhash": "1:13debe76b6410cf7", "word_count": 2464 }, "last_updated": "2023-07-14T18:01:44.666066+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "McNAMARA and EGAN, JJ., concur." ], "parties": [ "MERRILL LYNCH, PIERCE, FENNER AND SMITH, INC., Plaintiff-Appellee, v. WILLIAM K. STORY, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE RAKOWSKI\ndelivered the opinion of the court:\nPlaintiff-appellee Merrill Lynch, Pierce, Fenner & Smith (Merrill Lynch) sued below, seeking to recover damages for breach of a written contract. The trial judge entered a default judgment against defendant-appellant William K. Story (Story) for the failure of Story to appear at trial after Story received notice according to Supreme Court Rule 237 (107 Ill. 2d R. 237). Merrill Lynch subsequently filed a petition for attorney fees. After a hearing, the trial court granted Merrill Lynch fees in the amount of $6,500. Story appeals both the entry of default judgment against him and the award of attorney fees granted to Merrill Lynch.\nMerrill Lynch filed the underlying complaint against Story on August 24, 1983, alleging that Story breached a standard option agreement between the parties, dated September 15, 1982. Merrill Lynch sought to recover from Story payment for purchases of securities which the agreement authorized. The agreement, entered into in Florida, provided that New York law would control disputes arising thereunder.\nOn May 5, 1989, Merrill Lynch filed a Rule 237 (107 Ill. 2d R. 237) notice upon Story which requested Story be \u201cpresent in court for testimony as witness in this action.\u201d The week before the date of trial, counsel for Merrill Lynch telephoned counsel for Story. At that time, counsel for Story voiced no objection to the Rule 237 notice and confirmed that Story would be present at trial. On June 12, 1989, the case was set for trial before the Honorable John P. Tully. Story was not present. According to Story\u2019s counsel, Story was in Florida and was unable to appear. Story\u2019s counsel could not give the court a reason for his client\u2019s absence. The trial court offered to set the matter over until later in the afternoon, but when it became apparent that Story would not appear, the trial court indicated that he would enter a judgment of default against Story on the principal amount claimed by Merrill Lynch, and a jury was impanelled to hear the case on the issue of interest. Subsequently, an order was entered in favor of plaintiff and against defendant to include principal and interest, in the amount of $5,148.57. Story does not challenge the awarding of interest in any respect.\nIn accord with the June 12, 1989, order, Merrill Lynch\u2019s oral petition for attorney fees was continued. Merrill Lynch later filed a petition for attorney fees, which was supported by affidavit. After the petition was fully briefed, the trial court conducted hearings on the petition and awarded Merrill Lynch attorney fees in the amount of $6,500.\nThe first issue we address is whether the entry of the sanction of default pursuant to Rule 237 for the failure of Story to appear at trial was an abuse of the trial court\u2019s discretion.\nSupreme Court Rule 237(b) provides in pertinent part:\n\u201cThe appearance at the trial of a party or a person who at the time of trial is an officer, director, or employee of a party, may be required by serving the party with a notice designating the person who is required to appear. *** Upon a failure to comply with the notice, the court may enter any order that is just, including any order provided for in Rule 219(c) that may be appropriate.\u201d (107 Ill. 2d R. 237(b).)\nIllinois Supreme Court Rule 219(c) (107 Ill. 2d R. 219(c)(v)) specifically provides that the entry of a default judgment against an offending party or an order dismissing the offending party\u2019s action are authorized sanctions. As Merrill Lynch points out:\n\u201cThe particular sanction imposed rests largely in the trial court\u2019s discretion, the exercise of which will not be disturbed absent an abuse of discretion, and the burden is on the offending party to establish that his failure to comply was justified by extenuating circumstances.\u201d Quarles v. Nationwide Insurance Co. (1978), 66 Ill. App. 3d 455, 465, 383 N.E.2d 1234.\nIn arguing that the trial court\u2019s action was an abuse of discretion in this case, Story relies primarily on the case of Ryan v. Bening (1978), 66 Ill. App. 3d 127, 383 N.E.2d 681. There, the court held that the entry of a default judgment in response to a defendant\u2019s failure to appear pursuant to Rule 237 was not an appropriate sanction in the absence of the plaintiff proving a -prima facie case. Though the parties have not cited it, a similar situation was presented in the more recent case of People ex rel. Hartigan v. Organization Service Corp. (1986), 147 Ill. App. 3d 826, 498 N.E.2d 597. There, as in Quarles, the defendant had failed to show up at trial pursuant to notice under Rule 237. The court held as follows:\n\u201cOne of the sanctions provided by section 219(c) is the entry of a default judgment against the offending party. [Citation.] We realize that where a defendant has appeared and placed in issue the allegations in the complaint, a trial court cannot enter a default judgment merely because defendant failed to appear at trial. Plaintiff must proceed to prove his claim as if defendant had been present to try the case. [Citing Ryan, 66 Ill. App. 3d at 131.] However, we believe that this condition has been satisfied in the instant case.\u201d People ex rel. Hartigan v. Organization Service Corp., 147 Ill. App. 3d at 831.\nRyan, which appears to be the first case to apply the general \u201cnonappearance at trial\u201d rule in the Rule 237 sanctions scenario, cited a number of cases in support of its holding. None of these cases involved the levying of a statutorily permitted sanction. The legislature\u2019s mandate that the sanction of default be available as a result of noncompliance with Rule 237 is undercut by the application of the Ryan rule in situations where the plaintiff requires defendant\u2019s testimony to establish plaintiff\u2019s prima facie case. This is because the plaintiff could not prove a prima facie case without the defendant\u2019s presence, and, under the rule, a court cannot enter a default judgment until such is shown. Thus, a distinction between the entry of judgment as a sanction and the entry of default due to the simple failure to appear at trial appears warranted. It must be remembered that in the sanction scenario, the entry of judgment is premised upon the statutory grant of authority to ameliorate a party\u2019s noncompliance with court orders and authority. In the Rule 219 noncompliance situation, which is somewhat analogous to the Rule 237 noncompliance situation, it has been observed that the legislative grant of power to enter judgment for violation of discovery rules is premised upon the presumption that the withholding of documentation or testimony is sufficient to establish liability. (See Day v. Schoreck (1975), 31 Ill. App. 3d 851, 853, 334 N.E.2d 864, citing People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 226 N.E.2d 6.) In our view, the presumption of liability, which validates the use of the default sanction, is present in Rule 237 cases as well.\nHere, Story failed to show at trial despite the existence of the statutorily permitted sanction of default. Story had no excuse other than that he was \u201cbusy.\u201d At oral argument, counsel for Story argued that the trial court should have determined the necessity of Story\u2019s presence in the first instance. Yet Story never objected to the Rule 237 request (either upon receipt of the notice or during his telephone conference with Merrill Lynch\u2019s counsel the week before the day of trial). Rather, he left plaintiff\u2019s counsel with the impression that Story would be available for the presentation of plaintiff\u2019s case. Counsel for Merrill Lynch insisted, and the trial court expressly indicated belief, that Merrill Lynch needed Story\u2019s testimony. Thus, while we note the existence of the Ryan rule, we nonetheless hold that the entry of a default judgment against Story was within the trial court\u2019s discretion.\nWe next address the issue of whether Merrill Lynch was entitled to an award of attorney fees and costs under the agreement of the parties. Story contends that Merrill Lynch was not entitled to any attorney fees or costs. According to Story, Merrill Lynch is not entitled to attorney fees or costs because its claim was for breach of the standard option agreement, an entirely different and distinct agreement from the customer agreement which contained the attorney fee provision. The customer agreement, entered into August 26, 1982 (almost three weeks prior to the option agreement), states in paragraph 6 under the heading \u201cLiability For Costs Of Collection\u201d:\n\u201cThe reasonable costs and expenses of collection of the debit balance and any unpaid deficiency in the accounts of [Story] with [Merrill Lynch], including, but not limited to, attorney\u2019s fees, incurred and payable or paid by [Merrill Lynch] shall be payable to [Merrill Lynch] by [Story].\u201d\nStory does not contend that this agreement is either void or voidable, or that Story was not bound by it. The standard option agreement provides the following language:\n\u201cAny agreement by [Story] with [Merrill Lynch], whether previously or hereafter made applicable to any account of [Story\u2019s] with [Merrill Lynch], shall also apply to such option transactions except to the extent which it conflicts with this agreement. In the event of conflict, this agreement shall control, and where this is no conflict, each provision of each agreement shall apply.\u201d\nIt is readily apparent that the customer agreement was incorporated into the standard option agreement, and the attorney fees and costs provision of the customer agreement does not conflict with the standard option agreement. Therefore, it is apparent that Merrill Lynch was entitled to attorney fees in the action below.\nStory\u2019s second contention with respect to the issue of whether Merrill Lynch was entitled to fees is that Merrill Lynch failed to prove that the fees were \u201cincurred and payable or paid.\u201d However, the affidavit of Cantwell, Merrill Lynch\u2019s attorney, clearly stated that all fees detailed constituted \u201cthe total fees due and owing to Plaintiff\u2019s attorneys for services rendered in the prosecution of Plaintiff\u2019s claim against William K. Story.\u201d This evidence fits into a plain reading of the fees provision, and we therefore reject Story\u2019s second contention that Merrill Lynch was not entitled to fees.\nThe final issue we address is whether the trial court erred in the amount of attorney fees it awarded. The court in Kaiser v. MEPC Properties, Inc. (1987), 164 Ill. App. 3d 978, 518 N.E.2d 424, upon which Story relies heavily for support on this issue, discussed the parameters within which this issue is to be analyzed. In Kaiser, the court observed:\n\u201cProvisions in contracts for awards of attorney fees are an exception to the general rule that the unsuccessful litigation in a civil action is not responsible for the payment of the opponent\u2019s fees. [Citations.] In all cases, however, only those fees which are reasonable will be allowed [citations], the determination of which is left to the sound discretion of the trial court [citations]. It is also well settled that the party seeking the fees, whether for himself or on behalf of a client [citation], always bears the burden of presenting sufficient evidence from which the trial court can render a decision as to their reasonableness [citations]. An appropriate fee consists of reasonable charges for reasonable services [citation]; however, to justify a fee, more must be presented than a mere compilation of hours multiplied by a fixed hourly rate or bills issued to the client [citation], since this type of data, without more, does not provide the court with sufficient information as to their reasonableness \u2014 a matter which cannot be determined on the basis of conjecture or on the opinion or conclusions of the attorney seeking the fees [citations]. Rather, the petition for fees must specify the services performed, by whom they were performed, the time expended thereon and the hourly rate charged therefor. [Citations.] Because of the importance of these factors, it is incumbent upon the petitioner to present detailed records maintained during the course of the litigation containing facts and computations upon which the charges are predicated. [Citations.]\nOnce presented with these facts, the trial court should consider a variety of additional factors such as the skill and standing of the attorneys, the nature of the case, the novelty and/or difficulty of the issues and the work involved, the importance of the matter, the degree of responsibility required, the usual and customary charges for comparable services, the benefit to the client [citation], and whether there is a reasonable connection between the fees and the amount involved in the litigation [citations]. Finally, the decision of the trial court will not be reversed absent an abuse of discretion. [Citation.]\u201d 164 Ill. App. 3d at 983-84.\nIn this case, Merrill Lynch requested fees in the amount of $12,268.75 on a claim whose principal consisted of $3,723.57 and which ultimately resulted in a judgment of $5,148.57 being entered. The trial court awarded $6,500 in fees to Merrill Lynch. Story argues that the petition for fees was so lacking in detail that the trial court could not use its discretion in entering fees in a reasonable amount.\nIt is clear that a hearing was conducted on the petition. While the record reveals that Story\u2019s counsel indicated on the last day of the hearing that additional testimony from Merrill Lynch\u2019s counsel was necessary, the trial court stated that it had a figure in mind and was ready to rule. The order was subsequently entered without objection from Story\u2019s counsel, and Story does not argue that the cessation of testimony is a ground for reversal.\nIn argument below, Story\u2019s counsel argued the inadequacy of the fee petition, pointing out duplicative billings, billings entered for matters of purely the plaintiff\u2019s doing (i.e., the vacatur of a dismissal for want of prosecution) and time lengths which Story felt were far too long for the work entailed. The trial court specifically indicated that it was taking Story\u2019s contentions into account, and that it had disallowed numerous entries. While Story complains that no time sheets were provided, the record reveals discussion that time sheets were available to the court, but that the time sheets generally contained no greater detail of the individual billings than the affidavit of Merrill Lynch\u2019s attorney. After a review of the record, we are convinced that the trial court\u2019s award of attorney fees was not an abuse of discretion.\nAccordingly, the judgment of the circuit court is affirmed.\nAffirmed.\nMcNAMARA and EGAN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE RAKOWSKI" } ], "attorneys": [ "Patrick J. Moran, of Hillside, for appellant.", "Cantwell & Cantwell, of Chicago (Peter A. Cantwell and Stephen F. Boulton, of counsel), for appellee." ], "corrections": "", "head_matter": "MERRILL LYNCH, PIERCE, FENNER AND SMITH, INC., Plaintiff-Appellee, v. WILLIAM K. STORY, Defendant-Appellant.\nFirst District (6th Division)\nNo. 1-89-3073\nOpinion filed August 23, 1991.\nPatrick J. Moran, of Hillside, for appellant.\nCantwell & Cantwell, of Chicago (Peter A. Cantwell and Stephen F. Boulton, of counsel), for appellee." }, "file_name": "0829-01", "first_page_order": 851, "last_page_order": 858 }