In re Estate of Shull

                              NO. 5-97-0362 

                          IN THE APPELLATE COURT

                                OF ILLINOIS

                              FOURTH DISTRICT

In the Matter of the Estate of          )    Appeal from
Margaret Ann Shull, a Disabled Person,  )    Circuit Court
KEVIN COLE, Temporary Guardian,         )    Macon County      
     Petitioner-Appellant,              )    No. 97P88            
      v.                                )                        
DONALD SHULL, Guardian over the Person  )
of Margaret Ann Shull, and MAGNA TRUST  )
COMPANY BANK, Guardian of the Estate of )
Margaret Ann Shull,                     )                         
     Respondents-Appellees,             )
     and                                )    Honorable
KEHART, SHAFTER & WEBBER, P.C.,         )    John L. Davis,
     Intervenors-Appellants.            )    Judge Presiding.    
________________________________________________________________


          JUSTICE STEIGMANN delivered the opinion of the court:

          In April 1997, the trial court conducted a guardianship
hearing and subsequently entered orders (1) adjudicating Margaret
Ann Shull a disabled person, (2) appointing a family member
guardian of her person, and (3) appointing a bank guardian of her
estate, all pursuant to sections 11a-3 and 11a-12 of the Probate
Act of 1975 (Act) (755 ILCS 5/11a-3, 11a-12 (West 1996)).  In May
1997, the court conducted a hearing on the petition for attorney
fees (totalling $3,061.25) and costs (totalling $304) filed by
the attorneys for petitioner and temporary guardian, Kevin Cole. 
The court found that the fees sought were excessive and not in
the best interest of the estate and awarded $500 in attorney fees
and nothing in costs.  
          Cole and his attorneys, the firm of Kehart, Shafter &
Webber, P.C. (the firm), appeal, arguing that the trial court
abused its discretion by ordering Margaret's estate to pay only
$500 in attorney fees and nothing in costs.  We reverse and
remand.
                              I.  BACKGROUND
          In February 1997, Cole engaged Heidi Balsley, an
attorney with the firm, to represent him in seeking a guardian-
ship over Margaret, his 87-year-old great-aunt.  Margaret had
injured her leg and had been hospitalized prior to being moved to
a nursing home.  After Margaret's guardian ad litem found that
she was confused and unable to make decisions, Cole became
concerned that Margaret's physical needs would not be met unless
a plenary guardian was appointed.  Cole was also concerned about
her financial situation.  He had learned that in August 1995,
Margaret had executed a power of attorney naming an insurance
agent, Mark Younker, as her attorney-in-fact and agent, and that
soon thereafter, Younker had executed a $55,000 promissory note
representing a loan to himself from Margaret.  
          Because of Cole's concerns about Margaret's physical
and financial well-being, he had Balsley file a petition for
temporary guardianship of Margaret's person and estate in Febru-
ary 1997.  In March 1997, the trial court appointed Cole tempo-
rary guardian of Margaret's person and estate and authorized
letters of office to issue.  
          Although the circuit clerk issued letters of office,
they had no legal effect as to the estate because the power of
attorney executed in Younker's favor remained in effect.  As a
result, Cole was unable to fulfill his statutory obligations as
temporary guardian of Margaret's estate.  Balsley wrote and
telephoned Younker, requesting that he resign his agency and
power of attorney.  When Younker did not respond to Balsley's
informal methods to resolve the conflict, Balsley filed a peti-
tion in March 1997 on Cole's behalf to revoke the agency between
Younker and Margaret.  Only after Balsley filed the petition to
revoke, obtained formal service on Younker, and set the matter
for a judicial hearing did Younker voluntarily resign his posi-
tion and repay the $55,000.  After Younker's resignation, Balsley
moved to vacate the petition to revoke.
          As temporary guardian, Cole conducted a preliminary
investigation into Margaret's assets, and Balsley filed an inven-
tory on Cole's behalf in April 1997.  Prior to the expiration of
Cole's temporary guardianship, Balsley filed a petition for
plenary guardianship of Margaret's person and estate.  Balsley
also filed a physician's report on the petition, setting forth
the medical reasons why Margaret needed a guardianship.  
          After filing the guardianship petition, Cole discovered
that Margaret's grandson, Donald Shull, also wanted to be guard-
ian of her person.  Balsley arranged a meeting between Cole,
Shull, and Shull's attorney to resolve that dispute and other
concerns.  Cole and Shull subsequently entered into a stipulation
of guardianship, which provided, in relevant part, the following: 
(1) Shull would serve as guardian of Margaret's person; (2) Magna
Trust Company Bank (Magna Bank) would serve as guardian of her
estate; (3) Shull agreed not to cancel Margaret's doctors'
appointments or interfere with her recommended course of treat-
ment; (4) Shull agreed to inform Cole about Margaret's medical
and health care problems; and (5) Shull agreed not to deny Cole
access to and visitation with Margaret.  Balsley prepared and
drafted the stipulation, which the trial court later incorporated
into its order.
          Because Cole and Shull agreed to a stipulation of
guardianship, the trial court during the guardianship hearing
only heard evidence necessary to establish (1) Margaret's need
for a guardian of her person and estate, and (2) the terms of the
stipulation. 
          After appointing the guardians of Margaret's person and
estate, the trial court ordered the estate to pay the guardian ad
litem $684 in fees for 7.6 hours of work, as requested by the
guardian ad litem.  Neither Cole nor Shull objected to the
guardian ad litem's request.  During that same hearing, the court
set a hearing date for Cole's petition for attorney fees and
costs.
          In April 1997, the trial court conducted a hearing on
that petition and had before it the following:  (1) the petition
requesting $3,061.25 in attorney fees for Balsley and $304 in
costs; (2) an affidavit filed by Balsley stating that (a) Cole's
attorneys worked 38 hours in representing him, and (b) the re-
quested fees were reasonable; and (3) an affidavit filed by Magna
Bank, stating that it had reviewed the petition, the supporting
affidavit, and Balsley's billing statement, and it had no objec-
tion to the petition.  During the hearing, the guardian ad litem
stated that he had examined a detailed description of the time
spent by the firm and he had no objection to the request for fees
and costs considering the unique circumstances of the case. 
Shull, however, objected to the petition on the grounds that the
legal services were not in the best interest of the estate and
did not directly benefit the estate.  
          The trial court directed the guardian ad litem to
research the applicable law and provide the court with a recom-
mendation.  The court also requested a copy of Balsley's billing
records setting forth the legal services rendered and their
corresponding costs.  The guardian ad litem subsequently filed a
response to the petition for attorney fees and costs, which
recommended that the court award the fees and costs as requested.
          In a May 1997 docket entry, the trial court ruled on
the petition for attorney fees and costs, as follows:
          "This cause having been heard on the
          [p]etition for [a]ttorney [f]ees and the
          objection thereto by the [g]uardian of the
          [p]erson, [the court] finds the fees sought
          to be excessive and not in the best interests
          of the ward's estate.  Attorney's fees in
          behalf of Kevin Cole incurred by Kehart,
          Shafter, and Webber, P.C., are fixed in the
          sum of $500."
                            II.  ATTORNEY FEES
          Cole and the firm argue that the trial court abused its
discretion by ordering Margaret's estate to pay the firm only
$500 in attorney fees and nothing in costs.  Specifically, they
contend that the award of $500 is arbitrary and unreasonable
considering the unique circumstances of this case.  We agree.
          Under the Act, the attorney for a representative is
entitled to reasonable compensation for her legal services when
they are rendered in the interest of or to benefit the estate
(755 ILCS 5/27-2 (West 1996)).  The determination of what is
reasonable must be based upon the facts and circumstances of the
particular case.  The factors to be considered include (1) the
work involved; (2) the size of the estate; (3) the skill shown by
the work; (4) the time expended; (5) the success of the efforts
involved; and (6) the good faith and efficiency with which the
work was completed.  The trial court has broad discretion to
determine the "reasonable compensation" to be allowed an attorney
pursuant to section 27-2 of the Act, and a reviewing court will
overturn the award only where the court's determination is
manifestly erroneous.  In re Estate of Thorp, 282 Ill. App. 3d
612, 619, 669 N.E.2d 359, 364 (1996).
                A.  Requirements of Section 27-2 of the Act
                   1.  Cole's Status as a Representative
          It is undisputed that Cole is a "representative" whose
attorney may be entitled to attorney fees under section 27-2 of
the Act (755 ILCS 5/27-2 (West 1996)).  Shull acknowledges that
section 1-2.15 of the Act provides that the term "representative"
includes a "temporary guardian" (755 ILCS 5/1-2.15 (West 1996)). 
                         2.  Benefit to the Estate
          Shull also concedes that Balsley's actions in this case
provided a benefit to Margaret's estate under section 27-2 of the
Act (755 ILCS 5/27-2 (West 1996)).  As a result of Cole's peti-
tioning for temporary and plenary guardianship in this case,
Margaret's personal welfare and her estate were ultimately
protected and benefited by the appointment of Shull as the
guardian of her person and Magna Bank as the guardian of her
estate.  In addition, the fact that Cole and Shull negotiated and
agreed to a stipulation of guardianship minimized both the time
and expense involved in the guardianship proceeding.  In particu-
lar, we note that Shull did not have to file the statutorily
required documents for a guardianship petition because the
parties agreed that he should be appointed plenary guardian. 
Moreover, Cole's petition to revoke Younker's agency prevented
any potential abuses of fiduciary duties and served to control
Margaret's financial situation.  See In re Estate of Roselli, 70
Ill. App. 3d 116, 123, 388 N.E.2d 87, 92 (1979) (fees were
justified for an unsuccessful representative "because by bringing
the suit [to be named administrator of the estate] he has bene-
fitted the estate"); see also In re Estate of Byrd, 227 Ill. App.
3d 632, 639-40, 592 N.E.2d 259, 264 (1992) (estate benefited by
unsuccessful parties' opposition to petition for guardianship).
          Nonetheless, Shull claims that the factors we earlier
set forth support the trial court's award in this case.  We
disagree.
            B.  Factors in Determining Reasonable Attorney Fees
                           1.  The Work Involved
          The record here indicates that this case presented some
unusual circumstances that made the case more complex and re-
quired Balsley to perform legal services beyond those routinely
required in a guardianship proceeding.  For instance, because the
power of attorney executed in Younker's favor remained in effect
after the trial court appointed Cole as temporary guardian, Cole
was unable to fulfill his statutory obligations as a temporary
guardian.  Thus, Balsley researched the issue and wrote and
telephoned Younker, requesting that he resign his agency and
power of attorney.  When Younker did not respond to Balsley's
informal methods to resolve the conflict, she filed a petition on
Cole's behalf to revoke the agency between Younker and Margaret. 
Only after Balsley filed the petition to revoke, obtained formal
service on Younker, and set the matter for a judicial hearing did
Younker voluntarily resign his position and repay the $55,000
loan.  
          After Younker's resignation, Balsley moved to vacate
the petition to revoke.  Although a hearing on that petition
never occurred, Balsley nonetheless completed work in antici-
pation of a contested hearing. 
          In addition, after discovering that Shull also wanted
to be guardian of Margaret's person, Balsley arranged a meeting
between Cole, Shull, and Shull's attorney to resolve that dispute
and other disagreements regarding Margaret's care.  Cole and
Shull subsequently entered into a stipulation for guardianship. 
Balsley prepared and drafted the stipulation, which the trial
court later incorporated into its order.     
                          2.  Size of the Estate
          The record shows that Margaret's estate consisted of
over a quarter million dollars in bank accounts, in addition to a
house, life insurance, and personal property.  We also note that,
contrary to Shull's contention, Balsley's work was not strictly
limited to Margaret's guardianship.  As we earlier discussed,
Balsley was required to remove Younker (who had in his possession
$55,000 belonging to Margaret) from his position as Margaret's
agent.
             3.  Skill Shown by the Work and the Time Expended
          Initially, we note that Shull points out that Balsley's
billing record shows that 44 telephone calls were billed at .25
hours each and contends that "[i]n the trial court's substantial
experience, it reasonably took notice of the fact that [the
firm's] policy is, apparently, to bill '.25 hours' for any work
done, no matter how brief it is."  We have reviewed the record
before us, and we have found no reference by the court to the
phone calls, let alone any indication that it "reasonably took
notice" of those calls in awarding $500 in attorney fees. 
          Shull also contends that the trial court could have
concluded that the estate should not be charged for 3.75 hours of
time spent researching legal issues simply because Cole was
represented by an inexperienced attorney.  In this regard, we
agree with what the United States Court of Appeals for the
Seventh Circuit wrote in In re Continental Illinois Securities
Litigation, 962 F.2d 566, 570 (7th Cir. 1992):
          "No matter how experienced a lawyer is, he
          has to conduct (or have conducted for him)
          research to deal with changes in the law, to
          address new issues, and to refresh his recol-
          lection."
In our judgment, a trial court should not disallow fees for legal
research on the sole basis that the attorney has been practicing
for a short time.  Although this guardianship proceeding did not
present the complexities of a federal securities case (as was the
situation in Continental Illinois Securities), it nonetheless was
more complex than usual because of certain events that took
place.  In such a case, it is reasonable for even an experienced
attorney to conduct some amount of legal research.  
                    4.  Success of the Efforts Involved
          Cole's petition for plenary guardianship was not
technically "successful" in that he was not appointed guardian of
Margaret's person.  However, as we earlier discussed, his peti-
tions for temporary guardianship and plenary guardianship were
successful in that they ultimately benefited Margaret's personal
welfare and her estate with the appointment of Shull as the
guardian of her person and Magna Bank as the guardian of her
estate. 
                       5.  Good Faith and Efficiency
          Shull acknowledges that Balsley acted in good faith
during her representation of Cole.  In addition, the record shows
that over a period of approximately two months, the petitions for
temporary and plenary guardianship resulted in the appointment of
guardians of both Margaret's estate and person.  Further, the
stipulation of guardianship agreed upon by Cole and Shull elimi-
nated the need for the trial court to conduct a contested hearing
on competing guardianship petitions, thereby saving time and
expense.
          We are aware of the deference we must accord the trial
court in its determination of the reasonable compensation to be
allowed an attorney.  However, we can comprehend no reason for an
award of $500 considering the particular circumstances of this
case.  We note that the $500 awarded minus $304 for costs--the
legitimacy of which no one (including the court) disputed--leaves
a total of $196 in attorney fees for all the time and work
Balsley spent in this case.  On this record, that sum is egre-
giously deficient.  
          If some undisclosed deficiencies or problems existed
with the firm's request for attorney fees and costs in this case,
it would be easier for this court to understand that situation if
the trial court had stated its reasoning for concluding that the
requested fees were excessive.  In the absence of any such
explanation, and reviewing the record before us in accordance
with the appropriate standard of review, we hold that the trial
court abused its discretion by ordering Margaret's estate to pay
the firm only $500 in attorney fees and nothing in costs.  Thus,
we reverse and remand for further proceedings in accordance with
the views expressed herein.   
                             III.  CONCLUSION
          For the reasons stated, we reverse and remand for
further proceedings consistent with the views expressed herein.
          Reversed and remanded.
          GARMAN, P.J., and KNECHT, J., concur.