Lewis X. Cohen Insurance Trust v. Stern

First Division
June 8, 1998

No. 1-96-2907

LEWIS X. COHEN INSURANCE TRUST ) Appeal from the
and HAROLD B. COHEN TRUST, ) Circuit Court
) of Cook County.
Plaintiffs-Appellees and )
Cross-Appellants, )
)
v. )
)
JEROME H. STERN and MERIT )
FINANCIAL CORPORATION, ) Honorable
) WILLARD J. LASSERS,
Defendants-Appellants and ) Judge Presiding.
Cross-Appellees. )

PRESIDING JUSTICE BUCKLEY delivered the opinion of the
court:
Plaintiffs the Lewis X. Cohen Insurance Trust and the Harold
B. Cohen Trust brought an action against defendants Merit
Financial Corporation (Merit) and Jerome H. Stern (Stern)
alleging breach of a stock purchase agreement (Agreement). The
trial court entered summary judgment for plaintiffs, finding that
Merit wrongfully refused to pay plaintiffs certain postclosing
sums recovered by Merit. The trial court also found that Stern
had personally guaranteed to indemnify plaintiffs for any damages
they might suffer as a result of breach of the Agreement.
Defendants appeal and raise the following issues: (1) whether,
pursuant to the express language of section 6(b) of the
Agreement, Merit's obligation to pay plaintiffs the contingent
price contemplated in section 2(f) of the Agreement was excused
by the Illinois Department of Insurance's objection; (2) whether
enforcement of Merit's obligation to pay plaintiffs the
contingent price under the Agreement is contrary to public
policy; (3) whether Stern is a proper party to this suit and
personally obligated to pay plaintiffs the contingent price under
the indemnity provision of section 10(a) of the Agreement; and
(4) whether plaintiffs' damages could be properly calculated on a
motion for summary judgment. Plaintiffs cross-appeal on the
issue of one portion of the calculation of damages.
In November 1990, plaintiffs owned shares in Merit
Financial Corporation, a holding company that owned 100% of the
stock of Merit Casualty Company, formerly known as Merit
Insurance Company (Merit Insurance). On November 9, 1990,
plaintiffs entered into a written stock purchase agreement to
sell their shares to Merit and Stern.
On September 21, 1994, plaintiffs filed suit against Merit
and Stern seeking additional consideration from Merit pursuant to
a contingent price provision contained in section 2(f) of the
Agreement. This provision provided:
"Merit shall pay an additional purchase price
(the 'Contingent Price') to [plaintiffs],
contingent upon any recovery by Merit
Insurance Company pursuant to the proofs of
claims of *** [the Claimants] against the
insolvent estate of Midland Insurance Company
and its excess insurance policy, XL 2625,
filed with the Liquidation Bureau of the
State of New York Insurance Department or the
department of insurance or guaranty fund of
any other state (collectively the 'Proofs of
Claims'), which Proof of Claims were assigned
to Merit Insurance pursuant to a settlement
agreement dated June 7, 1990 by and among
Merit Insurance and the Claimants. The
Contingent Price shall be paid in an amount
equal to one-third of the net proceeds
recovered by Merit Insurance pursuant to the
Proofs of Claims. For purposes hereof, net
proceeds shall mean the gross amount
(including interest) actually received by
Merit Insurance pursuant to the order of the
Liquidation Bureau of the State of New York
Insurance Department or any court or
governmental agency or any settlement of such
Proofs of Claims, reduced by all federal,
state and other income and other taxes
incurred by Merit or Merit Insurance as a
result of any recovery pursuant to such
Proofs of Claims and further reduced by court
costs, attorneys fees and costs and all other
direct costs and expenses incurred by Merit
Insurance in pursuing such Proofs of Claims,
all as may be incurred by Merit Insurance
from July 7, 1990 to the date of payment.
***. The Contingent Price shall be paid at
the Closing [of the Agreement] to
[plaintiffs], or if no recovery has been made
at such time by Merit Insurance pursuant to
such Proofs of Claims, within thirty days of
any recovery by Merit Insurance pursuant to
such Proofs of Claims."
By late 1993, Merit Insurance was experiencing financial
difficulty and the Illinois Department of Insurance (DOI) issued
the first of a series of corrective orders placing Merit
Insurance under the supervision of the DOI. Merit Insurance
operated under the series of corrective orders from September 20,
1993, through January 11, 1995. As of January 11, 1995, Merit
Insurance has operated under an agreed plan of rehabilitation
entered and approved by the circuit court of Cook County,
Illinois, county department, chancery division (In the Matter of
the Rehabilitation of Merit Casualty Co., No. 94 CH 011337).
In October 1993, Merit Insurance received a payment of
$250,000 from the Illinois Guaranty Fund on account of one of the
proofs of claims referenced in the contingent price provision.
After unsuccessfully seeking payment, plaintiffs filed suit. In
count I, they sought recovery from Merit based on the contingent
price provision. In count II, they sought recovery from Stern
personally based on the contingent price provision together with
section 10(a), an indemnity provision.
On April 19, 1996, after a hearing, the trial court granted
summary judgment in favor of plaintiffs and against Merit. On
May 30, 1996, after another hearing, the trial court entered a
judgment of liability against Stern, found that the principal
amount of the liability against Merit and Stern was $72,523.65,
set the matter for further hearing on the issues of interest and
attorney fees, and allowed discovery and briefing on those
issues. On July 17, 1996, the trial court entered a judgment
against Merit and Stern for $72,523.65 in principal, $9,669.82 in
interest, and $23,835.14 in attorney fees. Merit and Stern
appeal from the April 19, 1996, order, the May 30, 1996, order
and the July 17, 1996, order. Plaintiffs cross-appeal on the
issue of the calculation of damages.
A. EXCUSE FROM PAYMENT OF CONTINGENT PRICE
Merit and Stern's first argument is that the trial court
erred as a matter of law in granting summary judgment for
plaintiffs because, pursuant to the express provisions of the
Agreement, Merit's obligation to pay plaintiffs the contingent
price contemplated in section 2(f) of the Agreement was excused
by the DOI's objection. Merit and Stern fail, however, to
provide any citations to the record or authority to support its
argument, in violation of Supreme Court Rule 341(e)(7) (155 Ill.
2d R. 341(e)(7)). "Arguments made without citation of
supporting authority are deemed waived on appeal. [Citation.]
The party who thus waives the question is bound by his waiver,
but the court, which has the responsibility of reaching a just
decision, is not so bound." In re Marriage of Winters, 160 Ill.
App. 3d 277, 281 (1987). Accordingly, notwithstanding waiver, we
will address this issue.
This case comes to us on a grant of summary judgment, so our
review is de novo. Barnett v. Zion Park District, 171 Ill. 2d 378, 385 (1996). Summary judgment is appropriate if the
pleadings, depositions, and affidavits show that no genuine issue
of material fact exists and that the moving party is entitled to
judgment as a matter of law. Maher & Associates, Inc. v. Quality
Cabinets, 267 Ill. App. 3d 69, 77 (1994); 735 ILCS 5/2-1005(c)
(West 1994). A triable issue of fact exists where there is a
dispute as to material facts or where the material facts are
undisputed but reasonable persons might draw different inferences
from those facts. In re Estate of Hoover, 155 Ill. 2d 402, 411
(1993). The interpretation of a party's agreement or contract on
appeal is a question of law to be determined by the appellate
court de novo. Best Coin-Op, Inc. v. Old Willow Falls
Condominium Ass'n, 120 Ill. App. 3d 830, 833 (1983).
Merit and Stern assert that Merit's obligation under section
2(f) was excused by the DOI's objection and directs this court to
section 6(b) of the Agreement, which provides:
"6. Conditions to Obligations of [Stern] and
Merit. The obligations of [Stern] and Merit
hereunder shall be subject to the delivery of
those items required to be delivered by
[plaintiffs] at the Closing and to the
conditions that:
(a) The representations and warranties
made by [plaintiffs] herein shall be true at
the Closing as though such representations
and warranties were made at such time, and
all of the terms and conditions of this
Agreement to be performed and complied with;
provided, however, [Stern] and Merit may
waive any such condition by a statement in
writing to that effect, delivered to
[plaintiffs].
(b) Neither [Stern] nor Merit shall
have received notice of any inquiry,
investigation or objection from any
governmental agency or from any court of
competent jurisdiction with respect to
restraining, prohibiting or obtaining damages
or other relief in connection with the
execution or delivery of this Agreement or
the consummation of the transactions
contemplated hereby.
(c) [Stern] and Merit shall have
secured financing for the transactions
contemplated hereby in an amount and on terms
acceptable to [Stern] and Merit."
Merit and Stern argue that since the payment of the
additional purchase price was contingent on the recovery of
certain postclosing sums, the transaction would be consummated
after the closing and, therefore, falls within the phrase
"transactions contemplated" contained in section 6(b) of the
Agreement. Merit and Stern assert that since the DOI objected to
the payment of the contingent price, then pursuant to the
language of section 6(b) they were under no obligation to pay
plaintiffs the contingent price contemplated under section 2(f)
of the Agreement.
Plaintiffs contend that Merit and Stern's argument must fail
for two reasons. First, plaintiffs assert that the evidence
refutes Merit and Stern's contention that the DOI prevented them
from paying plaintiffs. We agree.
At the time Merit Insurance received the $250,000 payment
from the Illinois Insurance Guaranty Fund, the first corrective
order was in place and continued until the next corrective order
was issued on December 20, 1993. The first corrective order
provided that "[a]ll expenses of Merit [Insurance] and its
affiliates shall be subject to monthly review by this
Department." As plaintiffs assert, under the first corrective
order, the DOI did not approve or disapprove expenses before they
were paid. Several deposition excerpts support this argument.
James Stephens of the DOI, the man immediately responsible
for overseeing Merit Insurance while the corrective orders were
in place, testified as follows concerning his review of Merit
Insurance's expenses under the first corrective order:
"Q. In other words, it wasn't a
question of you telling Merit [Insurance]
what it should or shouldn't pay?
A. There was a certain amount of
questioning of whether an expense was
appropriate or not --
Q. Uh-huh.
A. --but not as a point of approving or
disapproving ***.
Q. So, again, the question is was the
nature of your review still -- even though
you may have reviewed it more carefully, as I
understand it, you still were not in a
position that you were saying don't pay this,
for instance, or --
A. No.
Q. -- we're not going to pay this. Am
I correct?
A. No. My position was I was not doing
that at that time.
Q. All right. And is it your
understanding that that was not the nature of
what your review should be under the terms of
the [first] corrective order?
A. Correct."
Jack Messmore, Stephens' immediate supervisor, testified
similarly:
"Q. Right. In other words [M]erit
wasn't required to ask for your permission to
pay an expense before it paid it, is that
correct?
A. Right.
***
Q. Okay. So is it your understanding,
having taken a look at this, that the
expenses of Merit Financial Corporation were
not -- as of the time that this first
corrective order was in place were not
subject to the approve by the [DOI]?
A. That's true."
Additionally, plaintiffs assert that the DOI never forbade
Merit from fulfilling its obligation to plaintiffs. As the
Agreement contemplated, the check from the Illinois Insurance
Guaranty Fund was made out to Merit Insurance, but Merit
Financial Corporation was liable to pay plaintiffs the contingent
price under the Agreement. Accordingly, Stern tried to "[get]
permission to get the check deposited into Merit Financial
[Corporation] and pay off this obligation [to plaintiffs] and
then put the rest back into Merit Insurance." Stern testified at
his deposition as follows:
"Q. And again, can you tell me exactly
what it was that you made a request [of the
DOI] to do?
A. I asked the permission to bank this
check in Merit Financial.
Q. In other words, to deposit into
Merit Financial's account?
A. Yes. Yes. And so that payment
could be made under the contract provision
that Merit Financial owed on that, and the
balance would then be put into Merit
Insurance. And they would not allow us to do
that."
The deposition testimony of James Stephens and Jack Messmore
indicates that Stern never directly asked if the check could be
deposited into Merit's account. Instead, Stern posed the
question in the form of a hypothetical. Stephens testified
regarding his conversation with Stern as follows:
"Q. Can you tell me what [Stern] said
to you and what you told him?
A. I really don't remember the
specifics of it, but it was brought up as a
hypothetical question, what if, if I remember
correctly. You know: what if this happened?
Q. And what specifically did he ask
you? What was the hypothetical?
A. That something to the effect that if
we received blank amount of money -- and I
don't remember the amount [of] money -- from
such a source, would we be able to distribute
it in such a way? ***. [H]e asked me in a
hypothetical situation would the company be
allowed to do whatever it was, and I think it
was just a distribution from the Merit
Insurance Company to the parent."
Jack Messmore testified:
"Q. *** Now, looking back to these
conversations that you had with Mr. Stephens
and [your supervisor] and then again with Mr.
Stephens, was it your understanding that when
you were presented with the question from Mr.
Stephens that it was a question concerning
some events that had actually happened or
that you had been presented with a
hypothetical question?
A. It was my understanding that it was
hypothetical."
Moreover, Stern himself testified that the reason plaintiffs were
not paid was not because of the corrective orders:
"Q. So the reason that [plaintiffs]
were not paid under the Stock Purchase
Agreement within 30 days after the time the
money came into Merit Insurance Company was
not because of the corrective orders but was
because they didn't have, Merit Financial
Corporation didn't have the money?
A. That's correct."
Accordingly, we conclude that based on a review of the
record, it is clear that the DOI never objected to Merit's
fulfillment of its obligation to plaintiffs.
Accordingly, we find that the evidence supports the
conclusion that the DOI did not object to the payment of the
contingent price to plaintiffs.
B. VIOLATION OF PUBLIC POLICY
Merit and Stern's next contention is that enforcement of the
contingent price provision is contrary to public policy.
Specifically, they assert that payment of the contingent price to
plaintiffs "would have threatened the financially troubled Merit
Insurance" and "would have been directly offensive to the DOI's
pronouncement and objection." We disagree.
Describing the considerations that come into play in
determining whether a contract violates public policy, this court
has previously stated:
"In considering whether any contract is
against public policy it should be remembered
that it is to the interests of the public
that persons should not be unnecessarily
restricted in their freedom to make their own
contracts. Agreements are not held to be
void, as being contrary to public policy,
unless they be clearly contrary to what the
constitution, the statutes or the decisions
of the courts have declared to be the public
policy or unless they be manifestly injurious
to the public welfare." Schumann-Heink v.
Folsom, 328 Ill. 321, 330 (1927).
Whether a contract violates public policy depends on the peculiar
facts and circumstances of each case, as well as the language of
the contract itself. Braye v. Archer-Daniels-Midland Co., 175 Ill. 2d 201, 215-16 (1997).
Plaintiffs argue that the DOI's power to protect insurance
policyholders does not extend to the cancellation of otherwise
valid contracts. We agree. As plaintiffs point out, both cases
that Merit and Stern cite in support of their public policy
argument are inapplicable. One case, Telenois, Inc. v. Village
of Schaumburg, 256 Ill. App. 3d 897 (1993), involved a contract
clause imposing a $100,000 penalty for failure to meet a contract
deadline. The other case, Klubeck v. Division Medical X-Ray,
Inc., 108 Ill. App. 3d 630 (1982), involved an agreement to
pledge welfare reimbursements, in violation of the Public Aid
Code. Ill. Rev. Stat. 1979, ch. 23, par. 11-3. Contrary to the
contracts in the above cases, the Agreement is not illegal on its
face. Performance of the contract would not violate any Illinois
law. Moreover, Merit and Stern have already accepted all the
benefits under the contract.
Merit and Stern also make a brief statement that DOI's
objection made it legally impossible for Merit to make the
payment of the contingent price to plaintiffs. Since we have
concluded that the record does not support Merit and Stern's
contention that the DOI objected, we need not even address this
"argument."
Accordingly, we find that the contract does not violate
public policy.
C. LIABILITY OF STERN
Merit and Stern's third contention is that Stern was never
obligated to pay the contingent price and is not a proper party
to the suit under the language of the Agreement. We disagree.
Merit and Stern cite the Agreement which, in various
sections, sometimes refers to Merit, sometimes refers to Stern
and sometimes to refers to both Merit and Stern. Based on that,
Merit and Stern argue that where the parties intended performance
by Stern under a particular section, he was specifically included
and, therefore, since only Merit is included in section 2(f), the
contingent price provision, then only Merit is obligated under
that provision. We do not disagree. However, it is section 10,
the indemnification provision, not section 2(f), under which
Stern is obligated. Section 10 provides:
"(a) [Stern] and Merit agree to
indemnify and hold each of the Sellers
[including plaintiffs] harmless from and
against any and all claims, obligations,
liabilities, losses, damages, costs and
expenses (including reasonable legal fees and
expenses) which Sellers may incur or suffer
as a result of or in connection with (i) any
violation or breach of any representation,
warranty, covenant or agreement of [Stern] or
Merit contained herein or (ii) any breach of
this Agreement by [Stern] or Merit.
(b) Sellers severally agree to
indemnify and hold [Stern] and Merit harmless
from and against any and all claims,
obligations, liabilities, losses, damages,
costs and expenses (including reasonable
legal fees and expenses) which [Stern] or
Merit may incur or suffer as a result of or
in connection with (i) any violation or
breach of any representation, warranty,
covenant or agreement of such Seller
contained herein or (ii) any breach of this
Agreement by such Seller."
Merit and Stern argue that plaintiffs' argument that Stern
should indemnify plaintiffs for an alleged breach of contract by
Merit is a "perversion of the well-established meaning of
indemnification" and cite Magnus v. Lutheran General Health Care
System, 235 Ill. App. 3d 173 (1992), in support. However, Magnus
is distinguishable from the case at bar and, further, the dicta
relied on by Merit and Stern are not necessary to the outcome of
that case.
In Magnus, the plaintiff-seller of real property sued the
defendant-buyer after the sale, claiming that the plaintiff-
seller had an option to remove a house from the property after
the sale. Magnus, 235 Ill. App. 3d at 178. The defendant-buyer
won and then claimed that it was entitled to attorney fees
incurred in the lawsuit based on an indemnity clause in which the
plaintiff-seller agreed to indemnify defendant-buyer from claims
in connection with "[a]ny material misrepresentation, breach of
any warranty or representation or nonfulfillment of any
agreement, covenant or condition on the part of Seller" or with
"any act, conduct, failure to act or omission to act of Seller
which occurred or occurs at any time and which is not disclosed
to Buyer as part of this [a]greement." Magnus, 235 Ill. App. 3d
at 184-85. The appellate court concluded that the defendant-
buyer was not entitled to indemnification, since "[the] indemnity
clause [did] not include the costs [defendant-buyer] incurred in
defending itself against [plaintiff-seller's] claims." Magnus,
235 Ill. App. 3d at 185. Unlike the claim in the case at bar,
the claim in Magnus simply did not fall within the terms of the
agreement.
Nevertheless, Merit and Stern refer us to the portion of the
court's opinion where the court stated that "[a]n indemnity
agreement is an agreement whereby the indemnitor agrees to
protect the indemnitee from claims asserted against the
indemnitee by third persons" and argue that the indemnification
provision only applies when third parties are involved. However,
in the instant case, Stern can in no way sidestep the express
terms of the indemnification provision wherein he agreed to
indemnify plaintiffs "against any and all claims, obligations,
liabilities, losses, damages, costs and expenses (including
reasonable legal fees and expenses) which [plaintiffs] may incur
or suffer as a result of or in connection with (i) any violation
or breach of any representation, warranty, covenant or agreement
of [Stern] or Merit contained herein or (ii) any breach of this
Agreement by [Stern] or Merit."
Accordingly, we conclude that under the express terms of the
indemnification provision, Stern is a proper party to this
action.
D. DAMAGES
The contingent price provision provides that the amount due
plaintiffs "shall be in an amount equal to one-third of the net
proceeds recovered by Merit Insurance pursuant to the Proofs of
Claims." "Net proceeds" is defined as the gross amount actually
received pursuant to an order of settlement of the proofs of
claims "reduced by all federal, state and other income and other
taxes incurred by Merit or Merit Insurance as a result of any
recovery pursuant to such Proofs of Claims and further reduced by
court costs, attorneys fees and costs and all other direct costs
and expenses incurred by Merit Insurance in pursuing such Proofs
of Claims, all as may be incurred by Merit Insurance from July 7,
1990 to the date of payment. [Emphasis added.]" According to
this provision, the proceeds are to be reduced by expenses
incurred from July 7, 1990 to the date of payment. The
Agreement, however, also refers to a collateral agreement which
assigns the proceeds of the Midland recovery to Merit Insurance.
The collateral agreement is dated June 7, 1990. This is relevant
to the calculation of damages because approximately $10,000 in
legal expenses were incurred between June 7, 1990, and July 7,
1990.
The expenses involved were a number of legal bills from
Holstein, Mack & Klein totalling $30,023.55 and a bill from
Jenner & Block totalling $2,405.51. The total from Holstein,
Mack & Klein included a bill for $10,265.07, which was dated June
25, 1990. The trial court found that this was includible in the
total expenses and subtracted it from the gross amount. Thus,
the trial court awarded plaintiffs $72,523.65 (gross amount
received was $250,000, less Holstein bill for $30,023.55, less
Jenner bill for $2,405.51 divided by three to arrive at
$72,523.65 one-third of net proceeds).
1. Starting Date for Calculation of Expenses
Merit and Stern's argument is that the calculation of
damages can not be properly disposed of on summary judgment.
Specifically, they contend that there was a factual dispute over
the starting date for expenses used in calculating the contingent
price. Plaintiffs assert that the disputes are not factual and,
therefore, do not preclude summary judgment. Plaintiffs also
argue on cross-appeal that the expenses should be calculated from
the July 7, 1990, start date.
We first address whether there was an ambiguity regarding
the starting date. The question of whether a contract is clear
or ambiguous is a question of law for the court. Tishman Midwest
Management Corp. v. Wayne Jarvis, Ltd., 146 Ill. App. 3d 684, 688
(1986). "Once the trial court has interpreted the contract as a
matter of law, the reviewing court may likewise independently
construe the contract." Tishman, 146 Ill. App. 3d at 689. We
note that contractual language is not ambiguous simply because
the parties disagree upon its meaning. Srivastava v. Russell's
Barbecue, Inc., 168 Ill. App. 3d 726, 732 (1988). The primary
objective in contract construction is to give effect to the
intention of the parties and that intention is to be ascertained
from the language of the contract. Srivastava, 168 Ill. App. 3d
at 730. If a contract is clear and unambiguous, the judge must
determine the intention of the parties "solely from the plain
language of the contract" and may not consider extrinsic evidence
outside the "four corners" of the document itself. Tishman, 146
Ill. App. 3d at 689. "Clear and unambiguous contract terms must
be given their ordinary and natural meaning" and contracts must
be interpreted "as a whole, giving meaning and effect to each
provision thereof." Srivastava, 168 Ill. App. 3d at 730.
We find that the Agreement does not contain an ambiguity.
While it does refer to proofs of claims being assigned to Merit
Insurance on June 7, 1990, that is not necessarily inconsistent
with the July 7, 1990, start date for the calculation of
expenses. As plaintiffs assert, there is no reason those dates
have to be the same. The contingent price provision plainly
states that expenses incurred "from July 7, 1990 to the date of
payment" are to be subtracted to determine net proceeds.
Accordingly, we find that the trial court erred in including
the June 25, 1990 bill for $10,265.07 in the calculation. This
would result in an increase in principal of $3,421.69 plus
interest pursuant to section 2 (815 ILCS 205/2 (West 1992)) at
the rate of 5% per annum from the date due of November 30, 1993,
to the date of judgment.
2. Attorney Fees
Merit and Stern's final argument is that plaintiffs' claim
for attorney fees incurred in bringing this action is improper
because there is no provision in the Agreement for awarding such
fees, other than the indemnification clause which, Merit and
Stern argue, does not apply.
We have previously addressed Merit and Stern's contention
that the indemnification provision does not apply in suits
between the parties. Since we have concluded that the
indemnification provision does apply to actions between
plaintiffs and Merit and Stern, we also find that, pursuant to
the terms of that provision, the lower court's award of attorney
fees was proper since section 10 provides for, among other
things, payment of "reasonable legal fees and expenses."
We reject Merit and Stern's argument that, even if attorney
fees could be awarded, the calculation of such fees is ill-suited
for determination on summary judgment. In awarding attorney
fees, only those fees that are reasonable charges for reasonable
services will be allowed. Kaiser v. MEPC American Properties,
Inc., 164 Ill. App. 3d 978, 983 (1987). The determination as to
what constitutes reasonable compensation is a matter peculiarly
within the discretion of the trial court and that determination
will not be disturbed on review absent an abuse of discretion.
Harris Trust & Savings Bank v. American National Bank & Trust
Co., 230 Ill. App. 3d 591, 595 (1992); In re Estate of Healy, 137
Ill. App. 3d 406, 411 (1985).
We find that the lower court did not abuse its discretion
when it awarded plaintiffs attorney fees. After allowing Merit
and Stern discovery and a hearing on the issue, the trial judge
awarded plaintiffs $23,835.14 for attorney fees and costs,
striking $330 from the amount requested. Principal and interest
were $82,193.47, for a total judgment of $106,028.61. Thus, fees
and expenses were about 22% of the total recovery. As plaintiffs
point out, simply questioning the reasonableness of the fees does
not create a factual dispute sufficient to preclude summary
judgment. The court had before it adequate evidence of the fees,
including affidavits and time records from all attorneys for whom
fees were sought. Accordingly, we find that the award of
attorney fees was proper.
For the foregoing reasons, we hereby affirm the trial
court's order granting summary judgment in favor of plaintiff.
In addition, we hereby modify the trial court's award pursuant to
plaintiffs' cross-appeal.
Affirmed as modified.
O'BRIEN and O'MARA FROSSARD, JJ., concur.