1 On August 25, 1997, the circuit court grante d summary judgme nt in favor of Trossman on his cla im to compe l distribut

ions from O ak Park Pa

rtners a nd Burnham In

vestors. This SIXTH DI

VISI ON June 8 , 2007

No. 1-04-0588

DON C. TROSSMAN, ) Appeal from the ) Circuit Court of Plaintiff and Counterdefendant-Appellee, ) Co ok Co un ty. ) v. ) No. 95 CH 3430 ) THO MAS D. P HILIPS BOR N, A NDR EW I. ) PHIL IPSBORN, DANI

EL C. BARTOK and ) Honorab le JOHN J. LYNCH, ) Ronal d F. B artk owic z, ) Judge Presi ding. Defendants and Counterplaintiffs-Appellants) ) (Oak Park Partners, Ltd., a nd Burnham Investors, L

td., ) The Philipsborn Company, Philipsborn Development Corp.,) and Clarion Development Limited Partnership, ) ) Defendants). )

JUSTICE JOSEPH GORDO

N deliver ed the opi nion of the

court: Plaintiff Don C. Trossman originally c ommenced this action in the chancery division seeking to compel profit distributions due to him from defendants Oak Park Partners, L td. (Oak Park Part ners), a nd Burnham In

vestors, Ltd. (

Burnha m Inve stors), in

both of wh

ich he wa s a limited partner. Defendants Thomas D. Philipsborn and John J. Ly nch filed a counterclaim for pro rata contribu

tion or, in the alter native, a declar ation of c ontinuing

obligat ion, to con

tribute to pay ments they

, throug h their c ompany, The Philip sborn Comp any (TPC), ma

de on a g uaranty to LaSalle National Bank (

LaSalle), pursuant to which Trossman wa s a co-guarantor. 1summary judgme nt order is not at issue on appeal. Upon the entry of this order, the matter was transfe rred to the law divi sion for the resolu tion of de fendant s' coun

terclai m. Trossman thereafter amended his complaint to add: a cla im for distribution from Oak Park due to him for the ye ar 1997, captioned count II I; a claim for brea

ch of an employme

nt contract in connection with his employ ment at TPC, captioned count IV; a claim for r escission of his stock buy-back by

TPC, captioned count V; a claim for breach of an a lleged oral contract requirin g TPC's wholly owned sub sidiary

, Philipsbor

n Develo pment Corp oration, to continu e to make payme

nts to LaSalle in a timely

fashion, captioned count VI; a c laim for rescission of an indemnity and contribution ag reement among co-gua

rantors of the LaSalle loan, c aptioned count VII ; and a cl aim for a

ttorney fees sho uld he pre vail on an y c laims or de fenses i

n connection with the indemnity and contribution ag reement, captioned count VIII . None of these counts are at issue on a ppeal.

2 Subsequently, the circuit cour t granted partial summary judgment in Trossman's favor as to Bartok's cou

ntercla im. It was undis

puted tha t Bartok made no pa

yme nts in exce ss of his pro rata share o n the gu aranty. De fendan ts do not p urpor t to ap peal t hat ru ling. 2 Subseque ntly , Andrew

I. Phi lipsborn a

nd Danie l C. Bart

ok were joined as defendantscounter plaintiff s. 2 The circuit court granted the Philipsborns and L ynch' s (hereinafter, colle ctive ly, count erplai ntiff s') mot ion fo r part ial su mmary jud gment o n the i ssue o f Tros sman's liability for contribution to the pay ments to LaSalle. Subsequently , pursuant to a fee-shifting provision of the indemnity and contribution ag reement between the parties, the circ uit court awarded Trossman $447,805,72 in attorney fees and costs he incurred in defending the counterclaim. Only c ounterplaintiffs' counterclaim for contribution and the a ward of attorneyNo. 1-04-0588

3 Attached to his response to Thomas Philipsborn and Ly nch's motion for summary 3 fees and costs in connection therewith are a t issue on appeal. For the reasons that follow, we affirm i n part an d remand in part. BACKGROUND In their counterclaim, counte rplaintiffs alleged the following. Counterplaintiffs and Trossman entered into an agree ment with LaSalle to jointly and severally

guarantee the obligations of the Wysteria L imited Partnership (Wysteria), in which Tr ossman was a limited partner. Contemporaneously with entering into the guaranty agreement, Trossman and counterplaintiffs entered into an indemnity and contribution agreement which obliga ted Trossman to contribute a pro rata share to pay ments on the LaSalle guar anty. I t was further alleged that La Salle demanded pay ment from the guarantors, and counterpla intiffs made pay ments to L aSalle in

satisfac tion of the

guara nty . Trossma

n had not ma

de any pay ments to LaSalle . Cou nterp laint iffs s ought damages and at torne y fees in co nnect ion wi th Tro ssman 's alleged breach of the indemnity and contribution agreement. I n the alternative, counterplaintiffs sought a declaration that, under the indemnity and contribution agreement, Trossman was under a continu ing oblig ation to c ontribute his pro rata share to pay ments under the guaranty and, further , that cou

nterpla intiffs we re entitl ed to attorney

fees inc urred in enforc ing the i

ndemnity and contribution agreement. As noted in gr eater detail below, in their subsequent motion for summary judgme

nt counterplaintiffs would assert that Trossman owed contribution with respect to the payments TPC made to L aSalle beginning in Februar y of 1995. In his affida vit, 3 Trossman gave the following backg round of Wysteria. Wy

steria wasNo. 1-04-0588

judgmen t. 4 organ ized in 1990

for the p urpose of acquisiti on and de

velopmen t of a re sidential

townhome complex in Olympia Fields, I llinois. Wysteria was to construct and sell 88 completed townhomes. The limited partnership agreement executed on Nove mber 20, 1990, a copy

of which is in

cluded in the rec ord on ap

peal, pr ovided, in pertine nt part: "No limited partner shall be liable for any debts of the Partnership or any of its oblig ations exc ept to the extent of h

is commitme

nts to the Pa

rtnersh ip capital and his share of undistributed profits." In 1991, Trossman became a limited (0.99%) partner in Wysteria by investing $14,250. I

n 1994, Trossman made another contribution of $2,500. I n addition to Trossman, Wysteria's limited partners included the Philipsborns, Ly nch, Bartok and approximately 15 other investors. Wysteria's g eneral partners were TPC's w holly owned subsidiary

, Philipsborn Development Corpora tion (PDC) , and Ba

rtok's c ompany, Clarion D evelopme nt. Trossman further stated in h

is affida vit that Wy

steria e ntered i nto two loa

n agre ements with L aSalle—a

n acquisi tion loan a

nd a cons truction l oan (her einafte r, colle ctively

, the Wysteria loan or the LaSalle loan). LaSalle required that Bartok, the Philipsborns, L ynch and Tr

ossman execute personal guarantees of the Wysteria loan. On January 28, 1991, Trossman and counterplaintiffs entered into a guara nty ag reement with LaSalle, ag

reeing to, jointly a

nd

se ve ra ll y, "absolutely, unc onditionally, continually and irrevocably

guaranty the prompt pay ment, time ly p erforma

nce and satisfac tion in full

of all co venants, agree

mentsNo. 1-04-0588

5

and ob ligat ions of Borr ower un der th e Loan Instr ument s and a ll Bor rower's Liabilities in accordance w ith the terms of the Loan I nstruments. Guarantors absolutely and unconditionally covenant and agree that, in the e vent that Borrower is unable to, or doe s not, pay

, perfor m or satisf

y B orrowe

r's Liabilities , in a full and timely manner, f

or any re ason, *** no such occurrence shall in any way

re du ce or af

fe ct Gu ar an to rs ' o bl ig at io ns he re un de r a nd Gu ar an to rs sh al l p ay, perform or satisfy

Borrower's L

iabilities. Upon the occurrence of a defa ult in the promp t payment , tim ely perfor mance a nd sat isfac tion in ful l of Bo rrower 's Liabilities, all of the obligations of Guara ntors shall, at the election of the Lende r, become immediately due and paya ble. The term[] 'Borrower's L iabilities' *** shall have the meaning[] ascribed to [it] in the Mortgage." The guaranty

agreement further provided: "Guarantors hereby

expressly waive: *** notice of any de fault under any of the *** Loan I

nstruments *** or notice of the taking of any

action or the exercise of any remedy by

Lender under the L

oan Instr uments; *** Presentment, demand, notice of dishonor, protest and notice of protest, notice of any

and all defaults and all other notices whatsoever ***." Lastly , the guaranty

agreement provided: "[M]odification of the economic terms of either or both of the Notes, or the replacement or substitution of either of them, shall not be permitted by LenderNo. 1-04-0588

6

without prior written notice thereof to Guarantors." "Event of Default" was def ined, in pertinent part, in the Wysteria loa n agreement, which was ente red into on January

25, 1991, a

nd is part of the re cord on a

ppeal, a s follows: "(a) If Borrower sha

ll (i) fa il to pay within fiv e (5) da

ys f ollowing the date when due any

payment of princ ipal or interest ***; (ii) fail to make any other payment requir

ed by the terms of this Ag reement or any

of the other Loan Instr uments wit

hin five ( 5) day

s after d elivery of notice of such f ailure to Borrower ***. (b) If a def

ault shall occur under any of the other Loan I

nstruments and the same is not cured within such cure, grac e or other period, if any , provided in such Loan I nstrument ***." Neither the agreement nor the loa n notes provided how a default might be cured. The agreement did, howev er, pro vide, in per tinen t part , that , upon the oc curren ce of a d efault , "Lender's ob li ga ti on to ma ke an y fu rt he r d is bu rs em en ts of th e Lo an s s ha ll te rm in at e, " a nd Len de r m ay, among other th ings, "[d] eclare all of Borr ower's Liabiliti es to be imm ediately due and payable." Similar definitions and provisions were used in other instruments governing the Wy steria loan. Trossman further admitted in his affidavit that, contemporaneously with entering into the guaranty agreement, he and counter plaintiffs entered into an indemnity a nd contribution agreement, which provided, in pertinent par t, that in the event the guaranty is triggered, "Trossman shall b e liable f or 10.9% o f the cos t of the [Wy steria] Ob ligation s." The indemnity and contribution agreement further pr ovided:No. 1-04-0588

7 "To the extent Clarion and Bartok, L ynch, A. Philipsborn, T. Philipsborn or Trossman contr

ibutes in excess of its

respective Shar

e of Oblig ations (' Excess Contributor') suc

h Excess Con

tributor may

recove r the exce ss which it

has paid from each other party

on a pro rata basis to the extent such other party has not contribut ed its enti re Share of Obl igations." Additionally, the indemnity and contribution agreement provided: "To th e ext ent P DC mak es any payment towar d the O bligat ions , PDC 's payment shall be attributed a nd credited as if the following individually had made such pay ment as a contribu tion to his Sh are of O

bligations: Ly nch 21.8% x PDC payment A. Philipsborn 21.8% x PDC payment T. Philipsborn 34.6% x PDC payment Trossman 21.8% x PDC payment." The agreement further pr

ovided examples of how such pro rata contributions should be computed in the event LaSalle collec ted payment fr

om some of the guarantors pursuant to the guaranty . Additionally, the ag reement provided: "If the wilful or wa

nton act or failure to act *** of Clarion or Bartok, Ly nch, A. Ph

ilipsborn, T. Philipsborn or Tro ssman occ ur[s] (i) ou tsid e the s cope o f any agreeme nt ent ered in to (wi th th e know ledge and consent of all other parties, Wy steria and Borrower) by one or more of the parties, Wysteria or B orrower, pursuant to the Loa n, andNo. 1-04-0588

8 (ii) witho ut the know

ledge a nd conse nt of the o ther par

ty or partie s to this Agreement ('Unknowing

Parties'); and result in (iii) Lender collecting

pursuant to the Guaranty ***

*** then the party or

parties responsible for such Acts or knowing of a nd consenting to such Acts *** shal l have its or their Sh are of t he Oblig ations for all cost s attri butab le for such A cts (c ollec tivel y referred t o as 'At tribu table Cost s') increa sed to 100. 0% and tho se Unknow ing Part ies not re sponsible

for such acts shall hav e their Share of O bligations for suc

h Attribut able Costs

decrea sed to 0.0%." Lastly , the indemnity and contribution ag reement provided: "If any legal action is instituted hereunder, the prevailing party or pa

rties shall be e ntitled to r

ecover from the other par

ty or partie s reasonable atto rneys' fees and disbursements." Trossman further stated in h

is affida vit that it w as understood betw een the p arties that it would take considerable time to develop and market the Wy steria project and, therefore, Wyste ria would not initial ly g enerat

e suffic ient cash flow to ma ke pay ments on th e loan. With that understanding, an oral agr eement was reached in late 1990 betwe en TPC, PDC, the Philipsborns, Ly

nch and Trossman that TPC would channel funds to PDC to make all requiredNo. 1-04-0588

4 Trossman also referred to this oral agr eement in numerous amendments to his complaint

an d t hr ou gh ou t d is co ve ry. 9 payments in con necti on wit h the W ysteria p roject and ke ep the LaSalle loan i n good s tandi ng. 4 Trossman further stated tha

t it was the

intention o f the par

ties to the oral ag reemen t that all payments would be made through PDC, so that, pursuant to the indemnity and c ontribution agreement, the parties would individually be credited with having made a per centage of the pay ment (in T

rossman' s case 21 .8%). Tr ossman sta

ted that PD C had no as sets othe r than tho se it received from TPC. Lastly , Trossman asserted: "The LaSalle lo ans have

never be en decla

red by LaSa lle to be in

default ; have ne ver bee n accel erated ; have ne

ver bee n the subje ct of late

charg es, defa

ult inter est ra te and have n ever be en the subj ect of a ny enforce ment p roceed ings against the borrower, such as exercise of the assignment of rents or foreclosure ." In the course of discove

ry, depositions were

taken of Trossman, Ly

nch, who was vicepresident and treasurer of TPC, and Ronellva Zie bart, who was senior vice-president and hea d of residential division at LaSalle. In his deposition, Trossma

n testifie d as follows. He wa s employ ed as an o fficer

of TPC, a closely held c orporation, from 1981 until 1991. During that period, Trossman owned approximately 21.8% of TPC's outstanding stock, and the Philipsborns and Ly nch owned the rest. In 1991, Wysteria (one of whose gener al partners, as noted, was TPC's wholly owned subsidiary, PDC, which had no assets of its own) r an into financial difficulties, which had a negati ve effe ct on TPC' s financ ial situat ion. I n 1991 or 1 992, Tros sman res igned h isNo. 1-04-0588

5 This lette

r, as we ll as other

letters b etween

the part ies, was a ttached as an exhib it in support of

counter plaintiff s' motion for summa

ry judgmen t. 10 employment with TPC because all of the shareholders/officers had ag reed to take no compensa tion until TP C's fina

ncial situ ation impr

oved. Tr ossman expl ained tha

t without a salar y from TPC , he was unabl e to me et his livi ng exp enses . TPC did n ot bu y out Tros sman's shares at the time of his departure, but extended him a buy -out offer in late 1993. Trossman further testified that, in addition to TPC and Wysteria, he was also a limited partner in Oak Park Partners and Burnha m Investors, which owned and ope rated apartment buil dings . The gen eral pa rtner in Oak Park P artner s and Bu rnham Investo rs was TPC. TPC's shareho lders/of

ficers a lso held shares an

d served as offic ers of PD C, Oak Par k Partners, Burnham Investors a

nd Wysteria. Accor

ding to Trossman, Thomas Philipsborn and Ly nch "contr olled " TPC, PDC, Oak Pa rk Par tners , Burnh am Inves tors a nd Wyste ria. A ltho ugh Trossman left employment with TPC in 1991 or 1992 and sold his shares in TPC in 1993, he remained a limited partner in Oak Park Partners, B urnham Investors, and Wy steria. Trossman further testified in his deposition that, in late 1994, TPC requested that he contribute funds toward Wyster ia's obligations to LaSalle. A le tter dated September 26, 1994, sent to Trossman by TPC and signe d by Thomas Philipsborn, who was identified as pre sident of TPC, state d, in pert

inent par t: 5 "To date, The Philipsborn Company [(TPC)] has advanc ed $622,000 for cash flow shortfalls at Wyster ia. In addition, Dan Bar

tok has advanced substantial additional amounts, although not in a total amount equal to his obligation underNo. 1-04-0588

11

the guarantee. I

n effect, The Philipsborn Company has been subsidizing the guarantee obligation of Don Tr ossman and Dan Bartok. We are unwilling to do this any long er without some formal agreement as to how amounts paid by Philipsborn are to be re paid. Since LaSalle is pressing for an in terest pa yme nt and the pay ment of re al estate

taxes bef ore the e nd of this week, it is imperative that we meet this week." In a letter da ted Nove mber 21, 1 994, Tros sman allud ed to a re cent mee

ting he had with Ly nch and stated, in essence, that rather than owing money in connection with Wysteria, he was entitled to a "credit" in the amount of $155,042.69, which repr esented 21.8% of the total amount PDC had mad

e in contr ibutions to Wy

steria. T rossman f urther s tated tha

t becaus e, pursua

nt to the indem nity and contr

ibution ag reemen t, he was "responsible for only

half of that amount , it is apparent to [him] that [he has] the right to seek reimbursement from 'somebody ' in the amount of $77,521.34." Trossman additionally state d that he wished to be released from the gua ranty and, to that ef fect, wa s "willing

to assig n [his] $77,52 1.34 clai

m to whomev er y

ou desig nate and to transfer to the designee(s) [his] partnership interest in Wy steria" and in another partnership. Lastly , Trossman stated, "Under no circumstances will I pay any thing close to what has been requested of me in Tom's initial response to my request that I withdraw fr om Wysteria." A letter dated November 30, 1994, next sent to Trossman, by TPC and signed by L

ynch and the Ph

ilipsborns stated, in pertine nt part: "Due to the unavailability of funds at Wysteria L

imited Partnership, we have today a

dvanced the sum of $17,500 to Wysteria Limited Partnership ***.No. 1-04-0588

12 Said advance was made pursuant to the Guara nty of Pay

ment and Completion dated January 28, 1991. *** I n accordance with the I

ndemnity and Contribution Agreement dated January 28, 1991, we are entitled to collect 21.8% of this advance from y

ou. Please forward y

our check in the amount of $3,815.00 made paya

ble jointly to the undersigne d." On the sa me date, Novembe

r 30, 1994 , Trossma

n sent L ync h a letter, where in he state d, in pertine nt part: "I have a

gain reviewed the I

ndemnity and Contribution Agre ement dated January 28, 1991. I

have also had my c ounsel review this document and the Wysteria Partnership Ag

reement. Neither of us can find any liability to me per your reque st for reimbursement for certain sums advanced by either Philipsborn Development Corp. or The Philipsborn Company. If The Philipsborn Company advanced the funds, as y

ou say, then y

ou have created a 'third pa rty' loa n for which I have no liability . *** Further, capital calls can not be made bya nonpartner. On the other hand, if the funds were advanced by

Philipsborn Development Corp., then I have a credit as I stated in my

letter of November 21, 1994. Either way I

am not personally liable for any funds adva

nced to date." Trossman further testified in his deposition that, in late 1994, he learned that Oak Park Partner s and Bur

nham I nvestors failed to distribute

to him his sha

re of the profits f rom their operations. Trossman wrote to Thomas Philipsborn, demanding his distribution check. Subsequently, Trossman met with L ynch, who told him that he would rec eive no distributionsNo. 1-04-0588

13

until he satisfied his guarantor obligations in connection with Wysteria. On Febr uary 23, 1 995, LaS alle w rote t o all t he guara ntors a lett er sta ting: "This letter constitutes a notice given pursuant to that cer tain Guaranty of Payment and Completion dated as of January 28, 1991 *** with respect to *** the Wysteria L oan. You are hereby

notified that interest on the Wysteria L oan, in the amount of $27,480.65 was due and pay able on February

1, 1995 and is now past due.

*** We hereby de

mand that the Guarantors pay such interest in accordance with the provisions of the Guaranty ." A letter dated February

23, 1995, sent to Trossman, by TPC and signe d by L ynch, who wa s identified as vice-president and treasurer of TPC, alluded to the LaSalle letter and furthe r stated: "Your share of the amount due is $2,995.39, in accor dance with the Indemnity

and Contribution Agreement dated January 28, 1991. Strictly as an accommodation, The Philipsborn Company will act as a collection agent for the contributions of the Guarantors and then make a single pa yment to L aSalle Bank on their b ehalf. If you wish to ta ke adva ntage o f this, ple ase deli

ver y our chec k to The Philipsborn Company ***." Trossman responded by

a letter dated February

28, 1995, wherein he stated, in pertinent part: "You claim that I now owe $2999.39 [ sic ] under the terms of theNo. 1-04-0588

14

Indemnity

and Contribution Agreement dated January 28, 1991. In calculating that amount, you evidently have failed to provide me with the credit for which I have been entitled pursuant to Section 3 of that I ndemnity and Contribution Agreement. I

will commence making pay ments of the amounts due and owing from me under the terms of the I ndemnity and Contribution Agre ement once the aggrega te of my cre dit under paragraph 3 of that Ag reement has been exhausted." Subsequently, every

month letters requesting pay ments of interest, real estate taxes and/or life insurance premiums for Thomas Philipsborn's policy were sent to Trossman by LaSalle and TPC. In his deposition, Trossman admitted to having receive d the letters and further admitted that he di d not make

any pay ments. Ly nch, in the

course o f his depo sition, an swered questions

regar ding one of the bus iness records, captioned "Advance s to Wysteria." L ynch testified that betwe en 1991 and 1994 PDC "advanced" Wy

steria a total of $577,050, of which $23,000 had been "re paid." Ly nch also stated that in 1992 TPC advanced Wysteria " substantial amounts." Since the end of 1994, all advances to Wysteria were ma

de by TPC. L

ynch furthe

r testified that the funds for the advances PDC made to Wy

steria w ere, in t

urn, loaned to PDC by

TPC. To ena

ble TPC to ma

ke those a

dvance s, the officers of TPC had foregone ta king a salary . In that rega rd, Ly nch testified that in May of 1992, Trossman approached him about resigning from TPC, explaining that he needed to find a job that paid him a salary. I n late 1993, TPC repurchased Trossman's share s and repaid a loan note he held for a total of approximately $30,000. Regar ding the status of t

he Wy steria lo an, L

ync h testifie d that, to h

is knowled

ge, L aSalleNo. 1-04-0588

6 Evidently the word " funding" refers to LaSalle having renewed the note and e xtended the da te of it s m at ur it y. 15 never declared the loan to be in defa ult. Ly nch further stated that had L aSalle ever declared the loan in de fault, the

notice of default would hav e gone

to all the g

uarantors, and he

would like ly have received it. However, L ynch subsequently

stated that the Wysteria loan wa s in default "for brief periods of time" when the interest and re al estate taxes were not timely pa id. When further questioned, Ly

nch admitted that, as of the time his deposition was taken, in October of 1996, LaSalle was still "funding" the Wysteria loan. 6 Ly nch furt her testi fied tha

t becaus e Wy steria ha

d trouble selling townhome s, as orig

inally planned, the partners decided to modifythe original plan and sell lots for stand-alone singlefamily homes inste ad of com

pleted townhomes. LaSa lle conse nted to tha

t propose d chang e in the deve lopment pla

ns. Lastly , Ly nch admitted that, in late 1994, he telephoned La Salle and informed it that no fur th er p ayme nt s wo ul d be mad e on th e W yste ria lo an, abs ent a wr it ten dem and fro m LaS all e. In response to that phone call, LaSalle be gan sending demand letters to the g uarantors. Ly

nch categ orized the

pay ments TPC ma

de to L aSalle pu

rsuant to LaSa lle's de mands as " advanc es" from TPC to t

he gua rantors . Ly

nch admit ted that neither h e nor the Philipsbor

ns personally made payme

nts to LaSalle. Ziebart, who, as noted, was a senior vice -president at LaSalle, wa s also deposed and testified as follows. Ziebart was questioned about an interna l LaSalle document that stated: "La Salle Nat

ional Ba nk has be en notifie d by

the gua rantors of the cr editNo. 1-04-0588

7 As noted, origina

lly, only Thomas Phil ipsborn a

nd Ly nch wer e counte rplaintif fs in this action. 16 facility that req uests for interest pay ments must b e made in

writing . We will comply with this re quest and

are hav ing leg al counse l prepar

e the lett er which will be used f or this re quest. Up on rece ipt of that letter, t he gua rantors are pre pared to bring interest current, thus allowing for the booking of the 60-day

renewal." Ziebart stated that she could not remember a ny specifics a s to how LaSalle was notified of the guarantors' reque st. She further stated that she could not recall why LaSalle elected to continue to make requests for interest pay ments in writing. When questioned as to whether the loan was in good standing at the time the request was made, Z iebart replied: "No notice of default had been issued. However, the interest was not curr ent on the loan." However, when questioned whether, aside from the request from the g uarantors, there was any

reason to issue requests for interest payments on a c ontinuous basis, Ziebart responded, "Not that I 'm aware of." F urther, Ziebart testified that she was not aware of any other

instances where La Salle had issued similar letters based on a request from a gua rantor. When again questioned whether the Wy steria loan had ever been declared in de fault, she responded, "Not that I recall." Similarly , when questioned whether default (higher) r ate of interest had ever been dema nded by LaSalle or whether the loan had ever been acceler

ated, Ziebart responded, " No, *** not that I recall." Further, Ziebart admitted t hat had a ny o f those e

vents hap pened, she would have know n about it. On June 24, 1997, Thomas Philipsborn and Ly nch 7 moved for summary judg ment on their counterclaim against Trossman, arg uing that he owed them contribution toward past andNo. 1-04-0588

8 This response was styled a s a motion to strike the motion for summary judgment. Subsequently, on October 6, 1997, Tr ossman filed a motion to dismiss the counterclaim on the ground that the pay

ments were not made by

counterplaintiffs individually in satisfaction of the gu ar an ty. 17 future p ay

ments on th e Wy steria lo an. I n his suppor

ting af fidavit, L ync h, consist ent with hi s deposition testimony, asserted that commencing in February

of 1995, and continuing on a monthly basis, he rece ived letters from LaSalle re questing that guarantors make pay ments on the Wysteria loan. L

ynch furthe

r stated that his guarantor obligations, as well as the oblig ations of Thomas and Andrew Philipsborn, had been paid "on [their] behalf by [their] company, the Philipsborn Company." L astly, L ynch stated that betwe en 1995, when LaSalle first dema nded payment, and May

of 1997, TPC's payme

nts to LaSalle totaled $509,236.70. Subsequently , on August 8, 1997, Thomas Philipsborn and Ly nch filed another motion for summary judgment on their co untercl aim, adva

ncing su bstantial ly the same g

rounds. Co

unterpla intiffs ha d appare ntly abandoned their claim for contribution with respect to pay ments made prior to February of 1995, and only pursued c ontribution with respect to payments made in February

of 1995 and beyond. In a response, filed on Septembe r 4, 1997, 8 Trossman for the first time asserted that the Philipsbor

ns and L ync h did not pe

rsonally make pay

ments on th e guar

anty . In s upport, Trossman attached copies of the checks to LaSalle, which were issued by TPC, and not the individual guarantors. In f urther opposition to counterplaintiffs' motion for summary judgment on the counterclaim, Trossman, in multiple supplemental briefs, argued, in e ssence, that the indemnity and contribution ag reement was never trigg ered because Wy steria never defaulted onNo. 1-04-0588

18

its obligations. In support, Trossman attached, a mong other exhibits, copies of a series of modifications to the Wysteria loan to extend the date of its maturity , with the last modification having taken place on April 1, 1997. The modification ag reement of April 1, 1997, contained the following clause: "Borrower hereby

ratifies and confirms the Amended L oan Instruments. After giving effect to this Agre ement, the Amended Loan I nstruments are in good standing and rema in in full f

orce an d effect as so ame

nded ***. Each pa

rty to this Agreement acknowledg es that, after giving effe ct to this Agreement, to the best of his knowledge no Event of Default or event whic h, with the passage of time, the giving of notice, or both, would constitute an Event of Def ault, has occurred and is continuing." On Dece mber 2 4, 199 7, Ja nuary 24, 1998, and J une 24 , 1998 , the c ircui t cour t, J udge Neville presiding, heard oral arg uments in connection with the motion for summary judg ment on counter plaintiff s' coun terclai m. On June 24 , 1998, Judg e Neville grante d counter

plaintiff s' motion for summary judgme nt on the counterclaim as to liability, and re served the issue of damages to be decided at a later date. Judge Neville stated in open court his reasons for g ranting counter plaintiff s' motion for par tial summa

ry judgmen t: "I f ind that the

re is an a greement betwe en the pa

rties tha t if there is a pay ment made

to La Salle, the

y a re all in f or their p ercent

age, a nd that ap pears to me to be a slam dunk for the other guarantors. They have paid the money." On October 8, 1998, Trossman filed a "Motion for Rehea ring and Entry

of Judgment onNo. 1-04-0588

19

the Pleadings And/Or Summary Judgment in Favor of Trossman Regarding Counterplaintiffs Ly nch and the Two Philipsborns"—which, in substance, was a motion for rec onsideration combined with a bel ated cou

ntermotion for summa

ry judgmen t in Trossma

n's favor. I

n this combined motion, Trossman raised a new theory that counterplaintiffs did not suffer any damages, and, in support, attached an af fidavit of Jerome Lipman, an expert in accounting

. Upon examining various corporate documents and financia l statements, Lipman opined that TPC's sub sidiary

, PDC, was a

"shell c orporat

ion" cr eated with "minima

l equity "—which was a usual and customary se

t up in the real estate industry , designed to minimize liability exposure of the parent and the parent's share holders. Lipman therefore further opined that it would have been impossible for PDC to service its debt without support from its parent, TPC. Lipman additionally stated that despite the fa ct that the checks to LaSalle we re written by TPC, the corporate accounting rec ords indicated that the pay ments to LaSalle were made by PDC with the funds provided by TPC, i.e. , on PDC's behalf. Lipma

n also sta ted that TPC's fina

ncial sta tements contradicted counterplaintiffs' asser tion that TPC was acting as a collection agent for counterplaintiffs' individual pay ments pursuant to the guaranty . The accounting records indicated that the pay

ments were not made on behalf of the individual TPC shareholders and further showed that the pay ments were treated as tax deductions, whereas pay ments on behalf of the individual shareholders would not have been deductible. L astly, Lipman stated that the

accoun ting re cords did

not show th at any

of the co unterpla intiffs ma de personal pay

ments to LaSalle or repaid TPC a portion of the money it paid to LaSalle; nor did the accounting r ecords disclose any amounts du

e to TPC fr

om counte

rplaintif fs in connection wi

th the pay ments toNo. 1-04-0588

9 With the exce

ption as to

Bartok , who, as previousl y no ted, was

not entitle d to contribu tion beca use he ma

de no pay ments in exc ess of his pro rata sh ar e o n t he gu ar an ty.

20 LaSalle. On December 14, 1998, in addition to Trossman's combined motion for rec onsideration and belated countermotion for summary judgment, the following motions then pending before the circuit court were ruled upon by Judge Neville: counterplaintiffs' motion for award of damage s; TPC's mo tion to dismi ss count I V of Tros sman's a

mended c omplaint; c ounterpl aintiffs ' motion for

summary judgmen t on counts

V, VI , and VI

II of Trossman's a

mended c omplaint; Trossman 's motion

to dismiss th e decla

ratory judgmen t count of counter plaintiff s' coun terclai m; and Trossman's motion to strike counterplaintiffs' affir mative defenses. Judge Neville took under advisement counterplaintiffs' motion for awa rd of damages 9 ; grant

ed counte rplaintif fs' motion to dismiss count IV of Trossman's amended complaint; g ranted counterplaintiffs' motion for summary judg

ment on count V; denied counterplaintiffs' motion for summary judgment on count VII I; continued counterplaintiffs' motion for summary judgme nt on counts VI; denied Trossman 's combi

ned motion

for rec onsidera

tion and c ountermo tion for su mmary judgmen t, except as to Bartok, which was granted; c ontinued Trossman's motion to dismiss the declaratory judgment count of counterplaintiffs' counter claim; and granted Trossman's motion to strike counterplaintiffs' affirmative defe nses. On December 15, 1998, Judge Neville entered judg ment against Trossman on counterplaintiffs' counterclaim in the amount of $74,713.23, but rese rved ruling on counterplaintiffs' request for prejudg ment interest. On January 12, 1999, Trossman f iled twoNo. 1-04-0588

21

"Motion[s] for Rehearing" which sought rec onsideration of Judge Neville's rulings rende red on December 14, 1998, regar ding counts IV and V of

Trossman's complaint, which are not at issue on appeal. On January

13, 1999, Trossman filed a similar "Motion for Rehearing" with respect to the rulings entered on December 14, 1998, a nd December 15, 1998, as to liability and damages with resp ect to co

unterpla intiffs' counter claim. As of July 26, 1999, Trossman's complaint was still not resolved in its entirety . It appears that Trossman wanted to appeal the partial summary judgment entered against him on the counterclaim and, to that effect, on July 26, 1999, the circuit court entered an ag reed order which amended the December 1998 orders by adding the language

that those orders were final and appealable pursuant to Supreme Court Rule 304(a) (155 I ll. 2d R. 304(a)). On August 19, 1999, Trossman filed a notice of appeal. However , on February 15, 2001, this court dismissed Tross man's a ppeal for la ck of j urisd icti on on t he grou nds t hat th e Decem ber 19 98 rul ings Trossman sought to appeal lacked requisite finality due to the pendency

of the motions for reconsideration filed in January of 1999, which were never ruled upon. On April 26, 2001, after the matter was remanded to the c ircuit court, counterplaintiffs moved to strike Trossman's January 1999 motions for reconsideration. On May 1, 2001, Trossman filed another moti on to rec onsider t he gra nt of summa

ry judgmen t on counte

rplaintif fs' counterclaim with respect to the issue of liability , as well as the award of damag es in the amount of $74,713.23. Trossman argued that "at the ve ry least, *** numerous issues of fact prevented summary judgmen t in favor of counte rplaintif fs." Tr ossman fu

rther a rgued that he was entitled to summary judgment on c ounterplaintiffs' counterclaim. Trossman asserte d, among otherNo. 1-04-0588

22

things, t hat beca use coun terplain tiffs com mitted a willful and

wanton a ct in cau sing L aSalle to collect on the guaranty, he should be absolved of his contribution obligation. Trossman further reitera ted that c ounterpl aintiffs

did not per

sonally make pay

ments of the Wy steria ob ligation s to LaSa lle, and t hat he did not have o

bligatio ns under t he indemn

ity a nd contri bution ag reemen t, which was derivative of the guara nty, because

he had no obligation under the guara nty itself. Rather than arguing, as he did e arlier, that the guaranty was never trigger

ed, Trossman argued that the material modification, without notice to him, of the Wysteria pr oject rendered the guara nty unenfor ceable agains t him. By this time, Judge Neville had r etired and the matter was assigned to Judge He nry. The parties rebriefed the matter befor e Judge Henry . On June 12, 2001, Judge Henry g ranted Trossman 's motion

for rec onsidera

tion and va

cated th e gran

t of summar

y ju dgment i n counterplaintiffs' favor on the issue of Trossman' s liability on counterplaintiffs' c ounterclaim. Trossman 's motion

for summa

ry judgmen t remaine d pending . Judge He nry's orde r also re flects that counterplaintiffs withdrew their motion to strike Trossman's January 1999 motions for reconsideration. On January 21, 2002, the matter wa s reassigned to Judge Bartkowicz, who ruled on Trossman's motion for summary judgment on counterplaintiffs' countercla im on November 22, 2002. Judg e Bartk

owicz gr anted sum

mary judgmen t in Trossma

n's favor on the c ounterc laim and ordered briefing on the re maining issues. Judge Bartkowicz's reasons, a s stated in open court, f or gra nting sum mary judgmen t in favor of Trossman were

as follow s: (1) the

indemnity and contribution agreement clearly and unambiguously pr

ovided that any pay

ments PDC madeNo. 1-04-0588

23

on the guaranty

would be credited to the individual guarantors in their respe ctive pro rata shares and did not purport to limit such credit in the event Trossman left TPC; and (2) under Sterling Radio Stations, Inc. v. Weinstine , 328 I ll. App. 3d 58, 765 N. E.2d 56 (2 002), whi ch held that a guarantor did not suffer any damages where a cor

poration in which he was a shareholder paid the judgment on the guaranty, counterplaintiffs individually did not suffer any damag es because the pay ments wer

e made by

their co rporation, TPC. On December 17, 2002, Trossman filed a motion, pursuant to the fee- shifting provision of the ind emnity and contr

ibution ag reemen t, for att orney fees an d costs he expended

in defending the counterclaim. On Marc h 18, 2003, Judge Bartkowicz entered an ag reed order stating, in pertinent part, that summary judgment be entered in Trossman's fa vor on the issue of counter plaintiff s' joint a nd sever al liabilit y f or Trossman's re asonable attorne y f ees and c osts related to the claims and defenses raised pursua nt to the indemnity and contribution agr eement. On April 15, 2003, Trossman submitted his petition for attorney fe es and costs in the amount of $445,725. 05, plus at

torney fees an d costs he would inc

ur in the f uture in c onnection with bringing this petition. Trossman admitted that, in the course of the litigation, he cha nged attorneys a numbe

r of times and, at times, employed multiple firms at the sa me time. Trossman attache d the billin

g state ments from all the le ad and c onsulting attorne ys he retained in connection with this litigation. Trossman also submitted detailed affidavits from all the attorneys. Trossman ma

intained that the attorney f ees and costs he incurred were r easonable. In their response, counter plaintiffs argued that the fees and c osts sought by Trossman were "grossly

inflated," pointing out that Trossman had used 4 different lea d attorneys and 15No. 1-04-0588

24

different attorney s overall, which substantially incre ased the cost of litigation, especially in that multiple, successive attorney s had to familiarize themselves with the case. Counterplaintiffs further asserted that Trossman's petition improperly sought reimbursement for attorney fees and costs he i ncurre d with res

pect to th e aspects of the li tigation which ha d nothing to do with counter plaintiff s' coun terclai m. Counter

plaintiff s additionally

pointed ou

t that the a

mount in dispute on the counterclaim, at its largest, did not exceed $200,000 and further noted that, by compari son, their

own fee s and cost s totaled a pproximate ly $ 106,000. I n support, counterplaintiffs attached an affidavit of their le ad attorney, Richa rd R. Winter, who estimated that, of the $106,825.08 charged by his firm for all the work done for counterplaintiffs since 1995, approximately one-third was incur red in connection with matters unrelated to the counterclaim. Counterplaintiffs asserted that, using their own attorne y fees a s a benchmark, a fee of no more than $70,000 could legitimately and reasonably

be attributed to the counterclaim. Last ly, counter

plaintiff s argue d that the

fee-sh ifting provision d

id not cont

emplate reimbursement for expert services and attorney s consulted in addition to main counsel. Counterplaintiffs therefore asked that Trossman' s fee petition be "denied in the amount requested," or, "[i]n the alternative, *** that the court hold an evide ntiary hear

ing" so that counterplaintiffs could cross-examine Trossman's attorney s regarding the rea sonableness and necessi ty o f their f

ees. On October 21, 2003, the circuit court gra nted Trossman's request for attorney fees and costs, "with the exception of attorney fees requested related to Counts I V, V and VI ofNo. 1-04-0588

10 As noted, these counts did not seek contribution under the indemnity and contribution agreement. Counterplaintiffs prevailed on c ounts IV and V, and Trossman voluntarily dismissed count VI . Trossma

n does not c ontest the

exclusion o f the fe es and co sts perta ining to t hese counts. 25 Trossman's First Amended Complaint." 10 The court further ordered that " Trossman shall serve on the defendants and counterplaintiffs the breakdow n of the attorney

fees and costs granted by the Court and the attorney fees denied by

the Court, with a courtesy c opy to the Court ***." On November 3, 2003, without ever holding an evidentiary hearing, the circuit court entere d an orde

r, stating that, "having considered the time entries submitted by Trossman pursuant to the October 21, 2003 Order that set forth the attorney fees related to or that potentially related to Counts I V, V and VI of Trossman' s First Amended Complaint, which time

entries were cop ied verb atim from the attor ney bills submitted w

ith Don C. Tr

ossman' s Petition f

or Attorney

Fees a nd Costs" it was re ducing

the amoun

t reques ted in Tro ssman's petition by

$37,460 " as it rela

tes to Count s IV, V and VI

of Trossman's First Amended Complaint" and g ranting Trossman's supplemental attorney fe es and costs in the amount of $39,540.67 incurred in connection with bringing and briefing the fee petition. The court conse quently entere d final judgment for Trossman and agains t counter

plaintiff s, jointly and seve rally , in the amount of $44 7,805,72. Additiona lly, in order to allow entry

of a final and appealable order on a ll issues in this litigation, the circuit court grante d with pre

judice Tr ossman' s motion to vo luntarily dismiss the

only unresolv ed count o f hisNo. 1-04-0588

11 Count III

was earlier resolved in Trossman's fa vor, count VII

was mooted by the disposition of the counterclaim, and count VII I, for attorney

fees and costs in the event Trossman prevail ed on cla

ims or def

enses in c onnection with the i ndemnity and contr

ibution ag reemen t, was duplicative of Trossman's subsequent petition for attorney fees and costs brought upon the resolution of the counterclaim in his favor—and was theref ore also resolved. 26 com pl ain t, cou nt VI, 11 "but without preju dice as t o Trossma

n's abil ity t

o raise the same allegations set forth in Count VI as a n affirmative defense to counterplaintiffs' counterclaim *** in the event an appeal is taken in this cause and the order granting summary

judgment in favor of Tro ss man on t he c oun ter pl ain ti ffs ' co unt erc lai m * ** i s va cat ed o r re ver sed ." ( In co unt VI, Trossman, as noted, alleged that counterplaintiffs had br eached an oral agr

eement to maintain the LaSalle loan in good standing .) Lastly , the court found that "[a]ny pe nding motions for rehearing filed by Trossman ar

e hereby withdrawn," and "[t]his Order and Final Judgment is final and appealable as to the entire cause of a ction." On Dece mber 1 , 2003 , coun terpl ainti ffs fi led a m otio n to re consi der th e circu it cou rt's orders of November 22, 2002, and November 3, 2003—thus, in essenc e, attempting to reargue the entire disposition of the counterclaim. In that motion to reconside r, counterplaintiffs argued for the first time that Trossman was barred, under the g eneral estoppel principles, from asserting in the course of the litigation his defense that the corpora te payments made by

TPC did not trigger the right to contribution bec ause the co-guarantors we re counterplaintiffs individually. On Fe br ua ry 2 6, 20 04 , t he ci rc ui t c ou rt de ni ed th e m ot io n f or re co ns id er at io n. On th e s am e d ay, counter plaintiff s filed a n otice of appeal.No. 1-04-0588

27 ANA LYSIS On appea l, counte rplaintif fs urge that we va

cate the June 12, 200 1, order

of the ci rcuit court granting Trossman' s motion for reconsideration, the November 22, 2002, order g ranting Trossman's motion for summary judgment on the counterclaim, and the November 5, 2003, orde r awarding Trossman $447,805,72 in attorney fees and costs. Counterplaintiffs further ask that we reinstate the earlier order of Judge N eville granting summary judgment in their favor on the counter claim as t o Trossma

n's liab ility

and rema nd the mat

ter for f urther proceed

ings with respect to their a

ttorney fees an d costs. Co

unterpla intiffs ma intain tha t Trossma n must contribu te his pro rata share under the indemnity and contribution agreement because (1) the payments made by

TPC to LaSalle were made to satisfycounterplaintiffs' obligations as coguarantors of the Wy steria loan; and (2) each check w ritten by TPC represe

nted individual contr ibut ions of each of the owners of TPC , name ly, the P hili psbor ns and Lynch, becau se "TP C's money was def

endants' money ." Trossman, for his part, maintains that the right to contribution was not triggered by

the virtue of TPC's pay

ments to LaSalle because those pa yments were

not made by counter plaintiff s in their i ndividual capaci ties. Summary judgment is appropr iate only where

the pleadings, depositions, admissions and affidavits on file, viewed in the light most favorable to the nonmovant, show that no g enuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. 735 IL CS 5/2-1005(c) (West 2002). Although the use of summary judgment aids in the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and is proper only when the resolution of a ca se hinge s on a que stion of la w and the moving pa

rty 's rig ht toNo. 1-04-0588

28

judgment is clear and free fr om doubt. In re Estate of Hoove r , 155 Ill. 2d 402, 410, 615 N.E.2d 736, 739 (1993). Summary judg ment is inappropriate where the record indica tes the presence of triable issues of material fact. Estate of Hoover , 155 Ill. 2d at 411, 615 N.E.2d at 739-40. Moreove r, wher e doubt exis ts as to the

right to summary judgmen t, "the w iser judic ial policy

is to permit r esolutio n of the dis pute by a trial." Jackson Jordan, Inc. v. Le ydig, Voit &

Mayer , 158 Ill. 2d 240, 249, 633 N.E.2d 627 (1994). O ur revie w of a g rant of s ummary judgmen t is de novo

. Estate of Hoover , 155 Ill. 2d at 411, 615 N.E.2d at 740. We construe the evidenc e in the record strictly ag ainst the movant and liberally in fa vor of the nonmovant. Estate of Hoover , 155 Ill. 2d at 410-11, 615 N.E.2d at 739-40. As a preliminary ma

tter, counterplaintiffs urge that, under the g eneral principles of equitabl e estoppe l, as well as under the princ iples of the "mend the hold" doctrine , Trossma n is preclud ed from a ltering the rea sons he as serted b efore t he comme

ncement of this litigation in defense of his refusal to contribute as a co- guarantor to the pay ments made by TPC. Consequently, counterplaintiffs c ontend that Trossman is barred from now arguing that the corporate pay

ments made by TPC did not trigg er the right to contribution of the individual guarantors who co-signed the guaranty in connection with the Wysteria loan. Counterpla intiffs assert that Trossman knew for y ears "about the pay

ments he was refusing to make, and how defendants were meeting LaSalle'[s] calls on the Guaranty , yet for ove r thirty months, he never objecte d or infor

med them that he con sidered their met hod of pa yme nts to be ineffec tive or in error in any way ." Counte

rplaintif fs are r eferr ing to the fact tha t, althoug h in late 1 994 and e arly 1995 Tros sman did ob

ject to ma

king contribution , his objections wer e princi pally ground ed inNo. 1-04-0588

12 As noted, counter

plaintiff s seek contribution

with resp ect to the

pay ments made

in February of 1995 and beyond, a

fter LaSalle, in response to L ynch' s phone call, began to send the guarantors monthly

letters demanding pay

ment of past due installments. 29 his belief that he wa s entitled

to a substa

ntial pro rata credit of the earlier pay ments made by PDC, and th at his cre dit by far exce eded the

amount co

unterpla intiffs c laimed he

owed in contribution. 12 Only in September of 1997, a fter discovery

showed that TPC was not being reimburs ed by

counter plaintiff s for mak ing pay ments to L aSalle, d

id Trossma

n, in resp onse to counterplaintiffs' motion for summary judgment, raise the issue that TPC's pay ments could not be attributed to counterplaintiffs for the purpose of triggering the right to contribution. Trossman points out, and we a

gree, that coun

terplain tiffs wa ived any argume nts predicated upon the genera l principles of equitable estoppel or upon the mend the hold doctrine because they

failed to raise them prior to filing their motion for reconsidera tion. See Holzer v. Motorola Lighting, I

nc. , 295 Ill. App. 3d 963, 978, 693 N.E.2d 446 (1998) ("one may not raise a legal theory

for the first time in a motion to reconsider"). Moreover, the record shows that in a letter dated November 30, 1994, in one of his early responses to counterplaintiffs’ demands for contribution, Trossman did in fact articulate among his reasons for nonpayment his position that the payments by

the corporate entity , TPC, were not sufficient to trigger the rig ht to contribution, even though counterplaintiffs were owne rs and shareholders of TPC. Even that aside, counterplaintiffs would not prevail under either the equitable estoppe l doctrine or the mend the hold doctrine because both doctrines require the pa rty asserting

them to make a showing of detriment, unfair prejudice or surprise, which is lacking here.No. 1-04-0588

30

Equitable estoppel is typically invoked "where a person by his or her statements and conduct l eads a pa

rty to do somet

hing tha t the par ty would not ha

ve done b ut for suc h stateme nts and conduct. " Geddes v. Mill Creek Country Club, I nc. , 196 Ill. 2d 302, 313, 751 N.E.2d 1150, 1157 (2001). The practical effect of equitable estoppel is to bar that person "from asserting rights that might otherwise have existed against the other pa rty who, in good f

aith, relied upon such conduct and has been t hereby led to change his o r her positi on for the wor se." Geddes , 196 Ill. 2d at 313, 751 N.E.2d at 1157.

"To esta blish equi table es toppel, th e party

claiming estoppel must demonstr ate that: (1) the o ther person misrep resente d or conc ealed ma terial f acts; (2) the other person knew at the time he or she made the representations that they were untrue; (3) the party claiming estoppel did not know that the representations were untrue when they

were made and when they were acted upon; (4) the other person intended or reasonably expected that the party c laiming estoppel would act upon the representations; (5) the party claiming estoppel reasonably relied upon the representations in good faith to his or her detriment; and (6) the party cla

iming estoppel would be prejudiced by his or her reliance on the representa tions if the other person is permit ted to deny the trut h thereof." Geddes , 196 Ill. 2d at 313-14, 751 N.E.2d at 1157. Counterplaintiffs do not argue that Trossman misled them by stating he would send contribution payments. I

n fact, as noted, Trossman repeatedly responded that he did not owe contribution. Rather, counterplaintiffs argue that they relied to their detriment on the principal reasonNo. 1-04-0588

31

Trossman gave f or his nonp ay

ment, whic

h is diffe rent from the rea son he sub sequentl y articula ted in re sponse to c ounterpl aintiffs ' motion f or summar

y ju dgment a nd has ad hered to ever since. Even if that contention were true , counterplaintiffs cannot claim that their reliance on Trossman's failure to fully articulate his objection to corporate pay ments by TPC was reasona ble. In Geddes , our supreme court acknowledge d: " 'Esto ppel may arise fr om silence

as well a s words. I

t may arise where the

re is a duty to speak and the pa

rty on whom the duty

rests has an opportunity to spea k, and, knowing the circumstances, keeps silent. [Citations.] It is the duty of a person having a right , and see ing ano ther abo ut to commit

an act in fringi

ng upon i t, to assert his right. He cannot by his silence induce or encourage the commission of the act and th en be heard to co mplain.' " Geddes , 196 Ill. 2d at 314, 751 N.E.2d at 1157, quot ing Bondy

v. Samuels , 333 Ill. 535, 546, 165 N.E. 181 (1929). Regarding Trossman's duty to speak, it must be remembered that by 1994 Trossman was no longer an officer or shar

eholder of TPC. His duty to speak c ould only come from see ing counterplaintiffs about to commit an act infringing upon his rig ht. That he did by informing them that he would no t make contribution pay ments until

the cre dit he bel ieved wa s due to him was exhausted. Counterplaintiffs therefore had to think that Trossman would not make the contribu tion pay ments he was reque sted to mak e. Under the princ iples of e quitable estoppel , having stated that he would not pay contribution, Trossman owed them no further explanation. In this respect, we fur

ther note that although " '[E]stoppel may ar

ise from silence as well as words, *** it can arise byNo. 1-04-0588

32

silence only wher

e there is knowledge of the fac ts on one side and ignorance on the other; if the means of knowledge are equally open to both parties, the re can be no estoppel. *** A person is not estopped by his silence where there is no positive duty *** to speak, or the party is in ignor ance of his ri ghts.' " Town & Country B ank of Springfield v. James M. Canfield Contracting Co. , 55 Ill. App. 3d 91, 95, 370 N.E.2d 630, 633 (1977), quoting S. Puterbaugh, Chancery Pleading and Practice §675, at 1372 (7th ed. 1930). Put differently, " '[a] party claiming the benefit of an estoppel cannot shut his ey es to obvious facts, or negle ct to see

k informa tion that is

easily access ible, and

then cha rge his ignora nce to others.' " Town & Country B ank , 55 Ill. App. 3 d at 95 , 370 N .E.2d at 633 , quot ing Vail v. Northwestern Mutual Life I nsurance Co. , 192 Ill. 567, 570, 61 N.E. 651 (1901). Here, counterplaintiffs cannot claim that Trossman, who was no longer affiliated with TPC, had superior knowledge of material fa cts related to TPC's pay

ments to LaSalle. I

n addition, the means of ascertaining the leg al effect of those pay ments were equally

available to Trossman and to cou nterp laint iffs, in th at the y both cou ld hav e sough t legal couns el. No thin g in Tro ssman 's conduct discouraged counterplaintiffs fr om doing so. Counterplaintiffs, accordingly, may not

re ly o n t he eq ui ta bl e e st op pe l t he or y. Counterp laintiff

s nevert heless a rgue that, even

if not bar red by the princ iples of e quitable estoppel, Trossman would be barred by the mend the hold doctrine from changing the ground for his refu sal to pay

contribu tion. The mend the ho ld doctrine has tra ditionally been re ferre d to inNo. 1-04-0588

33

the follow

ing ter ms: "Where a party

gives a reason for his conduct and de cision touching any thing involved in a controversy , he cannot, after litigation has begun, c hange his ground and put his conduct upon another and different considera tion. He is not permitted thus to amend his hold. He is estopped from doing it by a settled principle of law." County of Schuy

ler v. Missouri Bridge & I ron Co. , 256 Ill. 348, 353, 100 N.E. 239 (1912). Accord Gibson v. Brown , 214 I ll. 330, 341 , 73 N.E. 5 78 (1905) ; Townsend v. Postal B enefit Ass'n of Illinois , 262 Ill. App. 483, 489 (1931). I n modern times, the mend the hold doctrine has been described "as a cor

ollary of the duty

of good faith that the law of I llinois as of other states imposes on

the part ies to con tracts" and prec ludes "[a

] party who hokes

up a phony

defense to the performan ce of his cont ractual duti es" from "[trying] on another defens e for size." Harbor Insurance Co. v. Continental Ba nk Corp ., 922 F.2d 357, 363 (7th Cir.1990). From a procedural standpoint, the doctrine has bee n criticized for embodying "an antitheti cal conc eption of the litig ation pro cess, one in which a

party is expecte d to have a

ll his pins in per fect order when h e files his first plead ing." Harbor Insuranc e , 922 F.2d at 364. Reflecting that concern, this court held:

"Althoug h the law on the 'me

nd the hold

' doctr ine is unc lear, it s eems to apply only

in summary judgment a

nd trial proceedings. There is no case law that clearly holds that the doc

trine applies at the pleading stage. I n accordance, we decline to ap ply the 'mend the hol d' doctrine to the pleadin g stage." Delaney v.No. 1-04-0588

13 But see Israel v. National Canada Corp. , 276 Ill. App. 3d 454, 462, 658 N.E.2d 1184 (1995), stating, without citation to authority, that " Illinois law requires a defe ndant in a breach of contract claim to stand by the first defense raised after litigation has begun ." (Emphasis added.)

34 Marchon, Inc. , 254 Ill. App. 3d 933, 941, 627 N.E.2d 244, 249 (1993). We note, however, that Delaney has been criticize d for bei

ng inconsistent with our supreme court's decision in Schuy

ler County

in limiting

the doctr ine's r each to s tatement s made in postpleading stages of litigation. See R. Sitkoff, Comment, "Mend the Hold" and Erie: Why an Obscure Contracts Doctrine Should Control in Federal Diversity Cases , 65 U. Chi. L. Rev. 1059, 1078 n.109 (1998). In that reg ard, we note that we remain bound by supreme court precedent regardle ss of age. See ge ne ra ll y People v. Suarez , 224 Ill. 2d 37, 862 N.E.2d 977 (2007); see also Walberg v. St. Francis Home, I nc ., 274 Wis. 2d 414, 419, 683 N.W. 2d 518, 520 (2004) ( “We are

bound by supreme court pr eceden t, even if it is over a

century old”); Gilliam v. Stewart , 291 So.2d 5 93, 594 (F la. 1974)(“When th e district courts d ecide that ancie

nt prece dents should be overrule d, we we lcome the ir views a nd such should be un

hesitatin gly render ed but, in

cases su ch as this , it is the du

ty o f the distr

ict cour ts under t he plain c onstitutional lang uage to adhere to the former precede nts and then certify

the decision to us. This will assure uniformity”). Most of the

other de cisions of

this cour t on the sub

ject do no t restrict the mend the hold doctrine in this fashion. 13 However, these decisions recog nize that the mend the hold doctrine would not a

pply under ce rtain cir cumstanc es out of e quitable , rather than proc edural, considerations. For instance, in Larson v. Johnson , 1 Ill. App. 2d 36, 46, 116 N.E.2d 187, 192, which contains a comprehensive and scholarly historical analysis of the doc trine and which wasNo. 1-04-0588

14 Thus, the holding of Delaney may be see

n as predicated on the absence of pre judice due to the shifting of position in the early sta ges of litigation. 35 recognized

as authoritative on the subject (See Harbor Insuranc e , 922 F.2d at 363), this court stated tha t a court should not a

pply the mend t

he hold do ctrine w

here it would be ine quitable to do so, such as where the new defense was "meritorious and equitable" and was not ra ised "by inadver tence or the casu al char acter o f the re

pudiation or the ci rcumstan ces unde r which it occurred." Larson , 1 Ill. App. 2d at 46, 116 N.E.2d at 192. The court in Larson explained that the mend the hold doctrine developed to redress unfair a nd arbitrary

conduct of the repudiating party. Larson , 1 Ill. App. 2d at 46, 116 N.E.2d at 192. Similarly , in Townsend , this court indicated that detriment was one of the doctrine's c omponents. Townsend , 262 Ill. App. at 488 ("When appellee elected to place its def ense on the ground that the insured was not a member at the time of her death it will not be permitted, after cos ts and exp enses hav e been in curred in prosecuting the action , to mend its hold and set up other defenses, even though at the outset such other de fenses may

have be en avail able" ( emphasis added)) . Most rec ently , this cour t refuse d to apply the doctrine in the a bsence of unfair surprise or arbitrar iness. Smith v. Union Automobil e Indemnity

Co. , 323 I ll. App. 3d

741, 746- 47, 752 N. E.2d 1261 (2001); William J. Templeman Co. v. United States Fidelity & Gua ranty Co. , 317 Ill. App. 3d 764, 771-72, 739 N.E.2d 883 (2000). 14 Under th e facts

of the ins tant cas e, we do n ot find tha

t it was ine quitable

for the c ircuit court to allow Trossman to assert, as the ground for his nonper formance under the indemnity and contribu tion agr eement, that TPC' s pay

ments wer

e not made

by c ounterpl aintiffs

in theirNo. 1-04-0588

36

individual capacities. Counterplaintiffs cannot claim to be prejudiced when, a fter discovery showed that TPC was not being reimbursed by counterplaintiffs for its pay ments to LaSalle, Trossman formally a

rticulated this ground in his amended pleading, months before the argument on counte rplaintif fs' motion for summa

ry judgmen t took plac e. As disc

ussed in ou

r equita ble estoppel analy sis, count erplain tiffs ca nnot other

wise cla im to be pre

judiced d ue to know

ing only of Trossman's re fusal to p ay contribu tion, but no t of the exact gro unds he wo

uld subseq

uently raise in litigation. Either way , counterplaintiffs' recourse would have been to sue for contribution, which is precisely w hat they did. Nor ca

n it be said that Trossman acted in bad faith in voicing the initial ground for his refusal to pay contribution, especially g iven that Trossman did, in a le

tter, da ted Nove mber 30, 1 994, expre ss his view that the c orporat

e payments made by

TPC did not trigger his right to contribution. As previously noted, that letter stated in pertinent part, “If T he Philipsborn Company advanced the funds, as you say

, then you have created a 'third pa

rty' loa n for which I have no liability .” Thus, even in the absence of waiver, we would c onclude t hat count erplain tiffs ca nnot prev ail under

the doctr ines of e quitable estoppel or mend the hold because they failed to show detriment, unfair surprise or prejudice. Counterp laintiff

s next arg ue that Judg e Neville 's rulin gs wer e law of t he case and should not have been set aside. As Trossman points out, the law of the case a rgument has been waived because it was not raised in the proceeding s below. In any event, the law of the case doctrine would not bar Judge Henry from reconsidering Judge Neville' s prior rulings. As counterplaintiffs acknowledge, the law of the ca se doctrine—which provides that "a rule established a s controlling in a part icular c ase will c ontinue to be the la w of the c ase" in

the abse nce of e rror or a chang e inNo. 1-04-0588

37

facts—is ordinarily a

pplicable upon remand, where the final ruling of the circuit court was unchallenged or affirmed on a ppellate review. People v. Patterson , 154 Ill. 2d 414, 468, 610 N.E.2d 16, 41 (1992); Kennedy v. F irst National Bank of Mattoon , 259 Ill. App. 3d 560, 563, 631 N.E.2 d 813 (199 4). We unde rscore that "a finding of a fina l judgme nt is requ ired to su stain applicatio n of the doct rine." Patterson , 154 Ill. 2d at 469, 610 N.E.2d at 41. Counterplaintiffs ultimately concede

that interlocutory ruling s "may be reviewed, modified, or vacated by successor ju dges at any time before fi nal judgment " ( Thomas v. Johnson Controls, Inc. , 344 I ll. App. 3 d 1026 , 1031 , 801 N .E.2d 90 (20 03), c itin g Balciunas v. Duff , 94 Ill. 2d 176, 185, 446 N.E.2d 242 (1983)). As Trossma

n points out , Judge Ne

ville's grant o f partia

l summary

judgmen t in counterplaintiffs' favor was interlocutory due to the pendency

of two motions for reconsideration, which, as we determined in the prior appeal in this matter, prec luded finality and appe alability of that judgment despite a Rule 304(a) certification. On re mand, Trossman renewed his motions for reconsi deration before

Judge He nry , since Judg e Neville

had reti red. Und er such c ircumsta

nces, Judge He nry had the power to va

cate the rulings he consid

ered er roneous, provided

he did so after careful consideration. See Balciunas , 94 Ill. 2d at 1 86, 44 6 N.E. 2d at 2 46 ("ju dge shopping" is discouraged; howeve r, where the record shows no impropriety in the assignment of the case to a successor judge, the suc cessor judge may vacate or amend those orders enter ed by his prede cessor w

hich he c onsiders

to be err oneous). In thi s rega

rd, the r ecord shows that th

is matter was fully r

ebriefed before Judge Henr y. The brief

ing revealed the presence of genuine issues of fact as to whether counterplaintiffs committed a willful and wa nton act in causingNo. 1-04-0588

38

LaSa lle to coll ect on the

guara nty , which wo

uld have t he effe ct of abs olving T

rossman o f his contribution obligation, and whether material modifications, without notice to Trossman, to the Wyste ria proje ct rende

red the g uaranty unenfor ceable agains t him. Unde

r these c ircumsta

nces, Judge Henry's reversal of the gr ant of summary judg

ment in counterplaintiffs' favor would not have be en improp er. I

n fact, f or the re asons disc

ussed bel ow, Trossman too is not entitle d to summary judgmen t on the co

untercl aim beca

use of the presenc e of ge

nuine issu

es of fa ct. Moving on to the substantive merits, we note that the parties do not dispute that the right to contribution does not arise unless and until there is a default. I n this respect, they a

re correct. See Kreizelman v. Stevens , 311 Ill. App. 161, 168, 35 N.E.2d 532 (1941) ("no liability may be imposed upon the guarantor unless and until the principal debtor has def aulted ***. *** Plaintiff has not called our attention to a single case nor have we been able to find one where the guarantor has been held liable on his g uaranty unless the pr

incipal debtor was in default"), aff'd , 381 Ill. 73, 76 (1942) ("Ther e must be an allegation in the complaint that the [note] had matured, coupled with an allegation that the principal obligor is in defa ult in order to place a liability on the part of the guarantor" ). As noted, Trossman questioned in the proceedings below whe ther the default had indeed occurred, given that: Ziebart, a senior vice-pre sident at LaSalle, testified that although the interest pay

ments on the loan were late, the loan, to her knowledg e, had never been declar ed in def ault; L ync h, similar ly, testifie d that alth

ough he understo od the loa

n to be in default "for brief periods of time" when the interest and real estate taxes were not timely paid, he admitted t hat, as of the time th

is depositi on was ta

ken in Oc tober of

1996, L aSalle wa s still "funding" the Wysteria loan; and at the time the loan modification agree ment was entered into onNo. 1-04-0588

39

April 1, 1997, each party

to the agreement ratified the Wy steria loan and represented that "the Amended Loa

n Instruments are in good sta nding and remain in full force and effect as so amended ***. Each par ty to this Agree

ment acknowledges that, after giving effec t to this Ag

reemen t, to the be st of his knowledg e no Even t of Defa ult or event which, wi

th the pas sage o f time, the giving of notice , or both, w

ould constitute an Event of Default, has occurred a nd is continuing." Nevertheless, although L aSalle had apparently not formally called the

loan in default and exercised its option to accelerate pay ment, that is not dispositive of the issue of default, as the law looks to the underlying loan agreement for what constitutes a de fault. See Peirce v. Conant , 47 Ill. App. 2d 294, 301, 198 N.E.2d 555 (1964). Accor ding to the terms of the Wyster ia loan, a default occurs if any

payment is more than five days past due. The

record shows that, after Ly nch telephoned LaSalle in late 1994, a nd informed it that no further pay ments would be made on the Wysteria loan absent a written demand, late pay ments (more than five day s past due) were made by TPC on numer

ous occa sions, cor

respondi ng with the fact that La Salle wou ld send its monthly demand letters afte r the due date of each pay ment. Where, as here, a guara ntor unconditionally gua

rantees punctual pay

ment of principal and interest and waives a notice of default , a notice

of the ta king of a ny a ction in c onnection with the l oan, or a ny o ther app licable notice, a s well as waives pr esentme nt and demand, any

failure in making

timely pay ments triggers the guar

antor's obligations. See BA Mortgage & International Realty

Corp. v. American Natio nal Ban k & Trus t Co. of Chi cago , 706 F. Supp. 1364, 1374 (N.D. Ill. 1989) (" As for the unconditional Guaranty itself, it embr aces 'the due and punctual pay ment of the principal ***No. 1-04-0588

15 As noted, although the indemnity a nd contribution agreement provided for cr edit to the in di vi du al sh ar eh ol de rs of TP C f or pa yme nt s m ad e b y PDC , it contained no similar provision with respect to pay

ments made by TPC. 40 [and] inter

est.' T hat mean s any

default in pay ment triggers the [guar

antors' ] obligati on, and in classic guaranty

language they

specifically waived all preconditions to that obligation: 'diligence, presentment, protest, notice of dishonor, [or] demand for pay ment' "); see also LeRoy

State Bank v. J. Keenan's Bank , 337 Ill. 173, 182-83, 169 N.E. 1 (1929) (" A guarantor may impose any terms or conditions on his guaranty which he may c

hoose and will only be liable ac cording to the terms of the agreement. I f he guarantees pay ment unconditionally and pay ment is not made, then he is liable on his guaranty "). Therefore, Trossman cannot claim that the g uaranty wa s not triggered. I

t was triggered eac

h time a payment wa s past due, albeit with respect to that pay ment only , as oppos ed to the e

ntire ba lance of the loan, which, un

der the t erms of the guar

anty in this case, would not be accelerated in the a bsence of an express election by LaSalle to do so. See Phoenix Acquisition Corp. v. Campcore, Inc. , 81 N.Y.2d 138, 141-42, 596 N.Y.S.2d 752, 612 N.E.2d 1219, 1220 (1993). Trossman, nevertheless, maintains that counterplaintiffs are not entitled to contribution because the pay ments to L aSalle, e

ven if ma de in satis faction

of the g uaranty , were ma de by TPC in its corp orate c apacity

and not co

unterpla intiffs in their indi vidual ca pacities

. 15 It is well established that the right to contribution betwee n co-guarantors is based upon pr in ci pl es of

eq ui ty ( Weger v. Robinson Nash Motor Co. , 340 Ill. 81, 94, 172 N.E. 7 (1930); Trego v. Estate of Cunningham , 267 I ll. 367, 373 , 108 N.E. 350 (1915 ); Golsen v. Brand , 75 I ll.No. 1-04-0588

41

148 (1874 ); Harris v. Handmacher , 185 Ill . App. 3d 102 3, 102 6, 542 N.E.2 d 77 (1 989)) , alth ough that rig ht may be modifie d by

contract ( Exchang e Elevat or Co. v. Ma

rshall , 147 Neb. 48, 59, 22 N.W.2d 403, 410 (1946); R. Lord, Williston on Contracts §36:14 (4th ed. 1999)). It has be en said: "The right of contribution is an individual and personal rig ht. It grows out of what the individual himself does. *** Each one pay ing is entitled to recover from the others the amount which he has paid in excess of his own proportionate part. His right to recover is dependent upon the excess which he himself pa ys. I n other words, the act is indiv idual, and t he right of cont ribution is indiv idual." Exch ange Elevator Co. , 147 Neb. at 61-62, 22 N.W.2d at 411. See also Fithian v. Jamar , 286 Md. 16 1, 169, 410 A.2d 569, 573-74 (1 979) (" this righ t tocontribution is an inchoate claim which does not ripen into being unless and until [a coguarantor] pay s more than her proportionate share to [the creditor]"). Counterplaintiffs urge that the right to contribution was trig gered because pay ments made by TPC to L aSalle were made to satisfy the Philipsborns' and Ly

nch's obligations as coguarantors of the Wy steria loan. However, the indemnity and contribution agreement, by its very terms, is triggered when " Clarion and Bartok, Ly nch, A. Philipsborn, T. Philipsborn or Trossman contribu tes in exce ss of its re spective Share of Obliga tions." Although t

he agr eement a lso provides for pro rata attribution of payments made by PDC, it does not contain any provisions regarding the attribution of pay ments made by TPC. Since the indemnity and contribution agreement does not purport to address whe ther payments made

by TPC may

be attributed to theNo. 1-04-0588

42

individual shareholders-guarantors, we must turn to common law for guidance. The law is clear that pay

ments made by a c orporation may not be a ttributed to individual shareholders because corpora tions and shareholders are distinct legal entities. This has been established in Sterling

Radio , upon which Trossman relies. In Sterling Radio , Sterling

Radio Stations, Inc. (SRS), entered into an ag reement with WSDR, Inc. (hereinaf ter, the sellers), to buy a radio s tation in Ste

rling, I llinois. Pursuant to th e agre ement, SRS e xecuted a promissor

y no te to the sell ers, whic

h Alex R. Seit

h, a shar eholder of SRS, gu

arante ed. SRS subse quently defaulted on the promissory note, and Seith refused to pay the note in his capacity a s a guarantor. The sellers sued SRS and Seith in Whiteside County (the Whiteside action), and obtained a judgmen t again st them, joi

ntly and seve rally , in the amount of $77 8,460.38. At about the same time, SRS transferred substantially all of its assets to L H&S Communications, Inc. (L H&S). Seith became the largest shareholder of LH&S's c ommon stock and also held a significant number of

shares o f LH& S's pre ferre d stock. I n respons e to SRS's t

ransfe r of its as sets to L

H&S, the sellers filed a suit in state court. Shortly the reafter, an involuntary

petition under chapter 7 of the United States Bankruptcy Code (11 U.S.C. §§303, 701 et seq . (1994)) was file d again st SRS in the bankr uptcy court. The bank ruptcy trustee chall enged the transf er of SRS's as sets to LH&S as a voida ble pref erence . After l earning

that L H&S ente red into a n agre ement to se ll its assets for $3.25 million, the sellers, with the trustee's support, obtained a temporary restraining order prevent ing L H&S fro m distribut

ing any procee ds from the

sale. The

parties u ltimately agree d to settle their dispute. The settlement agreement provided that L H&S would pay the

sellers $300,000 in satisfaction of the $778,460.38 judgment owed by SRS and Seith, as well as pay theNo. 1-04-0588

43

bankruptcy trustee

$625,000 to settle other debts of the bankrupt entity . Meanwhile, SRS and Seith filed a malpractice suit against the attorney s who had represented them in the Whiteside action that resulted in a $778,460.38 judgment entered ag ainst them. In the malpractice a ction, Seith contended, in pertinent part, that he individually suffered $300,000 in damages when judgment was entered against him in th e Whitesi de suit. S eith argued tha t the $300, 000 LH&S paid in sat isfaction o f the Whit eside judgmen t was actuall y his money because, as an LH&S shareholder, he was to receive be tween $900,000 and $1.2 million in distribution from the sale of LH&S's asse

ts. Sterling

Radio , 328 Ill. App. 3d at 60-61, 63, 765 N.E.2d 56. This court reject ed Sei th's ar gument , stat ing: "[T]he evidence reveals that all of the directors a nd shareholders of LH&S, including Seith, entere d into an agreement with the trustee on behalf of LH&S that L

H&S would satisfy Seith' s judgment in return for the removal of the TRO and th e continu

ation of the sale of

its assets . This $300 ,000 pay ment came out of the assets of the corp oration, not the as sets of the individua

l shareholders. Thus, Seith suffered only a diminution of the value of his shares and not a loss of his person al funds." Sterling Radio , 328 Ill. App. 3d at 63, 765 N.E.2d at 61. This holding reflects a well-established doctrine of the separateness of the shareholders fr om the corporation. See In re Rehabilitation of Centaur I nsurance Co. , 158 Ill. 2d 166, 172, 632 N.E.2d 1015 (199 4) ("A c orporat ion is a legal entity

separa te and dis tinct from its share holders, directors, and of

ficers" ). Under

this doctr

ine, the p ay

ments made

by TPC may

not be impu

ted to counterplaintiffs for the purpose of trigg ering the right to contribution.No. 1-04-0588

44

In re sponse, c ounterpl aintiffs invoke the equitable remedy of reverse piercing the corporate veil. In support, c ounterplaintiffs rely on Crum v. Krol , 99 Ill. App. 3d 651, 435 N.E.2d 1081 (1981), which, in turn, relied on Roepke v. Western National Mutual Insuranc e Co. , 302 N.W.2d 350 (Minn. 1981). In Crum , this cour t noted tha

t "the do ctrine o f corpor

ate separation 'is a legal theory used for the convenience of the business world' " and " 'cannot be extended t o a point beyond it s reason and p olicy.' " Crum , 99 Ill. App. 3d at 662, 435 N.E.2d at 1089, quot ing Wikelund Who lesale Co . v. Tile Wor ld Factory

Tile Ware

house , 57 Ill. App. 3d 269, 272-73, 372 N.E.2d 1022 (1978). Both Crum and Roepke recognized the fairness of allowing an "insi der" to

pierce the corp orate ve il from wit hin the corporation under a ppropria te circumst ances—w hich woul d allow the

court to tr

eat the " insider" and the c orporat ion as a si ngle entity, i.e. , impute the corporation's injury and/or expenditures to the insider individually. A court may re

verse pierce the corporate ve il when (1) an insider owns all, or substantially all, of the stock ; (2) the i

nsider tr eats the propert y a s his own; a

nd (3) no sharehol der or creditor w ould be adversely

affected. Roepke , 302 N.W.2d at 352. Counterplaintiffs urge that TPC—unlike the LH & S corporation in Sterling Radio , where the court did not consider the reverse piercing remedy—is susce

ptible to reverse piercing the corpor ate veil because counterplaintiffs collectively own 100% of TPC's stock. It appears that the othe r requirements for reverse pier cing are met: namely , that counterplaintiffs collectively treat TPC as their own property , and no creditors would be adversely affected if Trossman were to pay contribution. Trossman points out that counterplaintiffs did not ask in their pleadings to reverse pierc e the corporate veil. Trossman argue s that they are now barred from asserting this doctrine, citingNo. 1-04-0588

45

in support to Bevelheimer v. Gierach , 33 Ill. App. 3d 988, 992, 3 39 N.E.2d 2 99 (1975) ("A corpora tion is an e

ntity separa te from it s shareholders a nd one who

seeks to have the c ourt appl y an exception must seek that relief in his pleading and carry the burden of proving actual ident ity"). In ot her wor ds, t he part y seeking t o appl y the exce ptio n mus t all ege in h is pl eadin gs facts sufficient to form a basis for disrega rding separate corporate

identity. See South Side Bank v. T.S.B. Corp. , 94 Ill. App. 3d 1006, 1010, 419 N.E.2d 477 (1981). I t is true that neither the amended counterclaim nor the exhibits attached thereto, which we re copies of the guaranty

and the indem nity and contr

ibution ag reemen t, gave any indication that cou

nterpla intiffs wo uld ask th e ci rcu it cou rt t o t rea t t he p ayme nt s m ade by TP C as if t hey w ere mad e by c oun ter pl ain ti ffs . In fact, the amended counterclaim g ave an impression that the pay ments on the guaranty

were made by counterplaintiffs individually . Nevertheless, in the course of the procee dings below, it was quickly broug

ht to the court's attention that the pay ments at issue were made by TPC. Counterp laintiff

s maintained in the c ourse of the proc eeding s below tha t they were e ntitled to contribu tion beca use they regar ded TPC' s money

as their own money . Under t hese circumstances, Trossman waived the pleading deficiency

by failing to r

aise it in the lower court proceedings and, instead, addressing the issue of attribution of TPC's pay ments on the merits. See Williams v. Alfred N. Koplin & Co. , 114 Ill. App. 3d 482, 486, 448 N.E.2d 1042 (1983) ("While d efenda nts asser t that this is

a new the ory

not plead ed in the t rial cou rt, any objectio n to the lack of specificity

in pleading this allegation has been waived by defendants' failure to object below whe

n the facts to suppor

t this theor

y w ere ra ised in pla

intiff' s affida

vit and spe cific argument was made to the trial court on this basis by plaintiff in opposition to defendants' motionNo. 1-04-0588

46

for summary judg

ment"). Even if Trossman did not waive the pleading de ficiency, " [t]he Code of Civil Procedure provides that technical defects in pleading s should not prevent the courts from doing just ice between th e parties." Ragan v. Columbia Mutual Insuranc e Co. , 183 Ill. 2d 342, 354, 701 N.E.2d 493 (1998), citing 735 IL CS 5/2-1005(g) (West 1994) (pleadings may be amended at any

time after judgment to conform the pleadings to the pr oofs), 735 IL CS 5/2- 612(c) (West 1994) (defects in form or substance of pleadings not objected to at trial are waived), and 735 IL

CS 5/2-603(c) (West 1994) (pleadings are to be liberally construed to do substantial justice between the parties). I ndeed, in Crum , although Crum's pleadings suffer ed from the same deficiency as those of counterplaintiffs, the trial court reverse pierced the corporate veil to achieve justice between the parties. Crum , 99 Ill. App. 3d at 659, 435 N.E.2d at 1087. Howeve

r, even t hough c ounterpl aintiffs

are not preclude d from att empting at this juncture to establish a case for reverse piercing of the TPC corporate veil, it cannot ava il them under the pronounc ement of

our supre me court in Centaur , 158 Ill. 2d at 173-74, 632 N.E. 2d at 1018, as recently

reaffirmed by

our supreme court in Forsythe v. Clar k , No. 101570 (Ill. Feb. 16, 2007). In Centaur , our supreme court stated:

“‘Generally , the corporate veil is never pierced f or the benefit of the corporation or its stock holders ***.’ (18 Am. Jur. 2d Corporations § 45, at 846 (1985)). And, as another source, in noting that re verse piercing (where

the parent company asse

rts that the subsidiary is not really a separate entity

) is not favored,No. 1-04-0588

47 states: ‘[T]he rules relating to piercing of the corpor ate veil are designed to protect those re lyin

g on the existence of a distin

ct corporate en

tity ***.’ 18 C. J. S. Corporations § 12, at 282 (1990). We agree with these statement of law and do not e xpand the doctrines of alter ego and piercing

the corporate veil to include a subsidiary ’s bringing an action against its parent corporation. As one cour t has noted: ‘[T]he ge neral la w mandate s that the p iercing of a cor porate v eil must neve

r be made to the benefit of the corpor ation or it s shareholders. It is troublesome, in this court’s view, to a llow a corpora tion, thro ugh its tr ustee, to pierce its own vei l since it would have the effect of deny ing the corporation of its own corporate existence.’ ( In re Dakota Dr illing, Inc . (D. N.D. 1991), 135 Bankr. 878, 844).” See Centaur , 158 Ill. 2d at 173-74, 632 N.E. 2d at 1018. This statement explicitly rejects the use of re verse piercing from within to benefit the corporate subsidiary

or the corporate shareholders. I n its response to this petition for rehearing filed by the plaintiff in this cause, c ounterplaintiffs would encourage this court to confine the holding in Centaur

to narrow facts. Those fa cts involv e an atte

mpt by the insur ance liq uidator to pierce the corp orate ve il betwee n the insur

ance company

and its pa

rent, B org War

ner, in or der to reach t he asset s of its par

ent corp oration. Howeve r, counte rplaintif fs offe r little if any rationa le to distinguish between an attempt by a subsidiary throug

h the rehabiliator to reach the assets ofNo. 1-04-0588

48

the parent as opposed to a similar action by shareholders albeit to recover for a dvances made by the corporations, to satisfy the suretyship obligation. The repudiation by our

supreme court of reverse pierc ing as acceptable application of the piercin g of the corpora te veil do ctrine w as vigor ously reaff irmed by our supre me court in its recent decision in Forsythe . There, plaintiff, an employ ee of a refinery

owned by a subsidiary

of the defendant, was killed by a fire on the job for which his estate receive d a workman’s compensa tion awar d from his e

mploy er. His e state the

n sued de fendant , the par ent of his employ er, for neglig ence un

der a “d irect pa rticipan t theory ,” alleg ing that the pare nt direc tly controlle d the unde

rly ing act ions of its s

ubsidiar y, w hich negligently

caused t he subsidi ary

to forego safety

requirements which would have prevented the de cedent’s demise. The parent soug ht, a mong other def ense s, to p ierc e the

veil b etwe en it a

nd itssubsi diar

y s o as to immun ize itself from liability under the exclusive remedy provision of the Workman’s Compensation Act (820 I LCS 305 /5 (West 200 3)). I n rejec ting the

parent c ompany ’s attemp t to pierc e the cor porate veil of its subsidiar y, o ur supre me court stated: “In essence , defend

ant is req uesting that it be a

llowed to p ierce it s own cor porate veil in order to avoid liability. Illinois courts have consistently expressed reluc tance for allowing such a practice. See Centaur , 158 Ill. 2d at 173-74 (citing with approva l the principle that the general law mandate s that piercing must never be made in favor of a corpora tion or its sharehol ders); Main Bank of Chicago v. Bake r , 86 Ill. 2d 188, 206, 427 N.E.2d 94, 102 (1981) (stating that a party ‘cannot assert the equitable doctrine of piercing the corporate veil to disreg ard the separate corporate e xistence of a corporationNo. 1-04-0588

49

he himself created to gain an adva ntage which would be lost under his present contention’); see Hughey v. Hoffman Rosner Corp ., 109 Ill. App. 3d 633, 636, 440 N.E.2d 10 49, 1051 ( 1982); Schmidt v. Milburn Brothers Inc ., 296 Ill. App. 3d 260, 267, 694 N.E.2 d 624 (199 8). The a ppellate court in th

is case r ecogn ized this poi

nt when it rejected defendant’s attempt ‘to have its ca ke and eat it too: asserting, on the one hand, that it was merely a

shareholder in arguing that it owed no duty to the decedents, while at the same time, atte mpting to invoke the

Act’s g rant of im munity by c haract erizing itself as the decedents’ employ er.’ 361 Ill. App. 3d at 651-52.” Forsythe , No. 101570, slip. op. at 8-9 (Ill. Feb. 16, 2007). Even if the holdings in Centaur and Forsythe

were narrowly

restricted to their specific facts, as urged by counterplaintiffs, the quoted broad-based and explicit rejection of re verse piercing by our supreme court in Centaur as reaffirmed in Forsythe must be followed. See Cates v. Cates , 156 Ill. 2d 76, 80, 619 N.E.2d 715, 717 (1993) (“[A]n expression of opinion upon a point in a case argued by

counsel and deliberately

passed upon by the c ourt, though not essential to the disposition of the cause, if dictum , is a judic ial dictum (See Scovill Manufacturing Co v. Cassidy , 275 I ll. 462, 470

(1916); Rhodas v. Chicago & Alton R.R. Co. , 227 I ll. 328, 337(1907); Law v. Grommes , 158 Ill. 492, 494 (1895); see also 21 C.J.S. Courts § 142 (1990) (such dictum should be consid ered a j udicial dictum as distinguished from a mere obiter dictum )). *** [A] judicial dictum is entitle d to much w eight, a nd should b e followe d unless f ound to be

errone ous. [Citations]. Even obiter dic utm of a court of last resort can be tantamount to a dec ision and therefore binding in the absence of a contrary

decision of that court.”)No. 1-04-0588

50

Thus, without having an available remedy in reverse piercing, the holding in Sterling Radio as applied by the tria l court controls. Consequently, the cor porate pay

ments advanced by TPC cannot trigger a right of contribution on behalf of the counterplaintiffs, and the judgment of the circ uit court i n that re gard, preclud

ing the c ounterpl aintiffs ’ action seeking contribu tion, must be affirmed. See Bevelheimer , 33 Ill. App. 3d at 992, 339 N.E.2d at 303. We furthe

r note tha t even if revers e pierc ing woul d otherwise have been an availab le remedy in I

llinois, the right of counterplaintiffs to contribution would remain questionable and necessitate a remand. Trossman would be fre e to contend on remand that counterplaintiffs’ right to contribution could be defeated by their inequitable conduct towards their cosurety

. Although Trossman voluntarily dismissed count VI of his complaint, which alleged that counter plaintiff s breached an or

al agr eement to keep the LaSa lle loan in good sta nding, these allega tions, pur suant to Judg e Bartk owicz's order of Novembe

r 3, 2003, are ava

ilable to Trossman as affirmative defenses to the counter claim. Accordingly , if Trossman is correct, as he repeatedly

argued below, that there was a n understanding reached in late 1990, bef ore he signed the guaranty , between himself and TPC, PDC, the Philipsborns and Ly nch, pursuant to which TPC would channel f

unds to PDC to

make all r

equired pay ments in connection

with the Wy

steria project to keep the LaSalle loa n in good standing, that understanding could serve as an affirmative defense precluding reverse piercing if re

verse piercing were othe

rwise available. See Restatement of Res titution §81 , at 360 (1 937) (" a person who has di scharg ed more t han his proportionate share of a duty owed by himself and a

nother *** is entitled to contribution from the other, except where the pay or is barred by

the wrongful nature of his conduct")

.No. 1-04-0588

51

The Resta tement of Security further explains: "The right to contribution depends upon equitable principles. If the conduct of a cosurety

is responsible for increasing the ultimate liability of another cosuret y, i t would be

inequita ble to allow him to re cover a s much as would otherwis e have b een allowed. Cond uct which will redu ce the a mount a co surety can recover is not necessarily fraudulent. The motives of the cosurety may be honest an d ye t the eff ect of hi s conduc t may

be to red uce the a mount othe

rwise availab le to the c

reditor. " Restat

ement of Security §161, Comme

nt a , at 448 (1941). See also R

estateme nt of Secu

rity § 161, at 4 48 (1941) : "Where the conduct of a surety causes the default of the principal or cosure ty or decreases the amount that would otherwise have be en available from the principal or a cosurety, his rig

ht to contribution from the cosureties is proportionately diminished." In In re Estate of Koc

h , 148 Wis. 548, 134 N.W.663 (1912), the Supreme Court of Wisconsin noted that

the fore going

principle s "are so well entrenched, as of legal as well as equitable cog nizance, that modern text-writers turn the matter off by the mere statement that 'the right to contribution may be destroy

ed *** by the fa

ult of the party who c auses the loss toward which he seeks cont ribution from his co- obligor.' 9 Cyc. 804." Estate of Koch , 148 Wis. at 560, 134 N.W. at 668. More specifically , the court in Estate of Koch stated that, especially

where a cosurety

is anNo. 1-04-0588

52

officer of the principal corporation:

"both in law and equity , a cosurety is a quasi trustee for his associates of all special advantages he ac quires from the principal debtor *** for the benefit of the bearers of the common burden, with all the duties incident to such rela tion. *** He is li able for

loss proxima

tely caused t o his assoc iates by

failure to honestl

y and with r

easonab le care

perfor m his leg al duty

to his asso ciates, —to reas onably conserve his special advan tages for the com mon benefit ***." Estate of Koch , 148 Wis. at 560, 134 N.W. at 668. And: "If he dishonestly or negligently

rendered the primary

source for discharging guaranteed debts insufficient there for, he breached his duty to his cotrustee and incurred the legal, equitable and mora l liability to lose his inchoate right of contribution. There is no rule better established in the law of suretyship than that, the cosurety whose wrongful conduct causes default, rendering resort to the guaranty necessary, and producing loss to the sureties, cannot have contribution, so far as the loss was thus produced ." (Emphasis added.) Estate of Koch , 148 Wis. at 568, 134 N.W. at 671. Counterplaintiffs have denied ever reac hing any understanding with respect to having TPC shield the individual guarantors from exposure to personal liability –thus raising an issue of fact as to what understanding was re ached, if any , outside the four corners of the indemnity and contribution agreement. Counterplaintiffs, however, ha ve asserted below that the existence ofNo. 1-04-0588

53

such an understanding is irrelevant in the fac e of the parol evidence rule, which would pre clude any such ora

l understanding from modify ing the written terms fo the indemnity and contribution agreement. Contrary

to counterplaintiffs’ contention, an oral commitment, even if not contractually binding , may form a ba sis for estoppel. See Dickens v. Quincy Colleg e Corp ., 245 Ill. App. 3d 1055, 1062, 615 N.E.2d 381 (1993) (wher e an oral contract is unenforcea ble under the statue of frauds, the defense of equitable estoppel is nevertheless available and requires the plaintiff to plead a

nd prove misrepre sentation

on the par

t of the de fendant

); Fields v. General Motors Corp ., 121 F. 3d 271 (7 th Cir. 1997)(where an alleg ed oral c ontract

was unenforcea

ble due to the running of the statute of limitations, the court could still consider the defendant’s statements insofar as they pertained to equitable considerations implicated in the case). In this context, the end result of the operation of estoppel would be the denial of contribu tion. See R . Lor

d, Williston on Contracts §61:64, a t 234 (4th e d. 1999) (

the rig ht to contribu tion may be defe ated by

"some c ontract

betwee n [the par ties] or some equita

ble consider ation") ; Ayer v. Tilton , 42 N. H. 407 , 417 ( 1861) , quot ing Peck v. El lis , 2 Johns. Ch. 136, ___ (" 'a court of law will sustain an action for contribution between two *** sureties under an implied assumpsit arising from the general principle that equa lity is equity . But contribution betwee n wrong doers wil l not be enforced ' "); Morgan v. Morgan , 158 Ky. 830,166 S.W. 602 (1914) (a surety

who misleads his co-surety in a respect that prevents the co-surety from protect ing himse lf from lo ss may be estopp ed from c laiming c ontribution); Miln er v. E skrid ge , 62 Colo. 430, 439, 163 P. 1115, 1117-18 (1917) ("The doctrine of contribution between sure ties rests on principles of equity, a nd will be applied only when it ac cords with justice. To allowNo. 1-04-0588

54

defenda nt in error, who ind

uced, or aided in i nducing , the plai

ntiff in e rror to le nd his cre dit to the other signers of the note, which rec ited a deposit of accounts, and also, that stock was to be put up as c ollatera

l, to rec over on the note thu s signed , after having turned ba

ck the se curity

to the company for

its and his benefit, would be rank injustice"). However, since reverse pier cing is not an available remedy in Illinois, the judgment of the circuit c ourt deny

ing cou nterpla intiffs r ight to se ek contr

ibution fr om the cou

nterdef endant is affirmed outright without the necessity of a remand. Nevertheless, we conclude that an evidentiar y hearing is necessary

with respect to the award of attorneys fees. We note that the parties disagree a s to whether, under such circumstances, an evidentiary hearing on attorney

fees and costs is a matter of right. Counterplaintiffs contend that an evidentiary hearing is required and failure to conduct one constitutes reversible error. I n support, counterplaintiffs rely on, among other cases, Bank of America National Trust & Savings Ass' n v. Schulson , 305 Ill. App. 3d 941, 952, 714 N.E.2d 20 (1999), and Lasday

v. Weiner , 273 Ill. App. 3d 461, 467, 652 N.E.2d 1198 (1995)—both holding that the f ailure to conduct a

n evident iary hearing on attorney

fees an d costs constituted r

eversib le error. Trossman, on the other hand, arg ues that an evidentiary

hearing on a petition for attorney fees and costs is not required under Illinois law. In support, Trossman cites to Raintree Health Care C enter v . Illin ois Hu man Ri ghts C omm'n , 173 Ill. 2d 469, 494-95, 672 N.E.2d 1136 (1996), Amadeo v. Gay

nor , 299 Ill. App. 3d 696, 705, 701 N.E.2d 1139 (1998), Heritage Pullman Bank & Trust Co. v. Carr , 283 Ill. App. 3d 472, 481-82, 670 N.E.2d 814 (1996), and Aroonsakul v. Flanagan , 155 Ill. App. 3d 223, 229, 507 N.E.2d 1 (1987), abrogated on other grounds by HarrisNo. 1-04-0588

55

v. Harr is , 196 Ill. App. 3d 815, 555 N.E.2d 10 (1990). Our review of the foregoing cases indicates that, indeed, there appea rs to be a conflict of authority as to this issue. However , the cases cited by Trossman involve exceptions to the general rule that an evidentiary hearing should be held. I n Amadeo , the nonmovant obje cted to the reasonableness of the fees and c osts, which were listed in itemized billing statements. The trial court considered t hose object ions and rul ed on the reaso nableness o f the fees "line by line." This cour t held tha t, under t he circ umstance s, the nonm

ovant "was give

n a suffi cient opp ortunity to be heard." Amadeo , 299 Ill. App. 3d at 704, 701 N.E.2d at 1145. I n both Carr

and Aroonsakul , the fee petitions were supported by affidavits of the attorney s, which were unrebutted by the opposing party. See Carr , 283 Ill. App. 3d at 481, 670 N.E.2d at 820; Aroonsakul , 155 Ill. App. 3d at 229, 507 N.E.2d at 5. Finally , Raintree was an appeal from the decision of the Illinois Huma

n Rights Co mmission, a

nd the pet ition for a ttorney fees in that case was governed by

the Commission's rules. Raintree , 173 Ill. 2d at 494, 672 N.E.2d at 1147-48. The supreme court in Raintree , further noted that, in general, the circ uit court may awa

rd attorney fees an d costs wit

hout an ev

identiar y he aring i f the pet

ition was s

upported by s ufficie ntly detailed submissions, so long as the opponent was not denied opportunity to present evidence. However, in Schulson , which, of the authorities cited, offers the most comprehensive treatment of this issue, this court distinguished Raintree and held that when the nonmovant asks for an evidentiary

hearing, provided there exists a genuine f actual dispute as to the reasonableness of the fees and costs, he is e ntitled to one: "Defendants argue

that the fees should not have been awarded w ithout anNo. 1-04-0588

56

evidentiary he aring ***. The bank responds that attorney fees may be awarded without an evidentiary he aring when affidavits and detailed billing she ets are submitted to the trial court. The bank relies on Raintree Health Care Center v. Illinois Human Right s Com m'n , 173 Ill. 2d 469, 494, 672 N.E.2d 1136 (1996). Raintree is not on point. In Raintree , our supreme court reviewed attorney fees awarded by

an administrative law judge for the Human Rights Commission. The court acknowledged that, under some circ umstances, attorney

fees may be calculated without an evidentiary he aring. But the issue in Raintree was governed by the Commission's rules, which did not require an evidentiary hearing. Raintree , 173 Ill. 2d at 494. Defendants presented detailed objections to the fee petition and a written request for a he aring. The rea sonableness of fe es is a mat ter of pr oof, and a party ordere d to pay

attorne y f ees has t he righ t to conduc

t meaning ful cros sexamination on the issue. Fried v. Barad , 187 Ill. App. 3d 1024, 1030, 543 N.E.2d 101 (1989 ); 6334 Nort

h Sherida n Condominiu

m Ass'n v . Ruehle , 157 Ill. App. 3d 829, 834, 510 N.E.2d 975 (1987). When a party who must pay attorney

fees asks for an evidentiary

hearing, he is entitled to one. In re Support of Burks , 100 I ll. App. 3d 70 0, 706, 427N.E.2d 95 3 (1981); People ex rel. Holland v. DeMichael , 79 Ill. App. 3d 9 74, 981, 39 8 N.E.2d 11 38 (1979)." Schulson , 305 Ill. App. 3d at 952, 714 N.E.2d at 28.No. 1-04-0588

57

We believe that, generally, in protracted litigation involving multiple complex issues, an evidentiary he aring should be conducted upon the request of the losing party, espe cially if the prevailing party

was represented by

multiple attorneys—which may have resulted in duplicative charg es—and w

here the prevail ing par

ty w as entitle d to fees

and costs with resp ect to some claims, but not others. Trossman, relying on Berlak v. Villa Scalabrini Home for the Ag ed, Inc. , 284 Ill. App. 3d 231, 238, 671 N.E.2d 768 (1996), counters that whe re a party is entitled to fees and costs with respect to some claims and not others, the party may rec over fees expended even with resp ect to non

covere d claims, s o long a s those cl aims aris e out of a common core of fa

cts and related legal theories. I n Berlak , however, the circuit court held an "e xtensive" hearing on the fee petition. Berlak , 284 Ill. App. 3d at 242. Trossman further c ites to Hensley v. Ec kerhart , 461 U.S. 424, 435, 76 L. Ed. 2d 40, 51-52, 103 S. Ct. 1933, 1940 (1983), where the Supreme Court stated that, where fees were incur red for both covered and non-cover ed claims, "the district court sho uld focus on the sig

nificance of the

overall relief o btained by th e plaintif

f in rela tion to the hours reasonably

expended on the litigation." However, the Supreme Court in Hensley quali fied t hat st ateme nt, ex plain ing:

"In some case s a plaintiff may pre sent in one lawsuit distinctly different claims for relief

that are based on differe nt facts a nd lega l theorie s. In

such a sui

t, even where the claims are broug ht against the same defendant *** counsel' s work on one claim will be unrelated to his work on another claim. According ly, work on an unsuccessful claim cannot be deemed to have been 'expended in pursuit of the ultim ate result ach ieved.' " Hensley , 461 U.S. at 434-35, 76 L. Ed. 2d at 51,No. 1-04-0588

16 After the original opinion in this cause was issued, a petition for rehe aring was filed. One of the members of the original panel, who c oncurred in the original opinion was compelled to recuse because of an intervening event which occurred after the original opinion was issued and Justice Fitzgerald Smith was designated to substitute. He has read the orig inal opinion, along with the record, briefs, petition for re hearing, and all other submissions of the parties as well as listened to the tape of the oral argument. 58 103 S . Ct. at 194 0, quo ting Davis v. County of Los Angeles , No. 73-6 3-WPC (C.D. Cal. 1974). Thus, contrary

to Trossman's assertion, the Supreme Court did not suggest that, in such a situation, a court may

make its de

terminat ion in a sum

mary fashion. Rather, t

he decis ion in Hensley indicates the opposite—that fee determinations in complex cases should only be made after c areful

weighi ng of a ll pertine nt eviden ce. We ha

ve revie wed the c ontention s of the pa rties, as wel l as th e recor d, wit h resp ect to the fee s award ed to T rossm an and note t hat Tr ossm an's attorney fe es and costs have exceeded those of counterplaintiffs by more than a factor of four, which furth er und erscor es the need fo r an evi denti ary hearin g. For the r easons se t forth ab ove, we a

ffirm the judgmen t of the c ircuit co

urt with r espect t o the count erclaim of counte rplaintif fs for c ontribution, and re mand for further procee dings wi

th respect to the award of attorney s fees. Affirme d in part a

nd reman ded in par t. 16 CAHIL L, J., and FI TZGERALD SMI TH, P.J., concur.