## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Wells v. St. Bernar d Hospital, 2013 IL App (1st) 113512

Appellate Court Caption SAL L I E WEL L S, as Administrator of the Estate of J u an i t a Wells, dece ased, Plaintiff-Appellant, v. ST. BERNA RD HO S P I TAL
, SUNT WANA, M.D., EUGENE CHUKEDEB ULU, M.D., ADEL ZAYYA D, M.D., M I NE TTE M. LUCRO, R.N., and CATHERI NE MONCLAR, M.D., Def

endants (Steinberg
, Polacek and Goodman, Att o r n e y s f o r Sallie Wells, Appellee).

District & N o. First District, Six th Division
Docke t No. 1-11-3512

Filed Marc h 29, 2013

Held (Note : This syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an appea l from the settlement of a wrong ful death and survival action in which plain tiff’s counsel was awa rded enhanc ed fee s pursuant to section 2-1114 of the Code of Civil Procedur e, the denial of p l aintiff’s section 2-1401 petition to vacate the awa rd of enhanc ed fee s was upheld

over plaintiff’s contentions that an evidentiar y hearing was not held and that the trial judge applied the wrong standard, since plaintiff waived an evidentiar y hearing by faili n g t o p re sent any evidenc e at the hearing on the petition that would ref ute counsel’s claim that extraordinary service s

wer e perf ormed and enhanc ed fee s wer e war rante d, and further
, the result would have been the same, even if t h e aw ard wer e revie wed under an abuse of discretion standa

rd, rather than the section 2-1401 standa rd.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 08-L -5863; the Hon. Wil liam D. Maddux, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Robert F. Har ris, Public Guar dian, of Chicag o (Ch ar l es Perez Golbert, Kass A. Plain, and Ma

ry Brigid Ha

yes, of c ounsel), guardia

n ad litem

.

Br uce D. Goodman and Br adley D. Steinberg
, both of Steinberg
, Polacek & G oodman, of Chicag o, for a ppellee.

Panel J USTI CE GORDON delivere d the judgme nt of the cour t, with opinion.
J ustices Hall and Re yes conc urre d in the judgme nt and opinion.

OP INION

¶ 1 After plaintiff Sallie Wells’ adult daughter, J uanita Wells (dec edent)
, died at def endant St. B erna rd Hospital, plaintiff reta ined counsel to f ile a wrong ful death and survival action
ag ainst St. Be rnar d and the health providers for their car e and treatment of dece dent, arguing that defe ndants’ medical malprac tice cause d d e c e d e nt’ s wr o n g f u l d e ath. The case settled, and plaintiff’s counsel petitioned the trial court for enhanc ed attorney fee s pursuant to section 2- 1114 of the C o d e o f C i v il Procedur e (735 I L CS 5/2-1114 (West 2008)). The trial court g rante d counsel’s pe tition and awarded plaintiff’ s counsel $56,850 in enha nced f ees. ¶ 2 Four months afte r the trial court awa rded the enhanc ed fee s, Dr. Geof fre y Shaw, a boardcer tified psychiatrist, ex am i n ed plaintiff and deter mined that she suffe rs from a “major
psychiatric illness ( most likely [s] chizophrenia)” and is developmenta lly disabled and thus was disabled at the time of the se ttlement and the petition for e nhance d fee s. The office of the public guardia

n (her eaf ter Public Guar dian) was appointed as the temporar y guardia n of plaintiff, and the court decla red her to b e a disabled person. The Public Guar dian filed a section 2-1401 petition to vacate the enhanc ed fee awa rd, arguing that plaintiff lacke d the
capa city to consent to her coun s el ’s p etition for enhanc ed fee s. 735 I L CS 5/2-1401 (West 2008). The tr ial court de nied the petition, and this appea l followed. We aff irm.

¶ 3 BA CKGROUND ¶ 4 I . The Wrong ful Death and Survival Action ¶ 5 Plaintiff Sallie Wells g ave birth to two children: Michae l Wells (Michae l), born in 1968, and the dece dent, J uanita Wells. Both children wer e adults at all rele vant times during the 1
events of this c ase. Both children wer e taken from plaintiff at birth and place d into a foster

car e sy stem. Michae l was raised by J ulia Mayes (Jul ia), his aunt and plaintiff’s sister, and the dece dent was raised by Estelle Whit e, a family friend. Plaintiff rec eives only public aid and social sec urity

disability

.

J uan it a W el ls ’ a ge is notcon ta ine d i n t he r eco rd in thi s c ase

. 1

-2 -¶ 6 On M ay 2 9
, 2 0 0 6
, the dece dent was taken to St. Be rnar d Hospital by ambulance and

hospitaliz ed, complaining of chest pains. There was an issue as to whether the onset of her
sy mptoms was cause d by a suicide attempt. Dec edent passed awa y two day s later during her hospitaliz ation. On J uly 10, 2006, plaintiff signe d a reta iner agree ment with attorney J ames Gumb i n er , to repr esent her in a medical malprac tice claim ag ainst defe ndants for their
neg lige nt ca re and treatment of dece dent during her hospitaliz ation at St. Be rnar d. The
agree ment included a fee structure clause
, wher eby Gumbiner would rec eive “[t] hirty three and one-third (33/1/3) perc ent of the first $150,000 [recover ed], twenty five (25%) perc ent of the next $850,000 of the sum rec overe d, twenty (20%) perc ent of any additional amount

over $1,000,000 of the sum rec overe d.” Fur thermore
, the agree ment stated that “[t] he court may revie w conting ent fee arr ang ements for fairne ss. In specia l circ umstances, wh ere an attorney perf

orms extraordinary service s involving more than usual participation in time and eff ort the attorney m ay ap p l y to the court for approva l of additional compensation.” The
agree ment also included a provision which states that Gumb i n er “m ay associate other attorney s with him in the prosec ution of this case , if, in his judgme nt, it would be benef icial to the case to associate w ith other attorney s.” The a g ree ment further stated: “[I ]n the event work is done on [the] case by such other attorney s, the other attorney s will be compensa

ted either by direc t pay

ment by Mr. Gumbiner on an hourly basis or by

rec eiving a perc entag e of the fee

. In no event will [pl aintiff] be require d to pay any fee s to such other attorney s direc tly
, or in excess of the amounts ref err ed to in this Agree ment. There will be no extra charg e for the service s of such other attorney s; the other attorney s will be paid from the f

ee r efe rre d to above.” ¶ 7 Gumbiner ref err ed t h e ca s e t o t he law firm of Steinberg
, Polacek & Goodman, now known as Steinberg
, Goodman & Kalish (SGK, the appellee s in this appea l). The defe ndant health car e providers are not parties to this appea l. In May 2008, prior to filing the complaint, SGK petitioned the probate division t o appoint plaintiff as the admini strator of dece dent’s estate, which was grante d. 2 ¶ 8 On May 29, 2008, plaintiff filed the complaint for medical malprac tice in the circ uit court of Cook County

. On Fe bruar y 19, 2009, afte r defe n d an t s s ub poenae d dece dent’s prior medical rec ords, plaintiff filed a motion for a protec tive order to prev en t t h e rec eipt, disclosure, use, or dissemination of dece dent’s mental health rec ords, pursuant to the Mental Hea lth and Deve lopmental Disabilities Confidentiality Act (Mental Hea lth Act). 740 I L CS 110/1 et seq. (West 2008). The motion stated that dece dent had rec eived mental health car e from numerous health car e providers prior to her hospitaliz ation on May 29, 2006. Plaintiff
argued that dece dent’s mental health rec ords wer e privileg ed, beca use the Mental Hea lth Act
p ro h i b i ts the nonconsensua l disclosure of mental health rec ords except under cer tai n circ umstances. Plaintiff argued that no such circ umstances exis ted in this case

. On J une 16, 2009, the trial court held a hearing on plaintiff’s motion and g rante d the protec tive order afte r SGK revie wed a ll of the rec ords and f ormulated objec tions to t heir use.

Att orn ey Rona ld K al is h te st if ie d dur ing his dis covery dep osi t ion tha t the om is si on of 2 Mi cha el fr om

th e pe ti ti on a s a n he irwas a “ typograph ic al error .”

-3 -¶ 9 On Marc h 4, 2010, plaintiff filed a petition to approve a settlement in the case in the trial

court in exchang e for a re l ea se of all claims for $825,000. Plaintiff rec eived 96.37% and Michae l rec eived 3.63% of the ne t settlement. ¶ 10 The pe tition also i ncluded a reque st for enha

nced attorney fee s of $56,850, pursuant to section 2-1114(c ) (735 I L CS 5/2-1114(c) (West 2008)). Under the medical malprac tice statute, attorney s may rec over fee s of one-third of the first $150,000 of the awa rd and one

fourth of the next $850,000. Section 2-1114 allows an a ttorney to rec oup additional fee s if “an attorney perf

orms extraordinary service s involving more than the usual participation in time and ef

fo rt

. ” 7 3 5 I L CS 5/2-1114(c) (West 2008). The petition stated that the specia l circ umstances meriting enha nced f ees inc lude but are not limi ted to the following : “the difficulty in prosec uting the case , the nature of the defe nses to the case , th e difficulties in obtaining a favor able medical revie w as to the l iability issues involved,

cre ating the opportunity to settle the case at this time without further delay

. In particula r, this case involved unique issues of privileg e under the I llinois Mental Hea lth Act which

wer e vigorously litigated and resear ched over a period of approximately one y ear

. *** In connec tion with this issue, Pla intiff’s counsel revie wed persona lly approximately twenty -five thousand pag es of medical rec ords from approximately thirty differ ent admissions to various hospitals in the Chicag oland are a. *** The eff ects o f t h es e extraordinary eff

orts by Plaintiff’s counsel had a positive eff ect on the settlement value of the c ase.” The petition reque sted that attorney s Gumbiner and SGK, in exchang e for t h ei r s er vices, sho u l d re ce i ve fee s of $275,000, or one-third of the total settlement amount. The petition stated that plaintiff had been made awa re of the circ umstances of the case and agree d that fee s of $275,000 wer e fair i n light of the s pecia l circumstanc es re quired by the case. After
pay ment of fees, ex penses, and the I llinois Depa rtment of Healthcar e and Family Service s public aid lien, plaintiff rec eived $513,154.08 and plaintiff’s son Michae l recei ved $29,947.50. Attache d to the p et i t i o n wa s a statement signe d by plaintiff and Michae l

asser ting they had rea d and approve d the sett l em en t petition, including the provision for enhanc ed fees. Also at t ac hed to the s ettlement petit ion was a list of enumerated expenses, totaling $3,898.42. ¶ 11 That same day
, Marc h 4, 2010, the trial court enter ed an order approving the settlement. The trial court found that the settlement amount was fa ir and re asonable , that the attorney s

wer e entitled to enhanc ed fee s of $56,850, which made a total fee of $275,000, and reimburse ment of expenses of $3,898.42. The trial court approve d apportionment of 96.37% to plaintiff and the ba lance of 3.63% of the settlement to Michae l.

¶ 12 I I . Petition t o Vac ate Enha nced F ees ¶ 13 On May 12, 2010, plaintiff’s sister and the aunt who raised Michae l filed a petition in the probate division seeking that Michae l be adjudg ed a disabled person. Dr . Fr ance s Wong, a licensed phy sician, examined Michae l and executed a written repor t finding that Michae l is diagnosed with “mental reta rdation.” Dr. Wong’s repor t opined that Michae l can perf orm “ac tiviti es of daily living independe ntly
, but require s others to help him with critica l thinking

-4 -d ecisions” and “nee ds supervision with financ ial decisions.” The probate judge found

Michae l a disabled pe rson and a ppointed his aunt as his guardia n. ¶ 14 The probate judge also ap p o i n t ed an attorney to serve as guardia n ad litem (GAL ) for Michae l’s estate and order ed the GAL to revie w the s et t l ement agree ment. The GAL submitt ed a repor

t o p i n i n g that Michae l was, both at the time of the settlement and at the
prese nt time, incapa

ble of making financ ial decisions and thus incapa ble of agree ing to any enhanc ed fe es. ¶ 15 On J uly 8, 2010, Dr. Geof fre y Shaw, a board- cer

tified psychiatrist, examined plaintiff to deter mine her capa city to make her own persona l and financ ial decisions. The examination resulted from a claim that plaintiff h ad been financ ially exploi ted following her rec eipt of
money from the se ttlement. After r ece iving the settlement funds, plaintiff authorized thre e cashie rs checks m ade payable to three sepa rate people, B ruceStagg ers, Jim mie Cook, and Martin Cosby
, in the amounts of $10,000, $96,131, and $30,000, respe ctively

. Plaintiff was unable to explain the rea sons for g ifting the cashie rs chec ks to the payees. When asked about Stagg ers, Cook, and Cosby
, she ref err ed to the m a s “cr ooks.” She was also unable to rec all to Dr. Shaw the a

mount awar ded to her

in the settlement. ¶ 16 Dr. Shaw stated in his repor t that plaintiff has “a long history of Psy chiatric I llness,” was

curr ently under the car e of a psychiatrist, and that she was taking psychotropic medications. Plain t i ff display ed prominent involuntary fac ial movements, known as tardive dy skinesia, which are indi cative of the chronic administration of antipsy chotic medications. Dr. S haw opined that, “[u] pon qu es t ioning, it also beca me very appar ent that [pl aintiff] is also Deve lopmentally Delayed.” Dr. Shaw opined that plaintiff suffe rs from a “major psychiatric illness (most likely Schizophrenia) and is also Deve lopmentally Delayed.” Dr. Shaw further opined that althoug h plaintiff “func tions re latively well in her sur

rounding s and appea

rs to have a rea sonably g ood quality of life,” her judgme nt is impaired due to her developmenta l delay and “chr onic” psychiatric illness. Dr. Shaw opined that plaintiff has an “extremely limit ed concept of financ es,” and that althoug h she can, with support, reside alone, she require s assistance to e nsure her basic needs, such as having adequate food and shelter, are met and require s acc ess to ong oing medical and psychiatric car e. Dr. Shaw opined that, “[i] n the are a of financ ial decisions [pl aintiff] is extremely vulnera ble to exploi tation.” In sum, Dr. Shaw opined, beyond a rea sonable degree of medical and psychiatric cer tainty
, that plaintiff suffe rs from developmenta l delay and chronic psy chiatric illness, and is “totally incapa ble of making her own financ ial decisions,” but is “par tially capa ble of making her own persona l decisions.” ¶ 17 Following Dr. Shaw’s repor t, the office of the public guardia n petitioned to be appointed

as plaintiff’s guardia

n to investigate the claim of financ ial exploi tation and protec t her assets. On August 18, 2010, the probate judge enter ed an orde r appointingthe Public Guardia n as plenar y guardia n of plaintiff’s estate and limit ed guardia n of plaintiff’s person. In the order
, the probate judge found that plaintiff is a disabled p er s o n , l acks some, but not all,

u n d e r s tanding or capa city to make or communicate responsible decisions conce rning th e c a r e of her person, a nd is “[t] otally

unable to mana g e her

estate or financ ial aff

airs.” ¶ 18 On Marc h 15, 2011, the Public Guar dian filed a section 2-1401 petition in the case at bar

-5 -to vacate the enhan ce d at t orney fee s awa rded to Gumbiner and SGK. 735 I L CS 5/2-1401 (West 2008). The trial judge
, J ohn Ward, had by this time retire d, and the case was assig ned to J udg e Willi am Maddux, the presidingjudge of the law division. ¶ 19 The pe tition t o vaca te the enha

nced fee s stated the following : At the time plaintiff was
prese nted with the petition to settle the case , she was rec eiving public aid and social security disability

. After plaint i ff ap p ro ved the petition, she was examined by Dr. Shaw, who deter mined that she was incapa ble of making financ ial decisions. On information and belief, plaintiff’s mental capa city as deter mined by Dr. Shaw in J uly of 2010 was the same as it was four month s ea rlier on the date of the settlement. SGK had rec ommended to plaintiff that they establish a specia l needs trust for her. Howeve r, no specia l needs trust was ever established. The petition claimed that plaintiff had established her mental incapa city to SGK when plaintiff g ave an answe r to interrog atories reg arding dece dent’s heirs, claiming that she was de cede nt’s sole heir, whe n dece dent had a brother. ¶ 20 The petition to vaca te further alleg es that the circ u m s t an ce s o f t h e ca s e were not extraordinary

. Plaintiff’s counsel settled the case 21 months afte r it was filed without a single deposition being taken, and only two dispositi ve motions wer e filed during the pendenc y of the suit. Pl aintiff’s c ounsel testified that he reviewe d 25,000 pag es of medic al re cords, but they could not be produce d beca use they had been destroyed. The Public Guar dian asser ted that plaintiff’s meritorious claim to vaca te the enhanc ed fee is that plaintiff and Michae l wer e both mentally disabled and could not have consente d to the enhanc ed fee s, and that SGK was not entitled to any enhanc ed fee s. The Public Guardian also asser ted that it had exercised due diligenc e under

the circ umstances. ¶ 21 On J une 14, 2011, SGK fi l ed m o t i o n s under sections 2-615 and 2-619 to dismiss the section 2-1401 petition to vac at e t he enhanc ed fee order

. 735 I L CS 5/2-615, 2-619 (West 2008). Th e motions argued that the petition did not proper ly asser t that plaintiff has a meritorious claim or exercised due diligenc e in discovering the claim, that the petition failed
t o s at i s fy the pl eading require ments of section 2-1401, and that plaintiff i mproperly asked the trial court to relitig ate the issue of enhanc ed fee s based on events that occur red afte r the order g ranting the en h anced fee s had been enter ed. In an aff idavit attache d to the motion, attorney Ronald Kalish of SGK stated that he per s o nally revie wed 25,000 pag es of dece dent’s medical rec ords, which wer e kept in a locked confe renc e room in J udg e Ward’s
courtroom. Kalish indicated that afte r the tr i al co u rt g rante d the settlement petition, the

rec ords were destroy ed, due to the “privilege d and sensiti ve nature of t h e rec ords.” Kalish stated t hat during t he pendency of t he ca se, plaintiff “ actively participated in all aspec ts of the ca se, either

by telephone or

through persona l visits t o our off ice.” Kalish stated that he visited pl aint iff’s home on “one or two occa sions,” and observed that she was “ca pable of

rea sonably maintaining her apar tment and manag ing her persona l aff airs.” Kalish stated that plaintiff expressed an understanding about the various aspec ts of th e litigation proce ss, including distributi on of t he procee ds, and that he did not observe any thing a bout plaintiff that would “provide a basis to sug g est that she was incompetent to make any decisions up to the time of distribution.” Ka lish stated that plaintiff spec ifically agree d to allow SGK to petition for enhanc ed attorney fee s, and that she beli ev ed en h ance d fee s wer e fair and

rea sonable. Kalish stated that plaintiff had borrowe d money from a company in the business

-6 -of loaning money to plaintiffs who have pending persona l injury lawsuits, that plaintiff made

t h e d ec i sion to borrow the money on her own, and that, when Kalish found out abo u t t h e loan, pl aintiff ex presse d to him an understanding of “the cost o f the l oan, the risk, and the

o b l iga tion to pay it off at the conclusion of the case .” Finally
, Kalish stated th at wh en plaintiff decide d to settle the case , “she expressed an understanding of the conseque nces of

rec eiving the s ettlement proceeds, and expressed a desire to g o off p ub l i c ai d, not cre ate a specia l n eeds trust, and not structure the settlement.” J udg e Maddux enter ed an order continuing the section 2-1401 pe tition and the motions to di smiss t o October 19, 2011. ¶ 22 In the interim, the d i s co v ery d ep o s i t i o n o f at t o rney Ronald Kalish was taken on September 19, 2011, and was attache d to plaintiff’s response t o SGK’s motion to dis miss. Kalish testified that he joined the firm in 1997 and in three to four year s beca

me a pa rtner. He is a litigator and SGK does primarily persona l injury and medical malprac tice litigation, and somewher e less than 50% of this work is in the medical malprac tice are na. This case was ref err ed to their office by attorney J ames Gumbiner. Prior to petitioning the probate division of the circ uit court of Cook County
, Kalish obtained and rec eived dece dent’s medical rec ords fo r the hospitaliz ation in question, met and talked by phone with plaintiff and her s o n Michae l on a number of occa sions discussing the progress of the case , had discussions with the attorney repr esenting St. Be rnar d Hospital, prepa red the complaint and medical aff idavit, had discussions with the medical consultant that signe d the aff idavit and another consultant who provided a neg ative opinion, had intero ff ice discussions with his partne r Br uce Goodman, perf

ormed rese arc h on medical and related issues, and had numerous pretria ls and settlement discussions with the attorney s for th e d ef en d an ts, as well as many settlement discussions with plaintiff and her son Michae l. There wer e no ti m e rec ords kept, no depositions taken prior to settlement, a nd only a fe w motions before the cour t. ¶ 23 Howeve r, Kalish testified t o spending hundreds of hours r ev i ew i ng over 25,000 pag es

o f d ec edent’ s prior medical rec ords in the chambe rs of J udg e J ohn Ward. Def endants subpoenae d the rec ords from various hospitals, including N orthwester n, Merc y , Mt. Sinai, and J ackson Park. Kalish objected to the rec ords as privileg ed under the Mental Hea lth Act. J udg e Ward had authorized an in came ra proce dure wher eby Kalish was allowed to revie w all o f dece dent’s prior mental health rec ords on prior hospital stay s in order for Kalish to deter mine whether these rec ords would be objected to based on privileg e under the Mental Hea lth Act. Kalish soug ht a protec tive order ag ainst defe ndants so that they could not use the

rec ords aga inst the decedent in the m edica l malprac tice case that is the s ubject o f t h e ca se at bar. After Kalis h revie wed eac h pag e of the rec ords, Kalish prepa red a sampling of the
contents of the rec ords and prepa red a brief for the trial court, and the judge ultimately ruled that all of the rec ords wer e privileg ed. Kalish ultimately remove d the many box es of rec ords from Judge Ward’ s chambe rs and de stroyed them. In the proc ess t hat l asted for four to si x months, Kalish tabbed ever y pag e of the rec ords, “sometimes multipl e tabs,” writing handwritten notes. Ka lish testified that every pag e of the rec ords was pa rt of the pr ocess. ¶ 24 Kalish described the ca se at ba r as a contested liability

case wher e all of the issues in a medical mal p ra ct i ce case would be difficult to prove, which included (1) profe ssional
neg lige nce in that ther e wa s a question of whether there wa s a deviation from the standar d of car e, (2) causation, and (3) damag es. Damag es wer e at issue beca use there was evidenc e

-7 -that the dece dent attempted suicide, which was the rea son she was hospitaliz ed to beg in with.

That issue sever ely impacted damag es in terms of the dece dent’s life expectancy

. The brea ch of standard of car e issue and causation issue wer e clouded beca use “ther e wer e multipl e drug s that this patient was g iven on her admission that could cause an anaphy lactic rea ction”; there fore
, there was a qu es tion of whether the benef it in g iving the drug s outweighed the potential risks, side eff

ects, or adver se rea ctions, and on the other hand, the drug s presc ribed could have been suitable for dece dent’s condition of ill being and phy siology

. There wer e additional issues from the dece dent’s prior h i s t ory of previous hospital admissions that impaired the history that was g iven on the hospitaliz ation at issue as to whether her history for the admission was acc urate

. There wer e issues in te rms of lack of family members who could provide a detailed acc ounting of the decede n t ’s medical history

. There wer e issues

conce rningdece dent’s re lationship with her mother and br other. ¶ 25 The case require d leg al work from its inception up until it settled, which cover ed a span of over three year s and five months and the settlement occur red over a “period of time.” Kalish had many meeting s with plaintiff in person, which he estimated as betwee n 10 to 15 times, and numerous tele phone calls. Plaintiff w as kept advised as to e very thing important

as it was happening

. Kalish had many discussions with Michae l also and persona lly met with him two to three times. Kalish opined that plaintiff alway s appea red to be competent and that he even trave led to pla intiff’s residenc e and found it to be neat and orderly

. He discussed a specia l needs trust with her so she could keep the funds she would rec eive while she was on p u b lic aid. Kalish contac ted a structura l settlement expert to talk with plaintiff. Kalish opined th at p l ai n t i ff and Mi chae l did not appea r t o be mentally handica

pped and that both he and plaintiff agree d to the enhanc ed fe es. ¶ 26 Kalish opined that the case was settled and the money disbursed under t h e W rongful Death Act (740 I L CS 18 0 / 0

. 0 1 et s eq. (West 2008)) beca use the Survival Act (755 I L CS 5 / 2 7-6 (West 2008)) damag es would have been neg ligible. Kalish deter mined that the settlement was fair and rea sonable and that there has never been any evidenc e that it was not. This was the fi rs t case that Kalish reme mbers he worke d on wher e his firm reque sted enhanc ed fee s. Kalish described his handling of the case claiming h e had done an “extraordinar

y job.” ¶ 27 The trial court held a hearing on the petition and motion to dismiss on October 19, 2011. The parties reiter ated the arguments made in the petition and the motion, and Kalish restate d parts of his d ep o s i t i on testimony
, but neither side introduced new evidence. Howeve r, t he

rec ord on appea l indicates that plaintiff had the opportunity to introduce new evidenc e. On October 25, 2011, the trial cour t entere d a wr itten order denying plaintiff’s s ection 2-1401 petition. The trial court foun d t h at a section 2-1114 motion g ives trial courts discretion to

awa rd enhanc ed fee s under the statutory criteria. Using an abuse o f d i s cretion standard of revie w, the trial court deter mined that J udg e Ward was not clea rly wrong when he awa

rded the enhanc ed attorney fee s, “eve n if the consents of Plaintiff and Michae l are disreg arde d.” The trial court found that J udg e Ward wa s i n a better position to evaluate whether or not SGK went to extraordinary measure s to procur e a benef icial settlement for plaintiff and found that it was re quired to g ive def ere nce to Judge Ward’s dec ision.

-8 -¶ 28 ANALYSI S

¶ 29 Plaintiff argues on appea l that the trial court err ed in denying its section 2-1401 petition
to vaca te the enhanc ed attorney fee s for three rea sons: (1) J udg e Maddux improperly failed
to hold an evidentiar

y hearing on the section 2-1401 petition ; (2 ) the petition should have been grante d beca

use plaintiff showed a meritorious claim and due diligenc e in discovering the meritorious claim and in filing the petition; and (3) J udg e Maddux err ed by revie wing the orig inal g rant of enhanc ed fee s under section 2-1114 under an abuse of discretion standard of revie w, rathe r than deter mining whether the section 2-1401 petition succe ssfully showed

a mer itorious claim and due dilig ence

.

¶ 30 I . Standard of Re view ¶ 31 A revie wing court wi l l not disturb a trial court’s decision on a section 2-1401 petition absent an abuse of discretion. Smith v. Airoom, Inc

. , 114 I ll. 2d 209, 221 (1986). An abuse of d i s cr et ion occur s when no rea sonable person would take the view adopted by the trial
court. Dowd v. Berndtson , 2012 I LApp (1st) 122376, ¶ 24.

¶ 32 I I . Evidentiary Hea ring ¶ 33 Plaintiff argues that th e t ri al co u rt i mp ro perly ruled on the section 2-1401 petition without c onductingan evide ntiary hearing. SGK r esponds by arguing tha

t plaintiff waived h er ri gh t to an evidentiar y hearing when she did not prese nt additional evidenc e at th e hearing he ld on October

19, 2011. ¶ 34 Plaintiff must prove the alleg ations of her section 2-1401 pe titions by a pre pondera

nce of the evidence. Smith
, 114 I ll. 2d at 223. When SGK challeng es the fac ts alleg ed by plaintiff, a full and fair evidentiar y hearing must be held. Smith
, 114 I ll. 2d at 223. In Smith
, the petitioner filed its section 2-1401 petition, alleg ing that the court should vacate a defa ult judgme nt e ntere d ag ainst the petitioner. Smith , 114 I ll. 2d at 216. The petitioner supporte d its alleg ati o n s wi th aff

idavits attache d to the petition. Smith
, 114 I ll. 2d at 216. The responde nt fi l ed a response to the petition, challeng ing the petitioner’s claims of due diligenc e. Smith
, 114 I ll. 2d at 218. The response was supported by counter aff idavits. Smith
, 114 I ll. 2d at 218. The petitioner then submitt ed two supplemental aff idavits. Smith
, 114 I ll. 2d at 220. Th e t ri al co urt held a hearing on the petition, at which “no other evidenc e was introduced; only arguments wer e hear d.” Smith
, 114 I ll. 2d at 220. “The m at t er was taken under a dvisement, and the circ uit court subsequently enter ed an order de nying the petition
to vacat e the defa

ult judgme nt” finding that the petition failed to meet the due diligenc e require ment. Smith
, 114 I ll. 2d at 220. Ba sed on the petitioner’s failure t o prese nt new evidenc e at the hearing on the petition, our I llinois Supreme Court found that the petitioner “wa ived its right to an evidentiar y hearing inv o l v i n g t h e testimony of witnesses and the opportunity to cross-e x amine,” and that “on the basis of th e pleading s, aff idavits, and supporting materia ls in evidenc e, [our I llinois Supreme Court could not] say that the circ uit
court e rre d” in deny

ing the petition. Smith , 114 I ll. 2d at 223. ¶ 35 Simi larly
, in the case at bar, the trial court enter ed an order on J uly 25, 2011, continuing plaintif f’ s s ec tion 2-1401 petition and SGK’s motion to dismiss to October 19, 2011.

-9 -Be tween the entry of that order and the hearing d at e, p l aint iff obtained the discovery

deposition of attorney Kalish. On the date of the hearing, the parties made arguments

conce rning their positions. Plaintiff argued that SGK’s service s in the case did not rise to the level of extraordinary
, and SGK reiter ated the points Kalish made in his deposition, notably that Kalish revie wed 25,000 pa g es of medic al re cords ove r a period of seve ral months and that J udg e W ar d had persona l knowledg e of the extensive work Kalish put in to the case

. Howeve r, neither party called witnesses to testify or submitt ed new documentar y evidenc e. At the conclus i o n o f t h e hearing, J udg e Maddux said the following : “We’ve talked about

ever y thing we can on this. I ’m g oing to take this under advisement and I ’m g oing to look at a couple more thing s and will let you know in a fe w day s.” ¶ 36 L ike i n Smith
, plaintiff failed to presen t evidenc e at the hearing on her petition. Smith
, 114 I ll. 2d at 220. Although plaintiff had taken Kalish’s deposition a m o n t h prior to the hearing, and thus had been made awa re of SGK’s rea soning reg arding why they believed the enhanc ed fee s wer e merited, plaintiff failed to prese nt new evidenc e rebutting or disproving Kalish’s statements. There fore
, we cannot say that the trial court abused its discretion when it denied plaintiff’s petition despite plaintiff not prese nting evidenc e at a hearing. Smith
, 114 I ll. 2d at 223; Blutcher v. EHS Trini ty Hospital
, 321 I ll. App. 3d 131, 141 (2001) (stating that “whe n a party to a s ec t i o n 2-1401 petition participates in a hearing based solely on the pleading s, aff

idavits, and arguments of counsel without reque sting an evidentiar y hearing,” the petitioner waives the right to an evidentiar y hearing (interna l quotation marks omitted)).

¶ 37 I I I . Content of Petition ¶ 38 To succe ed on a s ec t i o n 2 -1 4 0 1 p et i t i o n , p et itioners must “set forth alleg ations supporting the exis tence of a me ritorious claim or def ense; due diligenc e in prese nting the claim or defe nse to the circ uit court in the orig inal action; and due diligenc e in filing the section 2-1401 petition.” Pa u l v. Ge rald Adelman & Associates, Ltd.
, 223 I ll. 2d 85, 94 (2006). “ ‘The quantum of p roof nece ssary to sustain a section 2-1401 petition is a preponde ranc e of the evidenc e.’ ” Paul
, 223 I ll. 2d at 95 (quoting Smith
, 114 I ll. 2d at 221).

¶ 39 A. Meritorious Claim or Def ense ¶ 40 P l aintiff argues that the petition prese nted the meritorious claim t h at “a co mp et en t administrator would have rec og nized that no extraordinary servi ce s wer e perf ormed and would have challeng ed the enhanc ed fee under 735 I L CS 5/2-1114.” The case o f C l ay v. County of Cook lists two sets of criteria court s m ay u s e i n deter mining whether attorney s perf ormed extraordinary service s, and thus are entitled to enhanc ed fee s un d er section 2- 1114. Clay v. County of Cook, 325 I ll. App. 3d 893, 902 (2001). First, the I llinois Rules of Professional Conduct state the f ollowing:
“The fac tors to b e considere d in deter mining the rea sonablene ss of a fee include the following : (1) the time and labor requir ed
, th e novelty and difficulty of the questions involved, and the skill requisite to perf orm the leg al servic e prope rly ;

-1 0 -(2) the likelih ood, if appar ent to client, that the acc eptanc e of the particula r employ ment will preclude other e mploy ment by the lawyer; (3) the f ee c ustomarily

charg ed in the loca lity

for similar leg al servic es; (4) the a mount involved and the re sults obtained; (5) the time limitations imposed by the client or the circ umstances; (6) the na ture a nd leng th of the prof

essional re lationship with t he client; (7) the experience
, reputation, and ability of the lawyer or lawyers perf orming the service s; and (8) whether the fee is f

ix ed or conting ent.” I ll. S. Ct. R. Prof. Conduct R. 1.5( a) (ef f. Jan. 1, 2010).
See Clay
, 325 I ll. App. 3d at 902 (stating that the above cr i t er i a “m ay be utiliz ed in evaluating fee awa

rds under the provisions of section 2-1114”)

. I llinois courts have also used

a simil ar set of fac tors to deter mine the rea sonablene ss of attorney fee s including: “ ‘the skill and standing of the attorney s employed, the nature of the case , the novelty and difficulty of the issues involved, the degree of responsibility require d, the usual and customary charg e for the same or simil ar service s in the community
, and whether there is a rea sonable connec tion betwee n the fee s charg ed and the litigation.’ ” Clay
, 325 I ll. App. 3d at 902 (quoting Chicago Titl e &Trust Co. v. Chicago Title &Trust Co. , 248 I ll. App. 3d 1065, 1072 (1993)). ¶ 41 Plaint i ff ar gues t hat t he facts of the case do not indicate that SGK adequately satisfied these criteria. Specifica lly
, she argues that SGK did not keep rec ords detailing the time and labor its attorney s expended while handling the case , neither side took depositions during the pendenc y of the case , defe ndants did not file aff irmative defe nses, and the case settled befor e g oing to tria l. Plainti ff a

rgues that the c ase “ settled in routine fa shion” and did notinvolve a novel or difficult issue. ¶ 42 Plaintiff attached t h e fo l l o wi n g t o i t s p et ition: (1) plaintiff’s petition for letters of administration of dece dent’s estate; (2) the court order d ec l aring plaintiff an heir of dece dent’s estate; (3) the complaint at law; (4) the rele ase and settlement agree ments; (5) the petition to settle the action; (6) J udg e Ward’s order g ranting settlement; (7) J u l i a M ayes’ petition to be appointed Michae l’s guardia n; (8) the letters of office appointing J ulia as plenar y guardia n of Michae l’s person and estate; (9) the probate co u rt ’s o rder appointing Michae l a guardia

n ad litem ; (10) the guardia n ad litem ’s initial repor

t conce rning Michae l; (11) Dr. Shaw’s medical evaluation of plaintiff; (12) Dr. Shaw’s written repor t a dmitted in the probate division; (13) the order appointing a guardia n for plaintiff as a disabled person; (14) the agree d order appointing a plenar y guardia n of the estate and limit ed guardia n of the
person of plaintiff; and (15) the probate division’s order al l o wi n g t he Public Guar dian to

co n trac t with outside counsel in plaintiff’s case

. None of these attachme nts addre ssed t h e fac tors enumer ated in Clay . Plaintiff did not attach any aff idavits to its response to SGK’s motion to dismiss the petition, nor was there any expert testimony or other evidenc e to show that SGK was not entitled to an enhanc ed fee

. Plaintiff did attach Kalish’s deposition and a supplemental report by Dr. S haw, in which he opined t hat pl aintiff’s dev el o p m en t al delay had bee n prese nt since birth.

-1 1 -¶ 43 By contra st, SGK attache d an aff idavit by attorney Kalish to its motion to d i s miss the petition, in which he described revie wing the 25,000 pag es of medical rec ords, and in making
notes on ever

y pag e to support his objections throu gh the use of the privileg ed materia l. Fur thermore
, in his discovery deposition, which was attache d to the pleading s, Ka l i sh testified to t h e many way s in which the service s SGK provided to plaintiff wer e extraordinary

. Kalish testified that the nature of the issues in the case made proving deviation from the standard of car e, causation, and d am ages very difficult. Damag es wer e at issue beca use there was evidence that the decedent attempted suicide, which was the rea son she

was hospitaliz ed to b egi n with. That issue sever ely impacted damag es in terms of the dece dent’s life expectancy

. The brea ch of standard of car e issue and causati o n issue wer e clouded beca

use “ther e wer e multipl e drug s that this patient was g iven on her admission that all could cause an anaphy lactic rea ction”; th er ef

o re, there was a question of whether the benef it in g iving the drug s outweighed the potential risks, side eff ects, or adver se rea ctions, and on the other hand, the drug s presc ribed could have been suitable for dece dent’s condition of i ll being a

nd phy siology . There wer e additional issues fr om the decedent’ s prior his tory of previous hospital admissions that impaired t h e h istory that was g iven on the hospitaliz ation at issue as to whether her history for the admission was acc urate

. There wer e i s s u es in terms of lack of family members who could provide a detailed acc ounting o f t h e dece dent’s medica l history . There wer e issues conc erningdece dent’s re lationship with her mother and br other. ¶ 44 Kalish testified that he spoke with plaintiff fre quently about the progress of the case

. He also testified to spending months and hundreds of hours revie wing 25,000 pag es of medical

rec ords for the purpose of preparing a privileg e log. The privileg ed medical rec ords wer e related t o d ec ed en t ’s mental s tate and history of sui cide attempts, which defenda nts could

use at trial and would have had a neg ative impact on the damag es plaintiff could rec over. As

a result of Kalish’s eff

orts, the trial court order ed the medical rec ords privileg ed, and without that finding
, the value of the case would have been substantially diminis hed. When the case settled, plaintiff rec eived a signific ant damag e aw ard. K alish further testified that, beca use he perf ormed an in came ra revie w of the medical rec ords, in J udg e Ward’s confe renc e room and chambe rs, Judg e Ward was persona lly awa re of the amount of time he spent revie wing the rec ords. At the hearing on the petition, plaintiff did not prese nt any evidenc e to disprove Kalish’s af

fidavit or deposition testimony

. ¶ 45 Although plaintiff provided evidenc e reg arding her inability to consent, she provided no evidenc e ref

uting that SGK perf

ormed extraordinary service s. A party ’s inability t o gi ve consent is not one of t he enumer ated fac tors courts use in deter mining whether or not an attorney perf

ormed the extraordinary service s nece ssary to rec eive enhanc ed fee s. Clay
, 325 I ll. App. 3d at 902; I ll. S. Ct. R. Prof. Conduct R. 1.5(a) (ef f. J an. 1, 2010); Chicago Titl e & Trust , 248 I ll. App. 3d at 1072. Since the only evidenc e plaintiff pr esente d was immateria l
to the trial court’s deter

mination that SGK was entitled to an enhanc ed fee
, plaintiff did not show a m er i t o ri o us claim. As a result, we cannot say that J udg e Maddux abused his discretion in deny

ing pla intiff’s petition.

-1 2 -¶ 46 B. D ue Dilig ence

¶ 47 “If t h e p et itioner fails to alleg e the exis tence of a meritorious [claim or] defe nse, t h e petition is proper ly denied, and due dil ige nce need not be addressed.” Rock f o rd F i nancial Systems, Inc. v. Borgetti
, 403 I ll. App. 3d 321, 327 (2010). Since we cannot say that the trial
court abused its dis cr et i o n with reg ard to plaintiff’s failure to prove the exis tence of a meritorious claim, we need not addre ss whether she was diligent in discovering the claim and filing he r petition.

¶ 48 C. Trial Court’s Review of the Petition ¶ 49 Plaintiff argu es t h at J udg e Maddux improperly revie wed the section 2-1401 petition,
treating it like a revie w of J udg e Ward’s grant of enhanc ed fee s under section 2-1114 rathe r than as a section 2-1401 petition. In J udg e Maddux’s order
, he cited to Clay and Madalinski

v. St. Alexius Medic al Center
, 369 I ll. App. 3d 547 (2006), which states that trial courts have discretion in g ranting enhanc ed attorney fee s under section 2-1114 and that revie wing courts

use the abuse of discretion standard of revie w when evaluating disputes about fee s pursuant to section 2-111 4

. Judg e Maddux conclude d that J udg e Ward’s order was “not clea rly
wrong ” and th at h e must “g ive defe renc e to Judg e Ward’s decision, as he was in a better position to truly deter

mine whether SGK went t o ex t raordinary measure s in procuring [p] laintiff a benef

icial settlement.” J udg e Maddux did not state whether or not he found that plaintiff prese nted a meritorious claim and satisfied the due diligenc e require ments. Plaintiff
argues that since Judge Maddux failed to mention the meritorious cla im and due dilige nce require ments of a section 2-1401 petition, his ruling was in err or. We may aff irm on any basis that we find in the rec ord, even if our rea soning is differ ent from that of the trial court. People v . Carrera , 394 I ll. App. 3d 368, 373 (2009). ¶ 50 We do not find this a rgument persua sive. In his written order , J udg e Maddux relied on Clay
, which is pertinent to the assessment of enhanc ed fee s. The Clay case provides two sets of fac tors trial courts may use to deter

mine whether

or not to g rant enhanc ed fee s pursuant to section 2-1114. Clay
, 325 I ll. App. 3d at 902. In deter mining whether plaintiff prese nted

a meritorious claim that SGK was not en t i t l ed to enhanc ed fee s, J udg e Maddux had to examine the fac ts of SGK’s repr esentation of plain t i ff and the law conce rning when enhanc ed fee s are merited. J udg e Maddux had befor e him plaintiff’s section 2-1401 petition, SGK’s motion to dis miss the petition, Kalish’s affidavit attache d to the m otion, plaintiff’s
response to SGK’s motion, and Kalish’s discovery deposition. J udg e Maddux also presided

over the hearing at which plaintiff and SGK argued the points made in their various filings. Utiliz ing the evidenc e before him in the record and the enhanced fee fac tors articu l at ed in Clay
, J udg e Maddux could analy ze plaintiff’s arguments in light of the evidenc e conce rning whether or not SGK provided extraordinary service s. J udg e Maddux came to the conclusion that J udg e Ward’s decision to g rant enhanc ed fee s was “not clea rly wrong .” In eff

ect, J udg e Maddux found t hat pl aintiff did not prese nt any evidenc e that SGK was not entitled to the enhanc ed fe e, and f

ound that the re cord suppor ted SGK’s grant for

the enha nced f ees. ¶ 51 Ba sed on the e videncein the rec ord, our conclusion would not c hang e eve n if we w ere to revie w J udg e Ward’s awa rd of fee s u n d er an abuse of discretion standard, instead of

-1 3 -plaintiff’s petition under section 2-1401. Plaintiff prese nted no evidenc e related to any of the

fac tors enumer ated in the Clay case

. Clay
, 325 I ll. App. 3d at 902. SGK, on the other hand, submitt ed evide nce r eleva nt to the “ ‘time and la

bor re quired, the novelty and difficulty of the questions involved,’ ” “ ‘the amount involved and the results obtained,’ ” an d “ ‘the
nature and length of t h e p rofe ssional relationship with the client.’ ” Clay
, 325 I ll. App. 3d
at 902 (quoting I ll. S. Ct. R. Prof. Conduct R. 1.5(a) (ef f. J an. 1, 2010)). SGK’s evidenc e was also rele vant to “ ‘whe ther there is a rea sonable connec tion betwee n the fee s charg ed and the litigation.’ ” Clay
, 325 I ll. App. 3d at 902 (quoting Chicago Titl e & Trust
, 248 I ll. App. 3d
at 1072). All of this evidenc e is rele vant to deter mining wh et h er SGK eng ag ed in extraordinary service s on behalf of plaintiff, and, by extension, whether plaintiff’s claim that SGK was not entitled to e nhance d fee s was meritorious. We f ind that plaintiff’s claim wa s not meritorious beca

use plaintiff failed to prese nt sufficie nt evidenc e to show that SGK was not entitled to enhance d fee s.

¶ 52 CONCLUSI ON ¶ 53 For the above rea so n s , we cannot find that the trial court abused its discretion when it denied plaintiff’ s section 2-1401 petiti on. Plaintiff was g iven a he aringat which she could have prese nted witness es , an d s h e failed to do so. Plaintiff did not prese nt any evidenc e rele v an t to the fac tors courts examine when deciding whether attorney s are entitled to enhanc ed fe es, and thus could not show by a pre pondera

nce of the evidenc e that SGK wa s not entitled to enhance d fee s.

¶ 54 Affir

med.

-1 4 -