2020 IL App (1st) 190282-U 

 FIRST DISTRICT,

SECOND DIVISION

 May 19, 2020 

No. 1-19-0282 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent 

by any party except in the limited circumstances allowed under Rule 23(e)(1). 

_____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

_____________________________________________________________________________ 

DUSSIAS SKALLAS WITTENBERG, LLP,

 Plaintiff-Appellee, 

v. 

CLAUDINE MINOGUE, 

Defendant-Appellant.

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Appeal from the

Circuit Court of 

Cook County, Illinois. 

No. 2016 CH 8232 

Honorable 

David B. Atkins, 

Judge Presiding.

_____________________________________________________________________________ 

JUSTICE COGHLAN delivered the judgment of the court. 

Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment. 

ORDER

¶ 1 Held: (1) In breach of contract action, summary judgment for plaintiff was proper where 

defendant admitted existence of oral contract and its essential terms. (2) Trial court did 

not err in granting fee petition without evidentiary hearing. (3) Trial court’s judgment 

did not violate provisions of Illinois Marriage and Dissolution of Marriage Act governing 

fee petitions.

¶ 2 Defendant Claudine Minogue retained plaintiff Dussias Skallas Wittenberg, LLP, to 

represent her in marital dissolution proceedings. When Claudine failed to pay in full for DSW’s 
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legal services, DSW filed the instant breach of contract suit. The trial court granted summary 

judgment to DSW and subsequently granted DSW’s fee petition in the amount of $81,742.23. 

¶ 3 Claudine now appeals, arguing: (1) issues of material fact preclude entry of summary 

judgment; (2) the trial court erred by granting DSW’s fee petition without an evidentiary hearing; 

and (3) the trial court’s judgment fails to comply with section 508 of the Illinois Marriage and 

Dissolution of Marriage Act (IMDMA) (750 ILCS 5/508 (West 2018)), which governs fee 

petitions in marital dissolution proceedings. For the reasons that follow, we affirm. 

¶ 4 BACKGROUND

¶ 5 On October 26, 2015, Claudine consulted with Dean Dussias, a senior partner at DSW, 

and agreed to retain Dussias in connection with a marital dissolution proceeding against her 

husband, Jeffrey Minogue. Three days later, Claudine paid DSW an initial retainer fee of 

$10,000. However, according to DSW, she failed to make any further payments over the next 

several months of litigation. DSW moved to withdraw as Claudine’s counsel, and the divorce 

court granted DSW’s motion on March 11, 2016. 

¶ 6 On June 20, 2016, DSW filed the instant lawsuit against Claudine, alleging that Claudine 

failed to pay $83,032.23 in attorney fees and costs. DSW sought damages for breach of contract, 

or, in the alternative, on a theory of quantum meruit. 

¶ 7 In her answer, Claudine admitted the existence of an oral contract as follows: 

“CLAUDINE admits the allegation *** that she met with Mr. Dean S. Dussias at 

his Chicago office regarding representation in connection with a marital dissolution 

proceeding. CLAUDINE further admits the allegation that she entered into an oral 

agreement with Dean Dussias on or about October 26, 2015 ***. 

*** 
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CLAUDINE admits that DSW LLP rendered legal services on her behalf and incurred 

some costs, which she accepted.” 

However, she denied that DSW fully performed its obligations to her, and she further denied 

DSW’s allegation that she failed to make any payments beyond the initial $10,000 retainer. 

¶ 8 On January 13, 2017, Claudine moved to add Jeffrey as a necessary party to the lawsuit. 

In support, she alleged that payment of the $10,000 retainer exhausted her financial resources. 

She further alleged that DSW was aware of her lack of financial resources when it chose to 

represent her, and it knew that to obtain full compensation for its services, it would need to seek 

contribution from Jeffrey pursuant to the IMDMA. 

¶ 9 The trial court denied Claudine’s motion, since Claudine and DSW were the only parties 

to the contract at issue; Jeffrey was not a party, nor did DSW perform any services on his behalf. 

The court further stated, “To the extent the defendant wishes to file a third-party claim for 

affirmative relief against Jeffrey Minogue or any other party, she is free to do so.” 

¶ 10 Claudine did not file a third-party claim, nor did she seek or obtain any discovery. After 

discovery closed, DSW moved for summary judgment on both counts of its complaint. 

Regarding its breach of contract claim, DSW pointed out that Claudine admitted that she entered 

into a contract with DSW and that DSW provided her legal services. DSW further stated that 

Claudine “does not have any defense to Plaintiff’s breach of contract claim. She just has not 

paid.” 

¶ 11 In her response, Claudine again admitted the existence of an oral contract, but she alleged 

that her contract was solely with Dussias, “and that he, specifically, would act as her attorney, 

which did not happen.” Instead, she stated that other DSW attorneys rendered services on her 

behalf—including securing for her an emergency order of protection, exclusive possession of the 
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marital home, and sole care of the children over an extended period of time—all of which she 

claimed was in contravention of her contract with Dussias. She additionally argued that the 

dispute as to who was to perform legal services for her constituted a material issue of fact as to 

the terms of the contract. Despite claiming that DSW’s allegations regarding the terms of the 

contract “would be rebutted by Defendant’s testimony,” she did not attach any affidavit or 

deposition testimony in support. 

¶ 12 Additionally, Claudine asserted that the only fee she agreed to pay was the $10,000 

retainer and that the claimed fees in DSW’s complaint were “not reasonable.” As for DSW’s 

statement that “[s]he just has not paid,” Claudine claimed to lack sufficient knowledge to form a 

belief as to its veracity.

¶ 13 On April 29, 2018, the trial court granted DSW’s motion for summary judgment on its 

breach of contract claim, finding that the undisputed facts in light of Claudine’s admissions were 

sufficient to establish DSW’s right to recovery. The court further stated:

“Defendant’s questions of fact regarding who was to represent her and who first breached 

the agreement, while genuine, are not material as to the terms of the oral contract. Even 

if the Court were to assume Defendant contracted exclusively with Dean Dussias and the 

work done by other attorneys breached that agreement, she has admitted to accepting 

those services and the costs incurred [citations]—behavior clearly constituting waiver of 

her rights.” 

But the court denied summary judgment as to damages, since DSW presented no factual basis for 

the amount claimed in its complaint. The court additionally denied summary judgment on 

DSW’s quantum meruit claim, since it found the parties had a valid and enforceable contract.
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¶ 14 DSW filed a fee petition in which it stated that Claudine’s case was a “uniquely complex 

case” that required substantially more time than a typical divorce case. Beginning in October 

2015 and every month thereafter, DSW sent detailed billing statements to Claudine. DSW 

submitted copies of these statements to the trial court in camera. DSW also submitted affidavits 

from its attorneys attesting to their experience, the work performed on Claudine’s behalf, and the 

reasonableness of their fees. Finally, DSW submitted various documents from the divorce 

action, including numerous letters sent to Claudine from DSW counsel other than Dussias. 

¶ 15 Claudine filed a response in which she admitted that DSW expended “substantial time 

and resources” representing her; that her case was “uniquely complex”; and that the attorneys 

working on her case were “extremely qualified and experienced” in divorce matters. She also 

admitted receiving DSW’s monthly billing statements. She nevertheless argued that the court 

should hold an evidentiary hearing on the fee petition because “there is a complete lack of 

evidence on the record as to the terms of the contract.” She stated that if the court accepted her 

interpretation of the contract—i.e., that she contracted for Dussias’ services alone—then DSW 

would not be entitled to compensation for any of the work done by its other attorneys. 

¶ 16 On November 5, 2018, the trial court, having reviewed the parties’ submissions, awarded 

DSW $81,742.23 in legal fees and costs plus postjudgment interest. The court denied Claudine’s 

request for an evidentiary hearing, stating: 

“The court reiterates that, even if [Claudine] had contracted exclusively for the 

services of Dean Dussias, she admitted to accepting DSW’s services and associated costs, 

waiving any purported breach or noncompliance. The exhibits attached to DSW’s 

motion further reinforce this holding as, from the outset of her case, [Claudine] had 

extensive, if not almost exclusive, communication with and representation by attorneys 
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other than Dussias between October 2015 and March 2016. She has not and cannot now 

refute her conscious acceptance of the services provided and costs incurred.” (Emphasis 

in original.) 

¶ 17 On November 20, 2018, Claudine filed a motion to reconsider, arguing, among other 

things, that reconsideration was appropriate based on section 508 of the IMDMA (750 ILCS 

5/508 (West 2018)), which governs fee petitions in marital dissolution proceedings. As shall be 

discussed in greater detail below, Claudine argued that resolution of DSW’s fee petition was 

premature because the divorce was not yet finalized and the court had not held a hearing as to 

whether Jeffrey should be required to contribute to her attorney fees. Claudine also argued that 

the trial court erred by denying her “the right to name her husband as a third-party defendant.” 

¶ 18 The trial court denied Claudine’s motion for reconsideration on January 24, 2019, finding 

that Claudine waived her arguments under the IMDMA by failing to raise them earlier. 

¶ 19 ANALYSIS

¶ 20 Claudine argues that the trial court erred in (1) granting summary judgment when there 

were material issues of fact as to the terms of the contract, (2) granting DSW’s fee petition 

without an evidentiary hearing, and (3) denying her motion for reconsideration based on section 

508 of the IMDMA. We consider these arguments in turn. 

¶ 21 Summary Judgment 

¶ 22 We review the trial court’s grant of summary judgment de novo (Williams v. Manchester, 

228 Ill. 2d 404, 417 (2008)), keeping in mind that summary judgment is appropriate where “there 

is no genuine issue as to any material fact and *** the moving party is entitled to a judgment as a 

matter of law.” 735 ILCS 5/2-1005(c) (West 2016). To prevail, the nonmoving party must 
No. 1-19-0282 

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present some evidence that would arguably entitle her to recover at trial. Keating v. 68th & 

Paxton, L.L.C., 401 Ill. App. 3d 456, 472 (2010). 

¶ 23 The trial court granted summary judgment to DSW based on its finding that Claudine 

judicially admitted the existence of a contract, its essential terms, DSW’s performance, and her 

own failure to perform. Specifically, in exchange for DSW’s representation in her divorce 

proceeding, Claudine agreed to provide a $10,000 retainer and be billed for fees and costs 

incurred. Pursuant to their agreement, DSW provided legal services on her behalf and incurred 

costs that she accepted.

¶ 24 A judicial admission is defined as a deliberate, clear, unequivocal statement by a party 

about a concrete fact within her knowledge. Smith v. Pavlovich, 394 Ill. App. 3d 458, 468 

(2009) (citing In re Estate of Rennick, 181 Ill. 2d 395, 406 (1998)). “[I]f a fact is judicially 

admitted, the adverse party has no need to submit any evidence on that point. The admission 

serves as a substitute for proof at trial.” North Shore Community Bank and Trust Co. v. Sheffield 

Wellington LLC, 2014 IL App (1st) 123784, ¶ 102. We review the trial court’s treatment of 

judicial admissions under an abuse of discretion standard. Smith, 394 Ill. App. 3d at 468. Here, 

we find no abuse of discretion in the trial court’s treatment of Claudine’s numerous admissions. 

¶ 25 Claudine does not attempt to contradict her prior judicial admissions, nor can she do so. 

See North Shore Community Bank, 2014 IL App (1st) 123784, ¶ 103 (“a party cannot create a 

factual dispute by contradicting a previously made judicial admission in a motion for summary 

judgment” (internal quotation marks omitted)). Instead, Claudine alleges that when she retained 

DSW, she only intended for Dussias to work on her case, not any other DSW attorneys. To the 

extent that DSW intended differently, she argues that there was no “meeting of the minds” as 

needed to create a valid and enforceable contract. Alternately, she argues that there is a material 
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issue of fact as to who was supposed to work on her case (and, concomitantly, for whose services 

she is required to pay).

¶ 26 But even assuming arguendo that Claudine believed she only contracted for Dussias’ 

services, she waived any such provision by her continued and ongoing acceptance of 

representation by other DSW attorneys. “ ‘Waiver of a contract term may occur when a party 

conducts itself in a manner which is inconsistent with the subject clause, thereby indicating an 

abandonment of its contractual right.’ ” Amerisure Mutual Insurance Co. v. Global Reinsurance 

Corp. of America, 399 Ill. App. 3d 610, 617 (2010); see also Whalen v. K-Mart Corp., 166 Ill. 

App. 3d 339, 343 (1988) (waiver of a contractual term “may be established by conduct indicating 

that strict compliance with the contractual provisions will not be required”). This doctrine 

prevents the waiving party from lulling the other party into believing that strict compliance with 

its contractual duties will not be required and then asserting her contractual rights in a suit. 

Midwest Builder Distributing, Inc. v. Lord & Essex, Inc., 383 Ill. App. 3d 645, 674 (2007). Here, 

Claudine admitted to receiving and accepting services from other DSW attorneys, behavior 

which clearly constitutes waiver of her rights. 

¶ 27 Finally, Claudine argues this case is analogous to Johannesen v. Eddins, 2011 IL App 

(2d) 110108. We find Johannesen readily distinguishable. At issue in Johannesen was whether 

defendant contractually waived his rights under the Citizen Participation Act (735 ILCS 110/15 

(West 2008) (protecting “[a]cts in furtherance of the constitutional rights to petition, speech, 

association, and participation in government”)) to participate in a zoning proceeding. 

Johannesen, 2011 IL App (2d) 110108, ¶ 18. The Johannesen court found that this issue could 

not be resolved on a motion to dismiss, since there was a factual dispute as to whether the parties 

made an oral contract, and, if so, what its terms were. Id. ¶ 22. 
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¶ 28 Here, by contrast, Claudine has judicially admitted the existence of the contract and its 

essential terms. Johannesen does not preclude the entry of summary judgment under these facts. 

Accordingly, we affirm the trial court’s grant of summary judgment in favor of DSW.

¶ 29 DSW’s Fee Petition

¶ 30 Claudine next argues that the trial court erred by granting DSW’s fee petition without 

first holding an evidentiary hearing. We review the trial court’s award of attorney fees for an 

abuse of discretion. Cavitt v. Repel, 2015 IL App (1st) 133382, ¶ 58. 

¶ 31 Claudine relies primarily on Trossman v. Philipsborn, 373 Ill. App. 3d 1020, 1057 

(2007), in which the court stated: “[W]hen the [party against whom fees are sought] asks for an 

evidentiary hearing, provided there exists a genuine factual dispute as to the reasonableness of 

the fees and costs, he is entitled to one.” (Emphasis added and internal quotation marks 

omitted.)

¶ 32 Trossman was a highly protracted suit that involved 10 parties and lasted over seven 

years; the plaintiff, Trossman, changed attorneys on multiple occasions and sometimes employed 

multiple firms at once. After the entry of judgment, Trossman sought and was granted attorney 

fees and costs he expended in defending against counterplaintiffs’ counterclaim only. Id. at 

1023. His fee petition sought over $400,000. Counterplaintiffs asserted this amount was 

“grossly inflated,” since their own fees and costs for the counterclaim totaled approximately 

$100,000, and they also claimed Trossman was improperly seeking reimbursement for fees that 

were unrelated to the counterclaim. Id. at 1036-37. Under these facts, the Trossman court held 

that an evidentiary hearing was necessary, emphasizing that “fee determinations in complex 

cases should only be made after careful weighing of all pertinent evidence.” Id. at 1058. 
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¶ 33 We later clarified Trossman in Young v. Alden Gardens of Waterford, LLC, 2015 IL App 

(1st) 131887, ¶ 113, stating:

“[T]rial courts faced with fee petitions need not conduct evidentiary hearings as a matter 

of course. We do not read Trossman as requiring a hearing in every case. [Citation.] To 

the extent it can be so interpreted, we disagree. Rather, a fee petition warrants an 

evidentiary hearing only when the response of the party to be charged with paying the 

award raises issues of fact that cannot be resolved without further evidence.” 

In particular, we stated that hourly rates charged by counsel “generally” should not require an 

evidentiary hearing, because they can be established through attestations of counsel and 

affidavits of attorneys in the field. Id. ¶ 114; see also Trossman, 373 Ill. App. 3d at 1057 

(discussing cases in which an evidentiary hearing was not required because the fee petition was 

supported by attorney affidavits that were not rebutted by the opposing party) (citing Heritage 

Pullman Bank & Trust Co. v. Carr, 283 Ill. App. 3d 472, 481 (1996); Aroonsakul v. Flanagan, 

155 Ill. App. 3d 223, 229 (1987)).

¶ 34 Based on Young, and under the facts of this case, the trial court did not err in ruling on 

DSW’s petition without an evidentiary hearing. DSW supported its petition with copies of 

detailed monthly billing statements that it sent to Claudine during the course of the 

representation. DSW also attached affidavits of multiple attorneys attesting as to their hourly 

rates, which they asserted were comparable to or less than the rates of other attorneys in the field 

with their experience. In response, Claudine asserted vaguely that DSW’s affidavits were 

insufficient to establish “the reasonableness of the oral contract,” but aside from this conclusory 

statement, she did not present evidence to rebut DSW’s claims. She did not, for instance, dispute 

the veracity or reasonableness of DSW’s claimed billing hours, nor did she present any evidence 
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to show that the hourly rates of DSW’s attorneys were unreasonable. Thus, unlike in Trossman, 

there was not “a genuine factual dispute as to the reasonableness of the fees and costs” claimed 

by DSW. (Internal quotation marks omitted.) Trossman, 373 Ill. App. 3d at 1057. 

¶ 35 Claudine nevertheless argues that an evidentiary hearing was necessary because essential 

terms of the contract were in dispute—in particular, whether she agreed to pay for the services of 

Dussias alone or the services of other DSW attorneys. For reasons discussed above, we find that 

Claudine has waived any such argument. See Amerisure Mutual Insurance, 399 Ill. App. 3d at 

617. Accordingly, the trial court did not abuse its discretion in granting DSW’s fee petition 

without an evidentiary hearing. 

¶ 36 Claudine additionally argues that DSW lacked standing to pursue fees because, during 

the course of the litigation, it changed its firm name to “Dussias Wittenberg Koenigsberger LLP” 

and filed its fee petition under that name. But Claudine presents no legal authority in support of 

her standing argument, which is thereby forfeited. Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018); 

see Epstein v. Davis, 2017 IL App (1st) 170605, ¶ 24 (“[T]he section of [appellant’s] appellate 

brief addressing the motion in limine consists only of argument and fails to cite a single case, 

statute, or legal authority. We therefore consider the issue forfeited.”). 

¶ 37 Section 508 of the IMDMA 

¶ 38 Finally, Claudine argues that the trial court should have granted her motion for 

reconsideration based on section 508 of the IMDMA, which governs fee petitions in marital 

dissolution proceedings. DSW argues that Claudine’s argument is forfeited and, in any event, 

lacks merit. We agree.

¶ 39 We review the trial court’s denial of a motion for reconsideration on an abuse of 

discretion standard. Jones v. Live Nation Entertainment, Inc., 2016 IL App (1st) 152923, ¶ 29. 
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Here, the trial court found that Claudine forfeited her section 508 argument by raising it for the 

first time in her motion for reconsideration. It is well settled that “[a] party may raise a new 

issue for the first time in a motion to reconsider only when a party has a reasonable explanation

for why it did not raise the issue earlier in the proceedings.” (Emphasis in original.) In re

Marriage of Epting, 2012 IL App (1st) 113727, ¶ 41. Because Claudine has not provided any 

such explanation, we find no abuse of discretion in the trial court’s denial of her motion. 

¶ 40 Nor do we find any merit in Claudine’s interpretation of the IMDMA. Section 508 sets 

forth two alternative methods by which counsel in a dissolution of marriage proceeding may 

pursue recovery of attorney fees from their own client or former client. First, counsel may file a 

Petition for Setting Final Fees and Costs in the dissolution proceeding. 750 ILCS 5/508(c) (West 

2018). Such petitions are governed by section 508(c), which provides, in relevant part: 

 “(2) No final hearing under this subsection (c) is permitted unless: *** (iii) 

judgment in any contribution hearing on behalf of the client has been entered or the right 

to a contribution hearing under subsection (j) of Section 503 has been waived.” Id.

See also 750 ILCS 5/503(j) (West 2018) (providing that parties in a dissolution action may file a 

petition for contribution to fees and costs incurred in the proceeding). 

¶ 41 Alternatively, counsel may file an independent breach of contract action under section

508(e): 

 “(e) Counsel may pursue an award and judgment against a former client for legal 

fees and costs in an independent proceeding in the following circumstances: 

 (1) While a case under this Act is still pending, a former counsel may 

pursue such an award and judgment at any time subsequent to 90 days after the 
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entry of an order granting counsel leave to withdraw.” 750 ILCS 5/508(c) (West 

2018). 

¶ 42 Claudine argues that resolution of DSW’s fee petition was premature under section 

508(c)(2)(iii), since the court did not hold a section 503(j) hearing as to whether Jeffrey should 

be required to contribute to her attorney fees. But, by its plain language, section 508(c)(2) 

applies only to a “final hearing under this subsection (c).” 750 ILCS 5/508(c) (West 2018). 

DSW did not file a section 508(c) Petition for Setting Final Fees and Costs; instead, it filed an 

independent proceeding against Claudine pursuant to section 508(e). Contrary to Claudine’s 

assertion, DSW did not thereby “circumvent the IMDMA,” since section 508(e)(1) explicitly 

permits counsel to file an independent action for recovery of fees while the underlying 

dissolution action is still pending, as long as more than 90 days have passed since counsel was 

granted leave to withdraw.1

 Thus, the trial court was not required to hold a section 503(j) 

hearing before ruling on DSW’s fee petition. 

¶ 43 Lastly, Claudine contends that the trial court erred by barring her from naming Jeffrey as 

a third-party defendant. The record flatly refutes this contention. In its January 13, 2017 order, 

the trial court explicitly stated that “[t]o the extent the defendant wishes to file a third-party claim 

for affirmative relief against Jeffrey Minogue or any other party, she is free to do so.” Claudine 

did not file any such claim and cannot now blame the trial court for her own inaction. 

¶ 44 CONCLUSION

¶ 45 For the foregoing reasons, the judgment of the trial court is affirmed. 

¶ 46 Affirmed. 

1

 DSW was granted leave to withdraw as Claudine’s counsel on March 11, 2016, and 

filed the present action 101 days later on June 20, 2016.