Fee Request More Than 30 Days After Final Order Doomed For Lack Of Jurisdiction

This posting is not strictly about appellate practice, but it’s worthwhile to read here because it answers the question of how long you have after a final order is entered to ask the trial court for attorney fees. And how long do you have to request fees after the trial court allows an interlocutory appeal? These are questions trial attorneys ask me a lot.

Timothy and Michael Herlehy felt they were shortchanged in their great-aunt’s trust. When she died, the Herlehys sued the trustee, First National Bank of LaGrange, and five charities that were residuary beneficiaries of the trust. The claim against LaGrange Bank was for breach of fiduciary duty in administering the trust. The Herlehys felt the charities received more money than they were entitled to, so the claim against the charities was for unjust enrichment.

The trial court dismissed the complaint against LaGrange Bank because it did not have a duty to change the trust in keeping with the Herlehys’ wishes. After it won, the bank asked for an award of its attorney fees, but the trial court denied that request because, it said, it did not have jurisdiction to consider the question.

The bank appealed the trial court’s ruling that it did not have jurisdiction to consider the bank’s request for its attorney fees. But the First District Illinois Appellate Court affirmed the ruling, agreeing that the fee request came too late. It was too late because it was filed more than 30 days after the dismissal became final and appealable.

The appellate court ruled that LaGrange’s fee request was not a post-trial motion, and was not collateral or incidental to the judgment, any one of which could be made more than 30 days after a final order. The appellate court ruled the bank’s judgment became final when the trial court made a finding under Illinois Supreme Court Rule 304(a) [allowing an appeal before all claims against all parties are determined]. So the fee request should have been made within 30 days of the Rule 304(a) finding.

In any event, the bank’s and the charities’ judgments were affirmed. Click here to read the whole case, Herlehy v. Marie V. Bistersky Trust, Nos. 1-09-0038, 1-09-1892, 1-09-3295, 1-09-3431, 1-10-0070, 1-10-0071 (12/23/10).

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