Too Late (Part 2): Can Your Fees Request Wait?


Earlier today, we previewed Bjork v. O'Meara, a case about the perils of challenging a will too late. Now we preview a case about timing your claim for attorneys fees: Rodriquez v. Department of Financial and Professional Regulation [pdf].

The defendant Department sued Rodriquez for violating the Medical Practice Act. The parties agreed to stay all proceedings while the defendant argued about the rules of game: he believed that the discovery and evidence rules were unlawful. In the end, he had some success: the courts refused to grant him deposition subpoenas, but struck down section 1110.220 of the Department's rules for administrative proceedings. The Department closed the file, but the plaintiff wasn't finished -- he sued for his legal fees incurred in killing off section 1110.220.

The case turns on Section 55(c) of the Administrative Procedure Act: "In any case in which a party has any administrative rule invalidated by a court for any reason . . . the court shall award the party bringing the action the reasonable expenses of the litigation, including reasonable attorneys' fees."

But when can such a claim be brought, the Attorney General asked -- usually, attorneys' fees claims are coupled with the underlying action. Since the administrative claim was over when the attorneys' fees claim started, had the plaintiff waited too long?

No, the Appellate Court held. The statute said nothing about a time limit, and the claim for fees didn't accrue until the rule was struck down anyway.  The court followed the decision in Town of Libertyville v. Bank of Waukegan, 152 Ill.App.3d 1066, 1073 (1987), holding that a claim for fees was collateral to the underlying action when it was outside the issues in the case and the authorizing statute set no time limit for the claim.

Is a claim for fees lost if it's not coupled with a challenge to administrative rules? One can imagine an efficiency argument for answering the question "yes," despite the lack of limitations in the statute. We should learn the answer late this year or sometime in 2013 from the Illinois Supreme Court.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Sedgwick LLP | Attorney Advertising

Written by:


Sedgwick LLP on:

JD Supra Readers' Choice 2016 Awards
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.