Aliano v. Sears, Roebuck & Co. , 400 Ill. Dec. 799 ( 2015 )

2015 IL App (1st) 143367SIXTH DIVISION
Opinion Filed: December 30, 2015
No. 1-14-3367
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
MARIO ALIANO, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) No. 14 L 000366
)
SEARS, ROEBUCK AND CO., ) Honorable
) Thomas More Donnelly,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HOFFMAN delivered the judgment of the court, with opinion.
Presiding Justice Rochford and Justice Delort concurred in the judgment and opinion.
OPINION
¶1 Sears, Roebuck and Co. (Sears) appeals from a $3.10 judgment entered by the circuit court
in favor of the plaintiff, Mario Aliano, on his claim brought pursuant to the Consumer Fraud and
Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2008))
and the circuit court's subsequent award of $157,813.53 in attorney fees pursuant to section 10a(c)
of the Consumer Fraud Act (815 ILCS 505/10a(c) (West 2008)). For the reasons which follow,
we affirm the $3.10 judgment entered in favor of the plaintiff, reverse the award of $157,813.53 in
attorney fees, and remand the matter for further proceedings.
No. 1-14-3367
¶2 On April 23, 2009, the plaintiff filed a five-count class-action complaint, alleging, inter
alia, that Sears wrongfully collected sales tax on the entire sale price of digital-to-analog television
converter boxes (converter boxes), despite the fact that a portion of the retail price of the devices
was subsidized by federally-funded coupons (NTIA Coupons) which are exempt from Illinois
sales tax. Although the complaint was amended several times, the matter proceeded on plaintiff's
class-action claims until October 27, 2011, when he withdrew his motion for class certification,
and the matter was transferred to the municipal department of the circuit court for further
proceedings on the plaintiff's individual Consumer Fraud Act claim.
¶3 On January 10, 2013, the matter was tried, and on July 16, 2013, the circuit court issued a
17-page written order containing its findings of fact and conclusions of law and entering a
judgment in favor of the plaintiff in the amount of $3.10. On July 31, 2013, the plaintiff filed a
fee petition seeking $252,402.08 in attorney fees and costs. The circuit court conducted a hearing
on the plaintiff's fee petition on September 4, 2014, and on October 6, 2014, entered an order
awarding the plaintiff attorney fees in the amount of $157,813.53. This appeal followed.
¶4 In urging reversal of the underlying $3.10 judgment, Sears argues that the circuit court
erred both in entering a judgment in favor of the plaintiff in the absence of a finding that he was
deceived by any alleged misrepresentation by one of its sales associates, and in holding that its
"collection of excess sales tax from Plaintiff is a de jure deceptive practice violation of the
[Consumer Fraud Act]." We reject both arguments.
¶5 Section 10a(a) of the Consumer Fraud Act authorizes a private right of action for "[a]ny
person who suffers actual damage as a result of a violation of [the] Act." 815 ILCS 505/10a(a)
(West 2008). The elements of a claim under the Consumer Fraud Act are: (1) a deceptive act or
practice by the defendant; (2) the defendants intent that the plaintiff rely on the deception; (3) the
occurrence of the deception in the course of conduct involving trade or commerce; and (4) actual
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damages to the plaintiff proximately caused by the deception. Avery v. State Farm Mutual
Automobile Insurance Co., 216 Ill. 2d 100, 180 (2005). When, as in this case, a claim brought
pursuant to the Consumer Fraud Act is based upon a misrepresentation, the plaintiff must prove
that he was actually deceived in order to establish the element of proximate cause. Avery, 216 Ill.
2d at 199. However, in order to recover based upon a misrepresentation, a plaintiff need not
establish scienter as even innocent misrepresentations may be actionable under the Consumer
Fraud Act. Duran v. Leslie Oldsmobile, Inc., 229 Ill. App. 3d 1032, 1039 (1992).
¶6 Certain of the facts giving rise to the plaintiff's Consumer Fraud Act claim are not in
dispute. In January of 2008, the National Telecommunications and Information Administration
of the United States Department of Commerce began administering a federally-funded program
enabling each household in the country to receive two NTIA Coupons that could be used for the
purchase of eligible converter boxes which enable analog televisions to receive digital signals.
Upon purchasing a qualifying converter box, an individual could present a NTIA Coupon to the
retailer and receive a credit against the purchase price of up to $40. The retailer would then be
reimbursed by the federal government for the lesser of $40 or the purchase price of the converter
box.
¶7 On July 1, 2008, the Illinois Department of Revenue issued an information bulletin,
informing all Illinois retailers that NTIA Coupons were exempt from Illinois sales tax and that
retailers were only to charge sales tax on the net sale price of a converter box after the value of a
NTIA Coupon was applied to reduce the retail price of the device. The record establishes that
Sears learned of the information bulletin in July of 2008.
¶8 On April 9, 2009, the plaintiff applied for, and thereafter received, two NTIA Coupons.
On April 19, 2009, he purchased a qualifying converter box from Sears at its Oak Brook store and
presented a NTIA Coupon at the time of the purchase. The retail price of the converter box which
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the plaintiff purchased was $59.99. The Sears sales associate who handled the transaction
calculated the sales tax based upon the full retail price, resulting in a sales tax charge of $4.65.
After adding $4.65 in sales tax to the $59.99 retail price of the converter box, the sales associate
then subtracted the $40 value of the plaintiff's NTIA Coupon from the $64.64 gross price and
charged the plaintiff $24.64. The plaintiff paid Sears the $24.64 calculated by its sales associate.
Had the sales tax on the transaction been calculated as directed in the Illinois Department of
Revenue's information bulletin, the $40 value of the plaintiff's NTIA Coupon should have been
subtracted from the $59.99 retail price of the converter box and sales tax charged only upon the
$19.99 remainder. If calculated properly, the plaintiff should only have been charged $1.55 in
sales tax, not $4.65. The miscalculation resulted in the plaintiff being overcharged $3.10 in sales
tax.
¶9 The plaintiff testified that he paid $24.64 for the converter box in reliance upon Sears's
sales associate's representation that he owed that sum. He stated that, at the time that he
purchased the converter box, he did not know that sales tax should not have been charged on the
$40 value of the NTIA Coupon which he tendered. According to the plaintiff, had he known that
Sears charged him too much for sales tax on the transaction, he would not have paid it.
¶ 10 In support of its argument that the plaintiff was not deceived when its sales associate
represented that he owed $24.64 on the transaction, which included the $3.10 sales tax overcharge,
Sears asserts that the plaintiff "went shopping for a law suit." Sears calls our attention to the fact
that, on March 16, 2009, one month prior to the plaintiff's purchase of the converter box which is at
issue in this action, Adrian Nava filed a class action lawsuit in the Circuit Court of Cook County
against Sears for improperly charging sales tax on the entire retail price of converter boxes
purchased with the use of NTIA Coupons. Nava v. Sears, Roebuck & Co., No. 09 CH 11800 (Cir.
Ct. Cook Co.). Coincidentally, the allegations in the plaintiff's original complaint are virtually
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identical to those in Nava's complaint. Sears refers to the plaintiff as a "professional class action
plaintiff" who has filed 23 class action complaints in the past eight years, using the same attorneys
that represent him in this action. The implication being that the plaintiff was not deceived by any
misrepresentation made by Sears's sales associate, but rather he knew before purchasing the
converter box that he would be overcharged for sales tax on the transaction and made the purchase
so that he could file the instant action.
¶ 11 The facts relied upon by Sears could certainly support the inference that the plaintiff was
not deceived by the representations of Sears's sales associate as to the net amount that he owed and
that he was well aware at the time that he purchased the converter box that sales tax should not
have been assessed on the $40 value of the NTIA Coupon which he tendered. However, the
circuit court did not draw those inferences. Rather, in its order of July 16, 2013, the circuit court
specifically found that: (1) the plaintiff paid Sears $24.64 on the purchase of the converter box in
reliance upon its sales associate's representation that he owed that sum; (2) at the time of the
transaction, the plaintiff did not know that sales tax should not have been charged on the $40 value
of the NTIA Coupon which he tendered; and (3) had the plaintiff known that he was being
overcharged for sales tax, he would not have paid the sum. The circuit court's findings in this
regard rest upon the credibility of the plaintiff's testimony.
¶ 12 The circuit judge had the opportunity to see and hear the plaintiff while testifying and was
in a far better position to judge his credibility. When, as in this case, the circuit court's findings of
fact depend upon the credibility of a witness, we defer to the circuit court's findings unless they are
against the manifest weight of the evidence. Chicago Investment Corp. v. Dolins, 107 Ill. 2d 120,
124 (1985). A factual finding is against the manifest weight of the evidence only when an
opposite conclusion is clearly apparent or when the finding appears to be unreasonable, arbitrary,
or not based upon the evidence. Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 242 (1996).
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Whether we might have reached the same conclusion is not the test of whether the circuit court's
factual finding is against the manifest weight of the evidence, the appropriate test is whether there
is any evidence in the record to support its finding. In re Estate of Wilson, 238 Ill. 2d 519, 570
(2010).
¶ 13 The plaintiff's testimony, if believed, is sufficient to support the circuit court's findings that
he relied upon the representation of Sears's sales associate that he owed $24.64 on his purchase of
the converter box which sum included $4.65 in sales tax and that he would not have paid that sum
had he known that he was overcharged $3.10 in sales tax. Based upon the record before us, we
are unable to conclude that the circuit court's findings are against the manifest weight of the
evidence; and, although the circuit court did not make a specific finding that the plaintiff was
deceived by the sales associate's representation as to the amount owed, that is the only conclusion
which could reasonably be drawn from its factual findings.
¶ 14 Sears also argues that the circuit court erred in holding that its collection of excess sales tax
from the plaintiff "is a de jure deceptive practice violation" of the Consumer Fraud Act. We
disagree with the proposition as stated.
¶ 15 Although the circuit court's written order of July 16, 2013, states that "[c]harging sales tax
in excess of the amount authorized by law is both deceptive and unfair," the findings of fact
contained within that order clearly reflect that Sears's liability was not predicated merely upon an
isolated miscalculation of the sales tax due on the plaintiff's purchase. The circuit court found
that, as early as July of 2008, Sears was aware that sales tax should not to be charged on the value
of a NTIA Coupon used to purchase a qualifying converter box, but it did not institute an
automated system at its retail stores to exempt the value of NTIA Coupons from the calculation of
sales tax. The circuit court also found that, in 281 transactions from April 1 through April 30,
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2009, Sears improperly charged customers sales tax on the value of NTIA Coupons used in the
purchase of converter boxes.
¶ 16 For these reasons, we reject Sears's assertion that the circuit court based its judgment on a
holding that its collection of excess sales tax from the plaintiff "is a de jure deceptive practice
violation" of the Consumer Fraud Act.
¶ 17 Sears has not argued that the circuit court erred in finding that it was engaged in trade or
commerce in the retail sale of converter boxes or that it intended consumers, such as the plaintiff,
to rely upon the representations of its sales associates as to the amount of sales tax due on the sale
of a converter box when a NTIA Coupon was used. Nor has it argued that the plaintiff suffered no
damage when he was overcharged $3.10 for sales tax at the time that he purchased a converter box
at one of its retail stores. As a consequence, any claim of error based upon the circuit court's
findings as to these issues has been forfeited. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013).
Forfeiture aside, our examination of the record reveals that the circuit court's findings in this regard
are amply supported by the evidence of record. We conclude, therefore, that the plaintiff proved
each element of his Consumer Fraud Act claim, and we affirm the $3.10 judgment entered against
Sears.
¶ 18 Next, we address Sears's appeal from the circuit court's award of $157,813.53 in attorney
fees pursuant to section 10a(c) of the Consumer Fraud Act (815 ILCS 505/10a(c) (West 2008)).
Sears argues that the circuit court erred by: (1) awarding fees without determining their
reasonableness; (2) awarding fees for unreasonable services; (3) awarding fees based upon hourly
rates supported by insufficient evidence as to their reasonableness; and (4) admitting the plaintiff's
attorneys' computerized billing records into evidence in the absence of the underlying time sheets.
Since we find that Sears's argument directed to the admissibility of the plaintiff's attorneys'
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itemized billing statement which was attached to the fee petition is dispositive, we will address that
issue first.
¶ 19 Section 10a(c) of the Consumer Fraud Act provides that, except in circumstances not
relevant to this case, in any action brought pursuant section 10a of the statute, the court may award,
in addition to other relief, "reasonable attorney's fees and costs to the prevailing party." 815 ILCS
505/10a(c) (West 2008). Only reasonable fees may be awarded, and the party seeking fees bears
the burden of presenting sufficient evidence from which the circuit court can base a decision as to
their reasonableness. Huss v. Sessler Ford, Inc., 343 Ill. App. 3d 835, 843 (2003). The party
seeking fees must present a petition with detailed records containing facts and computations upon
which charges are based, specifying the service performed, by whom they were performed, the
time expended, and the hourly rate charged. Huss, 343 Ill. App. 3d at 843.
¶ 20 Here, the plaintiff filed a petition seeking an award of $252,402.08 for attorney fees and
costs. Attached to that petition was an itemized statement dated July 31, 2013, reflecting the
services performed by Zimmerman Law Offices, P.C., the law firm that represented the plaintiff in
this action. The statement contained 518 entries setting forth a description of the work
performed, the date each task was performed, the initials of the attorney or paralegal who
performed each task, the time expended, and the hourly rate charged. The statement also listed all
expenses incurred in representing the plaintiff.
¶ 21 Sears filed a response to the plaintiff's fee petition arguing, inter alia, that the destruction
of the underlying time sheets upon which the statement was based rendered the document
inadmissible as evidence supporting an award of fees.
¶ 22 A hearing was held on the plaintiff's fee petition on September 4, 2013. At the
commencement of that hearing, the parties elected to rest on their written submissions and not to
offer any additional evidence. The circuit court entertained argument from counsel for both
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parties addressing, among other issues, the admissibility of the billing statement attached to the fee
petition. Well into the argument, the circuit court offered the parties the opportunity to present
additional evidence. Thomas A. Zimmerman, Jr., the sole shareholder of Zimmerman Law
Offices, P.C., elected to testify in support of the admissibility of the billing statement. He was
sworn and testified in narrative form.
¶ 23 Mr. Zimmerman testified to the billing procedures of his law firm and the manner in which
the billing statement attached to the fee petition was prepared. According to Mr. Zimmerman, the
attorneys and paralegal that worked on the plaintiff's case would complete written time sheets on a
daily basis which contained the name of the case, a description of the work performed, the date it
was done, the name of the attorney or paralegal performing the work, and the time that it took to do
the work. The handwritten time sheets were placed on a shelf in his office. Mr. Zimmerman
stated that "every month or so" the handwritten time sheets are given to his secretary and she enters
them verbatim into a computer program known as Time Slips which produces an itemized
statement. Mr. Zimmerman testified that, after an itemized statement was produced by the
computer, he compared the entries with the handwritten time sheets to ensure accuracy. In
response to a question by Sears' attorney on cross-examination, Mr. Zimmerman stated: "Once I
go through and check the time sheet against the statement, I throw the time sheets out." When
questioned as to the amount of time that the written time sheets remained on the shelf in his office
before being entered into the computer, Mr. Zimmerman testified that it would have been
"somewhere in the area" of one or two months.
¶ 24 Following Mr. Zimmerman's testimony, the circuit court entertained additional argument
and, thereafter, entered an order requiring the parties to submit agreed calculations reflecting:
that portion of the July 31, 2013, billing statement attributable to services rendered from June 7,
2010, to May 6, 2013; that portion of the statement reflecting services rendered from October 27,
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2011, to May 6, 2013; and calculations for those same periods excluding entries where
discrepancies exist as compared to an earlier billing statement dated January 30, 2012. The
hearing was then adjourned, and the circuit court took the matter under advisement.
¶ 25 On September 15, 2013, the parties filed their joint stipulation as ordered by the circuit
court. According to that stipulation, the claimed attorney fees set forth in the itemized billing
statement of July 31, 2013, for the period from June 7, 2010, to May 6, 2013, is $197,650.96. For
the period from October 27, 2011, to May 6, 2013, the claimed attorney fees set forth in the July
31, 2013, statement is $160,897.53. After omitting all entries that were added to the July 31,
2013, billing statement which do not appear in the January 30, 2012, statement for the same
service dates, the claimed attorney fees set forth in the statement of July 31, 2013, for the period
from June 7, 2010, to May 6, 2013, is $189,412.96, and for the period from October 27, 2011, to
May 6, 2013, is $157,813.53.
¶ 26 On October 6, 2014, the circuit court entered an order awarding the plaintiff attorney fees
in the sum of $157,813.53. In its written order, the circuit court found that: the plaintiff won all
of the relief which he sought in his Consumer Fraud Act claim; no bad faith on the part of Sears
was shown; Sears has the ability to pay a fee award; and that a fee award would help deter other
retailers "from such caselessness [sic] regarding the taxation of such transactions in the future."
Finding that the plaintiff only prevailed on his individual Consumer Fraud Act claim in his
multi-count action, the circuit court reasoned that the fees earned after the dismissal of all of the
plaintiff's claims save for his individual Consumer Fraud Act claim were "presumably" earned in
furtherance of obtaining recovery on that remaining claim. The circuit court concluded that all of
the fees earned after the plaintiff's individual Consumer Fraud Act claim was transferred to the
municipal department of the circuit court on October 27, 2011, were earned in furtherance of
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obtaining relief under that claim. As to the amount of fees awarded, the circuit court's order states
as follows:
"While Aliano [the plaintiff] failed to produce the original time sheet, he
presented testimony that laid the foundation for admission of the bills as business
records. Mr. Zimmerman testified credibly (1) the time keeping software is
recognized as standard, (2) the input was generally entered in the regular course of
business reasonably close to the time actually worked by the attorneys, and (3) the
sources of information, method and time of preparation indicate its trustworthiness
and justify is admission. However, certain entries were not made reasonably close
to the work. Those cannot be admitted into evidence. As to the remainder, Mr.
Zimmerman testified credibly as to the sources of information, method and time of
preparation such that his testimony establishes [the] bills' trustworthiness and
justif[ies] their admission.
For the following [sic] reasons[,] the court awards attorney fees in the
amount of $157,813.53."
¶ 27 It is apparent from the above quoted portion of the circuit court's order and the parties' joint
stipulation that, after omitting entries added to the July 31, 2013, billing statement, which do not
appear on the January 30, 2012, statement, the circuit court awarded 100% of the fees claimed by
the plaintiff for services rendered from October 27, 2011, to May 6, 2013. The circuit court
declined to award the plaintiff any fees for the legal services rendered by his attorneys prior to
October 27, 2011. However, any claim of error as a consequence of the failure to award fees for
services rendered prior to that date has been forfeited as the plaintiff did not file a cross-appeal.
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¶ 28 The propriety of the fee award rests initially upon the admissibility of the July 31, 2013,
billing statement as there is no other evidence of record from which a fee award could be
calculated.
¶ 29 A circuit court's ruling on the admissibility of evidence will not be disturbed on appeal
absent an abuse of discretion. Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 92
(1995). The circuit court abuses its discretion when its ruling on the admissibility of evidence
rests on an error of law. Peeples v. Village of Johnsburg, 403 Ill. App. 3d 333, 339 (2010).
¶ 30 Sears argues that the circuit court erred in admitting the July 31, 2013, billing statement
into evidence by reason of the plaintiff's inability to produce the original time sheets upon which
the statement is based. As earlier noted, the circuit court found that the plaintiff failed to produce
his attorneys' original time sheets, and Mr. Zimmerman testified that those time sheets had been
purposefully discarded. The plaintiff argues that the itemized billing statement of July 31, 2013,
was properly admitted into evidence pursuant to the business record exception to the hearsay rule.
The resolution of this issue rests on the distinction between computer-generated records and a
printout of computer-stored data.
¶ 31 Computer-generated records are the spontaneously created tangible results of the internal
electrical and mechanical operations of a computer itself and which are not dependent upon the
observations and reporting of a human declarant. Examples include a record of conditions on an
aircraft produced by a flight recorder device, a record of geophysical occurrences produced by a
seismograph, and billing data generated instantaneously by a computer when a telephone call is
made. See People v. Holowko, 109 Ill. 2d 187, 191-93 (1985); People v. Houston, 288 Ill. App.
3d 90, 98-99 (1997). The admission into evidence of computer-generated records "requires only
foundational proof of the method of the recording of the information and the proper functioning of
the device by which it was effected." Holowko, 109 Ill. 2d at 193. In contrast, computer-stored
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records consist of information placed into a computer by an out-of-court declarant.
Computer-stored data is admissible under the business records exception to the hearsay rule if "(1)
the electronic computing equipment is recognized as standard, (2) the input is entered in the
regular course of business reasonably close in time to the happening of the event recorded, and (3)
the foundation testimony establishes that the source of the information, method and time of
preparation indicate its trustworthiness and justify its admission." Houston, 288 Ill. App. 3d at
98. When, however, computer-stored records sought to be admitted are the product of human
input taken from information contained in original documents, the original documents must be
presented in court or made available to the opposing party, and the party seeking admission of a
record of that consumer-stored data must be able to provide testimony of a competent witness who
has seen the original documents and can testify to the facts contained therein. In re Marriage of
DeLarco, 313 Ill. App. 3d 107, 115-16 (2000); Landmark Structures, Inc. v. F.E. Holmes & Sons
Construction Company, Inc., 195 Ill. App. 3d 1036, 1051 (1990). When the original documents
have been destroyed by the party offering secondary evidence of their content, the secondary
evidence is not admissible unless, by showing that the destruction of the original documents was
accidental or was done in good faith and without any intention to prevent their use as evidence, the
party offering the secondary evidence repels every inference of fraudulent design in the
destruction of the original documents. Lam v. Northern Illinois Gas Co., 114 Ill. App. 3d 325,
332-33 (1983).
¶ 32 In this case, the billing statement of July 31, 2013, upon which the plaintiff's fee petition is
based, is the product of human input of data derived from original time sheets into a computer
program known as Time Slips. The billing statement is nothing more than a tangible printout of
that computer-stored data, consisting of approximately 518 entries. Assuming for the sake of
analysis, but not deciding, that the circuit court's determination that Mr. Zimmerman's testimony
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satisfied the foundational requirements necessary to support a finding that the billing statement is a
business record of the Zimmerman Law Offices, P.C., we nevertheless find that admitting the
documents into evidence was an abuse of discretion.
¶ 33 The original time sheets underlying the July 31, 2013, billing statement, having been
discarded by the plaintiff's attorneys, were not and could not, be produced. As a consequence,
Sears was deprived on an opportunity to test the reliability and accuracy of the statement by
comparing the entries contained therein with the original time sheets upon which those entries are
based and through cross-examination of Mr. Zimmerman. In the case of DeLarco, the Second
District of the Appellate Court held that it was error for the circuit court to admit into evidence an
itemized bill for attorney fees which consisted of a printout of computer-stored data that otherwise
satisfied the foundational requirements of a business record when the party seeking admission of
the printout failed to make the original documents upon which the printout was based available to
the opposing party. DeLarco, 313 Ill. App. 3d at 114-16. The facts in DeLarco are virtually
indistinguishable from those present in the instant case. In both cases, the document sought to be
admitted consisted of a computer-generated statement for legal services. In each case, the
attorneys performing the services completed time sheets and a member of the law firm's clerical
staff periodically entered the information contained on those time sheets into a computer using a
Time Slips program. That program was then used to generate itemized billing statements, which
in this case was the July 31, 2013, billing statement attached to the fee petition. In neither case
were the original time slips available for examination by the party opposing the request for fees.
The DeLarco court reversed the circuit court's fee award as a consequence. DeLarco, 313 Ill.
App. 3d at 116.
¶ 34 Based upon the reasoning in DeLarco, we find that the circuit court erred as a matter of law
in admitting the July 31, 2013, billing statement into evidence in the absence of the plaintiff's
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production of the original time sheets and in relying upon that statement in calculating the
plaintiff's recoverable fees. Absent the July 31, 2013, billing statement, there is no evidence in
the record from which a reasonable fee could be calculated and the fee award of October 6, 2014,
must be reversed. That is not to say, however, that the plaintiff is not entitled to an award of
reasonable attorney fees and costs. The record before us demonstrates that the plaintiff's
attorneys, in fact, expended time and effort in the prosecution of this case. Had the July 31, 2013,
billing statement been excluded from evidence at the time of the September 4, 2013, hearing on the
fee petition, the plaintiff would have been afforded the opportunity to attempt to establish the
reasonable fees to which he is entitled by means other than the billing statement. It is for this
reason that we remand this matter back to the trial court with directions to grant the plaintiff an
opportunity to prove the reasonable fees to which he is entitled through admissible evidence.
¶ 35 Having reversed the circuit court's attorney fee award based upon its erroneous
admission of the billing statement attached to the plaintiff's fee petition, we need not address
Sears's other assignments of error addressed to that award.
¶ 36 For the reasons, stated we: affirm the circuit court's order of July 16, 2013, entering
judgment in favor of the plaintiff and against Sears in the sum of $3.10; reverse the circuit court's
order of October 6, 2014, awarding the plaintiff $157,813.53 in attorney fees; and remand this
cause back to the circuit court to conduct a hearing to determine the reasonable fees to which the
plaintiff is entitled pursuant to section 10a(c) of the Consumer Fraud Act.
¶ 37 Affirmed in part; reversed in part and remanded.
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