Thomas v. Weatherguard Construction Company, Inc. , 2018 IL App (1st) 171238 ( 2019 )

Digitally signed by
Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2019.05.28
09:05:54 -05'00'
Thomas v. Weatherguard Construction Co., 2018 IL App (1st) 171238
Appellate Court RAYMOND THOMAS, Plaintiff-Appellee, v. WEATHERGUARD
Caption CONSTRUCTION COMPANY, INC., Defendant-Appellant.
District & No. First District, Fourth Division
Docket No. 1-17-1238
Filed December 27, 2018
Rehearing denied February 13, 2019
Decision Under Appeal from the Circuit Court of Cook County, No. 16-L-6955; the
Review Hon. Joan E. Powell, Judge, presiding.
Judgment Affirmed.
Counsel on Mark L. LeFevour, of M.L. LeFevour & Associates, Ltd., of Burr
Appeal Ridge, for appellant.
Arnold E. Toole, of Toole Law Office, LLC, of Chicago, for appellee.
Panel JUSTICE GORDON delivered the judgment of the court, with
opinion.
Presiding Justice McBride and Justice Burke concurred in the
judgment and opinion.
OPINION
¶1 In 2007, plaintiff Raymond Thomas sued defendant Weatherguard Construction Company,
Inc., alleging that defendant was his employer and owed him $47,666 in commissions for
contracts that plaintiff had procured on defendant’s behalf. Thomas v. Weatherguard
Construction Co., 2015 IL App (1st) 142785, ¶¶ 1, 3. In 2014, after a bench trial, the trial court
found that defendant was indeed plaintiff’s employer and did owe plaintiff commissions but
awarded plaintiff only $9226.52 in damages, or roughly one-fifth of what plaintiff had
originally sought. Thomas, 2015 IL App (1st) 142785, ¶ 1. On the subsequent appeal in 2015,
this court affirmed the trial court’s judgment in plaintiff’s favor and the trial court’s damages
award of $9226.52 plus costs. Thomas, 2015 IL App (1st) 142785, ¶¶ 1, 40.
¶2 However, this court “remand[ed] this case to the trial court for the limited purpose of
applying the attorney fees provision of the 2011 amendment [to the Illinois Wage Payment and
Collection Act] retroactively and awarding plaintiff ‘costs and all reasonable attorney’s
fees.’ ” Thomas, 2015 IL App (1st) 142785, ¶ 78 (quoting 820 ILCS 115/14(a) (West 2012)).
¶3 On remand, neither party requested an evidentiary hearing, and the trial court, who had also
presided over the bench trial, considered the issue based on the briefs and exhibits submitted
by the parties. On April 21, 2017, after 10 years of litigation, the trial court found that plaintiff
was “entitled to attorney fees in the amount of $178,449.97” and “costs in the amount of
$1,124.68,” for a total of $179,574.65, or roughly 20 times plaintiff’s damages award. It is this
April 21, 2017, order that is the primary subject of the present appeal.
¶4 In essence, plaintiff argues that we should focus on the 10 years of hard-fought litigation it
took for him to gain his award, while defendant argues that we should focus on the disparity
between the damages award and the attorney fees award.
¶5 Defendant also appeals from the denial of his petition to substitute judge after the matter
was remanded. For the following reasons, this court affirms.
¶6 BACKGROUND
¶7 On December 5, 2007, plaintiff filed a complaint that was amended on July 14, 2008; it
was the amended complaint on which the parties proceeded to trial. The amended complaint
alleged that defendant was in the business of repairing and replacing roofs, sliding doors, and
windows for homes that sustained damage due to weather conditions and that defendant hired
plaintiff on April 7, 2007, as a commissioned sales representative to solicit contracts for
defendant. Plaintiff alleged that defendant promised to pay him commissions equal to 20% of
the total value of the contracts and that defendant terminated his employment on July 9, 2007,
after plaintiff had secured contracts in the amount of $245,010.57. Plaintiff alleged that he was
entitled to commissions in the amount of $49,002.11, but had been paid only $1335.57, and
therefore was owed $47,666.54 in unpaid commissions. Plaintiff’s complaint sought
$47,666.54, as well as punitive damages and attorney fees.
¶8 Count I of the four-count complaint alleged that defendant violated the Sales
Representative Act (820 ILCS 120/1 et seq. (West 2006)), which requires a principal to pay a
sales representative earned commissions within 13 days after the representative’s termination
of employment. In the alternative, count II alleged that defendant violated the Illinois Wage
Payment and Collection Act (Wage Payment Act) (820 ILCS 115/1 et seq. (West 2006)),
-2-
which required an employer to pay an employee final compensation at the time of termination.
Count III was for breach of contract, alleging that defendant breached its oral contract with
plaintiff by failing to pay him as agreed, and count IV was for unjust enrichment.
¶9 In its answer, defendant denied that plaintiff was its employee, denied that it had any
business relationship with plaintiff, and denied that it owed plaintiff any commissions.
¶ 10 On June 12, 2010, defendant moved for summary judgment. The trial court granted the
motion with respect to the count based on the Sales Representative Act (count I) but denied the
motion with respect to all the other counts.
¶ 11 The bench trial began, and on June 28 and 29, 2011, plaintiff presented his case-in-chief,
calling only two witnesses: himself and Brett McDonald, defendant’s president and owner. On
July 13, 2011, defendant moved for a directed finding that the trial court denied on July 22,
2011. On November 9 and 10, 2011, defendant presented its case-in-chief, calling only one
witness: its president and owner, Brett McDonald. The primary issue at trial and on appeal was
whether plaintiff was, or was not, defendant’s employee. Thomas, 2015 IL App (1st) 142785,
¶ 43. Since that is not an issue on this appeal and since this court already described the
evidence at trial in detail in our prior opinion, we incorporate that opinion here by reference.
See Thomas, 2015 IL App (1st) 142785, ¶¶ 11-31 (describing the evidence at trial).
¶ 12 On January 25, 2013, the trial court issued a written order and opinion, finding that
plaintiff’s testimony was credible, that plaintiff and defendant had “an oral contract whereby
[plaintiff] was to receive commissions of 20% of the completed contract,” and that plaintiff
was entitled to a 20% commission on the net value of the 31 completed contracts that he had
secured. The trial court then directed the parties “to figure out the amount due on commissions
according to the finding above. In other words, use 20% of the net profits from each contract
secured by [plaintiff] that was accepted and built out by [defendant].”
¶ 13 The trial court also found that defendant was plaintiff’s employer for purposes of the Wage
Payment Act, that defendant had violated this act, and that plaintiff was therefore entitled to a
doubling of the amount of the commission award.
¶ 14 On April 4, 2013, defendant filed objections to the court’s ordered procedure, and on April
5, 2013, the trial court agreed to determine the amount of damages to be awarded. On April 17,
2014, the trial court awarded plaintiff $9226.52, doubled, plus court costs. On May 16, 2014,
defendant moved to reconsider, claiming that the trial court’s doubling of the commissions
pursuant to the Wage Payment Act was incorrect. In response, plaintiff claimed, among other
things, that the trial court should have also provided for attorney fees. On August 14, 2014, the
trial court vacated its prior April 17, 2014, order and awarded plaintiff $9226.52, plus costs,
but struck the doubling of the damages award.
¶ 15 Both parties filed notices of appeal, which this court consolidated. In our opinion, issued on
September 30, 2015, this court observed that the primary issue on appeal was whether the trial
court erred in finding that plaintiff was defendant’s employee. Thomas, 2015 IL App (1st)
142785, ¶ 43. Plaintiff also claimed, among other things, that he was entitled to attorney fees.
This court affirmed the trial court’s judgment and damages award but determined that plaintiff
was also entitled to costs and all reasonable attorney fees, and thus, we remanded the case for
the limited purpose of determining what those costs and reasonable attorney fees were.
Thomas, 2015 IL App (1st) 142785, ¶¶ 59, 75, 78.
-3-
¶ 16 Defendant filed a petition for rehearing, which this court denied on November 2, 2015, and
a petition for leave to appeal, which the Illinois Supreme Court denied on January 20, 2016. On
remand to the trial court, the parties submitted briefs and exhibits, and the court heard
argument. Neither party requested an evidentiary hearing, so none was held. On remand, the
trial judge was the same trial judge who had presided over the bench trial and issued the
underlying judgment in the case.
¶ 17 On remand, plaintiff submitted a fee petition on September 7, 2016, seeking attorney fees
of $169,037.49 and $1244.68, to date,1 for fees and costs incurred since September 2007. In
support, his attorney, Arnold Toole of Toole Law Offices, submitted his own affidavit and a
copy of the computerized records maintained by his office. Toole averred that each entry was
“made on or about the day the time [was] expended.” The computerized records included a list
of expenses.
¶ 18 Arnold Toole declared under penalty of perjury that he had personal knowledge of “all fees
and costs incurred in this matter”; that he was the only attorney in his law firm; and that he was
“the sole attorney representing [plaintiff] throughout this litigation,” except for trial and for
one court hearing where an attorney covered for him. Toole declared that he had been a
practicing attorney in Illinois for over 22 years and that he had significant experience
“handling labor and employment law matters,” including wage claims. His hourly rate was
$350 per hour, “except for status hearings, motion hearings and general court appearances,”
for which he billed at a lower flat rate of $200 per appearance.
¶ 19 In plaintiff’s petition for fees, which Toole wrote, Toole claimed that the matter was
complex because he had to prove that defendant was plaintiff’s employer without a written
employment agreement or W-2s and that he had to prove agency and the amount of
commissions. Toole also claimed that the appeal was complex because there were no Illinois
state cases directly on point, thereby requiring a considerable amount of research, and that he
had to respond not only to the appeal but also to defendant’s petitions for rehearing and for
leave to appeal.
¶ 20 In the petition, Toole also observed that, since “there is no fee petition from Attorney Jason
Bruce (also a very seasoned litigation attorney),” and plaintiff’s trial co-counsel, defendant “is
in effect receiving a ‘windfall.’ [Defendant] is not being charged for the substantial amount of
time that Attorney Bruce worked on trial and post-trial matters.” A footnote explains: “Shortly
before commencement of the trial, attorney Jason Bruce began working on this matter,
however none of Jason’s work is included in this, or any other, fee petition. Jason Bruce died in
2013, and there is no available record of his hours worked in this matter.”
¶ 21 Toole included the affidavits of three other attorneys who handle labor and employment
cases in the Chicago area and who swore to Toole’s experience in handling employment cases
and the range of hourly rates commensurate with Toole’s experience. All three attorneys
attested that Toole’s hourly rates were within, if not below, standard rates.
¶ 22 On September 21, 2016, defendant filed a request for production of documents seeking any
other records plaintiff had with respect to attorney fees and costs, as well as (1) “the last 10 fee
petitions” filed by Toole, (2) records showing that Toole “charged any client” $350 per hour,
and (3) all diaries or calendars for Toole for the last nine years. On September 21, 2016, the
1
Plaintiff later revised these amounts upward to encompass additional fees and costs incurred after
September 7, 2016. Infra ¶ 32.
-4-
trial court issued a written order stating, in relevant part, that defendant’s “request for
discovery is denied by the court for the reasons stated in court and on the record which is
incorporated herein.”
¶ 23 On the record, the trial court denied defendant’s document production request, stating:
“THE COURT: I’m surprised anybody would really even bring up a question about
this attorney fee petition. The costs are so low.
This is a Law Division case. It was a bench trial. There were complex issues. This
was on the commercial call.
Counsel only charges $200 *** to come to court, and on a commercial call with as
many as 30 cases a day before a judge to get heard, you all know you’re here sometimes
for hours, and this is one—$ 350 for trial time.
This is such a streamlined easy to read item by item fee petition[.]”
The trial court also expressed a concern about “incurring even more costs after having taken a
look at the fee petition and the low, low fees that are way below what I normally see in the Law
Division, and especially on a commercial call.”
¶ 24 Defense counsel then responded concerning specific documents that he had requested.
Concerning his request for Toole’s last 10 fee petitions, defense counsel stated that he (defense
counsel) “charge[d] this client $195” per hour and that he wanted to discover whether Toole
was asking for less from other courts. Concerning his request for other records relating to fees,
defense explained that he wanted “the metadata” that would “show whether or not these timed
entries were created contemporaneously or whether they were just entered sometime after the
fact.”
¶ 25 During the September 21, 2016, hearing, the trial court stated that it was “a little bit angry”
with defense counsel, and the court directed him, at one point, “to stop it now.” While the cold
transcript does not reveal what counsel was doing at the moment that the court told him “to
stop it,” the trial court had observed previously in the proceeding: “I’m looking at your body
language with your hands out, like what in the world are you talking about, Judge?”
¶ 26 After stating that it was a “bit angry” with defense counsel, the trial court “found that you
[(defense counsel)] have prolonged a lot of things,” “demeaned the other attorneys,” and
“made sarcastic remarks.” Defense counsel responded: “I feel that you are prejudiced against
me and I would ask that there be a change of judge for this hearing.” The trial court stated that
it found defense counsel to be “a difficult attorney,” primarily because of his sarcastic attitude
and behavior. However, the trial court stated that it was not prejudiced against defense counsel
and denied his motion to transfer the attorney fee petition to another judge.
¶ 27 Defense counsel then argued that attorney fees should be allowed only for fees associated
specifically with the Wage Payment Act claim, and he asked for 60 days to go through the
entire record before responding. Plaintiff responded: “That judgment and that interest keeps
accruing. There’s no effort to make a payment.” The trial court gave defendant until November
14, 2016, or over 60 days since the September 7 fee petition was filed, to respond.
¶ 28 The September 21, 2016, hearing ended with defense counsel apologizing to the trial court.
After the trial court observed that the bench trial had been “a little nasty,” defense counsel
stated:
“DEFENSE COUNSEL: Judge, if I may, part—just so you understand fully,
there’s a long history between Mr. Toole and I.
-5-
Many of the things Mr. Toole would say in front of the Court were not accurate.
Okay.
Maybe it’s my Irish. My Irish got up because I don’t like him saying stuff that was
not accurate about me.
So if you took it that I was responding to that inappropriately, I apologize to the
court. I never do that.
But when I’m—when somebody is saying something to a judge that is untrue about
me, then I will respond. And if the Court took that in the wrong way, I apologize to the
Court.
I am not like that. I’ve never been like that in my career.
THE COURT: I’m glad to know that. I accept your apology.”
After additional colloquy, the trial court repeated “I accept your apology, sir.” and defense
counsel stated: “Thank you.” The parties and the court then agreed that plaintiff’s reply brief
was due December 19, and the matter was to be set for a hearing on December 22, 2016.
¶ 29 On November 14, 2016, defendant filed its response to plaintiff’s fee petition, arguing
among other things (1) that the trial judge was biased, as evidenced by the trial judge’s remarks
at the last hearing, (2) that defendant lacked enough information to submit the petition for
expert analysis due to the court’s denial of defendant’s request for documents, (3) that the
petition failed to segregate the work performed on the Wage Payment Act claim, which
defendant argued was the only work for which plaintiff was entitled to fees, and (4) that the
appellate court order did not include fees for appellate work.
¶ 30 The following day, on November 15, 2016, defendant moved for substitution of judge for
cause, based on the trial judge’s remarks at the September 21, 2016, hearing. On December 2,
2016, the trial judge issued a response observing that defendant’s petition for substitution of
judge “present[ed] a lopsided account” and that “[i]t is apparent to this Court, at least, that
[defense counsel] is trying to create an issue.” The petition was then fully briefed by the parties
and transferred to the chief judge of the law division for reassignment.
¶ 31 On January 20, 2017, the petition was heard by Judge Ronald F. Bartkowicz. At the hearing
on the petition, Judge Bartkowicz observed that a trial judge had an obligation to ensure
civility in his or her courtroom and that, to accomplish that end, the judge could comment on
the demeanor of an attorney whose conduct fell outside the bounds of civility and that such
comments did not indicate any bias or prejudice against the attorney or his or her client. Judge
Bartkowicz found that, in the case at bar, Judge Powell’s comments about defense counsel’s
lack of civility did not indicate a bias that called for disqualification. Similarly, Judge
Bartkowicz observed that a judge has an obligation to determine whether a discovery request is
reasonable and proportionate to the issue at hand. In the case at bar, Judge Bartkowicz found
that Judge Powell “express[ed] some skepticism over the validity of [defendant’s] discovery
requests” and “that’s what the judge is supposed to do.” Denying the petition, Judge
Bartkowicz told defense counsel that “the protection that you have” is that the judge has “to
make specific findings” concerning the fees and their reasonableness. After the petition was
denied, the matter was transferred back to Judge Powell.
¶ 32 On March 3, 2017, plaintiff supplemented his fees petition with an itemization of the
additional fees incurred responding to (1) defendant’s objections to plaintiff’s fee petition and
-6-
(2) defendant’s petition for substitution of judge. Thus, as of March 3, 2017, plaintiff sought a
total of $181,366.66 in attorney fees and $1244.68 in costs.
¶ 33 On March 31, 2017, defendant filed a supplemental response with an expert report
authored by retired Judge Daniel Locallo that reviewed plaintiff’s fee petition. With respect to
the attorney fees, Judge Locallo opined (1) that it should not have taken Toole 45 hours to draft
a complaint or 13.75 hours to draft interrogatories, (2) that Toole’s $200 flat fee could have
been charged for five minutes in court, (3) that Toole failed to detail what occurred at trial and
posttrial meetings, and (4) that the great disparity between the damage award and the amount
requested for attorney fees shows that the requested amount was unreasonable. With respect to
costs, Judge Locallo opined that plaintiff should receive $968.35, rather than the $1244.68
requested, because plaintiff “should not receive printing fees.” While Judge Locallo opined
what an appropriate amount for costs would be, he did not opine what an appropriate amount
for attorney fees would be. On April 7, 2017, plaintiff filed an objection to the trial court’s
considering Judge Locallo’s report.
¶ 34 On April 19, 2017, the parties appeared in court for argument on the fee petition. After
observing that Judge Locallo was in the courtroom, the trial court stated: “This is not an
evidentiary hearing. You didn’t ask for one.” However, the trial court ruled that it was going to
consider Judge Locallo’s report over plaintiff’s objection.
¶ 35 On April 21, 2017, the trial court issued the attorney fees order that is the subject of the
present appeal. The detailed order is 14 pages long and single-spaced.
¶ 36 With respect to counsel’s rate, the trial court found that it was “within the prevailing range
(here, low average) for the experience of the attorney and the type of work done.” In reaching
this conclusion, the trial judge observed that she had been assigned to the law division for
seven years and had presided over “many bench trials and attorney fee petition” and, thus, was
aware of attorney rates. In addition, she found the three attorney affidavits provided by
plaintiff to be “helpful.” Based on this information, she found:
“In the Law Division, the range of attorney fees is about $325 an hour to $550 an hour,
and occasionally higher. Even back in 2007-2009, the range of fees was about $250 to
$500 an hour[.] Mr. Toole presents a fee petition at $350 an hour and even less for court
status and hearings. His fees are on the lower end of the prevailing rate.”
¶ 37 With respect to the disparity between the damage award and the fees requested, the trial
court found:
“The public policy purpose of the statute and the benefit to Plaintiff, where he does not
have to deduct attorney fees from the relatively small judgment award has been
considered by the Court and take[s] the issues here outside of standard proportionality
of damage awards to attorney fees comparisons for fee determination purposes.”
¶ 38 With respect to defendant’s argument that plaintiff could recover attorney fees only for
fees specifically connected to the Wage Payment Act, the trial court found:
“This was an aggressively fought case. It was not a simple Wage Act case. The
facts of this particular case made it more complex than typical Wage Act cases and
Plaintiff’s attorney succeeded not only in obtaining a judgment in Plaintiff’s favor but
also attorney fees… a battle that continued in the Appellate Court and back. Plaintiff
also presented a matter of first-impression. The Court[ ] finds that Mr. Toole’s work on
the case was necessary to obtaining the benefits received by the Plaintiff.
-7-
The Court finds that Plaintiff’s Sales Representative Act count, the Breach of
Contract count and alternative count of Unjust Enrichment were all part of the same
common core of facts and are legal theories related to the Wage Payment Act claim.
From the beginning, the Plaintiff was simply seeking payment of his
commissions/wages and the facts alleged were basically the same for all causes of
action. Plaintiff is entitled to all his fees and costs seeking that end.”
¶ 39 With respect to plaintiff’s request for posttrial and appellate fees, the trial court found that
“[t]he post-trial motion practice, appeal and more motion practice were a continuation of the
proceeding and an integral part of Plaintiff’s claim. Plaintiff was required to address all the
issues to maintain the benefit achieved.”
¶ 40 After considering each fee and cost, the trial court disallowed or reduced 11 entries, for a
total reduction of over $5000. The trial court then found that plaintiff was entitled to attorney
fees in the amount of $178,449.97 and costs in the amount of $1124.68, for a total of
$179,574.65.
¶ 41 On May 17, 2017, defendant filed a notice of appeal, stating that it was appealing both “the
April 21, 2017 Order on Plaintiff’s Petition for Attorney Fees and the January 20, 2017 Order
on Defendant’s Motion to Disqualify Judge Powell.” This timely appeal followed.
¶ 42 ANALYSIS
¶ 43 On this appeal, defendant claims (1) that the trial court was biased against it and that the
trial court erred in denying its petition for substitution of judge with cause, (2) that the trial
court erred in denying its document request, and (3) that the trial court’s award of attorney fees
is excessive. For the following reasons, we affirm.
¶ 44 I. Petition for Substitution of Judge
¶ 45 First, defendant argues that the trial court was biased against it and its counsel and that
Judge Bartkowicz erred in denying its petition for substitution of judge with cause.
¶ 46 This court has found that “[o]ur review of a circuit court’s ruling on a motion to substitute
judge is de novo.” Shachter v. City of Chicago, 2011 IL App (1st) 103582, ¶ 22. However, that
finding was based on a subsequently vacated opinion. This court has also found that our
standard of review is whether the finding was against the manifest weight of the evidence. In re
Marriage of Schweihs, 272 Ill. App. 3d 653, 659 (1995) (on appeal, we will “not reverse a
determination on allegations of [a trial judge’s] prejudice unless the finding is contrary to the
manifest weight of the evidence” (discussed in In re Estate of Wilson, 238 Ill. 2d 519, 558-59
(2010))); see also People v. Klein, 2015 IL App (3d) 130052, ¶ 83 (although both parties
argued for an against-the-manifest-weight standard, appellate court found de novo review
applied to question of law). Neither party in the case at bar has briefed or argued the standard
of review. Whether our standard is de novo or against the manifest weight, our finding would
be the same.
¶ 47 “A trial judge is presumed to be impartial, and the burden of overcoming this presumption
rests on the party making the charge of prejudice.” Eychaner v. Gross, 202 Ill. 2d 228, 280
(2002) (citing In re Marriage of Petersen, 319 Ill. App. 3d 325, 339 (2001), and In re
Marriage of Hartian, 222 Ill. App. 3d 566, 569 (1991)); see also People v. Vance, 76 Ill. 2d
171, 178 (1979) (“the burden of establishing actual prejudice rests” on the party alleging it).
-8-
The party making the charge of prejudice “must present evidence of personal bias stemming
from an extra-judicial source and evidence of prejudicial trial conduct.” Petersen, 319 Ill. App.
3d at 339; Hartian, 222 Ill. App. 3d at 569; see also Eychaner, 202 Ill. 2d at 280.
¶ 48 “Proving prejudice so as to justify a substitution for cause is a heavy burden and the
conclusion of prejudice will not be made lightly.” Petersen, 319 Ill. App. 3d at 340; see also
Eychaner, 202 Ill. 2d at 280 (“ ‘To conclude that a judge is disqualified because of prejudice is
not, of course, a judgment to be lightly made.’ ” (quoting Vance, 76 Ill. 2d at 179)). “A judge’s
rulings alone almost never constitute a valid basis for a claim of judicial bias or partiality.”
Eychaner, 202 Ill. 2d at 280; Hartian, 222 Ill. App. 3d at 569 (“Allegedly erroneous findings
and rulings by the circuit court are insufficient reasons to believe that the court had personal
bias or prejudice for or against a litigant.”); Vance, 76 Ill. 2d at 178 (“the fact that a judge has
ruled adversely” to a party “does not disqualify that judge from sitting” in subsequent matters).
¶ 49 In the case at bar, defendant does not offer any evidence of judicial bias or prejudice
stemming from an outside source. Instead, defendant bases its claim of bias solely on the
judge’s conduct and remarks during the proceedings. However, “ ‘judicial remarks during the
course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or
their cases, ordinarily do not support a bias or partiality challenge.’ ” Eychaner, 202 Ill. 2d at
281 (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). The exceptions are if the
remarks reveal a bias stemming from an extrajudicial source or “ ‘if they reveal such a high
degree of favoritism or antagonism as to make fair judgment impossible.’ ” Eychaner, 202 Ill.
2d at 281 (quoting Liteky, 510 U.S. at 555).
¶ 50 The remarks that the trial court made at the September 21, 2016, hearing do not display the
kind of deep-seated favoritism or antagonism that would make fair judgment impossible. The
trial court based its remarks on the conduct and behavior of counsel, which counsel himself
apologized for at the end of the hearing; after the trial court observed that the bench trial had
been “a little nasty,” defense counsel stated:
“DEFENSE COUNSEL: Judge, if I may, part—just so you understand fully,
there’s a long history between Mr. Toole and I.
Many of the things Mr. Toole would say in front of the Court were not accurate.
Okay.
Maybe it’s my Irish. My Irish got up because I don’t like him saying stuff that was
not accurate about me.
So if you took it that I was responding to that inappropriately, I apologize to the
court. I never do that.
But when I’m—when somebody is saying something to a judge that is untrue about
me, then I will respond. And if the Court took that in the wrong way, I apologize to the
Court.
I am not like that. I’ve never been like that in my career.
THE COURT: I’m glad to know that. I accept your apology.”
Whether we apply a de novo or an against-the-manifest-weight standard, we cannot find error
in the denial of defendant’s petition to substitute the trial judge for cause.
-9-
¶ 51 II. Document Request
¶ 52 Second, defendant argues that the trial court abused its discretion in denying its document
request after the case was remanded for the determination of reasonable attorney fees.
¶ 53 A trial court’s discovery order is ordinarily reviewed only for an abuse of discretion
(Klaine v. Southern Illinois Hospital Services, 2016 IL 118217, ¶ 13), and defendant does not
argue for a different standard of review. An abuse of discretion occurs only when the trial
court’s ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take
the view adopted by the trial court. In re Marriage of Heroy, 2017 IL 120205, ¶ 24; People v.
Patrick, 233 Ill. 2d 62, 68 (2009). On appeal, defendant’s primary argument is that the trial
court barred defendant from discovering whether plaintiff’s counsel had a contingent fee
arrangement or an hourly fee contract with plaintiff.2 However, defendant’s document request
did not ask for that information.
¶ 54 Defendant’s document request sought six items:
“1. Copies of any documents that Plaintiff maintains supports Plaintiff’s claim for
attorney’s fees or costs.
2. All materials related to the electronic billing records or any electronically stored
information related to any element of the claim for attorney’s fees or costs.
3. Copies of the last 10 fee petitions by Arnold Toole or Toole Law Office, L.L.C.
4. Copies of any documentation that supports that Arnold Toole or Toole Law
office, L.L.C. has charged any client $350.00 per hour.
5. Copies of the diary, date book or electronic calendar for Arnold Toole or Toole
Law Office, LLC from September 3, 2007 to September 2016.
6. Copies of all receipts for any and all costs or expenses.”
These six items made no reference to a contingency-fee arrangement. In addition, on
September 21, 2016, when the trial court heard argument concerning the request, defense
counsel explained why he wanted certain items but made no reference to a contingency-fee
arrangement. Arguments not made before the trial court are forfeited on appeal. Robinson v.
Toyota Motor Credit Corp., 201 Ill. 2d 403, 413 (2002) (arguments not raised before the trial
court are forfeited on appeal); Cambridge Engineering, Inc. v. Mercury Partners 90 BI, Inc.,
378 Ill. App. 3d 437, 456 (2007) (“issues not raised below are considered waived”). In
addition, to the extent that defendant is suggesting that shifting the expected payment of fees
from defendant to plaintiff is inappropriate, the purpose of the attorney fee provision, as we
discuss below (infra ¶¶ 69-71), is to shift fee payment from the plaintiffs, who may not
otherwise be able to afford suit, to their employers who allegedly withheld their wages. This
provision is how these attorneys make their money and the reason why they take these cases.
See Young v. Alden Gardens of Waterford, LLC, 2015 IL App (1st) 131887, ¶ 99.
¶ 55 In Young, this court observed that to interpret an attorney fee provision to cover only the
amount that a plaintiff obligated herself to pay in a contingent fee arrangement “would
seriously undermine the ability of employees who suffer *** at the hands of their employers to
obtain counsel willing to pursue such claims.” Young, 2015 IL App (1st) 131887, ¶ 99. In
2
On appeal, defendant argued: “Judge Powell did not permit [defendant] to conduct discovery into
whether the Plaintiff had a contingent fee arrangement with his attorney. As such, Judge Powell’s fee-
shifting analysis is fundamentally flawed and should be disregarded on that basis.”
- 10 -
Young, this court was considering an employee whistleblower act rather than the act in
question here; however, both acts involved employees attempting to recover from their
employers for alleged wrongdoing. Young, 2015 IL App (1st) 131887, ¶ 99. The limit that
defendant suggests “would do little to entice competent counsel to undertake an individual
employee’s representation.” Young, 2015 IL App (1st) 131887, ¶ 99. As a result, this court
rejected such an interpretation in Young, finding that “it would lead to an unjust result at odds
with the legislature’s purpose to protect employees from adverse employment actions.” Young,
2015 IL App (1st) 131887, ¶ 99. This finding applies equally to the case and statute in front of
us.
¶ 56 In arguing that recovery should be limited to the contingency fee if there is a
contingency-fee agreement, defendant relies primarily on Career Concepts, Inc. v. Synergy,
Inc., 372 Ill. App. 3d 395, 405-06 (2007). However, that case expressly states that it is
“distinguishable” from other cases “because no evidence was presented that the parties had a
fee-shifting provision” in either a statute or contract. Career Concepts, 372 Ill. App. 3d at
405-06. For example, the Career Concepts court observed that it was distinguishable from the
case of Med+Plus Neck & Back Pain Center, S.C. v. Noffsinger, 311 Ill. App. 3d 853, 861
(2000), where the contract at issue contained an explicit fee-shifting provision. Career
Concepts is different from cases like ours in which contracts and statutes put the parties on
notice, in advance, that fees may be shifted, instead of being borne by the individual parties as
is the typical case. In sum, we cannot find that the trial court erred in denying defendant’s
discovery request based on an alleged need to discover a contingency-fee agreement, where
defendant did not expressly request a contingency-fee agreement in discovery and where such
an agreement, if it existed, would not have limited the fee award in the case at bar.
¶ 57 In addition, defendant argues that, without the documents sought in its document request,
neither defendant nor the court could determine if Toole’s fee entries were made
contemporaneously or what Toole’s usual and customary charges were. However, Toole
averred in an affidavit that the entries were made contemporaneously,3 and the trial court
found, based on its own experience as a judge and on the three affidavits submitted by other
attorneys, that Toole’s rates were on the low side and that the time spent was reasonable. See
Young, 2015 IL App (1st) 131887, ¶ 114 (the hourly rate and time spent may be supported by
affidavits of other attorneys in the field and by the trial judge’s own knowledge, particularly
where the trial judge has presided over the litigation since its inception). We cannot find that
the trial court abused its discretion, particularly when defendant did not seek to cross-examine
on this issue by requesting an evidentiary hearing, if it had doubts about counsel’s credibility.
Cf. Young, 2015 IL App (1st) 131887, ¶ 113 (while evidentiary hearings for fee petitions are
not required in every case, they are available when a petition raises factual or credibility
issues).
¶ 58 Thus, we cannot find that the trial court abused its discretion by denying defendant’s
document request.
3
Toole averred in his affidavit, submitted with the petition for fees, that each entry on his attached
office records was “made on or about the day the time [was] expended.”
- 11 -
¶ 59 III. Attorney Fee Award
¶ 60 Lastly, defendant claims that the trial court’s award of attorney fees and costs is excessive.
¶ 61 Usually, parties are responsible for their own attorney fees. Career Concepts, 372 Ill. App.
3d at 405. However, if expressly authorized by statute or by agreement, the court may award
attorney fees and costs to a prevailing party so long as they are reasonable. Career Concepts,
372 Ill. App. 3d at 405. “A party can be considered to be a ‘prevailing party’ for the purposes of
a fee-shifting provision when it is successful on any significant issue in the action and achieves
some benefit in bringing suit, when it receives a judgment in its favor, or when it achieves an
affirmative recovery.” Med+Plus Neck, 311 Ill. App. 3d at 861; see also Career Concepts, 372
Ill. App. 3d at 406. “Whether and in what amount to award attorney fees is within the
discretion of the trial court and its decision will not be disturbed on review absent an abuse of
that discretion.” Med+Plus Neck, 311 Ill. App. 3d at 861. As we stated above, an abuse of
discretion occurs only when the trial court’s ruling is arbitrary, fanciful, unreasonable, or
where no reasonable person would take the view adopted by the trial court. Heroy, 2017 IL
120205, ¶ 24; Patrick, 233 Ill. 2d at 68.
¶ 62 First, defendant argues that plaintiff is entitled to only those attorney fees and costs related
specifically to the Wage Payment Act, while plaintiff argues that he is entitled to all fees and
costs of the lawsuit since the suit involved “a common core of facts” and “related legal
theories.” See Sandholm v. Kuecker, 2012 IL 111443, ¶ 66 (citing Hensley v. Eckerhart, 461
U.S. 424, 434-35 (1983)).
¶ 63 Generally, “where a plaintiff presents several claims for relief in the same lawsuit, and only
some of the claims for relief are successful, attorney fees may be allowed for all claims
involving a common core of facts or based on related legal theories.” Sandholm, 2012 IL
111443, ¶ 66 (citing Hensley, 461 U.S. at 434-35). The key word in that sentence is “may.” If
the fees are authorized by a particular statute, the court must scrutinize the particular language
and purpose of that statute to determine if it permits fees for related claims. See Sandholm,
2012 IL 111443, ¶¶ 65-66 (scrutinizing the language and purpose of the authorizing statute to
determine whether fees for related claims were authorized). To the extent that an attorney fee
determination involves the interpretation of a statute, that part of our analysis is subject to
de novo review. Sandholm, 2012 IL 111443, ¶ 64. De novo review means that an appellate
court performs the same analysis that a trial judge would perform. Sekura v. Krishna
Schaumburg Tan, Inc., 2018 IL App (1st) 180175, ¶ 26.
¶ 64 “With statutory construction, our primary goal is to ascertain the legislat[ors’] intent, and
the best indication of their intent is the plain and ordinary meaning of the words they chose to
use.” People v. Miles, 2017 IL App (1st) 132719, ¶ 25; State ex rel. Pusateri v. Peoples Gas
Light & Coke Co., 2014 IL 116844, ¶ 8 (citing Citizens Opposing Pollution v. ExxonMobil
Coal U.S.A., 2012 IL 111286, ¶ 23).
¶ 65 “When interpreting a statute, we do not read a portion of it in isolation; instead, we read it
in its entirety, keeping in mind the subject it addresses and the drafters’ apparent objective in
enacting it.” Miles, 2017 IL App (1st) 132719, ¶ 25; People v. Chatman, 2016 IL App (1st)
152395, ¶ 30. When considering the drafters’ objective, we examine the problems that the
legislature intended to remedy with the law and the consequences of construing it one way or
the other. People v. Almond, 2015 IL 113817, ¶ 34 (we “consider the reason for the law and the
problems intended to be remedied”); People v. Eppinger, 2013 IL 114121, ¶ 21 (legislative
- 12 -
intent may be ascertained by considering “the statute in its entirety, its nature and object, and
the consequences of construing it one way or the other”).
¶ 66 Where the language is plain and unambiguous, we apply the statute without resort to
further aids of statutory interpretation. In re Lance H., 2014 IL 114899, ¶ 11; Krohe v. City of
Bloomington, 204 Ill. 2d 392, 395 (2003); Maschek v. City of Chicago, 2015 IL App (1st)
150520, ¶ 44 (“If the statutory language is clear, we must apply it, without resort to any aids of
statutory construction.”). “If, and only if, the statutory language is ambiguous, we may look to
other sources to ascertain the legislature’s intent.” Maschek, 2015 IL App (1st) 150520, ¶ 44
(citing Krohe, 204 Ill. 2d at 395). “These other sources include primarily the statute’s
legislative history and debates.” Maschek, 2015 IL App (1st) 150520, ¶ 44 (citing Krohe, 204
Ill. 2d at 398). “When interpreting an ambiguous phrase in a statute, our supreme court looks
especially to the remarks of the bill’s sponsor.” Maschek, 2015 IL App (1st) 150520, ¶ 62
(citing Krohe, 204 Ill. 2d at 398); see also In re Pension Reform Litigation, 2015 IL 118585,
¶ 68 (giving more weight to the remarks of “the chief sponsor of the legislation”); Julie Q. v.
Department of Children & Family Services, 2013 IL 113783, ¶ 31 (quoting the sponsor’s
remarks when interpreting a statute). “The remarks made immediately prior to passage are
particularly important.” Maschek, 2015 IL App (1st) 150520, ¶ 62 (citing Poris v. Lake
Holiday Property Owners Ass’n, 2013 IL 113907, ¶¶ 51-53 (quoting the sponsors’ remarks in
order to interpret a statute and noting that, following these remarks, the bill passed)).
¶ 67 The Wage Payment Act provides, in relevant part:
“(a) Any employee not timely paid wages, final compensation, or wage supplements by
his or her employer as required by this Act shall be entitled to recover *** in a civil
action ***. In a civil action, such employee shall also recover costs and all reasonable
attorney’s fees.” 820 ILCS 115/14(a) (West 2010).
¶ 68 First, we observe that the statute unambiguously states “all reasonable attorney’s fees,”
without any limiting language except for the word “reasonable.” (Emphasis added.) 820 ILCS
115/14(a) (West 2010). Thus, the language is distinguishable from the language at issue in
Sandholm, where our supreme court limited attorney fees to only those fees related to the claim
in the act. Sandholm, 2012 IL 111443, ¶ 65. The act at issue in Sandholm provided: “The court
shall award a moving party who prevails in a motion under this Act reasonable attorney’s fees
and costs incurred in connection with the motion.” (Emphasis added.) 735 ILCS 110/25 (West
2008). Examining this statutory language, our supreme court found: “In our view, the language
in section 25 is unambiguous and supports only one interpretation. Attorney fees ‘incurred in
connection with the motion’ include only those fees which can specifically be delineated as
incurred in connection with the motion to dismiss filed under the Act.” Sandholm, 2012 IL
111443, ¶ 65 (quoting 735 ILCS 110/25 (West 2008)). While our supreme court acknowledged
that attorney fees are generally allowed for all claims involving a common core of facts, the
statute before it was an exception because “it specifically provides that only fees ‘incurred in
connection with the motion’ filed under the Act are allowed.” Sandholm, 2012 IL 111443, ¶ 66
(quoting 735 ILCS 110/25 (West 2008)). In contrast, the statute before us contains no such
limiting language. Thus, both Sandholm and the plain language of the act support an award for
all claims involving a common core of facts.
¶ 69 In addition, the attorney fees provision here refers to an “action” rather than to a motion or
a claim, in contrast to the act in Sandholm which referred specifically to “the motion.”
Sandholm, 2012 IL 111443, ¶ 65. The attorney fees provision in the case at bar authorizes
- 13 -
recovery for all reasonable attorney fees “[i]n a civil action” for unpaid wages. 820 ILCS
115/14(a) (West 2010). The absence of the limiting language that was present in Sandholm and
the act’s use of the broad, all encompassing “civil action” lead us to find that this statute does
not present an exception to the general rule that a plaintiff may recover attorney fees for “all
claims involving a common core of facts or based on related legal theories.” Sandholm, 2012
IL 111443, ¶ 66.
¶ 70 Second, the legislative history also supports this finding. Although the Wage Payment Act
does not contain a preamble stating its purpose and there is limited legislative history on the
passage of the attorney fee provision, prior to passage of the 2011 amendment in the Senate,
the senators did discuss the attorney fee provision. Most of the discussion concerned protecting
exploited workers from unscrupulous businesses. 96th Ill. Gen. Assem., Senate Proceedings,
March 18, 2010, at 217-25. One senator observed that there will be a group of attorneys willing
to take these cases, advertising “ ‘no fee unless you recover.’ ” 96th Ill. Gen. Assem., Senate
Proceedings, March 18, 2010, at 221 (statements of Senator Dahl). He stated he was afraid that
a worker may demand increased wages, not receive it, and then file a lawsuit; and the employer
may decide it is cheaper to pay the wage than the attorney. 96th Ill. Gen. Assem., Senate
Proceedings, March 18, 2010, at 221-22 (statements of Senator Dahl). However, the bill’s
sponsor assured the questioner that this was not the purpose of the bill and that the purpose was
to protect workers who were promised payment and who continued to work relying on that
promise and then received no payment. 96th Ill. Gen. Assem., Senate Proceedings, March 18,
2010, at 222 (statements of Senator Delgado). Thus, to the extent that some legislative intent
can be gleaned from this legislative history, the legislators contemplated that litigation costs
would not be borne by the plaintiff.
¶ 71 Third, the purpose of the attorney fee provision also supports our finding that it covers “all
claims involving a common core of facts or based on related legal theories.” Sandholm, 2012
IL 111443, ¶ 66; see also Young, 2015 IL App (1st) 131887, ¶ 104 (“the purpose to be served
by the statutory fee-shifting provision” is a “relevant consideration[ ]” in determining “a
reasonable fee”). The legislators spoke of protecting exploited workers who, “when Christmas
came around, they couldn’t even take a dish to their sister’s house for dinner.” 96th Ill. Gen.
Assem., Senate Proceedings, March 18, 2010, at 222 (statements of Senator Delgado). A
worker, having been so exploited, would not be in a position to pursue a civil action without
the statute’s incentive of fee recovery by the prevailing attorney.
¶ 72 In addition, in our prior opinion, we found that the purpose of the attorney fee provision
was not to add a new remedy but merely to change the statutory authority for an already
existing remedy for wage claims:
“The amendment in this case did not create the remedy of attorney fees in suits under
the Wage Payment Act. Prior to the 2011 amendment, attorney fees could be sought in
Wage Payment Act suits, under the Attorneys Fees in Wage Actions Act (705 ILCS
225/1 (West 2010)). The Attorneys Fees in Wage Actions Act provided a process to
obtain attorney fees whenever an ‘employee brings an action for wages earned and due
and owing according to the terms of the employment.’ 705 ILCS 225/1 (West 2010).
*** Thus, the provision of the 2011 amendment to section 14 of the Wage Payment Act
that granted attorney fees merely changed the source of the statutory authority for a
remedy that was already available to claimants.” Thomas, 2015 IL App (1st) 142785,
¶ 72.
- 14 -
In Thomas, we found that “the attorney fees provision of the 2011 amendment does not create
a new liability, but merely alters the statutory authority for that liability.” Thomas, 2015 IL
App (1st) 142785, ¶ 73.4 The fact that this is not a new remedy or liability further supports our
finding that the recovery is not limited to the Wage Payment Act claim and, instead,
encompasses “all claims involving a common core of facts or based on related legal theories.”
Sandholm, 2012 IL 111443, ¶ 66. Thus, we do not find persuasive defendant’s argument that
fee recovery should be limited only to drafting the Wage Payment Act claim and pursuing it.
See Cress v. Recreation Services, Inc., 341 Ill. App. 3d 149, 191 (2003) (where all of plaintiff’s
claims were based on the same compensation agreement, the trial court did not err by including
attorney fees billed prior to the inclusion of the claim at issue in the complaint).
¶ 73 Since we do not find persuasive defendant’s argument that plaintiff was entitled to recover
only time spent specifically working on the Wage Payment Act claim, we also do not find
persuasive its claim that the fee petition fails because counsel did not specify in each entry
which claim he was working on.
¶ 74 Defendant argues that the disparity between the damage award and the fee award
establishes an abuse of discretion by the trial court. “In a fee-shifting case, the fact that the
amount of the fees sought exceeds the client’s recovery, even by a large margin, does not,
standing alone, justify rejection of the amount sought.” Young, 2015 IL App (1st) 131887,
¶ 104 (citing other cases). In considering a claim that a fee award is “excessive,” a reviewing
court may consider whether the party making the claim of excessiveness also made the choice
“to aggressively litigate this case, raising virtually every conceivable issue.” Young, 2015 IL
App (1st) 131887, ¶ 106. The Young court observed that, “while [the defendant] was entitled to
litigate every issue in the case through trial and on appeal, it can hardly be surprised that its ‘no
holds barred’ defense resulted and continues to result in a correspondingly greater expenditure
of time by [the plaintiff’s counsel].” Young, 2015 IL App (1st) 131887, ¶ 85.
¶ 75 In the case at bar, the defendant employer made the choice to litigate, for 10 years, a suit
seeking only $47,666 in commissions. In determining whether a fee award is reasonable,
courts assess a number of factors, including whether there is a reasonable connection between
the fees and the amount involved in the litigation. See Young, 2015 IL App (1st) 131887,
¶ 106. However, in the case at bar, the connection between the years of attorney time expended
and the amount at issue was deemed reasonable by defendant, who cannot be heard to
complain now.
¶ 76 Finally, defendant argues that plaintiff was only “one-fourth” successful, because plaintiff
sought $47,666.54 in his complaint and received only $9226.52 in damages.5 See Young, 2015
IL App (1st) 131887, ¶ 104 (“the size of the fee in relation to the benefit to the client” is also a
“relevant consideration[ ]” in determining “a reasonable fee”). Success depends, of course, on
how you measure it. What plaintiff sought was recognition that he was an employee and
payment for his work. At the bench trial and on appeal, the primary issue was whether plaintiff
was, or was not, defendant’s employee. Thomas, 2015 IL App (1st) 142785, ¶ 43. For his
4
We further found: “Whether the amendment applied or not, defendant could be charged with
reasonable attorney fees, either under the Attorneys Fees in Wage Actions Act or under the Wage
Payment Act. The reasonableness of the fees would not change regardless of whether the amendment
applied; so neither would the amount of the fees.” Thomas, 2015 IL App (1st) 142785, ¶ 77.
5
Actually, it is closer to one-fifth.
- 15 -
commission, plaintiff asked for 20% of the gross contracts he obtained, whereas the trial court
awarded him 20% of the net after subtracting for materials and other costs. Nonetheless,
counsel succeeded with the primary issue at trial and on appeal, and plaintiff will now receive
the money and satisfaction of being paid for his work, which is the point of the Wage Payment
Act. Thus, we cannot find that this is a basis for finding an abuse of discretion by the trial
judge.
¶ 77 In sum, we are not persuaded by defendant’s arguments that the trial court abused its
discretion in determining the fee award, as we instructed it to do on remand.
¶ 78 CONCLUSION
¶ 79 For the foregoing reasons, we cannot find that the trial court erred by denying defendant’s
petition for substitution of judge for cause or its request for documents. We also cannot find
that the trial court abused its discretion in determining reasonable attorney fees and costs.
Thus, we affirm the trial court’s orders.
¶ 80 Affirmed.
- 16 -