Kroot v. Chan ( 2018 )

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Appellate Court Date: 2018.01.23
09:21:20 -06'00'
Kroot v. Chan, 2017 IL App (1st) 162315
Appellate Court MEREDITH PAIGE KROOT and JASON M. KROOT, Plaintiffs-
Caption Appellees, v. SHU B. CHAN and YVONNE LAU, Defendants-
Appellants.
District & No. First District, Sixth Division
Docket No. 1-16-2315
Rehearing denied September 8, 2017
Filed September 15, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 13-L-12254; the
Review Hon. James E. Snyder, Judge, presiding.
Judgment Dismissed in part, affirmed in part, vacated in part, and remanded.
Counsel on Ben Goldwater, of Goldwater & Associates, of Chicago, for
Appeal appellants.
Kirsten M. Dunne, of Goldberg Weisman Cairo, of Chicago, for
appellees.
Panel PRESIDING JUSTICE HOFFMAN delivered the judgment of the
court, with opinion.
Justices Rochford and Delort concurred in the judgment and opinion.
OPINION
¶1 The defendants, Shu B. Chan and Yvonne Lau, appeal from orders of the trial court (1)
denying their motion for summary judgment; (2) entering judgment against them and in favor
of the plaintiffs, Meredith Paige Kroot (Meredith) and Jason M. Kroot (Jason), in the sum of
$64,518.67 “plus costs and fees” on the plaintiffs’ claims for a violation of the Residential
Real Property Disclosure Act (Act) (765 ILCS 77/1 et seq. (West 2012)) and common law
fraud; (3) entering judgment against them and in favor of the plaintiffs in the sum of
$28,130.16 on the plaintiffs’ petition for attorney fees and costs; and (4) denying their motion
to vacate the judgment for attorney fees and costs. For the reasons that follow, we dismiss the
defendants’ appeal from the denial of their motion for summary judgment, affirm the trial
court’s $64,518.67 judgment in favor of the plaintiffs, vacate the trial court’s $28,130.16
judgment in favor of the plaintiffs for attorney fees and costs, and remand this cause to the
trial court for further proceedings.
¶2 The following factual recitation is taken from the pleadings filed by the parties and the
evidence introduced at the trial of this cause.
¶3 In 2002, the defendants purchased the property commonly known as 3833 North
Claremont Street, Chicago, Illinois, and improved with a single family residence (hereinafter
referred to as the Property). The defendants resided in the Property from 2002 until
December 2011 when they moved to a condominium unit.
¶4 On April 12, 2013, in preparation for their sale of the Property, the defendants executed a
Residential Real Property Disclosure Report (Disclosure Report) as required by sections 20
and 35 of the Act (765 ILCS 77/20, 35 (West 2012)), in which they claimed no knowledge of
flooding or recurrent leakage problems in the basement, defects in the basement, or material
defects in the walls and floors. The plaintiffs were given a copy of the Disclosure Report and,
on May 3, 2013, executed a written offer to purchase the Property which the defendants
accepted on May 7, 2013 (hereinafter referred to as the Contract). In a letter executed by the
parties’ attorneys, the Contract was amended in a number of respects. Included within that
letter is a representation that the defendants had no knowledge of the existence of any mold
within the Property nor had there been any attempt to remove any substance from the sump
pump room wall. It was also represented that there had been no flooding or water infiltration
during the time that the defendants owned the Property. There is a paragraph within the
letter, which states that the plaintiffs had the Property inspected and that the inspection noted
“a number of issues” for which the plaintiffs requested a credit. Although executed by their
respective attorneys, the letter was not signed by either the plaintiffs or the defendants. The
closing of the sale and purchase of the Property contemplated by the Contract took place on
June 25, 2013.
¶5 On November 4, 2013, the plaintiffs commenced the instant action with the filing of their
four-count complaint against the defendants. According to the complaint, within 24 hours of
purchasing the Property, the plaintiffs experienced water infiltration in the basement through
the walls and floors. They asserted that there had been longstanding and recurring water
infiltration problems with the Property during the defendants’ ownership and that before and
after signing the Disclosure Report and the Contract, the defendants knew it was likely that
there was mold in the basement. According to the complaint, there were material defects in
the basement, flooring, and walls of the Property along with mold caused by flooding and
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water infiltration. The plaintiffs alleged that they would not have gone forward with the
closing for the agreed upon price had they known of the defects in the Property. The
plaintiffs sought judgment for the costs of repairing the Property, all consequential damages,
attorney fees, and costs. Count I of the complaint set forth a claim pursuant to the Act against
both defendants, count II asserted a claim against the defendants for a violation of the
Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West
2012)), count III was a common law fraud action against the defendants, and count IV was a
negligence claim against Lau only.
¶6 The defendants answered the complaint, denying the material allegations. On June 24,
2014, they filed a motion to dismiss count II of the complaint, which the trial court granted
without opposition from the plaintiffs. On January 27, 2015, the defendants filed a motion
seeking summary judgment in their favor on the three remaining counts, alleging, inter alia,
that, during the time that they owned the Property, they did not possess actual knowledge of
any water infiltration or mold. The trial court denied the motion on April 21, 2015.
¶7 A bench trial was conducted on counts I, III, and IV of the complaint, following which
the trial court entered its judgment order on March 28, 2016, finding in favor of the plaintiffs
and against Chan on count I and in favor of the plaintiffs and against both defendants on
count III. The trial court entered judgment in favor of the plaintiffs and against the
defendants in the sum of $64,518.67, plus costs and fees. The trial court found in favor of
Lau and against the plaintiffs on counts I and IV.
¶8 On April 19, 2016, the plaintiffs filed their petition, seeking attorney fees and costs, and
on June 23, 2016, the trial court entered an order awarding them $28,130.16. On July 8,
2016, the defendants filed their motion to vacate the order of June 23, 2016, which the trial
court denied on August 9, 2016. On August 22, 2016, the defendants filed their notice of
appeal from the trial court’s orders of April 21, 2015; March 28, 2016; June 23, 2016; and
August 9, 2016.
¶9 As to the April 21, 2015 order, denying their motion for summary judgment, the
defendants argue that they were entitled to judgment as a matter of law by reason of the
plaintiffs’ failure to produce any evidence that they made fraudulent representations
concerning their knowledge of flooding or mold at the Property or falsified the Disclosure
Report. In response, the plaintiffs argue that the order is not reviewable. We agree with the
plaintiffs.
¶ 10 An order denying a motion for summary judgment is interlocutory in nature and, subject
to an exception not present in this case, is not appealable. In re Estate of Funk, 221 Ill. 2d 30,
85 (2006). Any error in the denial of a motion for summary judgment merges into the final
judgment rendered by the trial court, and it is from that final judgment that an appeal is
taken. Id.; Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 355
(2002). Consequently, we dismiss the defendants’ appeal from the trial court’s order of April
21, 2015, denying their motion for summary judgment.
¶ 11 Next, the defendants argue that the trial court’s $64,518.67 judgment entered on March
28, 2016, is against the manifest weight of the evidence. Before addressing the merits of the
defendants’ argument in this regard, the plaintiffs argue that this court lacks jurisdiction to
review the March 28, 2016, judgment, contending that, because the defendants failed to file a
posttrial motion directed against that judgment, their August 22, 2016, notice of appeal from
that order was untimely. According to the plaintiffs, the defendants had until July 23, 2016,
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to file their notice of appeal from the March 28, 2016, judgment. They reason that the trial
court’s order of June 23, 2016, awarding the plaintiffs $28,130.16 for attorney fees and costs
resolved the last pending claim, and as a consequence, the defendants had until July 23,
2016, to file their notice of appeal from the March 28, 2016, judgment. The plaintiffs contend
that, since the defendants’ motion to vacate filed on July 8, 2016, was addressed only to the
June 23, 2016, fee award, the motion did not toll the time for the filing of a notice of appeal
from the March 28, 2016, judgment, and therefore, their August 22, 2016, notice of appeal
did not vest this court with jurisdiction to review the March 28, 2016, judgment. We disagree
with the plaintiffs’ jurisdictional argument.
¶ 12 Illinois Supreme Court Rule 303(a)(1) (eff. Jan. 1, 2015) provides that a notice of appeal
must be filed
“within 30 days after the entry of the final judgment appealed from, or, if a timely
posttrial motion directed against the judgment is filed, whether in a jury or a nonjury
case, within 30 days after the entry of the order disposing of the last pending
postjudgment motion directed against that judgment or order ***.”
An order or judgment is final for purposes of Rule 303(a) if it “terminates the litigation
between the parties on the merits of the cause or disposes of the rights of the parties either
upon the entire controversy or upon some definite part thereof.” F.H. Prince & Co. v. Towers
Financial Corp., 266 Ill. App. 3d 977, 982 (1994). However, Illinois Supreme Court Rule
304(a) (eff. Mar. 8, 2016) provides that, if multiple claims for relief are involved in an action,
an appeal may be taken from a final judgment as to one or more but fewer than all claims
“only if the trial court has made an express written finding that there is no just reason for
delaying either enforcement or appeal or both.” The policy considerations behind Rule
304(a) are the discouragement of piecemeal appeals in the absence of some compelling
reason and the removal of any uncertainty as to the appealability of a judgment which was
entered on less than all of the matters in controversy. Carle Foundation v. Cunningham
Township, 2017 IL 120427, ¶ 15; In re Marriage of Lentz, 79 Ill. 2d 400, 407 (1980).
¶ 13 Contained within both count I and count III of the plaintiffs’ complaint is a prayer for an
award of attorney fees. A prayer for an award of attorney fees is a claim within the meaning
of Rule 304(a). F.H. Prince, 266 Ill. App. 3d at 983. The trial court’s judgment order of
March 28, 2016, left unresolved the issue of attorney fees and, therefore, was not a final
judgment as to all of the claims in the action. As to that order, the trial court never made a
written finding that there was no just reason for delaying either enforcement or appeal.
Consequently, the judgment order of March 28, 2016, was neither enforceable nor appealable
when entered and was subject to revision at any time before the entry of an order disposing
of the plaintiffs’ attorney fee claim. Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016).
¶ 14 In its order of June 23, 2016, the trial court resolved the plaintiffs’ claim for attorney
fees. Therefore, as of that date, both the judgment order of March 28, 2016, and the order of
June 23, 2016, were appealable pursuant to Illinois Supreme Court Rules 301 (eff. Feb. 1,
1994) and 303(a)(1) (eff. Jan. 1, 2015). Although the March 28, 2016, judgment order was
originally appealable upon the entry of the June 23, 2016, order, the issue remains as to the
effect, if any, that the defendants’ July 8, 2016, motion to vacate the June 23, 2016, order had
upon the time for filing a notice of appeal from the judgment entered against them on March
28, 2016.
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¶ 15 The trial court retains jurisdiction for 30 days after the entry of a final order or judgment.
Brewer v. National R.R. Passenger Corp., 165 Ill. 2d 100, 105 (1995). On July 8, 2016, the
defendants in this case filed their timely motion to vacate the attorney fee award of June 23,
2016. Until the trial court ruled on the defendants’ motion to vacate, the June 23, 2017, order
was not a final order. In re Marriage of Uphoff, 99 Ill. 2d 90, 94 (1983) (as long as any
party’s posttrial motion remains undisposed, the underlying order is not final). As such, the
plaintiffs’ claim for an award of attorney fees remained pending; and absent a written finding
pursuant to Rule 304(a), the judgment order of March 28, 2016, was not enforceable or
appealable. Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016). Once the defendants filed their July 8,
2016 motion to vacate the June 23, 2016, order, the time for the filing of an appeal from the
March 28, 2016, judgment order did not begin running until the trial court disposed of the
motion. See In re Marriage of Uphoff, 99 Ill. 2d at 94.
¶ 16 The trial court disposed of the defendants’ motion to vacate on August 9, 2016.
Therefore, the time for filing a notice of appeal from both the March 28, 2016, judgment
order and the June 23, 2016, order commenced running on that date. The defendants filed
their notice of appeal on August 22, 2016, within the 30 day period provided in Rule
303(a)(1), vesting this court with jurisdiction to review both orders. Ill. S. Ct. R. 303(a)(1)
(eff. Jan. 1, 2015).
¶ 17 Having rejected the plaintiffs’ jurisdictional challenge, we will address the merits of the
defendants’ argument that the trial court’s judgment order of March 28, 2016, is against the
manifest weight of the evidence.
¶ 18 In their answer to the plaintiffs’ complaint, the defendants admitted that the Disclosure
Report and the Contract contained representations that they had no knowledge of the
existence of mold within the Property, that they had made no attempt to remove any
substance from the sump pump room wall, and that no flooding or water infiltration occurred
during the time that they owned the Property. The defendants contend, however, that the
evidence introduced during the trial of this matter failed to establish that they made
fraudulent representations concerning their knowledge of flooding or mold at the Property or
that they falsified the Disclosure Report. They do not dispute the fact that there existed water
infiltration and mold at the Property, but assert that evidence of those conditions only became
apparent as the result of a destructive investigation that occurred after the plaintiffs took
possession of the Property.
¶ 19 When, as in this case, a party challenges the sufficiency of the evidence to support a
judgment following a bench trial, our standard of review is whether the trial court’s judgment
is against the manifest weight of the evidence. Dargis v. Paradise Park, Inc., 354 Ill. App. 3d
171, 177 (2004). “A judgment is against the manifest weight of the evidence only when an
opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not
based on evidence.” Judgment Services Corp. v. Sullivan, 321 Ill. App. 3d 151, 154 (2001).
As the trier of fact, the trial judge in a bench trial is in a superior position to assess the
credibility of the witnesses and determine the weight to be accorded their testimony. Buckner
v. Causey, 311 Ill. App. 3d 139, 144 (1999). When contradictory testimony that could
support conflicting conclusions is given during a bench trial, we will not disturb the trial
court’s factual findings based upon that testimony unless a contrary finding is clearly
apparent. Id.
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¶ 20 The following factual summary is taken from the testimony and evidence introduced
during the trial.
¶ 21 The plaintiffs testified that, prior to submitting an offer to purchase, they visited the
Property with their real estate agent, Violet Sudler. The plaintiffs and Sudler stated that they
saw new carpet in the basement, and the basement walls looked and smelled as if they had
been recently painted. After examining the home, the plaintiffs and Sudler reviewed the
Disclosure Report. The defendants admitted signing the Disclosure Report, and Chan
testified that he understood that the contents of the document could affect the amount of
money that a potential buyer would be willing to offer. After reviewing the Disclosure
Report, the plaintiffs submitted an offer to purchase the Property which the defendants
accepted on May 7, 2013.
¶ 22 After the defendants accepted their offer to purchase, the plaintiffs arranged for an
inspection of the Property. In a report dated May 9, 2013, the inspector noted certain repairs
which were needed, but did not report water or mold related problems in the basement.
Thereafter, the plaintiffs engaged a contractor, Scott Elliott, to perform the necessary repairs
identified in the inspection report. According to Elliott, he visited the Property for the
purpose of estimating the cost to perform the repairs, and when he went through the home, he
saw that the basement had been freshly painted and had new carpeting in the main room.
¶ 23 According to the plaintiffs, they again inspected the Property on May 22, 2013, in the
company of Sudler and the defendants’ realtor, Sharleen Chan. The plaintiffs and Sudler
testified that, during that inspection, they noticed a discolored area along the lower portion of
a wall in the sump pump room. The plaintiffs stated that they were concerned that the
discoloration could be an indication of water infiltration or mold and expressed that concern
to Sharleen Chan. Jason testified that he made a subsequent visit to the Property for the
purpose of reexamining the sump pump room wall, but found that the discolored area had
been painted. Sudler testified that she visited the Property in the presence of Chan and
noticed that the discoloration on the sump pump wall had been painted over. According to
Sudler, she confronted Chan about the painting of the wall, and he stated he had the wall
painted so that it would look nice for the plaintiffs. Meredith testified that, when their
attorney, Judy DeAngelis, was advised of the condition, she recommended that they obtain
written confirmation from the defendants that they had not experienced any water or mold
problems at the Property. Based upon that recommendation, DeAngelis forwarded a letter to
the defendants’ attorney, Phillip Grossman, requesting certain modifications to the Contract.
As noted earlier, that letter contains a representation that the defendants had no knowledge of
the existence of any mold within the Property nor had there been any attempt to remove any
substance from the sump pump room. It was also represented that there had been no flooding
or water infiltration during the time that the defendants owned the Property. The plaintiffs’
complaint alleges, and the defendants’ answer admits, that those representations are
contained within the Contract, and the plaintiffs testified that, without the representations as
an amendment to the Contract, they would not have purchased the Property. The letter also
contains a revised paragraph which states as follows:
“Further, [the plaintiffs] have had a professional inspection performed on the
property and while the inspector noted a number of issues in his report, [the plaintiffs]
are requesting a credit as to certain repair issues. These issues include extensive
masonry work to the exterior of the house and the garage, roof issues related to both
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the house and the garage, electrical, Building Code violations, mold and plumbing.
With that being said, please find attached estimates from E.nZ Masonry, Inc. and
Elliott Remodeling which delineate the necessary repairs and the costs related to
same. With that being said, please be advised that it is our understanding that the
parties have agreed that [the defendants] will tender a $5,000.00 credit to [the
plaintiffs] at closing in lieu of making any repairs.”
¶ 24 The parties closed the purchase/sale transaction on June 25, 2013. At closing, the
defendants gave the plaintiffs the agreed upon $5000 credit against the purchase price.
According to Grossman, the credit was intended to cover “all of the matters referenced” in
the Contract documents. However, Jason and Sudler testified that the credit was only for the
items in need of repair that were listed on the inspector’s report and did not include mold or
water infiltration problems.
¶ 25 In the evening of June 25, 2013, there was a heavy rainfall. Elliott testified that, when he
went to the Property on June 26, 2013, to begin making repairs, he discovered water leaking
through the walls and floor of the sump pump room. Upon being notified of the condition,
Jason went to the Property. He testified that he saw water coming in where the floor meets
the sump pump room wall, although the sump pump itself was dry.
¶ 26 Meredith and Jason testified that they authorized Elliott to investigate the source of the
water. According to Elliott, he opened the sump pump room wall and was able to see water
coming in from both sides of the foundation. He testified that he rolled back the carpet and
padding in the main room in the basement, revealing water damage to the underlying floor.
Elliott characterized the damage as “major” and looked as though it “had been there for a
while.” He stated that, as he kept working, he discovered evidence of longstanding water
infiltration problems and mold, including black mold on the underside of the plywood
subflooring, standing water on the Visqueen plastic sheeting below the plywood, rotting
plywood subflooring under the carpet padding, moisture and mold on the lower 18 inches of
the drywall on the south wall of the basement, moisture on the plywood behind the drywall,
standing water behind a wall plate, and evidence of water infiltration through the drywall in
the area where the new carpeting had been laid. Elliott estimated that the damage had
occurred over approximately two years, but no less than one year. He testified that there was
no vapor barrier for the basement walls resulting in water infiltration during heavy rain falls.
¶ 27 Thomas Lauletta, who resides in the home directly to the south of the Property, testified
that sometime between April and June of 2013 while the defendants owned the Property, he
noticed carpeting in the trash cans for the Property and could see rust-colored lines that
appeared to be water stains on the underside of the discarded carpeting. He also testified to
seeing a water-stained recliner chair on the Property.
¶ 28 Both defendants testified that they had no knowledge of water infiltration or mold in the
basement of the Property or in the sump pump room. According to Chan, he never saw water,
water stains, or mold in the sump pump room or in the basement during the nine years that he
and Lau lived at the Property. Chan stated that, on the advice of his realtor, Sharleen Chan,
that he “spruce up” the house, he hired Home Improvements Experts to perform work at the
Property, which began on April 15, 2013. He testified that, although he went into the
basement while the work was being performed, he never saw the contractor replacing the
carpeting. He denied seeing any stains on the basement carpeting or on the leather chair that
he removed from the basement. He also denied ever being at the Property when Sudler
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confronted him about painting the sump pump room wall or that he painted over any
discoloration or instructed anyone else to do so. Chan testified that, although he was advised
that there was discoloration on the sump pump room wall, he never saw the discoloration. He
admitted, however, that he instructed his contractor to paint any dirty areas on the walls in
the basement, including the walls in the sump pump room.
¶ 29 Krzystof Wais, the owner of Home Improvements Experts, testified that the work his
company performed at the Property consisted of painting and replacing the carpeting in the
basement. He stated that, although he did not personally perform the work, he inspected the
house before the work began and admitted seeing some stains on the carpeting and some dark
spots on the basement walls. According to Wais, it was his understanding that his company
was to replace the carpeting and paint the basement walls, including the dark spots in the
sump pump room.
¶ 30 Grossman and Gary Falzer, friends of the defendants, both testified that they had been in
the basement of the Property on many occasions when the defendants lived there and never
saw water, moisture, mold, or water marks on the walls. However, both admitted that they
had never been in the sump pump room. Falzer also testified that the chair he helped Chan
remove from the house was not wet or water damaged.
¶ 31 After the parties rested and made their closing arguments, the trial court found in favor of
the plaintiffs and against Chan on count I of the complaint, the claim brought pursuant to the
Act, and against both defendants on count III, the common-law fraud claim. In his oral
statements, the trial judge specifically found the testimony of the plaintiffs, Sudler, and
Lauletta credible. Additionally, the trial judge stated that he did not find Chan’s testimony
credible. As to count I, the trial court found that Chan made false statements in the
Disclosure Report relating to flooding and leakage. As to count III, the trial court found that
the defendants had made material misrepresentations of fact upon which the plaintiffs relied
to their detriment. On March 28, 2016, the trial court entered its judgment in favor of the
plaintiffs and against the defendants in the amount of $64,518.67, plus costs and fees. In its
written judgment order, the trial court memorialized its findings in favor of the plaintiffs and
against Chan on count I and in favor of the plaintiffs and against both defendants on count
III, referencing the fact that it had made specific findings on the record related to the
credibility of the witnesses.
¶ 32 The defendants have raised no argument challenging the trial court’s computation of the
plaintiffs’ damages. They have only challenged the trial court’s findings on the issues of
liability. We believe, however, that the evidence contained within the record summarized
above was sufficient to satisfy each of the elements necessary for recovery of damages under
the Act and under a claim for common-law fraud.
¶ 33 Section 55 of the Act provides that if the seller of real property, such as Chan, provides a
disclosure document prior to a conveyance which contains information which he knows to be
false, he is liable for the actual damages sustained as a result. 765 ILCS 77/55 (West 2012).
In order to recover for common-law fraud, a plaintiff is required to prove that (1) the
defendant made a false statement of material fact, (2) the defendant knew that the statement
was false, (3) the defendant intended to induce the plaintiff to act in reliance upon the
statement, (4) the plaintiff reasonably relied upon the truth of the statement, and (5) the
plaintiff suffered damage as a result of action in reliance upon the statement. Board of
Education of the City of Chicago v. A, C & S, Inc, 131 Ill. 2d 428, 452 (1989).
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¶ 34 Based upon the evidence in the record, the trial judge’s credibility findings, and the
inferences that the trial judge drew from the evidence, we are unable to find that the trial
court’s findings in favor of the plaintiffs on counts I and III of their complaint are against the
manifest weight of the evidence. We, therefore, affirm the trial court’s judgment of March
28, 2016.
¶ 35 Finally, the defendants argue that the trial court erred in awarding the plaintiffs
$28,130.16 for attorney fees and costs without a hearing and based solely upon an invoice
attached to their petition that was not supported by any other documentation. According to
the defendants, the Attorney Invoice attached to the plaintiffs’ fee petition as an exhibit is not
a document kept in the ordinary course of business. They contend that numerous entries
contained in the invoice are “mere guesses in the reconstruction of the time spent for which
they seek an award of fees.” Although there is no evidence in the record addressing the issue
of whether the invoice supporting the plaintiffs’ fee petition is a document kept in the
ordinary course of business, we, nevertheless, find that it is insufficient, standing alone, to
support an award of attorney fees.
¶ 36 The unsuccessful party in a civil action is not responsible for the payment of an
opponent’s attorney fees unless provided for by statute or agreement of the parties. Ardt v.
State, 292 Ill. App. 3d 1059, 1063 (1997). Section 55 of the Act provides that, if the seller of
real property provides a disclosure document that contains information known to be false, in
addition to his liability for actual damages, the court may also award reasonable attorney
fees. 765 ILCS 77/55 (West 2012). By the very terms of the statute, only those fees that are
reasonable may be awarded, the determination of which is left to the discretion of the trial
court.
¶ 37 A party seeking an award of attorney fees bears the burden of presenting sufficient
evidence from which a trial court can make a determination as to their reasonableness. Huss
v. Sessler Ford, Inc., 343 Ill. App. 3d 835, 843 (2003); Kaiser v. MEPC American
Properties, Inc., 164 Ill. App. 3d 978, 983 (1987). To justify an award of fees, “more must be
presented than a mere compilation of hours multiplied by a fixed hourly rate or bills issued to
the client.” Kaiser, 164 Ill. App. 3d at 984. Rather, the petition for fees must specify the
services performed, the attorney who performed the services, the time expended, and the
hourly rate charged. Huss, 343 Ill. App. 3d at 843. Once presented with this information, the
court should also consider the skill of the attorney performing the service, the novelty or
difficulty of the issues and work involved, the usual and customary charges for comparable
services, and the benefit to the client. Kaiser, 164 Ill. App. 3d at 984. An evidentiary hearing
is not always necessary in order to determine reasonable attorney fees. A nonevidentiary
proceeding is proper so long as the trier of fact can determine from the evidence presented,
including a detailed breakdown to fees and expenses, what amount would be reasonable, and
the opponent is not deprived of the opportunity to present evidence. See Raintree Health
Care Center v. Illinois Human Rights Comm’n, 173 Ill. 2d 469, 495-96 (1996).
¶ 38 Although having entered an order on June 3, 2016, setting the plaintiffs’ fee petition for
hearing on June 23, 2016, the trial judge elected to rule on the petition without a hearing. The
plaintiffs’ petition for an award of attorney fees and costs in this case was supported by an
exhibit captioned “Attorney Invoice,” containing, in some cases, a date, a brief description of
the services performed, the initials of the individual performing the service, and the hourly
rate charged. However, for a number of charges, the only entry is “Assoc CMC” with no
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description of the work performed. The descriptions of the services rendered as contained
within the invoice are too vague and general to support a determination as to the
reasonableness of the time expended for out-of-court work. Further, there is nothing in the
exhibit that would enable a court to determine whether the information contained therein was
compiled from records maintained in the ordinary course of business. As the defendants
correctly argue, if the information contained in the Attorney Invoice was taken from original
documents, then those documents should have been presented in court or made available to
the defendants. Aliano v. Sears, Roebuck & Co., 2015 IL App (1st) 143367, ¶ 31.
¶ 39 We believe that the Attorney Invoice attached as an exhibit to the plaintiffs’ fee petition,
standing alone, is an inadequate basis upon which to predicate a finding of reasonableness or
upon which to base an award of attorney fees and costs. Consequently, we vacate the trial
court’s order of June 23, 2016, which awarded the plaintiffs $28,130.16 for attorney fees and
costs, and remand the matter back to the trial court with directions to hold an evidentiary
hearing on the plaintiffs’ petition.
¶ 40 Based upon the foregoing analysis, we dismiss the defendants’ appeal from the trial
court’s order of April 21, 2015, denying their motion for summary judgment; affirm the trial
court’s $64,518.67 judgment entered on March 28, 2016, in favor of the plaintiffs and against
the defendants; vacate the trial court’s $28,130.16 judgment entered June 23, 2016, in favor
of the plaintiffs and against the defendants for attorney fees and costs; and remand this cause
to the trial court for further proceedings consistent with this opinion.
¶ 41 Affirmed in part, dismissed in part, vacated in part, and remanded.
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