Kirkpatrick v. Strosberg

Nos. 2--06--0724 & 2--06--0731 cons. Filed: 8-8-08
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
JOHN KIRKPATRICK, WILLIAM ) Appeal from the Circuit Court
SMITH, MARY ELIZABETH SENTOWSKI, ) of Du Page County.
and GREGORY CALDWELL, )
)
Plaintiffs-Appellants, )
)
v. ) No. 00--L--473
)
DAVID STROSBERG, MORNINGSIDE )
DEVELOPMENT GROUP, INC., and )
GLEN ASTOR CONDOMINIUM )
INVESTORS L.P., ) Honorable
) Stephen J. Culliton,
Defendants-Appellees. ) Judge, Presiding.
_________________________________________________________________________________
JOHN KIRKPATRICK, WILLIAM ) Appeal from the Circuit Court
SMITH, MARY ELIZABETH SENTOWSKI, ) of Du Page County.
and GREGORY CALDWELL, )
)
Plaintiffs-Appellees, )
)
v. ) No. 00--L--473
)
DAVID STROSBERG, MORNINGSIDE )
DEVELOPMENT GROUP, INC., and )
GLEN ASTOR CONDOMINIUM )
INVESTORS L.P., ) Honorable
) Stephen J. Culliton,
Defendants-Appellants. ) Judge, Presiding.
_________________________________________________________________________________
JUSTICE McLAREN delivered the opinion of the court:
Nos. 2--06--0724 & 2--06--0731 cons.
Plaintiffs, John Kirkpatrick, William Smith, Mary Elizabeth Sentowski, and Gregory Caldwell,
buyers of luxury condominiums in Glen Ellyn, Illinois, appeal the trial court339 Ill. App. 3d 927, 933 (2003).
The elements of a claim under the Consumer Fraud Act are: (1) a deceptive act or practice
by the defendant; (2) the defendant's intent that the plaintiff rely on the deception; (3) the occurrence
of the deception in the course of conduct involving trade and commerce; and (4) actual damage to
the plaintiff (5) proximately caused by the deception. Capiccioni, 339 Ill. App. 3d at 933; see 815
ILCS 505/1 et seq. (West 1996).
In a bench trial, the trial court must weigh the evidence and make findings of fact. A
reviewing court will not disturb the court's findings unless they are against the manifest weight of the
evidence. Eychaner v. Gross, 202 Ill. 2d 228, 251 (2002). The court's conclusions of law are
reviewed de novo. Eychaner, 202 Ill. 2d at 252.
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In this case, the trial court heard conflicting evidence. Plaintiffs' witness, Philips, testified that
the correct method was to measure from paint to paint in each unit. Defendants' witness, architect
LeNoble, testified that the correct and industry-accepted method was to measure from the exterior
wall to half of the opposing wall. LeNoble testified:
"Q. Are there different methods of calculating square footage of condominium units?
A. Well, it depends. Everybody works differently. I take the entire outside wall and
half of the demising wall.
Q. Why do you do that?
A. Because that's the way I have been doing it forever. I think that224 Ill. 2d 530, 548 (2007).
After reviewing the record and giving deference to the court's determination of the credibility of the
witnesses and the weight to be given to the evidence, we do not believe that this finding is against the
manifest weight of the evidence.
2. Contract Regarding Square Footage
Plaintiffs argue that the trial court erred by finding for defendants on plaintiffs' breach-of-
contract claim based on the floor plans attached to the sales contracts. Plaintiffs contend that the
evidence established that the floor plans attached to their sales contracts displayed floor plans of units
that were larger than the units they actually received. However, plaintiffs ignore that Rider B,
included within each party's written purchase agreement, provided in pertinent part:
"All dimensions on the attached marked-up floor plan dated ____ are approximate and
subject to adjustments due to the actual location of piping, electrical, studs, steel bar joists,
and other building components."
Further, LeNoble's plans were incorporated into each contract through paragraph 5(a) of the
agreement, which stated:
"Seller shall improve the parcel with a residential building including the premises
substantially in accordance with the plans and specifications for the premises by Daniel
LeNoble and Associates on file in Seller's office ('architect's plans'), subject to change orders
entered into by buyer and seller on Rider B after the date hereof, if any, and any specifications
attached hereto as Rider D."
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Because the contract contained provisions that declared any measurements as approximates,
the trial court's finding that defendants did not breach the contracts was not against the manifest
weight of the evidence.
3. Damages Regarding Ceiling-Height Issue
Next, regarding the ceiling-height issue, plaintiffs argue that the trial court erred when it failed
to conform its judgment to the proofs and award a judgment for damages to plaintiffs based upon the
valuation evidence of Philips, a real estate appraiser, regarding the breach-of-contract and consumer-
fraud claims.
When a contract is breached, the injured party is entitled to be placed in the position he would
have been in had the contract been performed. Wilson v. DiCosola, 352 Ill. App. 3d 223, 225 (2004).
In proving damages, the burden is on the plaintiff to establish a reasonable basis for computing
damages. Razor v. Hyundai Motor America, 222 Ill. 2d 75, 107 (2006). Thus, damages must be
proved with reasonable certainty and cannot be based on conjecture or speculation. Razor, 222 Ill.
2d at 107. However, absolute certainty with regard to damages is not required. Prairie Eye Center,
Ltd. v. Butler, 329 Ill. App. 3d 293, 302 (2002). Damages, in a breach of contract for the sale of real
estate, are calculated by the difference between the fair market value of the real estate on the day of
the breach and the sale price contracted for by the purchasers. Lakshman v. Vecchione, 102 Ill. App.
3d 629, 634 (1981).
In this case, plaintiffs' damages expert, David Philips, testified regarding hundreds of
properties. After considering his research, he opined that there was a 5% difference in fair market
value between the plaintiffs' units with the lower ceilings and the comparables that had nine-foot
ceilings. Philips testified that his comparables were from 2004. However, plaintiffs' units closed in
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1997. Therefore, the trial court disregarded Philips' 5% difference in fair market value as speculative.
The trial court did not believe that a figure from seven years after the breach represented fair market
value. See Lakshman, 102 Ill. App. 3d at 634. Because there was a seven-year difference between
the sale of plaintiffs' units and Philips' comparables, we cannot say that the trial court's finding was
against the manifest weight of the evidence regarding damages.
4. Contract Regarding Ceiling Height
Defendants argue that the trial court erred in finding for plaintiffs on the ceiling-height issue,
because the contracts did not specify any particular ceiling height. Defendants essentially argue that,
because the contracts did not specify any particular ceiling height, defendants did not engage in
deceptive practices or acts. However, defendants ignore the fact that the trial court found that their
advertising materials contained misrepresentations that the ceilings would be nine feet high and that
these advertising materials induced plaintiffs to sign the sales contracts, thus forming the basis for the
Consumer Fraud Act violations. The contracts referred to architectural drawings, which defendants
contend did not show any ceiling height for plaintiffs' sixth-floor units. However, they did show
ceiling heights for the other floors, which the trial court reasonably could have referred to in
determining the requirements of the contracts. Therefore, we find that the trial court329 Ill. App. 3d 519, 526-27
(2002). In this case, the trial court reasonably determined that an alteration from 9-foot ceilings to
8-foot-6-inch ceilings was an unreasonable alteration and not covered by Rider B. We cannot say
that this finding was against the manifest weight of the evidence. Therefore, defendants' argument
fails.
6. Award of Only Nominal Damages
Plaintiffs argue that the trial court erred by awarding plaintiffs only nominal damages. If a
party proves a right to damages in a fraud claim but fails to provide a proper basis for computing
those damages, a court may award only nominal damages. Giammanco v. Giammanco, 253 Ill. App.
3d 750, 758 (1993). In this case, plaintiffs failed to provide a proper basis to compute their damages,
because their expert provided comparables that were seven years after the sale of plaintiffs' units and
referenced the damages as of 2004, not 1997. Thus, it was not unreasonable to find the evidence
speculative or otherwise insufficient. Therefore, the trial court's decision to award only nominal
damages was not against the manifest weight of the evidence.
7. Nominal Damages Absent Award of Actual Damages
Defendants contend that the trial court was precluded from awarding nominal damages
because plaintiffs failed to prove actual damages as required under the Consumer Fraud Act. See
Oliveira v. Amoco Oil Company, 201 Ill. 2d 134, 149 (2002); see also 815 ILCS 505/2 (West 1996).
However, defendants ignore the fact that, although plaintiffs' evidence of damages seven years after
the fact was deficient, the trial court made a specific finding of fact that plaintiffs did indeed prove
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actual damages for the purpose of proving their consumer-fraud claims. Therefore, defendants'
argument fails.
The cases cited by defendants to support their argument are factually distinguishable from the
case at bar. In neither Petty v. Chrysler Corp., 343 Ill. App. 3d 815 (2003), nor Tolve v. Ogden
Chrysler Plymouth, 324 Ill. App. 3d 485 (2001), were there specific findings of actual damages. In
those cases, there were no findings of actual damages at all. In contrast, in this case, the trial court
made a specific finding that plaintiffs suffered actual damages. Thus, Petty and Tolve do not apply.
8. Punitive Damages and Award of Only Nominal Damages
Defendants also contend that the trial court erred by awarding punitive damages where they
were accompanied by only nominal damages and in the absence of an award of actual damages. We
first look to the Consumer Fraud Act to address this issue.
Our primary goal in construing a statute is to ascertain and give effect to the intent of the
legislature. People v. Cherry Valley Public Library District, 356 Ill. App. 3d 893, 895-96 (2005).
The best indicator of that intent is the plain language of the statute itself. Cherry Valley Public
Library District, 356 Ill. App. 3d at 896. Statutory construction is a question of law; therefore, our
review is de novo. Cherry Valley Public Library District, 356 Ill. App. 3d at 895.
The Consumer Fraud Act is a regulatory and remedial statute intended to give broad
protection to consumers, borrowers, and business people against fraud, unfair methods of
competition, and other unfair and deceptive business practices. Ramirez v. Smart Corp., 371 Ill. App.
3d 797, 805 (2007). The Consumer Fraud Act itself indicates that "any person who suffers actual
damage" may be awarded punitive damages. See 815 ILCS 505/10a(a) (West 1996).
Section 10a(a) of the Consumer Fraud Act provides in relevant part:
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"(a) Any person who suffers actual damage as a result of a violation of this Act
committed by any other person may bring an action against such person. The court in its
discretion may award actual economic damages or any other relief which the court deems
proper." 815 ILCS 505/10a(a) (West 1996).
However, courts should award punitive damages in Consumer Fraud Act cases only for
conduct that is outrageous, either because the defendant's motive was evil or the acts showed a
reckless disregard of others' rights. Totz v. Continental Du Page Acura, 236 Ill. App. 3d 891, 909
(1992). The purpose of awarding punitive damages is to punish the wrongdoer and, in doing so, to
deter that party and others from committing similar wrongful acts. Totz, 236 Ill. App. 3d at 909.
Punitive damages are not favored in the law; thus, courts should be careful never to award such
damages improperly or unwisely. Kleidon v. Rizza Chevrolet, Inc., 173 Ill. App. 3d 116, 121 (1988).
"In reviewing a decision on punitive damages, an appellate court must not disturb the trial court's
decision unless the trial court abused its discretion." Kleczek v. Jorgensen, 328 Ill. App. 3d 1012,
1024-25 (2002). A trial court abuses its discretion only if no reasonable person could agree with the
position of the trial court. Matthews v. Avalon Petroleum Co., 375 Ill. App. 3d 1, 9 (2007).
Further, in common-law cases, Illinois courts have allowed punitive damages supported only
by nominal damages when the conduct of the defendant is intentional. See, e.g., In re Estate of
Hoellen, 367 Ill. App. 3d 240, 252 (2006) (holding that punitive damages can be awarded for
intentional breach of fiduciary duty without an award of actual damages); First National Bank of Des
Plaines v. Amco Engineering Co., 32 Ill. App. 3d 451, 455 (1975) (remanding for award of nominal
damages for trespass to property and allowing plaintiffs to amend complaint to seek punitive
damages), superseded by statute on other grounds as recognized by Wujcik v. Gallagher & Henry
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Contractors, 232 Ill. App. 3d 323, 328 (1992); Pratt v. Davis, 118 Ill. App. 161, 181-82 (1905)
(holding that punitive damages can be given for medical battery even though a plaintiff's loss is
nominal); McNay v. Stratton, 9 Ill. App. 215 (1881) (holding that punitive damages can be awarded
in an action for false imprisonment without proof of actual damages).
Here, the trial court held a full evidentiary hearing on punitive damages and, then, granted
relief. It does not appear that the trial court abused its discretion. The court found that defendants'
deceptive or fraudulent conduct was the result of an evil motive or undertaken with a reckless
disregard for the rights of others. Defendants' attempts to convince us otherwise are unavailing.
Cucka, the building superintendent, testified that he told Strosberg, the president of
Morningside, at least one year before plaintiffs' sales contracts closed, that the ceilings would be only
8 feet 6 inches or 8 feet 8 inches high and not 9 feet high as promised, both orally and in the
advertising brochures. When Cucka told Strosberg this information, Strosberg did not tell plaintiffs
about this change in ceiling height; Strosberg said that it was not important and that it was just a
"marketing type of situation." Strosberg testified that his marketing brochures and all other marketing
materials such as newspaper advertisements and marketing signs outside the property represented that
the ceilings were nine feet high. Strosberg admitted that nine-foot ceilings were at least one factor
that attracted buyers to buy the Glen Astor condominiums. Just before plaintiffs closed their sales
contracts, Strosberg finally changed the sales brochures to state that the ceilings were only 8 feet 7
inches high, but he never told plaintiffs about the change. This provides ample circumstantial
evidence that defendants' actions were intentional. The fact that Strosberg presented an innocent
version of these events during his testimony does not alter the fact that we are to give deference to
the trial court's resolution of credibility. It was reasonable for the trial court to conclude that actions
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speak louder than words. The trial court's finding that the misrepresentation was intentional is not
against the manifest weight of the evidence. Therefore, the trial court did not abuse its discretion by
awarding plaintiffs punitive damages.
Defendants cite Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100(2005), Oliveira v. Amoco Oil Co., 201 Ill. 2d 134 (2002), Petty v. Chrysler Corp., 343 Ill. App. 3d
815 (2003), Hayman v. Autohaus on Edens, Inc., 315 Ill. App. 3d 1075 (2000), and B. Sanfield, Inc.
v. Finlay Fine Jewelry Corp., 76 F. Supp. 2d 868 (N.D. Ill. 1999), to support their contention that
plaintiffs must establish actual damages to recover punitive damages under the Consumer Fraud Act.
However, in none of the cases cited by defendants did the courts make specific findings of actual
damages. In contrast, the trial court in this case made a specific finding of actual damages. Keeping
in mind that section 10a(a) requires only that a plaintiff prove that he suffered actual damages and
does not expressly require the plaintiff to prove the amount of actual damages, we determine that
Avery, Oliveira, Petty, Hayman, and B. Sanfield are factually distinguishable from the case at bar and
that nothing in section 10a(a) prohibits the award of nominal and punitive damages here. See 815
ILCS 505/10a(a) (West 1996).
Although not raised by defendants, we distinguish Smith, Allen, Mendenhall, Emons & Selby
v. Thomson Corp., 371 Ill. App. 3d 556 (2006). In Smith, Allen, the Fifth District Appellate Court
held that the plaintiff could not recover punitive damages for allegedly excessive shipping and
handling charges added to CD-ROMs it received, because a witness for the plaintiff testified that,
each time he received a CD-ROM, he made a cost-benefit decision to accept the charge. Smith,
Allen, 371 Ill. App. 3d at 560. Therefore, the plaintiff failed to prove actual damages. Accordingly,
the plaintiff failed to establish a cause of action under the Consumer Fraud Act. Smith, Allen, 371
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Ill. App. 3d at 560. This case is distinguishable because the trial court in this case expressly found
that plaintiffs proved actual damages.
9. The Amount of Punitive Damages
Defendants argue that the amount of punitive damages is so grossly excessive as to violate
the due process clause of the fourteenth amendment to the United States Constitution (U.S. Const.,
amend. XIV).
The due process clause of the fourteenth amendment "prohibits a State from imposing a
' "grossly excessive" ' punishment on a tortfeasor. [Citation.]" BMW of North America, Inc. v.
Gore, 517 U.S. 559, 562, 134 L. Ed. 2d 809, 812, 116 S. Ct. 1589, 1592 (1996). In considering
whether an award of punitive damages is grossly excessive, the trial court must consider the following
factors: (1) the reprehensibility of the defendant's conduct; (2) the disparity between the actual
damages or harm incurred by the plaintiff and the punitive damages award; and (3) the difference
between the punitive damages and civil penalties imposed in comparable cases. Gore, 517 U.S. at
575, 134 L. Ed. 2d at 826, 116 S. Ct. at 1598-99. We review de novo the issue of whether punitive
damages were unconstitutionally awarded. International Union of Operating Engineers, Local 150
v. Lowe Excavating Co., 225 Ill. 2d 456, 469 (2006).
As to the first factor, the reprehensibility of the defendant's conduct, the United States
Supreme Court in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 419, 155
L. Ed. 2d 585, 602, 123 S. Ct. 1513, 1521 (2003), instructs us to consider the following factors when
determining reprehensibility: (1) whether the harm caused was physical as opposed to economic; (2)
whether the tortious conduct evinced an indifference to, or a reckless disregard for, the health and
safety of others; (3) whether the target of the conduct was financially vulnerable; (4) whether the
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conduct involved repeated actions or was an isolated incident; and (5) whether the harm was the
result of intentional malice, trickery, deceit, or mere accident.
In this case, although the harm was purely economic and no one was physically endangered,
defendants engaged in trickery and deceit by intentionally misrepresenting the ceiling heights of their
condominium units to induce plaintiffs to purchase their properties. Defendants had at least one year
to inform plaintiffs about the ceiling-height discrepancy. Instead, they did not inform plaintiffs and
allowed the sales contracts to close. Defendants repeated this conduct no fewer than four times. The
trial court found that defendants acted in bad faith and "concocted an elaborate and false story in
order to try to prop up the defense that no deception was practiced upon them the Plaintiffs [sic]."
After reviewing the record, we believe that this finding was not against the manifest weight of the
evidence.
With regard to the second Gore guidepost, the disparity between the actual damages suffered
by the plaintiff and the amount of the punitive damages award, the Illinois Supreme Court has been
reluctant to identify concrete constitutional limits on the ratio between the harm to the plaintiff and
the punitive damages award. However, our supreme court has encouraged trial courts to award
punitive damages not exceeding a single-digit ratio in comparison to actual damages. Lowe
Excavating, 225 Ill. 2d at 487. Further, minimal compensatory damages may be too slight to give
the victim an incentive to sue and may be insufficient to deter and punish the defendant. Lowe
Excavating, 225 Ill. 2d at 489. In addition, we note that, especially in this case, "we are permitted
to take into account the amount of the attorney fees expended in a case when assessing a punitive
damages award." Lowe Excavating, 225 Ill. 2d at 490. We also may consider the need to punish and
deter defendants' bad conduct. Lowe Excavating, 225 Ill. 2d at 489. "[L]ow compensatory damages
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awards may support higher ratios where a particularly egregious act has resulted in a small amount
of economic damage, or where an injury is hard to detect and the harm is difficult to determine."
Lowe Excavating, 225 Ill. 2d at 487. The best method to determine whether a given ratio is
appropriate is to compare it to punitive damages awards in similar cases. Lowe Excavating, 225 Ill.
2d at 487. We are unaware of similar cases considering the Lowe criteria, especially where nominal
damages and attorney fees were awarded. However, this district recently considered a fraudulent
auto lease in the context of the Consumer Fraud Act. In Gehrett v. Chrysler Corp., 379 Ill. App. 3d
162 (2008), we upheld a ratio of 7 to 1.
In this case, although no compensatory damages were awarded, $83,000 in attorney fees and
$300,000 in punitive damages were awarded, making the ratio of punitive damages just over 3½
times attorney fees, well within the range permitted by Lowe Excavating and Gehrett.
We discuss the third factor to be considered to determine whether an award of punitive
damages is grossly excessive; that is, the difference between the punitive damages and civil penalties
imposed in comparable cases. See Gore, 517 U.S. at 575, 134 L. Ed. 2d at 826, 116 S. Ct. at 1598-
99. The purpose of this third factor is to " 'accord "substantial deference" to legislative judgments
concerning appropriate sanctions for the conduct at issue.' " Gore, 517 U.S. at 583, 134 L. Ed. 2d
at 831, 116 S. Ct. at 1603, quoting Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal,
Inc., 492 U.S. 257, 301, 106 L. Ed. 2d 219, 254, 109 S. Ct. 2909, 2934 (1989) (Brennan, J.,
concurring, joined by Marshall, J.). Section 7 of the Consumer Fraud Act authorizes the imposition
of a civil penalty of up to $50,000 per violation when relief is sought by the Illinois Attorney General
or a State's Attorney. 815 ILCS 505/7 (West 1996). Thus, considering that defendants committed
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numerous violations of the Act, we cannot say that $300,000 in punitive damages is grossly excessive
in light of this third factor.
Because all three of the Gore factors weigh in favor of the trial court's award of $300,000 in
punitive damages, we determine that the award is not grossly excessive and does not violate due
process.
10. Kirkpatrick's Master Bath Unit Damages
Next, plaintiff John Kirkpatrick argues that the trial court erred when it reduced his damages
for defendants' breach of contract relative to the construction of Kirkpatrick's master bath unit.
When there has been a breach of contract based upon defective workmanship, the general
measure of damages is the cost of repairing the defects and/or completing the project. Arch of
Illinois, Inc. v. S.K. George Painting Contractors, Inc., 288 Ill. App. 3d 1080, 1082 (1997).
In this case, the trial court found that defendants breached the contract by failing to perform
in a workmanlike manner. However, the cost of rebuilding the master bathroom was not completely
attributable to defendants, because plaintiff Kirkpatrick's agent, LeNoble, drafted defective plans,
which were followed by defendants. Therefore, the trial court did not attribute the full amount of the
$31,730 repair to defendants. Instead, the damages were split between Kirkpatrick and defendants.
Contrary to Kirkpatrick's contention, the trial court did not apply comparative fault; the computed
damages were based upon defendants' breach. The trial court found that, before defendants started
building the master bathroom, they had an obligation to tell LeNoble that they could not build it based
on his plan and to ask LeNoble to redraft the plan to save costs. Because defendants failed to do this,
the trial court found that the parties were mutually responsible for the cost of the repair. After
reviewing the record, we cannot say that this was against the manifest weight of the evidence.
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11. Smith's Millwork Damages
Plaintiff William Smith argues that the trial court erred when it disregarded evidence that
defendants orally waived their notice provision with respect to Smith's custom cabinetry millwork.
Smith contends that, although his contract obligated him to obtain field measurements, defendants
waived this requirement when their construction manager asked Smith to order bathroom and lighting
fixtures before taking field measurements. However, the trial court was free to find that Rider B,
section 9, which provided, in part, that "[f]ield measurement[s] [are] required to confirm dimensions
prior to ordering materials," prevailed over any conversation Smith may have had with defendants
or defendants' agents regarding bathroom and lighting fixtures. The request of the building manager
was equivocal, and it was not established that the manager was authorized to orally amend the
contract between the parties. We cannot say that the trial court's ruling was against the manifest
weight of the evidence or that it was manifestly erroneous on a mixed question of law and fact.
12. Award of Attorney Fees
Next, defendants argue that the trial court erred by granting plaintiffs attorney fees. The
decision whether to award attorney fees to the prevailing party in a consumer-fraud case rests within
the sound discretion of the trial court. Ciampi v. Ogden Chrysler Plymouth, Inc., 262 Ill. App. 3d
94, 114 (1994). Although defendants argue that plaintiffs were not the prevailing party, we disagree.
In Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human
Resources, 532 U.S. 598, 149 L. Ed. 2d 855, 121 S. Ct. 1835 (2001), the Court held that a
"prevailing party" is one who has been awarded some relief by the court. See also J.B. Esker & Sons,
Inc. v. Cle-Pa's Partnership, 325 Ill. App. 3d 276, 280 (2001) (holding that a party that receives
judgment in his favor is usually considered the prevailing party). In this case, plaintiffs established
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a cause of action under the Consumer Fraud Act and were awarded nominal damages. Thus,
plaintiffs were the prevailing party.
Among the factors the trial court may consider in deciding whether to award attorney fees are:
the degree of the opposing party's bad faith; the opposing party's ability to satisfy the fee award; the
deterrent value of the fee award; whether the party requesting the fees sought to benefit all consumers
or businesses or to resolve a significant legal issue under the Consumer Fraud Act; and the relative
merits of the parties' positions. Majcher v. Laurel Motors, Inc., 287 Ill. App. 3d 719, 730 (1997).
The trial court essentially found that defendants acted in bad faith repeatedly; they
intentionally misrepresented the height of the ceilings prior to closing on the contracts and they
"concocted an elaborate and false story in order to prop up the defense that no deception was
practiced upon the Plaintiffs," lied about the cause of the lower ceilings, and destroyed the
construction logs. The trial court also found that defendant earned millions of dollars from the Glen
Astor Condominium project and had a net worth of many millions of dollars. In light of these findings
we cannot say that the trial court abused its discretion by granting plaintiffs attorney fees.
13. Calculation of Attorney Fees
Lastly, defendants challenge the amount of attorney fees, claiming that the fees were not
supported by proper evidence because plaintiffs' attorney did not keep detailed time slips; instead, he
estimated the time he spent on the Consumer Fraud Act issue.
A court of review may not reverse an award of attorney fees merely because it might have
reached a different conclusion. Cretton v. Protestant Memorial Medical Center, Inc., 371 Ill. App.
3d 841, 868 (2007). In order to alter a fee allowance made by a trial court, the court of review must
determine that the trial court abused its discretion. United States Fidelity & Guaranty Co. v. Old
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Orchard Plaza Ltd. Partnership, 333 Ill. App. 3d 727, 740 (2002). A trial court must determine
whether the party seeking attorney fees has met its burden of presenting sufficient evidence from
which the court can render a decision as to the amount of reasonable attorney fees; such a
determination necessarily involves a weighing of facts, such as the type of fee arrangement at issue,
the amount of hours worked, and the hourly fees charged. Pietrzyk v. Oak Lawn Pavilion, Inc., 329
Ill. App. 3d 1043, 1046 (2002). Evidence of the actual number of hours spent by the attorney is
relevant, but the failure of the attorney to keep time records does not negate the reasonableness of
the fee award. In re Estate of Settle, 97 Ill. App. 3d 552, 555 (1981). The trial court is permitted
to use its own knowledge and experience to assess the time required to complete particular activities.
Cretton, 371 Ill. App. 3d at 868. The trial court can also consider whether it observed the
progression of the case and the research involved. Cabrera v. First National Bank of Wheaton, 324
Ill. App. 3d 85, 104 (2001). We are also reminded of the Consumer Fraud Act's explicit requirement
that it be liberally construed to effect its purpose. See Cuculich v. Thompson Consumer Electronics,
Inc., 317 Ill. App. 3d 709, 716 (2000). Allowing plaintiffs to recover fees and costs incurred during
trial is consistent with the statutory mandate to provide appropriate remedies to defrauded
consumers. Chesrow v. Du Page Auto Brokers, Inc., 200 Ill. App. 3d 72, 76 (1990).
Plaintiffs' counsel filed an affidavit with his petition for attorney fees stating that he was
employed through a contingent fee agreement. Thus, to the extent that time slips were prepared for
many of the services rendered, they did not differentiate between the breach-of-contract, common-
law-fraud, and consumer-fraud claims. However, as attested to by plaintiffs' counsel in his deposition,
the breach-of-contract claims required little time except the crafting of the pleadings themselves. This
was so because plaintiffs knew from measuring their ceilings and their units, before litigation began,
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that the ceilings were short of the nine feet promised and that the square footage was less than
promised. Therefore, plaintiffs' counsel spent practically no time on the breach-of-contract claims.
Further, regarding the common-law-fraud claims, the time expended in gathering the proofs was
virtually the same as that needed for the consumer-fraud claims. Plaintiffs' counsel testified that
virtually all of the work in this case involved the consumer-fraud claims. Plaintiffs' attorney
accounted for his time with time slips as well as he could and presented them to the court. Plaintiffs'
attorney allocated 70% (279 hours) of the time spent on this case to the consumer-fraud claims. This
time, plus costs, amounted to $83,000. Plaintiffs' counsel testified that this percentage was arrived
at by excluding specific time slips unrelated to the consumer-fraud claims and excluding all of the time
associated with amended pleadings and various summary judgment motions and motions to dismiss.
Plaintiffs' counsel repeatedly testified that he gave the benefit of the doubt to defendants. Due to the
nature of the fee arrangement, plaintiffs' file was substantially underbilled because many services
performed, such as court appearances and the writing of pleadings, were accomplished without the
creation of time slips. Because the trial court considered the evidence, was familiar with the case and
its issues, and had the benefit of observing plaintiffs' counsel throughout the proceedings, we cannot
say that the trial court's award of $83,000 in attorney fees was an abuse of discretion.
Defendants cite to Chesrow, 200 Ill. App. 3d 72, to support their argument. However,
Chesrow is factually distinguishable. In Chesrow, this court was reviewing the denial of attorney
fees, whereas here we are reviewing the grant of attorney fees. Therefore, the procedural posture
is different. Also, in Chesrow, the attorney was seeking fees for appellate legal work, and, therefore,
the trial court did not have the benefit of observing the work of the attorney. We reasoned in
Chesrow: "Because the court here was not exposed to the appellate proceedings in the same way as
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Nos. 2--06--0724 & 2--06--0731 cons.
it would be exposed to trial proceedings, it was reasonable for the court to insist that the petition be
supported by a greater degree of independent proof." Chesrow, 200 Ill. App. 3d at 77. In this case,
the trial court was exposed to the trial proceedings and had knowledge of the extent of plaintiffs'
counsel's work. Thus, Chesrow is not controlling.
For these reasons, the judgment of the circuit court of Du Page County is affirmed.
Affirmed.
HUTCHINSON and JORGENSEN, JJ., concur.
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