Country Mutual Insurance Company v. Styck's Body Shop, Inc.

Filed 11/17/09 NO. 4-08-0378

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

COUNTRY MUTUAL INSURANCE COMPANY, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Ford County
STYCK'S BODY SHOP, INC., ) Nos. 00LM3
Defendant-Appellant. ) 01LM7
)
) Honorable
) Stephen R. Pacey,
) Judge Presiding.
_________________________________________________________________

JUSTICE POPE delivered the opinion of the court:

In April 2001, plaintiff, Country Mutual Insurance

Company (Country), filed a complaint in replevin, asserting

defendant, Styck's Body Shop, Inc. (Body Shop), unlawfully

possessed several of its vehicles. Specifically, Country

contended Body Shop refused to release the vehicles from storage

to Country because Country refused to pay a $50 processing fee

Body Shop had recently begun charging. In December 2002, Body

Shop filed a counterclaim, seeking damages for towing,

assessment, storage, and repair services it provided Country.

Both Country and Body Shop filed amended claims prior to trial.

Following an August 2003 trial, a jury returned a

verdict against Country, awarding Body Shop (1) various sums for

towing and storage on 25 out of the 26 vehicles at issue,

totaling $11,837.50, and (2) the $50 processing fee for all 26
vehicles. Thereafter, the trial court awarded Body Shop

$16,759.55 in attorney fees and costs.

Body Shop appeals, arguing the trial court erred by (1)

limiting its damages for storage fees to the number of days Body

Shop stored each vehicle prior to receiving Country's demand for

possession and offer of payment (less the $50 processing fee),

(2) refusing to instruct the jury on the judicially admitted fact

that Body Shop's $20-per-day storage fee was reasonable, and (3)

using an improper legal standard when it limited Body Shop's

request for attorney fees and costs. We affirm as modified and

remand to the trial court with directions to award additional

damages to Body Shop in the amount of $37,900 in storage fees for

what the parties refer to as the Miller and Landau vehicles.

I. BACKGROUND

A. General Overview

The evidence the parties presented at the August 2003

trial and other evidentiary materials the parties submitted at

the summary-judgment proceedings established the following.

Between 1999 and 2003, Body Shop was engaged in the business of

vehicle collision repair and towing. During that same period,

Country sold automobile insurance policies throughout Illinois.

Generally, in the event of an automobile accident

involving a vehicle insured by Country, Body Shop or another

towing company would be called to the scene of the accident by

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either law-enforcement personnel or a private party to (1) clean

up debris, (2) tow the vehicle back to its place of business, (3)

process the vehicle, and (4) store the vehicle. Country then

would decide whether to repair the vehicle or declare it a total

loss. Traditionally, Body Shop billed for hookup, removal,

towing, and storage. Body Shop's fee for hookup, removal, and

towing varied, based on the circumstances of each particular

call. Body Shop charged $20 per day for vehicle storage, which

(1) was standard in the industry and (2) Country consistently

paid.

In the event Country deemed a policyholder's vehicle a

"total loss" as a result of an accident, Country (1) paid the

policyholder for the vehicle, (2) took an assignment of title to

the vehicle, (3) applied for a salvage title, (4) paid the towing

service to release the vehicle from its storage, and (5) disposed

of the vehicle for the value of its parts. Sometime in 1999,

Body Shop began assessing a $50 "processing fee" in addition to

the charges it previously assessed for each total-loss vehicle

towed back to its place of business and stored.

Between 1999 and 2002, Body Shop towed 26 vehicles

insured by Country, which Country later deemed "total losses."

Of these tow requests, 5 were made by private parties, and 21

were made by various law-enforcement agencies. Country refused

to pay the additional $50 processing fee on these 26 vehicles.

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 Country requested the return of 24 of these vehicles

and offered to pay all of the previously accrued charges, save

the $50 processing fee. Country would normally pay storage

charges up to the day it picked up a vehicle but would not pay a

storage charge for a day on which some action of a body shop

prevented Country from retrieving the vehicle. However, Body

Shop refused to honor Country's demand for possession of a

vehicle until Country paid the $50 processing fee for that

vehicle. Robert Styck testified he would not have authorized the

release of a vehicle, even if Country had physically tendered

payment of all undisputed charges for the vehicle, without

payment of the $50 processing fee for that vehicle. Styck's

testimony was borne out by his treatment of what the parties

referred to as the Jordan vehicle. Country gave Body Shop a

check for all of the accrued charges absent the processing fee,

Body Shop cashed the check, but Body Shop still refused to

release the vehicle.

B. Procedural History

In February 2000, Country filed a complaint in

replevin, asserting Body Shop unlawfully possessed the Jordan

vehicle. In April 2001, Country filed a separate complaint in

replevin, asserting Body Shop unlawfully possessed several other

vehicles to which Country held title. Country later amended its

complaint to add additional vehicles. The trial court later

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consolidated these two claims. In total, Country alleged Body

Shop unlawfully possessed 26 of its vehicles because Country

either paid or offered to pay its bills for the vehicles in one

form or another less the $50 processing fees--offers Body Shop

refused to accept.

In September 2002, Body Shop filed its answer to

Country's complaint in replevin, arguing the sums Country

"tender[ed]" for those vehicles were insufficient, given the

amount Country owed for the work, storage, and processing fees

that had accrued to that point. Accordingly, Body Shop asserted,

in pertinent part, the affirmative defense that it had a

"possessory lien interest superior to that claimed by [Country]."

In December 2002, Body Shop filed a counterclaim,

arguing Country owed it approximately $300,000 pursuant to a

bailment created when Body Shop towed the vehicles to its place

of business for assessment, storage, and repair. In April 2003,

Body Shop amended its counterclaim, separating the vehicles into

"private tow" and "police tow" vehicles and asserting Country

owed it (1) $50 in processing fees for each vehicle and (2) $20

per day for storage since the date each vehicle was towed to its

place of business.

In May 2003, Country filed a motion for partial summary

judgment, asserting Body Shop could not raise a genuine issue of

material fact for jury determination on the issues regarding its

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right to recover (1) damages for storage charges for the days

after Country demanded possession of a vehicle and (2) attorney

fees.

In July 2003, Body Shop replied, denying Country's

right to possession of the vehicles and asserting affirmative

defenses based on (1) possessory lien rights under the Labor and

Storage Lien Act (770 ILCS 45/1 through 8 (West 2000)) and the

Labor and Storage Lien (Small Amount) Act (770 ILCS 50/1 through

6 (West 2000)), (2) section 4-203 of the Illinois Vehicle Code

(Vehicle Code) (625 ILCS 5/4-203 (West 2000)), and (3) common-law

artisan's liens. Later that month, Body Shop amended its

counterclaim to include the Jordan vehicle.

Thereafter, the trial court ruled on Country's motion

for partial summary judgment, finding Body Shop could not (1)

claim storage charges for any vehicle for the days Body Shop

retained a vehicle after Country offered to pay the uncontested

charges and demanded the vehicle's return or (2) recover attorney

fees for its attorney's efforts involving the private tow

vehicles.

The trial court stated in part:

"[Country's] [m]otion for [s]ummary

[j]udgment is allowed to the extent that

[Body Shop] has no claim for storage charges

for any vehicles at issue in the [a]mended

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 [c]omplaint or in [the filing for the Jordan

vehicle] from and after the respective dates

[Body Shop] admits demand for possession and

tender of uncontested charges was made by

[Country]."

In August 2003, Country filed a second amended

complaint in replevin, adding the specific dates and offers it

made on the 25 vehicles it claimed Body Shop unlawfully

possessed. (The other vehicle was the Jordan vehicle.) Later

that month, Body Shop filed its second amended counterclaim,

again asserting (1) 21 of the vehicles were police tows and (2) 5

vehicles were private tows for which Country failed to pay Body

Shop the full amount of its fees, including the $20-per-day

storage fee and the $50 processing fee. In its answer to Body

Shop's second amended counterclaim, Country stated the $20-per-

day storage fee was usual and customary. However, Country denied

daily storage charges were properly accruing against the vehicles

Body Shop refused to release. Country also denied Body Shop was

entitled to collect a $50 processing fee for any of the 26

vehicles. Country denied Body Shop was entitled to "storage

charges at the rate of $20.00 per day from the date of [Body

Shop's] possession of each said vehicle to the date of judgment."

At the August 2003 trial, the parties presented, in

pertinent part, evidence in the form of (1) testimony as to (a)

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the industry billing standards and (b) when certain payments were

offered and accepted, (2) bills reflecting the fees Body Shop

alleged Country had incurred, and (3) letters and checks

reflecting the exchanges between the parties. During its closing

argument, Country presented a demonstrative exhibit reflecting,

in part, the date each vehicle arrived at Body Shop and the date

the offer and demand was made for each vehicle. Pursuant to a

pretrial ruling and because no evidence showed that an offer or

demand had ever been made on what the parties called the Miller

and Landau vehicles, Country's exhibit included a 13-day storage

calculation for those 2 vehicles, which was based on the average

number of days the remaining 24 vehicles were stored prior to the

date of Country's offer and demand for possession.

Following the parties' trial, the jury found in favor

of Body Shop, awarding it damages of (1) $3,577.50 for hookup,

removal, and towing; (2) $6,960 for storage; and (3) $1,300 for

processing fees.

C. Attorney Fees and Expenses

In November 2003, Body Shop filed a motion for attorney

fees and expenses, requesting approximately $70,000 for fees,

costs, and expenses. In August 2006, following numerous delays

by both parties in filing their fee petitions and responses

thereto, the trial court entered the following findings as to

attorney fees, costs, and expenses:

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 "The allocations of time to the [Body

Shop's] counterclaim and/or police tows are

arbitrary.

Attorney Patrick McGuire, [Body Shop's]

trade association counsel, did most of the

work on the counterclaim prior to March 2003.

Deposition expenses, witness fees, and

office staff/paralegal time do not appear to

be part of 'collection costs' as defined by

the statute in question.

Some of [a]ttorney Rodeen's time is

billed at $200 per hour and some of

[a]ttorney Rodeen's and [a]ttorney Lanto's

time is not discounted (per their agreement

with [Body Shop]) for the entries when they

were both working on the case.

Reasonable fees for *** Rodeen *** are

$9,948.75; reasonable fees for *** Lanto are

$6,810.00."

In September 2006, Body Shop filed a motion for

attorney fees posttrial and on appeal, which the trial court

later denied.

This appeal followed.

II. ANALYSIS

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 A. Body Shop's Claim That the Trial
Court Erred by Limiting Its Damages

The trial court, in ruling on Country's motion for

summary judgment, stated Body Shop had "no claim for storage

charges for any vehicles at issue in the [a]mended [c]omplaint or

in [No.] 00-LM-3 from and after the respective dates [Body Shop]

admits demand for possession and tender of uncontested charges

was made by [Country]." Body Shop argues the court erred by

limiting its damages. Specifically, Body Shop contends:

"Since Country never made any 'legal tender'

as to any of the [26] vehicles *** [Body

Shop's] lawful right to continued possession

of the vehicles was never terminated through

the date of trial and [Body Shop] was, and

is[,] therefore entitled to judgment for the

full $475,783.50 for all charges and storage

on all [26] vehicles through [August 25,

2003]."

We disagree with Body Shop.

Body Shop appears to believe because it had the right

to retain a vehicle pursuant to its lien, it also had the right

to continue charging storage fees on that vehicle. This is

incorrect. Regardless of whether Body Shop had the right to

retain possession of a vehicle pursuant to a claimed lien after

Country demanded the vehicle's return, established Illinois law

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does not allow Body Shop a legal monetary remedy for the days it

continued to retain the vehicle, regardless of the legal theory

or process it used in its attempt to collect those daily storage

fees. See Weiland Tool & Manufacturing Co. v. Whitney, 44 Ill.

2d 105, 118, 251 N.E.2d 242, 249 (1969); Navistar Financial Corp.

v. Allen's Corner Garage & Towing Service Inc., 153 Ill. App. 3d

574, 578-79, 505 N.E.2d 1321, 1324 (1987); Johnson v. Throop

Street Auto & Wagon Co., 232 Ill. App. 513, 515 (1924); see also

Consolidated Bearings Co. v. Ehret-Krohn Corp., 913 F.2d 1224,

1233 (7th Cir. 1990).

The dissent argues the case sub judice is

distinguishable in part from Weiland, Navistar, and Johnson

because "storage of the vehicle was not the nature of the

parties' original agreement" in those cases. Slip op. at 28.

First, as discussed later in more detail, storage was the nature

of the parties' original agreement in Johnson (see Johnson, 232

Ill. App. at 514). Second, even if all of those cases involved

situations where something other than storage was the original

nature of the parties' agreements, we fail to see the relevance

of this distinction as the original nature of the parties'

agreement in the instant case was towing, not storage. Storage

of the vehicles was only incidental to the towing of the

vehicles.

Our supreme court's decision in Weiland stands for the

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proposition that after the owner of property (other than real

property) demands the return of that property from a bailee, the

bailee is not allowed both (1) to continue to retain possession

of the property pursuant to a lien on the property and (2) charge

storage fees for holding the property for the period of time

after the demand was made. Weiland, 44 Ill. 2d at 118, 251

N.E.2d at 249.

In reaching its decision, our supreme court relied on

Johnson. In Johnson, the defendant public garage-automobile

repair shop's first contact with the vehicle at issue was for

storage, not automobile repairs. Johnson, 232 Ill. App. at 514.

According to the opinion in Johnson:

"Plaintiff's chauffeur, with

plaintiff's consent, stored the

truck[,] when not in use[,] in

defendant's garage during the major

portion of the month of December,

1922, and all of the month of January,

1923. During December, 1922,

defendant, at the chauffeur's request,

twice made repairs on the truck,

furnishing material and performing

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 labor thereon." Johnson, 232 Ill.

App. at 514.

On January 25, 1923, Johnson went to the defendant's

place of business, paid the storage due for December

and January, and also paid for the materials used in

the repairs. Johnson, 232 Ill. App. at 514-15.

However, he refused to pay the $17.25 labor charge for

the repairs. Johnson, 232 Ill. App. at 515. As a

result, the defendant refused to return the vehicle.

Johnson, 232 Ill. App. at 515. On January 31, 1923,

Johnson made a written demand for possession of the

vehicle. Johnson, 232 Ill. App. at 515.

On April 28, 1923, Johnson filed an action in

replevin to recover the vehicle. Johnson, 232 Ill.

App. at 513. The trial court found the plaintiff had a

right to possession of the truck but that it had

rightfully been held by the defendant for the payment

of $62.25. Johnson, 232 Ill. App. at 515. The $62.25

was the total of the $17.25 labor charge for the

repairs and a $15-per-month storage charge for the

months of February, March, and April (the period of

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time defendant held onto the vehicles after the

plaintiff had demanded possession on January 31, 1923).

Johnson, 232 Ill. App. at 515. The appellate court

found the defendant was entitled to $17.25 for the

labor but not the $45 in storage fees for February,

March, and April. Johnson, 232 Ill. App. at 515. The

appellate court concluded:

"After January 31, 1923 [(the date

Johnson demanded possession)], the

truck was not stored in defendant's

garage at plaintiff's request[, even

though it had been stored in

defendant's garage at plaintiff's

request prior to the demand being

made], but was kept there by defendant

contrary to plaintiff's written demand

for its return, and solely by virtue

of defendant's claimed lien for $17.25

for said labor performed thereon. If

defendant chose to insist upon its

right of retainer, given by the law,

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 and suffer the inconvenience of having

a portion of the floor space of its

garage taken up by the truck, this was

its privilege, but in exercising said

right of retainer we do not think that

it had any authority under the law to

add to the debt any charge for storage

during the period the truck was so

retained." Johnson, 232 Ill. App. at

515.

The same reasoning applied by the court in Johnson

applies in the case sub judice.

After Body Shop refused Country's demand for possession

of a vehicle, Body Shop was no longer storing that vehicle on

Country's behalf. Instead, at that point, it was retaining that

vehicle pursuant to a lien in an effort to collect a debt it

believed it was owed. In other words, it was retaining the

vehicle solely for its own benefit.

The dissent states "[t]he majority concludes that under

Johnson, Weiland, and Navistar an offer and demand amount to

tender when, as here, the storage fees were incurred for the

benefit of the lienholder." Slip op. at 28. The dissent

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misinterprets our holding. We hold Country did not need to make

a proper legal tender in addition to a demand for possession to

cut off additional storage fees. As stated earlier, the demand

for possession of a vehicle alone cut off Body Shop's right to

continue charging storage fees for the days it retained that

vehicle after Country's demand.

Theoretically, the defendants in Johnson and

the case at bar could have (1) stored other vehicles in

the spots being occupied by the vehicles they retained

pursuant to their lien rights and (2) earned storage

fees on those other vehicles. However, it was Body

Shop's choice, after Country demanded possession of a

vehicle, as it was the choice of the defendant garage

in Johnson, after the plaintiff in that case demanded

possession of his vehicle, not to return the vehicle

and instead suffer the inconvenience of having part of

its floor space occupied by insisting upon its right of

retainer. As a result, Body Shop, like the defendant

in Johnson, is not entitled to storage fees for the

days it retained a vehicle after Country demanded its

return as a matter of law, regardless of whether it is

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seeking those damages pursuant to an affirmative

defense or a counterclaim.

As our supreme court held in Weiland, after a bailor

has demanded the return of his or its property and the bailee

refuses to release the property because of a lien, the bailee is

no longer storing the property for the benefit of the bailor but

instead for its own purposes, i.e., securing payment for the

services it rendered. Weiland, 44 Ill. 2d at 118, 251 N.E.2d at

249; see also Navistar, 153 Ill. App. 3d at 578, 505 N.E.2d at

1324 ("In the present case, defendant did not keep the truck on

its lot for the benefit of plaintiff, but did so only to preserve

its lien rights"); Consolidated Bearings Co., 913 F.2d at 1233

("Where a bailee retains the bailor's property to protect its own

interests rather than those of the bailor, it cannot claim

compensation from the bailor").

As part of its argument that its storage fees should

not have been limited, Body Shop contends the trial court

misconstrued the $2,000 limitation under section 4-203(g) of the

Vehicle Code (625 ILCS 5/4-203(g) (West 2000)). Body Shop

asserts its counterclaim for damages should not have been limited

to $2,000 because its counterclaim was a separate claim to

recover damages outside of the lien statute. However, the court

did not impose the statutory lien limitation of $2,000. The

court only cut off Body Shop's right to storage fees after

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Country demanded possession of a vehicle. The storage fees for

the days preceding the demand and the other towing fees just

happened to be less than $2,000 per vehicle at the point

Country's demands were made.

Body Shop argues as if it had no choice but to retain

possession of the vehicles. This is clearly incorrect. Body

Shop could have released the vehicles to Country and sued Country

for the disputed charges. However, Body Shop chose to retain

possession of the vehicles pursuant to its liens to secure

payment for its services. While this was a legally legitimate

course of action, it was not a practical one considering (1) Body

Shop did not need to worry about Country being "judgment proof"

and (2) the small amount of money (both disputed and undisputed)

at issue when Country demanded the return of its vehicles.

We do agree with Body Shop the trial court erred in its

treatment of the Miller and Landau vehicles. Both Body Shop and

Country agree that Country never made a demand for the return of

either of these vehicles. However, the court allowed Country to

argue to the jury that it should only award Body Shop damages for

13 days of storage since this was the average number of days the

other 24 vehicles were held before Country made a demand for

their possession. The court erred in the way it limited the

amount of storage fees Body Shop could claim for those two

vehicles. The court recognized its ruling was arbitrary. We

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agree and also find its ruling erroneous.

The correct cutoff date for the accrual of storage fees

for these two vehicles was August 22, 2003, the date Body Shop

was served with Country's second amended complaint in replevin.

In that second amended complaint in replevin, Country asked the

trial court to require Body Shop to return these two vehicles to

Country. At that point, Body Shop was placed on notice it was no

longer storing these two vehicles for Country's benefit. The

complaint in replevin served as a demand for the return of the

vehicles named in the complaint.

Country never informed Body Shop it no longer wanted

Body Shop to store these two vehicles until it served Body Shop

with the second amended complaint in replevin. Thus, Body Shop

is entitled to a $20-per-day storage fee, which the parties

agreed was a reasonable storage fee, for the period of December

11, 2000, to August 22, 2003, for the Miller vehicle and the

period of February 24, 2001, to August 22, 2003, for the Landau

vehicle.

For the sake of clarity, our opinion does not mean

someone can simply make a demand for possession of a vehicle,

never pick up the vehicle, and deny responsibility for storage

fees for the days subsequent to the demand. Only where a demand

for possession is made and the lienholder refuses to release the

property, as Body Shop did in this case, is the lienholder

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prevented from claiming fees which accrue following the demand.

The dissent's reasoning with regard to storage fees is

inconsistent. The dissent first states only a proper legal

tender should cut off the accrual of storage fees. Slip op. at

28. However, the dissent then states the service of a complaint

in replevin should cut off storage fees, even though it is not

accompanied by a proper legal tender. Slip op. at 33-34. The

dissent recognizes "selecting this point may seem somewhat

arbitrary" for cutting off the accrual of storage fees. Slip op.

at 34.

The majority's reasoning is not arbitrary. Once a

demand for possession is made, whether by a complaint in replevin

or otherwise, and the lienholder refuses to turn over the

property, the lienholder can no longer continue to accrue daily

storage fees for that property.

B. Body Shop's Claim the Trial Court Erred
by Refusing To Instruct the Jury Its
$20-Per-Day Storage Fee Was Reasonable

Body Shop next argues the trial court erred by refusing

to instruct the jury that its $20-per-day storage fee was

reasonable and that the parties agreed the fee was reasonable.

We disagree.

Whether to give a particular jury instruction is within

the trial court's discretion, and a reviewing court will not

disturb its decision absent an abuse of that discretion. Myers

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v. Heritage Enterprises, Inc., 354 Ill. App. 3d 241, 245, 820

N.E.2d 604, 608 (2004). Reversal is only warranted when the jury

instructions have misled the jury and resulted in prejudice.

Myers, 354 Ill. App. 3d at 245, 820 N.E.2d at 608.

In this case, both parties agreed Body Shop's $20-per-

day storage fee was reasonable. Moreover, both parties presented

evidence at trial that Body Shop's $20-per-day storage fee was

reasonable. In fact, the exhibit Country used during closing

argument included the $20-per-day figure to calculate damages.

Perhaps most significantly, the jury awarded Body Shop damages

for storage fees in $20 increments.

Given the record and the jury's verdict reveal the jury

understood the parties agreed the $20-per-day storage fee was

reasonable, we conclude the trial court did not abuse its

discretion by not instructing the jury the $20-per-day storage

fee was reasonable. Further, Body Shop suffered no prejudice

from the court's failure to give this instruction.

C. Body Shop's Claim the Trial Court Erred by
Using the Improper Legal Standard When It
Awarded Body Shop Attorney Fees and Costs

Body Shop next argues the trial court erred by using an

improper legal standard when it limited Body Shop's request for

attorney fees and costs. Country argues the trial court did not

abuse its discretion.

In general, Illinois courts follow the "American Rule,"

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which provides each party must bear its own attorney fees and

costs, absent statutory authority or a contractual agreement.

McNiff v. Mazda Motor of America, Inc., 384 Ill. App. 3d 401,

404, 892 N.E.2d 598, 602 (2008). However, when a statute

authorizes an award of attorney fees and costs, the court may

award such fees and costs if they are reasonable. Career

Concepts, Inc. v. Synergy, Inc., 372 Ill. App. 3d 395, 405, 865

N.E.2d 385, 394 (2007). The trial court's decision to award

attorney fees is a matter within its sound discretion, which a

reviewing court will not disturb absent an abuse of that

discretion. McNiff, 384 Ill. App. 3d at 404, 892 N.E.2d at 602.

Section 4-204(d) of the Vehicle Code (625 ILCS 5/4-

204(d) (West 2000)) authorizes release of police tow vehicles

"upon payment of applicable removal, towing, storage, and

processing charges and collection costs." Section 1-111.3 of the

Vehicle Code (625 ILCS 5/1-111.3 (West 2000)) states "[c]ollec-

tion costs consist of reasonable costs incurred in locating the

owner, lienholder, or other legally entitled persons, and

demanding payment, together with court costs and reasonable

attorney's fees as determined by the court." (Emphasis added.)

In this case, the trial court properly recognized that

"collection costs" under section 4-204(d) of the Vehicle Code

include attorney fees and court costs, but not deposition

expenses, witness fees, or office staff time. After reviewing

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the invoices and numerous fee petitions, the court found Body

Shop's allocation of its billable hours to its counterclaim and

police tow vehicles to be arbitrary. The court also found the

attorneys had not discounted their time pursuant to their

agreement with Body Shop for the entries when they were both

working on the case. Thus, the court found reasonable fees and

costs were $9,948.75 for attorney Rodeen and $6,810.00 for

attorney Lanto.

As a general rule, in cases involving multiple claims

where some claims are filed pursuant to statutes that allow for

attorney fees and others not, an attorney fee petition must

distinguish between the hours spent on the statutory fee-shifting

claims and the other claims. G M A C Mortgage Corp. v. Larson,

232 Ill. App. 3d 697, 703, 597 N.E.2d 1245, 1250 (1992); Rubin v.

Marshall Field & Co., 232 Ill. App. 3d 522, 534, 597 N.E.2d 688,

696 (1992). However, Body Shop contends, although the Vehicle

Code limits recovery for attorney fees and costs to police tow

vehicles, the trial court should have used the "common core"

analysis to award its attorney fees and costs for all the legal

work billed. Body Shop cites Hensley v. Eckerhart, 461 U.S. 424,

76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983), among other cases as

support for its argument. Neither Body Shop nor Country cited

any decisions from this court on this issue.

Even though the trial court rejected Body Shop's

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argument that the "common core of facts" doctrine should apply,

we need not go into a lengthy discussion of whether the trial

court was correct because of the circumstances of this case. The

trial court awarded a combined $16,758.75 in attorney fees to

Body Shop's attorneys. This award would have been reasonable

even applying the "common core of facts" doctrine.

In Hensley, the United States Supreme Court stated

trial courts should look at the number of hours reasonably

expended on the case multiplied by a reasonable hourly rate in

determining attorney fee awards. Hensley, 461 U.S. at 433, 76 L.

Ed. 2d at 50, 103 S. Ct. at 1939. However, the Court said this

does not end the inquiry because the trial courts should look to

other factors that might cause the trial court to adjust the fee

either upward or downward. Hensley, 461 U.S. at 434, 76 L. Ed.

2d at 51, 103 S. Ct. at 1940. One of these factors is the result

the plaintiff obtained. Hensley, 461 U.S. at 434, 76 L. Ed. 2d

at 51, 103 S. Ct. at 1940.

According to the Court, this factor is very important

when the plaintiff only prevailed on some of his claims. In that

situation two questions must be answered. Hensley, 461 U.S. at

434, 76 L. Ed. 2d at 51, 103 S. Ct. at 1940. First, were the

unsuccessful claims related to the successful claims? Hensley,

461 U.S. at 434, 76 L. Ed. 2d at 51, 103 S. Ct. at 1940. Second,

based on the level of success achieved, were the "hours

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reasonably expended a satisfactory basis for making a fee award?"

Hensley, 461 U.S. at 434, 76 L. Ed. 2d at 51, 103 S. Ct. at 1940.

The Court stated in some cases a plaintiff's claims for

relief will all involve a common core of facts or will be based

on related legal theories. In those situations, "[m]uch of

counsel's time will be devoted generally to the litigation as a

whole, making it difficult to divide the hours expended on a

claim-by-claim basis." Hensley, 461 U.S. at 435, 76 L. Ed. 2d at

51, 103 S. Ct. at 1940. In those cases, according to the Court,

the court awarding fees "should focus on the significance of the

overall relief obtained by the plaintiff in relation to the hours

reasonably expended on the litigation." Hensley, 461 U.S. at

435, 76 L. Ed. 2d at 51-52, 103 S. Ct. at 1940. The Court stated

if a plaintiff obtained excellent results, his attorney should

receive a fully compensatory fee. However, according to the

Court:

"If, on the other hand, a plaintiff has

achieved only partial or limited success, the

product of hours reasonably expended on the

litigation as a whole times a reasonable

hourly rate may be an excessive amount. This

will be true even where the plaintiff's

claims were interrelated, nonfrivolous, and

raised in good faith. Congress has not

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 authorized an award of fees whenever it was

reasonable for a plaintiff to bring a lawsuit

or whenever conscientious counsel tried the

case with devotion and skill. Again, the

most critical factor is the degree of success

obtained." (Emphases added.) Hensley, 461

U.S. at 436, 76 L. Ed. 2d at 52, 103 S. Ct.

at 1941.

Country and Body Shop agreed the primary issue in this

case was whether Body Shop was entitled to a $50 processing fee

on the 26 vehicles. However, instead of simply claiming $1,300

in damages for these processing fees, Body Shop incorrectly

claimed it was entitled to nearly $500,000 in storage fees from

Country.

While Body Shop succeeded in part, the results it

achieved were minimal. Body Shop sought damages of over

$475,000. The jury awarded Body Shop $11,837.50. Most of this

award was not disputed by Country either before or during the

trial. Even after this court's finding Body Shop is entitled to

$19,700 in storage fees for the Miller vehicle and $18,200 for

the Landau vehicle, Body Shop still achieved minimal results

compared to what it was seeking. The trial court awarded Body

Shop $16,758.65 in attorney fees, which was more than reasonable

based on the facts and circumstances in this case.

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 As for Body Shop's request for posttrial and appellate

attorney fees, the trial court stated in its April 21, 2008,

order:

"[Body Shop's] [m]otion for [a]ttorney [f]ees

[p]ost-[t]rial and on [a]ppeal [(1)] cites no

statutory or case authority for attorney fees

on appeal, [(2)] was not part of a post-trial

motion and [(3)] was not timely filed in

accordance with any agreement of the parties

or [c]ourt[-]ordered extension of time."

As for the timeliness of its filing, Body Shop made the following

one-paragraph statement:

"[Body Shop's] [m]otion for [a]ttorney [f]ees

[p]ost-[t]rial and on [a]ppeal was filed on

September 11, 2006, the extended deadline for

filing [p]ost-[t]rial motions and thus was

timely. Furthermore, this [c]ourt (and

others) have found appellate fee petitions

(in the trial court) filed even after a

notice of appeal (or even the appeal) to be

timely."

Body Shop then goes on to cite the following four cases: In re

Marriage of Legge, 111 Ill. App. 3d 198, 443 N.E.2d 1089 (1982);

In re Marriage of Schweihs, 272 Ill. App. 3d 653, 650 N.E.2d 569

- 27 -
(1995); In re Marriage of Giammerino, 94 Ill. App. 3d 1058, 419

N.E.2d 598 (1981); and F.H. Prince & Co. v. Towers Financial

Corp., 266 Ill. App. 3d 977, 640 N.E.2d 1313 (1994). However,

Body Shop made no argument as to the relevance of these decisions

in this case. The simple fact the appellate fee petitions in

those cases were allowed does not mean the trial court erred in

this case.

"Bare contentions in the absence of

argument or citation of authority do not

merit consideration on appeal and are deemed

waived. [Citation.] A reviewing court is

entitled to have issues clearly defined with

pertinent authority cited and cohesive

arguments presented (134 Ill. 2d R.

341(e)(7)), and it is not a repository into

which an appellant may foist the burden of

argument and research [citation]; it is

neither the function nor the obligation of

this court to act as an advocate or search

the record for error [citation]." Obert v.

Saville, 253 Ill. App. 3d 677, 682, 624

N.E.2d 928, 931 (1993).

Because Body Shop failed to present a cohesive argument, it

forfeited this issue.

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 III. CONCLUSION

For the reasons stated, we affirm as modified and

remand to the trial court with directions to amend its judgment

to add an award to Body Shop of $19,700 in storage fees for the

Miller vehicle and $18,200 in storage fees for the Landau

vehicle.

Affirmed as modified and remanded with directions.

MYERSCOUGH, J., concurs.

STEIGMANN, J., specially concurs in part and dissents

in part.

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 JUSTICE STEIGMANN, specially concurring in part and

dissenting in part:

I concur in the majority's conclusion as to the (1)

jury instruction and (2) attorney fees and costs.

However, I respectfully dissent from the portion of the

majority's opinion in which it holds that, under the facts of

this case, demand alone was sufficient to cut off the accrual of

storage fees.

In my view, the pertinent question in this case is

whether Body Shop's damages for storage--which was the nature of

the parties' original agreement--should have been tolled when

Country made demand for possession, even though Body Shop had

filed a separate counterclaim for those fees, simply because Body

Shop also asserted lien defenses. I would hold that Body Shop's

damages for such storage fees--under its counterclaim--should not

have been tolled until the date Country proffered legal tender of

uncontested fees or, absent tender, on the date that Country

served Body Shop with notice of its complaint in replevin.

Prior to trial, the trial court granted Country's

motion for partial summary judgment. The court found, in part,

that Body Shop could not maintain any claim for storage charges

for any vehicle after the dates that Country "tendered" payment

by (1) letter in which it made demand and offered to pay the

uncontested charges on 21 of the vehicles, (2) submitting the

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check for the Jordan vehicle, and (3) verbally offering to pay

the uncontested amounts due on what the parties referred to as

the Rock and Kaeding vehicles. Further, the court determined

that even though Country had never offered to pay any of the

charges for the Miller and Landau vehicles, Country "tendered"

payment when it unilaterally decided that making such an offer

would have been futile. The trial court decided that the appro-

priate date of tender for the Miller and Landau vehicles would be

13 days from the date each vehicle had been towed--which was the

average number of days between the date the other 24 vehicles

were towed and the date Country supposedly tendered payment for

those 24 vehicles.

Body Shop contends that the trial court erred by

finding that Country had tendered payment for all 26 vehicles.

Specifically, Body Shop posits that Country's mere offers were

insufficient to rise to the level of tender. The majority

concludes that under Johnson, Wieland, and Navistar an offer and

demand amount to tender when, as here, the storage fees were

incurred for the benefit of the lienholder. The majority is

correct insofar as those cases apply to situations in which only

a complaint to enforce a lien is filed or a lien is asserted as

an affirmative defense and offer and demand are made when the

storage of the vehicle was not the nature of the parties' origi-

nal agreement. However, when, as here, a separate claim for

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civil damages is filed to recover storage fees for such agreed-

upon storage, proper legal tender must be proffered in order to

stop the fees from accruing. See Board of Education, Springfield

Public Schools, District No. 186, Sangamon County v. McCoy, 123

Ill. App. 3d 1065, 1074, 463 N.E.2d 1308, 1314 (1984), quoting

Pinkstaff v. Pennsylvania R.R. Co., 31 Ill. 2d 518, 525, 202

N.E.2d 512, 515 (1964) ("'A tender, within the legal meaning of

the word, once made, stops the accrual of interest instanter'").

Thus, under the facts of this case, the trial court erred by

limiting Body Shop's damages as to 25 of the vehicles because

Body Shop filed a counterclaim to recover its storage fees and

Country failed to proffer legal tender on those 25 vehicles.

Similar to the Johnson, Weiland, and Navistar cases,

Body Shop here asserted its liens in response to Country's

complaint in replevin. However, Body Shop also filed a counter-

claim, in which it asserted separate claims for recovery not

based on its lien, seeking to recover civil damages for storage

fees Country accrued before it properly tendered payment, given

the storage was the nature of the parties' original bailment.

Thus, Body Shop should have been entitled to argue that it could

recover storage fees from the time each vehicle was towed until

the date Country tendered payment (or until the accrual of its

fees were otherwise tolled). Nonetheless, had the nature of the

parties' bailment been other than storage, such as traditional

- 32 -
repair, Johnson, Weiland, and Navistar would likely preclude

recovery for the storage fees after the date on which Country

made an offer and demand for each of its vehicles (less the

vehicles for which Country never made an offer) because such

storage fees would not have caused Body Shop any inconvenience or

additional expense under such a scenario. Accordingly, the

appropriate analysis in this case would be to first determine,

when, if ever, Country tendered payment on each of the vehicles.

"Tender" is an unconditional offer of payment that must

include the actual production of the full amount due on a partic-

ular obligation. Arriola v. Time Insurance Co., 323 Ill. App. 3d

138, 146, 751 N.E.2d 221, 227 (2001). More specifically, tender

is "'[t]he actual proffer of money, as distinguished from mere

proposal or proposition to proffer it. Hence[,] mere written

proposal to pay money, without offer of cash, is not "tender."'"

McLean v. Yost, 273 Ill. App. 3d 178, 180, 652 N.E.2d 426, 427

(1995), quoting Black's Law Dictionary 1315 (5th ed. 1979). Even

an offer to pay by check is not "legal tender" when an objection

to such tender is made. Margulus v. Mathes, 339 Ill. App. 497,

500, 90 N.E.2d 254, 256 (1950) (actual currency is the sole

medium of payment absent an agreement to the contrary).

Country offered to settle its account with Body Shop as

to the Jordan vehicle by producing a check for $412.50. Body

Shop accepted this check on February 4, 2000, and later cashed

- 33 -
it. This check became "legal tender" at the time (1) Country

presented it to Body Shop as payment and (2) Body Shop received

it as a medium of payment it was willing to accept based on the

parties' prior dealings. Accordingly, Country tendered payment

on the Jordan vehicle on February 4, 2000.

Country offered to settle its accounts with Body Shop

as to the vehicles upon which it purported to have tendered

payment by letter on various dates between March 2000 and January

2002. Country's offers were presented via separate letters for

each vehicle, each discussing Country's willingness to pay

certain otherwise agreed-upon charges less Body Shop's $50

processing fee. Body Shop refused to accept each of Country's

offers on these vehicles.

Country's mere offers to settle its disputed charges

with Body Shop were insufficient to rise to the level of legal

tender. See Brown & Kerr, Inc. v. American Stores Properties,

Inc., 306 Ill. App. 3d 1023, 1032, 715 N.E.2d 804, 812 (1999)

("Tender of an amount less than the creditor claims is due is

ineffective when acceptance is conditioned on an admission that

no greater amount is due"). Indeed, Country's letter's were

merely an offer to pay the uncontested amount of its bill at some

future date in the event that Body Shop agreed to accept the

amount offered in each letter. Country did not present cash or

an equivalent that Body Shop was willing to accept in exchange

- 34 -
for release of its vehicles. (However, a check may have been the

equivalent based upon the parties' previous dealings with the

Jordan vehicle.) Accordingly, I respectfully conclude that

Country did not tender payment on these vehicles.

Country offered to settle its accounts with Body Shop

as to certain other vehicles by verbally expressing its willing-

ness to pay the uncontested charges less the $50 processing fee.

As verbal promises to pay cannot be "legal tender" (see McLean,

273 Ill. App. 3d at 180, 652 N.E.2d at 427 (tender is the actual

proffer of money, as opposed to the proposal to offer it)),

Country did not tender payment on these vehicles.

Country argued to the trial court that it somehow

tendered payment to settle its accounts with Body Shop as to

other vehicles even though it never formally offered to pay the

bills for those vehicles. That is, Country contended that it

tendered payment when it unilaterally determined that Body Shop

would not be willing to accept any offer that did not include the

processing fee. In response to the court's inquiry into how to

determine a tender date for these vehicles, Country asserted that

the court should average the number of days the other 24 vehicles

were held until "tender" was made. As the majority notes, the

court agreed and found that tender was made on these vehicles 13

days after the date each of those vehicles were towed back to

Body Shop for storage.

- 35 -
 Because, at a minimum, tender requires that an actual

offer have been made, and because Country failed to make any

offer as to these vehicles, Country did not tender payment on

these vehicles either.

Body Shop further contends that the trial court erred

by limiting its storage fees to the date that Country offered to

pay its bill on each individual vehicle. I would agree with Body

Shop as to 25 of the vehicles because, as previously discussed,

tender was not made on those vehicles. However, because Country

did not tender payment, I conclude the appropriate analysis would

be to next determine when, if ever, the $20-per-day storage fee

was tolled.

In this type of case, similar to the situation in which

postjudgment interest is tolled pending appeal by statute when a

judgment debtor tenders payment to the court under the Code of

Civil Procedure (735 ILCS 5/2-1303 (West 2000)), tender of

uncontested charges should likewise stop storage fees from

accruing. See Kramer v. Mt. Carmel Shelter Care Facility, Inc.,

322 Ill. App. 3d 389, 392, 750 N.E.2d 757, 760 (2001) (citing

section 2-1303 of the Code of Civil Procedure). For instance,

had Country presented Body Shop with a check (a medium of ex-

change Body Shop had recently accepted for payment of the Jordan

vehicle) for the amount of the uncontested charges on each

vehicle--as opposed to a letter indicating its intent to tender

- 36 -
payment--Body Shop's recovery for storage fees would be limited

to the date that such payment was tendered. Given the record in

this case, the trial court erred by limiting Body Shop's storage

fees to the date Country offered to pay its bill on all the

vehicles (with the exception of the Jordan vehicle). (As previ-

ously stated, Country tendered payment for the Jordan vehicle on

February 4, 2000.)

Nevertheless, the question remains, at what point, if

ever, does the "meter" stop running on a per-day storage fee when

a party's offer to recover its vehicles falls short of tender.

This appears to be an issue of first impression in Illinois.

Considering the interests of both parties, I would conclude that

absent tender, the storage fees stop accruing on the date that

the vehicle's owner serves the party withholding its vehicle with

its complaint in replevin. While I recognize that selecting this

point may seem somewhat arbitrary, in a case such as this the

fees must stop accruing at some point. Absent legal tender--

which, as previously explained, would stop the storage fees from

accruing--service of the complaint in replevin is the most

appropriate point. Otherwise, the party storing the vehicles

would have the perverse incentive to prolong the litigation to

continue accruing fees. For example, if Body Shop had demanded

excessive fees (say, $4,000 for each vehicle) from Country, it

would be intolerable to require Country to either pay the exorbi-

- 37 -
tant fees or to simply watch as litigation proceeded as the meter

kept on ticking. However, Country also had the ability, and,

according to the majority, the resources, to stop the fees from

accruing at its discretion by simply paying the uncontested

charges--that is, by proffering legal tender--at the time the

disagreement over the additional $50 fee arose.

The majority claims that, while Body Shop's decision to

retain the vehicles after Country made demand for them was

"legally legitimate," its decision "was not a practical one

considering (1) Body Shop did not need to worry about Country

being 'judgment proof' and (2) the small amount of money (both

disputed and undisputed) at issue when Country demanded the

return of its vehicles." Slip op. at 16. I do not believe

either point is relevant to the analysis. However, even if these

points were relevant, Body Shop had no way of knowing the type of

financial condition Country was in at that time. Indeed, the

fact that it was unwilling to pay what the majority describes as

a "small amount of money" would more likely indicate to a small

business owner that Country was not in the best financial condi-

tion.

Accordingly, as to each of the 25 vehicles that Country

did not tender payment, I would hold that Body Shop's storage

fees were tolled on the date Country served Body Shop with its

complaint in replevin.

- 38 -
- 39 -