2018 IL App (1st) 171238
No. 1-17-1238
Opinion filed December 27, 2018
FOURTH DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
RAYMOND THOMAS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 16 L 6955
)
WEATHERGUARD CONSTRUCTION ) The Honorable
COMPANY, INC., ) Joan E. Powell,
) Judge, presiding.
Defendant-Appellant. )
JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice McBride and Justice Burke concurred in the judgment and opinion.
OPINION
¶1 In 2007, plaintiff Raymond Thomas sued defendant Weatherguard
Construction Company, Inc., alleging that defendant was his employer and
owed him $47,666 in commissions for contracts that plaintiff had procured on
defendant's behalf. Thomas v. Weatherguard Construction Co, 2015 IL App
No. 1-17-1238
(1st) 142785, ¶¶ 1, 3. In 2014, after a bench trial, the trial court found that
defendant was indeed plaintiff's employer and did owe plaintiff commissions,
but awarded plaintiff only $9226.52 in damages, or roughly one-fifth of what
plaintiff had originally sought. Thomas, 2015 IL App (1st) 142785, ¶ 1. On the
subsequent appeal in 2015, this court affirmed the trial court's judgment in
plaintiff's favor and the trial court's damages award of $9226.52 plus costs.
Thomas, 2015 IL App (1st) 142785, ¶ 1, 40.
¶2 However, this court "remand[ed] this case to the trial court for the limited
purpose of applying the attorney fees provision of the 2011 amendment [to the
Wage Payment Act] retroactively and awarding plaintiff 'costs and all
reasonable attorney's fees.' " Thomas, 2015 IL App (1st) 142785, ¶ 78 (quoting
820 ILCS 115/14(a) (West 2012)).
¶3 On remand, neither party requested an evidentiary hearing and the trial
court, who had also presided over the bench trial, considered the issue based on
the briefs and exhibits submitted by the parties. On April 21, 2017, after 10
years of litigation, the trial court found that plaintiff was "entitled to attorney
fees in the amount of $178,449.97" and "costs in the amount of $1,124.68," for
a total of $179,574.65, or roughly 20 times plaintiff's damages award. It is this
April 21, 2017, order that is the primary subject of the present appeal.
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¶4 In essence, plaintiff argues that we should focus on the 10 years of hard-
fought litigation it took for him to gain his award, while defendant argues that
we should focus on the disparity between the damages award and the attorney
fees award.
¶5 Defendant also appeals from the denial of his petition to substitute judge
after the matter was remanded. For the following reasons, this court affirms.
¶6 BACKGROUND
¶7 On December 5, 2007, plaintiff filed a complaint that was amended on
July 14, 2008; and it was the amended complaint on which the parties
proceeded to trial. The amended complaint alleged that defendant was in the
business of repairing and replacing roofs, siding doors and windows for homes
that sustained damage due to weather conditions; and that defendant hired
plaintiff on April 7, 2007, as a commissioned sales representative to solicit
contracts for defendant. Plaintiff alleged that defendant promised to pay him
commissions equal to 20 percent of the total value of the contracts, and that
defendant terminated his employment on July 9, 2007, after plaintiff had
secured contracts in the amount of $245,010.57. Plaintiff alleged that he was
entitled to commissions in the amount of $49,002.11, but had been paid only
$1335.57, and therefore was owed $47,666.54 in unpaid commissions.
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Plaintiff's complaint sought $47,666.54, as well as punitive damages and
attorney fees.
¶8 Count I of the four-count complaint alleged that defendant violated the
Sales Representative Act (820 ILCS 120/1 et seq. (West 2006), which requires
a principal to pay a sales representative earned commissions within 13 days
after the representative's termination of employment. In the alternative, count II
alleged that defendant violated the Wage Payment Act (820 ILCS 115/1 et seq.
(West 2006)), which required an employer to pay an employee final
compensation at the time of termination. Count III was for breach of contract,
alleging that defendant breached its oral contract with plaintiff by failing to pay
him as agreed, and count IV was for unjust enrichment.
¶9 In its answer, defendant denied that plaintiff was its employee, denied
that it had any business relationship with plaintiff and denied that it owed
plaintiff any commissions.
¶ 10 On June 12, 2010, defendant moved for summary judgment. The trial
court granted the motion with respect to the count based on the Sales
Representative Act (count I), but denied the motion with respect to all the other
counts.
¶ 11 The bench trial began, and on June 28 and 29, 2011, plaintiff presented
his case-in-chief, calling only two witnesses: himself; and Brett McDonald,
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No. 1-17-1238
defendant's president and owner. On July 13, 2011, defendant moved for a
directed finding that the trial court denied on July 22, 2011. On November 9
and 10, 2011, defendant presented its case-in-chief, calling only one witness:
its president and owner, Brett McDonald. The primary issue at trial and on
appeal was whether plaintiff was, or was not, defendant's employee. Thomas,
2015 IL App (1st) 142785, ¶ 43. Since that is not an issue on this appeal, and
since this court already described the evidence at trial in detail in our prior
opinion, we incorporate that opinion here by reference. Thomas, 2015 IL App
(1st) 142785, ¶¶ 11-31 (describing the evidence at trial).
¶ 12 On January 25, 2013, the trial court issued a written order and opinion,
finding that plaintiff's testimony was credible, that plaintiff and defendant had
"an oral contract whereby [plaintiff] was to receive commissions of 20% of the
completed contract," and that plaintiff was entitled to a 20% commission on the
net value of the 31 completed contracts that he had secured. The trial court then
directed the parties "to figure out the amount due on commissions according to
the finding above. In other words, use 20% of the net profits from each contract
secured by [plaintiff] that was accepted and built out by [defendant]."
¶ 13 The trial court also found that defendant was plaintiff's employer for
purposes of the Wage Payment Act, that defendant had violated this Act, and
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that plaintiff was therefore entitled to a doubling of the amount of the
commission award.
¶ 14 On April 4, 2013, defendant filed objections to the court's ordered
procedure, and on April 5, 2013, the trial court agreed to determine the amount
of damages to be awarded. On April 17, 2014, the trial court awarded plaintiff
$9226.52, doubled, plus court costs. On May 16, 2014, defendant moved to
reconsider, claiming that the trial court's doubling of the commissions pursuant
to the Wage Payment Act was incorrect. In response, plaintiff claimed, among
other things, that the trial court should have also provided for attorney fees. On
August 14, 2014, the trial court vacated its prior April 17, 2014, order and
awarded plaintiff $9226.52, plus costs, but struck the doubling of the damages
award.
¶ 15 Both parties filed notices of appeals, which this court consolidated. In
our opinion, issued on September 30, 2015, this court observed that the primary
issue on appeal was whether the trial court erred in finding that plaintiff was
defendant's employee. Thomas, 2015 IL App (1st) 142785, ¶ 43. Plaintiff also
claimed, among other things, that he was entitled to attorney fees. This court
affirmed the trial court's judgment and damages award, but determined that
plaintiff was also entitled to costs and all reasonable attorney fees and, thus, we
remanded the case for the limited purpose of determining what those costs and
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No. 1-17-1238
reasonable attorney fees were. Thomas, 2015 IL App (1st) 142785, ¶¶ 59, 75,
78.
¶ 16 Defendant filed a petition for rehearing which this court denied on
November 2, 2015, and a petition for leave to appeal which the Illinois Supreme
Court denied on January 20, 2016. On remand to the trial court, the parties
submitted briefs and exhibits, and the court heard argument. Neither party
requested an evidentiary hearing, so none was held. On remand, the trial judge
was the same trial judge who had presided over the bench trial and issued the
underlying judgment in the case.
¶ 17 On remand, plaintiff submitted a fee petition on September 7, 2016,
seeking attorney fees of $169,037.49, and $1244.68, to date,1 for fees and costs
incurred since September 2007. In support, his attorney, Arnold Toole of Toole
Law Offices, submitted his own affidavit and a copy of the computerized
records maintained by his office. Toole averred that each entry was "made on or
about the day the time [was] expended." The computerized records included a
list of expenses.
¶ 18 Arnold Toole declared under penalty of perjury that he had personal
knowledge of "all fees and costs incurred in this matter," that he was the only
attorney in his law firm; and that he was "the sole attorney representing
1
Plaintiff later revised these amounts upward to encompass additional fees
and costs incurred after September 7, 2016. Infra ¶ 32.
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No. 1-17-1238
[plaintiff] throughout this litigation," except for trial and for one court hearing
where an attorney covered for him. Toole declared that he had been a
practicing attorney in Illinois for over 22 years, that he had significant
experience "handling labor and employment law matters," including wage
claims. His hourly rate was $350 per hour, "except for status hearings, motion
hearings and general court appearances," for which he billed at a lower flat rate
of $200 per appearance.
¶ 19 In plaintiff's petition for fees, which Toole wrote, Toole claimed that the
matter was complex because he had to prove that defendant was plaintiff's
employer without a written employment agreement or W2's, and that he had to
prove agency and the amount of commissions. Toole also claimed that the
appeal was complex because there were no Illinois state cases directly on point,
thereby requiring a considerable amount of research, and that he had to respond
not only to the appeal but also to defendant's petitions for rehearing and for
leave to appeal.
¶ 20 In the petition, Toole also observed that, since "there is no fee petition
from Attorney Jason Bruce (also a very seasoned litigation attorney)," and
plaintiff's trial co-counsel, defendant "is in effect receiving a 'windfall.'
[Defendant] is not being charged for the substantial amount of time that
Attorney Bruce worked on trial and post-trial matters." A footnote explains:
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No. 1-17-1238
"Shortly before commencement of the trial, attorney Jason Bruce began
working on this matter, however none of Jason's work is included in this, or any
other, fee petition. Jason Bruce died in 2013, and there is no available record of
his hours worked in this matter."
¶ 21 Toole included the affidavits of three other attorneys who handle labor
and employment cases in the Chicago area and who swore to Toole's experience
in handling employment cases, and the range of hourly rates commensurate
with Toole's experience. All three attorneys attested that Toole's hourly rates
were within, if not below, standard rates.
¶ 22 On September 21, 2016, defendant filed a request for production of
documents seeking any other records plaintiff had with respect to attorney fees
and costs, as well as (1) "the last 10 fee petitions" filed by Toole, (2) records
showing that Toole "charged any client" $350 per hour, and (3) all diaries or
calendars for Toole for the last nine years. On September 21, 2016, the trial
court issued a written order stating, in relevant part, that defendant's "request for
discovery is denied by the court for the reasons stated in court and on the record
which is incorporated herein."
¶ 23 On the record, the trial court denied defendant's document production
request, stating:
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No. 1-17-1238
"THE COURT: I'm surprised anybody would really even bring up a
question about this attorney fee petition. The costs are so low.
This is a Law Division case. It was a bench trial. There were complex
issues. This was on the commercial call.
Counsel only charges $200 *** to come to court, and on a commercial
call with as many as 30 cases a day before a judge to get heard, you all
know you're here sometimes for hours, and this is one—$ 350 for trial
time.
This is such a streamlined easy to read item by item fee petition[.]"
The trial court also expressed a concern about "incurring even more costs after
having taken a look at the fee petition and the low, low fees that are way below
what I normally see in the Law Division, and especially on a commercial call."
¶ 24 Defense counsel then responded concerning specific documents that he
had requested. Concerning his request for Toole's last 10 fee petitions, defense
counsel stated that he (defense counsel) "charge[d] this client $195" per hour
and that he wanted to discover whether Toole was asking for less from other
courts. Concerning his request for other records relating to fees, defense
explained that he wanted "the metadata" that would "show whether or not these
timed entries were created contemporaneously or whether they were just
entered sometime after the fact."
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No. 1-17-1238
¶ 25 During the September 21, 2016, hearing, the trial court stated that it was
"a little bit angry" with defense counsel and the court directed him, at one point,
"to stop it now." While the cold transcript does not reveal what counsel was
doing at the moment that the court told him "to stop it," the trial court had
observed previously in the proceeding: "I'm looking at your body language
with your hands out, like what in the world are you talking about, Judge?"
¶ 26 After stating that it was a "bit angry" with defense counsel, the trial court
"found that you [(defense counsel)] have prolonged a lot of things," "demeaned
the other attorneys," and "made sarcastic remarks." Defense counsel
responded: "I feel that you are prejudiced against me and I would ask that there
be a change of judge for this hearing." The trial court stated that it found
defense counsel to be "a difficult attorney," primarily because of his sarcastic
attitude and behavior. However, the trial court stated that it was not prejudiced
against defense counsel and denied his motion to transfer the attorney fee
petition to another judge.
¶ 27 Defense counsel then argued that attorney fees should be allowed only
for fees associated specifically with the Wage Payment Act claim and he asked
for 60 days to go through the entire record before responding. Plaintiff
responded: "That judgment and that interest keeps accruing. There's no effort
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No. 1-17-1238
to make a payment." The trial court gave defendant until November 14, 2016,
or over 60 days since the September 7 fee petition was filed, to respond.
¶ 28 The September 21, 2016, hearing ended with defense counsel
apologizing to the trial court. After the trial court observed that the bench trial
had been "a little nasty," defense counsel stated:
"DEFENSE COUNSEL: Judge, if I may, part—just so you
understand fully, there's a long history between Mr. Toole and I.
Many of the things Mr. Toole would say in front of the Court were
not accurate. Okay.
Maybe it's my Irish. My Irish got up because I don't like him saying
stuff that was not accurate about me.
So if you took it that I was responding to that inappropriately, I
apologize to the court. I never do that.
But when I'm—when somebody is saying something to a judge that is
untrue about me, then I will respond. And if the Court took that in the
wrong way, I apologize to the Court.
I am not like that. I've never been like that in my career.
THE COURT: I'm glad to know that. I accept your apology."
After additional colloquy, the trial court repeated "I accept your apology, sir."
and defense counsel stated: "Thank you." The parties and the court then agreed
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that plaintiff's reply brief was due December 19, and the matter was to be set for
a hearing on December 22, 2016.
¶ 29 On November 14, 2016, defendant filed its response to plaintiff's fee
petition arguing among other things: (1) that the trial judge was biased, as
evidenced by the trial judge's remarks at the last hearing; (2) that defendant
lacked enough information to submit the petition for expert analysis due to the
court's denial of defendant's request for documents; (3) that the petition failed to
segregate the work performed on the Wage Payment Act claim, which
defendant argued was the only work for which plaintiff was entitled to fees; and
(4) that the appellate court order did not include fees for appellate work.
¶ 30 The following day, on November 15, 2016, defendant moved for
substitution of judge for cause, based on the trial judge's remarks at the
September 21, 2016, hearing. On December 2, 2016, the trial judge issued a
response observing that defendant's petition for substitution of judge
"present[ed] a lopsided account" and that "[i]t is apparent to this Court, at least,
that [defense counsel] is trying to create an issue." The petition was then fully
briefed by the parties and transferred to the chief judge of the law division for
reassignment.
¶ 31 On January 20, 2017, the petition was heard by Judge Ronald F.
Bartkowicz. At the hearing on the petition, Judge Bartkowicz observed that a
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No. 1-17-1238
trial judge had an obligation to ensure civility in his or her courtroom, and that,
to accomplish that end, the judge could comment on the demeanor of an
attorney whose conduct fell outside the bounds of civility; and that such
comments did not indicate any bias or prejudice against the attorney or his or
her client. Judge Bartkowicz found that, in the case at bar, Judge Powell's
comments about defense counsel's lack of civility did not indicate a bias that
called for disqualification. Similarly, Judge Bartkowicz observed that a judge
has an obligation to determine whether a discovery request is reasonable and
proportionate to the issue at hand. In the case at bar, Judge Bartkowicz found
that Judge Powell "express[ed] some skepticism over the validity of
[defendant's] discovery requests" and "that's what the judge is supposed to do."
Denying the petition, Judge Bartkowicz told defense counsel that "the
protection that you have" is that the judge has "to make specific findings"
concerning the fees and their reasonableness. After the petition was denied, the
matter was transferred back to Judge Powell.
¶ 32 On March 3, 2017, plaintiff supplemented his fees petition with an
itemization of the additional fees incurred responding to (1) defendant's
objections to plaintiff's fee petition, and (2) defendant's petition for substitution
of judge. Thus, as of March 3, 2017, plaintiff sought a total of $181,366.66 in
attorney fees and $1244.68 in costs.
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No. 1-17-1238
¶ 33 On March 31, 2017, defendant filed a supplemental response with an
expert report authored by retired Judge Daniel Locallo that reviewed plaintiff's
fee petition. With respect to the attorney fees, Judge Locallo opined: (1) that it
should not have taken Toole 45 hours to draft a complaint or 13.75 hours to
draft interrogatories; (2) that Toole's $200 flat fee could have been charged for
five minutes in court; (3) that Toole failed to detail what occurred at trial and
postrial meetings; and (4) that the great disparity between the damage award
and the amount requested for attorney fees shows that the requested amount
was unreasonable. With respect to costs, Judge Locallo opined that plaintiff
should receive $968.35, rather than the $1244.68 requested, because plaintiff
"should not receive printing fees." While Judge Locallo opined what an
appropriate amount for costs would be, he did not opine what an appropriate
amount for attorney fees would be. On April 7, 2017, plaintiff filed an
objection to the trial court's considering Judge Locallo's report.
¶ 34 On April 19, 2017, the parties appeared in court for argument on the fee
petition. After observing that Judge Locallo was in the courtroom, the trial
court stated: "This is not an evidentiary hearing. You didn't ask for one."
However, the trial court ruled that it was going to consider Judge Locallo's
report over plaintiff's objection.
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No. 1-17-1238
¶ 35 On April 21, 2017, the trial court issued the attorney fees order that is the
subject of the present appeal. The detailed order is 14 pages long and single-
spaced.
¶ 36 With respect to counsel's rate, the trial court found that it was "within the
prevailing range (here, low average) for the experience of the attorney and the
type of work done." In reaching this conclusion, the trial judge observed that
she had been assigned to the law division for seven years and had presided over
"many bench trials and attorney fee petition" and, thus, was aware of attorney
rates. In addition, she found the three attorney affidavits provided by plaintiff
to be "helpful." Based on this information, she found:
"In the Law Division, the range of attorney fees is about $325 an hour to
$550 an hour, and occasionally higher. Even back in 2007-2009, the
range of fees was about $250 to $500 an hour Mr. Toole presents a fee
petition at $350 an hour and even less for court status and hearings. His
fees are on the lower end of the prevailing rate."
¶ 37 With respect to the disparity between the damage award and the fees
requested, the trial court found: "The public policy purpose of the statute and
the benefit to Plaintiff, where he does not have to deduct attorney fees from the
relatively small judgment award has been considered by the Court and take[s]
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No. 1-17-1238
the issues here outside of standard proportionality of damage awards to attorney
fees comparisons for fee determination purposes."
¶ 38 With respect to defendant's argument that plaintiff could recover attorney
fees only for fees specifically connected to the Wage Payment Act, the trial
court found:
"This was an aggressively fought case. It was not a simple Wage Act
case. The facts of this particular case made it more complex than typical
Wage Act cases and Plaintiff's attorney succeeded not only in obtaining a
judgment in Plaintiff's favor but also attorney fees… a battle that
continued in the Appellate Court and back. Plaintiff also presented a
matter of first-impression. The Court[ ] finds that Mr. Toole's work on
the case was necessary to obtaining the benefits received by the Plaintiff.
The Court finds that Plaintiff's Sales Representative Act count, the
Breach of Contract count and alternative count of Unjust Enrichment
were all part of the same common core of facts and are legal theories
related to the Wage Payment Act claim. From the beginning, the Plaintiff
was simply seeking payment of his commissions/wages and the facts
alleged were basically the same for all causes of action. Plaintiff is
entitled to all his fees and costs seeking that end."
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No. 1-17-1238
¶ 39 With respect to plaintiff's request for posttrial and appellate fees, the trial
court found that "[t]he post-trial motion practice, appeal and more motion
practice were a continuation of the proceeding and an integral part of Plaintiff's
claim. Plaintiff was required to address all the issues to maintain the benefit
achieved."
¶ 40 After considering each fee and cost, the trial court disallowed or reduced
11 entries, for a total reduction of over $5000. The trial court then found that
plaintiff was entitled to attorney fees in the amount of $178,449.97, and costs in
the amount of $1124.68, for a total of $179,574.65.
¶ 41 On May 17, 2017, defendant filed a notice of appeal, stating that it was
appealing both "the April 21, 2017 Order on Plaintiff's Petition for Attorney
Fees and the January 20, 2017 Order on Defendant's Motion to Disqualify
Judge Powell." This timely appeal followed.
¶ 42 ANALYSIS
¶ 43 On this appeal, defendant claims (1) that the trial court was biased
against it and that the trial court erred in denying its petition for substitution of
judge with cause; (2) that the trial court erred in denying its document request;
and (3) that the trial court's award of attorney fees is excessive. For the
following reasons, we affirm.
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No. 1-17-1238
¶ 44 I. Petition for Substitution of Judge
¶ 45 First, defendant argues that the trial court was biased against it and its
counsel and that Judge Bartkowicz erred in denying its petition for substitution
of judge with cause.
¶ 46 This court has found that "[o]ur review of a circuit court's ruling on a
motion to substitute judge is de novo." Shacter v. Ctiy of Chicago, 2011 IL App
(1st) 103582, ¶ 22. However, that finding was based on a subsequently vacated
opinion. This court has also found that our standard of review is whether the
finding was against the manifest weight of the evidence. In re Marriage of
Schweihs, 272 Ill. App. 3d 653, 659 (1995) (on appeal, we will "not reverse a
determination on allegations of [a trial judge's] prejudice unless the finding is
contrary to the manifest weight of the evidence" (discussed in In re Estate of
Wilson, 238 Ill. 2d 519, 558-59 (2010))). See also People v. Klein, 2015 IL App
(3d) 130052, ¶ 83 (although both parties argued for an against-the-manifest
weight standard, appellate court found de novo review applied to question of
law). Neither party in the case at bar has briefed or argued the standard of
review. Whether our standard is de novo or against the manifest weight, our
finding would be the same.
¶ 47 "A trial judge is presumed to be impartial, and the burden of overcoming
this presumption rests on the party making the charge of prejudice." Eychaner
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No. 1-17-1238
v. Gross, 202 Ill. 2d 228, 280 (2002) citing In re Marriage of Petersen, 319 Ill.
App. 3d 325, 339 (2001), and In re Marriage of Hartian, 222 Ill. App. 3d 566,
569 (1991)). See also People v. Vance, 76 Ill. 2d 171, 178 (1979) ("the burden
of establishing actual prejudice rests" on the party alleging it). The party
making the charge of prejudice "must present evidence of personal bias
stemming from an extra-judicial source and evidence of prejudicial trial
conduct." Petersen, 319 Ill. App. 3d at 339; Hartian, 222 Ill. App. 3d at 569.
See also Eychaner, 202 Ill. 2d at 280.
¶ 48 "Proving prejudice so as to justify a substitution for cause is a heavy
burden and the conclusion of prejudice will not be made lightly." Petersen, 319
Ill. App. 3d at 340. See also Eychaner, 202 Ill. 2d at 280 (" 'To conclude that a
judge is disqualified because of prejudice is not, of course, a judgment to be
lightly made.' " (quoting Vance, 76 Ill. 2d at 179)). "A judge's rulings alone
almost never constitute a valid basis for a claim of judicial bias or partiality."
Eychaner, 202 Ill. 2d at 280; Hartian, 222 Ill. App. 3d at 569 ("Allegedly
erroneous findings and rulings by the circuit court are insufficient reasons to
believe the court has personal bias or prejudice for or against a litigant.");
Vance, 76 Ill. 2d at 179 ("the fact that a judge has ruled adversely" to a party
"does not disqualify that judge from sitting" in subsequent matters).
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No. 1-17-1238
¶ 49 In the case at bar, defendant does not offer any evidence of judicial bias
or prejudice stemming from an outside source. Instead, defendant bases its
claim of bias solely on the judge's conduct and remarks during the proceedings.
However, " 'judicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily
do not support a bias or partiality challenge.' " Eychaner, 202 Ill. 2d at 281
(quoting Liteky v. U.S., 510 U.S. 540, 555 (1994)). The exceptions are if the
remarks reveal a bias stemming from an extrajudicial source or " 'if they reveal
such a high degree of favoritism or antagonism as to make fair judgment
impossible.' " Eychaner, 202 Ill. 2d at 281 (quoting Liteky., 510 U.S. at 555).
¶ 50 The remarks that the trial court made at the September 21, 2016, hearing
do not display the kind of deep-seated favoritism or antagonism that would
make fair judgment impossible. The trial court based its remarks on the conduct
and behavior of counsel, which counsel himself apologized for at the end of the
hearing: after the trial court observed that the bench trial had been "a little
nasty," defense counsel stated:
"DEFENSE COUNSEL: Judge, if I may, part—just so you
understand fully, there's a long history between Mr. Toole and I.
Many of the things Mr. Toole would say in front of the Court were
not accurate. Okay.
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No. 1-17-1238
Maybe it's my Irish. My Irish got up because I don't like him saying
stuff that was not accurate about me.
So if you took it that I was responding to that inappropriately, I
apologize to the court. I never do that.
But when I'm—when somebody is saying something to a judge that is
untrue about me, then I will respond. And if the Court took that in the
wrong way, I apologize to the Court.
I am not like that. I've never been like that in my career.
THE COURT: I'm glad to know that. I accept your apology."
Whether we apply a de novo or an against-the-manifest-weight standard, we
cannot find error in the denial of defendant's petition to substitute the trial judge
for cause.
¶ 51 II. Document Request
¶ 52 Second, defendant argues that the trial court abused its discretion in
denying its document request, after the case was remanded for the
determination of reasonable attorney fees.
¶ 53 A trial court's discovery order is ordinarily reviewed only for an abuse of
discretion (Klaine v. Southern Illinois Hospital Services, 2016 IL 118217, ¶ 13),
and defendant does not argue for a different standard of review. An abuse of
discretion occurs only when the trial court's ruling is arbitrary, fanciful,
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No. 1-17-1238
unreasonable, or where no reasonable person would take the view adopted by
the trial court. In re Marriage of Heroy, 2017 IL 120205, ¶ 24; People v.
Patrick, 233 Ill. 2d 62, 68 (2009). On appeal, defendant's primary argument is
that the trial court barred defendant from discovering whether plaintiff's counsel
had a contingent fee arrangement or an hourly fee contract with plaintiff.2
However, defendant's document request did not ask for that information.
¶ 54 Defendant's document request sought six items:
"1. Copies of any documents that Plaintiff maintains supports
Plaintiff's claim for attorney's fees or costs.
2. All materials related to the electronic billing records or any
electronically stored information related to any element of the claim for
attorney's fees or costs.
3. Copies of the last 10 fee petitions by Arnold Toole or Toole Law
Office, L.L.C.
4. Copies of any documentation that supports that Arnold Toole or
Toole Law office, L.L.C. has charged any client $350.00 per hour.
2
On appeal, defendant argued: "Judge Powell did not permit [defendant] to
conduct discovery into whether the Plaintiff had a contingent fee arrangement with
his attorney. As such, Judge Powell's fee-shifting analysis is fundamentally flawed
and should be disregarded on that basis."
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No. 1-17-1238
5. Copies of the diary, date book or electronic calendar for Arnold
Toole or Toole Law Office, LLC from September 3, 2007 to September
2016.
6. Copies of all receipts for any and all costs or expenses."
These six items made no reference to a contingency-fee arrangement. In
addition, on September 21, 2016, when the trial court heard argument
concerning the request, defense counsel explained why he wanted certain items,
but made no reference to a contingency-fee arrangement. Arguments not made
before the trial court are forfeited on appeal. Robinson v. Toyota Motor Credit
Corp., 201 Ill. 2d 403, 413 (2002) (arguments not raised before the trial court
are forfeited on appeal); Cambridge Engineering, Inc. v. Mercury Partners 90
Bl, Inc., 378 Ill. App. 3d 437, 456 (2007) ("issues not raised below are
considered waived"). In addition, to the extent that defendant is suggesting that
shifting the expected payment of fees from defendant to plaintiff is
inappropriate, the purpose of the attorney fee provision, as we discuss below
(infra ¶¶ 69-71), is to shift fee payment from the plaintiffs, who may not
otherwise be able to afford suit, to their employers who allegedly withheld their
wages. This provision is how these attorneys make their money and the reason
why they take these cases. Young v. Alden Gardens of Waterford, L.L.C., 2015
IL App (1st) 131887, ¶ 99.
24
No. 1-17-1238
¶ 55 In Young, this court observed that to interpret an attorney fee provision to
cover only the amount that a plaintiff obligated herself to pay in a contingent
fee arrangement "would seriously undermine the ability of employees who
suffer *** at the hands of their employers to obtain counsel willing to pursue
such claims." Young, 2015 IL App (1st) 131887, ¶ 99. In Young, this court was
considering an employee whistleblower act rather than the act in question here;
however, both acts involved employees attempting to recover from their
employers for alleged wrongdoing. Young, 2015 IL App (1st) 131887, ¶ 99.
The limit that defendant suggests "would do little to entice competent counsel
to undertake an individual employee's representation." Young, 2015 IL App
(1st) 131887, ¶ 99. As a result, this court rejected such an interpretation in
Young, finding that "it would lead to an unjust result at odds with the
legislature's purpose to protect employees from adverse employment actions."
Young, 2015 IL App (1st) 131887, ¶ 99. This finding applies equally to the
case and statute in front of us.
¶ 56 In arguing that recovery should be limited to the contingency fee if there
is a contingency-fee agreement, defendant relies primarily on Career Concepts,
Inc. v. Synergy, Inc., 372 Ill. App. 3d 395, 405-06 (2007). However, that case
expressly states that it is "distinguishable" from other cases "because no
evidence was presented that the parties' had a fee-shifting provision" in either a
25
No. 1-17-1238
statute or contract. Career Concepts, 372 Ill. App. 3d at 405-06. For example,
the Career Concepts court observed that it was distinguishable from the case of
Med+Plus Neck & Back Pain Center, S.C. v. Noffsinger, 311 Ill. App. 3d 853,
861 (2000), where the contract at issue contained an explicit fee-shifting
provision. Career Concepts is different from cases like ours in which contracts
and statutes put the parties on notice, in advance, that fees may be shifted,
instead of being borne by the individual parties as is the typical case. In sum,
we cannot find that the trial court erred in denying defendant's discovery
request based on an alleged need to discover a contingency-fee agreement,
where defendant did not expressly request a contingency-fee agreement in
discovery and where such an agreement, if it existed, would not have limited
the fee award in the case at bar.
¶ 57 In addition, defendant argues that, without the documents sought in its
document request, neither defendant nor the court could determine if Toole's fee
entries were made contemporaneously or what Toole's usual and customary
charges were. However, Toole averred in an affidavit that the entries were
made contemporaneously, 3 and the trial court found, based on its own
experience as a judge and on the three affidavits submitted by other attorneys,
3
Toole averred in his affidavit, submitted with the petition for fees, that each
entry on his attached office records was "made on or about the day the time [was]
expended."
26
No. 1-17-1238
that Toole's rates were on the low side and that the time spent was reasonable.
Young, 2015 IL App (1st) 131887, ¶ 114 (the hourly rate and time spent may be
supported by affidavits of other attorneys in the field and by the trial judge's
own knowledge, particularly where the trial judge has presided over the
litigation since its inception). We cannot find that the trial court abused its
discretion, particularly when defendant did not seek to cross-examine on this
issue by requesting an evidentiary hearing, if it had doubts about counsel's
credibility. C.f. Young, 2015 IL App (1st) 131887, ¶ 113 (while evidentiary
hearings for fee petitions are not required in every case, they are available when
a petition raises factual or credibility issues).
¶ 58 Thus, we cannot find that the trial court abused its discretion by denying
defendant's document request.
¶ 59 III. Attorney Fee Award
¶ 60 Lastly, defendant claims that the trial court's award of attorney fees and
costs is excessive.
¶ 61 Usually, parties are responsible for their own attorney fees. Career
Concepts, 372 Ill. App. 3d at 405. However, if expressly authorized by statute
or by agreement, the court may award attorney fees and costs to a prevailing
party so long as they are reasonable. Career Concepts, 372 Ill. App. 3d at 405.
"A party can be considered a 'prevailing party' for the purposes of a fee-shifting
27
No. 1-17-1238
provision when it is successful on any significant issue in the action and
achieves some benefit in bringing suit, when it receives a judgment in its favor,
or when it achieves an affirmative recovery." Med+Plus Neck & Back Pain
Center, S.C. v. Noffsinger, 311 Ill. App. 3d 853, 861 (2000); see also Career
Concepts, 372 Ill. App. 3d at 406. "Whether and in what amount to award
attorney fees is within the discretion of the trial court and its decision will not
be disturbed on review absent an abuse of that discretion." Med+Plus Neck,
311 Ill. App. 3d at 861. As we stated above, an abuse of discretion occurs only
when the trial court's ruling is arbitrary, fanciful, unreasonable, or where no
reasonable person would take the view adopted by the trial court. Heroy, 2017
IL 120205, ¶ 24; Patrick, 233 Ill. 2d at 68.
¶ 62 First, defendant argues that plaintiff is entitled to only those attorney fees
and costs related specifically to the Wage Payment Act, while plaintiff argues
that he is entitled to all fees and costs of the lawsuit since the suit involved "a
common core of facts" and "related legal theories." Sandholm v. Kuecker, 2012
IL 111443, ¶ 66 (discussing Hensley v. Eckerhart, 461 U.S. 424, 434-35
(1983)).
¶ 63 Generally, "where a plaintiff presents several claims for relief in the same
lawsuit, and only some of the claims for relief are successful, attorney fees may
be allowed for all claims involving a common core of facts or based on related
28
No. 1-17-1238
legal theories." Sandholm, 2012 IL 111443, ¶ 66 (discussing Hensley, 461 U.S.
at 434-35). The key word in that sentence is "may." If the fees are authorized
by a particular statute, the court must scrutinize the particular language and
purpose of that statute to determine if it permits fees for related claims.
Sandholm, 2012 IL 111443, ¶¶ 65-66 (scrutinizing the language and purpose of
the authorizing statute to determine whether fees for related claims were
authorized). To the extent that an attorney fee determination involves the
interpretation of a statute, that part of our analysis is subject to de novo review.
Sandholm, 2012 IL 111443, ¶ 64. De novo review means that an appellate court
performs the same analysis that a trial judge would perform. Sekura v. Krishna
Schaumburg Tan, Inc., 2018 IL App (1st) 180175, ¶ 26.
¶ 64 “With statutory construction, our primary goal is to ascertain the
legislat[ors’] intent, and the best indication of their intent is the plain and
ordinary meaning of the words they chose to use.” People v. Miles, 2017 IL
App (1st) 132719, ¶ 25; State ex rel. Pusateri v. Peoples Gas Light & Coke Co.,
2014 IL 116844, ¶ 8 (citing Citizens Opposing Pollution v. ExxonMobil Coal
U.S.A., 2012 IL 111286, ¶ 23).
¶ 65 “When interpreting a statute, we do not read a portion of it in isolation;
instead, we read it in its entirety, keeping in mind the subject it addresses and
the drafters’ apparent objective in enacting it.” Miles, 2017 IL App (1st)
29
No. 1-17-1238
132719, ¶ 25; People v. Chatman, 2016 IL App (1st) 152395, ¶ 30. When
considering the drafters’ objective, we examine the problems that the legislature
intended to remedy with the law and the consequences of construing it one way
or the other. People v. Almond, 2015 IL 113817, ¶ 34 (we “consider the reason
for the law and the problems intended to be remedied”); People v. Eppinger,
2013 IL 114121, ¶ 21 (legislative intent may be ascertained by considering “the
statute in its entirety, its nature and object, and the consequences of construing
it one way or the other”).
¶ 66 Where the language is plain and unambiguous, we apply the statute
without resort to further aids of statutory interpretation. In re Lance H., 2014 IL
114899, ¶ 11; Krohe v. City of Bloomington, 204 Ill. 2d 392, 395 (2003);
Maschek v. City of Chicago, 2015 IL App (1st) 150520, ¶ 44 (“If the statutory
language is clear, we must apply it, without resort to any aids of statutory
construction.”). “If, and only if, the statutory language is ambiguous, we may
look to other sources to ascertain the legislature’s intent.” Maschek, 2015 IL
App (1st) 150520, ¶ 44 (citing Krohe, 204 Ill. 2d at 395). “These other sources
include primarily the statute’s legislative history and debates.” Maschek, 2015
IL App (1st) 150520, ¶ 44 (citing Krohe, 204 Ill. 2d at 398). “When interpreting
an ambiguous phrase in a statute, our supreme court looks especially to the
remarks of a bill’s sponsor.” Maschek, 2015 IL App (1st) 150520, ¶ 62 (citing
30
No. 1-17-1238
Krohe, 204 Ill. 2d at 398); see also In re Pension Reform Litigation, 2015 IL
118585, ¶ 68 (giving more weight to the remarks of “the chief sponsor of the
legislation”); Julie Q. v. Department of Children & Family Services, 2013 IL
113783, ¶ 31 (quoting the sponsor’s remarks when interpreting a statute). “The
remarks made immediately prior to passage are particularly important.”
Maschek, 2015 IL App (1st) 150520, ¶ 62 (citing Poris v. Lake Holiday
Property Owners Ass’n, 2013 IL 113907, ¶¶ 51-53 (quoting the sponsors’
remarks in order to interpret a statute and noting that, following these remarks,
the bill passed)).
¶ 67 The Wage Payment Act provides, in relevant part:
"(a) Any employee not timely paid wages, final compensation, or wage
supplements by his or her employer as required by this Act shall be
entitled to recover *** in a civil action ***. In a civil action, such
employee shall also recover costs and all reasonable attorney's fees." 820
ILCS 115/14(a) (West 2010).
¶ 68 First, we observe that the statute unambiguously states "all reasonable
attorney's fees," (emphasis added) without any limiting language except for the
word "reasonable." 820 ILCS 115/14(a) (West 2010). Thus, the language is
distinguishable from the language at issue in Sandholm, where our supreme
court limited attorney fees to only those fees related to the claim in the act.
31
No. 1-17-1238
Sandholm, 2012 IL 111443, ¶ 65. The act at issue in Sandholm provided: "The
court shall award a moving party who prevails in a motion under this Act
reasonable attorney's fees and costs incurred in connection with the motion."
(Emphasis added.) 735 ILCS 110/25 (West 2008). Examining this statutory
language, our supreme court found: "In our view, the language in section 25 is
unambiguous and supports only one interpretation. Attorney fees 'incurred in
connection with the motion' include only those fees which can specifically be
delineated as incurred in connection with the motion to dismiss filed under the
Act." Sandholm, 2012 IL 111443, ¶ 65 (quoting 735 ILCS 110/25 (West 2008)).
While our supreme court acknowledged that attorney fees are generally allowed
for all claims involving a common core of facts, the statute before it was an
exception, because "it specifically provides that only fees 'incurred in
connection with the motion' filed under the Act are allowed." Sandholm, 2012
IL 111443, ¶ 66 (quoting 735 ILCS 110/25 (West 2008)). In contrast, the
statute before us contains no such limiting language. Thus, both Sandholm and
the plain language of the act support an award for all claims involving a
common core of facts.
¶ 69 In addition, the attorney fees provision here refers to an "action" rather
than to a motion or a claim, in contrast to the act in Sandholm which referred
specifically to "the motion." Sandholm, 2012 IL 111443, ¶ 65. The attorney
32
No. 1-17-1238
fees provision in the case at bar authorizes recovery for all reasonable attorney
fees "[i]n a civil action" for unpaid wages. 820 ILCS 115/14(a) (West 2010).
The absence of the limiting language that was present in Sandholm and the act's
use of the broad, all encompassing "civil action" lead us to find that this statute
does not present an exception to the general rule that a plaintiff may recover
attorney fees for "all claims involving a common core of facts or based on
related legal theories." Sandholm, 2012 IL 111443, ¶ 66.
¶ 70 Second, the legislative history also supports this finding. Although the
Wage Payment Act does not contain a preamble stating its purpose and there is
limited legislative history on the passage of the attorney fee provision, prior to
passage of the 2011 amendment in the Senate, the senators did discuss the
attorney fee provision. Most of the discussion concerned protecting exploited
workers from unscrupulous businesses. 96th Ill. Gen. Assem., Senate
Proceedings, March 18, 2010, at 217-25. One senator observed that there will
be a group of attorneys willing to take these cases, advertising " 'no fee unless
you recover.' " 96th Ill. Gen. Assem., Senate Proceedings, March 18, 2010, at
221 (statement of Senator Dahl). He stated he was afraid that a worker may
demand increased wages, not receive it, and then file a lawsuit; and the
employer may decide it is cheaper to pay the wage than the attorney. 96th Ill.
Gen. Assem., Senate Proceedings, March 18, 2010, at 221-22 (statement of
33
No. 1-17-1238
Senator Dahl). However, the bill's sponsor assured the questioner that this was
not the purpose of the bill and that the purpose was to protect workers who were
promised payment and who continued to work relying on that promise and then
received no payment. 96th Ill. Gen. Assem., Senate Proceedings, March 18,
2010, at 222 (statement of Senator Delgado). Thus, to the extent that some
legislative intent can be gleaned from this legislative history, the legislators
contemplated that litigation costs would not be borne by the plaintiff.
¶ 71 Third, the purpose of the attorney fee provision also supports our finding
that it covers "all claims involving a common core of facts or based on related
legal theories." Sandholm, 2012 IL 111443, ¶ 66. See also Young, 2015 IL App
(1st) 131887, ¶ 104 ("the purpose to be served by the statutory fee-shifting
provision" is a "relevant consideration[ ]" in determining "a reasonable fee").
The legislators spoke of protecting exploited workers who, "when Christmas
came around, they couldn’t even take a dish to their sister's house for dinner."
96th Ill. Gen. Assem., Senate Proceedings, March 18, 2010, at 222 (statement
of Senator Delgado). A worker, having been so exploited, would not be in a
position to pursue a civil action without the statute's incentive of fee recovery
by the prevailing attorney.
34
No. 1-17-1238
¶ 72 In addition, in our prior opinion, we found that the purpose of the
attorney fee provision was not to add a new remedy but merely to change the
statutory authority for an already existing remedy for wage claims:
"The amendment in this case did not create the remedy of attorney fees in
suits under the Wage Payment Act. Prior to the 2011 amendment,
attorney fees could be sought in Wage Payment Act suits, under the
Attorneys Fees in Wage Actions Act (705 ILCS 225/1 (West 2010)).
The Attorneys Fees in Wage Actions Act provided a process to obtain
attorney fees whenever an 'employee brings an action for wages earned
and due and owing according to the terms of the employment.' 705 IlCS
225/1 (West 2010). *** Thus, the provision of the 2011 amendment to
section 14 of the Wage Payment Act that granted attorney fees merely
changed the source of the statutory authority for a remedy that was
already available to claimants." Thomas, 2015 IL App (1st) 142785, ¶
72.
In Thomas, we found that "the attorney fees provision of the 2011 amendment
does not create a new liability, but merely alters the statutory authority for that
liability." Thomas, 2015 IL App (1st) 142785, ¶ 73.4 The fact that this is not a
4
We further found: "Whether the amendment applied or not, defendant
could be charged with reasonable attorney fees, either under the Attorneys Fees in
Wage Actions Act or under the Wage Payment Act. The reasonableness of the
35
No. 1-17-1238
new remedy or liability further supports our finding that the recovery is not
limited to the Wage Payment Act claim and, instead, encompasses "all claims
involving a common core of facts or based on related legal theories."
Sandholm, 2012 IL 111443, ¶ 66. Thus, we do not find persuasive defendant's
argument that fee recovery should be limited only to drafting the Wage
Payment Act claim and pursuing it. See also Cress v. Recreation Services, Inc.,
341 Ill. App. 3d 149, 191 (2003) (where all of plaintiff's claims were based on
the same compensation agreement, the trial court did not err by including
attorney fees billed prior to the inclusion of the claim at issue in the complaint).
¶ 73 Since we do not find persuasive defendant's argument that plaintiff was
entitled to recover only time spent specifically working on the Wage Payment
Act claim, we also do not find persuasive its claim that the fee petition fails
because counsel did not specify in each entry which claim he was working on.
¶ 74 Defendant argues that the disparity between the damage award and the
fee award establishes an abuse of discretion by the trial court. "In a fee-shifting
case, the fact that the amount of the fees sought exceeds the client's recovery,
even by a large margin, does not, standing alone, justify rejection of the amount
sought." Young v. Alden Gardens of Waterford, L.L.C., 2015 IL App (1st)
131887, ¶ 104 (citing other cases). In considering a claim that a fee award is
fees would not change regardless of whether the amendment applied; so neither
would the amount of the fees." Thomas, 2015 IL App (1st) 142785, ¶ 73.
36
No. 1-17-1238
"excessive," a reviewing court may consider whether the party making the
claim of excessiveness also made the choice "to aggressively litigate this case,
raising virtually every conceivable issue." Young, 2015 IL App (1st) 131887, ¶
106. The Young court observed that, "while [the defendant] was entitled to
litigate every issue in the case through trial and on appeal, it can hardly be
surprised that its 'no holds barred' defense resulted and continues to result in a
correspondingly greater expenditure of time by [the plaintiff's counsel]." Young,
2015 IL App (1st) 131887, ¶ 85.
¶ 75 In the case at bar, the defendant employer made the choice to litigate, for
10 years, a suit seeking only $47,666 in commissions. In determining whether a
fee award is reasonable, courts assess a number of factors, including whether
there is a reasonable connection between the fees and the amount involved in
the litigation. Young, 2015 IL App (1st) 131887, ¶ 106. However, in the case at
bar, the connection between the years of attorney time expended and the
amount at issue was deemed reasonable by defendant, who cannot be heard to
complain now.
¶ 76 Finally, defendant argues that plaintiff was only "one-fourth" successful,
because plaintiff sought $47,666.54 in his complaint and received only
$9226.52 in damages.5 Young, 2015 IL App (1st) 131887, ¶ 104 ("the size of
5
Actually, it is closer to one-fifth.
37
No. 1-17-1238
the fee in relation to the benefit to the client" is also a "relevant
consideration[ ]" in determining "a reasonable fee"). Success depends, of
course, on how you measure it. What plaintiff sought was recognition that he
was an employee and payment for his work. At the bench trial and on appeal,
the primary issue was whether plaintiff was, or was not, defendant's employee.
Thomas, 2015 IL App (1st) 142785, ¶ 43. For his commission, plaintiff asked
for 20% of the gross contracts he obtained, whereas the trial court awarded him
20% of the net after subtracting for materials and other costs. Nonetheless,
counsel succeeded with the primary issue at trial and on appeal, and plaintiff
will now receive the money and satisfaction of being paid for his work, which is
the point of the Wage Payment Act. Thus, we cannot find that this is a basis for
finding an abuse of discretion by the trial judge.
¶ 77 In sum, we are not persuaded by defendant's arguments that the trial court
abused its discretion in determining the fee award, as we instructed it to do on
remand.
¶ 78 CONCLUSION
¶ 79 For the foregoing reasons, we cannot find that the trial court erred by
denying defendant's petition for substitution of judge for cause or its request for
documents. We also cannot find that the trial court abused its discretion in
38
No. 1-17-1238
determining reasonable attorney fees and costs. Thus, we affirm the trial court's
orders.
¶ 80 Affirmed.
39