Kroot v. Chan

2019 IL App (1st) 181392

FIFTH DIVISION
Opinion filed: April 5, 2019

No. 1-18-1392
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT
______________________________________________________________________________

MEREDITH PAGE KROOT and JASON M. KROOT, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellees, ) Cook County
)
)
v. ) No. 17 L 2553
)
SHU B. CHAN and YVONNE LAU, ) Honorable
) James E. Snyder,
Defendants-Appellants. ) Judge, presiding.
______________________________________________________________________________

JUSTICE HOFFMAN delivered the judgment of the court, with opinion.
Presiding Justice Rochford and Justice Lampkin concurred in the judgment and opinion.

OPINION

¶1 The defendants, Shu B. Chan and Yvonne Lau, appeal from an order of the circuit court

of Cook County entered on June 4, 2018, awarding the plaintiffs, Meredith Page Kroot and Jason

M. Kroot, $67,336.76 for attorney fees, costs, and expenses. For the reasons that follow, we

reverse that portion of the circuit court’s order that awarded the plaintiffs $58,712.50 for attorney

fees.

¶2 The plaintiffs filed the instant action against the defendants seeking recovery for,

inter alia, a violation of the Residential Real Property Disclosure Act (Act) (765 ILCS 77/1
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et seq. (West 2012)) and common-law fraud in the sale of property commonly known as 3833

North Claremont, Chicago, Illinois, and improved with a single-family residence (hereinafter

referred to as the Claremont Property). Following a bench trial, the circuit court entered a written

order on March 28, 2016, finding (1) in favor of the plaintiffs and against Chan on the plaintiffs’

claim pursuant to the Act, (2) in favor of Lau and against the plaintiffs on the plaintiffs’ claim

under the Act, and (3) in favor of the plaintiffs and against both defendants on the plaintiffs’

common-law fraud claim. Based upon those findings, the circuit court entered judgment in favor

of the plaintiffs and against the defendants in the amount of $64,518.67 “plus costs and fees.”

Thereafter, the plaintiffs filed a petition for an award of attorney fees and costs. On June 23,

2016, the circuit court entered an order granting the plaintiffs’ petition and entering judgment in

favor of the plaintiffs in the amount of $28,130.16 for attorney fees. That order states that the

judgment was entered “against defendant.” Although the order states that the judgment was

entered against a singular defendant, it does not state which defendant the judgment was entered

against. On appeal from the circuit court’s orders of March 28, 2016, and June 23, 2016, this

court affirmed the $64,518.676 judgment, vacated the order awarding the plaintiffs $28,130.16

for attorney fees, and remanded the matter to the circuit court with directions to conduct an

evidentiary hearing on the plaintiffs’ petition for attorney fees and costs. Kroot v. Chan, 2017 IL

App (1st) 162315, ¶¶ 39-40.

¶3 As directed, the circuit court on remand conducted an evidentiary hearing on June 4,

2018. Following that hearing, the circuit court entered an order, which states: “Judgment is

entered in favor of the plaintiffs and against the defendants [plural] for attorney fees, costs &

expenses in the amount of $67,336.76.” Although the circuit court’s order does not enumerate

the portion of the judgment that was awarded for attorney fees, the transcript of the proceedings

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on June 4, 2018, makes clear that, of the $67,333.76 judgment entered in favor of the plaintiffs,

$58,712.50 was awarded for attorney fees and the remaining $8624.26 was awarded for

“expenses.”

¶4 On June 25, 2018, the defendants filed their notice of appeal from the circuit court’s June

4, 2018 order, invoking this court’s jurisdiction under Illinois Supreme Court Rules 301 and 303.

Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. July 1, 2017). In urging reversal, the defendants

argue both that (1) the evidence submitted by the plaintiffs in support of their fee petition

consisted of hearsay, supposition, and guess, which they contend is insufficient to support an

award of attorney fees, and (2) the plaintiffs failed to establish that they incurred attorney fees

and, as a consequence, the circuit court erred in awarding attorney fees pursuant to section 55 of

the Act (765 ILCS 77/55 (West 2012)). For the reasons that follow, we reverse that portion of the

circuit court’s order of June 4, 2018, awarding the plaintiffs $58,712.50 for attorney fees.

¶5 A plaintiff seeking an award of attorney fees has the burden of proving an entitlement to

fees. Schorsch v. Fireside Chrysler-Plymouth, Mazda, Inc., 286 Ill. App. 3d 1028, 1033 (1997).

At common law, the unsuccessful party in a civil action is not liable for the payment of attorney

fees incurred by the successful party. State Farm Fire & Casualty Co. v. Miller Electric Co., 231

Ill. App. 3d 355, 359 (1992). “In the absence of [a] statute ***, attorney[ ] fees and the ordinary

expenses and burdens of litigation are not allowable to the successful party.” House of Vision,

Inc. v. Hiyane, 42 Ill. 2d 45, 51-52 (1969); see also Young v. Alden Gardens of Waterford, Inc.,

2015 IL App (1st) 131887, ¶ 96.

¶6 As noted earlier, on the trial of this cause, Lau was only found liable to the plaintiffs on

their claim for common-law fraud. The circuit court found in favor of Lau and against the

plaintiffs on the plaintiffs’ claim under the Act. Having only been found liable to the plaintiffs

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for common-law fraud, Lau was not, as a matter of law, liable for the payment of the plaintiffs’

attorney fees. Nevertheless, the circuit court apparently entered its $67,336.76 judgment in favor

of the plaintiffs for attorney fees, costs, and expenses against both defendants. As Lau was only

found liable to the plaintiffs on their common-law fraud claim, attorney fees could not, as a

matter of law, be assessed against her. We, therefore, reverse $58,712.50 of the judgment entered

against Lau on June 4, 2018, that sum being the portion of the judgment attributable to attorney

fees.

¶7 We next address the defendants’ claims of error as they relate to that portion of the June

4, 2018, judgment entered against Chan that is attributable to an award of attorney fees. In

entering judgment against Chan on the plaintiffs’ claim brought pursuant to the Act, the trial

court found that Chan made false statements in the Residential Real Property Disclosure Report

required under sections 20 and 35 of the Act (765 ILCS 77/20, 35 (West 2012)), which was

tendered to the plaintiffs prior to their execution of an offer to purchase the Claremont Property.

Kroot, 2017 IL App (1st) 162315, ¶ 31. As noted earlier, this court affirmed that judgment. Id.

¶ 40.

¶8 Section 55 of the Act provides, in relevant part, that

“[a] person who knowingly violates or fails to perform any duty prescribed by any

provision of this Act or who discloses any information on the Residential Real

Property Disclosure Report that he knows to be false shall be liable in the amount

of [the] actual damages and court costs, and the court may award reasonable

attorney fees incurred by the prevailing party.” 765 ILCS 77/55 (West 2012).

As a statute allowing for recovery of attorney fees, section 55 is in derogation of the common

law and must be strictly construed. See Sandholm v. Kuecker, 2012 IL 111443, ¶ 64.

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¶9 Resolution of the issue of whether the circuit court erred in awarding attorney fees to the

plaintiffs under section 55 of the Act involves a matter of statutory construction. On that issue,

our review is de novo. In re Detention of Lieberman, 201 Ill. 2d 300, 307 (2002).

¶ 10 As the supreme court held in In re Detention of Powell, 217 Ill. 2d 123, 135 (2005):

“The primary goal of statutory construction is to ascertain and give effect

to the intent of the legislature. [Citations.] All other rules of statutory construction

are subordinate to this cardinal principle. [Citations.] The most reliable indicator

of legislative intent is the language of the statute, which is to be given its plain,

ordinary and popularly understood meaning. [Citations.] Where the language is

clear and unambiguous, courts are not to resort to aids of statutory construction.

[Citation.]”

¶ 11 The phrase “reasonable attorney fees” when appearing in a fee-shifting statute has

generally been interpreted to require use of the prevailing market rate in calculating a fee award.

Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2013 IL 110505, ¶ 51. The language does

not indicate that recoverable attorney fees are limited to those actually incurred or paid by the

plaintiff. Id. However, unlike the language employed by the legislature in other fee-shifting

statutes, which merely provide that “reasonable attorney” fees should, or may, be awarded to a

prevailing plaintiff (see Whistleblower Act (740 ILCS 174/30 (West 2016)); Consumer Fraud

and Deceptive Business Practices Act (815 ILCS 505/10a(c) (West 2016))), section 55 of the Act

contains additional language. It provides that the circuit court “may award reasonable attorney

fees incurred by the prevailing party.” (Emphasis added.) 765 ILCS 77/55 (West 2012).

¶ 12 In construing a statute, courts must, where possible, attribute reasonable meaning to

every word, clause, or section of the statute. In re Marriage of Freeman, 106 Ill. 2d 290, 297

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(1985). Words appearing in a statute cannot be ignored under the guise of construction. Id. In

section 55, the legislature chose to limit the attorney fees that may be awarded to those

“incurred” by a prevailing plaintiff. Incurred is defined as “to render liable or subject to.”

Webster’s Third New International Dictionary 1146 (1981).

¶ 13 We find no ambiguity in the language of section 55 of the Act. The plain, ordinary, and

popularly understood meaning of the language of section 55 of the Act leads us to conclude that

a defendant who discloses any information on the Residential Real Property Disclosure Report

that he knows to be false is liable for actual damages and court costs, but the trial court only has

the discretion to award reasonable attorney fees that have been incurred by the prevailing party.

If no attorney fees have been incurred by the prevailing party, the trial court has no authority

under the statute to award such fees.

¶ 14 The trial court found that Chan violated the Act by disclosing information on a

Residential Real Property Disclosure Report that he knew to be false, and as a consequence,

section 55 of the Act authorized the trial court, in its discretion, to award “reasonable attorney

fees incurred” by the plaintiffs. The defendants argue, however, that the plaintiffs incurred no

attorney fees and, as a consequence, the circuit court lacked the discretion to award attorney fees

under section 55 of the Act.

¶ 15 The plaintiffs called three attorneys with the law firm of Goldberg, Weisman and Cairo

(GWC) as witnesses during the evidentiary hearing on their petition for an award of attorney fees

and costs: John P. Sorce, Bennett J. Baker, and Kirsten M. Dunne. GWC is the law firm that

represented the plaintiffs in this case before the circuit court during the original trial, the

evidentiary hearing on remand, and also in the defendants’ earlier appeal. The plaintiff Jason M.

Kroot is an attorney employed by GWC.

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¶ 16 During their testimony, Sorce, Baker, and Dunne were shown an exhibit attached to the

plaintiffs’ petition for an award of attorney fees and costs. The document is entitled “Attorney

Invoice—Amended on 4-16-18” and labeled as exhibit 19. Exhibit 19 contains entries under the

headings of date, service, hours, rate, and fee. Under these headings are individual entries setting

forth the date that legal services were performed, the initials of the attorney at GWC who

performed the service, a description of the legal service performed, the time taken to perform the

service, the hourly billing rate of the attorney who performed the service, and the fee for the

service, being the attorney’s hourly billing rate multiplied by the time taken to perform the

service.

¶ 17 Sorce admitted that GWC does not keep detailed billing records on its litigation files; it is

a contingent fee law firm. He stated that no timesheets or time slips were made for any of the

entries on exhibit 19 and, to the best of his knowledge, no time records were kept in connection

with this case and he did not keep records of his own time. Sorce did not know who prepared

exhibit 19. On cross-examination, Sorce admitted that the testimony he gave as to the amount of

time that he spent working on this matter as reflected on exhibit 19 was an estimate. He was also

asked the following questions and gave the following answers:

“Q. Was an invoice—Other than the amended invoice attached as Exhibit

19, was any invoice for legal services rendered or costs advanced ever sent to Mr.

or Mrs. Kroot?

A. No.

Q. Was any payment made by Mr. or Mrs. Kroot on the basis of the

invoice here?

A. Not to my knowledge.”

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¶ 18 Baker testified that he believed that the entries on exhibit 19 reflecting the work that he

performed in this case represent the minimum number of hours he worked on the file. However,

he too admitted that he kept no time slips or records of the actual time that he spent working on

this case. He stated: “I did not keep count of the time.” When questioned about the time he spent

in representing the plaintiffs at their depositions as reflected on exhibit 19, he responded that it

was his “best estimate.”

¶ 19 Dunne testified that the work that she performed on this case related to the defendants’

earlier appeal. According to Dunne, she made the entries on exhibit 19 relating to the work that

she performed. She admitted, however, that she did not keep any time records and that she made

the entries on exhibit 19 about eight months after the work was performed.

¶ 20 Exhibit 19 was never offered or received in evidence, and neither plaintiff testified at the

evidentiary hearing. The defendants rested without calling any witnesses.

¶ 21 The defendants argue that the circuit court erred in awarding attorney fees to the plaintiffs

pursuant to section 55 of the Act, as there is no evidence in the record that the plaintiffs incurred

legal fees. Relying upon two affidavits attached as exhibit 7 to their petition for an award of

attorney fees and costs, the plaintiffs contend that there is evidence in the record that they were

billed for the legal services rendered by GWC. The affidavits that make up exhibit 7 are from the

plaintiff Jason M. Kroot and Sorce. Jason M. Kroot’s affidavit states: “The Attorney Invoice,

attached as Exhibit C to the Plaintiffs’ Petition for Costs and Attorney Fees reflects the charges

billed to the Plaintiffs.” Sorce’s affidavit states: “The Attorney Invoice, attached as Exhibit C to

the Plaintiffs’ Petition for Costs and Attorney Fees reflects the charges billed to the Plaintiffs by

Goldberg Weisman Cairo.”

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¶ 22 The affidavits relied upon by the plaintiffs to establish that they were billed for the legal

services rendered by GWC are out-of-court statements that the plaintiffs now rely upon to

establish the truth of facts asserted therein. They are hearsay (see Ill. R. Evid. 801(c) (eff. Oct.

15, 2015)) and do not fall under any exception to the rule against hearsay. The fact that the

defendants never objected to those affidavits is understandable; they were never offered into

evidence.

¶ 23 The record in this case contains no evidence that (1) the plaintiffs ever agreed to pay for

the legal services rendered by GWC or, if they did agree to pay for those services, the terms of

their agreement and the hourly rate to be paid; (2) they were ever billed for the legal services

rendered by GWC; (3) they ever paid for legal services rendered by GWC; or (4) GWC expected

to be paid by the plaintiffs for the legal services rendered by the firm in this case. There is

evidence in the record that one of the plaintiffs is an attorney employed by GWC, that, other than

the unaddressed document entitled “Attorney Invoice—Amended on 4-16-18” and labeled

exhibit 19, no invoices were ever sent to the plaintiffs, and that the plaintiffs never paid any legal

fees. Stated otherwise, there is no evidence in the record before us to establish that the plaintiffs

incurred attorney fees. As it relates to their ability to recover attorney fees from Chan pursuant to

section 55 of the Act, it was the plaintiffs’ burden to establish that they incurred legal fees.

¶ 24 Aside from the argument that the plaintiffs failed to prove that they incurred legal fees in

the prosecution of their claim brought pursuant to the Act, the defendants also argue that the

plaintiffs failed to introduce any competent evidence of the reasonableness of the fees that they

were awarded. We agree.

¶ 25 As the parties seeking an award of attorney fees, the plaintiffs had the burden of proving

their entitlement to the fees sought. Schorsch, 286 Ill. App. 3d at 1033. An award of attorney fees

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must be based upon facts in evidence (First National Bank of Decatur v. Barclay, 111 Ill. App.

3d 162, 164 (1982)) and cannot be based upon speculation or conjecture as to the attorney’s time

expended in performing legal services (Berdex International, Inc. v. Milfico Prepared Foods,

Inc., 258 Ill. App. 3d 738, 742 (1994) (citing Kaiser v. MEPC American Properties, Inc., 164 Ill.

App. 3d 978, 984 (1987))).

¶ 26 It is clear from the testimony of Sorce, Baker, and Dunne that no timesheets, time slips,

or contemporaneous billing records were kept by GWC in relation to the legal services rendered

to the plaintiffs in this case and that they kept no time records of their own. Sorce and Baker

admitted that their testimony as to the amount of time that they spent in performing legal services

in this case was their best estimate of the minimum amount of time spent. Dunne admitted that

the entries she made on exhibit 19 reflecting the time that she spent representing the plaintiffs in

the defendants’ prior appeal were made eight months after the work was performed. The fact that

GWC is, as Sorce testified, a contingent fee law firm does not excuse the failure to keep records

of the time spent representing the plaintiffs in this case. Flynn v. Kucharski, 59 Ill. 2d 61, 67

(1974).

¶ 27 Sorce, Baker, and Dunne testified that they reviewed the file in this case along with the

pleadings and document that they prepared. And although they testified that the time reflected on

exhibit 19 for the legal services which they performed was conservative and represented the

minimum amount of time spent, in the absence of contemporaneous time records or testimony

that they had an independent recollection of the actual amount of time spent in performing each

task, their testimony as to the amount of time they expended in representing the plaintiffs is the

product of estimates and conjecture as to the time that they probably expended. Their testimony

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in this regard was speculation and, therefore, insufficient to establish the amount of reasonable

attorney fees incurred by the plaintiffs in the prosecution of their claim under the Act.

¶ 28 Based on the foregoing analysis, we find that the plaintiffs failed to satisfy their burden of

proving an entitlement to an award of legal fees against Chan pursuant to section 55 of the Act.

We conclude, therefore that the circuit court abused its discretion in awarding $58,712.50 for

attorney fees against Chan and, as a consequence, reverse $58,712.50 of the judgment entered

against him on June 4, 2018.

¶ 29 Although we have reversed $58,712.50 of the $67,333.76 judgment entered against the

defendants on June 4, 2018, there remains $8624.26 of that judgment that was not awarded for

attorney fees. The order of June 4, 2018, states that the judgment in favor of the plaintiffs was for

“costs and expenses” in addition to attorney fees. The defendants have made no argument on

appeal as to the propriety of the trial court having awarded the plaintiffs $8624.26 for costs and

expenses. Points not argued on appeal are forfeited. Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018).

As a consequence, any claim of error in the circuit court’s $8624.26 award against the

defendants for costs and expenses has been forfeited. See Meyers v. Kissner, 149 Ill. 2d 1, 8

(1992).

¶ 30 For the reasons stated, we reverse $58,712.50 of the $67,333.76 judgment entered against

the defendants on June 4, 2018, and affirm $8624.26 of that judgment against both defendants.

¶ 31 Affirmed in part and reversed in part.

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