| NOTICE Decision filed 10/10/01. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same. |
| J.B. ESKER & SONS, INC., Plaintiff-Appellee, v. CLE-PA'S PARTNERSHIP, Defendant-appellant. | ) ) ) ) ) ) ) ) ) | Appeal from the Circuit Court of Bond County. No. 94-CH-8 Honorable |
JUSTICE GOLDENHERSH delivered the opinion of the court:
J.B. Esker & Sons, Inc. (plaintiff), filed a complaint for the foreclosure of amechanic's lien against Cle-Pa's Partnership (defendant). Defendant filed an answer and acounterclaim. The matter went to trial. Plaintiff was awarded $938 and defendant wasawarded $26,145. After a later hearing, defendant was awarded $13,532 in attorney fees and$3,730.77 in costs. Defendant appeals, contending that the trial court improperly declinedto award expert witness fees and the full amount of attorney fees. We reverse in part andremand.
On June 1, 1993, the parties entered into a contract wherein defendant agreed to payplaintiff $238,870 to perform concrete and paving construction for a Grandpa's store inGreenville, Illinois. The contract contained the following clause:
"15.4 ATTORNEY'S FEES. Should either party employ an attorney to institute suitor demand arbitration to enforce any of the provisions hereof, to protect its interestin any matter arising under this Agreement, to collect damages for the breach of theAgreement, or to recover on a surety bond given by a party under this Agreement, theprevailing party shall be entitled to recover reasonable attorney's fees, costs, charges,and expenses expended or incurred therein."
On August 4, 1994, plaintiff filed a complaint seeking the foreclosure of a mechanic'slien against defendant. According to the complaint, defendant defaulted on the final balancedue in the amount of $33,403.
Defendant filed an answer, affirmative defenses, and a counterclaim. In its twoaffirmative defenses, defendant alleged that charges for additional work claimed by plaintiffwere not done with change orders as required by the contract and that defendant was entitledto keep the withheld amount, as the contract allowed defendant to keep 10% of its paymentuntil the completion of an inspection and the acceptance of the work by defendant. In itscounterclaim, defendant alleged that as a result of unworkmanlike performance by plaintiff,defendant anticipated having to take up a portion of the tile laid on the concrete and levelthe concrete floor.
The bench trial extended over a period of six days. The trial commenced on January21, 1998, and was recessed on January 22, 1998. The trial resumed on March 30, 1998, andcontinued until recessed on April 1, 1998. The trial concluded on June 22, 1998.
Defendant presented the testimony of Dr. W. Gene Corley, structural engineer ofConstruction Technology Laboratories, Inc., Skokie, Illinois, who testified during two daysof the trial. Dr. Corley had traveled to the store, inspected the site, and conducted a seriesof measurements and tests. He wrote a report on his findings and was deposed on twoseparate occasions. At the trial, Dr. Corley's testimony included the observations he madeon his inspection and a repair estimate of $193,000. Defendant claims that Dr. Corley spent156.3 hours on the case and that the amount of his bill was $22,925.25.
Over defendant's objection, plaintiff presented the testimony of William Gould,former vice-president of Paul Apt Floor Coverings. Gould testified that in 1994, Paul AptFloor Coverings presented a repair estimate of $26,145. Gould testified that defendant didnot authorize repair work on the estimate.
Plaintiff contended that additional expenses were incurred during constructionbecause the ground was soft and wet. Plaintiff asserted that as a result of the conditions ithad to construct an access road, use a concrete pump, and repair a curb. Plaintiff submitteddocuments regarding the additional work, including an invoice of $938 for curb repair.
At the close of the evidence, the court took the matter under advisement. On October28, 1998, the court entered an order. The court noted that, including the amount to be paidunder the original contract and the additional work performed, the amount requested byplaintiff was $259,291.50. The court stated that defendant paid $224,928.50, which left$34,301 unpaid. The court found that the curb repair was done at the request of defendant,and the court awarded plaintiff $938. However, the court found that plaintiff failed to provethat defendant was responsible for any other additional work performed outside the contract. In regard to the balance remaining under the contract, the court found that plaintiff'sperformance was defective and that defendant properly withheld 10% from the bill. Thecourt stated, "Judgment is hereby rendered on behalf of Defendant, Cle-Pa's[,] on theComplaint for Mechanic's Lien."
The court awarded defendant $26,145 on the counterclaim. The court stated, "[T]hecement work performed by [P]laintiff breached the contract for construction; however, it isthe further finding of this court that the Defendant's request to Plaintiff for continuing theconstruction[,] despite the knowledge of the faulty concrete, contributed to [the] furtherinadequacy of the concrete and the eventual damage to the floor of the Grandpa's Store." The court declined to award defendant the amount sought on the counterclaim. The courtfound that defendant had failed to mitigate damages and had failed to present evidence ondiminution of value. The court was also critical of Dr. Corley's testimony, stating:
"Although this court finds Defendant['s] expert testimony to be credible on the issueof lack of adequate manpower on the floor pours, this court finds the remainder ofsaid testimony on the issue of damages not to be credible for the following reasons: [t]he labor rates he used are utilized in union agreements; he did not obtain anyestimates from flooring contractors in the Greenville area for removal nor [sic] repairof the tile; [and] he used a labor unit cost of $3.00 per square feet for installing vinyltile instead of the unit cost of $1.33 per square foot for installing vinyl compositiontile."
The court ordered the parties to bear their own costs and reserved the issue of attorney feesfor further hearing. Defendant filed a motion to reconsider. The motion was denied anddefendant filed a petition for attorney fees. Attached to the petition was a bill from Dr.Corley for $22,925.25.
The petition also contained a sworn and subscribed affidavit from H. Carl Runge, Jr.,for attorney fees and expenditures for the total amount of $22,662.07. An "ItemizedStatement for Services Rendered" set forth attorney fees in the amount of $18,932. Thedocument detailed the tasks undertaken, the date performed, and the time spent on an hourlybasis at the rate of $100 per hour. This document also set forth $3,730.07 for other items,such as travel and deposition transcripts.
Also attached to the petition was an unsigned affidavit for attorney fees and costs ofJohn W. Kelsey for $8,307.44, at an hourly rate of $95. On the letterhead of the office ofJohn W. Kelsey were two documents entitled "Statement for Professional ServicesRendered." These documents listed phone tolls, postage, and mileage expenses incurred onspecific dates for certain tasks. The documents did not itemize the hours spent.
At the hearing on the petition, plaintiff argued that Runge had previously prepareda statement seeking attorney fees equivalent to one-third of the award given to defendant. Runge stated that the document was hastily prepared for plaintiff's counsel's review and thatit was not signed or sworn to. (Neither party referenced this document by page number, andit could not be located in the record.)
On November 1, 1999, the court entered an order awarding defendant attorney feesin the amount of $13,532 and for "costs, charges[,] and expenses" in the amount of$3,730.77. Defendant filed this appeal.
Under the agreement entered into by the parties, the "prevailing party" is entitled toreasonable attorney fees, costs, charges, and expenses. A prevailing party, for purposes ofawarding attorney fees, is one that is successful on a significant issue and achieves somebenefit in bringing suit. Grossinger Motorcorp, Inc. v. American National Bank & TrustCo., 240 Ill. App. 3d 737, 753, 607 N.E.2d 1337, 1348 (1992). A party that receivesjudgment in his favor is usually considered the prevailing party. Tomlinson v. DartmoorConstruction Corp., 268 Ill. App. 3d 677, 687, 645 N.E.2d 376, 383 (1994). Although insome cases a court may decide there is no prevailing party, the court properly declined tomake such a finding here. See Brown & Kerr, Inc. v. American Stores Properties, Inc., 306Ill. App. 3d 1023, 1035, 715 N.E.2d 804, 814 (1999). In this case, the trial court entered ajudgment for defendant. The trial court apparently believed that defendant was theprevailing party because the court awarded some attorney fees and costs to defendant.
The success defendant had in defeating the claim against it and in securing an awardon the counterclaim undoubtedly indicates that it was the prevailing party. As the prevailingparty, defendant benefits from the contract.
Defendant contends that there should have been an award of attorney fees for the fullamount submitted to the trial court. Plaintiff contends that the trial court properly exerciseddiscretion in denying the full amount submitted. Plaintiff contends that the fact that the trialcourt's ruling was not totally in defendant's favor is sufficient ground, in itself, to reduce thefee. Plaintiff's arguments are unconvincing.
Generally, a party is responsible for his own attorney fees. Abdul-Karim v. FirstFederal Savings & Loan Ass'n of Champaign, 101 Ill. 2d 400, 412, 462 N.E.2d 488, 493(1984). An exception exists when a contract provides for an award of attorney fees. MirarDevelopment, Inc. v. Kroner, 308 Ill. App. 3d 483, 488, 720 N.E.2d 270, 274 (1999). Contractual provisions for an award of attorney fees must be strictly construed, and the courtmust determine the intention of the parties regarding the payment of fees. MirarDevelopment, Inc., 308 Ill. App. 3d at 488, 720 N.E.2d at 274.
In this case, there was no justification for a reduction in the award of attorney fees,based on the results obtained by defendant's counsel. The fact that the court ruled inplaintiff's favor on some issues does not create a basis for a reduction in the award ofattorney fees. In Tomlinson, the defendant contended that the plaintiffs were not entitled toall reasonable attorney fees because the plaintiffs did not prevail on all disputed issues. Tomlinson, 268 Ill. App. 3d at 687-88, 645 N.E.2d at 383. In affirming an award of alldocumented fees, the court stated:
"In the present case, the trial court entered judgment in favor of plaintiffs and againstdefendant and ordered defendant to pay plaintiffs the amount of the judgment. Assuch, we conclude that plaintiffs were the sole prevailing party and are entitled torecover all costs and expenses, including reasonable attorney fees incurred by themin connection with this dispute. Moreover, if we were to accept defendant'sapproach, then the award of damages to the losing party pursuant to a contractual fee-shifting provision such as the one in the case at bar would often be greater than theaward to the party in whose favor the trial court entered judgment. We believe thatthe better approach is that, with respect to an award of attorney fees in civil casespursuant to a contractual fee-shifting provision, there is only one prevailing partyabsent the parties' mutual consent to the contrary." Tomlinson, 268 Ill. App. 3d at687-88, 645 N.E.2d at 383.
Defendant is the sole prevailing party, and its counsel obtained excellent results. Defendantdefeated the claim against it and received an award on the counterclaim. See Brewingtonv. Department of Corrections, 161 Ill. App. 3d 54, 64, 513 N.E.2d 1056, 1064 (1987)(excellent results obtained by the prevailing party for purposes of awarding attorney fees inan Illinois Human Rights Act suit even though the plaintiff was not awarded back pay andreinstatement). The relief obtained by defendant was substantial, and there was no reasonfor reducing the award of attorney fees based on the result obtained. See Aero Testing &Balancing Systems, Inc. v. Illinois Human Rights Comm'n, 185 Ill. App. 3d 956, 971, 541N.E.2d 1229, 1238 (1989), overruled on other grounds by Castaneda v. Illinois HumanRights Comm'n, 132 Ill. 2d 304, 547 N.E.2d 437 (1989) (in actions under the Illinois HumanRights Act, the prevailing party is entitled to all reasonable fees if there is little distinctionbetween the prevailing and nonprevailing issues); see also Hensley v. Eckerhart, 461 U.S.424, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983) (the prevailing party was entitled to reasonableattorney fees under 42 U.S.C.