Thomas v. Weatherguard Constr. Co.

JUSTICE GORDON delivered the judgment of the court, with opinion.

Appeal from the Circuit Court of Cook County. No. 16 L 6955 The Honorable Joan E. Powell, Judge, presiding. 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 ¶ 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. "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:

"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." 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 ¶ 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] 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."

¶ 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.

Plaintiff later revised these amounts upward to encompass additional fees and costs incurred after September 7, 2016. Infra ¶ 32.

¶ 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.

¶ 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 ¶ 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.

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, 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. 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.

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. 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.

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."

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."

¶ 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 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. ¶ 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. The fact that this is not a 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.

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 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.

Actually, it is closer to one-fifth. --------

¶ 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 39 determining reasonable attorney fees and costs. Thus, we affirm the trial court's orders. ¶ 80 Affirmed.