Kaiser v. MEPC American Properties, Inc.

• Decision Date: 18 December 1987
• Docket Number: No. 87-1094,87-1094
• Citation: 115 Ill.Dec. 899,164 Ill.App.3d 978,518 N.E.2d 424
• Parties: , 115 Ill.Dec. 899 Jordan KAISER and Walter Kaiser, Plaintiffs, Counter-Defendants, Appellees, v. MEPC AMERICAN PROPERTIES, INC., a Delaware corporation, Defendant, Counter-Plaintiff, Appellant.
• Court: United States Appellate Court of Illinois

Page 424

518 N.E.2d 424

164 Ill.App.3d 978, 115 Ill.Dec. 899

Jordan KAISER and Walter Kaiser, Plaintiffs Counter-Defendants, Appellees, v. MEPC AMERICAN PROPERTIES, INC., a Delaware corporation Defendant, Counter-Plaintiff, Appellant.

No. 87-1094.

Appellate Court of Illinois First District, Fifth Division.

Dec. 18, 1987.

Freeborn & Peters, Chicago (David C. Gustman and Elizabeth D. Sharp, of counsel), for defendant, counter-plaintiff, appellant.

Eugene L. Shepp, Judith S. Sherwin, Shepp & Sherwin, Chicago, for plaintiffs, counter-defendants, appellees.

Presiding Justice SULLIVAN, delivered the opinion of the court:

This is an appeal from an order entered on a petition for attorney fees in an action to enforce a commercial lease agreement.

The facts relevant to the issues presented are neither complex nor substantially disputed. The lessees, Jordan Kaiser and Walter Kaiser, filed an action against the lessor, MEPC American Properties, Inc. (MEPC), seeking a declaration of the rights and obligations of the parties under a lease agreement; and MEPC thereafter filed a breach of contract counterclaim against the Kaisers for amounts allegedly due it thereunder. MEPC also sought costs and attorney fees from the Kaisers pursuant to section 1401 of the agreement which provided:

"Lessee shall pay all costs and expenses, including attorneys' fees which may be incurred by or imposed on Lessor either in enforcing this lease or in any litigation to which Lessor, without fault on its part, may be made a party."

Summary judgment was entered in favor of MEPC on July 28, 1986, and the cause was continued for a separate hearing on attorney fees.

In their petition, MEPC requested fees totalling $53,172.35 and costs of $1938.39. In support thereof, it submitted the affidavits of (1) Peter Hess of Hess, Kaplan & McDowell, Ltd., the law firm originally retained to represent it in this litigation and (2) Margaret Garvey, a partner in the law firm of Freeborn and Peters, which was retained following the withdrawal of Hess, Kaplan & McDowell from the case.

In his affidavit, Peter Hess set forth his and his partners' educational backgrounds and stated that prior to July 1982, his firm had represented MEPC in various real estate transactions; that it represented MEPC in this litigation from July 1982 until June 1985; that the standard hourly rates charged to its clients, including MEPC, were $135 per hour between 1982 and 1984 and $150 per hour thereafter; that the exhibits attached to the affidavit were (A) copies of bills and daily time reports sent to and paid by MEPC, and (B) a list of the services performed and the time allotted to each; that Exhibit B was prepared from time records maintained in the ordinary course of business and available for inspection; and that the total amount of fees and costs billed to and paid by MEPC were $23,943.75 and $104.20, respectively.

Margaret Garvey likewise detailed the qualifications of the attorneys in her firm who were involved in this litigation and attached a chronological list, compiled from daily time records maintained in the regular course of business containing a description of the services performed, a notation indicating by whom they were performed, the amount of time spent thereon and the hourly rate charged for each of the attorneys, paralegals and docket clerks who had worked on the case. The final total amount requested for those services was $28,228.60, plus costs of $1834.19.

In their responsive memorandum, the Kaisers objected to the award of any of the fees requested by MEPC for services performed by Hess, Kaplan & McDowell. In The Kaisers' memorandum also urged the trial court to disallow (a) 2/3 of the legal fees requested by Freeborn and Peters and (b) all costs except those for the taking and transcription of their depositions. As to these amounts, they argued that the fees were excessive and unreasonable because the detailed time records attached to Garvey's affidavit revealed numerous instances of duplication of services and excessive and unnecessary amounts of time spent by several attorneys on the same matters; and that the costs were not properly chargeable to them because they were of the type normally included in office overhead and/or were not reasonably and necessarily required by the litigation.

[115 Ill.Dec. 902] support thereof, they submitted a second affidavit given by Peter Hess on August 27, 1986, following their request for production of the contemporaneous time records which, according to his first affidavit, had been relied upon in preparing the summary of charges attached thereto. In it, Hess stated that those records no longer existed; that following entry of the daily time logs of the individual attorneys into a "client control sheet" the time slips were destroyed; and that excepting the exhibits attached to his original affidavit, there were no records relating to the fees for which MEPC was charged in connection with this litigation.

At the conclusion of the hearing on November 5, 1986, the trial court denied MEPC's request for the fees it paid to Hess, Kaplan & McDowell and, after a second hearing, on December 6, 1986, the court awarded MEPC $13,729 for the fees of Freeborn & Peters and $351.60 for the charges of the court reporter who took the Kaisers' depositions.

OPINION

Provisions in contracts for awards of attorney fees are an exception to the general rule that the unsuccessful litigant in a civil action is not responsible for the payment of the opponent's fees. (Abdul-Karim v. First Federal Savings and Loan Association (1984), 101 Ill.2d 400, 78 Ill.Dec. 369, 462 N.E.2d 488; Amoco Realty Co. v. Montalbano (1985), 133 Ill.App.3d 327, 88 Ill.Dec. 369, 478 N.E.2d 860; Losurdo Bros. v. Arkin Distributing Co. (1984), 125 Ill.App.3d 267, 80 Ill.Dec. 348, 465 N.E.2d 139.) In all cases, however, only those fees which are reasonable will be allowed (Fiorito v. Jones (1978), 72 Ill.2d 73, 18 Ill.Dec. 383, 377 N.E.2d 1019; Leader v. Cullerton (1976), 62 Ill.2d 483, 343 N.E.2d 897; In re Estate of Healy (1985), 137 Ill.App.3d 406, 92 Ill.Dec. 159, 484 N.E.2d 890), the determination of which is left to the sound discretion of the trial court (Fiorito v. Jones; Leader v. Cullerton; Board of Education v. County of Lake (1987), 156 Ill.App.3d 1064, 109 Ill.Dec. 249, 509 N.E.2d 1088). It is also well-settled that the party seeking the fees, whether for himself or on behalf of a client (First National Bank of Decatur v. Barclay (1982), 111 Ill.App.3d 162, 66 Ill.Dec. 854, 443 N.E.2d 780), always bears the burden of presenting sufficient evidence from which the trial court can render a decision as to their reasonableness (Fiorito v. Jones; Heckmann v. Hospital Service Corp. (1982), 104 Ill.App.3d 728, 59 Ill.Dec. 947, 432 N.E.2d 891; Ealy v. Peddy (1985), 138 Ill.App.3d 397, 92 Ill.Dec. 939, 485 N.E.2d 1182). An appropriate fee consists of reasonable charges for reasonable services (In re Estate of Healy ); however, to justify a fee, more must be presented than a mere compilation of hours multiplied by a fixed hourly rate or bills issued to the client (In re Marriage of Angiuli (1985), 134 Ill.App.3d 417, 89 Ill.Dec. 328, 480 N.E.2d 513), since this type of data, without more, does not provide the court with sufficient information as to their reasonableness--a matter which cannot be determined on the basis of conjecture or on the opinion or conclusions of the attorney seeking the fees (Flynn v. Kucharski (1974), 59 Ill.2d 61, 319 N.E.2d 1; In re Marriage of Angiuli ). Rather, the petition for fees must specify the services performed, by whom they were performed, the time expended thereon and the hourly rate charged therefor. (Fiorito v. Jones; Ealy v. Peddy.) Because of the importance of these factors, it is incumbent upon the petitioner to present detailed records maintained during the course of the litigation containing facts and computations upon which the charges are predicated. Flynn v. Kucharski; Board of Education v. County of Lake.

Once presented with these facts, the trial court should consider a variety of additional factors such as the skill and standing of the attorneys, the nature of the case, the novelty and/or difficulty of the issues and work involved, the importance of the matter, the degree of responsibility required, the usual and customary charges for comparable services, the benefit to the client (Ashby v. Price (1983), 112 Ill.App.3d 114, 67 Ill.Dec. 958, 445 N.E.2d 438), and whether there is a reasonable connection between the fees and the amount involved in the litigation (In re Estate of Healy (1985), 137 Ill.App.3d 406, 92 Ill.Dec. 159, 484 N.E.2d 890; In re Marriage of Ransom (1981), 102 Ill.App.3d 38, 57 Ill.Dec. 696, 429 N.E.2d 594). Finally, the decision of the trial court will not be reversed absent an abuse of discretion. Losurdo Bros. v. Arkin Distributing Co. (1984), 125 Ill.App.3d 267, 80 Ill.Dec. 348, 465 N.E.2d 139.

With these principles in mind, we first consider MEPC's contention that contrary to the trial court's determination, there was sufficient unrefuted evidence to support its request for the fees it paid to Hess, Kaplan & McDowell; and that by denying that request in its entirety the court abrogated the express terms of the lease agreement and abused its discretion. MEPC argues that the uncontroverted affidavit of Peter Hess and the supporting documents attached thereto, together with the court file containing documents and pleadings prepared by Hess, Kaplan & McDowell sufficiently substantiated the requested fees.

Initially, we note that in accordance with the cases cited above, the existence of a contractual provision obligating one party to pay attorney fees does not relieve the other of its burden to establish the reasonableness of the amount requested. Here the affidavit of Peter Hess consisted of (a) general information concerning the educational backgrounds of the members...