Prior Plumbing and Heating Co. v. Hagins

• Citation: 258 Ill.App.3d 683,630 N.E.2d 1208,197 Ill.Dec. 84
• Decision Date: 28 February 1994
• Docket Number: No. 1-92-1241,1-92-1241
• Parties: , 197 Ill.Dec. 84 PRIOR PLUMBING AND HEATING COMPANY, Plaintiff, v. Toni HAGINS et al., Defendants (Kafka and Sons, Inc., Crossplaintiff and Counterplaintiff; Toni Hagins et al., Cross-Defendants; Peter Rascia, Counterdefendant; Antoinette Hagins et al., Counterplaintiffs and Cross-plaintiffs and Appellees; Remodeling By Kafka, Inc., a/k/a Kafka and Sons, Inc., et al., Cross-Defendants and Appellants).
• Court: United States Appellate Court of Illinois

Page 1208

630 N.E.2d 1208

258 Ill.App.3d 683, 197 Ill.Dec. 84

PRIOR PLUMBING AND HEATING COMPANY, Plaintiff, v. Toni HAGINS et al., Defendants (Kafka and Sons, Inc.,

Crossplaintiff and Counterplaintiff; Toni Hagins et al.,

Cross-Defendants; Peter Rascia, Counterdefendant;

Antoinette Hagins et al., Counterplaintiffs and

Cross-plaintiffs and Appellees; Remodeling By Kafka, Inc.,

a/k/a Kafka and Sons, Inc., et al., Cross-Defendants and Appellants).

No. 1-92-1241.

Appellate Court of Illinois,

First District, First Division.

Feb. 28, 1994.

David A. Novoselsky, Chicago, for appellant Ronald Kafka.

Schuyler, Roche & Zwirner, P.C., Chicago (Jeffrey E. Schiller and Michael F. Braun, of counsel), for appellees.

Presiding Justice CAMPBELL delivered the opinion of the court:

Defendant/crossplaintiff, Ronald W. Kafka (Kafka) appeals an order of the Circuit Court of Cook County awarding attorneys fees to defendants/counterplaintiffs, Michael and Antoinette Hagins (collectively "The Hagins") pursuant to the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill.Rev.Stat.1985, ch. 121 1/2, et seq. (now 815 ILCS 505/1 et seq. (West 1992)).) For the following reasons, we affirm in part, reverse in part, and remand this cause to the trial court for entry of judgment consistent with this opinion.

The record sets forth the following relevant facts. On January 10, 1984, the Hagins contracted with Kafka & Sons, Inc., (Kafka & Sons) a construction contractor, for remodeling projects in their home. On January 25, 1985, Prior Plumbing & Heating Company (Prior Plumbing), a subcontractor hired by Kafka, filed a complaint to foreclose a mechanics lien naming Hagins, Kafka & Sons and Kafka as defendants. On November 6, 1985, the Hagins filed an amended crossclaim and second amended crossclaim against Kafka and Kafka & Sons a/k/a Remodeling by Kafka, Inc. (Remodeling) alleging breach of contract, violation of the Consumer Fraud Act, and intentional infliction of emotional distress. Among the acts identified in the Hagins' second amended crossclaim as a basis for liability were: Kafka & Sons' stopping work after gutting the interior of the Hagins' home; untimely completion of work; work not in compliance with applicable housing code requirements; and work that was either not performed or was performed in a defective manner.

Kafka also filed crossclaims and countercomplaints on behalf of himself and Kafka & Sons a/k/a Remodeling, alleging that Prior Plumbing damaged the bathroom wall in the Hagins' home, and that the Hagins refused to allow Kafka & Sons to complete performance of their construction contract.

On March 21, 1986, the trial court granted the Hagins' motion to transfer the case to the Law Division and to file a jury demand. Hagins' subsequent discovery efforts were unsuccessful.

On October 11, 1990, an agreed order was entered imposing liability against Remodeling for its failure to comply with discovery. Repeated court orders were also entered compelling responses to discovery and Kafka's appearance for his deposition.

On November 1, 1990, Hagins moved for entry of judgment and for other sanctions against Kafka. Hagins' motion detailed Kafka's refusal to comply with the court's discovery orders. The court ordered Kafka to appear for his deposition and awarded Hagins attorneys fee and costs, with the amount to be supported by a fee petition. On November 2, 1990, Kafka was ordered to appear for his deposition at a later date. When Kafka failed to appear, the court entered judgment against him individually, for failure to comply with discovery, and barred Remodeling from participating at the hearing on damages.

On November 9, 1990, Kafka moved to vacate the default. The court set yet another date for Kafka to appear for his deposition. On November 14, 1990, the court entered an order finding that Kafka's answers at his November 12 deposition were unresponsive, and ordered completion of his deposition by November 28. Kafka failed to appear.

On January 11, 1991, the court denied Kafka's motion for reconsideration of the judgment entered against him and set the matter for a hearing on the Hagins' damages. On that same day, the Hagins filed an affidavit and petition for attorneys fees.

On February 1, 1991, Kafka filed a motion to stay proceedings on the Hagins' petition for attorneys fees. On February 11, Kafka moved to vacate the orders entered against him on the grounds that he "suffers from a multitude of physical, medical, and psychological disorders, which account for the conduct that the Court has sanctioned."

Kafka's motion to vacate on the grounds of incompetency resulted in additional discovery, which in turn led to Kafka's failure to comply with new discovery obligations. On June 28, 1991, the trial court struck Kafka's motion to vacate on the grounds of incompetency. On August 7, 1991, the court ordered Kafka to pay the Hagins attorneys fees in the amount of $13,474.25 on or before August 14, 1991, in connection with the Hagins' petition for sanctions and attorneys fees. The court further granted the Hagins' motion to withdraw their jury demand.

On August 9, 1991, the trial court denied Kafka's motion for a jury trial. Thereafter, the Hagins filed a second petition for sanctions and for attorneys fees incurred in connection with Kafka's "incompetency" motion. Following a hearing on the Hagins second petition, the trial court entered an order on October 18, 1991, awarding attorneys fees and costs in the amount of $17,401.15. On September 20, 1991, and November 5, 1991, Kafka posted two appeal bonds to stay execution of the court's two awards pending appeal. Kafka promised to pay the Hagins if an appeal was not prosecuted from the sanctions orders. ¹

On October 24, 1991, an agreed order was entered resolving the Hagins' damage claim. The order provided that: Kafka would pay the Hagins $38,000; findings of liability entered against Kafka would be vacated; and for purposes of determining attorneys fees under the Consumer Fraud Act, the Hagins were acknowledged to be "prevailing parties" in the litigation. In connection with this acknowledgment of prevailing party status, the agreed order provided that "said 'prevailing party' status shall not be challenged in this Court or on appeal." Thus, Kafka expressly waived his right to appeal the Hagins' prevailing party status.

On November 18, 1991, the Hagins filed a petition for attorneys fees pursuant to the Consumer Fraud Act, attaching attorneys affidavits and time schedules. In opposition, Kafka submitted his own affidavit, along with the affidavits of the secretary of Remodeling; his son, Michael J. Kafka, the foreman/job superintendent of Remodeling; and the bookkeeper of Remodeling. The affidavits were identical, and stated that, to the affiant's knowledge, "it is extremely unlikely" that Kafka had any job responsibilities in connection with the Hagins' remodeling project.

Following a hearing on the fee petition, on April 1, 1992, the trial court entered a detailed written order awarding the Hagins' attorneys: (a) $69,720 in attorneys fees for 545.2 hours of work, and disallowing fees for an additional 66.5 hours requested by the Hagins' attorneys; (b) $7,661 in costs; and (c) $4,210.46 in adjustment to the fees awarded to reflect the "time value of money." The award totalled $81,591.46. The trial court specified that the two previous awards of attorney fees, $13,474.25, entered on August 7, 1991, and $17,401.15, entered on October 18, 1991, were included in the total sum award of $81,591.46, and that Kafka would not be obligated to pay these amounts twice.

Kafka's timely appeal of the trial court's April 1, 1992, order followed.

Initially, Kafka contends that the trial court erred in denying his motion for a jury trial. Kafka argues that his right to a jury trial is fundamental, and that nothing in the Consumer Fraud Act precludes the right to a trial by jury.

Section 10a of the Consumer Fraud Act provides in pertinent part:

"Any person who suffers damage as a result of a violation of this Act committed by any other person may bring an action against such person. The court, in its discretion may award actual damages or any other relief which the court deems proper." (Ill.Rev.Stat.1985, ch. 121 1/2, par. 270a.)

In construing Section 10a, this court has repeatedly held that no right to a jury trial exists under the Consumer Fraud Act. (Rubin v. Marshall Field & Co. (1992), 232 Ill.App.3d 522, 173 Ill.Dec. 714, 597 N.E.2d 688; Martin v. Heinold Commodities, Inc. (1992), 240 Ill.App.3d 536, 181 Ill.Dec. 376, 608 N.E.2d 449; Richard/Allen/Winter, Ltd. v. Waldorf (1987), 156 Ill.App.3d 717, 109 Ill.Dec. 239, 509 N.E.2d 1078; and Wheeler v. Sunbelt Tool Company, Inc. (1989), 181 Ill.App.3d 1088, 130 Ill.Dec. 863, 537 N.E.2d 1332.) We therefore hold that the trial court did not err when it denied Kafka's demand for a jury trial.

Next, Kafka contends that the trial court abused its discretion in awarding attorneys fees to the Hagins. Kafka first contends that the trial court abused its discretion in awarding attorneys fees where "his own affidavit and the affidavits of three corroborating witnesses * * * confirmed his innocence."

The determination of attorneys fees is within the...