Thomas v. Weatherguard Constr. Co.

• Decision Date: 27 December 2018
• Docket Number: No. 1-17-1238,1-17-1238
• Citation: 2018 IL App (1st) 171238,429 Ill.Dec. 886,125 N.E.3d 1000
• Parties: Raymond THOMAS, Plaintiff-Appellee, v. WEATHERGUARD CONSTRUCTION COMPANY, INC., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 171238

125 N.E.3d 1000

429 Ill.Dec. 886

Raymond THOMAS, Plaintiff-Appellee,

v.WEATHERGUARD CONSTRUCTION COMPANY, INC., Defendant-Appellant.

No. 1-17-1238

Appellate Court of Illinois, First District, FOURTH DIVISION.

Opinion filed December 27, 2018

Rehearing denied February 13, 2019

Mark L. LeFevour, of M.L. LeFevour & Associates, Ltd., of Burr Ridge, for appellant.

Arnold E. Toole, of Toole Law Office, LLC, of Chicago, for appellee.

JUSTICE GORDON delivered the judgment of the court, with 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 (1st) 142785, ¶¶ 1, 3, 397 Ill.Dec. 395, 42 N.E.3d 21. In 2014, after a bench trial, the trial court found that defendant was indeed plaintiff's employer and did owe plaintiff commissions, but awarded plaintiff only $9226.52 in damages, or roughly one-fifth of what plaintiff had originally sought. Thomas , 2015 IL App (1st) 142785, ¶ 1, 397 Ill.Dec. 395, 42 N.E.3d 21. On the subsequent appeal in 2015, this court affirmed the trial court's judgment in plaintiff's favor and the trial court's damages award of $9226.52 plus costs. Thomas , 2015 IL App (1st) 142785, ¶ 1, 40, 397 Ill.Dec. 395, 42 N.E.3d 21.

¶ 2 However, this court "remand[ed] this case to the trial court for the limited purpose of applying the attorney fees provision of the 2011 amendment [to the Wage Payment Act] retroactively and awarding plaintiff ‘costs and all reasonable attorney's fees.’ " Thomas , 2015 IL App (1st) 142785, ¶ 78, 397 Ill.Dec. 395, 42 N.E.3d 21 (quoting 820 ILCS 115/14(a) (West 2012) ).

¶ 3 On remand, neither party requested an evidentiary hearing and the trial court, who had also presided over the bench trial, considered the issue based on the briefs and exhibits submitted by the parties. On April 21, 2017, after 10 years of litigation, the trial court found that plaintiff was "entitled to attorney fees in the amount of $178,449.97" and "costs in the amount of $1,124.68," for a total of $179,574.65, or roughly 20 times plaintiff's damages award. It is this April 21, 2017, order that is the primary subject of the present appeal.

¶ 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. Plaintiff's complaint sought $47,666.54, as well as punitive damages and attorney fees.

¶ 8 Count I of the four-count complaint alleged that defendant violated the Sales Representative Act ( 820 ILCS 120/1 et seq. (West 2006), which requires a principal to pay a sales representative earned commissions within 13 days after the representative's termination of employment. In the alternative, count II alleged that defendant violated the Wage Payment Act ( 820 ILCS 115/1 et seq. (West 2006) ), which required an employer to pay an employee final compensation at the time of termination. Count III was for breach of contract, alleging that defendant breached its oral contract with plaintiff by failing to pay him as agreed, and count IV was for unjust enrichment.

¶ 9 In its answer, defendant denied that plaintiff was its employee, denied that it had any business relationship with plaintiff and denied that it owed plaintiff any commissions.

¶ 10 On June 12, 2010, defendant moved for summary judgment. The trial court granted the motion with respect to the count based on the Sales Representative Act (count I), but denied the motion with respect to all the other counts.

¶ 11 The bench trial began, and on June 28 and 29, 2011, plaintiff presented his case-in-chief, calling only two witnesses: himself; and Brett McDonald, defendant's president and owner. On July 13, 2011, defendant moved for a directed finding that the trial court denied on July 22, 2011. On November 9 and 10, 2011, defendant presented its case-in-chief, calling only one witness: its president and owner, Brett McDonald. The primary issue at trial and on appeal was whether plaintiff was, or was not, defendant's employee. Thomas , 2015 IL App (1st) 142785, ¶ 43, 397 Ill.Dec. 395, 42 N.E.3d 21. Since that is not an issue on this appeal, and since this court already described the evidence at trial in detail in our prior opinion, we incorporate that opinion here by reference. Thomas , 2015 IL App (1st) 142785, ¶¶ 11-31, 397 Ill.Dec. 395, 42 N.E.3d 21 (describing the evidence at trial).

¶ 12 On January 25, 2013, the trial court issued a written order and opinion, finding that plaintiff's testimony was credible, that plaintiff and defendant had "an oral contract whereby [plaintiff] was to receive commissions of 20% of the completed contract," and that plaintiff was entitled to a 20% commission on the net value of the 31 completed contracts that he had secured. The trial court then directed the parties "to figure out the amount due on commissions according to the finding above. In other words, use 20% of the net profits from each contract secured by [plaintiff] that was accepted and built out by [defendant]."

¶ 13 The trial court also found that defendant was plaintiff's employer for purposes of the Wage Payment Act, that defendant had violated this Act, and that plaintiff was therefore entitled to a doubling of the amount of the commission award.

¶ 14 On April 4, 2013, defendant filed objections to the court's ordered procedure, and on April 5, 2013, the trial court agreed to determine the amount of damages to be awarded. On April 17, 2014, the trial court awarded plaintiff $9226.52, doubled, plus court costs. On May 16, 2014, defendant moved to reconsider, claiming that the trial court's doubling of the commissions pursuant to the Wage Payment Act was incorrect. In response, plaintiff claimed, among other things, that the trial court should have also provided for attorney fees. On August 14, 2014, the trial court vacated its prior April 17, 2014, order and awarded plaintiff $9226.52, plus costs, but struck the doubling of the damages award.

¶ 15 Both parties filed notices of appeals, which this court consolidated. In our opinion, issued on September 30, 2015, this court observed that the primary issue on appeal was whether the trial court erred in finding that plaintiff was defendant's employee. Thomas , 2015 IL App (1st) 142785, ¶ 43, 397 Ill.Dec. 395, 42 N.E.3d 21. Plaintiff also claimed, among other things, that he was entitled to attorney fees. This court affirmed the trial court's judgment and damages award, but determined that plaintiff was also entitled to costs and all reasonable attorney fees and, thus, we remanded the case for the limited purpose of determining what those costs and reasonable attorney fees were. Thomas , 2015 IL App (1st) 142785, ¶¶ 59, 75, 78, 397 Ill.Dec. 395, 42 N.E.3d 21.

¶ 16 Defendant filed a petition for rehearing which this court denied on November 2, 2015, and a petition for leave to appeal which the Illinois Supreme Court denied on January 20, 2016. On remand to the trial court, the parties submitted briefs and exhibits, and the court heard argument. Neither party requested an evidentiary hearing, so none was held. On remand, the trial judge was the same trial judge who had presided over the bench trial and issued the underlying judgment in the case.

¶ 17 On remand, plaintiff submitted a fee petition on September 7, 2016, seeking attorney fees of $169,037.49, and $1244.68, to date,¹ for fees and costs incurred since September 2007. In support, his attorney, Arnold Toole of Toole Law Offices, submitted his own affidavit and a copy of the computerized records maintained by his office. Toole averred that each entry was "made on or about the day the time [was] expended." The computerized records included a list of expenses.

¶ 18 Arnold Toole declared under penalty of perjury that he had personal knowledge of "all fees and costs incurred in this matter," that he was the only attorney in his law firm; and that he was "the sole attorney representing [plaintiff] throughout this litigation," except for trial and for one court hearing where an attorney covered for him. Toole declared that he had been a practicing attorney in Illinois for over 22 years, that he had significant experience "handling labor and employment law matters," including wage claims. His hourly rate was $350 per hour, "except for status hearings, motion hearings and general court appearances," for which he billed at a lower flat rate of $200 per appearance.

¶ 19 In plaintiff's petition for fees, which Toole wrote, Toole claimed that the matter was complex because he had to prove that defendant was plaintiff's employer without a written employment agreement or W2's, and that he had to prove...