Colin v. Brown

2025 IL App (1st) 241288-U

• Court: Appellate Court of Illinois
• Decided: February 4, 2025
• Docket: 1-24-1288
• Status: Unpublished

Opinion

2025 IL App (1st) 241288-U

SECOND DIVISION February 4, 2025

No. 1-24-1288

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

MARCO COLIN, ) Appeal from ) the Circuit Court Plaintiff-Appellant, ) of Cook County ) v. ) 23M1701363 ) LORENZO BROWN, ADRIENNE GREEN, and UNKNOWN ) Honorable OCCUPANTS d/b/a HAROLD’S CHICKEN AND FAMILY, ) Brian R. Porter, ) Judge Presiding Defendants-Appellees. )

JUSTICE McBRIDE delivered the judgment of the court. Justices Howse and Ellis concurred in the judgment.

ORDER

¶1 Held: Attorney fees awarded pursuant to commercial lease were not excessive and appellee is also entitled to attorney fees incurred defending the award on appeal.

¶2 Commercial property owner Marco Colin, who tried to evict his tenants, Lorenzo Brown

and Adrienne Green d/b/a Harold’s Chicken and Family (“Brown”), under the erroneous belief

that Brown had only a month-to-month tenancy, did not prevail at a bench trial and was ordered

to pay $21,525 in attorney fees pursuant to the “prevailing party” clause in their written lease.

Colin contends that Brown’s fee petition did not conform with Kaiser v. MEPC American

Properties, Inc., 164 Ill. App. 3d 978, 983 (1987) and that the amount awarded was excessive. 1-24-1288 ¶3 The following facts are undisputed on appeal. Brown was operating a restaurant at 700 East

100th Place, Chicago, before Colin purchased the property. In late 2019, the then owner of the

commercial space had signed a two-year lease with Brown beginning January 1, 2020, at the rate

of $1500 per month. The lease gave Brown the option to renew for an additional four years (2022

through 2025), at the rate of $1600 per month. The lease also said that in the event “suit should be

brought for recovery of the premises *** the prevailing party shall be entitled to costs incurred in

connection with such action, including a reasonable attorney’s fee.” Brown timely exercised the

renewal option on October 26, 2021 by giving the landlord written notice and, on or about February

1, 2022, when the four-year renewal period began, Brown increased the monthly rent payment

from $1500 to $1600. During the first month of the renewal period, on February 28, 2022, the

landlord’s attorney notified Brown that the property had been sold to Colin on February 28, 2022;

Brown was still subject to the lease; his $1500 security deposit was being transferred to Colin;

Brown’s next $1600 rent payment was due on March 1, 2022; and all subsequent rent should be

mailed to Colin. Brown complied. However, after Colin received nine timely $1600 rent payments,

Colin sent notice that he was terminating the tenancy. In his letter dated November 23, 2022, Colin

claimed Brown had a month-to-month tenancy and demanded that Brown vacate the space by

December 23, 2022. Brown continued to operate the restaurant. Colin filed this eviction suit on

January 24, 2024.

¶4 Brown relied on the above facts in a section 2-619 motion to dismiss Colin’s action (735

ILCS 5/2-619(a)(9) (West 2022)) and attached the former owner’s February 2022 letter as proof

that there was a lawful, ongoing tenancy. In response, Colin disputed that Brown renewed. Colin

argued that “[q]uite conspicuously,” Brown had not attached the letter that was sent to the landlord

-2- 1-24-1288 in October 2021 to exercise the option and Colin disputed the authenticity of the landlord’s letter

telling Brown that there was a new owner. Colin also provided his real estate contract with the

seller, dated December 17, 2021, which prohibited the seller from extending any leases once he

signed the contract. In reply, codefendant Green (who is Brown’s wife and business partner)

tendered an affidavit in which she swore that she sent the renewal letter and an e-mail to that effect

to the landlord, and, although she had not retained a copy of the letter, she was providing a copy

of her e-mail. She further swore that the landlord acknowledged the renewal decision over the

phone and in person. Thus, the landlord’s written notice on February 28, 2022 was his third

confirmation that Brown had extended the lease through 2025.

¶5 In light of the fact dispute, the circuit court denied Brown’s section 2-619 motion and

scheduled a trial that was conducted over two afternoons. Brown prevailed at trial. The judgment

order specified his right to file an attorney fees petition pursuant to the lease’s “prevailing party”

clause.

¶6 After written and oral arguments on Brown’s fee petition seeking $28,805, the circuit court

awarded $21,525. The record does not disclose why the court struck invoice entries totaling

$7,280. More specifically, the written order does not state the court’s reasoning and there is no

transcript or bystander’s report of the hearing. Colin argues, however, that there are numerous

indications in the fee petition that the award was an abuse of discretion.

¶7 Fee shifting agreements are an exception to the general rule that an unsuccessful litigant in

a civil action is not responsible for the opponent’s fees. Kaiser, 164 Ill. App. 3d at 983. The

standards that govern an award of attorney fees, whether based on the terms of a fee shifting statute

or a contract, are well established. Young v. Alden Gardens of Waterford, LLC, 2015 IL App (1st)

-3- 1-24-1288 131887, ¶ 102. An appropriate fee consists of reasonable charges for reasonable services. Kaiser,

163 Ill. App. 3d at 983. Pursuant to Kaiser, when determining the reasonableness of a fee request,

the court is to consider “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 [citation], and whether there is a reasonable connection between the fees and the amount

involved in the litigation.” Kaiser, 164 Ill. App. 3d at 984.

¶8 A trial judge is permitted to use his or her own knowledge and experience to assess the

time required to complete particular activities, and a reviewing court may not reverse an award of

attorney fees merely because it may have reached a different conclusion. Plambeck v. Greystone

Management & Columbia National Trustee Co., 281 Ill. App. 3d 260, 273 (1996). The trial judge

is in a better position than the reviewing court to evaluate the claim. Norman v. U.S. Bank National

Ass’n as Trustee for Structured Asset Mortgage Investments II, Inc., 2020 IL App (1st) 190765,

¶ 36. Whether to award attorney fees and in what amount to award attorney fees is a matter of

sound discretion and the court’s ruling will not be disturbed unless that discretion was abused.

Med+Plus Neck & Back Pain Center, S.C. v. Noffsinger, 311 Ill. App. 3d 853, 861 (2000); 1002

E. 87th Street LLC v. Midway Broadcasting Corp., 2018 IL App (1st) 171691, ¶ 30 (appellate

courts rarely overturn an award for attorney fees). An abuse of discretion occurs only when a ruling

is arbitrary, fanciful, or unreasonable, or where no reasonable person would take the same view.

Norman, 2020 IL App (1st) 190765, ¶ 36.

¶9 Colin criticizes the contents of Brown’s petition and contends that it did not include

“explicit mention” of the Kaiser factors or “any substantive analysis of [them]” and that Brown

-4- 1-24-1288 “merely attached certain exhibits in an attempt to bolster [the fee] request.” We note that the

petition consisted of three pages of argument and attached to it were (1) the judgment order

granting Brown leave to file a fee petition, (2) a three-page affidavit prepared by attorney

Steve McCann regarding his and co-counsel’s experience and customary charges and the fact that

Brown has paid all of the attached invoices with the exception of the most recent one, (3) Ball &

McCann’s attorney engagement letter with Green, and (4) five pages of invoices containing over

200 line items.

¶ 10 Applying Kaiser’s factors, Colin argues that the amount Brown sought was “grossly

excessive” because the single-issue lawsuit for possession was neither novel nor complex and did

not require “greater level of skill, focus or effort.” He points out that Brown’s section 2-619 motion

was denied, there was no discovery, and there were only four court dates. He also contends that

the invoice entries are “dubious” and “questionable” and “make a mockery” of specificity, and

that the hearing was not sufficiently detailed and resulted in the court “in a wholly arbitrary

manner, simply shav[ing] approximately $7,000.00 from the original amount sought.” He contends

that an analogous case is Fitzgerald v. Lake Shore Animal Hospital, Inc., 183 Ill. App. 3d 655, 661

(1989), in which the trial judge stated that he was going to take a “ ‘wild guess’ ” and reduce the

$50,029.94 fee request to $25,000 and costs.

¶ 11 Brown responds that the fee petition was more than adequate and that the parties argued

all of the Kaiser factors in open court. He contends that when Colin criticizes specific invoice

entries, such as preparing for court dates and writing correspondence and e-mails, Colin is

repeating arguments that persuaded the judge to deduct $7,280 from the petition.

-5- 1-24-1288 ¶ 12 Colin’s appeal is not persuasive. He fails to cite any authority that required Brown to

expressly discuss the Kaiser factors and Brown’s petition actually does conform with Kaiser. An

exhibit attached to a pleading is part of the pleading. Bianchi v. Savino Del Bene International

Freight Forwarders, Inc., 329 Ill. App. 3d 908, 921 (2002). Counsel’s three-page petition contains

salient facts and then the eleven pages of exhibits—particularly the attorney’s affidavit and

invoices—provide details that are pertinent to the factors. For instance, addressing the “nature of

the case,” the petition and affidavit summarize that this was a commercial lease dispute, then the

procedural history is outlined, and Brown also indicates that the request is based on the lease’s fee-

shifting clause. The “skill and standing of the attorneys” is addressed by the affidavit’s indications

that co-counsel Drew Ball and Steve McCann have nearly 10 years of experience as lead trial

attorneys in state and federal court and that they were retained by Brown at $350 per hour but have

been able to raise their going rate to $400 per hour with other clients. These statements also

encompass the “usual and customary charges for comparable services” and indicate that the firm’s

$350 rate in 2022 and 2023 was reasonable. Counsel also affirmatively stated that Brown paid all

of the itemized invoices except for the most recent one. The “novelty and/or difficulty of the issues

and work involved, the importance of the matter, [and] the degree of responsibility required” are

addressed by indications in the petition, affidavit and invoices that there was at least one attempt

to resolve the dispute before the landlord filed suit; counsel repeatedly appeared in court and

researched, wrote, and advocated through motion practice and at trial; and counsel also prepared

his clients for the trial. Furthermore, the invoices are lengthy and suggest that the landlord

complicated the dispute (increased the fees) by removing Brown’s business sign and allowing the

restaurant’s water supply to be shut off. We also see “a reasonable connection between the fees

-6- 1-24-1288 and the amount involved in the litigation,” given that the tenants faced an abrupt end to their source

of livelihood, and that the total amount awarded ($21,525) was much less than the amount of rent

that was at stake in the suit (36 additional months x $1600 = $57,600). Thus, Colin’s contention

that the fee petition was deficient is not persuasive.

¶ 13 Colin next argues that fees were “grossly excessive” and “greatly inflated,” and that the

invoices “make a mockery of the specificity requirements” as they are “vague” and “unclear” and

presented in a “nearly-microscopic font.” Brown responds that “all of those line items (and others)

were already addressed by the trial court” and that the judge reduced some of those entries because

he “did not believe [they] warranted the $350 per hour rate” even though the two-lawyer law firm

did not employ any support staff. Colin replies in part that Brown “cite[s] nothing in the record to

substantiate [the] claim that such arguments were made ‘in open court.’ ”

¶ 14 Colin does not dispute that there was a hearing on the petition, but he failed to meet the

appellant’s burden of providing a hearing transcript or bystander’s report. See Foutch v. O’Brien,

99 Ill. 2d at 391-92 (1984) (an appellant has the burden of presenting a sufficiently complete record

of the proceedings to support a claim of error); Ill. S. Ct. R. 321 (eff. Oct. 1, 2021) (“The record

on appeal shall also include any report of proceedings prepared in accordance with Rule 323.”);

Ill. S. Ct. Rule 323 (eff. July, 1, 2017) (requiring the appellant to request preparation of a transcript

of the proceedings, and stating how to obtain a certified bystander’s report when no verbatim

transcript is obtainable). Without the report of proceedings that should have been provided to this

court, we have no basis to disagree with the circuit court’s determination that the specific fees it

was awarding were reasonable, or finding that the court abused its discretion. When a record is

insufficient to support an appellant’s claim, we may presume that the information that was

-7- 1-24-1288 omitted would support the ruling. Foutch, 99 Ill. 2d at 391-92; Coleman v. Windy City Balloon

Port, Ltd., 160 Ill. App. 3d 408, 419 (1987) (when a record is lacking crucial facts, we

may presume that the circuit court acted properly by entering the challenged order and that the

order is supported by whatever was omitted from our consideration). That presumption is

warranted here.

¶ 15 Based on the limited record provided in this case, we do not find that the decision to award

attorney fees totaling $21,525 was an abuse of discretion. We affirm the award.

¶ 16 The final issue is Brown’s request for the attorney fees that he incurred because of Colin’s

unsuccessful appeal. Colin did not respond to this request.

¶ 17 “Where a party that prevails in the trial court is required to defend that victory on appeal,

courts award attorney fees to that party for their work on the appeal, too, provided they prevail on

appeal as they did at trial.” Trutin v. Adam, 2016 IL App (1st) 142853, ¶ 35 (discussing statutory

fee-shifting provisions). In determining whether a party has prevailed on appeal for purposes of an

award of attorney fees and costs, we look at whether “he or she [wa]s successful on any significant

issue” in the appeal. Aliano v. Transform SR LLC, 2020 IL App (1st) 172325, ¶ 27. Since the only

issue on appeal was resolved in Brown’s favor, Brown was the “prevailing party” and is

contractually entitled to the appellate expenses. Trutin, 2016 IL App (1st) 14253, ¶¶ 45-46; Aldine

Building II v. Jetz Service Co., Inc., 2020 IL App (1st) 192368-U, ¶ 18 (granting appellate attorney

fees and remanding for their calculation). We would be diluting the fee-shifting clause if we held

to the contrary. Accordingly, Brown may file an appellate attorney fees petition in the circuit court

and the parties shall be heard there as to the reasonableness of those fees, including the costs of

preparing the petition. Aldine Building, 2020 IL App (1st) 192368-U, ¶ 18; Erlenbush v. Largent,

-8- 1-24-1288 353 Ill. App. 3d 949, 953 (2004) (amount of attorney fees on appeal are properly determined by

petition and evidentiary hearing, and the reviewing court should remand for those purposes);

Trutin, 2016 IL App (1st) 142853, ¶ 47 (same). We remand with instructions to address Brown’s

petition.

¶ 18 Affirmed; remanded with instructions.

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