Filed 11/17/09 NO. 4-08-0378
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
COUNTRY MUTUAL INSURANCE COMPANY, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Ford County STYCK'S BODY SHOP, INC., ) Nos. 00LM3 Defendant-Appellant. ) 01LM7 ) ) Honorable ) Stephen R. Pacey, ) Judge Presiding. _________________________________________________________________
JUSTICE POPE delivered the opinion of the court:
In April 2001, plaintiff, Country Mutual Insurance
Company (Country), filed a complaint in replevin, asserting
defendant, Styck's Body Shop, Inc. (Body Shop), unlawfully
possessed several of its vehicles. Specifically, Country
contended Body Shop refused to release the vehicles from storage
to Country because Country refused to pay a $50 processing fee
Body Shop had recently begun charging. In December 2002, Body
Shop filed a counterclaim, seeking damages for towing,
assessment, storage, and repair services it provided Country.
Both Country and Body Shop filed amended claims prior to trial.
Following an August 2003 trial, a jury returned a
verdict against Country, awarding Body Shop (1) various sums for
towing and storage on 25 out of the 26 vehicles at issue,
totaling $11,837.50, and (2) the $50 processing fee for all 26 vehicles. Thereafter, the trial court awarded Body Shop
$16,759.55 in attorney fees and costs.
Body Shop appeals, arguing the trial court erred by (1)
limiting its damages for storage fees to the number of days Body
Shop stored each vehicle prior to receiving Country's demand for
possession and offer of payment (less the $50 processing fee),
(2) refusing to instruct the jury on the judicially admitted fact
that Body Shop's $20-per-day storage fee was reasonable, and (3)
using an improper legal standard when it limited Body Shop's
request for attorney fees and costs. We affirm as modified and
remand to the trial court with directions to award additional
damages to Body Shop in the amount of $37,900 in storage fees for
what the parties refer to as the Miller and Landau vehicles.
I. BACKGROUND
A. General Overview
The evidence the parties presented at the August 2003
trial and other evidentiary materials the parties submitted at
the summary-judgment proceedings established the following.
Between 1999 and 2003, Body Shop was engaged in the business of
vehicle collision repair and towing. During that same period,
Country sold automobile insurance policies throughout Illinois.
Generally, in the event of an automobile accident
involving a vehicle insured by Country, Body Shop or another
towing company would be called to the scene of the accident by
- 2 - either law-enforcement personnel or a private party to (1) clean
up debris, (2) tow the vehicle back to its place of business, (3)
process the vehicle, and (4) store the vehicle. Country then
would decide whether to repair the vehicle or declare it a total
loss. Traditionally, Body Shop billed for hookup, removal,
towing, and storage. Body Shop's fee for hookup, removal, and
towing varied, based on the circumstances of each particular
call. Body Shop charged $20 per day for vehicle storage, which
(1) was standard in the industry and (2) Country consistently
paid.
In the event Country deemed a policyholder's vehicle a
"total loss" as a result of an accident, Country (1) paid the
policyholder for the vehicle, (2) took an assignment of title to
the vehicle, (3) applied for a salvage title, (4) paid the towing
service to release the vehicle from its storage, and (5) disposed
of the vehicle for the value of its parts. Sometime in 1999,
Body Shop began assessing a $50 "processing fee" in addition to
the charges it previously assessed for each total-loss vehicle
towed back to its place of business and stored.
Between 1999 and 2002, Body Shop towed 26 vehicles
insured by Country, which Country later deemed "total losses."
Of these tow requests, 5 were made by private parties, and 21
were made by various law-enforcement agencies. Country refused
to pay the additional $50 processing fee on these 26 vehicles.
- 3 - Country requested the return of 24 of these vehicles
and offered to pay all of the previously accrued charges, save
the $50 processing fee. Country would normally pay storage
charges up to the day it picked up a vehicle but would not pay a
storage charge for a day on which some action of a body shop
prevented Country from retrieving the vehicle. However, Body
Shop refused to honor Country's demand for possession of a
vehicle until Country paid the $50 processing fee for that
vehicle. Robert Styck testified he would not have authorized the
release of a vehicle, even if Country had physically tendered
payment of all undisputed charges for the vehicle, without
payment of the $50 processing fee for that vehicle. Styck's
testimony was borne out by his treatment of what the parties
referred to as the Jordan vehicle. Country gave Body Shop a
check for all of the accrued charges absent the processing fee,
Body Shop cashed the check, but Body Shop still refused to
release the vehicle.
B. Procedural History
In February 2000, Country filed a complaint in
replevin, asserting Body Shop unlawfully possessed the Jordan
vehicle. In April 2001, Country filed a separate complaint in
replevin, asserting Body Shop unlawfully possessed several other
vehicles to which Country held title. Country later amended its
complaint to add additional vehicles. The trial court later
- 4 - consolidated these two claims. In total, Country alleged Body
Shop unlawfully possessed 26 of its vehicles because Country
either paid or offered to pay its bills for the vehicles in one
form or another less the $50 processing fees--offers Body Shop
refused to accept.
In September 2002, Body Shop filed its answer to
Country's complaint in replevin, arguing the sums Country
"tender[ed]" for those vehicles were insufficient, given the
amount Country owed for the work, storage, and processing fees
that had accrued to that point. Accordingly, Body Shop asserted,
in pertinent part, the affirmative defense that it had a
"possessory lien interest superior to that claimed by [Country]."
In December 2002, Body Shop filed a counterclaim,
arguing Country owed it approximately $300,000 pursuant to a
bailment created when Body Shop towed the vehicles to its place
of business for assessment, storage, and repair. In April 2003,
Body Shop amended its counterclaim, separating the vehicles into
"private tow" and "police tow" vehicles and asserting Country
owed it (1) $50 in processing fees for each vehicle and (2) $20
per day for storage since the date each vehicle was towed to its
place of business.
In May 2003, Country filed a motion for partial summary
judgment, asserting Body Shop could not raise a genuine issue of
material fact for jury determination on the issues regarding its
- 5 - right to recover (1) damages for storage charges for the days
after Country demanded possession of a vehicle and (2) attorney
fees.
In July 2003, Body Shop replied, denying Country's
right to possession of the vehicles and asserting affirmative
defenses based on (1) possessory lien rights under the Labor and
Storage Lien Act (770 ILCS 45/1 through 8 (West 2000)) and the
Labor and Storage Lien (Small Amount) Act (770 ILCS 50/1 through
6 (West 2000)), (2) section 4-203 of the Illinois Vehicle Code
(Vehicle Code) (625 ILCS 5/4-203 (West 2000)), and (3) common-law
artisan's liens. Later that month, Body Shop amended its
counterclaim to include the Jordan vehicle.
Thereafter, the trial court ruled on Country's motion
for partial summary judgment, finding Body Shop could not (1)
claim storage charges for any vehicle for the days Body Shop
retained a vehicle after Country offered to pay the uncontested
charges and demanded the vehicle's return or (2) recover attorney
fees for its attorney's efforts involving the private tow
vehicles.
The trial court stated in part:
"[Country's] [m]otion for [s]ummary
[j]udgment is allowed to the extent that
[Body Shop] has no claim for storage charges
for any vehicles at issue in the [a]mended
- 6 - [c]omplaint or in [the filing for the Jordan
vehicle] from and after the respective dates
[Body Shop] admits demand for possession and
tender of uncontested charges was made by
[Country]."
In August 2003, Country filed a second amended
complaint in replevin, adding the specific dates and offers it
made on the 25 vehicles it claimed Body Shop unlawfully
possessed. (The other vehicle was the Jordan vehicle.) Later
that month, Body Shop filed its second amended counterclaim,
again asserting (1) 21 of the vehicles were police tows and (2) 5
vehicles were private tows for which Country failed to pay Body
Shop the full amount of its fees, including the $20-per-day
storage fee and the $50 processing fee. In its answer to Body
Shop's second amended counterclaim, Country stated the $20-per-
day storage fee was usual and customary. However, Country denied
daily storage charges were properly accruing against the vehicles
Body Shop refused to release. Country also denied Body Shop was
entitled to collect a $50 processing fee for any of the 26
vehicles. Country denied Body Shop was entitled to "storage
charges at the rate of $20.00 per day from the date of [Body
Shop's] possession of each said vehicle to the date of judgment."
At the August 2003 trial, the parties presented, in
pertinent part, evidence in the form of (1) testimony as to (a)
- 7 - the industry billing standards and (b) when certain payments were
offered and accepted, (2) bills reflecting the fees Body Shop
alleged Country had incurred, and (3) letters and checks
reflecting the exchanges between the parties. During its closing
argument, Country presented a demonstrative exhibit reflecting,
in part, the date each vehicle arrived at Body Shop and the date
the offer and demand was made for each vehicle. Pursuant to a
pretrial ruling and because no evidence showed that an offer or
demand had ever been made on what the parties called the Miller
and Landau vehicles, Country's exhibit included a 13-day storage
calculation for those 2 vehicles, which was based on the average
number of days the remaining 24 vehicles were stored prior to the
date of Country's offer and demand for possession.
Following the parties' trial, the jury found in favor
of Body Shop, awarding it damages of (1) $3,577.50 for hookup,
removal, and towing; (2) $6,960 for storage; and (3) $1,300 for
processing fees.
C. Attorney Fees and Expenses
In November 2003, Body Shop filed a motion for attorney
fees and expenses, requesting approximately $70,000 for fees,
costs, and expenses. In August 2006, following numerous delays
by both parties in filing their fee petitions and responses
thereto, the trial court entered the following findings as to
attorney fees, costs, and expenses:
- 8 - "The allocations of time to the [Body
Shop's] counterclaim and/or police tows are
arbitrary.
Attorney Patrick McGuire, [Body Shop's]
trade association counsel, did most of the
work on the counterclaim prior to March 2003.
Deposition expenses, witness fees, and
office staff/paralegal time do not appear to
be part of 'collection costs' as defined by
the statute in question.
Some of [a]ttorney Rodeen's time is
billed at $200 per hour and some of
[a]ttorney Rodeen's and [a]ttorney Lanto's
time is not discounted (per their agreement
with [Body Shop]) for the entries when they
were both working on the case.
Reasonable fees for *** Rodeen *** are
$9,948.75; reasonable fees for *** Lanto are
$6,810.00."
In September 2006, Body Shop filed a motion for
attorney fees posttrial and on appeal, which the trial court
later denied.
This appeal followed.
II. ANALYSIS
- 9 - A. Body Shop's Claim That the Trial Court Erred by Limiting Its Damages
The trial court, in ruling on Country's motion for
summary judgment, stated Body Shop had "no claim for storage
charges for any vehicles at issue in the [a]mended [c]omplaint or
in [No.] 00-LM-3 from and after the respective dates [Body Shop]
admits demand for possession and tender of uncontested charges
was made by [Country]." Body Shop argues the court erred by
limiting its damages. Specifically, Body Shop contends:
"Since Country never made any 'legal tender'
as to any of the [26] vehicles *** [Body
Shop's] lawful right to continued possession
of the vehicles was never terminated through
the date of trial and [Body Shop] was, and
is[,] therefore entitled to judgment for the
full $475,783.50 for all charges and storage
on all [26] vehicles through [August 25,
2003]."
We disagree with Body Shop.
Body Shop appears to believe because it had the right
to retain a vehicle pursuant to its lien, it also had the right
to continue charging storage fees on that vehicle. This is
incorrect. Regardless of whether Body Shop had the right to
retain possession of a vehicle pursuant to a claimed lien after
Country demanded the vehicle's return, established Illinois law
- 10 - does not allow Body Shop a legal monetary remedy for the days it
continued to retain the vehicle, regardless of the legal theory
or process it used in its attempt to collect those daily storage
fees. See Weiland Tool & Manufacturing Co. v. Whitney, 44 Ill.
2d 105, 118, 251 N.E.2d 242, 249 (1969); Navistar Financial Corp.
v. Allen's Corner Garage & Towing Service Inc., 153 Ill. App. 3d
574, 578-79, 505 N.E.2d 1321, 1324 (1987); Johnson v. Throop
Street Auto & Wagon Co., 232 Ill. App. 513, 515 (1924); see also
Consolidated Bearings Co. v. Ehret-Krohn Corp., 913 F.2d 1224,
1233 (7th Cir. 1990).
The dissent argues the case sub judice is
distinguishable in part from Weiland, Navistar, and Johnson
because "storage of the vehicle was not the nature of the
parties' original agreement" in those cases. Slip op. at 28.
First, as discussed later in more detail, storage was the nature
of the parties' original agreement in Johnson (see Johnson, 232
Ill. App. at 514). Second, even if all of those cases involved
situations where something other than storage was the original
nature of the parties' agreements, we fail to see the relevance
of this distinction as the original nature of the parties'
agreement in the instant case was towing, not storage. Storage
of the vehicles was only incidental to the towing of the
Our supreme court's decision in Weiland stands for the
- 11 - proposition that after the owner of property (other than real
property) demands the return of that property from a bailee, the
bailee is not allowed both (1) to continue to retain possession
of the property pursuant to a lien on the property and (2) charge
storage fees for holding the property for the period of time
after the demand was made. Weiland, 44 Ill. 2d at 118, 251
N.E.2d at 249.
In reaching its decision, our supreme court relied on
Johnson. In Johnson, the defendant public garage-automobile
repair shop's first contact with the vehicle at issue was for
storage, not automobile repairs. Johnson, 232 Ill. App. at 514.
According to the opinion in Johnson:
"Plaintiff's chauffeur, with
plaintiff's consent, stored the
truck[,] when not in use[,] in
defendant's garage during the major
portion of the month of December,
1922, and all of the month of January,
1923. During December, 1922,
defendant, at the chauffeur's request,
twice made repairs on the truck,
furnishing material and performing
- 12 - labor thereon." Johnson, 232 Ill.
App. at 514.
On January 25, 1923, Johnson went to the defendant's
place of business, paid the storage due for December
and January, and also paid for the materials used in
the repairs. Johnson, 232 Ill. App. at 514-15.
However, he refused to pay the $17.25 labor charge for
the repairs. Johnson, 232 Ill. App. at 515. As a
result, the defendant refused to return the vehicle.
Johnson, 232 Ill. App. at 515. On January 31, 1923,
Johnson made a written demand for possession of the
vehicle. Johnson, 232 Ill. App. at 515.
On April 28, 1923, Johnson filed an action in
replevin to recover the vehicle. Johnson, 232 Ill.
App. at 513. The trial court found the plaintiff had a
right to possession of the truck but that it had
rightfully been held by the defendant for the payment
of $62.25. Johnson, 232 Ill. App. at 515. The $62.25
was the total of the $17.25 labor charge for the
repairs and a $15-per-month storage charge for the
months of February, March, and April (the period of
- 13 - time defendant held onto the vehicles after the
plaintiff had demanded possession on January 31, 1923).
Johnson, 232 Ill. App. at 515. The appellate court
found the defendant was entitled to $17.25 for the
labor but not the $45 in storage fees for February,
March, and April. Johnson, 232 Ill. App. at 515. The
appellate court concluded:
"After January 31, 1923 [(the date
Johnson demanded possession)], the
truck was not stored in defendant's
garage at plaintiff's request[, even
though it had been stored in
defendant's garage at plaintiff's
request prior to the demand being
made], but was kept there by defendant
contrary to plaintiff's written demand
for its return, and solely by virtue
of defendant's claimed lien for $17.25
for said labor performed thereon. If
defendant chose to insist upon its
right of retainer, given by the law,
- 14 - and suffer the inconvenience of having
a portion of the floor space of its
garage taken up by the truck, this was
its privilege, but in exercising said
right of retainer we do not think that
it had any authority under the law to
add to the debt any charge for storage
during the period the truck was so
retained." Johnson, 232 Ill. App. at
515.
The same reasoning applied by the court in Johnson
applies in the case sub judice.
After Body Shop refused Country's demand for possession
of a vehicle, Body Shop was no longer storing that vehicle on
Country's behalf. Instead, at that point, it was retaining that
vehicle pursuant to a lien in an effort to collect a debt it
believed it was owed. In other words, it was retaining the
vehicle solely for its own benefit.
The dissent states "[t]he majority concludes that under
Johnson, Weiland, and Navistar an offer and demand amount to
tender when, as here, the storage fees were incurred for the
benefit of the lienholder." Slip op. at 28. The dissent
- 15 - misinterprets our holding. We hold Country did not need to make
a proper legal tender in addition to a demand for possession to
cut off additional storage fees. As stated earlier, the demand
for possession of a vehicle alone cut off Body Shop's right to
continue charging storage fees for the days it retained that
vehicle after Country's demand.
Theoretically, the defendants in Johnson and
the case at bar could have (1) stored other vehicles in
the spots being occupied by the vehicles they retained
pursuant to their lien rights and (2) earned storage
fees on those other vehicles. However, it was Body
Shop's choice, after Country demanded possession of a
vehicle, as it was the choice of the defendant garage
in Johnson, after the plaintiff in that case demanded
possession of his vehicle, not to return the vehicle
and instead suffer the inconvenience of having part of
its floor space occupied by insisting upon its right of
retainer. As a result, Body Shop, like the defendant
in Johnson, is not entitled to storage fees for the
days it retained a vehicle after Country demanded its
return as a matter of law, regardless of whether it is
- 16 - seeking those damages pursuant to an affirmative
defense or a counterclaim.
As our supreme court held in Weiland, after a bailor
has demanded the return of his or its property and the bailee
refuses to release the property because of a lien, the bailee is
no longer storing the property for the benefit of the bailor but
instead for its own purposes, i.e., securing payment for the
services it rendered. Weiland, 44 Ill. 2d at 118, 251 N.E.2d at
249; see also Navistar, 153 Ill. App. 3d at 578, 505 N.E.2d at
1324 ("In the present case, defendant did not keep the truck on
its lot for the benefit of plaintiff, but did so only to preserve
its lien rights"); Consolidated Bearings Co., 913 F.2d at 1233
("Where a bailee retains the bailor's property to protect its own
interests rather than those of the bailor, it cannot claim
compensation from the bailor").
As part of its argument that its storage fees should
not have been limited, Body Shop contends the trial court
misconstrued the $2,000 limitation under section 4-203(g) of the
Vehicle Code (625 ILCS 5/4-203(g) (West 2000)). Body Shop
asserts its counterclaim for damages should not have been limited
to $2,000 because its counterclaim was a separate claim to
recover damages outside of the lien statute. However, the court
did not impose the statutory lien limitation of $2,000. The
court only cut off Body Shop's right to storage fees after
- 17 - Country demanded possession of a vehicle. The storage fees for
the days preceding the demand and the other towing fees just
happened to be less than $2,000 per vehicle at the point
Country's demands were made.
Body Shop argues as if it had no choice but to retain
possession of the vehicles. This is clearly incorrect. Body
Shop could have released the vehicles to Country and sued Country
for the disputed charges. However, Body Shop chose to retain
possession of the vehicles pursuant to its liens to secure
payment for its services. While this was a legally legitimate
course of action, it was not a practical one considering (1) Body
Shop did not need to worry about Country being "judgment proof"
and (2) the small amount of money (both disputed and undisputed)
at issue when Country demanded the return of its vehicles.
We do agree with Body Shop the trial court erred in its
treatment of the Miller and Landau vehicles. Both Body Shop and
Country agree that Country never made a demand for the return of
either of these vehicles. However, the court allowed Country to
argue to the jury that it should only award Body Shop damages for
13 days of storage since this was the average number of days the
other 24 vehicles were held before Country made a demand for
their possession. The court erred in the way it limited the
amount of storage fees Body Shop could claim for those two
vehicles. The court recognized its ruling was arbitrary. We
- 18 - agree and also find its ruling erroneous.
The correct cutoff date for the accrual of storage fees
for these two vehicles was August 22, 2003, the date Body Shop
was served with Country's second amended complaint in replevin.
In that second amended complaint in replevin, Country asked the
trial court to require Body Shop to return these two vehicles to
Country. At that point, Body Shop was placed on notice it was no
longer storing these two vehicles for Country's benefit. The
complaint in replevin served as a demand for the return of the
vehicles named in the complaint.
Country never informed Body Shop it no longer wanted
Body Shop to store these two vehicles until it served Body Shop
with the second amended complaint in replevin. Thus, Body Shop
is entitled to a $20-per-day storage fee, which the parties
agreed was a reasonable storage fee, for the period of December
11, 2000, to August 22, 2003, for the Miller vehicle and the
period of February 24, 2001, to August 22, 2003, for the Landau
vehicle.
For the sake of clarity, our opinion does not mean
someone can simply make a demand for possession of a vehicle,
never pick up the vehicle, and deny responsibility for storage
fees for the days subsequent to the demand. Only where a demand
for possession is made and the lienholder refuses to release the
property, as Body Shop did in this case, is the lienholder
- 19 - prevented from claiming fees which accrue following the demand.
The dissent's reasoning with regard to storage fees is
inconsistent. The dissent first states only a proper legal
tender should cut off the accrual of storage fees. Slip op. at
28. However, the dissent then states the service of a complaint
in replevin should cut off storage fees, even though it is not
accompanied by a proper legal tender. Slip op. at 33-34. The
dissent recognizes "selecting this point may seem somewhat
arbitrary" for cutting off the accrual of storage fees. Slip op.
at 34.
The majority's reasoning is not arbitrary. Once a
demand for possession is made, whether by a complaint in replevin
or otherwise, and the lienholder refuses to turn over the
property, the lienholder can no longer continue to accrue daily
storage fees for that property.
B. Body Shop's Claim the Trial Court Erred by Refusing To Instruct the Jury Its $20-Per-Day Storage Fee Was Reasonable
Body Shop next argues the trial court erred by refusing
to instruct the jury that its $20-per-day storage fee was
reasonable and that the parties agreed the fee was reasonable.
We disagree.
Whether to give a particular jury instruction is within
the trial court's discretion, and a reviewing court will not
disturb its decision absent an abuse of that discretion. Myers
- 20 - v. Heritage Enterprises, Inc., 354 Ill. App. 3d 241, 245, 820
N.E.2d 604, 608 (2004). Reversal is only warranted when the jury
instructions have misled the jury and resulted in prejudice.
Myers, 354 Ill. App. 3d at 245, 820 N.E.2d at 608.
In this case, both parties agreed Body Shop's $20-per-
day storage fee was reasonable. Moreover, both parties presented
evidence at trial that Body Shop's $20-per-day storage fee was
reasonable. In fact, the exhibit Country used during closing
argument included the $20-per-day figure to calculate damages.
Perhaps most significantly, the jury awarded Body Shop damages
for storage fees in $20 increments.
Given the record and the jury's verdict reveal the jury
understood the parties agreed the $20-per-day storage fee was
reasonable, we conclude the trial court did not abuse its
discretion by not instructing the jury the $20-per-day storage
fee was reasonable. Further, Body Shop suffered no prejudice
from the court's failure to give this instruction.
C. Body Shop's Claim the Trial Court Erred by Using the Improper Legal Standard When It Awarded Body Shop Attorney Fees and Costs
Body Shop next argues the trial court erred by using an
improper legal standard when it limited Body Shop's request for
attorney fees and costs. Country argues the trial court did not
abuse its discretion.
In general, Illinois courts follow the "American Rule,"
- 21 - which provides each party must bear its own attorney fees and
costs, absent statutory authority or a contractual agreement.
McNiff v. Mazda Motor of America, Inc., 384 Ill. App. 3d 401,
404, 892 N.E.2d 598, 602 (2008). However, when a statute
authorizes an award of attorney fees and costs, the court may
award such fees and costs if they are reasonable. Career
Concepts, Inc. v. Synergy, Inc., 372 Ill. App. 3d 395, 405, 865
N.E.2d 385, 394 (2007). The trial court's decision to award
attorney fees is a matter within its sound discretion, which a
reviewing court will not disturb absent an abuse of that
discretion. McNiff, 384 Ill. App. 3d at 404, 892 N.E.2d at 602.
Section 4-204(d) of the Vehicle Code (625 ILCS 5/4-
204(d) (West 2000)) authorizes release of police tow vehicles
"upon payment of applicable removal, towing, storage, and
processing charges and collection costs." Section 1-111.3 of the
Vehicle Code (625 ILCS 5/1-111.3 (West 2000)) states "[c]ollec-
tion costs consist of reasonable costs incurred in locating the
owner, lienholder, or other legally entitled persons, and
demanding payment, together with court costs and reasonable
attorney's fees as determined by the court." (Emphasis added.)
In this case, the trial court properly recognized that
"collection costs" under section 4-204(d) of the Vehicle Code
include attorney fees and court costs, but not deposition
expenses, witness fees, or office staff time. After reviewing
- 22 - the invoices and numerous fee petitions, the court found Body
Shop's allocation of its billable hours to its counterclaim and
police tow vehicles to be arbitrary. The court also found the
attorneys had not discounted their time pursuant to their
agreement with Body Shop for the entries when they were both
working on the case. Thus, the court found reasonable fees and
costs were $9,948.75 for attorney Rodeen and $6,810.00 for
attorney Lanto.
As a general rule, in cases involving multiple claims
where some claims are filed pursuant to statutes that allow for
attorney fees and others not, an attorney fee petition must
distinguish between the hours spent on the statutory fee-shifting
claims and the other claims. G M A C Mortgage Corp. v. Larson,
232 Ill. App. 3d 697, 703, 597 N.E.2d 1245, 1250 (1992); Rubin v.
Marshall Field & Co., 232 Ill. App. 3d 522, 534, 597 N.E.2d 688,
696 (1992). However, Body Shop contends, although the Vehicle
Code limits recovery for attorney fees and costs to police tow
vehicles, the trial court should have used the "common core"
analysis to award its attorney fees and costs for all the legal
work billed. Body Shop cites Hensley v. Eckerhart, 461 U.S. 424,
76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983), among other cases as
support for its argument. Neither Body Shop nor Country cited
any decisions from this court on this issue.
Even though the trial court rejected Body Shop's
- 23 - argument that the "common core of facts" doctrine should apply,
we need not go into a lengthy discussion of whether the trial
court was correct because of the circumstances of this case. The
trial court awarded a combined $16,758.75 in attorney fees to
Body Shop's attorneys. This award would have been reasonable
even applying the "common core of facts" doctrine.
In Hensley, the United States Supreme Court stated
trial courts should look at the number of hours reasonably
expended on the case multiplied by a reasonable hourly rate in
determining attorney fee awards. Hensley, 461 U.S. at 433, 76 L.
Ed. 2d at 50, 103 S. Ct. at 1939. However, the Court said this
does not end the inquiry because the trial courts should look to
other factors that might cause the trial court to adjust the fee
either upward or downward. Hensley, 461 U.S. at 434, 76 L. Ed.
2d at 51, 103 S. Ct. at 1940. One of these factors is the result
the plaintiff obtained. Hensley, 461 U.S. at 434, 76 L. Ed. 2d
at 51, 103 S. Ct. at 1940.
According to the Court, this factor is very important
when the plaintiff only prevailed on some of his claims. In that
situation two questions must be answered. Hensley, 461 U.S. at
434, 76 L. Ed. 2d at 51, 103 S. Ct. at 1940. First, were the
unsuccessful claims related to the successful claims? Hensley,
461 U.S. at 434, 76 L. Ed. 2d at 51, 103 S. Ct. at 1940. Second,
based on the level of success achieved, were the "hours
- 24 - reasonably expended a satisfactory basis for making a fee award?"
Hensley, 461 U.S. at 434, 76 L. Ed. 2d at 51, 103 S. Ct. at 1940.
The Court stated in some cases a plaintiff's claims for
relief will all involve a common core of facts or will be based
on related legal theories. In those situations, "[m]uch of
counsel's time will be devoted generally to the litigation as a
whole, making it difficult to divide the hours expended on a
claim-by-claim basis." Hensley, 461 U.S. at 435, 76 L. Ed. 2d at
51, 103 S. Ct. at 1940. In those cases, according to the Court,
the court awarding fees "should focus on the significance of the
overall relief obtained by the plaintiff in relation to the hours
reasonably expended on the litigation." Hensley, 461 U.S. at
435, 76 L. Ed. 2d at 51-52, 103 S. Ct. at 1940. The Court stated
if a plaintiff obtained excellent results, his attorney should
receive a fully compensatory fee. However, according to the
Court:
"If, on the other hand, a plaintiff has
achieved only partial or limited success, the
product of hours reasonably expended on the
litigation as a whole times a reasonable
hourly rate may be an excessive amount. This
will be true even where the plaintiff's
claims were interrelated, nonfrivolous, and
raised in good faith. Congress has not
- 25 - authorized an award of fees whenever it was
reasonable for a plaintiff to bring a lawsuit
or whenever conscientious counsel tried the
case with devotion and skill. Again, the
most critical factor is the degree of success
obtained." (Emphases added.) Hensley, 461
U.S. at 436, 76 L. Ed. 2d at 52, 103 S. Ct.
at 1941.
Country and Body Shop agreed the primary issue in this
case was whether Body Shop was entitled to a $50 processing fee
on the 26 vehicles. However, instead of simply claiming $1,300
in damages for these processing fees, Body Shop incorrectly
claimed it was entitled to nearly $500,000 in storage fees from
Country.
While Body Shop succeeded in part, the results it
achieved were minimal. Body Shop sought damages of over
$475,000. The jury awarded Body Shop $11,837.50. Most of this
award was not disputed by Country either before or during the
trial. Even after this court's finding Body Shop is entitled to
$19,700 in storage fees for the Miller vehicle and $18,200 for
the Landau vehicle, Body Shop still achieved minimal results
compared to what it was seeking. The trial court awarded Body
Shop $16,758.65 in attorney fees, which was more than reasonable
based on the facts and circumstances in this case.
- 26 - As for Body Shop's request for posttrial and appellate
attorney fees, the trial court stated in its April 21, 2008,
order:
"[Body Shop's] [m]otion for [a]ttorney [f]ees
[p]ost-[t]rial and on [a]ppeal [(1)] cites no
statutory or case authority for attorney fees
on appeal, [(2)] was not part of a post-trial
motion and [(3)] was not timely filed in
accordance with any agreement of the parties
or [c]ourt[-]ordered extension of time."
As for the timeliness of its filing, Body Shop made the following
one-paragraph statement:
[p]ost-[t]rial and on [a]ppeal was filed on
September 11, 2006, the extended deadline for
filing [p]ost-[t]rial motions and thus was
timely. Furthermore, this [c]ourt (and
others) have found appellate fee petitions
(in the trial court) filed even after a
notice of appeal (or even the appeal) to be
timely."
Body Shop then goes on to cite the following four cases: In re
Marriage of Legge, 111 Ill. App. 3d 198, 443 N.E.2d 1089 (1982);
In re Marriage of Schweihs, 272 Ill. App. 3d 653, 650 N.E.2d 569
- 27 - (1995); In re Marriage of Giammerino, 94 Ill. App. 3d 1058, 419
N.E.2d 598 (1981); and F.H. Prince & Co. v. Towers Financial
Corp., 266 Ill. App. 3d 977, 640 N.E.2d 1313 (1994). However,
Body Shop made no argument as to the relevance of these decisions
in this case. The simple fact the appellate fee petitions in
those cases were allowed does not mean the trial court erred in
this case.
"Bare contentions in the absence of
argument or citation of authority do not
merit consideration on appeal and are deemed
waived. [Citation.] A reviewing court is
entitled to have issues clearly defined with
pertinent authority cited and cohesive
arguments presented (134 Ill. 2d R.
341(e)(7)), and it is not a repository into
which an appellant may foist the burden of
argument and research [citation]; it is
neither the function nor the obligation of
this court to act as an advocate or search
the record for error [citation]." Obert v.
Saville, 253 Ill. App. 3d 677, 682, 624
N.E.2d 928, 931 (1993).
Because Body Shop failed to present a cohesive argument, it
forfeited this issue.
- 28 - III. CONCLUSION
For the reasons stated, we affirm as modified and
remand to the trial court with directions to amend its judgment
to add an award to Body Shop of $19,700 in storage fees for the
Miller vehicle and $18,200 in storage fees for the Landau
Affirmed as modified and remanded with directions.
MYERSCOUGH, J., concurs.
STEIGMANN, J., specially concurs in part and dissents
in part.
- 29 - JUSTICE STEIGMANN, specially concurring in part and
dissenting in part:
I concur in the majority's conclusion as to the (1)
jury instruction and (2) attorney fees and costs.
However, I respectfully dissent from the portion of the
majority's opinion in which it holds that, under the facts of
this case, demand alone was sufficient to cut off the accrual of
storage fees.
In my view, the pertinent question in this case is
whether Body Shop's damages for storage--which was the nature of
the parties' original agreement--should have been tolled when
Country made demand for possession, even though Body Shop had
filed a separate counterclaim for those fees, simply because Body
Shop also asserted lien defenses. I would hold that Body Shop's
damages for such storage fees--under its counterclaim--should not
have been tolled until the date Country proffered legal tender of
uncontested fees or, absent tender, on the date that Country
served Body Shop with notice of its complaint in replevin.
Prior to trial, the trial court granted Country's
motion for partial summary judgment. The court found, in part,
that Body Shop could not maintain any claim for storage charges
for any vehicle after the dates that Country "tendered" payment
by (1) letter in which it made demand and offered to pay the
uncontested charges on 21 of the vehicles, (2) submitting the
- 30 - check for the Jordan vehicle, and (3) verbally offering to pay
the uncontested amounts due on what the parties referred to as
the Rock and Kaeding vehicles. Further, the court determined
that even though Country had never offered to pay any of the
charges for the Miller and Landau vehicles, Country "tendered"
payment when it unilaterally decided that making such an offer
would have been futile. The trial court decided that the appro-
priate date of tender for the Miller and Landau vehicles would be
13 days from the date each vehicle had been towed--which was the
average number of days between the date the other 24 vehicles
were towed and the date Country supposedly tendered payment for
those 24 vehicles.
Body Shop contends that the trial court erred by
finding that Country had tendered payment for all 26 vehicles.
Specifically, Body Shop posits that Country's mere offers were
insufficient to rise to the level of tender. The majority
concludes that under Johnson, Wieland, and Navistar an offer and
demand amount to tender when, as here, the storage fees were
incurred for the benefit of the lienholder. The majority is
correct insofar as those cases apply to situations in which only
a complaint to enforce a lien is filed or a lien is asserted as
an affirmative defense and offer and demand are made when the
storage of the vehicle was not the nature of the parties' origi-
nal agreement. However, when, as here, a separate claim for
- 31 - civil damages is filed to recover storage fees for such agreed-
upon storage, proper legal tender must be proffered in order to
stop the fees from accruing. See Board of Education, Springfield
Public Schools, District No. 186, Sangamon County v. McCoy, 123
Ill. App. 3d 1065, 1074, 463 N.E.2d 1308, 1314 (1984), quoting
Pinkstaff v. Pennsylvania R.R. Co., 31 Ill. 2d 518, 525, 202
N.E.2d 512, 515 (1964) ("'A tender, within the legal meaning of
the word, once made, stops the accrual of interest instanter'").
Thus, under the facts of this case, the trial court erred by
limiting Body Shop's damages as to 25 of the vehicles because
Body Shop filed a counterclaim to recover its storage fees and
Country failed to proffer legal tender on those 25 vehicles.
Similar to the Johnson, Weiland, and Navistar cases,
Body Shop here asserted its liens in response to Country's
complaint in replevin. However, Body Shop also filed a counter-
claim, in which it asserted separate claims for recovery not
based on its lien, seeking to recover civil damages for storage
fees Country accrued before it properly tendered payment, given
the storage was the nature of the parties' original bailment.
Thus, Body Shop should have been entitled to argue that it could
recover storage fees from the time each vehicle was towed until
the date Country tendered payment (or until the accrual of its
fees were otherwise tolled). Nonetheless, had the nature of the
parties' bailment been other than storage, such as traditional
- 32 - repair, Johnson, Weiland, and Navistar would likely preclude
recovery for the storage fees after the date on which Country
made an offer and demand for each of its vehicles (less the
vehicles for which Country never made an offer) because such
storage fees would not have caused Body Shop any inconvenience or
additional expense under such a scenario. Accordingly, the
appropriate analysis in this case would be to first determine,
when, if ever, Country tendered payment on each of the vehicles.
"Tender" is an unconditional offer of payment that must
include the actual production of the full amount due on a partic-
ular obligation. Arriola v. Time Insurance Co., 323 Ill. App. 3d
138, 146, 751 N.E.2d 221, 227 (2001). More specifically, tender
is "'[t]he actual proffer of money, as distinguished from mere
proposal or proposition to proffer it. Hence[,] mere written
proposal to pay money, without offer of cash, is not "tender."'"
McLean v. Yost, 273 Ill. App. 3d 178, 180, 652 N.E.2d 426, 427
(1995), quoting Black's Law Dictionary 1315 (5th ed. 1979). Even
an offer to pay by check is not "legal tender" when an objection
to such tender is made. Margulus v. Mathes, 339 Ill. App. 497,
500, 90 N.E.2d 254, 256 (1950) (actual currency is the sole
medium of payment absent an agreement to the contrary).
Country offered to settle its account with Body Shop as
to the Jordan vehicle by producing a check for $412.50. Body
Shop accepted this check on February 4, 2000, and later cashed
- 33 - it. This check became "legal tender" at the time (1) Country
presented it to Body Shop as payment and (2) Body Shop received
it as a medium of payment it was willing to accept based on the
parties' prior dealings. Accordingly, Country tendered payment
on the Jordan vehicle on February 4, 2000.
Country offered to settle its accounts with Body Shop
as to the vehicles upon which it purported to have tendered
payment by letter on various dates between March 2000 and January
2002. Country's offers were presented via separate letters for
each vehicle, each discussing Country's willingness to pay
certain otherwise agreed-upon charges less Body Shop's $50
processing fee. Body Shop refused to accept each of Country's
offers on these vehicles.
Country's mere offers to settle its disputed charges
with Body Shop were insufficient to rise to the level of legal
tender. See Brown & Kerr, Inc. v. American Stores Properties,
Inc., 306 Ill. App. 3d 1023, 1032, 715 N.E.2d 804, 812 (1999)
("Tender of an amount less than the creditor claims is due is
ineffective when acceptance is conditioned on an admission that
no greater amount is due"). Indeed, Country's letter's were
merely an offer to pay the uncontested amount of its bill at some
future date in the event that Body Shop agreed to accept the
amount offered in each letter. Country did not present cash or
an equivalent that Body Shop was willing to accept in exchange
- 34 - for release of its vehicles. (However, a check may have been the
equivalent based upon the parties' previous dealings with the
Jordan vehicle.) Accordingly, I respectfully conclude that
Country did not tender payment on these vehicles.
as to certain other vehicles by verbally expressing its willing-
ness to pay the uncontested charges less the $50 processing fee.
As verbal promises to pay cannot be "legal tender" (see McLean,
273 Ill. App. 3d at 180, 652 N.E.2d at 427 (tender is the actual
proffer of money, as opposed to the proposal to offer it)),
Country argued to the trial court that it somehow
tendered payment to settle its accounts with Body Shop as to
other vehicles even though it never formally offered to pay the
bills for those vehicles. That is, Country contended that it
tendered payment when it unilaterally determined that Body Shop
would not be willing to accept any offer that did not include the
processing fee. In response to the court's inquiry into how to
determine a tender date for these vehicles, Country asserted that
the court should average the number of days the other 24 vehicles
were held until "tender" was made. As the majority notes, the
court agreed and found that tender was made on these vehicles 13
days after the date each of those vehicles were towed back to
Body Shop for storage.
- 35 - Because, at a minimum, tender requires that an actual
offer have been made, and because Country failed to make any
offer as to these vehicles, Country did not tender payment on
these vehicles either.
Body Shop further contends that the trial court erred
by limiting its storage fees to the date that Country offered to
pay its bill on each individual vehicle. I would agree with Body
Shop as to 25 of the vehicles because, as previously discussed,
tender was not made on those vehicles. However, because Country
did not tender payment, I conclude the appropriate analysis would
be to next determine when, if ever, the $20-per-day storage fee
was tolled.
In this type of case, similar to the situation in which
postjudgment interest is tolled pending appeal by statute when a
judgment debtor tenders payment to the court under the Code of
Civil Procedure (735 ILCS 5/2-1303 (West 2000)), tender of
uncontested charges should likewise stop storage fees from
accruing. See Kramer v. Mt. Carmel Shelter Care Facility, Inc.,
322 Ill. App. 3d 389, 392, 750 N.E.2d 757, 760 (2001) (citing
section 2-1303 of the Code of Civil Procedure). For instance,
had Country presented Body Shop with a check (a medium of ex-
change Body Shop had recently accepted for payment of the Jordan
vehicle) for the amount of the uncontested charges on each
vehicle--as opposed to a letter indicating its intent to tender
- 36 - payment--Body Shop's recovery for storage fees would be limited
to the date that such payment was tendered. Given the record in
this case, the trial court erred by limiting Body Shop's storage
fees to the date Country offered to pay its bill on all the
vehicles (with the exception of the Jordan vehicle). (As previ-
ously stated, Country tendered payment for the Jordan vehicle on
February 4, 2000.)
Nevertheless, the question remains, at what point, if
ever, does the "meter" stop running on a per-day storage fee when
a party's offer to recover its vehicles falls short of tender.
This appears to be an issue of first impression in Illinois.
Considering the interests of both parties, I would conclude that
absent tender, the storage fees stop accruing on the date that
the vehicle's owner serves the party withholding its vehicle with
its complaint in replevin. While I recognize that selecting this
point may seem somewhat arbitrary, in a case such as this the
fees must stop accruing at some point. Absent legal tender--
which, as previously explained, would stop the storage fees from
accruing--service of the complaint in replevin is the most
appropriate point. Otherwise, the party storing the vehicles
would have the perverse incentive to prolong the litigation to
continue accruing fees. For example, if Body Shop had demanded
excessive fees (say, $4,000 for each vehicle) from Country, it
would be intolerable to require Country to either pay the exorbi-
- 37 - tant fees or to simply watch as litigation proceeded as the meter
kept on ticking. However, Country also had the ability, and,
according to the majority, the resources, to stop the fees from
accruing at its discretion by simply paying the uncontested
charges--that is, by proffering legal tender--at the time the
disagreement over the additional $50 fee arose.
The majority claims that, while Body Shop's decision to
retain the vehicles after Country made demand for them was
"legally legitimate," its decision "was not a practical one
considering (1) Body Shop did not need to worry about Country
being 'judgment proof' and (2) the small amount of money (both
disputed and undisputed) at issue when Country demanded the
return of its vehicles." Slip op. at 16. I do not believe
either point is relevant to the analysis. However, even if these
points were relevant, Body Shop had no way of knowing the type of
financial condition Country was in at that time. Indeed, the
fact that it was unwilling to pay what the majority describes as
a "small amount of money" would more likely indicate to a small
business owner that Country was not in the best financial condi-
tion.
Accordingly, as to each of the 25 vehicles that Country
did not tender payment, I would hold that Body Shop's storage
fees were tolled on the date Country served Body Shop with its
complaint in replevin.
- 38 - - 39 -