Schorsch v. Fireside Chrysler-Plymouth Mazda, Inc.

No. 2--96--0658

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

DEBORAH SCHORSCH, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellee, )
) No. 86--CH--0341
v. )
)
FIRESIDE CHRYSLER-PLYMOUTH, )
MAZDA, INC., )
)
Defendant-Appellant )
) Honorable
(Chrysler Credit Corporation, ) John W. Darrah,
Defendant). ) Judge, Presiding.
_________________________________________________________________

JUSTICE COLWELL delivered the opinion of the court:

Defendant, Fireside Chrysler-Plymouth, Mazda, Inc. (Fireside),
appeals the trial court's award of attorney fees to plaintiff,
Deborah Schorsch, following a finding of liability based on
Schorsch's claims for conversion, violation of the Motor Vehicle
Retail Installment Sales Act (Motor Vehicle Act) (815 ILCS 375/1 et
seq. (West 1992)), and violation of the Illinois Consumer Fraud and
Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS
505/1 et seq. (West 1992)). The defendant contends that the trial
court erred in awarding fees because the plaintiff's attorney
failed to comply with a court order to delineate the fees for the
claim under the Consumer Fraud Act from fees for other portions of
the case. The Consumer Fraud Act provides for the award of fees to
the prevailing party. We reverse and remand with directions.
The action arose out of the plaintiff's purchase of an
automobile from the defendant, which was financed by Chrysler
Credit Corporation (Chrysler Credit). In November 1987, the
plaintiff filed a three-count complaint against both Fireside and
Chrysler Credit, alleging conversion and violation of both the
Motor Vehicle Act and the Consumer Fraud Act. The complaint was
later amended to include a count seeking "revocation of the retail
installment contract" against Chrysler Credit.
The conversion counts against both Fireside and Chrysler
Credit were tried before a jury in 1992, and a verdict was returned
in favor of the plaintiff. Actual damages of $1,000 and punitive
damages of $3,000 were awarded. On appeal, that award was vacated
by this court based on a finding of faulty service of process which
resulted in violation of the defendants' due process rights.
Schorsch v. Fireside Chrysler-Plymouth, Mazda, Inc., 172 Ill. App.
3d 993 (1988). During the pendency of that appeal, the plaintiff
filed an amended complaint which reflected the dismissal of
Chrysler Credit from the Consumer Fraud Act claim still pending in
the trial court. In August 1992, a trial was held on the
consumer fraud count, after which the trial court found that
defendant Fireside violated the Consumer Fraud Act and awarded the
plaintiff $1,000 in actual damages and $5,000 in punitive damages.
The plaintiff was granted 28 days to file a petition for fees.
In the initial fee petition, the plaintiff's attorney
requested more than $43,000 in fees, which he said represented a
one-third reduction in his total fee for the case to reflect an
approximation of the time spent on the Chrysler Credit portion of
the claim, which is not compensable under the Consumer Fraud Act.
Pursuant to a motion by the defendant Fireside, the trial court
ordered the attorney to differentiate the fees according to matters
related to the consumer fraud count and those unrelated to that
count. The plaintiff's attorney filed an affidavit which he argued
complied with the order. The affidavit stated the attorney's
belief that the fees were reasonable and that the attorney believed
the causes of action to be so intertwined as to make specific
delineation of fees impossible.
The trial court held a hearing on the fee issue. Plaintiff's
counsel again testified that he believed his fee request to be
reasonable based on the amount of time spent on the case, and he
again stated that he believed the causes of action to be so
intertwined as to make delineation of the fees for each count of
the action impossible. On cross-examination, plaintiff's counsel
admitted that certain items included in his fee petition pertained
only to Chrysler Credit, such as a response to Chrysler's motion to
dismiss. But, he insisted that he was entitled to the fees because
the overall matters were "inextricably intertwined."
The trial court awarded fees based on the petition with the
following adjustments: The hourly rate was adjusted to reflect the
rate schedules in effect on the date each entry was made; certain
entries related only to Chrysler were omitted based on admissions
made during cross-examination; and fees delineated as relating to
the first appeal were omitted because the plaintiff was not the
prevailing party in the appeal. The trial court did not
specifically omit all items which were incurred prior to the
initial appeal and did not specifically omit items for which the
plaintiff was not entitled to fees, such as the common-law fraud
count.
On appeal, Fireside contends that the trial court erred in not
dismissing the fee petition because plaintiff's counsel failed to
comply with the court's order to delineate his fees as to matters
specifically pertaining to the Consumer Fraud Act count and those
pertaining to other issues. Alternatively, Fireside contends that
the trial court erred in not requiring a specific delineation so
that fees could be awarded only for those time entries directly
attributable to the Consumer Fraud Act count against Fireside. The
plaintiff responds that the matters were "inextricably intertwined"
pursuant to this court's decision in Ciampi v. Ogden Chrysler
Plymouth, Inc., 262 Ill. App. 3d 94 (1994). Therefore, she
contends, the trial court did not err in awarding fees for time
spent on matters relating to the case as a whole.
We note initially that the Consumer Fraud Act provides the
following in addition to causes of action for actual and punitive
damages:
"Except as provided in subsections (f), (g), and (h)
of this Section, in any action brought by a person under
this Section, the Court [sic] may grant injunctive relief
where appropriate and may award, in addition to the
relief provided in this Section, reasonable attorney's
fees and costs to the prevailing party." 815 ILCS
505/10a(c) (West Supp. 1995).
Subsections (f) and (g) provide that if either party makes a
settlement offer to the other that is rejected, attorney fees will
be available to the prevailing party which rejected a settlement
only if the amount awarded is equal to or greater than the
settlement offer. 815 ILCS 505/10a(f), (g) (West Supp. 1995).
Subsection (h) provides that the plaintiff shall serve written
notice of the nature of the alleged violation and a demand for
relief upon the car dealer, and the dealer shall have 30 days to
tender a settlement offer. 815 ILCS 505/10a(h) (West Supp. 1995).
If the plaintiff rejects the settlement, he or she forfeits the
right to attorney fees unless the subsequent judgment is for an
amount greater than the original settlement offer. 815 ILCS
505/10a (West Supp. 1995).
These amendments were made effective January 1, 1996. See Pub.
Act 89--144, eff. January 1, 1996 (amending 815 ILCS 505/10a (West
1992)). We note that, while the previous version of the statute
provided for attorney fees to be awarded to the prevailing party,
no restrictions such as those found in subsections (f), (g), and
(h) were part of the previous statute. See 815 ILCS 505/10a(c)
(West 1992).
We further note that our standard of review is whether the
trial court abused its discretion in rendering its judgment for
fees. Chesrow v. Du Page Auto Brokers, Inc., 200 Ill. App. 3d 72,
76 (1990). While there is no common-law right to recover attorney
fees and costs, the Consumer Fraud Act provides that the trial
court may award fees to a prevailing party. 815 ILCS 505/10a(c)
(West 1992).
Fireside's contention that the trial court abused its
discretion in awarding fees relies primarily on two second district
cases. In Chesrow, we said that it was incumbent on the plaintiff
to submit sufficient evidence to support her petition for attorney
fees. Because the plaintiff failed to differentiate which fees
were incurred with regard to the Consumer Fraud Act claim and which
related to nonreimbursable claims, the trial court did not abuse
its discretion in rejecting the fee petition in toto. Chesrow, 200
Ill. App. 3d at 78. In Roche v. Fireside Chrysler-Plymouth, Mazda,
Inc., 235 Ill. App. 3d 70, 87 (1992), we reiterated this holding,
finding that, because the plaintiff's attorney failed to
differentiate between the statutory claim and the common-law claims
in his fee petition, the trial court abused its discretion in
awarding fees. We reversed and remanded the cause for a new fee
hearing. Roche, 235 Ill. App. 3d at 87. In Roche, we expressly
noted that, because the plaintiff's attorney in that case was also
the plaintiff's attorney in the Chesrow case, he was on notice of
the requirement that he differentiate his fees. We note that the
plaintiff's attorney in the instant case is the same attorney from
Chesrow and Roche.
The plaintiff relies on this court's decision in Ciampi v.
Ogden Chrysler Plymouth, Inc., 262 Ill. App. 3d 94 (1994), in
support of her contention that such causes of action as those
underlying this case necessarily arise from the same set of facts
and are thus always inextricably intertwined. However, we find
that the plaintiff reads our holding in Ciampi too broadly. In
that case, all of the counts were tried simultaneously, and the
proofs offered for each count were nearly identical.
In the instant case, conversely, the Consumer Fraud Act count
was tried independently of the common-law claims, and the two
trials in fact took place years apart. Plaintiff's counsel was
able to differentiate his time related solely to the appeal of the
common-law counts, but claimed that he was nevertheless entitled to
those fees since all of the counts arose out of a single
transaction. The trial court correctly discounted those hours
because it concluded that the plaintiff was not entitled to those
fees because she had not prevailed in the appeal. We note that the
plaintiff would not have been entitled to those fees even if she
had prevailed on appeal, because they were related only to the
common-law counts of her complaint.
Inasmuch as the plaintiff's counsel was able to differentiate
partly his fees, we find no reason why he could not similarly
differentiate all of the hours spent on this case with regard to
the common-law counts and the Consumer Fraud Act counts, since they
were tried separately. We appreciate plaintiff's counsel's
contention that some of the evidence was the same, but we find that
he failed to differentiate sufficiently his fees so that the
defendant could reasonably defend each entry and so that the trial
court could render a considered decision as to which fees were
compensable and which were not. Instead, he continued to insist,
as he has many times before, that he is entitled to recover all of
his fees under the statute. As this court has said just as many
times, the statute provides only that the prevailing party in a
cause of action brought under the Consumer Fraud Act may recover
fees and costs. This does not, as plaintiff's counsel contends,
mean that all related causes of action are similarly compensable.
Ciampi does not stand for the proposition that all counts in a
consumer action tried together are compensable. Our decision in
Ciampi was based on the specific facts in that case. That decision
does not alter the basic premise that only work specifically
related to a cause of action brought under the Consumer Fraud Act
is compensable.
As this court admonished plaintiff's counsel in Roche, fees
for work on causes of action under the Consumer Fraud Act must be
differentiated from fees for noncompensable causes of action.
Roche, 235 Ill. App. 3d at 87. The burden of proof of entitlement
to fees rests with the plaintiff, and fees can only be awarded for
causes of action specifically related to the Consumer Fraud Act.
Fireside contends that under the Chesrow case we should
reverse the fee award outright and deny fees entirely. However,
the holding in Chesrow was based on the fact that the trial court
had denied fees, and we said that the trial court did not abuse its
discretion. Chesrow, 200 Ill. App. 3d at 78. In Roche, we
reversed the fee award and remanded the case for a new hearing,
finding that the trial court had abused its discretion in awarding
fees without proper differentiation of the Consumer Fraud Act
charges from the noncompensable charges. Roche, 235 Ill. App. 3d
at 87. We find that the instant case is akin to Roche, because the
trial court did not deny fees, but awarded fees on an incorrect
basis. Therefore, we must reverse and remand this cause for a new
fee hearing.
Because we must reverse and remand this cause for a new
hearing on the fee issue, we will address Fireside's contention
that the trial court should have considered its evidence that it
offered to settle the case for $25,000 prior to the Consumer Fraud
Act trial. Fireside notes that under the amended statute the
plaintiff would forfeit any fee award, since the amount recovered
in the trial was less than $25,000. However, we note that this
provision did not take effect until January 1, 1996, several years
after the settlement offer was made and rejected, and indeed after
the case itself was tried. The general rule of statutory
construction is that an amendatory act will be construed as
prospective. Rivard v. Chicago Fire Fighters Union, Local No. 2,
122 Ill. 2d 303, 309 (1988). The presumption of prospectivity is
rebuttable, but only by the act itself, either by express language
or by necessary implication. Rivard, 122 Ill. 2d at 309; United
States Steel Credit Union v. Knight, 32 Ill. 2d 138, 142 (1965).
Further, even where there may be clear legislative intent that a
statute be given retroactive application, the enactment will not be
so applied when to do so would lead to unreasonable or unjust
results. Champaign County Nursing Home v. Petry Roofing, Inc., 117
Ill. App. 3d 76, 79 (1983).
In the instant case, the statute itself evidences no intent by
the legislature to make the amendment retroactive. Further, the
only issue remaining to be resolved at the time this statute took
effect was the fee award. The settlement offer had been made and
rejected several years prior to the amendment of the statute.
Therefore, the relevant act or omission addressed by the amendment
had already occurred prior to the enactment of the legislation.
See Champaign County, 117 Ill. App. 3d at 78. The previous version
of the statute had no comparable provision; it cannot be said that
the plaintiff had any notice that the rejection of the settlement
offer could later result in the forfeiture of attorney fees. Thus,
to apply the statute in this case to deny attorney fees would lead
to unreasonable or unjust results. Hathaway v. Merchants' Loan &
Trust Co., 218 Ill. 580 (1905); Champaign County, 117 Ill. App. 3d
at 79. The statute cannot be applied to this cause, and we find
that the trial court did not err in refusing to give weight to
Fireside's evidence on this issue.
For the foregoing reasons, the judgment of the circuit court
of Du Page County is reversed, and this cause is remanded for a new
hearing. On remand, the circuit court shall take evidence as to
which items in the plaintiff's fee petition are attributable to the
Consumer Fraud Act count and shall award fees only for those items
so differentiated.
Reversed and remanded with directions.
GEIGER, P.J., and BOWMAN, J., concur.