{
  "id": 2630394,
  "name": "FLORENCE CURTIS FITZGERALD, Plaintiff-Appellee, v. LAKE SHORE ANIMAL HOSPITAL, INC., Defendant-Appellant",
  "name_abbreviation": "Fitzgerald v. Lake Shore Animal Hospital, Inc.",
  "decision_date": "1989-05-16",
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    "parties": [
      "FLORENCE CURTIS FITZGERALD, Plaintiff-Appellee, v. LAKE SHORE ANIMAL HOSPITAL, INC., Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE SCARIANO\ndelivered the opinion of the court:\nThis action was brought to recover possession of commercial property leased to defendant. The trial court entered summary judgment in favor of plaintiff and awarded a portion of her attorney fees incurred in enforcing the terms of the lease. Defendant appeals, arguing that the trial court abused its discretion in awarding those fees.\nDefendant has been the tenant in plaintiff\u2019s building, located at 225 West Division Street in Chicago, since it was built in 1966. The facility is a single-use structure with specifically designed features, many of which were created and provided by defendant\u2019s owner, the late Dr. Prasuhn, for use in his hospital. On January 31, 1985, the parties entered into a written lease for a term of one month, renewable by holding over. The holdover tenancy under the lease was on a month-to-month basis and was terminable by either party upon one month\u2019s notice. The pertinent provision in the lease is as follows:\n\u201cAt the termination of this lease, by lapse of time or otherwise, Lessee will yield up immediate possession of the Premises to Lessor, in good condition and repair, loss by fire and ordinary wear excepted, and will return the keys therefor to Lessor at the place of payment of rent. If Lessee retains possession of the Premises or any part thereof after the termination of the term by lapse of time or otherwise, then such holding over constitutes creation of a month to month tenancy, upon the terms of the lease, terminable by either party upon notice to the other party, prior to the beginning of the month next succeeding the date of the notice. Lessee shall also pay to Lessor all damages sustained by Lessor resulting from retention of possession by Lessee. The provisions of this paragraph shall not constitute a waiver by Lessor of any right of re-entry as hereinafter set forth; nor shall receipt of any rent or any other act in apparent affirmance of tenancy operate as a waiver of the right to terminate this lease for a breach of any of the covenants herein.\u201d\nOn August 27, 1986, shortly after Dr. Prasuhn\u2019s death, plaintiff served notice to terminate, requiring defendant to vacate the premises by October 1,1986.\nOn September 26, 1986, defendant and Mary Prasuhn, Dr. Prasuhn\u2019s executor, filed a declaratory judgment against plaintiff in the chancery division of the circuit court of Cook County, claiming that plaintiff\u2019s notice to vacate violated an oral agreement between plaintiff\u2019s attorney and Dr. Prasuhn that defendant would be given a reasonable time to relocate and move before being required to yield possession. Defendant also sought in the same suit to enjoin plaintiff from instituting a forcible detainer action.\nOn or about September 30, 1986, defendant received a \u201cStatement of Rent Due\u201d for October 1986, which it promptly paid and which payment was accepted by plaintiff\u2019s agent.\nOn October 2, 1986, plaintiff filed a forcible detainer action in circuit court, and, on November 5, 1986, she filed a motion for summary judgment thereon.\nOn November 13, 1986, defendant moved in the forcible action, pursuant to section 2 \u2014 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 619), to dismiss the forcible detainer suit or to consolidate it with defendant\u2019s chancery action.\nOn December 3, 1986, the trial judge denied both defendant\u2019s motion to dismiss or consolidate and plaintiff\u2019s motion for summary judgment, required defendant to respond to the complaint within seven days, ordered that discovery be completed by December 31, 1986, and set the case for trial on January 7,1987.\nOn December 12, 1986, defendant filed a second motion to consolidate before another judge in the law division of the circuit court. That motion was continued until January 8, 1987, one day after the then scheduled trial date in the forcible detainer action.\nDuring December, plaintiff brought an emergency motion to compel, and an order was entered regulating, discovery. In response to defendant\u2019s motion to compel, and its emergency motion to extend, discovery, the trial court set a new trial date of February 2, 1987. By agreement of the parties, defendant\u2019s motion to consolidate was continued until after the rescheduled trial date.\nOn December 15, 1986, defendant filed its answer and affirmative defenses and counterclaim in the forcible detainer action. In its affirmative defenses, defendant alleged an oral modification to the written lease allowing it a reasonable time to relocate and, in its counterclaim, it sought damages for having to defend itself in the forcible proceeding. On January 2, 1987, the trial court granted plaintiff\u2019s motion to strike defendant\u2019s affirmative defenses and counterclaim, in which she claimed that the alleged oral agreement for reasonable time to vacate was unenforceable under the parol evidence rule and was unsupported by consideration. (A transcript of that hearing is not included in the record on appeal.) Also on January 2, 1987, defendant filed a motion for summary judgment, arguing that plaintiff\u2019s acceptance of rent after the notice to quit constituted a waiver of her right to possession.\nOn January 8, 1987, plaintiff filed a revised motion for summary judgment, arguing that all the admissible facts in evidence established that she was entitled to possession. Plaintiff also specifically denied making any agreements \u201cexternal\u201d to the lease. On January 9, 1986, defendant filed its amended affirmative defenses, in which it alleged that Dr. Prasuhn relied on the representations of plaintiff\u2019s attorney that defendant would have a reasonable time to relocate and that plaintiff was therefore estopped \u201cfrom sending a notice of termination or filing a forcible entry and detainer action until a reasonable time necessary for the Hospital to relocate has passed.\u201d Plaintiff moved to strike and dismiss defendant\u2019s amended affirmative defenses.\nOn January 26, 1987, the trial judge granted plaintiff\u2019s motion to strike and dismiss defendant\u2019s amended affirmative defenses, finding as a matter of law that there was no consideration supporting the alleged oral modification to the lease, granted plaintiff\u2019s revised motion for summary judgment and denied defendant\u2019s motion for summary judgment. The judge then stayed the judgment for possession in favor of plaintiff until such time as the judge presiding over the still pending chancery action could determine any \u201cequitable issues\u201d that may have existed. On March 24, 1987, the trial judge denied defendant\u2019s motion for reconsideration.\nOn March 25, 1987, the judge sitting in chancery dismissed defendant\u2019s action, stating in the order \u201cthat the complaint should be dismissed with prejudice based on issue preclusion because the allegations of the complaint that are the predicate for the substantive relief sought have already been stricken and dismissed *** in Fitzgerald v. Lake Shore Animal Hospital 86 M1 736961 and because the other elements of issue preclusion are present.\u201d (A transcript of that hearing is not included in the record on appeal.)\nOn April 10, 1987, the parties entered into an agreed order in which defendant was given until August 1, 1987, to vacate the premises in return for its wavier of its right to appeal any judgment or order entered in the litigation except for \u201cissues arising or orders entered with respect to plaintiff\u2019s attorneys\u2019 fees.\u201d On June 11, 1987, the trial judge awarded plaintiff attorney fees in the amount of $25,000 and costs of $1,836.94, pursuant to paragraph 15 of the lease, which provides as follows:\n\u201cLessee shall pay upon demand all Lessor\u2019s costs, charges and expenses, including fees of attorneys, agents and other retained by lessor, incurred in enforcing any of the obligations of Lessee under this lease or in any litigation, negotiation or transaction in which Lessor shall, without Lessor\u2019s fault, become involved through or on account of this lease.\u201d\nPlaintiff had sought attorney fees in the amount of $50,029.94. Defendant appeals the award of attorney fees, and plaintiff cross-appeals the denial of the balance of her attorney fees.\nOpinion\nAlthough acknowledging its waiver of its right to appeal all issues other than those arising from the award of attorney fees, defendant argues that the trial court erred in denying its motion to dismiss or consolidate, in rejecting its argument that plaintiff\u2019s acceptance of the October 1986 rent constituted a waiver of her right to possession, and in ruling that the alleged oral modification was unenforceable. Defendant contends that, had the trial court not so erred, it would have considered \u201cmany important equitable factors\u201d and ruled in defendant\u2019s favor and defendant would not then be liable for plaintiff\u2019s attorney fees; thus, these issues all \u201carise\u201d from the award of attorney fees. Plaintiff responds that defendant has waived these issues and cannot raise them before this court.\nAs previously noted, defendant voluntarily waived its right to appeal from the rulings it now claims are necessary for us to consider in order that we might appreciate how the errors alleged to have been committed by the trial court needlessly required plaintiff\u2019s attorneys to expend inordinate amounts of time and effort into this matter \u2014 at defendant\u2019s expense, as it turns out. But we decline to render what would amount to an advisory opinion by reviewing obliquely those issues that defendant precluded itself from raising directly. Accordingly, the only issue before this court is whether the award of attorney fees and costs was unreasonable without regard to defendant\u2019s assertions of the trial court\u2019s oversights.\nDefendant first argues that it should not be responsible for plaintiff\u2019s attorney fees because a condition precedent to the tenant\u2019s liability for such fees is that the landlord shall be \u201cwithout fault.\u201d In so arguing, defendant ignores the judge\u2019s statement that this contention was \u201cmisguided\u201d and that his clear ruling was that he was basing the imposition of fees pursuant to the provisions of the first part of paragraph 15, set forth above, which render the tenant liable when the fees are \u201cincurred in enforcing any of the obligations of Lessee under this lease.\u201d\nDefendant also contends that the $25,000 award is \u201cgrossly excessive in the circumstances and a harsh miscarriage of justice.\u201d It maintains that plaintiff could have avoided many of the fees by simply serving a second and proper notice to quit. It also asserts that much of the time claimed by plaintiff\u2019s counsel reflects duplication of attorney time and talent, and that there was no need for senior partners to handle this case.\nBy letter dated December 16, 1986, counsel for defendant notified plaintiff\u2019s attorney, Martin Gross, of their intention to call him as a witness at trial, which was then scheduled for January 7, 1987. The status of the case on December 16 was as follows: the accelerated discovery schedule was to expire on December 31, 1986, discovery requests were pending, plaintiff\u2019s motion to strike and dismiss defendant\u2019s affirmative defenses and counterclaims was scheduled for hearing on January 2, 1987, and defendant\u2019s second motion to consolidate was set for hearing on January 8, 1987. Upon receiving the notice, plaintiff contacted Peter Sonderby of Chadwell & Kayser, Ltd. to represent her, and from that point forward, both Martin\u2019s and Son-derby\u2019s firms appeared for plaintiff, sending attorneys from both firms to depositions, hearings and court calls, and billing for a number of conferences with one another. Additionally, Gross\u2019 firm, Martin, Craig, prepared motions and memoranda, and Sonderby argued those motions. Defendant maintains that Martin, Craig should have withdrawn after contacting Sonderby. It also asserts that much of the conference time is noncompensable, because the business transacted at those conferences is not specifically documented.\nPlaintiff responds that the litigation resulted from defendant\u2019s deliberate strategy to delay its relocation and that the amount of her attorney fees is a result of that tactic. She notes that defendant at no time contested her ultimate right to possession of the premises, nor did it raise its waiver defense until January 1987. Plaintiff further asserts that she cannot be denied her fees incurred in enforcing her rights under the lease. She claims that Martin, Craig had no obligation to withdraw until such time as it became clear that Gross\u2019 testimony would be prejudicial to her (107 Ill. 2d R. 5 \u2014 102(b)); that Martin, Craig acted reasonably in not withdrawing, because they were familiar with the case and therefore should not have recused themselves unless it became absolutely necessary; and that it was necessary to share responsibility for the case with Sonderby in order to prepare him adequately in case he had to handle the trial. She contends that no duplication occurred or was charged as part of her petition, and, although the issues in the case were not complex, much time and effort was needed in order to prevail.\nDuring a lengthy hearing on plaintiff\u2019s petition for attorney fees, the trial judge reviewed her attorneys\u2019 billings and reduced the amount of time charged when he felt it was excessive. The court stated:\n\u201cI think when it comes down to at some point Mr. Sonderby, as capable as he is, should have been able to handle it.\n* * *\nI think at some point there\u2019s got to be a cutoff date for work of [the Martin, Craig] firm.\n* * *\n*** [A]s I stated before[,] the reasonableness of this whole thing is the ultimate issue, no matter how much time you spent. I\u2019ve got to say by virtue of the cases that I read, the seriousness of the issue, there\u2019s no question but that you spent the money that you did, and certainly you\u2019re entitled to get reimbursed for those expenditures. I think that predicated upon what I find, and this is as probably a wild a guess I can take, I certainly think that I can see nothing wrong with Mr. Sonderby\u2019s time; and I look at it \u2014 I think all in all, the totalities in this case, reasonable fees would be $25,000; and that\u2019s what I\u2019m going to order, plus costs.\u201d\nA trial court\u2019s determination of reasonable attorney fees and costs will not be disturbed on review absent a showing of abuse of discretion. (Arcadia Upholstering, Inc. v. 165 Restaurant, Inc. (1987), 163 Ill. App. 3d 129, 516 N.E.2d 523.) The party seeking the fees bears the burden of presenting sufficient evidence from which the trial judge can render a decision as to their reasonableness. (Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 983, 518 N.E.2d 424.) A petition for fees must specify the services performed, by whom they were performed, the time expended thereon and the hourly rate charged therefor. (Kaiser, 164 Ill. App. 3d 978.)\n\u201cOnce presented with these facts, the trial court should consider a variety of additional factors such as the skill and standing of the attorneys, the nature of the case, the novelty and/or difficulty of the issues and the 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.\u201d Kaiser, 164 Ill. App. 3d at 984.\nApplying these factors to the instant case, we find that $26,836.94 is an unreasonable award. As the trial judge commented at the hearing to set attorney fees, this was not a complicated case. The parties are in agreement that plaintiff\u2019s right to possession was never at issue and that the dispute was purely and simply over when defendant would vacate the premises, an issue neither novel nor difficult, nor one requiring any extraordinarily skilled legal talent. Although there were a number of motions and court appearances made in the trial court, no legal research and minimal preparation time was needed for many of these, e.g., two identical motions to consolidate were argued, and plaintiff\u2019s motion to strike defendant\u2019s affirmative defenses and her motion to strike defendant\u2019s amended affirmative defenses addressed the same claim, namely, that there had been an oral modification to the written lease. More important, the usual and customary charge for a simple eviction case surely must be far less than the fee that was awarded here, to say nothing of the one demanded, despite its crescendo into what appears to have become a career for the attorneys on both sides.\nThe trial judge did not make clear what billings he was striking as duplicitous or unnecessary; rather, it is quite apparent that, although he characterized it as a \u201cwild guess,\u201d the judge\u2019s resolution was nothing short of Solomonic \u2014 he clove the baby in two. No matter: whether a \u201cwild guess\u201d or Solomonic, such a ruling, in light of the facts of this case, is an abuse of discretion. Without a full, complete and detailed hearing on this matter, and without a ruling on each billing entry, taking into careful consideration the elements delineated in Kaiser and keeping in mind that the plaintiff is the burdened party, there can be no way of determining what a reasonable fee might be in this case. We note also that defendant has not suggested what it considers to be a reasonable award under the circumstances of this case. Accordingly, for all of the reasons expressed herein, the judgment of the circuit court of Cook County is reversed, and this cause is remanded for a hearing on plaintiff\u2019s petition for attorney fees consistent with the views expressed in this opinion.\nReversed and remanded.\nBILANDIC, P.J., and HARTMAN, J., concur.",
        "type": "majority",
        "author": "JUSTICE SCARIANO"
      }
    ],
    "attorneys": [
      "A. Marcy Newman, of Arvey, Hodes, Costello & Burman, of Chicago (Sidney Z. Karasik and Jill Kline, of counsel), for appellant.",
      "W.B. Martin Gross, Thomas H. Donohoe, and David L. Grobart, all of Martin, Craig, Chester & Sonnenschein, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "FLORENCE CURTIS FITZGERALD, Plaintiff-Appellee, v. LAKE SHORE ANIMAL HOSPITAL, INC., Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201487\u20142198\nOpinion filed May 16, 1989.\nA. Marcy Newman, of Arvey, Hodes, Costello & Burman, of Chicago (Sidney Z. Karasik and Jill Kline, of counsel), for appellant.\nW.B. Martin Gross, Thomas H. Donohoe, and David L. Grobart, all of Martin, Craig, Chester & Sonnenschein, of Chicago, for appellee."
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  "first_page_order": 677,
  "last_page_order": 684
}