{ "id": 4291894, "name": "COUNTRY MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. STYCK'S BODY SHOP, INC., Defendant-Appellant", "name_abbreviation": "Country Mutual Insurance v. Styck's Body Shop, Inc.", "decision_date": "2009-11-17", "docket_number": "No. 4\u201408\u20140378", "first_page": "241", "last_page": "259", "citations": [ { "type": "official", "cite": "396 Ill. App. 3d 241" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "624 N.E.2d 928", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "931" } ], "opinion_index": 0 }, { "cite": "253 Ill. App. 3d 677", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5421704 ], "year": 1993, "pin_cites": [ { "page": "682" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/253/0677-01" ] }, { "cite": "640 N.E.2d 1313", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "266 Ill. App. 3d 977", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 887241 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-app-3d/266/0977-01" ] }, { "cite": "419 N.E.2d 598", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "94 Ill. App. 3d 1058", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3128982 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/1058-01" ] }, { "cite": "650 N.E.2d 569", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "272 Ill. App. 3d 653", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 253083 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ill-app-3d/272/0653-01" ] }, { "cite": "443 N.E.2d 1089", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 198", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5438792 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/0198-01" ] }, { "cite": "461 U.S. 424", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11298707 ], "weight": 30, "year": 1983, "pin_cites": [ { "page": "433" }, { "page": "50" }, { "page": "1939" }, { "page": "434" }, { "page": "51" }, { "page": "1940" }, { "page": "434" }, { "page": "51" }, { "page": "1940" }, { "page": "434" }, { "page": "51" }, { "page": "1940" }, { "page": "434" }, { "page": "51" }, { "page": "1940" }, { "page": "434" }, { "page": "51" }, { "page": "1940" }, { "page": "435" }, { "page": "51" }, { "page": "1940" }, { "page": "435" }, { "page": "51-52" }, { "page": "1940" }, { "page": "436" }, { "page": "52" }, { "page": "1941" } ], "opinion_index": 0, "case_paths": [ "/us/461/0424-01" ] }, { "cite": "597 N.E.2d 688", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "696" } ], "opinion_index": 0 }, { "cite": "232 Ill. App. 3d 522", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499060 ], "year": 1992, "pin_cites": [ { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/232/0522-01" ] }, { "cite": "597 N.E.2d 1245", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1250" } ], "opinion_index": 0 }, { "cite": "232 Ill. App. 3d 697", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499230 ], "year": 1992, "pin_cites": [ { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/232/0697-01" ] }, { "cite": "865 N.E.2d 385", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "pin_cites": [ { "page": "394" } ], "opinion_index": 0 }, { "cite": "372 Ill. App. 3d 395", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4269932 ], "year": 2007, "pin_cites": [ { "page": "405" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/372/0395-01" ] }, { "cite": "892 N.E.2d 598", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2008, "pin_cites": [ { "page": "602" }, { "page": "602" } ], "opinion_index": 0 }, { "cite": "384 Ill. App. 3d 401", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4279229 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "404" }, { "page": "404" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/384/0401-01" ] }, { "cite": "820 N.E.2d 604", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "608" }, { "page": "608" } ], "opinion_index": 0 }, { "cite": "354 Ill. App. 3d 241", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3216622 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "245" }, { "page": "245" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/354/0241-01" ] }, { "cite": "913 F.2d 1224", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10539381 ], "year": 1990, "pin_cites": [ { "page": "1233" } ], "opinion_index": 0, "case_paths": [ "/f2d/913/1224-01" ] }, { "cite": "232 Ill. App. 513", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3092527 ], "weight": 13, "year": 1924, "pin_cites": [ { "page": "515" }, { "page": "514" }, { "page": "514" }, { "page": "514" }, { "page": "514-15" }, { "page": "515" }, { "page": "515" }, { "page": "515" }, { "page": "513" }, { "page": "515" }, { "page": "515" }, { "page": "515" }, { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/ill-app/232/0513-01" ] }, { "cite": "505 N.E.2d 1321", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "1324" }, { "page": "1324", "parenthetical": "\"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\"" } ], "opinion_index": 0 }, { "cite": "153 Ill. App. 3d 574", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3607697 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "578-79" }, { "page": "578" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/153/0574-01" ] }, { "cite": "251 N.E.2d 242", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1969, "pin_cites": [ { "page": "249" }, { "page": "249" }, { "page": "249" } ], "opinion_index": 0 }, { "cite": "44 Ill. 2d 105", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2889328 ], "weight": 3, "year": 1969, "pin_cites": [ { "page": "118" }, { "page": "118" }, { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/44/0105-01" ] }, { "cite": "750 N.E.2d 757", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "760", "parenthetical": "citing section 2 - 1303 of the Code of Civil Procedure" } ], "opinion_index": 1 }, { "cite": "322 Ill. App. 3d 389", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 126426 ], "year": 2001, "pin_cites": [ { "page": "392", "parenthetical": "citing section 2 - 1303 of the Code of Civil Procedure" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/322/0389-01" ] }, { "cite": "715 N.E.2d 804", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "812", "parenthetical": "\"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\"" } ], "opinion_index": 1 }, { "cite": "306 Ill. App. 3d 1023", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1336139 ], "year": 1999, "pin_cites": [ { "page": "1032", "parenthetical": "\"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\"" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/306/1023-01" ] }, { "cite": "90 N.E.2d 254", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1950, "pin_cites": [ { "page": "256", "parenthetical": "actual currency is the sole medium of payment absent an agreement to the contrary" } ], "opinion_index": 1 }, { "cite": "339 Ill. App. 497", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5008006 ], "year": 1950, "pin_cites": [ { "page": "500", "parenthetical": "actual currency is the sole medium of payment absent an agreement to the contrary" } ], "opinion_index": 1, "case_paths": [ "/ill-app/339/0497-01" ] }, { "cite": "652 N.E.2d 426", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "427" }, { "page": "427", "parenthetical": "tender is the actual proffer of money, as opposed to the proposal to offer it" } ], "opinion_index": 1 }, { "cite": "273 Ill. App. 3d 178", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258573 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "180" }, { "page": "180" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/273/0178-01" ] }, { "cite": "751 N.E.2d 221", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "227" } ], "opinion_index": 1 }, { "cite": "323 Ill. App. 3d 138", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 171707 ], "year": 2001, "pin_cites": [ { "page": "146" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/323/0138-01" ] }, { "cite": "202 N.E.2d 512", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1964, "pin_cites": [ { "page": "515", "parenthetical": "\" 'A tender, within the legal meaning of the word, once made, stops the accrual of interest instanter' \"" } ], "opinion_index": 1 }, { "cite": "31 Ill. 2d 518", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2833764 ], "year": 1964, "pin_cites": [ { "page": "525", "parenthetical": "\" 'A tender, within the legal meaning of the word, once made, stops the accrual of interest instanter' \"" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/31/0518-01" ] }, { "cite": "463 N.E.2d 1308", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "1314" } ], "opinion_index": 1 }, { "cite": "123 Ill. App. 3d 1065", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5676906 ], "year": 1984, "pin_cites": [ { "page": "1074" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/123/1065-01" ] } ], "analysis": { "cardinality": 1418, "char_count": 48603, "ocr_confidence": 0.759, "pagerank": { "raw": 9.060577029749483e-08, "percentile": 0.5049468135014822 }, "sha256": "4ae9ca6d0e4d43b323cf0b8dd6c4810c8fb97afa573122faa73a3beb5af05a35", "simhash": "1:afeef35c7753d4d7", "word_count": 8210 }, "last_updated": "2023-07-14T21:39:01.503812+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "COUNTRY MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. STYCK\u2019S BODY SHOP, INC., Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE POPE\ndelivered the opinion of the court:\nIn April 2001, plaintiff, Country Mutual Insurance Company (Country), filed a complaint in replevin, asserting defendant, Styck\u2019s 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.\nFollowing 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.\nBody 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\u2019s 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\u2019s $20-per-day storage fee was reasonable, and (3) using an improper legal standard when it limited Body Shop\u2019s 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.\nI. BACKGROUND\nA. General Overview\nThe 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.\nGenerally, 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 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\u2019s 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.\nIn the event Country deemed a policyholder\u2019s vehicle a \u201ctotal loss\u201d 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 \u201cprocessing fee\u201d in addition to the charges it previously assessed for each total-loss vehicle towed back to its place of business and stored.\nBetween 1999 and 2002, Body Shop towed 26 vehicles insured by Country, which Country later deemed \u201ctotal losses.\u201d 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.\nCountry 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\u2019s 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\u2019s 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.\nB. Procedural History\nIn 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 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 \u2014 offers Body Shop refused to accept.\nIn September 2002, Body Shop filed its answer to Country\u2019s complaint in replevin, arguing the sums Country \u201ctender[ed]\u201d 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 \u201cpossessory lien interest superior to that claimed by [Country].\u201d\nIn 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 \u201cprivate tow\u201d and \u201cpolice tow\u201d 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.\nIn 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 right to recover (1) damages for storage charges for the days after Country demanded possession of a vehicle and (2) attorney fees.\nIn July 2003, Body Shop replied, denying Country\u2019s 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 \u2014 203 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/4\u2014 203 (West 2000)), and (3) common-law artisan\u2019s liens. Later that month, Body Shop amended its counterclaim to include the Jordan vehicle.\nThereafter, the trial court ruled on Country\u2019s 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\u2019s return or (2) recover attorney fees for its attorney\u2019s efforts involving the private tow vehicles.\nThe trial court stated in part:\n\u201c[Country\u2019s] [m]otion for [s]ummary [judgment is allowed to the extent that [Body Shop] has no claim for storage charges for any vehicles at issue in the [a]mended [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].\u201d\nIn 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\u2019s 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 \u201cstorage charges at the rate of $20.00 per day from the date of [Body Shop\u2019s] possession of each said vehicle to the date of judgment.\u201d\nAt the August 2003 trial, the parties presented, in pertinent part, evidence in the form of (1) testimony as to (a) 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\u2019s 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\u2019s offer and demand for possession.\nFollowing the parties\u2019 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.\nC. Attorney Fees and Expenses\nIn 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:\n\u201cThe allocations of time to the [Body Shop\u2019s] counterclaim and/or police tows are arbitrary.\nAttorney Patrick McGuire, [Body Shop\u2019s] trade association counsel, did most of the work on the counterclaim prior to March 2003.\nDeposition expenses, witness fees, and office staff/paralegal time do not appear to be part of \u2018collection costs\u2019 as defined by the statute in question.\nSome of [attorney Rodeen\u2019s time is billed at $200 per hour and some of [a]ttorney Rodeen\u2019s and [a]ttorney Lanto\u2019s time is not discounted (per their agreement with [Body Shop]) for the entries when they were both working on the case.\nReasonable fees for *** Rodeen *** are $9,948.75; reasonable fees for *** Lanto are $6,810.00.\u201d\nIn September 2006, Body Shop filed a motion for attorney fees posttrial and on appeal, which the trial court later denied.\nThis appeal followed.\nII. ANALYSIS\nA. Body Shop\u2019s Claim That the Trial Court Erred by Limiting Its Damages\nThe trial court, in ruling on Country\u2019s motion for summary judgment, stated Body Shop had \u201cno claim for storage charges for any vehicles at issue in the [a]mended [c]omplaint or in [No.] 00 \u2014 LM\u20143 from and after the respective dates [Body Shop] admits demand for possession and tender of uncontested charges was made by [Country].\u201d Body Shop argues the court erred by limiting its damages. Specifically, Body Shop contends:\n\u201cSince Country never made any \u2018legal tender\u2019 as to any of the [26] vehicles *** [Body Shop\u2019s] 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].\u201d\nWe disagree with Body Shop.\nBody 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\u2019s return, established Illinois law 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\u2019s 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).\nThe dissent argues the case sub judice is distinguishable in part from Weiland, Navistar, and Johnson because \u201cstorage of the vehicle was not the nature of the parties\u2019 original agreement\u201d in those cases. 396 Ill. App. 3d at 256. First, as discussed later in more detail, storage was the nature of the parties\u2019 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\u2019 agreements, we fail to see the relevance of this distinction as the original nature of the parties\u2019 agreement in the instant case was towing, not storage. Storage of the vehicles was only incidental to the towing of the vehicles.\nOur supreme court\u2019s decision in Weiland stands for the 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.\nIn reaching its decision, our supreme court relied on Johnson. In Johnson, the defendant public garage-automobile repair shop\u2019s 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:\n\u201cPlaintiffs chauffeur, with plaintiffs consent, stored the truck[,] when not in use[,] in defendant\u2019s 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\u2019s request, twice made repairs on the truck, furnishing material and performing labor thereon.\u201d Johnson, 232 Ill. App. at 514.\nOn January 25, 1923, Johnson went to the defendant\u2019s 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.\nOn 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 time defendant held onto the vehicle 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:\n\u201cAfter January 31, 1923 [(the date Johnson demanded possession)], the truck was not stored in defendant\u2019s garage at plaintiffs requests even though it had been stored in defendant\u2019s garage at plaintiffs request prior to the demand being made], but was kept there by defendant contrary to plaintiffs written demand for its return, and solely by virtue of defendant\u2019s claimed lien for $17.25 for said labor performed thereon. If defendant chose to insist upon its right of retainer, given by the law, 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.\u201d Johnson, 232 Ill. App. at 515.\nThe same reasoning applied by the court in Johnson applies in the case sub judice.\nAfter Body Shop refused Country\u2019s demand for possession of a vehicle, Body Shop was no longer storing that vehicle on Country\u2019s 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.\nThe dissent states \u201c[t]he majority concludes that under Johnson, Wetland, and Navistar an offer and demand amount to tender when, as here, the storage fees were incurred for the benefit of the lienholder.\u201d 396 Ill. App. 3d at 256. The dissent 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\u2019s right to continue charging storage fees for the days it retained that vehicle after Country\u2019s demand.\nTheoretically, 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\u2019s 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 seeking those damages pursuant to an affirmative defense or a counterclaim.\nAs our supreme court held in Wetland, 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 (\u201cIn 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\u201d); Consolidated Bearings Co., 913 E2d at 1233 (\u201cWhere a bailee retains the bailor\u2019s property to protect its own interests rather than those of the bailor, it cannot claim compensation from the bailor\u201d).\nAs 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 \u2014 203(g) of the Vehicle Code (625 ILCS 5/4\u2014 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\u2019s right to storage fees after 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\u2019s demands were made.\nBody Shop argues as if it had no choice hut 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 \u201cjudgment proof\u2019 and (2) the small amount of money (both disputed and undisputed) at issue when Country demanded the return of its vehicles.\nWe 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 agree and also find its ruling erroneous.\nThe 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\u2019s 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\u2019s benefit. The complaint in replevin served as a demand for the return of the vehicles named in the complaint.\nCountry 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.\nFor 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 prevented from claiming fees which accrue following the demand.\nThe dissent\u2019s 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. 396 Ill. App. 3d at 256. 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. 396 Ill. App. 3d at 259. The dissent recognizes \u201cselecting this point may seem somewhat arbitrary\u201d for cutting off the accrual of storage fees. 396 Ill. App. 3d at 259.\nThe majority\u2019s 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.\nB. Body Shop\u2019s Claim the Trial Court Erred by Refusing To Instruct the Jury Its $20-Per-Day Storage Fee Was Reasonable\nBody 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.\nWhether to give a particular jury instruction is within the trial court\u2019s discretion, and a reviewing court will not disturb its decision absent an abuse of that discretion. Myers 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.\nIn this case, both parties agreed Body Shop\u2019s $20-per-day storage fee was reasonable. Moreover, both parties presented evidence at trial that Body Shop\u2019s $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.\nGiven the record and the jury\u2019s 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\u2019s failure to give this instruction.\nC. Body Shop\u2019s Claim the Trial Court Erred by Using the Improper Legal Standard When It Awarded Body Shop Attorney Fees and Costs\nBody Shop next argues the trial court erred by using an improper legal standard when it limited Body Shop\u2019s request for attorney fees and costs. Country argues the trial court did not abuse its discretion.\nIn general, Illinois courts follow the \u201cAmerican Rule,\u201d 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\u2019s 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.\nSection 4 \u2014 204(d) of the Vehicle Code (625 ILCS 5/4 \u2014 204(d) (West 2000)) authorizes release of police tow vehicles \u201cupon payment of applicable removal, towing, storage, and processing charges and collection costs.\u201d Section 1 \u2014 111.3 of the Vehicle Code (625 ILCS 5/1\u2014 111.3 (West 2000)) states \u201c[c]ollection 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\u2019s fees as determined by the court.\u201d (Emphasis added.)\nIn this case, the trial court properly recognized that \u201ccollection costs\u201d under section 4 \u2014 204(d) of the Vehicle Code include attorney fees and court costs, but not deposition expenses, witness fees, or office staff time. After reviewing the invoices and numerous fee petitions, the court found Body Shop\u2019s 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.\nAs 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. GMAC 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 \u201ccommon core\u201d 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.\nEven though the trial court rejected Body Shop\u2019s argument that the \u201ccommon core of facts\u201d 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\u2019s attorneys. This award would have been reasonable even applying the \u201ccommon core of facts\u201d doctrine.\nIn 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.\nAccording 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 \u201chours reasonably expended a satisfactory basis for making a fee award?\u201d Hensley, 461 U.S. at 434, 76 L. Ed. 2d at 51, 103 S. Ct. at 1940.\nThe Court stated in some cases a plaintiffs claims for relief will all involve a common core of facts or will be based on related legal theories. In those situations, \u201c[m]uch of counsel\u2019s 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.\u201d 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 \u201cshould focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.\u201d 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:\n\u201cIf 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 plaintiffs claims were interrelated, nonfrivolous, and raised in good faith. Congress has not 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.\u201d (Emphases added.) Hensley, 461 U.S. at 436, 76 L. Ed. 2d at 52, 103 S. Ct. at 1941.\nCountry 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.\nWhile 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\u2019s 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.\nAs for Body Shop\u2019s request for posttrial and appellate attorney fees, the trial court stated in its April 21, 2008, order:\n\u201c[Body Shop\u2019s] [m]otion for [attorney [flees [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.\u201d\nAs for the timeliness of its filing, Body Shop made the following one-paragraph statement:\n\u201c[Body Shop\u2019s] [m]otion for [a]ttorney [f]ees [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.\u201d\nBody 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 (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.\n\u201cBare 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 (134 111. 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].\u201d Obert v. Saville, 253 Ill. App. 3d 677, 682, 624 N.E.2d 928, 931 (1993).\nBecause Body Shop failed to present a cohesive argument, it forfeited this issue.\nIII. CONCLUSION\nFor 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 vehicle.\nAffirmed as modified and remanded with directions. MYERSCOUGH, J., concurs.", "type": "majority", "author": "JUSTICE POPE" }, { "text": "JUSTICE STEIGMANN,\nspecially concurring in part and dissenting in part:\nI concur in the majority\u2019s conclusion as to the (1) jury instruction and (2) attorney fees and costs.\nHowever, I respectfully dissent from the portion of the majority\u2019s opinion in which it holds that, under the facts of this case, demand alone was sufficient to cut off the accrual of storage fees.\nIn my view, the pertinent question in this case is whether Body Shop\u2019s damages for storage \u2014 which was the nature of the parties\u2019 original agreement \u2014 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\u2019s damages for such storage fees \u2014 under its counterclaim \u2014 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.\nPrior to trial, the trial court granted Country\u2019s 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 \u201ctendered\u201d payment by (1) letter in which it made demand and offered to pay the uncontested charges on 21 of the vehicles, (2) submitting the 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 \u201ctendered\u201d payment when it unilaterally decided that making such an offer would have been futile. The trial court decided that the appropriate date of tender for the Miller and Landau vehicles would be 13 days from the date each vehicle had been towed \u2014 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.\nBody Shop contends that the trial court erred by finding that Country had tendered payment for all 26 vehicles. Specifically, Body Shop posits that Country\u2019s 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\u2019 original agreement. However, when, as here, a separate claim for 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) (\u201c \u2018A tender, within the legal meaning of the word, once made, stops the accrual of interest instanter\u2019 \u201d). Thus, under the facts of this case, the trial court erred by limiting Body Shop\u2019s 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.\nSimilar to the Johnson, Weiland, and Navistar cases, Body Shop here asserted its liens in response to Country\u2019s complaint in replevin. However, Body Shop also filed a counterclaim, 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\u2019 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\u2019 bailment been other than storage, such as traditional 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.\n\u201cTender\u201d is an unconditional offer of payment that must include the actual production of the full amount due on a particular obligation. Arriola v. Time Insurance Co., 323 Ill. App. 3d 138, 146, 751 N.E.2d 221, 227 (2001). More specifically, tender is \u201c \u2018[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 \u201ctender.\u201d \u2019 \u201d McLean v. Yost, 273 Ill. App. 3d 178, 180, 652 N.E.2d 426, 427 (1995), quoting Black\u2019s Law Dictionary 1315 (5th ed. 1979). Even an offer to pay by check is not \u201clegal tender\u201d 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).\nCountry 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 it. This check became \u201clegal tender\u201d 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\u2019 prior dealings. Accordingly, Country tendered payment on the Jordan vehicle on February 4, 2000.\nCountry 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\u2019s offers were presented via separate letters for each vehicle, each discussing Country\u2019s willingness to pay certain otherwise agreed-upon charges less Body Shop\u2019s $50 processing fee. Body Shop refused to accept each of Country\u2019s offers on these vehicles.\nCountry\u2019s 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) (\u201cTender 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\u201d). Indeed, Country\u2019s letters 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 for release of its vehicles. (However, a check may have been the equivalent based upon the parties\u2019 previous dealings with the Jordan vehicle.) Accordingly, I respectfully conclude that Country did not tender payment on these vehicles.\nCountry offered to settle its accounts with Body Shop as to certain other vehicles by verbally expressing its willingness to pay the uncontested charges less the $50 processing fee. As verbal promises to pay cannot be \u201clegal tender\u201d (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 did not tender payment on these vehicles.\nCountry 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\u2019s 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 \u201ctender\u201d 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.\nBecause, 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.\nBody 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.\nIn 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 \u2014 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 \u2014 1303 of the Code of Civil Procedure). For instance, had Country presented Body Shop with a check (a medium of exchange Body Shop had recently accepted for payment of the Jordan vehicle) for the amount of the uncontested charges on each vehicle \u2014 as opposed to a letter indicating its intent to tender payment \u2014 Body Shop\u2019s 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\u2019s storage fees to the date Country offered to pay its bill on all the vehicles (with the exception of the Jordan vehicle). (As previously stated, Country tendered payment for the Jordan vehicle on February 4, 2000.)\nNevertheless, the question remains, at what point, if ever, does the \u201cmeter\u201d stop running on a per-day storage fee when a party\u2019s 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\u2019s 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 \u2014 which, as previously explained, would stop the storage fees from accruing\u2014 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 exorbitant 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 \u2014 that is, by proffering legal tender \u2014 at the time the disagreement over the additional $50 fee arose.\nThe majority claims that, while Body Shop\u2019s decision to retain the vehicles after Country made demand for them was \u201clegally legitimate,\u201d its decision \u201cwas not a practical one considering (1) Body Shop did not need to worry about Country being \u2018judgment proof and (2) the small amount of money (both disputed and undisputed) at issue when Country demanded the return of its vehicles.\u201d 396 Ill. App. 3d at 250. 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 \u201csmall amount of money\u201d would more likely indicate to a small business owner that Country was not in the best financial condition.\nAccordingly, as to each of the 25 vehicles that Country did not tender payment, I would hold that Body Shop\u2019s storage fees were tolled on the date Country served Body Shop with its complaint in replevin.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JUSTICE STEIGMANN," } ], "attorneys": [ "Gerald E Rodeen and Reino C. Lanto, Jr. (argued), both of Dilks, Rodeen & Gibson, Ltd., of Paxton, for appellant.", "Brian E Thielen and Barbara Snow Mirdo (argued), both of Thielen, Foley & Mirdo, LLC, of Bloomington, for appellee." ], "corrections": "", "head_matter": "COUNTRY MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. STYCK\u2019S BODY SHOP, INC., Defendant-Appellant.\nFourth District\nNo. 4\u201408\u20140378\nArgued March 18, 2009.\n\u2014Opinion filed November 17, 2009.\n\u2014Rehearing denied December 24, 2009.\nSTEIGMANN, J., specially concurring in part and dissenting in part.\nGerald E Rodeen and Reino C. Lanto, Jr. (argued), both of Dilks, Rodeen & Gibson, Ltd., of Paxton, for appellant.\nBrian E Thielen and Barbara Snow Mirdo (argued), both of Thielen, Foley & Mirdo, LLC, of Bloomington, for appellee." }, "file_name": "0241-01", "first_page_order": 257, "last_page_order": 275 }