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KNUDSON v. LEMARR

March 20, 1992

KENNETH C. KNUDSON, JR., and CHARLENE FARRELL, Plaintiffs,
v.
BILLY LeMARR, MELVIN BOLAS d/b/a B & M AIRCRAFT, Defendants. BILLY LeMARR, Counterplaintiff, v. KENNETH KNUDSON, Counterdefendant.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 ORDER

 Before the court is Billy LeMarr's ("LeMarr") petition for costs pursuant to Federal Rule of Civil Procedure 54(b). For reasons set forth below, the court denies the motion.

 FACTS

 The amended complaint and counterclaim reveal that LeMarr advertised his 1972 Turbo Super Viking Bilanca single engine plane for sale in the February, 1987 edition of a national magazine. Kenneth C. Knudson ("Knudson"), an Illinois resident, called LeMarr at LeMarr's Arizona home and inquired about the airplane. Knudson expressed interest in purchasing the plane but insisted that it be inspected by a mechanic before he would buy.

 On March 17, 1987, Knudson and Charlene Farrell ("Farrell") traveled to Tucson, Arizona to see the plane and watch the inspection of the plane. Melvin Bolas performed the inspection and stated it was in good mechanical condition. The next day, Knudson took an uneventful test flight of the plane with LeMarr and others in the cabin. That day, he agreed to buy the plane for $ 19,500. Knudson transferred $ 18,000 from his account in Chicago to LeMarr's Arizona account and gave a personal check for the $ 1,500 balance.

 On March 20, Knudson flew the plane again, this time with a flight instructor and Farrell. The plane stalled, forcing an emergency landing at Tucson International Airport. The plane was inspected on the ground after the incident and found not to be flight-worthy. Knudson stopped payment on the check he wrote to LeMarr.

 Knudson filed suit on August 27, 1987. His amended complaint alleged a myriad of theories including violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. ch. 121 1/2, P261 et seq.) and the Arizona Consumer Fraud Act (Ariz. Rev. Stat. Ann. ยง 44-1521 et seq.). On March 3, 1988, LeMarr filed a counterclaim against Knudson. The counterclaim sought $ 1,500 based on breach of contract, stating "that counterdefendant, KNUDSON, has willfully failed and refused to fully perform on the contract although requested to do so."

 The final pretrial order was filed March 24, 1990, and the matter was set for trial on April 22, 1991. On that day, Knudson and Farrell moved to voluntarily dismiss their case. The court granted the motion and the matter proceeded to trial on LeMarr's claim. After hearing the evidence, the jury returned a verdict in the amount of $ 1,500 in LeMarr's favor and the court entered judgment on the verdict.

 LeMarr then petitioned for attorney's fees and costs. The court denied the motion to the extent it sought fees based on Federal Rule of Civil Procedure 11. Alternatively however, LeMarr sought fees as a "prevailing party" under the Illinois Deceptive Trade Practices Act. Both Knudson's current and past counsel have filed objections to the petitions.

 DISCUSSION

 "Fee litigation has become a heavy burden of the federal courts." Ustrak v. Fairman, 851 F.2d 983, 987 (7th Cir. 1988). As this case poignantly demonstrates, fee litigation can prolong a case well beyond its fruition on the merits. "But for now we must continue to slog our way through these fee cases as best we can." Id. This court analyzes this fee petition in a two step process.

 I.

 The Consumer Fraud and Illinois Deceptive Business Practices Act (the "Act") provides that a "prevailing party" may be awarded attorney's fees and costs. Ill. Rev. Stat. ch. 121 1/2, P270a(c) (1991). No doubt a plaintiff who wins his case pursued under the Act can receive an award of fees and costs in appropriate circumstances. See Bandura v. Orkin Exterminating Co., 865 F.2d 816 (7th Cir. 1988). See also Cange v. Stotler & Co., 913 F.2d 1204 (7th Cir. 1990) (fees for appeal). However, this case is not such a case. Here Knudson, when faced with the prospect of going to trial, dismissed all his claims before any action was taken. That left no claim under the Act of any kind as LeMarr's counterclaim was based ...


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