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03/13/97 DEBORAH SCHORSCH v. FIRESIDE

March 13, 1997

DEBORAH SCHORSCH, PLAINTIFF-APPELLEE,
v.
FIRESIDE CHRYSLER-PLYMOUTH, MAZDA, INC., DEFENDANT-APPELLANT (CHRYSLER CREDIT CORPORATION, DEFENDANT).



Appeal from the Circuit Court of Du Page County. No. 86--CH--0341. Honorable John W. Darrah Judge, Presiding.

Released for Publication April 18, 1997.

The Honorable Justice Colwell delivered the opinion of the court. Geiger, P.j., and Bowman, J., concur.

The opinion of the court was delivered by: Colwell

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, 123 Ill. Dec. 230, 527 N.E.2d 693 (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, 199 Ill. Dec. 609, 634 N.E.2d 448 (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 ...


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