Court of Appeals of Illinois, First District, Fifth Division
from the Circuit Court of Cook County No. 95 M3 3372 The
Honorable Daniel T. Gillespie, Judge Presiding.
JUSTICE HALL delivered the judgment of the court with
opinion. Presiding Justice Gordon and Justice Reyes concurred
in the judgment and opinion.
1 More than 20 years of litigation and three appeals later,
this case returns to us to review the circuit court's
award of attorney fees and costs to plaintiff Latanya Kemp
(Ms. Kemp) on her claim under the federal Consumer Leasing
Act of 1976 (15 U.S.C. §1667(a) (1994) (CLA)). The sole
issue on appeal is whether the circuit court erred in its
determination of the amount of reimbursable attorney fees and
costs it awarded to Ms. Kemp.
2 Ms. Kemp challenges the award on several grounds. For
clarity sake we address Ms. Kemp's arguments as follows:
(1) whether the circuit court applied the wrong methodology
in calculating the amount of reimbursable attorney fees; (2)
whether the circuit court erred when it; (a) reduced the
amount of costs requested by Ms. Kemp, (b) denied her request
for attorney fees incurred for the fee petition proceeding,
and (c) arbitrarily reduced her attorney fees request; and
(3) whether the circuit court erred when it failed to award
fees for the appellate proceedings.
4 I. Litigation History
5 This court's prior opinions as well as the opinion of
our supreme court provide a detailed factual background to
this litigation. See Robinson v. Toyota Motor Credit
Corp., 201 Ill.2d 403 (2002) (Robinson II);
Robinson v. Toyota Motor Credit Corp., 2012 IL App
(1st) 111889 (Robinson III); Robinson v. Toyota
Motor Credit Corp., 315 Ill.App.3d 1086 (2000)
(Robinson I). We will confine our recitation of the
facts to those pertinent to the issues raised in the present
6 Beginning with their original complaint filed in 1995, the
plaintiffs, Ms. Kemp and Emma J. Robinson (Ms. Robinson or
collectively, the plaintiffs), sought damages and attorney
fees and costs for violations of federal and state law
related to the motor vehicle leasing agreements they entered
into with the defendants, Point One Toyota, Evanston, Toyota
Motor Credit Corporation, and River Oaks Toyota. In their
complaint and amended complaints, the plaintiffs alleged that
various provisions of the motor vehicle leases violated the
CLA, the Illinois Consumer Fraud and Deceptive Business
Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et
seq. (West 1992)) and the Uniform Deceptive Trade
Practices Act (815 ILCS 510/1et seq. (West 1992)).
The plaintiffs also sought certification as a class action.
In addition to her joint CLA claims with Ms. Robinson, in the
first amended complaint, Ms. Kemp alleged an individual claim
under the CLA based on the failure to disclose the actual
amount of the sales tax owed under her vehicle lease.
7 By 2011, all that remained of their lawsuit were the
plaintiffs' joint CLA claims and Ms. Kemp's
individual CLA claim. Following the filing of a third amended
complaint and a hearing on the parties' cross-motions for
summary judgment, the circuit court granted summary judgment
to the plaintiffs on their CLA lease termination and
itemization of other charges claims and Ms. Kemp's CLA
individual claim. The court granted summary judgment to the
defendants, TMCC and River Oaks Toyota (collectively
TMCC) on the plaintiffs' default penalties
claim. Robinson III, 2012 IL App (1st) 111889,
¶ 11. Following an evidentiary hearing, the circuit
court denied the plaintiffs' request for actual damages
on their joint CLA claims but granted actual damages to Ms.
Kemp on her individual CLA claim. The court awarded Ms.
Robinson statutory damages of $1, 000, and Ms. Kemp $1, 596,
in statutory and actual damages based on the failure to
disclose. Ms. Kemp's award reflected a reduction of the
$500 set-off she received from defendant Point One Toyota,
Evanston. Robinson III, 2012 IL App (1st) 111889,
¶ 12. The circuit court awarded the plaintiffs $113, 280
in attorney fees and costs of $420. Robinson III,
2012 IL App (1st) 111889, ¶ 13. The plaintiffs appealed,
and the defendants cross-appealed.
8 On review, this court held that the defendants were
entitled to summary judgment on all of the plaintiffs'
joint claims under the CLA. We vacated the damages and
attorney fees and costs awarded to the plaintiffs on their
joint CLA claims. We affirmed the actual and statutory
damages award to Ms. Kemp on her individual CLA claim. The
case was remanded to the circuit court for a hearing on
attorney fees and costs but only as to Ms. Kemp's
individual CLA claim. Robinson III, 2012 IL App
(1st) 111889, ¶ 84.
9 II. Proceedings on Remand to the Circuit Court
10 A. The Fee Petition
11 Ms. Kemp sought an award of attorney fees in the amount of
$1, 074, 163 based on 2719.4 hours and at a rate of $395 per
hour and an award of costs in the amount of $11,
328.74. In response, TMCC maintained that the attorney
fee award should be based on a rate of $300 per hour for
the10.5 hours that could reasonably be said to have been
spent on Ms. Kemp's single successful CLA claim.
12 B. The Circuit Court's Ruling
13 On June 19, 2015, the circuit court issued its memorandum
opinion and order. After reviewing the history of the
litigation, the court noted that despite the small amount of
her recovery, Ms. Kemp was entitled to "reasonable"
attorney fees under the CLA. 15 U.S.C. §1640 (1994).
14 The circuit court observed that such amount was determined
by " 'the number of hours reasonably expended on the
litigation multiplied by a reasonably hourly rate, '
" or the lodestar figure. While the Supreme Court in
Hensley recommended applying the 12 factors set
forth in Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714 (5th Cir. 1974) abrogated on other grounds
by Blanchard v. Bergeron, 489 U.S. 87, 92-93, 96, 109
S.Ct. 939, 103 L.Ed.2d 67 (1989)., the circuit court noted
that its more recent decision in Perdue v. Kenny A.,
559 U.S. 542 (2010), had questioned the usefulness of the
Johnson factors. See Perdue, 559 U.S. 553
(the Court held that the lodestar figure included most if not
all the relevant factors for determining a reasonable
15 The circuit court recognized that losing on certain claims
did not prevent a party from being a prevailing party and
entitled to attorney fees. Hensley, 461 U.S. at 434.
The court distinguished the failed joint CLA claims from Ms.
Kemp's individual CLA claim, finding that it fit what the
Court in Hensley described as a "distinctly
different claim." Hensley, 461 U.S. at 434. The
circuit court determined that to allow fees to be recovered
for Ms. Robinson's claims only because of the success of
Ms. Kemp's individual CLA claim, which was not even at
issue, was "not only illogical, but clearly against
Congress's intent in limiting attorney's fee awards
to successful claims." In light of the total lack of
success, the court ruled that no time after June 2011 would
16 The circuit court awarded the 10.5 hours, which TMCC
identified as work on Ms. Kemp's claim. The court
determined that between 1995 and 1996, 7.6 hours were
specifically devoted to her claim. The circuit court
determined that Ms. Kemp was entitled to be compensated for
time expended in the circuit court in 1998 contesting the
dismissal motion, which included her sales tax claim and in
the first appeal since the appeal was "a necessary
step" toward preserving her claim, but not the appeal to
the supreme court since the plaintiffs' appeal was solely
based on the unsuccessful claims. Since the sales tax issue
was a minor one in view of the complex issues involved in
this case, the court found 25 hours compensable.
17 The circuit court determined that TMCC's 16-year delay
in stipulating as to the validity of Ms. Kemp's
individual CLA claim required compensation for some but not
all the hours sought. To compensate for the effort to prompt
the situation and the summary judgment on Ms. Kemp's
claim, the court awarded 10% of the hours requested or 33.3
hours, between 2008 and the 2011 appeal (Robinson
III). The circuit court found a total of 76.4 hours was
reasonably necessary for Ms. Kemp's individual CLA claim.
18 The circuit court calculated the attorney fees at the $395
per hour rate requested by Ms. Kemp's attorney, noting
that it had already removed the unsuccessful and unreasonable
hours. The court stated that the hourly rate included
overhead, which was "standard." The court refused
to order reimbursement of costs incurred for faxing, mailing,
photocopying, binding "or other expenses in bringing
this case." The court further refused to order any
reimbursement for costs incurred since the appeal of the June
10, 2011, order since the appeal was completely unsuccessful.
19 The circuit court summarized its findings as follows:
"Having reviewed Plaintiffs' fee petitions, all
briefs and documents filed by both sides for the fee
petition, the record of this case, and having taken into
account, among other things, the nature of this case, the
expertise of legal counsel, the amount involved, and the
results obtained, the court finds the amount of time spent by
Plaintiffs' counsel vastly exceeds what is reasonable.
Further, even that amount awarded in the previous hearing
would now be unreasonable given Plaintiffs' continued
losses. The court thus rejects the inclusion of any
compensable time since the last appeal, due to
Plaintiffs' astonishing lack of success there. The time
spent between 1995 and 2008 attempting to certify a class of
two-time opt-outs is similarly rejected as unreasonable
expense. All work for the joint claims that were lost on the
most recent appeal is considered both severable and severed
from the successful claim and therefore is not compensated.
This includes the appeal to the supreme court; despite the
fact that the plaintiffs 'won' there, it was only on
reversing the dismissal of the unsuccessful claims, the last
of which ultimately failed on the second appeal.
What is compensable is 10% of the time involved with the
first appeal in which the dismissal of [Ms. Kemp's]
successful tax claim was reversed and 10% of the time since
this case was transferred to the municipal district as well
as all work considered to be put distinctly towards the tax
issue. In total, the court awards $30, 178 in attorney's
fees for 76.4 hours worked at $395 per hour. The court also
awards all Cook County filing fees that are unrelated to the
failed appeals as well as the costs of service of process.
This amounts to nearly nineteen times the recovery of [Ms.
Kemp], clearly disproportionate to the amount in controversy,
but also 'roughly proportional' to what vindication
of [Ms. Kemp's] rights could be considered as reasonably
worth and enough to encourage skilled attorneys to take cases
for consumer rights without rewarding undue delay."
20 On July 20, 2015, Ms. Kemp filed a timely notice of appeal
from the court's June 19, 2015, order
22 Under section 1640, Ms. Kemp was entitled to costs and
reasonable attorney fees. 15 U.S.C. § 1640 (1994); see
15 USC § 1667(d) (1980). Where an action is based solely
on a federal statute, it must be determined in accordance