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Robinson v. Point One Toyota

Court of Appeals of Illinois, First District, Fifth Division

March 31, 2017

EMMA ROBINSON and LATANYA KEMP, Plaintiffs
v.
POINT ONE TOYOTA, EVANSTON, RIVER OAKS TOYOTA and TOYOTA MOTOR CREDIT CORPORATION, Defendants Latanya Kemp, Plaintiff-Appellant,
v.
Toyota Motor Credit Corporation and River Oaks Toyota, Defendants-Appellees.

         Appeal 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.

          OPINION

          HALL JUSTICE

         ¶ 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.

         ¶ 3 BACKGROUND

         ¶ 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 appeal.

         ¶ 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)[1] 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.[2] 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 attorney fee).

         ¶ 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 be compensated.

         ¶ 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

         ¶ 21 ANALYSIS

         ¶ 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 with ...


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