good afternoon everyone before we begin the arguments i may ask counsel for appellant we have an order that was at the church allowing a split argument i believe was between miss harris and mr zimmerman can you please and i will not be presenting any arguments all right that simplifies things thank you the nd question is that the court previously entered in order substituting transform and in fact them is going to suggest that throughout my argument in all likelihood i will refer to cedars as opposed to transform partially i think out of having all right thank you very much with those housekeeping details having been resolved i'll advise both sides that will have fifteen minutes for argument for each side will give another five minutes for applied at the end can and to please keep in mind that  we are going to handle this argument as a normal argument in other words we will not give you a block of time at the beginning of injure uninterrupted time but we will ask questions throughout all right lot fifteen minutes for each side for argument five minutes for a reply and keep in mind that we are not going to follow the practice of some other divisions we're under they d would allow a block of uninterrupted we are going to ask questions as we normally would at any time sure all right what that the counsel for coming are you ready to proceed i am your honor good afternoon this is francis just here on behalf of trams transform co which as we indicated a short while ago was substituted in for skiers this is the nd time the trial court has warded plaintiffs payton lee and reasonable and seventy dollars after violating the law of the case and this court's mandate by again admitting the billing record into evidence and relying on it to determine the reasonableness of the time spent  and fourteen compounding that error the trial court's order violates both the illinois consumer fraud acts prevailing party and reasonable requirements and is not supported by f what is your response to that argument yes your honor in this this same issue was raised in the prior appeal at the time we tendered a one thousand dollars to to the plaintiff to resolve the case this was shortly after the case had been transferred to the municipal court claiming to have decided not to pursue what was originally filed as a nationwide class action at the time we tendered that one thousand dollars settlement plaintiffs responded with a request for fees that exceeded ninety thousand dollars even though  the majority of those fees were incurred in pursuing a failed class action so from the very outset we were not defending a three dollars ten case but rather a case that had he or at least plaintiffs purported speeds in excess of ninety thousand dollars so faced with the choice of either settling the case  for you know at the time ninety five thousand dollars plus the three dollars ten cents we had at least in our view no choice but to continue to kick the case indeed as we pointed out both in our grief and in the prior appeal the judge mason had expressed extreme skepticism over mr ali on what mr claims and it was a result of that skepticism that plaintive chose not to pursue what had started as a nationwide class action but instead an individual run of the mill consumer fraud act in the t court based its award of two hundred and sixty seven thousand four hundred and seventy dollars in current car upon findings that under the illinois consumer fraud act the pla sole prevailing party and the priestess private as the nd appeal and entitled to recover fees for that appeal in spite of the fact that plaintiff was unsuccessful in it hearing because of improperly admitted evidence we never said that he wasn't entitled feet is that correct but you know the significance of a line you know to whom is in his favor well i think there is certainly case law and we cited it in our brief that you look at the totality of what was on appeal and i think the court court's in fees might be appropriate i mean here there were two dollars issues on appeal in two the three dollars ten cents judgment you're correct your honor which was affirmed but the only the original two thousand and thirteen billing record but then additional time for two thousand and thirteen in which the underlying records were not available so there were two errors with regard to the twa any thirteen billing out trees both of which violate this court's mandate obviously there was a new procedure put in place that mr zimmerman's law from beginning multiple claims and both parties that want to lost on different claims it may be inappropriate to find that either party is the prevailing party i am going to i agree with you but i find no authority other than i believe in one of the concurring opinions in hensley that attorneys fees are a separate claim because  under the consumer friendly act is entitle to pray for attorneys fees if they are successful on the underlying claims now it's part and parcel of the same i understand the term current opinion hensle there is some authority for the suggestion that a journey visa substantive and should be viewed almost as a separate count but i find the majority authority for that proposition well that that may be true as to attorneys fees but again in powers where the court concluded that when you complexity of time are considered the most significant issue was the environmental contamination in that case so here i think it's fair to say a mouse significant issue on appeal was the award of attorneys the and the need at the prior and the court agreed with with those arguments and you know as i said concluded that the billing record was inadmissible but that's that's the the certainly the a original handwritten time sheets that were destroyed and cannot be produced was litigated in the nd appeal to and could not be really litigated in the trial court be produced the admission of those exhibits into as evidence is error therefore because they file a deed it overturns the law of the case significantly the trial court not only erred by admitting those two exhibit it compounded that error fire lying on these exhibits to purportedly determine the reasonableness of the time spent and to calculate plaintiff's recover upon counsel's testimony to prove the pre two thousand and fourteen hours spent these exhibits were properly admitted as a secondary evidence that their admission  open thank you the contention that sears could sufficiently test the reliability and accuracy of the exhibits the fifty six and fifty seven because that was an adventur to that plaintiff may introduce secondary evidence if he repels every n koreans of fraudulent design in the destruction of the original time sheets on reading ma'am the trial court contention that the trial court just as likely relied on and freeze in plaintiff's proposed findings of fact and conclusions of law is easily disproved because the trial court's order quotes verbatim it say that it relies on exhibits fifty six and fifty seven as opposed to merely analyzing the billing statement that was attached to the petition for particularly pace six where it starts reasonable miss of the hours prior to two thousand and fourteen and he knew the trout judge begins with a detail analysis of  know too but it's the allegation that this was performed your opponent says the only thing that the trial court relied on was the veracity of the testimony refresh recollection for feeds my question is where in the transcript will i find it fifty six and fifty seven were admitted into evidence they were offered and the memorandum opinion says they were off and i find no good afternoon sharon harris on behalf of the plaintiff appling mario ali on how may it please the court st years violation of the consumer product was affirmed on appeal this was the significant issue on which pla ff prevailed the court found that serious collection of excessive sales tax from consumers was a violation of the consumer fraud act that was a significant issue and sears tries to say that the fees were the significant where heard the testimony of attorneys or men were fifty seven exhibits introduced by playing to the record and from the circuit court was in the courtroom and attorney zimmerman referenced it during his testimony and based upon that testimony and the court's own knowledge of presiding over the trial the matter the court ordered plaintiff's attorneys fees of two hundred and sixty seven thousand four hundred and seventy dollars an abuse of discretion standard applies to  cited by your opponent to the effect that when computing attorneys change you don't only look at the hours and the were performed but you also look at whether a basically a reasonable well you're in the market place who would have charged a client who was taking the fees him or herself that amount of money to recover such a small amount of damages and in this case we got a three dollars damage award versus a couple one hundred thousand feet who's going to you know walk into a lot of us and say i'm willing to pay two hundred one thousand dollars to recover three dollars for me in why it isn't going to court for our analysis i would say that because sense in a class action setting where you are achieving a recovery for a large class at some point this case stopped being a class action and became a three dollars small client i don't think it matters to benefit consumers by allowing attorneys to bring the small claims to advocate for consumers rights and so that large companies don't defraud individuals and i think here the deterrent relied on something other than mr zimmerman's testimony in your brief you declare that the only thing the trial court relied on was mr zimmerman's refresh recollection and unreasonable excessive or lacking in sufficient documentation you get the two hundred and sixty seven thousand four hundred and seventy valor lodestar in any awarded one hundred percent of that so which is it did you rely on something other than mr zimmerman's testimony i mean your retreat from that proposition in your brief no i did not he definitely relied car has its own knowledge of portions of the case number of hours spent in a court room looks a certain pleadings but the court certainly didn't have its own knowledge of the hours necessary to prepare for an appeal the hours necessary to respond to discovery this is all based i believe based in according to your brief mr zimmerman's refresh recollection testimony yes it is the only thing i was trying to say is that the reasonableness of that time is that the the trial court based that on its own observing observing the trial court proceedings not according to the memorandum opinion according to his memorandum opinion he excised because he founded to be lacking in the scription in the fee but titian he found it to be excessive and gave his reasons why an experienced attorney of mr zimmerman stature should not be spending the number of hours he spent researching certain issues that he should have know but in this particular case i'm trying to figure out whether the trial court entered its lodestar based upon the refresh recollection of mr zimmerman after exercis and despite this not a mall or de minimus relief attorney's fees were awarded in the amount of three hundred and thirty thousand dollars and four hundred and twelve million three hundred and thirty thousand four hundred and twelve dollars consideration that i don't agree with that the judge specifically cited kaiser the opinion that has the factors he cited in his opinion and difficult which show specifically that the court considered it for example on page eight the court struck some time for research relative just to discovery that thought was not  difficult and another one the kaiser factors whether the case is important circuit court found that a fear ward would help deter other retailers from such carelessness regarding the taxation class of consumers it was bought for him only and claim from the very beginning of the claim as an individual claim it was known that the maximum amount of actual damages that could be recovered was three dollars ten cents i mean he didn't benefit in the classic consumers the classic action that was proceeding forward other than his was the one that benefited consumers not his case and what's not awful about what mr zimmerman referred to is a garden variety consumer fraud litigation what was novel in this case either sears overcharged three there but there was nothing novel about this case and i had i never lost understand where the novelty was i agree with mr zimmerman this was garden variety consumer fr your honor i think well st of all i want to go back to where you said that this has individual action didn't it didn't benefit consumers it does benefit consumers and that it serves the deterrence for corporations so that they make sure that they are at sears did not have the policy in place in their stores to correctly calculate the tax and then they also didn't have anything implemented to make sure  that i guess the changes were implemented with kmart but not with sears and the court found sears intentionally didn't have anything in place to make sure that their sears stores would calculate the sales tax correctly damage is an issue do not reflect this case the significance that's and their papers in the st appeal and zimmerman testified as to the complexity of this matter there is a complex issues about voluntary payment doctrine weather goes to the issue of is who is it fall for running up the meter in this case was it the plaintiffs fault for demanding ninety five thousand dollars in fees or was it for stalin brad defense that was put on by sears now there has to be determined before one dollar can come to the question i believe of whether awarding one hundred percent of the lodestar is reasonable once you determine the lodestar had lodestar it should be adjusted upward or downward based on a whole series of factors  with approval the federal case of johns it gives a whole list of things that must be considered and the illinois supreme court i believe in run up fees and then claim i'm entitled to them but if these are run up against you you certainly have every right in the world to demand payment for which was sears definitely ran up the fees in this case because when they tendered author of a one thousand dollars they knew that didn't even cover the costs at that point in the case so there's no way that cleanest counsel would it would be reasonable for them to take less than their cost in the case they didn't even cover any fees and claims counsel made town or demand and there was no response to that and instead the sears put ten attorneys on their files to liti years that you know like i said they the damage they said the damage that if you do not collect its significance they took it as a very serious case they took the issues as very significant and they ran up the bill and left sure i didn't get to touch on all the issues but i just want to reiterate that the trial court found the testimony of mr zimmerman credible after a three day evidence  hearing the significant issue was who was it was whether the consumer product was violated there is no error and admitting exhibit fifty six and fifty seven as secondary evidence the court did not go beyond the bounds of the reaming and the court specifically said that the fees were proven by means other than the mason stated i'm not comfortable with mr leon or professional class representative who at the same time the timing firstly does when he's overcharged is called a lawyer she provided mr ali on a with an opportunity to come into court to assuage her concerns and instead plaintiff withdrew the motion for class certification and went to the municipal court now what's important here is that two months later in mandatory court annex arbitration plaintiff sought fees and costs of ninety five thousand dollars eighty nine cents of which were litigating is failed the class action award in serious favor plaintiff paid two hundred dollars to reject it so plaintiff paid two hundred dollars to reject the arbitrators award even though as judge hoffman correctly points out the maximum recovery was going to be three dollars ten cents it was after that that for years tendered defiles and dollars to resolve the matter so unable to settle without paying over ninety thousand dollars  fees plaintiffs plaintiff and part of pursuing a failed class action it was only then that the three dollars ten cents cent claim perceive the two hundred dollars would have been recoverable of its costs if he prevailed at a judicial trial would not i believe that that's correct but i think the point is that this was always about once the case went to municipal court it was always about plaintiff's fees and was never about mr ali on those individual claims and as this court stated in palm and appropriate fee consists of reasonable charges for reasonable services and must be justified by more than a mere compilation of hours multiplied by a fixed our rate for bills issued to a client since this type of data without more it does not provide the court with sufficient information as to their reasonable nissen's this court may recall in palm where the plaintiff offered up an affidavit of a retired judge we don't have any type of evidence like that in this case that the trial court did exactly what this court has repeatedly cautioned against past the term after determining the proprietor propriety of the request about the rates it simply did a  multiple cation accordingly the trial court erred as a matter of law by failing to properly determine the requisite reasonable ness of the fees at a war as a consequence it abused its discretion because its two hundred and sixty seven thousand dollars award by a late the consumer fraud acts reasonable requirement with respect to your question judge  in page five of the trial court memorandum opinion this is the question with regard to the admissibility of secondary evidence at the bottom of pa five the last full paragraph judge donnelly the square i guess the the following series this process of zimmerman never suggest the destruction of the time sheets was fraudulent it never challenges his credit credibility regarding his good faith in the destruction of the time she sears never argues that zimmerman did not work the hours billed and so forth and then he goes on to say given his an unchallenged testimony regarding his good faith with respect to the destruction of time sheets the court finds that zimmerman destroyed the sheets in good faith and repelled every instance of fraudulent design consequently secondary and file a very short memo to the court and says nothing more and you will find the admission arrived in fifty seven and such and such a page of the record i'm not inviting initial brief no no sheets becomes admissible because the evidence the stablished is that zimmerman destroyed the original without any intention to prevent its use as evidence and by repelling every evidence every inference of fraudulent design and its destruction clear you made obviously disagree but the secondary evidence is the time sheets not the testimony i think the opinion is clear in that regard thank you ok any other questions your arguments the matter will be taken under advisement and court will stand assurance