## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Goldfine v. Barack, Ferrazzano, Kirs chbaum & Perlm an , 2013 IL App (1st) 111779

Appellate Court Caption MORTON GO L DFI NE and ADRI ENNE GOL DFI NE, PlaintiffsAppellants and Cross-Appellee s, v. BA RACK, FERR AZZANO
, KI RSC HB AUM AND PERL MAN, PETE R BA RACK, DENNI S FERRAZ Z ANO, HOWARD KI RSC HB AUM, CHARL ES PERL MAN, RAY RAZNER, DEB RA CAFARO, DAVID NADOF F, THOMAS PAGE, DAVID SEL MER, ROBERT SHAPI RO, WENDI SL OANE WEI TMAN, and J I L L ANN COL EMAN, Def endants-A

ppellees and Cross-Appellants.

District & N o. First District, Six th Division Docke t No. 1-11-1779

Filed J une 28, 2013

Held (Note : This syl lab us

con st it u t es no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Plaintiffs proved their claims for a violation of the I llinois Securities L aw and for leg al malprac tice arising from defe ndant law fi rm ’s fa ilure to prese rve plaintiffs’ right to rec over for the secur it i es violation, and the

awa rd of statutory damag es, attorney fee s, costs and expenses was aff irmed; howeve r, the cause was rema nded for application of the corr ect formula for calc ulating the mandatory statutory damag es pursuant to the I llinois Securities L aw, a rec alculation of the awa rd for attorney fee s, and

an opportunity for plaintiffs to file a petition under the I llinois Securities L aw f or additional attorne y

fee s and costs for

defe nding the appea l.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 05-L -6360; the Hon. Dennis J. Burke, Judge , presiding

.J udg ment Affir med in part a

nd reve rsed in par

t; cause r emande d with directions.

Counsel on Appea l L aw Offic es of Edwar d T

. J oyce & Associates, P.C. (Edwa rd T. J oyce and Rowena T. Parma, of counsel), and Martin J

. Ober man, both of Chicag o, and Steven J. P lotkin, of Evanston, for a ppellants.

J enner & Bloc k L L P, of Chicag o (Jeffre y D. Colman, Ba rry L evenstam, and Irina Y. D mitrieva, of c ounsel), for appellee s.

Panel PRES I DI NG J USTI CE LAMPKI

N delivere d the judgme nt of the court, with opinion.
J ustice Reyes conc urre d in the judgme nt and opinion.
J ustice Gordon c oncurr ed in par t and dissented in par

t, with opinion.

OP INION

¶ 1 This is a leg al malprac tice case based on an underly ing cause of action for a violation of the I llinois Securities L aw of 1953 (I llinois Securities L aw) (815 I L CS 5/1 et seq. (West 2010)). Plaintiffs Morton and Adrienne Goldfine brought a leg al malprac tice action ag ainst defe ndants, the law firm of Ba rac k, Fe rrazz ano, Kirschba um & Perlman (B FKP) and sever al partne rs of that law firm, to rec over da mag es plaintiffs sustained a s a re sult of defe ndants’ failure to prese rve plaintiffs’ I llinois Securities L aw cause of action ag ainst Shearson L ehman B rothers H oldings, I nc., and othe rs. ¶ 2 The trial court found that plaintiffs proved their underly ing I llinois Securities L aw claim and ruled in their favor on their leg al malprac tice claim. The trial court awa rded them
statuto ry d am ages for their I llinois Securities L aw claim and attorney fee s, costs and
expenses. ¶ 3 On appea l, plaintiffs arg ue that the trial court err ed (1) in calc ulating the amount of their mandatory statutory awa

rd for damag es under the I llinois Securities L aw, and (2) in denying their full claim for

attorney fee s, costs and expenses. ¶ 4 In their cross-a ppeal, defe ndants argue that the awa rd of interest, attorney fee s and costs should be reve rsed beca

use the fee -shifting and interest provisions of the I llinois Securities L aw are punitive and coer cive and, thus, fall within the cate g ory of damag es that are barr ed b y statute in leg al malprac tice actions. Def endants also argue that the trial court err ed i n fi n d i n g that plaintiffs proved (1) their underly ing I llinois Securities L aw claim wher e M r. Goldfine’s relianc e on his brok er ’s repr esenta tions conce rning stock purcha ses was not

rea sonable, and (2) that defe ndants’ leg al malprac ti ce proxi mately cause d plaintiffs’ damag es.

-2-¶ 5 For the re asons that follow, we reje ct def endants’ argument that the award of statutory damag es under

the I llinois Securities L aw is bar red by statute in leg al m alpra ctice actions. We also aff

irm the trial court’s finding s that plaintiffs proved their underly ing I llinois Securities L aw claim and leg al malprac tice action. Fur ther, we aff

irm the trial court’s awa

rd of plaintiffs’ costs and expenses. Howeve r, we fi nd that the trial court failed to apply the

corr ect mathematica l formula to calc ulate plaintiffs’ mandatory statutory awa rd for damag es under the I llinois Securities L aw. Specifica lly
, the clea r and unamb i gu o u s languag e of section 13(A) of the I llinois Securities L aw (815 I L CS 5/13(A) (West 2010)) require d the circ uit court to calc ulate plaintiffs’ awa rd of 10% interest on the full amount they had paid for the stocks at issue befor e the circ uit court deducte d the amount plaintiffs h ad rec eived from a settlement. In addition, the trial court’s attorney fee s awa rd was based on a perc entag e of the court’s incorre ct damag e calc ulation. Acc ording ly
, we reve rse the trial court’s awa rd of damag es and attorney fee s and rema nd this matter to the trial court to calc ulate plaintiffs’ section 13(A) damag es consistent with this order a nd to de termine a

rea sonable amount of attorney fee s based on the c orre ct amount of damag es.

¶ 6 I . BA CKGROUND ¶ 7 The “ca s e wi t h i n a ca s e” o n wh i ch plaintiffs’ malprac tice claim is predic ated wa s plaintiffs’ cause of action ag ainst Shearson L ehman Br others Holdings, Inc. (Shear son), and other individuals and firms (the Shearson defe ndants) for violations of the I llinois Securities L aw. That cause of actio n arose from plaintiffs’ 12 separ ate purcha ses of First Capital Holdings (F CH) stock throug h Shearson broker M i chae l Steinberg
, who was the office
manag er of Shearson’ s Peoria, I llinois
, office and a close persona l friend o f t h e plaintiffs. Plaintiffs’ purcha ses wer e made betwee n 1987 and 1990 and totale d $4,745,254.45. ¶ 8 In the spring of 1991, FCH filed for b an kru p t cy , an d p l ai n t iffs’ FCH stock bec ame worthless. In 1991, plaintiffs reta ined the defe ndant law firm BF KP to: identify and evaluate plaintif fs’ claims arising from their investments in FCH stock; neg otiate a settlement of those clai m s with the Shearson defe ndants; and–if no settlement could be eff ecte d–prese rve plaintiffs ’ claims until they reta ined a conting ent-fe e lawyer to file suit. BF KP did not achie ve a se ttlement of plaintiffs’ c laims. ¶ 9 When plaintiffs reta ined BF KP, p l ai n t i ff s h ad a v i ab l e claim ag ainst the Shear son def en d an t s for resc ission under the I llinois Securities L aw. The I llinois Securities L aw mandates that victims of securities fra ud are entitled to rec over their entire stock purcha se price
, plus 10% interest on that purcha s e fr om the date of the purcha ses to the date of judgme nt, plus their attorney fee s, costs and expenses. 815 I L CS 5/13(A) (West 2010). Howeve r, in order to bring that I llinois Securities L aw cl ai m , t he purcha ser must serve a notice of r escission within six months of lear ning of his right to this statutory reme dy . 815 I L CS 5/13(B) (West 2010). BF KP, howeve r, never serve d the resc ission notice, never advised plaintiffs to do so, and ne ver sought to toll the time to serve the resc ission noti ce. ¶ 10 In 1 9 9 2
, p l ai ntiffs hired new counsel to prosec ute their claims ag ainst the Shear son defe ndants in the u n d erlying case

. Although plaintiffs’ complaint included the I llinois Secur i t ies L aw claim, that claim was dismiss ed by the trial court as time-barr ed, and that

-3-dismiss al was ultimately aff irmed on appea l. Goldfine v. Steinberg
, No. 1-00-1004 (2004) (unpublished order under Supreme Court Rule 23). Meanwhile, in 1994, plaintiffs filed the instant malprac tice action ag ainst defe ndants BF KP and its partne rs to rec over the damag es plaintiffs would have rec overe d under the I llinois Securities L aw if defe ndants’ neg lige nce had not barr ed plaintiffs from pursuing their I llinois Securities L aw claim. In 1996, while the underlying Steinberg case was pendin g , a stipulated order was enter ed that delayed the malprac tice trial until after the re solution of the Steinberg case

. ¶ 11 In 1999, the trial court dismiss ed plaintiffs’ rema ining claims in the Steinberg case , and plaintiffs appea led. I n 2004, this court remanded to the tr ial court two of pla intiffs’ claims
ag ainst the Shearson defe ndants–common law fra ud and violation of the I llinois Consumer Fr aud and Dec eptive Business Practice s Act (Consumer Fr aud Act) (815 I L CS 505/1 et seq

. (West 2004)). In 2007, plaintiffs settled their non-I llinois Securiti es L aw claims in the underlying Steinberg

case for $3.2 million. ¶ 12 There afte r, this malprac tic e ca s e proce eded to a bench trial. The trial court hear d both plaintiffs’ “ca se within a case ” claim under the I llinois Securities L aw and their malprac tice claim ag ainst BF KP and its partne rs for failing to prese rve the I llinois Securities L aw claim in the underlying Steinberg case

. Over near l y eight wee ks, the court heard numerous witnesses, both live and videotaped, an d th rough deposition testimony
, and the parties introduced voluminous exhibi ts. ¶ 13 On J ul y 1 2
, 2 0 1 0, the trial court ruled that, afte r the plaintiffs’ first purcha se of F CH stock, the Shearson defe ndants viola te d th e I ll in o is Se c u

ritie s L aw conce rning plaintiffs’ next 11 FCH stock purcha ses. The trial court acc epted and cre dited Mr. Goldfine’s testimony and found that plaintiffs wer e entitled to relief under Section 13(A) of the I llinois Securities L aw. The court also hear d extensive testimony from the defe ndant lawy er s wh o had handled plaintiffs’ repr esentation and expert witnesses for both sides. The court found that BF KP had brea ched its duties to plaintiffs by neg lige ntly failing to car ry out its assig nment to prese rve plaintiffs’ I llinois Securities L aw claim and that the loss of that claim had been cause d by BF KP’s neg lige nt conduct. The trial court ruled that plaintiffs’ damag es would be calc ulated

acc ording to the following formula: plaintiffs’ $3.2 milli on settlement wou l d be deducte d from the total t h ey h ad paid for their 11 stock purcha ses, and then 10% interest would be calc ulated on the rema ining amount based on the various dates of those stock purcha ses. The
court order ed the parties to calc ulate the exact amount to enter in a judgme nt order
, order ed plaintiffs to prepa

re the judgme nt order
, and g ave plaintiffs leave to file their p et i t ion for attorney fee s. ¶ 14 Plaintiffs moved the court to modify or clar ify its J uly 2010 order

. Plaintiffs argued, inter alia
, that the trial court’s damag e calc u l at i on formula was err oneous and contra ry to prec edent as set forth i n Kugler v. Southmark Realty Partners III
, 309 I ll. App. 3d 790 (1999). There afte r, the parties filed briefs on the damag e calc ulation i s s u e an d various motions and response s conce rning p l ai n tiffs’ petition for attorney fee s. On September 22, 2010, afte r arg

ument was held on plaintiffs’ motion to modify the J uly 2010 order
, the trial court denied plaintiffs’ mot ion and ordered the m to file their petition for attorney fee s and
costs. Specifica lly
, the t rial court stat ed that this leg al m alpra ctice case was “very unique” and distinguishable from Kugler

. Moreove r, the trial court agree d with the specia l

-4-concur renc e in Kugler and thought it would be a windfall and unfair to defe ndants to apply the Kugler damag e calc ulation formula in the instant case

. Ac co rd i n gl y , the trial court adopted defe ndants’ damag e calc ulation and held that t h e co urt would wait for plaintiffs’ petition for attorne y

fee s and costs bef

ore e nteringjudgme nt. ¶ 15 After argument was held on plaintiffs’ petition for attorney fee s, costs and expenses, the trial court ruled, on May 17, 2011, that a contingenc y fee of 40% of the re cover ed amount

was rea sonable. The court stated that plaintiffs’ counsel would have rec eived a conting ency fe e pursuant to their reta iner agree ment and it was difficult to separ ate the time plaintiffs’ counsel had allotted to either the malpract ice or I llinois Securities L aw claim. The court denied costs and expense s t o o n e of plaintiffs’ counsel beca use the court could not “dete rmine the specific nature of the costs and whether the costs specific ally perta ined to this

case .” The court, howeve r, g rante d in full costs and expenses to the plaintiffs’ other counsel. ¶ 16 On May 24, 2011, the trial court enter ed judgme nt in this case and adopted the secur ities purcha se price and interest calc ulation pr oposed by defe ndants. Specifica lly
, the trial court t o o k t h e sum of $4,506,602.05, which repr esente d the total amount of plaintiffs’ 11 stock purcha ses made in 1988, 1989 and 1990, and deducte d $3.2 milli on, which was the amount of t h e 2007 Steinberg settlement. Howeve r, beca use those stocks wer e purcha sed on 11 differ ent dates, the trial court appl i ed a “propor tionate reduc tion of $3,200,000.00 (71.00693%) ” to eac h purch as e to obtain a “net” purcha se price for eac h of the 11 stock purcha ses. The t o t al sum of those net purcha se price s was $1,306,602.29. Using the net p u rcha se price for eac h of the 11 purcha ses and the corr esponding date of sale for eac h purcha se, the trial court then calc ulated a 10% annual interest awa rd, throug h May 24, 2011, of $2,785,149.91. This resulted in a total section 13(A) awa rd, befor e attorney fee s, costs and
expenses, of $4,091,752.19. Fur thermore
, the trial court awa rded plaintiffs attorney fee s of 40% on the $4,091,752.19 awa rd, or $1,636,700.80, and $207,167.28 in costs and expenses. Acc ording ly
, the co u rt enter ed a total awa rd of $5,935,620.10 in favor of plaintiffs and
ag ainst defe ndants. ¶ 17 Plaintiffs appea led, contending the trial court failed to calc ulate their statutory damag es

acc ording to the mathematica l formula in section 13(A) of the I llin o i s S ecurities L aw. Plaintiffs als o argue the trial court err ed by failing to awa rd rea sonable attorney fee s, expenses and costs. De fe n d an ts cross-a ppeale d, contending that the awa rd of interest, attorney fee s and costs should be reverse d bec au s e t h e fee -shifting and int ere st provisions of section 13(A) are punitive and coer cive and, thus, fall within the cate g ory of damag es that

are barr ed by

statute in leg al malpra ctice a ctions. Defe ndants also ar gue that the tria l court

err ed in finding that plaintiffs proved their underly ing I llinois Securities L aw claim wher e Mr. Goldfine’s relianc e on his broker ’s repr esentations conce rning stock purcha ses was not

rea sonable, and wher e plaintiffs failed to prove that any malprac tice proxi mately cause d any damag e.

¶ 18 I I . ANALYSI S ¶ 19 A. Calculation of Sec tion 13(A) Damag es ¶ 20 Plaintiffs argue that the tria l court misapplied the sec tion 13(A) damag e for mula when

-5-the court deducte d from plaintiffs’ stock purcha se price the $3.2 milli on settlement plaintiffs

had rec eived in 2007 from the Steinberg case befor e the court calc ulated the mandatory 10% annual inter est. We agree

. ¶ 21 “A leg al malpra ctice pla intiff is entitled to recove r those sums which would have been

rec overe d if the underlying suit had been succe ssfully prosec uted.” W eisman v. Schiller, Ducanto & Fleck

, 314 I ll. App. 3d 577, 580 (2000). Her e, the trial court found that plaintiffs proved their “c as e wi t h i n a case ,” i.e.
, that they would have preva iled on their I llinois Securities L aw claim ag ainst the Shearson defe ndants and wer e entitled to statutory damag es pursuant to section 13(A) based on $4,506,602.05 in FCH stock purchas es

. Section 13(A) provides, in per

tinent part:
“A. Eve ry sale of a security made in violation of t he provisions of this Act shall be voidable at the elec tion of the purcha ser ***; and the i s s u er , controll ing person, underwriter, deale r or other person by or on behalf of wh o m s ai d sale was made, and

eac h underwriter, deale r or salesper son who shall have participated or aided in any way in making the sale, a

nd in case the issuer, controlling person, underwriter or deale r is a
corpor ation or unincorporated association or org anization, eac h of its officer s and direc tors (or persons perf

orming simil ar functions) who shall have participated or aided in making the sale, shall be jointly and seve rally

liable to the purc haser

as follows: (1) for the full amount paid, toge ther with interest from the date of payment for the securities sold at the rate of the interest or dividend stipulated i n t h e s ecurities sold ( or if no rate is stipulated, the n at the rate of 10% per annum) less any income

or other amounts rece ived by the purchaser on the securities
, upon offe r to tender to the seller or tender into court of the secur ities sold or, wher e the secur ities w ere not

rec eived, of

any contra ct made in r espec t of the sale; or (2) if the purchaser no longer owns the securities, for the amounts set forth in clause ( 1) of this subsection A less any amounts rece ived by the purchaser for or on account of the disposition of the securities .” (Empha ses added.) 815 I L CS 5/13(A) (West 2010). The issue here is the proper interpre tation of the I llinois Securities L aw, which is a question of law and, thus, revie wed by this court de novo

. W oods v. Cole
, 181 I ll. 2d 512, 516 (1998). ¶ 22 In construing the statute, the court must look p ri m ar i l y t o t h e words of the statute as

e v id e n c e o f th e le g islature’s intent. Lemont-Brombe rek Combined School District No. 1 1 3 ( a )

v. W alter
, 279 I ll. App. 3d 847, 849 (1996). J udicial construction is only nece ssary when the
st at ute is unclea

r or ambiguous. Buck

ellew v. Board of Education of George town-Ridge Farm Community Unit School District No. 4
, 215 I ll. App. 3d 506, 511 (199 1 ). The court must construe the statute as it is and, reg ardle ss of the court’s opinion reg arding the desirability of the results surrounding the operation of the statute, the court “may not, under the guise of construction, supply omissions
, reme dy defe c ts , a nn e x n e w p r o v is io n s , substitut e differ ent provisions, add exceptions, limit ations, or conditions, or otherwise chang e the law so as to depar

t from the plain mea

ning of the languag e employed in the statute.” Id

. ¶ 23 This court pre viously construed se ction 13(A) of the I llinois Securities L aw in Kugler
, 309 I ll. App. 3d 790. The trial court in Kugler found that the broker defe ndants wer e liable

-6-u n d er the I llinois Securities L aw to the class of plaintiffs who had purcha sed secu ri t i es

during the y ear s of 1985 and 1986. Id

. at 792. On May 11, 19 9 8
, t h e t rial court enter ed judgme nt for plaintiffs i n t h e am ount of $902,759.48, pursuant to section 13(A) of the I llinois Securities L aw. Id

. at 793. On appea l, the defe ndants challeng ed the trial court’s calc ulation of damag es, contending the trial court had failed to deduct $2,952.05 in acc rued interest and $12.50 in sale proce eds from the damag es wh ere two class members, who orig inally paid in excess of $7,000 for the secur ities, sold them for $12.50 on Dec ember 31, 1995. Id . at 793, 798. ¶ 24 The majority opinion in Kugler found that the clea r and unamb ig

uous languag e of sec tion 13(A) provided that the statutory damag es wer e calc ulated as the full amount the purcha ser had paid for his secur ities, plus acc rued interest from the date of pay ment of t he securities
at 10% per annum, less any income or other amounts rec eived upon the dispositi on of the

secur ities. Id

. at 797. Although the majority opinion thought “a purcha ser who sells his

sec u ri t i es s h o uld be entitled only to interest up to the date of sale and not beyond,” the majority would not “depa rt from the plain meaning o f the statute” and could not “supply omissions
, reme dy defe cts, or otherw ise chang e the law.” Id

. at 797-98. See also Ry on M. McCabe, Statutory Damages U n d er the Florida Securities and Inve stor Protection Act: How
to Calculate and Apply Rescission Damages
, 83 Fla. B. J

. 32, 33-36 (Oc tober 2009) (citing Ku gle r and noting that I llinois
, like Florida
, provides a unique measure of statutory resc issio n damag es and power ful tool for investors that differ s from traditional compensatory or out-ofpocket damag es); 12A J oseph C. L ong , Blue Sky L aw § 9:15 n.10 (June 2010) (noting that the statutes in Florida
, I llinois and Texas do not require a deduction of interest ear ned on the
proce eds of the sa le of the or igina l securities). ¶ 25 The specia l co n cu rr ence in Kugler disag ree d with the majority ’s interest ca lculation, finding it to “constitute a windfall and an eff ective double rec overy to t h e purcha ser.” Kugler
, 309 I ll. App. 3d at 798 (Gordon, J
., specia lly concur ring ). The specia l c oncurr ence argued that interest should be char g ed ag ainst the orig inal purcha se price up to the time the

secur ity is resold. Once the security is resold, interest should be charg ed up to the d ate of judgme nt based on the differ ence betwee n the origi n al p u rcha se price and the amount

rec ouped on the resa le. Id

. Acc ording to the specia l concur renc e, the languag e o f s ection 13(A)( 2) rele ases the seller of the secur ities from an y o b l i gati on to repa y the amount the purcha ser rec overe d on any resa le and, thus, it “natur ally follows that the interest obligation is corr esponding ly diminis hed.” Id

. at 799. Neve rtheless, the specia l concur renc e thought the
amount of m o n ey i n dispute was de minimus and did not war rant a rema

nd or adjustm ent. Id

. T h e ca l culation formula pref err ed by the specia l concur renc e seems to be: damag es = (orig inal purcha se price + statutory interest from purcha se to judgme nt date - an y income

rec eived on the secur ities) - (value of secur ities when resold + statutory interest from resa le
to judgme nt date)

. The specia l concur renc e’s formula would supply a mecha nism, which is
not provided in the clear langua g e of the s tatute, t o reduc e a damag e award by the amount of intere st earne d on the proc eeds of a re sale. ¶ 26 To support the proposition that section 13(A) did not need to be co n s t ru ed to include interest on the proce eds of the resa le, the specia l concur renc e relied on a dictionary definition

o f t he word “intere st” as a “ ‘price paid for borrowing money g ener ally expressed as a

-7-perc entag e of the amount borrowe d paid on one y ear .’ ” Id

. (quoting Webster’s Third New

International Dictionary 1178 (1993))

. The specia l concur renc e co n tended that beca use a 13(A) damag e awa

rd is reduc ed by any money rec overe d on resa le, the amount borrowe d or principal for purposes of calc ulating 13(A) interest must also ref lect that reduc tion. Id

. The specia l concur

renc e’s rationale
, howeve r, is not persua sive. Section 13(A) does not addre ss situations involving borrowe d money but, rathe r, the sale of secur ities in violation of

secur ities la

w. Acc ording ly
, the more apt definition for interest here is “an excess over and above an exact equivalent.” Webster’s Third New International Dictionary 1178 (1993); see also Bla ck’s L aw Dictionary 816 (7th ed. 1999) (def ining interest as the “compe nsation fix ed by agree ment or allowed by law for the use or detention of money , or for the loss of money by one who is entitled to its use”). ¶ 27 To the extent that any acc rued interest results in a surplus awa rd to a plaintiff, the clea

r languag e of the statute indicates that the leg islature chose not to permit the liable defe ndant
to reap the benef

its of the plaintiff’s g ood fortune in obtaining income on the secur ities
g ratuitously or the plaintiff’s eff orts to minimi ze the harm done by the defe ndant. In choosing who should rec eive any windfall from a surplus interest awa rd, i.e.
, compensation over and above that nece ssary to compensate the plaintiff for injuries sustained by the defe ndan t ’s tortious conduct, the leg islature deeme d the plaintiff far more deser ving than the defe ndant. The leg islature, howev e r , c urtailed any double rec overy by requiring the amount of any resa le

o r income rec eived on the secur ities to be deducte d from the 13(A) damag e awa rd. T h e leg islature could have easily require d any surplus interest awa rd to a lso be offse t but chose
not to do so. Even if we wer e so inclined, we are in no position to bring about such a chang e. ¶ 28 Her e, the trial court cited the Kugl er s p ec i al co n cu rr en ce t o s upport the intere st calc ulation use d in the instant case

. Howeve r, the trial court’s attempt to a pply the formula
sug g ested b y th e Ku

gle r s p e c ial c o ncurr ence , which addre ssed a situation involving the resa le of secur ities, to the instant situation, which conce rns the deduction of a settlement aw ar d,

reve als the err oneous rea soning underly ing the specia l concur

renc e’s position. When the situation involves a resa le of securities, like in Kugler
, a deduction to the interest calc ulation based on the differ ence betwee n the orig inal purcha se price and the amount rec ouped on the

resa le would reme dy fairl y easily a perc eived statutory defe ct or omission in the I llinois Securities L aw conce rning a purported failure to deduct interest on the proce eds of the resa le. The instant case , howeve r, establishes that a court, under the guise of statutory construction,
must signific antly revise the clea r statutory languag e of section 13(A) to effec tu at e t h e

acc rued- interest policy conce rns raised by the defe ndants, trial court and partial dissent here and the Kugler

specia l concur

renc e. ¶ 29 Her e, 11 stock purcha ses wer e made on 11 differ ent dates during 1988, 1989 and 1990, and the orig inal purcha se price s rang ed fr om as low as $13,106.44 on May 20, 1988, to as high as $1,184,940.25 on Fe bruar y 23, 1990. Be tween 17 and 19 y ear s elapse d from the dates plaintiffs had purcha sed the stocks to the date they rec eived the $3.2 milli on settlement from the S hear son defe ndants in 2007. Over th ree more y ear s elapse d befor e plainti ffs rece ived the judgme nt in this malprac tice action ag ainst defe ndants for thei r neg lige nt failure to prese rve plaintiffs’ I l l i n o i s Securities L aw claim ag ainst the Shearson defe ndants. Due to

secur ities violations and leg al malprac tice, plaintiffs wer e denied the use of over $4.5 milli on

-8-for about 20 y ear s. Under these circ umstances, why should the 2007 $3.2 milli on settlement

rea ch back almost 20 y ear s to be deducte d from plaintiffs’ orig inal purcha se pri ce and there by cut off their entitlement under the statute to acc rued interest? Although the trial court thought it would be fair in 2010 to apply the 2007 $3.2 milli on settlement to eac h purcha se price as a proportionate reduc tion (see supra ¶ 16), there is absolutely no statutory basis for the court to exercise that discretion. Moreover, i f th e l egislature had intended to require a deduction of in tere st ear

ned on the proce eds of a resa le or other rec overe d amounts, the leg islature wa s surely capa ble of draf

ting that require ment into the statute or ame nding the statute afte r Kugler

was issued. ¶ 30 L ike the Kugler majority
, we cannot depar t from the plain meaning of the statute, which provides that the 10% interest is calc ulated on the full amount paid for the secur ities befor e deductions are made for any income or amounts rec eived by the purcha ser on the secur ities. Consequently
, we find that the trial court err ed when it deducte d the $3.2 milli on settlement from the total purcha se price befor e calc ulating the interest. Acc ording ly
, we reve rse the trial court’s judgme nt conce rning the damag e calc ulation and rema nd this mat t er fo r an adjustment of plaintiffs’ damag es in acc ordanc e with this order

. Her e, the full amount of the purcha se price on the 11 stock purcha ses at issue was $4,506,602.05. Acc ording to plaintiffs, the corr ect interest calc ulation on that amount, which must acc ount for the 11 differ ent dates of purchase of those stocks, at 10% annually from th e d ate of pay ment for the share s until the J uly 12, 2010 order by the tr ial court should have been $9,230,916.38, for a total of $13,737,518.43. Then, the $3.2 milli on 2007 settlement should have b ee n d educte d from $13,737

, 5 1 8

. 4 3
, for a damag e awa rd of $10,537,518.43. Although the trial court used the
wrong purcha se price and int er est calc ulation, the trial court corr ectly ruled that the 10% interest calc ulation h ad to be updated through the date of the final judgme nt on May 24, 2011. Be cause this court has ruled in plaintiffs’ favor conce rning the interest calc ulation, the $9,230,916.38 interest ca lculation must be updated a g ain. ¶ 31 Plaintiffs also argue that the trial court should not have deducte d the entire $3.2 milli on settlement from plaintiffs’ damag e awa rd beca use they actua lly rec eived only $1,657,000 of that settlement wher e they expended $1,543,000 in costs and attorney fee s in order to obtain that settlement. We disag ree

. In the underlying Steinberg ca s e, plainti ffs and the S hear son defe ndants enter ed a settlement agree ment afte r plaintiffs’ I llinois Securities L aw claim was dismiss ed as time-barr ed and that dismiss al was aff irm ed o n appeal. The rele ase in the Steinberg case provided that plaintiffs rele ased an y an d all claims ag ainst the Shearson defe ndants that related to any of the matters alleg ed in their underly ing law s u i t , o r their

acc ount with the Shearson defe ndants, or their investments in th e co m m o n stock of FCH. Howeve r, the re l ea se expressly provided that nothing there in aff ecte d plaintiffs’ rig ht to pursue their leg al malprac tice claims. Applying the plain languag e of section 13(A), the $3.2 milli on plaintiffs rec eived in the settlement of their statutory and common law fra ud claims constitutes “ other amounts rece ived by the purc haser

on the sec urities.” Moreove r, section 13(A) makes no provision for stock p u rc haser s like plaintiffs to deduct fee s or costs from those “other

amounts rec eived.” ¶ 32 Defendants argue that this court should reje ct plaintiffs’ challeng e to the trial co u rt ’s calc ulati o n o f d am ages beca use the trial court simply applied the measure of damag es in

-9-acc ordanc e with the testimony of plaintiffs’ secur ities law expert witness Michae l Moirano.

Specifica lly
, defe ndants asser t Moirano testified that, under the I llinois Securities L aw, the 10% interest is calc ulated on the purcha se price afte r deductions are made for any dividends

or other amoun t s re ceived. Def endants contend that plaintiffs should not be permitted to abandon the ir expert’s testimony afte r inducingthe trial cour t to rely on it. ¶ 33 Acc ording to the r e c o r d
, p lain ti f f s ’ c o u n s e l, on redire ct examination, questioned Moirano
reg ardinghow he would advise a client about pursuing an I llinois Securities L aw claim as opposed to a claim for punitive damag es or marg in interest based on the g rea ter value of the

resc ission damag es ava ilable under the I llinois Securities L aw. Moira no answe red:
“A. I f it wer e in the six -month [I llinois Securities L aw ] p eriod, I would explain to him that the marg in i n t er es t, in my opinion, under any circ umstance, would be very difficult t o g et, but under the I llinois statute, beca use y ou g ot ten percent int ere st fr om the date of purcha se, unless you’re paying rea lly ten perc ent interest on whateve r it is you borrowe d, you’re g oing to g et that–an equivalent amount of money and more by persuing [ sic ] t hat claim. And it would be the be st–the quickest way to go. Q. Now, you wer e asked about damag es under the I llinoi s S ec u ri t i es L aw. I s that damag e ana ly sis strictly

mecha nical?
A. You mea

n on a loss causation analy sis? Q. Right. A. No, absolutely

not. Q. Dama g es under

the I llinois Securities L aw?
A. Oh, the I llinois Securities L aw. Ex cuse me, y es. You g et your money back. You
g et how much you paid. So whateve r you paid, you g et bac k. Q. And you g et ten perc ent from the date of purcha se to the date of pay ment, rig ht?
A. Corre ct.” ¶ 34 There afte r, Moirano testified that the trial court deter mines the re as o n ab l e amount of attorney fee s for the pr evailingplaintiff under the I llinois Securities L aw. He continued:
“A. *** [Y] ou’re just g oing to say , ‘Hope fully we’ ll g et all our attorney s’ fee s back,’

or whateve r the deal is o n the attorney s’ fee s, so the client is made whole. That’s the intent of the statute, make the client whole, plus ten pe rce nt interest today

. ***
THE COURT: I have a couple of questions. Mr. Moirano, you just wer e asked about damag es under

the [I llinois Securities L aw]?
A. Yes.
THE COURT: You stated it’s mecha nical. Doesn’t it also state you g et the purcha se price back of the secur ities, less any income, or other amounts rec eived by the purcha ser on the sec urities? A. Yes. So if you g ot dividends–if you sold some of the shar es, you g et a ne t. THE COURT: Right. A. You g et put back to whe re you wer e.

-10-THE COURT: You g et bac k to the beg inning, f rom the fr ont end?
A. Yes. THE COURT: And then the te n perc ent kicks in?
A. Yes.” ¶ 35 Redirec t examination continued, and plaintiffs’ counsel questioned Moirano r eg arding how a reasona

ble lawyer w ould advise a c lient about the expense of pursuing other claims in addition to an I llinois Securities L aw claim, and the risk of not purs u i n g all the claims. Moirano re sponded:
“A. You know y our l iability

. Yo u s h o u l d know what the evidence of your l iability is. So you ca n t el l t he client, ‘On the liability side, under the [I llinois Securities L aw] claim, we can probably either g et a summary judgme nt or you’re g oing to be–I ’m fairly confide nt that you can preva il on that. Your damag es are g oing to be “X.” They ’re g oing to ge t your money

back, le ss whateve r you rec eived, times ten pe rce nt.’ ” ¶ 36 Plaintiffs respond that at the bench trial, t h e fo rm u l a b y wh i ch p l aint iffs’ I llinois Securities L aw damag es wer e to be calc ulated was never an issue beca use the calc ulation was purely a matter of law and neither Moirano nor any other expert disclosed or offe red I llinois Supreme Court Rule 213 (ef f. Jan. 1, 2007) opinions on the s ubject. P laintiffs add that the above- quoted exchang e shows that the tria l court sua sponte asked Moira no a question for which he ha d not prepa

red a nd which he a

nswere d without having the words of the statute in front of him. M o re o ver, plaintiffs submitt ed their motion to modify the trial court’s damag e calc ulation as soon as the trial court issued its J uly 2010 order indicating that it had misapplied the section 13(A) formula, so no party was prejudice d nor was any extra expense incurre d. ¶ 37 We agree with plaintiffs that the trial court’s question t o M o i ra n o wa s co n fusi ng ly worde d and the meaning of Moirano’s testimony in the above- quoted exchang e is less than clea r. Moir an o m ay we ll have understood the trial court’s question to mean that the 10% interest “kicks in” from “the beg inning” or “fr ont end” as require d by Kugler

. In any event, the m anner in which the statutory damag es m ust be ca lculated is purely a question of l aw, and nothing Moirano said could overr ide the plain languag e of section 13(A) and this court’s expli cit holding in Kugler

. ¶ 38 Next, defe ndants argue that this court should reje ct blind adher ence to Kugler in the ver y differ ent con t ext of this case beca use Kugler
, which addre ssed an I llinois Securities L aw claim, did not addre ss a leg al malprac tice action or how damag es should be assessed ag ainst
neg ligen t at t o rn ey s for the loss of an I llinois Securities L aw claim. Def endants’ argument lacks merit. L ike the I llinois Securities L aw , n o statute or common law prec edent establishing private cause s of action contains the superf luous la nguag e that the statutory or

common law damag es in such cause s of action also apply in the event the plaintiff’s lawyer is sued for malprac tice because he neglig ently cause d the action to be ti me b ar red. I llinois law is clea

r that a “leg al malprac tice plaintiff is entitled to rec over those sums which would have been rec overe d if the underly ing suit had been succe ssfully prosec uted.” W eisman
, 314 I ll. App. 3d at 580. ¶ 39 Next, defe ndants argue that even if Kugler does apply here
, plaintiffs failed to prove the

-11-amount of any interest aw ard be causethey failed to introduce a

ny evidenc e showingwhen they rea sonably would have obtained rec overy ag ainst the Shearson defe ndants, and there by stopped the running of section 13(A) interest, absent defe ndants’ l eg al malprac tice. Def endants’ a

rgument lacks mer it. The awa rd of inter est under se ction 13(A) is c ontrolled by the clea

r, unambiguous languag e of the statute, and the statute does not require the purcha ser of securities to submit the ty pe of proof–whic h would be purely speculative–urg ed by defe ndants.

¶ 40 B. Awar d of Section 13(A) Intere st, Fee s and Costs
in a L eg al Malpra ctice A ction ¶ 41 Def

endants argue that th e 10% interest, attorney fee s, and costs rec overa ble under se ction 13(A) of the I llinois Securities L aw constitute punitive damag es and, thus, are barr ed in leg al malprac tice actions by section 2-1115 of the Code of Civil Procedur e (Code) (735 I L CS 5/2- 1115 (W es t 2010)). W e review thi s issue of l aw de novo ( Tri-G, Inc. v. Burke, Bosselman & W eave r , 222 I ll. 2d 218, 254 (2006))
, and conclude that defe ndants’ argument lacks merit. ¶ 42 Section 2-1115 of the Code provides:

“Punitive damag es not rec overa ble in healing art and leg al malprac tice case s. In all case s, whether in tort, contra ct or otherwise, in which the plaintiff seeks damag es by rea son of leg al, medical, hospital, o r o t her healing art malprac tice, no punitive, exemplary
, vindictive or ag g ravated damag es shall be a llowed.” 735 I L CS 5/ 2-1115 (West 2010).
Fur thermore
, a statute is penal if it (1) imposes automatic liability for a violation of its terms; (2) sets forth a prede termined amount of damag es; and (3) imposes damag es without reg ard
to the actua l damag es suffe red by the plaintiff. Landis v. Marc Realty, L.L.C

. , 235 I ll. 2d 1, 13 (2009). “B y contra st, a statute is reme dial wher e it ‘imposes liability only when actua l damag e results from a violation’ and wher e ‘liability is conting ent upon damag e being
proven by the plaintiff.’ ” Id

. (quoting McD onald’s Corp. v. Levine
, 108 I ll. App. 3d 732, 738 (1982))

. ¶ 43 Def

endants argue the section 13(A) fee -shifting and interest provisions are coer cive a nd punitive in nature and fall within the cate g ory of damag es the leg islature has barr ed in section 2-1115. Def

endants contend that they had no ability to resc ind plaintiffs’ stock purcha ses to stop the interest and fee s from acc umulatin g. Fu rt her, defe ndants contend that assessing milli ons of dollars in interest, fee s, and costs ag ainst attorney s would neither punish the
actua l wrong doers nor

compel complianc e with sec urities laws. ¶ 44 To support the proposition that section 13(A) interest, fee s, and costs constitute punitive damag es, defe ndants cite Foreman v. Holsman
, 10 I ll. 2d 551, 553-54 (1957) (“ t h is civil

reme dy is intended to aff ord an addition al punishment for an offe nding party”); Gowdy v. Richter
, 20 I ll. App. 3d 514, 530 (1974) (the “pena l char acte r” of the I llinois Securities L aw fee -shifting provision war ns violators that they will be responsible for reasona ble attorne y fee s incurre d in returning the purcha ser to his status quo); Jacobs v. Jame s , 215 I ll. App. 3d 499, 505 (1991) (“[t] he goals of the fee-shifting provision o f t h e S ec urities L aw are to (1) penalize defe ndants for illega l acts, and (2) remove the expense of leg al repr esenta tion as an obstacle to plaintiffs bring ing suit”); Condux v. Neldon
, 83 I ll. App. 3d 575, 577 (1980) (the

-12-I llinois Securities L aw r escission provision “is a pena lty , desig ned to compel promoters to

reg ister their stock”); and Bain v. Financial Security Life Insurance Co.
, 53 I ll. App. 3d 702, 708 (1977) (“se curities laws *** provide both crimi n al an d civil penalties for violations there of” a nd “provide for sa

nctions ag ainst those violating suc h laws”)

. ¶ 45 The case s cited by defe ndants do not support the contention that section 13(A) interest, fee s and costs constitute punitive damag es. Although statements wer e made by the court in those case s ab o u t s anctions or penalties under the secur ities laws, defe ndants take those
statements out of context, and none of those case s held that section 13(A) interest, attorney fee s and costs constituted punitive damag es. ¶ 46 We find that the 10% interest, attorney fee s and costs awa rded under section 13(A) of the I llinois Securities L aw do not constitute barr ed punitive damag es under section 2-1115 of the Code. Section 13 (A ) i n t erest, fee s and costs are not imposed as a prede termined amount without reg ard to the actua l damag es suffe red by the plaintiff. Rather, 13(A) interest, fee s and
costs are all components of the reme dial damag es that are mandated by statute to compensate the pl aintiff who has proven that actua l damag e result ed from the defe ndant’s viol ation of the I llinois Securities L aw. See Standard Mutual Insurance Co

. v. L a y , 2013 I L 114617, ¶¶ 31-33 (the statutory damag es of $500 per violation under the Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227(b)( 3) (2006)) wer e not punitive damag es but, rathe r, compensated consumers for a harm suffe red and provided an incentive for private parties to enfor ce the statute). M oreove r, there is no provision in the I llinois Securities L aw for the

rec overy of punitive damag es. See Peterson v. B aloun
, 715 F. Supp. 212, 216 (N.D. I ll. 1989) (the court struck a p u n i t i ve damag e claim under the I llinois Securities L aw because it does not provide a reme dy of punitive damag es); Anvil Inve stment Limited Partnership v. Thornhil l Condominiums, Ltd.
, 85 I ll. App. 3d 1108, 1119 (1980) (a punitive damag e awa rd for willful ac ts of abuse was a court-c reated reme dy and was separ ate from and in a ddition
to the 10% interest and attorney fee s mandated by section 13(A) of the I llinois Securities L aw)

. ¶ 47 Def

endants also cite Tri-G, I

nc. , 222 I ll. 2d 218, to suppor t the proposition that se ction 13(A) interest, attorney fee s and costs cannot be imposed on neg lige nt l aw y er s , b ut defe ndants’ relianc e on that case is misplaced. Tri-G, the plaintiff client, sued a law firm for failing to prosec u t e Tri-G’ s previously filed complaint ag ainst a bank. Id

. at 225. Tri-G’ s “ca se within a case ” ag ainst the bank involved cer tain construction loans the bank had made
to Tri-G, and Tri-G all ege d b reach of contra ct, common law fra ud, and violation of the Consumer Fr aud Act ag ainst the bank. Id

. at 226. Tri-G’ s complaint ag ainst the b an k was dismiss ed with prejudice afte r Tri-G’s counsel was not prepare d to proce ed when the case

was called for trial. Id

. at 227. Tri-G then sued its c ounsel for neg lige nce, and a trial on the merits was held. The jury found that, but for counsel’s neg ligen t h andli ng of Tri-G’ s case ag ainst the bank, Tri-G would have rec overe d $1,168,775 in compensatory damag es and an equal sum in punitive damag es from the bank. Id

. at 225. Acc o rd i n gl y , the circ uit court enter ed judgme nt on the jury ’s verdic t in favor of Tri-G and aga i n s t the law firm for $2,337,550. Id

. ¶ 48 On appeal, a majority of our supreme court held, inter alia
, that l o st punitive damag es

wer e not rec overa

ble in a subsequent leg al malprac tice action. Id

. at 267. The majority stated

-13-that the jury had alre ady awa rded full compensation to Tri-G for all the damag es it actua lly sustained and an aw ard of punitive damag es ag ainst the law firm would not advanc e the policy behind the conce pt of punitive damag es to punish the willful and wanton misconduct of offe nders like the bank and deter them from committing simil ar acts of wrong doing in the future. Id

. The majority conclude d that beca use section 2-1115 of t h e Code decr ees that lawyers cannot be compelled to pay p unitive damag es based on their own misconduct, “it would be completely nonsensical to hold that they can never theless b e co mp el l ed to pay punitive damag es attributable to the misconduct of others.” Id

. at 267-68. The dissent viewed Tri-G’ s lost punitive damag es in the underly ing case as an element of compensatory damag es in the malprac tice ac tion and argued that such compensatory damag es were not prohibit ed by section 2-1115

. Id

. at 269-70 (F ree man, J
., concur ring in part and dissenting in part, joined by McMorrow

and F itz g era ld, J J .). ¶ 49 The holdi ng in Tri-G conce rning lost p u n i t i v e d amag es i s not applicable in the instant

case

. In Tri-G
, the court reve rsed only the portion of the j u ry awa rd for the lost punitive damag es Tri-G

would have r ecove red a g ainst the bank in the unde rlying c ase. I n doing so, the court noted that the jury had alre ady ful ly compensated Tri-G for all the damag es it
actua lly had sustained. Her e, in contra st, plaintiffs’ leg al malpra ctice awa rd ag ainst defe ndants is reme dial s t at utory compensation for plaintiffs’ lost I llinois Securities L aw claim. Absent the section 13(A) interest, attorney fee s and costs, plaintiffs would not be fully
compensated for all their damag es u n d er t h e I llinois Securities L aw. Moreove r, unlike punitive da

mag es, section 13(A) relief is c alculate d by the cour t acc ordingto an objective,
prec ise mathematica l formula. The 10% interest, attorney fee s and costs are all components of the statutorily mandated reli ef t o which plaintiffs would have been entitled under the I llinois Securities L aw if defe ndants’ neg lige nce had not cause d their claim to have been time barr ed. C onsequently
, the uncertainties and difficulties of proof that apply to true punit ive damag e awa

rds do not apply to section 13(A) damag e awa rds. The section 13(A) relief can in no way be deeme d punitive damag es as barr ed by Tri-G and section 2-1115 of the Code. ¶ 50 S i m i l ar l y , defe ndants’ relianc e on Tri-G ’s hold i n g re j ec t i n g T ri -G ’s cl ai m s fo r prejudgment interest is also misplaced. Specifica lly
, Tri-G soug ht damag es equal to the
amount of post

judgme nt interest on the hy pothetical judgment Tri-G would have rec eived
ag ainst the bank in the underlying case but for the l aw firm’s neg lige nce. Id

. at 256. The
court re jected this cla im because the:
“ ‘re cover

y of interest i n t h i s S tate, not contra cted for, finds its only authority in the
statute. It is purely statutory .’ ” Id

. (quoting Blakeslee ’s Storage W arehouses, Inc. v. City of Chicago , 369 I ll. 480, 483 (1938)). Unlike the situation in Tri-G , here , section 13(A) e x plicitly require s that a stock purc haser entitled to r escission is a lso e ntitled to rec over 10% interest on the purcha se price from the date of the purcha se. That 10% interest is a component of the statutorily mandated reme dial relief to which plaintiffs would have been entitled under the I llinois Securities L aw if defe ndants’ neg lige nce had not cause d plaintiffs’ I llinois Securities L aw claim t o b e t i m e barr ed.

-14-¶ 51 C. Attorney Fe es, Costs and Ex penses ¶ 52 The I llinois Securities L aw provides, “[i] f the purcha ser s h al l p re v ai l i n an y action brought to enfor ce any of the reme dies provided in thi s subsection, the court shall assess costs toge ther with rea sonable fee s an d expenses of the purcha ser’ s attorney ag ainst the defe ndant.” 815 I L CS 5/13(A) (West 2010). Plaintiffs asked the tri al co u rt to awa rd them $5,272,282.60 in attorney fee s, an d $ 5 56,811.64 in costs and expenses for proving their I llinois Securities L aw “ca se within a case ”; they did not ask for any fee s, costs and expenses incurre d in proving the malprac tice portion of their case

. The trial court, howeve r, awa rded plaintiffs $1,636,700.80 in attorney fee s and $207,167.28 in costs and expenses. On appea l, plaintiffs argue that the a

war d of fe es, costs, and e x penses wa s not reasona ble. ¶ 53 “The touchstone in an awa rd o f at t o rn ey fees is rea sonablene ss ***.” Jacobs
, 215 I ll. App. 3d at 506. I n d et er m i ning the rea sonable value of attorney fee s, the court should consider the skill and s t an d i ng of t he attorney ; the nature of t he cause and the novelty and difficulty of the question s at issue; the amount and importance of the subject matter; the degree of responsibility involved in manag ement of the cause ; the time a nd labor require d; the us ual custom ary char g es i n the communi ty ; the benefits resulting to the client; and the

rea sonable connec tion betwee n the fee s soug ht and the amount involved in the litigation. Id

. at 505; J.B. Esker & Sons, Inc. v. Cle-Pa’s Part n er s h i p , 325 I ll. App. 3d 276, 283 (2001). The party seeking such fees shoul d provide documentation in a form suff icient in detail t o help the court in assessing rea sonablene ss. McNiff v. Mazda Motor of America, Inc.
, 384 I ll. App. 3d 401, 404 (2008). Sufficient detail includes detailed time rec ords and descr iptions of the work perf

ormed. Losurdo Brothers v. Arkin Distributi on Co.
, 125 I l l

. App. 3d 267, 275 (1984). This court revie ws a circ uit court’s awa rd of attorney fee s and costs for an abuse of discre tion. Sampson v. Miglin , 279 I ll. App. 3d 270, 281 (1996). ¶ 54 The trial court awa rded pla intiffs $1,636,700.80 in a ttorney fee s, which was calc ulated by applying a 40% conting ent fee to an I llinois Securities L aw damag e awa rd of $4,091,752.19. On appea l, plaintiffs do not contest the application of the 40% conting ent fee

so long as it is applied to a statutorily corr ect calc ulation of plaintiffs’ I llinois Securities L aw damag es. Although we agree with plaintiffs that the trial court used an incorre ct damag e calc ulation formula (see supra ¶¶ 26-30), and we have rema nded this cause for the trial court to corr ect that calc ulation, we wil l n ot hold that plaintiffs are automatically entitled to an attorney fee of 40% of

the re calc ulated dama g e aw ard. ¶ 55 Contingenc y fee agree ments can be a rele vant fac tor in deter mining the re asonable ness of attorney fee s. McNiff

, 384 I ll. App. 3d at 406. Trial courts, howeve r, may base fee awa rds

on either the lodestar analy sis or percenta g e method. See Ryan v. City of Chicago
, 274 I ll. App. 3d 913, 924 (1995). A perc entag e method may be appropr iate wher e the litigation lasted for many y ear s and the allocation of my riad time e ntries to specific matters or issues is v er y d i ff

icult. Id

. Alternatively
, a lodestar approa ch shifts the emphasis from a fair
perc entag e of r ecove ry

to the value of

the time expended by

counsel. Id . at 922. ¶ 56 Her e, the trial court based the fee awa rd “upon the issues raised on the billing statements, the neces s i ty o f t h e work and the possible overla pping of hours spent in other cause s of action.” Moreove r, the trial court noted that it was difficult, in revie wing the attorney s’ time

-15-sheets, “to separ ate the time allotted to the malprac tice claim and the [I llinois Securities L aw]

claim.” We will not assume that the trial court, which considere d the connec tion betwee n the fee s sought a

nd the amount of the a

war d, would have a

war ded plainti ffs a

40% conting ent fee of a much larg er I llinois Securi t i es L aw damag e awa rd based on plaintiffs’ purcha se price
, plus 10% interest, less the $3.2 milli on settlement. Acc ordi n gl y , we reve rse the $1,636,700

. 8 0 at t o rney fee awa rd and rema

nd this matter to the trial court to deter mine

rea sonable attorney fee s based on the corr ect amount of plaintiffs’ I llinois Securities L aw damag es. ¶ 57 Finally
, plaintiffs argue that the trial court abused its discretion by reje cting the entirety of plaintiffs’ submissi on of approximately $350,000 of costs incurre d by the Plotki n law firm betwee n 1992 an d 2 0 0 0

. Acc ording to the rec ord, the trial court awa rded $207,167.28 for
costs incurre d by the L aw Offic es of Edwar d T. J oyce & Associates, P.C., in connec tion with the prosec ution of the I llinois Securities L aw portion of the leg al malprac tice litigation from J une 2008 through J uly 2010. The trial co urt stated that it could “under stand both by the aff idavit and the description of the char g es that eac h char g e is either a ‘cost’ or an ‘expense’ under the statute.” The trial court, howeve r, denied the costs and expenses submitt ed by the Plotki n law firm beca

use it was “impossible for [t he court] to deter mine the specific nature of the c osts and whether

the costs spec ifically perta ined t o this case .” W e find no abuse of discretion by the trial court, which was car eful to limit the awa rd to the costs and expenses t hat perta ined only to the underlying I llinois Securities L aw claim within the m al p ra ct i ce

case , and not the non-I llinois Securities L aw claims ag ainst the Shearson defe ndants in the Steinberg case

.

¶ 58 D. The I llinois Securities L aw Claim and Rea sonable Relianc e ¶ 59 Def

endants argue that plaintiffs fa iled to prove their underly ing I llinois Securities L aw claim beca

use Mr. Goldfine’s relianc e on his broker ’s repr esentations conce rning the stock purcha ses was not re asonable

. ¶ 60 A dispute conce rning the issue of whether a plaintiff’s relianc e was rea sonable pre sents

a question of fac t. See Central States Joint Board v. Continental Assurance Co.
, 117 I ll. App. 3d 600, 607 (1983). A court of revie w will reve rse the judgme nt of a trial court, which was in a superior position to evalua te the cre dibility of the witness es and the weight of their testimony
, only wher e the finding s are ag ainst the manifest weight of the evidenc e. Id. at 604. After revie wing the rec ord in this case and the applicable law, we conclude that the tri al court’s f indings we re not a g ainst the manifest we ight of the evidenc e. ¶ 61 De fe n d an t s co n t end the trial court failed to evaluate eac h of plaintiffs ’ p u rc h as es separ ately . Acc ordingto defe ndants, such an evaluation would have shown that plaintiffs’ loss resulted from Mr. Goldfine’s unrea sonably risky decisions to purcha se $2.1 milli on of FCH stock in F ebrua

ry and August of

1990 without seekingany additional information on FCH or lear

ning any thing about FCH’s business or t he ins uranc e indus try , and despite the substantial public information about FCH’ s larg e junk bond hol dings, preca rious financ ial condition, and neg ative net wor th at that time. ¶ 62 Specifica lly
, defe ndants arg ue that by 1990, Mr. Goldfine had acc ess to abundant public

-16-information about problems at FCH, including a Marc h 12, 1990 Wall Street J ournal article

repor ting that FCH’s bond portfolio was $400 milli on “under water .” Def

endants argue that Mr. Goldfine was a sophisticated investor who had lost money in junk bond investments befor e, and a “per son may not enter into a transac tion with his eyes closed to available information and then c harg e that he ha s been de ceive d by another .” Id

. at 606. Defenda nts state that the nondiscretionar y acc ount Mr. Goldfine had with Shearson meant that Shearson broker Steinberg did not have a fiduciar y relationship with Mr. Goldfin e

. D e f e ndants add that plaintiffs’ friends h i p wi th Steinberg did not make Mr. Goldfine’s relianc e on Steinberg ’s
repr esentations reasona

ble. ¶ 63 Acc ording to the rec ord, plaintiffs’ evidenc e showed that they had been persona l friends with Steinberg and his family for more than 25 y ear s. Over the year s, they had attended many social and relig ious functions toge ther, including the confirmations o r wedding s of their children. Mr. Goldfine was a worke rs’ compensat i on attorney , and he never prac ticed

sec u ri ties law. Due to their long- standing relationship and Steinberg ’s prominent position with Shearson, plaintiffs place d g reat trust and confide nce in his secur iti e s r e c o mm e n d a ti o n s

. Mr. Goldfine never purcha sed a secur ity Steinberg did not rec ommend or endorse

. Steinberg purcha sed FCH for himself in J uly 1987. When Goldfine, in October 1987, asked Steinberg
to rec ommend a high quality stock, Steinberg rec ommended FCH and said he knew all about the company , which had tremendous g rowth potential. Steinberg also said that Shearson was interested in FCH, had authorized its broker s to sell FCH products, and Shearson would not have allowed its broker s to sel l FC H policies and annuities without chec king FCH out thoroug hly

. Steinberg did not mention, and Mr. Goldfine was unawa re of, a negative J une 1987 Ba rron’ s article about FCH. As a result of Steinberg ’s rec ommendation, Mr. Goldfine made his first purcha se of FCH stock. There afte r, Mr. Goldfine rec eived FCH’s 1987 annual
repor t, which touted FCH’s rema rkable g rowth, and Steinberg discussed the repor t with Mr. Goldfine a

nd told him t he re port was ter rific. ¶ 64 In 1987, E

. F. Hu t t o n had sold Hutton L ife, an insurance subsidiary
, to FCH and had
enter ed into an agree ment that require d Hutton’s stockbroker s and insurance sales personne l
to continue selling Hutton L ife products to its clients. In November 1987, Hutton expressed

an interest in being acquir ed by Shearson, so Shearson sent a team of employ ees and attorney s to conduct a compre hensive due diligenc e examination of Hutton. Shearson a lso sent Sam Weinhoff, its senior executive and a manag ing direc tor with insura nce expertise,
t o ex am i n e Hutton’s insurance investments and to deter mine the degree of risk in FCH’s investment portfolios. Weinhoff found t hat Hutt on owned $30 milli on of FCH’s pref err ed stock, but it was worth only 50% of its car rying value. This raised solvency questions. In addition, W einhoff found that FCH was insolvent, with a neg ative tang ible economic net worth of $97.3 million. ¶ 65 In Dec ember 1987, S h ea rs o n re ceive d from Perry Bur ns, its executive vice pr esident, another repor

t that looked at 43 contempora neous FCH bond purcha ses, described the g reat dang er associate d with the FCH investment portfolio, called FCH’s bond portfolio “sca ry !”

an d identified problems that might arise afte r Shearson owned Hutton. Fur ther, i n a Dec ember 1987 memo, Weinhoff informed Shearson that FCH had a neg ative tang ible net worth of $227.3 milli on. There afte r, a memo from Bur ns indicat ed t h at FCH’s bond

-17-portfolios were difficult to analy ze beca use F CH’s rec ords wer e “shoddy and inac curate.” ¶ 66 Shearson acquir ed Hutton in J anuar y 1988 for $800 milli on to $900 milli on and there by inherit ed the agree ment obligating Shearson to sell to its clients the products of FCH’s insurance subsidiaries. Shearson considere d disavowing that agree ment, but FCH threatened
to sue, so Shear son permitted the Hutton broke rs to continue selli ng and S hear son broker s to start selling FCH’s insurance products and annuities. Shearson broker s like Steinberg viewed this as a

n endorse ment of F CH. ¶ 67 Fr o m l at e 1 9 8 7 t hrough FCH’s demise in May 1991, Shearson knew about FC H’ s disastrous financ ial condition but co n cea led that information from its own broker s, like Steinberg

. Shearson steadily
, continuously and vigorously told its own broker s that FCH was financ ially solid and there wer e no risks. I f the truth about FCH had been reve aled, customers would have rede emed their FCH insurance products fo r cash and there would have been a classic “run on the bank.” Then FCH, which did not have the m o ney to rede em those products, would have collapsed, and Shearson’ s exis tence would have been threatened. Consequently
, in May 1988, Shearson decide d to purcha se co n t ro l o f FCH to aver t its bankruptc y and a “run on the bank.” Shearson knew and intended that its acquisition of FCH would convey the false impression to Shearson’ s broker s, life specia lists, FCH share holders and others that Shearson, afte r due diligenc e, had conclude d that FCH was a financ i al ly sound company

and a g ood investment. ¶ 68 Steinberg rea d the May 4, 1988 press rele ases to Mr. Goldfine, emphasized Shearson’ s endorse ment of FCH based o n Shearson’ s actions, and stated that the price of FCH
repr esente d a bar g ain. As a r esult, on May 11, 1988, plaintiffs purcha sed additional shar es

o f FCH stock. Over the next few wee ks, Steinberg continued to rec ommend FCH to M r. Goldfine a

nd informed him that forme r Hutton broker s had discussed F CH’s products a nd profitability with Steinberg

. As a resu l t , plaintiffs boug ht additional FCH share s ag ain in May 1988. ¶ 69 In August 1988, Shearson and FCH conclude d the acquisition agree ment announce d in May
, and press rele ases touted the benef its of combining FCH ’s p ro duct innovation with Shearson’ s distribution network and financ ial strength. Steinberg conveyed that information
t o Mr. Goldfine. In November 1988, Shearson had purcha sed 44% of FCH’s s t o ck an d appointed four direc tors to FCH’s new six -member board. There afte r, Shearson, throug h
prese ntations, meeting s, press rele ases and oth e r d o c u ments , to ute d its relationship with FCH and encour age d its broker s and life specia lists to sell FCH’s insurance products and not red e e m e xisting products. The 1988 annual repor t of FCH repor

ted rec ord-se tting g rowth and reinfor ced the imag e that FCH was a safe r, more secur e company

. Shearson, howeve r, knew in late Dec ember 1989 that FCH’s month- end portfolio showed that its high- yield bonds

wer e $181.4 million underwate r. ¶ 70 Steinberg attended regular meeting s with other She ar s o n branc h manag ers and senior executives and rec eived g lowing repor ts about FCH. When Steinberg returne d from a New York meeting in late 1989, he was “pumped up” and told Mr. Goldfine about his discussions with the Shearson executives running FCH and its p ro fi t ab ility

. Ba sed on Steinberg ’s

rec ommendation, plaintiffs bought more FCH share s in Dec ember 1989. In m i d -J an u ary

-18-1990, Shearson, th ro u gh Steinberg
, rec ommended that Mr. Goldfine buy more FCH stock

and repr esente d that FCH would have rec ord sales and ear nings. Steinberg touted FCH’s book value and stated that Americ an Ex press Company would buy FCH beca u s e it was making so much money

. Relying on that information, plaintiffs boug ht additional FCH stock in J anuar y 1990. ¶ 71 On J an u ar y 22, 1990, the stock of First Ex ecutive L ife Insuranc e Co m p an y (F i rs t Ex ecutive) , a lar g e and w ell known company , dropped significantly . FCH’s stock dr opped
at the same time, and the New York Stock Ex chang e asked FCH to comment about the price of its stock. In a press rele ase, FCH attributed the curr ent weakness only to announce ments by other financ ial institutions conce rning their portfolios. FCH falsely touted its own cre dit analy sis of its bonds and falsely claimed that its high- yield perf ormanc e was better than the
g ener al marke t. FCH descr ibed its investment philosophy in rea ssuring terms and stated that it soon expected explos ive rec ord ear nings. Steinberg rea d the press rele ase to Mr. Goldfine and explained that FCH’s stock price had drop p ed b eca use the marke t had confuse d FCH with First Ex ecutive, which had a horre ndous bond portfolio and a hug e mortg ag e portfolio wi th signific ant defa

ults. Steinberg said that FCH’s stock was a barg ain. Ba sed on t h at information and Steinberg ’s rec ommendation, plaintiffs boug ht additional share s of FCH stock. ¶ 72 The neg ative news article s about First Ex ecutive’ s junk bond portfolio drew attention to FCH’s junk bond portfolio, and Shearson financ ial consultants wer e starting to ask questions about FCH’ s financia l positi on and portfolio composition. Shearson sought to remove a ny anxiety among the financ ial consultants, noting that business was down in the afte rmath of the First Ex ecutive news and rede mptions wer e starting to incre ase. Consequently
, Shearson executives reinfor ced the messag e that FC H was not like First Ex ecutive and was not experiencing simil ar problems. Shearson conce aled from Steinberg a n d o th e r s a les personne l the neg ative and worsening information about F CH and the continuing deterioration in the quality of its bond portfolio. ¶ 73 In Fe bruar

y 1990, Steinberg rea d to Mr. Go l d fi n e a press rele ase announcingFCH’s

rec ord net income for 1989 and explained that FCH’s low stock price ref lected the marke t’s

c ontinued confusion of FCH with First Ex ecutive. Steinberg rec ommended th a t M r

. G o ld f

in e purcha se more FCH share s, explaining that Shearson executives had told Steinberg that FCH

was in terrif

ic shape and was being marke ted as an Americ an Ex press Company

. Steinberg told Goldfine that Shearson’ s broker s had sold about $3 billion i n FC H an n uities and Steinberg believed nothing could happen to FCH beca use the broker s would leave Shearson if it did. Ba sed on that information and Steinberg ’s rec ommendations, plaintiffs boug ht more FCH share s. Steinberg did not kno w that Shearson had deter mined that the portfolios of FCH’s insurance subsidiaries wer e more than $320 milli on underw ater as of J anuar y 31, 1990. ¶ 74 In August 1990, the stock marke t g ener ally plummeted, but FCH’s p r e s s r e le a s e in d ic ated that its reve nue and book value had incre ased althoug h i t s ea rni ng s had g one down somewhat. Steinberg and M r. Go l d fi ne viewed the marke t drop as a buying opportunity

. Ba sed on Steinberg ’s repr esentations that FCH was a Shearson/American Ex press Company and the p u rc h as e of FCH stock was a barg ain, plaintiffs boug ht additional FCH stock.

-19-Steinberg even boug ht additional stock for himself in October 1990. Shearson continued to

respond t o n egative news by playing up the relationship betwee n FCH and Shearson/American Ex press Company to its sales personne l and emphasized that there was nothing wrong with FCH. FCH’s 1990 annual repor t, which pla intiff

s rec eived in April 1991,

conc eale d its problems from the share holders and depicted FCH very positively
, showing share holders’ equity approa ching $400 milli on. Mr. Goldfine, still believing ever y thing was fine at FCH, wrote FCH on April 26, 1991, and expressed his displeasure about not rec eiving
any response about bec oming a n FCH boa

rd member

. ¶ 75 When a state insurance commissioner asked Americ an Ex press Company to contribute $50 milli on to bolster FCH’s capital position, Americ an Ex press Company declined. FCH’s bank lende rs filed a

n involuntary

bankruptc y

petition on May

10, 1991. On May

16, 1991, Mr. Goldfine wrote a letter to Steinberg threa tening litigation and stating that he wanted the return of the money

he had pa id for F CH stock. ¶ 76 Ba sed upon the evidenc e prese nted at t ri al
, we ca n n o t conclude that the trial court’ s deter mination–that Mr. Goldfine rea sonably relied on Steinberg ’s rec ommendations to buy FCH stock–was ag ainst the manifest weight of the evidenc e. A judgme nt is not a g ainst the manifest weight of t h e evidence unless the oppos ite conclusion i s clea rly evident. Snelson

v. Kamm
, 204 I ll. 2d 1, 35 (2003). Plain t i ff s ’ evidence showed that, from Mr. Goldfine’s FCH st o ck purcha ses in 1988 throug h 1990, Shearson continued to conce al materia l information about FCH’s poor financ ial condition and disseminated very positive but false information about FCH whene ver any n eg ative information about FCH appea red in the

m edia. Plaintiffs’ expert J ames Fe ltman of Mesirow Financ ial Consulti ng testif i ed t h at Shearson and its operating office rs had knowledg e of the signific ant and materia l differ ence s betwee n the i nformation they publicly disclosed about FCH and their a ctual knowledg e of FCH’s f inancial c ondition. Feltman explained that no publicly available documents would have permitted an individual share holder to conclude that FCH was insolvent pr ior to Ma y 1991. Even people who wer e closely involved with FCH, securities and insurance–and wer e far more sophisticated investors than Mr. Goldfin e– h ad ac cepted and relied on the misinformation disseminated by Shearson. Specifica l ly
, plaintiffs prese nted the testimony of a Shearson stockbroker
, a Shearson life specia list, and a manag ing g ener al ag ent and sales produce r for

FCH’s insura

nce pr oducts. ¶ 77 Contrar y t o d ef en d ants ’ asser

tions on appea l, the trial court did not conclude that Mr. G oldfine’s relianc e on the information he rec eived from Steinberg was re a s o n a b le s im p ly d u e to their friends h i p

. M r. Goldfine purcha sed only stock that Steinberg rec ommended or endorse d, and Steinberg h ad a l o ng and proven trac k rec ord of providing plaintiffs with reliable and sound trading advice

. Although their relationship played a role in Mr. Goldfine’s confide nce in Steinberg ’s rec ommendations, Mr. Goldfine knew that S t ei nb erg had purcha sed FCH stock for himself and was rec eiving positive repor ts about FCH’s condition direc tly from the Shea

rson executives who we re on the board of FCH a nd runningit. ¶ 78 In addition, plaintiffs prese nted extensive evidenc e that Shearson counter ed any neg ative information that surfa ced conce rning FCH’s fi n ancia l condition by withholding materia l information from its broker s and investors, providing g lowing repor ts about FCH, and taking actions that indicated S h ea rson had confide nce in FCH. That pattern of conce alment and

-20-disseminati o n o f h alf-tr uths continued over a three -year period and included the time of plaintiffs’ last FCH stock purcha ses in Fe bruar y and Au gu s t o f 1990. Shearson’ s

conce alment and misrepre sentations had convince d even Steinberg that FC H stock was a g ood i nvestment, and he boug ht FCH stock for himself as late as October 1990. The

numerous communications betwee n Steinberg and Mr. Goldfine in the contex t of the information Shearson disseminated and the information it conce aled support the trial court’s d e ter mi n a ti o n th a t M r

. G o ld fine’s relianc e on Steinberg ’s rec ommendations to p u r c h a s e F CH stock in 1988, 1989 and 1990 wa s rea sonable. ¶ 79 Moreove r, the trial court stated that it “thoroughl y co n s i d er ed al l o f t h e evidence”
prese nted at trial, and the rec ord shows that the trial court rec eived evidenc e relating to eac h individual stock purcha se before the court conc luded that, although plaintiffs did not meet their burden of proof conce rning their first 1987 FCH stock purcha se, t hey did prove their I llinois Securities L aw claim conce rning their 11 subsequent FCH stock purcha ses in 1988, 1989 and 1990.

¶ 80 E. L eg al Malpra ctice a nd Prox imate Cause ¶ 81 D e f

e n d a nts a rg u e p lain tif fs failed to prove that defe ndants’ leg al malprac tice proximately

cause d plain

ti f f s ’ loss. Specifica lly
, defe ndants argue plaintiffs failed to prese nt any evidenc e showing that, absent defe ndants’ m al p ractice, plaintiffs, if they still had their I llinois Securities L aw claim, would have either rec eived a larg er settlement or fore g one settlement,
t ri ed their case and won g reater damag es. Def endants contend plaintiffs wer e require d to establish that they

would have risked all their non-I llinois Securities L aw claims valued at $16 milli on to $19 milli on and reje cted the $3.2 milli on settlement for a trial on the I llinois Secu rities L aw issues in the Steinberg case

. Def endants complain that Mr. Goldfine never testified that
, with a viable I llinois Securities L aw claim, he would have reje cted the $3.2 milli on settlement and riske d g oing to tria l. ¶ 82 “To prevail on a lega l malprac t i ce claim, the pl aintiff client must plead and prove that the defe ndant attorney s owed the client a duty of due car e arising from the at t o rney -client relationship, that the defe ndants brea ched that duty
, and that as a proxi mate result, the client suffe red injury .” Tri-G, Inc.
, 222 I ll. 2d at 225-26. The inj ury in a leg al malpra ctice a ction is a pecunia

ry injury to an intang ible proper ty interest ca

used by the lawyer’ s neg lige nt act or omission. Id . at 226. “Where the alleg ed leg al malprac tice involves litigation, no actionable claim ex i s ts unless the attorney ’s neg lige nce resulted in the loss of an underly ing c ause of action. I f the u n d er l y i n g action never rea ched trial beca use of the attorney ’s neg lige nce, the plaintiff is require d to prove that but for the attorney ’s neg lige nce, the p l ai n t i ff wo uld have be en succ essful in that underly ing a ction.” Id

. A settlement by succe ssor counsel does not nece ssarily bar a malprac tice action ag ainst prior counsel. McCarthy v. Pede rs en & Houpt
, 250 I ll. App. 3d 166, 172 (1993). An attorney malprac tice action should be allowed wher e the plaintiff can show that he settled for a lesser amount than he c ould rea sonably expect absent the malprac tice. W ebb v. Damisc h , 362 I ll. App. 3d 1032, 1042 (2005). See also Brooks v. Brennan
, 255 I ll. App. 3d 260, 268 (1994)

-21-(summary judgme nt awa rded to the defe ndant where the plaintiff failed to show that she either w ould have settled the case for a g reater amount or rec eived greater damag es fr om a judge or jury

). Prox imate causation in a leg al malprac tice case is g ener ally a fac tual issue to be decide d by the trier of fac t. First National Bank of LaGrange v. Lowrey
, 375 I ll. App. 3d 1 8 1
, 202 (2007) (noting that issues that could cause rea sonable persons to rea ch differen t results should never

be dete rmined as que stions of law). ¶ 83 Plaintiffs respond that there is no evidenc e in the rec ord t o s up p o rt d ef en d an t s ’ assumpti o n that the non-I llinois Securities L aw claims wer e worth $16 milli on to $19 milli on. Ac co rdi ng to the rec ord, plaintiffs’ expert Moirano testified that the I llinois Se c u rities L aw claim had g reater, not lesser, value than plaintiffs’ non-I llinois Securi ti e s L a w claims beca

use the I llinois Securities L aw claim did not require proof of either loss causation

or the defe ndants’ intent to mislead and the statutory damag es under section 13(A) mandated the return of the purcha se price
, plus 10% interest and attorney fee s, costs and expenses. The

rec ord also ref

utes defen d an t s ’ assertion that plaintiffs soug ht only the loss of settlement value. Acc ording to the rec ord, plaintiffs clea rly alleg ed in their fifth amende d comp l aint three distinct and alternative elements of loss–their lost I llinois Securities L aw claim, the

sever ely reduc ed settlement value of the Steinberg case , and additional monetary damag es. Moreove r, t hat complaint expressly stated t hat plaintiffs sought to recove r the e ntire value of t he damag es t hey would have rec overe d by wi n n i n g their I llinois Securities L aw claim. Plaintiffs did not try their case on the theory that they would have achie ved a highe r settlement in the Steinberg case if their I llinois Securities L aw c laim had not been ba rre d. ¶ 84 W e fi n d th at plaintiffs proved defe ndants’ neg lige nce proxi mately cause d plaint i ff s ’ damag es. Plaintiffs did file their I llinois Securities L aw claim, and it was dismiss ed as time b ar red beca

use no timely six -month resc ission notice had been served. Plainti ffs app ea l ed that dismiss al, but the dismiss al was aff irmed by this court. A leg al malprac tice plaintiff must “re cre ate and litigate the action which was never filed” ( Nika v. Danz
, 199 I ll. App. 3d 296, 308 (1990))
, and plaintiffs met that require ment. Plaintiffs also established that the damag es they wer e entitled to rec eive under the I llinois Securities L aw wer e greater than the $3.2 milli on settlement they rec eived in 2007 when they settled the non-I llinois Securities L aw claims ag ainst the Shearson de fenda nts. ¶ 85 Def

endants also arg

ue that plaintiffs’ rele ase of the Shearson defe ndants bars plaintiffs’ further rec overy here

. Acc ording to defe ndants, the $ 3 .2 milli on Steinberg settlement constituted full and complete satisfaction of a ll injuries plaintiffs sustained by investing in FCH stock, and they may not rec eive two rec overie s. We d i sagree

. A rele ase will not be construed to include claims not within the contemplation of the parties. Thornwood, Inc. v. Jenne r & Block

, 344 I ll. App. 3d 15, 21 (2003). As discussed above (supra ¶ 31), the rele ase here expressly provided that it did not affe ct plaintiffs’ leg al malprac tice claim. Moreove r, when the parties enter ed that settlement agree ment in 2007, plaintiffs’ I llinois Securities L aw claim had alre ady been dismiss ed as time barr ed and that di s m i s s al h ad been aff irmed on appea l. In addition, there is no double r ecove ry here beca

use the $3.2 milli on settlement is deducte d from plaintiffs’ se ction 13(A) da mag es. ¶ 86 Finally
, defe ndants argue that plaintiffs proxi mately cause d their losses by failing , afte r defe ndants stopped repr esenting them, to p le a d th e I ll in o is Securities L aw’ s six -month notice

-22-require ment with sufficie nt particula rity to withstand the Shearson defe ndants’ mo t i o n to dismiss

. Acc ording to defe ndants, plaintiffs could have prese rved their I ll i nois Securities L aw claim by alleg ing in the Steinberg case that they did not lear n they h ad an I llinois Securities L aw cl ai m u ntil they reta ined their succe ssor counsel in October 1992 and the I llinois Securities L aw’ s resc ission noti ce w as ser ved within six months of that date. ¶ 87 Def

endants’ argument lacks merit. On May 16, 1991, Mr. Goldfine wrote Shearson and deman d ed a re turn of the complete purcha se price for all of his FCH stock. That letter indicated that Mr. G oldfine wa s awa re of his rig ht to resc ission, but defe ndants, who we re reta ined by plaintiffs in 1991, never serve d the resc ission notice within the six -month period. Plaintiffs reta ined succe ssor counsel on October 31, 1992, and Mr. Goldfine told succe ssor counsel that h e h ad n ev er hear d of an I llinois Securities L aw claim. In 1993, succe ssor counsel pleade d that the six -month notice period did not start to run u ntil October 1992, when plaintiffs lear

ned of their I llinois Securities L aw claim from succe ssor counsel. Howeve r, the Shearson defe ndants submitt ed the May 16, 1991 letter to the trial court in the Steinberg case , and, on the ba sis of that letter, plaintiffs’ I llinois Securities L aw c laim was dismiss ed as untimely

. ¶ 88 Fur

thermore
, acc ording to the testimo n y o f d ef en d ant Ray Rezner, plaintiffs’ for mer counsel, when Rezner met with Mr. Goldfine on August 9, 1991, Rezner informed him that he had a claim under the I llinois Securities L aw but advised him not to pursue it or serve the require d notice of resc ission. Rezner also testified that he met with plaintiffs’ succe ssor

co u n s el i n October 1994 and told them he had advised plaintiffs in August 1991 of their I llinois Securities L aw c laim but urg ed them not to file the re scission notice. ¶ 89 Ba sed on defe ndant Rezner’s sworn testimony that h e ad v i s ed plaintiffs no later tha n August 9, 1991 of their rig hts under the I llinois Securities L aw, plaintiffs’ I llinois Securities L aw claim was barre d befor e they reta ined t heir succe ssor counsel. The rec ord establishes that succe ssor counsel could not have filed any meritorious pleading that would h av e p re v en t ed t h e dismiss al of plaintiffs’ I llinois Securities L aw claim for failure to serve a timely six -month notice.

¶ 90 I I I . CONCLUSI ON ¶ 91 Plaintiffs have made a reque st to this court for the awa rd of additional attorney fee s and
costs incident to defe nding this appea l as authorized by sectio n 13(A) of the I llinois Securities L aw (815 I L CS 5/13(A) (West 2010)). We believe plaintiffs are entitled to suc h fee s and costs and the amounts there of should be deter mined by the trial court upon petition and hea ring

. Y ohnka v. D arling Nells , Inc. , 136 I ll. App. 3d 309, 313 (1985). ¶ 92 For the fore g oing rea sons, we aff irm the circ uit court’s finding s that p l ai n t i ff s proved their under lying I llinois Securities L aw c laim and leg al malprac tice action. We a lso affirm the circ uit court’s awa

rd of plaintiffs’ costs and expenses. Howeve r, we find that the circ uit
court failed t o ap ply the corr ect mathematica l formula to calc ulate plaintiffs’ mandatory statutory awa

rd for damag es under the I llinois Securities L aw. In addition, the circ uit court’s
attorn ey fees awa

rd was based on a perc entag e of that incorre ct damag e calc ulation. Acc ording ly
, we reve rse the circ uit court’s awa rd of damag es and attorney fee s and rema nd

-23-this matter to the circ uit court to calc ulate plaintiffs’ statutory damag es consistent with this

order
, to deter

mine a rea sonable amount of attorney fee s based on the corr ect damag es, and
to awar d attorney

fee s and costs incident to the a ppeal.

¶ 93 Affir

med in part a

nd reve rsed in par

t; cause r emande d with directions.

¶ 94 J USTI CE GORDON, c oncurr ing in pa rt and dissentingin part. ¶ 95 Iagree to the dispositi on of this case except as to the majority ’s ca lculation of intere st, to which I respe ctfully dissent be cause the plain and clea r languag e of section 13(A) of the I llinois Securities L aw of 1953 (the I llinois Securities L aw) does not allow interest char g ed
ag ainst that part of a principal the plainti ff h as alre ady rec overe d on. 815 I L CS 5/13(A) (West 2010). Section 13(A) states that ever y sale of secur ities in v i o lation of the I llinois Securities L aw shall be voidable at t he election of the pur chaser, and the s ellers as well as those who have aided the illega l sale of securities shall be held jointly and severally liable to the purcha ser “(1) for the full amount paid, toge ther with interest from the date of pay ment for the

secur ities sold at the rate of the interest or dividend stipulated in the secur ities sold *** less any income or other amounts rec eived by the purcha ser on the secur ities, upon offe r to tender to the s eller or tender into court of the secur ities sold or, where the secur ities

wer e not re ceive d, of any contra ct made in r espec t of the sale; or (2) if the purcha ser no longe r owns the secur ities, for the amounts set forth in clause (1) of this subsection A less any amounts rec eived by the purcha ser for or on acc ount of the disposition of the securities.” 815 I L CS 5/ 13(A) ( West 2010). The plain a

nd clea r lang uag e of se ction 13(A) only entitles the plaintiff t o interest cha rg ed
ag ainst the principal ba lance that rema ins after cre dits are g iven for pa

y ments made. ¶ 96 Since the majority has extensively related th e fa ct s , I wi ll repe at here only those fac ts from which our disag ree ment arises. Be tween 1987 and 1990, plaintiffs Mort o n an d Adrienne Goldfine made 12 separ ate purcha ses of First Capital Holdings (F C H) s tock throug h a b ro ker at Shearson L ehman Br others Holdings, Inc. (Shear son). The purcha ses totaled $4,745,254.45. FCH filed for bankruptc y in the spring of 1991, and plaintiffs reta ined the la w firm of Ba

rac k, Fe rrazz ano, Kirschba um & Perlman (B FKP) to neg otiate a settlement with Shearson and prese rve plaintiffs’ claims in case a settlement failed to materia liz e. The I llinois Securities L aw require d plaintiffs to file a resc issi o n n o t i ce within six months of lear ning of their rig ht to a statutory reme dy

. 815 I L CS 5/13(B) (West 2010). Howeve r, BF KP did not file a resc ission notice afte r lear ning of plaintiffs’ rig ht to the statutory reme dy
, and plaintiffs wer e later time barr ed from litigating their I llinois Securities L aw claims. Goldfine

v. Steinberg
, No. 1-00-1004 (2004) (unpublished order under Supreme Court Rule 2 3 ). Plaintiffs then filed this leg al malprac tice action aga i nst BF KP while simult aneously pursuing other available c laims ag ainst Shearson. In 2007, plaintiffs settled with Shearson for $3.2 million. ¶ 97 After plaintiffs’ s et t l em en t wi t h Shearson, plaintiffs litigated their leg al malpra ctice

-24-claims ag ainst BF KP in a bench trial. The trial court found that in the underly ing claim the Shearson defenda

nts violated t he I llino i s S ecurities L aw in the l ast 11 of t he plainti ffs’ 12 FCH stock purcha ses, and it found that the law firm was neg lige nt in not filing a timely

resc ission notice on the leg al malprac tice claim. The trial court then applied a “propor tionate reduc tion of $3,200,000.00 (71.00693%)” to eac h of the 11 purcha ses to obtain a “net” purcha se price for eac h transac tion which combined for a total of $1,306,602.29. The trial court lastly calc ulated an annual interest awa rd of 1 0 % fr o m t h e date of eac h sale through May 24, 2011. The resu l t ant awa rd from the I llinois Securities L aw claim equale d $4,091,752.19, and plaintiffs rec overe d an additional $1,843,868.08 in atto rn ey fe es and costs for da

mag es. ¶ 98 The majority follows Kugler v. Southmark Realty Partner III
, 309 I ll. App. 3d 790, 797- 98 (1999), in holding that the 10% annual int er es t aw ard must be calc ulated on the full
amount paid fo r t h e secur ities, before deductions are made for any income or amounts

rec ei v ed by plaintiff. The trial court followed the specia l concur renc e g iven in Kugler by J ustice J oseph Gordon. Kugler
, 309 I ll. App. 3d at 798-99 (Gordon, J
., specia lly concur ring ). Acc ording to the Kugler specia l concur renc e, the majority ’s interpre tation of section 13(A) of the I llinois Securities L aw of 1953 does not follow the plain languag e o f the statute beca use such an interpre tation strains the meaning of the word “intere st” while also confe rring a windfall on plaintiffs and le ading to a n absurd result. Kugler
, 309 I ll. App. 3d
at 798-99 (Gordon, J
., specia lly concur ring ). In other words, the majority g ives the plaintiff

a double rec overy

. Kugler
, 309 I ll. App. 3d at 798 (Gordon, J
., specia lly concur ring ) (“Since the purcha ser has the use of the money rec eived from the resa le, any interest rec eived ag ainst that sum would constitute a windfall and a n eff ective double rec overy

to the purcha ser.” ). ¶ 99 Section 1 3 (A )( 1 ) p rovi des that defe ndants are jointly and sever ally liable for the full
amount paid, along with acc rued interest less any income or other amounts that the purcha ser

rec eived for the secur ity

. 815 I L CS 5/13(A)( 1) (West 2010). For purcha sers who no longe r

own the secur ities, se ction 13(A)( 2) permits rec overy of the amounts set forth in c lause (1) less any amounts rec eived “for or on acc ount of the dispositi on of the secur ities.” 815 I L CS 5/13(A)( 2) (West 2010). As punishment for an offen d i n g p ar t y , courts may also g rant plaintiffs rec overy o f at t o rney fee s. 815 I L CS 5/13(A) (West 2010); see also Foreman v. Holsman , 10 I ll. 2d 551, 553-54 (1957). ¶ 100 Whil e judicial construction of any statute become s nece ssary only when the meaning of the statute is unclea

r or ambiguous (

Kugler
, 309 I ll. App. 3d at 797), a court must not cre ate rig hts that do not exis t in the statutory languag e. Gonzalez v. Profi l e S a nding Equipment, Inc.
, 333 I ll. App. 3d 680, 693 (2002) (citing Lemont-Brombe rek Combined School District No. 113( a) v. W alter
, 279 I ll. App. 3d 847, 850 (1996))

. Also, the court must assume that the leg islature did not intend for the statute’s provision to produce an absurd result or a double

rec overy

. Stewart v. Industrial Comm’n
, 115 I ll. 2d 337
, 3 4 1 (1 987) (citing City of Springfield v. Board of Election Commissioners
, 105 I ll. 2d 336, 341 (1985), and Fitzsimmons v. Norgle
, 104 I ll. 2d 369, 373 (1984)) ; see also Kugler
, 309 I ll. App. 3d at 798 (Gordon, J., specially

concur ring ). ¶ 101 He re , t h e p l ai n l an gu age of the statute does not clea rly support t h e m aj o ri t y ’s interpre tation. By its common definition, the word “intere st” constitutes the “ ‘price paid for

-25-borrowing money g ener ally expressed as a perc entag e of the amount borrowe d paid in one
y ear .’ ” Kugler
, 309 I ll. App. 3d at 799 (Gordon, J
., specia lly concur ring ) (quoting Webster’s Third New International Dictionary 1178 (1986))

. Intere st as a g ener al rul e serve s a compensatory purpose. See 47 C.J .S. Interest and Usury § 4 (2005); compar e Bla ck’s L aw Dictionary 816 (7th ed. 1999) (def ining interest as the “ compe nsation fix ed by agree ment or al l owed by law for the use or detention of money , or for the loss of money b y o n e wh o i s entitled to its use” (empha sis added)) , with Ba llentine’s L aw Dic tionary 648 (3d ed. 1969) (def ining interest as “ compe nsation allowed by law, or fix ed by the parties, for the use, detention, or forbe ara

nce of money or its equivalent” (empha sis added) ). Be cause the interest there fore corr elates with the principal and serve s a compensatory purpose under the common definition, the interest acc rual is g ener ally expected to cea se once the principal is rec overe d. Kugler
, 309 I ll. App. 3 d at 7 9 9 (Gordon, J
., specia lly concur ring ). Had the leg islature intended for the interest to continue to acc rue even ag ainst principal alre ady rec overe d by the plaintiff, then it would have expli citly draf ted that counterintuiti ve require ment into the
statute. J ustice J oseph Gordon’s specia l concur renc e does not permit the liable defe ndant to

rea p the benef

its of obtaining income on the secur ities g ratuit ously beca use the liable defe ndant s till must pay interest aga inst whatever part of the principal the plaintiff has not

rec overe d. By allowing for interest to acc rue on pri n cipal that has already been rec overe d, the majority cre ates for plaintiffs a rig ht that does not exis t in the statutory languag e: namely
, a rig ht to rec overy beyond the loss incurre d from the transac tions and attorney fee s. Fur thermore
, plaintiffs wer e fre e to dispose of the money s g ained from the settlement with the Shearson defe ndants as they please d. The majority ’s decision allows plaintiffs to collect interest on such m oney s alre ady in their possession, there by g iving plaintiffs a double

rec overy while concur

rentl y p ermitting them to rea p the benef

its of such money s from investments elsewhe re. ¶ 102 The l egi s l at u re co u l d n o t have intended for section 13(A)’ s prohibition of double

rec overy on amounts rec eived from the securities to permit a double rec overy on the interest. To the extent that section 13(A) serve s a punitive purpose, it does so by permitting courts to g rant plaintiffs rec overy for attorney fee s. 815 I L CS 5/13(A) (West 2010); see also Foreman
, 10 I ll. 2d at 553-54. Yet c onstruing the same sec tion to permit recove ry beyond losses and litigation expenses would contra dict the demonstrably compensatory motivation behind the leg islature’s decision to subtract from a plaintiff purcha ser’ s rec overy any amounts rec eived

on the secur ities or as a result of their dispositi on. The majority ’s interpre tation, which holds
t hat section 13(A)’ s expli cit denial of rec overy for amounts rec eived nonetheless p er m i t s

rec overy based on the interest of those same amounts, ultimately rests on the assumption that the leg islature intended to produce the absurd result of a windfall rec overy

. I cannot concur with this assumpt ion, and, thus, Imust respec tfully dissent.

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