# Sorenson v. Fio Rito > Appellate Court of Illinois · November 6, 1980 · 90 Ill. App. 3d 368 URL: https://www.frixlaw.com/law-library/cases/9737829 ## Case - **Full name:** CATHERINE F. SORENSON, Plaintiff-Appellee, v. MICHAEL FIO RITO, Defendant-Appellant - **Court:** Appellate Court of Illinois - **Decided:** November 6, 1980 - **Citations:** 90 Ill. App. 3d 368; 45 Ill. Dec. 714; 413 N.E.2d 47; 1980 Ill. App. LEXIS 4241 - **Precedential status:** Published - **Opinion:** Concurring in part by Linn - **Judges:** Jiganti, Linn - **Cited by:** 99 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9737829 ## How later opinions describe it (automated extraction) - finding that it is the province of the trier of fact to determine whether the plaintiff's efforts in her unsuccessful attempts to mitigate damages were reasonable - finding that it is the province of the trier of fact to determine whether the plaintiffs efforts in her unsuccessful attempts to mitigate damages were reasonable - finding that attorney fees could be awarded when fees constitute ordinary losses resulting from defendant's conduct ## Opinion text Mr. PRESIDING JUSTICE LINN, concurring in part and dissenting in part: I agree with the majority’s holding that the trial court properly found defendant liable to plaintiff for the penalties and interest plaintiff paid as a result of the late filing of the estate’s tax returns. However, I disagree with the holding of the majority affirming that portion of the judgment of the trial court which found defendant liable for the $1,500 in attorneys’ fees. Whether I would agree with the proposition of law that these kinds of attorneys’ fees should be recoverable in a case such as the present one is, I believe, irrelevant. This court should not overrule a prior decision, even a Federal decision interpreting Illinois law, unless it is necessary to do so. I think it was unnecessary in this case, for even assuming these kinds of attorneys’ fees are recoverable, I believe plaintiff failed to meet her burden in proving that she suffered these $1,500 as damages. The plaintiff had the burden of proving the damages she had suffered. In the present case, plaintiff allegedly suffered these $1,500 in attorneys’ fees as damages. These damages were supposedly incurred in her efforts to recover the penalties and interest, the actual damages suffered by plaintiff. Thus, plaintiff allegedly spent the $1,500 in her efforts to mitigate damages in this case. Expenses reasonably incurred by a plaintiff in an effort to mitigate damages may be recovered as damages regardless of whether the effort is successful or unsuccessful. (Kane v. City of Chicago (1946), 392 Ill. 172 , 64 N.E.2d 506 ; Peck v. Chicago Rys. Co. (1915), 270 Ill. 34 , 110 N.E. 414 ; Illinois Structural Steel Corp. v. Pathman Construction Co. (1974), 23 Ill. App. 3d 1 , 318 N.E.2d 232 .) However, a plaintiff must prove three particulars to recover these expenses. First, plaintiff must prove the amount of the expenses. Second, plaintiff must prove the expenses were reasonably incurred. Third, plaintiff must prove the amount of these expenses was reasonable. The only evidence in the record to justify the claim for $1,500 paid by plaintiff to her attorney is plaintiff’s testimony that she paid this amount and the following testimony of the attorney. The attorney said the $1,500 was paid to him as fees for his efforts to recover the penalties and interest. As justification for these fees, he said he had filed claims with the respective tax authorities and had contacted these authorities several times. No other evidence was admitted to prove these $1,500 in claimed damages. Because of this, I must assert that plaintiff completely failed to prove that she suffered these $1,500 in fees as recoverage damages. Plaintiff failed to prove that the attorneys’ fees were reasonably incurred as expenses in her unsuccessful effort to mitigate damages. No evidence was presented to show that there was any possibility that the attempt to recover the penalties and interest could have succeeded. Since the attempt to recover the penalties and interest was unsuccessful, I believe that plaintiff had to present some evidence to indicate that it was reasonable to even make an attempt to recover the penalties and interest. This would have required her to present some evidence from which it could be concluded that a reasonable possibility of success existed. Also, plaintiff has failed to prove that the $1,500 paid by her as fees was a reasonable amount. In cases in which attorneys’ fees have been allowed to be recovered in this State, it has been required that some evidence, usually attorney’s records detailing the services rendered, including time records, and the amounts charged for these services, be in the record to show the reasonableness of the fees claimed and awarded. (See In re Marriage of Jacobson (1980), 89 Ill. App. 3d 273 , 411 N.E.2d 947 .) In the present case, the only evidence in the record to show the reasonableness of the $1,500 in fees is the attorney’s testimony that he filed some claims and contacted the necessary authorities several times. This evidence is entirely insufficient to prove the reasonableness of the fees. Accordingly, I concur in the majority’s holding that plaintiff is liable for the penalties and interest, but I dissent in upholding the award of attorneys’ fees. Since plaintiff failed to prove that she had suffered the $1,500 as damages, I believe it was unnecessary to take the bold step of overruling a prior decision in this case. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9737829. Public record. Not legal advice.