Palm v. 2800 Lake Shore Drive Condominium Ass'n ( 2010 )

FIFTH DIVISION
May 28, 2010
No. 1-08-2436
GARY PALM, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. )
)
2800 LAKE SHORE DRIVE CONDOMINIUM ) No. 00 CH 0679
ASSOCIATION, an Illinois Not-for-Profit Corporation, )
BOARD OF DIRECTORS of the 2800 LAKE SHORE )
CONDOMINIUM ASSOCIATION, and KAY S. )
GROSSMAN, Individually and as President of the Board. ) Honorable
) Sophia Hall,
Defendants-Appellants, ) Judge Presiding.
)
(The City of Chicago, )
)
Intervenor-Appellee.) )
)
JUSTICE FITZGERALD SMITH delivered the opinion of the court:
This cause of action arose when Gary Palm (Palm) sought production of various books
and records from 2800 Lake Shore Drive Condominium Association (Association), pursuant to
the City of Chicago Condominium Ordinance (Chicago Municipal Code, §13-72-080 (2009))
(the Ordinance). The Association did not comply. Palm subsequently brought suit against the
Association, the board of directors of 2800 Lake Shore Condominium Association (Board), and
Kay S. Grossman (Grossman), individually and as president of the Board (collectively,
defendants). Defendants claimed that the Association did not have to comply with the Ordinance
because it conflicted with existing Illinois law and, therefore, was invalid. The City of Chicago
No. 1-08-2436
(City) intervened, alleging that the Ordinance was validly enacted according to its home rule
power. The trial court granted Palm’s and the City’s (collectively plaintiffs’) motion for
summary judgment in regards to the production of various records, finding that the Ordinance
was valid and did not conflict with Illinois law. The trial court also granted interim attorney fees
to Palm’s attorney. Defendants now appeal, alleging that (1) the trial court erred in granting
summary judgment to plaintiffs because the Ordinance is invalid, (2) the trial court improperly
awarded attorney fees at a rate of $300 per hour, (3) trial court erred in refusing to consider
defendants’ motion for sanctions, and (4) the trial court erred in granting Palm’s request for
documents pursuant to the Association’s declaration. For the following reasons, we affirm.
I. BACKGROUND
The 2800 Lake Shore Drive building is a condominium building. There are more than
700 units in the association. Grossman had served as a member of the Board since 1982 and also
as president of the Board. Palm is a unit owner and served on the Board from 1992 to 1998.
While serving on the Board, Palm allegedly became aware of various improprieties and
departures from association bylaws, including (1) Grossman exceeded her authority by taking
action without authorization from the Board, (2) Grossman and the Association’s counsel did not
allow Board members access to Association documents, (3) Board members discussed
condominium business, voted, and took action without giving proper notice to or opportunity for
input from unit owners, (4) Grossman and management did not require bids on all contracts, (5)
management awarded contracts to relatives or entities owned by relatives without proper
notification to the Board, and (6) management did not hold “insider” contractors liable for faulty
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workmanship. Accordingly, Palm requested access to certain Association records. Grossman
and the Association counsel denied him access to such documents, claiming that he did not have
the right to inspect association records. Palm subsequently filed suit.
Palm filed his original complaint on January 13, 2000, naming the Association as the sole
defendant. Palm’s single-count complaint asked the trial court to grant an order requiring the
Association to allow him to inspect certain records, declaring members of the Board exempt
from having to state a proper purpose in order to obtain records, and declaring that the Board
may not take action except at an open meeting. The Association filed a motion to dismiss Palm’s
complaint, alleging in part that his prayer for relief was inconsistent with Illinois’s Condominium
Property Act (765 ILCS 605/1 et seq. (West 2004)) and the Ordinance. The trial court granted
the Association’s motion to dismiss the complaint, without prejudice.
Palm then filed a first amended complaint against defendants. Count IV, the only count
at issue in this appeal, alleged that the Association failed to produce books and records under the
Ordinance, the Condominium Property Act, the General Not For Profit Corporation Act of 1986
(805 ILCS 105/101.01 et seq. (West 2004)), and the Association’s declaration. Defendants filed
a motion to dismiss. The trial court entered an order requiring the parties to submit supplemental
briefs on whether the City properly enacted the Ordinance under its home rule authority, or
whether state law preempts the Ordinance. The parties filed supplemental briefs regarding such
issue.
The trial judge, Judge Sidney Jones, entered a memorandum opinion and order on
December 11, 2000, finding that Illinois law preempted the City’s home rule authority to enact
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the Ordinance, and thus, the Ordinance was invalid.
Palm then filed a motion to reconsider, and defendants filed a response. Soon thereafter,
the City filed a petition to intervene in support of Palm’s position. The trial court allowed the
City to intervene, but denied Palm’s motion to reconsider. Plaintiffs then each filed a second
motion to reconsider, and defendants responded.
A new trial judge granted the plaintiffs’ second motion to reconsider. The new trial judge
vacated the prior dismissal order and found that neither the Condominium Property Act nor the
General Not for Profit Corporation Act preempts the Ordinance.
On January 31, 2003, the trial court entered summary judgment in favor of Palm on count
IV and ordered the Association to immediately produce the requested documents to Palm.
Palm then petitioned the court for an award of interim attorney fees. Palm submitted that
an hourly rate of $300 was reasonable and appropriate. Palm noted that he paid his attorney $200
an hour, which was a reduced hourly rate. Palm alleged that it is typical in litigation where
attorney fees are recoverable pursuant to statute for an attorney and client to enter into a fee
agreement where the client pays a reduced hourly rate, with the reasonable attorney fees to be
determined upon the conclusion of the case. Palm filed an affidavit of retired Judge Kenneth
Gillis in support of his contention that $300 was a reasonable hourly rate, based on the market
value of the work done. In response to Palm’s petition, defendants argued that the court should
not entertain issues regarding attorney fees until the conclusion of the litigation and that Palm
was not necessarily the “prevailing plaintiff” under the ordinance. Defendants filed a motion for
sanctions against Palm for violation of the trial court’s January 20, 2006, order by disclosing in
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public filings the billing rate for the Association’s regular counsel. Defendants requested that, as
a sanction, Palm’s request for interim attorney fees be denied. The trial court refused to consider
defendants’ motion for sanctions and continued such motion generally.
On August 26, 2008, the trial court granted Palm’s petition for interim attorney fees and
found him to be the prevailing party under the Ordinance. The trial court awarded Palm fees at a
rate of $300 per hour for the period of time from November 1, 2001 to January 31, 2003.
Defendants now appeal the January 31, 2003, order granting Palm summary judgment, and the
August 26, 2008, order granting interim attorney fees.
II. ANALYSIS
On appeal, defendants claim that (1) the trial court erred in granting summary judgment
to plaintiffs because the Ordinance is invalid, (2) the trial court improperly awarded attorney fees
at a rate of $300 per hour, (3) the trial court erred in refusing to consider defendants’ motion for
sanctions, and (4) the trial court erred in granting Palm’s request for certain documents pursuant
to the declaration.
A. Ordinance a Valid Exercise of City’s Home Rule Power
Defendants’ first argument on appeal is that the trial court erred in granting summary
judgment to plaintiffs because the Ordinance upon which plaintiffs relied on is invalid.
Specifically, defendants allege that the portion of the Ordinance relating to the production of a
condominium association’s financial records is in direct conflict with both the Condominium
Property Act and the Illinois General Not for Profit Corporation Act. Plaintiffs respond that the
Ordinance’s provision authorizing inspection of association records by unit owners is a valid
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exercise of the City’s home rule power. We agree with the plaintiffs.
The trial court’s ruling that the Ordinance was an appropriate exercise of home rule
authority presents a question of law, which this court reviews de novo. People v. Whitney, 188
Ill. 2d 91, 98 (1999).
Under the Illinois Constitution, a municipality with a population exceeding 25,000 is
deemed a “home rule unit” and is granted authority to enact laws relating to the rights and duties
of its citizens:
“[A] home rule unit may exercise any power and perform any function pertaining
to its government and affairs including, but not limited to, the power to regulate
for the protection of the public health, safety, morals and welfare; to license; to
tax; and to incur debt.” Ill. Const. 1970, art. VII, §6(a).
There is no debate that the City of Chicago is a home rule unit. The above provision was
intended to give home rule units like Chicago the broadest powers possible to regulate matters of
local concern. Scadron v. City of Des Plaines, 153 Ill. 2d 164, 174 (1992). In addition, the
Illinois Constitution provides that the “[p]owers and functions of home rule units shall be
construed liberally.” Ill. Const. 1970, art. VII, §6(m). Here, defendants do not argue that the
City did not have home rule power to enact the Ordinance. Rather, they argue that Illinois law
conflicts with the Ordinance and thus preempts the Ordinance. We disagree.
The Ordinance states in pertinent part:
“No person shall fail to allow unit owners to inspect the financial books
and records of the condominium association within three business days of the time
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No. 1-08-2436
written request for examination of the records is received.” Chicago Municipal
Code §13-72-080 (2009).
The two provisions that defendants claims are in conflict with the Ordinance are found in
the Condominium Property Act and the General Not for Profit Corporation Act. The provision in
the Condominium Property Act authorizes any member of a condominium association to inspect,
examine, and make copies of certain association records at any reasonable time, at the
association’s principal office, when the request is made in writing and with particularity, and
provides that the association’s failure to make the records available within 30 days of receipt of
the request constitutes a denial. 765 ILCS 605/19(b), (e) (West 2008). The General Not for
Profit Corporation Act allows any member of such a corporation who is entitled to vote to
inspect the corporation’s books and records “for any proper purpose at any reasonable time.”
805 ILCS 105/107.75 (West 2008). Defendants argue that these two provisions are in direct
conflict with the Ordinance and, therefore, the Ordinance is invalid.
However, “[a] statute intended to limit or deny home rule powers must contain an express
statement to that effect,” Scadron, 153 Ill. 2d at 187, quoting Stryker v. Village of Oak Park, 62
Ill. 2d 523, 529 (1976). Unless a state law “specifically states that a home rule unit’s power is
limited, then the authority of the a home rule unit to act concurrently with the State cannot be
considered restricted.” (Emphasis in Origina.) Scadron, 153 Ill. 2d at 188. “‘Comprehensive’
legislation is insufficient to declare the state’s exercise of power to be exclusive.” City of
Chicago v. Roman, 184 Ill. 2d 504, 517 (1998). To meet the requirements of section 6(h) of the
Illinois Constitution, legislation must contain “express language that the area covered by the
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legislation is to be exclusively controlled by the State.” Village of Bolingbrook v. Citizens
Utilities Co. of Illinois, 158 Ill. 2d 133, 138 (1994). “It is not enough that the State
comprehensively regulates an area which otherwise would fall into home rule power.” Citizens
Utilities, 158 Ill. 2d at 138. “The General Assembly cannot express an intent to exercise
exclusive control over a subject through coincidental comprehensive regulation.” American
Health Care Providers, Inc. v. County of Cook, 265 Ill. App. 3d 919, 928 (1994).
Moreover, “[w]hen the General Assembly intends to preempt or exclude home rule units
from exercising power over a matter, that body knows how to do so.” Roman, 184 Ill. 2d at 517.
“In many statutes that touch on countless areas of our lives, the legislature has expressly stated
that, pursuant to section 6(h) or 6(i), or both, of article VII of the Illinois Constitution, a statute is
declared to be an exclusive exercise of power by the state and that such power shall not be
exercised by home rule units.” Roman, 184 Ill. 2d at 517.
Applying these principles to the case at bar, neither the Condominium Property Act nor
the General Not for Profit Corporation Act specifically excludes home rule units from governing
the manner by which a unit owner can gain access to a condominium association’s financial
books and records. Although the Ordinance does not contain the exact same language as the
Condominium Property Act and the General Not for Profit Corporation Act, that by no means
renders it invalid. See, e.g., Scadron, 153 Ill. 2d at 194 (“‘[t]he fact that the state has occupied
some field of governmental endeavor, or that home rule ordinances are in some way inconsistent
with state statutes, is not in itself sufficient to invalidate the local ordinances’”), quoting D.
Baum, A Tentative Survey of Illinois Home Rule (Part II): Legislative Control, Transition
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Problems, and Intergovernmental Conflict, 1972 Ill. L. F. 559, 572 ; Roman, 184 Ill. 2d at 519
(conflicting provisions of the Illinois Criminal Code and the Unified Code of Corrections did not
preempt home rule ordinance prescribing more stringent minimum prison sentence for assault
against the elderly where General Assembly did not specifically limit home rule power);
Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483, 505-06 (1984) (state statutes regulating
firearms did not preempt more restrictive local laws prohibiting possession of handguns where
statutes did not specifically state that firearms control was the subject of exclusive state control);
City of Evanston v. Create, Inc., 85 Ill. 2d 101, 104-09 (1981) (state regulation of landlord-tenant
relationship did not preempt authority of home rule municipalities to regulate that relationship
differently or more strictly).
Accordingly, because we find that neither the Illinois Condominium Act nor the Illinois
General Not for Profit Corporation Act specifically prohibits a home rule unit from governing the
process by which a unit owner may gain access to a condominium association’s financial records,
the Ordinance’s provisions regarding this subject are valid. Defendants’ reliance on City of
Oakbrook Terrace v. Suburban Bank & Trust Co., 364 Ill. App. 3d 506 (2006), does not convince
us otherwise.
In Oakbrook Terrace, the court concluded that the a city ordinance that provided for a
two-year amortization period for existing nonconforming advertising signs was an invalid
exercise of home rule authority because it precluded the remedy of just compensation under the
Illinois Eminent Domain Act (735 ILCS 5/7-101 (West 1998)). Oakbrook Terrace, 364 Ill. App.
3d at 516-18. The court found this to be the case despite the fact that there was no Illinois law in
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existence which expressly precluded the exercise of home rule authority in this area. Instead, the
court stated that ordinances which contravene state statutes have been deemed invalid exercises
of home rule authority. Oakbrook Terrace 364 Ill. App. 3d at 518.
We disagree with the majority opinion in Oakbrook Terrace and instead choose to follow
our supreme court’s precedent. As the dissent in Oakbrook Terrace noted, “Our supreme court
has instructed that, to limit home rule powers, the legislature must say specifically the ‘statute
constitutes a limitation on the power of home rule units to enact ordinances that are contrary to or
inconsistent with the statute.’ ” (Emphasis omitted.) Oakbrook Terrace, 364 Ill. App. 3d at 522
(Callum, J., dissenting), quoting Roman, 184 Ill. 2d at 520. The dissent went on to say:
“The supreme court has decided that a general reference to municipalities
in a state statute is not sufficient to preempt home rule powers. In Scadron, the
supreme court held that the legislature did not specifically express its intention to
limit a home rule unit’s concurrent power to regulate advertising signs where the
statute in question, which regulated outdoor advertising near federally funded
highways, referred simply to municipal zoning authorities. [Citation.]T he
statutory provision in that case read, in relevant part: ‘In zoned commercial and
industrial areas, whenever a State, county or municipal zoning authority has
adopted laws or ordinances, which include regulations with respect to the size,
lighting and spacing of signs *** the provisions of Section 6 [containing size,
light, and spacing limitations] shall not apply to the erection of signs in such
areas.’ [Citation.] Given this language, the issue in the case was not whether the
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legislature had specifically declared that the State had exclusive power to regulate
signs - the quoted section gave municipalities the power to regulate signs - but
whether it had specifically limited home rule units’ power to concurrently regulate
outdoor advertising signs along with the state. The court was not persuaded that
the statutory language was sufficiently specific to include home rule
municipalities. Noting that ‘[t]he legislature is perfectly capable of being specific
when it wants to be’ [citation], the court held that the statute did not preempt the
authority of home rule municipalities to regulate - including via more restrictive
regulations that included a total ban on signs under certain circumstances -
outdoor advertising signs in areas subject to the statutory provision. [Citation.]”
(Emphasis omitted.) Oakbrook Terrace, 364 Ill. App. 3d at 522.
We agree with the dissent in Oakbrook Terrace and note that the majority opinion in that
case failed to cite to any of our supreme court cases we discussed above. Accordingly, we are
unpersuaded by defendant’s reliance on Oakbrook Terrace and maintain that the provisions of the
Ordinance at issue constituted a valid exercise of the City’s home rule authority.
Defendants also allege, however, that the portion of the Ordinance allowing for attorney
fees to a unit owner who successfully obtains records from an association is preempted by
existing Illinois law and is therefore invalid. Plaintiffs respond first that this issue is waived, and
second, that the City has home rule authority because there is no existing state law that
specifically limits the remedies that a home rule unit may enact in particular circumstances. We
agree with plaintiffs.
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Initially we note that “[i]t is well settled that issues not raised in the trial court are deemed
waived and may not be raised for the first time on appeal.” Haudrich v. Howmedica, Inc., 169
Ill. 2d 525, 536 (1996). Although defendants raised the issue of whether the ordinance
provisions regarding records inspection by condominium owners were outside the City’s home
rule power, they failed to raise the issue of whether the ordinance provisions regarding attorney
fees were also outside the City’s home rule power. Accordingly, defendants have waived such
issue on review.
However, even if we were to nevertheless reach this issue, we would find that the
attorney fees provision in the Ordinance would not be preempted by state law and would be a
valid exercise of the City’s home rule power. As noted above, home rule units have the same
power as the sovereign, except where such powers are specifically limited by the General
Assembly. Roman, 184 Ill. 2d at 513; City of Evanston, 85 Ill. 2d at 115.
There is no question that Illinois has the power to provide for an award of attorney fees to
prevailing plaintiffs. See Taghert v. Wesley, 343 Ill. App. 3d 1140, 1147-48 (2003) (court
upheld Illinois Condominium Property Act’s provision for attorney fees where a plaintiff
succeeds in an action against a condominium association to compel disclosure of books and
records); Becovic v. City of Chicago, 296 Ill. App. 3d 236 (1998) (upholding attorney fees
provision under Illinois Human Rights Act). Thus, the City of Chicago, as a home rule unit, has
the same power to provide for attorney fees to a prevailing party, as long as it is not specifically
preempted by state legislature. See Atkins v. City of Chicago Comm. on Human Relations, 281
Ill. App. 3d 1066, 1077 (1996) (upholding award of attorney’s fees by Chicago Commission on
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Human Relations where Illinois Human Rights Act’s provision for attorney fees in state matter
did not limit that remedy by “denying or restricting the same right to local matters”). None of
these Illinois statutes contradicts the fee provision in the Ordinance.
Defendants nevertheless rely on City of Naperville v. Lerch, 198 Ill. App. 3d 578 (1990),
and Village of Glenview v. Zwick, 356 Ill. App. 3d 630 (2005), to support their proposition that
state law preempts the Ordinance’s provision on attorney fees. In Lerch, the court noted that the
general rule is that absent a statute or agreement of the parties, the parties generally pay their own
attorney fees. Lerch, 198 Ill. App. 3d at 583-84. The court went on to hold that a home rule
ordinance is not a statute, so a home rule unit’s ordinance that provided for an attorney fee award
contrary to the general rule was unauthorized. Lerch, 198 Ill. App. 3d at 583-84. The court
noted, “we have found no case law, nor has plaintiff provided any, that raises an ordinance of a
municipality *** to the level of a statute of the General Assembly.” Lerch, 198 Ill. App. 3d at
584.
We agree with plaintiffs, however, that this holding cannot be reconciled with section 6(i)
of the article VII of the Illinois Constitution. As stated by our supreme court in Roman eight
years after Lerch, a home rule unit’s ordinance is elevated to the level of a statute so long as (1)
the ordinance pertains to the unit’s government and affairs, and (2) the subject matter of the
ordinance was not excluded or preempted. See Roman, 184 Ill. 2d at 513; Zwick, 356 Ill. App.
3d at 638. As noted above, defendants do not contend that the Ordinance does not pertain to the
City’s government and affairs. Additionally, the subject matter of attorney’s fees has not been
specifically preempted by the State. Accordingly, we are unpersuaded by defendants’ reliance on
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Lerch.
In Zwick, Glenview (a home rule unit), filed a complaint against the defendant alleging
that defendant had violated its refuse ordinance. Zwick, 356 Ill. App. 3d at 631-32. Glenview
sought attorney fees under a village ordinance which provided:
“‘If the Village proceeds in any court of record to enforce and/or defend any
provisions of the Municipal Code of the Village of Glenview, as from time to time
amended, and is successful in either the enforcement or defense proceedings as
referred to herein, the village shall recover its reasonable attorney[] fees and costs
incurred in the course of those proceedings from the person and/or entity who has
been found to have violated the Municipal Code of the Village of Glenview
and/or who has initiated proceedings.’” Zwick, 356 Ill. App. 3d at 632, quoting
Glenview Municipal Code, Ch. 1, §1.13 (eff. June 21, 1994).
The trial court held that the fee-shifting ordinance was an improper exercise of
Glenview’s home rule authority and the reviewing court affirmed. Zwick, 356 Ill. App. 3d at
641. The court found that the ordinance did not pertain to its local government and affairs
because it discouraged those who received a citation from Glenview from challenging it in state
court for fear that they would have to pay Glenview’s attorney fees if they lost. This therefore
impacted access to the state court system. See Zwick, 356 Ill. App. 3d at 641. The court noted,
“Glenview’s fee-shifting ordinance represents a real and immediate danger to a citizen’s right to
challenge a Glenview ordinance he or she finds doubtful, as it discourages litigation concerning
the validity of any of its ordinances.” Zwick, 356 Ill. App. 3d at 641.
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Conversely in the case at bar, the Ordinance provision in question states that “[i]n any
action brought to enforce any provision of [the Ordinance] *** the prevailing plaintiff shall be
entitled to recover, in addition to any other remedy available, his reasonable attorney fees.”
Chicago Municipal Code §13-72-100 (2009). The Ordinance does not state, as it did in Zwick,
that if the plaintiff who brings the case does not prevail, he must pay the City’s attorney fees.
Therefore, the Ordinance’s attorney fee provision is a consumer protection provision allowing
plaintiffs to bring a meritorious action to enforce the Ordinance without fearing a financial loss.
This provision in no way discourages litigation concerning the validity of the Ordinance, as it did
in Zwick. See Zwick, 356 Ill. App. 3d at 641. Illinois courts have routinely upheld state and
local attorney fees provisions that serve this purpose, as noted above. See also Pitts v. Holt, 304
Ill. App. 3d 871, 873 (1999) (upheld attorney fee provision in city’s landlord-tenant ordinance
because such “attorney fees provisions are meant to give a financial incentive to attorneys to
litigate on behalf of those clients who have meritorious cases but who, due to the limited nature
of the controversy, would not normally consider litigation as being in their client’s financial best
interest); Page v. City of Chicago, 299 Ill. App. 3d 450, 467-68 (1998) (upheld attorney fee
provision in city’s human rights ordinance and noted that “an award of attorney fees is required
to ensure that individuals filing complaints, who are often economically disadvantaged, receive
proper representation and to enforce the public policy goals behind the legislation”).
Accordingly, we find defendants’ argument that the fee provision in the Ordinance is invalid is
without merit.
B. Amount of Attorney Fees
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Defendants’ next contention on appeal is that the trial court improperly awarded attorney
fees at a rate greatly in excess of the amount of attorney fees incurred by Palm. Defendants
allege that Palm contracted with his attorney to pay $200 per hour, and that Palm did in fact pay
his attorney $200 per hour for his legal services, yet the trial court awarded Palm’s attorney fees
at a rate of $300 per hour. Palm responds that the $200 hourly rate was a reduced rate his
attorney allowed him to pay, but that $300 is the reasonable rate based on the market value of the
work It is well settled that the party seeking attorney fees always bears the burden of presenting
sufficient evidence from which the trial court can render a decision as to their reasonableness.
LaHood v. Couri, 236 Ill. App. 3d 641, 648 (1992). An appropriate fee consists of reasonable
charges for reasonable services; however, to justify a fee, more must be presented than a mere
compilation of hours multiplied by a fixed hourly rate or bills issued to the client, since this type
of data, without more, does not provide the court with sufficient information as to their
reasonableness. LaHood, 236 Ill. App. 3d at 648. Rather, the petition for fees must specify the
services performed, by whom they were performed, the time expended thereon, and the hourly
rate charged therefor. LaHood, 236 Ill. App. 3d at 648-49. Because of the importance of these
factors, it is incumbent upon the petitioner to present detailed records maintained during the
course of the litigation containing facts and computations upon which the charges are predicated.
LaHood, 236 Ill. App. 3d at 648-49.
Once presented with these facts, the trial court should consider a variety of additional
factors such as the skill and standing of the attorney, the nature of the case, the novelty and/or
difficulty of the issues and work involved, the importance of the matter, the degree of
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responsibility required, the usual and customary charges for comparable services, the benefit to
the client, and whether there is a reasonable connection between the fees and the amount
involved in the litigation. LaHood, 236 Ill. App. 3d at 649. The decision of the trial court will
not be reversed absent an abuse of discretion. LaHood, 236 Ill. App. 3d at 649.
In the case at bar, Palm provided the trial court with detailed records containing facts and
computations upon which he predicated his charge for attorney fees. He also presented the court
with information about his attorney’s skill and standing, the nature of the case, the usual and
customary charges for comparable services, and an affidavit of a retired judge in support of his
petition for attorney fees. The trial court considered all these facts and found that the reasonable
fee was $300 an hour for services rendered. We do not find that the trial court abused its
discretion in coming to such conclusion.
C. Motion for Sanctions
Defendants’ next contention on appeal is that the trial court erred in refusing to consider
their motion for sanctions alleging that Palm violated an order of the court. Defendants argue
that if the trial court had considered the motion, the trial court would have struck down Palm’s
request for attorney fees based on his “blatant disregard for the court’s January 20, 2006, order
establishing the procedure for considering attorney’s fees in this case.” Palm responds that the
motion for sanctions is not a part of this appeal, as it was continued in the trial court.
The trial court’s January 20, 2006, order provided in pertinent part that “[t]he scope of
discovery related to Plaintiff’s pending interim fee petition, presented to the Court on or about
September 19, 2005, will be governed by N.D. Ill. Local Rule 54.3 (‘the Rule’), including the
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confidentiality provisions of that Rule.” The confidentiality provisions of Rule 54.3 provide as
follows:
“All information furnished by any party under this section
shall be treated as strictly confidential by the party receiving the
information. The information shall be used solely for purposes of
fee litigation and shall be disclosed to other persons, if at all, only
in Court filings or hearings related to the fee litigation. That party
receiving such information who proposes to disclose it in a Court
filing or hearing shall provide the party furnishing it with prior
written notice and a reasonable opportunity to request an
appropriate protective order.” N.D. Ill. Local R. 54.3(d).
The parties then confidentially exchanged billing records relating to the time spent by
each side on the matter, including hourly rates. Thereafter, Palm filed a motion for partial
summary judgment, which disclosed the association’s general counsel’s hourly rate. Defendants
then filed a motion for sanctions arguing that because the motion for partial summary judgment
was a pleading unrelated to the fee litigation and not filed under seal, it constituted a violation of
the trial court’s January 20, 2006, order when it included general counsel’s hourly rate.
Defendants contended that the trial court should sanction Palm for such a violation by vacating
his interim attorney fee award and requiring Palm to pay defendants’ reasonable attorney fees
incurred in preparing and presenting the motion for sanctions.
The trial court ordered that any issues related to the motion for sanctions were continued
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generally, and then it issued its order granting Palm’s request for attorney fees. Defendants argue
that had the trial court considered their motion for sanctions, it would have struck Palm’s request
for interim fees based on his disregard for the January 20, 2006, order.
We first note that this section of defendants’ brief contains absolutely no citations to legal
authority whatsoever. Supreme Court Rule 341(h)(7) provides that an appellant’s brief must
contain “the contentions of the appellant and the reasons therefor, with citations of the authorities
and the pages of the record relied on.” 210 Ill. 2d R. 341(h)(7). Furthermore, if a point is not
argued, it is waived and cannot be raised in a reply brief, oral argument, or petition for rehearing.
210 Ill. 2d R. 341(h)(7). “The well-established rule is that mere contentions, without argument
or citation of authority, do not merit consideration on appeal.” People v. Hood, 210 Ill. App. 3d
743, 746 (1991). “Contentions supported by some argument but by absolutely no authority do
not meet the requirements of Supreme Court Rule 341([h])(7).” Hood, 210 Ill. App. 3d at 746.
“A reviewing court is entitled to have the issues clearly defined with pertinent authority cited and
is not simply a depository into which the appealing party may dump the burden of argument and
research.” Hood, 210 Ill. App. 3d at 746. Accordingly, we may treat the issue raised as having
been waived for failure to cite authority.
Waiver aside, we find that this issue is not a final, appealable order and is therefore not
properly before this court at this time. At trial, the court continued the motion for sanctions,
choosing not to rule on it before granting plaintiffs partial summary judgment. Accordingly, the
trial court’s continuance was not a final and appealable order because the order did not finally
determine the respondent’s rights and status as to the matter of sanctions, and it was subject to
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further determination by the court. See In re Guzik, 249 Ill. App. 3d 95, 99 (1993).
D. Declaration Provisions
Defendants’ final contention on appeal is that the trial court erred in allowing production
of certain documentation pursuant to the association’s declaration. Defendants note that the trial
court found that Palm was entitled to records based on both the Ordinance and section 6.05 of the
declaration. They argue that the trial court should not have allowed document requests based on
section 6.05 of the Declaration because that section conflicts with section 19 of the Illinois
Condominium Property Act (the Act) (765 ILCS 605/4.1 (b) (West 2004)), and therefore Palm’s
requests for certain documents should have been denied. Specifically, defendants argue that
section 6.05 of the declaration does not require a plaintiff to state a proper purpose for requests of
financial records, while section 19 of the Act requires a plaintiff to state a proper purpose for
requests of financial records.
We must first note that defendants have again failed to cite to a single point of authority
in support of their proposition. As noted above, Supreme Court Rule 341(h)(7) provides that an
appellant’s brief must contain “the contentions of the appellant and the reasons therefore, with
citations of the authorities and the pages of the record relied upon.” 210 Ill. 2d R. 341(h)(7).
“Contentions supported by some argument but absolutely no authority do not meet the
requirements of Supreme Court Rule 341([h])(7).” Hood, 210 Ill. App. 3d at 746. Accordingly,
we may treat this issue as waived for failing to cite to authority.
Waiver aside, we note that section 4.1(b) of the Act, which defendant relies on, provides
that except to the extent otherwise provided by the declaration or other condominium instruments
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No. 1-08-2436
recorded prior to the effective date of this Act, “in the event of a conflict between the provisions
of the declaration and the bylaws or other condominium instruments, the declaration prevails
except to the extent the declaration is inconsistent with this Act.” 765 ILCS 605/4.1(a)(6)(b)
(West 2004). Defendants claim section 6.05 of the declaration is inconsistent with section 19 of
the Act and, therefore, the trial court erred permitting financial records to be produced to Palm.
Section 6.05 of the declaration states:
“The Board shall keep full and correct books and records in
chronological order of the receipts and expenditures affecting the
Common Elements, specifying and itemizing the maintenance and
repair expenses of the Common Elements and any other expenses
incurred. Such records and the vouchers authorizing the payments
shall be available for inspection at the office of the Association, if
any, by any Unit Owner or any holder of a first mortgage lien on a
Unit Ownership, at such reasonable time or times during normal
business hours as may be requested by the Unit Owners. Upon ten
(10) days notice to the Board and payment of a reasonable fee, any
Unit Owner shall be furnished a statement of his account setting
forth the amount of any unpaid assessments or other charges due an
owing from such Unit Owner.”
Defendants point to section 19(a)(9) and section 19(e) of the Act as being inconsistent
with the above provision. Such sections provide that an association member shall have the right
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No. 1-08-2436
to inspect the books and records of account for the association’s current and ten immediately
preceding years, only for a proper purpose stated in writing. We do not find that the Act and the
declaration are inconsistent just because one requires a proper purpose to be stated and one does
not, before inspecting financial records. And even if we were to find that the Act superceded the
declaration and Palm was required to state a proper purpose in writing, we would find that he did
so. In his original letter to the association, Palm stated that he was seeking documents to
establish fraud, mismanagement, or self-dealing. It has been held that a proper purpose for
inspecting books and records under the Act is to establish corporate mismanagement, and this
court has held that “where a unit owner asserted a good-faith fear of mismanagement of financial
matters by the association, he established a proper purpose to inspect the records of the
condominium association’s delinquency reports and itemized bills.” Taghert v. Wesley, 343 Ill.
App. 3d 1140, 1146-47 (2003). Accordingly, we find that the trial court did not err in granting
Palm’s request for financial records.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
Judgment affirmed.
TOOMIN, P.J., and HOWSE, J., concur.
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