City of McHenry v. Suvada ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
City of McHenry v. Suvada, 2011 IL App (2d) 100534
Appellate Court THE CITY OF McHENRY, Plaintiff-Appellant, v. VERA ANN
Caption SUVADA, Defendant-Appellee.
District & No. Second District
Docket No. 2–10–0534
Filed June 16, 2011
Held The trial court’s award of attorney fees to plaintiff city in an action
(Note: This syllabus arising from building code violations on defendant’s property was
constitutes no part of the affirmed, notwithstanding the fact that the city expended $27,000 in
opinion of the court but attorney fees and the trial court only awarded $1,500, since the attorneys
has been prepared by the began a litigation strategy before defendant was notified of a potential
Reporter of Decisions for violation and before they had any indication of whether defendant
the convenience of the would be cooperative, the city’s inspector testified that defendant was
reader.) cooperative, and the trial court found that the goal of bringing the
property into compliance could have been accomplished without
resorting to “aggressive litigation,” but the mandatory fine was modified
to reflect that the per diem fine commenced on the date of the first
inspection when defendant stipulated that the property was in violation,
not the date notice of the violations was formally issued to defendant.
Decision Under Appeal from the Circuit Court of McHenry County, No. 07–CH–1098;
Review the Hon. Michael J. Caldwell, Judge, presiding.
Judgment Affirmed as modified.
Counsel on Kevin A. Chrzanowski and Jennifer J. Gibson, both of Zukowski,
Appeal Rogers, Flood & McArdle, of Crystal Lake, for appellant.
Melissa A. Wick, of Michling, Hofmann, Vinton, Plaza & Wick, P.C.,
of Woodstock, for appellee.
Panel PRESIDING JUSTICE JORGENSEN delivered the judgment of the
court, with opinion.
Justices Hudson and Birkett concurred in the judgment and opinion.
OPINION
¶1 We publish this case for the purpose of bringing full circle our earlier, related opinion,
City of McHenry v. Suvada, 396 Ill. App. 3d 971 (2009), and clarifying certain issues raised
with respect to the trial court’s latitude in determining whether an ordinance violation exists,
the length of a mandatory fining period, and the City’s ability to collect attorney fees.
¶2 On December 16, 2009, this court determined that defendant, Vera Ann Suvada, was
subject to a mandatory fine for violating the City of McHenry’s building code. Id. at 984.
This court remanded for a determination of: (1) the number of days that Suvada’s property
was in violation; (2) the amount of the fine (restricted to the statutory range of $25 to $750
per day of violation); and (3) reasonable attorney fees incurred by the City in enforcing the
building code. Id. at 988. On remand, the parties agreed that the trial court could make its
determinations based entirely on the facts and evidence presented in the original trial.1
¶3 The trial court determined that Suvada’s property was in violation for 84 days and fined
Suvada $25 per day for a total fine of $2,100. As to attorney fees, the court found that,
because Suvada had been cooperative, the City could have accomplished its goal of having
the property brought into compliance without resort to “aggressive litigation.” The court
awarded the City attorney fees in the amount of $1,500, representing 10 hours of work at a
rate of $150 per hour, even though the City had expended over $27,000 in attorney fees.
¶4 The City appeals, arguing that the trial court’s finding that the property was in violation
for “only” 84 days was against the manifest weight of the evidence and that its award of
“only” $1,500 in attorney fees was an abuse of discretion. For the reasons that follow, we
determine that the property was in violation for 121 days and that the total fine should
1
It is for this reason that we are able to produce a relatively short opinion. We encourage
reference to our original opinion, Suvada, 396 Ill. App. 3d 971, for a more detailed account of the
background and evidence in this case.
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therefore be $3,025; however, the court did not abuse its discretion in awarding “only”
$1,500 in attorney fees. Accordingly, we affirm as modified.
¶5 A. Number of Days: Start Date
¶6 The City first argues that the trial court erred in finding that the property was in violation
for “only” 84 days. The 84 days represented the date the City formally issued Suvada a notice
of substandard and dangerous building conditions (August 15, 2007), to the date Suvada
applied for a building permit (November 18, 2007). We will not disturb a trial court’s finding
of fact unless it is against the manifest weight of the evidence. First Baptist Church of
Lombard v. Toll Highway Authority, 301 Ill. App. 3d 533, 542 (1998). To the extent that a
trial court’s judgment relies on the construction of a statute or ordinance, we review the
construction de novo. City of Chicago v. Old Colony Partners, L.P., 364 Ill. App. 3d 806,
812 (2006).
¶7 The City contends that the court erred in finding the start date to be August 15, 2007,
because, at the original trial, Suvada stipulated that the property was in violation on July 9,
2007, the date the City first inspected the property. The City, citing Old Colony, 364 Ill. App.
3d at 818, asserts that notice is not required before the mandatory daily fines set forth in the
City’s penalty provision are imposed. Suvada does not respond to this argument.
¶8 The City’s penalty provision states:
“Any person who violates *** any of the provisions of [the building code] *** shall
be punished by a fine of not less than $25.00 nor more than $750.00 and each day upon
which such violation continues shall constitute a separate offense.” McHenry Municipal
Code § 7–30(a) (eff. Dec. 4, 1987).
¶9 Like the penalty provision in Old Colony, section 7–30(a) of the City’s code mandates
a fine when the property is in violation, and it does not provide an exception based on lack
of notice. Old Colony, 364 Ill. App. 3d at 817-18 (noting that other provisions in the code,
such as those pertaining to injunctions, do require notice and an opportunity to cure, and that,
while those provisions help to establish a working relationship between a city and building
owners, penalty provisions without notice requirements serve an equally valid purpose–to
motivate owners to maintain their buildings at all times); see also Lawrence v. Regent Realty
Group, Inc., 197 Ill. 2d 1, 10 (2001) (where the language of a provision is clear and
unambiguous, it must be enforced as written, and a court may not depart from its plain
language by reading into it exceptions, limitations, or conditions not expressed by the
drafting body). Given that Suvada stipulated that the property was in violation beginning July
9, 2009, any later start date is against the manifest weight of the evidence.
¶ 10 B. Number of Days: End Date
¶ 11 The City also contends that the trial court erred in finding the end date to be November
18, 2007, the date that Suvada applied for a building permit to correct the violations and,
presumably, the date by which tenants had vacated the property. As to the end date, the trial
court explained, “Once the building permit was applied for and the construction began, this
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was just another house under construction. It was vacant just like any other house under
construction. It was not in violation of the ordinance because nobody was living there. There
was absolutely no threat to the health, safety, or welfare of the community.” (Emphasis
added.)
¶ 12 The City argues that Suvada actually continued to be in violation until somewhere
between August 25 and September 3, 2008, when the building was fully repaired and ready
for occupancy. The City argues that City of Chicago v. Cotton, 356 Ill. App. 3d 1 (2005), and
Old Colony, each involving a penalty provision similar to section 7–30(a) at issue here,
support a finding that Suvada must be fined until the property is fully repaired and ready for
occupancy. If Suvada were fined $25 for each of the 422 days from July 9, 2007, to
September 3, 2008, her total fine would be $10,550.
¶ 13 In arguing that the property is in violation until it is fully repaired and certified for
occupancy, the City fails to recognize the distinction between a flaw in the condition of the
building and a violation (i.e., not all flaws constitute violations). More critically, it overlooks
the precise language used in the various building code provisions. See Suvada, 396 Ill. App.
3d at 974-75 (citing McHenry Municipal Code §§ 7–251(c), (d), (e), (i), (j) (eff. Dec. 4,
1987), and International Property Maintenance Code 2000 §§ 108.1, 108.2, 303.2, 304.2,
304.3, 604.3).
¶ 14 As to the various building code provisions, we note that, where the code at issue uses
general terms and/or language that is open to interpretation, such as “dangerous and
hazardous,” it is within the discretion of the trial court to determine whether the state of the
building should constitute a violation. Suvada, 396 Ill. App. 3d at 984 (citing Old Colony,
364 Ill. App. 3d at 815). Use of such broad phrases brings an ambiguity (or vagueness),
which “grant[s] the fact finder latitude in deciding whether the condition of the building
merits fines or injunctive relief,” i.e., in deciding whether a violation exists. Old Colony, 364
Ill. App. 3d at 814-15. Here, the code provisions at issue use general qualifying terms such
as “dangerous,” “unsafe,” “hazard[ous],” and “fail[ure] to maintain.” See Suvada, 396 Ill.
App. 3d at 974-75 (further detailing the language of the code). Therefore, a trial court may
well find, as it did here, that a building is no longer “dangerous” once its tenants have been
removed or that the owner no longer “fail[s] to maintain” a certain aspect of the building’s
structure once he or she has taken a significant step toward repair and continues to repair the
building in a diligent manner.
¶ 15 Although our analysis of the language in the building code requirements is dispositive,
we address the City’s argument that Cotton and Old Colony support a finding that section
7–30(a) mandates a fine until the property is fully repaired and ready for occupancy. The
City’s reliance on Old Colony, 364 Ill. App. 3d at 818, and Cotton, 356 Ill. App. 3d at 4-7,
for the principle that “subsequent compliance” cannot mitigate a mandatory fine as
prescribed by section 7–30(a), is misplaced. The term “subsequent compliance,” as used in
those cases, refers to compliance after the contested period. For instance, in Cotton, the
defendant violated the building code for a period of 20 days when she failed to provide gas
service to her tenants. Cotton, 356 Ill. App. 3d at 2. That she provided her tenants with gas
service on day 21 did not vitiate her fine for days 1 through 20. Id. at 4-7. Indeed, in our first
opinion, we rejected the notion that a defendant who violates the building code for a period,
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yet subsequently complies prior to the hearing on the complaint, is no longer subject to any
fine. Suvada, 396 Ill. App. 3d at 983. This is not a case where the court vitiated a fine for the
period prior to the end date of the violation period.2
¶ 16 C. Attorney Fees
¶ 17 Next, the City argues that the trial court erred in awarding the City “only” $1,500 in
attorney fees. In awarding the fees, the trial court stated:
“I went on record [in the original trial] saying I didn’t think fees were necessary
because of the overly aggressive attitude of the [City]. *** Nevertheless, they did file
suit, they did appear in court, they did get a preliminary injunction and *** we did have
a hearing in the case. *** [Suvada] was compliant and the court will allow fees in the
amount of 10 hours at the rate of $150 per hour.”
The trial court’s award of attorney fees will not be disturbed by a reviewing court absent an
abuse of discretion. Mountbatten Surety Co. v. Szabo Contracting, Inc., 349 Ill. App. 3d 857,
873 (2004). A court abuses its discretion when no reasonable person would take its view.
Anest v. Audino, 332 Ill. App. 3d 468, 479 (2002).
¶ 18 The City contends that it should have been awarded over $27,000 in attorney fees. The
City notes that it incurred 53 hours of attorney fees, at a rate that varied between $140 and
$270 per hour, in pursuing its action against Suvada. The City cites to section 11–31–1(a)
of the Illinois Municipal Code, which provides:
“The cost of the demolition, repair, enclosure, or removal incurred by the
municipality *** including court costs, attorney’s fees, and other costs related to the
enforcement of this Section, is recoverable from the owner ***.” (Emphasis added.) 65
ILCS 5/11–31–1(a) (West 2006) (paragraph 4).
As we noted in our prior opinion, the City chose to move forward with its complaint that
Suvada’s building was in need of repair under section 11–31–1 of the Illinois Municipal
Code as opposed to section 11–31–2 because the former allows for the collection of attorney
fees whereas the latter does not. Suvada, 396 Ill. App. 3d at 986. It is well established that
a municipality seeking to recover attorney fees pursuant to section 11–31–1 has the burden
2
We further note, again, that the language of the penalty provision states: “any person who
violates [the building code] *** shall be punished by a fine of [between $25 and $750] and each day
upon which such violation continues shall constitute a separate offense.” (Emphasis added.)
McHenry Municipal Code § 7–30(a) (eff. Dec. 4, 1987). Although the difference is subtle, the
provision does not state that the violator will be fined until the problematic condition is cured; it
states that the violator will be fined for each day that the violation continues. Like the terms in the
building code that set forth what constitutes a violation, the word “continue” in the penalty provision
gives the fact finder some latitude. Webster’s Dictionary defines “continue” as “to allow or cause
to remain (in a place or condition).” Webster’s Third New International Dictionary 493 (1993).
Therefore, the term “continue” enables a trial court in the appropriate instance to find that a
defendant no longer “allow[s] [the condition] to remain” once he or she takes affirmative steps to
repair the building and proceeds in a diligent manner.
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of proving that the expenses incurred were reasonable. Village of Franklin Park v. Aragon
Management, Inc., 298 Ill. App. 3d 774, 778 (1998). In considering the reasonableness of the
fees, a trial court must consider the attorney’s skill and standing, the nature of the
controversy, the novelty and difficulty of the questions at issue, the importance of the subject
matter, the degree of responsibility in the management of the case, the time and labor
required, the usual and customary charge in the community, and the benefits resulting to the
client. In re Marriage of Ransom, 102 Ill. App. 3d 38, 41 (1981).
¶ 19 The City seems to accept Suvada’s position that section 11–31–1 provides for attorney
fees related only to its enforcement. 65 ILCS 5/11–31–1(a) (West 2006). The subject matter
of section 11–31–1 pertains to a municipality’s right to seek to “demolish, repair, or
enclose[ ] dangerous and unsafe buildings or uncompleted and abandoned buildings within
[its] territory.” 65 ILCS 5/11–31–1(a) (West 2006). Section 11–31–1 does not contain a
provision that sets forth applicable fines, and so it does not provide for attorney fees incurred
to prepare for a trial on fines and fees,3 which, as the City acknowledges, resulted here in at
least $16,000 of its requested fees.
¶ 20 The City argues that the trial court considered factors outside of those set forth in Ransom
when it stated that the City had pursued an “overly aggressive” litigation strategy. We
disagree. Whether the City’s litigation strategy was “overly aggressive” speaks to the
reasonableness of its fees. Specifically, it speaks to whether the fees were necessary to obtain
the resulting benefits to the client. Ransom, 102 Ill. App. 3d at 41. Here, the attorneys began
a litigation strategy before they even sent notice of a potential violation to Suvada and before
they had any indication of whether Suvada would be cooperative. The City’s inspector
testified that, throughout the inspection process, Suvada had at all times been cooperative.
The trial court found that many of the attorneys’ actions were not necessary to secure
enforcement of the code, and, in light of the factors set forth above, these findings were
reasonable.
¶ 21 III. CONCLUSION
¶ 22 For the aforementioned reasons, the finding that the property was in violation for 84 days
was against the manifest weight of the evidence; the property was actually in violation for
121 days, resulting in a fine of $3,025. We affirm the court’s award of attorney fees in the
amount of $1,500.
3
Regarding attorney fees for work incurred in an attempt to collect fines and fees, the City
points in its reply brief to section 1–8(b) of its code, which states that, “[i]n the event any charge or
fee, including *** fines [and] penalties, *** found in any section of the [code] that is due the City
and is not paid, the cost of collecting said fee and enforcing the ordinance shall be added to the fee.”
(Emphasis added.) McHenry Municipal Code § 1–8(b) (eff. Dec. 4, 1987). However, we have
already held that that portion of section 1–8(b) does not apply here, because Suvada never refused
to pay a fine due. Suvada, 396 Ill. App. 3d at 985. It was within the trial court’s discretion to find
that it would be unreasonable for Suvada to pay for the City’s battle with the courts where Suvada
was at all times compliant.
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¶ 23 Affirmed as modified.
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