Village of Franklin Park v. Aragon Management, Inc.

SECOND DIVISION
August 4, 1998

No. 1-97-2701

THE VILLAGE OF FRANKLIN PARK, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County
)
v. )
)
ARAGON MANAGEMENT, INC., ) Honorable
) Rene Goier,
Defendant-Appellee. ) Judge Presiding

PRESIDING JUSTICE McNULTY delivered the opinion of the court:
In this case we must construe provisions of the Illinois
Municipal Code (the Municipal Code) 65 ILCS 5/1-1-1 et seq. (West
1996)) that permit municipalities to recover costs of demolition and
related litigation. We hold that the statute requires application
of court rules to determine the reasonably necessary costs of
litigation.
On July 26, 1995, the Village of Franklin Park served on Aragon
Management, Inc., a notice for demolition of a building on property
Aragon owned. Aragon sought a hearing before Franklin Park's
building code board of appeals (the Board). The Board heard
evidence from both parties on September 15, 1995, and entered its
findings and decision upholding the notices on September 25, 1995.
Franklin Park filed this lawsuit for demolition on October 5,
1995. The parties actively pursued discovery, deposing several
experts along with other witnesses, over the following months, while
Aragon successfully delayed demolition. On May 23, 1996, Franklin
Park moved for summary judgment, arguing that the Board's decision
collaterally estopped Aragon from relitigating the factual issues
the agency decided. The trial court found that Aragon had not
appealed from the Board's decision, and the Board's findings of fact
required judgment in favor of Franklin Park. Neither party
challenges that decision on appeal.
Franklin Park demolished the building and petitioned to recover
costs of the demolition from Aragon. The comptroller filed a
supporting affidavit that itemized court costs of $393.62, statutory
witness fees of $393, postage costs of $209.94, court reporting
fees, primarily for depositions, of $5,015.80, expert witness
charges of $62,709.10, and miscellaneous costs including copying and
legal research, totalling $7,432.24. The demolition itself cost
$55,607. Franklin Park sought to recover all of the listed amounts,
for a total of $131,760.70. It included no request for attorney
fees.
The court considered separately each amount requested. Aragon
argued that deposition costs should not be recoverable because
Franklin Park did not use the depositions in support of the motion
for summary judgment the trial court granted. The court awarded
Franklin Park the demolition costs, court costs, and some copying
costs, plus $233 in board-up fees, which Franklin Park had not
listed in the petition. The award totals $56,364.65. Franklin Park
appeals from denial of witness expenses, court reporting fees, and
miscellaneous costs.
Section 11-31-1 of the Municipal Code 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
***." 65 ILCS 5/11-31-1 (West 1996).
Illinois courts have not specifically decided whether and to what
extent this statute requires the court to award deposition costs and
witness expenses. But our supreme court restated general principles
for interpretation of statutes allowing litigation cost recovery in
Galowich v. Beech Aircraft Corp., 92 Ill. 2d 157, 162, 441 N.E.2d 318 (1982):
"At common law, a successful litigant was not
entitled to recover from his opponent the costs and
expenses of the litigation. The allowance and recovery of
costs is therefore entirely dependent on statutory
authorization. [Citations.] Only those items designated
by statute to be allowable can be taxed as costs.
[Citation.] While the power to impose costs must
ultimately be found in some statute, the legislature may
grant the power in general terms to the courts, which in
turn may make rules or orders under which costs may be
taxed and imposed."
The statute at issue in Galowich provides that whenever a
plaintiff voluntarily dismisses a lawsuit, "the defendant shall have
judgment for his costs." Ill. Rev. Stat. 1979, ch. 33, par. 16.
The court held that because the statute did not further define the
costs to be awarded, court rules on the assessment of costs applied.
Galowich, 92 Ill. 2d at 165; see 134 Ill. 2d R. 208. The court
interpreted its rules to authorize "the trial court to tax as costs,
in its discretion, the expenses only of those depositions
necessarily used at trial." Galowich, 92 Ill. 2d at 166. Due to
the plaintiff's voluntary dismissal, the defendant used no
depositions, so the court disallowed any award for deposition costs.
Franklin Park argues that Galowich does not apply to this case
because of the difference between the statutes. The statute in
Galowich required only an award of "costs," whereas the Municipal
Code directs the court to award "court costs, attorney's fees, and
other costs related to the enforcement of this Section (65 ILCS
5/11-31-1 (West 1996))."
The court in City of Peru v. Bernardi, 81 Ill. App. 3d 227,
232, 401 N.E.2d 1 (1980), held that interpretation of the similar
Mechanics Lien Act (770 ILCS 60/1 et seq. (West 1996)) provided
useful guidance for interpretation of section 11-31-1 of the
Municipal Code. The Mechanics Lien Act provides that "[t]he costs
of proceedings as between all parties to the suit shall be taxed
equitably against the losing party." 770 ILCS 60/17 (West 1996).
Awards of the "costs of proceedings" under the Mechanics Lien Act
help guide awards of the litigation "costs related to the
enforcement" of the demolition provisions of the Municipal Code.
In Cleveland Wrecking Co. v. Central National Bank, 216 Ill.
App. 3d 279, 295-96, 576 N.E.2d 1055 (1991), the appellate court
held that the principles of Galowich apply to the Mechanics Lien
Act, precluding the award of expenses for depositions not used at
trial. We hold these same principles apply with equal force to the
Municipal Code and the award of costs related to the enforcement of
the statutory demolition provisions.
Franklin Park used none of the depositions or the testimony of
experts hired for this lawsuit to support its motion for summary
judgment based on res judicata. The experts and the depositions
were presented to neither the building code board of appeals nor the
trial court. The trial court did not abuse its discretion by
denying the petition for recovery of expert witness fees and court
reporting fees. Franklin Park also sought to recover statutory
witness fees and expenses for mailings to the experts and other
witnesses for their depositions. The court did not abuse its
discretion by denying the petition for those costs. Falkenthal v.
Public Building Comm'n, 111 Ill. App. 3d 703, 710-11, 444 N.E.2d 498
(1982).
Franklin Park had the burden of proving that the other expenses
it sought were reasonable. City of Bloomington v. Bible Truth
Crusade, 197 Ill. App. 3d 793, 797, 555 N.E.2d 117 (1990). Although
the affidavit supporting the petition itemizes the expenditures, it
does not provide sufficient information for the court to determine
the reasonable necessity for the costs. The court asked counsel
about the listed items and awarded those it found appropriate. The
trial court did not abuse its discretion by refusing the petition
for other costs not adequately supported. See Heller Financial,
Inc. v. Johns-Byrne Co., 264 Ill. App. 3d 681, 690, 637 N.E.2d 1085
(1994).
Franklin Park asks this court to hold that the Municipal Code
mandates the award of any sums the municipality requests, without
judicial review for the reasonable necessity of the charges. We
hold that the Municipal Code authorizes the award of only those
costs related to its enforcement, and it leaves to the discretion of
the court, applying court rules, the determination of which costs
are so related. Under the principles applicable to similar statutes
mandating cost awards, courts should award only the costs the
municipality shows to be reasonably necessary. Those costs do not
include the expenses of depositions not used in resolving the
litigation. Because the trial court did not abuse its discretion by
awarding Franklin Park the reasonably necessary costs of demolition
and related litigation, the judgment is affirmed.
Affirmed.
TULLY, J., concurs.
RAKOWSKI, J., specially concurs.
JUSTICE RAKOWSKI, specially concurring:

I agree with that portion of the majority decision holding that
Franklin Park has the burden of proving that the expert witnesses
and depositions were necessarily related to enforcement of the
unsafe buildings provision of the Municipal Code (65 ILCS 5/11-31-1
(West 1996)). I also agree that the able trial judge did not abuse
his discretion in finding that Franklin Park did not meet this
burden. I write separately to express disagreement with the
statement on the top of page five ( ___ Ill. App. 3d at ___) that
the principles of Galowich v. Beech Aircraft Corp., 92 Ill. 2d 157,
441 N.E.2d 318 (1982), apply to section 11-31-1 of the Municipal
Code.
According to section 2-1009 of the Code of Civil Procedure, a
"plaintiff may, at any time before trial or hearing begins *** upon
payment of costs, dismiss his or her action *** without prejudice."
(Emphasis added.) 735 ILCS 5/2-1009 (West 1996).
In Galowich, the supreme court defined "costs" as "allowances
in the nature of incidental damages awarded by law to reimburse the
prevailing party, to some extent at least, for the expenses
necessarily incurred in the assertion of his rights in court."
Galowich, 92 Ill. 2d at 165-66. Regarding depositions, the court
held that the prevailing party may only tax as costs the expense of
those depositions "necessarily used at trial." Galowich, 92 Ill. 2d
at 166-67.
In Cleveland Wrecking Co. v. Central National Bank, 216 Ill.
App. 3d 279, 576 N.E.2d 1055 (1991), we held that the principles of
Galowich precluded a wrecking contractor from recovering deposition
costs that were not necessary to its mechanics lien foreclosure
action. The Mechanics Lien Act provides that "[t]he costs of
proceedings *** shall be taxed equitably against the losing party."
770 ILCS 60/17(a) (West 1996). Cleveland Wrecking is not an
extension of Galowich. Rather, in Cleveland Wrecking we equated
"costs of proceedings under the Mechanics Lien Act" with "expenses
necessarily incurred in the assertion of [one's] rights in court"
pursuant to Galowich. Cleveland Wrecking, 216 Ill. App. 3d at 295-
96.
Both Galowich and Cleveland Wrecking deal with costs related to
court proceedings. Section 11-31-1, however, is broader in that it
allows "court costs, attorney's fees, and other costs related to the
enforcement of this Section." (Emphasis added.) 65 ILCS 5/11-31-
1(a) (West 1996). Given that municipalities often enforce the
unsafe buildings provision of the Municipal Code administratively,
court action is oftentimes unnecessary. This is not to say,
however, that the proceedings are not bitterly fought or protracted.
Expert testimony is frequently necessary.
In sum, I respectfully submit that the "necessarily used at
trial" standard announced in Galowich does not apply to costs
related to the enforcement of section 11-31-1 of the Municipal Code.