Village of Cary v. Trout Valley Ass'n

June 1, 1998

No. 2--97--0687

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

THE VILLAGE OF CARY, ) Appeal from the Circuit Court
) of McHenry County.
Plaintiff-Appellee and )
Cross-Appellant, )
)
v. ) No. 94--ED--0008
)
TROUT VALLEY ASSOCIATION, )
) Honorable
Defendant-Appellant and ) Michael J. Sullivan,
Cross-Appellee. ) Judge, Presiding.


JUSTICE COLWELL delivered the opinion of the court:
The Village of Cary filed a petition to condemn two easements
running across Trout Valley Association s property. In its
petition, the Village alleged that section 11--139--12 of the
Illinois Municipal Code (65 ILCS 5/11--139--12 (West 1996))
authorized the condemnation. The Association moved to dismiss, in
part arguing that, because the Village s authorizing ordinance did
not comply with section 11--139--12, the Village lacked the
authority to condemn the easements. The trial court denied the
motion, and, following a trial on the issue of just compensation,
a jury awarded the Association $50,000. The Association appealed,
and this court held that the Village did not have the authority to
condemn the easements. See Village of Cary v. Trout Valley Ass'n,
282 Ill. App. 3d 165, 174 (1996) (Cary I). Accordingly, we vacated
the trial court s judgment and remanded the cause for the dismissal
of the Village s petition. Cary I, 282 Ill. App. 3d at 174.
On remand, the Association moved to dismiss the Village s
petition and vacate the order vesting title. The trial court
promptly granted that motion. In addition, pursuant to sections 7-
-111 and 7--123 of the Code of Civil Procedure (735 ILCS 5/7--111,
7--123 (West 1996)), the Association filed an application to
recover its attorney fees and costs. The Village moved to strike
the application in its entirety, arguing that the trial court did
not have the jurisdiction to hear it. In the alternative, the
Village moved to strike those portions of the application relating
to the Association s appellate fees, arguing that the Association
was precluded from recovering those fees as a matter of law. After
concluding that it had jurisdiction, the trial court ruled that the
Association was precluded as a matter of law from recovering its
attorney fees and costs for prosecuting the Cary I appeal. The
trial court then awarded the Association nonappellate attorney fees
and costs in the amount of $52,988.24.
The Association again appeals, arguing that the trial court
erred in denying the Association s application for the fees and
costs incurred in prosecuting the Cary I appeal. The Association
also requests the attorney fees and costs incurred in prosecuting
this appeal. The Village cross-appeals, arguing first that the
trial court lacked the jurisdiction to consider the Association s
application for fees and costs. In the alternative, the
Association argues that (1) the Association waived review of the
trial court s ruling on the fee application; (2) the trial court s
ruling on that application nevertheless was correct; and (3) the
Association is not entitled to recover its attorney fees and costs
for prosecuting this appeal. We affirm in part, reverse in part,
and remand with directions.
I
Nonpublishable material under Supreme Court Rule 23 omitted.

II
Nonpublishable material under Supreme Court Rule 23 omitted.

III
We next must decide whether the trial court erred in holding
that the Association was precluded as a matter of law from
recovering its attorney fees and costs for the prosecution of the
appeal in Cary I.
The Association filed its application for attorney fees and
costs pursuant to section 7--123(a) of the Code of Civil Procedure
(735 ILCS 5/7--123(a) (West 1996)). Section 7--123(a) provides, in
relevant part:
[I]f the final judgment is that the plaintiff cannot acquire
the property by condemnation, the court shall, upon the
application of the defendants or any of them, enter such order
in such action for the payment by the plaintiff of all costs,
expenses and reasonable attorney fees of such defendant or
defendants paid or incurred by such defendant or defendants in
defense of the complaint, as upon the hearing of such
application shall be right and just, and also for the payment
of the taxable costs. 735 ILCS 5/7--123(a) (West 1996).
In denying the Association s petition for appellate fees and costs,
the trial court relied exclusively upon the Illinois Supreme
Court s decision in Department of Public Works & Buildings v.
Lanter, 15 Ill. 2d 33 (1958). After carefully examining both
Lanter and section 7--123(a), we are convinced that the trial court
should have awarded the Association its attorney fees for
prosecuting the Cary I appeal.
In Lanter, the Department filed a petition to condemn Lanter s
property. Lanter, 15 Ill. 2d at 34. After the trial court granted
Lanter s motion to dismiss, the Department appealed to the Illinois
Supreme Court which reversed and remanded. Lanter, 15 Ill. 2d at
35. Almost four years passed without the Department taking any
action on the petition, and Lanter moved to dismiss the
condemnation as abandoned. Lanter, 15 Ill. 2d at 35. Lanter also
filed an application to recover attorney fees pursuant to section
10 of the Eminent Domain Act (Ill. Rev. Stat. 1955, chap. 47, par.
10) (now 735 ILCS 7--123(a) (West 1996))). The trial court granted
the motion, dismissed the condemnation, and awarded Lanter his
attorney fees for services rendered in both the trial court and on
appeal. Lanter, 15 Ill. 2d at 36.
The Department appealed to the Illinois Supreme Court, in part
arguing that Lanter was not entitled to recover his attorney fees
for the first appeal. Lanter, 15 Ill. 2d at 39. In support, the
Department cited the Illinois Supreme Court s decisions in
Commissioners of Lincoln Park v. Schmidt, 395 Ill. 316 (1946) and
Forest Preserve District of Cook County v. Kean, 303 Ill. 293
(1922). Specifically, the Department cited the following language
from Kean:
'[Section 10] is not broad enough to include costs and
expenses on appeal by a property owner prosecuted to reverse
the judgment. The provision of the statute is for the payment
by the petitioner of all costs, expenses and reasonable
attorney s fees of the defendant paid or incurred in defense
of the petition, and that does not include the costs and
expenses of a removal to this court by appeal to set aside the
judgment.' Lanter, 15 Ill. 2d at 39, quoting Kean, 303 Ill. at 296.
The Department also cited Schmidt, in which the court reaffirmed
Kean, for the proposition that the attorney fees for which the
Department was required to pay must be limited to those incurred
in the trial court. Lanter, 15 Ill. 2d at 39. Relying upon these
principles, the Department argued that, as a matter of law, a
property owner defending a condemnation may never recover its
appellate fees and expenses. Lanter, 15 Ill. 2d at 39.
In response, Lanter argued that Kean s importance lay not in
its explicit holding but rather in its ratio decidendi. Lanter, 15 Ill. 2d at 39-41. In Kean, the property owner appealed from the
trial court s judgment, arguing that the compensation award was too
low. Kean, 303 Ill. at 293-94. Thus, Lanter argued, Kean s ratio
decidendi bars compensation for attorney fees only where the
appeal [is] taken by the dissatisfied property owner. Lanter, 15 Ill. 2d at 39-40. In support, Lanter pointed to certain statements
from the Kean court evidencing an intention not to encourage
appeals by disgruntled property owners who have had their day in
court and wish to secure greater awards. Lanter, 15 Ill. 2d at
40.
The Illinois Supreme Court agreed with Lanter. Lanter, 15 Ill. 2d at 40. In so doing, it explained that it is evident that
the terms of section 10 do not restrict the attorney fees payable
to those incurred in the trial court. Lanter, 15 Ill. 2d at 40.
Rather, [t]he plain intent of that provision is to pay defendants
for all reasonable attorney fees incurred in defense of the
condemnation petition under the circumstances specified in section
10. Lanter, 15 Ill. 2d at 40. From these premises, the court
drew the following conclusion:
Where that defense must be made, not merely in the trial
court, but also in a reviewing court because the Department
has taken an appeal to that court, and defendant has no choice
in the matter, then the attorney fees incurred in connection
with that appellate court proceeding must be deemed to be an
integral part of the defense of the condemnation petition, and
should be recoverable under the statute. Where, however, the
appeal is taken by the defendant property owner, and the
choice of proceeding in another court is his, then the legal
services in that court need not be regarded as an integral
part of the defense of the condemnation petition, and the fees
for such services should not be compensable under the
statute. Lanter, 15 Ill. 2d at 40.
Applying this new rule to the facts before it, the court held that,
because the Department had taken the original appeal, Lanter was
entitled to recover all reasonable fees incurred in defending that
appeal. Lanter, 15 Ill. 2d at 41. The court emphasized that its
interpretation of section 10 in no way encourages prolonged
condemnation litigation, yet fairly compensates defendant for
attorney fees if he is compelled to defend beyond the trial court.
Lanter, 15 Ill. 2d at 40-41.
In the present case, we must decide whether Lanter precludes
the Association from recovering its attorney fees and costs for the
Cary I appeal. In arguing that it does, the Village relies
exclusively upon the Lanter court s statement that, where the
appeal is taken by the defendant property owner, *** the fees for
such services should not be compensable under the statute.
Lanter, 15 Ill. 2d at 40. According to the Village, this statement
constitutes an unambiguous and unqualified prohibition on the
recovery of appellate fees and costs whenever the property owner
takes the appeal. Thus, because the Association took the appeal in
Cary I, the trial court properly denied the Association s
application to recover the expenses incurred in prosecuting that
appeal.
In response, the Association urges us to read Lanter narrowly
and in light of its facts. According to the Association, the
Lanter court considered only two scenarios when it crafted the rule
relied upon by the Village: (1) the condemning authority appealing
from a dismissal, and (2) the property owner appealing from the
monetary judgment. The court neither contemplated nor considered
the implications of a property owner appealing from an erroneous
denial of a motion to dismiss. Because the Lanter court did not
consider that scenario when crafting its rule, the Association asks
us, when analyzing that scenario, to look not to Lanter s specific
holding but to the principles that informed that holding.
Specifically, the Association emphasizes the Lanter court s
statement that its interpretation of section 10 in no way
encourages prolonged condemnation litigation, yet fairly
compensates defendant for attorney fees if he is compelled to
defend beyond the trial court. Lanter, 15 Ill. 2d at 40-41. The
Association insists that, had it considered the issue, the Lanter
court would have awarded appellate expenses where a property owner
successfully appeals from an erroneously denied motion to dismiss.
We agree with the Association. First, like the Lanter court,
we note that section 7--123(a) in no way restricts the property
owner s right to recover appellate fees and expenses. On the
contrary, section 7--123(a) states that, where the final judgment
is that the plaintiff does not have the authority to condemn the
defendant s property, the court shall award the defendant all
costs, expenses and reasonable attorney fees *** incurred *** in
defense of the complaint. (Emphasis added.) 735 ILCS 5/7--123(a)
(West 1996). If defending against the condemnation necessitates an
appeal, we see nothing in section 7--123(a) to preclude the
defendant from recovering the expenses of that appeal. Thus, in
deciding whether attorney fees are recoverable under section 7--
123(a) for an appeal taken by the property owner, the critical
inquiry is whether the appeal was taken in defense of the
complaint. 735 ILCS 5/7--123(a) (West 1996).
As for Lanter, we agree with the Association that its holding,
albeit broadly worded, should be confined to the particular facts
addressed in that case. When crafting its broadly-worded rule, the
Lanter court clearly did not consider that rule s application to
the set of facts presented in this appeal. Indeed, the Lanter
court expressly stated that its interpretation of section 10 was in
consideration of the distinction between the facts of Kean and the
facts of Lanter. Lanter, 15 Ill. 2d at 39-40. Neither of those
cases involved a property owner who successfully appealed from the
erroneous denial of a meritorious motion to dismiss. Accordingly,
in determining Lanter s application to the present controversy, we
will look not to Lanter s specific holding but to the principles
that informed that holding.
Of paramount significance are the Lanter court s statements
that (1) the plain intent of [section 10] is to pay defendants for
all reasonable attorney fees incurred in defense of the
condemnation petition under the circumstances specified in section
10," and (2) [s]uch an interpretation *** fairly compensates
defendant for attorney fees if he is compelled to defend beyond the
trial court. Lanter, 15 Ill. 2d at 40-41. Applying these
principles to the facts of Kean, the Lanter court concluded that a
property owner who appeals to obtain a larger money judgment is not
entitled his appellate fees because he was not compelled to defend
beyond the trial court. Lanter, 15 Ill. 2d at 40. By contrast, a
property owner who defends against the condemning authority s
appeal is entitled to his appellate fees because he was compelled
to defend beyond the trial court. Lanter, 15 Ill. 2d at 40. Thus,
we believe that the critical inquiry under Lanter, like the
critical inquiry under section 7--123(a), is not whether the
property owner took the appeal but whether the property owner was
compelled to defend beyond the trial court. Lanter, 15 Ill. 2d
at 40-41.
Looking at the facts of the present case, we hold that the
Association was compelled to defend beyond the trial court.
Lanter, 15 Ill. 2d at 40-41. Without the authority to do so, the
Village attempted to condemn certain portions of the Association s
property. The Association attempted to halt the condemnation, but
the trial court erroneously concluded that the Village had the
authority to proceed. Consequently, the Association's only
recourse, other than ceding its property to an entity possessing no
legal right to it, was to appeal to this court. On appeal, after
concluding that the Village lacked the authority to condemn the
Association s property, this court remanded the cause for the
dismissal of the condemnation petition. Thus, the Association s
only means of protecting its property from an unlawful condemnation
was to take the appeal in Cary I. Under both section 7--123(a) and
Lanter, the Association s appeal was necessary to its defense of
the Village's condemnation petition.
Accordingly, because the appeal in Cary I was taken in defense
of the Village s unauthorized condemnation petition, we hold that
the Association is entitled to recover all costs, expenses, and
reasonable attorney fees incurred in prosecuting that appeal. We
therefore reverse that portion of the trial court s judgment
denying the Association s application for appellate fees. In
addition, because the trial court already has found (and the
parties do not dispute) that the Association s attorney fees for
prosecuting the appeal in Cary I totaled $18,020.00, we remand this
cause for the entry of an order awarding the Association additional
attorney fees in the amount of $18,020.00.
Nonpublishable material under Supreme Court Rule 23 omitted.

IV

In sum, we (1) affirm that portion of the trial court s
judgment awarding the Association $52,988.24 for costs, expenses,
and attorney fees incurred for proceedings in the trial court; (2)
reverse that portion of the trial court s judgment denying the
Association the costs, expenses, and reasonable attorney fees
incurred in the prosecution of Cary I; (3) remand this cause for
the entry of a judgment awarding the Association $18,020.00 in
attorney fees for the prosecution of Cary I; and (4) deny the
Association s request for attorney fees incurred in the prosecution
of this appeal.
The judgment of the circuit court of McHenry County is
affirmed in part and reversed in part, and the cause is remanded
with directions.
DOYLE and THOMAS, JJ., concur.