{ "id": 75361, "name": "LOU MAY SAMPSON, Plaintiff-Appellee and Cross-Appellant, v. LEE MIGLIN, Defendant-Appellant and Cross-Appellee", "name_abbreviation": "Sampson v. Miglin", "decision_date": "1996-03-29", "docket_number": "No. 1\u201494\u20143348", "first_page": "270", "last_page": "285", "citations": [ { "type": "official", "cite": "279 Ill. App. 3d 270" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "383 N.E.2d 627", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "66 Ill. App. 3d 55", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3322047 ], "year": 1978, "pin_cites": [ { "page": "59" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0055-01" ] }, { "cite": "305 N.E.2d 376", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "15 Ill. App. 3d 1032", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2463073 ], "year": 1973, "pin_cites": [ { "page": "1040" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/15/1032-01" ] }, { "cite": "594 N.E.2d 1308", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "230 Ill. App. 3d 591", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5211925 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/230/0591-01" ] }, { "cite": "518 N.E.2d 424", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "164 Ill. App. 3d 978", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3581931 ], "year": 1987, "pin_cites": [ { "page": "984" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0978-01" ] }, { "cite": "618 N.E.2d 949", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "248 Ill. App. 3d 1065", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2942666 ], "year": 1993, "pin_cites": [ { "page": "1072" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/248/1065-01" ] }, { "cite": "491 N.E.2d 464", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "142 Ill. App. 3d 550", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3450117 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "582" }, { "page": "582" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0550-01" ] }, { "cite": "589 N.E.2d 508", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "147 Ill. 2d 326", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3278519 ], "year": 1992, "pin_cites": [ { "page": "349" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/147/0326-01" ] }, { "cite": "578 N.E.2d 605", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "218 Ill. App. 3d 483", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498983 ], "year": 1991, "pin_cites": [ { "page": "490" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/218/0483-01" ] }, { "cite": "574 N.E.2d 612", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "143 Ill. 2d 318", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591561 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "350" }, { "page": "326, 349-50" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0318-01" ] }, { "cite": "979 F.2d 499", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10515015 ], "year": 1992, "pin_cites": [ { "page": "506", "parenthetical": "explaining when damages are available to pay for \"corrective advertising\"" } ], "opinion_index": 0, "case_paths": [ "/f2d/979/0499-01" ] }, { "cite": "80 F. Supp. 652", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 661400 ], "year": 1948, "pin_cites": [ { "page": "656", "parenthetical": "back pay damages available as \"corrective action\"" } ], "opinion_index": 0, "case_paths": [ "/f-supp/80/0652-01" ] }, { "cite": "741 F.2d 1525", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 618478 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/f2d/741/1525-01" ] }, { "cite": "564 F. Supp. 1007", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 136092 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "1019-20" } ], "opinion_index": 0, "case_paths": [ "/f-supp/564/1007-01" ] }, { "cite": "579 N.E.2d 890", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "219 Ill. App. 3d 602", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5801324 ], "year": 1991, "pin_cites": [ { "page": "607" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/219/0602-01" ] }, { "cite": "614 N.E.2d 879", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "245 Ill. App. 3d 487", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5384271 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "492" }, { "page": "493-94" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/245/0487-01" ] }, { "cite": "478 N.E.2d 581", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "bills for medical services" } ], "opinion_index": 0 }, { "cite": "133 Ill. App. 3d 119", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3529793 ], "year": 1985, "pin_cites": [ { "page": "130", "parenthetical": "bills for medical services" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/133/0119-01" ] }, { "cite": "252 N.E.2d 381", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "pin_cites": [ { "parenthetical": "car repair bill" } ], "opinion_index": 0 }, { "cite": "116 Ill. App. 2d 289", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1587109 ], "weight": 2, "year": 1969, "pin_cites": [ { "page": "291", "parenthetical": "car repair bill" }, { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/116/0289-01" ] }, { "cite": "576 N.E.2d 856", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "216 Ill. App. 3d 1084", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5289195 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/216/1084-01" ] }, { "cite": "572 N.E.2d 170", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "\"Once compliance had been accomplished by the city's action, there was no basis upon which to award fees to the plaintiff\"" } ], "opinion_index": 1 }, { "cite": "129 Ill. App. 3d 498", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3490586 ], "year": 1984, "pin_cites": [ { "page": "502", "parenthetical": "\"Once compliance had been accomplished by the city's action, there was no basis upon which to award fees to the plaintiff\"" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/129/0498-01" ] }, { "cite": "498 N.E.2d 1102", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 1 }, { "cite": "113 Ill. 2d 473", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3173748 ], "year": 1986, "pin_cites": [ { "page": "479" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/113/0473-01" ] }, { "cite": "143 N.E.2d 47", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1957, "opinion_index": 1 }, { "cite": "11 Ill. 2d 456", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2785795 ], "year": 1957, "opinion_index": 1, "case_paths": [ "/ill-2d/11/0456-01" ] }, { "cite": "544 N.E.2d 772", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 1 }, { "cite": "131 Ill. 2d 23", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5569688 ], "year": 1989, "pin_cites": [ { "page": "49" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/131/0023-01" ] }, { "cite": "564 F. Supp. 1007", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 136092 ], "year": 1983, "pin_cites": [ { "page": "1019" } ], "opinion_index": 1, "case_paths": [ "/f-supp/564/1007-01" ] }, { "cite": "579 N.E.2d 890", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1991, "opinion_index": 1 }, { "cite": "219 Ill. App. 3d 602", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5801324 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "607" }, { "page": "607" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/219/0602-01" ] } ], "analysis": { "cardinality": 1319, "char_count": 33956, "ocr_confidence": 0.754, "pagerank": { "raw": 1.1204616343670298e-07, "percentile": 0.5733154712880943 }, "sha256": "37341d9d15da354b441b0abc3ad21201306eb572f401693e91652946f4b63ee2", "simhash": "1:1b2f7c953d5dd768", "word_count": 5362 }, "last_updated": "2023-07-14T19:15:35.504495+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LOU MAY SAMPSON, Plaintiff-Appellee and Cross-Appellant, v. LEE MIGLIN, Defendant-Appellant and Cross-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE McNULTY\ndelivered the opinion of the court:\nDefendant, Lee Miglin, appeals from the trial court\u2019s judgment holding him liable to plaintiff, Lou May Sampson, for $544,223.50 in damages and $225,249 in costs and attorney fees. We find that the trial court overstated proven damages by $79,399.50 and, therefore, we modify the judgment. We affirm the award of costs and attorney fees.\nIn 1984 plaintiff bought a lot in Chicago\u2019s Gold Coast on which stood a five-unit apartment building. Defendant owned the building next door, which shared a masonry common wall with plaintiff\u2019s building. In January 1991, defendant began excavations to put in a basement as part of a complete remodeling of his building. He did not have a building permit, and he had not performed legally required investigations to determine the bearing capacity of the soil, the lateral pressure of adjacent soil, or the proper anchorage for the common wall.\nOn February 4, 1991, a tenant in plaintiff\u2019s building noticed a crack in the wall. Plaintiff spoke to workers on defendant\u2019s property, who said they would stop the work that was damaging the wall. They continued working without taking measures to protect plaintiff\u2019s building, and several days later plaintiff\u2019s other tenants called to tell her their doors did not open and close properly. The City of Chicago issued a stop-work order before February 15, 1991. Plaintiff hired a structural engineer, who talked to defendant\u2019s contractor and looked at defendant\u2019s basement on February 15, 1991.\nDefendant\u2019s contractor had attempted to underpin the common wall without the soil test or the supervision that building ordinances required. Defendant\u2019s architect later told plaintiff\u2019s engineer that the common wall had settled about one-half to three-quarters of an inch due to the lack of support during construction.\nOn March 8, 1991, plaintiff filed suit for a temporary restraining order and monetary damages. The court granted the restraining order and directed defendant to consult with plaintiff\u2019s structural engineer for proper stabilization of the common wall. Plaintiff hired Eugene Holland, a structural engineer who specialized in masonry remediation. Defendant hired a structural engineer on March 10, 1991, and that engineer worked with Holland throughout the subsequent construction. The city issued a building permit on April 30, 1991, after Holland and defendant\u2019s architect and engineer performed the preliminary investigations that should have preceded excavation and agreed on plans for proper bracing.\nThe trial court dismissed several counts of the complaint. Plaintiff proceeded to trial on counts charging negligence, violation of building ordinances, and violation of the Adjacent Landowner Excavation Protection Act (Excavation Act) (Ill. Rev. Stat. 1991, ch. lll1/2, par. 3300 et seq.). Defendant conceded violation of the ordinances and liability for damage to plaintiff\u2019s building prior to trial, but he contested the negligence count and the extent of the damages claimed.\nThe trial court found:\n\"Defendant\u2019s failure to comply with the procedural requirements regarding permit issuance allowed demolition and construction work to be performed on his building in an ill-designed and unworkmanlike manner. Excavation, anchorage and underpinning were done in violation of several statutes and ordinances. *** Shoring and bracing technique was inadequate to support the common wall during excavation and underpinning. ***\n*** [T]he experts and other professionals retained [by] plaintiff were made necessary by defendant\u2019s disregard of the law. The expenses were reasonably and necessarily incurred by plaintiff when she was confronted with the conditions presented her by [defendant. The fact that the tradesmen and professionals employed by plaintiff in her capacity as property owner may have become inextricably involved in the concurrent litigation does not negate the validity of plaintiff\u2019s claim for the bills they submitted as com-pensable damages.\u201d\nThe court found defendant liable for the $439,000 decrease in property value. The court awarded plaintiff almost $104,000 for out-of-pocket expenses, including about $98,000 for Holland\u2019s work. The court accepted plaintiff\u2019s calculation of $25,365 in rents lost up to the time of trial and awarded plaintiff $25,000 for the time and effort she spent working on problems defendant\u2019s construction caused. The total damages, thus, amounted to more than $593,000. The court reserved ruling on plaintiff\u2019s request for costs and attorney fees.\nDefendant moved to vacate the award of Holland\u2019s fees because the judge at trial had said he would follow the same procedure for engineering fees as for attorney fees, permitting defendant to challenge the fee petitions in detailed evidentiary proceedings following the primary trial on damages. The court agreed and vacated the entire award of Holland\u2019s fees pending the hearing on attorney and engineering fees.\nThe court held that the Excavation Act and the Illinois Municipal Code (Ill. Rev. Stat. 1991, ch. 24, par. 1 \u2014 1\u20141 et seq.) supported the request for attorney fees, but not the request for expert witness fees. The court ordered plaintiff to strike from her petition fees for work experts did \"solely to render opinions at trial,\u201d but permitted recovery of engineering fees incurred for working with defendant\u2019s engineers to stabilize the building and for determining \"the extent of the damage to [plaintiff\u2019s] property or the nature of the necessary repairs.\u201d Plaintiff\u2019s attorneys then struck from the attorney fee petition all charges for work on dismissed counts and the negligence count.\nHolland presented 23 pages of invoices, which included summary descriptions of work his firm performed and indicated who performed the work, for all the hours charged. Holland had crossed out the charges for work as an expert witness. The invoices included many aggregated entries and entries for conferences that did not describe the subjects discussed, as, for example, on April 2, 1991, Holland charged for 2.25 hours of work described as:\n\"Telecons with [plaintiff\u2019s attorney]; prepare letter to [defendant\u2019s structural engineer]; review drawings and prepare letter; telecon to [defendant\u2019s structural engineer].\u201d\nHe eliminated more than $40,000 for services as an expert witness, but left a total request of more than $55,000 for engineering work.\nHolland testified in support of his petition, describing some of the indicated meetings, but leaving most entries without further explanation. Defendant did not, on cross-examination, ask for elucidation of most of the entries. Holland testified that his contract with plaintiff required plaintiff to pay him interest on balances she had not paid for 30 days. He sought more than $4,000 in interest on unpaid engineering fees.\nPlaintiff\u2019s attorneys submitted more than 400 pages of detailed invoices, indicating the hours each attorney spent each day on the case, with summary descriptions of the work performed. Many of the entries aggregated several separate tasks and included no specification of the subject of conferences, especially when the conferences were between plaintiff and the attorneys. Thus, one attorney indicated that on March 11, 1991, he spent 5.5 hours on the case, for:\n\"Court appearance ***; drafting agreed order with defendant\u2019s attorney; prepare correspondence to defendant\u2019s attorney regarding schedule for repairs; prepare correspondence to Gene Holland *** and Lou Sampson regarding status.\u201d (Emphasis omitted.)\nEach attorney testified in support of the petition, describing in detail some of the meetings listed, but providing no further explanation for the vast preponderance of the thousands of entries. Defendant did not, on cross-examination, request further information about most of the entries.\nThe trial court found details missing from Holland\u2019s bills and said:\n\"Standing alone the entries would probably not be sufficient to support a finding of reasonableness ***. However, the entries do not stand alone. The proceedings conducted here including [the] availability of Eugene P. Holland to answer all questions overcomes *** the inadequate entries.\u201d\nIn the court\u2019s opinion the interest charge was a \"standard and reasonable element of the contract and *** interest is recoverable from defendant.\u201d\nThe aggregate entries in the attorney fee petition were\n\"adequate[J particularly within the context of this case, to support a fee award. *** [T]his court has heard the case throughout the years of litigation. It has had the opportunity to observe the preparedness and skill of plaintiffs attorneys. The court believes it is capable of exercising an informed discretion as to how the tasks performed related to the litigation, whether they were nec-essarfy] and, therefore, to determine whether they were reasonable and thus, compensable.\u201d\nThe court concluded that\n\"the status entries in this case describe adequately for purposes of supporting a billing conversations with plaintiff conducted to advise her of the current state of her legal matter. *** Reasonable consultation with the client is a necessary and proper aspect of the professional relationship of attorney-client. *** [I]n the absence of evidence that status conferences did not take place or had no constructive purpose the court will not disallow such billings.\u201d\nThe court disallowed fees incurred in preparation of and proceedings on the fee petitions. The total award included $225,249 for costs and attorney fees, and $44,851 plus $4,399.50 interest for Holland\u2019s engineering work. After amending the damage award, the court found defendant liable for a total of $769,472.50. Defendant appeals and plaintiff cross-appeals from the judgment.\nDefendant, relying primarily on In re Marriage of Winton, 216 Ill. App. 3d 1084, 576 N.E.2d 856 (1991), maintains that plaintiff did not present adequate evidence to justify the award of Holland\u2019s engineering fees. The trial court in Winton awarded the petitioner fees for the work of her expert witness, who performed no services apart from the preparation of his testimony. The appellate court reversed the award, holding that an award of expert witness fees must be supported by the same kind of detailed evidence needed to support an award of attorney fees.\nIn this case, however, the trial court denied plaintiff\u2019s request for recovery of fees for Holland\u2019s work as an expert witness. The court awarded only engineering fees for work Holland performed to prevent further damage to plaintiff\u2019s property. Defendant cites no authority requiring a bill for these services to meet the stringent standards for awards of attorney fees and expert witness fees.\nBills for services apart from expert witness and attorney services are generally \"prima facie evidence of the necessity and reasonableness\u2019\u2019 of the services. Smith v. Champaign-Urbana City Lines, Inc., 116 Ill. App. 2d 289, 291, 252 N.E.2d 381 (1969) (car repair bill); see also Barreto v. City of Waukegan, 133 Ill. App. 3d 119, 130, 478 N.E.2d 581 (1985) (bills for medical services). In Smith, the sole witness who testified concerning the bill was unable to identify or explain all of the separate charges, and the bill was not fully itemized. The trial court found the proof of damages inadequate, and the appellate court reversed, holding that a bill itself is sufficient to support an award of damages \"unless some evidence is introduced that the bill is faulty.\u201d Smith, 116 Ill. App. 2d at 292.\nThe trial court here correctly observed that defendant cross-examined Holland and failed to challenge the entries or introduce any other evidence showing the bills improper. Because the court did not award Holland fees for his work as an expert witness, the bills and testimony here amply supported the award of $44,851 for Holland\u2019s engineering fee.\nWe agree with defendant that the award of prejudgment interest here must be vacated. \"Prejudgment interest is not recoverable absent a statute or agreement of the parties providing for it.\u201d Weidner v. Szostek, 245 Ill. App. 3d 487, 492, 614 N.E.2d 879 (1993). Plaintiff admits that no statute provides for prejudgment interest here and defendant never agreed to pay prejudgment interest. She argues instead that her agreement with Holland supplies the necessary \"agreement of the parties.\u201d Plaintiff\u2019s proposed interpretation would make the exception swallow the rule, because plaintiffs could generally agree to payment of interest on charges for repairs, medical costs and attorney fees, knowing that they might be able to recover the interest in the judgment. We hold that the parties who must agree to the payment of prejudgment interest are the parties to the lawsuit. Since defendant did not sign the contract with Holland or agree to the provision therein for prejudgment interest, we vacate the award of $4,399.50 for prejudgment interest included in Holland\u2019s bills.\nDefendant challenges the entire award of attorney fees for lack of statutory authorization. The Municipal Code provides:\n\"In case any building or structure, including fixtures, is constructed, reconstructed, *** or maintained *** in violation of [a building] ordinance *** any owner *** who shows that his property or person will be substantially affected by the alleged violation, in addition to other remedies, may institute any appropriate action or proceeding *** to restrain, correct, or abate the violation. ***\nIf an owner *** files suit hereunder and the court finds that the defendant has engaged in any of the foregoing prohibited activities, then the court shall allow the plaintiff a reasonable sum of money for the services of the plaintiff\u2019s attorney.\u201d Ill. Rev. Stat. 1991, ch. 24, par. 11 \u2014 13\u201415 (now 65 ILCS 5/11 \u2014 13\u201415 (West 1994)).\nPlaintiff sued under the Code and the court found that defendant violated building ordinances. Defendant claims that plaintiff is not entitled to fees because her lawsuit merely duplicated the city\u2019s efforts shown by the city\u2019s stop work order.\nTo justify an award of fees,\n\"adjoining property owners must establish, at least, a substantial contribution, independent of the actions of the municipal authorities, to the ultimate success in correcting or preventing violations of the municipal ordinances.\u201d City of Chicago v. Higginbottom, 219 Ill. App. 3d 602, 607, 579 N.E.2d 890 (1991).\nThe record here shows only that, before plaintiff filed her suit, the city recognized that defendant had performed construction work without a building permit and, therefore, it issued.a stop-work order. Plaintiff\u2019s structural engineer participated in formulation of plans for adequate bracing, while no city engineer participated. Plaintiff also brought to light many violations of building ordinances to which no document from the city makes any reference. Plaintiff established her substantial contribution to the prevention and abatement of violations of building ordinances. The trial court correctly found a legal basis for an award of fees.\nDefendant contends that the trial court had no basis for awarding fees for work plaintiff\u2019s attorneys performed after the engineers and architects brought the construction into full compliance with the building ordinances. By designing and installing proper bracing after doing the required tests, the engineers abated all of the violations of ordinances, at least by April 30, 1991, when the city issued a building permit. The Municipal Code mandates an award of attorney fees for work performed to \"restrain, correct or abate\u201d violations of building ordinances. The trial court found that after the violations were abated, the attorneys needed to pursue further remedies, including damages, to correct the past violations of ordinances.\nThe parties have cited no cases deciding what constitutes an action to \"correct\u201d an ordinance violation within the meaning of the Municipal Code. In Burroughs v. Hills, 564 F. Supp. 1007 (N.D. Ill. 1983), rev\u2019d on other grounds, 741 F.2d 1525 (7th Cir. 1984), the plaintiffs argued that by permitting owners to sue to restrain ordinance violations \"in addition to other remedies,\u201d the legislature established that plaintiffs could sue under the statute for damages. The federal court rejected the argument, holding that the provision meant only that the Municipal Code \"does not preclude other remedies or rights of action available under other statutes or the common law.\u201d Burroughs, 564 F. Supp. at 1019-20. That court had no occasion to consider whether an action to \"correct\u201d a violation may, in some circumstances, require an award of damages under the statute. In appropriate cases, federal courts have held that statutes provided for awards of monetary damages necessary to correct statutory violations. See Fischer v. Haeberle, 80 F. Supp. 652, 656 (E.D.N.Y. 1948) (back pay damages available as \"corrective action\u201d); Zazu Designs v. L\u2019Or\u00e9al, S.A., 979 F.2d 499, 506 (7th Cir. 1992) (explaining when damages are available to pay for \"corrective advertising\u201d).\nThe legislature enacted the Municipal Code\n\"[t]o the end that adequate light, pure air, and safety from fire and other dangers may be secured *** and that the public health *** may otherwise be promoted.\u201d Ill. Rev. Stat. 1991, ch. 24, par. 11 \u2014 13\u20141 (now 65 ILCS 5/11 \u2014 13\u20141 (West 1994)).\nThese purposes are akin to the purposes of title V of the Environmental Protection Act (the Act) (415 ILCS 5/20 (West 1992)). Title V explicitly defined \"corrective action\u201d for an oil spill as:\n\"an action to stop, minimize, eliminate, or clean up a release of petroleum or its effects as may be necessary or appropriate to protect human health and the environment. This includes, but is not limited to, release investigation, *** soil remediation, *** and the provision of alternate water supplies.\u201d 415 ILCS 5/22.18(e)(1)(C) (West 1992).\nSee 415 ILCS 5/57.2, 57.6, 57.7 (West 1994). Thus, the Act clarifies that even after the offender is no longer violating the Act, the offender is liable for \"corrective action\u201d needed to \"clean up\u201d the damage his prior violation caused and to remedy any ill effect on the surrounding soil. In appropriate circumstances, a court may assess cleanup costs for a violation of the Act. People v. Fiorini, 143 Ill. 2d 318, 350, 574 N.E.2d 612 (1991).\nWe find that an action to \"correct\u201d a violation of building ordinances is similar to \"corrective action\u201d for violation of the Act. In most cases the violation of a building ordinance has no continuing repercussions once the builder stops, abates, the violation. If an owner builds too close to a street, in violation of an ordinance, the entire harm is undone by shifting the construction site to the appropriate distance from the street.\nHere, however, the builder began excavations without properly anchoring the common wall, in violation of an ordinance. Defendant abated the violation by installing adequate anchorage only after the wall had sunk, causing considerable damage to plaintiffs building. After abating the violation, defendant was in the position of one who has stopped spilling oil in violation of the Environmental Protection Act. Like a violator of the Act, defendant had not fulfilled his responsibilities under the Code by merely abating the violation. A violator of the Act must either clean up the spill himself or pay for cleaning it up and for soil remediation. 415 ILCS 5/22.18(e)(1)(C) (West 1992). Persons who have dumped waste in an illegal dump site may be liable under the Act for costs of cleaning up, even after they have stopped using the site, although the Act does not expressly provide for such damages. Fiorini, 143 Ill. 2d at 326, 349-50. Similarly, the violator of the anchorage ordinance must either fully restore his neighbor\u2019s property to the condition it was in before the illegal construction allowed the wall to move or he must, as corrective action under the Municipal Code, pay for any damages caused by movement of the wall.\nDefendant argues that the only remedy available under the Code is injunctive relief to bring the construction into accord with building ordinances. The injunctions can fully abate violations, but they would do nothing to remedy the continuing effects of past violations. Defendant\u2019s construction of the Code renders the term \"correct\u201d superfluous. \"[I]n construing a statute, each provision and word should be given a reasonable meaning, and the statute will not be presumed to contain surplusage ***.\u201d Jensen Disposal Co. v. Town of Warren, 218 Ill. App. 3d 483, 490, 578 N.E.2d 605 (1991). Because the legislature used both \"correct\u201d and \"abate\u201d in the Code, \"it appears that a distinction was intended between the two elements.\u201d People v. Frieberg, 147 Ill. 2d 326, 349, 589 N.E.2d 508 (1992).\nFor \"correct\u201d in the Code to mean anything different from \"abate,\u201d it must mean that the plaintiff may sue to force a defendant to take action to correct the harm caused by a violation, even after the violation is abated. Where correction by full restoration of the property to previolation conditions is not economically feasible, the defendant may need to correct the violation by paying damages. We agree with the trial court\u2019s holding that defendant is liable under the Municipal Code for damages needed to correct his past violation of building ordinances, even after the construction no longer violates the ordinances. All of plaintiffs attorneys\u2019 work to recover damages for past violations of building ordinances constitutes action to correct a violation, and for such action, the Code expressly mandates the recovery of attorney fees.\nDefendant\u2019s last argument is that the fee award must he reduced because the court awarded fees for work described inadequately, in aggregated entries, and for work on the count charging violation of the Excavation Act. Plaintiff on her cross-appeal contends that the trial court erred by excluding fees incurred in preparing the fee petition. The determination of reasonable attorney fees rests in the sound discretion of the trial court. Warren v. LeMay, 142 Ill. App. 3d 550, 582, 491 N.E.2d 464 (1986). Even where the trial court has, in its calculations, included improper fees or excluded recoverable fees, this court will not disturb the judgment unless \"the total fees and costs awarded *** was [so excessive or] so inadequate as to amount to a clear abuse of discretion by the court.\u201d Warren, 142 Ill. App. 3d at 582.\nThe appellate court stated the basic principles for assessing fees in Chicago Title & Trust Co. v. Chicago Title & Trust Co., 248 Ill. App. 3d 1065, 1072, 618 N.E.2d 949 (1993):\n\"[T]he party requesting fees bears the burden of presenting sufficient evidence from which the trial court can render a decision as to their reasonableness. [Citations.]\nA petition for fees must present the court with detailed records containing facts and computations upon which the charges are predicated and specifying the services provided, by whom they were performed, the time expended and the hourly rate charged. [Citations.] In assessing the reasonableness of fees, the trial court should consider a variety of factors, including the skill and standing of the attorneys employed, the nature of the case, the novelty and difficulty of the issues involved, the degree of responsibility required, the usual and customary charge for the same or similar services in the community, and whether there is a reasonable connection between the fees charged and the litigation.\u201d\nThe party seeking fees must present a sufficient basis for a determination of whether the charges are reasonable, but the trial judge may also consider the entire record and his knowledge of the case in determining the reasonableness of fees. Weidner, 245 Ill. App. 3d at 493-94.\nHere the fee petitions listed the attorneys and their services, hours and rates. See Kaiser v. MEPC American Properties, Inc., 164 Ill. App. 3d 978, 984, 518 N.E.2d 424 (1987). While many entries included some aggregation of services, aggregation alone is not enough to require reversal of an award of fees. Harris Trust & Savings Bank v. American National Bank & Trust Co., 230 Ill. App. 3d 591, 594 N.E.2d 1308 (1992). The petition also included a number of entries describing the subject of conferences between specified persons as \"status.\u201d\nThe trial court rejected defendant\u2019s arguments against recovery for the work described in aggregated entries because the court found itself capable of determining the reasonableness and necessity of all the charges, based on the breakdown of specific tasks and the court\u2019s intimate knowledge of the case. The status entries also supported the award of fees because they reflected the necessary work of keeping the client fully informed about all aspects of her case. The court disallowed nearly $40,000 in fees, covering more than 150 hours of work, out of the request for more than $260,000 in fees. See Anundson v. City of Chicago, 15 Ill. App. 3d 1032, 1040, 305 N.E.2d 376 (1973).\nWe agree with the trial court\u2019s holding that it had adequate information with which to determine the necessity of the time spent on the tasks listed in the aggregate entries here and to determine the necessity of the conferences concerning the overall status of the case. The court found the legal issues novel and difficult, and the court took into account the attorneys\u2019 high degree of responsibility for representation in response to the tenacious, skilful defense. The attorney fees and costs of $225,249 represented less than 30% of the total award of almost $770,000. The trial court found that all damages derived from the initial violation of the building ordinances, so the Municipal Code provides a basis for the award of all fees reasonably necessary to correct the violation by recovering damages. We find the award of fees neither so excessive, nor so inadequate, as to amount to an abuse of discretion.\nFinally, plaintiff on her cross-appeal seeks fees for her attorneys\u2019 appellate work. The court in Meyer v. Marshall, 66 Ill. App. 3d 55, 59, 383 N.E.2d 627 (1978), held that the trial court erred by awarding fees under the Municipal Code \"[sjince appellate attorney fees are not specifically provided for in section 11 \u2014 13\u201415.\u201d We see no need to reconsider that ruling here.\nBecause the trial court disallowed recovery for plaintiff\u2019s engineer\u2019s work as an expert witness, allowing recovery only for work to save plaintiff\u2019s building, the engineer\u2019s bills and testimony amply supported the award of $44,851 for the engineering fee. However, the trial court improperly ordered recovery of $4,399.50 in prejudgment interest on the engineer\u2019s bills.\nThe Municipal Code mandates an award of attorney fees for work done to correct a violation of a building ordinance. Under the particular facts of this case, in which correction by actual physical restoration of the property to its previolation condition was not practical, plaintiff recovered damages as corrective action under the Code, and the Code mandated an award of fees for the work done to recover the damages. The evidence in the record formed a sufficient basis for the award of fees. Even if the trial court should not have included fees for work on the count charging violation of the Excavation Act, or if it should not have excluded fees for work on the fee petitions, we find the total fee award neither so excessive nor so inadequate as to constitute an abuse of discretion. Therefore, we reduce the damage award by $79,399.50, to $464,824, and we affirm the award of damages as modified and the award of $225,249 for costs and attorney fees, for a total judgment of $690,073.\nAffirmed as modified.\nCOUSINS, J., concurs.", "type": "majority", "author": "PRESIDING JUSTICE McNULTY" }, { "text": "JUSTICE HOURIHANE,\nspecially concurring in part and dissenting in part:\nI concur with the majority opinion on all issues, but dissent with respect to the award of attorney fees. Well-settled rules of statutory construction provide that fee-shifting statutes are in derogation of the common law and must be strictly construed. Carson Pirie Scott & Co. v. State Department of Employment Security, 131 Ill. 2d 23, 49, 544 N.E.2d 772 (1989). The majority, however, interprets section 11\u2014 13 \u2014 15 of the Illinois Municipal Code so broadly as to pervert its plain language and completely undermine the legislative intent of this section of the Code. Ill. Rev. Stat. 1991, ch. 24, par. 11 \u2014 13\u201415 (now 65 ILCS 5/11 \u2014 13\u201415 (West 1994)).\nThe Illinois Municipal Code provides in pertinent part:\n\"In case any building or structure, including fixtures, is constructed, reconstructed *** or maintained *** in violation of [a building] ordinance *** any owner *** who shows that his property or person will be substantially affected by the alleged violation, in addition to other remedies, may institute any appropriate action or proceeding *** to restrain, correct, or abate the violation. ***\nIf an owner *** files suit hereunder and the court finds that the defendant has engaged in any of the foregoing prohibited activities, then the court shall allow the plaintiff a reasonable sum of money for the services of the plaintiff\u2019s attorney.\u201d Ill. Rev. Stat. 1991, ch. 24, par. 11 \u2014 13\u201415 (now 65 ILCS 5/11 \u2014 13\u201415 (West 1994)).\nIn interpreting statutes, this court must ascertain and give effect to the true intent and meaning of the legislature. Pliakos v. Illinois Liquor Control Comm\u2019n, 11 Ill. 2d 456, 143 N.E.2d 47 (1957). In so doing, we must give the language of the statute its plain and ordinary meaning; in other words, we may not declare that the legislature did not mean what the plain language of the statute imports. Maloney v. Bower, 113 Ill. 2d 473, 479, 498 N.E.2d 1102 (1986). Here, the majority has strained the meaning of the term \"correct\u201d in order to give a meaning clearly not contemplated by the legislature or case law. As the court explained in Burroughs v. Hills, 564 F. Supp. 1007, 1019 (1983), the statute in question \"creates a limited right of action on behalf of certain private parties to enforce municipal ordinances by way of injunction.\u201d By describing the private action as a proceeding to restrain, correct or abate a violation, the Illinois General Assembly did not contemplate the prosecution of a common law action for damages. To the contrary, an action to restrain, correct or abate remains, in essence, an action for injunctive relief.\nConsequently, a private party is entitled to attorney fees only to the extent that he or she establishes \"a substantial contribution, independent of the actions of the municipal authorities, to the ultimate success in correcting or preventing violations of the municipal ordinances.\u201d City of Chicago v. Higginbottom, 219 Ill. App. 3d 602, 607, 579 N.E.2d 890 (1991). Thus, any right to attorney fees in this case ceased once the circuit court entered its original restraining order on March 8, 1991. Launius v. Najman, 129 Ill. App. 3d 498, 502, 572 N.E.2d 170 (1984) (\"Once compliance had been accomplished by the city\u2019s action, there was no basis upon which to award fees to the plaintiff\u201d).\nThe majority, however, erroneously considers attorney fees justified under the posture of a \"corrective action.\u201d The majority has confused an action to \"correct\u201d a zoning violation with an action to recover damages. In the process, the court has transformed what has heretofore been an act limited to zoning enforcement into an action for negligence and damages.\nBy way of example, assuming hypothetically an adjoining landowner\u2019s property has been damaged as a result of a Code violation. Independent of the landowner\u2019s efforts, the local municipality obtains a stop order. The landowner later files an action sounding in negligence to recover for the damages to his or her property. If successful, the landowner may be awarded damages, but is not entitled to attorney fees.\nSuppose, however, as under the facts of this case, that the same landowner were to file, an additional count pursuant to the Code under the theory \u2014 now supported by this court\u2019s opinion \u2014 that a \"corrective action\u201d is still viable. The successful landowner is now entitled to attorney fees despite the fact that he or she contributed nothing \"to the ultimate success in correcting or preventing violations of the municipal ordinances.\u201d City of Chicago v. Higginbottom, 219 Ill. App. 3d 602, 607, 579 N.E.2d 890 (1991). In effect, the landowner has used the zoning enforcement statute to sponsor his or her otherwise generic common law action for damages.\nFinally, the majority\u2019s use of an analogy to pollution remediation cases is misplaced. Aside from the fact that the language of the statutes differ in significant respects \u2014 Title V\u2019s definition of \"corrective actions\u201d specifically includes \"clean up\u201d and \"soil remediation\u201d\u2014 the whole tenor of the pollution remediation statutes reflects the public policy in achieving land reclamation. It is not surprising, therefore, that courts assess clean up costs for, among other things, soil remediation. Reimbursement of pollution \"costs\u201d under Title V, however, is clearly not analogous to the shifting of \"attorney fees\u201d under the zoning enforcement section of the Municipal Code. Had the General Assembly intended to incorporate Title V\u2019s expansive concept of \"corrective actions\u201d into the Municipal Code, it would have expressly so indicated.\nFor the foregoing reasons, I respectfully concur in part and dissent in part.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JUSTICE HOURIHANE," } ], "attorneys": [ "Michael F. Kerr, James C. Schroeder, and Laurie Gallancy, all of Mayer, Brown & Platt, of Chicago, for appellant.", "Hinshaw & Culbertson, of Chicago (D. Kendall Griffith, Kevin R. Sido, and Adria East Mossing, of counsel), for appellee." ], "corrections": "", "head_matter": "LOU MAY SAMPSON, Plaintiff-Appellee and Cross-Appellant, v. LEE MIGLIN, Defendant-Appellant and Cross-Appellee.\nFirst District (5th Division)\nNo. 1\u201494\u20143348\nOpinion filed March 29, 1996.\nRehearing denied May 1, 1996.\nHOURIHANE, J., concurring in part and dissenting in part.\nMichael F. Kerr, James C. Schroeder, and Laurie Gallancy, all of Mayer, Brown & Platt, of Chicago, for appellant.\nHinshaw & Culbertson, of Chicago (D. Kendall Griffith, Kevin R. Sido, and Adria East Mossing, of counsel), for appellee." }, "file_name": "0270-01", "first_page_order": 288, "last_page_order": 303 }