{ "id": 910251, "name": "THE VILLAGE OF CARY, Plaintiff-Appellee and Cross-Appellant, v. TROUT VALLEY ASSOCIATION, Defendant-Appellant and Cross-Appellee", "name_abbreviation": "Village of Cary v. Trout Valley Ass'n", "decision_date": "1998-06-01", "docket_number": "No. 2\u201497\u20140687", "first_page": "63", "last_page": "70", "citations": [ { "type": "official", "cite": "297 Ill. App. 3d 63" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "303 Ill. 293", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5005805 ], "weight": 2, "year": 1922, "pin_cites": [ { "page": "296" } ], "opinion_index": 0, "case_paths": [ "/ill/303/0293-01" ] }, { "cite": "395 Ill. 316", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2469694 ], "year": 1946, "opinion_index": 0, "case_paths": [ "/ill/395/0316-01" ] }, { "cite": "15 Ill. 2d 33", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2765671 ], "weight": 25, "year": 1958, "pin_cites": [ { "page": "34" }, { "page": "35" }, { "page": "35" }, { "page": "39" }, { "page": "39" }, { "page": "39" }, { "page": "39" }, { "page": "39-41" }, { "page": "39-40" }, { "page": "40" }, { "page": "40" }, { "page": "40" }, { "page": "40" }, { "page": "40" }, { "page": "41" }, { "page": "40-41" }, { "page": "40" }, { "page": "40-41" }, { "page": "39-40" }, { "page": "40-41" }, { "page": "40" }, { "page": "40" }, { "page": "40-41" }, { "page": "40-41" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/15/0033-01" ] }, { "cite": "282 Ill. App. 3d 165", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 159486 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "174", "parenthetical": "Cary I" }, { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/282/0165-01" ] } ], "analysis": { "cardinality": 563, "char_count": 17028, "ocr_confidence": 0.781, "pagerank": { "raw": 5.71785594556934e-08, "percentile": 0.35874446734153226 }, "sha256": "ee6f8cede5d42dd133fefda5d69d16f15e9c72c28cf4047cf49878beaa7bdc22", "simhash": "1:b4e6b0627c2d0433", "word_count": 2790 }, "last_updated": "2023-07-14T14:41:46.412422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE VILLAGE OF CARY, Plaintiff-Appellee and Cross-Appellant, v. TROUT VALLEY ASSOCIATION, Defendant-Appellant and Cross-Appellee." ], "opinions": [ { "text": "JUSTICE COLWELL\ndelivered the opinion of the court:\nThe Village of Cary (the Village) filed a petition to condemn two easements running across Trout Valley Association\u2019s (the Association\u2019s) property. In its petition, the Village alleged that section 11 \u2014 139\u201412 of the Illinois Municipal Code (65 ILCS 5/11 \u2014 139\u201412 (West 1996)) authorized the condemnation. The Association moved to dismiss, in part arguing that, because the Village\u2019s authorizing ordinance did not comply with section 11 \u2014 139\u201412, 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\u2019n, 282 Ill. App. 3d 165, 174 (1996) (Cary I). Accordingly, we vacated the trial court\u2019s judgment and remanded the cause for the dismissal of the Village\u2019s petition. Cary I, 282 Ill. App. 3d at 174.\nOn remand, the Association moved to dismiss the Village\u2019s petition and vacate the order vesting title. The trial court promptly granted that motion. In addition, pursuant to sections 7 \u2014 111 and 7 \u2014 123 of the Code of Civil Procedure (735 ILCS 5/7 \u2014 111, 7 \u2014 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\u2019s 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.\nThe Association again appeals, arguing that the trial court erred in denying the Association\u2019s 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\u2019s application for fees and,costs. In the alternative, the Association argues that (1) the Association waived review of the trial court\u2019s ruling on the fee application; (2) the trial court\u2019s 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.\nI\nThe material in this section is nonpublishable pursuant to Supreme Court Rule 23. 166 Ill. 2d R. 23.\nII\nThe material in this section is nonpublishable pursuant to Supreme Court Rule 23. 166 Ill. 2d R. 23.\nIII\nWe 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.\nThe Association filed its application for attorney fees and costs pursuant to section 7 \u2014 123(a) of the Code of Civil Procedure (735 ILCS 5/7 \u2014 123(a) (West 1996)). Section 7 \u2014 123(a) provides, in relevant part:\n\u201c[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.\u201d 735 ILCS 5/7 \u2014 123(a) (West 1996).\nIn denying the Association\u2019s petition for appellate fees and costs, the trial court relied exclusively upon the Illinois Supreme Court\u2019s decision in Department of Public Works & Buildings v. Lanter, 15 Ill. 2d 33 (1958). After carefully examining both Lanter and section 7 \u2014 123(a), we are convinced that the trial court should have awarded the Association its attorney fees for prosecuting the Cary I appeal.\nIn Lanter, the Department filed a petition to condemn Lanter\u2019s property. Lanter, 15 Ill. 2d at 34. After the trial court granted Lanter\u2019s 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, ch. 47, par. 10 (now 735 ILCS 5/7 \u2014 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, 15 111. 2d at 36.\nThe 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\u2019s decisions in Commissioners of Lincoln Park v. Schmidt, 395 Ill. 316 (1946), and Forest Preserve District v. Kean, 303 Ill. 293 (1922). Specifically, the Department cited the following language from Kean:\n\u201c \u2018[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\u2019s 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.\u2019 \u201d Lanter, 15 Ill. 2d at 39, quoting Kean, 303 Ill. at 296.\nThe 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 \u201cmust be limited to those incurred in the trial court.\u201d 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.\nIn response, Lanter argued that Kean\u2019s 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\u2019s judgment, arguing that the compensation award was too low. Kean, 303 111. at 293-94. Thus, Lanter argued, Kean\u2019s ratio decidendi bars compensation for attorney fees \u201conly where the appeal [is] taken by the dissatisfied property owner.\u201d Lanter, 15 Ill. 2d at 39-40. In support, Lanter pointed to certain statements from the Kean court \u201cevidencing an intention not to encourage appeals by disgruntled property owners who have had their day in court and wish to secure greater awards.\u201d Lanter, 15 Ill. 2d at 40.\nThe Illinois Supreme Court agreed with Lanter. Lanter, 15 Ill. 2d at 40. In so doing, it explained that \u201cit is evident that the terms of section 10 do not restrict the attorney fees payable to those incurred in the trial court.\u201d Lanter, 15 Ill. 2d at 40. Rather, \u201c[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.\u201d Lanter, 15 Ill. 2d at 40. From these premises, the court drew the following conclusion:\n\u201cWhere 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.\u201d Lanter, 15 Ill. 2d at 40.\nApplying 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 \u201cin no way encourages prolonged condemnation litigation, yet fairly compensates defendant for attorney fees if he is compelled to defend beyond the trial court.\u201d Lanter, 15 Ill. 2d at 40-41.\nIn 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\u2019s statement that, where \u201cthe appeal is taken by the defendant property owner, *** the fees for such services should not be compensable under the statute.\u201d 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\u2019s application to recover the expenses incurred in prosecuting that appeal.\nIn 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\u2019s specific holding but to the principles that informed that holding. Specifically, the Association emphasizes the Lanter court\u2019s statement that its interpretation of section 10 \u201cin no way encourages prolonged condemnation litigation, yet fairly compensates defendant for attorney fees if he is compelled to defend beyond the trial court.\u201d 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.\nWe agree with the Association. First, like the Lanter court, we note that section 7 \u2014 123(a) in no way restricts the property owner\u2019s right to recover appellate fees and expenses. On the contrary, section 7 \u2014 123(a) states that, where the final judgment is that the plaintiff does not have the authority to condemn the defendant\u2019s property, the court shall award the defendant \u201call costs, expenses and reasonable attorney fees *** incurred *** in defense of the complaint.\u201d (Emphasis added.) 735 ILCS 5/7 \u2014 123(a) (West 1996). If defending against the condemnation necessitates an appeal, we see nothing in section 7 \u2014 123(a) to preclude the defendant from recovering the expenses of that appeal. Thus, in deciding whether attorney fees are recoverable under section 7 \u2014 123(a) for an appeal taken by the property owner, the critical inquiry is whether the appeal was taken \u201cin defense of the complaint.\u201d 735 ILCS 5/7 \u2014 123(a) (West 1996).\nAs 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\u2019s 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\u2019s application to the present controversy, we will look not to Lanter\u2019s specific holding but to the principles that informed that holding.\nOf paramount significance are the Lanter court\u2019s statements that (1) \u201c[t]he 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,\u201d and (2) \u201c[s]uch an interpretation *** fairly compensates defendant for attorney fees if he is compelled to defend beyond the trial court.\u201d 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 to 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\u2019s 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 \u2014 123(a), is not whether the property owner took the appeal but whether the property owner was \u201ccompelled to defend beyond the trial court.\u201d Lanter, 15 Ill. 2d at 40-41.\nLooking at the facts of the present case, we hold that the Association was \u201ccompelled to defend beyond the trial court.\u201d Lanter, 15 Ill. 2d at 40-41. Without the authority to do so, the Village attempted to condemn certain portions of the Association\u2019s 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\u2019s 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\u2019s property, this court remanded the cause for the dismissal of the condemnation petition. Thus, the Association\u2019s only means of protecting its property from an unlawful condemnation was to take the appeal in Cary I. Under both section 7 \u2014 123(a) and Lanter, the Association\u2019s appeal was necessary to its defense of the Village\u2019s condemnation petition.\nAccordingly, because the appeal in Cary I was taken in defense of the Village\u2019s 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\u2019s judgment denying the Association\u2019s application for appellate fees. In addition, because the trial court already has found (and the parties do not dispute) that the Association\u2019s attorney fees for prosecuting the appeal in Cary I totaled $18,020, we remand this cause for the entry of an order awarding the Association additional attorney fees in the amount of $18,020.\nIV\nThe material in this section is nonpublishable pursuant to Supreme Court Rule 23. 166 Ill. 2d R. 23.\nV\nIn sum, we (1) affirm that portion of the trial court\u2019s 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\u2019s 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 in attorney fees for the prosecution of Cary I; and (4) deny the Association\u2019s request for attorney fees incurred in the prosecution of this appeal.\nThe judgment of the circuit court of McHenry County is affirmed in part and reversed in part, and the cause is remanded with directions.\nAffirmed in part and reversed in part; cause remanded with directions.\nDOYLE and THOMAS, JJ., concur.", "type": "majority", "author": "JUSTICE COLWELL" } ], "attorneys": [ "Margaret M. Borcia and Donald T. Morrison, both of Morrison & Morrison, P.C., of Waukegan, for appellant.", "Leo N. Cinquino and Celeste P. Cinquino, both of Righeimer, Martin & Cinquino, P.C., of Chicago, for appellee." ], "corrections": "", "head_matter": "THE VILLAGE OF CARY, Plaintiff-Appellee and Cross-Appellant, v. TROUT VALLEY ASSOCIATION, Defendant-Appellant and Cross-Appellee.\nSecond District\nNo. 2\u201497\u20140687\nOpinion filed June 1, 1998.\nMargaret M. Borcia and Donald T. Morrison, both of Morrison & Morrison, P.C., of Waukegan, for appellant.\nLeo N. Cinquino and Celeste P. Cinquino, both of Righeimer, Martin & Cinquino, P.C., of Chicago, for appellee." }, "file_name": "0063-01", "first_page_order": 81, "last_page_order": 88 }