{ "id": 2622467, "name": "Frank Dunaway et al., Plaintiffs and Counterdefendants-Appellees, v. Ervin L. Storm et al., Defendants and Counterplaintiffs-Appellants", "name_abbreviation": "Dunaway v. Storm", "decision_date": "1975-07-01", "docket_number": "No. 74-169", "first_page": "880", "last_page": "886", "citations": [ { "type": "official", "cite": "30 Ill. App. 3d 880" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "47 Chi.-Kent L. Rev. 211", "category": "journals:journal", "reporter": "Chi.-Kent L. Rev.", "opinion_index": 0 }, { "cite": "269 Ill. 529", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4798819 ], "opinion_index": 0, "case_paths": [ "/ill/269/0529-01" ] }, { "cite": "278 Ill. 261", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4872399 ], "opinion_index": 0, "case_paths": [ "/ill/278/0261-01" ] }, { "cite": "293 N.E.2d 750", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "10 Ill.App.3d 397", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5392696 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/10/0397-01" ] }, { "cite": "43 Ill.App.2d 153", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5245677 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/43/0153-01" ] }, { "cite": "23 Ill.2d 180", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2796229 ], "opinion_index": 0, "case_paths": [ "/ill-2d/23/0180-01" ] }, { "cite": "415 Ill. 284", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2682922 ], "pin_cites": [ { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/ill/415/0284-01" ] }, { "cite": "309 N.E .2d 356", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "18 Ill.App.3d 123", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2608935 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/18/0123-01" ] }, { "cite": "97 N.E. 1042", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "253 Ill. 479", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3443056 ], "opinion_index": 0, "case_paths": [ "/ill/253/0479-01" ] }, { "cite": "180 N.E .2d 752", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "34 Ill.App.2d 162", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5237347 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/34/0162-01" ] }, { "cite": "238 Ill.App. 151", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3116845 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app/238/0151-01" ] } ], "analysis": { "cardinality": 773, "char_count": 16351, "ocr_confidence": 0.743, "pagerank": { "raw": 1.2880852034646658e-07, "percentile": 0.6191716196581345 }, "sha256": "e263d315851f9b0b63ac004c754d4accdc95da91d8c1589af40eee4c1ae45e9f", "simhash": "1:fac3fe148049dbf7", "word_count": 2739 }, "last_updated": "2023-07-14T21:56:28.126609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Frank Dunaway et al., Plaintiffs and Counterdefendants-Appellees, v. Ervin L. Storm et al., Defendants and Counterplaintiffs-Appellants." ], "opinions": [ { "text": "Mr. JUSTICE GEORGE J. MORAN\ndelivered the opinion of the court:\nThe defendants-counterplaintiffs, Ervin Storm and Hazel Storm, appeal from a judgment of the circuit court of Shelby County construing and modifying a consent decree, holding them in contempt for violation of that decree and awarding attorney fees to the plaintiffs.\nThe plaintiffs initiated this proceeding to enforce a decree of injunction entered June 7, 1972, and to construe a portion of that decree or in the alternative to modify it, if necessary. The decree of June 7, 1972, had been entered by consent of the parties and had provided for a mandatory and prohibitive injunction of a continuing nature. The circuit court of Shelby County construed the decree, specified certain elevations for a drainageway, and in doing so modified the decree to that extent. The court also held the defendants in contempt of court and assessed fines and attorney fees.\nThe issues presented for review are (1) did the trial court err in construing the decree, determining its intent and then modifying particular terms to accomplish the result contemplated by the decree when considered as a whole; (2) were defendants in wilful contempt of court; and (3) was the trial court authorized to assess attorney fees against defendants?\nThe plaintiffs Frank and Frieda Dunaway own a 200-acre farm located immediately north of defendants\u2019 80-acre farm, with a common boundary of a quarter of a mile. An apparently natural drainage ditch xunning north to south crosses the boundary between the farms at a point designated as \u201cX\u201d in the trial court exhibits. In 1969, defendant Ervin Storm removed a fence line between the properties, piling brush, trees and dirt south of \u201cX\u201d, creating a brush pile approximately 150 feet long and 20 to 40 feet wide. Prior to June 1972, Storm testified that he observed only a small amount of water making its way around the pile.\nIn August 1970, the plaintiffs filed suit alleging that the defendants had constructed a dam south of \u201cX,\u201d obstructing the natural drainage from their land and causing water to back up and damage their crops. The defendants counterclaimed alleging that plaintiffs had increased the amount of water flowing onto defendants\u2019 land.\nOn June 7, 1972, tire parties entered into a stipulation and agreement, resulting in a decree of the same date by the circuit court of Shelby County. The decree provided that a ditch on plaintiffs\u2019 land was the course of natural drainage by prescription and allowed for its maintenance at current levels. In order to provide plaintiffs temporary relief, the Storms were to remove a 12-foot section of the dam not l\u00e1ter than June 24, 1972, to allow natural drainage through the pile. In paragraph 5 of the decree, the Storms were directed to remove the brush pile to permit unimpeded drainage from point \u201cX\u201d across the northeast corner of the Storms\u2019 land to a point designated as \u201cY.\u201d The elevations to be maintained were specified as not more than 593.20 feet at point \u201cX,\u201d 592.45 feet at a point 54 feet to the south and 590.91 feet at a point 955 feet south of the boundary. Work was to be completed not later than November 30, 1972. In paragraph 6, the defendants were further \u201cenjoined from obstructing the natural drainageway running from Point \u2018X\u2019 [through the defendants\u2019 land] through said drainageway in the future.\u201d The decree also stated that it was enforceable by citation proceedings.\nOn July 27, 1973, plaintiffs filed a petition to show cause claiming noncompliance with the terms of the decree, resulting in crop losses and the expenses of additional attorney fees. The defendants filed an answer followed by plaintiffs\u2019 petition of September 18, 1973, to construe, or in the alternative, to modify portions of paragraph 5 of the decree of June 7, 1972, so that the elevation of point \u201cX\u201d would not impede the natural drainage of plaintiffs\u2019 land. Defendants moved to strike and dismiss, but the motion was overruled. The defendants answered plaintiffs\u2019 motion and combined hearings were held on the petition to show cause and petition to construe or modify.\nTestimony at the hearing revealed that defendants completely failed to comply with the June 7 decree within the time limits set forth and at best only technically complied with it thereafter. Frank Dunaway testified that in June, 1972, the pile was burned and a section removed, but it remained higher than \u201cX.\u201d In August, water backed up on the Dunaway farm following heavy rains. On. August 28 the Dunaways\u2019 lawyer wrote the Storms\u2019 attorney demanding compliance with the decree. There .was testimony that the area north of \u201cX\u201d remained water-laden for a considerable period, preventing plaintiffs from harvesting crops until November. In November water again backed up on the Dunaway property.\nDuring November 1972 Storm cut\u2019a sm\u00e1ll channel through the brush pile. He testified that he did this in order to allow water to flow from the plaintiffs' land and remarked that it had. backed up. Nevertheless' water backed up- again tire following spring. Plaintiffs\u2019 attorney wrote the defendants\u2019 attorney in December 1972 and May 1973 demanding compliance with the decree. Later in May the Storms had the pile leveled and spread out over a larger area. The plaintiffs\u2019 expert testified that when he examined the drainage ditch in June, theTeveled pile \"created a long gradual rise in; the elevation of the land south of \u201cX.\u201d Plaintiffs\u2019 attorney sent another letter, but once again flooding occurred in June. The defendants\u2019 expert surveyed the area in June and supervised further work performed on October 18, 1973. No other work was done.\nAfter completion of tire work, the defendants\u2019 expert surveyed the area. He stated that defendants had complied with the specific elevations set forth in the decree, but that the land sloped upwards for a distance south of \u201cX.\u201d The plaintiffs\u2019 expert surveyed the area after the defendants had finished work. He testified that the land stiU rose in elevation and that defendants had not lowered the area to the elevations specified in the decree. He also testified, however, that even if the defendants. had complied exactly with the terms of the decree, water would stiH back up on the plaintiffs\u2019 land. He stated that the land south of \u201cX\u201d could be no higher than 592.35 but the decree allowed for elevations between 593.20 and 592.45 feet for a considerable distance south of \u201cX.\u201d The plaintiffs\u2019 expert testified that he became aware of this fact in November 1973. Water backed up again north of \u201cX\u201d in 1973, and January of 1974.\nPlaintiffs testified that there was crop damage north of \u201cX\u201d in 1972 and 1973. The plaintiffs\u2019 attorney testified that he had biUed plaintiffs $3,436.90 for services from June 21, 1972, through February 1, 1974.\nThe defendant, Ervin Storm, testified that he understood that the injunction required him to give immediate refief. He said that he had contacted a bulldozer operator he had employed, but that the wetness of the ground, his desire not to disturb growing crops or those planted in the fall, and the operator\u2019s inabffity to have the machines available, combined to delay the leveling of the pile until May, 1973. He also admitted that he owned a bulldozer for a period after June 7,1972. When he cut a channel through the pile in November, 1972, he said he used an eye level to check the elevation, and he believed that he had complied with the decree. Storm testified that he later realized he was going t\u00f3 have to lower the area and did so with the help of the surveyor who testified on his behalf. He also testified the he was taking more water than prior to June 7,1972, causing crop damage. Storm said that plaintiffs had directed water toward the area by chisel plowing, but admitted that a chisel plow was a normal farming tool.\nThe court\u2019s order of February 25, 1974, stated with regard to the petition to modify that it was the clear intention of the decree of June 7, 1972, that water be allowed to drain across the Storms\u2019 property from point \u201cX\u201d to point \u201cY,\u201d that the elevation of \u201cX\u201d as of October 1973 was 592.45 feet, that there was an unnatural fill for 50 feet south of \u201cX,\u201d that the decree of June 7, 1972, should be modified by substituting 592.45 feet instead of 593.2 feet for the elevation of \u201cX\u201d and directing that an elevation below 592.45 feet be maintained for all points between \u201cX\u201d and \u201cY.\u201d As to the citation, the court held that the Storms had made no responsible move to comply until October, 1973, and were thus in wilful contempt, levied a fine of $100, ordered defendants to pay the clerk $1,000 toward plaintiffs\u2019 attorney fees and assessed costs against the defendants.\nAppellants first contend that the circuit court erred in construing a. clear, specific agreement not in need of construction. They argue that & consent decree has the nature of a contract as well as that of a decree. It is a contract entered into by the solemn sanction of the court and like any other contract should be enforced as written. (American Tar Products: Co. v. Bradner Smith & Co., 238 Ill.App. 151.) In this case, the decree' specified the elevations for the drainage ditch. Thus, the appellants argue that the decree was not ambiguous and their motion to strike the petition to construe should have been granted. The appellants are correct that taken separately, the provisions of the decree are not ambiguous; however, the rule for construction of decrees is that they should be construed as a whole, including consideration of other parts of the record, the pleadings and the issues. (Western Theological Seminary v. City of Evanston, 34 Ill.App.2d 162, 180 N.E .2d 752.) Paragraph 4 of the decree provided for temporary relief from impoundment of water on plaintiffs\u2019 land pending completion of the permanent work ordered by paragraph 5. Paragraph 5 provided that the Storms remove and bury the brush pile \u201cso as to allow an unimpeded flow of water\u201d from the Dunaways\u2019 land across the Storms\u2019 farm through the ditch, and that \u201cthe grade of the drainageway shall be uniformly sloped downward from Point X to Point Y, allowing a southeasterly flow of surface water into the flow line of the drainageway which shall not be higher than the following elevations [the specific elevations relied on by the defendants].\u201d In paragraph 6 the court permanently enjoined the defendants \u201cfrom interfering, impeding or holding back the drainage or surface water from [the Dunaway farm] through said drainageway in the future.\u201d The substance of the decree was to enjoin the defendants from continuing to back up water on the plaintiffs\u2019 farm.\nIt, therefore, appears that the circuit court could have given plaintiffs the relief they sought solely by means of construction. The appellants do not challenge the power of the court to construe the decree in order to enforce it, but instead argue that the court said it was responding to a petition to modify and did in fact modify and amend it. The appellants argue that this was error. A consent decree should be enforced as written, is conclusive upon the parties and cannot be varied without the consent of each party. (People ex rel. Stead v. Spring Lake Drainage and Levee District, 253 Ill. 479, 97 N.E. 1042; Filosa v. Pecora, 18 Ill.App.3d 123, 309 N.E .2d 356; American Tar Products Co. v. Bradner Smith & Co., 238 Ill.App. 151; cf. Material Service Corp. v. Hollingsworth, 415 Ill. 284, 287, overruled on an unrelated point; G. S. Lyon & Sons Lumber & Manufac turing Co. v. Department of Revenue, 23 Ill.2d 180.) The order stated: \u201c1. As to the petition to modify:\n(a) It was the clear intention of the decree of June 7, 1972 that water received at Point X as indicated on Exhibit 1 to said decree should be given an exit at Point Y as indicated on Exhibit 1 to said decree.\n(b) Point X as indicated on the decree of June 7, 1972 had an elevation of 592.45 feet above sea level in October, 1973.\n(c) There is an unnatural fill for at least fifty feet to the south of Point X as indicated in the decree of June 7, 1972.\n(d) The decree of June 7, 1972 should be modified by substituting the figures 592.45 instead of 593.2 in paragraph 5A, and by amending 5B to read:\n\u2018B. An elevation below 592.45 feet at all points between Point X and Point Y\\\u201d\nThe plaintiffs sought construction and modification of the decree. The court appeared to have construed the decree, determining its intent, and then modified particular terms to comply with the intent of the whole. In the original decree, the precise elevations were \u201cnot to be higher than the following elevations * 9 The specific elevations appeared to be incidental to the decree\u2019s directives, merely intended as ceiling elevations as the language suggests. Given the decree\u2019s clear objective of allowing drainage of the plaintiff\u2019s land, the decree could only be given meaning by construing it to require that elevations be maintained that would accomplish the desired result. Such a construction could not in reason be deemed to have changed the intent or meaning of the decree. Notwithstanding some of the language contained in the court\u2019s order of February 25, 1974, the effect of the order was to construe rather than modify the earlier decree.\nThe appellants also contend that they were not in wilful contempt because they had substantially complied with the decree of June 7, 1972, by the time of the hearing in February, 1974. The testimony summarized above shows that the appellants had done virtually nothing by November 30, 1972. The court found that the appellants made \u201cno responsible move to comply with the decree\u201d until October 1973, almost a year after the appellants were supposed to have completed work on the drainage ditch. Even then, there was testimony that water continued to back up on the plaintiffs\u2019 land. Having failed to act despite the appellee\u2019s repeated requests for compliance, the appellants clearly violated the decree.\nAppellants attempt to excuse their inaction by asserting that they in good faith tried but were unable to comply for a period of a year and a half. Persons attempting to justify noncompliance with court decrees due to inability to perform must prove inability by definite and explicit evidence. (First National Bank & Trust Co. v. Desaro, 43 Ill.App.2d 153.) There was testimony that for some time after June, 1972, the defendant Ervin Storm owned a bulldozer, that he called only one operator to bulldoze the ditch and that there was a 2-week dry spell in October, 1972, when the work could have been done. Even without this testimony, it is difficult to believe that if appellees really attempted to comply, that they were unable to do virtually anything before May 1973. Moreover, it is clear that they never complied with the order by allowing drainage of the plaintiffs\u2019 land. The appellants were in wilful contempt.\nAppellants next contend that the circuit court improperly assessed $1,000 in attorney fees against the appellants. Appellants correctly state the Illinois rule that absent a statutory provision or contract authorizing assessment of attorney\u2019s fees, attorney\u2019s fees may not be assessed against a party in chancery. (Ralston Purina Co. v. Killam, 10 Ill.App.3d 397, 293 N.E.2d 750; Rasch v. Rasch, 278 Ill. 261; Metropolitan Life Insurance Co. v. Kinsley, 269 Ill. 529; Andrew, Recovery of Attorneys\u2019 Fees and damages in Civil Contempt Proceedings in Illinois, 47 Chi.-Kent L. Rev. 211.) In this case there is no contract or applicable statute. The circuit court\u2019s award of attorney\u2019s fees was error.\nFor the reasons stated, the order of the circuit court is affirmed in part and reversed in part, and the cause is remanded for proceedings consistent with the views expressed in this opinion.\nAffirmed in part, reversed in part and remanded.\nJONES and CARTER, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE GEORGE J. MORAN" } ], "attorneys": [ "William L. Turner, of Shelbyville, and Richard F. Record, Jr., of Craig & Craig, of Mattoon (Jack E. Horsley and John H. Armstrong, of counsel), for appellants.", "Glen A. Featherstun, of Armstrong, Winters, Prince, Tenney, Feather-stun & Johnson, of Decatur, for appellees." ], "corrections": "", "head_matter": "Frank Dunaway et al., Plaintiffs and Counterdefendants-Appellees, v. Ervin L. Storm et al., Defendants and Counterplaintiffs-Appellants.\n(No. 74-169;\nFifth District\nJuly 1, 1975.\nRehearing denied September 3, 1975.\nWilliam L. Turner, of Shelbyville, and Richard F. Record, Jr., of Craig & Craig, of Mattoon (Jack E. Horsley and John H. Armstrong, of counsel), for appellants.\nGlen A. Featherstun, of Armstrong, Winters, Prince, Tenney, Feather-stun & Johnson, of Decatur, for appellees." }, "file_name": "0880-01", "first_page_order": 906, "last_page_order": 912 }