{ "id": 4302269, "name": "LELAND STAHELIN et al., Plaintiffs-Appellants, v. FOREST PRESERVE DISTRICT OF DU PAGE COUNTY, Defendant (Morton Arboretum, Defendant-Appellee)", "name_abbreviation": "Stahelin v. Forest Preserve District", "decision_date": "2010-05-17", "docket_number": "No. 2\u201409\u20140249", "first_page": "1030", "last_page": "1043", "citations": [ { "type": "official", "cite": "401 Ill. App. 3d 1030" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "90 F.3d 1307", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9049931 ], "year": 1996, "pin_cites": [ { "page": "1310" } ], "opinion_index": 0, "case_paths": [ "/f3d/90/1307-01" ] }, { "cite": "388 Ill. App. 3d 15", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4283003 ], "year": 2009, "pin_cites": [ { "page": "24" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/388/0015-01" ] }, { "cite": "540 F.3d 649", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 4234617 ], "year": 2008, "pin_cites": [ { "page": "652" } ], "opinion_index": 0, "case_paths": [ "/f3d/540/0649-01" ] }, { "cite": "94 Ill. App. 3d 511", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3123585 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "513-14" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/0511-01" ] }, { "cite": "342 Ill. App. 3d 552", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3472725 ], "year": 2003, "pin_cites": [ { "page": "555-59", "parenthetical": "a collateral motion for costs did not affect final judgment, for jurisdictional purposes" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/342/0552-01" ] }, { "cite": "455 U.S. 445", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11305988 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "451-52", "parenthetical": "fee awards under section 1988 \"require an inquiry separate from the decision on the merits\"" }, { "page": "331", "parenthetical": "fee awards under section 1988 \"require an inquiry separate from the decision on the merits\"" }, { "page": "1166", "parenthetical": "fee awards under section 1988 \"require an inquiry separate from the decision on the merits\"" } ], "opinion_index": 0, "case_paths": [ "/us/455/0445-01" ] }, { "cite": "166 Ill. App. 3d 515", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5071783 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "518" }, { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/166/0515-01" ] }, { "cite": "611 F.2d 624", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 470003 ], "year": 1979, "pin_cites": [ { "page": "637", "parenthetical": "services relating to various appeals are compensable, and district court, with its greater facility for evidentiary hearings and fact-finding, should make awards for appellate services in first instance, subject to appellate review" } ], "opinion_index": 0, "case_paths": [ "/f2d/611/0624-01" ] }, { "cite": "778 F.2d 1254", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1526801 ], "year": 1985, "pin_cites": [ { "page": "1257", "parenthetical": "petition on entitlement to appellate attorney fees may be filed in either district court or court of appeals" } ], "opinion_index": 0, "case_paths": [ "/f2d/778/1254-01" ] }, { "cite": "496 U.S. 154", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12122211 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "161-62", "parenthetical": "holding that district court has the power to award appellate fees under fee-shifting statute" }, { "page": "144", "parenthetical": "holding that district court has the power to award appellate fees under fee-shifting statute" }, { "page": "2320", "parenthetical": "holding that district court has the power to award appellate fees under fee-shifting statute" } ], "opinion_index": 0, "case_paths": [ "/us/496/0154-01" ] }, { "cite": "169 Ill. 2d 525", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909173 ], "year": 1996, "pin_cites": [ { "page": "539" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/169/0525-01" ] }, { "cite": "312 Ill. App. 3d 1150", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 411655 ], "year": 2000, "pin_cites": [ { "page": "1154", "parenthetical": "argument on appeal forfeited where movant mentioned the issue for the first time in the motion for reconsideration" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/312/1150-01" ] }, { "cite": "681 F.2d 1325", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 543971 ], "weight": 5, "year": 1982, "pin_cites": [ { "page": "1326" }, { "page": "1326" }, { "page": "1327" }, { "page": "1327" } ], "opinion_index": 0, "case_paths": [ "/f2d/681/1325-01" ] }, { "cite": "499 U.S. 365", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11318959 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "380" }, { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/us/499/0365-01" ] }, { "cite": "508 U.S. 49", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11789 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "60" }, { "page": "624" }, { "page": "1928" } ], "opinion_index": 0, "case_paths": [ "/us/508/0049-01" ] }, { "cite": "261 Ill. App. 3d 1080", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5373793 ], "year": 1994, "pin_cites": [ { "page": "1083" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/261/1080-01" ] }, { "cite": "381 U.S. 657", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172709 ], "weight": 3, "year": 1965, "opinion_index": 0, "case_paths": [ "/us/381/0671-01" ] }, { "cite": "365 U.S. 127", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6164740 ], "weight": 3, "year": 1961, "opinion_index": 0, "case_paths": [ "/us/365/0127-01" ] }, { "cite": "660 F.2d 280", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 391133 ], "year": 1981, "pin_cites": [ { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/f2d/660/0280-01" ] }, { "cite": "742 F.2d 350", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 613279 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "358" }, { "page": "357" } ], "opinion_index": 0, "case_paths": [ "/f2d/742/0350-01" ] }, { "cite": "656 F.2d 1137", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1267802 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "1145" }, { "page": "1145" } ], "opinion_index": 0, "case_paths": [ "/f2d/656/1137-01" ] }, { "cite": "773 F.2d 1182", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 19003 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "1189" }, { "page": "1189" } ], "opinion_index": 0, "case_paths": [ "/f2d/773/1182-01" ] }, { "cite": "419 F.3d 1169", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 8940602 ], "year": 2005, "pin_cites": [ { "page": "1176-80" } ], "opinion_index": 0, "case_paths": [ "/f3d/419/1169-01" ] }, { "cite": "775 F.2d 173", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 41772 ], "year": 1985, "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/f2d/775/0173-01" ] }, { "cite": "684 F.2d 1375", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 529446 ], "year": 1982, "pin_cites": [ { "page": "1378-79" } ], "opinion_index": 0, "case_paths": [ "/f2d/684/1375-01" ] }, { "cite": "434 U.S. 412", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183992 ], "weight": 18, "year": 1978, "pin_cites": [ { "page": "421" }, { "page": "657" }, { "page": "700" }, { "page": "421" }, { "page": "657" }, { "page": "700", "parenthetical": "addressing Title VII's fee-shifting provision" }, { "page": "422" }, { "page": "657" }, { "page": "701" }, { "page": "420" }, { "page": "656" }, { "page": "700" }, { "page": "422" }, { "page": "657" }, { "page": "701" }, { "page": "421-22" }, { "page": "657" }, { "page": "700-01" } ], "opinion_index": 0, "case_paths": [ "/us/434/0412-01" ] }, { "cite": "449 U.S. 5", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11715236 ], "weight": 9, "year": 1980, "pin_cites": [ { "page": "14" }, { "page": "172" }, { "page": "178" }, { "page": "14" }, { "page": "172" }, { "page": "178" }, { "page": "14" }, { "page": "172" }, { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/us/449/0005-01" ] }, { "cite": "42 U.S.C. \u00a71983", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "opinion_index": 0 }, { "cite": "376 Ill. App. 3d 765", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4273586 ], "weight": 13, "year": 2007, "pin_cites": [ { "page": "767-70" }, { "page": "780" }, { "page": "774" }, { "page": "775" }, { "page": "777" }, { "page": "778-79" }, { "page": "780" }, { "page": "780" }, { "page": "776" }, { "page": "776" }, { "page": "777" }, { "page": "777" }, { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/376/0765-01" ] }, { "cite": "42 U.S.C. \u00a71988", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 2000, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1303, "char_count": 35060, "ocr_confidence": 0.756, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14481095229876337 }, "sha256": "7f88f0a4cc3592a47e74d6a8e89326b15c3908d30d97c4ae49dbbe5f8db009ea", "simhash": "1:1b6bb1be590efc65", "word_count": 5684 }, "last_updated": "2023-07-14T16:03:46.574655+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LELAND STAHELIN et al., Plaintiffs-Appellants, v. FOREST PRESERVE DISTRICT OF DU PAGE COUNTY, Defendant (Morton Arboretum, Defendant-Appellee)." ], "opinions": [ { "text": "JUSTICE BURKE\ndelivered the opinion of the court:\nThe circuit court of Du Page County awarded defendant, Morton Arboretum (Morton), $94,578 in attorney fees, pursuant to section 1988 of the Civil Rights Act of 1991 (Act) (42 U.S.C. \u00a71988 (2000)), finding that plaintiffs, Leland Stahelin and JES Ventures, L.L.C., frivolously appealed to this court and the Illinois Supreme Court the trial court\u2019s dismissal of their action against Morton. On appeal, plaintiffs argue that the trial court lacked the authority to award the fees, because Morton failed to seek them directly in this court pursuant to Supreme Court Rule 375(b) (155 Ill. 2d R. 375(b)), and because the trial court allowed Morton to file a supplemental motion for fees before we issued a mandate on the merits. Plaintiffs also maintain that the trial court abused its discretion (a) in determining that plaintiffs\u2019 action against Morton was frivolous under section 1988 and (b) in determining the amount of the fees. We affirm.\nBACKGROUND\nThe Initial Complaint\nThe specific facts of the history of this case are set forth in Stahelin v. Forest Preserve District, 376 Ill. App. 3d 765, 767-70 (2007). We briefly set forth those facts that are relevant to this appeal. Plaintiffs, owners of an 18-acre parcel of land bordered on three sides by Morton, desired to develop their property. Morton and the Forest Preserve District of Du Page County (hereinafter the District) both desired to preserve plaintiffs\u2019 property in its current state, for the benefit of the public. The District entered into negotiations with plaintiffs to buy their property. The negotiations were authorized by an enabling ordinance (Phase I ordinance). However, good-faith negotiations fell apart. The District enacted another ordinance (Phase II ordinance), authorizing acquisition of the property through negotiation or condemnation. On the date the Phase II ordinance was enacted, the District filed a suit for condemnation, which it later voluntarily dismissed. The District enacted a third ordinance (Abandonment ordinance), which authorized the voluntary dismissal and stated that, although it continued \u201cto believe the fee simple acquisition of the property is important and necessary for the furtherance of the purposes set forth in this Ordinance, the [District] has determined that at this time, it is in the best interest of the [District] to abandon the acquisition of the property and dismiss the condemnation proceedings currently pending.\u201d The Abandonment ordinance further provided that the District \u201chereby expressly states that the acquisition of the property in the future would be important to furthering the statutory purposes of the [District].\u201d\nPlaintiffs did not make any improvements to the land, such as a subdivision development, \u201cfearing\u201d the purposes set forth in the Abandonment ordinance, and they requested that the District delete that language from the ordinance. The District refused to do so.\nSubsequently, plaintiffs filed a multicount complaint against the District and Morton. Only count II of plaintiffs\u2019 complaint, which was brought against Morton, is at issue in the present appeal. Plaintiffs alleged in count II that Morton was liable under section 1983 of the Act (42 U.S.C. \u00a71983 (2000)) for an alleged conspiracy between Morton and the District to \u201ctake\u201d plaintiffs\u2019 property in violation of the fifth amendment to the United States Constitution. The other counts sought inverse condemnation and the issuance of a writ of mandamus to initiate condemnation proceedings, a declaration that certain ordinances approved by the District were ultra vires acts, and an elimination of the cloud on plaintiffs\u2019 title to the property. The District and Morton filed motions to dismiss, pursuant to sections 2 \u2014 615 and 2 \u2014 619 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 615, 2 \u2014 619 (West 2006)), and the trial court dismissed the complaint.\nThe Initial Appeal\nWe affirmed the trial court\u2019s order in all respects. Stahelin, 376 Ill. App. 3d at 780. We held that the Abandonment ordinance did not amount to a regulatory taking of plaintiffs\u2019 property; the language did not give the District any power to regulate, limit, or control plaintiffs\u2019 ability to use their land or develop their property. We further held that, \u201c[d]espite [plaintiffs\u2019] apparent apprehension about the language, the fact remains that the ordinance provides the District no enforcement mechanism to regulate plaintiffs\u2019 property.\u201d Stahelin, 376 Ill. App. 3d at 774. We also pointed out that, although at some future time a municipal corporation, with powers of eminent domain, may require the land of a private owner, it is one of the conditions under which the owner holds the land, and entering a petition to condemn or passing resolutions or ordinances vests no interest in the land. Stahelin, 376 Ill. App. 3d at 775.\nAs to count II\u2019s alleged constitutional deprivation of property rights, we concluded that plaintiffs alleged the type of governmental petitioning that is protected by the first amendment and that it was the District\u2019s right to listen to Morton\u2019s petition because it is within the District\u2019s statutory authority to exercise eminent domain. Stahelin, 376 Ill. App. 3d at 777.\nWe found that the Abandonment ordinance and the Phase I ordinance were not outside the broad grant of implied powers vested with the District\u2019s board and that, thus, neither ordinance was ultra vires. Stahelin, 376 Ill. App. 3d at 778-79. Finally, we held that the Phase I ordinance was inoperative and could not constitute a semblance of title or an adverse claim and that the Abandonment ordinance did not assert that the District had any right or claim to the property. We found that neither ordinance had the legal effect that plaintiffs ascribed to it. Stahelin, 376 Ill. App. 3d at 780. In short, we concluded that if plaintiffs obtained the proper permits, they could \u201cbegin bulldozing trees on their property at any time and the District would be powerless to stop them based on either of the ordinances.\u201d Stahelin, 376 Ill. App. 3d at 780.\nThe Section 1988 Fee Award\nMorton filed a motion for attorney fees pursuant to section 1988 following the trial court\u2019s dismissal of count II but before plaintiffs filed the initial appeal. Section 1988 provides a court discretion to award a prevailing defendant in a section 1983 action its reasonable attorney fees upon a \u201cfinding that the plaintiffs action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.\u201d Hughes v. Rowe, 449 U.S. 5, 14, 66 L. Ed. 2d 163, 172, 101 S. Ct. 173, 178 (1980), citing Christiansburg Garment Co. v. Equal Employment Opportunity Comm\u2019n, 434 U.S. 412, 421, 54 L. Ed. 2d 648, 657, 98 S. Ct. 694, 700 (1978). Morton argued that plaintiffs\u2019 claim was \u201cdoomed\u201d for at least three independent legal reasons, each readily identifiable from controlling legal precedent, and that therefore the action should be deemed frivolous. Plaintiffs filed their notice of appeal and requested that the proceedings on the fee motion be stayed pending the resolution of the appeal. Morton did not object and the trial court agreed to grant the stay.\nAfter we affirmed the trial court\u2019s decision to dismiss plaintiffs\u2019 complaint, Morton sought leave to supplement its fee motion to include the failed appeal. However, the fee proceedings were stayed again while plaintiffs pursued a petition for leave to appeal to the Illinois Supreme Court. Following the rejection of plaintiffs\u2019 appeal by the supreme court, the trial court allowed Morton to supplement its fee motion to include additional law and facts. Morton\u2019s motion focused on plaintiffs\u2019 decision to continue bringing appeals after the trial court\u2019s dismissal order set forth the legal defects in their claim against Morton.\nThe trial court awarded attorney fees to Morton. However, it awarded fees only from the appellate proceedings and not from the inception of plaintiffs\u2019 case. The trial court gave plaintiffs the benefit of the doubt as to the filing of the initial complaint and denied those fees requested for defending the trial proceedings, finding that the law was made clear \u201cin the [motion-to-dismiss] briefs so that I can only conclude that the appeal not only to the Appellate Court but to the Supreme Court was without legal foundation and has to be deemed frivolous.\u201d In the final hearing on the motion for fees, the trial judge further commented:\n\u201cThis started out as a 1983 action. The petition for fees is not being brought by a governmental entity which was named as a defendant. The petition for fees is being brought or was brought and is now being defended by a presumably not-for-profit entity which was dragged into this and what I previously found to be a frivolous piece of litigation.\u201d\nFollowing the award of fees, plaintiffs timely appeal.\nANALYSIS\nSection 1988 Fees\nWe first address plaintiffs\u2019 argument that the trial court abused its discretion in finding that plaintiffs\u2019 filing appeals following the dismissal of the action against Morton was frivolous within the meaning of section 1988. Morton contends that the claim was frivolous from the start for at least three independent reasons, but by the time the motion-to-dismiss briefing was complete, there could be no dispute that the action was frivolous, and it was certainly within the trial court\u2019s discretion to award fees incurred from that point. We address this argument first because our conclusion obviates the need to consider plaintiffs\u2019 remaining arguments.\nWe commence with a review of the applicable statute and case law. As plaintiffs proceeded against Morton in a section 1983 action, section 1988 governs the award of attorney fees. Section 1988 provides, in relevant part:\n\u201cIn any action or proceeding to enforce a provision of section! ] *** 1983 *** of this title, *** the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney\u2019s fee as part of the costs ***.\u201d 42 U.S.C. \u00a71988(b) (2000).\nCourts have interpreted this statute to allow for an award of attorney fees as part of an award of costs to a prevailing defendant only where a plaintiffs claim was \u201cfrivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.\u201d Christiansburg, 434 U.S. at 421, 54 L. Ed. 2d at 657, 98 S. Ct. at 700 (addressing Title VII\u2019s fee-shifting provision); Doe v. Busbee, 684 F.2d 1375, 1378-79 (11th Cir. 1982). Generally speaking, the \u201cplaintiff should not be assessed his opponent\u2019s attorney\u2019s fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.\u201d Christiansburg, 434 U.S. at 422, 54 L. Ed. 2d at 657, 98 S. Ct. at 701. The Supreme Court has specifically applied this standard in civil rights actions brought pursuant to section 1983. Hughes, 449 U.S. at 14, 66 L. Ed. 2d at 172, 101 S. Ct. at 178. The purpose of allowing attorney fees to defendants in all of these contexts is to protect defendants from burdensome litigation having no legal or factual basis. Christiansburg, 434 U.S. at 420, 54 L. Ed. 2d at 656, 98 S. Ct. at 700.\nA suit is \u201cfrivolous\u201d when it \u201chas no reasonable basis, whether in fact or law.\u201d Tarkowski v. County of Lake, 775 F.2d 173, 176 (7th Cir. 1985). Whether a plaintiff ultimately loses his case is not in itself a sufficient justification for the assessment of fees. Hughes, 449 U.S. at 14, 66 L. Ed. 2d at 172, 101 S. Ct. at 178. Whether a plaintiffs claim is frivolous, unreasonable, or groundless must be judged by an objective standard, although if the court finds that a plaintiff has brought or continued a claim in bad faith, a stronger basis exists for charging the plaintiff with the attorney fees incurred by the defendant. Christiansburg, 434 U.S. at 422, 54 L. Ed. 2d at 657, 98 S. Ct. at 701; Cordoba v. Dillard\u2019s, Inc., 419 F.3d 1169, 1176-80 (11th Cir. 2005). In this circumstance, the court should \u201c \u2018focus on the question whether the case is so lacking in arguable merit as to be groundless or without foundation rather than whether the claim was ultimately successful.\u2019 \u201d Sullivan v. School Board, 773 F.2d 1182, 1189 (11th Cir. 1985), quoting Jones v. Texas Tech University, 656 F.2d 1137, 1145 (5th Cir. 1981). In the context of a Title VII case, to which the same standard applies, the Supreme Court has cautioned that, in considering whether a plaintiffs claim is frivolous, unreasonable, or groundless:\n\u201c[I]t is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. No matter how honest one\u2019s belief that he has been the victim of discrimination, no matter how meritorious one\u2019s claim may appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial. The law may change or clarify in the midst of litigation. Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.\u201d Christiansburg, 434 U.S. at 421-22, 54 L. Ed. 2d at 657, 98 S. Ct. at 700-01.\nPlaintiffs point out that, under Seventh Circuit precedent, once a plaintiff files a claim that is not then frivolous, that claim can become frivolous thereafter only when it should be clear to the plaintiff, in light of a failure to uncover necessary facts, that further efforts will not produce sufficient evidence to warrant a trial. Hermes v. Hein, 742 F.2d 350, 358 (7th Cir. 1984). Plaintiffs state that the Seventh Circuit has identified the following four factors to determine if a claim was frivolous when filed: (1) whether the issue is one of first impression requiring judicial resolution; (2) whether the controversy is sufficiently based upon a real threat of injury to the plaintiff; (3) whether the trial court decided that the suit was frivolous under the Christiansburg guidelines; and (4) whether the record supports that decision. Reichenberger v. Pritchard, 660 F.2d 280, 288 (7th Cir. 1981). The Seventh Circuit also requires the trial court, in order to provide a basis for appellate review, to discuss the specific information that forms the basis of the plaintiffs suit and to explain why this information does not constitute adequate factual substance for a nonfrivolous suit. Hermes, 742 F.2d at 357.\nPlaintiffs further argue that here the trial court\u2019s analysis was backwards and assert that, if the complaint was not frivolous when filed, then plaintiffs had the absolute right to seek this court\u2019s review of its dismissal. Ergo, if they had an absolute right to the review, plaintiffs presume, then it cannot be said that they acted frivolously when exercising that absolute right. Plaintiffs point out that the record lacks any evidence that during the case plaintiffs learned of any inaccuracies in their factual allegations, which Morton conceded by filing its motion to dismiss. Plaintiffs also assert that we chose to publish our ruling because it addressed a matter of first impression requiring judicial resolution and therefore the complaint \u201cprobably\u201d cannot be deemed frivolous. Plaintiffs observe that even the tone of our opinion supports this conclusion, as it fails to state that their contention was \u201cwithout merit.\u201d\nGiven that the case had a reasonable basis in fact when it was filed, the trial court reasonably concluded that plaintiffs\u2019 claim against Morton was not frivolous at the outset. We do not find that the trial court abused its discretion in giving plaintiffs the benefit of the doubt as to the initial filing of the complaint. However, when the briefs were submitted and argued on Morton\u2019s motion to dismiss, the legal shortcomings of plaintiffs\u2019 case revealed that continuing the case against Morton was fruitless and \u201c \u2018so lacking in arguable merit as to be groundless or without foundation\u2019 \u201d by section 1983 standards. Sullivan, 773 F.2d at 1189, quoting Jones, 656 F.2d at 1145.\nPlaintiffs alleged in count II that, pursuant to section 1983, its substantive due process rights were violated as a result of an alleged conspiracy between Morton and the District to use the District\u2019s power of eminent domain to deprive plaintiffs of their property rights. Morton filed a motion to dismiss, pursuant to section 2 \u2014 619(a)(9) of the Code (735 ILCS 5/2 \u2014 619(a)(9) (West 2006)), arguing that Morton\u2019s action of petitioning the District was privileged under the first amendment and the Noerr-Pennington doctrine (see Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 5 L. Ed. 2d 464, 81 S. Ct. 523 (1961); United Mine Workers of America v. Pennington, 381 U.S. 657, 14 L. Ed. 2d 626, 85 S. Ct. 1585 (1965)). Under section 2 \u2014 619, a party admits all well-pleaded facts and admits the legal sufficiency of the complaint but asserts an affirmative defense or other matter that avoids or defeats the claim. T&S Signs, Inc. v. Village of Wadsworth, 261 Ill. App. 3d 1080, 1083 (1994).\nDuring briefing on the matter, plaintiffs conceded that Morton\u2019s action generally was entitled to protection under the first amendment and the Noerr-Pennington doctrine but argued that Morton and the District\u2019s conspiratorial conduct fell within the very narrow \u201csham\u201d exception to Noerr-Pennington immunity. Following argument, the trial court dismissed the claim, finding that under the first amendment Morton had the right to petition the government and that there was no conspiracy to commit an unlawful act where Morton was within its rights to petition the District and the District was \u201ccharged with the obligation to listen to its constituents.\u201d\nWe stated that the Noerr-Pennington doctrine, which has been extended to section 1983 actions and to local governmental bodies, is subject to a \u201csham\u201d exception when the petition is \u201c \u2018objectively baseless in the sense that no reasonable [petitioner] could realistically expect success on the merits.\u2019 \u201d Stahelin, 376 Ill. App. 3d at 776, quoting Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 60, 123 L. Ed. 2d 611, 624, 113 S. Ct. 1920, 1928 (1993). The sham exception to the Noerr-Pennington doctrine applies only when a defendant petitions the government with no realistic expectation of a favorable result, but merely to force expense and delay on the other party. Filing a frivolous objection to a competitor\u2019s license application, with no expectation of achieving denial of the license but simply to impose expense and delay, is one example. Stahelin, 376 Ill. App. 3d at 776, citing City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 380, 113 L. Ed. 2d 382, 398, Ill S. Ct. 1344, 1354 (1991).\nPlaintiffs specifically alleged that Morton petitioned the District to acquire the property for Morton\u2019s private benefit and to then transfer the property to Morton for management; that Morton suggested to the District that it use its condemnation power to have Morton undertake possession and management; that Morton met with representatives of the District to discuss having the District use its condemnation power with the intent that the District would ultimately have the property transferred to Morton; and that the purpose of the condemnation action was to have the property turned over to Morton. Plaintiffs asserted that the District ultimately filed the complaint for condemnation at Morton\u2019s urging and for Morton\u2019s benefit and that it ultimately served Morton\u2019s goal of stalling and preventing the proposed development of the property. Plaintiffs also asserted that the voluntary dismissal of the suit served as evidence that neither Morton nor the District ever truly desired to physically acquire the property but that they conspired to forever preclude development of the property and to harm and harass plaintiffs by forcing them to sell the property to the District or by destroying the developmental potential of the property.\nAs the trial court held, and as we explained in our opinion, the allegations, even taken as true, could never amount to a sham exception because they merely described an activity that Morton legally was entitled to pursue under the Noerr-Pennington doctrine. Stahelin, 376 Ill. App. 3d at 777. Alleging that Morton petitioned the District either to acquire the property for Morton or to preclude development of the property was just another way of depicting Morton\u2019s attempt to preserve open space, which necessarily involved preventing development. Further, the District\u2019s alleged conspiracy to exercise eminent domain to acquire the property could never amount to a sham exception, because it was not only Morton\u2019s right to petition the District to exercise eminent domain but it was also the District\u2019s right to listen to Morton\u2019s petition, as it is within the District\u2019s statutory authority to exercise eminent domain. Stahelin, 376 Ill. App. 3d at 777. Finally, we pointed out:\n\u201c[Pjlaintiffs did not, and cannot, allege that the District\u2019s condemnation proceeding was \u2018objectively baseless,\u2019 because, as plaintiffs acknowledge: the District has \u2018powers of eminent domain to acquire involuntarily real estate within Du Page County for forest preserve purposes.\u2019 Thus, the District had a realistic expectation of succeeding in its condemnation action, thereby rendering the \u2018sham\u2019 exception inapplicable. Because of the District\u2019s statutory right to condemn property, there was substantial likelihood of the District succeeding on the merits in its condemnation action. Thus, Morton was protected by the Noerr-Pennington doctrine to petition the District, and the doctrine reciprocally protects the District, which had a right to act on the petition of its constituent.\u201d Stahelin, 376 Ill. App. 3d at 777.\nIn Brown v. City of Palmetto, Georgia, 681 F.2d 1325 (11th Cir. 1982), the plaintiff filed a section 1983 suit against the city, an insurance company, and a number of individual defendants, seeking to recover for the demolition of a fire-damaged building. The plaintiff alleged that the defendants conspired to remove the building to lessen the insurance company\u2019s liability and to benefit the city, in violation of his due process and equal protection rights. The district court granted a directed verdict for the defendants because the plaintiff offered no evidence at trial to prove that a conspiracy existed. Brown, 681 F.2d at 1326. After the plaintiffs unsuccessful appeal, the defendants filed a motion for an award of attorney fees, and the district court denied the motion on the grounds that the motion was filed too late and that it was not clear until the directed verdict was entered that the plaintiffs case was frivolous. Brown, 681 F.2d at 1326.\nOn appeal, the defendants argued that the case was frivolous from the outset and that the district court\u2019s holding was erroneous because there is no jurisdictional time limit for filing a motion under section 1988. The appellate court found that the motion for attorney fees was timely filed. Brown, 681 F.2d at 1327. As to the award of attorney fees, the appellate court noted that the district court held that the plaintiffs case was weak from the beginning but that it was not apparent until the close of the evidence that the case was frivolous. Although the appellate court was puzzled by the suggestion that a case that was clearly frivolous at the close of the evidence could have been anything else at the beginning, it concluded that the defendants had failed to show that it was an abuse of discretion to deny attorney fees incurred at the district court level. The appellate court further observed, however, that the district court also found that the plaintiff continued to litigate after it became clear that his case was frivolous. The appellate court therefore held that the denial of attorney fees with respect to the appeal was an abuse of discretion and remanded for computation of fees incurred after the district court directed a verdict for the defendants. Brown, 681 F.2d at 1327.\nWhile, as plaintiffs argue, they have an absolute right to an appeal, they do so at their peril if the appeal is frivolous, unreasonable, or groundless. Moreover, although it is true that plaintiffs\u2019 allegations of fact were never challenged, the problem with this argument is that such a challenge would have been meaningless in this case. We were never asked to decide in the initial appeal if the case was frivolous and that we failed to state so in our decision and that we published it makes no difference. Plaintiffs had no reasonable expectation of succeeding on count II against Morton and yet they continued to litigate it to this court and to the supreme court. Pursuing appeals after it is clear that doing so would be fruitless subjects a plaintiff to liability for appellate attorney fees pursuant to section 1988. We conclude that the trial court did not abuse its discretion in finding that the case was clearly frivolous after the motion-to-dismiss briefing and in awarding attorney fees incurred for defending the baseless appeals.\nSupreme Court Rule 375\nHaving found that the trial court did not abuse its discretion in awarding attorney fees for defending the frivolous appeals, we next address plaintiffs\u2019 argument that Morton\u2019s failure to seek the fees directly in the appellate court, pursuant to Supreme Court Rule 375(b) (155 Ill. 2d R. 375(b)), left the trial court without the authority to award such fees. Plaintiffs maintain that the trial court lacked the authority to award any fees associated with the appellate proceedings in the first instance because the only avenue available to seek appellate fees was to file a motion in the appellate court pursuant to Rule 375, which Morton did not do. Plaintiffs essentially argue that Rule 375 effectively preempts federal law, which leaves Illinois circuit courts powerless to utilize section 1988.\nPlaintiffs first raised this preemption argument in their motion for reconsideration of the trial court\u2019s fee award. Arguments raised for the first time in a motion for reconsideration are forfeited on appeal. See Rodgers-Orduno v. Cecil-Genter, 312 Ill. App. 3d 1150, 1154 (2000) (argument on appeal forfeited where movant mentioned the issue for the first time in the motion for reconsideration). Plaintiffs had a year in which they could have raised the issue, from when Morton filed its initial motion for fees to the trial court\u2019s decision. As pointed out by Morton, plaintiffs\u2019 preemption argument should have been timely presented in order to preserve it for appeal. See Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 539 (1996).\nPlaintiffs argue that Morton \u201copened the door and allowed [plaintiffs] to preserve the [preemption] issue\u201d when Morton filed a supplemental motion for fees. We reject this argument. The supplemental fee motion was filed after the trial court had denied plaintiffs\u2019 motion to reconsider and at the invitation of the trial court. We find that plaintiffs have forfeited their argument by failing to timely raise it before the trial court.\nEven if we had found no forfeiture, plaintiffs\u2019 argument lacks merit. While it is true that Rule 375 does provide a path for the award of attorney fees associated with defending against a frivolous appeal, it is not the only route, and the failure to file a motion under Rule 375 does not preclude a section 1988 motion. Section 1988 provides another mechanism for fee-shifting where a litigation matter is deemed frivolous, and it applies to all phases of litigation, at the trial and appellate levels. In applying section 1988, the Supreme Court \u201cfavors treating a case as an inclusive whole.\u201d Commissioner, Immigration & Naturalization Service v. Jean, 496 U.S. 154, 161-62, 110 L. Ed. 2d 134, 144, 110 S. Ct. 2316, 2320 (1990) (holding that district court has the power to award appellate fees under fee-shifting statute). Many cases have found that the trial court, with its greater facility for evidentiary hearings and fact-finding, should award fees for appellate services to a litigant entitled to fees under section 1988, despite that appellate courts routinely have their own rules for seeking attorney fees, similar to Rule 375. See, e.g., Ekanem v. Health & Hospital Corp. of Marion County, Indiana, 778 F.2d 1254, 1257 (7th Cir. 1985) (petition on entitlement to appellate attorney fees may be filed in either district court or court of appeals); Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 637 (6th Cir. 1979) (services relating to various appeals are compensable, and district court, with its greater facility for evidentiary hearings and fact-finding, should make awards for appellate services in first instance, subject to appellate review).\nPlaintiffs cite Alexander v. Human Rights Comm\u2019n, 166 Ill. App. 3d 515 (1988), in support of their position that appellate attorney fees cannot be sought in the trial court. In Alexander, the Illinois Human Rights Commission denied the complainant\u2019s request for attorney fees pursuant to the Illinois Human Rights Act for legal representation in an administrative review action before the circuit court of Cook County. The appellate court held that the Illinois Human Rights Act did not expressly permit awards for costs of appellate representation. Alexander, 166 Ill. App. 3d at 518. When the complainant urged on appeal that his claim be analogized to section 1988 claims for attorney fees in appeals in discrimination suits brought under Title VII for employment discrimination, the court declined, finding that it had no authority to add language to the Illinois Human Rights Act or otherwise construe it to interject provisions not found therein, however desirable or beneficial the outcome. Alexander, 166 Ill. App. 3d at 518. Alexander did not involve a litigant\u2019s right to seek section 1988 fees in a section 1983 case, as is the case here, where the trial court had the authority to award appellate fees under section 1988. Alexander does not help plaintiffs\u2019 position.\nMotion to Supplement Fees Prior to Mandate on Appeal\nWe next address plaintiffs\u2019 contention that the trial court lacked the authority to award Morton attorney fees when the trial court allowed Morton to file its supplemental motion for fees before this court issued a mandate on the merits. This assumes that Morton\u2019s motion for fees was legally tied to the trial court\u2019s final judgment on the merits. However, a motion for fees under section 1988 is collateral to a final judgment on the merits and is unaffected by an appeal of that judgment. See, e.g., White v. New Hampshire Department of Employment Security, 455 U.S. 445, 451-52, 71 L. Ed. 2d 325, 331, 102 S. Ct. 1162, 1166 (1982) (fee awards under section 1988 \u201crequire an inquiry separate from the decision on the merits\u201d); In re Estate of Kunsch, 342 Ill. App. 3d 552, 555-59 (2003) (a collateral motion for costs did not affect final judgment, for jurisdictional purposes). Accordingly, plaintiffs\u2019 subsequent appeals on the merits were separate from Morton\u2019s motion for fees and did not deprive the trial court of jurisdiction to resolve the fee issue.\nPlaintiffs\u2019 reliance on Bank of Viola v. Nestrick, 94 Ill. App. 3d 511 (1981), is ineffectual. In Viola, the trial court made substantive decisions while the appellate court was considering a timely appeal and had jurisdiction over the case. Viola, 94 Ill. App. 3d at 513-14. In this case, the fee decision and the judgment on the merits are treated as separate. See McCarter v. Retirement Plan for District Managers of American Family Insurance Group, 540 F.3d 649, 652 (7th Cir. 2008). Unlike in Viola, we never had jurisdiction over Morton\u2019s motion for fees, which remained exclusively within the trial court.\nThe Amount of the Fee Award\nWe last address plaintiffs\u2019 argument that the trial court abused its discretion in determining the amount of fees awarded to Morton. Plaintiffs\u2019 claim concerns the assessment of the hourly rate and the hours expended on the case.\n\u201cIn assessing such a claim, reviewing courts recognize that this is a factual determination that is usually given great deference since it depends heavily on the trial court\u2019s greater familiarity with the case.\u201d Demitro v. General Motors Acceptance Corp., 388 Ill. App. 3d 15, 24 (2009). Determining an award under section 1988 calls for the court to apply the \u201clodestar\u201d method, where \u201creasonable hourly rates\u201d are \u201cmultiplied by hours reasonably expended.\u201d People Who Care v. Rockford Board of Education, 90 F.3d 1307, 1310 (7th Cir. 1996). This is what the trial court did in this case.\nAs to the hourly rates, Morton voluntarily made substantial reductions, limiting its request to the hourly rate that its counsel charged when the case began in 2005 rather than the rate counsel charged when the fee motion was filed. Judge Wheaton, who relied upon her \u201c20 year career,\u201d ruled that Morton\u2019s \u201cdiscounted rates\u201d were \u201cnot unreasonable\u201d in light of what is \u201creasonable and customary in Du Page County.\u201d Plaintiffs offer no contrary evidence to challenge this finding.\nRegarding the amount of hours spent defending, Morton submitted documentation detailing the activities of its counsel and again made significant concessions with respect to the hours it claimed, eliminating a number of hours and seeking recovery only for the efforts of the two principal counsel who worked on the matter, even though several others contributed. Judge Wheaton found that the entries submitted were for work that was actually performed and, after disallowing certain entries relating to travel, she approved the rest as reasonable. We do not find that the trial court abused its discretion in awarding $94,578 in attorney fees to Morton.\nFor the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.\nAffirmed.\nO\u2019MALLEY and SCHOSTOK, JJ., concur.\nNorton also filed a motion to dismiss count II under section 2 \u2014 615 (735 ILCS 5/2 \u2014 615 (West 2006)), on the ground that count II failed to properly state a claim for relief under section 1983 because plaintiffs did not sufficiently allege that Morton acted under color of state law and did not exhaust state remedies. The trial court dismissed count II on both section 2 \u2014 615 and section 2 \u2014 619 grounds. We affirmed the trial court\u2019s section 2 \u2014 619 dismissal.", "type": "majority", "author": "JUSTICE BURKE" } ], "attorneys": [ "Lawrence A. Stein, of Huck Bouma PC., of Wheaton, for appellants.", "Jason G. Winchester and Adam W Wiers, both of Jones Day, of Chicago, for appellee." ], "corrections": "", "head_matter": "LELAND STAHELIN et al., Plaintiffs-Appellants, v. FOREST PRESERVE DISTRICT OF DU PAGE COUNTY, Defendant (Morton Arboretum, Defendant-Appellee).\nSecond District\nNo. 2\u201409\u20140249\nOpinion filed May 17, 2010.\nLawrence A. Stein, of Huck Bouma PC., of Wheaton, for appellants.\nJason G. Winchester and Adam W Wiers, both of Jones Day, of Chicago, for appellee." }, "file_name": "1030-01", "first_page_order": 1046, "last_page_order": 1059 }