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Glenview Park Dist. v. Redemptorist Fathers

OPINION FILED SEPTEMBER 29, 1980.

THE GLENVIEW PARK DISTRICT, PLAINTIFF-APPELLANT,

v.

THE REDEMPTORIST FATHERS OF GLENVIEW, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Plaintiff, Glenview Park District (Park District), appeals from an order of the trial court awarding the law firm of Foran, Wiss & Schultz the reasonable value of attorneys' fees and the reasonable value of expenses and costs incurred in representing defendant landowner, Redemptorist Fathers of Glenview (Redemptorist Fathers), in a condemnation action which was abandoned prior to trial. The trial court found that prior to abandonment, the reasonable value of attorneys' fees was $47,100 and the reasonable value of expenses and costs was $15,380.56. Additionally, the court awarded the attorneys for the landowner $10,000 in attorneys' fees for services rendered in pursuit of fees and $1,367 for expenses and costs incurred in pursuit of fees. The landowner cross-appealed, seeking an award of an additional $14,193.75 for services rendered in pursuit of fees and an order compensating it for the reasonable value of legal services rendered and reasonable costs incurred in connection with this appeal.

On appeal, plaintiff argues that the trial court erred in awarding attorneys' fees and expenses and costs to the property owner for four reasons. First, the contract between the property owner and its attorneys was a contingent fee contract based on an award or settlement and did not provide for any attorneys' fees in the event of abandonment. Second, an award of fees in pursuit of attorneys' fees was improper. Third, the representations by the property owner and its attorneys that the property to be taken was not used for religious purposes led to the institution and abandonment of the proceedings. Fourth, the attorneys' fees and expenses awarded were excessive and not right and just.

We affirm in part, reverse in part, and remand with directions.

In 1974, the Park District sought to acquire a 24-acre parcel of land owned by the Redemptorist Fathers. Subsequently, the proposed taking was reduced to approximately 14.1 acres.

The Chicago law firm of Foran, Wiss & Schultz was engaged to represent the Redemptorist Fathers in the condemnation action. Father Gleason executed a written agreement with Foran on March 8, 1976, which provided as follows:

"We hereby agree to pay you as attorneys' fees for services rendered in this matter a percentage of the total amount recovered in this proceeding. The amount recovered includes payment for the part taken and damages to the remainder, if any. The fees shall be in the amount of 11% if the matter is tried or 9% if it is settled before trial begins. It is understood that there will be additional costs which we are to incur, including appraisal fees, court costs and title reports."

The agreement did not explicitly provide for attorneys' fees in the event of abandonment. Thomas Foran of Foran, Wiss & Schultz testified that he told Father Gleason that if the condemnation proceeding were abandoned, they would be permitted under the Eminent Domain Act to apply to the court to have the Park District reimburse them for fees.

On January 10, 1977, the Park District filed a petition to condemn the 14.1 acres of property. On January 27, 1977, the Redemptorist Fathers filed a cross-petition alleging damages to the remainder. The attorneys for the Redemptorist Fathers prepared the case for trial and were prepared to present evidence that just compensation for the taking was between $1,450,000 and $1,600,000.

On October 5, 1978, after the jury had been selected, the attorney representing the condemning authority abandoned the petition to condemn. The court ordered a mistrial and dismissed the case with prejudice.

On October 26, 1978, Foran, Wiss & Schultz filed with the trial court an application for attorneys' fees, expenses and costs pursuant to section 10 of the Eminent Domain Act (Ill. Rev. Stat. 1977, ch. 47, par. 10(a)). To aid in determining the proper amount of fees and costs, the attorneys for the Redemptorist Fathers attached reproductions and time sheets of each of the attorneys who worked on the case, reflecting the dates the services were performed and descriptions of the services rendered in the case. The application stated that the attorneys for the landowner cumulatively devoted 538.25 hours in preparation for trial and requested $72,633.75 in attorneys' fees. The attorneys additionally requested $16,421.56 for appraiser fees, survey costs, engineer fees and other costs.

A 10-day hearing on fees and costs ensued in the trial court. Both sides presented expert testimony as to the value of the services rendered. The trial court awarded the attorneys fees for services rendered prior to abandonment in the amount of $47,100 and expenses and costs incurred prior to the abandonment in the amount of $15,380.56. The trial court also found that the reasonable value of attorneys' fees in pursuit of fees was $10,000 and the reasonable value of costs incurred in pursuit of fees was $1,360.50. The Park District appeals the order and the Redemptorist Fathers cross-appeal seeking an award of an additional $14,193.75 for services rendered in pursuit of fees in the trial court proceedings after abandonment and an order reimbursing them for the reasonable value of attorneys' fees and reasonable costs incurred in connection with this appeal.

Section 10(a) of the Eminent Domain Act (Ill. Rev. Stat. 1977, ch. 47, par. 10(a)), provides, in part:

"[I]f * * * the petitioner shall dismiss [a] petition before the entry of [an] order * * * or shall fail to make payment of full compensation within the time named in [the] order * * * [the] court * * * shall, upon application of the defendants * * * order * * * the payment by the petitioner of all costs, expenses and reasonable attorney fees * * * paid or incurred by [the] defendant * * * in defense ...


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