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03/29/96 LOU MAY SAMPSON v. LEE MIGLIN

March 29, 1996

LOU MAY SAMPSON, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,
v.
LEE MIGLIN, DEFENDANT-APPELLANT AND CROSS-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Francis Barth, Judge Presiding.

As Corrected.

Presiding Justice McNULTY delivered the opinion of the court: Cousins, J., concurs. Hourihane, J., dissents.

The opinion of the court was delivered by: Mcnulty

PRESIDING JUSTICE McNULTY delivered the opinion of the court:

Defendant, Lee Miglin, appeals from the trial court's judgment holding him liable to plaintiff, Lou May Sampson, for $544,223.50 in damages and $225,249 in costs and attorney fees. We find that the trial court overstated proven damages by $79,399.50 and, therefore, we modify the judgment. We affirm the award of costs and attorney fees.

In 1984 plaintiff bought a lot in Chicago's Gold Coast on which stood a five-unit apartment building. Defendant owned the building next door, which shared a masonry common wall with plaintiff's building. In January 1991, defendant began excavations to put in a basement as part of a complete remodeling of his building. He did not have a building permit, and he had not performed legally required investigations to determine the bearing capacity of the soil, the lateral pressure of adjacent soil, or the proper anchorage for the common wall.

On February 4, 1991, a tenant in plaintiff's building noticed a crack in the wall. Plaintiff spoke to workers on defendant's property, who said they would stop the work that was damaging the wall. They continued working without taking measures to protect plaintiff's building, and several days later plaintiff's other tenants called to tell her their doors did not open and close properly. The City of Chicago issued a stop work order before February 15, 1991. Plaintiff hired a structural engineer, who talked to defendant's contractor and looked at defendant's basement on February 15, 1991.

Defendant's contractor had attempted to underpin the common wall without the soil test or the supervision that building ordinances required. Defendant's architect later told plaintiff's engineer that the common wall had settled about one-half to three-quarters of an inch due to the lack of support during construction.

On March 8, 1991, plaintiff filed suit for a temporary restraining order and monetary damages. The court granted the restraining order and directed defendant to consult with plaintiff's structural engineer for proper stabilization of the common wall. Plaintiff hired Eugene Holland, a structural engineer who specialized in masonry remediation. Defendant hired a structural engineer on March 10, 1991, and that engineer worked with Holland throughout the subsequent construction. The city issued a building permit on April 30, 1991, after Holland and defendant's architect and engineer performed the preliminary investigations that should have preceded excavation and agreed on plans for proper bracing.

The trial court dismissed several counts of the complaint. Plaintiff proceeded to trial on counts charging negligence, violation of building ordinances, and violation of the Adjacent Landowner Excavation Protection Act (Excavation Act) (Ill. Rev. Stat. 1991, ch. 111 1/2, par. 3300 et seq.). Defendant conceded violation of the ordinances and liability for damage to plaintiff's building prior to trial, but he contested the negligence count and the extent of the damages claimed.

[The following material is nonpublishable under Supreme Court Rule 23.]

[The preceding is nonpublishable under Supreme Court Rule 23.]

The trial court found:

"Defendant's failure to comply with the procedural requirements regarding permit issuance allowed demolition and construction work to be performed on his building in an ill-designed and unworkmanlike manner. Excavation, anchorage and underpinning were done in violation of several statutes and ordinances. *** Shoring and bracing technique was inadequate to support the common wall during excavation and underpinning. ***

*** The experts and other professionals retained [by] plaintiff were made necessary by defendant's disregard of the law. The expenses were reasonably and necessarily incurred by plaintiff when she was confronted with the conditions presented her by defendant. The fact that the tradesmen and professionals employed by plaintiff in her capacity as property owner may have become inextricably involved in the concurrent litigation does not negate the validity of plaintiff's claim for the bills they submitted as compensable damages."

[The following is nonpublishable under Supreme Court Rule 23.]

[The preceding is nonpublishable under Supreme Court 23.]

The court found defendant liable for the $439,000 decrease in property value. The court awarded plaintiff almost $104,000 for out-of-pocket expenses, including about $98,000 for Holland's work. The court accepted plaintiff's calculation of $25,365 in rents lost up to the time of trial and awarded plaintiff $25,000 for the time and effort she spent working on problems defendant's construction caused. The total damages, thus, amounted to more than $593,000. The court reserved ruling on plaintiff's request for costs and attorney fees.

Defendant moved to vacate the award of Holland's fees because the judge at trial had said he would follow the same procedure for engineering fees as for attorney fees, permitting defendant to challenge the fee petitions in detailed evidentiary proceedings following the primary trial on damages. The court agreed and vacated the entire award of Holland's fees pending the hearing on attorney and engineering fees.

The court held that the Excavation Act and the Illinois Municipal Code (Ill. Rev. Stat. 1991, ch. 24, par. 1-1-1 et seq.) supported the request for attorney fees, but not the request for expert witness fees. The court ordered plaintiff to strike from her petition fees for work experts did "solely to render opinions at trial," but permitted recovery of engineering fees incurred for working with defendant's engineers to stabilize the building and for determining "the extent of the damage to [plaintiff's] property or the nature of the necessary repairs." Plaintiff's attorneys then struck from the attorney fee petition all charges for work on dismissed counts and the negligence count.

Holland presented 23 pages of invoices, which included summary descriptions of work his firm performed and indicated who performed the work, for all the hours charged. Holland had crossed out the charges for work as an expert witness. The invoices included many aggregated entries and entries for conferences that did not describe the subjects discussed, as, for example, on April 2, 1991, Holland charged for 2.25 hours of work described as:

"Telecons with [plaintiff's attorney]; prepare letter to [defendant's structural engineer]; review drawings and prepare letter; telecon to [defendant's structural engineer]."

He eliminated more than $40,000 for services as an expert witness, but left a total request of more than $55,000 for engineering work.

Holland testified in support of his petition, describing some of the indicated meetings, but leaving most entries without further explanation. Defendant did not, on cross-examination, ask for elucidation of most of the entries. Holland testified that his contract with plaintiff required plaintiff to pay him interest on balances she had not paid for 30 days. He sought more than $4,000 in interest on unpaid engineering fees.

Plaintiff's attorneys submitted more than 400 pages of detailed invoices, indicating the hours each attorney spent each day on the case, with summary descriptions of the work performed. Many of the entries aggregated several separate tasks and included no specification of the subject of conferences, especially when the conferences were between plaintiff and the attorneys. Thus, one attorney indicated that on March 11, 1991, he spent 5.5 hours on the case, for:

"Court appearance ***; drafting agreed order with defendant's attorney; prepare correspondence to defendant's attorney regarding schedule for repairs; prepare correspondence to Gene Holland *** and Lou Sampson regarding status." (Emphasis omitted.)

Each attorney testified in support of the petition, describing in detail some of the meetings listed, but providing no further explanation for the vast preponderance of the thousands of entries. Defendant did not, on cross-examination, request further information about most of the entries.

The trial court found details missing from Holland's bills and said:

"Standing alone the entries would probably not be sufficient to support a finding of reasonableness ***. However, the entries do not stand alone. The proceedings conducted here including [the] availability of Eugene P. Holland to answer all questions overcomes *** the inadequate entries."

In the court's opinion the interest charge was a "standard and reasonable element of the contract and *** interest is recoverable from defendant."

The aggregate entries in the attorney fee petition were "adequate[,] particularly within the context of this case, to support a fee award. *** This court has heard the case throughout the years of litigation. It has had the opportunity to observe the preparedness and skill of plaintiff's attorneys. The court believes it is capable of exercising an informed discretion as to how the tasks performed related to the litigation, whether they were necessary and, therefore, to determine whether they were reasonable and thus, compensable."

The court concluded that

"the status entries in this case describe adequately for purposes of supporting a billing conversations with plaintiff conducted to advise her of the current state of her legal matter. *** Reasonable consultation with the client is a necessary and proper aspect of the professional relationship of attorney-client. *** In the absence of evidence that status conferences did not take place or had no constructive purpose the court will not disallow such billings."

The court disallowed fees incurred in preparation of and proceedings on the fee petitions. The total award included $225,249 for costs and attorney fees, and $44,851 plus $4,399.50 interest for Holland's engineering work. After amending the damage award, the court found defendant liable for a total of ...


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