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Village of Cary v. Trout Valley Association

June 01, 1998

THE VILLAGE OF CARY, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,
v.
TROUT VALLEY ASSOCIATION, DEFENDANT-APPELLANT AND CROSS-APPELLEE.



The opinion of the court was delivered by: Justice Colwell

Appeal from the Circuit Court of McHenry County.

No. 94--ED--0008

Honorable Michael J. Sullivan, Judge, Presiding.

The Village of Cary filed a petition to condemn two easements running across Trout Valley Association's property. In its petition, the Village alleged that section 11--139--12 of the Illinois Municipal Code (65 ILCS 5/11--139--12 (West 1996)) authorized the condemnation. The Association moved to dismiss, in part arguing that, because the Village's authorizing ordinance did not comply with section 11--139--12, 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'n, 282 Ill. App. 3d 165, 174 (1996) (Cary I). Accordingly, we vacated the trial court's judgment and remanded the cause for the dismissal of the Village's petition. Cary I, 282 Ill. App. 3d at 174.

On remand, the Association moved to dismiss the Village's petition and vacate the order vesting title. The trial court promptly granted that motion. In addition, pursuant to sections 7--111 and 7--123 of the Code of Civil Procedure (735 ILCS 5/7--111, 7--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's 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.

The Association again appeals, arguing that the trial court erred in denying the Association's 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's application for fees and costs. In the alternative, the Association argues that (1) the Association waived review of the trial court's ruling on the fee application; (2) the trial court's 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.

I.

Nonpublishable material under Supreme Court Rule 23 omitted.

II.

Nonpublishable material under Supreme Court Rule 23 omitted.

III.

We 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.

The Association filed its application for attorney fees and costs pursuant to section 7--123(a) of the Code of Civil Procedure (735 ILCS 5/7--123(a) (West 1996)). Section 7--123(a) provides, in relevant part:

"[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 ...


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