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Village of Franklin Park v. Aragon Management Inc.

August 04, 1998

THE VILLAGE OF FRANKLIN PARK, PLAINTIFF-APPELLANT,
v.
ARAGON MANAGEMENT, INC., DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Presiding Justice McNULTY

Appeal from the Circuit Court of Cook County

Honorable Rene Goier, judge Presiding

In this case we must construe provisions of the Illinois Municipal Code (the Municipal Code) 65 ILCS 5/1-1-1 et seq. (West 1996)) that permit municipalities to recover costs of demolition and related litigation. We hold that the statute requires application of court rules to determine the reasonably necessary costs of litigation.

On July 26, 1995, the Village of Franklin Park served on Aragon Management, Inc., a notice for demolition of a building on property Aragon owned. Aragon sought a hearing before Franklin Park's building code board of appeals (the Board). The Board heard evidence from both parties on September 15, 1995, and entered its findings and decision upholding the notices on September 25, 1995.

Franklin Park filed this lawsuit for demolition on October 5, 1995. The parties actively pursued discovery, deposing several experts along with other witnesses, over the following months, while Aragon successfully delayed demolition. On May 23, 1996, Franklin Park moved for summary judgment, arguing that the Board's decision collaterally estopped Aragon from relitigating the factual issues the agency decided. The trial court found that Aragon had not appealed from the Board's decision, and the Board's findings of fact required judgment in favor of Franklin Park. Neither party challenges that decision on appeal.

Franklin Park demolished the building and petitioned to recover costs of the demolition from Aragon. The comptroller filed a supporting affidavit that itemized court costs of $393.62, statutory witness fees of $393, postage costs of $209.94, court reporting fees, primarily for depositions, of $5,015.80, expert witness charges of $62,709.10, and miscellaneous costs including copying and legal research, totaling $7,432.24. The demolition itself cost $55,607. Franklin Park sought to recover all of the listed amounts, for a total of $131,760.70. It included no request for attorney fees.

The court considered separately each amount requested. Aragon argued that deposition costs should not be recoverable because Franklin Park did not use the depositions in support of the motion for summary judgment the trial court granted. The court awarded Franklin Park the demolition costs, court costs, and some copying costs, plus $233 in board-up fees, which Franklin Park had not listed in the petition. The award totals $56,364.65. Franklin Park appeals from denial of witness expenses, court reporting fees, and miscellaneous costs.

Section 11-31-1 of the Municipal Code provides:

"The cost of the demolition, repair, enclosure, or removal incurred by the municipality, *** including court costs, attorney's fees, and other costs related to the enforcement of this Section, is recoverable from the owner ***." 65 ILCS 5/11-31-1 (West 1996).

Illinois courts have not specifically decided whether and to what extent this statute requires the court to award deposition costs and witness expenses. But our supreme court restated general principles for interpretation of statutes allowing litigation cost recovery in Galowich v. Beech Aircraft Corp., 92 Ill. 2d 157, 162, 441 N.E.2d 318 (1982):

"At common law, a successful litigant was not entitled to recover from his opponent the costs and expenses of the litigation. The allowance and recovery of costs is therefore entirely dependent on statutory authorization. [Citations.] Only those items designated by statute to be allowable can be taxed as costs. [Citation.] While the power to impose costs must ultimately be found in some statute, the legislature may grant the power in general terms to the courts, which in turn may make rules or orders under which costs may be taxed and imposed."

The statute at issue in Galowich provides that whenever a plaintiff voluntarily dismisses a lawsuit, "the defendant shall have judgment for his costs." Ill. Rev. Stat. 1979, ch. 33, par. 16. The court held that because the statute did not further define the costs to be awarded, court rules on the assessment of costs applied. Galowich, 92 Ill. 2d at 165; see 134 Ill. 2d R. 208. The court interpreted its rules to authorize "the trial court to tax as costs, in its discretion, the expenses only of those depositions necessarily used at trial." Galowich, 92 Ill. 2d at 166. Due to the plaintiff's voluntary dismissal, the defendant used no depositions, so the court disallowed any award for deposition costs.

Franklin Park argues that Galowich does not apply to this case because of the difference between the statutes. The statute in Galowich required only an award of "costs," whereas the Municipal Code directs the court to award "court costs, attorney's fees, and other costs related to the enforcement of this Section (65 ILCS 5/11-31-1 (West 1996))."

The court in City of Peru v. Bernardi, 81 Ill. App. 3d 227, 232, 401 N.E.2d 1 (1980), held that interpretation of the similar Mechanics Lien Act (770 ILCS 60/1 et seq. (West 1996)) provided useful guidance for interpretation of section 11-31-1 of the Municipal Code. The Mechanics Lien Act provides that "[t]he costs of proceedings as between all parties to the suit shall be taxed equitably against the losing party." 770 ILCS 60/17 (West 1996). Awards of the "costs of proceedings" under the Mechanics ...


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