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Powers v. Rockford Stop-N-Go

November 28, 2001

ROGER J. POWERS, PLAINTIFF-APPELLEE,
v.
ROCKFORD STOP-N-GO, INC., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Boone County. No. 98--L--41 Honorable Gerald F. Grubb, Judge, Presiding.

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

UNPUBLISHED

Following a bench trial, the trial court entered judgment for $875 in favor of plaintiff-lessor, Roger Powers, and against defendant-lessee, Rockford Stop-N-Go, Inc. The trial court also held that the lease agreement between the parties allowed for an award of attorney fees and awarded plaintiff $37,918 for attorney fees. Defendant timely appeals, contending (1) that the trial court erred, as a matter of law, when it construed the lease to allow an award of attorney fees and (2) the trial court abused its discretion because it failed to determine whether the fee award was reasonable. We affirm in part and reverse in part.

This matter arose out of various disputes regarding defendant's use of property leased from plaintiff as a gas station and convenience store. However, because neither party has appealed the trial court's judgment on the merits of the underlying action, it is unnecessary to set out the trial testimony regarding the disputed issues here. The lease was signed by the parties on January 22, 1988. The terms of the lease provided for an initial term of 10 years beginning on April 1, 1988, and granted defendant the option to extend the lease for two successive 5-year periods.

In October 1998 plaintiff filed his original complaint, and on January 27, 1999, he filed an amended complaint. Count I of the amended complaint alleged that defendant breached the lease by allowing leaks or discharges of petroleum products and that the environmental contamination decreased the value of the property. Plaintiff prayed for damages in excess of $50,000. Count II alleged that the operation of a gas station was an ultrahazardous activity and that defendant was strictly liable for the same damages alleged in count I. Count III alleged that defendant had improperly expanded its use of plaintiff's property beyond the area subject to the lease by selling propane, ice, and other goods outside the store building and by refusing to relocate an air conditioning unit. Count IV reiterated the allegations of count III and alleged that defendant's actions constituted a trespass to plaintiff's real property. Count V alleged that defendant had breached the lease by installing overflow tanks above its underground storage tanks that raises them above grade and resulted in damage to plaintiff's parking area. Count VI alleged that plaintiff had incurred legal fees totaling $6,456 as a result of the environmental contamination and that defendant was required to reimburse those costs. Count VI also alleged that defendant had installed, and later removed, pay telephones on the exterior of the building, causing damages of $4,334. Count VII alleged that defendant was in default of the lease and prayed for an order evicting defendant.

Defendant filed several counterclaims alleging that plaintiff (1) interfered with defendant's quiet enjoyment of the leasehold by harassing defendant's customers and vendors, (2) failed to maintain the parking areas as required by the lease, and (3) unreasonably refused to allow defendant to improve the convenience store. Defendant sought an injunction against future harassment, specific performance of the lease, as well as a declaration that outdoor displays were a customary use allowed by the lease.

At trial plaintiff argued that he was entitled to (1) an order terminating the lease, (2) an order requiring defendant to complete remediation by December 31, 2000, (3) an award of attorney fees, (4) an order requiring defendant to repair the damage caused by the installation of the pay telephones, (5) an order requiring defendant to remove the outdoor displays, and (6) an order requiring defendant to relocate an air conditioning unit. Defendant argued that it was entitled to (1) an order enjoining plaintiff from interfering with its quiet enjoyment, and (2) an award of attorney fees.

On May 1, 2000, the trial court issued a memorandum decision. The trial court held that minor spillage of petroleum products was expected during the operation of a gas station and that the parties anticipated such spillage would occur. The trial court further held that under the lease defendant warranted that it would not allow contamination resulting from spillage. The trial court held that breach of that warranty did not automatically give plaintiff the right to terminate the lease because defendant had a right to cure the breach. The trial court further held that because of the nature of environmental contamination the lease's 20-day cure requirement did not apply but, instead, defendant was required to use due diligence to remediate any contamination. The trial court concluded:

"I find that, to date, [d]efendants [sic] have used due diligence in remediating the site and should be allowed to continue to completion. There is no reason why it cannot remediate the site by December 30, 2000. I will enter an order that they complete the Corrective Action Plan at its own expense by that date, as a remedy for breach of contract. I do not find the breach a material breach of the contract that would justify [p]laintiff to terminate the tenancy at this time. Failure to use due diligence in curing the breach would be cause to terminate its tenancy.

Pursuant to the [l]ease, attorney fees shall be paid by [d]efendant for the enforcement of the lease. I will award the same."

The trial court held that the failure to remove equipment outside the demised premises would constitute a willful trespass. The court held that there was no complaint for trespass, refused to enter an order directing defendant to remove equipment, and instead declared the rights of the parties regarding the issue. The trial court held that the sale of merchandise from outdoor displays was a customary use at convenience stores and that defendant had not breached the lease by doing so.

The trial court also held that pay telephones were a customary use. However, the trial court found that defendant had breached the lease by failing to obtain written permission before attaching pay telephones to the building. The trial court found that the amount sought by plaintiff, the cost of residing the building, was unreasonable and awarded plaintiff $875 for damages to the siding. The trial court denied defendant's counterclaims regarding peaceful enjoyment, maintenance of the parking areas, and unreasonably refusing to allow improvements to the store.

Defendant subsequently filed a motion to reconsider the trial court's award of attorney fees. The trial court denied defendant's motion and entered judgment for fees in the amount of $37,918. Defendant timely appeals.

The general rule is that the unsuccessful party in a lawsuit is not responsible for the other party's attorney fees. Mirar Development, Inc. v. Kroner, 308 Ill. App. 3d 483, 488 (1999). The parties to a contract may alter this rule, but contract provisions regarding attorney fees should be strictly construed and enforced at the discretion of the trial court. Mirar, 308 Ill. App. 3d at 488. To determine a reasonable fee award, a court must consider (1) the skill and standing of the attorney employed, (2) the nature of the cause, (3) the novelty and difficulty of the questions, (4) the amount and importance of the subject matter, (5) the degree of responsibility in the management of the case, (6) the time and labor required, (7) the usual and customary charges in the community, and (8) the benefits resulting to the ...


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