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The City of Mchenry v. Vera Ann Suvada

June 16, 2011

THE CITY OF MCHENRY,
PLAINTIFF-APPELLANT,
v.
VERA ANN SUVADA,)
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of McHenry County. No. 07-CH-1098 Honorable Michael J. Caldwell, Judge, Presiding.

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

PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Hudson and Birkett concurred in the judgment and opinion.

OPINION

We publish this case for the purpose of bringing full circle our earlier, related opinion, City of McHenry v. Suvada, 396 Ill. App. 3d 971 (2009), and clarifying certain issues raised with respect to the trial court's latitude in determining whether an ordinance violation exists, the length of a mandatory fining period, and the City's ability to collect attorney fees.

On December 16, 2009, this court determined that defendant, Vera Ann Suvada, was subject to a mandatory fine for violating the City of McHenry's building code. Id. at 984. This court remanded for a determination of: (1) the number of days that Suvada's property was in violation; (2) the amount of the fine (restricted to the statutory range of $25 to $750 per day of violation); and (3) reasonable attorney fees incurred by the City in enforcing the building code. Id. at 988. On remand, the parties agreed that the trial court could make its determinations based entirely on the facts and evidence presented in the original trial.*fn1

The trial court determined that Suvada's property was in violation for 84 days and fined Suvada $25 per day for a total fine of $2,100. As to attorney fees, the court found that, because Suvada had been cooperative, the City could have accomplished its goal of having the property brought into compliance without resort to "aggressive litigation." The court awarded the City attorney fees in the amount of $1,500, representing 10 hours of work at a rate of $150 per hour, even though the City had expended over $27,000 in attorney fees.

The City appeals, arguing that the trial court's finding that the property was in violation for "only" 84 days was against the manifest weight of the evidence and that its award of "only" $1,500 in attorney fees was an abuse of discretion. For the reasons that follow, we determine that the property was in violation for 121 days and that the total fine should therefore be $3,025; however, the court did not abuse its discretion in awarding "only" $1,500 in attorney fees. Accordingly, we affirm as modified.

A. Number of Days: Start Date

The City first argues that the trial court erred in finding that the property was in violation for "only" 84 days. The 84 days represented the date the City formally issued Suvada a notice of substandard and dangerous building conditions (August 15, 2007), to the date Suvada applied for a building permit (November 18, 2007). We will not disturb a trial court's finding of fact unless it is against the manifest weight of the evidence. First Baptist Church of Lombard v. Toll Highway Authority, 301 Ill. App. 3d 533, 542 (1998). To the extent that a trial court's judgment relies on the construction of a statute or ordinance, we review the construction de novo. City of Chicago v. Old Colony Partners, L.P., 364 Ill. App. 3d 806, 812 (2006).

The City contends that the court erred in finding the start date to be August 15, 2007, because, at the original trial, Suvada stipulated that the property was in violation on July 9, 2007, the date the City first inspected the property. The City, citing Old Colony, 364 Ill. App. 3d at 818, asserts that notice is not required before the mandatory daily fines set forth in the City's penalty provision are imposed. Suvada does not respond to this argument.

The City's penalty provision states:

"Any person who violates *** any of the provisions of [the building code] *** shall be punished by a fine of not less than $25.00 nor more than $750.00 and each day upon which such violation continues shall constitute a separate offense." McHenry Municipal Code §7-30(a) (eff. Dec. 4, 1987).

Like the penalty provision in Old Colony, section 7-30(a) of the City's code mandates a fine when the property is in violation, and it does not provide an exception based on lack of notice. Old Colony, 364 Ill. App. 3d at 817-18 (noting that other provisions in the code, such as those pertaining to injunctions, do require notice and an opportunity to cure, and that, while those provisions help to establish a working relationship between a city and building owners, penalty provisions without notice requirements serve an equally valid purpose-to motivate owners to maintain their buildings at all times); see also Lawrence v. Regent Realty Group, Inc., 197 Ill. 2d 1, 10 (2001) (where the language of a provision is clear and unambiguous, it must be enforced as written, and a court may not depart from its plain language by reading into it exceptions, ...


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