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Newport Township Road District and Daniel Dziekan, In His Official v. George Pavelich

November 19, 2012

NEWPORT TOWNSHIP ROAD DISTRICT AND DANIEL DZIEKAN, IN HIS OFFICIAL
CAPACITY AS THE NEWPORT TOWNSHIP HIGHWAY COMMISSIONER, PLAINTIFFS-APPELLEES,
v.
GEORGE PAVELICH, IN HIS OFFICIAL CAPACITY AS THE SUPERVISOR OF NEWPORT TOWNSHIP AND THE TREASURER OF THE NEWPORT TOWNSHIP ROAD DISTRICT; NEWPORT TOWNSHIP; RICHARD GALGAN AND BETH HARTFORD, IN THEIR OFFICIAL CAPACITIES AS NEWPORT TOWNSHIP TRUSTEES; AND DEBORAH SPURGEON, IN HER OFFICIAL CAPACITY AS NEWPORT TOWNSHIP CLERK AND NEWPORT TOWNSHIP ROAD DISTRICT CLERK, DEFENDANTS-APPELLANTS (KATHERINE NEWYEAR AND MICHAEL GALLAGHER, )
DEFENDANTS



Appeal from the Circuit Court of Lake County. No. 11-MR-1391 Honorable Christopher C. Starck, . Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Schostok and Birkett concurred in the judgment and opinion.

OPINION

¶ 1 Defendants appeal the trial court's order that the Newport township board allocate funds from the road district's budget for payment of plaintiffs' legal fees. On appeal, defendants argue that: (1) the trial court erred by denying their motion to dismiss; (2) the Newport Township highway commissioner was not justified in retaining independent counsel; (3) there is no authority for ordering a township board to review a petition for attorney fees and to establish a budget item to pay the fees; (4) plaintiffs were not entitled to fees springing from a lawsuit filed in 2009; and (5) the township board is vested with exclusive discretion in annual budgetary matters involving the road district. We affirm.

¶ 2 I. BACKGROUND

¶ 3 The plaintiffs in this case are as follows: the Newport Township road district (Road District), which was created pursuant to and operates under the Illinois Highway Code (605 ILCS 5/6-101 et seq. (West 2010)); and Daniel Dziekan ( the Highway Commissioner), the highway commissioner of the Road District.

¶ 4 The defendants in this case are as follows: Newport Township (the Township), which was created pursuant to and operates under the Illinois Township Code (60 ILCS 1/1-1 et seq. (West 2010)); George Pavelich (Township Supervisor), township supervisor and the treasurer of the Road District; Richard Galgan, Katherine Newyear, Beth Hartford, and Michael Gallagher (collectively, the Township Trustees); and Deborah Spurgeon, the Township clerk and the Road District clerk. The Township Supervisor and the Township Trustees comprise the Newport Township board (the Township Board).

¶ 5 On August 1, 2011, plaintiffs filed a seven-count complaint against defendants, asking the trial court to compel defendants to pass the Road District's budget for fiscal year 2011-12 and to process the Highway Commissioner's warrants for funds from the Road District's budget to pay plaintiffs' attorney fees related to this case and to a lawsuit the Township filed against the Highway Commissioner in 2009.

¶ 6 The counts were titled as follows: (I) "Temporary Restraining Order, Preliminary and Permanent Injunction to Compel Township and Trustees to Adopt the Road District's Budget"; (II) "Mandamus To Compel the Township Supervisor and Trustees to Approve the Road District's Budget"; (III) "Temporary Restraining Order, Preliminary and Permanent Injunction To Compel Township Board To Approve and Pay Road District's Bills and Employee's Salaries"; (IV) "Mandamus to Compel the Township Supervisor and Trustees to Approve and Pay the Road District's Bills and Employee's Salaries"; (V) "Declaratory Judgment That Highway Commissioner Can Hire an Attorney of His Choice To Represent Him and the Road District In Issues In Which He Has a Conflict With the Township That the Township Board Must Approve Payment of Those Attorneys From Road District Funds"; (VI) "Declaratory Judgment that the Road District Can Enter Into Intergovernmental Agreement Without Township Board Approval"; and (VII) "Declaratory Judgment That the Township Board Must Approve the Payment of the Highway Commissioner's Past Legal Fees From the Road District Funds."

¶ 7 Plaintiff also filed a motion for a temporary restraining order and preliminary and permanent injunctions that essentially address the same issues contained in their complaint. After the close of plaintiffs' case at a hearing on their motion, defendants moved for dismissal of the motion.

¶ 8 On September 7, 2011, the trial court denied defendants' motion to dismiss plaintiffs' motion and ordered the parties to mediation. The parties resolved all matters except for the issues involving attorney fees. On October 11, 2011, the trial court entered an order memorializing the parties' agreement; ordered a briefing schedule on the remaining issues; and set a date for a hearing. The order limited the issues to "Counts V and VII and the attorney fees components of Count I-IV."

¶ 9 The trial court's written order, dated December 13, 2011, states the following:

"This cause coming to be heard on the remaining issues in Plaintiffs' verified complaint, the issues having been fully briefed, the Court having considered arguments by counsel, IT IS HEREBY ORDERED THAT:

1. The Township Board is ordered to allocate sufficient funds in the Road District's budget for legal fees related to this matter.

2. The Township Board shall approve the payment of the Plaintiffs' legal fees related to this matter from the Road District budget [and] shall do so in the normal manner for processing Road District warrants.

3. The Township Board shall put sufficient funds in the Road District's budget for Dziekan's legal fees from the 2009 lawsuit [and] shall approve the payment of same in the normal manner for processing Road District warrants.

7. This is a final and appealable order and resolves all issues in this case and no just reason exists to prevent enforcement or appeal of this order."

¶ 10 On December 21, 2011, defendants filed a timely notice of appeal.

¶ 11 II. ANALYSIS

¶ 12 Initially, we address defendants' various arguments that the trial court erred by denying their motion to dismiss. After the trial court denied defendants' motion to dismiss, the parties successfully mediated and settled all issues raised in this litigation except for those involving attorney fees. Defendants do not argue that the settlement is invalid and did not file with the trial court a motion seeking to void the settlement. Thus, defendants have forfeited all arguments relating to all issues except for those related to attorney fees, which we address below.

¶ 13 Defendants argue that the Highway Commissioner was not justified in retaining independent counsel.

¶ 14 Plaintiffs' complaint alleged that the Highway Commissioner had the right to hire legal counsel to represent both the Highway Commissioner and the Road District, pursuant to section 6-201.19 of the Highway Code (605 ILCS 5/6-201.19 (West 2010)).

¶ 15 The primary rule of statutory interpretation and construction is to ascertain the intent of the legislature. Wisnasky-Bettorf v. Pierce, 2012 IL 111253, ¶ 16. The most reliable indicator of legislative intent is the language of the statute, which must be given its plain and ordinary meaning. 100 Lake, LLC v. Novak, 2012 IL App (2d) 110708, ¶ 12. Statutes should be construed, if ...


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