Court of Appeals of Illinois, First District, Fifth Division
Appeal from the Circuit Court of Cook County No. 06 L 8168 Honorable James M. Varga, Judge Presiding.
JUSTICE PALMER delivered the judgment of the court, with opinion. Justices McBride and Taylor concurred in the judgment and opinion.
¶ 1 Plaintiff Helen Bockweg appeals from an order of the circuit court denying her petition for attorney fees and costs she incurred in pursuing her successful enforcement of the excavation ordinance of the Chicago Municipal Code (Chicago Municipal Code § 13-124-380 et seq.) against defendant Quality Excavation, Inc. (Quality). Bockweg argues that the court erred as a matter of law in denying her petition because she was entitled to her costs, including attorney fees, pursuant to section 11-13-15 of the Illinois Municipal Code (65 ILCS 5/11-13-15 (West 2008)). We reverse and remand.
¶ 2 Background
¶ 3 This appeal arises from the second amended complaint Bockweg and her husband, Theodoor (plaintiffs), filed against Quality and four other defendants (collectively defendants) in March 2008. Plaintiffs charged defendants with (1) breach of the Illinois Municipal Code and the Chicago Municipal Code and (2) negligence. Only plaintiffs' claim against Quality brought under the Illinois Municipal Code and Chicago Municipal Code is relevant here.
¶ 4 Plaintiffs' complaint alleged that Bockweg was the sole beneficiary of the trust which owned legal title to the property at 2125 North Clifton Avenue in Chicago. Plaintiffs lived in the house on the property. The owners of the property next door to plaintiffs, at 2127 North Clifton Avenue (2127 property), decided to demolish the building on the property and build a new structure. To that end, they hired Quality to perform the excavation of the site. Quality started excavation of the property in April 2006. Plaintiffs' home was within five feet of the excavation site. Shortly after excavation began, the bricks and mortar of the exterior walls of plaintiffs' home began cracking, stone tiles cracked and both exterior and interior foundation and walls shifted. A structural engineer inspected the excavation site and determined that the excavation was not being performed in compliance with the plan and certification approved by the City of Chicago and did not provide the reinforcement and bracing of plaintiffs' property required by the Chicago Municipal Code.
¶ 5 Plaintiffs initially filed suit in 2007 and subsequently filed their second amended complaint in March 2008. They brought their action against Quality under section 11-13-15 of the Illinois Municipal Code (65 ILCS 5/11-13-15 (West 2008)), charging that, while performing excavation work on the 2127 property, Quality violated sections 13-124-380 through 13-124-420 of the Chicago Municipal Code (Chicago Municipal Code § 13-124-380 et seq.) (the excavation ordinance). Specifically, plaintiffs charged that Quality violated section 13-124-400 of the excavation ordinance. Section 13-124-400 requires that a neighboring structure within five feet of an excavation must be reinforced or braced in order to prevent sagging, settling, cracking or collapse of the structure's foundation or walls. Chicago Municipal Code § 13-1124-400 (amended Nov. 13, 2007).
¶ 6 Plaintiffs charged that the foundation and walls of their home sagged, settled and cracked as a result of Quality's violation of the excavation code and Quality was, therefore, liable for those damages under section 13-124-410 of the ordinance.Plaintiffs also asserted that, because Quality violated the excavation ordinance, it was responsible for payment of plaintiffs' attorney fees as a cost of plaintiffs' litigation pursuant to section 11-13-15 of the Illinois Municipal Code.
¶ 7 Section 11-13-15 of the Illinois Municipal Code permits owners or tenants of real property located within 1, 200 feet of any structure or building which violates a local zoning ordinance to file suit to, among other remedies, prevent the unlawful construction or alteration or to "restrain, correct, or abate the violation." 65 ILCS 5/11-13-15 (West 2008). The court deciding a section 11-13-15 action "may issue a restraining order, or a preliminary injunction, as well as a permanent injunction, upon such terms and under such conditions as will do justice and enforce the purposes set forth above." 65 ILCS 5/11-13-15 (West 2008).
¶ 8 Plaintiffs did not seek a restraining order or injunction to force compliance with the excavation ordinance. They sought "compensatory damages to cover the damages caused by Quality's violations of the City of Chicago ordinances." They also requested their attorney fees as a cost of litigation to enforce the excavation ordinance. Section 11-13-15 provides for attorney fees as follows:
"If the court finds that the defendant has engaged in any of the foregoing prohibited activities, then the court shall allow the plaintiff a reasonable sum of money for the services of the plaintiff's attorney. This allowance shall be a part of the costs of the litigation assessed against the defendant, and may be recovered as such." 65 ILCS 5/11-13-15 (West 2008).
¶ 9 Defendants moved to strike plaintiffs' request for attorney fees, arguing that section 11-13-15 of the Illinois Municipal Code applied to suits for injunctive relief and not to actions such as plaintiffs' seeking solely monetary damages. Plaintiffs responded that, if they succeeded in establishing a violation of the excavation ordinance, they were entitled to attorney fees under the express terms of the Illinois Municipal Code, the excavation ordinance and Illinois case law as set forth in Sampson v. Miglin, 279 Ill.App.3d 270 (1996).
¶ 10 On November 23, 2009, the court granted defendants' motion and struck plaintiffs' request for attorney fees. It subsequently denied plaintiffs' motion to reconsider.
¶ 11 On October 3, 2011, plaintiffs filed a motion in limine seeking leave to present evidence of attorney fees at trial. Citing section 11-13-15 of Illinois Municipal Code and Sampson, they argued that Quality's failure to comply with the excavation ordinance was a "prohibited activity" under section 11-13-15 and plaintiffs were, therefore, entitled to the costs, including attorney fees, they had incurred in prosecuting the violation of the excavation ordinance. Plaintiffs requested that the court allow them to present evidence of their prosecution costs and attorney fees or, alternatively, make an offer of proof. They also requested that the court vacate the trial court's prior ruling striking their prayer for attorney fees without prejudice.
¶ 12 Quality filed a motion in limine seeking to exclude evidence of plaintiffs' attorney fees from trial evidence and plaintiffs' claim for damages, arguing that the court had twice before denied plaintiff relief with respect to attorney fees and plaintiffs should be precluded from impermissibly interjecting the same issue into the trial. Although not reflected in the record on appeal, the parties agree that the court reserved ruling on the motions in ...