Court of Appeals of Illinois, First District, Fourth Division
Appeal from the Circuit Court of Cook County. No. 12 CH 00164. The Honorable Lee Preston Judge Presiding.
In an action arising from an automobile collision involving multiple tortfeasors, the appellate court reversed the trial court's judgment ruling that plaintiff insurer was entitled to set off defendant's claim for underinsured motorist benefits under one of the policies plaintiff issued with the amounts plaintiff paid under the bodily injury coverage of the same policy, since under the circumstances, defendant was allowed to seek both bodily injury and underinsured benefits under the same policy, but defendant was not entitled to a windfall or double recovery, and therefore, the cause was remanded to ensure defendant was not awarded more than the damages suffered.
Ronald Fishman and Kenneth A. Fishman, both of Fishman & Fishman, Ltd., of Chicago, for appellant.
Peter C. Morse and Cynthia Ramirez, both of Morse Bolduc & Dinos, LLC, of Chicago, for appellee.
JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Howse and Justice Fitzgerald Smith concurred in the judgment and opinion.
[¶1] This appeal arises from a dispute between plaintiff Uptown People's Law Center (Uptown) and defendant Illinois
Department of Corrections (the IDOC). After Uptown commenced this action alleging that the IDOC had failed to turn over public records in violation of the Illinois Freedom of Information Act (FOIA) (5 ILCS 140/1 et seq . (West 2010)), the IDOC provided the requested records. The trial court subsequently dismissed the action as moot and denied Uptown's motion for attorney fees under FOIA. Specifically, the court found that absent a court order in Uptown's favor, it was not a " prevailing party" entitled to fees under FOIA, relying on the Second District's decision in Rock River Times v. Rockford Public School District 205, 2012 IL App (2d) 110879, 977 N.E.2d 1216, 365 Ill.Dec. 117On appeal, Uptown asserts that Rock River Times was wrongly decided. The IDOC now agrees that a court order is not a prerequisite for a plaintiff to prevail under FOIA's attorney fee provision but nonetheless asserts that Uptown is not entitled to attorney fees because Uptown effectively proceeded pro se and because an issue of fact exists as to whether Uptown properly made a FOIA request before filing its complaint. We will address each contention in turn.
[¶2] I. BACKGROUND
[¶3] On January 4, 2012, Uptown, a not-for-profit organization that represents prisoners regarding conditions of confinement, filed a complaint against the IDOC, seeking (1) a declaratory judgment that the IDOC's refusal to provide Uptown with requested public records violated FOIA; (2) an order requiring the IDOC to produce such documents; and (3) an award of attorney fees. Uptown alleged that on three dates in November 2011, it requested that IDOC provide records relating to prison conditions, facility maintenance and sanitation reports but that the IDOC had not responded. Attached to the complaint were copies of Uptown's requests. IDOC denied receiving Uptown's requests.
[¶4] On September 12, 2012, plaintiff filed a petition for attorney fees pursuant to section 11(i) of FOIA, which provides a plaintiff with an award of attorney fees where the plaintiff " prevails" in a FOIA proceeding. 5 ILCS 140/11(i) (West 2010). Approximately two months later, the IDOC tendered all requested documents. Shortly thereafter, Uptown filed an amended fee petition arguing that an order compelling disclosure was not required in order to " prevail" in a manner consistent with the meaning of the FOIA language. In response to the fee petition, the IDOC argued that the complaint was moot because the IDOC had provided all requested records and that Uptown had not prevailed. Specifically, the IDOC argued that Uptown had not prevailed because all requested documents were tendered before litigation concluded, relying on Rock River Times, and Uptown represented itself pro se . Moreover, the IDOC maintained that it had never received Uptown's requests. In reply, Uptown argued that Rock River Times was wrongly decided and disputed that it was a pro se litigant. Uptown argued that it was a not-for-profit corporation in the legal services profession and was essentially represented bye in-house counsel, Alan Mills and Nicole Schult. Moreover, attached was the affidavit of Uptown's paralegal, who alleged that he had mailed Uptown's FOIA requests.
[¶5] On December 7, 2012, the trial court dismissed the case as moot and denied Uptown's amended petition for attorney fees because the IDOC tendered the documents of its own accord without an order by ...