Fifth District says attorney fee requests filed too late

By Ann Maher | Mar 20, 2014

The Fifth District Appellate Court has reversed Madison County Circuit Judge Barbara Crowder in two cases that awarded attorneys fees and costs to defendants in separate, but similar, eminent domain actions.

Justice Thomas Welch held in both Rule 23 decisions entered March 17: “The trial court's award of attorney fees to the defendants following the dismissal of the plaintiff's condemnation petition is reversed where the defendants' request for attorney fees was filed more than 30 days after the final dismissal order was entered.”

Madison County Mass Transit District had appealed Crowder’s orders awarding $18,110 to Kort and Lauri Juenger and $22,661 to Sergio and Janet Torres. The Juengers and Torreses were defendants in suits brought by the Transit District that sought to condemn property they owned to make way for bike trails.

They were represented by Merle Bassett and Rene Bassett Butler of Bassett Law Office in Wood River.

In both cases, Crowder concluded in November 2011 that a resolution authorizing the Transit District’s use of eminent domain to acquire the tracts of land was deficient because it inadequately described the property to be taken. She ruled that the error was fatal in order for the Transit District to sustain an eminent-domain action and complaint for condemnation. The cases were dismissed.

The defendants filed petitions for attorneys’ fees on July 5, 2012, more than seven months after Crowder dismissed the actions.

Madison County Mass Transit District objected, arguing that the trial court did not have jurisdiction to consider the attorney-fees issue because the motion was filed more than 30 days after entry of the final judgment.

Crowder granted attorney fees Nov. 2, 2012, saying the request was not untimely. According to the Fifth District, Crowder cited Town of Libertyville v. Bank of Waukegan, which held that a trial court had jurisdiction to consider a fee application made within 30 days of the entry of the final order where a notice of appeal was previously filed from the dismissal order. Crowder had concluded that the filing of a notice of appeal from the final judgment in the condemnation action did not deprive the circuit court of jurisdiction to entertain "the collateral or supplemental matter of fees and costs.”

In addition to the timeliness argument, the Transit District argued on appeal that the plain language of the controlling statute requires that an application for fees be brought before the trial court in the original condemnation action, while the court maintained jurisdiction.

In response, the defendants argued that statutory language is clear that the plaintiff is responsible for paying the defendants' fees and costs associated with the eminent domain complaint because the plaintiff ultimately did not acquire the defendants' land through condemnation.

The defendants also argued that it would be “unjust and absurd” to force the defendants to pay the substantial fees and costs incurred in defending against the plaintiff's "defective complaint."

Alternatively, the defendants argued that in their brief in support of their motion to traverse, they asked the trial court for "any other relief that this court deems just," which contemplated an award of attorney fees and costs.

Justices Melissa Chapman and Stephen Spomer concurred.

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