Crowder's award of fees and costs in condemnation case reversed at Fifth District

By Heather Isringhausen Gvillo | Nov 11, 2013


The Fifth District Appellate Court has reversed Madison County Circuit Judge Barbara Crowder’s decision to award $12,699.70 in attorney fees to land owners following the dismissal of Madison County Mass Transit District (MCT) condemnation suits.

Justice Thomas Welch wrote the opinion. Justices Stephen Spomer and Melissa Chapman concurred.

According to the Supreme Court Rule 23 decision filed on Oct. 30, the panel reversed Crowder because the defendant’s request for attorney fees was filed more than 30 days after a final dismissal order was entered. The justices also noted that the trial court abused its discretion by granting the petition, “because the defendants failed to demonstrate due diligence in pursuing their claim for attorney fees in the original condemnation actions.”

Plaintiff MCT filed two separate complaints against defendants Poletti Family Limited Partnership and Steven J. Poletti on Dec. 27, 2010, seeking to condemn certain private parcels of land in order to construct, operate and maintain a bikeway trail.

Crowder entered an order dismissing the condemnation complaints for both cases on Nov. 10, 2011. The court decided that MCT failed to establish the required elements of the eminent domain law.

“Specifically, the court concluded that the resolution authorizing the plaintiff’s use of eminent domain to acquire the tracts of land inadequately described the property to be taken, the resolution described the relevant properties in their entirety and did not specify those parts of the properties sought to be taken,” Welch stated.

The defendants filed a combined petition for relief and motion for attorney fees on July 2, 2012, stating that due to a clerical error by a Madison County circuit clerk, the defendants were unaware of the order dismissing the cases until June 2012. Therefore, they allegedly missed their 30-day window to file for reimbursement and claim it would have been filed on time had they known of the order.

MCT responded stating that the trial court did not have jurisdiction to consider the issue because the motion was filed more than 30 days after final judgment. The defendants were required to request fees and costs by Dec. 10, 2011, MCT argued.

Welch wrote that MCT further claimed “that the trial court should deny the defendants’ petition for relief from judgment because the defendants failed to offer any evidence establishing the existence of a meritorious defense and no evidence of their diligence in pursuing attorney fees within the underlying condemnation actions.”

Crowder granted the defendants' motion for attorney fees on Aug. 2, 2012.

Shortly after, MCT motioned for the court to reconsider, which Crowder denied on Nov. 2, 2012.

Crowder “concluded that section 10-5-70 of the Act did not set forth an express deadline for filing a motion for fees and therefore it had discretion to determine whether a fee request was filed within a ‘reasonable time period,’” Welch wrote.

MCT appealed, arguing that the court lacked jurisdiction to grant reimbursement because it was filed more than seven months after the final judgment.

Welch agreed, arguing that eminent-domain statutes must be strictly interpreted.

“The issue in the present case is whether the court has jurisdiction to entertain a motion for attorney fees pursuant to section 10-5-70 of the Act where the motion was filed outside the 30-day window, after the circuit court lost jurisdiction in the underlying condemnation actions,” Welch stated.

The Act formally states, “The court shall, upon the application of the defendants or any of them, enter an order in the action for the payment by the plaintiff of all costs, expenses, and reasonable attorney fees paid or incurred by the defendant.”

Welch wrote that “in the action” indicates all requests for reimbursement must be filed while the court still has jurisdiction.

Further, Welch stated that the defendants would have had to prove the existence of a meritorious claim, due diligence in presenting this claim and due diligence in filing the petition in order to obtain reimbursement.

“To demonstrate due diligence, a litigant must establish that his failure to appear or defend against the underlying action was the result of an excusable mistake and that he had acted reasonably under the circumstances, as opposed to negligently, when he failed to initially resist the judgment,” Welch wrote.

Welch concluded that the defendants’ factual allegations in the petition were “insufficient to entitle them to relief,” because the attorneys could have found the order in the circuit court filed if they had looked for it.

Welch wrote, "The defendants offered only ‘clerical error’ as explanation for their failure to pursue this claim after the condemnation petitions were dismissed and while the circuit court had jurisdiction over the original proceedings.

“A moving party has the obligation to follow the progress of his case and the failure to do so is generally not a ground for relief.”

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