## I LLINOIS 

## O FFICIAL 

## R EPORTS Appellate Court

City of McHenry v. Suvada , 2011 IL App (2d) 100534

Appellate Court Caption THE CITY OF McH ENRY, Plaintiff-Appellant, v. VERA ANN SUVADA, Defendant-Appellee.

District & No. Second District Docket No. 2–10–0534

Filed June 16, 2011

Held ( N ote: This s yllabu s constitutes no part

of the opinion of the court but has been prepared by th e Reporter of Decisionsfor the conv en ience of the reader. ) The trial court’s award of attorney fees to plaintiff city in a n action arising from building code violations on defendant’s property was affirmed, notwithsta

nding the f act t hat th e cit y e xp end ed $27,00 0 in attorney fees and the trial court only aw arded $1 ,5 00 , s in ce th e a tt or ne ys began a litigation

strategy before defendant was notified of a potential violation and before they had any indica

tion of whether

defe ndant would be cooperative, the city ’s inspector testified that

defendant was cooperative, and the trial cou rt found that the goal of bringing the propert y into compliance could have been accomplished without resorting to “aggressive litigation,” but the mand atory fine was modif ied to reflect that the per diem fine commenced on the dat e of the fir st inspection when defendant stipulated that the property wa s in violation, not the da te notice of the vio lations wa s formall y is sued to defendant

.

Decision Under Review Appeal from the C ircuit Co ur t o f M cH en ry C ou nt y, No. 07–CH–1098; the Ho n. Mi chael J . Cald well, Judge , pres idin g.

Judgment Affirmed as modified.1 Itis for this reason that w e are able to prod uce a relat ively sho rt opi nion. W e encou rage reference to our origina

l opinion, Suvada , 396 I

ll. App. 3d 971, for a m

ore detailed account of the background and evidence in th is case.

-2- Counsel on Appeal Kevin A. Chrzanowski and Jennifer J. Gibson, both of Zukows ki, Rogers , Flood &

McArdle , of Cry stal L ake, for appella nt.

Melissa A. Wick, of Mic

hling , Hof

mann , Vint

on, Pl aza & Wick, P.C., of Woodstock, for appellee.

Panel PRESIDING JUSTICE JORGE NSE N delivered the judgment of the court, with opinion. Justices Hudson and Birkett concurred in the judgment and opinion.

OPINION

¶ 1 We publish this case for the purpose of bringing full circ le our earlier, related

opinion, City of McHenry v. Suvada , 396 Ill. App. 3d 971 (2009), and clarify ing certain issues raised withrespect

to the trial court’s latitude in determ ining whether a

n ordinance viola

tion exists, the leng th of a ma

ndatory fining p eriod, a

nd the City ’s ability

to collec t attorne

y f ees. ¶ 2 On December 16, 2009, this court determined that defenda nt, Vera Ann Suv ada, was subject to amandatory fi ne for violating the City of McHenry ’s building code. Id . at 984. This court

remanded for a determination of: (1) the n umber of day s that Suva

da’s pro perty
was in violation; (2) the amount of the fine (restricted to the statutory range of $25 to $750 per day of violation); and (3) reasonable attorney fees incurred by

the City in enforcing

the building code. Id . at 988. On remand , the par ties ag reed tha t the tria l court c ould make

its determin ations ba sed entir ely on the fa cts and evidence

present ed in the o

rigina l trial. 1 ¶ 3 The trial court determined that Suvada’s property was in violation for 84 da ys and fined Suvada $2 5 p er da y f

or a tota l fine of $ 2,100. As t

o attorne y f ees, the court found that, because Suvada ha

d been c ooperat

ive, the Ci

ty c ould have

accompl ished its goal of having the property broug

ht into compliance without resort to “aggressive litig ation

. ” The court awarded the City attorney

fees in the amount of

$1,500, r eprese nting 10 hours of w ork at a rate of $150 per hour, ev en thoug

h the City had expen ded over

$27,000 in

attorne y f ees. ¶ 4 The City

appeals, arguing that the

trial cou rt’s find ing that the prope rty was in violation for “only” 84 d ay s was ag ain st the manifest weight of the evidence and that its awa rd of

“ on ly” $1,500 in attorney fees was an abuse of discretion. For the re asons that follow, we determine that the p

roperty was in viol ation for

121 day s and that

the tota l f ine should-3-

thereforebe $3,025; however , the courtdi d n ot ab us e i ts di sc re ti on in aw ar di ng “o nl y” $1,500 in attorney fees. Accordingly , we affirm as modified.

¶ 5 A. Number of Day s: Start Da

te ¶ 6 The City first arg ues that the trial court erred in finding that the propert y w as in violation for “o nl y” 84 days. The 84 da ys repre sented the date the City for mally issued Suvada

a notice of substanda

rd and da ngerous building

condition s ( A ugust 15, 2007), to the date Suvada applied for a building permit (November 18, 2007). We will not disturb a trial court’s finding of fact unless it is agains t the mani fest weight of the evidence. First Baptist Church of Lombard v. Toll Highway Authority , 301 I

ll. App. 3d 533, 542 (1998). To the extent that a trial court’s judgment relies on the construction of a statut e or ordinance, we review the construction de novo

. Cit y of Chica go v. Old Colony Partners, L.P., 364 Ill. App. 3d 806, 812 (2006). ¶ 7 The City con tends that t he cou rt erre d in fi ndin g t he start da te to be August 15, 2007, because, at the or

iginal tr ial, Suvada stipulated that the property was in violation on July 9, 2007, the date

the Ci ty first i nspec ted th e prop erty. The C ity, cit ing Old Colony , 364 I ll. App. 3d at 818, as serts tha

t notice isnot required before the mandatory daily

fines set forth in the City ’s penal

ty p rovision a re impose d. Suvada

does not r

espond to t

his argument. ¶ 8 The City ’s penal ty p rovision s tates: “Any person who violates *** any of the provisions of

[the building code] *** s hall be punished by a fine of

not less than $25.00 nor more than $750.00 and each day upon which such violation continues shall constitute a separate offense.” McHe nry Municipal Code § 7–30(a) (eff. Dec. 4, 1987). ¶ 9 Like

the pena lty p rovision in Old Colony , section 7–30(a) of the City’ s code mandates
a fine when the property

is in violation, and it does not provide an exception basedon lack of notice. Old Colony , 364 Ill. A pp. 3d at 8 17-18 (noting tha t other provisions in the code, such as those pertaining to injunctions, do require notice a nd an oppo

rtunity to cure, and that, while those provision s help toestablish a working relationship between a city and building owners, penalty provisions without notice requ irements serve a

n equally valid pur pose–to motivate owners to maintain their buildings at all times); see also Lawrence v. Rege nt Realty Group, Inc. , 197 Ill. 2d 1, 10 (2001) (wh ere the language of a provision is clear and unambig uous, it must be e

nforce d as writt

en, and a court ma y not depart

from its pl ain langua ge by reading

into it exceptions, limitations, or cond itions not expressed by the drafting bod y ). Given

that Suvad a stipulat

ed that the proper

ty w as in viola

tion beg inning July 9, 2009, any later sta

rt date is against the manifest weight of the e vidence.

¶ 10 B. Numbe r of Day s: End Dat

e ¶ 11 The City also contends that the trial cour terred in finding the end

date to be November 18, 2007, the date that Suvada app lied for abuilding permit to correct the violations and, pr es um ab ly, the date by whic h tenants had vacated the property . As to the end date, the trial court explained, “Once the building permit was applied for and the construction beg an, this-4-

was just a

nother house under construction. It was vac ant just like any other house unde r construction. It

was not in

violation of the ordinance because nobody was living there. There
was absolute ly n o threat

to the hea

lth, safe ty, or welfa

re of the community .” (Empha sis added.) ¶ 12 The Cit y argues that Suv ada act ually continue d to be in vi olation un til somewhere betweenAugust 25 and September 3, 2008, when the building was fully repaired and ready for occupancy . The City

argue s that City of Chicago v. Cotton , 356 Ill. App. 3d 1 (2005), and Old Colony , each involving a penalty provision similar to section 7 –30(a) a t is sue here, support a finding that Suvad a must

be fined until the property is fully repaire d and ready for
oc cu pa nc y. If Suvada were fined $25 for each of the 422 day s from July

9, 2007, to September 3, 2008, her total fine would be $10,550. ¶ 13 In arguing that the proper ty isin violatio n until it is f ully repaire d and certified for
oc cu pa nc y, the City fails to recog nize the distinction between a flaw in the condition of the building and a violation ( i.e. , not all flaws constitute violations). More critically, it overlooks the precise language

used in the various building code provisions. See Suvada , 396 Ill. App. 3d at 97 4- 75 (c it in g M cH en ry Mu nicipal Code §§ 7–251(c), (d), (e), (i), (j) (e ff. Dec. 4, 198 7), and International Property Maintenance Code 2000 §§ 108.1, 108.2, 303.2, 304.2, 304.3, 604.3). ¶ 14 As to the various building code provisions, we n ote t hat, where the code at issue uses general terms and/or language that is open to in terpretation, such as “dangerous a nd hazardous,” it is within the discretion of the trial court to determine whether the state of the building should constitute a violation. Suvada , 396 Ill. App. 3d at 984 (citing Old Colony , 364 Ill. App. 3d at 815). Use of such broa d phrases brings an ambiguity (or vaguenes s) , which “gran

t[s] the fac t finder l atitude in deciding wheth er the co ndition of the building merits fines or

injunctive relief,” i.e. , in deciding whether a violation exists. Old Colony , 364 Ill. App. 3d at 814-15. Here, the code provisions at issue use general

qualifying te

rms such
as “dan ger

ous,”“uns afe, ” “ha

zard[ ous], ” and

“fai l[u r e] to maintain.” See Suvada , 396 I ll. App. 3d at 974-75 (further detailing the language of the

code). T herefo re, a tr ial cour t may well find, as itdidhere, that a building is no longer “dang erous” once its tenants have been removed or

that the owner no longer “fail[s] to maintain” a certain aspect of the building’s structure once he or shehas take n a signi ficant st

ep towar d repair and continues to repair the building in a diligent manner. ¶ 15 Alth ough our anal ysi s of the language in the building code requirements is dispositive,
we addressthe City ’s argument tha t Co tton and O ld Colony support a finding that section 7–30 (a) man dates a fine until the property is fully repaire d and ready for occupancy . The City’s reliance on Old Colony , 364 Ill. App. 3d at 818, and Cotton , 356 Ill. App. 3d at 4-7, for the principle that “subseque nt co mpliance” cannot mitigate a mandatory fine as prescribed

by section 7–30(a) , is misplaced. The term “subsequent compliance,” asused in those cases, refers to compliance after the conte ste d per iod. For instance, in Cotton , the defendant violated the building code for a period of 20 day s when she failed to provide gas service to her tenants. Cotton , 356 Ill. App. 3d at 2. That she provided her tenants w ith gas service on day

21 did not vi

tiate her fine for day s 1 through 20. Id . at 4-7. I ndeed, in our first opinion, we rejected the notion that a defendant who violates the building code for a period,2 We furth er note , again, that th e langua ge of the penalty pro vision states: “any person who violates [the building code ] *** shall be punished by a fine of [b etween $25 and $75 0] and each day upon which such violation continues shall cons titut e a separate offense.” (E mphasis added. ) McHe nry Municipal Code § 7–3 0(a) (eff. Dec. 4, 1 987). Although the difference is subtle, the provision does n ot state

that the viol ator will be fined un til the p roblem atic condition i s cured ; it states that the violator will be fined for each day that the violation continues . Like the t erms in the building code that set forth what cons titutes a violation, the word “continue” in the penalty provisio n gives the fact finder

some latitude. Web ster’s Dictionary defines “continue” as “to allow or cause to remain (in a pla

ce or condition).” Webster’s Third Ne w In ternatio nal Dic tionary

493 (1 993). Therefore, the term “continu e” enables a trial court in th e appropriate instanc e to fin d that a defendant no longer “allow [s] [the condition] to rem ain” once heor she takes affirm ative steps to repair t he build ing an d proce eds in a

dilig ent manner.
-5- yet subseque ntlycomplies p rior tothe hear

ing on the complain t, is no longe

r subjec t to any fine. Suvada , 396 Ill. App. 3d at 983. This is not a case where the court vitiated a fine for the period prior to the end date of the violation period. 2

¶ 16 C. Attorney Fees ¶ 17 Next, the Ci ty argues t hat th e tria l cour t erred in awa rding t he Ci ty “only” $1,500 in attorney fees. In awarding the fees, the trial court stated: “I went on record [in the original trial] say ing I didn’ t thin k fees were necessary because of the ove

rly aggr essive a ttitude of the [City ]. *** Neverth

eless, they

did file suit, they did appea

r in court, they did g et a preliminary injunction and *** we did have
a hearin g in the case. *** [Suvada] was compliant and the court will allow fees in the amount of 10 hours at the rate of $150 per hour.” The trial court’s award of attorney fees will not be disturbed by a reviewing court absent an abuse of discretion. Mountbatten Surety Co. v. Szabo Contracting, Inc. , 349 I ll. App. 3d 857, 873 (2004). A court

abuses it s discretion when no reasonable person would take its view. Anest v. Audino , 332 Ill. App. 3d 468, 479 (2002). ¶ 18 The City

contendsthat it should have been awarded over $27,000 in a ttorney fee s. The City notes that it

incurred 53 hours of attorney fees, at a rate that varied between $140 and $270 per hour, in pursuing its action against Suvada. The City cites to section 11–3 1–1(a) of the I llinois Muni cipal Code , which pr ovides: “The cost of the demoliti on, repa ir, encl osu re , or removal incurred by the municipa lity *** including court cos ts, a ttorney ’s fees , and othe r costs related to the enforcement

of this Section , is recove

rable f rom the ow ner ***. ” (Empha sis added.) 65 IL CS 5/11–31–1(a) (West 2006) (paragraph 4). As we noted in our prior opinion, the City chose to move forwa rd with its complaint that Suvada’s building was in need of repai r under section 11–31–1 of the Illinois Municipal Code as opposed to section 11–31–2 because the former allows for the collection of attorney fees whereas the latter does not. Suvada , 39 6 Ill . Ap p. 3 d at 986 . It is well established that
a municipa lity seeking to recover attorney

fees pursuant to section 11–31–1 has the burden3 Regarding attorne y fees for wo

rk inc urred in

an attempt to c ollect fines and fee s, the C ity points in its repl

y brief to sec tion 1– 8(b) of its code , which states t hat, “[i ]n the event any

charge or fee, including *** fin

es [and] penalties, *** found in any sec tion of the [code] that is due the City and is not p aid , the cost of collecting said fee and enforcing

the ordinance shall be added to the fee.” (Emphasis added. ) McHen ry Mun icipal C ode § 1 –8(b) ( eff. Dec. 4, 19 87). How ever, we h ave already held that that portion of section 1–8(b) does not apply here, bec ause Suvada never refused to pay a fine due

. Suvada , 396 Ill. App. 3d at 985. It was within the trial court’s discretion to find thatit wou ld be un

reasona ble for Suvad a to pay for the City’s battle with the courts where S uvada was at a ll tim es com pliant.

-6- of proving that

the expenses incurred were reasonable

. Village of Franklin Park v. Aragon Managem ent, Inc. , 298 Ill. App. 3d 774, 778 (1998). In considering the reasonableness of the fees, a trial c ourt must

consider th e attorney’ s skill and standing, the nature of the
co nt ro ve rs y, the novel

ty and diff iculty of the questions at issue, the importance of the subject
ma tter , the degree of responsibility in the management of the case, the time and la bor required, the usual and customary charge in the community , and the benefits resulting to the client. In re Marriage of Ransom , 102 Ill. App. 3d 38, 41 (1981). ¶ 19 The City

seems to accept Suvada’s position that section 11–31–1 provides for attorney fees re la te d o nl y to its enforcement . 65 IL CS 5/11–31–1(a) (West 2006). The subject matter of section 11 –3 1–1 pertains to a municipality’s rig ht to seek to “demolish, repair, or enclose[ ] dangerous and

unsafe buildingsor uncomp leted an d abando ned buildings with in [its] territor

y.” 65 IL CS 5/11–31–1 (a) (Wes t 2006). Se ction 11–3 1–1 does not c ontain a provision that sets f

orth applicable fines, and so it does not providefor attorney fees incurred to prepare for a trial on fines and fee s, 3 which, as the City acknow ledges, resulted here in at least $16 ,000 of itsrequest ed fees

. ¶ 20 The City arg

ues that the trial court

considered factors outside of those s et forth in Ransom when it stated that the City had pursued an “ over ly ag gres sive” litig ation stra teg y. We disagree. Whet her th e Cit y’s liti ga tion strat egy was “overly

aggressive” spea

ks to the
reasona bleness of its fee s. Specif

ically , it speaks to whether the fee s were necessa

ry to obtain the resulting benefits to the client. Ransom , 102 I ll. App. 3d at

41. Here, the attorney s began
a liti gation strat egybefore they even sent notice of a potential violation to Suvada and before the y had a ny indication of whether Suvada would be cooperative. The City ’s inspector testifie d that, throughout the inspectionprocess, Suvada had at all times been cooperative. The trial cou

rt found t

hat many of the at torney s’ actio ns were no t necessary to secure enforcement

of the co de, and, in light o f the fa ctors se t forth abov e, these findings were reasonable.

¶ 21 II I. CONCL

USION ¶ 22 For the aforementioned reasons, the finding that the property w as in violation for 84 da ys was against the manifest weight of the evide nce; the property

was actually in violation for 121 days, resulting

in a fine of $3,025. We affirm the court’s award of attorney f

ees in the amount of $1,500.-7-

¶ 23 Affirmed as modified.