2021 IL App (1st) 200030-U

SIXTH DIVISION

February 5, 2021

No. 1-20-0030 

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the

limited circumstances allowed under Rule 23(e)(1). 

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

DAVID GRAHAM,

Plaintiff-Appellee, 

 v. 

VILLAGE OF DOLTON and ROBERT COLLINS, JR., 

 Defendants 

(Village of Dolton-Appellee). 

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Appeal from the

Circuit Court of 

Cook County. 

No. 17 L 9898 

Honorable 

James E. Snyder

Judge, presiding. 

JUSTICE CONNORS delivered the judgment of the court.

 Presiding Justice Mikva and Justice Oden Johnson concurred in the judgment. 

¶ 1 Held: The circuit court’s order granting plaintiff’s petition for attorney fees and costs, in 

part, is reversed; reversed and remanded with directions. 

¶ 2 Defendant, Village of Dolton, appeals the circuit court’s order that granted in part and 

denied in part the petition of plaintiff, David Graham, for attorney fees and costs, and found that 

plaintiff was entitled to $100,000 in attorney fees and costs. Defendant argues that the circuit court 

erred when it granted plaintiff’s petition for attorney fees and costs because the settlement 
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agreement between the parties did not constitute a contractual undertaking on its part to pay 

plaintiff’s attorney fees. Defendant requests that we remand this case to the circuit court to address 

the issue of whether plaintiff is entitled to fees pursuant to a statute. Plaintiff cross-appeals the 

circuit court’s order that denied in part his petition for attorney fees and costs, arguing that the 

court erred when it reduced his request for attorney fees by 40%. We agree with defendant and 

reverse and remand to the circuit court because the settlement agreement between the parties did 

not contain a contractual fee-shifting provision with respect to the underlying action. Given our 

disposition, we need not address plaintiff’s argument on cross-appeal that the court erred when it 

reduced his requested fees and costs. 

¶ 3 I. BACKGROUND

¶ 4 In September 2017, plaintiff filed a complaint against defendants, Village of Dolton and 

Robert Collins, Jr., the Chief of Police of the Village of Dolton. Collins is not a party to this appeal. 

Plaintiff alleged as follows. In August 2013, he suffered a severe hand injury while on duty, and 

in October 2014, he suffered head and neck injuries while on duty. He received medical treatment 

for both injuries and was required to take intermittent leave from duty. He never took more than 

one year off of duty for either injury. Beginning in 2010, plaintiff made whistleblower complaints 

to the Federal Bureau of Investigation and Cook County Public Corruption and Financial Crimes 

Unit with respect to suspected violations of law committed by officials and officers within the 

Village of Dolton. After Collins was appointed Chief of Police in 2015, plaintiff made additional 

whistleblower complaints to Collins. 

¶ 5 In June 2017, plaintiff’s treating physician ordered plaintiff to stay off duty due to the head 

injury from 2014 until he received medical clearance to return. In September 2017, Collins 

informed plaintiff that he did not have any benefit time remaining and deducted plaintiff’s sick 
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and benefit time for the time plaintiff was off work. Plaintiff subsequently informed Collins that 

his duty-related injuries were covered under the Illinois Public Employee Disability Act (5 ILCS 

345/1 et. seq. (West 2018)) and that defendant should give him back any benefit or sick time that 

it had previously deducted. Thereafter, defendant did not pay plaintiff his regularly salary or 

benefits. 

¶ 6 Plaintiff alleged five claims, including retaliation in violation of the Illinois Whistleblower 

Act (740 ILCS 174/15(b) (West 2018)) and violations of the Illinois Public Employee Disability 

Act (Employee Disability Act) (5 ILCS 345/1(b) (West 2018)) the Illinois Wage Payment and 

Collection Act (Wage Payment and Collection Act) (820 ILCS 115/3, 115/4 (West 2018)) against 

the Village of Dolton and Collins. Plaintiff also alleged that he was entitled to attorney fees under 

the Attorneys Fees in Wage Actions Act ((705 ILCS 225/1 West 2018)). 

¶ 7 In July 2019, plaintiff, defendant, and Collins entered into a settlement agreement. The 

agreement stated that defendant and Collins denied the allegations in the complaint and that the 

parties desired to settle the case. Section one of the agreement stated that, upon execution of the 

agreement, Graham would be “placed on a paid leave of absence pursuant to 5 ILCS 345/1 et seq.

(the ‘‘[Employee Disability Act] Leave’)” and that the “[Employee Disability Act] Leave shall 

commence retroactive to May 1, 2019, and continue for 14 months.” In subsection C of that 

section, it stated that “[a]though the [Employee Disability Act] Leave payments are being made 

now, they are for entitlements from a 2016 leave period attributable to an on-duty hand injury, and 

for the one-year leave which commenced on 7-1-17.” 

¶ 8 In section two of the agreement it stated that plaintiff had a claim for line-of-duty disability 

that was pending before the Dolton Police Pension Board and that the parties agreed that plaintiff’s 

“line-of-duty disability should be retroactive to July 1, 2017, subject only to a credit for [Employee 
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Disability Act] Leave payments provided for hereinabove in accordance with 5 ILCS/345-1(d) 

(‘Any person with a disability receiving compensation under the provisions of this Act shall not 

be entitled to any benefits for which he would qualify because of his disability under the provisions 

of the Illinois Pension Code.’).” In this section, the agreement also stated that upon execution of 

the agreement, defendant would withdraw its appearance in the pending pension board proceeding. 

¶ 9 Section four of the agreement stated as follows: 

“In consideration of the foregoing, [plaintiff] releases [defendants] from any and 

all claims arising out of [plaintiff’s] employment relationship with the Village that were 

brought or could have been brought as part of this proceeding, but specifically excluding 

and reserving all claims pending before the Illinois Workers Compensation Commission 

subject to Section 5 hereinbelow and subject to [plaintiff’s] right to enforce the terms of 

this Agreement.” 

Section five, which was entitled “Dismissal Order; Petition For Costs and [Attorney] Fees” stated 

as follows:

“The parties shall enter an Agreed Order of Dismissal pursuant to the Settlement 

Agreement. The court shall retain jurisdiction for purposes of allowing [plaintiff] to file a 

Petition seeking to recover his costs and [attorney] fees. The parties shall provide an 

Agreed Briefing Schedule. The Parties acknowledge that [plaintiff] is the prevailing party 

for purposes of his petition for [attorney] fees and costs.”

Section six, which was entitled “Enforcement,” stated: “If either party is forced to file an action 

for breach of this agreement, the prevailing party will be entitled to his/its reasonable [attorney]

fees incurred in enforcing this agreement.”
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¶ 10 Plaintiff subsequently filed his petition for attorney fees and costs. He argued he was 

entitled to attorney fees and costs under the Wage Payment and Collection Act because he was the 

prevailing party. Plaintiff also contented that because he was entitled to Employee Disability Act

benefits pursuant to the settlement agreement, he was entitled to attorney fees under both the

Attorney Fees in Wages Actions Act and the Wage Payment and Collection Act, which was

amended in 2011 to allow claimants to recover attorney fees directly without the need to rely on

the Attorney Fees in Wages Actions Act. Plaintiff cited provisions in the Employee Disability Act

and the Wage Payment and Collection Act to support his position that he was entitled to attorney 

fees.

¶ 11 Plaintiff cited section 345/1 of the Employee Disability Act, which states in part as follows:

“Whenever an eligible employee suffers any injury in the line of duty which causes 

him to be unable to perform his duties, he shall continue to be paid by the employing public 

entity on the same basis as he was paid before the injury, with no deduction from his sick 

leave credits, compensatory time for overtime accumulations or vacation, or service credits 

in a public employee pension fund during the time he is unable to perform his duties due 

to the result of the injury, but not longer than one year in relation to the same injury.” 5 

ILCS 345/1(b) (West 2018). 

Plaintiff cited section 14(a) of the Wage Payment and Collection Act, the provision regarding 

attorney fees, and section 2 of the Wage Payment and Collection Act, the provision defining 

“wages.” Section 115/14(a) states as follows:

“Any employee not timely paid wages, final compensation, or wage supplements 

by his or her employer as required by this Act shall be entitled to recover *** in a civil 
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action ***. In a civil action, such employee shall also recover costs and all reasonable 

[attorney] fees.” 820 ILCS 115/14(a) (West 2018). 

Section 115/2 of the Wage Payment and Collection Act states:

“For all employees, other than separated employees, ‘wages’ shall be defined as 

any compensation owed an employee by an employer pursuant to an employment contract 

or agreement between the 2 parties, whether the amount is determined on a time, task, 

piece, or any other basis of calculation.” 820 ILCS 115/2 (West 2018). 

Plaintiff asserted that the Employee Disability Act benefits are considered “wages” as defined in 

the Wage Payment and Collection Act such that he was entitled to attorney fees. Plaintiff also 

argued, inter alia, that any perceived disparities between the requested fees and judgment amount 

do not warrant any reductions, counsel’s hourly rate was reasonable, and the requested costs were 

reasonable and necessary to prosecute the case. Plaintiff requested $133,257 in attorney fees and 

$13,301.11 in costs. 

¶ 12 In response, defendant argued that under the American Rule, absent contractual authority, 

each party to litigation must bear his own attorney fees. It argued that statutes permitting the 

recovery of attorney fees are in derogation of common law and must be strictly construed. 

Defendant asserted that the Employee Disability Act did not provide an award of attorney fees for 

the prevailing party and that he was not entitled to recover fees under the Attorney Fees in Wages 

Actions Act. He argued that under the Attorney Fees in Wages Actions Act , a party is only entitled 

to attorney fees in cases involving “wages earned and due” and that the Employee Disability Act

benefits are not considered “wages” because they do not compensate employees for work “actually 

performed.” Defendant cited section 225/1 of the Attorney Fees in Wages Actions Act, which 

states:
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“Whenever a mechanic, artisan, miner, laborer, servant or employee brings an 

action for wages earned and due and owing according to the terms of the employment, and 

establishes by the decision of the court or jury that the amount for which he or she has 

brought the action is justly due and owing, and that a demand was made in writing at least 

3 days before the action was brought, for a sum not exceeding the amount so found due 

and owing, then the court shall allow to the plaintiff a reasonable attorney fee of not less 

than $10, in addition to the amount found due and owing for wages, to be taxed as costs of 

the action.” 705 ILCS 225/1 (West 2018). 

Defendant argued that even if plaintiff was entitled to attorney fees under the Attorney Fees in 

Wages Actions Act, he was not entitled to an award because he did not meet the statutory 

requirements to be awarded fees, as the case was not decided by a court or jury and he did not 

submit a written demand to the Village. Defendant also argued that if the circuit court found 

plaintiff was entitled to fees, his fee demand should be substantially reduced. 

¶ 13 In reply, plaintiff asserted that defendant only argued that plaintiff was not entitled to 

attorney fees under the Attorney Fees in Wages Actions Act and did not argue that he was not 

entitled to attorney fees under the Wage Payment and Collection Act. He asserted that his fee 

petition was brought under the Wage Payment and Collection Act, which supersedes the Attorney 

Fees in Wages Actions Act and permits claimants to recover attorney fees directly. Plaintiff argued 

that the Employee Disability Act payments are “wages” under the Wage Payment and Collection 

Act and the Attorney Fees in Wages Actions Act such that he was entitled to attorney fees under 

both statutes. Plaintiff asserted that defendant waived any challenge to plaintiff’s individual time 

entries and costs attached to his petition because defendant did not challenge the reasonableness 

of any of his time entries or costs in its response. Plaintiff further argued, inter alia, that his 
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recovery was substantial, the amount recovered did not warrant a reduction in attorney fees, and 

there was no basis for the circuit court to reduce his claimed fees. 

¶ 14 The circuit court granted plaintiff’s petition for fees in part. In the court’s written order, it 

noted that “[o]ordinarily, the losing party in a lawsuit cannot be required to pay [attorney] fees to 

the winning party” and that “there is an exception to the rule: provisions in contracts for award of 

[attorney] fees will be enforced by the courts.” The court then stated as follows:

“The Court finds that Plaintiff is entitled to [attorney] fees and costs. In the 

settlement agreement, the parties agreed that Plaintiff was the prevailing party and could 

file a petition seeking [attorney] fees and costs. Defendant does not object to the rate of 

Plaintiff’s attorney or paralegal and the Court finds that the rate charged is customary. The 

Court has further examined Plaintiff’s fee petition as regards the skill and standing of 

Plaintiff’s attorney, the nature of the case, the novelty of the issues, the significance of the 

case, the degree of responsibility, the benefit of the client and the reasonable connection 

between the fees sought and the amount involved in the litigation. After review, the Court 

finds that Plaintiff is entitled to reasonable [attorney] fees and costs in the amount of 

$100,000.00.” 

The court entered judgment for attorney fees and costs in favor of plaintiff and against defendant 

in the amount of $100,000. This appeal followed. 

¶ 15 II. ANALYSIS

¶ 16 On appeal, defendant argues that the circuit court erred when it concluded that the 

settlement agreement constituted a contractual undertaking on its part to pay plaintiff’s attorney 

fees. It argues that the court’s order made no explicit finding as to which provision in the agreement 

constituted the contractual undertaking and that the “prevailing party” language in the agreement 
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did not constitute an undertaking by defendant to pay plaintiff’s attorney fees. Defendant requests 

that we reverse the circuit court’s decision and remand the matter for the circuit court to consider 

the statutory issue regarding whether plaintiff is entitled to fees pursuant to a statute. Defendant 

argues that even if we decide to consider the statutory issue rather than remand to the circuit court 

to review the issue, plaintiff is not entitled to attorney fees because the Employee Disability Act

benefits recovered by plaintiff pursuant to the settlement agreement are not considered “wages” 

under the Attorney Fees in Wages Actions Act or the Wage Payment and Collection Act such that 

he is entitled to attorney fees under either statute. 

¶ 17 Illinois follows the American Rule under which a party is responsible for his own attorney 

fees. Geisler v. Everest National Insurance Co., 2012 IL App (1st) 103834, ¶ 86. The American 

Rule “prohibits prevailing parties from recovering their attorney fees from the losing party, absent 

express statutory or contractual provisions.” Sandholm v. Kuecker, 2012 IL 111443, ¶ 64. We must 

strictly construe a contractual provision for attorney fees “ ‘to mean nothing more—but also 

nothing less—than the letter of the text.’ ” Bright Horizons Children’s Centers, LLC v. Riverway 

Midwest II, LLC, 403 Ill. App. 3d 234, 254 (2010) (quoting Erlenbush v. Largent, 353 Ill. App. 3d 

949, 952 (2004). We review de novo the construction of a contract’s fee-shifting provision because 

it presents a question of law. Id. at 255. 

¶ 18 Here, the parties’ settlement agreement does not contain a fee-shifting provision that 

expressly provides that the parties agreed that defendant would pay plaintiff’s attorney fees in the 

underlying action. Section five of the settlement agreement states that the “[p]arties acknowledge 

that [plaintiff] is the prevailing party for purposes of his petition for [attorney] fees and costs.” 

Although this provision provides that plaintiff is the prevailing party for purposes of his fee 
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petition, it does not expressly provide that the parties agreed that plaintiff, as the prevailing party, 

is entitled to recover attorney fees from defendant in the underlying action. 

¶ 19 Plaintiff asserts that “[i]n reality, the entire Agreement constituted a contractual 

undertaking and the circuit court quoted language of the Settlement Agreement that it relied upon.” 

We disagree. The circuit court’s written order cited section five of the agreement which, as 

previously discussed, does not expressly provide that defendant would pay plaintiff’s attorney fees 

in the underlying action. We note that, unlike section five, in section six of the agreement, the 

parties did expressly set forth which party would be responsible for attorney fees if either party is 

forced to file an action for breach of the agreement, as it states: “If either party is forced to file an 

action for breach of this agreement, the prevailing party will be entitled to his/its reasonable 

[attorney] fees incurred in enforcing this agreement.” Thus, if a party is forced to file a breach of 

contract action, the agreement provides that the prevailing party in that action would be entitled to 

reasonable attorney fees. Because this case is not an enforcement action, section six of the 

agreement does not apply. 

¶ 20 The settlement agreement does not contain an express contractual provision that provides 

that defendant would pay plaintiff’s attorney fees in the underlying action. We therefore disagree 

with the circuit court that plaintiff, as the prevailing party for purposes of the fee petition, is entitled 

to recover attorney fees and costs from defendant under the settlement agreement. The circuit court 

did not address plaintiff’s arguments that he is entitled to attorney fees under the Wage Payment 

and Collection Act. Thus, we remand this matter to the circuit court with directions to address the 

issue of whether plaintiff is entitled to attorney fees and costs pursuant to a statute. Because we 

are reversing the circuit court’s order that found that plaintiff is entitled to attorney fees pursuant 

to the settlement agreement and remanding to the circuit court to address the statutory issue, we 
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need not address plaintiff’s cross-appeal argument that the circuit court erred when it reduced his 

requested fees and costs by 40%. 

¶ 21 III. CONCLUSION 

¶ 22 For the reasons explained above, we reverse and remand with directions to consider 

whether plaintiff is entitled to attorney fees pursuant to a statute.

¶ 23 Reversed and remanded.