No. 2--00--1127

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT	

_________________________________________________________________

ROGER J. POWERS,				) Appeal from the Circuit

							) Court of Boone County.

							)

	Plaintiff-Appellee,			)

							)

v.							) No. 98--L--41

							)

ROCKFORD STOP-N-GO, INC.,		) Honorable

							) Gerald F. Grubb,

	Defendant-Appellant.		) Judge, Presiding.

_________________________________________________________________

	PRESIDING JUSTICE HUTCHINSON delivered the opinion of the

court:

	Following a bench trial, the trial court entered judgment for $875 in favor of plaintiff-lessor, Roger Powers, and against

defendant-lessee, Rockford Stop-N-Go, Inc.  The trial court also

held that the lease agreement between the parties allowed for an

award of attorney fees and awarded plaintiff $37,918 for attorney

fees.  Defendant timely appeals, contending (1) that the trial

court erred, as a matter of law, when it construed the lease to

allow an award of attorney fees and (2) the trial court abused its

discretion because it failed to determine whether the fee award was

reasonable.  We affirm in part and reverse in part.

	This matter arose out of various disputes regarding

defendant's use of property leased from plaintiff as a gas station

and convenience store.  However, because neither party has appealed

the trial court's judgment on the merits of the underlying action, it is unnecessary to set out the trial testimony regarding the disputed issues here.  The lease was signed by the parties on

January 22, 1988.  The terms of the lease provided for an initial

term of 10 years beginning on April 1, 1988, and granted defendant

the option to extend the lease for two successive 5-year periods.

	In October 1998 plaintiff filed his original complaint, and on

January 27, 1999, he filed an amended complaint.  Count I of the

amended complaint alleged that defendant breached the lease by

allowing leaks or discharges of petroleum products and that the

environmental contamination decreased the value of the property. 

Plaintiff prayed for damages in excess of $50,000.  Count II

alleged that the operation of a gas station was an ultrahazardous 

activity and that defendant was strictly liable for the same

damages alleged in count oneI.  Count III alleged that defendant had

improperly expanded its use of plaintiff's property beyond the area

subject to the lease by selling propane, ice, and other goods

outside the store building and by refusing to relocate an air

conditioning unit.  Count IV reiterated the allegations of count

III and alleged that defendant's actions constituted a trespass to

plaintiff's real property.  Count V alleged that defendant had

breached the lease by installing overflow tanks above its

underground storage tanks that raises them above grade and resulted

in damage to plaintiff's parking area.  Count sixVI alleged that

plaintiff had incurred legal fees totaling $6,456 as a result of

the environmental contamination and that  defendantplaintiff was required to

reimburse those costs.  Count VI also alleged that defendant had

installed, and later removed, pay telephones on the exterior of the building, causing damages of $4,334.  Count VII alleged that

defendant was in default of the lease and prayed for an order

evicting defendant.

	Defendant filed several counterclaims alleging that plaintiff

(1) interfered with defendant's quiet enjoyment of the leasehold by

harassing defendant's customers and vendors, (2) failed to maintain

the parking areas as required by the lease, and (3) unreasonably

refused to allow defendant to improve the convenience store. 

Defendant sought an injunction against future harassment, specific

performance of the lease, as well as a declaration that outdoor

displays were a customary use allowed by the lease.

	At trial plaintiff argued that he was entitled to (1) an order

terminating the lease, (2) an order requiring defendant to complete

remediation by December 31, 2000, (3) an award of attorney fees,

(4) an order requiring defendant to repair the damage caused by the 

installation of the pay telephones, (5) an order requiring

defendant to remove the outdoor displays, and (6) an order

requiring defendant to relocate an air conditioning unit. 

Defendant argued that it was entitled to (1) an order enjoining

plaintiff from interfering with its quiet enjoyment, and (2) an

award of attorney fees.

	On May 1, 2000, the trial court issued a memorandum decision. 

The trial court held that minor spillage of petroleum products was

expected during the operation of a gas station and that the parties

anticipated such spillage would occur.  The trial court further

held that under the lease defendant warranted that it would not

allow contamination resulting from spillage.  The trial court held that breach of that warranty did not automatically give plaintiff

the right to terminate the lease because defendant had a right to

cure the breach.  The trial court further held that because of the

nature of environmental contamination the lease's 20- day cure

requirement did not apply but, instead, defendant was required to

use due diligence to remediate any contamination.  The trial court

concluded:

		"I find that, to date, [Dd]efendants [sic] have used due diligence in remediating the site and should be allowed to

continue to completion.  There is no reason why it cannot

remediate the site by December 30, 2000.  I will enter an

order that they complete the Corrective Action Plan at its own

expense by that date, as a remedy for breach of contract.  I

do not find the breach a material breach of the contract that

would justify [p]laintiff to terminate the tenancy at this

time.  Failure to use due diligence in curing the breach would

be cause to terminate its tenancy.

		Pursuant to the [l]ease, attorney fees shall be paid by

[d]efendant for the enforcement of the lease.  I will award

the same."

	The trial court held that the failure to remove equipment

outside the demised premises would constitute a willful trespass. 

The court held that there was no complaint for trespass, refused to

enter an order directing defendant to remove equipment, and instead

declared the rights of the parties regarding the issue.  The trial

court held that the sale of merchandise from outdoor displays was a customary use at convenience stores and that defendant had not

breached the lease by doing so.

	The trial court also held that pay telephones were a customary

use.  However, the trial court found that defendant had breached

the lease by failing to obtain written permission before attaching

pay telephones to the building.  The trial court found that the

amount sought by plaintiff, the cost of residing the building, was

unreasonable and awarded plaintiff $875 for damages to the siding. 

The trial court denied defendant's counterclaims regarding peaceful

enjoyment, maintenance of the parking areas, and unreasonably

refusing to allow improvements to the store.

	Defendant subsequently filed a motion to reconsider the trial

court's award of attorney fees.  The trial court denied defendant's

motion and entered judgment for fees in the amount of $37,918. 

Defendant timely appeals.

	The general rule is that the unsuccessful party in a lawsuit

is not responsible for the other party's attorney fees.  Mirar Development, Inc. v. Kroner, 308 Ill. App. 3d 483, 488 (1999).  The parties to a contract may alter this rule, but contract provisions

regarding attorney fees should be strictly construed and enforced

at the discretion of the trial court.  Mirar, 308 Ill. App. 3d at 488.  To determine a reasonable fee award, a court must consider:

(1) the skill and standing of the attorney employed, (2) the nature

of the cause, (3) the novelty and difficulty of the questions, (4)

the amount and importance of the subject matter, (5) the degree of

responsibility in the management of the case, (6) the time and

labor required, (7) the usual and customary charges in the community, and (8) the benefits resulting to the client.  Collins v. Hurst, 316 Ill. App. 3d 171, 173 (2000).  A trial court's award of attorney fees will not be disturbed on appeal unless it amounts

to an abuse of discretion.  Collins, 316 Ill. App. 3d at 173.

	A successful litigant is still considered the prevailing party

under a fee-shifting provision even if the judgment amount is below

the amount claimed.  J.B. Esker & Sons, Inc. v. Cle-Pa's Partnership, No. 5--99--0811, slip op. at ___7 (October. 10, 2001); Pennsylvania Truck Lines, Inc. v. Solar Equity Corp., 882 F.2d 221, 228 (7th Cir. 1989) (interpreting Illinois law).  The fact that a litigant is not successful on all claims does not alter the right

to attorney fees, and the prevailing party is entitled to all

reasonable attorney fees.  J.B. Esker, No. 5--99--0811, slip op. at ___6-7.  However, when the dispute involves multiple claims and both parties have won

and lost on different claims, it may be inappropriate to find that

either party is the prevailing party and an award of attorney fees

to either is inappropriate.  Brown & Kerr, Inc. v. American Stores Properties, Inc., 306 Ill. App. 3d 1023, 1035 (1999); Raffel v. Medallion Kitchens of Minnesota, Inc., 139 F.3d 1142, 1147 (7th Cir. 1998) (interpreting Illinois law).

	For example, in Raffel, a lessor obtained a judgment for approximately $13,000 for one month's rent and late fees, but the

lessee successfully defended against a claim for additional late

fees of approximately $80,000 when the trial court ruled that the

larger amount constituted an unenforceable penalty.  The reviewing

court affirmed that the trial court's finding that the lessor was not

entitled to attorney fees because it had failed on the "most significant claim" and the case was "essentially a draw."  Raffel, 139 F.3d at 1147.

	In the case before us, the lease agreement provided:

		"Each party agrees to pay and discharge all reasonable

costs, attorneys' fees and expenses which may be incurred or

made by the other in enforcing the covenants and agreements of

this lease."

Similar language has been construed to allow recovery for the

prevailing party in an action to enforce a lease.  See Pennsylvania Truck, 882 F.2d at 227, citing, Pioneer Trust & Savings Bank v. Zonta, 96 Ill. App. 3d 339, 349 (1981).  However, Illinois courts have not interpreted this language to allow an award of attorney

fees in a declaratory judgment action because such actions declare

but do not enforce a party's rights under a lease.  Pennsylvania Truck, 882 F.2d at 228, citing, Arrington v. Walter E. Heller International Corp., 30 Ill. App. 3d 631, 642 (1975).

	Defendant contends that the trial court erred when it held as

a matter of law that the lease allowed an award of attorney fees,

and that this is an issue subject to de novo review.  When the facts are not in dispute, the circuit court's application of the

law is a matter that we may review de novo.  See Mirar, 308 Ill. App. 3d at 485.  However, we find no error in the trial court's

legal conclusion that the lease provision at issue allowed for an

award of attorney fees.  Illinois courts have repeatedly construed

similar language as a valid fee-shifting provision.  See Zonta, 96 Ill. App. 3d at 349; Wanderer v. Plainfield Carton Corp., 40 Ill. App. 3d 552, 560 (1976).  However, consistent with the strict construction given such provisions (see Mirar, 308 Ill. App. 3d at 488), we feel that it is important to explicitly identify a

limitation implicit in these earlier cases--that attorney fees may

only be awarded to a prevailing party.  The word "enforce" means

"to compel obedience to."  See Black's Law Dictionary 528 (6th ed.

1990).  Accordingly, we hold that a party is entitled to an award

of attorney fees under this provision only when she or he can

demonstrate that the other party was compelled by the trial court

to obey a condition of the lease.

	The ultimate question before us, however, is not a matter

subject to de novo review.  Whether either party prevailed or compelled the other to obey the lease in the trial court below,

involves an application of the facts to this principle of law. 

Therefore, it remains a matter committed to the discretion of the

trial court (see Mirar, 308 Ill. App. 3d at 485), and the question before us is whether the trial court abused its discretion when it

determined that plaintiff was the prevailing party.  We answer this

question by examining the various claims and the trial court's

rulings.

	The trial court awarded plaintiff monetary damages on only a

single claim, the damage to the building resulting from the

installation of pay telephones.  The amount awarded ($875) was less

than the amount claimed ($4,334), but this discrepancy does not

alter the fact that plaintiff successfully prosecuted this claim. 

See J.B. Esker, No. 5--99--0811, slip op. at ___6-7.  

	Although plaintiff's complaint alleged defendant caused

damages to the landscaping and parking area, plaintiff apparently abandoned these issues at trial.  Plaintiff did not address these

issues in his closing argument.  The trial court did not rule on

these issues, and plaintiff did not demand a ruling on these

issues.  Therefore, because the trial court did not compel

compliance with these provisions of the lease, we can not find that

either plaintiff or defendant prevailed on the landscaping or

parking area issues.

	Plaintiff raised several claims with regard to the sale of

merchandise outside defendant's store, and argued that such sales

violated the lease.  The trial court ruled for defendant on these

issues, finding that such sales did not violate the provisions of

the lease.

	The trial court declared that plaintiff had a right to revoke

his permission and demand the removal of an air conditioning unit

located on his property outside the leased premises.  However,

plaintiff's success on this issue is irrelevant to the question of

attorney fees because the trial court held that this was a matter

independent of the lease.  Therefore, the contractual provision for

attorney fees included in the lease does not apply.  Moreover, the

fee-shifting provision of the lease would not apply to this issue

because plaintiff obtained only a declaration of rights.  See

Pennsylvania Truck, 882 F.2d at 228.

	The most significant issue at trial involved environmental

contamination.  The trial court ordered defendant to complete the

remediation of this contamination by a date certain.  However, we

determine that despite this order plaintiff did not prevail on this

issue.  Plaintiff sought to terminate the lease based on the contamination.  The trial court ruled in favor of defendant and

held that the contamination was not a material breach that

justified the termination of the lease.  The trial court held that

the lease required defendant to use due diligence to remediate the

contamination, but it then aalso found that defendant had used due

diligence.  The trial court set a date certain for completion, but

this ruling did not constitute as judgment in favor of plaintiff; it

was instead a declaratory judgment.  The trial court's ruling was

prospective;: it held that defendant was required to use due

diligence to complete the remediation and that, by using due

diligence, the remediation could be completeddefendant could complertte the 4remediation by a date

certain.  Therefore, we determine that the trial court's rulings on

the contamination issues were essentially a draw--defendant was

required to do nothing it had not already agreed to do, and

plaintiff received only the assurance that defendant would continue

the remediation efforts already begun.

	We conclude that the trial court abused its discretion when it

held that plaintiff was entitled to attorney fees.  Although

plaintiff successfully obtained a judgment for damages resulting

from the installation of pay telephones, this issue was not

significant relative to either the value of the remaining claims,

their complexity, or the time devoted to the other issues at trial. 

When value, complexity, and time are considered, the most

significant issue was the environmental contamination.  However,

the trial court's ruling on this issue did little more than

maintain the status quo.  Defendant prevailed on the remaining

issues.  Therefore, we determine that the trial court abused its discretion when it determined that plaintiff was a prevailing party

for the purposes of a fee-shifting agreement.  See Brown & Kerr, 306 Ill. App. 3d at 1035.  Because plaintiff did not prevail on a

significant issue, he was not entitled to any attorney fees. 

Accordingly, we reverse the portion of the judgment that awarded

plaintiff attorney fees; we affirm all other aspects of the

judgment.

	For the foregoing reasons, the judgment of the circuit court

of Boone County is affirmed in part and reversed in part.

	Affirmed in part and reversed in part.

	McLAREN and BOWMAN, JJ., concur.