City of McHenry v. Suvada

Opinion

No. 2--08--0928 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE CITY OF McHENRY, ) Appeal from the Circuit Court of ) McHenry County. Plaintiff-Appellant, ) ) v. ) No. 07--CH--1098 ) VERA ANN SUVADA, ) Honorable ) Michael J. Caldwell, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the opinion of the court:

On September 12, 2007, plaintiff, the City of McHenry (City), filed a verified complaint

against defendant, Vera Ann Suvada, seeking to enforce its municipal ordinances mandating the

maintenance of residential property in a safe and habitable condition, the imposition of fines for each

day that the subject property remained in violation, and an award of attorney fees. On September

20, 2007, the trial court entered a preliminary injunction against Suvada, requiring that all tenants

evacuate the building while the property underwent repair. Approximately one year later, on

September 28, 2008, the trial court found Suvada to be in compliance with the city code and declined

to fine Suvada for any past violations or award attorney fees to the City. The City appealed. For the

reasons that follow, we reverse and remand.

I. BACKGROUND No. 2--08--0928

The subject property is a two-story, four-unit apartment building with brick on the lower

level, siding on the upper level, and a mansard roof. Suvada has owned the property for 33 years.

Suvada lives in Barrington, 21 miles away from the property. According to Suvada, she checks in

on the property once or twice every two weeks, or when called.

On July 6, 2007, the daughter of a tenant called the City to complain about the condition of

the property. The tenant was mainly concerned about a "failure" in her living room floor, mold

growth, standing water in the basement, and a cracked rear sidewalk.

On July 9, 2007, Ryan L. Schwalenberg, the director of construction and neighborhood

services for the City and a certified building inspector, inspected the subject property in response to

the tenant's complaint. The tenant let in Schwalenberg; Suvada was not made aware of this

inspection until after the fact. As he testified later at the hearing, Schwalenberg observed the

following concerns: (1) significant sagging and bulging in the permanent wall and window area of

the building; (2) bulging in the building's siding that was filled with caulk; (3) deteriorating exterior

brick tuck-pointing; (4) missing siding, shingles, and caulk in the building's exterior; (5) a cracked

rear sidewalk; (6) a sagging, spongy floor, depressed several inches along the living room wall of

the building with accompanying deterioration in the floor sheeting, support, and insulation; (7)

standing water in the basement and water stains on the basement appliances, walls, and electrical

panels, indicating prior water levels; and (8) deteriorating electrical panels.

On July 11, 2007, the City's law firm, Zukowski, Rogers, Flood & McArdle, began billing

for its work on the City's case against Suvada, according to the testimony of partner David W.

McArdle. The firm had a strategy meeting the following day. McArdle testified that, from the

-2- No. 2--08--0928

beginning, the firm set forth a litigation strategy, rather than a negotiation strategy. The firm billed

8.5 hours in July, 10.25 hours in August, and 44.75 hours total.

On July 17, 2007, the City sent Suvada a notice, which had the heading "Notice of

Substandard and Dangerous Building." The notice stated that Suvada had until July 27, 2007 (10

days), to provide the City with a written report from a licensed architect or structural engineer

regarding the repairs necessary to bring the building into compliance with the city code. The notice

further stated that the City would provide Suvada with directions on whether the building should be

vacated for safety reasons and the time frame in which the repairs should be completed. In closing,

the notice stated, "[i]f you fail to provide a report by [July 27, 2007], the City will institute legal

proceedings against you to vacate all occupants from the building."

In late July or early August, Suvada contacted the City in response to the notice. Suvada

testified that four representatives from the City met her at the property to point out various code

violations. Suvada stated that she felt "bombarded." The City informed Suvada that the first thing

she should do is contact an engineer or an architect. The City also informed Suvada that if she failed

to comply, the City would take legal action against her. Suvada testified that this ultimatum

"stunned" her, because she felt she was cooperating with the City. Suvada further testified that she

had a difficult time securing an architect; many were busy or did not want the job. Suvada testified

that she called the City during this time to report that she was having difficulty securing an architect.

Meanwhile, on August 15, 2007, the City issued a second notice. This notice was

substantively similar to the first, and it listed violations of the following code provisions: (1)

McHenry Municipal Code (City Code) article XVII, sections 7--251(c), (d), (e), (h), (i), and (j)

-3- No. 2--08--0928

(McHenry Municipal Code §§7--251(c), (d), (e), (h), (i), (j) (eff. December 4, 1987);1 (2)

International Property Maintenance Code 2000 (Maintenance Code) sections 108.1 and 108.2; (3)

Maintenance Code chapter 3, sections 303.2, 304.2, and 304.3; and (4) Maintenance Code chapter

6, section 604.3.2 The Maintenance Code had been adopted by city ordinance. The notice informed

Suvada that she had until September 3, 2007 (20 days), to correct the referenced code violations and

to provide the City with a written report from an engineer or an architect. In closing, the notice

stated, "[i]f you fail to make all of the necessary repairs and provide a report by this date, the City

will file and prosecute the enclosed complaint against you."

On September 12, 2007, the City filed a complaint entitled "Verified Complaint for

Temporary Restraining Order, Preliminary and Permanent Injunctive Relief[,] and Ordinance

Violations." The complaint gave a brief description of the aforementioned code violations, as set

forth below:

1. City Code section 7--251(c)--improperly distributed load upon floor or roof,

causing the structure to have insufficient strength to be reasonably safe for the purpose used;

2. City Code section 7--251(d)--premises damaged so as to become dangerous to the

lives, safety, morals, or general health and welfare of the occupants or people of the City;

3. City Code section 7--251(e)--premises dilapidated, decayed, unsafe, or unsanitary

so as to work injury to the health, morals, safety, or general welfare of those living therein;

1 The initial notice had listed the McHenry Municipal Code violations as of article VI, sections 7--91(c), (d), (e), and (h).

2 The full text of these codes was later admitted into evidence and is contained in the record on appeal.

-4- No. 2--08--0928

4. City Code section 7--251(i)--defendant allowed the premises to become

dilapidated, decayed, unsafe, unsanitary, or dangerous to the health, morals, safety, or general

welfare of the people of the City;

5. City Code section 7--251(j)--defendant allowed the building on the premises to

exist in violation of the codes and ordinances of the City;

6. Maintenance Code section 108.1--defendant knowingly allowed the structure on

the premises to become dangerous to the lives, health, property, or safety of the public or the

occupants of the structure because the structure is so damaged, decayed, dilapidated, or

unsafe that the structure's partial or complete collapse is possible;

7. Maintenance Code section 108.2--defendant knowingly allowed the structure on

the premises to be in such disrepair that the electrical wiring and electrical devices in the

structure are a hazard to the lives, health, property, or safety of the public or the occupants

of the structure;

8. Maintenance Code section 303.2--defendant failed to maintain the exterior surfaces

of the structure on the premises;

9. Maintenance Code section 304.2--defendant failed to maintain the interior

structural members of the building in a manner so as to be sound and capable of supporting

imposed loads;

10. Maintenance Code section 304.3--defendant failed to maintain the interior

surfaces of the structure in good, clean, and sanitary condition; and

11. Maintenance Code section 604.3--defendant allowed the electrical system in the

structure to be in such a condition as to constitute a hazard to the occupants or the structure.

-5- No. 2--08--0928

The City asked, among other requests, that the trial court: (1) issue a restraining order and injunction

preventing the occupancy of the premises until the premises are found to be in compliance with the

City Code; (2) enter an order, pursuant to section 11--217 of the City Code and section 11--31--1 of

the Illinois Municipal Code (65 ILCS 5/11--31--1 (West 2006)), that the costs of enforcement,

including attorney fees, shall be collected as a debt from Suvada and that such costs shall become

a superior lien against the real estate on which the City may take legal action to foreclose; and (3)

impose a fine of $750, pursuant to section 1--8(a) of the City Code, for July 6, 2007, and for each

day after that the subject property is in violation of the City Code.

On September 13, 2007, the City filed a "Verified Motion for Preliminary Injunction." In it,

the City referenced the complaint it had filed the day before and requested injunctive relief as had

been stated in its earlier complaint.

On September 20, 2007, following argument wherein the City was represented by counsel

and Suvada appeared pro se, the trial court granted the verified motion for preliminary injunction.

The court stated that, based on the City's complaint, the City had a clear and ascertainable right to

have the provisions of its codes and ordinances enforced in order to protect the public's health,

safety, and welfare; the City would suffer irreparable harm if the preliminary injunction were not

granted; the City had no adequate remedy at law; and there existed a reasonable likelihood of success

by the City on the merits of its complaint. The court ordered that the premises shall not be occupied

"until [the subject property is] in compliance with City Codes and Ordinances and/or a hearing has

been held on [the] merits of the City's Verified Complaint." The court advised Suvada to retain an

attorney, and she subsequently did so.

-6- No. 2--08--0928

Also in September 2007, Suvada secured an architect. The architect completed the plans on

September 19, 2007, as noted on the blueprint admitted into evidence. Suvada supplied the City

with a copy of the building plans. On November 8, 2007, after the City approved the plans, Suvada

submitted an application for a building permit. In December 2007, the City contacted Suvada to let

her know the permit was ready. On January 9, 2008, Suvada picked up the permit from the City.

Suvada testified that she did not pick up the permit in December 2007 because she did not believe

there to be any hurry, as the weather was not conducive to construction. Suvada explained that

performing concrete work on the building's exterior would prevent further interior damage and that,

according to her contractors, it was best to perform concrete work in warmer weather. Suvada

testified that she personally worked on the building during the winter months, cleaning its interior

and its appliances. Schwalenberg disagreed that the interior repairs were conditioned on the exterior

concrete work. However, Schwalenberg seemed to concede that much of the work, such as the

concrete work, caulking, brick replacement, and deck support, was best left for warmer weather.

Schwalenberg further conceded that the amount of work required to bring the property into

compliance could not possibly have been completed in two to three weeks, as required by the notice

dated August 15, 2007.

On January 23 and March 24, 2008, the case was continued for status. In late March and

early April, according to Suvada, she and her contractors began working in earnest to correct the

alleged violations. Between April 4 and September 3, 2008, the City inspected the subject property

on seven occasions, monitoring Suvada's progress. Schwalenberg conducted each inspection, and

he usually communicated with various contractors. Suvada was not present at each inspection. At

the April 4, 2008, inspection, Schwalenberg informed the contractors that they needed to provide

-7- No. 2--08--0928

additional pier support under the deck stairs and to better protect a gas line that was running through

a hole in one of the piers. At the April 15, 2008, inspection, Schwalenberg spoke with a different

contractor regarding the living room. The contractor had sufficiently framed the floor; however, the

wood was still rotted around the window. Additionally, the building needed crawl space venting and

further structural support, which could be accomplished by "nailing the bridging." At the May 14,

2008, inspection, Schwalenberg found the floor and the support beam to be fixed. However, as to

the interior of the wall, the contractor needed to properly reroute the nonmetallic cable into the studs

and install a moisture barrier and flashing behind the brick so as to prevent structural decay in the

future. At the June 2, 2008, inspection, Schwalenberg noted that the wall in the living room around

the window had been replaced. However, the contractor still needed steel stud guards on the electric

wiring, a moisture barrier, and "weep holes" in the brick. At the June 17, 2008, inspection,

Schwalenberg noted that the contractors had corrected the moisture barrier. At the August 25, 2008,

inspection, Schwalenberg noted that the contractors still had to finish the caulking around the

windows in the front and properly label the breakers. Everything else had been corrected. On

September 3, 2008, Schwalenberg found no violations and issued certificates of occupancy for all

four units. Schwalenberg testified that, throughout the inspection process, Suvada had at all times

been cooperative.

Suvada testified that she was at times frustrated during the renovation process because

Schwalenberg frequently found new violations that had not been noted previously and occasionally

asked Suvada to redo a project in an inefficient manner. For example, Suvada stated that she asked

Schwalenberg to inspect a wall to see if it was ready to be covered. Schwalenberg told Suvada to

first put binding on the brick under the wall. Suvada did so and then covered up the wall. However,

-8- No. 2--08--0928

Schwalenberg then required Suvada to take down the wall cover to do additional work.

Schwalenberg testified that, while true that he noticed additional items to be repaired during his

inspections, this was in large part due to contractor error.

On September 22, 2008, approximately one year after the trial court had granted the

preliminary injunction, the case proceeded to a bench trial, wherein the above-stated testimony was

set forth. Both parties acknowledged that the property was in compliance at that point. However,

the City still requested that the trial court make a finding that Suvada had been in violation of the

City Code and: (1) pursuant to section 1--8 of the City Code, impose a fine between $25 and $750

for each day the City alleged violations to have occurred on the property; and (2) pursuant to section

11--31--1 of the Illinois Municipal Code, award attorney fees and costs associated with prosecuting

the City's verified complaint. When the City began to review the previous violations observed by

Schwalenberg on July 9, 2007, the trial court interrupted:

"THE COURT: Mr. Chrzanowski, there is no issue here the building [was] in

violation. How much more of this [do] we have to listen to?

MR. CHRZANOWSKI: (Indiscernable) [Y]our Honor--

THE COURT: I see you're taking papers off a stack that's about two inches thick.

The issue here are the--the fines for violation and attorney fees, right?

MR. CHRZANOWSKI: Yes, [Y]our Honor.

THE COURT: You're going back to creation."

In closing, the City repeated the time line of events, implying that Suvada had taken an

unreasonable amount of time to bring her property into compliance. The City requested that Suvada

be fined for each day that her building had been in violation of the City Code. When the City

-9- No. 2--08--0928

informed the trial court that the City Code provided for a maximum fine of $750 per day, the court

interrupted:

"THE COURT: $750 a day?

MR. CHRZANOWSKI: That's correct, [Y]our Honor.

THE COURT: For 300 days?

MR. CHRZANOWSKI: That is correct.

THE COURT: Do you have any idea how much money that is?

MR. CHRZANOWSKI: Not without calculating it offhand.

THE COURT: Well, at $20 a day it's over $6,000 and if you want $750 a day, it's a

quarter of a million dollars.

MR. CHRZANOWSKI: Your Honor, the code does set forth--

THE COURT: I don't care what the code says. Is my math correct?

MR. CHRZANOWSKI: If that's what [Y]our Honor--

THE COURT: Is that what you're asking me to impose in this case, a fee or fine for

this violation of $225,000, in excess of $225,000? Yes or no? Is that what you're asking me

to impose? Don't tell me the violation existed, don't give me anymore lawyerly arguments,

just answer my question. Yes or no?

MR. CHRZANOWSKI: Your Honor, yes."

In closing, Suvada argued that she had been diligent and cooperative in making the required

repairs. Suvada noted that there were no tenants in the building, so, even absent the imposition of

fines, Suvada lost money in taking the time to correctly repair the property. Additionally, Suvada

-10- No. 2--08--0928

argued that the attorney billings evinced unnecessary work, drafts for pleadings that were never used,

and, in light of Suvada's cooperation, an overly aggressive litigation strategy.

The trial court ruled in favor of Suvada and against the City, declining to award the City

statutory fines or attorney fees. In so finding, the trial court essentially reasoned that fines were not

necessary in light of Suvada's cooperation and subsequent compliance. The court stated that Suvada

had been reasonably diligent in repairing the property. The court noted that when the tenants were

moved out of the property, the property no longer posed a public health hazard. The court further

stated that there was no reason for the City to continue the suit following the issuance of the

temporary injunction. Additionally, the court stated that it was not necessary or appropriate for the

City to file its complaint under section 11--31--1 of the Illinois Municipal Code to secure Suvada's

compliance. It seemed to the court that the City's sole reason for filing the complaint under section

11--31--1 was to secure attorney fees. The court noted that section 11--31--1, which allows the City

to recover attorney fees incurred in prosecuting a case, applies only to situations where a

municipality is required to demolish or repair property that is in a dangerous condition. The court

stated that it would have been more appropriate for the City to file its case under section 11--31--2,

which permits an injunction to require compliance with a regulation but does not contain a provision

authorizing the City to recover attorney fees incurred in prosecuting the case. The court did not

make an express finding that Suvada had violated the City Code at any point. This appeal followed.

II. ANALYSIS

On appeal, the overriding issues are whether the trial court erred by failing to: (1) fine Suvada

pursuant to sections 1--8(a) and 7--30(a)3 of the City Code; and (2) award the City attorney fees and

3 In its original complaint, the City relied only upon section 1--8(a) as a basis for the -11- No. 2--08--0928

costs. Additionally, the parties, citing to the trial court's statement that the City ought to have filed

its complaint under section 11--31--2 (injunctions to require compliance where buildings fail to meet

minimum standards of health and safety) rather than section 11--31--1 (demolition, repair, enclosure,

or remediation of an unsafe building), broadly debate whether the instant lawsuit was necessary to

secure Suvada's compliance. However, regardless of whether the City had cited section 11--31--1

or section 11--31--2, the City would have had, at the time it filed its complaint, a basis under sections

1--8(a) and 7--30(a) of the City Code for seeking a finding regarding the alleged violations and

related fines. Thus, the question of section 11--31--1's applicability affects our analysis of only the

second issue.

To the extent that the trial court's judgment relies upon the construction of a statute or an

ordinance, such as sections 1--8(a) and 7--30(a) at issue here, our review is de novo. City of Chicago

v. Old Colony Partners, L.P., 364 Ill. App. 3d 806, 812 (2006). However, the trial court's findings

of fact, such as whether a building has violated the City Code, will stand unless contrary to the

manifest weight of the evidence. Old Colony, 364 Ill. App. 3d at 812. A finding is against the

manifest weight of the evidence if the opposite conclusion is clearly apparent. Old Colony, 364 Ill.

App. 3d at 812.

A. Fines Pursuant to Section 1--8(a) and 7--30(a) of the City Code:

Subsequent Compliance is Not an Affirmative Defense

computation of fines. Prior to oral argument, we granted the City's application for leave to amend

its complaint, pursuant to section 2--616(c) of the Code of Civil Procedure (735 ILCS 5/2--616(c)

(West 2006)) and Supreme Court Rule 362 (155 Ill. 2d R. 362), to cite section 7--30(a) of the City

Code as an additional basis for the computation of fines.

-12- No. 2--08--0928

The City, relying on Old Colony and City of Chicago v. Cotton, 356 Ill. App. 3d 1 (2005),

argues that the plain language of sections 1--8(a) and 7--30(a) of the City Code limits the trial court's

role to determining whether an individual has violated a municipal ordinance and, upon such a

finding, to imposing a fine within the prescribed range of $25 to $750 per day. We agree.

However, whereas section 1--8(a) applies generally to any violation of the City Code, section

7--30(a) applies specifically to the City's building code and is therefore the more appropriate basis

for a fine. Section 7--30(a), which is contained within the building code chapter of the City Code,

states:

"Any person who violates, disobeys, omits, neglects, or refuses to comply with or

who resists the enforcement of any of the provisions in this Chapter, *** or who refuses to

remedy a violation of any such provisions *** shall 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." (Emphasis added.) McHenry Municipal Code §7--30(a) (eff.

December 4, 1987).

Section 1--8(a) states:

"[W]here no specific penalty is provided therefore [sic], the violation of any such

provision of this Code or any ordinance shall be punished by a fine of not less than $25.00

nor more than $750.00. Each day any violation of any provisions of this Code or any

ordinance shall continue shall constitute a separate offense." McHenry Municipal Code

§1--8(a) (eff. December 4, 1987).

Section 1--8(a) applies "where no specific penalty is [otherwise] provided therefore." Section

7--30(a) provides a specific penalty for building code violations, technically rendering section 1--8(a)

-13- No. 2--08--0928

inapplicable. In any case, both sections mandate a fine between $25 and $750 for each day that a

defendant is found to be in violation.

The penalty provision at issue in both Cotton and Old Colony is substantially similar to

section 7--30(a):

" '[V]iolation of *** any of the provisions of this [Building] Code ***, to which no other

penalty provision is applicable[,] shall be punished by a fine of not less than $200.00 and not

more than $500.00, and each day such violation shall continue shall constitute a separate and

distinct offense for which a fine as herein provided shall be imposed.' " Cotton, 356 Ill. App.

3d at 7, quoting Chicago Municipal Code §13--12--040 (2003).

In Cotton, the City of Chicago filed a complaint against a landlord for violating portions of

Chicago's building code. The landlord had neglected to pay the gas bills, causing his tenants to be

without heat or hot water for 20 days and resulting in three building code violations. The trial court

awarded damages in the amount of $2,000 based on a calculation of $100 per day for 20 days of

noncompliance. Cotton, 356 Ill. App. 3d at 3. The appellate court determined that the trial court

erred in deviating from the penalty range of the ordinance and held that the trial court was obligated,

upon finding that the landlord violated the building code, to impose a daily fine within the statutory

range of $200 to $500. Cotton, 356 Ill. App. 3d at 7. The court reasoned that a " 'statute must be

enforced as written, and a court may not depart from its plain language by reading into it exceptions,

limitations, or conditions not expressed by the legislature,' " that the penalty statute at issue mandated

a fine of $200 to $500 per day, and that the landlord's subsequent payment of the heating bill was

not an affirmative defense. Cotton, 356 Ill. App. 3d at 4-7, quoting Lawrence v. Regent Realty

-14- No. 2--08--0928

Group, Inc., 197 Ill. 2d 1, 10 (2001). The court remanded for the trial court to impose a fine of $200

to $500 per day. The appellate court left for the trial court a determination on the question of

whether, as sought by the City of Chicago, a penalty was to be imposed for each code section

violated, each day, irrespective of the extent to which each such violation was engendered by a

common, single negative act, or, as the landlord would contend, a single penalty for each day,

irrespective of the number of violations engendered by a single act. Cotton, 356 Ill. App. 3d at 10-

11.

In Old Colony, the City of Chicago filed a complaint against the owner of a building, alleging

violations of the building code with respect to the exterior walls of the building. Without much

elaboration, the trial court found that the owner actually did not violate the code and declined to fine

the owner. Old Colony, 364 Ill. App. 3d at 812. The appellate court stated that it was not against

the manifest weight of the evidence to find that the defects at issue did not actually violate the code.

Old Colony, 364 Ill. App. 3d at 821. However, the court stated, as it had in Cotton, that if there had

been a violation, the penalty provision at issue mandated a fine and that subsequent compliance was

not an affirmative defense. Old Colony, 364 Ill. App. 3d at 821.

At oral argument, Suvada's attorney argued that, in stating that those who "refuse[] to remedy

a violation" are subject to fines, section 7--30(a) contemplates that those who do remedy a violation

may be excused from fines. We disagree. Section 7--30(a) states that a person who violates or

refuses to remedy a violation is subject to fines. A violation alone is sufficient to mandate a fine.

See Cotton, 356 Ill. App. 3d at 4-5 (statute must be enforced as written and a court may not depart

from its plain language by reading into it exceptions, limitations, or conditions not expressed by the

-15- No. 2--08--0928

legislature). We find that, like the penalty provision in Cotton and Old Colony, the penalty provision

at issue here mandates the imposition of a fine within the statutory range, provided the trial court

finds a violation.

Additionally, Suvada, relying on City of Chicago v. RN Realty, L.P., 357 Ill. App. 3d 337

(2005), Village of Barrington Hills v. Life Changers International Church, 354 Ill. App. 3d 415

(2004), and Village of Glenview v. Ramaker, 282 Ill. App. 3d 368 (1996), essentially argues that her

subsequent compliance was an affirmative defense to any fine the City may otherwise have been

authorized to impose under section 7--30(a).

In Ramaker, the trial court fined the defendant $500 for keeping a pig as a domestic pet in

violation of a municipal ordinance. Ramaker, 282 Ill. App. 3d at 370. Nine months prior to the

village's complaint against her, the defendant had attempted to come into compliance by lobbying

for a change in the ordinance to allow for the keeping of her pet's particular breed of pig.

Additionally, the defendant removed her pig from the village pending the trial and the appeal. The

appellate court focused its analysis on whether the pig at issue fell under the meaning of "swine" in

the ordinance, and whether the ordinance was a valid exercise of police power. Cotton, 356 Ill. App.

3d at 7, discussing Ramaker, 282 Ill. App. 3d at 370-72. The appellate court then only briefly

considered the $500 fine, calling it an "abuse of discretion." Ramaker, 282 Ill. App. 3d at 372. The

court reasoned that the defendant cooperated with the village by removing the pig pending the trial

and ultimately complied with the ordinance. Ramaker, 282 Ill. App. 3d at 372. The court stated that,

"[w]here cooperation is shown, compliance has come about, and imposition of a fine would not aid

enforcement, a fine is improper" and would constitute an abuse of discretion. Ramaker, 282 Ill. App.

-16- No. 2--08--0928

3d at 372-73, citing Harris-Hub Co. v. Pollution Control Board, 50 Ill. App. 3d 608, 611 (1977). The

court then imposed a nominal fine of $1. Ramaker, 282 Ill. App. 3d at 373.

Suvada's reliance on Ramaker is flawed on several fronts. First, though perhaps not fatal in

and of itself, it is worth noting that the factual circumstances at play in Ramaker, i.e., keeping a pet

pig, are a far cry from those at issue here and in the building code violation cases relied upon by the

City. Second, the village in Ramaker did not seek relief under a penalty provision similar to that in

Cotton and Old Colony (section 13--12--040 of the Chicago Municipal Code), or the instant case

(section 7--30(a)), each of which mandates a minimum fine and contains no language regarding

subsequent compliance as an affirmative defense. Third, and perhaps most critical, Ramaker itself

relies on misplaced authority. Ramaker relies on Harris-Hub, an environmental law case. At the

time Harris-Hub was released, violating a provision of the environmental protection statute at issue

did not necessarily warrant the sanction of a fine; in fact, the plaintiff alleging a violation of the

statute was required to show that the imposition of a fine would aid in enforcing the enactment.

Harris-Hub, 50 Ill. App. 3d at 611. Because the defendant in Ramaker was not accused of violating

the environmental protection statute, the Ramaker court's reliance on the statutory scheme was

questionable at best.

The remaining two cases cited by Suvada, RN Realty and Life Changers, each rely on

Ramaker to some extent. See RN Realty, 357 Ill. App. 3d at 348; Life Changers, 354 Ill. App. 3d

at 422. In RN Realty, for example, the court stated that "even if *** defendants were guilty of

violating the cited Code provisions, they undertook immediate and diligent efforts to cure all the

defects prior to trial and the Code was thus enforced," such that the imposition of fines would not

-17- No. 2--08--0928

have aided in enforcement and would therefore have been improper. RN Realty, 357 Ill. App. 3d

at 348. We disagree with this approach. As reasoned by the courts in Cotton and Old Colony, the

plain language of the penalty provisions at issue does not excuse from fines those who violate the

City Code for a period of time yet subsequently comply. See also RN Realty, 357 Ill. App. 3d at 351

(Quinn, J., dissenting) (stating that Cotton should control over Ramaker and that section 13--12--040

mandated fines). To the extent that Suvada relies on Ramaker, RN Realty, and Life Changers for

the proposition that a defendant who violates the City Code for a period yet subsequently complies

prior to the hearing on the complaint is no longer subject to a fine, we disagree.

Of course, section 7--30(a) is implicated only if the trial court makes a finding that the

building was, at least at some point, in violation. Whether a building is in violation of the City Code

and how long the building stands in violation are questions of fact, and a trial court's determination

is not to be disturbed unless it is against the manifest weight of the evidence. Old Colony, 364 Ill.

App. 3d at 821. Additionally, where the code at issue uses general terms and/or language that is

open to interpretation, such as "dangerous and hazardous," the trial court must exercise its discretion

to determine whether the state of the building should constitute a violation. Old Colony, 364 Ill.

App. 3d at 815.

The City argues that the undisputed evidence requires the trial court to make a finding that

the property remained in violation of the City Code for the 422-day period between Schwalenberg's

initial inspection of the property on July 9, 2007, and the City's issuance of a certificate of occupancy

following Schwalenberg's final inspection on September 3, 2008. The City notes that, when it

attempted to question Schwalenberg at the hearing regarding each specific ordinance violation, the

-18- No. 2--08--0928

trial court interrupted and stated that such testimony was unnecessary because "there is no issue that

the building [was] in violation." The City further notes that Suvada stipulated that the property was

in the condition testified to by Schwalenberg and states that a stipulation has the effect of eliminating

the need for proof that would have otherwise been required. People v. One 1999 Lexus, VIN

JT8BH68X2X0018305, 367 Ill. App. 3d 687, 691 (2006).

Though it may seem obvious that the property was, at some point, in violation of the City

Code, we still must remand to the trial court to make a specific finding of fact. Both the trial court's

statement regarding the fact that there was "no issue" that the property was in violation and Suvada's

stipulation were made in reference to the condition of the property on July 9, 2007, only. We also

disagree that the trial court was required to find that the property was in violation of the City Code

for the entire 422-day period. Whether, when, and the nature and extent of the violation are

questions of fact for the court to determine.

In sum, as to the issue of fines, we find that the plain language of section 7--30(a) of the City

Code mandates a fine between $25 and $750 for each day that the property was in violation.

However, contrary to the City's position, we do not believe the trial court is required to find that the

property remained in violation during the entire 422 days. We remand for the trial court to make an

express finding as to the number of days that Suvada remained in violation and to impose a

reasonable fine within the statutory guidelines.

B. Attorney Fees

The City argues that, pursuant to the plain language of section 1--8(b) of the City Code and

section 11--31--1 of the Illinois Municipal Code, it is entitled to $10,458.50 in attorney fees and

-19- No. 2--08--0928

costs in prosecuting this case. McHenry Municipal Code §1--8(b) (eff. December 4, 1987); 65 ILCS

5/11--31--1(a) (West 2006). For the reasons that follow, we find that section 1--8(b) is not

applicable and that section 11--31--1, though applicable, entitles the City to recover only those

attorney fees and costs that the trial court deems reasonable or "related to" the suit.

Section 1--8(b) of the City Code states:

"In the event any charge or fee, including *** fines ***, found in any section of the

[City Code], that is due the City and is not paid, the cost of collecting said fee and enforcing

the ordinance shall be added to the fee. Collection and enforcement costs shall include, but

not be limited to, prosecution and attorney fees incurred by the City of McHenry."

(Emphasis added.) McHenry Municipal Code §1--8(b) (eff. December 4, 1987).

Suvada does not question, or even address, section 1--8(b)'s applicability; however, we do.

Section 1--8(b) states that where fines are "due the City" and are not paid, the cost of collecting the

fines and of enforcing the ordinance will be added to the fines. McHenry Municipal Code §1--8(b)

(eff. December 4, 1987). Here, the trial court has yet to make its determination regarding fines "due

the City." Suvada has never refused to pay fines ordered and the City has not yet incurred costs

collecting fines ordered. Section 1--8(b) does go on to state that "the cost of collecting said [fine]

and enforcing the ordinance shall be added to the [fine]," suggesting that section 1--8(b) allows the

City to recover not only the cost of collecting an unpaid fine but also the cost of enforcing the

ordinance from which the fine resulted. McHenry Municipal Code §1--8(b) (eff. December 4, 1987).

However, if read with strict attention to the rules of sentence construction, section 1--8(b) actually

limits the City's ability to recover enforcement costs to those situations where "fines *** due the city

-20- No. 2--08--0928

[are] not paid." Thus, our primary holding as to section 1--8(b) is that it does not apply to the instant

case. However, even if we read section 1--8(b) to provide for the recovery of enforcement costs in

all circumstances, it would still be up to the trial court to determine which costs claimed by the City

were reasonably related to enforcement of the ordinances.

The City contends that prosecution of the instant suit was necessary under section

11--31--1(a) of the Illinois Municipal Code to "cause the *** repair *** of a dangerous and unsafe

building." 65 ILCS 5/11--31--1(a) (West 2006). Section 11--31--1(a) further states that the City is

entitled to an award of its attorney fees and costs "related to [its] enforcement of [the] Section" and

that the recovery of said fees and costs shall become a superior lien on the property. 65 ILCS

5/11--31--1(a) (West 2006).

Suvada does challenge section 11--31--1's applicability. Suvada notes that the trial court

stated that the City ought to have filed its complaint under section 11--31--2 (injunctions to require

compliance where buildings fail to meet minimum standards of health and safety) rather than

11--31--1 (demolition, repair, enclosure, or remediation of an unsafe building). She argues that a

lawsuit under section 11--31--1 was not appropriate because: (1) the City failed to provide sufficient

evidence to support a finding that a dangerous and unsafe condition existed on the property, as

opposed to a finding that the property failed to meet the minimum standards of health and safety (65

ILCS 5/11--31--1(a) (West 2006) ("dangerous and unsafe [condition]"); 65 ILCS 5/11--31--2(a)

(West 2006) ("minimum standards of health and safety")); and (2) no urgency existed to require

Suvada to comply with the City Code where she cooperated with the City throughout the repair

process (City of Aurora v. Meyer, 38 Ill. 2d 131, 134 (1967) (relief under section 11--31--1 is an

-21- No. 2--08--0928

extreme measure limited by the necessity of the case); City of Chicago v. James E. Mulligan

Enterprises, Inc., 27 Ill. App. 2d 481, 487 (1960) (section 11--31--1 for use in urgent situations)).

Of course, if the City's prosecution of the instant suit under section 11--31--1 were inappropriate,

then the City would not be entitled to an award of its attorney fees and costs "related to [its]

enforcement of [section 11--31--1]." 65 ILCS 5/11--31--1(a) (West 2006). By way of comparison,

section 11--31--2 does not contain a clause regarding the City's entitlement to an award of its

attorney fees and costs related to its enforcement of that section. 65 ILCS 5/11--31--2 (West 2006).

Additionally, Suvada argues that, even if prosecution under section 11--31--1 were appropriate, the

fees incurred by the City were not reasonably necessary, in that the City aggressively pursued the

litigation and incurred fees relating to the preparation of documents that were never filed with the

court.

As to Suvada's contention that the City did not provide sufficient evidence to support a

finding that a dangerous and unsafe condition existed on the property, the trial court here did make

the express finding that "upon the vacation of the property by the tenants[,] *** this building did not

pose any public health hazard." However, the trial court also stated that, had tenants lived in the

building, as they had when the City initially filed the suit, the tenants would have been "at risk."

These findings are not against the manifest weight of the evidence.

We were unable to find any case law that directly addresses the issue of whether a suit is

more properly filed pursuant to section 11--31--1 or section 11--31--2. The purpose of section

11--31--1 is to give the City a quick and effective means of removing those unused and dilapidated

structures that present danger and blight. Mulligan, 27 Ill. App. 2d at 487. However, the

-22- No. 2--08--0928

"implication of [section 11--31--1] is that if the property at issue can be repaired with comparatively

little expense[,] the city ought to adopt this course rather than complete demolition." (Emphasis

added.) Meyer, 38 Ill. 2d at 137. The Meyer court further stated that "[t]here are many kinds of

deficiencies which would render a building dangerous and unsafe, but which can readily be obviated

by appropriate repairs." Meyer, 38 Ill. 2d at 137. The Meyer court then provided examples of

deficiencies that could be serious enough to sustain a finding that the building was dangerous and

unsafe but could be readily repaired, such as inadequate wiring or a weakened support beam. Meyer,

38 Ill. 2d at 137. Implicit in the Meyer court's admonishment that cities should seek repairs under

section 11--31--1 before they seek demolition is an acknowledgment that section 11--31--1 is an

appropriate vehicle by which to compel repair.

Incidentally, we note that prior cases under section 11--31--1 do indeed involve more

"urgent" situations than that demonstrated by the facts of the instant case. See, e.g., Meyer, 38 Ill.

2d at 133-34 (building was open to vagrants who built fires therein, was filled with trash and debris,

and was alleged to have faulty electrical wiring, structural defects, unsanitary plumbing, and unsafe

floors, walls, roof, and windows); Mulligan, 27 Ill. App. 2d at 487 (the city "proceeded far more

leisurely than the urgency of the statute contemplated" where it waited 14 months following the

defendant's answer to its complaint before it sought the demolition of the property at issue, which

had been ravaged by a fire and left unrepaired). Nevertheless, given the examples cited by the Meyer

court, we cannot fault the City for initially relying on section 11--31--1 to compel the repair of the

property's structural and water damage. These deficiencies were severe enough to require all tenants

-23- No. 2--08--0928

to vacate the building, not just the tenant in the unit that had damage to the interior of the living

room.

That the City reasonably relied upon section 11--31--1 to compel Suvada to repair the

property, however, does not necessarily mean that it is entitled to $10,458.50 in attorney fees and

costs. The municipality seeking to recover from a building owner the expenses it incurred in

compelling the repair of a building, pursuant to section 11--31--1, has the burden of proving that the

expenses were reasonable. See Village of Franklin Park v. Aragon Management, Inc., 298 Ill. App.

3d 774, 778 (1998) (applying this principle to the demolition of a building). It is within the

discretion of the trial court to determine what costs are reasonably "related to" the suit. Aragon

Management, 298 Ill. App. 3d at 778.

Typically, the decision to award attorney fees is within the trial court's discretion. Aragon

Management, 298 Ill. App. 3d at 777 (municipal code provision allowing a municipality to demolish

a building and to recover costs "related to" enforcement of the provision leaves it to the discretion

of the court, applying court rules and the principles applicable to similar statutes such as the

Mechanics Lien Act (770 ILCS 60/1 et seq. (West 1996)), to determine which costs are so related).

Here, the trial court was fairly adamant in its language that the City pursued an overly aggressive

litigation strategy against Suvada in light of Suvada's cooperation and that legal action was not

necessary to secure Suvada's compliance. Nevertheless, the trial court did not even consider what

the correct amount of attorney fees and costs should have been, because it (erroneously) thought that

section 11--31--1 did not apply at any point in the proceedings, despite the fact that, in granting the

preliminary injunction, it had stated that the City's complaint filed under section 11--31--1 had a

-24- No. 2--08--0928

reasonable likelihood of success on the merits. Where, as here, the trial court fails to even consider

the amount of attorney fees and costs warranted, a remand is proper. See O'Conner Construction Co.

v. Belmont Harbor Home Development LLC, 391 Ill. App. 3d 533, 541 (2009) (remand for a hearing

on attorney fees where the trial court refused to consider the amount of attorney fees to which

plaintiff was entitled under the Mechanics Lien Act).

III. CONCLUSION

For the aforementioned reasons, we reverse the trial court's judgment in favor of Suvada and

remand for a determination of fines and attorney fees and costs.

Reversed and remanded.

McLAREN and O'MALLEY, JJ., concur.

-25-