Village of Glenview v. Zwick

826 N.E.2d 1171, 356 Ill. App. 3d 630, 292 Ill. Dec. 735, 2005 Ill. App. LEXIS 306
CourtAppellate Court of Illinois
DecidedMarch 31, 2005
Docket1-03-2446
StatusPublished
Cited by12 cases

This text of 826 N.E.2d 1171 (Village of Glenview v. Zwick) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Village of Glenview v. Zwick, 826 N.E.2d 1171, 356 Ill. App. 3d 630, 292 Ill. Dec. 735, 2005 Ill. App. LEXIS 306 (Ill. Ct. App. 2005).

Opinion

JUSTICE GARCIA

delivered the opinion of the court.

On March 14, 2002, the plaintiff, Village of Glenview (Glenview), filed a second-amended complaint against the defendant, Michael Zwick, alleging that in addition to refuse ordinance violations, it was entitled to recover attorney fees from Zwick based on section 1.13 of its municipal code. Glenview Municipal Code, ch. 1, § 1.13 (eff. June 21, 1994). Zwick moved to dismiss Glenview’s petition for attorney fees. On July 10, 2003, the circuit court granted Zwick’s motion to dismiss finding section 1.13 was “an impermissible use of Glenview’s home-rule powers [111. Const. 1970, art. VII, § 6(a)] as it violates the ‘American Rule’ regarding each party’s responsibility for its own attorney[ ] fees.”

Glenview appeals arguing that it may, pursuant to its home rule authority, constitutionally require an opposing party to pay its reasonable attorney fees when it is the successful party in litigation involving the enforcement or defense of a provision of its municipal code.

BACKGROUND

On March 14, 2002, Glenview filed a second-amended complaint against Zwick contending that from April 4, 2001, to March 8, 2002, and again on June 29, 2003, Zwick was issued 81 citations for repeated violations of its refuse ordinance. Glenview Municipal Code, ch. 9, §§ 9.28(d), 9.29(a), 9.29(g) (eff. February 6, 2001). Specifically, Glen-view alleged that Zwick failed to place his garbage containers and recycling bins between the lot lines of his residence and failed to remove his garbage containers and recycling bins from the street by 7 p.m. on the date of service. In its second-amended complaint Glenview also sought attorney fees.

Following a bench trial, Zwick, a resident of Glenview, was found guilty of violating Glenview’s refuse ordinance. The circuit court fined Zwick a total of $10,219.

Glenview then went forth on its claim for attorney fees seeking recovery in the amount of $36,079. In support of this claim, Glenview relied on section 1.13 of its municipal code, which states:

“If the Village proceeds in any court of record to enforce and/or defend any provisions of the Municipal Code of the Village of Glen-view, as from time to time amended, and is successful in either the enforcement or defense proceeding as referred to herein, the Village shall recover its reasonable attorneyf ] fees and costs incurred in the course of those proceedings from the person and/or entity who has been found to have violated the Municipal Code of the Village of Glenview and/or who has initiated the proceedings.” Glen-view Municipal Code, ch. 1, § 1.13 (eff. June 21, 1994).

Zwick subsequently filed a motion to dismiss Glenview’s claim for attorney fees. In his motion to dismiss, Zwick alleged that Glenview’s fee-shifting ordinance was an invalid exercise of its home rule authority. See Ill. Const. 1970, art. VII, § 6(a). Specifically, Zwick contended that section 6 allowed a home rule unit to “exercise any power and perform any function pertaining to its government and affairs.” Ill. Const. 1970, art. VII, § 6(a). Zwick then argued that Glenview’s fee-shifting ordinance did not “pertain to its government and affairs” and, thus, turned the Illinois common law and the American Rule, under which each litigant bears the cost of his or her own legal expenses regardless of who is successful in the litigation (Scholtens v. Schneider, 173 Ill. 2d 375, 384, 671 N.E.2d 657 (1996)), on its head.

The circuit court granted Zwick’s motion to dismiss finding the ordinance was an impermissible use of Glenview’s home rule powers because the ordinance violated the American Rule that each party is responsible for its own attorney fees.

“This case presented two very conflicting principles or doctrines, if you will, of our state. And one is the Home Rule powers of a municipal unit, and on the other hand the American Rule. And I understand that Home Rule units are granted much power to enforce or enact legislation dealing with its citizens and its interests. On the other hand, here it’s going up against what is a fundamental principle of our jurisprudence, and that is the parties doing litigation bear their own fees. And it is clear that Illinois courts have adhered consistently to this American Rule and have held that attorney! ] fees shall not be allowed unless specifically authorized by statute, by agreement of the parties or the litigation has created a common fund.”

The circuit court also noted:

“It appears that the purpose of the fee shifting ordinance is to discourage those charged with ordinance violations with asserting any defenses to the charges or challenging the constitutionality of the propriety of municipal ordinances.”

The circuit court surmised that citizens subject to the ordinance would be dissuaded from opposing “doubtful ordinances” where compliance would be less costly than litigation. The circuit court also emphasized that the fee-shifting ordinance was “one sided” in that there was no award of fees to those who prevailed against Glenview.

The circuit court then noted that the case law indicated a reluctance to reallocate the burden of litigation without legislative guidance and cited City of Naperville v. Lerch, 198 Ill. App. 3d 578, 555 N.E.2d 1187 (1990) (award of attorney fees based on ordinance overturned as American Rule prevailed unless there was a statute or agreement to the contrary). The circuit court also noted that although it was aware of landlord-tenant ordinances that provided for tenants to receive attorney fees, the circuit court found that these landlord-tenant ordinances were similar to state statutes awarding attorney fees to consumers or certain classes of individuals who were successful in claims regarding their rights. The circuit court found those statutes dissimilar to, and distinguishable from, Glenview’s fee-shifting ordinance. The circuit court stated:

“I find that the American Rule is so intrenched in our Court system in our jurisprudence that the Village does not have the authority to shift it under these circumstances.”

This appeal followed.

ANALYSIS

We begin by noting that although no appellee’s brief was submitted in this case, we are able to consider this appeal pursuant to First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 345 N.E.2d 493 (1976).

Turning to the merits, Glenview asserts that the sole question presented for our review is, “[wjhether a home rule unit may require the opposing party to pay the unit’s reasonable attorney[ ] fees when the unit is the successful party in litigation involving enforcement or defense of a provision of its local municipal code.” Implicit in this question is the issue of whether section 1.13 was a valid and constitutional use of Glenview’s home rule authority. See Glenview Municipal Code, ch.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

City of Naperville v. Penick
Appellate Court of Illinois, 2026
Sarmont v. DeWitt
2024 IL App (2d) 230239 (Appellate Court of Illinois, 2024)
City of Norco v. Mugar
California Court of Appeal, 2021
Shempf v. Chaviano
2019 IL App (1st) 173146 (Appellate Court of Illinois, 2019)
Youngberg v. Village of Round Lake Beach
2017 IL App (2d) 160539 (Appellate Court of Illinois, 2017)
Youngberg v. The Village of Round Lake Beach
2017 IL App (2d) 160539 (Appellate Court of Illinois, 2017)
Palm v. 2800 Lake Shore Drive Condominium Ass'n
Appellate Court of Illinois, 2010
City of Oakbrook Terrace v. Suburban Bank and Trust Co.
845 N.E.2d 1000 (Appellate Court of Illinois, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
826 N.E.2d 1171, 356 Ill. App. 3d 630, 292 Ill. Dec. 735, 2005 Ill. App. LEXIS 306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/village-of-glenview-v-zwick-illappct-2005.