                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           Parker v. Nichting, 2012 IL App (3d) 100206




Appellate Court            GENERAL PARKER, Plaintiff-Appellant, v. PATRICK NICHTING,
Caption                    GEORGE JACOBS, JIM MONTELONGO, GARY SANDBERG,
                           RYAN SPAIN, BARBARA VAN AUKEN, CLYDE GULLEY,
                           WILLIAM SPEARS, DAVID WATKINS, Each Individually and in His
                           or Her Capacity as a Peoria City Council Member; JIM ARDIS,
                           Individually and in His Capacity as Mayor of Peoria; DAWN HENSON,
                           Individually and in Her Capacity as a City of Peoria Employee; the CITY
                           OF PEORIA MUNICIPAL GOVERNMENT, Defendants-Appellees.



District & No.             Third District
                           Docket No. 3-10-0206


Filed                      February 1, 2012


Held                       In an action alleging that defendants, including a city, its mayor and city
(Note: This syllabus       council members, violated the Open Meetings Act, the trial court abused
constitutes no part of     its discretion in awarding plaintiff only $3,000 of the more than $22,000
the opinion of the court   in attorney fees he sought after summary judgment was entered in his
but has been prepared      favor finding that the council’s vote on a particular matter was null and
by the Reporter of         void, but the court’s refusal to award punitive and compensatory damages
Decisions for the          was affirmed, since the reduction in the fees was made without findings
convenience of the         regarding the reasonableness of the fees and costs or the hours and rates
reader.)
                           used as a basis for the request, but there was no basis for the court to
                           award any monetary damages other than attorney fees and costs.
Decision Under             Appeal from the Circuit Court of Peoria County, No. 07-L-442; the Hon.
Review                     Joe Vespa, Judge, presiding.



Judgment                   Affirmed in part and remanded with directions.


Counsel on                 Richard Fedder, of Carbondale, for appellant.
Appeal
                           Randall P. Ray, of Peoria, for appellees.


Panel                      JUSTICE HOLDRIDGE delivered the judgment of the court, with
                           opinion.
                           Justices Lytton and Carter concurred in the judgment and opinion.




                                              OPINION

¶1          The plaintiff, General Parker, filed suit against the defendants, members of the Peoria city
        council, the mayor of Peoria, and the city of Peoria municipal government, for alleged
        violations of the Open Meetings Act (Act) (5 ILCS 120/1 et seq. (West 2006)). The trial
        court granted the plaintiff’s motion for summary judgment and declared the defendants’ vote
        null and void. The court later awarded the plaintiff $3,000 in attorney fees. On appeal, the
        plaintiff argues that: (1) the court’s award of attorney fees was not reasonable; (2) he was
        entitled to a punitive damages award; and (3) the court improperly dismissed his request for
        monetary damages. We affirm in part and remand with directions.

¶2                                             FACTS
¶3          The plaintiff alleged in his complaint that the present case began on June 5, 2007, when
        the defendants approved a contract with an engineering firm to handle the combined sewer
        overflow project for the city of Peoria. The contract purportedly budgeted $20,000 to hire a
        minority engineering firm to assist minority contractors in the Peoria area bid competitively
        on the sewer project. The plaintiff asserts that the contract initially named Norris &
        Associates as the minority consultant; however, this provision was removed from the
        contract. The remaining contract was set for hearing at a later date.
¶4          The contract was next discussed at the October 9, 2007, city council meeting. In the days
        before the meeting, an agenda was posted that listed three options regarding the hiring of a
        minority engineering firm. Option A was the proposed contract to hire Norris & Associates.

                                                  -2-
       In the time before the meeting began, a new agenda was circulated that contained options A,
       B, and C, and added option D. The defendants voted to approve options B and D. Options
       B and D used city resources to educate minority contractors and did not require the use of an
       outside consultant.
¶5         The plaintiff filed his pro se complaint on December 11, 2007. Count I alleged that the
       defendants had violated the Act because they had not provided 48 hours’ notice on their
       posted agenda before they voted to accept option D. Count II alleged that the violation of the
       Act was part of a larger conspiracy engaged in by the defendants to avoid hiring minority
       contractors. Both counts requested compensatory damages, punitive damages, and attorney
       fees and costs, and further requested that the court void the defendants’ October 9, 2007,
       vote.
¶6         The defendants moved to dismiss the plaintiff’s complaint. The defendants’ motion
       alleged that the plaintiff had failed to state a claim because the Act did not create a cause of
       action for damages. Therefore, there was also not a cause of action for conspiracy to violate
       the Act. The trial court later denied the plaintiff’s requests for damages on both counts
       because they flowed “directly from the purported violation of the [Act].”
¶7         On February 21, 2008, the plaintiff filed a pro se motion for a preliminary injunction and
       temporary restraining order. On February 22, 2008, attorney Richard Fedder entered his
       appearance on behalf of the plaintiff. The court later denied the plaintiff’s motion for a
       preliminary injunction.
¶8         On January 9, 2009, the parties agreed to resolve the case on their cross-motions for
       summary judgment. The court granted summary judgment for the plaintiff and declared the
       defendants’ October 7, 2009, vote on options B and D null and void.
¶9         Thereafter, the plaintiff filed a motion for attorney fees, which alleged that he had
       incurred $22,435 in attorney fees during the pendency of the case. Fedder’s attached billing
       statement listed several charges for travel expenses, which were incurred when he had to
       travel from his office in Carbondale to meetings and hearings in Peoria.
¶ 10       In December 2009, the court heard arguments on the plaintiff’s motion for attorney fees.
       The court found that “there [was] no way that this case [was] deserving of $22,000 in
       attorney fees, meals, [and] travel time.” However, it ruled that it was awarding attorney fees
       and costs to the plaintiff, but it was “going to carefully go through the presentation” and
       “ascertain what [was] a fair amount of time.” The court also granted the plaintiff leave to file
       a supplemental motion for attorney fees. This motion requested an additional $5,195 for time
       Fedder spent replying to the defendants’ motion that opposed an award of attorney fees.
¶ 11       The court noted in its subsequent written order that there were some “unique
       circumstances attending this case and the request for attorney fees.” Specifically, Fedder
       billed 17.25 hours, or $3,105 in fees from December 1 to 6, 2007, for preparation of the
       complaint. However, the complaint was filed pro se and Fedder did not enter his appearance
       in the case until February 22, 2008. The court further noted that there were many immaterial
       facts that “seemed to bog down the entire case such that the attorney time was not efficiently
       used on the [p]laintiff’s side.” The court then denied any expenses or fees related to Fedder’s
       travel since there were no allegations that the plaintiff had to obtain counsel from some

                                                 -3-
       distance away. The court awarded the plaintiff $3,000 in “payment of reasonable attorney
       fees.” The plaintiff appeals.

¶ 12                                            ANALYSIS
¶ 13                                         I. Attorney Fees
¶ 14        The plaintiff first argues that the court’s award of attorney fees was in error. He further
       contends that the standard of review for a trial court’s award of attorney fees under a statute
       is de novo because it involves an issue of statutory construction. People v. Howard, 228 Ill.
       2d 428 (2008).
¶ 15        In the present case, we find that the appropriate standard of review for the trial court’s
       award of attorney fees is abuse of discretion. We do not find that an award of attorney fees
       under the Act presents an issue of law requiring de novo review because the plain language
       of the statute provides that “[t]he court may assess against any party *** reasonable
       attorney’s fees.” 5 ILCS 120/3(d) (West 2006). Such language requires an exercise of
       judgment on the part of the trial court. In further support, we note that similar permissive
       language used in the Freedom of Information Act (5 ILCS 140/11(i) (West 2006)) has been
       interpreted to mean that an award of attorney fees is left to the discretion of the trial court.
       See Lieber v. Board of Trustees of Southern Illinois University, 316 Ill. App. 3d 266 (2000).
       Therefore, we will only disturb the trial court’s award if it was an abuse of discretion.
¶ 16        From our review of the record, we have determined that the trial court abused its
       discretion when it awarded the plaintiff $3,000 of the over $22,000 in attorney fees he
       originally sought. The court made this significant reduction without making findings
       regarding the reasonableness of the fees and costs or the hours and rates used to calculate the
       fees request. See Advocate Health & Hospitals Corp. v. Heber, 355 Ill. App. 3d 1076 (2005)
       (trial court’s arbitrary award of attorney fees required remand for trial court to state the
       reasons for its decision).
¶ 17        A trial court should consider a variety of factors when presented with a prevailing party’s
       request for attorney fees. Kaiser v. MEPC American Properties, Inc., 164 Ill. App. 3d 978
       (1987). Such factors include: (1) the skill and standing of the attorney; (2) the nature of the
       case; (3) the novelty or difficulty of the issues and work involved; (4) the importance of the
       matter; (5) the degree of responsibility required; (6) the usual and customary charges for
       comparable services; (7) the benefit to the client; and (8) whether there was a reasonable
       connection between the fees charged and the amount involved in the litigation. Id.
¶ 18        In the present case, we were unable to discern from the record the trial court’s reasoning
       for its fee reduction. We note that the trial court did not specifically consider the fee
       determination factors, but stated that the plaintiff’s case was not deserving of $22,000. The
       trial court then awarded the plaintiff $3,000 without further explanation. Consequently, we
       remand this case to calculate reasonable attorney fees.

¶ 19                                  II. Punitive Damages
¶ 20      The plaintiff next argues that the court should have awarded punitive damages for the


                                                 -4-
       defendants’ violation of the Act. He concedes that the Act does not authorize an award of
       compensatory damages, but asserts that the court erred when it also denied his request for
       punitive damages. The plaintiff contends that a punitive damages award is necessary to deter
       the defendants from continuing to engage in their practice of discrimination.
¶ 21        We initially note that the Act does not provide for an award of punitive damages.
       However, the relief section of the Act states that the court
            “may grant such relief as it deems appropriate, including granting a relief by mandamus
            requiring that a meeting be open to the public, granting an injunction against future
            violations of this Act, ordering the public body to make available to the public such
            portion of the minutes of a meeting as is not authorized to be kept confidential under this
            Act, or declaring null and void any final action taken at a closed meeting in violation of
            this Act.” 5 ILCS 120/3(c) (West 2006).
       Our primary objective in interpreting the language of this section of the Act is to ascertain
       and give effect to the intent of the legislature. Blum v. Koster, 235 Ill. 2d 21 (2009). The most
       reliable indicator of such intent is the plain language of the statute. Southern Illinoisan v.
       Illinois Department of Public Health, 218 Ill. 2d 390 (2006). We review issues of statutory
       interpretation de novo. Id.
¶ 22        The legislature stated that the intent of the Act is to “ensure that the actions of public
       bodies be taken openly and that their deliberations be conducted openly.” 5 ILCS 120/1
       (West 2006). Thus, we find that the legislature did not intend the Act to penalize public
       bodies for violations.
¶ 23        The plain language of the remedies section of the Act does not provide for relief in the
       form of punitive damages. 5 ILCS 120/3 (West 2006). In comparison, the Freedom of
       Information Act explicitly provides civil penalties for willful and intentional violations. 5
       ILCS 140/11(j) (West 2010). If the legislature had intended for the violations of the Act to
       be corrected by the imposition of punitive damages or civil penalties, it could have noted
       them in the statute as it did in the Freedom of Information Act. Consequently, we find that
       the plain language of the Act provides the only remedies that were available to the plaintiff
       and that there was no other basis on which the court could have inferred a punitive damages
       remedy.

¶ 24                                III. Damage Claim Dismissal
¶ 25       Finally, the plaintiff argues that the court improperly dismissed his prayer for damages
       in both counts of his complaint. The plaintiff contends that such a sua sponte denial of
       damages undermines the adversarial process.
¶ 26       We review the trial court’s denial of damages made in response to a defendant’s motion
       to dismiss de novo. Glisson v. City of Marion, 188 Ill. 2d 211 (1999).
¶ 27       The record reflects that the court’s denial of damages was in response to the defendants’
       motion to dismiss. The defendants’ motion specifically requested that the court dismiss the
       plaintiff’s complaint because damages were not available for a violation of the Act and the
       plaintiff’s second count was derived from a violation of the Act. Therefore, we find that the


                                                 -5-
       court’s denial of damages was not sua sponte but was taken in response to the defendants’
       motion to dismiss.
¶ 28       Moreover, we note that the plaintiff conceded that the violation of the Act did not give
       rise to a claim for compensatory damages. The plaintiff’s concession on compensatory
       damages, combined with our finding regarding punitive damages, leads us to conclude that
       the court could not award monetary damages, aside from attorney fees and costs, to the
       plaintiff. Additionally, we find that the court correctly determined that the plaintiff’s second
       count did not raise an independent claim on which relief could be granted because it was
       derived from a violation of the Act. Therefore, we affirm the court’s denial of damages on
       both counts of the plaintiff’s complaint.

¶ 29                                    CONCLUSION
¶ 30      For the foregoing reasons, we affirm the Peoria County circuit court’s judgment denying
       punitive and compensatory damages. We remand to calculate reasonable attorney fees.

¶ 31      Affirmed in part and remanded with directions.




                                                 -6-
