                                         2018 IL App (3d) 160525

                               Opinion filed January 18, 2018
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                    2018

     KOTARA, LLC, an Illinois Limited         )  Appeal from the Circuit Court
     Liability Company, and BRAIDKOT,         )  of the 12th Judicial Circuit,
     LTD., an Illinois Corporation,           )  Will County, Illinois.
                                              )

            Plaintiffs-Appellants and Cross-  )

            Appellees,                        )

                                              )
            v.                                )  Appeal No. 3-16-0525, 3-16-0722
                                              )  Circuit No. 12-MR-978 

     ANN L. SCHNEIDER, in Her Official        )

     Capacity as Secretary of Transportation, )

                                              )
            Defendant-Appellee and Cross-     )
            Appellant.                        )  The Honorable
                                              )  Roger D. Rickmon,
                                              )  Judge, presiding.
     ____________________________________________________________________________

           PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.
           Justices Lytton and O’Brien concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                 OPINION

¶1          Plaintiffs, Kotara, LLC, and Braidkot, Ltd., filed a complaint in the trial court for

     mandamus relief, seeking to compel defendant, Ann L. Schneider, in her official capacity as

     Secretary of Transportation, to file an eminent domain action as to certain real property that was

     allegedly owned by plaintiffs and taken by defendant for a road-widening project. After a bench

     trial on the mandamus complaint, the trial court ruled in favor of defendant, denied plaintiffs’
     claim for mandamus relief, and awarded defendant costs of suit. Defendant filed a posttrial

     motion seeking to impose Illinois Supreme Court Rule 137 (eff. July 1, 2013) sanctions

     (frivolous litigation) against plaintiffs and to set the amount of costs awarded. The trial court

     denied defendant’s request for sanctions and set the award of costs at a much lower amount than

     defendant had requested. Both sides appeal. Plaintiffs challenge the trial court’s bench-trial

     ruling (appeal), and defendant challenges the trial court’s denial of its request for sanctions and

     the amount of costs that the trial court awarded (cross-appeal). We affirm the trial court’s

     judgment.

¶2                                                 FACTS

¶3          Plaintiffs owned certain real property (the whole property or the property) at the

     northwest corner of the intersection of Routes 53 and 113 in Braidwood, Will County, Illinois,

     upon which they operated a grocery store. Plaintiffs had purchased the property and the grocery

     store in November 2005. The property ran in a northeasterly direction from Route 113 and along

     the line of, and adjacent to, Route 53. The property had previously consisted of two separate

     adjoining parcels: parcel one and parcel two. Parcel two abutted the intersection, and parcel one

     was located behind parcel two. At the back of, or behind, parcel one was a portion of Oak Street,

     which had been vacated in that area, and behind that was what has been referred to in this case as

     the Polk-a-Dot property. When plaintiffs purchased the whole property in 2005, they received a

     deed for each parcel; a survey of the whole property, which had been prepared by Joseph

     Gentile, a licensed Illinois surveyor; and a title commitment. The pertinent deed provided that

     the rear boundary of the property (the northeast property line) was at the centerline of vacated

     Oak Street. In addition, the title commitment provided a survey endorsement, which allowed

     plaintiffs to have another survey prepared at the title company’s expense if any problems arose.


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¶4          In March 2007, defendant brought eminent domain proceedings against plaintiffs,

     seeking to take a portion of the property for a road-widening project. During the course of the

     eminent domain proceedings, a dispute arose between plaintiffs and defendant. Defendant had

     performed some additional construction work on a small area of land that was located in the rear,

     northeast corner of what plaintiffs believed to be their property. That area was outside the area of

     original taking and has been referred to in this case as the area of additional taking. In that area,

     defendant performed excavation and trenching work and installed a storm sewer, curb, gutter,

     and asphalt. When plaintiffs found out about the work, they requested that defendant either

     amend the complaint in the eminent domain proceedings or initiate separate eminent domain

     proceedings to ascertain and pay just compensation for the area of additional taking.

¶5          Defendant refused. Although defendant had previously offered plaintiffs compensation

     for the original taking based upon the whole property, including the area of additional taking,

     defendant took the position that there was a gap area or a disputed area in the rear of the property

     that plaintiffs either did not own or to which plaintiffs could not show ownership. Defendant’s

     position was based upon a plat of highways that had been prepared by defendant’s surveyor,

     Ronald Hodgen, an Illinois licensed surveyor, in about 2005. Hodgen had located the centerline

     of vacated Oak Street in the field by taking the dimensions that were provided in an older plat for

     the distance between the section line (a surveying point of reference) and the centerline of

     vacated Oak Street and by verifying those dimensions with the dimensions provided from the

     section line in the Polk-a-Dot deed. Based upon his research and his work in the field, Hodgen

     determined that the rear property line of plaintiffs’ property was actually 25 feet further

     southwest in relation to Route 113 than the rear property line that had been drawn in the Gentile

     survey. In short, Hodgen determined that the abutting property line of the Polk-a-Dot property


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     was at the northerly right-of-way line of vacated Oak Street and the rear property line of

     plaintiffs’ property was at the centerline of vacated Oak Street. Thus, according to Hodgen, there

     was a gap area or disputed area about 25 feet wide that was not covered by either property’s

     deed, although plaintiffs were occupying and maintaining the gap area and plaintiffs and their

     predecessor in title had paid the property taxes on that area. The gap area ran from the centerline

     of vacated Oak Street (the rear boundary line of plaintiffs’ property) to the northerly right-of-way

     line of vacated Oak Street (the abutting property line of the Polk-a-Dot property). Gentile had not

     had the deed for the Polk-a-Dot property when he had prepared his survey.

¶6          Plaintiffs and defendant were unable to resolve their dispute, and in May 2012, plaintiffs

     filed the instant mandamus action against defendant, seeking to have the trial court order

     defendant to initiate separate eminent domain proceedings for the area of additional taking. In

     August 2015, the case proceeded to a bench trial, which took multiple days to complete. During

     the course of the trial, the parties presented the testimony of several witnesses and numerous

     exhibits were admitted into evidence, including the deeds for the two parcels, Gentile’s survey,

     Hodgen’s plat of highways, some of the prior plats, and defendant’s procedure manual, among

     other things. In addition to establishing the information set forth above, the evidence presented at

     the trial established that Gentile, Hodgen, some of the workers involved in the construction

     project, and certain others all observed a concrete right-of-way marker in or near the area of

     additional taking where the construction work was performed (the construction work was

     performed between the right-of-way marker and the pavement of Route 53). The right of way

     was shown on both Gentile’s survey and Hodgen’s plat, although the actual marker had

     disappeared from the location prior to the trial.




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¶7          As could be expected, the main thrust of plaintiffs’ case was the testimony and survey of

     Gentile. Gentile testified in great detail as to the methods he had used in completing the survey,

     the conclusions he had reached, and the reasons for those conclusions. In sum, Gentile opined

     that his survey correctly showed the rear property line of plaintiffs’ property and that plaintiffs

     owned the whole property, including the disputed area and the area of additional taking. Gentile

     acknowledged, however, that he did not have the deed to the Polk-a-Dot property when he

     completed his survey and stated that when he learned there was a possible dispute over the rear

     boundary line of the property, he contacted the title company to ask if they would revise the legal

     description of the property to eliminate the references to the centerline of vacated Oak Street (to

     essentially comply with the amount of property that plaintiffs were actually occupying). A title

     company employee confirmed that plaintiffs’ attorney had made a similar call or e-mail to the

     title company to request that the legal description be revised. Unbeknownst to Gentile, the title

     company refused that request. Gentile also acknowledged during his testimony that his survey

     showed a right of way for Route 53 in or near the area of additional taking.

¶8          The thrust of defendant’s case, on the other hand, was the testimony of Hodgen and the

     plat of highways he had prepared. Like Gentile, Hodgen testified at length as to the methods he

     had used in completing his plat of highways, the conclusions he had reached, and the reasons for

     those conclusions. In short, Hodgen opined that his plat of highways correctly showed the rear

     property line of plaintiffs’ property, that the pertinent deed did not include the disputed area or

     the area of additional taking, that Gentile’s survey was incorrect, and that there was a right of

     way for Route 53 in or near the area of additional taking.

¶9          After the evidence in the case had been concluded, the parties submitted written closing

     arguments, and the trial court took the case under advisement. In August 2016, the trial court


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       issued its written ruling finding for defendant and rejecting plaintiffs’ claim for mandamus relief.

       In reaching that decision, the trial court found that Hodgen’s methodology was more reliable and

       accurate than Gentile’s and concluded, therefore, that plaintiffs had not established a clear right

       to mandamus relief because a substantial issue existed with regard to plaintiffs’ ownership of the

       disputed area (and, presumably, the area of additional taking). The trial court also found that the

       record was clear that the area of additional taking was within defendant’s preexisting right of

       way. As part of its ruling, the trial court awarded defendant its “[c]osts of suit.”

¶ 10           Following the ruling, defendant filed a posttrial motion to set the amount of costs

       awarded and to impose Rule 137 sanctions against plaintiffs for filing a frivolous mandamus

       action and for bringing the mandamus action for an improper purpose. After a hearing, the trial

       court denied defendant’s request to set the amount of costs at over $11,000 and, instead, set the

       amount of costs at just over $200. The trial court also denied defendant’s request for sanctions.

       Both sides appealed.

¶ 11                                                ANALYSIS

¶ 12                            I. Denial of Plaintiffs’ Claim for Mandamus Relief

¶ 13           On appeal, plaintiffs argue that the trial court erred after a bench trial in ruling for

       defendant on plaintiffs’ complaint for mandamus relief. Plaintiffs assert that the trial court’s

       ruling was based upon an incorrect finding that plaintiffs had failed to establish a clear right to

       mandamus relief, a finding that plaintiffs contend was against the manifest weight of the

       evidence. In support of their position on this issue, plaintiffs maintain that (1) the trial court, in

       making its decision, applied the wrong legal standard for a case such as this—a boundary-line

       dispute where one of the parties was claiming an ambiguity in the legal description of the

       property; (2) in this type of case, the intent of the parties to the underlying conveyance controls


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       and the trial court’s role was to ascertain, and give effect to, that intent; (3) because the deed (or

       deeds) in this case was not ambiguous, the trial court should have ascertained the intent of the

       parties solely from the deed and should have found based upon the deed that plaintiffs owned

       both the disputed area and the area of additional taking and that plaintiffs had a clear right to

       mandamus relief; (4) even if the trial court implicitly found that the deed was ambiguous, it

       should have determined the intent of the parties from the legal description as a whole, the

       extrinsic evidence, and the facts and circumstances of the conveyance and found based upon the

       manifest weight of that evidence that plaintiffs owned both the disputed area and the area of

       additional taking and that plaintiffs had a clear right to mandamus relief; and (5) many of the

       trial court’s material conclusions, especially those related to the trial court’s assessment of

       Gentile’s and Hodgen’s credibility, were either not supported by the record or were contradicted

       by the record. For all of the reasons stated, plaintiffs ask that we reverse the trial court’s bench-

       trial ruling and order the trial court to issue an order of mandamus requiring defendant to initiate

       eminent domain proceedings as to the area of additional taking.

¶ 14           Defendant argues that the trial court’s bench-trial ruling was proper and should be

       upheld. Defendant asserts that the trial court’s finding—that plaintiffs had failed to establish a

       clear right to mandamus relief—was not against the manifest weight of the evidence. In support

       of that assertion, defendant contends that (1) plaintiffs’ argument is contrary to the law and not

       supported by the evidence; (2) by acknowledging that an inherent inconsistency exists in the

       legal description of the property and by arguing parole evidence is necessary to resolve that

       inconsistency, plaintiffs have admitted they do not have clear ownership of the area of additional

       taking; (3) plaintiffs are essentially trying to quiet title to the rear boundary line of their property,

       which is not proper in a mandamus action, especially when the neighboring landowner is not


                                                           7

        involved; (4) the trial court correctly found that Hodgen’s testimony was more credible and

        reliable that Gentile’s and correctly relied on Hodgen’s testimony in determining that plaintiffs

        did not own the area of additional taking and did not have a clear right to mandamus relief; and

        (5) the trial court correctly found that the work complained of in this case was performed in

        defendant’s own right of way, which negated plaintiffs’ claim for mandamus relief. For all the

        reasons set forth, defendant asks that we affirm the trial court’s bench-trial ruling in defendant’s

        favor on plaintiffs’ mandamus complaint.

¶ 15	           Mandamus relief is an extraordinary remedy that is used to compel a public officer or

        body to perform a nondiscretionary official duty. McFatridge v. Madigan, 2013 IL 113676, ¶ 17.

        In order to obtain mandamus relief, the plaintiff must establish three elements: (1) that the

        plaintiff has a clear right to the relief requested, (2) that the public officer has a clear duty to act,

        and (3) that the public officer has clear authority to comply with an order granting mandamus

        relief. Id. As the elements indicate, mandamus relief may not be granted to direct the manner in

        which a discretionary act is performed, even if that act was performed in an erroneous manner.

        Turner-El v. West, 349 Ill. App. 3d 475, 479-80 (2004). In addition, and pertinent to the context

        of the present case, a complaint for mandamus relief is an appropriate mechanism to use to try to

        compel the Illinois Department of Transportation to file an eminent domain action. See

        Rosenthal v. City of Crystal Lake, 171 Ill. App. 3d 428, 437 (1988). A trial court’s ruling on a

        complaint for mandamus relief will not be reversed on appeal unless it is against the manifest

        weight of the evidence. 1350 Lake Shore Associates v. Randall, 401 Ill. App. 3d 96, 102 (2010).

        A finding is against the manifest weight of the evidence only if the opposite conclusion is clearly

        evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence presented.

        Id. To the extent, however, that we must determine whether the trial court applied the correct


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       legal standard in making its decision, that question is one of law, which is subject to de novo

       review on appeal. See id.

¶ 16          In the present case, contrary to plaintiffs’ assertion, we find no indication that the trial

       court applied the wrong legal standard. Rather, plaintiffs confuse this action with an action

       against the adjacent property owner to establish the rear boundary line of the property. In this

       case, a mandamus action, plaintiffs had to show, among other things, that they had a clear right

       to mandamus relief. See McFatridge, 2013 IL 113676, ¶ 17. As the trial court found, plaintiffs

       failed in that burden. The evidence presented at the bench trial established that plaintiffs’

       ownership of the disputed area and the area of additional taking was not clear. Furthermore, there

       was ample evidence presented to suggest that the work in question was confined to the area of

       defendant’s preexisting right of way. We conclude, therefore, that the trial court’s determination

       on the mandamus complaint was not against the manifest weight of the evidence and must be

       affirmed. See 1350 Lake Shore Associates, 401 Ill. App. 3d at 102.

¶ 17           II. Denial of Defendant’s Request for Illinois Supreme Court Rule 137 Sanctions

¶ 18          As its first point of contention on cross-appeal, defendant argues that the trial court erred

       in denying defendant’s request for Illinois Supreme Court Rule 137 sanctions against plaintiffs.

       Defendant asserts that sanctions were warranted because the record shows that plaintiffs were

       well aware before this mandamus action was filed, or at the very least, during the course of this

       mandamus action, that they could not show ownership of the disputed area and did not have a

       clear right to mandamus relief. The record also shows, according to defendant, that plaintiffs

       brought this mandamus action for an improper purpose—to use as leverage against, and to

       harass, defendant. Defendant asserts further that the trial court’s denial of defendant’s sanction

       request was inconsistent with, and contrary to, the findings that the trial court made in its bench­


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       trial ruling. For the reasons stated, defendant asks us to reverse the trial court’s ruling on

       defendant’s sanction request and to award defendant the amount of sanctions that it requested or,

       in the alternative, to remand this case for the trial court to determine the appropriate amount of

       sanctions to impose.

¶ 19          Plaintiffs argue that the trial court’s sanction ruling was proper and should be upheld.

       Plaintiffs assert that defendant’s sanction motion was based on untrue assertions that were not

       supported by the record. Plaintiffs maintain, therefore, that the trial court’s denial of defendant’s

       request for Rule 137 sanctions should be affirmed.

¶ 20          Illinois Supreme Court Rule 137’s purpose is to prevent the filing of frivolous and false

       lawsuits. Peterson v. Randhava, 313 Ill. App. 3d 1, 7 (2000). Rule 137 authorizes a court to

       impose sanctions against a party or attorney who files a motion or pleading that does not have a

       well-grounded factual basis; that is not supported by existing law; that lacks a good-faith basis

       for a modification, reversal, or extension of the law; or that is brought for an improper purpose.

       Ill. S. Ct. R. 137 (eff. July 1, 2013); Peterson, 313 Ill. App. 3d at 6-7. A party who requests

       sanctions bears the burden of proving that sanctions are warranted. See Carus Chemical Co. v.

       Calciquest, Inc., 341 Ill. App. 3d 897, 901 (2003). A trial court’s ruling on a request for Rule 137

       sanctions will generally not be reversed on appeal absent an abuse of discretion. Id. The

       threshold for finding an abuse of discretion is a high one and will not be overcome unless it can

       be said that the trial court’s ruling was arbitrary, fanciful, or unreasonable or that no reasonable

       person would have taken the view adopted by the trial court. See Blum v. Koster, 235 Ill. 2d 21,

       36 (2009); In re Leona W., 228 Ill. 2d 439, 460 (2008).

¶ 21          Having reviewed the record in the present case, we find that the trial court did not

       commit an abuse of discretion by denying defendant’s request for Rule 137 sanctions against


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       plaintiffs. Contrary to what defendant suggests, the trial court did not find as part of its bench-

       trial ruling that plaintiffs’ case was frivolous or that it was brought for an improper purpose.

       Defendant has attempted to broaden the trial court’s findings to justify an award of sanctions.

       This was a difficult case with an unusual set of facts, and we cannot say that, under the present

       circumstances, the trial court’s ruling on sanctions was arbitrary, fanciful, or unreasonable, or

       that no reasonable person would have taken the view adopted by the trial court. See Blum, 235

       Ill. 2d at 36; Leona W., 228 Ill. 2d at 460. We, therefore, reject defendant’s argument on this

       issue.

¶ 22                       III. Denial of the Amount of Costs Requested by Defendant

¶ 23            As its final contention on cross-appeal, defendant argues that the trial court erred in the

       amount of costs it awarded defendant. Defendant asserts that the trial court misinterpreted the

       definition of costs as provided for in section 14-105 of the mandamus statute (735 ILCS 5/14­

       105 (West 2014)) and should have interpreted that term in a much broader manner to include all

       costs actually incurred, consistent with the way the term is interpreted in inverse condemnation

       proceedings (see 735 ILCS 30/10-5-65 (West 2014)) and in proceedings in federal court.

       Defendant asks, therefore, that we reverse the trial court’s order on costs and award the amount

       of costs that defendant requested or, in the alternative, that we remand this case for the trial court

       to determine the appropriate amount of costs to award.

¶ 24            Plaintiffs argue that the trial court’s ruling on the amount of costs was proper and should

       be upheld. Plaintiffs assert that the trial court correctly interpreted the term, “costs,” in the

       mandamus statute in a narrow manner as was consistent with the interpretation that is given to

       the term under section 5-109 of the Code of Civil Procedure (Code) (735 ILCS 5/5-109 (West




                                                          11 

       2014)). Plaintiffs ask, therefore, that we affirm the trial court’s order as to the amount of costs

       awarded to defendant.

¶ 25           Statutes allowing for the recovery of costs are in derogation of common law and must be

       narrowly construed. Vicencio v. Lincoln-Way Builders, Inc., 204 Ill. 2d 295, 300 (2003). A party

       recovering costs under a statute or supreme court rule, therefore, may only recover those costs

       that the statute or rule specifically allows. See id.; Boehm v. Ramey, 329 Ill. App. 3d 357, 366

       (2002). A trial court’s award of costs in a civil case will generally not be reversed on appeal

       absent an abuse of discretion. Boehm, 329 Ill. App. 3d at 366. The resolution of this particular

       issue, however, turns on an interpretation of the costs provision of the mandamus statute. The

       interpretation of a statute is subject to de novo review on appeal. Gaffney v. Board of Trustees of

       the Orland Fire Protection District, 2012 IL 110012, ¶ 50.

¶ 26           When interpreting a statute, we must be mindful of the rules of statutory construction.

       The fundamental rule of statutory construction is to ascertain and give effect to the intent of the

       legislature. Id. ¶ 56. The most reliable indicator of that intent is the language of the statute itself.

       Id. In determining the plain meaning of statutory terms, a court should consider the statute in its

       entirety and keep in mind the subject the statute addresses and the apparent intent of the

       legislature in enacting the statute. Blum, 235 Ill. 2d at 29; 5 ILCS 70/1.01 (West 2014) (in

       construing a statute, “[a]ll general provisions, terms, phrases and expressions shall be liberally

       construed in order that the true intent and meaning of the General Assembly may be fully carried

       out”). If the statutory language is clear and unambiguous, it must be applied as written, without

       resorting to further aids of statutory construction. Gaffney, 2012 IL 110012, ¶ 56. A court may

       not depart from the plain language of the statute and read into it exceptions, limitations, or

       conditions that are not consistent with the express legislative intent. Id.


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¶ 27          As the parties’ arguments indicate, the relevant statutes on this issue are section 14-105

       of the mandamus statute, section 5-109 of the Code, and section 10-5-65 of the Eminent Domain

       Act. Those statutes provide as follows:

                              “§ 14-105. Judgment—Costs. If judgment is entered in favor of the

                      plaintiff, the plaintiff shall recover damages and costs. If judgment is entered in

                      favor of the defendant, the defendant shall recover costs.” 735 ILCS 5/14-105

                      (West 2014).

                              “§ 5-109. Defendant to recover costs. If any person sues in any court of

                      this state, in any action, wherein the plaintiff may have costs in case judgment is

                      entered in favor of the plaintiff and the action is voluntarily dismissed by the

                      plaintiff or is dismissed for want of prosecution or judgment is entered against the

                      plaintiff, then judgment shall be entered in favor of defendant to recover

                      defendant’s costs against the plaintiff (except against executors or administrators

                      prosecuting in the right of their testator or intestate), to be taxed, and the costs

                      shall be recovered of the plaintiff, by like process as the plaintiff may have had

                      against the defendant, in case judgment had been entered for such plaintiff.” 735

                      ILCS 5/5-109 (West 2014).

                              “§ 10-5-65. Reimbursement; inverse condemnation. When the

                      condemning authority is required by a court to initiate condemnation proceedings

                      for the actual physical taking of real property, the court rendering judgment for

                      the property owner and awarding just compensation for the taking shall determine

                      and award or allow to the property owner, as part of that judgment or award,

                      further sums as will, in the opinion of the court, reimburse the property owner for


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                      the owner’s reasonable costs, disbursements, and expenses, including reasonable

                      attorney, appraisal, and engineering fees actually incurred by the property owner

                      in those proceedings.” 735 ILCS 30/10-5-65 (West 2014).

¶ 28          When we compare the language of all three statutes, it becomes immediately apparent

       that the language of section 10-5-65 of the Eminent Domain Act was drafted to apply much more

       broadly than the other two statutes, as section 10-5-65 allows for the recovery of “reasonable

       costs, disbursements, and expenses” and specifies some of the types of items that may be

       recovered. Id. Sections 14-105 and 5-109, on the other hand, which are both part of the Code of

       Civil Procedure, were drafted much more narrowly and allow only for the recovery of “costs”

       (735 ILCS 5/5-109, 14-105 (West 2014)), not for the recovery of “costs, disbursements, and

       expenses” (735 ILCS 30/10-5-65 (West 2014)). In addition, as the case law indicates, costs

       statutes must be narrowly construed. See Vicencio, 204 Ill. 2d at 300. Applying a narrow

       construction in the present case, we find that the trial court correctly awarded defendant only its

       filing fee and summons costs. See id. A broader application of the mandamus statute’s costs

       provision must come from the legislature and not from the courts. See Gaffney, 2012 IL 110012,

       ¶ 56 (a court will not depart from the plain language of the statute and read into it exceptions,

       limitations, or conditions that are not consistent with the express legislative intent).

¶ 29                                              CONCLUSION

¶ 30          For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

¶ 31          Affirmed.




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