Leland Stahelin and JES Ventures owned property that bordered the Morton Arboretum in DuPage County, Illinois. The county forest preserve and the arboretum wanted to preserve the property in its undeveloped state. After purchase negotiations failed, the forest preserve sued the owners in a condemnation suit, then withdrew the suit. At the same time, the forest preserve passed an ordinance that stated “the acquisition of the property in the future would be important to furthering the statutory purposes of the [District].”
The owners claimed they could not develop the property for commercial purposes because the ordinance stated the government’s intention to condemn it. So the owners sued the forest preserve and the arboretum under the due process clause of the Fifth Amendment of the U.S. Constitution for engaging in a conspiracy to take the land. The trial court dismissed that lawsuit. The arboretum then asked the trial court to award attorney fees. Meanwhile, the owners appealed the dismissal, but the appellate court affirmed. The owners’ petition for leave to appeal to the Illinois Supreme Court was denied. The arboretum then asked for an award of its attorney fees incurred in defending the owners’ appeal.
The trial court awarded the arboretum its fees under Section 1988 [federal civil rights statute] for defending the appeal, but not for defending the case in the trial court. The owners then appealed the award of attorney fees.
The Second District Illinois Appellate Court agreed that the award of attorney fees under Section 1988 was appropriate. The court stated that the owners’ first appeal was frivolous, and that they should have known it, so it was not an abuse of discretion to award the arboretum’s attorney fees.
The owners then argued that an award of appellate attorney fees was improper because the arboretum did not request the fees in the appellate court under Illinois Supreme Court Rule 375 [allowing sanctions for a frivolous appeal]. But the appellate court ruled the owners forfeited this argument because they raised it for the first time on reconsideration in the trial court. The appellate court also stated, even if there had not been a forfeiture, Rule 375 did not provide an exclusive method for getting a fee award. Here is what the appellate court said:
Even if we had found no forfeiture, plaintiffs’ argument lacks merit. While it is true that Rule 375 does provide a path for the award of attorney fees associated with defending against a frivolous appeal, it is not the only route, and the failure to file a motion under Rule 375 does not preclude a section 1988 motion. Section 1988 provides another mechanism for fee-shifting where a litigation matter is deemed frivolous, and it applies to all phases of litigation, at the trial and appellate levels.