Lopez v. Rendered Servs., Inc.

2019 IL App (1st) 181869

143 N.E.3d 839

436 Ill.Dec. 1010

Roberto LOPEZ, Plaintiff-Appellee,

v.RENDERED SERVICES, INC., and Hector M. Lopez, Defendants-Appellants

No. 1-18-1869

Appellate Court of Illinois, First District, THIRD DIVISION.

July 31, 2019

Donald S. Rothschild, Brian M. Dougherty, and Keith R. Krider, of Goldstine, Skrodzki, Russian, Nemec and Hoff, Ltd., of Burr Ridge, for appellants.

Susan Ritacca, of Chicago, for appellee.

JUSTICE ELLIS delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Roberto Lopez sued defendants Rendered Services, Inc. and one of its agents, Hector Lopez, for towing his vehicle in violation of the Illinois Vehicle Code. Plaintiff prevailed at trial. Defendants do not challenge that victory. But they do appeal the award of attorney fees that followed.

¶ 2 Plaintiff persuaded the trial court that a provision in Chapter 4 of the Vehicle Code allowed him an award of attorney fees as a prevailing party. Defendants say, first, that the governing portion of the Vehicle Code is Chapter 18a, which does not permit an award of attorney fees. Second, defendants say that even if the provision in Chapter 4 were applicable, on its face it permits an award of attorney fees only against the property owner who initiated the towing of the car, and not the company that performed the towing service.

¶ 3 We agree with defendant's second argument and thus need not reach the first. We reverse the award of attorney fees.

¶ 4 BACKGROUND

¶ 5 Although this case proceeded to a bench trial, defendants did not include a copy of the trial transcript in the record. So some of the facts that follow are drawn from the complaint or the trial court's written order awarding attorney fees, rather than the actual trial evidence. In any event, we have more than a sufficient basis, from the trial court's fee order alone, to resolve this matter.

¶ 6 On April 6, 2016, plaintiff parked his vehicle in a private parking lot at 2804 West Flournoy Street in Chicago. Around noon, Larry Chalmers, a person with lawful access to plaintiff's car and who was present at the parking lot, saw a tow truck operated by defendants "drive over the curb" and into the parking lot to begin towing plaintiff's car. Chalmers "stepped in front of the tow truck to present himself and to notify [defendant Lopez] that he was willing and able to relocate the vehicle." But Lopez ignored Chalmers's entreaties and continued on, nearly running Chalmers over in the process.

¶ 7 When plaintiff went to defendants' tow yard to get his car, he was told it would not be released unless he paid $218.50. Upon retrieval, plaintiff inspected his car and saw that the front right bumper had been damaged. Plaintiff took the car to a repair shop, which determined that the car had sustained $837.96 in damage.

¶ 8 In September 2017, plaintiff filed this lawsuit. Count I was a claim under section 4-203(f)(3) of the Vehicle Code for "Unlawful Removal of Vehicle." See 625 ILCS 5/4-203(f)(3) (West 2016). His theory was that defendants violated section 4-203(f) by towing away his vehicle even though a permitted user, Chalmers, was present and willing and able to move it. Count II was a claim for conversion. Count III was a claim for detinue.

¶ 9 Following a bench trial, the court entered judgment in favor of plaintiff on count I "for the reasons stated in open court." The court granted plaintiff leave to petition for attorney fees.

¶ 10 In February 2018, plaintiff filed his fee petition, arguing that liability was based on section 4-203(f) of the Vehicle Code, and that section allows an award of attorney fees to the prevailing party. In response, defendants argued the same two points that they raise on appeal. First, this dispute was governed by Chapter 18a of the Vehicle Code, which contains no provision for awarding attorney fees. Second, even if section 4-203(f) applied, the attorney-fee provision in that section applies only against the property owner, not the towing company.

¶ 11 The court granted plaintiff's fee petition. The court began by clarifying that it based liability on both sections 4-203(f)(3) and 18a-302 of the Vehicle Code (even though plaintiff only pleaded a violation of section 4-203(f)(3) ). Id. §§ 4-203(f)(3), 18a-302. As to the section 4-203(f) violation, the court noted that both testimony and video evidence had proven that plaintiff's friend, Chalmers, rushed toward defendants' tow truck to claim the vehicle before it was hauled away, and defendants made "little if any effort" to determine whether Chalmers was a permitted user of that vehicle.

¶ 12 Finding the attorney-fee provision in section 4-203(f)(10) applicable, the trial court awarded plaintiff $6,125 in attorney fees. This appeal followed.

¶ 13 ANALYSIS

¶ 14 The first argument on appeal concerns the intersection of two different statutory schemes contained in the Vehicle Code. One is found in Chapter 18a, the other in Chapter 4. Chapter 18a does not provide for the award of attorney fees, while Chapter 4, in this context, does. See id. § 4-203(f)(10).

¶ 15 But defendants' second argument is that, even if Chapter 4 applies, along with its fee-shifting provision in section 4-203(f)(10), its language does not allow for the award of attorney fees against the towing company and its employee, the only defendants in this case. As we find that issue dispositive, we will move straight to that question. The interpretation of this statutory fee provision is a question of law we review de novo . Thomann v. Department of State Police , 2016 IL App (4th) 150936, ¶ 25, 408 Ill.Dec. 829, 66 N.E.3d 834.

¶ 16 Illinois generally follows the "American Rule," providing that, absent statutory authority (or contractual language) to the contrary, each party to litigation must bear its own attorney fees and costs. Morris B. Chapman & Associates, Ltd. v. Kitzman , 193 Ill. 2d 560, 572, 251 Ill.Dec. 141, 739 N.E.2d 1263 (2000). Statutes permitting the recovery of attorney fees are thus in derogation of the common law and must be strictly construed. Thomann , 2016 IL App (4th) 150936, ¶ 26, 408 Ill.Dec. 829, 66 N.E.3d 834 ; Housing Authority of Champaign County v. Lyles , 395 Ill. App. 3d 1036, 1038-39, 335 Ill.Dec. 463, 918 N.E.2d 1276 (2009) ; Negro Nest, LLC v. Mid-Northern Management, Inc. , 362 Ill. App. 3d 640, 642, 298 Ill.Dec. 436, 839 N.E.2d 1083 (2005).

¶ 17 " ‘A statute, to be construed strictly, should be confined to such subjects or applications as are obviously within its terms and purposes.’ " Erlenbush v. Largent , 353 Ill. App. 3d 949, 952, 289 Ill.Dec. 386, 819 N.E.2d 1186 (2004) (quoting Warner v. King , 267 Ill. 82, 86, 107 N.E. 837 (1915) ). Our task, then, is to determine whether section 4-203(f) obviously includes within its fee-shifting provision an award of attorney fees against the towing company.

¶ 18 In any event, for reasons we explain below, regardless of whether we employ a strict construction or simply undertake our traditional task of determining the legislature's intent based on the plain language, we would reach the same interpretation of this statutory provision.

¶ 19 Chapter 4, article II of the Vehicle Code governs "Abandoned, Lost, Stolen or Unclaimed Vehicles." 625 ILCS 5/ch. 4, art. II (West 2016). Section 4-203, within article II, concerns "Removal of motor vehicles or other vehicles; Towing or hauling away." Id. § 4-203.

¶ 20 Specifically, subsection (f) of section 4-203 provides, in pertinent part, as follows:

"Except as provided in Chapter 18a of this Code, the owner or lessor of privately owned real property within this State, or any person authorized by such owner or lessor , * * * may cause any motor vehicle abandoned or left unattended upon such property without permission to be removed by a towing service without liability for the costs of removal, transportation or storage or damage caused by such removal, transportation or storage." (Emphases added.) Id. § 4-203(f).

¶ 21 This provision then lists numerous "conditions and restrictions" on the towing of such a vehicle. Id. As noted above, the circuit court found that defendants violated one of them, namely defendants' failure to disconnect and release the vehicle to its owner or user if that individual shows up before the vehicle is hauled away. See Id. § 4-203(f)(3).

¶ 22 Subsection (f)(10) contains the fee-shifting provision:

"When an authorized person improperly causes a motor vehicle to be removed, such person shall be liable to the owner or lessee of the vehicle for the cost or removal, transportation and storage, any damages resulting from the removal, transportation and storage, attorney's fee and court costs." (Emphasis added.) Id. § 4-203(f)(10).

¶ 23 Defendants say the towing company is not "an authorized person" who "improperly causes a motor vehicle to be removed." Id. They take us back to the opening sentence of section 4-203(f), quoted above, which permits "the owner or lessor of privately owned real property within this State, or any person authorized by such owner or lessor" to "cause any motor vehicle abandoned or left unattended upon such property without permission to be removed by a towing service." Id. § 4-203(f). The "authorized person" is the landowner or lessor, or any person authorized by that owner or lessor; that individual does not remove the vehicle personally but, instead, "causes" the vehicle "to be removed by a towing service." Under no circumstances, then, could the "towing service" itself—defendants here—be considered the "authorized person" who "causes" the towing. Thus, because fees may be awarded only against the "authorized person" who "causes" the vehicle to be towed, and a towing company is not such an "authorized person," the fee provision cannot be enforced against defendants.

¶ 24 We agree. Defendants' interpretation squares the permissive language that begins section 4-203(f) —an explicit grant of authority for a private landowner or its authorized person to "cause" a trespassing...