‘Winning’ Failure To Mitigate Defense Doesn’t Confer ‘Prevailing Party’ Status On Restaurant Tenant In Lease Dispute Att’y Fee Hearing Dispute

Alecta v. BAB Operations, Inc., 2015 IL App (1st) 132916-U, a case I spotlighted earlier for its analysis of lease assignment liability rules, also provides a valuable discussion of contractual attorneys’ fees provisions basics. (See case’s bullet-points on lease assignment issues here: http://paulporvaznik.com/bagel-shop-successor-tenant-hit-for-rent-damages-and-attorneys-fees-in-commercial-lease-case-il-first-dist/8491)

The court affirmed a $70k-plus fee award for the landlord even though its damages were reduced by $20k for failing to mitigate damages. Code Section 9-213.1 (of the Illinois eviction or forcible statute) obligates a suing lessor to mitigate  its damages.  This means the landlord can’t sit back while rent payments become due and pile up without making measurable efforts to re-rent the premises.

On the attorneys’ fees issue, the law in Illinois is that the unsuccessful party usually has to pay his own fees unless there is a contract provision regarding attorneys’ fees or an applicable statute allows for fees.  In addition, a clearly worded fee-shifting clause should be enforced as written in favor of the prevailing party.

Q1: Who Is A Prevailing Party?

A: The one who is successful on a significant issue and achieves some benefit in bringing suit.  But, a litigant doesn’t have to succeed on all claims to be considered a prevailing party.

Where a case involves multiple claims and both parties win and lose on different claims, it may be that neither side is the prevailing party.

Q2: What Does Fee Petitioner Have To Show?

A:  The party petitioning for attorneys’ fees has the burden of presenting sufficient evidence to the trial court and a fee petition must specify (i) services performed, (ii) who performed them, (iii) time expended on the services, and (iv) the hourly rate charged by counsel;

Other fees factors for the trial court to consider include (a) skill and standing of attorneys, (b) nature of the case, (c) complexity of the issues, (d) importance of the case, and (e) degree of responsibility required to prosecute or defend a case.

A court considering a fee petition can also rely on its own experience.

¶¶ 72-74.

Here, the defendant lease assignee only prevailed on part of its failure to mitigate defense and didn’t file or win any counterclaims.  An affirmative defense differs from a counterclaim in that the former seeks to defeat a plaintiff’s claim while the latter (counterclaim) seeks affirmative relief from the plaintiff.  See ,e.g. Nadhir v. Salomon, 2011 IL App (1st) 110851, ¶¶34 – 38 (A “set-off” is a counterclaim; not an affirmative defense since the set-off defendant/counter-plaintiff seeks affirmative monetary relief against the plaintiff/counter-defendant.)

The court held that a $20,000 reduction off an over $80k  money damage verdict isn’t enough of a damages cut to make the defendant a prevailing party on the mitigation issue.  As a result, the trial court was within its discretion in awarding 80% of the plaintiff’s claimed fees.  Since the trial court found that the plaintiff prevailed on approximately 80% of its case (based on the partial reduction for failure to mitigate), the court’s fee award of over $70K was upheld.


The case gives a good refresher on fee-shifting factors an Illinois court considers as well as further refinement of who is/who isn’t a prevailing party in litigation.

An interesting question is what would have happened if the tenant filed a counterclaim (as opposed to affirmative defense) and was able to obtain a $20K damages reduction on a set-off theory.  I don’t know if it would have made a difference here since $20K off a $80K money award likely isn’t big enough to merit “prevailing party” status.


Mechanics’ Lien Doesn’t Secure Attorneys’ Fees and Costs – Utah Supreme Court

Q: Does a mechanics lien secure payment of attorneys’ fees and costs (in addition to the amount of improvements) incurred by a lien claimant under the Utah mechanic’s lien statute?

A: No.

In an earlier article (http://paulporvaznik.com/contractors-attorneys-under-illinois-mechanics-lien-law/502) I tried to harmonize some Illinois cases that discuss whether attorneys’ fees can be added to a mechanics lien amount.  It’s an important question since mechanics’ lien attorneys’ fees often end up astronomical; especially where there’s multiple litigants and the case drags on for several years.  

In Illinois, attorneys’ fees can only be assessed against a property “owner” but only after a finding that its failure to pay was “without just cause or right.” 770 ILCS 60/17.  Today’s post features a case from Utah, a place I’ve never practiced.  I deemed the case post-worthy because it highlights a lien issue likely to recur in mechanics’ lien cases.

2 Ton Plumbing, Inc. v. Thorgaard, 2015 WL 404592 (Utah 2015), involves the reversal of a contractor’s lien award of nearly $50K that included fees incurred over the course of a circuitous lien case involving multiple property owners and lenders.  In reversing the lien judgment, the Court expands on Utah’s lien statute (Utah Code Section 38-1a101-804 (the “Lien Act”)), as well as the philosophy underpinning mechanics lien law.

Under Utah’s Lien Act, a lien attaches to the value of services, labor, materials or equipment furnished or rented on an improvement or structure. It also allows a “successful party” to recover a “reasonable attorneys’ fee” which the court taxes as “costs” on the losing party. The Lien Act also allows the successful claimant to recover “costs” of preparing and recording the lien including reasonable attorneys’ fees incurred in preparing and recording the lien notice.

In gutting much of the lien amount, the Utah appeals court held that attorneys’ fees are normally only allowed by statute or contract.  If a lien claimant could always augment his lien amount with his attorneys’ fees, the amount claimed would be a “moving target” (the amount would keep going up indefinitely) and so frustrate the Lien Act’s purposes. ¶¶ 25, 35, 42.

The court also noted that since a party has no obligation to pay an opposite side’s attorneys’ fees in a lien case unless that party has lost the case, fees, by definition, can’t be included in a lien amount. Otherwise, it would be tantamount to putting the proverbial “cart before the horse” by allowing a lien claimant to tack on (future) fees before he was deemed a successful party. ¶¶ 38-42.


A decision worth noting for its universal applicability.  Since lien case fees are often substantial, it’s important to know what amounts can and can’t be included in a lien claim.  As 2 Ton shows, a failure to lien for the proper amount can have unfortunate fiscal ramifications.



Recovering Court Costs In Illinois Litigation – What’s Covered?

a-very-upset-aol-salesperson-just-called-us (photo credit: www.businessinsider.com)

 Huang v. CNA, 2012 Ill. App. 1st 1112243-U provided a useful discussion of recoverable court costs in the context of a malicious prosecution suit.

To prove malicious prosecution, a plaintiff must show (1) the commencement or continuance of a criminal or civil proceeding; (2) the proceeding terminated in the plaintiff’s favor; (3) absence of probable cause; (4) malice; and (5) damages.

If the defendant had probable cause to sue or to file criminal charges, regardless of whether the suit or charges was successful, this will completely defeat a malicious prosecution claim.

“Probable cause” in the context of dropped criminal charges means a state of facts that would lead a person of ordinary caution and prudence to believe – or to have a strong suspicion – that the person committed a crime.

The key inquiry is on the state of mind of the one commencing the prosecution, not the actual facts of the case or whether the accused was guilty or innocence, that determines probable cause. As long as there is a an “honest belief” that the accused is probably guilty of an offense, the probable cause standard is met (and a malicious prosecution claim will fail). ¶ 40.

Here, the evidence reflected the defendant’s probable cause for charging the plaintiff with trespassing: He refused to leave the premises after his employer fired him.  The Illinois Criminal Code defines trespassing as a person remaining on the land of another, after receiving notice from the owner or occupant to depart. 720 ILCS 5/21-3(a)(3).

Based on the evidence that the plaintiff was belligerent and insistent (on staying), the court found the defendant had a reasonable basis to charge the fired employee plaintiff. ¶¶ 42-45.

The next issue grappled with by the court concerned what costs could the defendant employer recover after defeating plaintiff’s claims. Code Section 5-108 and 109 (735 ILCS 5/5-108, 5-109) work in tandem to govern recoverable costs in litigation.

Code Section 5-109 allows the winning party to recover costs. Case law interprets Section 5-108’s “court costs”  to encompass filing fees, subpoena fees and statutory witness fees. While court costs are recoverable, “litigation costs” (e.g. photocopying, research costs, etc.) generally are not.

Supreme Court Rule 208(d) also gives the trial court discretion to tax deposition costs where the deposition is “necessarily used at trial.” But where a case is disposed of before trial (like on a motion for summary judgment or dismissal), deposition costs aren’t properly taxed to the losing party. ¶¶ 49-50.

Here, the court affirmed the filing fees and subpoena fees but reversed the cost award for defendant’s depositions. Since there was no trial, the defendant’s deposition costs shouldn’t have been assessed against the plaintiff.


– To establish probable cause in a malicious prosecution case, a defendant only needs to show an objective, honest belief that the plaintiff committed a crime;

– Deposition costs can be recovered by a winning litigant but only where the deposition is necessarily and actually used at trial;

– If a case is disposed of on a summary judgment or dismissal motion, the winner only can recover court filing fees, service/sheriff fees and subpoena costs.