Berlak v. Villa Scalabrini Home for the Aged, Inc.

• Decision Date: 20 September 1996
• Docket Number: No. 1-94-2058,1-94-2058
• Parties: , 219 Ill.Dec. 601 Lillian Burnell BERLAK, as Executrix of the Estate of Pauline Haas, deceased, Plaintiff-Appellee, Cross-Appellant, v. VILLA SCALABRINI HOME FOR THE AGED, INC., a Not for Profit Corporation, Father Lawrence Cozzi, Margaret Becker, and Catholic Bishop of Chicago, a Corporation Sole, Defendants-Appellants, Cross-Appellees.
• Court: United States Appellate Court of Illinois

Page 768

671 N.E.2d 768

284 Ill.App.3d 231, 219 Ill.Dec. 601

Lillian Burnell BERLAK, as Executrix of the Estate of Pauline Haas, deceased, Plaintiff-Appellee, Cross-Appellant, v. VILLA SCALABRINI HOME FOR THE AGED, INC., a Not for Profit Corporation, Father Lawrence Cozzi, Margaret Becker, and Catholic Bishop of Chicago, a Corporation Sole Defendants-Appellants, Cross-Appellees.

No. 1-94-2058.

Appellate Court of Illinois First District, Fifth Division.

Sept. 20, 1996.

Rehearing Denied Oct. 30, 1996.

Robert C. Yelton III, Michael G. Patrizio, Dowd & Dowd, Ltd., Chicago, for Defendants-Appellants/Cross-Appellees.

Sweeney and Riman, Ltd., Chicago (Michele J. Braun-Pritzker, Eric Brodie, of counsel), for Plaintiff-Appellee/Cross-Appellant.

Justice GORDON delivered the opinion of the court:

Lillian Burnell Berlak, on behalf of her deceased mother, Pauline Haas, brought the instant action alleging negligence and violation of the Nursing Home Care Reform Act of 1979 (the Nursing Home Care Reform Act) (Ill.Rev.Stat.1985, ch. 111 1/2, par. 4151-101 et seq. now at 210 ILCS 45/1-101 et seq. (West 1994)) to recover for the personal injuries sustained by Haas on June 15, 1986 while she was a resident at Villa Scalabrini Home for the Aged. Named as defendants were Villa Scalabrini Home for the Aged, Inc. (Villa Scalabrini), the nursing home; Father Lawrence Cozzi, the administrator of Villa Scalabrini; Margaret Becker, the director of nurses at Villa Scalabrini; and the Catholic Bishop of Chicago, a corporation sole, the owner of the premises. At trial, at the conclusion of the plaintiff's case, a directed verdict was granted in favor of the Catholic Bishop of Chicago but denied as to the remaining defendants. At the close of all the evidence, the trial court denied defendants' renewed motion for directed verdict as well as plaintiff's motion for directed verdict on the issue of the decedent's negligence. The jury returned a general verdict in favor of defendants Cozzi and Becker as against the plaintiff and in favor of the plaintiff as against Villa Scalabrini. The jury also determined the decedent's damages to be $7,478.96, the amount of her medical bills, but reduced that amount by 50 percent based upon a finding that the decedent was negligent. Thereafter, pursuant to plaintiff's motion, the trial court found that Villa Scalabrini violated the Nursing Home Care Reform Act of 1979 and awarded treble damages of $11,218.44 (trebling "recoverable damages" rather than "actual damages") and attorney's fees and costs totalling $85,000.

On appeal, the defendants argue that the trial court erred in denying their motions for directed verdict; in denying their motion in limine and allowing plaintiff's witness to give an opinion on the ultimate issue in the case; in allowing plaintiff's witness to testify as an expert in violation of Supreme Court Rule 191 (134 Ill.2d R. 191); in ruling that the general verdict of the jury implied a finding that the Nursing Home Care Reform Act had been violated; and in awarding attorney's fees and costs totalling $85,000. In her cross-appeal, the plaintiff argues that the trial court erred in granting a directed verdict to the Catholic Bishop of Chicago; in denying plaintiff's motion for judgment notwithstanding the verdict as to defendants Cozzi and Becker; in denying plaintiff's motion for directed verdict on the issue of comparative negligence; in denying plaintiff's post-trial motion for a new trial on the issue of damages only; in trebling the amount of Haas' "recoverable damages" (actual damages reduced by the amount of Haas' negligence); and in failing to award all attorney's fees and costs sought in plaintiff's petition and supplemental petition. ¹

VII. Attorney's Fees

As its final argument on appeal, Villa Scalabrini contends that the award for attorney's fees and costs in the amount of $85,000 was improper because the plaintiff recovered only nominal damages; because the award did not bear a reasonable relationship to the litigation's success; and because the award ignored the terms of a contingency fee agreement that may have existed between the plaintiff and her attorneys. ⁶

Section 3-602 of the Nursing Home Care Reform Act provides:

"The licensee shall pay 3 times the actual damages, or $500, whichever is greater, and costs and attorneys fees to a facility resident whose rights * * * are violated." Ill.Rev.Stat.1985, ch. 111 1/2, par. 4153-602 recodified at 210 ILCS 45/3-602 (West 1992).

The requirement that the licensee pay the prevailing resident's attorney's fees is mandatory as evidenced by the legislature's use of the word "shall" in the statute. Ordinarily, the use of the word "shall" in a statute is indicative of a mandatory legislative intent. E.g., Fumarolo v. Chicago Board of Education, 142 Ill.2d 54, 153 Ill.Dec. 177, 566 N.E.2d 1283 (1990); Newkirk v. Bigard, 109 Ill.2d 28, 92 Ill.Dec. 510, 485 N.E.2d 321 (1985). The word "shall" will not be given a permissive meaning where it is used with reference to any right or benefit to anyone to the extent such right or benefit depends upon giving a mandatory meaning to the word. Newkirk v. Bigard; Moon Lake Convalescent Center v. Margolis, 180 Ill.App.3d 245, 129 Ill.Dec. 191, 535 N.E.2d 956 (1989).

The statutory award of attorney's fees is designed to encourage nursing home residents to seek legal redress against nursing homes for violations of their rights. As the Illinois Supreme Court stated in Harris v. Manor Healthcare Corp., when discussing the constitutionality of the treble damages provision of the Act:

"[W]ithout the possibility of recovering treble damages and attorney fees, many residents would likely forego suing a licensee for violations of the Act. The legislature could reasonably assume that residents, either because of their advanced age, mental or physical infirmities or lack of financial resources are often unlikely to pursue costly and time-consuming litigation in the hope of receiving an uncertain or small recovery. * * * Moreover, many violations of the Act will yield little in the way of actual monetary damages. * * * Providing for the recovery of treble damages has the presumed effect of encouraging private enforcement as well as encouraging compliance with the Act." 111 Ill.2d at 369-70, 95 Ill.Dec. at 518-19, 489 N.E.2d at 1382-83.

The recovery of attorney's fees by a resident who prevails in a private right of action against the licensee is even more necessary than the recovery of treble damages in order for a resident to pursue litigation under the Nursing Home Care Reform Act. Without that recovery, it is unlikely that attorneys would be adequately remunerated for their successful efforts.

Villa Scalabrini argues that even though the plaintiff proved a violation of the Nursing Home Care Reform Act, she should not have been awarded attorney's fees because her damages were nominal. As there is no case law on the issue of attorney's fee awards under the Nursing Home Care Reform Act, Villa Scalabrini relies on federal case law concerning the Civil Rights Attorney's Fees Award Act of 1976 (42 U.S.C. § 1988). Villa Scalabrini cites two cases, Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) and Willis v. City of Chicago, 999 F.2d 284 (7th Cir.1993), wherein the courts ruled that although the petitioners were prevailing parties, because they were awarded nominal damages in the amount of $1, they were not entitled to attorney's fees because their litigation accomplished little beyond giving them moral satisfaction that their rights were violated. According to those courts, when a petitioner is awarded nominal damages, that petitioner has failed to prove actual, compensable injury, an essential element of the claim for monetary relief and, as a result, is entitled to no fee.

These federal civil rights cases are factually distinguishable from the instant case, however. Unlike the petitioners in Farrar and Willis, the plaintiff in the instant case was not awarded nominal damages. She proved actual injury and was awarded compensable damages for those injuries. Thus, even under the reasoning of Farrar and Willis, the plaintiff would not have been precluded from recovering attorney's fees since she obtained more than a mere moral victory.

The defendant next argues that the attorney's fee award in the instant case was erroneous because it did not bear some reasonable relationship to the damages awarded or to plaintiff's success in proving all counts of her complaint. In support of this contention, the defendant cites to two additional federal civil rights cases, Lenard v. Argento, 699 F.2d 874 (7th Cir.1983) and Skoda v. Fontani, 519 F.Supp. 309 (N.D.Ill.1981). Neither of these cases are current law. Skoda was implicitly overruled by Farrar v. Hobby and Willis v. City of Chicago; ⁷ and on remand and appeal, the seventh circuit acknowledged in Lenard v. Argento, 808 F.2d 1242 (7th Cir.1987) that the "claim-chopping" approach suggested in its earlier Lenard decision had since been rejected by the United States Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), a case which will be discussed below.

The legislative intent behind section 3-602 of the Nursing Home Care Reform Act suggests that attorney's fees should be awarded whenever a violation of the Act is proved even if the monetary recovery is minimal. As discussed above, our supreme court in Harris v. Manor Healthcare Corp. acknowledged that many violations of the Act would "yield little in the way of actual monetary damages" (111 Ill.2d at 369, 95 Ill.Dec.at 519, 489 N.E.2d at 1383) such that, in the absence of the possibility of being awarded attorney's fees and treble damages, residents would likely forgo suing licensees for violations of the Act. Since the purpose of the Act was to make nursing home residents " 'private attorney general[s]' " (111 Ill.2d at 369, 95...