Waller v. Board of Ed. of Century Community Unit School Dist. No. 100 of Pulaski Et Al., Counties

• Decision Date: 01 May 1975
• Docket Number: No. 74--296,74--296
• Citation: 328 N.E.2d 604,28 Ill.App.3d 328
• Parties: Delbert WALLER, Plaintiff-Appellant, v. BOARD OF EDUCATION OF CENTURY COMMUNITY UNIT SCHOOL DISTRICT NO. 100 OF PULASKI ET AL., COUNTIES, Illinois, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 604

328 N.E.2d 604

28 Ill.App.3d 328

Delbert WALLER, Plaintiff-Appellant, v. BOARD OF EDUCATION OF CENTURY COMMUNITY UNIT SCHOOL DISTRICT NO. 100 OF PULASKI ET AL., COUNTIES, Illinois Defendant-Appellee.

No. 74--296.

Appellate Court of Illinois, Fifth District.

May 1, 1975.

Drach, Terrell & Deffenbaugh, P.C., Springfield, for plaintiff-appellant.

James W. Sanders, Marion, for defendant-appellee.

BERSPACHER, Justice.

This is the second appeal to this Court in this matter, an earlier decision having been rendered in Waller v. Board of Century Community Unit School District No. 100, 13 Ill.App.3d 1056, 302 N.E.2d 190 (1973).

In the first action the facts were that the plaintiff, Waller, was dismissed from his position as Superintendent of Schools, and reassigned as a teacher. Later, the Board of Education voted to dismiss plaintiff as a teacher as well. The decision of the Board of Education was affirmed by the trial court in April of 1972. On appeal, the judgment of the trial court was reversed because of the Board's failure to comply with the steps and procedures required by law for such dismissal.

Then, plaintiff, in accordance with Section 24--12 of The School Code, filed a motion for damages in the circuit court requesting reinstatement as a teacher, lost wages, and various costs and expenses, including attorney's fees in the amount of $2450. The circuit court granted the items of damage in the motion except for attorney's fees. The court held that attorney's fees are not damages under the School Code. (Ill.Rev.Stats.1971, ch. 122, paragraph 24--12). From this judgment, the plaintiff has brought this appeal seeking the award of attorney's fees. There is no dispute as to the facts which preceded this appeal.

The issue presented by this appeal is whether a wrongfully discharged teacher may recover attorney's fees as damages under Ill.Rev.Stat. 1971, ch. 122, paragraph 24--12, which reads in pertinent part:

'If the decision of the board is reversed upon review or appeal, on a motion of either party the trial court shall order reinstatement and shall determine the amount for which the board is liable including but not limited to loss of income and costs incurred therein.'

It is clear that at common law in Illinois a successful litigant is not entitled to recover costs and expenses of litigation from the other party. In Ritter v. Ritter, 381 Ill. 549, at pages 552, 553, 46 N.E.2d 41, at page 43 (1943), the Supreme Court stated:

The allowance and recovery of costs rests entirely upon statutory provisions and no liability for costs exists in the absence of statutory authorization. Any party to an action, claiming the right to recover costs from his adversary, must found his right upon some provision of a statute. This has been the law in this State from the earliest time. Adams v. Payson, 11 Ill. 26; Chase v. DeWolf, 69 Ill. 47; Smith v. McLaughlin, 77 Ill. 596; Byers v. First Nat. Bank, 85 Ill. 423; Dixon v. People, 168 Ill. 179, 48 N.E. 108; Rieker v. City of Danville, 204 Ill. 191, 68 N.E. 403; Patterson v. Northern Trust Co., 286 Ill. 564, 122 N.E. 55. A court of chancery may be vested with a power to exercise a discretion in awarding costs but the power to act must come from a statute and the discretion must be confined to that which is authorized by legislative enactment. Constant v. Matteson, 22 Ill. 546; Conwell v. McCowan, 53 Ill. 363; Hutchinson v. Hutchinson, 152 Ill. 347, 38 N.E. 926; Wilson v. Clayburgh, 215 Ill. 506, 74 N.E. 799; Metropolitan Life Ins. Co. v. Kinsley, 269 Ill. 529, 109 N.E. 1011; Goudy v. Mayberry, 272 Ill. 54, 111 N.E. 526.

The rule is also well established that attorney fees and the ordinary expenses and burdens of litigation are not allowable to the successful party in the absence of a statute, or in the absence of some agreement or stipulation specially authorizing the allowance thereof, and this rule applies equally in courts of law and in courts of equity. (Constant v. Matteson, Supra; Conwell v. McCowan, Supra; Hutchinson v. Hutchinson, Supra; Rasch v. Rasch, 278 Ill. 261, 115 N.E. 871; Kinane v. Fay, 111 N.J.L. 553, 168 A. 724; Weinhagen v. Hayes, 179 Wis. 62, 190 N.W. 1002; Day v. Woodworth, 54 U.S. (13 How.) 363, 14 L.Ed. 181.)

It may be that the statutory costs awarded to a successful plaintiff are inadequate to compensate him for the injury caused by the defendant's wrongful conduct, but the question of the amount of costs which are to be allowed the successful party and the items of expense to be included therein is a question to be determined by the legislature and not by the courts. Smith v. Michigan Buggy Co., 175 Ill. 619, 51 N.E. 569; Potts v. Imlay, 4 N.J.L. 377.'

In the cases that have followed Ritter, the basic principles of that case have been reaffirmed. The statutes which the party seeking fees have sought to use as a basis for recovery have been strictly construed. In People ex rel. Henderson v. Redfern, 104 Ill.App.2d 132, 243 N.E.2d 252, two statutes were involved. One statute, section 41 of the Civil Practice Act (Ill.Rev.Stats.1967 ch. 110, § 41) provided specifically for attorney's fees but was inapplicable on the facts of the case. That statute provides:

'Allegations and denials, made without reasonable cause and not in good faith, and found to be untrue, shall subject the party pleading them to the Payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, Together with a reasonable attorney's fee, to be summarily taxed by the court at the trial.' (Emphasis Added.)

In the alternative, plaintiff sought to rely on section 14 of the Quo Warranto Act (Ill.Rev.Stats.1967, ch. 112, sec. 14) which the Court quoted and discussed at page 136:

'In case any person or corporation against whom such complaint is filed is adjudged guilty as charged in the complaint, the court may give judgment of ouster, against such person or corporation from the office or franchise, and fine such person or corporation, and also give judgment in favor of the relator for the cost of the prosecution: * * *'

'We have found no Illinois cases defining to phrase 'cost of the prosecution' under this section. The Illinois Legislature in a variety of proceedings has provided specifically that attorney's fees may be recovered by the successful party, but it did not do so under this Quo Warranto Act. While there might well be situations prompting action under this Act that in equity would dictate assessing attorney's fees against a party, this is a matter for legislative rather than judicial action. Consideration of the propriety of assessing attorneys' fees is permissible only where the statute specifically allows their assessment and we may not judicially enlarge the phrase 'cost of the prosecution' to include such expense.' (Emphasis Added.)

The legislature has in the past Specifically provided for attorneys' fees where it wished to, and the courts have refused to interpret imprecise language as permitting attorneys' fees.

The appellant here argues that the language of Ill.Rev.Stats.1971, ch. 122, paragraph 24--12, requires or allows the trial court to grant attorney's fees. The language he relies upon is that the trial court is '* * * not limited to loss of income and costs incurred therein' in awarding damages.

In Miller v. Board of Education of School Dist. No. 132, (1968), 98 Ill.App.2d 305, 240 N.E.2d 471, the statute presently under consideration was applied, and court reporter's fees were granted. It is important to note that the Court specifically found that the order of the trial court did not include any attorney's fees, and that only court reporter's fees were being considered. The court in that case phrased the issue as whether court reporter's fees were 'costs' as that term is used in the statute. At page 312, 240 N.E.2d at page 474, the Court made the following observations:

'Court reporter fees were a necessary expense incurred by the plaintiff and he is entitled to reimbursement therefor. It should be noted that the statute, after prescribing loss of income and costs as damages, provides that damages shall not be limited to such items. Hence some additional damages must have been contemplated by the legislature.'

Appellant here argues that if the court reporter's fees are 'costs', then some additional elements of damages are permissible, and that attorney's fees would be an additional element of damages that 'must have been contemplated by the legislature'. They also argue that court reporter's fees and attorney's fees are...