HB0699 94TH GENERAL ASSEMBLY

LRB094 07040 LCB 37182 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB0699

Introduced 02/01/05, by Rep. Joseph M. Lyons

SYNOPSIS AS INTRODUCED:

735 ILCS 5/7-102.3 new
735 ILCS 5/7-102.5 new

Amends the Code of Civil Procedure. Provides for the reimbursement of costs and attorney's fees for the defendant in a eminent domain condemnation proceeding. Sets out a rate schedule for attorney's fees based upon the benefit to the defendant and a list of factors that the court shall consider when determining the amount of those fees.

FISCAL NOTE ACT MAY APPLY

STATE MANDATES ACT MAY REQUIRE REIMBURSEMENT

A BILL FOR

AN ACT concerning civil procedure.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Code of Civil Procedure is amended by adding Sections 7-102.3 and 7-102.5 as follows:

(735 ILCS 5/7-102.3 new)

Sec. 7-102.3. Costs; condemnation proceedings.

(a) The petitioner shall pay attorney's fees as provided in Section 7-102.5 as well as all reasonable costs incurred in the defense of the proceedings in the circuit court including, but not limited to, reasonable appraisal fees and, when business damages are compensable, a reasonable accountant's fee to be assessed by that court. No prejudgment interest shall be paid on costs or attorney's fees.

(b) At least 30 days prior to a hearing to assess costs under this Section, the condemnee's attorney shall submit to the condemning authority for each expert witness complete time records and a detailed statement of services rendered by date, nature of services performed, time spent performing the services, and the costs incurred and a copy of any fee agreement that may exist between the expert and the condemnee or the condemnee's attorney.

(c) In assessing costs, the court shall consider all factors relevant to the reasonableness of the costs including, but not limited to, the fees paid to similar experts retained in the case by the condemning authority or other parties and the reasonable costs of similar services by similarly qualified persons.

(d) In assessing costs to be paid by the petitioner, the court shall be guided by the amount the defendant would ordinarily have been expected to pay for the services rendered if the petitioner were not responsible for the costs.

(e) The court shall make specific findings that justify each sum awarded as an expert witness fee.

(735 ILCS 5/7-102.5 new)

Sec. 7-102.5. Attorney's fees; condemnation proceedings.

(a) Except as otherwise provided in this Section, the court, in eminent domain condemnation proceedings, shall award attorney's fees based solely on the benefits achieved for the client.

(b) As used in this Section, the term "benefits" means the difference, excluding interest, between the final judgment or settlement and the last written offer made by the condemning authority before the defendant hires an attorney. If no written offer is made by the condemning authority before the defendant hires an attorney, benefits must be measured from the first written offer after the attorney is hired.

(c) In determining attorney's fees: (i) if business records that are kept by the owner in the ordinary course of business were provided to the condemning authority to substantiate the claim of damage to a business, benefits for amounts awarded for business damages must be based on the difference between the final judgment or settlement and the latest written counteroffer made by the condemning authority, if any; and (ii) if existing business records that are kept by the owner in the ordinary course of business were not provided to the condemning authority to substantiate the claim of damage to a business and those records that were not provided are later deemed material to the determination of business damages, benefits for amounts awarded for business damages must be based upon the difference between the final judgment or settlement and the first written counteroffer made by the condemning authority within 90 days from the condemning authority's receipt of the business records previously not provided.

(d) Attorney's fees based on benefits achieved shall be awarded in accordance with the following schedule:

(1) 33% of any benefit up to $250,000; plus

(2) 25% of any portion of the benefit between $250,000 and $1 million; plus

(3) 20% of any portion of the benefit exceeding $1 million.

(e) In assessing attorney's fees incurred in defeating an order of taking or for apportionment or for any other supplemental proceedings, when not otherwise provided for, the court shall consider:

(1) The novelty, difficulty, and importance of the questions involved.

(2) The skill employed by the attorney in conducting the cause.

(3) The amount of money involved.

(4) The responsibility incurred and fulfilled by the attorney.

(5) The attorney's time and labor reasonably required adequately to represent the client in relation to the benefits resulting to the client.

(6) The fee or rate of fee customarily charged for legal services of a comparable or similar nature.

(7) Nonmonetary benefits obtained for the client through the efforts of the attorney, to the extent that the nonmonetary benefits are specifically identified by the court and can, within a reasonable degree of certainty, be quantified.

(f) In determining the amount of attorney's fees to be paid by the petitioner under subsection (e) of this Section, the court shall be guided by the fees the defendant would ordinarily be expected to pay for these services if the petitioner were not responsible for the payment of those fees.

(g) At least 30 days prior to a hearing to assess attorney's fees under subsection (e) of this Section, the condemnee's attorney shall submit to the condemning authority and to the court complete time records and a detailed statement of services rendered by date, nature of services performed, time spent performing the services, and the costs incurred.

(h) The defendant shall provide the court with a copy of any fee agreement that may exist between the defendant and his or her attorney, and the court shall reduce the amount of attorney's fees to be paid by the defendant by the amount of any attorney's fees awarded by the court.