specially concurring:
I agree with that portion of the majority decision holding that Franklin Park has the burden of proving that the expert witnesses and depositions were necessarily related to enforcement of the unsafe buildings provision of the Municipal Code (65 ILCS 5/11 — 31—1 (West 1996)). I also agree that the able trial judge did not abuse his discretion in finding that Franklin Park did not meet this burden. I write separately to express disagreement with the statement (298 Ill. App. 3d at 777) that the principles of Galowich v. Beech Aircraft Corp., 92 Ill. 2d 157, 441 N.E.2d 318 (1982), apply to section 11 — 31—1 of the Municipal Code.
According to section 2 — 1009 of the Code of Civil Procedure, a “plaintiff may, at any time before trial or hearing begins *** upon payment of costs, dismiss his or her action *** without prejudice.” (Emphasis added.) 735 ILCS 5/2 — 1009(a) (West 1996).
In Galowich, the supreme court defined “costs” as “allowances in the nature of incidental damages awarded by law to reimburse the prevailing party, to some extent at least, for the expenses necessarily incurred in the assertion of his rights in court.” Galowich, 92 Ill. 2d at 165-66. Regarding depositions, the court held that the prevailing party may only tax as costs the expense of those depositions “necessarily used at trial.” Galowich, 92 Ill. 2d at 166-67.
In Cleveland Wrecking Co. v. Central National Bank, 216 Ill. App. 3d 279, 576 N.E.2d 1055 (1991), we held that the principles of Galowich precluded a wrecking contractor from recovering deposition costs that were not necessary to its mechanics lien foreclosure action. The Mechanics Lien Act provides that “[t]he costs of proceedings *** shall be taxed equitably against the losing party.” 770 ILCS 60/17(a) (West 1996). Cleveland Wrecking is not an extension of Galowich. Rather, in Cleveland Wrecking we equated “costs of proceedings” under the Mechanics Lien Act with “expenses necessarily incurred in the assertion of [one’s] rights in court” pursuant to Galowich, 92 Ill. 2d at 166. Cleveland Wrecking, 216 Ill. App. 3d at 295-96.
Both Galowich and Cleveland Wrecking deal with costs related to court proceedings. Section 11 — 31—1, however, is broader in that it allows “court costs, attorney’s fees, and other costs related to the enforcement of this-Section.” (Emphasis added.) 65 ILCS 5/11 — 31—1(a) (West 1996). Given that municipalities often enforce the unsafe buildings provision of the Municipal Code administratively, court action is oftentimes unnecessary. This is not to say, however, that the proceedings are not bitterly fought or protracted. Expert testimony is frequently necessary.
In sum, I respectfully submit that the “necessarily used at trial” standard announced in Galowich does not apply to costs related-to the enforcement of section 11 — 31—1 of the Municipal Code.