Willie Pearl Burrell Trust v. City of Kankakee ( 2016 )

2016 IL App (3d) 150398Opinion filed June 22, 2016
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2016
WILLIE PEARL BURRELL TRUST, ) Appeal from the Circuit Court
) of the 21st Judicial Circuit,
Plaintiff-Appellant, ) Kankakee County, Illinois.
)
v. )
) Appeal No. 3-15-0398
CITY OF KANKAKEE, an Illinois Municipal ) Circuit No. 13-L-115
Corporation, )
) Honorable Kendall O. Wenzelman,
Defendant-Appellee. ) Judge, Presiding.
_____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
Presiding Justice O’Brien and Justice Wright concurred in the judgment and opinion.
OPINION
¶1 Defendant, the City of Kankakee, obtained an order of demolition for a structure on the
property at issue. Plaintiff, the Willie Pearl Burrell Trust, later obtained ownership of the
property. Years after obtaining the demolition order, defendant demolished the structure.
Plaintiff filed suit, alleging defendant failed to notify plaintiff of the pending demolition, causing
plaintiff damages. The parties filed cross-motions for summary judgment. The trial court
granted defendant’s motion and denied plaintiff’s. We affirm.
¶2 BACKGROUND
¶3 In March 2006, defendant filed a petition, pursuant to section 11-31-1(a) of the Illinois
Municipal Code (Municipal Code) (65 ILCS 5/11-31-1(a) (West 2006)), to demolish a structure
located at 411 North Harrison Avenue in Kankakee. Defendant provided notice to the public and
recorded a lis pendens notice, pursuant to section 2-1901 of the Code of Civil Procedure (Code)
(735 ILCS 5/2-1901 (West 2006)). The trial court granted defendant’s petition in October 2006
by default.
¶4 In December 2007, plaintiff purchased the property from Kankakee County for $10. In
March 2011, pursuant to the 2006 proceedings, defendant issued a permit to demolish the
structure on the property. In March 2012, during preparations for demolition, plaintiff
discovered defendant’s plan to demolish the structure. Plaintiff informed defendant it was
unaware of any demolition plans and requested that defendant postpone demolition in order to
clarify the issue of notice. Defendant denied plaintiff’s request and promptly demolished the
building that day as previously scheduled.
¶5 In August 2013, plaintiff filed a suit for damages against defendant alleging, inter alia,
defendant failed to notify plaintiff of the pending demolition. Plaintiff’s complaint inaccurately
asserted that defendant’s demolition order was sought and obtained in 2009, after plaintiff
purchased the property, and that defendant failed to notify the owner of the pending demolition.
Plaintiff later conceded this was an error, but proceeded with its cause of action without
amending its complaint. Both parties filed motions for summary judgment.
¶6 Plaintiff argued in its motion for summary judgment that defendant obtained the
demolition order without providing them notice, pursuant to section 11-31-1(a) of the Municipal
Code (65 ILCS 5/11-31-1(a) West 2006)). Plaintiff’s argument was still erroneously based on
the assertion that defendant obtained the order in 2009, not 2006. Defendant argued in its cross-
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motion for summary judgment that the demolition order predated plaintiff’s purchase of the
property and that it had provided notice, pursuant to section 2-1901 of the Code (735 ILCS 5/2-
1901 (West 2006)), to all subsequent purchasers.
¶7 The trial court granted defendant’s motion for summary judgment and denied plaintiff’s
motion. In doing so, the trial court stated that plaintiff did not have an interest in the property
when notice of demolition was sent out, and defendant was not required to seek out subsequent
purchasers beyond filing a lis pendens notice. Plaintiff appeals the trial court’s rulings.
¶8 ANALYSIS
¶9 On appeal, plaintiff argues that the trial court erred in granting defendant’s motion for
summary judgment. Plaintiff further alleges that the trial court erred in denying its summary
judgment motion. Defendant counters, arguing that the trial court did not err in either ruling
because there are no issues of material fact, and plaintiff had constructive notice of the pending
demolition. Defendant further asserts that plaintiff waived any objections to the trial court’s
issuance of the demolition order by failing to raise objections at the trial level in a timely
manner, and that this proceeding cannot be used to collaterally attack the trial court’s 2006
demolition order.
¶ 10 The trial court’s ruling on a motion for summary judgment is a question of law we review
de novo. Seymour v. Collins, 2015 IL 118432, ¶ 42; Golden Rule Insurance Co. v. Schwartz, 203
Ill. 2d 456, 462 (2003). A grant of summary judgment is not appropriate when: (1) material facts
are disputed; (2) reasonable people could draw diverging inferences from the undisputed material
facts; or (3) reasonable people could differ on the weight given to relevant factors of a legal
standard at issue. Seymour v. Collins, 2015 IL 118432, ¶ 42. For the reasons that follow, we
affirm the trial court’s rulings.
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¶ 11 In arguing that the trial court erred in granting defendant’s motion for summary
judgment, plaintiff argues two primary points: (1) there are issues of material fact in dispute
precluding a summary judgment finding for defendant; and (2) defendant failed to follow the
proper procedure in obtaining the 2006 demolition order from the trial court. Defendant argues
the trial court’s rulings on the motions for summary judgment were not erroneous as there are no
issues of material fact and plaintiff was constructively notified of the 2006 demolition order.
¶ 12 Plaintiff’s arguments pertaining to the sufficiency of the trial court’s 2006 demolition
order do not address the issue before this court. In 2006, the trial court found that the structure at
issue was a nuisance, which needed to be abated. No parties involved appealed the trial court’s
ruling. Parties cannot argue on appeal from one issue before the trial court that the trial court’s
ruling in a separate matter—no matter how relevant and interconnected—was erroneous. See
Malone v. Cosentino, 99 Ill. 2d 29, 32-33 (1983). As such, we need not address plaintiff’s
arguments on this point.
¶ 13 In arguing that there are issues of material fact in dispute, plaintiff emphasizes the fact
that defendant knew plaintiff was the owner of the property and that defendant waited 5½ years
to demolish the structure after obtaining the demolition order. These facts are clear from the
record before this court. They are undisputed by the defendant. More importantly, they are not
dispositive to the legal issues before this court or the trial court.
¶ 14 Plaintiff argues the extensive delay in demolition is a violation of an uncited “Municipal
Code” (presumably 65 ILCS 5/11-31-1 (West 2006)), contrary to the First District case law from
the 1960s it cites as interpreting it. Plaintiff cites no authority mandating that demolition orders
be carried out in a specific timeframe after being granted. The purpose of the Municipal Code
(65 ILCS 5/11-31-1 (West 2006)), allowing municipalities to obtain orders to demolish
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dangerous and unsafe buildings, is to abate a public nuisance. McIlvaine v. City of St. Charles,
2015 IL App (2d) 141183, ¶ 15 (citing Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 125
(2004)). The delay in the demolition of the structure at issue does not automatically render
defendant’s actions counter to the purpose of the Municipal Code (65 ILCS 5/11-31-1 (West
2006)).
¶ 15 Plaintiff admits the issuance of the demolition order and recording of the lis pendens
notice in 2006. Plaintiff further admits that these actions predate its purchase of the property at
issue. As a matter of law, the plaintiff had notice of the demolition order by way of defendant’s
lis pendens notice. Security Savings & Loan Ass’n v. Hofmann, 181 Ill. App. 3d 419, 422
(1989). Further, nothing in the language of section 11-31-1(a) of the Municipal Code (65 ILCS
5/11-31-1(a) (West 2006)) requires a municipality to notify subsequent purchasers of prior
property actions or complete the actions within a specific timeframe.
¶ 16 Plaintiff also asserts that because the defendant knew plaintiff owned the property at
issue, defendant’s constructive notice argument is irrelevant. This argument is unsupported by
citation to authority and is, therefore, waived. See Ill. S. Ct. R. 341 (eff. Feb. 6, 2013) (requiring
appellants to cite authority in support of their arguments); People v. Clinton, 397 Ill. App. 3d
215, 223-24 (2009). Contrary to plaintiff’s assertion, lis pendens is the means by which those
that acquire a subsequent interest in property subject to litigation are bound by the results of that
litigation as if they had been a party from the outset. 735 ILCS 5/2-1901 (West 2012); see also
JP Morgan Chase Bank, N.A. v. Bank of America, 2015 IL App (1st) 140428, ¶ 44.
¶ 17 We affirm both the trial court’s grant of summary judgment to defendant and its denial of
plaintiff’s motion for summary judgment.
¶ 18 CONCLUSION
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¶ 19 For the foregoing reasons, we affirm the judgment of the circuit court of Kankakee
County.
¶ 20 Affirmed.
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