Strong v. City of Peoria

No. 3-09-0709
_________________________________________________________________
Filed June 9, 2010
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2010
TODD A. STRONG, ) Appeal from the Circuit Court
) of the Tenth Judicial Circuit
Plaintiff-Appellant and ) Peoria County, Illinois
Cross-Appellee, )
)
v. ) No. 08-L-72
)
THE CITY OF PEORIA, )
) Honorable
Defendant-Appellee and ) Joe Vespa
Cross-Appellant. ) Judge Presiding.
_________________________________________________________________
JUSTICE LYTTON delivered the opinion of the court:
_________________________________________________________________
Plaintiff, Todd A. Strong, filed a negligence action against
defendant, City of Peoria, seeking monetary damages from defendant
for demolishing a residential dwelling without providing him
notice. Following a bench trial, the court awarded plaintiff
$2,238.01. Plaintiff appeals the trial court’s award of damages.
Defendant cross-appeals, arguing that plaintiff was not entitled to
damages. We affirm.
On November 1, 2004, plaintiff paid $720.56 for the delinquent
2003 real estate taxes for the property commonly known as 717 W.
Columbia Terrace in Peoria and received a tax lien certificate for
the property. He later paid $1,517.45 for the delinquent 2004 and
2005 real estate taxes on the property.
On January 18, 2007, plaintiff filed a petition for tax deed.
On January 24, 2007, plaintiff served a notice of expiration of
period of redemption on the city clerk’s office. On January 26,
2007, plaintiff published the notice in the Peoria Journal Star.
On May 1, 2007, the redemption period expired. On May 7,
2007, the circuit court held a hearing on plaintiff’s petition for
tax deed. The court ordered that the tax deed be issued to
plaintiff. On June 22, 2007, the county clerk issued a tax deed to
plaintiff and Becky S. Mansfield for 717 W. Columbia Terrace. The
tax deed was filed in the county recorder of deeds on July 23,
2007.
Meanwhile, on April 25, 2007, defendant had entered into a
written agreement with Nguyen Linh, the record owner of 717 W.
Columbia Terrace, to demolish the house located there. On or about
May 30, 2007, defendant demolished the house.
On March 3, 2008, plaintiff filed a complaint against
defendant, claiming that he was entitled to damages because
defendant failed to notify him prior to demolishing the house. The
case proceeded to a bench trial.
At trial, plaintiff called Diana Joseph, a certified real
estate appraiser, to testify. She prepared a real estate appraisal
report at plaintiff’s request. According to her report, the fair
market value of 717 W. Columbia Terrace, including the house that
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was located thereon, immediately before demolition was $24,000.
Her report did not provide a value of the property after
demolition, but she testified that the value of the property in its
present state is about $2,200.
Glenda Williams, a City of Peoria code enforcement inspector,
testified for defendant. In October 2006, she conducted a lien
search of the property. A report of lien search was introduced as
evidence. The report listed Nguyen Linh as the owner of the
property. The report stated that 2003, 2004 and 2005 taxes were
sold to "Todd Strong/Becky S. Mansfield" and provided an address
for them. After receiving the report, Williams contacted Linh.
Linh agreed to allow defendant to demolish the house on the
property. Williams never sought or received consent from plaintiff
to demolish the property.
The trial court found that plaintiff was "an interested person
*** entitled to notice." It further found that the proper measure
of plaintiff’s damages was the property taxes that he paid for
2003, 2004 and 2005. The court entered an order in favor of
plaintiff and against defendant for $2,238.01, plus costs.
I
Plaintiff argues that the trial court should have awarded him
damages in the amount of $21,800, the difference between the value
of the property before and after demolition.
"When a challenge is made to a trial court’s ruling following
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a bench trial, the proper standard of review is whether the trial
court’s judgment is against the manifest weight of the evidence."
Carey v. American Family Brokerage, Inc., 391 Ill. App. 3d 273,
277, 909 N.E.2d 255, 259 (2009). "To reverse a finding of damages,
a reviewing court must find that the trial judge ignored the
evidence or that the measure of damages was erroneous as a matter
of law." Carey, 391 Ill. App. 3d at 277, 909 N.E.2d at 259.
Compensatory damages are those that are awarded to a person as
compensation, indemnity or restitution for a wrong or injury
sustained by him. Gambino v. Boulevard Mortgage Corp., 398 Ill.
App. 3d 21, 922 N.E.2d 380, 417 (2009). "The purpose of awarding
compensatory damages is to make the injured party whole and restore
him to the position he was in before the loss, but not to enable
him to make a profit or windfall on the transaction." Gambino, 398
Ill. App. 3d at 61, 922 N.E.2d at 417.
The general rule for determining damages for real property
that has been totally destroyed is the difference between the
market value of the property before and after demolition. Hudlin
v. City of East St. Louis, 227 Ill. App. 3d 817, 835, 591 N.E.2d
541, 553-54 (1992). However, this rule only applies when the
person seeking damages holds title to the property at the time of
the demolition. Schwartz v. City of Chicago, 21 Ill. App. 3d 84,
95, 315 N.E.2d 215, 224 (1974).
The Property Tax Code (Code) (35 ILCS 200/22-5 et seq. (West
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2006)) sets forth the procedure for obtaining title to property
through a tax deed. Pursuant to section 22-30 of the Code, the
purchaser of a tax deed may file a petition three to five months
prior to the expiration of the redemption period, "asking that the
court direct the county clerk to issue a tax deed if the property
is not redeemed from the sale." 35 ILCS 200/22-30 (West 2006).
Section 22-40 of the Code provides that if the property has not
been redeemed within the redemption period and the petitioner has
complied with all provisions of law entitling him to a deed, the
court shall enter an order directing the county clerk to issue a
tax deed. 35 ILCS 200/22-40(a) (West 2006). Section 22-65 of the
Code provides that a tax deed executed by the county clerk "vests
in the grantee, his or her heirs and assigns, the title of the
property therein described." 35 ILCS 200/22-65 (West 2006).
The plain language of the above statutes provides that the
purchaser of a tax certificate does not acquire title until the
county clerk issues the tax deed. In re Application of the County
Treasurer & ex officio County Collector, 373 Ill. App. 3d 679, 685,
869 N.E.2d 1065, 1074 (2007); see also Illinois Ry. Museum, Inc. v.
Siegel, 132 Ill. App. 2d 77, 82, 266 N.E.2d 724, 727 (1971) (a
certificate of sale does not pass title to the purchaser until the
redemption period expires and the tax deed is issued).
Here, the county clerk issued plaintiff a tax deed for 717 W.
Columbia Terrace on June 22, 2007. Plaintiff acquired title to the
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property on that date. He did not hold title to the property on
May 30, 2007, when the home was demolished. Thus, he was not
entitled to damages equal to the difference in market value of the
property before and after the demolition. See Schwartz, 21 Ill.
App. 3d at 95, 315 N.E.2d at 224.
Instead, plaintiff was entitled to compensatory damages that
would restore him to the position he was in before the loss. See
Gambino, 398 Ill. App. 3d at 61, 922 N.E.2d at 417. In this case,
that loss can only be measured by the taxes paid, that is,
plaintiff’s out-of-pocket expenses. The evidence showed that
plaintiff spent $2,238.01 for taxes on the property. Thus, the
trial court’s award of $2,238.01 was not against the manifest
weight of the evidence.
II
In its cross-appeal, defendant argues that plaintiff was
entitled to no damages because he failed to establish that
defendant had a duty to provide him with notice of the demolition.
To prove a negligence cause of action, the plaintiff must
establish that defendant owed a duty of care to the plaintiff, that
defendant breached that duty, and that the breach was the proximate
cause of the plaintiff’s injuries. Strickland v. Kotecki, 392 Ill.
App. 3d 1099, 1101, 913 N.E.2d 80, 83 (2009). Whether a duty
exists is a question of law, which we review de novo. Thomas v.
Town of Cicero, 307 Ill. App. 3d 840, 843, 719 N.E.2d 187, 189
6
(1999).
Section 21-410 of the Code provides that the holder of a tax
lien certificate "shall be made a party to any action or proceeding
to demolish or destroy improvements on property where the property
has been sold for failure to pay taxes and the period of redemption
has not expired." 35 ILCS 200/21-410 (West 2006). Additionally,
section 11-31-1 of the Illinois Municipal Code provides: "All
persons having an interest of record in the property, including tax
purchasers *** shall be named as defendants in the [demolition]
petition and shall be served with process." 65 ILCS 5/11-31-1(d)
(West 2006). Finally, the Peoria city code requires notice to be
served upon "all owners of record or persons having an interest ***
as shown by documents recorded in the office of the county recorder
of deeds" when a building is found to be dangerous and subject to
demolition. Peoria Municipal Code §5-404(a) (1995).
Under both state law and the city’s code, defendant had a duty
to notify plaintiff, a tax lien certificate holder, of the
impending demolition of the house at 717 W. Columbia Terrace. See
Schwartz, 21 Ill. App. 3d at 87, 315 N.E.2d at 219. Defendant was
made aware of plaintiff’s identity and address by the report of
lien search. Nevertheless, defendant never notified plaintiff.
Defendant breached its duty to notify and was liable to plaintiff
for damages.
CONCLUSION
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The order of the circuit court of Peoria County is affirmed.
Affirmed.
CARTER and O'BRIEN, JJ., concur.
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