Anundson v. City of Chicago

• Decision Date: 21 November 1973
• Docket Number: 55940,55840,Nos. 55634,s. 55634
• Citation: 305 N.E.2d 376,15 Ill.App.3d 1032
• Parties: Vernon ANUNDSON and Selma Anundson, his Wife, Plaintiffs, v. CITY OF CHICAGO, a municipal corporation, et al., Defendants. Raymond P. KAEPPLINGER, Petitioner-Appellant-Cross-Appellee, v. William HARMON, Respondent-Appellee-Cross-Appellant.
• Court: United States Appellate Court of Illinois

305 N.E.2d 376

15 Ill.App.3d 1032

Vernon ANUNDSON and Selma Anundson, his Wife, Plaintiffs v CITY OF CHICAGO, a municipal corporation, et al., Defendants.

Raymond P. KAEPPLINGER, Petitioner-Appellant-Cross-Appellee v William HARMON, Respondent-Appellee-Cross-Appellant.

Nos. 55634, 55840, 55940.

Appellate Court of Illinois, First District, Third Division.

Nov. 21, 1973.

Rehearing Denied Dec. 28, 1973.

Sidney Z. Karasik, Chicago, for petitioner-appellant. Burditt & Calkins, Richard M. Calkins, Chicago, for respondent-appellee.

McNAMARA, Justice:

Petitioner, Raymond P. Kaepplinger, appeals from an order of the circuit court of Cook County dissolving an injunction. The injunction, which was mandated by this court in its decision in Anundson v. City of Chicago (1968), 97 Ill.App.2d 212, 240 N.E.2d 407, enjoined further construction or use of certain property located in the City of Chicago until it was in conformance with the requirements of the applicable city ordinance. This court's decision was affirmed by the Illinois Supreme Court. (Anundson v. City of Chicago (1970), 44 Ill.2d 491, 256 N.E.2d 1.)The trial court, in dissolving the injunction after remand and after hearings, found that as a result of construction changes the property was in compliance with the ordinance and city building code. Respondent, William Harmon, has filed a cross-appeal maintaining that the trial court abused its discretion in granting Kaepplinger attorney's fees totalling $12,760.

The litigation has been long and complex. The facts occurring prior to the remand of the cause are not in dispute. In 1962 a declaratory judgment was entered by Judge Dougherty finding the density requirements of the Chicago Zoning Ordinance null and void as they applied to theproperty located at 5655 West Fullerton Avenue, Chicago. The judgment further provided that the Anundsons, then the owners of the property, had the right to construct a three-story building containing eleven stores and offices, six single-bedroom apartments, and six efficiency or one-room apartments. The zoning ordinance provided that such a building would require parking facilities on the premises for seven cars.

The building subsequently was constructed. In addition to the stores, offices, and apartments permitted by the judgment order, the building contained an auditorium capable of holding 600 persons and a fourth floor roof garden capable of holding 250 persons. Eight of the rooms designated as offices contained bathtubs.

In 1966 Kaepplinger, owner of premises adjacent to the property in question, filed an intervening petition calling the court's attention to the violations of the declaratory judgment. He pointed out that the building under construction contained the auditorium and roof garden and that no parking facilities were planned on the premises. Kaepplinger also pointed out that the only notice given to adjoining landowners recited that plaintiffs were seeking to erect a three-story building containing eleven offices and only eight apartments. Kaepplinger asked the court to vacate the judgment and enjoin further construction. Although Judge Dougherty denied the intervening petition, he stated that the owners had violated the terms of the declaratory judgment. At a hearing prior to the entry of the declaratory judgment in 1962, the judge and an assistant corporation counsel for the city had warned the owners that they were jeopardizing the suit by amending the complaint without giving additional notice to the adjacent landowners. Despite the warnings, the judge entered judgment in favor of plaintiffs, and the city did not appeal.

After the denial of his intervening petition, Kaepplinger appealed. Only the intervening respondent, Harmon, filed an appearance and answering brief as appellee. Harmon, stating that he was the contractor on the premises, asked this court to dismiss the appeal on the grounds that Kaepplinger had not served a notice of appeal on Reuben and Eve Sonshine, who had purchased the property from the Anundsons after the entry of the declaratory judgment. This court refused to dismiss the appeal and held that the notice to the adjoining landowners failed to describe accurately the proposed building, that the building did not correspond to the plans submitted to the trial court, and that neither the court nor the neighboring property owners were advised of the intention of the plaintiffs and their contractor to deviate from the purported plans. The court went on to state 97 Ill.App.2d at p. 224, 240 N.E.2d at p. 414:

The parties apparently believed that a completed building would save them from further legal regulation. It is our opinion that the integrity of the law and the orders of a court are at stake and are of prime importance.

This court remanded the cause with directions to enjoin the construction or use of the property in question until it conformed to the requirements of the applicable ordinance.

As has been noted, Harmon contended in this court in 1968 that Kaepplinger’ s appeal should be dismissed because his failure to give notice to the Sonshines, who Harmon alleged were the owners and real parties of interest in the property, constituted a denial of due process to the Sonshines. However, it was subsequently discovered by Kaepplinger’ s counsel that months before Harmon so argued to this court he had acquired the sole beneficial interest in the premises from the Sonshines.

On May 7, 1970, after this court's mandate was received, the trial court entered an order enjoining Harmon from using the basement facilities as a meeting hall; from using the roof garden for any purpose from any further construction or use of the property commencing July 10, 1970; and from granting any further leases.

On June 9, 1970, Harmon filed a petition asking the trial court to permit him to eliminate the fourth floor deck and to remodel the basement into a garage, thereby providing eight inside parking places and eliminating the basement as a meeting place. Harmon also stated that he had received an approved permit for the work from the city, and he requested that the injunction scheduled to commence on July 10 be extended to September 30. At a hearing on Harmon's motion, Kaepplinger’ s counsel stated that while he had no objection to the proposed work, he was concerned with the manner in which the basement remodeling was being done, although conceding that it apparently was in conformance with the city code.

At that hearing, Irving Addis, Harmon's architect, testified and identified Exhibit ‘B’, a three-page copy of drawings for the work contemplated.

Addis testified that these drawings were the plans approved by the building department and that they were in compliance with the building code and the ordinance. The plans indicated the construction of a ramp area from the alley elevation to the basement, and Addis testified that the incline of the ramp set out in Exhibit B was 15 degrees. Since the plans apparently had been approved by the city, the court granted Harmon's motion.

Kaepplinger subsequently sought a further hearing on the proposed changes in the basement, charging that the degree of incline of the ramp, according to Exhibit B, was 30 degrees rather than 15 degrees, and therefore unsafe. Kaepplinger sought to introduce expert testimony that the ramp, as constructed, was unsafe, but the trial court held that such testimony was inadmissible on the grounds that the only issue was whether the work was done in conformity with the city code.

On September 21, 1970, Kaepplinger filed a motion stating that Harmon had submitted one set of building plans to the city building department and another set of plans, Exhibit B, to the court for approval, and that the ramp as constructed was not in compliance with the mandate. Harmon answered that two sets of plans had indeed been submitted, but maintained that Exhibit B was in substantial conformance with the plans submitted to the building department. He also conceded that the ramp was constructed according to Exhibit B. The trial judge set the matter for hearing as to whether Harmon had committed a fraud on the court.

At the hearings relative to fraud, it was learned that the ramp as constructed had not been approved by the city, that the city considered it unsafe, and that it had issued a stop order on the work. Harmon's trial counsel testified that after the original plans, Exhibit B, had been submitted to the city, the building department requested certain revisions. Revised plans were submitted and approved by the building department, but somehow the original plans, Exhibit B, were attached to the court petition and given to Kaepplinger’ s counsel. The architect testified that Exhibit B showed a steeper incline than the revised set approved by the city. Addis further testified that during the construction of the ramp Harmon called him to say that the ramp could not be installed in the manner approved by the building department because of the presence of plumbing pipes. Addis told Harmon that it would be permissible to proceed according to Exhibit B without getting further approval from the city because nothing in the code prescribed the degree of slope for a ramp.

After hearing the testimony, the trial judge ruled that a fraud had been perpetrated on the court, commenting that it was typical of what had occurred throughout the litigation, the ‘misleading of courts' and the ‘wilful, flagrant violation’ of the original judgment. The trial court then appointed counsel for the mortgagee of the premises as receiver of the building with directions to handle and maintain the premises and to rebuild the ramp to bring it into conformity with the court orders. The receiver had the ramp rebuilt, and...