City of Chicago v. American Nat. Bank and Trust Co. of Chicago

• Decision Date: 10 May 1988
• Docket Number: B,A,No. 46336,No. 46337,No. 87-0754,46336,46337,87-0754
• Citation: City of Chicago v. American Nat. Bank and Trust Co. of Chicago, 525 N.E.2d 915, 171 Ill.App.3d 680, 121 Ill.Dec. 608 (Ill. App. 1988)
• Parties: , 121 Ill.Dec. 608 CITY OF CHICAGO, Plaintiff-Appellee, v. AMERICAN NATIONAL BANK AND TRUST CO. OF CHICAGO, as Trustee, Trustmerican National Bank and Trust Co. of Chicago, As Trustee, Trustruce Ross, John Wronkiewicz, Defendants (Michael Adelman, Defendant-Appellant).
• Court: Appellate Court of Illinois

Page 915

525 N.E.2d 915

171 Ill.App.3d 680, 121 Ill.Dec. 608

CITY OF CHICAGO, Plaintiff-Appellee, v. AMERICAN NATIONAL BANK AND TRUST CO. OF CHICAGO, as Trustee Trust No. 46336, American National Bank and Trust Co. of Chicago, As Trustee, Trust No. 46337, Bruce Ross, John Wronkiewicz, Defendants (Michael Adelman, Defendant-Appellant).

No. 87-0754.

Appellate Court of Illinois First District, Second Division.

May 10, 1988.

Rehearing Denied July 12, 1988.

Robert I. Berger, Chicago (Altheimer & Gray, of counsel), for defendant-appellant.

Judson H. Miner, Corp. Counsel of the City of Chicago (Ruth M. Moscovitch, Chief Asst. Corp. Counsel, and Joseph A. Moore, Asst. Corp. Counsel, of counsel), for plaintiff-appellee.

Presiding Justice HARTMAN delivered the opinion of the court:

Defendant Michael Adelman appeals orders assertedly entered without notice to enforce a four-year-old judgment for violations of the city of Chicago Housing Code ("Code"). Defendant raises as issues whether: (1) the 1983 judgment is void because it lacked a formal designation of the parties involved; and (2) the circuit court erred in entering 1987 ex parte orders without notice to defendant, which are also void. The city questions the timeliness of defendant's appeal.

On December 7, 1981, the city of Chicago filed a verified complaint against Adelman and four other defendants, docketed as case number 81 M1 71691, for seven Code violations in a three story building located at 957-959 W. Armitage in Chicago. The complaint requested imposition of a $1400 fine, temporary and permanent injunctions to force compliance, an order of demolition, reasonable attorney fees and costs. Other defendants were served; however, only Adelman, reportedly the beneficial owner of the land trust involved, filed an appearance.

On October 26, 1982, upon leave of court, the city filed an amended complaint containing 21 additional counts of Code violations and requested a fine of $4200. At a hearing held on that date, Adelman's attorney asserted partial Code compliance with respect to the original violations claimed. On February 15, 1983, a second amended complaint was apparently filed charging 52 violations; this complaint is not included in the record on appeal. On March 24, 1983, an inspector reported to the court that there had been no compliance. Adelman's attorney stated, however, that his client was trying to obtain funds for rehabilitation of the building. For April 28, 1983, the circuit court half-sheet shows an entry of "x parte 10,400 & C MTV E & C 6-30-83," presumably meaning $10,400 and costs, motion to vacate entered and continued to June 30, 1983. The words "x parte" were lined through. No report of proceedings was made available by the court reporter for that date.

On May 12, 1983, in a written motion, Adelman again sought to vacate the judgment, asserting that he "ha[d] undertaken steps to substantially comply with the outstanding violations." [Sic.] At a June 30, 1983 hearing, a city inspector reported work in progress on the building. The half-sheet entry for December 1, 1983, contains the words "X to issue," presumably indicating execution to issue. Both parties have stipulated that court reporter notes for the December 1, 1983 proceedings have been lost or stolen so that a verbatim transcript cannot be prepared.

On March 6, 1984, the city filed a new complaint against Adelman and other defendants, docketed as case number 84 M1 402111, for 50 Code violations in the same building. At a hearing held on April 12, 1984, the new owner, Calvin Boender, stated he would rehabilitate the building. The previously filed amended complaints were brought to the court's attention in the following colloquy:

"MR. CANAVY [Adelman's counsel]: Your Honor, there was a case previously filed, on this building, 81 M1 71691, that went to judgement [sic].

"We are asking the court to--

"THE COURT: The file is not here.

"MR. CANAVY: I would like to have the two matters consolidated.

"So, perhaps the judgement [sic] that was entered, in this cause, would fall.

"BY MR. CARSLEY [City's counsel]:

"Q. Is there anything dagerous [sic] or hazardous?

"A. No, there is not.

"MR. CARSLEY: All right. June 28, 1984.

"THE COURT: June 28, 1984."

On June 28, 1984, the circuit court dismissed the new complaint without costs, subject to reinspection. The court reporter notes for that date also cannot be found and no transcript is available. A final order was entered on July 6, 1984, dismissing case 84 M1 402111 without costs.

On April 29, 1985, the circuit court entered a memorandum of judgment, ordering that the judgment of April 28, 1983 for the city and against the defendant be spread upon the records of the county recorder of deeds. This memorandum did not specify which defendant or defendants were named in the judgment.

On February 6, 1987, the circuit court entered an order of enforcement of judgment and disposition, directing that the judgment entered on April 28, 1983 against defendant Adelman stand as a final judgment, denying any motions to vacate and granting leave for enforcement to proceed immediately. The order recited that there was no just reason to delay its enforcement or appeal and indicated that the matter was heard on the regular trial call upon a hearing date of December 1, 1983. A conforming order was entered on February 19, 1987 (although dated February 11, 1987), denying the motion to vacate the ex parte judgment of April 28, 1983, stating that execution would issue for $10,400 plus costs against Adelman, and listing the hearing date as December 1, 1983.

Adelman asserts that he had no prior notice of the orders of February 6, 1987 and February 19, 1987, nor was he served with them after their entry, but only learned of them after the city began collection proceedings. The parties have stipulated that no reports of proceedings held February 6, 1987, February 11, 1987 and February 19, 1987, are available.

On March 13, 1987, Adelman filed his notice of appeal from the judgment of April 28, 1983 and the orders entered on February 6, 1987 and February 19, 1987.

I.

The city first contends that defendant did not timely file his appeal and thus this court lacks jurisdiction to hear it because final judgment was entered on December 1, 1983, when the half-sheet indicated execution to issue; however, Adelman did not appeal until March 13, 1987, well after the 30-day limit established by Supreme Court Rule 303(a). (107 Ill.2d R. 303(a).) Further, because the circuit court did not require a written judgment to be submitted on December 1, 1983, its oral order on that date triggered the appeal period. The city also contends that Adelman's failure to file a timely appeal is not excused by either his mistaken belief that this case was consolidated with another case later dismissed or by its own delay in executing on the judgment.

Adelman maintains that the half-sheet entry for December 1, 1983, does not mean a final judgment was entered as of that date and that a judgment against only one of the defendants in the case must contain the wording required by Supreme Court Rule 304(a). (107 Ill.2d R. 304(a).) Neither the April 28, 1983 order nor the December 1, 1983 order, as indicated by the half-sheet, shows that the appealable wording was included.

In the present case, transcripts of proceedings in the circuit court are not made of record for many crucial dates, including April 28, 1983, when the $10,400 judgment and motion to vacate were both entered, December 1, 1983, when the half-sheet indicates execution to issue, and June 28, 1984, when the second lawsuit was dismissed. These omissions have not been remedied by a bystander's report or a stipulated statement of facts. Accordingly, any doubts arising from this record's incompleteness must be resolved against the appellant. (Foutch v. O'Bryant (1984), 99 Ill.2d 389, 392, 76 Ill.Dec. 823, 459 N.E.2d 958; Pecora Oil Co. v. Johnson (1987), 156 Ill.App.3d 521, 523, 108 Ill.Dec. 799, 509 N.E.2d 495, appeal denied (1987), 116 Ill.2d 562, 113 Ill.Dec. 304, 515 N.E.2d 113.) In its order of February 6, 1987, the circuit court stated it was fully advised in the premises and it is presumed that adequate evidence had been presented to it. Foutch v. O'Bryant, 99 Ill.2d at 393-94, 76 Ill.Dec. 823, 459 N.E.2d 958; In re Estate of Lawson (1976), 41 Ill.App.3d 37, 40, 353 N.E.2d 345.

Under Supreme Court Rule 272 (107 Ill.2d R. 272), unless the circuit court requires submission of a written judgment, the effective date of the judgment for purposes of appeal is the date it is entered of record. In Swisher v. Duffy (1987), 117 Ill.2d 376, 377-81, 111 Ill.Dec. 570, 512 N.E.2d 1207, our supreme court held that the signing of a written order for voluntary dismissal was superfluous after judgment of dismissal was earlier entered of record where there was no evidence the circuit court required a written judgment to be submitted. (See People v. Dickerson (1984), 129 Ill.App.3d 59, 61, 84 Ill.Dec. 280, 471 N.E.2d 1046.) Here, the effective date of judgment was in 1983 rather than 1987, since there is no half-sheet indication that the circuit court required submission of a written judgment either for April 28 or December 1, 1983. The half-sheet is part of the official record in the municipal department of the circuit court of Cook County. (Cir.Ct. General Order No. 6.5; Sampson v. Ambrose (1984), 123 Ill.App.3d 742, 744, 79 Ill.Dec. 229, 463 N.E.2d 783.) Absent draft orders indicating otherwise, the half-sheet entries are the official recordation of orders entered.

This court held in City of Chicago v. North End Building Corp. (1962), 34 Ill.App.2d 306, 308-11, 180 N.E.2d 726, relying upon section 39.2 of the Code (Chicago Municipal Code, ch. 39, sec. 39.2 (1984)) that unless otherwise specifically provided, owners, their agents or others managing or controlling buildings with code violations are liable for...