City of Chicago v. RN REALTY, LP

• Decision Date: 21 April 2005
• Docket Number: No. 1-03-2214.,1-03-2214.
• Citation: 293 Ill.Dec. 196,357 Ill. App.3d 337,827 N.E.2d 1077
• Parties: CITY OF CHICAGO, a Municipal Corporation, Plaintiff-Appellant, v. RN REALTY, L.P., and Plymouth Building, L.P., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

827 N.E.2d 1077

357 Ill. App.3d 337

293 Ill.Dec. 196

CITY OF CHICAGO, a Municipal Corporation, Plaintiff-Appellant, v. RN REALTY, L.P., and Plymouth Building, L.P., Defendants-Appellees.

No. 1-03-2214.

Appellate Court of Illinois, First District, Fourth Division.

April 21, 2005.

Mara S. Georges, Corporation Counsel for the City of Chicago, Chicago (Lawrence Rosenthal, Benna Ruth Solomon, David Graver, of counsel), for Plaintiff-Appellant.

Elizabeth D. Sharp, Chicago, for Defendants-Appellees.

Justice GREIMAN delivered the opinion of the court:

Plaintiff City Of Chicago (City) filed suit against defendants RN Realty, L.P. (RN), and Plymouth Building, L.P. (Plymouth), alleging violations of the Chicago Building Code for failure to maintain several structures appurtenant to the building located at 417 South Dearborn Street (Building). Following a trial, the circuit court entered judgment in favor of defendants. The City now appeals, and for the reasons that follow, we affirm.

The City filed its initial complaint on October 17, 2000, alleging that defendants owned and maintained the building and that, on July 11, 2000, and thereafter, a parapet on top of the building was out of plumb, an exterior wall had visibly open joints, and defendants had failed to file a timely structural engineering report in violation of sections 13-196-010, 13-196-530, and 13-196-030 of the Chicago Building Code (the Code). Chicago Municipal Code §§ 13-196-010, 13-196-530, 13-196-030 (2004, 1990, 2004, respectively). The City sought fines for each day the violations existed and equitable relief compelling defendants to bring the Building into compliance. In their answer, defendants acknowledged that they owned and managed the Building, but denied any Code violations. Defendants also alleged the affirmative defenses that the City failed to state a cause of action upon which relief could be granted; that they had filed a structural engineering report in May 2000 and another was not due until September 26, 2002; that the parapet had been braced on October 30, 2000, and was no longer in need of repair; and that the cracks in the exterior wall had been repaired on February 23, 2001.

In response, the City filed a motion pursuant to section 2-615(a) of the Code of Civil Procedure (735 ILCS 5/2-615(a) (West 2000)) to dismiss defendants' affirmative defenses, arguing defendants' assertions as to the repairs performed were improper and unsupported and that substantial compliance was not a viable defense and amounted to an admission of the alleged violations. The circuit court granted the City's motion as well as leave to file an amended complaint alleging further violations discovered during a more recent critical examination by its inspector.

In its amended complaint, the City alleged that: (1) since July 11, 2000, and thereafter, defendants had violated section 13-196-037 of the Code by failing to maintain and repair the parapet and exterior wall (Chicago Municipal Code § 13-196-037 (2003)) (count I); (2) since an October 22, 2001, inspection and thereafter, defendants violated sections, 13-196-037, 13-196-641, 13-196-530(b), and 13-196-530(e) by failing to maintain and repair the out-of-plumb parapet, failing to repair rusted and broken metal flashing, failing to repair open mortar joints between brick and clay wall tiles, failing to repair a deteriorated water table, and failing to repair rusted metal cladding (Chicago Municipal Code §§ 13-196-037, 13-196-641, 13-196-530(b),(e) (2003, 1990, and 1990, respectively)) (count II); (3) since the October 22 inspection, defendants violated sections 13-196-550(a), 13-160-070, and 13-196-080 by failing to replace broken window panes on the first floor, failing to remove a canopy that obstructed the full extension of a fire escape, and failing to repair a window located next to the fire escape (Chicago Municipal Code §§ 13-196-550(a), 13-160-070, 13-196-080 (1990, 1998, and 1998, respectively)) (count III); (4) since October 22, 2001, defendants violated section 18-27-700.6 of the Chicago Electrical Code by failing to restore exit and emergency lighting systems to working condition (Chicago Municipal Code § 18-27-700.6 (1999)) (count IV); (5) defendants' alleged violations of the Building Code constituted a public nuisance and presented an imminent risk of injury to the public, in violation of section 7-28-060 of the Municipal Code (Chicago Municipal Code § 7-28-060 (2003)) (count V); and (6) the danger presented to the public through defendants' violations of the Building Code could not be adequately remedied at law and required immediate injunctive relief (count VI). The City alleged that each defect constituted a dangerous and hazardous condition and in relief sought injunctions compelling defendants to remedy the violations and fines for each day that each violation occurred.

Defendants answered by denying or alleging that they had insufficient knowledge of whether they had violated any Building Code provisions. Defendants also raised several affirmative defenses, alleging that: (1) they had engaged a structural engineer who prepared a critical examination report concerning the Building and found no dangerous or hazardous conditions; (2) they had remedied the alleged violations; (3) the City's complaint cited nonexistent Code provisions or ones that were inapplicable to the Building and thus failed to state a cause of action; and (4) they had installed a canopy on the Building's west side to protect the public while repairs were undertaken.

At the start of trial, the City's counsel conceded that defendants had complied with all Building Code provisions but stated that he was "not in a position" to dismiss the complaint. However, the City did move to dismiss count I of its amended complaint, and the trial court granted the motion. Counts V and VI had also been voluntarily dismissed prior to trial, and the City proceeded only on counts II, III, and IV, seeking fines for each day each condition did not comply with Building Code provisions. Defense counsel remarked in her opening that the purpose of proceedings in housing court is normally to effect compliance with the Building Code rather than fix fines for remedied violations, and because defendants had complied by remedying the violations alleged, fines should not be awarded.

City building inspector Julio Montilla testified that he had inspected the Building on October 22, 2001, and that on that date he observed the south finial on the Building's west elevation leaning toward the public way below. He also observed several rusted and broken pieces of metal flashing and open mortar joints on the building's exterior, which would allow water to penetrate into the Building. Montilla further observed a rusted metal water table, rusted and peeling decorative metal cladding on the Building's front face, and a broken window on the first floor, just above the sidewalk. He also noticed problems with one of the Building's fire escapes, specifically, that a window accessing the fire escape would not open due to a broken sash cord, and the fire escape would not lower to street level because it was obstructed by a canopy attached to a neighboring structure. Finally, Montilla observed that the emergency power supply to the emergency lighting did not function.

On cross-examination, the City's attorney stipulated that Montilla conducted a subsequent inspection of the Building in January 2002 and that he would testify that all violations alleged in the complaint had been brought into compliance. The City also presented photographs of the conditions to which Montilla had testified.

Defendants called Marilyn Fornell, who had served as RN's senior property manager since June 2001. Fornell testified that she was apprised of the City's complaint by the outgoing manager and in response formulated a plan to address the alleged violations and began soliciting bids from contractors to under take the recommended repairs. She engaged structural engineers to survey and rebuild the decrepit finial and rusted metal flashing. RN entered into a contract with the engineers to undertake the repairs in September 2001. RN engaged a contractor to remove loose paint and repaint any peeling areas on the Building's exterior, and work was completed in January 2002. RN engaged another contractor to repair the rusted water table and other structures, and repairs were pending at the time of trial. Another contractor was engaged to replace the broken windows with plywood, and work was completed in December 2001. That same month, Fornell contacted the manager of the adjoining building, where the attached canopy prevented the Building's fire escape from extending fully, and facilitated in removing a portion of the canopy so that the fire escape was no longer obstructed. Also in December 2001, another contractor replaced the fourth-floor window adjacent to the fire escape, and the window was fully functional at the time of trial. Fornell engaged an electrician who replaced the battery packs powering the emergency lighting, and work was completed in November 2001.

Defendants also submitted a report by structural engineer Peter Kralitsch, who had sealed cracks in the Building's facade on October 30, 2000, and had found the exterior to be in "good condition" on March 26, 2001. Structural engineers from the firm of Kellermeyer, Godfryt, Hart issued a report concerning a critical examination they had conducted in May 2001, and they observed "[n]o unsafe or imminently hazardous conditions" during their examination. The engineers also noted that the mortar joints on the Building's exterior "were observed to have been coated with * * * roofing cement" and the openings were "sealed to minimize the potential water penetration." A subsequent letter from Kellermeyer, Godfryt, Hart, dated January 9, 2002, opined that no "dangerous and/or imminently hazardous conditions" existed within the...