City of McHenry v. Suvada

Decision Date16 December 2009
Docket NumberNo. 2-08-0928.,2-08-0928.
Citation336 Ill. Dec. 583,920 N.E.2d 1173
PartiesThe CITY OF McHENRY, Plaintiff-Appellant, v. Vera Ann SUVADA, Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

David W. McArdle, Gregory P. Preves, Zukowski, Rogers, Flood & McArdle, Crystal Lake, IL, for Appellant.

Melissa A. Wick, Michling, Hofmann, Vinton, Plaza & Wick, P.C., Woodstock, IL, for Appellee.

Justice JORGENSEN delivered the opinion of the court:

On September 12, 2007, plaintiff, the City of McHenry (City), filed a verified complaint against defendant, Vera Ann Suvada, seeking to enforce its municipal ordinances mandating the maintenance of residential property in a safe and habitable condition, the imposition of fines for each day that the subject property remained in violation, and an award of attorney fees. On September 20, 2007, the trial court entered a preliminary injunction against Suvada, requiring that all tenants evacuate the building while the property underwent repair. Approximately one year later, on September 28, 2008, the trial court found Suvada to be in compliance with the city code and declined to fine Suvada for any past violations or award attorney fees to the City. The City appealed. For the reasons that follow, we reverse and remand.

I. BACKGROUND

The subject property is a two-story, four-unit apartment building with brick on the lower level, siding on the upper level, and a mansard roof. Suvada has owned the property for 33 years. Suvada lives in Barrington, 21 miles away from the property. According to Suvada, she checks in on the property once or twice every two weeks, or when called.

On July 6, 2007, the daughter of a tenant called the City to complain about the condition of the property. The tenant was mainly concerned about a "failure" in her living room floor, mold growth, standing water in the basement, and a cracked rear sidewalk.

On July 9, 2007, Ryan L. Schwalenberg, the director of construction and neighborhood services for the City and a certified building inspector, inspected the subject property in response to the tenant's complaint. The tenant let in Schwalenberg; Suvada was not made aware of this inspection until after the fact. As he testified later at the hearing, Schwalenberg observed the following concerns: (1) significant sagging and bulging in the permanent wall and window area of the building; (2) bulging in the building's siding that was filled with caulk; (3) deteriorating exterior brick tuck-pointing; (4) missing siding, shingles, and caulk in the building's exterior; (5) a cracked rear sidewalk; (6) a sagging, spongy floor, depressed several inches along the living room wall of the building with accompanying deterioration in the floor sheeting, support, and insulation; (7) standing water in the basement and water stains on the basement appliances, walls, and electrical panels, indicating prior water levels; and (8) deteriorating electrical panels.

On July 11, 2007, the City's law firm, Zukowski, Rogers, Flood & McArdle, began billing for its work on the City's case against Suvada, according to the testimony of partner David W. McArdle. The firm had a strategy meeting the following day. McArdle testified that, from the beginning, the firm set forth a litigation strategy, rather than a negotiation strategy. The firm billed 8.5 hours in July, 10.25 hours in August, and 44.75 hours total.

On July 17, 2007, the City sent Suvada a notice, which had the heading "Notice of Substandard and Dangerous Building." The notice stated that Suvada had until July 27, 2007 (10 days), to provide the City with a written report from a licensed architect or structural engineer regarding the repairs necessary to bring the building into compliance with the city code. The notice further stated that the City would provide Suvada with directions on whether the building should be vacated for safety reasons and the time frame in which the repairs should be completed. In closing, the notice stated, "[i]f you fail to provide a report by [July 27, 2007], the City will institute legal proceedings against you to vacate all occupants from the building."

In late July or early August, Suvada contacted the City in response to the notice. Suvada testified that four representatives from the City met her at the property to point out various code violations. Suvada stated that she felt "bombarded." The City informed Suvada that the first thing she should do is contact an engineer or an architect. The City also informed Suvada that if she failed to comply, the City would take legal action against her. Suvada testified that this ultimatum "stunned" her, because she felt she was cooperating with the City. Suvada further testified that she had a difficult time securing an architect; many were busy or did not want the job. Suvada testified that she called the City during this time to report that she was having difficulty securing an architect.

Meanwhile, on August 15, 2007, the City issued a second notice. This notice was substantively similar to the first, and it listed violations of the following code provisions: (1) McHenry Municipal Code (City Code) article XVII, sections 7-251(c), (d), (e), (h), (i), and (j) (McHenry Municipal Code §§ 7-251(c), (d), (e), (h), (i), (j) (eff. December 4, 1987);1 (2) International Property Maintenance Code 2000 (Maintenance Code) sections 108.1 and 108.2; (3) Maintenance Code chapter 3, sections 303.2, 304.2, and 304.3; and (4) Maintenance Code chapter 6, section 604.3.2 The Maintenance Code had been adopted by city ordinance. The notice informed Suvada that she had until September 3, 2007 (20 days), to correct the referenced code violations and to provide the City with a written report from an engineer or an architect. In closing, the notice stated, "[i]f you fail to make all of the necessary repairs and provide a report by this date, the City will file and prosecute the enclosed complaint against you."

On September 12, 2007, the City filed a complaint entitled "Verified Complaint for Temporary Restraining Order, Preliminary and Permanent Injunctive Relief[,] and Ordinance Violations." The complaint gave a brief description of the aforementioned code violations, as set forth below:

1. City Code section 7-251(c)—improperly distributed load upon floor or roof, causing the structure to have insufficient strength to be reasonably safe for the purpose used;

2. City Code section 7-251(d)— premises damaged so as to become dangerous to the lives, safety, morals, or general health and welfare of the occupants or people of the City;

3. City Code section 7-251(e)— premises dilapidated, decayed, unsafe, or unsanitary so as to work injury to the health, morals, safety, or general welfare of those living therein;

4. City Code section 7-251(i)defendant allowed the premises to become dilapidated, decayed, unsafe, unsanitary, or dangerous to the health, morals, safety, or general welfare of the people of the City;

5. City Code section 7-251(j)defendant allowed the building on the premises to exist in violation of the codes and ordinances of the City;

6. Maintenance Code section 108.1defendant knowingly allowed the structure on the premises to become dangerous to the lives, health, property, or safety of the public or the occupants of the structure because the structure is so damaged, decayed, dilapidated, or unsafe that the structure's partial or complete collapse is possible;

7. Maintenance Code section 108.2defendant knowingly allowed the structure on the premises to be in such disrepair that the electrical wiring and electrical devices in the structure are a hazard to the lives, health, property, or safety of the public or the occupants of the structure;

8. Maintenance Code section 303.2defendant failed to maintain the exterior surfaces of the structure on the premises;

9. Maintenance Code section 304.2defendant failed to maintain the interior structural members of the building in a manner so as to be sound and capable of supporting imposed loads;

10. Maintenance Code section 304.3defendant failed to maintain the interior surfaces of the structure in good, clean, and sanitary condition; and

11. Maintenance Code section 604.3defendant allowed the electrical system in the structure to be in such a condition as to constitute a hazard to the occupants or the structure.

The City asked, among other requests, that the trial court: (1) issue a restraining order and injunction preventing the occupancy of the premises until the premises are found to be in compliance with the City Code; (2) enter an order, pursuant to section 11-217 of the City Code and section 11-31-1 of the Illinois Municipal Code (65 ILCS 5/11-31-1 (West 2006)), that the costs of enforcement, including attorney fees, shall be collected as a debt from Suvada and that such costs shall become a superior lien against the real estate on which the City may take legal action to foreclose; and (3) impose a fine of $750, pursuant to section 1-8(a) of the City Code, for July 6, 2007, and for each day after that the subject property is in violation of the City Code.

On September 13, 2007, the City filed a "Verified Motion for Preliminary Injunction." In it, the City referenced the complaint it had filed the day before and requested injunctive relief as had been stated in its earlier complaint.

On September 20, 2007, following argument wherein the City was represented by counsel and Suvada appeared pro se, the trial court granted the verified motion for preliminary injunction. The court stated that, based on the City's complaint, the City had a clear and ascertainable right to have the provisions of its codes and ordinances enforced in order to protect the public's health, safety, and welfare; the City would suffer irreparable harm if the preliminary injunction were not granted; the City had no adequate remedy at law; and there existed a reasonable likelihood of success by the City on the merits of its...

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