City of Rockford v. Suski

• Decision Date: 02 September 1999
• Docket Number: No. 2-98-0893, No. 2-98-0894.
• Citation: 718 N.E.2d 269,240 Ill.Dec. 788,307 Ill. App.3d 233
• Parties: The CITY OF ROCKFORD, Plaintiff-Appellee, v. Harold SUSKI, Defendant and Contemnor-Appellant.
• Court: United States Appellate Court of Illinois

718 N.E.2d 269

307 Ill. App.3d 233

240 Ill.Dec. 788

The CITY OF ROCKFORD, Plaintiff-Appellee, v. Harold SUSKI, Defendant and Contemnor-Appellant.

Nos. 2-98-0893, 2-98-0894.

Appellate Court of Illinois, Second District.

September 2, 1999.

Rehearing Denied October 19, 1999.

John M. Nelson, Rockford, for Harold Suski.

Ronald N. Schultz, Legal Director, John P. Giliberti, Kerry F. Partridge, City of Rockford Legal Department, Rockford, for City of Rockford.

Justice GEIGER delivered the opinion of the court:

Harold Suski appeals from the June 19, 1998, order of the circuit court of Winnebago County denying his posttrial motion after he was found guilty of indirect criminal contempt. On appeal, Suski argues that the trial court erred in (1) denying his motion to dismiss the contempt proceeding; (2) ruling that his affirmative defenses of statute of limitations, laches, equitable estoppel, "void for vagueness," lack of jurisdiction, unclean hands, and mootness did not apply and were not proven; (3) denying him a trial by jury; (4) denying his Rule 237(b) (166 Ill.2d R. 237(b)) notice to appear at trial; (5) finding him guilty beyond a reasonable doubt of indirect criminal contempt; and (6) entering an excessive sentence. We affirm.

The facts relevant to the disposition of this appeal are as follows. On September 14, 1979, the City of Rockford (the City) filed a petition for preliminary injunction and complaint for permanent injunction against Suski concerning two properties owned by him located at 409 South First Street and 405 South Third Street in Rockford. These properties are located in a historical district of Rockford known as Haight Village. The petition alleged that the properties contained too many dwelling units and were public and private nuisances. The City requested that the trial court order Suski to reduce the number of dwelling units at 405 South Third Street from 8 to 4, and the number of dwelling units at 409 South First Street from 13 to 6. On October 10, 1979, the trial court granted leave to intervene to 10 individuals who resided in Haight Village (the intervening plaintiffs). These individuals are not parties to this appeal.

On October 18, 1979, Suski filed a petition for mandamus against the City, alleging that the City had failed to issue him certain building permits for the same properties at issue. On November 20, 1979, the trial court consolidated Suski's mandamus action with the City's equitable action. On January 14, 1980, following a hearing, the trial court entered an order granting Suski's petition for mandamus and ordering the City to issue the requested permits. That same day, the trial court denied the City's petition for an injunction and entered judgment on Suski's behalf.

The City subsequently appealed all aspects of the trial court's January 14, 1980, order. On appeal, this court held that the trial court erred in granting the writ of mandamus and in denying the City's request for injunctive relief. See City of Rockford v. Suski, No. 80-89, 93 Ill.App.3d 1205, 51 Ill.Dec. 654, 420 N.E.2d 1212 (1981) (unpublished order under Supreme Court Rule 23) (Suski I). We therefore remanded the case for further proceedings to determine the appropriate injunctive relief.

On July 30, 1981, following the issuance of our mandate in Suski I, the trial court entered an order granting the City's petition for a permanent injunction. The order provided that Suski was to:

"[C]ause the building located at 409 South First Street, Rockford, Illinois to be vacated on or before September 1, 1981, until such time as the number of dwelling units therein is reduced to seven (7) units. That said reduction of units is to be completed by October 1, 1981. That the Defendant cause the property at 409 South First Street to meet all requirements of "R-5" zoning for a seven (7) unit building."

On September 8, 1981, the intervening plaintiffs filed a petition for a rule to show cause against Suski. The petition alleged that Suski had failed to vacate the building at 409 South First Street by September 1, 1981, as required by the trial court's July 30, 1981, order. No ruling was ever made on this petition for a rule to show cause.

No further action was taken in this case until September 9, 1996. On that date, the City filed a petition for a rule to show cause against Suski, alleging that Suski had willfully failed and refused to comply with the trial court's order. Specifically, the petition alleged that Suski had failed to reduce the number of units in the building located at 409 South First Street (the property) to seven by October 1, 1981. The petition also alleged that more than seven units had been present in the property since June 1986.

On July 8, 1997, Suski filed a motion to dissolve the permanent injunction. Suski argued that he had sold the property to a third party on May 31, 1997, and no longer had an ownership interest in the property. On July 9, 1997, following a hearing, the trial court issued an order granting the City leave to file a petition for criminal contempt due to Suski's failure to comply with the trial court's order before he sold the property.

On July 21, 1997, the City filed a petition for adjudication of "minor" indirect criminal contempt. As amended, the petition requested that the trial court find Suski guilty of indirect criminal contempt for his failure to comply with the July 30, 1981, order. The amended petition requested that Suski be sentenced to six months' imprisonment, be fined $500, and that the City be granted such other relief as may be just and proper. On August 15, 1997, the trial court denied Suski's motion for jury trial and granted his motion for discovery.

On September 24, 1997, and November 3, 1997, Suski filed identical motions to dismiss, predicated upon section 2-609 of the Code of Civil Procedure (735 ILCS 5/2-609 (West 1996)). In his motions, Suski argued that the amended petition was barred by the statute of limitations and the doctrines of res judicata and collateral estoppel. Specifically, Suski argued that the amended petition was time-barred pursuant to the general statute of limitations found in the Criminal Code of 1961 (720 ILCS 5/3-5(b) (West 1996)). That section provides for a one-year, six-month statute of limitations in misdemeanor prosecutions. 720 ILCS 5/3-5(b) (West 1996). Suski also argued that the amended petition was barred by the doctrines of res judicata and collateral estoppel. Specifically, Suski asserted that the petition for a rule to show cause filed by the intervening plaintiffs on September 8, 1981, barred the City's contempt proceeding. The trial court denied Suski's motions to dismiss.

On November 3, 1997, Suski filed an answer to the City's contempt petition and raised the following affirmative defenses: (1) statute of limitations; (2) laches; (3) equitable estoppel; (4) void for vagueness; (5) lack of jurisdiction; and (6) unclean hands. On November 3, 1997, the first day of the hearing, Suski also filed a notice to produce pursuant to Supreme Court Rule 237(b) (166 Ill.2d R. 237(b)). In this notice, Suski demanded the production of all files kept by all departments of the City concerning the property.

The contempt hearing was held over six days between November 3, 1997, and April 29, 1998. At the hearing, William Dettmer testified that he was employed by the City from 1977 through 1986 as a code official and was responsible for managing the building code enforcement division of the department of community development. Dettmer testified that he inspected the property on September 1, 1981, and noted 13 units, 7 of which were occupied. Dettmer further testified that he did not observe any ongoing construction activity to reduce the number of units.

Various members of the Haight Village Community Fund (the Fund) also testified on behalf of the City. Joseph Dailing, one of the intervening plaintiffs in Suski I, testified that he and other residents of Haight Village incorporated the Fund for the purpose of purchasing certain properties from Suski. The Fund purchased the property from Suski at the end of June 1982 pursuant to a contract for deed. Dailing testified that, at the time the Fund took possession of the property, there were 13 units. The Fund then worked, using volunteer labor, to reduce the number of units. Dailing testified that the Fund defaulted on the contract for deed due to financial problems and that the property reverted back to Suski in June 1986. Dailing testified that, at this time, there were nine units on the property.

Gary Anderson, an architect and Fund member, also testified during the City's case in chief. Anderson testified that, on the day the Fund took possession, he inspected the property and found 13 units. Anderson explained that the units had been divided in half and that each unit had a separate kitchen and bathroom. He testified that the Fund reduced the number of units to nine over a three- to four-year period. Anderson was also called as a rebuttal witness by the City. He testified that, when he inspected the property on the day the Fund took possession in June 1982, he observed 13 kitchens, including sinks, refrigerators, and stoves, as well as 13 gas meters on the outside of the building. No gas lines had been capped off, and all were hooked up to the units. In addition, all of the sinks were operating. He further testified that the Fund did not add any kitchens and did not divide or add units during the time it possessed the property, as the Fund's goal was to reduce the total number of units.

Bonnie Henry, successor to William Dettmer, also testified on behalf of the City. Henry testified that she had been director of the City's building department since July 1986. She testified that on or about June 4, 1996, Suski filed an application for a permit to install fire doors and to make other repairs to the property. On this application, Suski indicated that the property...