Cook County v. Patka

• Decision Date: 05 June 1980
• Docket Number: No. 79-1711,79-1711
• Citation: 405 N.E.2d 1376,40 Ill.Dec. 284,85 Ill.App.3d 5
• Parties: , 40 Ill.Dec. 284 COUNTY OF COOK, a body politic and corporate, Plaintiff-Appellee, v. Joseph PATKA and Anna Patka, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1376

405 N.E.2d 1376

85 Ill.App.3d 5, 40 Ill.Dec. 284

COUNTY OF COOK, a body politic and corporate, Plaintiff-Appellee, v. Joseph PATKA and Anna Patka, Defendants-Appellants.

No. 79-1711.

Appellate Court of Illinois First District, Fourth Division.

June 5, 1980.

Bernard B. Kash and Denis P. Dwyer, Chicago, for defendants-appellants.

Bernard Carey, State's Atty., Cook County (Paul B. Biebel, Jr., Morris Alexander, Asst. State's Attys., Chicago, and Marta Forowycz, of counsel), for plaintiff-appellee.

ROMITI, Justice:

After the defendant's house was ordered demolished as a public nuisance, the court, on the county's request, awarded the county a demolition lien. The defendant appeals contending that (1) the county waived its rights to a lien when the assistant state's attorney announced at trial it would not seek a lien; (2) the county should be estopped by its failure to give notice of its intention to seek a lien until after the house was demolished and the defendant's husband died; (3) no proper notice was given before the lien was awarded. We find no reversible error and affirm.

The original defendants, Joseph and Anna Patka, owned and lived in a house in Stickney Township, Illinois. Because of the condition in which the property was kept it had become a public and private nuisance. Prior to August 21, 1978, the county of Cook repeatedly attempted to force the defendants to abate the nuisance. On July 20, 1976, a judgment was entered against the defendants ordering them to pay the sum of $2,000 plus costs for failure to comply with a court order to clean up the premises and place them in an environmentally safe condition. Defendants failed to pay the fine. On March 23, 1978, the defendants were again ordered by the court to cease creating a nuisance. It also ordered that the judgment of June 21, 1976 was to stand as a lien on the property.

On August 21, 1978, the county filed a petition for demolition because the defendants failed to abide by the March 23, 1978 decree ordering them to put the property in a sightly and environmentally safe condition. The county alleged in detail how the premises were in an unsafe condition and were unfit for human habitation, and further alleged that the building was not economically repairable. The county therefore prayed that the court authorize the county to demolish the structure and remove the junk and debris on the premises and that the county be partially reimbursed for its expenses and costs by the sale of the salvage realized from the demolition. In the complaint the county offered to provide a grant of up to $5,000 to help the defendants pay for their moving costs and to relocate in habitable quarters. The defendants denied the allegations and demanded proof.

At the trial overwhelming evidence was introduced showing that the property both inside and out was, as alleged, a nuisance and unfit for human habitation. The assistant state's attorney, after summing up the prior history of the litigation, stated that the planning department had advised him to advise the court that there would be $5,000 available to help the defendants move and that if the court so ordered it would be available within two weeks. All that was needed was a technical approval. He also stated that the county was not asking for a lien with regard to the demolition but would bear that expense so that the defendants would have the property free and clear.

The court entered a judgment on September 6, 1978, finding the property a menace to public health and safety and authorizing the county to demolish the structure. It also ordered the county to pay the defendants $5,000 to defray their moving expenses as soon as they had moved from the property. At the trial, the judge instructed defense counsel to inform his clients that they were to be out of the building in two or three weeks.

In fact, the defendants did not move as directed and the case was repeatedly continued at the request of defense counsel. During the lengthy delay Joseph Patka died. Thereafter on April 30, 1979, the sheriff of Cook County was ordered to remove the remaining defendant, Anna Patka, from the premises. As soon as this had been done, the property was demolished and cleaned up. At a final hearing on May 16, 1979, the court determined that the premises had been cleaned up and made environmentally safe and granted the county a lien for demolition costs. It appears that while notice was given both parties of the status hearing, no specific notice was given the remaining defendant that the county intended to seek a demolition lien.

On June 15, 1979, the defendant moved to vacate the order granting a lien on the grounds that:

(1) the county at the hearing expressly waived its right to a lien;

(2) the county should be estopped from asserting a demolition lien because

(a) the defendant relied on the county's representation to that effect and to allow the demolition lien would greatly reduce the $5,000 that the county had paid the defendants and would prejudice the defendant in that the opportunity to contest the adequacy or inadequacy of the $5,000 relocation expense was no longer available to the defendant;

(b) the defendants had been compelled to purchase a home in a short interval (in fact they purchased a two-flat) with the intention of applying the proceeds from the sale of the vacant land (free and clear from any demolition lien) toward the mortgage balance of said purchase, and to allow a lien at this late date would greatly diminish the amount of money defendant had expected to receive;

(c) the county in its petition did not ask for a demolition lien.

(3) since the defendant was unaware of the county's turnabout concerning the demolition lien until May 16, 1979, defendant was taken by surprise and did not have an adequate opportunity to prepare a challenge to the county's right to a lien.

The county in its answer denied the various allegations.

At the hearing defense counsel asserted that the basis for defendant's claim was waiver by the assistant state's attorney when he made the representation in court respecting the lien. Counsel who had represented defendants until after May 16, 1979 testified as to the statements made at the former hearing and stated that he did not learn of the State's intention not to waive that lien until May 16, 1979. Counsel conceded that the motion for demolition was vigorously opposed. He also conceded that his clients did not move from the property as ordered.

The assistant state's attorney explained that when the request for the $5,000 was presented to the County Board for approval, the commissioners refused to approve it unless the state's attorney obtained a demolition lien for the costs of demolition which was $2,600. He also stated that the representation that the county would not require a lien was premised on prompt removal and contended that the defendants because of their refusal to comply with the court order had not come into court with clean hands. Defense counsel stated he was not contending there was any misrepresentation. He argued instead that the assistant state's attorney had the authority to waive the lien; accordingly the county was bound by his representations and it was irrelevant that the Board said he could not do it.

The court rejected the defendant's arguments and granted the lien.

I.

Section 25.24 of an Act to revise the law in relation to counties (Ill.Rev.Stat.1977, ch. 34, par. 429.8), provides in part:

"The county board of any county may demolish, repair or cause the demolition or repair of dangerous and unsafe buildings or uncompleted and abandoned buildings within the territory of the county outside any city, village or incorporated town. In any county having adopted, by referendum or otherwise, a county health department as provided by 'An Act in relation to the establishment and maintenance of county and multiple-county public health department', the county board of any such county may demolish, repair or cause the demolition or repair of dangerous and unsafe buildings or uncompleted and abandoned buildings within the territory of any city, village or incorporated town having less than 50,000 population. No building may be boarded up or otherwise enclosed. Such county board shall apply to the circuit court of the county in which such building is located for an order authorizing such action to be taken with respect to any such building if the owner or owners thereof including the lien holders of record, after at least 15 days' written notice by mail so to do, have failed to commence proceedings to put such building in a safe condition or to demolish it. It is not a defense to such cause of action that the building is boarded up or otherwise enclosed nor shall the court order such building boarded up or otherwise enclosed. * * * The hearing upon such application to the circuit court shall be expedited by the court and given precedence over all other suits. The cost of such demolition or repair incurred by the county board or by a lien holder of record is recoverable from the owner or owners of such real estate and is a lien thereon, which lien is superior to all prior existing liens and encumbrances, except taxes: provided that within 60 days after such repair or demolition the county board or the lien holder of record who incurred such costs and expenses shall file notice of lien of such cost and expense incurred in the office of the recorder of deeds in the county in which the real estate is located or in the office of the registrar of titles of such county if the real estate is registered under 'An Act concerning land titles', approved May 1, 1897, as amended. The notice must consist of a sworn statement setting out (1) a description of the real estate sufficient for identification thereof, (2) the amount of money representing the cost and expense incurred, and (3) the date or dates when the cost and expense was incurred...