Hoga v. Clark

• Decision Date: 28 March 1983
• Docket Number: No. 81-454,81-454
• Citation: 113 Ill.App.3d 1050,69 Ill.Dec. 736,448 N.E.2d 196
• Parties: , 69 Ill.Dec. 736 Dale HOGA and Irene Hoga, Plaintiffs-Appellants, v. Charles CLARK, Beulah Clark, Michael Clark, Lisa Clark, and Debbie Clark, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 196

448 N.E.2d 196

113 Ill.App.3d 1050, 69 Ill.Dec. 736

Dale HOGA and Irene Hoga, Plaintiffs-Appellants, v. Charles CLARK, Beulah Clark, Michael Clark, Lisa Clark, and Debbie Clark, Defendants-Appellees.

No. 81-454.

Appellate Court of Illinois Fifth District.

March 28, 1983.

Marvin W. Goldenhersh, Goldenhersh & Goldenhersh P.C., Belleville, for plaintiffs-appellants; Marvin Barnes, Granite City, of counsel.

No brief filed for defendants-appellees.

JONES, Justice:

Plaintiffs, Dale and Irene Hoga, appeal from a judgment of the circuit court of Madison County finding them in "indirect civil contempt" of court and sentencing them to five and four months in jail respectively. Plaintiffs were found to have violated a previous order of the court enjoining them from interfering with the construction of a fence separating their property from that of defendants Charles and Beulah Clark. In this appeal plaintiffs contend (1) the trial court erred in denying their motion for change of venue based upon prejudice of the trial judge; (2) the evidence against them was insufficient to support the court's finding of contempt; and (3) the punishment imposed by the trial court was inappropriate and not supported by the record.

Initially, we note that the defendants-appellees have not filed a brief in this court. We will, however, consider the merits of the appeal pursuant to the authority of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493.

The proceedings giving rise to this appeal were commenced on June 12, 1980, when the plaintiffs filed a complaint for injunctive relief to prevent the defendants from encroaching upon their property. The parties own adjoining lots located in Langen Heights subdivision, Madison County, Illinois. The complaint alleged that the defendants had threatened to encroach upon the plaintiffs' property by building a fence that would be partly on their lot. The defendants filed an answer to the complaint and a counterclaim in which they alleged that the plaintiffs had encroached upon the defendants' property and had thwarted efforts to survey the premises by cutting lines and moving survey stakes and iron pipes left by the surveyors.

In an order entered October 30, 1980, the trial court noted that the issue of ownership and boundaries of the subject property had been settled by an order entered in a previous suit on November 7, 1977. The court ordered that the parties be bound by this previous determination of ownership and enjoined each of the parties from "harassing, bothering, interfering with, molesting, striking, or at any way contacting any of the opposite parties * * *." The court further stated that "each of the parties is enjoined from at any way encroaching upon the property of the other as described and allotted by [the November 1977 order] or from moving any survey stakes, iron pipes or other indicia of the boundaries of [the respective lots]." The court additionally stated that it would retain continuing jurisdiction of the parties and the subject matter of the suit.

On January 30, 1981, upon stipulation of the parties, the court ordered that the parties arrange to have the subject property surveyed so that permanent stakes could be placed at the lot corners to establish the boundaries of the respective lots. On April 7, 1981, the defendants filed a motion to enforce this order, alleging that the plaintiffs had refused to pay their portion of the survey costs. The court entered an order on April 20, 1981, directing the plaintiffs to pay for the survey, which was to be made within 30 days.

On July 28, 1981, an evidentiary hearing was held on the enforcement of the court's order of October 30, 1980. The court found "that the plaintiffs Dale and Irene Hoga have wilfully refused to obey this court's order and are in contempt of court." The order of July 28, 1981, continued as follows "A. The defendants shall be unmolested by the plaintiffs during the erection of a fence along the property line dividing the parties' property according to the court ordered survey.

B. The plaintiffs shall not trespass across lot 43 of the defendants' property.

C. Defendants' contractor is permitted to remove any portion of plaintiffs' fence which crosses defendants' property for the purpose of erecting defendant's fence.

D. The court reserves the issue of punishment for the plaintiffs' contempt until further hearing of this court.

E. Plaintiffs are warned that any harassment of the defendants' agents or of the defendants or any further violation of this court's order will subject them to an immediate hearing on the issue of contempt.

F. Plaintiffs shall be responsible for any acts of their agents in violation of this order."

The plaintiffs filed a motion to reconsider this order which was denied on July 30, 1981.

On August 11, 1981, the defendants filed a petition for contempt citation in which they recited the provisions of the order of July 28, 1981, and stated:

"Contrary to said order, plaintiffs have repeatedly trespassed on defendants' property since the entry of said order, have threatened defendants with firearms, have threatened and harassed defendants and defendants' contractor building the fence with clubs, have uprooted one fence post and almost uprooted a second fence post, and continually along with other members of their family threatened defendants and voiced their total defiance and contempt of the court, the order of July 28, 1981, and Judge Hildebrand."

In a later petition the defendants additionally alleged that, on August 27, 1981, the plaintiffs had destroyed a substantial portion of the defendants' fence.

On August 31, 1981, the plaintiffs filed a motion for change of venue, alleging prejudice on the part of trial judge Thomas Hildebrand, who had entered the previous order in the case. The court denied this motion and the cause proceeded to trial on the defendants' contempt petition.

At a hearing held on September 3, 1981, defendant Beulah Clark testified that following the court's order of July 28, 1981, she and her husband contracted with B & L Fence Company to have a fence erected along their property line. During the building of that fence, plaintiff Irene Hoga was present every day harassing the contractors and threatening them with lawsuits. Plaintiffs' son Robin Hoga cut the guide strings used by the contractors to lay the fence, but Irene Hoga was not present when the cutting was going on. Both the Hogas and the Clarks called the sheriff on several occasions when things got "out of control" and the workers could not work. The Hogas also had the State Police come out to look over the court's order when the contractors first began work on the fence.

During the construction of the fence a couple of fence posts disappeared, but Mrs. Clark did not see what happened to them. On the evening of August 27 after the fence was completed, Mrs. Clark was in her ceramics shop waiting on a customer when she heard the breaking of the fence. She ran out and saw Irene Hoga and her son Robin breaking the fence. Irene was using a lead pipe which she carried all the time. Dale Hoga was present and stated that the Clarks had stolen his waterline by putting the fence over it and that the Hogas were going to destroy the fence. Dale Hoga did nothing at the time, however, because the sheriff arrived and calmed things down. Another portion of the fence was later damaged, but Mrs. Clark did not see how that was done.

Mrs. Clark testified that since the court hearing on July 28, Dale and Irene Hoga had told both the Clarks and their contractors that Judge Hildebrand was "nothing" and that there was no way he could control the Hogas to keep them off the disputed property. In addition, both Dale and Irene Hoga had trespassed on the Clarks' property every day.

On cross-examination Mrs. Clark stated that since the hearing on July 28, there had been no incidents between the parties involving firearms.

Defendant Charles Clark testified that after the contractors set the steel posts for the chain link fence, he saw Randy Hoga, the plaintiffs' son, remove one of the posts, but he did not see Dale or Irene Hoga that evening. He did not observe any other damage being done to the fence and did not hear either of the Hogas comment on the court's order of July 28.

The defendants' son, Victor Clark, testified that he observed the Hogas, mainly Randy and Irene, harassing the workers who were building the fence. Dale Hoga was there on a couple of occasions. On the night of August 27, Robin Hoga tried to run him down in his car as he (Victor) was standing on the Clark's parking lot. Victor then went inside to phone the police and heard the Hogas beating on the fence but did not observe them.

Randy Jett, an employee of Mrs. Clark, was present on the evening of August 27 and saw Irene Hoga jab at the fence with a club or iron pipe and damage the fence.

Plaintiff Irene Hoga testified on her own behalf that she did not believe the court's order of July 28 was final because her attorney had told her he would go back into court to get another survey of the disputed property line. She denied having threatened or molested the workers constructing the fence and stated that she never encouraged her children to commit aggressive acts toward the Clarks. Mrs. Hoga stated that she had not knowingly trespassed on the Clarks' property because it had never been established where the property line was.

It was Irene Hoga's testimony that Victor Clark was responsible for damaging the fence on the night of August 27. Victor came onto the Hogas' property that evening, and when Dale Hoga told him to leave, Victor threw a piece of sewer rock at him, injuring him on his side. The police were called and when they arrived, Victor was on the fence tearing it down. Mrs. Hoga stated that she wouldn't touch the fence and was glad it was up.

Dale Hoga testified finally...