Madison v. City of Chi.

• Decision Date: 26 June 2017
• Docket Number: No. 1-16-0195.,1-16-0195.
• Citation: 82 N.E.3d 702,2017 IL App (1st) 160195
• Parties: Mary MADISON, Plaintiff-Appellant, v. The CITY OF CHICAGO, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 160195

82 N.E.3d 702

Mary MADISON, Plaintiff-Appellant,

v.The CITY OF CHICAGO, Defendant-Appellee.

No. 1-16-0195.

Appellate Court of Illinois, First District, FIRST DIVISION.

June 26, 2017

Jordan T. Hoffman, of Chicago, for appellant.

Edward N. Siskel, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Julian N. Henriques, Jr., Assistant Corporation Counsel, of counsel), for appellee.

OPINION

JUSTICE MIKVA delivered the judgment of the court, with opinion.

¶ 1 We are asked in this appeal to consider whether the one-year limitations period in the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) ( 745 ILCS 10/1-101 et seq . (West 2010)) bars the plaintiff's claim for wrongful demolition. We hold that it does not and reverse the trial court's dismissal of that claim on statute of limitations grounds. We affirm the dismissal of plaintiff's other claims.

¶ 2 BACKGROUND

¶ 3 The complaint in this case alleged that, on July 29, 2010, the City of Chicago (City) wrongfully demolished a building in which plaintiff Mary Madison had a beneficial interest. Ms. Madison filed her lawsuit against the City five years later, on July 29, 2015, and alleged four counts: count I for wrongful demolition under section 1-4-7 of the Illinois Municipal Code ( 65 ILCS 5/1-4-7 (West 2010) ) and counts II through IV, respectively, for an unlawful taking or inverse condemnation, negligence, and conversion.

¶ 4 The City moved to dismiss Ms. Madison's complaint, arguing that each of her claims was barred by the one-year limitations period in the Tort Immunity Act ( 745 ILCS 10/8-101(a) (West 2010)). Ms. Madison responded that section 2-101(e) of the Act ( 745 ILCS 10/2-101(e) (West 2010)) exempted her demolition claim from the Act's provisions and that her other claims were timely because they were derivative of her wrongful demolition claim. Ms. Madison argued that the applicable limitations period was therefore the five-year period set forth in section 13-205 of the Code of Civil Procedure (Code) ( 735 ILCS 5/13-205 (West 2010) ).

¶ 5 On December 16, 2015, the trial court granted the City's motion. Ms. Madison timely filed her notice of appeal on January 15, 2016. This court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303, which govern appeals from final judgments entered by the circuit court in civil cases. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); 303 (eff. Jan. 1, 2015).

¶ 6 ANALYSIS

¶ 7 The issue before us is whether to apply the general five-year limitations period "to recover damages for an injury done to property * * * and all actions not otherwise provided for" ( 735 ILCS 5/13-205 (West 2010) ), or the one-year limitations period in the Tort Immunity Act ( 745 ILCS 10/8-101(a) (West 2010)). Ms. Madison argues that her claim for wrongful demolition is exempted from the Act's statute of limitations by section 2-101(e) of the Act.

¶ 8 Section 2-101 provides:

"Nothing in this Act affects the right to obtain relief other than damages against a local public entity or public employee. Nothing in this Act affects the liability, if any, of a local public entity or public employee, based on:

a). Contract;

b). Operation as a common carrier; and this Act does not apply to any entity organized under or subject to the ‘Metropolitan Transit Authority Act’ [ ( 70 ILCS 3605/1 et seq . (West 2010)) ], approved April 12, 1945, as amended;

c). The ‘Workers' Compensation Act’ [ ( 820 ILCS 305/1 et seq . (West 2010)) ], approved July 9, 1951, as heretofore or hereafter amended;

d). The ‘Workers' Occupational Diseases Act’ [ ( 820 ILCS 310/1 et seq . (West 2010)) ], approved July 9, 1951, as heretofore or hereafter amended;

e). Section 1-4-7 of the ‘Illinois Municipal Code’, approved May 29, 1961, as heretofore or hereafter amended.

f). The ‘Illinois Uniform Conviction Information Act’ [ ( 20 ILCS 2635/1 et seq . (West 2010)) ], enacted by the 85th General Assembly, as heretofore or hereafter amended." 745 ILCS 10/2-101 (West 2010).

¶ 9 Referenced in subsection (e), section 1-4-7 of the Illinois Municipal Code provides liability for injury caused by wrongful demolition. 65 ILCS 5/1-4-7 (West 2010). The trial court here rejected Ms. Madison's argument that, under subsection (e), her claim for wrongful demolition was exempt from the shorter limitations period of the Tort Immunity Act. The trial court relied on our decision in Hapeniewski v. City of Chicago Heights , 147 Ill. App. 3d 528, 531, 100 Ill.Dec. 217, 497 N.E.2d 97 (1985) ( Hapeniewski I ), vacated , 484 U.S. 806, 108 S.Ct. 53, 98 L.Ed.2d 17 (1987), in which we held that demolition claims were subject to the Tort Immunity Act limitations period, despite the language in 2-101(e). We begin, as the trial court did, with our decision in Hapeniewski and trace the law on this issue as it has developed since then.

¶ 10 In Hapeniewski I , we reasoned as follows:

"Statutes of limitations are generally considered to affect the remedy only and not a substantive right. [Citation.] Statutes of limitations affect the remedy by limiting the period within which legal action may be brought or remedies may be enforced; they bar the right to sue for recovery but do not extinguish the underlying obligation. [Citation.] Because statutes of limitations generally do not affect substantive rights, we conclude that the word ‘liability’ used in section 2-101 does not refer to the statute of limitations and, therefore, suits brought under section 1-4-7 are not exempted from the * * * statute of limitations in the Tort Immunity Act." Hapeniewski I , 147 Ill. App. 3d at 531, 100 Ill.Dec. 217, 497 N.E.2d 97.

¶ 11 To reach this result, we had to distinguish Hecko v. City of Chicago , 25 Ill. App. 3d 572, 578, 323 N.E.2d 595 (1975), in which we had already held that the statutory notice requirements of the Tort Immunity Act did not apply to a demolition claim. We reasoned in Hecko that section 2-101(e) of the Act was intended to "eliminate governmental immunity" in demolition actions. (Emphasis added.) Id. at 578, 323 N.E.2d 595. We distinguished Hecko in Hapeniewski I by treating the notice provision of the Act as substantive and the statute of limitations as procedural. Hapeniewski I , 147 Ill. App. 3d at 531, 100 Ill.Dec. 217, 497 N.E.2d 97.

¶ 12 Although Hapeniewski I was vacated by the United States Supreme Court, later decisions in the case did not disturb our original determination that the Tort Immunity Act's shorter statute of limitations applied to wrongful demolition claims. The issue appealed to the Supreme Court was whether the Act's shorter limitations period also applied to the building owner's federal civil rights action. The Court remanded the case to us for further consideration of that aspect of our decision in light of its own recent precedent. Hap a niewski v. City of Chicago Heights , 484 U.S. 806, 108 S.Ct. 53, 98 L.Ed.2d 17 (1987). Although our previous judgment was vacated, we did not disturb our initial analysis in Hapeniewski I regarding the limitations period for a demolition claim (see Hapeniewski v. City of Chicago Heights , 169 Ill. App. 3d 945, 120 Ill.Dec. 584, 524 N.E.2d 614 (1988) ( Hapeniewski II )). Thus, both parties and other courts have continued to follow it.

¶ 13 The distinction that the first district in Hapeniewski I made between substance and procedure under section 2-101 of the Tort Immunity Act was adopted by the third district in Slaughter v. Rock Island County Metropolitan Mass Transit District , 275 Ill. App. 3d 873, 212 Ill.Dec. 284, 656 N.E.2d 1118 (1995), and by the fifth district in Cooper v. Bi-State Development Agency , 158 Ill. App. 3d 19, 110 Ill.Dec. 257, 510 N.E.2d 1288 (1987), and McClintock v. Bi-State Development Agency , 228 Ill App. 3d 382, 169 Ill.Dec. 463, 591 N.E.2d 967 (1992). In Cooper the court held that the defendant, a public carrier, was entitled to the notice that was then required under the Tort Immunity Act, despite the language of subsection (b) of section 2-101. The court reasoned:

"Defendant, as a public carrier, owes its passengers the highest degree of care in contrast to the lower standards of care applicable to other public entities. [Citation.] By providing that nothing in the Tort Immunity Act affects defendant's liability based upon operation as a common carrier, defendant is not ‘exempt’ from the Act. This provision preserves the standard of care to which defendant must adhere in order to avoid liability. Once notice is given, the liability of defendant as a common carrier is unaffected by the Act." Cooper , 158 Ill. App. 3d at 24-25, 110 Ill.Dec. 257, 510 N.E.2d 1288.

In Slaughter and in McClintock , the courts followed the reasoning of Cooper and applied the one-year limitations period and the notice provision of the Tort Immunity Act to actions against a metropolitan mass transit district. However, Cooper and Slaughter expressly rejected the first district's distinction between the notice and statute of limitations provisions in the Act, holding instead that both provisions were procedural and therefore applied to public entities and public employees, even as to the enumerated categories of claims that were exempted from the "substantive" protection of the Act under section 2-101. Cooper , 158 Ill. App. 3d at 25, 110 Ill.Dec. 257, 510 N.E.2d 1288 ; Slaughter , 275 Ill. App. 3d at 875, 212 Ill.Dec. 284, 656 N.E.2d 1118.

¶ 14 After these appellate court decisions, our supreme court decided Raintree Homes, Inc. v. Village of Long Grove , 209 Ill. 2d 248, 282 Ill.Dec. 815, 807 N.E.2d 439 (2004). There, the plaintiffs sought a declaration that the Village of Long Grove did not have the authority to pass an ordinance requiring the plaintiffs to pay impact fees when they applied for building permits. Raintree Homes , 209 Ill. 2d at 251, 282 Ill.Dec. 815, 807 N.E.2d 439. The trial court had dismissed the claim on the basis that it was barred by the one-year statute...