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City of Chicago v. Provus

SEPTEMBER 30, 1969.




Appeal from the Circuit Court of Cook County; the Hon. FRANKLIN L. KRAL, Judge, presiding. Decree affirmed.


On November 17, 1966, the plaintiff, City of Chicago (hereinafter referred to as the City), filed its verified amended two-count complaint against the defendants, Severn Provus and Birdell Provus, his wife, who were the owners of a three-story income-producing brick building in the City of Chicago. Both counts of the complaint alleged twenty-one building code violations which were prohibited by the Municipal Code of Chicago. In count one, the City prayed for the issuance of a People's Writ of Injunction against the defendants commanding the demolition of their building or, alternatively, that the court issue a mandatory and permanent injunction directing the defendants to abate their alleged public nuisance by making the necessary repairs themselves after furnishing the satisfactory proof that their structure could be safely repaired within a time certain, that they had the necessary financing to do so, and that they would furnish plans and specifications for such repairs to the Commissioner of Buildings of the City of Chicago. In count two, the City prayed for the entry of a judgment against the defendants in the amount of $2,200 per day or such other daily sum as the Court deemed proper.

In their verified answer, the defendants denied that their building violated any Building Code provisions and pleaded the doctrine of estoppel by verdict as an affirmative defense, which doctrine was allegedly applicable to four of the twenty-one violations. Attached to their answer were certified copies of the "half-sheet" statement of claim and judgment in Case No. 63 MC 44182. These documents showed that the defendant, Severn Provus, in a bench trial and after a full evidentiary hearing on the merits, had been found not guilty in the prior 1963 Municipal Court action which had alleged three Building Code violations apparently identical to four of the twenty-one violations alleged in the complaint at bar. The City had also brought the prior suit, and the same building was involved. In their verified answer, the defendants also alleged that no appeal was taken from the 1963 final judgment adverse to the City, said judgment had not been otherwise vacated, modified, or set aside, and the condition of their building, with respect to the four violations allegedly barred by the estoppel by verdict doctrine, had not changed from the date alleged in the prior complaint, February 14, 1963, to January 6, 1965, the date they filed their answer to the instant complaint.

In its reply to this affirmative defense, the City alleged that the doctrine of estoppel by verdict did not bar the instant litigation because: (1) no specific findings of fact were made in the prior suit upon which an estoppel could apply; and (2) the quantum of proof required in the prior quasi-criminal suit was a clear preponderance of the evidence whereas the instant complaint in chancery only required a mere preponderance of the evidence.

Prior to the trial, the City admitted under oath, in response to the defendants' written Requests for Admissions of Fact (Ill Rev Stats 1965, c 110, § 101.18), that the factual allegations pertaining to four of the twenty-one Building Code violations involved in the instant complaint were identical to the City's allegations in the prior 1963 Municipal Court case. At trial, opposing counsel orally stipulated to the same matter. Counsel for the defendants also introduced into evidence the certified report of proceedings pertaining to the 1963 litigation. This transcript is also included in the record before us.

After a full hearing, in which testimony was heard, the trial court entered its final decree and mandatory injunction finding in favor of the City as to some of the violations and requiring the defendants to make certain repairs; dismissing other alleged violations, some with prejudice to the City and others without prejudice; and ruling that the prosecution of the four alleged violations was barred by the estoppel by verdict doctrine. The court made no findings of fact nor entered any judgment as to the money damages sought from the defendants in count II of the instant complaint.

The City appeals only from that portion of the decree which found that the prosecution of four alleged violations was barred by the doctrine of estoppel by verdict. It has abandoned the two contentions once urged in its reply to the answer of the defendants, which latter pleading first raised the affirmative defense of estoppel by verdict. The City now contends that the doctrine of estoppel by verdict, as a matter of public policy, should not be invoked against a municipality when it is exercising its police powers and that the doctrine cannot be applied when a municipal ordinance provides that each day a violation exists constitutes a separate and distinct offense. The defendants have not cross-appealed from any portion of the decree which is adverse to them.

[1-6] The doctrine of estoppel by verdict, a branch of res judicata, was fully explained by the court in Harding Co. v. Harding, 352 Ill. 417, 426, 186 N.E. 152, 155 (1933):

". . . The principle of res judicata applies, however, to cases where, although the cause of action is not the same, some fact or question has been determined and adjudicated in a former suit and the same fact or question is again put in issue in a subsequent suit between the same parties. In such cases the determination in the former suit of the fact or question, if properly presented and relied on, will be held conclusive on the parties in the later suit, regardless of the identity of the cause of action, or the lack of it, in the two suits. When the second action between the same parties is upon a different cause of action, claim or demand, it is well settled that the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined and not as to other matters which might have been litigated and determined. In such cases the inquiry must always be as to the point or question actually litigated and determined in the original action, the burden of proof is on him who invokes the estoppel, and extrinsic and parol evidence is admissible to prove that the precise question in the second case was raised and determined in the first. (Citations omitted.) This principle is sometimes called estoppel by verdict, and the estoppel is equally available to either party, the plaintiff in support of his action or the defendant of his defense, when the circumstances warrant it. Whether the adjudication relied on as an estoppel goes to a single question or all the questions involved in the case, the fundamental principle upon which it is allowed is that justice and public policy alike demand that a matter, whether consisting of one or many questions, which has been solemnly adjudicated in a court of competent jurisdiction shall be deemed finally and conclusively settled in any subsequent litigation between the same parties where the same question or questions arise, except where the litigation is a direct proceeding for the purpose of reversing or setting aside such adjudication. (Citations omitted.)"

In oral argument before this court, the City conceded that the doctrine of estoppel by verdict is applicable to this case. The main thrust of its argument is that this court should relax the application of the doctrine in cases involving the exercise of a municipality's police power. A question of public policy is thereby presented to this court in which we are called upon to weigh two principles of law, both favored in our system of jurisprudence; namely, regulatory police power and estoppel by verdict.

In support of its contention that the application of estoppel by verdict in the instant case was contrary to judicial opinion and public policy, the City chiefly relies upon People v. Levy Circulating Co., 17 Ill.2d 168, 161 N.E.2d 112 (1959), in which the court held, as a matter of public policy, that the doctrine of estoppel by verdict did not bar the State when collecting public revenues by way of taxation. It expressly overruled the prior case of People v. Psi Upsilon Fraternity, 324 Ill. 540, 155 N.E. 279 (1927), which had come to a contrary result.

In the Levy case, the court recognized, as clearly erroneous, the prior judgments of the trial court which had held the defendant corporation's capital stock to be exempt from assessment of a personal property tax. The reviewing court chose not to penalize the State for its failure to directly appeal these patently erroneous judgments, but allowed the People to collaterally attack them, although the prior judgments were not void. Inherent in its ruling was the apparent conviction that in revenue matters, the people of this State, who also pay taxes, will not be barred by the doctrine of estoppel by verdict when its public servants do not directly appeal a clearly erroneous judgment having to do with the collection of revenues. The court, however, expressly limited its holding to matters involving the public revenues.

The instant case does not involve the collection of public revenues. Rather, it has to do with a municipality's exercise of its regulatory police power. In our opinion, this distinction is determinative of this case. In City of Elmhurst v. Kegerreis, 392 Ill. 195, 64 N.E.2d 450 (1946), a zoning case, the court held a municipality barred by the doctrines of res judicata and estoppel by verdict from relitigating, in an injunction suit, a particular portion of its zoning ordinance which had been passed on by another court, adversely to the City, in a prior mandamus suit. The City had not appealed the prior adverse judgment. The mandamus litigation had been between Kegerreis and the City's Superintendent of Building Construction whereas the injunction suit was between the City and Kegerreis. The court held the City to be in privity with its Superintendent who, in the prior mandamus case, had been sued only in his official capacity so as to legally compel him to issue a building permit and thereby perform a corporate act of the City. In discussing the doctrines of res judicata and estoppel by verdict, the court stated at p 208 of 392 Ill, p 455 of 64 N.E.2d, as the apparent rationale for its decision:

". . . In this suit the appellant (City of Elmhurst) seeks to relitigate the question of the validity of the zoning ordinance. If that issue had been determined adversely to the plaintiff in the mandamus suit, the appellee here, we do not anticipate that anyone would contend that he could relitigate that question against the city in this suit, although it (the city) was not the defendant named in the mandamus suit. For the same reason, if the city had been named as the defendant in the mandamus suit, no one could successfully contend that the superintendent of building construction would be permitted, in a ...

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