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G & S Mort. & Inv. v. Evanston

OCTOBER 13, 1970.

G & S MORTGAGE & INVESTMENT CORPORATION, AN ILLINOIS CORPORATION, PLAINTIFF-APPELLANT,

v.

CITY OF EVANSTON, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. DONALD J. O'BRIEN, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

In 1925, the City of Evanston (defendant) issued a permit authorizing the construction of a 10-unit apartment building at 1003-1009 Greenleaf Street. The building now contains 12 units. In 1968, the defendant conducted an intensive check for zoning violation of various sections of the City, as a result of which a quasi-criminal complaint was filed on September 11, 1968, against G & S Mortgage & Investment Corp. (plaintiff). This complaint charged a violation of the Evanston Zoning Ordinance in that three units more than allowed were maintained in the building. (Since that action, one of the three excess units has been vacated.)

On November 22, 1968, plaintiff was found guilty of the violation of a zoning ordinance and fined $100, plus costs. Four days later, the plaintiff filed a complaint asking for a temporary restraining order to prevent the defendant from instituting any further quasi-criminal proceedings based upon the alleged violation. After a hearing the chancellor denied the restraining order. The plaintiff appeals, asking that the order refusing issuance of the temporary injunction be reversed.

The defendant argues that plaintiff is barred from proceeding with its complaint seeking a temporary injunction on the ground that on November 22, 1968, plaintiff was found guilty of a zoning violation; that at that time it paid the fine but took no appeal from that judgment. In its brief defendant states: "The law is of course well settled that a former adjudication is a bar to a subsequent action on the same point between the same parties. The very allegations of the plaintiff in this action with respect to nonconforming use status and the validity of the zoning ordinance were affirmative defenses in the suit before the magistrate."

The defendant had filed a motion to dismiss plaintiff's complaint, and when the plaintiff filed an amended complaint, defendant filed another motion to dismiss that complaint. The theory underlying that motion was that all defenses available to the plaintiff could have been raised in defense of the prior quasi-criminal action; that the finding of guilty in that action bound both parties to the litigation, and that those issues could not be relitigated. This is an attempt to apply the rule of res adjudicata. However, that doctrine requires that the parties to subsequent litigation be the same as those previously involved, and that the cause of action be the same.

In City of Elmhurst v. Kegerreis, 392 Ill. 195, 64 N.E.2d 450, the court said at page 203:

". . . if the first suit was between the same parties and involved the same cause of action, the judgment in the former suit is conclusive, not only as to all questions actually decided but as to all questions which might properly have been litigated and determined in that action." (Emphasis supplied.)

Here the cause of action in the chancery division was not the same as that in the quasi-criminal proceeding; thus res adjudicata is inapplicable.

The doctrine of estoppel by verdict does not require that the cause of action be the same.

"When some specific fact or question has been actually and directly in issue and has been adjudicated and determined by a court of competent jurisdiction in a former suit, and the same fact or question is again put in issue in a subsequent suit between parties or their privities who were parties in the former suit, its determination in the former suit, if properly presented and relied upon, is conclusive upon the parties and persons in privity with them in the latter suit, without regard to whether or not the cause of action is the same in both suits, and it cannot be again litigated in the subsequent suit upon the same or a different cause of action whatever may have been the nature of the first action or of the second action in which the estoppel is set up: . . . ." Rose v. Dolejs, 7 Ill. App.2d 267, 275, 129 N.E.2d 281.

In the instant case, neither the verdict nor the report of proceedings in the quasi-criminal action was before the chancery division, and they are not before this court; therefore, it is difficult to know what issues were litigated, and the doctrine of estoppel by verdict cannot be employed. See City of Chicago v. Provus, 115 Ill. App.2d 176, 180, 253 N.E.2d 182, for the proper procedure to be followed in raising an estoppel by verdict.

At the hearing on the complaint for temporary restraining order, the following facts were disclosed. In 1925, the City of Evanston issued a building permit authorizing 10 units to be included in the projected building. Although the complaint states that "the building which was actually constructed on the said premises in 1925 contained thirteen apartments; that the defendant made no objection to the additional number of apartments upon their completion in 1925 or in any subsequent year prior to 1968; . . ." no evidence was introduced to prove these assertions.

The plaintiff seeks to prevent the City of Evanston from prosecuting it for the zoning violation, because it received a letter from a City official indicating that there were no violations other than a plumbing violation. A manually-operated check valve in the basement apartment had to be replaced due to a malfunction. The City learned of this through a complaint about the valve received on September 19, 1966. The supervisor of the Property Standards Division, who was responsible for directing the area inspections in Evanston, testified that as a result of the complaint a standard inspection was made of the premises. He explained that pursuant to such a complaint "we go directly to the area of the complaint. This is the only area we are interested in."

After the inspection was completed, a letter was mailed to the then owner of the building, which letter read in part: "An inspection of the building controlled by you at 1003 Greenleaf Street on October 14, 1966 revealed the following violations of Ordinances, of the City of Evanston: . . . ." The violation pointed out was that the plumbing fixture was not in a good sanitary working condition. The plaintiff argues that it relied on this letter when purchasing the building; that the letter is tantamount to a statement by a City official that the only ordinance violation ...


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