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Stirs, Inc. v. City of Chicago

AUGUST 15, 1974.

STIRS, INC., PLAINTIFF-APPELLANT,

v.

THE CITY OF CHICAGO, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND J. BERG, Judge, presiding.

MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:

Mr. JUSTICE DEMPSEY delivered the opinion of the court:

Rehearing denied December 5, 1974.

The plaintiff, Stirs, Inc., brought suit in the chancery division of the Circuit Court against the City of Chicago for injuries caused by the demolition of a building owned by Stirs, located at 3625 South Rockwell Avenue, Chicago. The complaint contained two counts, the first sought removal of the City's lien as an illegal cloud on title, the second prayed for damages incurred as a result of the demolition. The chancellor found the demolition illegal, granted summary judgment and set aside the City's lien. The suit was then transferred to the law division for trial on the damages claimed in Count II. The plaintiff appeals from the law court's order assessing damages in the sum of $1 and from the denial of its petition for a new trial.

The sole issue on appeal is whether the court's award of only nominal damages for the loss in property value caused by the building's destruction and for legal fees expended by Stirs to remove the City's lien was reversible error.

The property was sold in March 1968 by the county collector for non-payment of the 1966 real estate taxes. Stirs acquired the certificate of purchase in December 1970 and was issued a tax deed by the Circuit Court on February 9, 1971. The deed was recorded in the County Recorder's office on February 22. Less than a month before, January 26, 1971, the City had filed an action to demolish the building on the property. Lis Pendens notice of the suit was recorded on March 24th, Section 253a of the Revenue Act (Ill. Rev. Stat. 1969, ch. 120, par. 734a) provides that tax purchasers shall be made a party to any proceedings for demolition. Contrary to this requirement, Stirs was neither named a party nor notified of the City's suit. The demolition was completed in January 1972, and it was after this, according to the testimony at the trial of this cause, that Stirs learned there had been a demolition proceeding.

At the trial Stirs produced two witnesses, both real estate brokers. The first, Jocelyn Blair, was a member of the Chicago Real Estate Board, had been a broker for 10 years, and in that time had processed approximately 200 purchases and sales. She testified that she was familiar with the property at 3625 South Rockwell and had personally inspected the premises, including the interior of the two-story, frame building. She also claimed knowledge of real estate values in the area around the site, based on long residency in the neighborhood and her awareness of prices recently paid by area buyers. It was her estimate that the destruction of the dwelling diminished the property's value by $7,500. The assistant corporation counsel attacked the competency of her testimony because she had not personally handled the sales for which she quoted prices, but his objection was overruled. He then brought out that she was the wife of Allan Blair, the attorney for the plaintiff.

Geraldine Hoffman had been a broker for 5 years, and was a member of the South Side Real Estate Board. She had participated in approximately 400 sales. She predicated her valuation on a personal inspection of the structure at 3625 South Rockwell in February 1971. She had found it to be in "poor" condition, but located in a neighborhood of well-kept homes, some of them new, and based on her "general knowledge" of real estate values in the City, she concurred with Jocelyn Blair that the destruction of the building had diminished the value of the property by $7,500.

Miss Hoffman identified herself as the secretary and vice-president of the plaintiff Stirs, and testified that a $2,000 legal fee had been paid to Allan Blair for his services in removing the City's demolition lien on the property. Upon cross-examination she also revealed that Blair was the treasurer of Stirs.

No estimates were offered by the City as to the property's worth, either with the building or without it. Allan Small, a code enforcement inspector for the City Department of Buildings, testified that he had seen the property over regular intervals from July of 1970 until the time of demolition. He stated that during this period the building remained in the same condition, and that it was vacant and locked. He had not seen the interior of the building and had no knowledge of its condition. His work sheet, introduced into evidence, declared that in his opinion the building was ten per cent depreciated, although in his testimony he described it as hazardous and dilapidated.

Other witnesses presented by the City were residents of the area. They testified to the poor exterior appearance of the house, but none had seen its interior prior to demolition.

• 1 Stirs produced uncontested evidence of the value of the property and of the substantial loss sustained as a result of the demolition. Since the court gave no reasons for fixing damages at $1.00, we must conclude that the court did not believe the plaintiff's witnesses and found that the City only committed a technical trespass. This implied finding, as any factual finding of a trial court, must be accorded the same weight as the verdict of a jury and will not be reversed unless it is against the manifest weight of the evidence. Hill v. Meister (1971), 133 Ill. App.2d 678, 273 N.E.2d 643.

• 2 As a general rule, tort damages to real property are measured by the difference in market value before and after injury to the premises. (Donk Bros. Coal & Coke Co. v. Novero (1907), 135 Ill. App. 633.) The two witnesses who testified as to value agreed that the property's worth had been diminished by $7,500 because of the City's removal of the improvements. The witnesses were licensed real estate brokers and experienced appraisers. The City argues that both witnesses were incompetent to testify on the issue of damages because they did not provide a sufficient foundation for their estimate of the property's value, and that their testimony was biased because of their personal interest.

• 3-7 The general rule is that a witness may express his opinion as to the market value of real estate where it appears his opinion is based on some competence not possessed by the general public. Ownership or purchase and sale of generally similar real estate in the area is considered a sufficient foundation for an expression of opinion as to value. (Department of Public Works & Buildings v. Oberlaender (1968), 92 Ill. App.2d 174, 235 N.E.2d 3, aff'd, 42 Ill.2d 410, 247 N.E.2d 423.) But these are not the exclusive criteria for establishing the peculiar competency of a witness. The opinion of a professional appraiser is competent when based on a personal inspection of the premises and knowledge of the general value of real estate in the area. (Department of Public Works & Buildings v. Oberlaender, supra.) Mrs. Blair, who had been used by the City itself as an appraiser, was qualified in both respects. Miss Hoffman, on the other hand, never stated that she was personally familiar with real property values in the area of the property, although she did claim familiarity with market values elsewhere in the City. However, the City did not object to her testimony, and objections to the admissibility of evidence or to the competency of witnesses cannot be made for the first time in a court ...


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