Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

City of Peru v. Bernardi

OPINION FILED JANUARY 17, 1980.

THE CITY OF PERU, PLAINTIFF-APPELLEE,

v.

EUGENE BERNARDI, SR., ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of La Salle County; the Hon. WENDELL THOMPSON, Judge, presiding.

MR. PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 28, 1980.

This appeal arises from a complaint for foreclosure of a demolition lien filed by the plaintiff-appellee, City of Peru, against the defendants-appellants, Eugene and Teresa Bernardi, the owners of the land upon which formerly stood the Peru Hotel. The complaint alleged that, pursuant to a previous court order, the Peru Hotel was demolished and that the city had paid for the demolition and requested a judgment for the amount of the expenditure and foreclosure of its lien. The defendant denied the city's right to recover the amount they claimed. The trial court found in favor of the city and the defendant appeals. We affirm.

The city demolished the Peru Hotel pursuant to an order entered in a cause entitled City of Peru v. Bernardi, La Salle County No. 74-1-103MC, which was affirmed by this court in City of Peru v. Bernardi (1976), 43 Ill. App.3d 31, 356 N.E.2d 636. The decree provided that the city shall have a first lien upon the premises for its expenditure. Prior to demolition the plaintiff hired an engineering firm to prepare specifications for the demolition and invited bids for the work in August 1975. On August 18, 1975, the city awarded the contract to the lowest bidder, Higgins Construction Company, which submitted a bid of $27,498.60. Higgins' proposal contained an offer to deduct $4,400 from the price if the basement of the structure could be filled with rubble instead of dirt. The city decided to accept the base bid of $27,498.60, feeling that earth fill would be more satisfactory.

On August 25, 1975, a major fire occurred which resulted in the roof structure being burned and fallen in, one-third of the fourth floor being burned and fallen and one-sixth of the third floor being burned and fallen. There was some dispute as to whether the fire made demolition of the structure more or less expensive. After the fire, Jack Boehm, a competitor of Higgins, made an offer to the Bernardis to demolish the structure for $17,000, but he never made this offer to the city.

On August 26, 1975, Higgins moved equipment to the demolition site. Assembling took place on August 27 and 28 and actual demolition commenced on August 29. By September 24, 1975, the building had been torn down and only grading and cleanup remained. Higgins' records shown no work being performed between October 2, 1975, and November 3, 1975. From November 3 to November 5 the sidewalks around the site were worked on. The last day work was done on the project occurred on November 25, 1975, when there was placement of some dirt around the sidewalk.

The city filed its claim of lien on December 23, 1975, consisting of a sworn statement from the city clerk that work was started on August 28, 1975, and completed on October 25, 1975. The city clerk denied personal knowledge of the starting and completion dates, stating she received this information from the city engineer, Mr. Etzenbach. The trial court found that the work done in November was part of the demolition, that the statement of lien complied with the intended purpose of the demolition statute and that the sum spent by the city was a reasonable amount. It then entered judgment for the city for $27,498.60 and foreclosure of its lien. The defendant then filed a post-trial motion which was denied, and then filed this appeal.

On appeal, defendant raises two issues: (1) whether the trial court erred in finding that the city had a valid lien under the demolition lien statute; and (2) whether the trial court's decision that the reasonable cost of demolishing the structure was $27,498.60 was against the manifest weight of the evidence.

Defendant urges that the city did not have a valid lien under the demolition statute on two grounds, that the notice filed was not timely and that the notice did not state the date or dates when the expense occurred. Under the demolition statute, "The cost of such demolition or repair incurred by such municipality * * * is recoverable from the owner or owners of such real estate and is a lien thereon * * * provided that, within 60 days after such repair or demolition, the municipality * * * who incurred such cost and expense shall file notice of lien of such cost and expense incurred in the office of the recorder of deeds in the county in which the real estate is located * * *. The notice must consist of a sworn statement setting out * * * (3) the date or dates when the cost and expense was incurred by the municipality * * *." Ill. Rev. Stat. 1975, ch. 24, par. 11-31-1.

Defendant argues that the building was razed by September 24, 1975, and therefore, demolition was completed by September 24. Defendant argues that the work on the sidewalks, which was the only work done after September 24, is not demolition. If it is not, and demolition was completed by September 24, then the city's filing of notice on December 23 was not timely.

In support of his contention, defendant cites several cases which distinguish between the razing of a building and the removal of the rubble afterwards to show that "demolish" refers only to razing the building. We do not find these cases persuasive. The only Illinois case defendant cites, Lockwood v. Goldman (1952), 345 Ill. App. 324, 102 N.E. 828, is a contract case dealing with parol evidence. In that case the court found that, as between themselves, the parties had not intended for the defendant to remove the rubble and, therefore, in that contract, demolition did not encompass removing the rubble. Thus, Lockwood has no precedential value in determining what the legislature intended the word "demolish" to mean.

Defendants cites two cases from other jurisdictions which he claims support his contention. They are both inapposite. Durrett v. Woods (1923), 155 La. 533, 99 So. 430, refers to a Louisiana workmen's compensation statute which used both the words "demolition" and "removal," and that court therefore found that the legislature intended to create separate categories. The statute in the instant case does not create such a dichotomy. Therefore, Durrett is not applicable here.

Defendant's reliance on Lexington Insurance Co. v. Ryder System, Inc. (1977), 142 Ga. App. 36, 234 S.E.2d 839, is also misplaced. Lexington dealt with an insurance contract in which the contract used both "demolition" and "removal," thus creating a situation in which removal of debris was covered even though it wasn't caused by demolition. For that reason the court held that demolition and removal were not synonymous. While we agree that the terms are not synonymous, Lexington is not applicable in determining whether or not, in the demolition lien statute, demolition encompasses removal.

• 1 We believe that, as used in the demolition lien statute, the word demolition includes removal of the debris caused by the demolition. The purpose of the demolition statute is to provide municipalities the power to abate public nuisances which may prove detrimental to public health, safety and welfare. (City of Chicago v. Logan (1965), 56 Ill. App.2d 291, 205 N.E.2d 795; City of Chicago v. Mulligan Enterprises, Inc. (1960), 27 Ill. App.2d 481, 170 N.E.2d 13.) Razing a building is hazardous activity which results in rubble strewn around the site. If demolition were to be so narrowly construed as to only mean razing, the city would still be left with an unsafe situation. Making the site safe again for the public must include disposing of the rubble ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.