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County of Cook v. Patka

OPINION FILED JUNE 5, 1980.

THE COUNTY OF COOK, PLAINTIFF-APPELLEE,

v.

JOSEPH PATKA ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS T. DELANEY, Judge, presiding.

MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

After the defendant's house was ordered demolished as a public nuisance, the court, on the county's request, awarded the county a demolition lien. The defendant appeals contending that (1) the county waived its rights to a lien when the assistant state's attorney announced at trial it would not seek a lien; (2) the county should be estopped by its failure to give notice of its intention to seek a lien until after the house was demolished and the defendant's husband died; (3) no proper notice was given before the lien was awarded. We find no reversible error and affirm.

The original defendants, Joseph and Anna Patka, owned and lived in a house in Stickney Township, Illinois. Because of the condition in which the property was kept, it had become a public and private nuisance. Prior to August 21, 1978, the county of Cook repeatedly attempted to force the defendants to abate the nuisance. On July 20, 1976, a judgment was entered against the defendants ordering them to pay the sum of $2,000 plus costs for failure to comply with a court order to clean up the premises and place them in an environmentally safe condition. Defendants failed to pay the fine. On March 23, 1978, the defendants were again ordered by the court to cease creating a nuisance. It also ordered that the judgment of June 21, 1976, was to stand as a lien on the property.

On August 21, 1978, the county filed a petition for demolition because the defendants failed to abide by the March 23, 1978, decree ordering them to put the property in a sightly and environmentally safe condition. The county alleged in detail how the premises were in an unsafe condition and were unfit for human habitation, and further alleged that the building was not economically repairable. The county therefore prayed that the court authorize the county to demolish the structure and remove the junk and debris on the premises and that the county be partially reimbursed for its expenses and costs by the sale of the salvage realized from the demolition. In the complaint the county offered to provide a grant of up to $5,000 to help the defendants pay for their moving costs and to relocate in habitable quarters. The defendants denied the allegations and demanded proof.

At the trial overwhelming evidence was introduced showing that the property both inside and out was, as alleged, a nuisance and unfit for human habitation. The assistant state's attorney, after summing up the prior history of the litigation, stated that the planning department had advised him to advise the court that there would be $5,000 available to help the defendants move and that if the court so ordered it would be available within two weeks. All that was needed was a technical approval. He also stated that the county was not asking for a lien with regard to the demolition, but would bear that expense so that the defendants would have the property free and clear.

The court entered a judgment on September 6, 1978, finding the property a menace to public health and safety and authorizing the county to demolish the structure. It also ordered the county to pay the defendants $5,000 to defray their moving expenses as soon as they had moved from the property. At the trial, the judge instructed defense counsel to inform his clients that they were to be out of the building in two or three weeks.

In fact, the defendants did not move as directed, and the case was repeatedly continued at the request of defense counsel. During the lengthy delay, Joseph Patka died. Thereafter on April 30, 1979, the sheriff of Cook County was ordered to remove the remaining defendant, Anna Patka, from the premises. As soon as this had been done, the property was demolished and cleaned up. At a final hearing on May 16, 1979, the court determined that the premises had been cleaned up and made environmentally safe and granted the county a lien for demolition costs. It appears that while notice was given both parties of the status hearing, no specific notice was given the remaining defendant that the county intended to seek a demolition lien.

On June 15, 1979, the defendant moved to vacate the order granting a lien on the grounds that:

(1) the county at the hearing expressly waived its right to a lien;

(2) the county should be estopped from asserting a demolition lien because

(a) the defendant relied on the county's representation to that effect and to allow the demolition lien would greatly reduce the $5,000 that the county had paid the defendants and would prejudice the defendant in that the opportunity to contest the adequacy or inadequacy of the $5,000 relocation expense was no longer available to the defendant;

(b) the defendants had been compelled to purchase a home in a short interval (in fact they purchased a two-flat) with the intention of applying the proceeds from the sale of the vacant land (free and clear from any demolition lien) toward the mortgage balance of said purchase, and to allow a lien at this late date would greatly diminish the amount of money defendant had expected to receive;

(c) the county in its petition did not ask for a demolition lien.

(3) since the defendant was unaware of the county's turnabout concerning the demolition lien until May 16, 1979, defendant was taken by surprise and did not have an adequate opportunity to ...


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