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Hapeniewski v. City of Chicago Heights

OPINION FILED AUGUST 23, 1985.

WILLIAM HAPENIEWSKI, PLAINTIFF-APPELLANT,

v.

THE CITY OF CHICAGO HEIGHTS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Brian B. Duff, Judge, presiding.

PRESIDING JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 8, 1986.

Plaintiff, William Hapeniewski, appeals from an order of the circuit court dismissing his complaint against defendant, the city of Chicago Heights (city), for failure to bring this action within the two-year limitations period or within one year after plaintiff's voluntary dismissal of a previously filed action. On appeal plaintiff contends that (1) section 2-101(e) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1981, ch. 85, par. 2-101(e)) exempts claims brought under section 1-4-7 of the Illinois Municipal Code (Code) (Ill. Rev. Stat. 1981, ch. 24, par. 1-4-7) from the two-year statute of limitations provision of the Tort Immunity Act (Ill. Rev. Stat. 1981, ch. 85, par. 8-101) and, therefore, a five-year limitations period applies; (2) the one-year period for refiling plaintiff's earlier action, which was voluntarily dismissed, began to run only after all orders pertaining to the action had been entered; and (3) a five-year statute of limitations applies to all counts of plaintiff's complaint. We affirm.

The events leading up to the instant action are as follows. They arise out of three separate actions brought in the circuit court. Pursuant to an order entered in a chancery action brought by the city on July 29, 1977, the city demolished a building owned by the plaintiff. On September 6, 1979, plaintiff filed a supplemental petition as a cross-claim for wrongful demolition in this chancery action contending that he had not received notice of the demolition proceedings. This supplemental petition was voluntarily dismissed by the plaintiff on September 26, 1979. Plaintiff later brought an action for wrongful demolition in the law division. He voluntarily dismissed this action on November 19, 1979. The next relevant date is February 20, 1980, when the city's complaint in chancery was dismissed. At that time, the court granted the city leave to file an amended complaint within 30 days and continued the case generally pending any pleadings filed by the parties. On June 13, 1980, plaintiff was denied leave to file an amended supplemental petition in the chancery action for wrongful demolition. The trial court instructed the plaintiff to file an action in the law division.

On April 13, 1981, plaintiff filed the instant action in the law division for wrongful demolition against the city. His second amended complaint sought relief in five counts for wrongful demolition, negligence, deprivation of property without due process of law in violation of both the Federal and State constitutions and section 1983 of the Civil Rights Act (42 U.S.C.A. sec. 1983 (1981)). The city filed a motion to dismiss on the grounds that each count was barred by the two-year statute of limitations period. After a hearing on the motion, the trial court granted the city's motion on March 13, 1984, ruling that the two-year and not the five-year statute of limitations applied to all counts and that the instant action was not refiled within one year of the voluntary dismissal of plaintiff's chancery petition on September 26, 1979. Plaintiff now appeals the trial court's dismissal of this action.

OPINION

• 1 Plaintiff's first contention is that section 2-101(e) of the Tort Immunity Act exempts claims filed under section 1-4-7 of the Code from the two-year statute of limitations period of the Tort Immunity Act.

Section 2-101(e) provides:

"Nothing in this Act affects the right to obtain relief other than damages against a local public entity or public employee. Nothing in this act affects the liability, if any, of a local public entity or public employee, based on:

e) Section 1-4-7 of the `Illinois Municipal Code', approved May 29, 1961, as heretofore or hereafter amended." Ill. Rev. Stat. 1981, ch. 85, par. 2-101(e).

Section 1-4-7 of the Code provides:

"The municipality shall be liable for any injury occasioned by actionable wrong to property by the removal, destruction or vacation, in whole or in part, of any unsafe or unsanitary building, by any municipal officer, board or employee charged with authority to order or execute such removal, destruction or vacation, if such removal, destruction or vacation is pursuant to valid statutes, ordinances or regulations, and if such officer, board or employee has acted in good faith, with reasonable care and probable cause." Ill. Rev. Stat. 1981, ch. 24, par. 1-4-7.

Section 8-101 of the Tort Immunity Act states:

"No civil action may be commenced in any court against a local entity for any injury unless it is commenced within 2 years from the date that the injury was received or the cause of action ...


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