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07/08/88 Jeanette Glaser, v. John J. Kazak

July 8, 1988

JEANETTE GLASER, PLAINTIFF-APPELLEE

v.

JOHN J. KAZAK, JR., DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

527 N.E.2d 379, 173 Ill. App. 3d 108, 122 Ill. Dec. 881 1988.IL.1071

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

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. MURRAY and SULLIVAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

Plaintiff, Jeanette Glaser, filed a foreclosure complaint against the defendant, John J. Kazak, Jr. The chattel involved and owned by defendant was a 1940 Boeing Stearman airplane, Model A75N1, which bore Federal Aviation Administration Registration No. N -- 265 HC. During a windstorm the aircraft was blown from the Rochelle Airport, where it was tacked down and stored, onto plaintiff's adjacent farmland. The defendant filed an answer and a counterclaim against the plaintiff and a third-party complaint against the third-party defendant, Air Wrecks, the company which plaintiff hired to remove, transport and store the aircraft miles away in Chicago. Following a bench trial, the trial court entered judgment for the plaintiff in the amount of $14,417.20 and ordered a sheriff's sale of the aircraft to partially satisfy the personal judgment rendered against the defendant. The defendant appeals. We reverse.

The issues presented for review are (1) whether the trial court properly found that a storage lien was created against the defendant's aircraft pursuant to "An Act for the better protection of any person, firm, or corporation expending labor, skill, or materials . . ." (Ill. Rev. Stat. 1983, ch. 82, par. 40) (Illinois Chattel Lien Act); (2) whether the plaintiff converted defendant's aircraft; and (3) whether the personal judgment entered against the defendant was contrary to the provisions of the Illinois Chattel Lien Act and against the manifest weight of evidence.

On April 1, 1982, a windstorm blew defendant's 1940 Boeing Stearman biplane off the Rochelle Airport, where it was kept, onto adjacent farmland which was rented by the plaintiff.

On May 3, 1982, the defendant made two phone calls to the plaintiff's residence. In the first phone call the defendant spoke to the plaintiff. During the second phone call defendant spoke to plaintiff's husband. It appears from the record that plaintiff's husband, who died September 27, 1982, gave the defendant permission to leave the aircraft on plaintiff's farmland for an indefinite period of time.

Because of the death of her husband, plaintiff decided to cease farming. Plaintiff was required by the owner of the farmland to return the land in the same condition in which it was at the beginning of the leasehold. Therefore, according to the plaintiff on January 23, 1983, after giving notice to the Ogle County sheriff's department, plaintiff had the aircraft removed from her leased farmland by the third-party defendant, Air Wrecks, a professional aircraft salvage and storage company located in Chicago, Illinois, which removed the aircraft on that date. About two months later in March of 1983, plaintiff filed an in rem action in the Ogle County court seeking to have the aircraft declared "lost or abandoned" property and to have the title to the aircraft awarded to her. On April 7, 1983, defendant filed a claim in the Ogle County circuit court alleging his ownership of the aircraft. On April 8, 1983, plaintiff sent the defendant a letter requesting that he claim his aircraft and pay the removal expenses involved in removing the aircraft from the farmland in Ogle County to Chicago and the storage expenses in Chicago. The defendant refused. On April 27, 1983, plaintiff sent another letter requesting the defendant claim his aircraft and pay the storage and removal expenses. The defendant did not respond to plaintiff's April 27, 1983, letter.

On August 6, 1983, prior to the resolution of the Ogle County action, plaintiff filed a notice of storage lien against the defendant in Cook County. Subsequently, the Ogle County trial court held that the aircraft was not "lost or abandoned" but belonged to the defendant. On July 5, 1984, the defendant filed a denial of the storage lien.

On July 10, 1984, the plaintiff sent a letter to the defendant again requesting that he claim his aircraft and pay the costs of the storage lien. On July 16, 1984, defendant's counsel by letter informed the plaintiff that "Mr. Kazak has been financially in a very tight position and has not been able to come up with the funds to cover his airplane." Following the receipt of this letter plaintiff filed the instant complaint for foreclosure. *fn1

On May 30, 1985, the defendant filed an answer and a counterclaim against the plaintiff praying for the trial court to enter judgment in his favor and against the plaintiff for possession of the aircraft, damages for the wrongful taking, detention of and physical damage to the aircraft in a total sum not less than $20,000; punitive damages in an amount not less than $20,000; plus reasonable attorney fees and costs. On May 30, ...


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