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Gardziella v. City of Chicago

January 24, 2003

SIGFRIED GARDZIELLA, PLAINTIFF-APPELLANT,
v.
THE CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County Honorable Nancy Drew Sheehan, Judge Presiding.

The opinion of the court was delivered by: Justice O'mara Frossard

UNPUBLISHED

Plaintiff Sigfried Gardziella filed a pro se complaint in the trial court to obtain administrative review of a decision of the City of Chicago department of administrative hearings pursuant to the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2000)). Defendant City of Chicago department of buildings had obtained a default judgment of $19,550 on its complaint for building code violations on plaintiff's property, a two-unit residence. An administrative law officer (ALO) refused to set aside the default because plaintiff's motion to set aside the default was not filed within 21 days of the issuance of the order of default as required by section 2-14-108 of the Chicago Municipal Code (Chicago Municipal Code §2-14-108 (1998)). Plaintiff filed a pro se complaint for administrative review, which was amended by counsel. The circuit court confirmed, finding plaintiff's motion to set aside the order was untimely.

On appeal, plaintiff contends that the trial court erred in dismissing his complaint under section 2-14-108 because his petition set forth lack of notice and service of process. Plaintiff argues that he has been unable to establish his claim of lack of notice of the proceeding, and he was denied due process because he was not afforded a hearing or timely notice of default.

Mary Ann DiVito, an employee of defendant, filed a certification pursuant to section 1-109 of the Code of Civil Procedure (735 ILCS 5/ 1-109 (West 2000)) that she served a violation notice, summons and report form to plaintiff at 4713 North Drake Avenue by placing the documents in a sealed envelope with proper postage and depositing them in the United States mail on December 13, 1999. The documents stated that a hearing "will be held 12/27/99" at 1:30 p.m. in room 0114, 400 West Superior Street and contained a telephone number to call, "[i]f you have any questions concerning these violations."

On December 27, 1999, plaintiff did not appear. The presiding ALO stated that proof of service on plaintiff on December 13 in the file was true and correct and defendant had made a prima facie case. The ALO found plaintiff in default and liable at $500 a count for 39 counts and $50 costs, a total of $19,550.

Plaintiff filed a pro se motion on January 24, 2000, to set aside the December 27, 1999, default stating he did not receive notice of the hearing or list of violations. This motion was set for 12 noon on February 7, 2000. When plaintiff did not appear by 4:55 p.m., the ALO found no good cause was shown and denied the motion to set aside the default.

On February 14, 2000, plaintiff filed a pro se motion to set aside the February 7, 2000, order. The motion was set for a hearing on February 28, 2000. Plaintiff appeared pro se. He stated he thought February 20 was the date apparently for a hearing on his January 24 motion. He came on February 14 and was told the hearing was already held on February 7. Plaintiff did not explain why he did come in February 14 or why he thought February 20 was the date. The ALO, after saying he reviewed the evidence, found the February 14 motion to set aside was not timely filed within 21 days of the original default and, therefore, denied plaintiff's motion.

Plaintiff, pro se, sought administrative review. The record contains a statement by plaintiff filed July 5, 2000, setting forth his position. He obtained counsel, who twice amended the pro se complaint. Plaintiff's complaint for administrative review was denied on July 2, 2001. The trial court found no basis to vacate the February 28, 2000, order because it was not brought before the agency in a timely fashion.

Plaintiff first contends his motion to vacate was improperly dismissed on the basis of untimeliness. He argues he set forth both his lack of notice and the lack of proper service of process. He also argues he was denied a hearing.

Defendant responds that there was no good cause to set aside the December 27, 1999, default or the February 7, 2000, order and that the administrative record establishes defendant gave him notice by regular mail. El Sauz, Inc. v. Daley, 328 Ill. App. 3d 508, 519-20 (2002) (service by regular mail was reasonably calculated to provide actual notice of administrative order).

When the decision of an administrative agency presents a mixed question of law and fact, the standard of review is clearly erroneous, and an agency's decision will be deemed clearly erroneous only where the reviewing court, on the entire record, is " 'left with the definite and firm conviction that a mistake has been committed.' " AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 395 (2001), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542 (1948). Factual findings of an agency are prima facie true and correct and may be set aside only if against the manifest weight of the evidence, while questions of law are subject to de novo review. Enesco Corp. v. Doherty, 314 Ill. App. 3d 123, 131 (2000). We review the agency's decision not the decision of the circuit court, and determinations as to the weight of the evidence are left to the agency. Swoope v. Retirement Board of the Policemen's Annuity & Benefit Fund, 323 Ill. App. 3d 526, 529 (2001).

Plaintiff's first issue turns on section 2-14-108 of the Municipal Code of Chicago, which provides in pertinent part: "Petition to set aside default order.

(a) An administrative law officer may set aside any order entered by default and set a new hearing date, upon a petition filed within 21 days after the issuance of the order of default, if the administrative law officer determines that the petitioner's failure to appear at the hearing was for good cause or, at any time, if the petitioner establishes that the petitioner was not provided with proper service of process. If the petition is granted, the administrative law officer ...


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