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City of Chicago v. Alessia

March 31, 2004

[5] THE CITY OF CHICAGO, A MUNICIPAL CORPORATION, PLAINTIFF-APPELLANT,
v.
GUY ALESSIA, DEFENDANT-APPELLEE (AARON MOORE, GMAC MORTGAGE CORPORATION, KAREN YOUNGBLOOD, CONNIE JONES, AND CONTIMORTGAGE CORPORATION, DEFENDANTS).



[6] Appeal from the Circuit Court of Cook County. Nos. 00 M1 404597, 00 M1 404598, 00 M1 404600 The Honorable Sebastian T. Patti, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Fitzgerald Smith

[8]  Plaintiff City of Chicago, a municipal corporation (plaintiff), brought suit against defendant Guy Alessia (defendant) *fn1 alleging that defendant completed construction work exceeding that allowed by permit on three separate properties in violation of an ordinance found in the Chicago Municipal Code (Code). See Chicago Municipal Code § 13-12-050 (1999). The trial court held that defendant had violated the Code and entered judgment against him on all three properties in the amount of $20,000 in fines and penalties. Plaintiff filed a motion to reconsider this amount pursuant to the mandates of the ordinance. The trial court denied plaintiff's motion, but modified its judgment to increase the fines against defendant to $21,000. Plaintiff now appeals both the trial court's original holding and its denial of the motion to reconsider, contending that the fine imposed is void because it is outside the amount designated by the ordinance. Plaintiff asks that we vacate the orders and remand this cause with instructions to the trial court to impose fines within the limits set by the ordinance. For the following reasons, we vacate and remand with such instructions.

[9]  BACKGROUND

[10]   On September 29, 2000, plaintiff filed three complaints against defendant with respect to three properties located in Chicago: 1529 South Kenneth Avenue (Kenneth property), 3115 West Fillmore Street (Fillmore property), and 7537 South Emerald Street (Emerald property). The complaints asserted that defendant violated sections of the Code by exceeding construction specifications contained in permits for which he had applied. The complaint with respect to the Kenneth property alleged that defendant had applied for a permit to repair the roof, but that he exceeded this permit by performing work to enlarge a dormer attached to the property. This excess work was completed on August 31, 1997.

[11]   Plaintiff sought equitable relief and the imposition of fines pursuant to the Code in the amount of $6,000 "for each day said violations" existed. Similarly, the complaint with respect to the Fillmore property alleged that defendant had applied for a permit to replace a furnace and humidifiers and install carbon monoxide detectors, but that he exceeded this permit by building a new porch and balcony. This excess work was completed on September 30, 1998. Again, plaintiff sought equitable relief and the imposition of fines in the amount of $6,000 "for each day" of violations. The complaint with respect to the Emerald property alleged that defendant had applied for a permit to make minor repairs to the interior, windows and roof, but that he exceeded the permit by building front and rear exterior porches. This excess work was completed on June 30, 1999. As with the other complaints, plaintiff sought equitable relief and the imposition of fines in the amount of $6,500 "for each day" of violations on this property.

[12]   For purposes of judicial economy, these three cases were consolidated with a fourth case pending against defendant regarding work he did on property located at 2023 West 70th Street in Chicago (West 70th property). *fn2 On February 2, 2001, plaintiff and defendant entered into a consent decree regarding the West 70th property only, and presented it to the trial court. In this decree, the parties stipulated that defendant committed certain Code violations and it was agreed that he would pay a $25,000 fine, correct the violations and obtain post-construction permits pursuant to the Code on the work he constructed in excess of the original permit on the West 70th property. The trial court entered the parties' consent decree and continued any legal action or proceedings with respect to the remaining three properties at issue.

[13]   On July 18, 2001, ten months after plaintiff had filed the three complaints, defendant applied for post-construction permits for the excess work he did on the Kenneth, Fillmore and Emerald properties. City building inspectors investigated the excess work at each site and determined that, while it had been completed in a workmanlike manner, this was indeed work that required permits for which defendant had never applied. The post-construction permit for the excess dormer work on the Kenneth property was granted on December 12, 2001. The post-construction permit for the excess porch and balcony work on the Fillmore property was granted on October 20, 2001. The post-construction permit for the excess porch work on the Emerald property was granted on November 6, 2001. Defendant never filed an answer to any of plaintiff's complaints.

[14]   On February 14, 2002, a hearing was held in the trial court with respect to the three subject properties. Much of the hearing consisted of oral stipulations entered into by plaintiff and defendant in open court. The parties stipulated as to the excess work done at each of the three properties, that this work required permits, that defendant performed this work in excess of the work identified in the permits he originally obtained, and that he did not apply for new post-construction permits authorizing this work until July 18, 2001. Specifically, the parties stipulated that the excess work was completed on the Kenneth property in August 1997 and a permit for it was issued on December 12, 2001, whereupon the violations ceased on that property; that excess work was completed on the Fillmore property in September 1998 and a permit for it was issued on October 20, 2001, whereupon the violations ceased on that property; and that excess work was completed on the Emerald property in June 1999 and a permit for it was issued on November 6, 2001, whereupon the violations ceased on that property.

[15]   During this hearing, counsel for plaintiff told the court that he had not yet had the opportunity to calculate how many days existed between the days the work was completed and the issue dates of the post-construction permits agreed upon, which would indicate how many days defendant was in violation of the Code. Plaintiff's counsel asked the court that its written order contain the number of days. In response, defense counsel stated that he would not stipulate "with respect to the number of days [of actual violations] only because" he believed there may be "a defense with respect to some of the days being abated based on the failure of the city to issue stop[-work] orders promptly as required by statute." However, defense counsel stated that he would stipulate to when the work was done and to when the post-construction permits were issued.

[16]   At the conclusion of this hearing, the trial court stated that it was "not sure that [it] would necessarily need" a calculation of the number of days "to make an appropriate determination." On February 15, 2002, the court issued its written order, which confirmed the stipulations entered into by the parties in open court. Based on these stipulations, the court concluded that defendant had violated section 13-12-050 of the Code. In response to plaintiff's complaint seeking fines for these violations, the court entered judgment on plaintiff's behalf in the total amount of $20,000, to be paid by defendant no later than August 15, 2003.

[17]   Plaintiff filed a motion to reconsider. In it, plaintiff argued that the amount the trial court fined defendant was incorrect because it was outside the mandatory range set by the Code, and that the court improperly suspended its ability to collect on the money judgment until August 2003. The trial court denied this motion, but modified its original judgment to include that defendant would be fined $21,000, which he would have to pay in two installments.

[18]   We note here that on October 15, 2003, plaintiff filed a motion before our court requesting to supplement the record on appeal. This motion was granted and plaintiff filed a supplemental record on October 22, 2003, for our review.

[19]   ANALYSIS

[20]   On appeal, plaintiff contends that the fine imposed by the trial court was void because it was outside the range mandated by section 13-12-050 of the Code. Plaintiff argues that because defendant stipulated to the dates the excess work was completed and the dates the post-construction permits on this work were granted, it was clear that he was in violation of the Code for 3,537 days, and the trial court was required to impose a minimum fine of $100 per day pursuant to the Code, for a total of at least $353,700. Thus, plaintiff insists that we must vacate the court's order and remand for a recalculation of the fine. In response, defendant contends that plaintiff fails to present a complete record on appeal and that it fails to show that the court's ruling was against the manifest weight of the evidence because he argued the defense of laches. Defendant urges that if we remand this cause, we must not do so merely for a ...


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