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Dennis D. Ballinger, Sr v. the City of Danville

March 13, 2012

DENNIS D. BALLINGER, SR.,
PLAINTIFF-APPELLANT,
v.
THE CITY OF DANVILLE, ILLINOIS, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Vermilion County No. 09L26 Honorable Craig H. DeArmond, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Turner

PRESIDING JUSTICE TURNER delivered the judgment of the court, with opinion.

Justice Knecht concurred in the judgment and opinion. Justice Pope specially concurred, with opinion.

OPINION

¶ 1 Plaintiff, Dennis D. Ballinger, Sr., appeals the Vermilion County circuit court's July 2011 dismissal of his first-amended complaint against defendant, the City of Danville, Illinois, a municipal corporation (hereinafter, the City). On appeal, plaintiff asserts the trial court erred by (1) failing to apply the discovery rule to the one-year statute of limitations contained in section 8-101(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Immunity Act) (745 ILCS 10/8-101(a) (West 2008)) and (2) finding the City complied with the notice requirements of section 11-31-1(e) of the Illinois Municipal Code (Municipal Code) (65 ILCS 5/11-31-1(e) (West Supp. 2007)). We affirm in part, reverse in part, and remand for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 Through a November 1, 2005, tax deed, plaintiff acquired ownership of the real estate commonly referred to as 1903 Deerwood, Danville, Illinois (hereinafter, Property). A single-family dwelling was located on the Property, which was uninhabited after plaintiff's purchase. On or around January 9, 2008, the City posted a notice on the front of the building located on the Property that stated "unless the building is demolished, repaired, or enclosed, and unless garbage, debris, and other materials are removed, that the building may be demolished, repaired or enclosed by [the City] and the materials removed." On February 7, 2008, the City sent plaintiff by certified mail a notice to remediate the Property. The notice was addressed to plaintiff's address in Decatur, Illinois. The certified mail receipt was signed by Karen Kazmer. The City also had the notice to remediate published in The News-Gazette from February 8 through 10, 2008, and filed the notice with the Vermilion County recorder of deeds on February 20, 2008. The demolition of the home on the Property began on March 14, 2008, and was completed on March 19, 2008. On June 21, 2008, plaintiff drove by the property and discovered the home had been demolished.

¶ 4 On May 7, 2009, plaintiff filed a three-count complaint against the City, (1) asserting wrongful demolition and a due-process violation and (2) requesting a declaration of invalidity of any lien. The City filed a motion to dismiss the complaint, which the trial court granted without prejudice. On October 30, 2009, plaintiff filed a first-amended complaint, (1) asserting wrongful demolition (count I) and (2) requesting the court declare (a) section 11-31-1(e) of the Municipal Code (65 ILCS 5/11-31-1(e) (West Supp. 2007)) unconstitutional (count II) and (b) any lien invalid (count III).

¶ 5 In November 2009, the City filed a motion to dismiss the first-amended complaint under section 2-619 of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2-619 (West 2008)). The motion asserted (1) the City followed the statutory procedure contained in section 11-31-1(e) of the Municipal Code for demolition of the building on the Property, (2) the suit is barred by the one-year statute of limitations of section 8-101(a) of the Immunity Act (745 ILCS 10/8-101(a) (West 2008)), (3) section 11-31-1(e) of the Municipal Code is constitutional, and (4) the notice procedures were adequate. The City attached the following to its motion to dismiss: (1) the affidavit of David B. Wesner, the City's corporation counsel; (2) the February 7, 2008, notice to remediate; (3) the notice to remediate filed with the recorder of deeds; (4) a certification of publication in The News-Gazette; (5) the affidavit of Eric Quick, the City public works department employee; (6) receipts and other documents related to the demolition; and (7) the affidavit of Doug Ahrens, director of the City public works department.

¶ 6 In response to the motion to dismiss, plaintiff filed his own affidavit, in which he stated he is engaged in the real-estate-tax business and owns numerous parcels of real estate throughout the state. Due to his owning numerous pieces of property, plaintiff is unable to monitor his properties on a daily, weekly, or even monthly basis. On or about June 21, 2008, he was working in Danville, drove by the Property, and discovered the building on the Property had been demolished. Plaintiff further stated he was unaware of the City's intention to demolish the building on the Property and did not receive adequate notice of that intent. On March 2, 2010, the trial court heard oral arguments on the motion. The parties also filed memoranda.

¶ 7 On July 5, 2011, the trial court entered its order granting the City's motion to dismiss. The court found the statute was constitutional and the statute of limitations had expired before plaintiff filed his complaint. The court rejected plaintiff's argument the discovery rule should apply. It noted the February 7, 2008, notice to remediate placed plaintiff on notice that, if he did not do something, the City would demolish the building on the Property. Once plaintiff discovered the demolition within three months of the demolition, "he was clearly on notice of the import of the notice he received by mail in February."

¶ 8 On July 21, 2011, plaintiff filed a notice of appeal in sufficient compliance with Illinois Supreme Court Rule 303 (eff. May 30, 2008), and thus this court has jurisdiction under Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994).

¶ 9 II. ANALYSIS

ΒΆ 10 On appeal, plaintiff only asserts the trial court erred by granting the motion to dismiss because it (1) failed to apply the discovery rule to the one-year statute of limitations contained in section 8-101(a) of the Immunity Act and (2) found the City complied with the notice requirements. He does not challenge the trial court's finding section 11-31-1(e) of the Municipal Code was constitutional. Thus, the trial court's dismissal of count II is unchallenged, and thus we affirm the dismissal of that count. As to plaintiff's remaining claims, this court reviews de novo the ...


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