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Sks and Associates, Inc v. Thomas Dart

August 3, 2012

SKS AND ASSOCIATES, INC., PLAINTIFF-APPELLEE,
v.
THOMAS DART, AS SHERIFF OF COOK COUNTY,
CONTEMNOR-APPELLANT (SHEILA HERRON AND ANY UNKNOWN OCCUPANTS,
DEFENDANTS.



Appeal from the Circuit Court of Cook County Illinois, 09 M4 885 Honorable Cheyrl D. Ingram, Judge Presiding

The opinion of the court was delivered by: Justice Palmer

JUSTICE PALMER delivered the judgment of the court, with opinion.

Presiding Justice Gordon and Justice Lampkin concurred in the judgment and opinion.

OPINION

¶ 1 Appellant Thomas Dart, as Sheriff of Cook County, Illinois (the Sheriff), appeals from an order of the circuit court of Cook County finding the Sheriff in contempt of court, fining him $1,400 and ordering him to pay attorney fees in the amount of $3,093.75 to plaintiff, SKS & Associates, Inc. (SKS). For the reasons that follow, we reverse and remand to the circuit court

¶ 2 BACKGROUND

¶ 3 The record reveals the following background facts and circumstances. On May 21, 2009, SKS filed a forcible entry and detainer action seeking possession of a certain residential property based on an alleged breach of a month-to-month tenancy by defendants, Sheila Herron and any unknown occupants. The circuit court entered an order for possession on July 20, 2009, but stayed that order until August 10, 2009, and ordered recovery of rent from defendants. The order for possession was signed by Judge Cheyrl Ingram but stamped "Judge Robert Senechalle." SKS presented the order for possession to the Sheriff on August 26, 2009. On October 28, 2009, SKS filed a motion to refresh and extend the order for possession. The motion alleged that the Sheriff had not yet enforced the order for possession and that the order therefore needed to be refreshed and extended so that it could be enforced within the time required by statute.

¶ 4 On November 2, 2009, SKS filed a motion initially entitled "Motion To Hold Sheriff In Contempt Of Court For Failing To Evict." On November 9, the circuit court continued SKS's "motion for rule to show [cause] on Sheriff" to December 7, 2009, for personal service of process. As a result, a "Rule to Show Cause" was issued by the clerk's office directing the Sheriff to appear before the court and to show cause why he should not be held in civil contempt of court. Also on November 9, the court entered an order extending the order for possession for an additional 90 days. The parties appeared in court on November 23, 2009, but the record does not contain a transcript of those proceedings. However, on November 23, the court entered a "corrected order" extending the enforceability date for the eviction to February 9, 2010. On that same date, the court entered an order continuing SKS's "Motion To Hold Sheriff In Contempt Of Court" to February 8, 2010, and ordering the Sheriff to serve the November 23, 2009, extended order for possession.

¶ 5 The parties appeared in court on February 8, 2010, but there is no transcript of those proceedings in the record on appeal. Nevertheless, the parties agree that at that hearing, the Sheriff informed the court that the eviction was scheduled for February 10, but that a predicted snowstorm on that date could cause the eviction to be rescheduled. The parties also agree that during that hearing, the court orally ordered the Sheriff to effectuate the eviction by February 10, 2010. Also on February 8, the circuit court entered an order extending the enforceability of the order for possession to February 26, 2010. On that same date, the court set for a hearing on March 15, 2010, SKS's "motion to/for Rule To Show On Sheriff." The Sheriff enforced the order for eviction on February 16, 2010.

¶ 6 The parties appeared in court on March 15, 2012, for the hearing on SKS's motion. SKS argued that the Sheriff had "blatantly disregard[ed]" the statute and the court's orders and had put SKS on the "verge of bankruptcy." SKS asked the court to hold the Sheriff in contempt for failing to abide by the court's orders and enforce the order for possession or, alternatively, to fine the Sheriff for the rent lost by SKS in order to send a "clear message" to the Sheriff.

¶ 7 Counsel for the Sheriff argued that SKS's motion to hold the Sheriff in contempt was moot because the order for possession had been enforced on February 16, 2010. Counsel argued that during the hearing on February 8, 2010, she advised the court that it was predicted to snow on February 10. Counsel stated that all evictions were in fact cancelled on February 10 because of the snow and that the temperature on February 11 was below what the "general order of the circuit court of Cook County" recognizes as being acceptable for evictions. Counsel further stated that because the Sheriff does not conduct evictions on weekends (February 13 and 14), and because February 12 and February 15 were court holidays (Lincoln's birthday and President's Day), the Sheriff enforced the eviction on February 16.

¶ 8 In response to the court's question as to why the eviction did not take place between August 2009 and February 2010, counsel for the Sheriff stated that when the parties were in court on November 23, 2009, she informed the court that there was a tremendous backlog in the Sheriff's office due to the amount of foreclosures and evictions taking place. The court stated that "everybody[] is calling it [a backlog] these days," and asked counsel for the Sheriff what "really" happened between that time frame. Counsel responded that due to the backlog of foreclosures and evictions, the Sheriff was running approximately 12 to 13 weeks behind schedule.

¶ 9 The court asked counsel for the Sheriff when the eviction in this case was originally scheduled, and counsel stated she did not know but would ask the Sheriff's office. Lieutenant Pon of the Sheriff's office, who was present in court, was then called to the stand. The court stated that it was not taking testimony from him but, instead, only wanted "an answer to [its] question." The lieutenant stated that the expired order would have noted when it was scheduled to be enforced, which "would have been sometime around November." The lieutenant also stated that when the order for possession was entered around August, the eviction was "not scheduled" at that time. The court then asked counsel for the Sheriff when, after the November 23 court date, the eviction was scheduled. Counsel stated that she did not know. Lieutenant Pon informed the court that it was scheduled for the first week of February. Counsel for the Sheriff further pointed out that "General Order 2009-02" noted the extreme weather conditions of that winter. The general order also stated that the "Sheriff of Cook County shall cease the execution of eviction orders related to residential real estate effective December 14, 2009" and that "[t]he Sheriff shall resume execution of said orders effective January 4, 2010." The court then stated that it was looking at the Sheriff's schedule of evictions, which appeared to reflect that fewer evictions were performed in the western suburbs than in other areas.

ΒΆ 10 The court stated that when the parties appeared in court in November of 2009, the case was continued because of the representation that, based upon a backlog of evictions and foreclosures as well as a three-week moratorium on evictions during the winter, the eviction would be completed by February 8, 2010, and therefore the Sheriff was given the opportunity to effectuate the order by that date. The court continued that when the parties appeared in court on February 8, there was an indication of a wrong stamp on the possession order entered in November, but that had never previously been an issue raised by the Sheriff. Although the order was corrected on that date, "at that point the Sheriff had already scheduled the eviction for February 10." The court further stated the order was corrected and that it ordered the Sheriff to enforce the eviction on ...


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