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City of Virginia v. Mitchell

Court of Appeals of Illinois, Fourth District

June 28, 2013

THE CITY OF VIRGINIA, Plaintiff-Appellee,
v.
TERRY D. MITCHELL, Defendant-Appellant.

Rehearing denied July 22, 2013

Appeal from the Circuit Court of Cass County, No. 11-OV-12; the Hon. Review Bob G. Hardwick, Judge, presiding.

Bethany D. Hager (argued), of Rochelle, for appellant. Appeal

Luke A. Thomas (argued), of McClure, Thomas & Thomas, of Beardstown, for appellee.

Presiding Justice Steigmann and Justice Appleton concurred in the judgment and opinion.

Held [*]

A finding that defendant violated a city ordinance by failing to register a vacant property and by maintaining a nuisance was reversed on the ground that the evidence established defendant had conveyed the property to a third party by a quitclaim deed prior to the time of the alleged violations, notwithstanding the city’s contention that the deed was void for various reasons, including the lack of consideration and discrepancies in the notary public’s acknowledgment and the description of the property, since the minimum requirements of the Conveyances Act were satisfied.

OPINION

HARRIS JUSTICE

¶ 1 In March 2011, plaintiff, the City of Virginia, Illinois (City), filed a five-count complaint against defendant, Terry D. Mitchell, alleging violations of the City Code of Virginia (City Code) in relation to a vacant property located at 220 East Beardstown Street in Virginia (the property). Specifically, the City alleged defendant was liable for failure to register a vacant building and maintaining a nuisance. Following a June 2012 bench trial, the trial court found defendant liable for the code violations and ordered him to pay $3, 750 in fines for the violations, $750 in attorney fees, and the costs of suit.

¶ 2 Defendant appeals, arguing he was not proved to be the owner of the property during the time period alleged in the City's complaint. We agree and reverse.

¶ 3 I. BACKGROUND

¶ 4 In March 2001, Leo Reich conveyed title to the property to defendant by quitclaim deed. Defendant recorded that deed in April 2001.

¶ 5 In February and March 2010, Michael Finn, the City's zoning enforcement officer, sent letters to defendant informing him that the property was in violation of the City Code and in need of immediate attention. In April 2010, Dennis Hewitt, an attorney, sent a letter to Finn on behalf of defendant, stating (1) defendant was merely holding title to the property as a third party for the benefit of Leo Reich; (2) after Reich died, defendant deeded the property to Reich's two sons, but evidently the property "was never transferred into their names"; (3) defendant had "no money or assets" and thus would be unable to make the necessary repairs to the property; and (4) defendant would be willing to execute a quitclaim deed transferring his interest in the property to the City. The record does not reveal whether the City replied to the letter or otherwise responded to defendant's offer. Defendant asserted he did not record the deed to Reich's sons, nor did he retain a copy.

¶ 6 In June 2010, after learning Reich's sons did not record the deed, and being unable to contact either of them, defendant conveyed the property to Luke Swan by quitclaim deed (the Swan deed).

¶ 7 In March 2011, the City filed a complaint alleging defendant, as owner, failed to register the property (City Code of Virginia § 9-4-3 (adopted Feb. 11, 2008)) and maintained a nuisance (City Code of Virginia §§ 9-3-1, 9-3-2 (adopted Oct. 12, 2009)). Section 9-4-3 of the City Code provides, in pertinent part, as follows:

"The owner of a building who knows, or from all the facts and circumstances should know, that his or her building is or has become a 'vacant building' within the meaning of this chapter, after the effective date hereof, or the owner of a building who has been provided with a notice of determination in the manner prescribed herein, shall register the building with the city *** ." City Code of Virginia § 9-4-3 (adopted Feb. 11, 2008). Section 9-3-3 of the City Code provides, in pertinent part, as follows:
"[I]t shall be unlawful for the owner, occupant or person in custody or possession of any dangerous building to permit the same to remain in a dangerous condition." City Code of Virginia § 9-3-3 (adopted Oct. 12, 2009).

¶ 8 Although the property may have been in violation of the City Code prior to January 1, 2011, the City only alleged violations occurring on and after that date. In May 2011, defendant unsuccessfully moved for summary judgment arguing he was not the owner of the property during the period alleged in the complaint. A bench trial was held in June 2012.

¶ 9 At trial, the 2001 quitclaim deed from Leo Reich to defendant was admitted as evidence of defendant's ownership of the property. In response, defendant offered the Swan deed, which was admitted without objection. At trial Luke Swan identified the June 2010 quitclaim deed and confirmed he signed and accepted delivery of it. The Swan deed bore a notary public's acknowledgment dated "17th, June, 2010." Defendant's and Swan's signatures on the deed were dated "18th day of June 2010" and "6-18-10, " respectively. The deed recited $500 as the consideration paid and described the property as "220 East Beardstown Rd. Virginia, Il. 62691 Parcel ID 11-042-15-00." Finn, the City's zoning enforcement officer, testified that the property was actually located at 220 East Beardstown Street in Virginia and associated with the parcel ID number 11-042-01500. He testified that to his knowledge there is no "Beardstown Road" in Virginia, but there is a "Beardstown Street." A stamp from the Cass County clerk and recorder's office on the deed indicated it was recorded on May 24, 2011, after the City had filed its complaint.

¶ 10 Swan testified he did not pay the $500 consideration to defendant. Swan also testified defendant never informed him that the property might be in violation of the City Code. He testified he would not have accepted the property from defendant at the time of the conveyance had he known its condition. Swan also testified he was unaware of defendant's representation that he had previously conveyed the property to someone else.

¶ 11 During closing argument, the City argued the Swan deed was invalid, stating:

"The recorded deed itself, we have argued this before, that there is not any case that would support the court finding that that document is in fact a lawful conveyance of the property. That's why we examined Mr. Swan and he indicated that he would not have accepted the property had he known the condition it was in. That he in fact did not pay [defendant] $500.00 for the property. There was no consideration given. The document on its face, as they say, it's a deed, it's not even a correct recitation of the transaction because there was no money exchanged. There is no street in the City of Virginia as Beardstown Road, there is no road named that. The parcel identification number, no matter how much you look at the discrepancy, it's an incorrect parcel identification number."

ΒΆ 12 At the conclusion of the trial, the trial court found the Swan deed was not valid and that "[defendant was] in fact the owner as of [January 1, 2011], and there had not been a valid conveyance to Mr. Swan prior to that time." Accordingly, the court found defendant liable for the ordinance violations and ordered him to pay $3, ...


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