City of Granite City v. House of Prayers, Inc.

Case Date: 08/20/2002
Court: 5th District Appellate
Docket No: 5-01-0212 Rel

                   NOTICE
Decision filed 08/20/02.  The text of this decision may be changed or
corrected prior to the filing of a Petition for Rehearing or the
disposition of the same. 

NO. 5-01-0212

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

________________________________________________________________________

THE CITY OF GRANITE CITY, 

     Plaintiff-Appellee,

v.

HOUSE OF PRAYERS, INC.,

     Defendant-Appellant,

and

MERCANTILE BANK (nee American
Heritage), JOHN KAMPMANN,
MELODY KAMPMANN, WILLIAM E.
CARPENTER, EVANGELIST
ASSOCIATION, INC., and Unknown Owners,
Heirs, Devisees, and Other Interested
Parties,

     Defendants.

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Appeal from the
Circuit Court of
Madison County.

No. 99-MR-296












Honorable
Ellar Duff,
Judge, presiding.



JUSTICE MELISSA CHAPMAN delivered the opinion of the court:

This is an appeal from an order of the circuit court to demolish property owned bythe defendant. The issues for review are (1) whether the circuit court erred in ordering thedemolition of the property owned by the defendant, (2) whether the court erred in denyingthe defendant's motion for substitution of judge, (3) whether the court erred in denying thedefendant's motion to modify and extend time, and (4) whether the court erred in orderingthe defendant to post a bond and produce certain documents and information to the plaintiff. We affirm.

I. FACTS

House of Prayers, Inc. (defendant), is a nonprofit corporation incorporated in theState of Illinois. In 1997, defendant purchased a parcel of property located at 2161 StateStreet, Granite City, Illinois, for $14,000. The property included a wood-frame building thathad been used as a church. The property was in need of repair at the time of the purchase,but defendant eventually hoped to once again use the building as a church. However, fora number of years, including the past four years of defendant's ownership, the building remained vacant and occupied on occasion by vagrants and vandals.

In April 1999, the Building and Zoning Department (Department) of Granite City(plaintiff) inspected defendant's property in response to numerous complaints receivedconcerning the condition of the building. From this inspection, the Department determinedthat the building was in such a state of disrepair that the cost of repair was greater than thevalue of the building. Accordingly, the Department performed a title search on the propertyto identify those parties with an interest in the property. On April 14, 1999, notices weredelivered to all interested parties that the repair or demolition of the building was sought. On March 23, 1999, plaintiff's city council passed a resolution submitted by theadministrator of the Department finding that the building was dangerous, was unsafe, andshould be demolished.

On June 19, 1999, plaintiff filed a complaint pursuant to section 11-31-1 of theIllinois Municipal Code (the Code) (65 ILCS 5/11-31-1 (West 2000)), seeking to demolishor repair the property. On August 5, 1999, counsel for defendant entered an appearance and a general denial of the allegations in plaintiff's complaint. At a pretrial conference on April24, 2000, the circuit court ordered defendant, within 60 days, to obtain a completeconstruction estimate, including remodeling plans, from a State-certified architect, thatwould bring the structure up to city building codes and that would make the buildinghandicapped-accessible. The court's order reset the matter for July 3, 2000. On May 23,2000, defendant filed several motions, including the following: (1) a motion to continue theJuly 3, 2000, status conference, (2) a motion to revise the court's April 24, 2000, order,allowing a certified engineer to perform the estimate and striking the handicapped-accessiblelanguage in the court's order as irrelevant, and (3) a motion requesting that the court acceptan attached engineer's proposal to repair the property. The court granted defendant's motionto continue and reset the remaining motions for a hearing on August 14, 2000.

At the August 14, 2000, hearing, the court allowed defendant to use a certifiedprofessional, licensed in the State, to provide the construction and remodeling estimates, but it refused to strike the handicapped-accessible language from its April 24, 2000, order. Thecourt also gave defendant an additional 60 days to comply with its April 24, 2000, order. On October 30, 2000, the matter was again called for a status hearing, at which timedefendant moved to extend the deadline for complying with the court's April 24, 2000, andAugust 14, 2000, orders. Defendant's motion was granted and the court gave defendant anadditional 30 days to comply. On December 4, 2000, the cause was continued by agreementof the parties to December 18, 2000. On December 18, 2000, the court held another statusconference, at which it determined that defendant was not in full compliance with the court'sprior orders. Defendant was granted an additional 30 days to comply and the matter wasreset for January 29, 2001. However, on January 18, 2001, defendant again moved tocontinue the matter. On January 24, 2001, the court again granted defendant's motion tocontinue, and the matter was reset for February 26, 2001. On February 26, 2001, the courtfound that defendant had again failed to comply. The court ordered defendant to post a$50,000 bond and set out in detail the information that defendant was required to provideto fully comply with the court's prior orders. The court ordered defendant to provide theinformation to plaintiff by 5 p.m. on February 28, 2001.

On March 2, 2001, defendant filed a motion to modify the court's February 26, 2001,order and to extend the time in which it could comply. Defendant sought an additional 10business days to comply with the court's February 26, 2001, order, alleging that it wasburdensome, unreasonable, and prejudicial. Defendant further complained that its architecthad indicated that he was unable to comply with the court's order in the time allotted. Defendant alleged that the amount and timing of the bond required by the court was overlyburdensome, and it sought to have the order stricken with regard to the bond, to have theamount reduced, and to have the court allow a surety bond in the place of a cash bond.

On March 5, 2001, a hearing was held on defendant's motion to extend and modifythe court's February 26, 2001, order. Immediately prior to the March 5, 2001, hearing,defendant filed a motion for substitution of judge. After hearing arguments from the parties,the court denied defendant's motion to substitute and its motion for an extension of time. In denying defendant's motion to substitute, the court characterized the motion as untimely. The matter was given a final setting of March 15, 2001. On March 15, 2001, the matter wascontinued on plaintiff's motion and reset for March 29, 2001.

On March 29, 2001, the petition for repair or demolition was tried. Glen Hollis,plaintiff's building and zoning administrator, testified that he first inspected the building inapproximately April of 1999 in response to numerous complaints. Mr. Hollis identifiedseveral unsafe and dangerous aspects of the building. Mr. Hollis testified that upon hisinspection he found that the building had been leaking and had a great deal of moisture init, that the building was filled with trash and debris, that the floor had holes in it and wascaving in, that the roof was sagging due to the removal of supports and broken rafters, andthat the electrical system in the building was shot and not up to code. Mr. Hollis testifiedthat he had worked in the construction industry for approximately 50 years, and he estimatedthat the cost to repair the roof was $25,000, the cost to repair the floor was $10,000 to$12,000, the cost of rewiring was $25,000, and the cost to bring the plumbing up to codewas $18,000 to $20,000. Mr. Hollis noted that to use the building as a church wouldadditionally require it to be handicapped-accessible. Mr. Hollis stated that he believed thatit would be cheaper to tear down the building to its foundation and reconstruct it rather thanto try to repair it.

John Apperson, a building inspector for plaintiff, also inspected the building andtestified that the building was vacant and in a state of disrepair. Mr. Apperson testified thatfrom the inside of the building, he could see outside through the roof and that from thebasement, he could see up into the second level. Mr. Apperson testified that the overallcondition of the building, and particularly the roof and floor, was unsafe. He also noted that the large beam in the center of the building and the trusses were cracked and that the roofwas swayed in the middle and coming down. Mr. Apperson stated that children and adultshad played in and occupied the building on occasion.

Danny Dawson, from whom defendant sought bids to perform repairs on the building,testified that he has been a licensed general contractor for the past six years. Mr. Dawsonstated that he inspected the building on four different occasions. He believed that waterdamage was the cause of the problems to the roof and floors. He acknowledged that someof the trusses were broken and rotting due to water damage. Mr. Dawson testified that hesubmitted bids to defendant for $22,500 to repair the roof, $525 to tear out a wall and installwheelchair ramps into the basement, and $5,500 to install two bathrooms upstairs. Further,Mr. Dawson stated that, although he had not provided a bid to defendant, he believed thatthe estimated cost to build a wheelchair ramp for the building would be $2,000 and that theestimated cost to repair the floor would be $2,000. Mr. Dawson estimated that it would cost$500,000 to replace the building.

Melody Kampmann, defendant's president, testified that defendant purchased theproperty for $14,000 in 1997. Ms. Kampmann stated that, according to their architecturalconsultant, renovating the building would cost $42,715 and tearing down the existingbuilding and rebuilding it would cost $509,000. However, Ms. Kampmann conceded thatdefendant had not acquired a bid to rewire the electrical system or repair the plumbing in thebuilding.

At the conclusion of the evidence and arguments from the parties, the court ruled infavor of plaintiff, authorizing the demolition of the building. In ruling, the court found (1)that defendant purchased the property knowing that the building was in need of repair, (2)that it was established that the roof, floor, rafters, and ceiling and the electrical, plumbing,and heating and cooling systems were defective, (3) that young children and vagrants weregoing into the building, (4) that the conditions of the building made it very dangerous forthose entering, (5) that debris and the falling ceiling presented a serious fire hazard, (6) thatthe building was in full disrepair, (7) that everything in the building needed to be replacedexcept the walls, doors, and windows, (8) that the building could not be repaired withoutmajor reconstruction, (9) that defendant paid $14,000 for the building, which was the fairmarket value, (10) that the building could not have increased in value since its purchase, (11)that the most conservative estimate for repairs was nearly three times the purchase price ofthe property, and (12) that defendant was ordered by the court on at least four occasions toprovide evidence of its proposal to bring the building up to code and failed to comply. Thecourt also found that plaintiff had met its burden of proof.

The court issued a written order on March 29, 2001, authorizing the demolition ofthe property. The order provided, in pertinent part:

"2. That the Plaintiff, City of Granite City, has fully sustained the materialallegations of the complaint[] and that the building located at 2161 State Street,Granite City, Illinois, is dangerous and in an unsafe condition.

3. That the building in question requires a large amount of extensive repairsthat would require substantial reconstruction of the premises[] and would have ananticipated expense far in excess of the market value of the premises."

Defendant filed a timely appeal.

II. ANALYSIS

Defendant argues that the court erred in ordering the demolition of its building. Specifically, defendant contends that the court's order of March 29, 2001, failed to state thespecific defects existing in the building and that the defects cited by the court orally lackedsufficient specificity. Defendant further contends that the court's failure to find that thebuilding was beyond reasonable repair was error and that merely finding that the buildingrequired repairs that would require substantial reconstruction was insufficient. Lastly,defendant contends that the court's failure to state specific defects denied defendant theopportunity to repair any such defects and avoid demolition.

Plaintiff argues that the circuit court's ruling was proper based on the evidence at thetrial establishing that the building was unsafe and dangerous and that substantialreconstruction would be required to make it safe. Plaintiff argues that the court, in rulingfrom the bench, specified what the defective aspects of the building were and that theproposed repairs constituted a substantial reconstruction of the building. Further, plaintiffcontends that the court's ruling was also proper in light of defendant's repeated failure tocomply in a timely manner with the court's many orders. We agree.

Section 11-31-1 of the Code contemplates repairs when feasible and demolition whenthe state of deterioration is such that repairs would amount to substantial reconstruction. City of Aurora v. Meyer, 38 Ill. 2d 131, 135, 230 N.E.2d 200, 203 (1967). The statuteimplies that, if the property can be repaired with comparatively little expense, the city oughtto adopt this course rather than complete demolition and that only in cases where thestructure is substantially beyond repair should an order for demolition be contemplated.Meyer, 38 Ill. 2d at 137, 230 N.E.2d at 204. In demolition cases, courts "should find fromthe evidence what the specific defects are which render the building dangerous and unsafe."Meyer, 38 Ill. 2d at 137, 230 N.E.2d at 204. If the defects "may readily be remedied byrepair, demolition should not be ordered without giving the owners a reasonable opportunityto make the repairs." Meyer, 38 Ill. 2d at 137, 230 N.E.2d at 204.

In addressing defendant's argument that the court's order failed to state the specificdefects and that its oral findings lacked sufficient specificity, we note our decision in Cityof Alton v. Carroll, 109 Ill. App. 3d 156, 440 N.E.2d 290 (1982). In Carroll, the defendantsalso argued that the trial court erred in failing to specify each particular defect in a buildingfound to be unsafe. In rejecting the defendants' arguments, the court in Carroll held that,in addition to the trial court's findings, the record and testimony sufficiently illustrated thebasis for the demolition order.

Here, we believe that the court went to great lengths to articulate the defects indefendant's property. The oral findings of the court clearly outlined the numerous repairsthat would be necessary to both bring the building up to city code and make it safe. Thecourt noted the specific defects found in the roof, floor, rafters, and ceiling and in theelectrical, plumbing, and heating and cooling systems. The court cited incidents of youthand vagrants occasionally inhabiting the building and the potential danger to personsentering. The court stated that the conservative cost of repair estimated by defendant'sarchitect exceeded $42,000, which was approximately three times the market value of theproperty ($14,000). Further, the court noted that everything in the building needed to bereplaced except for the walls, doors, and windows and that the building could not berepaired without substantial reconstruction. Although the court's written order may not haveidentified each particular defect rendering the building unsafe, we believe that the trialcourt's oral findings, along with the record and the testimony of the witnesses, amplyillustrate the basis for its decision. Cf. Carroll, 109 Ill. App. 3d at 162-63, 440 N.E.2d at294-95.

Defendant, relying on Meyer, argues that the court must find that the structure isbeyond reasonable repair before it authorizes the demolition of the property. Defendantcontends that the court here only stated that the needed repairs would require substantialreconstruction of the building and that such language falls short of the required findings. We disagree. Defendant's argument is one of semantics. Further, defendant's reliance onMeyer for the proposition that the court must invoke the exact language that a property is"beyond reasonable repair" is misplaced. In interpreting section 11-31-1 of the Code, thecourt in Meyer opined, "[T]he statute, in providing for repair or demolition in the alternative,contemplates repair where feasible and demolition where the state of deterioration is suchthat repairs would amount to a substantial reconstruction." (Emphasis added.) Meyer, 38Ill. 2d at 136, 230 N.E.2d at 203. We do not believe that courts are required to invoke thewords "beyond reasonable repair" specifically and exclusively in order to conclude that aproperty is sufficiently defective and unsafe to warrant demolition.

Defendant next argues that the court did not provide it with a reasonable opportunityto repair the property and that plaintiff prevented it from making repairs by not granting apermit to allow defendant's contractors to perform the repairs. However, the testimony ofMelody Kampmann, defendant's president, established that defendant knew that the buildingwas in need of repair at the time it was purchased in 1997. Further, defendant was providedwith notice from plaintiff on April 14, 1999, that the repair or demolition of the building wasbeing sought. On April 24, 2000, the court ordered defendant to provide a constructionestimate and remodeling plans to bring the building up to code, and it subsequently granteddefendant a number of deadlines and extensions. The matter was ultimately tried on March29, 2001, at which time defendant was still in substantial noncompliance with the court'sprevious orders.

In light of the foregoing, we find defendant's argument-that it was not afforded areasonable opportunity to comply with the court's orders or to acquire a permit from plaintiffto repair the building-to be less than persuasive, at best. We are unable to understand whatmore the court could have reasonably done to enable defendant to repair the building. Fromthe time plaintiff filed its complaint defendant had nearly two years to comply withprocedures that would have enabled it to repair the building and avoid demolition. Webelieve that the circuit court exhibited great patience responding to defendant's manymotions to continue and unwillingness to comply with the court's orders. We hold that thecircuit court committed no error.

Next, defendant argues that the circuit court erred in denying its March 5, 2001,motion for substitution of judge, which was made pursuant to section 2-1001 of the Codeof Civil Procedure (735 ILCS 5/2-1001 (West 2000)). Defendant contends that its motion,in part, was based on the fact that Judge Thomas Chapman had entered all of the orders inthe case prior to February 26, 2001, and that his input into the meaning and interpretationof the language of the orders was crucial to the case. Defendant notes that Judge Duff'sFebruary 26, 2001, order was the only one entered by her in the case prior to the filing of itsmotion to substitute and that the ruling did not go to the merits of the case because it wasmerely a ruling on a discovery issue.

Defendant's contention-that its motion should have resulted in the reassignment ofJudge Thomas Chapman-is completely baseless. While a section 2-1001(a)(2) "substitutionas of right" motion does not require a showing of cause, by definition, defendant'sexplanation that it was requesting a substitution partly so that Judge Thomas Chapman couldbe reassigned to the case belies the fact that litigants do not have the right to have aparticular judge assigned to their case. (Defendant's motion, if successful, could have verywell resulted in the assignment of yet another judge.)

We now turn to defendant's contention that rulings on discovery issues generally arenot considered rulings on a substantial issue and do not go to the merits.

Section 2-1001(a)(2) of the Code of Civil Procedure provides in pertinent part:

"(2) Substitution as of right. When a party timely exercises his or her right toa substitution without cause as provided in this paragraph (2).

(i) Each party shall be entitled to one substitution of judge withoutcause as a matter of right.

(ii) An application for substitution of judge as of right shall be madeby motion and shall be granted if it is presented before trial or hearing beginsand before the judge to whom it is presented has ruled on any substantial issuein the case[] or if it is presented by consent of the parties." 735 ILCS 5/2-1001(a)(2)(i), (a)(2)(ii) (West 2000).

A ruling is considered substantial when it is directly related to the merits of the case. BonnieOwen Realty, Inc. v. Cincinnati Insurance Co., 283 Ill. App. 3d 812, 821, 670 N.E.2d 1182,1188 (1996). And even when the court has not yet ruled on a substantial issue, a motion forsubstitution of judge may be untimely if the moving party had an opportunity to test thewaters and form an opinion of the court's reaction to his or her claim. In re Marriage ofPetersen, 319 Ill. App. 3d 325, 338, 744 N.E.2d 877, 887 (2001). "A party is not free to'judge shop' until he finds a jurist who is favorably disposed to his cause of action." In reMarriage of Petersen, 319 Ill. App. 3d at 338, 744 N.E.2d at 887.

Defendant relies on In re Marriage of Birt, 157 Ill. App. 3d 363, 510 N.E.2d 559(1987), for its argument that a ruling on discovery issues does not go to the merits of thecase and therefore cannot be a ruling on a substantial issue. This court has held on a numberof occasions that a trial court's ruling on a discovery motion is a ruling on a substantial issuewhen it pertains to evidentiary trial matters. Kochan v. Owens-Corning Fiberglass Corp.,242 Ill. App. 3d 781, 793, 610 N.E.2d 683, 691 (1993); Bonnie Owen Realty, Inc., 283 Ill.App. 3d at 822, 670 N.E.2d at 1189. The instant case is more similar to Kochan and BonnieOwen Realty, Inc. than In re Marriage of Birt.

The February 26, 2001, hearing conducted by Judge Duff was held for the purposeof determining whether defendant had complied with the prior court orders. Defendant'scompliance with these orders would have ultimately allowed the court to determine whetherdefendant could reasonably make repairs and avoid the demolition of the building. In theFebruary 26, 2001, ruling, the judge was also called upon to determine which parts of thebuilding were in substantial disrepair and what would be required to bring the building upto code. Therefore, we find that the court's order of February 26, 2001, was a ruling on asubstantial issue because it had a direct bearing on the merits of the case and also dealt withthe specific evidence which would be required at the March 29, 2001, trial. Furthermore,in light of Judge Duff's more serious approach to defendant's failure to comply with thecourt's many previous orders, it is reasonable to assume that defendant formed the opinionthat Judge Duff did not hold a favorable view of its reasons for its noncompliance. Thistesting of the waters by defendant further supports our conclusion that the motion tosubstitute was properly denied.

As for defendant's argument that the court erred in denying its motion to extend andmodify the February 26, 2001, order-which defendant claimed was unfair and prejudicialin requiring the posting of a $50,000 bond and the production of certain documentation-wedecline to address this issue. Defendant has cited no authority in support of these arguments,and any issue that has not been sufficiently or properly presented to this court for review iswaived. (Pecora v. Szabo, 109 Ill. App. 3d 824, 826, 441 N.E.2d 360, 361 (1982)). A courtof review is entitled to have the issues clearly defined with pertinent authority cited.Southwestern Illinois Development Authority v. Vollman, 235 Ill. App. 3d 32, 38, 600N.E.2d 926, 929-30 (1992). The appellate court is not simply a depository in which anappealing party may dump the burden of argument and research. Pecora, 109 Ill. App. 3dat 826, 441 N.E.2d at 361.

III. CONCLUSION

We have carefully studied the facts in this case and conclude that the repairsnecessary to make the building safe would require substantial reconstruction. Our holdingis strengthened by the circuit court's willingness to provide defendant with numerousopportunities to comply with its orders to avoid demolition and defendant's repeated failureto fully comply. The circuit court's judgment authorizing demolition is not against themanifest weight of the evidence.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

WELCH and HOPKINS, JJ., concur.