NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2023 IL App (3d) 220287-U
Order filed March 29, 2023 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
CITY OF WHEATON, ) Appeal from the Circuit Court ) of the 18th Judicial Circuit, Plaintiff-Appellee, ) Du Page County, Illinois. ) v. ) Appeal No. 3-22-0287 ) Circuit No. 20-OV-1375 ROBERT W. JONES, ) ) The Honorable Defendant-Appellant. ) Neal W. Cerne, ) Judge, Presiding. ____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court. Justices Albrecht and Hettel concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: The denial of defendant’s motion for summary judgment is affirmed because questions of material fact remained that precluded the entry of summary judgment. The trial court’s factual finding that defendant violated the cited housing code provisions is affirmed because it is not against the manifest weight of the evidence. Because the public official’s acts were not outside the scope of his authority, defendant’s counterclaim for injunctive relief was properly denied.
¶2 The City of Wheaton filed 11 housing code violations against Robert W. Jones, who then
filed a counterclaim seeking injunctive relief. Jones subsequently filed a motion for summary
judgment that was denied, and the case proceeded to trial. After trial, Jones was found to be in violation of all cited provisions, and the trial court denied his counterclaim. He appealed from
each of those rulings. We affirm.
¶3 I. BACKGROUND
¶4 In 2016, a housing inspector employed by plaintiff, the City of Wheaton (City), notified
defendant, Robert W. Jones, that his residential property was in violation of a number of
municipal housing codes. After receiving complaints about the condition of Jones’s garage door,
a new housing inspector, Ted Fanning, visited Jones’s residence in February 2020. During that
visit, Fanning observed that the bottom portion of the door was covered in a blue tarp. Later that
month, Fanning and Jones discussed the door’s condition, with Jones insisting he had a plan to
repair it by himself. Subsequently, Fanning revisited the site and sent Jones a letter dated April
27, 2020, stating that the blue tarp was still in place on the garage door. After a phone discussion,
Jones extended an invitation to Fanning to review the progress he had made on the repair.
¶5 During that visit, Fanning documented a large number of items strewn about in “an
unorganized manner” within the garage. Jones recited his right to repair his own home by
himself, and, while agreeing with that general proposition, Fanning explained that Jones was
entitled to only a reasonable amount of time to make needed repairs. When Jones consented to
Fanning walking around the property, Fanning documented the continuation of many of the
violations Jones was notified about in 2016. Fanning also noted new violations. The violations
and supporting photographs were incorporated into Fanning’s April 27 letter to Jones.
¶6 The letter also stated that the City had adopted the ICC International Codes in Ordinance
No. O-2020 (Code) to protect the health, safety, and welfare of all City residents and
neighborhoods. See Wheaton Municipal Ordinance No. O-2020 (adopted February 2020);
International Code Council (ICC), 2018 International Property Maintenance Code,
2 https://codes.iccsafe.org/content/IPMC2018P2 (last visited March 8, 2023); ICC, 2018
International Fire Code, https://codes.iccsafe.org/content/IFC2018P6 (last visited March 8,
2023), ICC, 2018 International Residential Code, https://codes.iccsafe.org/content/IRC2018P4
(last visited March 8, 2023). Fanning ordered Jones to make the listed repairs within 60 days,
which he believed “provided more than enough reasonable time to rectify some of these issues
based upon *** records dating back to 2016.” Jones was warned that if the violations were not
timely corrected, he could be subject to an additional citation and to legal action that could result
in the imposition of fines.
¶7 When the repairs were not timely made, the City filed an 11-count ordinance complaint
in the Du Page County circuit court on August 7, 2020. Through counsel, Jones filed a motion to
dismiss on July 8, 2021, alleging he did not violate “any ordinance as a matter of law” and that
he was exercising his statutory and constitutional rights to repair and maintain his own home.
After the dismissal motion was denied, Jones’s counsel filed a successful motion to withdraw
from the representation due to the breakdown of the attorney-client relationship.
¶8 After his counsel’s withdrawal, Jones appeared pro se for all of the subsequent
proceedings in the circuit court. He filed an answer, affirmative defense, and counterclaim to the
City’s ordinance complaint in September. The answer denied any violation of the cited
ordinances and asserted the affirmative defense that the City “fail[ed] to state a claim upon
which relief can be granted.” In his counterclaim, Jones sought to permanently enjoin the City
from allowing Fanning “to contact or interact with Defendant” due to Fanning’s repeated
harassment. Jones alleged that the harassment had injured his peace of mind and was premised
solely on Fanning’s personal animus toward him.
3 ¶9 On November 1, Jones filed a motion for summary judgment. After a hearing, Judge
Sexton denied the motion, finding that issues of fact existed. Jones objected to the denial,
arguing that no questions of fact remained because the City had not filed a response to his
motion. In response, the judge stated that the City “doesn’t have to; he has the complaint.” Jones
then filed a petition seeking a substitution of judge, removal to a court of law, and
reconsideration of the denial of his summary judgment motion. The case was reassigned to Judge
Cerne.
¶ 10 Before Judge Cerne, Jones again raised his motion to reconsider. After reviewing the
motion at the hearing, the court explained that Jones had the burden of showing that no issues of
fact remained so that the case could be decided as a matter of law. The trial court concluded that
factual issues remained because Jones continued to assert that he had not violated any ordinance.
Jones then read law to the trial court that he argued indicated that the City’s allegations “are not
evidentiary facts” and that evidentiary facts must be considered when ruling on a summary
judgment motion. Jones added that the facts alleged in his motion had to be taken as true because
the City had not filed a responsive pleading. After hearing the arguments, Judge Cerne denied
the motion to reconsider. Prior to trial, Jones filed a “Motion for Acceptance of Propositions of
Law,” outlining his previously filed memorandum of law in support of his summary judgment
motion.
¶ 11 At the start of trial on January 7, Jones raised the motion for acceptance of propositions
of law. Judge Cerne stated that he had not received a copy but would consider it as a legal
memorandum. During trial, photographs showing each of the violations alleged in the City’s
complaint were admitted, and inspector Fanning testified. Jones extensively questioned Fanning
about the allegations in the City’s complaint. At the end of the trial, Jones read portions of his
4 motion for acceptance of propositions of law that asserted his right as a homeowner to repair his
own property and that limited the City’s actions to those required to “secure the common
welfare.”
¶ 12 In support of his counterclaim seeking to permanently enjoin the City from permitting
Fanning to contact or interact with him, Jones argued that he was entitled to a default judgment.
He presented Fanning’s testimony, which purportedly showed that the inspector had harassed
him out of anger and frustration when Jones declined to perform the work on the garage door
within Fanning’s stated timeframe. The trial court found Jones guilty of each count of the City’s
ordinance complaint and denied Jones’s counterclaim. Jones was ordered to make the repairs
specified in the court’s order, and the case was continued until June 17 for sentencing. Jones
filed a notice of appeal. On March 1, Jones filed a motion to stay the judgment pending
resolution of that appeal.1 The trial court declined to grant that motion because it “believe[d] that
no final order has been entered as no sentence has been imposed.” The court also denied Jones’s
motion to reconsider the denial of stay and filed a modified Bystander’s Report of the January 7
hearing.
¶ 13 At Jones’s June 17 sentencing hearing, the court found that “[t]here has been no
compliance as of [that] date” and imposed fines totaling $2850. Jones made an oral motion to
stay the judgment, which was denied because Jones had not posted the requisite bond. He then
filed a second notice of appeal and requested a stay of judgment from this court. That stay
request was denied because Jones “has failed to present a substantial case on the merits and show
that the balance of the equitable factors weighs in favor of granting the stay.” See Stacke v.
1 In a minute order, we dismissed the appeal in City of Wheaton v. Jones, No. 3-22-0039, for want of jurisdiction. 5 Bates, 138 Ill. 2d 295, 309 (1990). This court also denied his motion to reconsider the denial of
his motion to stay. Jones subsequently filed an appellate brief; the City did not file an appellee
brief.
¶ 14 II. ANALYSIS
¶ 15 In this pro se appeal, Jones challenges: (1) the denial of his motion for summary
judgment; (2) various aspects of the trial on the ordinance violations; and (3) the trial court’s
handling of his counterclaim for injunctive relief. We address each challenge in turn.
¶ 16 A. Summary Judgment
¶ 17 Jones first contends that the trial court erred by denying his motion for summary
judgment. Summary judgment rulings are reviewed de novo. International Ass’n of Fire
Fighters, Local 50 v. City of Peoria, 2022 IL 127040, ¶ 11. A grant of summary judgment is
proper only “if the pleadings, depositions, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2020); First Midwest
Bank v. Cobo, 2018 IL 123038, ¶ 16. “Summary judgment is a drastic means of disposing of
litigation and, therefore, should be granted only when the right of the moving party is clear and
free from doubt. Adames [v. Sheahan], 233 Ill. 2d [276,] 296 [(2009)]. Thus, the moving party
has the burden of production on a summary judgment motion.” Mashal v. City of Chicago, 2012
IL 112341, ¶ 49.
¶ 18 Jones argues that he was entitled to summary judgment because no questions of fact
existed when the City failed to file an answer to his motion. As Judge Sexton had explained,
however, the City was not required to file an answer to avoid a grant of summary judgment
because Jones bore the burden of proving the merits of his motion and the City could stand on
6 the factual allegations in its complaint. 735 ILCS 5/2-1005(c) (West 2020) (allowing a grant of
summary judgment “if the pleadings, depositions, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law” (Emphasis added.)); Mashal, 2012 IL 112341,
¶ 49 (stating the movant has the burden of production). Thus, we reject Jones’s argument.
¶ 19 Jones also raises another argument in support of his challenge to the summary judgment
ruling. Jones’s brief expressly incorporates his summary judgment motion and supporting
memorandum of law “by reference.” Reading that motion, supporting memorandum, and
appellate brief together, he contends that no questions of fact existed because he “is not in
violation of any ordinance as a matter of law.” In his view, only issues of law regarding the
City’s interpretation of the Code and his rights to autonomy as a property owner remained,
enabling the court to grant summary judgment in his favor.
¶ 20 When deciding a motion for summary judgment, all well-pleaded facts in the complaint
must be taken as true. Schalz v. McHenry County Sheriff’s Department Merit Comm’n, 113 Ill.
2d 198, 200 (1986). Accordingly, we will review some of the factual allegations in the City’s
complaint. In part, the complaint alleges that “[t]he garage door is not maintained in good
condition as sections are not installed and covered by a tarp” and that Jones has “[f]ailed to
maintain the property in a clean and sanitary condition.” In his summary judgment motion and
supporting memorandum of law, Jones denies that the garage door was not maintained in good
condition and that his property was not maintained in sanitary and clean condition, asserting that
the photos taken by the inspector failed to support those allegations.
¶ 21 The parties’ conflicting contentions about the condition of the property are precisely the
types of matters that create questions of fact to be decided by the trier of fact. See West Bend
7 Mutual Insurance. v. Norton, 406 Ill. App. 3d 741, 744 (2010) (explaining that “whether an
insurer’s action in denying or delaying payment of a claim is vexatious or unreasonable is a
question of fact”). Thus, at a minimum, those portions of the City’s complaint and Jones’s
response created questions of material fact that precluded the entry of summary judgment as a
matter of law. For that reason, we affirm the trial court’s denial of Jones’s motion for summary
judgment and do not review the questions of law that he posits should have been decided in his
favor.
¶ 22 B. Trial
¶ 23 Next, Jones contends that the trial court failed to properly assess the credibility of the
City inspector, Ted Fanning. In support of this contention, he quotes extensively from Fanning’s
cross-examination answers addressing the charges in the City’s complaint. Jones characterizes
many of those responses as patently evasive or outright lies.
¶ 24 Because the trier of fact is able to observe the demeanor of the witnesses and to hear the
trial testimony, it is in the best position to make credibility determinations, and its factual
findings are given substantial deference on appeal. Reviewing courts will not upset those
findings unless they are against the manifest weight of the evidence. In re Edmonds, 2014 IL
117696, ¶ 35. A factual finding is contrary to the manifest weight of the evidence if the opposite
conclusion is clearly evident. Id.
¶ 25 The record on appeal reveals that the trial court did not make any express determination
about Fanning’s credibility or the quality of his responses on cross-examination. The court
simply found that the City had proven the charges in its complaint and ordered Jones to make the
specified repairs. From that bare record, we cannot conduct a direct review of the trial court’s
alleged credibility findings. The record on appeal reveals no such findings, and Jones cites no
8 authority for the proposition that the trier of fact must make such a determination on the record.
As the trier of fact, the trial court’s findings were the result of its review of an unknown, and
unknowable, combination of the evidence, including the testimony elicited and the photographs
showing the alleged violations. Under those circumstances, we reject Jones’s claim that the trial
court improperly assessed Fanning’s credibility and “simply accepted everything Fanning said
was true.”
¶ 26 Next, Jones argues that the trial judge failed to review the applicable ordinances and
apply the relevant law. Without that guidance, Jones maintains that “there was no standard of
proof or burden of proof” applied by the court. As an example, he claims that the trial court
“failed to take notice that the [Code] limited itself to issues affecting public health, safety and
welfare. By finding Defendant guilty on all counts, it proves that this restriction was never
considered.” Jones also asserts that the trial court’s rulings were made without “conscientious
judgment and ignored recognized principles of law.”
¶ 27 Jones correctly notes that the City was required to establish the ordinance violations by a
preponderance of the evidence. Village of Kildeer v. LaRocco, 237 Ill. App. 3d 208, 211 (1992).
He also asserts that the City failed to satisfy its burden of proving that the alleged violations
“affected public health, safety or welfare; as that was the intent of the ordinance” because
“Fanning supplied no evidence or credible testimony that there was a threat to public health,
safety or welfare for any of the conditions that he cited.” He adds that the trial court’s finding
that he had violated the Code was against the manifest weight of the evidence because the
photographs presented at trial “did not address the issue of public health and safety.” Despite this
allegedly complete absence of proof, the trial court concluded that he was guilty on all counts,
9 demonstrating that the City “was held to no standard of proof and thus had no burden of proof “
and that the trial court ignored the law. We disagree.
¶ 28 Jones misconstrues the relationship between the purpose of the Code and the provisions
in it. The provisions in the Code were enacted, and must be read, to support the Code’s stated
purpose. As the court explained in City of Chicago v. RN Realty, L.P., 357 Ill. App. 3d 337, 343
(2005), “[t]he purpose of the Building Code was to protect the public from unsafe conditions.”
By stating the purpose of the Code, the drafters did not also impose an additional, and
independent, evidentiary burden on the City. Rather, the provisions in the Code were intended to
serve the Code’s express, overarching purpose of “ensur[ing] public health, safety and welfare
insofar as they are affected by the continued occupancy and maintenance of structures and
premises.” Code § 101.3 (stating “This Code shall be construed to secure its expressed intent,
which is to ensure public health, safety and welfare insofar as they are affected by the continued
occupancy and maintenance of structures and premises”). Thus, if the City satisfied its burden of
proving by a preponderance of the evidence that the conditions on Jones’s property violated the
charged ordinances, it also established that those violations impacted the public health, safety,
and welfare. A separate showing demonstrating that the purpose of the Code was also met was
not necessary.
¶ 29 Moreover, the mere fact that the trial court found that Jones violated the ordinances does
not show that it failed to apply any legal standards or to impose any burden on the City, nor does
it establish that the court completely ignored the language of the Code. As its starting point,
Jones’s contrary argument presupposes that he was, in fact, not guilty of committing those
violations. The question of his guilt or innocence, however, was reserved for the trial court,
which bore the duty of resolving that ultimate issue of fact. As the trier of fact, the trial court was
10 free to weigh all the evidence before it and to draw any inferences that would normally flow
from that evidence. Indeed, even in the context of a criminal case, where the burden of proof is
substantially higher, the trier of fact is not required to seek out every possible explanation that is
consistent with the defendant’s innocence. People v. Holmes, 2018 IL App (3d) 160060, ¶ 29.
Standing alone, the trial court’s finding of guilt does not overcome Jones’s burden on appeal of
demonstrating that the court failed to apply the relevant legal standards and Code provisions.
¶ 30 To prove its case, the City had to show by a preponderance of the evidence that Jones
violated the cited ordinance provisions. Village of Kildeer, 237 Ill. App. 3d at 211. The trial
court’s decision that the City satisfied that burden is not subject to reversal unless it is against the
manifest weight of the evidence. Van Dyke v. White, 2019 IL 121452, ¶ 68. A factual finding is
against the manifest weight of the evidence only if the opposite conclusion is clearly evident. Id.
We have carefully examined Fanning’s testimony and the photographs in the record in light of
the criteria enumerated in the charges in the City’s complaint. Based on that review, we cannot
say that the trial court’s finding that Jones committed the violations was against the manifest
weight of the evidence. Accordingly, we affirm the trial court’s ruling.
¶ 31 C. Injunctive Relief
¶ 32 Finally, Jones argues that the trial court improperly declined to enter a favorable
judgment on his counterclaim, which “request[ed] that, as a matter of equity, *** the City of
Wheaton, be permanently enjoined from allowing Ted Fanning, the current code enforcement
officer, to contact or interact with Defendant.” Jones’s argument is premised on the belief that
Fanning asserted the ordinance violations solely out of personal animus after Jones refused to
make the requested repairs within Fanning’s desired timeframe. In denying relief on the
11 counterclaim, the trial court asserted that it lacked the authority to enjoin Fanning from doing his
job.
¶ 33 As Jones notes, “Ordinarily, injunctive relief will not be granted against a public officer
with respect to his official acts, unless such acts are outside his authority or are unlawful. See
Chapman v. Watson, 40 Ill. 2d 408 (1968). This is in general agreement with earlier decisions
which held the discretion vested in public officials will not be controlled by injunction unless
fraud, corruption, oppression, or gross injustice is shown. Stewart v. Department of Public
Works, 336 Ill. 513 (1929); Fairbank v. Stratton, 14 Ill. 2d 307 (1958). Rocke v. County of Cook,
60 Ill. App. 3d 874, 875 (1978). We have already upheld the trial court’s determination that
Jones committed the ordinance violations. Thus, we conclude that the charges filed were firmly
rooted in fact and were not fraudulent, oppressive, or grossly unjust.
¶ 34 Moreover, Jones’s counterclaim sought to enjoin a public official from performing the
duties of his office. Pursuant to Code section 104.1, “The code official is hereby authorized and
directed to enforce the provisions of this code. The code official shall have the authority to
render interpretations of this code and to adopt policies and procedures in order to clarify the
application of its provisions. Such interpretations, policies and procedures shall be in compliance
with the intent and purpose of this code.” Code § 104.1. Accordingly, the Code granted Fanning
the authority to enforce and interpret the ordinance provisions. His act of raising the Code
violations alleged in the City’s complaint were within both his discretion as a code official and
the scope of his official authority. Because Fanning’s acts were not unlawful or outside the scope
of his authority, a grant of injunctive relief would have been improper. See Rocke, 60 Ill. App. 3d
at 875 (stating the conditions for obtaining injunctive relief against a public official). The trial
court did not err by declining to grant Jones’s request for injunctive relief.
12 ¶ 35 III. CONCLUSION
For the reasons stated, we affirm the Du Page County Circuit Court’s judgments that
were challenged by Jones. Due to our disposition of this case, we need not address Jones’s
request to have the cause remanded to a different court for further proceedings.
¶ 36 Affirmed.