County of McHenry v. Waters

2021 IL App (2d) 210027-U

• Court: Appellate Court of Illinois
• Decided: March 29, 2021
• Docket: 2-21-0027
• Status: Unpublished

Opinion

2021 IL App (2d) 210027-U No. 2-21-0027 Order filed March 29, 2021

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

COUNTY OF MCHENRY, ) Appeal from the Circuit Court ) of McHenry County. ) Plaintiff-Appellee, ) ) v. ) No. 19-CH-666 ) DANIEL V. WATERS, as Administrator of the ) Estate of John Waters, PAUL IVERSON, ) Paul Iverson a/t/u/a dated April 3, 2006 and k/a ) Trust No. 4307, GERALD P. LENZEN as ) Administrator of the Estate of Walter T. ) Iverson, ORGANIC FARMS OF CRYSTAL ) LAKE, INC., CRYSTAL LAKE BUILDERS, ) INC., THORVALDR, INC., JOSEPH A. ) STROPE, Unknown Occupants, Unknown ) Owners and Nonrecord Claimants, ) ) Defendants, ) Honorable ) Kevin G. Costello, (Paul Iverson, Defendant-Appellant). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BRENNAN delivered the judgment of the court. Justices Hutchinson and Hudson concurred in the judgment.

ORDER

¶1 Held: The trial court did not abuse its discretion by granting a mandatory preliminary injunction that required corrective action, because the relief was necessary to 2021 IL App (2d) 210027-U

prevent irreparable harm and was consistent with a balancing of the equities. Affirmed.

¶2 On October 28, 2019, plaintiff, the County of McHenry, filed a verified complaint for

preliminary and permanent injunction (hereinafter “complaint for permanent injunction”) against

defendants, Daniel V. Waters et al. The County requested that corrective action be taken on the

subject property to prevent harm to the public health. On October 1, 2020, after all defendants had

been served and had been given an opportunity to answer, the County moved for a preliminary

injunction. The County again requested that corrective action be taken on the subject property to

prevent harm to the public health. One defendant responded: Paul Iverson, pro se. Following an

evidentiary hearing, the trial court granted the County’s motion for a preliminary injunction and

ordered corrective action on the property to prevent harm to the public health. Iverson filed an

interlocutory appeal as of right pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1,

2017), essentially arguing that the trial court abused its discretion by issuing a preliminary

injunction that went beyond the preservation of the status quo while the underlying complaint for

permanent injunction remained pending. We disagree that the trial court abused its discretion;

therefore, we affirm.

¶3 I. BACKGROUND

¶4 The subject property consists of a 40-acre parcel known as 4307 Walkup Road in Crystal

Lake. In January 2019, the County filed numerous zoning and ordinance violation cases against

the then-alleged owner, Crystal Lake Builders, Inc. Crystal Lake Builders took no corrective

action. The County then learned that the property was the subject of an action to quiet title (Case

No. 16-CH-200).

¶5 A. The County’s Complaint for Permanent Injunction

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¶6 On October 28, 2019, the County filed a complaint for permanent injunction against all

parties to the action-to-quiet-title case. The County cited its authority under section 5-25013(B)(3)

of the Counties Code (55 ILCS 5/5-25013(B)(3) (West 2018)), which permits it to recommend the

passage of certain ordinances for the protection of the public health and the control of disease; the

County Public Health Ordinance; the International Residential Code; and the Unified Development

Ordinance.

¶7 The County alleged that, on numerous occasions between June 2018 and August 2019, its

representatives inspected the property. The inspections documented the following conditions: a

substantial accumulation of rubbish and litter, including burned materials and abandoned

appliances, vehicles, and batteries; empty containers allowing for the harborage and breeding of

disease-vector mosquitos; existing structures with openings allowing for the entry of insects,

rodents, and other vermin; a non-permitted water well connected to residential structures; an

improperly abandoned water well; non-permitted modifications to a septic system; non-permitted,

improperly occupied, and hazardous mobile home structures; and non-permitted and improperly

placed electrical feeds serving multiple structures on the property, including the non-permitted

mobile structures.

¶8 The County listed the corresponding ordinance and code violations. It also attached

affidavits from its inspectors and photographs of the condition of the property.

¶9 The County requested that defendants be ordered to take 12 corrective actions and that, if

they did not, the County be authorized to complete the same. These corrective actions included

cleaning up litter, such as batteries, that could leak into the ground water; removing containers and

sealing structures to prevent the harborage of disease vectors; bringing the water and sewage

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systems into compliance; removing the mobile homes; and removing illegally installed electrical

service feeds.

¶ 10 On August 28, 2020, the County moved for a default judgment. In it, the County pled that

it had served all the defendants as of December 30, 2020. Defendant Joseph A. Strope, who owned

the mobile homes, entered into a partial agreement with the County and was later dismissed from

the case. However, several of the defendants never filed an appearance, and the time to do so had

passed. Iverson appeared, moving for a substitution of judge in January 2020. The motion was

granted, but several status dates were postponed due to the coronavirus pandemic shutdown.

Iverson never filed an answer, and the time to do so had passed. As such, the County sought a

default judgment.

¶ 11 On September 2, 2020, Iverson moved for leave to file an answer and affirmative defense,

noting that he had a “possessory interest” in the property. The court granted leave. In his answer,

Iverson did not deny that the property was in the condition alleged by the County. (He checked

“Do Not Know” on the pro se answer form.) Instead, he argued that the County did not have

jurisdiction over the property, because it was “agricultural real estate.”

¶ 12 On September 9, 2020, the court also granted defendant Waters leave to answer and entered

a default judgment as to the remaining defendants. Waters’ answer is not in the record, but the

County represents in its sur-reply brief that it engaged in productive conversations with Waters.

Iverson was the only remaining party to resist a cleanup of the property.

¶ 13 On November 5, 2020, Iverson moved for judgment on the pleadings. He again argued

that the county did not have jurisdiction over the property, because it was agricultural real estate.

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Following a multitude of pleadings not at issue here, the trial court denied Iverson’s motion “for

the reasons stated in open court.” 1

¶ 14 B. The County’s Motion for Preliminary Injunction

¶ 15 In the interim, on October 1, 2020, the County moved for a preliminary injunction. 735

ILCS 5/11-102 (West 2020). It pled that its representatives, Jack Levato and Adam Wallen,

inspected the property on July 29, 2020. The inspection revealed that the violations alleged in the

complaint for permanent injunction had not been abated or remediated.

¶ 16 The County argued: “A preliminary injunction is the only remedy available to [the County]

that would prevent defendants from continuing to cause the harm described above before a decision

on the merits of the [complaint for permanent injunction] can be made.” It requested that the court

enjoin defendants from continuing to violate the ordinances.

¶ 17 On October 27, 2020, Iverson responded to the motion for preliminary injunction. He did

not address the condition of the property. Rather, he again argued that the County did not have

jurisdiction over the property, because it was agricultural real estate.

¶ 18 The trial court set the matter for hearing on December 29, 2020. It further ordered that, if

Iverson should wish to depose Levato and Wallen, he should do so by December 17, 2020. From

the record before us, it does not appear that Iverson did so.

¶ 19 C. December 29, 2020, Hearing

¶ 20 On December 29, 2020, the trial court conducted the hearing on the County’s motion for

preliminary injunction. Levato, Wallen, and Iverson testified.

¶ 21 1. Jack Levato

1 The transcripts are not in the record.

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¶ 22 Levato testified that he was a field staff supervisor within the environmental division of

the County’s Department of Health. He has been inspecting the property since 2018. In June

2018, he observed a person living in the single-family residence. That person, not Iverson,

informed him that there was no running water in the residence. In December 2018, Levato

observed that unpermitted well water and septic systems had been hooked up to two mobile homes

on the property. The mobile homes did not have permits. Later, in July 2019, Levato observed

signs of mice inside the mobile homes. One of the mobile homes was occupied by defendant

Strope and his family, which included children. Further, Levato observed litter, old appliances,

and signs of illegal burns at the property. Levato believed that these conditions were a threat to

the public health. Specifically, the rodents posed a risk of spreading communicable disease, the

burns threatened the neighbor’s air quality, and the unpermitted wells and septic provided a direct

conduit for contaminants to enter the County’s water aquifer, which members of the public access

for drinking water. Additionally, the large amounts of garbage, abandoned appliances, and

batteries on the property could, eventually, degrade and contaminate the groundwater. Iverson

was present during the inspection, and, in Levato’s view, he did not demonstrate a willingness to

abate the complained-of conditions. Further, Levato did not see any sign that the property was

used for agricultural purposes. There were some chickens roaming the 40-acre property, but

Levato estimated their count at fewer than 10.

¶ 23 Levato did not believe that money damages would be an adequate remedy for the County,

should the County be denied a preliminary injunction but ultimately prevail at a trial on the merits

of the complaint for permanent injunction. No amount of money could undo the harm done to the

public health in the interim.

¶ 24 2. Adam Wallen

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¶ 25 Wallen testified that he was a building enforcement officer with the County’s Department

of Planning and Development. He is familiar with the International Residential Code and Unified

Development Ordinance. He first inspected the property in August 2019. The first mobile home

had many violations. A tree had fallen on it, and portions of the structure were missing. The walls

and roof were open to the elements. A step ladder was serving as an access point. The electrical

services were crudely implemented. Multiple splices in the electrical service ran throughout the

property, over driveways and through puddles. Some of the splices were “live.”

¶ 26 The second mobile home’s point of entry was an unstable, retrofitted plywood deck. The

deck was covered in “a lot” of animal waste, making it difficult to enter the home. There were

multiple intrusion points for water. Wallen did not notice “much in the way of plumbing.”

Additionally, the electrical services within the home contained “blocked” receptacles and electrical

items, such as fans, that were improperly hung on bed mattresses. When Wallen returned to the

property in August 2020, the mobile home was in roughly the same condition. However, the deck

had been removed, creating an improper access point three feet off the ground. It did not appear

that anyone was living in the mobile home at that point. Instead, there were a few chickens in it.

¶ 27 Similarly, the single-family residence was uninhabitable. It did not have operable

plumbing services. Even upon the second visit, it had not been boarded up to prevent illegal entry

or occupation by wildlife.

¶ 28 Wallen addressed Iverson’s claim that the property was exempt from compliance because

it was agricultural real estate. Just because a property is zoned agricultural does not mean that it

is being used for agricultural purposes. It is true that buildings being used for agricultural purposes

are not subject to residential building codes. However, for a building to qualify for an agricultural

exemption, the owner must apply for a permit. As part of the permitting process, the owner must

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provide a site plan showing the building in question and explaining the proposed agricultural use.

Neither Iverson nor any other person has applied for said permit.

¶ 29 On cross-examination, Wallen agreed that, on his second visit, “the electrical for the

[mobile home] was removed.” Also, the non-compliant deck had been removed.

¶ 30 3. Paul Iverson

¶ 31 Iverson testified that, although he did not live on the property or own the property, he had

a “future interest” in it through a “Mr. [Michael] Bercos.” He referred to the pending claim to

quiet title on the property, and he explained that he and his “cousin’s kid are going to end up with

[the property].” He did not present documentary evidence to support his claims.

¶ 32 Iverson had been visiting the property since he was a child. In his view, the wells and

septic “work” as they have always worked. “You can flush [the toilet] with a bucket of water.”

Iverson “did not see a problem” with hooking up the mobile homes to the septic system sans

permit. He explained that the mobile homes were no longer being used as residences, so he did

not need a permit. The mobile homes did not belong to Iverson. Rather, Strope brought the mobile

homes onto the property. Strope no longer lives there. He left the mobile homes behind.

¶ 33 Further, Iverson testified that he has improved the property. As mentioned, he

disconnected the electrical service to the mobile homes and removed the deck. He put a lid over

one of the wells. He admitted that there were approximately 10 appliances on the property, but he

plans to use them for scrap. In fact, he believes that much of what the County has deemed litter is

salvageable. He has plans to turn the property into a working farm. He would like to sell chickens

and hay. He would not use the mobile homes as residences but for storing hay. Also, another man

maintains beehives on the property. Iverson did not know the man’s name; he is “some guy.”

¶ 34 4. Closing Argument and the Trial Court’s Oral Ruling

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¶ 35 In closing, as is relevant to the instant appeal, the County argued that it had shown a

“likelihood of success on the merits,” because it had shown that there is a “likelihood that the

ordinances are being violated.” In addition, the County urged that any hardship to Iverson, who

“just wants everyone to leave him alone,” “paled in comparison to the hardship that could occur

to the County [if the water aquifers became contaminated.]”

¶ 36 It requested the following relief: “We would ask the court to grant our preliminary

injunction so that we can put the property back into compliance with our ordinances, [remove] the

trailers, remove the debris and litter ***, confirm the water wells are properly abandoned, and

everything that is listed in our complaint for injunctive relief.” (Emphases added.)

¶ 37 Iverson reiterated his argument that the County did not have jurisdiction to regulate the

property, because it was agricultural real estate. Iverson did not take issue with the County’s

request for comprehensive corrective action, should the County prevail at this preliminary stage.

The trial court asked Iverson how he would be damaged if the County cleaned up the property.

Iverson stated that he wanted to use some of the items that the County considered garbage. Also,

he did not want a lien on the property.

¶ 38 The trial court granted the County’s motion for preliminary injunction. It prefaced its

ruling by stating that it had not seen “any evidence” to suggest that Iverson had a current ownership

interest in the property. However, “in an abundance of caution,” it would consider Iverson’s

argument to the extent it was relevant to whether a preliminary injunction was warranted. The

court believed that the County had authority to regulate the property to protect the public health,

and it did not believe an agricultural exemption applied.

¶ 39 The trial court next addressed the four traditional elements necessary to obtain a

preliminary injunction, essentially adopting the County’s arguments. As to the fourth element, the

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court stated: “A likelihood of success. Again, they have established in the court’s view that those

ordinances apply and that there [was] certainly prima facie evidence of violation of those

ordinances.” Additionally, the court determined that the equities weighed in favor of the County.

It stated: “And lastly, a balancing of the equities. Here, again, the County has established clearly

that there are public health issues that need to be *** remedied. On the reverse of that, the court

struggles to see what harm there is to Mr. Iverson.” The court reasoned that, if the County

performed the cleanup, the County would place a lien on the property. Thus, “for Mr. Iverson to

be legally responsible ***, it would have to be established that he has an ownership interest in the

property. If he simply— And I don’t use this term to offend anyone, [is] an interloper, then ***

the County would have no basis to get monetary damages from him.” The court further noted that

Iverson testified that many of the items, such as the mobile homes, were not his. Nevertheless, the

court would give Iverson 30 days to remove any items that were “near and dear” to him prior to

the cleanup.

¶ 40 The court concluded: “So, given all of those considerations, the court finds that the

[C]ounty has met its burden of proof and will issue a preliminary injunction in favor of the

[C]ounty.” The court requested that the County prepare the written order and submit it

electronically through the court’s proposed order system.

¶ 41 5. Written Order

¶ 42 On December 31, 2020, the trial court issued its written order. In paragraph one, the court

held, inter alia, that the County had a “substantial likelihood of success on the merits.” In

paragraph two, the court held that the property “is found” to be in violation of the ordinances. The

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court ordered defendants to take 11 corrective actions within 30 days. 2 If defendants did not take

the 11 corrective actions, the County could perform them, the cost of which would result in a lien

recorded against the property. The court set the case for status on February 2, 2021, to monitor

the progress of the remediation. Iverson appeals pursuant to Rule 307(a)(1). Ill. S. Ct. R.

307(a)(1).

¶ 43 II. ANALYSIS

¶ 44 Iverson argues that the trial court abused its discretion by issuing a mandatory preliminary

injunction that went beyond the preservation of the status quo while the underlying complaint for

permanent injunction remained pending. The issuance of a preliminary injunction is not controlled

by technical legal rules but, rather, rests within the conscience and sound discretion of the trial

court. Kalbfleish v. Columbia Unit School District No. 4, 396 Ill. App. 3d 1105, 1119 (2009). The

trial court’s issuance of a preliminary injunction will not be reversed absent an abuse of discretion.

Id. An abuse of discretion occurs only when the trial court’s order is arbitrary, fanciful, or

unreasonable, or when no reasonable person would adopt the court’s view. Enbridge Pipelines

(Illinois), LLC v. Troyer, 2015 IL App (4th) 150334, ¶ 14.

¶ 45 Generally, the party seeking a preliminary injunction must establish facts demonstrating

that: (1) it has a protected right; (2) it will suffer irreparable harm if injunctive relief is not granted;

(3) its remedy at law is inadequate; and (4) there is a likelihood of success on the merits. County

2 The 11 corrective actions are substantially similar to the 12 corrective actions prayed for

in the underlying complaint for permanent injunction. The missing action is “clean and sanitize

all areas within the remaining single family residential structure that was impacted by garbage,

rubbish, waste, and animal waste.”

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of Du Page v. Gavrilos, 359 Ill. App. 3d 629, 634 (2005). However, when a statute expressly

authorizes injunctive relief to enforce its provisions, the second and third elements, irreparable

harm and inadequate remedy at law, need not be shown. People v. Fiorini, 143 Ill. 2d 318, 346

(1991). Such is the case when a government seeks to enforce its ordinances. Gavrilos, 359 Ill.

App. 3d at 634. A governmental agency seeking a preliminary injunction to enforce its ordinances

need only show that the ordinance at issue allows for injunctive relief and there is a likelihood that

the ordinance is being violated. Id. Under either the traditional, four-element test or the more

streamlined test available to governmental agencies, the trial court must also balance the equities

to determine the relative inconvenience to the parties and whether the burden upon the defendant,

should the injunction issue, outweighs the burden to the plaintiff by denying it. Shodeen v.

Chicago Title and Trust Co., 162 Ill. App. 3d 667, 673 (1987) (four-element test); County of

Kendall v. Rosenwinkle, 353 Ill. App. 3d 529, 539 (2004) (streamlined test).

¶ 46 The purpose of a preliminary injunction is to preserve the status quo until the case can be

decided on the merits. Rosinia v. Gosmano, 90 Ill. App. 3d 882, 886 (1980). Mandatory

preliminary injunctions that require the defendant to take corrective action are more likely than

prohibitive preliminary injunctions to stray beyond the preservation of the status quo and are,

therefore, subject to scrutiny. Shodeen, 162 Ill. App. 3d at 673. To obtain such relief, the plaintiff

must show that the corrective action is in fact necessary to preserve the status quo. Id.

¶ 47 The status quo is defined as the last actual, peaceable, uncontested status which preceded

the pending controversy. Gavrilos, 359 Ill. App. 3d at 638. “Between a zoning jurisdiction and a

property owner or tenant, the last peaceable state of existence between those parties is a state

without a zoning violation.” Id. (Emphasis added). A continuing violation of the law cannot be

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the status quo. Id. Further, in aiming to preserve the status quo, the court should be mindful to

craft an order that not only contains ongoing damage but also prevents prospective damage. Id.

¶ 48 As this court recognized in Gavrilos, there is scant case law addressing the preservation of

the status quo in the context of alleged zoning or ordinance violations. Id. In Gavrilos, which

involved the issuance of a temporary restraining order on an adult business operating in violation

of applicable zoning ordinances, we turned to rulings from other jurisdictions. Id. Several of these

rulings show how, to preserve the status quo in the context of an alleged zoning or ordinance

violation, the court may order mandatory, as opposed to prohibitive, relief that requires the

defendant to take corrective action. See City of Stamford v. Kovac, 634 A.2d 897, 898-900

(Conn.1993) (following a hearing on a motion for a preliminary injunction, property owners who

diverted the natural flow of a waterway could be compelled to undertake restorative acts, including

removing fill to regrade the property and replanting native plants, within 45 days, at which time

plaintiff would be authorized to perform the work and record a lien against the property); see also

Burton v. Celentano, 658 P.2d 247, 597 (Ariz.1982) (trial court acted within its discretion to issue

a mandatory preliminary injunction requiring the removal of a wooden wall that allegedly diverted

the natural flow of a local waterway in violation of applicable floodplain laws).

¶ 49 Moreover, even apart from ordinance or zoning violation cases, there are instances where

a court’s assessment of the equities warrants action rather than inaction to preserve the status quo.

Consider, for example, Kalbfleisch, where the parents of a five-year-old autistic boy moved for a

preliminary injunction to permit their son to bring his service dog to school pursuant to a service

animal statute. Kalbfleisch, 396 Ill. App. 3d 1105. The trial court determined that the parents met

the four elements necessary to obtain a preliminary injunction. Id. at 1114-15. It also balanced

the hardships between the parties and found that the injury the boy would suffer by being denied

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his (likely) statutory right to be accompanied by his service dog outweighed any harm potentially

incurred by the school district by having to rearrange class assignments for one student who was

allergic to dogs. Id. at 1120. The court ordered that the boy be allowed to bring his service dog

to school, giving the school district three weeks to prepare for the dog’s arrival. Id.

¶ 50 On appeal, the school district argued, inter alia, that the order was improper, because it

altered the status quo. In its view, allowing the boy to attend school with his service dog could not

be the status quo, because it was never the actual status. The appellate court disagreed, explaining:

“[S]ometimes it happens that the status quo is not a condition of rest but, rather, is one of

action and the condition of rest is exactly what will inflict the irreparable harm. *** To

hold that the status quo was [the boy] not attending school with his service dog because the

service dog never attended school last year would leave [the boy] with no avenue to prevent

suffering irreparable harm—the purpose behind issuing a preliminary injunction in the first

place. *** [E]ven if the status quo is to be altered, a reversal is not required in every case.

[Citation.] An application for an injunction is addressed to the conscience and sound

discretion of the court, and it is not controlled by technical legal rules, and unless a

reviewing court finds that the discretion has been abused, the order will not be set aside.”

(Internal quotations omitted.) Id. at 1118-19.

The appellate court concluded that no abuse of discretion had occurred, and, to the contrary, the

trial court had appropriately balanced the hardships between the parties. Id. at 1120.

¶ 51 Here, as in Stamford, Burton, and Kalbfleisch, mandating corrective action was necessary

to maintain the status quo. The corrective actions were necessary both to contain ongoing damage

and to prevent prospective damage that would occur during the pendency of the suit. For example,

Levato and Wallen each testified that the condition of the property posed a threat to public health

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and safety. Numerous conditions on the property posed a risk to the ground water and the public

drinking supply. Other conditions on the property harbored wildlife, such as mosquitos and mice,

and, thus, were vectors for disease in the community. Levato further testified that, should the

County be denied a preliminary injunction but ultimately prevail at a trial on the merits, monetary

damages would be inadequate to remedy the harm to the public health that would have occurred

during the pendency of the suit.

¶ 52 Moreover, each of the corrective measures at issue are aimed at curing an immediate threat

to the public health. Again, these corrective measures include cleaning up litter, including batteries

that could leak into the ground water; removing containers and sealing structures to prevent the

harborage of disease vectors; bringing the water and sewage systems into compliance; and

removing illegally installed electrical service feeds. Arguably, the order to remove, as opposed to

repair, the mobile homes altered the status quo in a strict sense. However, the mobile homes were

owned by Strope, who has already entered into an agreement with the County. In any case, we

note that Iverson has never attempted to parse the requested action items according to their

respective threat to the public health. Therefore, a slight alteration from status quo here may be

excused in deference to trial court’s consideration of the equities. See Kalbfleisch, 396 Ill. App.

3d at 1119-20.

¶ 53 The trial court is afforded broad discretion in issuing preliminary injunctions, and, here,

the court performed a thoughtful analysis. The court would have been justified in performing the

streamlined test applicable when governmental agencies seek to enforce an ordinance, but the court

went beyond that and considered each of the traditional elements necessary to obtain a preliminary

injunction. In addition, the court balanced the equities. It reasonably determined that the hardship

to be borne by the County absent immediate corrective measures far exceeded the hardship to be

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borne by Iverson were the court to order the same but later determine at a final hearing on the

merits that the ordinances had not in fact been violated. As discussed, monetary damages would

be inadequate to compensate the County were the court to deny the corrective measures. However,

monetary damages would be sufficient to compensate Iverson in the unlikely event that the court

ultimately determined the cleanup had not been warranted. This, of course, is assuming Iverson

was able to establish an ownership interest in the property. Even in the short-term, Iverson would

not be responsible for a lien recorded against the property absent an ownership interest. Also,

Iverson testified that some of the items that the County considered litter were salvageable, but

Iverson was given 30 days to remove these items from the property. We defer to the trial court’s

assessment of the equities.

¶ 54 We reject Iverson’s argument that the County cannot have demonstrated an immediate need

for corrective action, because eleven months passed between the filing of the complaint for

permanent injunction and the motion for preliminary injunction. Iverson himself represents that,

during this time, the County: (1) awaited appearances from all defendants; (2) awaited a late

answer from Iverson; and (3) pursued other avenues by which to obtain immediate relief, such as

a default judgment. Further, the record shows that Iverson moved for a substitution of judge and

that subsequent status hearings were delayed due to the coronavirus pandemic shutdown. The

County can account for the passage of time, and the passage of time does not cause us to question

the trial court’s determination that immediate corrective action was necessary.

¶ 55 Finally, to the extent Iverson argues that the December 29, 2020, hearing amounted to an

unnoticed hearing for a permanent injunction, and the December 31, 2020, order amounted to a

final determination on the merits of the underlying complaint for permanent injunction, we

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disagree. 3 While the trial court is afforded broad discretion in granting preliminary injunctions and

in fashioning the appropriate relief, one thing it cannot do at the preliminary stage is render a final

determination on the merits and, in so doing, effectively grant a permanent injunction. See

Electronic Design and Manufacturing, Inc. v. Konopka, 272 Ill. App. 3d 410, 415 (1995).

¶ 56 A preliminary-injunction hearing, unlike a trial on the merits, generally consists of an

abbreviated evidentiary hearing on an emergency basis. Id. “The ‘findings’ of a court under these

circumstances do not carry with them the preclusive effect of res judicata. The parties, therefore,

are not foreclosed from offering additional evidence at the final trial in the case. In addition, the

relief available under a preliminary injunction is provisional in nature.” Id.

¶ 57 Due process concerns are implicated when, at the conclusion of a preliminary-injunction

hearing, the trial court effectively grants a permanent injunction. Id. It is axiomatic that, before

commencement of the hearing, the parties are put on notice that the hearing is, in effect, a trial on

the merits. Id. This is true even when there is no indication that the responding party would have

produced further evidence had it been notified that the entire case would be disposed of in a single

hearing. Id.

¶ 58 Here, in its written order drafted by the County, the trial court “found” the property to be

in violation of the various ordinances. Standing alone, this language might suggest a final

determination on the merits of the complaint for permanent injunction. However, in the same

order, the trial court also wrote that the County had a “substantial likelihood of success on the

3 Iverson argues: “At the preliminary injunction stage of this case, it was error for the trial

court to conduct a hearing on controverted facts, make findings on those facts, and then issue a

mandatory preliminary injunction [granting the ultimate relief sought].”

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merits” of its complaint for permanent injunction. Additionally, the trial court referenced the

“likelihood of success” element many times throughout the hearing and made a finding of the same

in its oral ruling. As such, a review of the entire record establishes that the trial court understood

that its “finding” of ordinance violations was provisional in nature, did not carry the preclusive

effect of res judicata, and did not foreclose Iverson from offering additional evidence at the final

trial on the merits. See id.

¶ 59 We observe some irony in Iverson’s argument that he was wronged because the trial court

conducted an evidentiary hearing before issuing mandatory corrective actions. Rather than signify

an unnoticed trial on the merits, the due process afforded to Iverson served to protect his rights at

a preliminary stage of the case. Indeed, Iverson fully participated in the proceedings below. For

example, he was given the opportunity to file a late answer to the underlying complaint. He was

given a hearing on his motion for judgment on the pleadings. He was given the opportunity to

depose Levato and Wallen. Most importantly, he participated in an evidentiary hearing on the

County’s motion for preliminary injunction.

¶ 60 We do note, however, that there are gaps in the record, some of which have been filled in

piecemeal fashion. For example, Iverson has come to us at the eleventh hour to inform us of the

County’s motion for default judgment and the timing of Iverson’s answer. Defendant Waters’

motion for leave to file an answer is not in the record. Also, the transcripts from the hearing on

Iverson’s motion for judgment on the pleadings are not in the record. “Any doubts which may

arise from the incompleteness of the record will be resolved against the appellant.” Foutch v.

O’Bryant, 99 Ill. 2d 389, 392 (1984). On the record before us, we determine that Iverson received

adequate due process.

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¶ 61 In sum, the circumstances in this case justify the trial court’s issuance of a mandatory

preliminary injunction requiring corrective action. Immediate action was necessary to prevent

harm to the public health that would occur during the pendency of the case. Iverson received

adequate due process, yet he was unable to convince the court that he would suffer any hardship

due to a cleanup of the property pending a final determination on the merits of the case. The trial

court did not abuse its discretion.

¶ 62 III. CONCLUSION

¶ 63 For the reasons stated, we affirm the trial court’s judgment.

¶ 64 Affirmed.

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