Killion v. City of Centralia

885 N.E.2d 1199, 381 Ill. App. 3d 711
CourtAppellate Court of Illinois
DecidedApril 3, 2008
Docket5-07-0152
StatusPublished
Cited by4 cases

This text of 885 N.E.2d 1199 (Killion v. City of Centralia) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Killion v. City of Centralia, 885 N.E.2d 1199, 381 Ill. App. 3d 711 (Ill. Ct. App. 2008).

Opinion

JUSTICE WELCH

delivered the opinion of the court:

On July 16, 2002, the plaintiffs, Maurice Killion and Nina Killion, filed a two-count complaint against the City of Centralia (count I) and Roscoe Meeks, Linda Meeks, Erwin Meeks, Craig Meeks, and Gregory Bee, doing business as Meeks Trash Disposal, Centralia Paper Stock Company, and Meeks Backhoe (count II). Count I sought an order of mandamus directing the City of Centralia (City) to enforce its zoning ordinance against Meeks Trash Disposal, Centralia Paper Stock Company, and Meeks Backhoe, which are located within an area of the City zoned residential and agricultural and are operating in violation of the City’s zoning ordinance. Count II sought a permanent injunction against the defendants illegally operating the businesses in violation of the City’s zoning ordinance in an area of the City zoned residential and agricultural.

In its answer to the complaint, the Meeks defendants raised the affirmative defense of laches. After a trial on all the issues, the circuit court of Marion County entered a judgment in favor of all the defendants on the ground that the plaintiffs’ action was barred by laches. The plaintiffs appealed to this court, and on December 19, 2005, this court entered an order in which it found that the circuit court had abused its discretion in determining that laches barred the plaintiffs’ action. Killion v. City of Centralia, No. 5—04—0722 (2005) (unpublished order under Supreme Court Rule 23 (166 Ill. 2d R. 23)). Accordingly, we reversed the circuit court’s judgment in favor of the defendants and, because the circuit court had not ruled on the merits of the plaintiffs’ complaint, remanded the cause to the circuit court for further proceedings.

On August 31, 2006, the circuit court entered an order permanently enjoining the Meeks defendants from operating any business or storing any business equipment or assets at the property in question. The defendants were given 60 days, until October 31, 2006, to remove all business-related items from the property and comply with the injunction. The circuit court further found that in light of the issuance of the injunction, a writ of mandamus directed against the City was unnecessary. Count I of the plaintiffs’ complaint was therefore dismissed as moot, without prejudice to the plaintiffs’ right to refile.

On October 20, 2006, the defendants moved for an extension of time in which to comply with the court’s order, asserting that they had located an alternative location for the businesses and were in the process of moving. This motion was granted and the defendants were granted until December 31, 2006, to comply with the order.

On December 29, 2006, the plaintiffs filed a petition for a rule directed to the defendants to show cause why they should not be held in contempt of court for their failure to comply with the court’s order of August 31, 2006. The plaintiffs alleged that the defendants were continuing to operate their businesses and store business equipment at the subject property. The petition also sought an order directing the defendants to pay the plaintiffs’ reasonable attorney fees and costs and “such other relief as the Court deems appropriate.”

The rule to show cause came on for a hearing on February 22, 2007. The plaintiffs called Roscoe Meeks as an adverse witness, and he was indeed adverse. He stubbornly refused to answer many questions and answered “I don’t know” and “I don’t remember” to the most obvious of questions. We recognize that at the time of hearing the witness was 87 years of age and apparently hard of hearing, but his reluctance to answer questions does not, in our opinion, seem related to his age. Instead it seemed to be an attempt to subvert the truth. Accordingly, it is difficult to set forth the substance of Roscoe’s testimony. To the extent he provided any information, he testified that he had found a new location for his business, that no business equipment or materials remained at the subject property, and that he did not conduct any business operations at the property. To the extent that photographs belied his testimony, he simply testified that he did not recognize anything in the photos.

Angelia Killion, the daughter of the plaintiffs, testified for the plaintiffs. She had taken 87 photographs of the subject property, all of which were admitted into evidence. Each photograph had written on its back the date on which it had been taken. Angelia admitted that Roscoe had moved some of the garbage bins from the property, but she testified that some remained. There remained three bins behind the shed on the property and two bins in front of the shed. Two garbage bins remained next to Roscoe’s son’s house located on the subject property. Angelia believed that some garbage bins also remained inside the shed, although she had not been able to photograph them. Angelia had seen a garbage truck leaving the property one morning but did not see it return. Another garbage truck was parked every evening in the driveway of Roscoe’s son’s house on the subject property. Angelia also had a photograph of one of Roscoe’s employees doing work at the subject property on a backhoe owned by the Meeks defendants. A trailer used by the defendants to haul garbage remained on the subject property. Although Roscoe had testified that he used this trailer to haul lawn mowers, Angelia had seen it being used to haul garbage.

Roscoe’s wife, Linda Meeks, testified for the defendants. She testified that, upon the entry of the permanent injunction, the Meeks defendants began looking for an alternative site for the businesses. After having found a site, they had to wait for the power company, which was contending with damage from a massive ice storm, to run electricity to the site. Nevertheless, the defendants began moving some equipment and materials to the site even before electric service was established at the end of December 2006. Roscoe was ill for a period of time, but business equipment and materials were moved as quickly as possible. Linda testified that no garbage bins are being stored at the subject property and that no trucks are stored there. There are no garbage bins inside the shed on the property. Some garbage bins remained on the property for the cleanup of anything that was on the ground there. One garbage bin remained because a police report had been filed on it because someone had illegally dumped carpet in it. The trailer on the property was not used to haul garbage but was used to haul lawn mowers. Two of Linda’s and Roscoe’s sons live on the subject property, in separate houses. One son drives a garbage truck every day and parks it in the driveway to his home overnight. Linda testified that the defendants have no intention of ever returning the businesses to the subject property.

At the close of the evidence, the plaintiffs asked for an order granting them leave to inspect the premises, particularly the inside of the shed. They also asked for attorney fees and costs and for an award of $1,000 per day commencing on January 1, 2007, for every day the defendants were in violation of the injunction.

The circuit court found that there had been some violations of the permanent injunction by the defendants. Two garbage truck doors remained on the property, as did several garbage bins, and these items would have to be removed. The court found, however, that given the totality of the evidence, the violations were not wilful and contumacious.

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Cite This Page — Counsel Stack

Bluebook (online)
885 N.E.2d 1199, 381 Ill. App. 3d 711, Counsel Stack Legal Research, https://law.counselstack.com/opinion/killion-v-city-of-centralia-illappct-2008.