Killion v. City of Centralia

Opinion

N O T IC E NO. 5-07-0152 Decision filed 04/03/08. The text of this decis ion may be changed or IN THE corrected prior to the filing of a Pe tition for Re hea ring or th e APPELLATE COURT OF ILLINOIS disposition of the same.

FIFTH DISTRICT ___________________________________________________________________________

MAURICE KILLION and NINA KILLION, ) Appeal from the ) Circuit Court of Plaintiffs-Appellants, ) Marion County. ) v. ) No. 94-MR-13 ) THE CITY OF CENTRALIA, a Municipal ) Corporation Organized Under the Laws of the ) State of Illinois, and Its Employees and Agents, ) MARK STEDELIN and DAVID SHAW, ) ) Defendants, ) ) and ) ) ROSCOE MEEKS, LINDA MEEKS, ERWIN ) MEEKS, CRAIG MEEKS, and GREGORY ) BEE, d/b/a Meeks Trash Disposal, Centralia ) Paper Stock Company, and Meeks Backhoe, ) Honorable ) Patrick J. Hitpas, Defendants-Appellees. ) Judge, presiding. __________________________________________________________________________

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

1 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0722 (2005) (unpublished order under Supreme Court Rule 23 (166 Ill. 2d R. 23)).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

2 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

3 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 lawnmowers, 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 lawnmowers. 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.

4 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. The

court found that the defendants had made a reasonable, bona fide effort to vacate the

property. Accordingly, the court declined to award attorney fees or any payment to the

plaintiffs. The court ordered the defendants to remove the garbage bins and the garbage

truck doors from the property by March 15, 2007. The court further found that the overnight

parking of the garbage truck in the driveway of the son's home was not a violation of the

injunction. The plaintiffs appeal.

The plaintiffs first argue that the circuit court's finding that the defendants' violation

of the permanent injunction was not wilful and contumacious was contrary to the manifest

weight of the evidence and that the circuit court's failure to find the defendants in contempt

constitutes an abuse of the court's discretion. See In re Marriage of Logston, 103 Ill. 2d 266,

286-87 (1984) ("whether a party is guilty of contempt is a question of fact for the trial court,

and *** a reviewing court will not disturb the finding unless it is against the manifest weight

of the evidence or the record reflects an abuse of discretion"). We agree with the plaintiffs.

Indeed, we do not understand how the defendants' failure to comply with the circuit court's

order can be viewed as anything other than wilful and contumacious.

"The burden rests upon the alleged contemnor to show that noncompliance [with the

court's order] was not wilful and contumacious and that he or she has a valid excuse for

failure to follow the court order." In re Marriage of Tatham, 293 Ill. App. 3d 471, 480

(1997). The defendants presented no such evidence. The defendants offered no evidence

of any valid excuse for failing to fully comply with the court's order. They offered no

evidence that they were unable to fully comply with the order through no fault of their own.

5 The defendants did not offer evidence that they failed to understand the court's order or that

compliance was impossible. A party who understands the court's order but chooses to ignore

the mandate is guilty of contempt of court. In re Parentage of Melton, 321 Ill. App. 3d 823,

830-31 (2001). Furthermore, in our opinion the testimony of Roscoe Meeks clearly reflects

his contumacious attitude toward the court's order and provides evidence of his wilful failure

to comply with the court's order.

In addition, we find the circuit court's finding that parking the garbage truck in the

driveway of the home located on the property overnight is not in violation of the court's order

to be an abuse of discretion. The garbage truck is an asset of the business, not the personal

property of its driver. It is used for business purposes, not for the personal purposes of its

driver. Accordingly, it should not be parked overnight in the driveway of the home in which

the driver resides. The permanent injunction prohibits the defendants from "storing trucks

or other equipment or supplies for any business at the real estate." In our opinion, this

includes overnight storage.

The dispute between the parties is long-standing, and each side understands the other's

position. There is no question that the Meeks defendants are in the wrong, and they

understand this. They have been operating businesses in an area of the City that is zoned

residential and agricultural. The plaintiffs reside within a few feet of the property on which

the defendants have been operating the businesses. Furthermore, the businesses that have

been operated on the subject property are a trash disposal business, a paper recycling

business, and a backhoe business, which involve offensive odors, sights, and sounds. We

cast no aspersions on the defendants or their businesses, but we point out that these

businesses are entirely unacceptable in a residential neighborhood. The plaintiffs have

testified that they cannot even sit on their back porch in the evening or enjoy their yard

because of the offensive stench, noise, and sights emanating from the defendants' property.

6 The Meeks defendants' failure to fully comply with the permanent injunction after all these

years of litigation can be viewed as nothing but wilful and contumacious. A reviewing court

will find an abuse of the circuit court's discretion when it determines that "no reasonable

person could take the view adopted by the [circuit] court." In re Marriage of Getautas, 189

Ill. App. 3d 148, 153 (1989). This is such a case. The circuit court's failure to find the

Meeks defendants in contempt of the permanent injunction entered August 31, 2006,

constitutes an abuse of discretion, and we reverse the circuit court's order in this regard.

The plaintiffs also argue that the circuit court erred in failing to order the defendants

to pay the plaintiffs' attorney fees and costs, in failing to order the defendants to pay a fine

to coerce compliance with the permanent injunction, and in failing to grant the plaintiffs'

request for leave to physically inspect the defendants' premises to ensure compliance with

the injunction. The circuit court denied the relief requested by the plaintiffs because it found

that the defendants were not in contempt. In light of our reversal of the circuit court's finding

in this regard, we remand this cause so that the circuit court may reconsider the relief

requested by the plaintiffs in light of the defendants' wilful and contumacious disregard of

the permanent injunction.

For the foregoing reasons, the order of the circuit court finding the defendants'

violation of the permanent injunction not to be wilful and contumacious is reversed, and this

cause is remanded to the circuit court for further proceedings.

Reversed; cause remanded.

DONOVAN and CHAPMAN, JJ., concur.

7 NO. 5-07-0152

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ___________________________________________________________________________________

MAURICE KILLION and NINA KILLION, ) Appeal from the ) Circuit Court of Plaintiffs-Appellants, ) Marion County. ) v. ) No. 94-MR-13 ) THE CITY OF CENTRALIA, a Municipal ) Corporation Organized Under the Laws of the ) State of Illinois, and Its Employees and Agents, ) MARK STEDELIN and DAVID SHAW, ) ) Defendants, ) ) and ) ) ROSCOE MEEKS, LINDA MEEKS, ERWIN ) MEEKS, CRAIG MEEKS, and GREGORY ) BEE, d/b/a Meeks Trash Disposal, Centralia ) Paper Stock Company, and Meeks Backhoe, ) Honorable ) Patrick J. Hitpas, Defendants-Appellees. ) Judge, presiding. ___________________________________________________________________________________

Opinion Filed: April 3, 2008 ___________________________________________________________________________________

Justices: Honorable Thomas M. Welch, J.

Honorable James K. Donovan, J., Honorable Melissa A. Chapman, J., Concur ___________________________________________________________________________________

Attorney Maurice U. Killion, Jr., Killion Law Office, 1333 W est Broadway, Suite #2, for P.O. Box 948, Centralia, IL 62801 Appellants ___________________________________________________________________________________

Attorney Daniel R. Price, Wham & Wham, 212 East Broadway, P.O. Box 549, for Centralia, IL 62801 Appellees ___________________________________________________________________________________