2020 IL App (3d) 190095-U
Ill. App. Ct.2020Background
- Patricia Hardi, former village animal control officer, kept numerous cats at her home; Village ordinance limits households to three dogs or three cats over six months unless licensed kennel.
- In 2016 Hardi was criminally charged for animal cruelty after >70 cats were found; she pled guilty and was allowed to keep 10 cats but not acquire more; Village later issued a notice to abate nuisance alleging defendants kept more than three cats.
- Village sued in 2017 seeking an injunction to abate the continuing nuisance under its ordinance; complaint alleged defendants continued to keep more than three cats despite notice.
- Defendants filed an undesignated motion to dismiss asserting the ordinance’s numerical limit was arbitrary and that Hardi’s guilty-plea order superseded the ordinance; they admitted Hardi had nine cats at a later date.
- The trial court sua sponte dismissed the complaint, reasoning the Village could not seek injunctive relief for a continuing nuisance without prior adjudicated ordinance violations (e.g., tickets or prior court findings), and denied leave to amend; Village appealed.
- The appellate majority reversed, holding the trial court’s requirement of prior adjudication was unsupported; the continuing-nuisance question is one of proof for trial or summary judgment and the ordinance does not require prior adjudication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether complaint could be dismissed for failure to show prior adjudicated ordinance violations before seeking injunctive relief | Village: prior adjudication not required; complaint alleges ongoing violation and seeks injunction under ordinance | Defs: Village must first obtain prior findings (tickets/court rulings) that violations occurred before calling it a continuing nuisance | Reversed: prior adjudication not required; whether nuisance is continuing is for trial/summary judgment |
| Proper characterization of the undesignated motion to dismiss | Village: defendants’ motion raised affirmative defenses (substance of 2-619), not a facial insufficiency (2-615) | Defs: motion attacked ordinance and argued superior effect of criminal order; did not specify statutory basis | Appellate court treated motion as in substance a 2-619; trial court ruling did not rest on defenses advanced below, so dismissal was improper |
| Whether Village was prejudiced by defendants’ failure to designate motion type | Village: nondesignation and trial ruling on an unpled ground prejudiced its opportunity to amend pleadings | Defs: nondesignation not fatal; appellate court may affirm on any record basis | Court found prejudice because defendants later argued a 2-615 defect (cats’ age) not raised below; reversal required |
| Whether the Board’s prior minutes or resolutions effectively authorized Hardi to exceed ordinance limits (dissent) | Village: no Board resolution authorizing excess cats was passed in 2014 for cats | Defs/Dissent: board minutes indicate permission to keep existing cats; later 2018 clarification reversing that was improper | Majority did not decide this factual/constitutional claim; dissent would find Board acted earlier and would affirm under ex post facto theory |
Key Cases Cited
- Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469 (1994) (distinguishes section 2-615 facial attacks from section 2-619 affirmative defenses and requires designation of motion type)
- Van Meter v. Darien Park District, 207 Ill. 2d 359 (2003) (section 2-619 affirmative matter negates the cause of action and differs from a 2-615 attack)
- City of Chicago v. Krisjon Construction Co., 246 Ill. App. 3d 950 (1993) (trial court has authority to enjoin ordinance violations and abate nuisances)
- Village of Bensenville v. Botu, Inc., 39 Ill. App. 3d 634 (1976) (municipality may seek court action to abate ordinance violations and is not limited to fines)
- City of Chicago v. Fritz, 36 Ill. App. 2d 457 (1962) (municipalities may seek equity to abate nuisances)