Village of Orion v. Hardi
No. 4-22-0186
Appellate Court of Illinois, Fourth District
November 23, 2022
2022 IL App (4th) 220186
Illinois Official Reports
Decision Under Review: Appeal from the Circuit Court of Henry County, No. 17-MR-152; the Hon. Dana R. McReynolds, Judge, presiding.
Judgment: Reversed and remanded.
Counsel on Appeal: John G. Ames, of Orion, for appellant. William Lester Breedlove, of Breedlove Legal, LLC, of Moline, and Larry S. Vandersnick, of Paulson & Vandersnick Law, of Rock Island, for appellees.
Panel: JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Steigmann and Doherty concurred in the judgment and opinion.
¶ 1 In 2017, plaintiff, the Village of Orion (Village), sued defendants, Patricia A. Hardi and Michael Larson, to enjoin them from keeping more than three cats in violation of a Village ordinance. Village of Orion Municipal Code, ch. XII, § 11.0 (amended 2013). The trial court dismissed the complaint and denied the Village leave to file its proposed first amended complaint. The Village appealed. The appellate court reversed and remanded for further proceedings. Village of Orion v. Hardi, 2020 IL App (3d) 190095-U. In 2021, the Village filed its second amended complaint. On March 7, 2022, the trial court granted defendants’ amended motion to dismiss the second amended complaint, finding that the Village board had previously voted to permit Hardi to keep more than three cats. The Village appeals. For the following reasons, we reverse and remand for further proceedings.
I. BACKGROUND
¶ 2 At all relevant times, defendants lived together in a residence within the Village. Larson owned a second, combined commercial and rental property within the Village. From 1998 until 2013, Hardi was the Village‘s animal control officer. In 2013, the Village enacted the ordinance, making it unlawful to keep more than three dogs or cats over the age of six months in any premises within the Village, except in a licensed kennel or at a veterinarian clinic. The ordinance also provided for penalties and injunctive relief for repeated violations.
¶ 3 According to the Village board minutes of April 21, 2014, the following occurred on that date:
“After much discussion about renewing a kennel license for Ms. Patti Hardi, and with an opinion from Attorney Ames that a state license would first need to be secured, it was moved by Mitton, seconded by Drucker to allow Ms. Hardi to keep her existing dogs and allow them to live out their natural lives with the requirement that as those dogs pass on, the limit allowed by village code be honored and never again exceeded. Ayes: Peterson, O‘Leary, Mitton, Newman, and Drucker. Noes: None. Absent: Lawson.
Additionally, the board discussed Ms. Hardi‘s cats, numbering around 10. Ms. Hardi had the cats prior to the ordinance establishing a limit of three and will be allowed to keep the cats for their natural lifetimes but then be required to abide by [V]illage rules.”
¶ 4 On April 14, 2017, the Village served defendants a “Notice to Abate Nuisance.” This notice described the nuisance as “keeping and harboring more than three (3) cats” in violation of the ordinance. The notice advised defendants to abate the nuisance on or before May 31, 2017, by “reducing the number of cats you are keeping or harboring to three (3) or less [sic].”
¶ 5 On July 18, 2017, the Village filed a two-count complaint against defendants in the circuit court. Count I alleged that defendants failed to abate the nuisance by continuing to keep and harbor more than three cats, and count II sought damages.
¶ 6 On July 24, 2018, defendants filed a motion to dismiss the complaint, alleging the three-cat limit was arbitrary. The motion to dismiss also alleged the ordinance was “superseded” by an order of, presumably, the circuit court of Henry County, entered on August 17, 2016, in case No. 16 CM 160, in which the State charged Hardi with animal cruelty. In the motion to
¶ 7 The court in Village of Orion included the following language in its recitation of the facts.
“In April of 2014, Hardi and Larson *** attended a Village board meeting requesting that their kennel license be renewed. The Board took no action on the request to renew the license, instead passing a resolution to allow Hardi to keep her existing dogs for their natural lifetime. While the cats were discussed during the board meeting, no resolution was passed allowing Hardi to keep a number of cats in excess of the ordinance limit.” Village of Orion, 2020 IL App (3d) 190095-U, ¶ 6.
Justice Holdridge dissented from the court‘s judgment, reasoning: “Although there was no formal vote ***, the Board‘s language [in the April 2014 minutes] is unambiguous that Hardi could exceed the ordinance in question for the cats in her possession.” Village of Orion, 2020 IL App (3d) 190095-U, ¶ 27 (Holdridge, J., dissenting). The dissent opined that the Village board‘s February 5, 2018, resolution voiding Hardi‘s permission to exceed the three-cat limit violated the ex post facto clauses of the United States and Illinois Constitutions. Village of Orion, 2020 IL App (3d) 190095-U, ¶ 30.
¶ 8 Upon remand, the Village filed its second amended complaint. Count I was based on the April 14, 2017, “notice to abate nuisance” and alleged an ongoing violation of the ordinance. Specifically pertinent to this appeal, count I alleged that, in a meeting with Village officials in October 2016, defendants were “advised” that the Village board took no action on April 21, 2014, to allow defendants to keep more than three cats. Count II sought damages. Attached to and incorporated into the allegations of the second amended complaint was a Village board resolution dated February 5, 2018, amending the April 21, 2014, board minutes to reflect that “no action had previously been taken in regard to [Hardi‘s] cats.”
¶ 9 On January 6, 2022, defendants filed an amended motion to dismiss the second amended complaint pursuant to
¶ 10 On February 8, 2022, the trial court heard evidence on the amended motion to dismiss the second amended complaint. Larson was the first witness. On direct examination, Larson testified that the Village board on April 21, 2014, “grandfathered” defendants’ “five dogs and [10] cats” but took no action on their request for a kennel license. Larson testified that he obtained a kennel license from the State in 2019. Larson also testified that Hardi was allowed to keep 10 cats as part of her probation in case No. 16 CM 160, and she successfully completed that probation. On cross-examination by the Village, Larson testified that he understood the Village board‘s April 21, 2014, decision to mean that defendants were allowed to keep 10 cats as “part of the deal with the dogs.” Larson testified that he kept 10 cats at his residence in April 2014, but he did not know how many cats Hardi kept on his second property as part of her duties as animal control officer. Larson testified that he told the Village board on April 21, 2014, that he had 10 cats because those were the ones he owned, while there were additional cats belonging to the Village that Hardi had taken in as part of her duties as animal control officer.
¶ 11 Next, James Cooper, the Village‘s mayor, testified that the April 21, 2014, board minutes reflecting that Hardi was allowed to keep her existing cats were in error and were later “corrected” by the February 5, 2018, board resolution. Cooper explained, “We did not approve any extension of keeping cats to their term *** of life.” Cooper then agreed that the board minutes of October 6, 2014, stated that the board had “previously voted” to allow Hardi to keep 10 cats. According to Cooper, these board minutes were in error also.
¶ 12 On cross-examination by the Village, Cooper testified that Larson stated at the April 21, 2014, meeting that defendants had five elderly dogs, and the board, “out of goodness,” granted a “waiver” for the dogs. According to Cooper, there was no discussion of cats until after the vote on the dogs. Cooper testified that he told Larson at the meeting that keeping 10 cats was “absolutely unacceptable,” and Larson then agreed to “get them down” to the three-cat limit. Under questioning by the court, Cooper said he assumed the board approved the minutes of the April 21, 2014, meeting at its next meeting. Cooper also stated it would “probably” be “unusual” for the board to “correct” or “clarify” its minutes four years later. Cooper testified that the February 5, 2018, correction to the April 21, 2014, minutes was made when the board discovered the “error.”
¶ 13 Defendants introduced into evidence a portion of the October 6, 2014, board minutes stating: “The Village board had previously voted to allow [Hardi] to maintain the five dogs and ten cats, she earlier claimed to own, until the end of their natural lifespan and then required her to remain in compliance with current regulations of no more than three dogs and three cats.”
¶ 14 After the parties’ arguments, the court found that, because the Village alleged that the violation occurred in 2017, Larson‘s 2019 kennel license was irrelevant. The court then ruled that “this case hinges on the effect of the minutes of April 21, 2014, and what the Village did with regard to those minutes subsequent to that.” The court found Hardi‘s request to keep her existing cats was “part of the motion that was voted on and passed” on April 21, 2014. The
“The action taken by Plaintiff through the Village of Orion‘s Board on April 21, 2014, where it allowed Defendants to keep their existing dogs and existing cats numbering around 10 for their natural lifetimes, and subsequent Board action have a clear meaning favorable to the Defendants and negate Plaintiff‘s right to proceed with an ordinance violation against the Defendants.
It is therefore ordered that Defendants’ Amended Motion to Dismiss Plaintiff‘s Second Amended Complaint is heard and granted and said complaint is dismissed.”
¶ 15 This timely appeal followed.
II. ANALYSIS
¶ 16 The Village contends (1) the court‘s ruling violates the law-of-the-case doctrine, (2) the Village is not estopped from enforcing the ordinance against defendants, (3) the order in case No. 16 CM 160 does not bar the Village‘s suit against defendants, and (4) the State has not preempted the issue of kennel licenses. (The issue of the kennel license is not before this court, as the trial court found it irrelevant and defendants acquiesced in that ruling.) Defendants concede that the order in case No. 16 CM 160 does not bar the Village‘s suit.
¶ 17 Preliminarily, we address defendants’ request that we affirm the trial court‘s judgment and then remand “solely to confirm” that the court‘s dismissal of the second amended complaint was with prejudice. In questioning whether the dismissal was with prejudice, defendants raise an issue concerning our jurisdiction, as “[o]rdinarily, an order dismissing a complaint without prejudice is not deemed final for purposes of appeal.” In re Tiona W., 341 Ill. App. 3d 615, 619 (2003).
¶ 18 Defendants’ suggestion that we decide the merits of this appeal and then determine whether the court‘s order was final is not well taken. We stress that the time to address whether an order is final is before we consider the merits of the appeal because an appeal lies only from a final order.
¶ 19 We note that the Village filed the notice of appeal after the court announced its oral ruling but before the written order was entered and that the court contemplated that a written order
¶ 20 We turn now to the merits. We determine that the court erred in granting defendants’ motion to dismiss the second amended complaint because the section 2-619 motion to dismiss was procedurally improper. Pursuant to
¶ 21 A section 2-619 motion to dismiss admits the legal sufficiency of the complaint and all well-pleaded facts and reasonable inferences therefrom and asserts affirmative matter outside the complaint that bars or defeats the cause of action. Villa DuBois, LLC v. El, 2020 IL App (1st) 190182, ¶ 34. In ruling on the motion, the court construes the complaint in the light most favorable to the nonmovant and should grant the motion only if the plaintiff can prove no set of facts entitling him or her to recover. Villa DuBois, 2020 IL App (1st) 190182, ¶ 34. The purpose of a section 2-619 motion is to provide a method of disposing of issues of law and easily proved facts relating to the affirmative matter early in the litigation. Villa DuBois, 2020 IL App (1st) 190182, ¶ 34.
¶ 22 Pursuant to
¶ 23 We hold that the April 21, 2014, board minutes are insufficient to support the
¶ 24 Our decision in Howle v. Aqua Illinois, Inc., 2012 IL App (4th) 120207, is also instructive. In Howle, the plaintiff sued the defendant for injuries she sustained when she was severely bitten by a dog harbored by the defendant‘s tenant on the defendant‘s property. Howle, 2012 IL App (4th) 120207, ¶¶ 16, 20. The defendant filed a
¶ 25 Here, as in Howle, defendants’ motion to dismiss addressed an essential allegation of the complaint—namely, the board‘s April 21, 2014, action regarding Hardi‘s cats. Defendants’ “affirmative matter” was the board minutes of April 21, 2014, and Larson‘s testimony. This evidence merely presented defendants’ version of the facts. Then, to refute Larson‘s testimony, the Village presented Cooper‘s testimony that the board, on April 21, 2014, did not authorize defendants to keep their cats. The Village also introduced the February 5, 2018, amendment of the April 21, 2014, minutes to refute Larson‘s testimony and the April 21, 2014, board minutes. To rebut Cooper‘s testimony, defendants introduced the October 6, 2014, board minutes indicating that the board had previously voted to allow defendants to keep their cats. Thus, the court improperly allowed the parties to conduct a mini-trial on the veracity of the essential allegations of the complaint. See Reynolds, 2013 IL App (4th) 120139, ¶ 42 (stating
¶ 26 As we stated in Reynolds, ” ‘[S]ection 2-619 motions should not be used to attack the factual basis of the claim itself.’ ” Reynolds, 2013 IL App (4th) 120139, ¶ 34 (quoting Barber-Colman Co. v. A&K Midwest Insulation Co., 236 Ill. App. 3d 1065, 1077 (1992)). We reiterate and emphasize what we said in Reynolds: a
¶ 27 For the reasons stated, we reverse the trial court‘s judgment and remand for further proceedings.
Reversed and remanded.