Frederick v. Gaca

2020 IL App (3d) 200154

179 N.E.3d 917

449 Ill.Dec. 632

Thomas J. FREDERICK, Plaintiff-Appellee,

v.Terry L. GACA and Janet L. Wayman, Individually and as Trustee of the Janet L. Wayman Trust, Defendants-Appellants.

Appeal No. 3-20-0154

Appellate Court of Illinois, Third District.

Opinion filed October 23, 2020

Ronald J. Broida and Joseph K. Nichele, of Broida & Nichele, Ltd., of Naperville, for appellants.

Thomas J. Frederick, of Winston & Strawn LLP, of Chicago, Bryan W. Kopman and Jeffrey M. Archambeault, of Kavanagh Grumley & Gorbold, LLC, of Joliet, and Brian A. Bosch, of Western Springs, for appellee.

JUSTICE O'BRIEN delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Thomas Frederick brought a multicount complaint alleging that defendants Terry L. Gaca and Janet L. Wayman, individually and as trustee of the Janet L. Wayman Trust, violated local zoning ordinances by operating a boarding house and a vehicle parking and storage facility on residential property they owned next door to Frederick's property. The trial court granted partial summary judgment in favor of Frederick and entered a permanent injunction enjoining the defendants from operating a boarding house and vehicle parking and storage facility on the property. Gaca and Wayman appealed. We affirm.

¶ 2 BACKGROUND

¶ 3 Plaintiff Thomas Frederick filed a multicount complaint against defendants Terry Gaca and Janet Wayman, individually and as trustee of the Janet L. Wayman Trust. The counts alleged public nuisance (count I); conspiracy to create a public nuisance (count II); and violations of the City of Naperville Zoning Ordinance, including operating a boarding house (counts III, IV); operating a parking and storage facility (counts V, VI), storing trucks in excess of the allowable weight and at unlawful times (counts VII, VIII); parking a trailer (count IX); not using required hard surface for the standing, loading and unloading motor vehicles (count X); and parking unlicensed vehicles on the property (count XI). All the counts concerned residential property owned by the trust on Lisson Road in Naperville and located next door to Frederick's house.

¶ 4 In September 2019, Frederick submitted requests to admit and interrogatories to both Gaca and Wayman. On November 11, 2019, a quit claim deed was recorded transferring ownership of the Lisson property from the Janet L. Wayman Trust to the Terry L. Gaca Trust. Also in November 2019, Frederick sought a preliminary injunction to enjoin the defendants from using the property for vehicle parking and storage. A hearing took place on the motion for injunctive relief on November 19, 2019.

¶ 5 Michael Menichini testified. He was a special process server who unsuccessfully attempted to serve various documents at the property four times. He observed approximately 20 vehicles parked on the property, including cars, pickup trucks, delivery trucks and a heavy-duty work truck. On two visits, he counted 23 vehicles. The surface on which the vehicles were parked looked like packed dirt and crushed materials.

¶ 6 Janet Wayman testified. She lived on the property at issue with Gaca, her husband, from 1996 to late October 2018. The house had six bedrooms, six people were currently living in the house and two others had lived there previously. Each tenant had a vehicle. She acknowledged there were more than 15 vehicles parked and stored on the property, and there were box trucks parked there for several months. The property was not used for storage, but people did pay to park there. She was aware people were paying to park. She did not formally authorize Gaca to use the property as a parking facility and would not have authorized the use if she had known it was in violation of the zoning ordinance. The Terry L. Gaca Trust now owned the property, which was transferred from her trust the week prior to the hearing. The transfer was made to balance the value of their trusts. She was not involved in her husband's business.

¶ 7 Gaca testified. He lived at the Lisson house until December 2018. He had paying tenants beginning in January 2019. In total, six people lived in the house and two other people had previously lived there. There was one vehicle per tenant. He accepted payment for parking and storage of nontenant-owned vehicles on the property beginning in February 2019. There were approximately 24 to 26 vehicles there in November 2019 and other vehicles had been parked there but were no longer on the property. The driveway was crushed asphalt and the vehicles were at all times parked on the asphalt. He denied he placed an ad on Craigslist that counsel downloaded on November 11, 2019, regarding renting parking space at the property. To his recollection, he did not authorize an ad on Spacer, also downloaded on November 11, 2019. Gaca explained he placed ads on Craigslist many times for parking and did not know when he stopped. On cross-examination, Gaca stated that the property was a shared home with six tenants and an oral lease. The rent included parking and utilities. He did not believe the use was in violation of any local ordinances.

¶ 8 Thomas Frederick testified. He offered his interpretation of the Naperville zoning ordinances and opined that the defendants violated the ordinances by housing individuals who were not a family in a single-family dwelling and by operating a parking facility, which was also not a permitted use under the local ordinances.

¶ 9 The trial court found that parking for hire was not a permitted use for the property and allowable parking was only by the tenants as accessory to their living in the house. The court described the zoning violations as "willful" and "crafty." The trial court rejected an interpretation that a single-family dwelling meant only a single family could live on the property. The court also rejected Frederick's claim that the defendants were running the parking operation as a home business. It granted Frederick's motion for a preliminary injunction and ordered the defendants to remove the vehicles on the property except those belonging to Gaca, Wayman, the trust or the tenants.

¶ 10 On November 15, 2020, Frederick received Gaca's unverified responses but did not receive anything from Wayman. On December 5, 2019, defense counsel agreed to the briefing schedule, including due dates of December 30, 2019, to answer the complaint, and of January 31, 2020, to respond to the motion for partial summary judgment. On December 13, 2019, defense counsel moved to withdraw. On December 20, 2019, Frederick filed his second motion for partial summary judgment and submitted a statement of material facts with numerous exhibits, including affidavits and photographs. On January 2, 2020, the trial court allowed substitution of defense counsel. On January 6, 2020, defense counsel moved to extend the time to file the defendants' summary judgment response and answer the complaint and to vacate Gaca and Wayman's admissions. Frederick filed a motion for preliminary injunction to prevent additional tenants on the property. A hearing took place on January 13, 2020, and the trial court issued a preliminary injunction. At the same hearing, defense counsel sought an extension of time to respond to discovery and/or the pleadings, asserting good cause to extend existed as he was substitute counsel and new to the case. The trial court found that substitution of counsel was not good cause to extend the time to respond to the requests to admit. On Frederick's suggestion, the trial court allowed the defendants until January 31, 2020, to respond and to conclude discovery.

¶ 11 On January 27, 2020, defense counsel filed an emergency motion to withdraw. At a January 28, 2020, hearing, the trial court granted the motion to withdraw but ordered that the due dates set would remain and the defendants would be bound by them. The court instructed the defense to file an answer when it was ready but rejected the defendants' request to change any discovery dates regarding the motion for summary judgment. The court also informed the defendants that if they did not respond to the requests to admit, the facts would be deemed admitted. On January 29, 2020, the defendants obtained new counsel. Defense counsel moved on January 30 to extend the due date of the answer, noticing a hearing on February 4, 2020, and then on February 10, 2020. On February 7, 2020, the defendants moved to extend the time to respond to Frederick's partial summary judgment motion. On February 10, 2020, the court denied both motions to extend, stating that it had already admonished Gaca and Wayman that new counsel would "take the situation in the circumstances that it is." The court reiterated that the retention of new counsel in and of itself was not grounds to extend due dates. The court further stated that the information defense counsel needed was available from its clients, who knew whether they were complying with zoning ordinances.

¶ 12 On February 24, 2020, the defendants filed a motion to dismiss the complaint and to dissolve the preliminary injunction as moot. Attached to the motion were Gaca's affidavit attesting he moved back into the Lisson property on January 16, 2020, and affidavits from two other individuals averring that they rented "boarding rooms" at the property. A hearing took place on February 26, 2020. The court considered the defendants' motion to dismiss, which argued that Frederick's claims were moot because the house was now lawfully used by Gaca and two people who rented boarding rooms. The court concluded that the motion to dismiss resolved a lot of fact issues regarding the yet-unanswered requests to admit and interrogatories. The court denied the defendants' motion to dismiss the complaint, to dissolve the injunction and to file a counterclaim.

¶ 13 The trial court granted Frederick's motion for partial summary judgment (counts III-VI, VIII, XI, home occupations violations) and entered a permanent injunction enjoining the...