Rule 23 order filed               2014 IL App (5th) 130031
January 2, 2014;
Motion to publish granted               NO. 5-13-0031
January 27, 2014.
                                            IN THE
                             APPELLATE COURT OF ILLINOIS
                                      FIFTH DISTRICT

ESTATE OF CHARLES R. JAMES,                                )       Appeal from the
JAMES STROUD, Independent Executor,                        )       Circuit Court of
                                                           )       Williamson County.
       Plaintiff-Appellee,                                 )
                                                           )
v.                                                         )       No. 11-P-58
                                                           )
KEVIN TONDINI,                                             )
d/b/a Tondini's Towing and Storage,                        )       Honorable
                                                           )       James R. Moore,
       Defendant-Appellant.                                )       Judge, presiding.

       JUSTICE WEXSTTEN delivered the judgment of the court, with opinion.
       Presiding Justice Welch and Justice Chapman concurred in the judgment and opinion.
                                          OPINION

¶1     The defendant, Kevin Tondini, doing business as Tondini's Towing and Storage,

appeals the December 5, 2012, order of the circuit court of Williamson County holding that
the defendant did not have a lien for towing and storage of an automobile owned by the
plaintiff, the estate of Charles R. James (the Estate), pursuant to section 4-204 of the Illinois

Vehicle Code (625 ILCS 5/4-204 (West 2010)). For reasons discussed herein, we affirm the
decision of the circuit court.
¶2                                     BACKGROUND

¶3     This appeal centers around the defendant's towing and storage fees for a 2008 Toyota
Prius (Prius or vehicle), which belonged to the decedent, Charles R. James, who died as the

result of a homicide on May 24, 2011. The following day, on May 25, 2011, as part of the
homicide investigation, the Williamson County sheriff's department authorized and ordered

                                               1
the defendant to tow the Prius from the decedent's private property and impound it. The

defendant has been in business for over 33 years as Tondini Wrecker Service and does
towing work for various law enforcement agencies in the Williamson County area.
¶4     On October 7, 2011, James Stroud, acting as independent executor of the Estate, sent
a letter to the Williamson County State's Attorney, with a courtesy copy to Williamson
County Sheriff Bennie Vick, requesting release of the Prius. The Williamson County

sheriff's department released its hold on the Prius on April 22, 2012. The defendant's total

bill for towing and storage amounted to $10,818. The defendant states that the bill was
submitted but never paid. On May 21, 2012, the defendant filed a claim against the Estate
for the amount of $10,818, to which Stroud, as independent executor, filed an objection as

well as a notice of disallowance of claim and motion to dismiss, on June 11, 2012.
¶5     On August 20, 2012, the Williamson County sheriff's department sent a notice to the

Bank of Carbondale (Bank), a registered lien holder on the Prius, informing the Bank that

the Prius was to be auctioned at a public sale on September 21, 2012. The Estate claims it

never received any notice of sale. Regardless of lack of official notice, on September 21,

2012, the Estate moved to enjoin the sale. The circuit court granted said motion, entering its
order that same day.
¶6     The Estate also filed an amended petition to discover and for recovery, seeking to

recover the Prius from the defendant. The circuit court conducted a hearing on the amended

petition on October 2, 2012. In a docket entry ruling on November 8, 2012, the circuit court
found that despite the fact that the defendant had towed and stored the Prius per an
authorized police tow request, the defendant did not have a statutory lien on the Prius for

towing and storage fees, pursuant to section 4-204 of the Illinois Vehicle Code (625 ILCS
5/4-204 (West 2010)). A final written order to this effect was entered by the circuit court on
December 6, 2012. The final order also directed the defendant to turn over the Prius to the


                                              2
Estate immediately, subject only to the lien held by the Bank.

¶7     The defendant filed a motion to alter and/or amend judgment, which was denied by
the circuit court on December 28, 2012. The defendant filed a timely notice of appeal on
January 11, 2013, challenging the circuit court's determination that a lien was not established
on the Prius. For the following reasons, we affirm the circuit court's ruling.
¶8                                       ANALYSIS

¶9     The issue on appeal is whether the trial court erred in finding that a lien on the

decedent's Prius was not created pursuant to section 4-204 of the Illinois Vehicle Code (625
ILCS 5/4-204 (West 2010)) for the amount of $10,818, representing the defendant's fees for
towing and storage of the vehicle. When an issue on appeal involves the construction and

application of a statute, we apply a de novo review. Blum v. Koster, 235 Ill. 2d 21, 44
(2009).

¶ 10   Section 4-204 of the Illinois Vehicle Code reads as follows:

              "When a vehicle is authorized to be towed away as provided in Section 4-202

       or 4-203:

              (a) The authorization, any hold order, and any release shall be in writing, or
       confirmed in writing, with a copy given to the towing service.
              (b) The police headquarters or office of the law officer authorizing the towing

       shall keep and maintain a record of the vehicle towed, listing the color, year of

       manufacture, manufacturer's trade name, manufacturer's series name, body style.
       Vehicle Identification Number, license plate year and number and registration sticker
       year and number displayed on the vehicle. The record shall also include the date and

       hour of tow, location towed from, location towed to, reason for towing and the name
       of the officer authorizing the tow.
              (c) The owner, operator, or other legally entitled person shall be responsible


                                              3
       to the towing service for payment of applicable removal, towing, storage, and

       processing charges and collection costs associated with a vehicle towed or held under
       order or authorization of a law enforcement agency. If a vehicle towed or held under
       order or authorization of a law enforcement agency is seized by the ordering or
       authorizing agency or any other law enforcement or governmental agency and sold,
       any unpaid removal, towing, storage, and processing charges and collection costs shall

       be paid to the towing service from the proceeds of the sale. If applicable law provides

       that the proceeds are to be paid into the treasury of the appropriate civil jurisdiction,
       then any unpaid removal, towing, storage, and processing charges and collection costs
       shall be paid to the towing service from the treasury of the civil jurisdiction. That

       payment shall not, however, exceed the amount of proceeds from the sale, with the
       balance to be paid by the owner, operator, or other legally entitled person.

              (d) Upon delivery of a written release order to the towing service, a vehicle

       subject to a hold order shall be released to the owner, operator, or other legally

       entitled person upon proof of ownership or other entitlement and upon payment of

       applicable removal, towing, storage, and processing charges and collection costs."
       625 ILCS 5/4-204 (West 2010).
¶ 11   In his appellant's brief, the defendant asserts that paragraph (d) of section 4-204 (625

ILCS 5/4-204(d) (West 2010)) "clearly states that the vehicle towed pursuant to a police tow

does not have to be released to the owner, operator, or legally entitled person unless payment
of towing and storage and processing charges and collection costs are paid." However, the
crux of interpreting the applicability of section 4-204(d) to the instant case, as recognized by

the circuit court, lies within the first sentence of the section, which we find applicable to all
the paragraphs, including paragraph (d): "When a vehicle is authorized to be towed away as
provided in Section 4-202 or 4-203 ***." (Emphasis added.) 625 ILCS 5/4-204 (West


                                               4
2010). Therefore, we turn to each of these referenced sections.

¶ 12   Section 4-202 of the Illinois Vehicle Code reads as follows:
       "When an abandoned, lost, stolen or unclaimed vehicle comes into the temporary
       possession or custody of a person in this State, not the owner of the vehicle, such
       person shall immediately notify the municipal police when the vehicle is within the
       corporate limits of any city, village or town having a duly authorized police

       department, or the State Police or the county sheriff when the vehicle is outside the

       corporate limits of a city, village or town. Upon receipt of such notification, the
       municipal police, State Police or county sheriff will authorize a towing service to
       remove and take possession of the abandoned, lost, stolen or unclaimed vehicle. The

       towing service will safely keep the towed vehicle and its contents, maintain a record
       of the tow as set forth in Section 4-204 for law enforcement agencies, until the vehicle

       is claimed by the owner or any other person legally entitled to possession thereof or

       until it is disposed of as provided in this Chapter." 625 ILCS 5/4-202 (West 2010).

¶ 13   Examining the language of section 4-202, it is clear that the section only applies if the

vehicle being towed was "abandoned, lost, stolen or unclaimed." 625 ILCS 5/4-202 (West
2010). There is no dispute between the parties that the decedent's Prius was not abandoned,
lost, stolen, or unclaimed at the time the police authorized the defendant to tow it to his

storage lot. As such, section 4-202 (625 ILCS 5/4-202 (West 2010)) does not allow a lien

to attach to the Prius pursuant to section 2-204 of the Illinois Vehicle Code (625 ILCS 5/4-
204 (West 2010)).
¶ 14   Section 4-203 of the Illinois Vehicle Code reads, in pertinent part, as follows:

              "(a) When a vehicle is abandoned, or left unattended, on a toll highway,
       interstate highway, or expressway for 2 hours or more, its removal by a towing service
       may be authorized by a law enforcement agency having jurisdiction.


                                               5
       (b) When a vehicle is abandoned on a highway in an urban district 10 hours or

more, its removal by a towing service may be authorized by a law enforcement agency
having jurisdiction.
       (c) When a vehicle is abandoned or left unattended on a highway other than a
toll highway, interstate highway, or expressway, outside of an urban district for 24
hours or more, its removal by a towing service may be authorized by a law

enforcement agency having jurisdiction.

       (d) When an abandoned, unattended, wrecked, burned or partially dismantled
vehicle is creating a traffic hazard because of its position in relation to the highway
or its physical appearance is causing the impeding of traffic, its immediate removal

from the highway or private property adjacent to the highway by a towing service may
be authorized by a law enforcement agency having jurisdiction.

       (e) Whenever a peace officer reasonably believes that a person under arrest for

a violation of Section 11-501 of this Code or a similar provision of a local ordinance

is likely, upon release, to commit a subsequent violation of Section 11-501, or a

similar provision of a local ordinance, the arresting officer shall have the vehicle
which the person was operating at the time of the arrest impounded for a period of not
more than 12 hours after the time of arrest. ***

                                     ***

       (f) Except as provided in Chapter 18a of this Code, the owner or lessor of
privately owned real property within this State, or any person authorized by such
owner or lessor, or any law enforcement agency in the case of publicly owned real

property may cause any motor vehicle abandoned or left unattended upon such
property without permission to be removed by a towing service without liability for
the costs of removal, transportation or storage or damage caused by such removal,


                                       6
       transportation or storage. ***

                                             ***
              (g)(1) When a vehicle is determined to be a hazardous dilapidated motor
       vehicle pursuant to Section 11-40-3.1 of the Illinois Municipal Code, its removal and
       impoundment by a towing service may be authorized by a law enforcement agency
       with appropriate jurisdiction.

                                             ***

              (h) Whenever a peace officer issues a citation to a driver for a violation of
       subsection (a) of Section 11-506 of this Code, the arresting officer may have the
       vehicle which the person was operating at the time of the arrest impounded for a

       period of 5 days after the time of arrest." 625 ILCS 5/4-203 (West 2010).
¶ 15   We also find that nothing in section 4-203 pertains to the facts of this case in order to

allow a lien to attach to the Prius via section 4-204. First, there is no disagreement that the

Prius was not "abandoned, or left unattended, on a toll highway, interstate highway, or

expressway," as set forth in paragraph (a) at the time law enforcement sought the defendant's

towing service. 625 ILCS 5/4-203(a) (West 2010). There also appears to be no disagreement
between the parties that the Prius was not "abandoned on a highway," as required by
paragraphs (b) and (c) (625 ILCS 5/4-203(b), (c) (West 2010)), nor was the Prius "creating

a traffic hazard because of its position in relation to the highway," as required by paragraph

(d) (625 ILCS 5/4-203(d) (West 2010)). Paragraph (e) (625 ILCS 5/4-203(e) (West 2010))
is also not applicable because no one in this case was arrested for driving while intoxicated
(625 ILCS 5/11-501 (West 2010)) at the time of operating the Prius.

¶ 16   Paragraph (f) of section 4-203 states, "the owner or lessor of privately owned real
property within this State, or any person authorized by such owner or lessor, or any law
enforcement agency in the case of publicly owned real property may cause any motor vehicle


                                               7
abandoned or left unattended upon such property without permission to be removed by a

towing service." 625 ILCS 5/4-203(f) (West 2010). Similarly, we find this paragraph does
not apply because the owner of the real property upon which the Prius was located prior to
its being towed was either the decedent or his Estate and neither authorized the defendant to
tow it. It also does not apply because the Prius was not located on "publicly owned real
property," in order to allow law enforcement to have the vehicle towed. Moreover, we find

the Prius was not "abandoned or left unattended upon such property without permission" for

paragraph (f) to apply. 625 ILCS 5/4-203(f) (West 2010). Therefore, even if the defendant
were to argue that the law enforcement official who authorized him to tow the Prius could
be considered "any person authorized by such owner or lessor," as stated in paragraph (f), the

point would be moot because the Prius was not abandoned or left unattended on the
decedent's own property without his permission or the permission of his Estate.

¶ 17   Also inapplicable to this case are paragraphs (g) and (h) of section 4-203 because

there is no dispute that the Prius was not "determined to be a hazardous dilapidated motor

vehicle" (625 ILCS 5/4-203(g)(1) (West 2010)), nor did a citation issue to the driver of the

Prius as it had no driver nor was it being operated immediately prior to its towing (625 ILCS
5/4-203(h) (West 2010)).
¶ 18   Accordingly, because we find that, pursuant to our de novo review, section 4-204 (625

ILCS 5/4-204 (West 2010)) does not apply to allow a lien to attach to the Prius for the

defendant's towing and storage fees, we hereby affirm the decision of the circuit court.
¶ 19                                  CONCLUSION
¶ 20   For the foregoing reasons, the judgment of the circuit court of Williamson County is

affirmed.


¶ 21   Affirmed.


                                              8
                                  2014 IL App (5th) 130031

                                       NO. 5-13-0031
                                           IN THE
                             APPELLATE COURT OF ILLINOIS
                                  FIFTH DISTRICT
___________________________________________________________________________________
      ESTATE OF CHARLES R. JAMES,                 )     Appeal from the
      JAMES STROUD, Independent Executor,         )     Circuit Court of
                                                  )     Williamson County.
             Plaintiff-Appellee,                  )
                                                  )
      v.                                          )     No. 11-P-58
                                                  )
      KEVIN TONDINI,                              )
      d/b/a Tondini's Towing and Storage,         )     Honorable
                                                  )     James R. Moore,
             Defendant-Appellant.                 )     Judge, presiding.
___________________________________________________________________________________

Rule 23 Order Filed:        January 2, 2014
Motion to Publish Granted:  January 27, 2014
Opinion Filed:              January 27, 2014
___________________________________________________________________________________

Justices:         Honorable James M. Wexstten, J.

                 Honorable Thomas M. Welch, P.J., and
                 Honorable Melissa A. Chapman, J.,
                 Concur
___________________________________________________________________________________

Attorney         Keith W. Kibler, Kibler Law Office, P.O. Box 1224, Marion, IL 62959
for
Appellant
___________________________________________________________________________________
Attorney         Angela E. Kochan, Kochan & Kochan, P.C., 121 West Cherry Street, Herrin, IL
for              62948
Appellee
___________________________________________________________________________________
