                                  Illinois Official Reports

                                          Appellate Court



                       Estate of James v. Tondini, 2014 IL App (5th) 130031




Appellate Court              ESTATE OF CHARLES R. JAMES, by James Stroud,
Caption                      Independent Executor, Plaintiff-Appellee, v. KEVIN TONDINI,
                             d/b/a Tondini’s Towing and Storage, Defendant-Appellant.


District & No.               Fifth District
                             Docket No. 5-13-0031


Rule 23 order filed          January 2, 2014
Motion to publish
granted                      January 27, 2014
Opinion filed                January 27, 2014


Held                         In an action arising from the towing of a vehicle pursuant to the
(Note: This syllabus         investigation of the homicide of the vehicle’s owner, the trial court
constitutes no part of the   properly held that the towing company did not have a lien for the
opinion of the court but     towing and storage of the vehicle then owned by the decedent’s estate,
has been prepared by the     since none of the statutory requirements of the Illinois Vehicle Code
Reporter of Decisions        for a lien applied, including, inter alia, the facts that the vehicle was
for the convenience of       not abandoned, lost, stolen, or unclaimed, it was not left unattended on
the reader.)                 a toll highway, interstate highway, or expressway for 2 hours or more,
                             and it was not left on a highway in an urban district 10 hours or more
                             but, rather, the vehicle was towed from decedent’s private property.


Decision Under               Appeal from the Circuit Court of Williamson County, No. 11-P-58;
Review                       the Hon. James R. Moore, Judge, presiding.



Judgment                     Affirmed.
     Counsel on               Keith W. Kibler, of Kibler Law Office, of Marion, for appellant.
     Appeal
                              Angela E. Kochan, of Kochan & Kochan, P.C., of Herrin, for appellee.


     Panel                    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 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 lienholder 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
                                                  -2-
       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 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 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
                                                   -3-
                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 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 4-204 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:
                                                      -4-
                     “(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.
                     (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, 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
                                                    -5-
       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 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.




                                                   -6-
