                         No. 3-09-0709
_________________________________________________________________
Filed June 9, 2010
                             IN THE

                        APPELLATE COURT OF ILLINOIS

                              THIRD DISTRICT

                                A.D., 2010

TODD A. STRONG,               )    Appeal from the Circuit Court
                              )    of the Tenth Judicial Circuit
     Plaintiff-Appellant and )     Peoria County, Illinois
     Cross-Appellee,          )
                              )
     v.                       )    No. 08-L-72
                              )
THE CITY OF PEORIA,           )
                              )    Honorable
     Defendant-Appellee and   )    Joe Vespa
     Cross-Appellant.         )    Judge Presiding.
_________________________________________________________________

     JUSTICE LYTTON delivered the opinion of the court:
_________________________________________________________________

      Plaintiff, Todd A. Strong, filed a negligence action against

defendant, City of Peoria, seeking monetary damages from defendant

for   demolishing   a    residential   dwelling   without   providing   him

notice.    Following a bench trial, the court awarded plaintiff

$2,238.01.   Plaintiff appeals the trial court’s award of damages.

Defendant cross-appeals, arguing that plaintiff was not entitled to

damages.   We affirm.

      On November 1, 2004, plaintiff paid $720.56 for the delinquent

2003 real estate taxes for the property commonly known as 717 W.

Columbia Terrace in Peoria and received a tax lien certificate for

the property.     He later paid $1,517.45 for the delinquent 2004 and
2005 real estate taxes on the property.

     On January 18, 2007, plaintiff filed a petition for tax deed.

On January 24, 2007, plaintiff served a notice of expiration of

period of redemption on the city clerk’s office.                On January 26,

2007, plaintiff published the notice in the Peoria Journal Star.

     On May 1, 2007, the redemption period expired.                  On May 7,

2007, the circuit court held a hearing on plaintiff’s petition for

tax deed.    The court ordered that the tax deed be issued to

plaintiff.   On June 22, 2007, the county clerk issued a tax deed to

plaintiff and Becky S. Mansfield for 717 W. Columbia Terrace.                The

tax deed was filed in the county recorder of deeds on July 23,

2007.

     Meanwhile, on April 25, 2007, defendant had entered into a

written agreement with Nguyen Linh, the record owner of 717 W.

Columbia Terrace, to demolish the house located there. On or about

May 30, 2007, defendant demolished the house.

     On   March   3,   2008,   plaintiff    filed     a    complaint     against

defendant,   claiming   that   he   was    entitled       to   damages   because

defendant failed to notify him prior to demolishing the house. The

case proceeded to a bench trial.

     At trial, plaintiff called Diana Joseph, a certified real

estate appraiser, to testify. She prepared a real estate appraisal

report at plaintiff’s request.      According to her report, the fair

market value of 717 W. Columbia Terrace, including the house that


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was located thereon, immediately before demolition was $24,000.

Her   report    did   not   provide   a   value   of   the   property   after

demolition, but she testified that the value of the property in its

present state is about $2,200.

      Glenda Williams, a City of Peoria code enforcement inspector,

testified for defendant.        In October 2006, she conducted a lien

search of the property.      A report of lien search was introduced as

evidence.      The report listed Nguyen Linh as the owner of the

property.      The report stated that 2003, 2004 and 2005 taxes were

sold to "Todd Strong/Becky S. Mansfield" and provided an address

for them.      After receiving the report, Williams contacted Linh.

Linh agreed to allow defendant to demolish the house on the

property. Williams never sought or received consent from plaintiff

to demolish the property.

      The trial court found that plaintiff was "an interested person

*** entitled to notice."      It further found that the proper measure

of plaintiff’s damages was the property taxes that he paid for

2003, 2004 and 2005.         The court entered an order in favor of

plaintiff and against defendant for $2,238.01, plus costs.

                                      I

      Plaintiff argues that the trial court should have awarded him

damages in the amount of $21,800, the difference between the value

of the property before and after demolition.

      "When a challenge is made to a trial court’s ruling following


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a bench trial, the proper standard of review is whether the trial

court’s judgment is against the manifest weight of the evidence."

Carey v. American Family Brokerage, Inc., 391 Ill. App. 3d 273,

277, 909 N.E.2d 255, 259 (2009).   "To reverse a finding of damages,

a reviewing court must find that the trial judge ignored the

evidence or that the measure of damages was erroneous as a matter

of law."   Carey, 391 Ill. App. 3d at 277, 909 N.E.2d at 259.

     Compensatory damages are those that are awarded to a person as

compensation, indemnity or restitution for a wrong or injury

sustained by him.   Gambino v. Boulevard Mortgage Corp., 398 Ill.

App. 3d 21, 922 N.E.2d 380, 417 (2009).    "The purpose of awarding

compensatory damages is to make the injured party whole and restore

him to the position he was in before the loss, but not to enable

him to make a profit or windfall on the transaction."   Gambino, 398

Ill. App. 3d at 61, 922 N.E.2d at 417.

     The general rule for determining damages for real property

that has been totally destroyed is the difference between the

market value of the property before and after demolition.    Hudlin

v. City of East St. Louis, 227 Ill. App. 3d 817, 835, 591 N.E.2d

541, 553-54 (1992).    However, this rule only applies when the

person seeking damages holds title to the property at the time of

the demolition.   Schwartz v. City of Chicago, 21 Ill. App. 3d 84,

95, 315 N.E.2d 215, 224 (1974).

     The Property Tax Code (Code) (35 ILCS 200/22-5 et seq. (West


                                   4
2006)) sets forth the procedure for obtaining title to property

through a tax deed.    Pursuant to section 22-30 of the Code, the

purchaser of a tax deed may file a petition three to five months

prior to the expiration of the redemption period, "asking that the

court direct the county clerk to issue a tax deed if the property

is not redeemed from the sale."       35 ILCS 200/22-30 (West 2006).

Section 22-40 of the Code provides that if the property has not

been redeemed within the redemption period and the petitioner has

complied with all provisions of law entitling him to a deed, the

court shall enter an order directing the county clerk to issue a

tax deed.   35 ILCS 200/22-40(a) (West 2006).   Section 22-65 of the

Code provides that a tax deed executed by the county clerk "vests

in the grantee, his or her heirs and assigns, the title of the

property therein described."   35 ILCS 200/22-65 (West 2006).

     The plain language of the above statutes provides that the

purchaser of a tax certificate does not acquire title until the

county clerk issues the tax deed.     In re Application of the County

Treasurer & ex officio County Collector, 373 Ill. App. 3d 679, 685,

869 N.E.2d 1065, 1074 (2007); see also Illinois Ry. Museum, Inc. v.

Siegel, 132 Ill. App. 2d 77, 82, 266 N.E.2d 724, 727 (1971) (a

certificate of sale does not pass title to the purchaser until the

redemption period expires and the tax deed is issued).

    Here, the county clerk issued plaintiff a tax deed for 717 W.

Columbia Terrace on June 22, 2007. Plaintiff acquired title to the


                                  5
property on that date.         He did not hold title to the property on

May 30, 2007, when the home was demolished.              Thus, he was not

entitled to damages equal to the difference in market value of the

property before and after the demolition. See Schwartz, 21 Ill.

App. 3d at 95, 315 N.E.2d at 224.

     Instead, plaintiff was entitled to compensatory damages that

would restore him to the position he was in before the loss.             See

Gambino, 398 Ill. App. 3d at 61, 922 N.E.2d at 417.           In this case,

that loss can only be measured by the taxes paid, that is,

plaintiff’s out-of-pocket expenses.            The evidence showed that

plaintiff spent $2,238.01 for taxes on the property. Thus, the

trial court’s award of $2,238.01 was not against the manifest

weight of the evidence.

                                     II

     In its cross-appeal, defendant argues that plaintiff was

entitled   to   no   damages    because   he   failed   to   establish   that

defendant had a duty to provide him with notice of the demolition.

     To prove a negligence cause of action, the plaintiff must

establish that defendant owed a duty of care to the plaintiff, that

defendant breached that duty, and that the breach was the proximate

cause of the plaintiff’s injuries. Strickland v. Kotecki, 392 Ill.

App. 3d 1099, 1101, 913 N.E.2d 80, 83 (2009).                Whether a duty

exists is a question of law, which we review de novo.             Thomas v.

Town of Cicero, 307 Ill. App. 3d 840, 843, 719 N.E.2d 187, 189


                                      6
(1999).

      Section 21-410 of the Code provides that the holder of a tax

lien certificate "shall be made a party to any action or proceeding

to demolish or destroy improvements on property where the property

has been sold for failure to pay taxes and the period of redemption

has not expired."    35 ILCS 200/21-410 (West 2006).        Additionally,

section 11-31-1 of the Illinois Municipal Code provides: "All

persons having an interest of record in the property, including tax

purchasers *** shall be named as defendants in the [demolition]

petition and shall be served with process."         65 ILCS 5/11-31-1(d)

(West 2006).    Finally, the Peoria city code requires notice to be

served upon "all owners of record or persons having an interest ***

as shown by documents recorded in the office of the county recorder

of deeds" when a building is found to be dangerous and subject to

demolition.    Peoria Municipal Code §5-404(a) (1995).

      Under both state law and the city’s code, defendant had a duty

to   notify   plaintiff,   a   tax   lien   certificate   holder,   of   the

impending demolition of the house at 717 W. Columbia Terrace.            See

Schwartz, 21 Ill. App. 3d at 87, 315 N.E.2d at 219.         Defendant was

made aware of plaintiff’s identity and address by the report of

lien search.     Nevertheless, defendant never notified plaintiff.

Defendant breached its duty to notify and was liable to plaintiff

for damages.

                                CONCLUSION


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The order of the circuit court of Peoria County is affirmed.

Affirmed.

CARTER and O'BRIEN, JJ., concur.




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