City of Alton says resident's grass-cutting lien was properly delivered in its motion to dismiss

By Heather Isringhausen Gvillo | Feb 1, 2019

The City of Alton seeks to dismiss a lawsuit alleging residents’ titles were slandered when it failed to deliver grass-cutting liens personally or by certified mail.

The suit was filed by S&J Real Property individually and on behalf of all others similarly situated on Aug. 21. The plaintiff then filed a first amended complaint on Dec. 19, adding Marilyn Dilly as a plaintiff.

According to the complaint, a lien is required for removal costs of neglected weeds and grass on a parcel of land and must be served either personally or by certified mail to whomever was sent the property tax bill for the parcel in the taxable year immediately preceding the removal. Otherwise, the removal cost is not a lien on the parcel.

S&J Real Property owns a property located at 946 Union St. in Alton.


Pierce  

The city allegedly recorded a grass cutting lien on the property for mowing and weed eating in the amount of $108.70, the suit states.

Dilly owns a property located at 1261 State Street in Alton.

The city allegedly recorded a grass cutting lien on the property for mowing and weed eating in the amount of $74.19, the suit states.

The City of Alton filed a motion to dismiss on Jan. 16 through attorney Charles Pierce of Pierce Law Firm PC in Bellville.

The defendant argues that the complaint is time barred by the one-year statute of limitations and is barred by absolute tort immunity.

The defendant also argues S&J Real Property lacks standing to bring the case because it voluntarily paid the lien at issue.

“Under the Voluntary-Payment Doctrine, money voluntarily paid under a claim of right to the payment and with knowledge of the facts by the person making the payment, cannot be recovered back on the ground that the claim was illegal,” the motion states.

As for Dilly, the City of Alton argues that she lacks standing to assert her claim because she was tendered proper notice of the lien by certified mail.

“Simply stated, this case is fatally defective. Not only has the plaintiff waited too long to file it but, even had it been timely failed, there is simply no cause of action against the City for slander of title. The Illinois legislature has granted cities absolute immunity for such claims.

“Moreover, plaintiff lacks standing to bring this claim as they have not shown any injury and have voluntarily made payment,” the motion states.

The City of Alton also filed a motion to strike the plaintiff’s motion for class certification on Jan. 18.

The defendant argues that pursuit of class certification is premature because its motion to dismiss is currently pending.

“If defendant’s motion to dismiss is granted, there would never be a need to move forward on a ruling on this premature motion for class certification. Given the circumstances, it would be a waste of judicial resources as well as attorney time to try to brief a premature motion,” the motion states.

“Out of an abundance of caution, this defendant is filing this motion asking that the court either strike the motion for class certification as premature or grant an open-ended extension for defendant to respond to said motion and allowing the motion for class certification to be called up, if at all, after the motion to dismiss has been resolved and appropriate discovery is completed,” it continues.

The plaintiff seeks to define the class as “all citizens that had a lien(s) recorded in the land records against their parcel(s) by City of Alton and was not served personally or by certified mail with a copy of said purported lien(s) that was recorded in the land records against their parcel(s).”

Madison County Circuit Judge Dennis Ruth scheduled a motion hearing for Feb. 22.

In a Jan. 4 order, Ruth denied S&J Real Property’s motion for substitution of judge.

The plaintiff filed a motion for a new judge on Dec. 7 through attorney Shari Murphy of The Law Offices of Shari L. Murphy LLC in Wood River.

“This motion is presented before trial or hearing and before the judge assigned to the case has made a ruling on a substantive issue, and therefore should be granted,” the motion stated.

The City of Alton argued in its response that the plaintiff was not entitled to a substitution of judge because substantive arguments were heard in court on Dec. 7.

“This is a classic case of a party trying to ‘test the waters’ which is not allowed under this rule,” the defendant argued.

Madison County Circuit Court case number 18-L-1084

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