The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

Open and Obvious Danger Exception Extended to Children and Moving Trains

By Kirk Jenkins on Posted in Illinois

For generations, Illinois has recognized the general principle that a landowner owes no duty of reasonable care to trespassers. This duty is subject to a number of exceptions; one pertains to children. Since Kahn v. James Burton Co., Illinois has applied a three-step test to determining whether a duty is owed to a child trespasser: (1) the landowner knew or should have known that children habitually frequent the property; (2) a defective structure or dangerous condition was present; (3) the defective structure or dangerous condition was likely to injure children because they are incapable, based on age and maturity, of appreciating the risk; and (4) the expense and inconvenience of remedying the situation was slight compared to the risk.

The biggest question arising from this test is the third factor: which dangers are open and obvious, and who decides — the jury or the court? This past Thursday, the Illinois Supreme Court provided important guidance on these questions, handing down a unanimous decision in Choate v. Indiana Harbor Belt Railroad Co.

One day in the summer of 2003, plaintiff and five friends — two boys, three girls — met in the parking lot of an apartment building. The defendants’ railroad tracks ran adjacent to the lot. Only certain segments of a mile-long corridor passing along the parking lot were fenced, but a posted sign warned "Danger, No Trespassing."

A freight train approached, moving about ten miles per hour. The three boys approached the right of way, and plaintiff and another boy decided to jump onto the train. The plaintiff’s friend tried and failed. The plaintiff failed on his first two attempts. On his third, he fell from the train, which severed part of his foot. Ultimately, the plaintiff’s leg was amputated below the knee.

The plaintiff sued the defendant railroad, among others, alleging that the defendant failed to adequately fence the area, to take adequate steps to prevent minor children from approaching the trains, to post warning signs or to monitor the area.

The defendants moved for summary judgment, arguing that the dangers of a moving freight train are open and obvious to children of the plaintiff’s age, and that based on his deposition testimony, the plaintiff did, in fact, appreciate the danger. The Circuit Court initially granted the motion, but then changed its mind, concluding that obviousness was a question of fact for the jury. After the jury returned a multi-million dollar verdict for plaintiff, the defendants renewed their arguments in a motion for JNOV. The Appellate Court affirmed, holding that the danger from a moving train was not so obvious that a child of plaintiff’s age could be expected to appreciate it as a matter of law.

Choate received substantial attention before the Court, drawing amicus briefs from the Illinois Trial Lawyers Association for the plaintiff, and a joint amicus brief by the Association of American Railroads, the Chicago Transit Authority and the Northeast Illinois Regional Commuter Railroad Corporation for the defendants.

The Supreme Court reversed. The cornerstone of liability, according to the Court, was the foreseeability of harm. In this sense, Illinois law tracked Section 339 of the Restatement (Second) of Torts. As the Appellate Court had noted, early decisions both from the Illinois Appellate Court and from jurisdictions around the country had held that a moving train was an open and obvious danger for children, but the Appellate Court cited La Salle National Bank v. City of Chicago and Engel v. Chicago & North Western Transportation Co., both of which refused to extend the open and obvious doctrine to moving trains, as grounds for refusing to follow those authorities.

The Supreme Court overruled La Salle and Engel: "[W]e now explicitly recognize as a matter of law that a moving train is an obvious danger [such] that any child allowed at large should realize the risk of coming within the area made dangerous by it."

The Court noted conflicting testimony from the plaintiff about whether or not he appreciated the danger, but emphasized that the appropriate test was an objective one for the court to apply, not a subjective one for the jury: the issue was what a landowner could reasonably expect a child to foresee.

In closing, the Court briefly addressed the final factor of the test for duty, whether the burden of adding additional fencing was slight compared to the risk. The Court rejected any notion that the burden was slight, since if a landowner had a duty to fence at the location of an accident, it necessarily had to fence everywhere.

 

Illinois Supreme Court Facilitates Custody Settlements

By Kirk Jenkins on Posted in Illinois

Resolution of child custody issues — and particularly, the issue of removing the children from the jurisdiction — is often one of the most contentious points in a divorce proceeding. On Thursday, the Illinois Supreme Court handed down a decision in In re Marriage of Coulter which should make it easier for parties to resolve such issues between themselves, without court intervention.

When the parties divorced, they entered into a Joint Parenting Agreement (JPA), which the Circuit Court incorporated into the judgment of dissolution. The parties agreed to joint custody, with wife having primary residential custody. The JPA provided that wife could not remove the children to California, as she was contemplating, for two years. For twelve months after that, if wife gave notice of her intent to remove the children to California, husband could seek mediation; if the mediation failed, wife could remove the children, but husband retained the right to seek a court order determining a parenting schedule. (In case you’re wondering, the JPA applied only to moving to California — any other destination, and the usual provisions of the Illinois Marriage and Dissolution of Marriage Act, requiring court approval, apply.)

Five days before the end of the second year, the wife’s attorney gave the husband’s attorney notice of her intent to relocate to California. The husband neither responded nor requested mediation. Instead, two months before expiration of the three year limit, he filed an emergency petition seeking an injunction against the removal, and arguing that a hearing should be held to determine the children’s best interest. Husband argues that material circumstances had changed, and sought sole custody. For her part, the wife filed a petition for leave to remove. The Circuit Court denied the injunction, but the husband appealed. The Appellate Court reversed, applying the traditional four-factor test to determine that the husband might prevail, and noting that an injunction would "preserve the status quo."

After the reversal, the Circuit Court ordered wife to bring the children back to Illinois, but then the Supreme Court stepped in, staying the Circuit Court’s order.

Ultimately, Coulter is about reconciling two provisions of the Marriage and Dissolution of Marriage Act. According to Section 609(a), children can be removed from Illinois only with leave of court.  On the other hand, Section 502 of the Act provides that an agreement between the parents may be incorporated into the judgment of dissolution, and enforced as a court order.

So if parties incorporate an agreement to allow removal of children into their divorce settlement, and the settlement is incorporated into the court’s judgment — is that the necessary permission to remove, without the need for a best-interests-of-the-children hearing?

The Supreme Court held that the answer was "yes," reversing the Appellate Court. By incorporating the JPA, the Circuit Court had accepted the parties’ agreement for removal, so the wife was free to remove the children; no motion for leave to remove was necessary. There was no need to separately determine the best interests of the children, in the Court’s view, since the JPA reflected an agreement between the divorcing spouses that removal was in the children’s best interests under certain settled circumstances.

The Court noted that its holding was supported by the strong public policy of Illinois to allow parties to resolve as many agreements as possible by agreement. Custody agreements are complex things, the Court observed; remove one thread — the parties’ agreement to allow removal — and there’s no telling what you might unravel. Failing to enforce the parties’ agreement would potentially undermine Section 502 of the Act as an expression of public policy.

But the husband was not without a remedy if he felt circumstances had changed, the Court noted in closing; he was free to pursue his still pending petition to modify the terms of custody.

How Broad are Illinois’ State Rights to Privacy and Gender Equality?

By Kirk Jenkins on Posted in Illinois

Our preview of the September term of the Illinois Supreme Court concludes with Hope Clinic for Women v. Adams [pdf]. Although Hope Clinic arises from a constitutional challenge to Illinois’ Parental Notice of Abortion Act, the issues before the Court have little to do with abortion law. Instead, the case raises broad issues about the interpretation of the Bill of Rights of the Illinois state constitution. Depending on how the Court resolves the case, Hope Clinic may affect a whole range of different areas of constitutional litigation.

According to the Parental Notice of Abortion Act, a physician must disclose to a parent, grandparent, step-parent living in the household or legal guardian that his or her minor or incompetent child is seeking an abortion. No notice is required if a pregnant minor seeks medical assistance but chooses to continue her pregnancy, nor is notice required if the minor has, or ever has had, a husband. Plaintiffs challenged the Act on a host of grounds, solely under the Illinois Constitution, including due process, equal protection, privacy and gender equality. The Circuit Court dismissed after concluding that all four of these state constitutional rights were interpreted in lockstep with Federal constitutional law. Accordingly, the due process and equal protection claims were barred by earlier Federal litigation, Zbaraz v. Hartigan. The privacy and gender equality claims failed because they would fail under Federal law.

The Appellate Court reversed. The Court acknowledged that Illinois’ due process and equal protection clauses are similar to their Federal counterparts, but nevertheless concluded that the Circuit Court had missed the forest for the trees: the claim in Federal court was not identical to the one being made in state court. Accordingly, collateral estoppel could not apply simply as a matter of civil procedure law.

As for the privacy and gender equality claims, the Court found guidance in People v. Caballes, the leading authority from the Supreme Court on coordinating state constitutional rights with Federal ones. There, the Court first described a “limited lockstep” approach for state provisions which are substantively identical to Federal ones: the court first looks to federal law, and only if federal law provides no relief does the court turn to state law to determine whether a state departure is warranted based on some specific criterion. But for express provisions of the state constitution with no analogous Federal provision, the Court rejected any kind of lockstep, holding that the state constitution must be interpreted without reference to Federal law.

Although Federal courts do recognize a “penumbral” right to privacy, the Appellate Court followed Caballes in holding that limited lockstep did not apply to Illinois’ right to privacy. Similarly, the Court held that because the Federal constitution included no gender equality guarantee, the Illinois provision had to be interpreted without reference to Federal law. Citing the Supreme Court’s decision in People v. Ellis, the Court held that gender-based distinctions were a suspect classification under Illinois law, necessitating strict scrutiny. Since the Circuit Court had declined to apply strict scrutiny in rejecting the gender equality claim, the Court remanded for reconsideration under that standard.

Presiding Justice Rodolfo Garcia added an interesting special concurrence. First, he concluded that the Zbaraz case was irrelevant, since the limited lockstep constitutional doctrine did not apply to decisions of Federal trial and intermediate courts. Justice Garcia also questioned the majority’s conclusion that Caballes necessarily meant that the limited lockstep doctrine was inapplicable to the state constitutional right to privacy.

Hope Clinic will be argued at the 9:00 am session of the Court tomorrow — Thursday, September 20, 2012.

Can Your Ethics Officer Sue Your Lawyer?

By Kirk Jenkins on Posted in Illinois

Our preview of the September term of the Illinois Supreme Court continues with Ferguson v. Georges [pdf], a case which might prove to have important implications for Illinois political ethics law.

Ferguson is an in-house dispute between the Inspector General of Chicago and the Corporation Counsel for the city. The Inspector General is charged with investigating the performance of governmental officers, employees, functions and programs in order to detect and prevent misconduct, inefficiency and waste. According to the Municipal Code, the IG has power to investigate "all elected and appointed officers of the city government" and "all employees of the city government" except for members of the city council. His powers extend to all contractors and subcontractors of the city, the city’s business contractors, and persons seeking certification of eligibility for participation in any city program. The IG may issue subpoenas to compel the attendance of witnesses and production of documents, although "for seven days after receipt of a timely objection to a subpoena," he "shall take no action to enforce the subpoena or to initiate prosecution of the person to whom the subpoena is directed." The Corporation Counsel, on the other hand, is the city’s lawyer, conducting all the city’s legal business.  She is required to "protect the rights and interests of the city in all actions, suits and proceedings brought by or against it or any city officer, board or department," and is responsible for defending "any member, officer or employee of the board of health, police department or fire department" who is sued for damages based on his or her official duties.

The IG opened an investigation of how a former City employee had been awarded a sole-source contract, in apparent violation of city rules. He sent a routine request to the Corporation Counsel, seeking production of documents. The law department provided some, but asserted the attorney-client and work product privileges as to others.

So the IG subpoenaed the documents. The Corporation Counsel objected, the IG responded, and the Corporation Counsel defied the subpoena. So the IG sued the city’s Corporation Counsel. The trial court dismissed on two grounds: (1) the Corporation Counsel was the sole lawyer for the city, and the IG didn’t have the authority to hire a private lawyer; and (2) the Corporation Counsel could assert attorney-client privilege to refuse to produce documents to the IG.

On appeal, the Corporation Counsel argued that one entity of the same government couldn’t sue another: it amounted to the City suing itself. Nice try, said the Appellate Court; although parties within the same board or agency had been prevented from suing each other in the past — the Corporation Counsel pointed to a case involving members of a Board of Fire and Police Commissioners — the courts had heard cases before involving separate agencies of the same municipal corporation.

Whether the IG could sue, particularly through a private lawyer, presented a somewhat more difficult question. The Municipal Code was at least somewhat obscure; it stated that the IG "shall take no action to enforce the subpoena" for seven days, but never really came right out and said that the IG had the power after seven days. The Corporation Counsel argued that as lawyer for the city, she herself would have to bring an enforcement action, but the Court didn’t buy it, concluding that that argument would necessarily mean that the IG could never investigate the Corporation Counsel herself. Ultimately, the Court concluded that if the IG was to be expected to carry out the duties assigned him by the Municipal Code, the power to issue subpoenas must necessarily include the power to enforce them, by hiring a private attorney if need be.

Of course, all of these capacity and standing issues are largely prelude to the central issue in the case — can a political entity’s lawyer assert attorney-client privilege in order to shield documents from the ethics officer? Who exactly "owns" the privilege? Might the Municipal Code provisions giving the ethics officer sweeping investigative authority be construed as a waiver of sorts? On appeal, the parties asked for opposite bright-line rules: the IG argued that there was no privilege where he was concerned, and the Corporation Counsel argued that all communications between city lawyers and governmental entities were privileged. The Appellate Court rejected both positions, although it didn’t offer a detailed explanation of why. Instead, it sent the case back to the trial court for an in camera examination of the documents. It will be interesting to see how much interest this issue draws from the Supreme Court in oral argument.

Ferguson will be argued at the 9:00 am session of the Court tomorrow — Thursday, September 20, 2012. Join us back here later today for a preview of the argument in The Hope Clinic for Women v. Adams.

When Is It Too Late To Seek Decertification?

By Kirk Jenkins on Posted in Illinois

Our preview of the September term of the Illinois Supreme Court continues with Mashal v. City of Chicago [pdf], a case which presents interesting questions about the scope of Circuit Courts’ power to decertify a class.

Mashal involves the City of Chicago’s practice of issuing what were called “fly-by” traffic citations to taxi drivers – citations which were received by mail, rather than being personally served or placed on the offending vehicle. Plaintiff filed a putative class action seeking to outlaw the practice in 2000, and a class certification order was entered two years later. In 2005, the parties filed cross-motions for summary judgment: the plaintiff seeking an order finding that “fly by” citations violated the Vehicle Code and the Municipal Code, and the City seeking an order dismissing the plaintiff’s claims for failure to exhaust administrative remedies, among other things. The plaintiff’s motion for partial summary judgment was granted and the City’s motion was denied. The following year, the City successfully moved for partial summary judgment, lopping off all claims accruing before 1995 on statute of limitations grounds.

In 2007, the City moved to decertify the class, arguing that with resolution of the issue regarding whether “fly bys” were illegal, there were no common issues left in the case. The Circuit Court granted the motion to decertify.

Section 2-802 of the Illinois Code of Civil Procedure provides that a court may certify a class, may make the certification order conditional, and may amend the order at any time “before a decision on the merits.” 735 ILCS 5/2-802. But since the statute nowhere defines “decision on the merits,” we’re left with the potentially high-stakes question: when does the Court lose the power to decertify? After their class was decertified, the plaintiff sought an order authorizing an interlocutory appeal. The Circuit Court refused, but then the Illinois Supreme Court intervened, granting a supervisory order directing the Circuit Court to certify and the Appellate Court to decide questions about the scope of Section 2-802.

The dispute broke down along predictable lines. The plaintiffs sought an expansive definition, similar to the one used to bar motions to disqualify a judge: if the Court has granted or denied a motion that impacts the rights and duties of the parties at all, a “decision on the merits” has been made, and the power to decertify is lost. The defendants took the opposite tack, arguing that a “decision on the merits” should be interpreted in a way more akin to res judicata law – a complete resolution of plaintiff’s liability claim.

The Appellate Court sided with the defendants, concluding that since res judicata law and potential class decertification serve similar purposes, they should be defined in a similar way. The Court concluded that prohibiting decertification only after a complete determination of liability served the purposes of certification while promoting efficiency and economy of litigation. The Court then held that since the Circuit Court’s order finding “fly-by” citations unlawful did not entirely dispose of the liability issues – the trial court expressly reserved the issue of the number of “fly-by” tickets issued during the relevant period – the decertification order was permissible. The plaintiff responded that the denial of defendant’s summary judgment motion regarding its affirmative defenses had fully determined liability, but the Court held that the order had merely struck blanket defenses; the City remained free to defend the claims one by one.

Mashal should be an interesting argument. If the Supreme Court concludes that any decision impacting the merits at all ends the power to decertify, the cost of litigation is likely to rise, because defendants will have no way of disposing of cases which no longer satisfy the prerequisites for class actions. We expect a decision in Mashal in the next two to three months.

Mashal will be argued at the 9:00 am session of the Court on Thursday, September 20, 2012. Join us back here tomorrow for a preview of the argument in Ferguson v. Georges.

Placing Limits on Forum Shopping

By Kirk Jenkins on Posted in Illinois

Our preview of the September term of the Illinois Supreme Court continues with Fennell v. Illinois Central Railroad Company [pdf], a case which may clarify the standards limiting the ability of a plaintiff – or sometimes, a plaintiff’s counsel — to shop for what he or she perceives to be a friendly forum.

Fennell is an action for personal injuries allegedly received as a result of exposure to asbestos, diesel exhaust, sand, environmental tobacco smoke, and toxic dusts, fumes and gases during plaintiff’s thirty-seven year employment with the defendant railroad. Plaintiff filed a putative class action suit in 2002 in Pike County, Mississippi. After the Mississippi court dismissed the action without prejudice, plaintiff re-filed in St. Clair County, Illinois pursuant to the Federal Employers’ Liability Act ("FELA") and the Locomotive Boiler Inspection Act.

The defendant moved to dismiss based upon forum non conveniens. On the surface, it would seem that the defendant had a point: (1) the plaintiff was a lifelong resident of Mississippi who worked out of the defendant’s Jackson, Mississippi facility; (2) the plaintiff did not claim to have received any kind of injury in Illinois, let alone in St. Clair County; and (3) numerous potential witnesses lived in Mississippi, including thirteen potential witnesses identified by the plaintiff. The defendant also pointed to the affidavit of its risk mitigation manager for occupational disease claims, who testified that he and several other company representatives lived in or near Memphis, and would find it substantially more convenient to travel to Copiah Co., Mississippi for trial than to St. Clair Co., Illinois.

The plaintiff responded that defendant was represented by a St. Clair County law firm which served as a regional counsel, representing the defendant in cases in Illinois, Mississippi, Louisiana and Tennessee. As a result — at least according to the plaintiff — defense counsel had amassed considerable evidence which was now located in counsel’s office, in St. Clair County. Plaintiff also pointed to two defense representatives he intended to call, one of whom lived in Illinois and the other in Memphis, as well as an expert witness who resided in Chicago. The Circuit Court denied the motion to dismiss, and the defendant appealed.

The Appellate Court affirmed. The defendant did not plan to call anyone from Mississippi for the trial, the Court concluded, and Memphis — the home of several of the defendant’s representatives — was an equally long drive, regardless of whether one was headed for Copiah County or St. Clair County. The Court acknowledged that several individuals in the case resided in Mississippi, but pointed out that the defendant could not get a change of forum based on the plaintiff’s potential inconvenience. The Court also emphasized the plaintiff’s allegation that documentary evidence was sitting in defense counsel’s office in St. Clair County.

Leave to appeal was likely granted in Fennell to resolve a conflict with the recent decision in Laverty v. CSX Transportation, Inc. — a decision rendered by the same District of the Appellate Court that decided Fennell (Illinois has no intra-District stare decisis, so Laverty did not automatically govern Fennell. Like Fennell, Laverty was a FELA case. Like Fennell, Laverty involved no clear connection to Illinois — the plaintiff was a resident of Texas who resided in Michigan and Ohio while working for the defendant railroad. Like Fennell, none of the purported injury occurred in Illinois in Laverty. The Appellate Court ultimately refused to follow Laverty on the grounds that there, none of the potential witnesses lived in Illinois. Justice Thomas Welch dissented, arguing that a controversy between a non-Illinois plaintiff and a non-Illinois defendant about alleged injuries which occurred outside of Illinois had no business being tried in an Illinois court.

Fennellwill be argued at the 9:30 am session of the Court on Wednesday, September 19, 2012. Join us back here tomorrow for a preview of the argument in Mashal v. City of Chicago.

Can Your Attorneys Fees Claim Wait? Adventures in Res Judicata, Part III

By Kirk Jenkins on Posted in Illinois

Our preview of the September term of the Illinois Supreme Court continues with Rodriquez v. Department of Financial and Professional Regulation [pdf]. Rodriquez is the third case on the Court’s docket this month that turns on res judicata, following Hernandez v. Bernstein and Cooney v. Rossiter.

A great many statutes allow successful plaintiffs to collect attorneys fees on the theory that they’ve conferred a benefit on the general public — they’re called "private attorney general" statutes.

But do you have to couple your fees request with your challenge? Or is your request unripe until you’ve won?

The defendant filed disciplinary charges against the plaintiff under the Medical Practice Act of 1987. The parties agreed to stay the proceedings while the plaintiff pursued two circuit court actions seeking to clarify the discovery and evidence rules applicable to such administrative disciplinary hearings.

First, plaintiff filed suit seeking deposition subpoenas. He lost, and the Appellate Court affirmed. But the second time around, he had better luck; plaintiff challenged one of the Department’s rules for contested cases in administrative hearings on the grounds that it conflicted with the enabling statute. The trial court agreed, as did the Appellate Court.

Not long after, following a settlement meeting, the Department issued a letter concluding that no violation of the Medical Practice Act had occurred, and closing its file without prejudice. The Department refused to dismiss its case with prejudice pursuant to "long-standing practice."

Six months later, the plaintiff sued the Department again, arguing under Section 1-55(c) of the Illinois Administrative Procedure Act, 5 ILCS 100/10-55(c) that he was entitled to attorneys fees incurred in getting the administrative rule struck down. But the trial court tossed the plaintiff’s case out, holding that he should have brought his fees claim in the original action challenging the rule, and his claim was now barred by res judicata.

The Appellate Court reversed. Section 1-55(c) contained no time limit or specific filing requirement, the Court pointed out; if the legislature had wanted to require that a fees claim be bundled with the underlying challenge, it would have said so. Allowing collateral litigation would have little impact on judicial efficiency, according to the Court, and the plaintiff had little choice anyway: his claim for fees didn’t accrue until he won his underlying challenge.

Rodriquez will be argued at the 9:30 am session of the Court on Wednesday, September 19, 2012. Join us back here tomorrow for a preview of the argument in Fennell v. Illinois Central Railroad Company.

What Not to Do When You’re Challenging a Trust

By Kirk Jenkins on Posted in Illinois

Our preview of the September term of the Illinois Supreme Court continues with In re Estate of Boyar [pdf].

So you’ve decided there was something not quite right about a parent’s will. Can you take the money and then file a will challenge? The answer nearly everywhere is thoroughly settled: No.

But what if Dad had a trust instead of a will?

That’s the question raised by Boyar. Years prior to his death, the decedent set up a trust; his operative will simply said to distribute all the property through the trust. The trust was amended several times over the years, but until 2010, one provision remained constant: the beneficiaries could remove the trustee by majority vote. Then in the sixth and final amendment, this power was withdrawn and a new trustee appointed.

Only three weeks after the trustee was appointed, the decedent died. In September 2010, petitioner, one of the decedent’s five children, filed a challenge to the sixth amendment, arguing (among other things) that the decedent had lacked the mental capacity to execute it because of progressive dementia. Six weeks later, the trustee sought a citation to discover and recover assets belonging to the trust, alleging that in May and July 2010, petitioner had removed items of personal property belonging to the trust from the decedent’s home. The citation was granted, and in response, plaintiff acknowledged receipt of certain items "as a partial distribution of [his] interest from the [trust]." The trustee then moved to dismiss petitioner’s challenge to the trust, citing the doctrine of election, which teaches that a party may not accept benefits under an instrument and subsequently challenge its validity. The Circuit Court agreed and dismissed.

Before the Appellate Court, petitioner argued that the doctrine of election is recognized in Illinois only with respect to wills, and should not be extended to trusts. The Court disagreed, observing that Illinois as a general rule applies the same rules to interpreting both wills and trusts, and that trusts have proliferated in recent years as a preferred method of passing assets to one’s heirs. The Court cited the decisions of appellate courts in several other states, each of which have extended the doctrine of election from wills to trusts.

Petitioner argued that the doctrine of election should not bar his particular claim because the property he accepted was "nominal" in value. The Appellate Court disagreed, pointing out that the Illinois courts had rejected the same argument with respect to wills.

Next, petitioner argued that the doctrine of election was inapplicable where the party accepting benefits lacked full knowledge of the facts. However, the Appellate Court pointed out that petitioner’s letters about his father’s alleged dementia — the basis of his challenge — were signed before his challenge was filed. Nor was the second recognized exception – where a provision of the trust was contrary to law or public policy — applicable. The Court acknowledged a third exception to the doctrine, where a party timely tenders accepted benefits back to the estate and the estate is not prejudiced, but the Court pointed out that while most courts applying the exception had required a re-tender before the challenge was filed, petitioner had not tendered the personal property back to the trust until his challenge to the trust had been dismissed.

Boyar will be argued at the 9:30 am session of the Court on Wednesday, September 19, 2012. Join us back here tomorrow for a preview of the argument in Rodriquez v. The Department of Financial and Professional Regulation.

Can The Neighbors Sue the Family Farm Across the Street?

By Kirk Jenkins on Posted in Illinois

Our preview of the September term of the Illinois Supreme Court continues with Toftoy v. Rosenwinkel [pdf].

We all learned about it in law school, and few of us have probably thought of the phrase since: “coming to a nuisance.” The notion is basically this: if you’re the last to move in, you’re stuck with your neighbors. You can’t file a nuisance suit if you knew what you were getting into.

Which brings us to a relatively common legislative manifestation of this old warhorse of a property law principle: “Right to Farm Laws.” The Illinois version is the Farm Nuisance Suit Act, 740 ILCS 70/1. According to Section 3 of the Act, no farm can be, or become, a private or public nuisance “because of any changed conditions in the surrounding area” as long as the farm has been in operation for a year.   The only exception to this blanket immunity is where the nuisance results from the negligent or improper operation of the farm.

Toftoy arises from a cattle farming operation. Defendants bought farmland in a rural area in 1991. The land had historically been used as a cattle operation, and the following year, the defendants opened their own cattle farm on the property. Three years earlier, plaintiffs had started using the barn and fenced lots on the property across the street to board horses. In 1997 – five years after the defendants started their cattle operation – plaintiffs demolished the old farmhouse which had stood vacant since 1992 and began building a new residence; they finally completed construction and moved into the house in 2004. In 2007, plaintiffs sued the defendants, alleging that the flies coming from their farm constituted a nuisance.

The defendants moved for summary judgment, arguing that Section 3 of the Farm Nuisance Suit Act clearly barred the suit. But the trial court denied the motion, holding that the changed conditions on the plaintiffs’ property across the street hadn’t caused the nuisance. After a bench trial, the court entered a declaratory judgment for plaintiffs and an injunction requiring various steps, supposedly to mitigate the fly problem.

On appeal, the defendants argued that contrary to the trial court’s ruling, there were “changed conditions” all over the place: (1) when they started their farm, the land across the street had been unoccupied; (2) the land across the street had originally been zoned for agricultural use, but was now being used for a private residence; (3) when defendants started their farm, the land across the street was a 200 acre plot; now plaintiffs held a 1.83 acre plot. According to the defendants, if their property was a nuisance at all, it was because the plaintiffs had moved into a farming area across from a working cattle farm and built a single-family residence on a small plot. And the defendants were there first.

The Appellate Court affirmed. Just any “changed condition” wasn’t good enough, the Court found; the condition must literally be the reason the farm was now a nuisance. Nothing the plaintiffs (or the previous landowner) had done had caused the nuisance, according to the Court, so the Illinois “Right to Farm” Act didn’t bar the suit. Justice Susan F. Hutchinson filed a detailed dissent, arguing that the Act clearly barred the suit. She concluded that the statute was clearly meant to be interpreted to give broad protection to Illinois farmers. Although there needed to be some nexus between the “changed condition” and the purported nuisance, Justice Hutchinson concluded that the necessary nexus was clearly present: the reason for the suit was that the plaintiffs had built a residence on a small plot in what had once been a large parcel of farmland. Justice Hutchinson worried about the future of Illinois’ farmers if the majority decision stood: “The future implications of the majority’s decision will leave farms with no defenses against baseless nuisance suits.”

In view of the dissent, and the Supreme Court’s allowance of the petition for leave to appeal on what the Appellate Court called an issue of first impression, don’t be surprised if the Supreme Court reverses. But if they don’t, an effort in the Illinois legislature to amend the statute seems likely.

Toftoy will be argued at the 9:30 am session of the Court on Wednesday, September 19, 2012. Join us back here tomorrow for a preview of the argument in In re Estate of Boyar.

When Is the Property Valued? The Law of the Great Recession

By Kirk Jenkins on Posted in Illinois

Our preview of the September term of the Illinois Supreme Court continues with In re Marriage of Mathis [pdf].

Often in divorce proceedings there is a need to bifurcate: to enter a judgment of dissolution before the property settlement. But on the other hand, after the dissolution — the literal divorce — has been entered, often the parties’ sense of urgency dims.

So if a significant period passes between the dissolution and the hearing on property matters, when is the property valued? For divorces which were pending when the Great Recession hit, this question can make a significant difference.

That’s the issue presented in Mathis. The husband filed for divorce in November 2000. Judgment of dissolution was entered four months later. After several delays, the trial court commenced hearing on the property issues in April 2004. After several further continuances, in February 2006 the trial court finally set a valuation date, but then nothing further happened until May 2010. After yet more delays, the trial court set a new valuation date of December 31, 2010 — nearly ten years after the judgment of dissolution. On husband’s motion, the trial court certified a question for interlocutory appeal: when there is a lengthy delay between dissolution and the hearing on ancillary issues, is the appropriate valuation date the date of dissolution or a date close to the hearing on the property issues?

The statute isn’t much help. According to Section 503(f) of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/503(f), in a bifurcated dissolution period, the valuation date is "the date of trial or some other date as close to the date of trial as is practicable."

On appeal, the former husband argued that the Court’s interpretation produced a windfall to the former spouse by allowing him or her to capture the fruits of the other party’s postdissolution efforts. But the Appellate Court noted that when a party’s efforts increased the value of the property, those efforts would be taken into account; when the party ignored the property, the party’s failure to maintain would count against them too. Understandably given the recent history of property values, the Court was most concerned with the effect of a decline, pointing out that if the Court distributed property based on earlier, higher values, it was essentially distributing assets which no longer exist, resulting in an unenforceable order.

Justice Thomas R. Appleton specially concurred with the result. Although Justice Appleton agreed with the majority’s result and reasoning, he worried that the Court’s decision might cause some trial courts to refuse to enter a quick "grounds only" dissolution judgment, even where the circumstances of the parties clearly required it.

Mathis will be argued at the 9:00 am session of the Court on Tuesday, September 18, 2012. Join us back here tomorrow for a preview of the argument in Toftoy v. Rosenwinkel.

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