ILLINOIS SUPREME COURT PETITIONS FOR LEAVE TO APPEAL ALLOWED NOVEMBER 2010 TERM

Forest Preserve Dist. of Du Page County v. First Nat. Bank of Franklin Park 401 Ill. App. 3d 966, 930 N.E.2d 477, 341 Ill. Dec. 267 (2d Dist. 2010)

S. Ct. Docket Nos. 110759 and 110760 Issue: Eminent Domain

(1) Whether the owner of condemned property is entitled to the fair market value of the property on the date the condemnation action was filed or on the date of payment, which in this case occurred eight years later, and (2) whether a valuation based on the date the condemnation action was filed violates the just compensation clause of the Constitution.

Synopsis

County forest preserve made a purchase offer regarding property which included a golf course and a parcel of undeveloped land. Landowners rejected the offer and the forest preserve filed a condemnation action. Eight years later, the case proceeded to jury trial and, at the close of evidence, the landowners made an offer of proof to the effect that, if they had been permitted to present evidence regarding the value of the property if the golf course was developed with residential units, the fair market value would have been up to $20 million. The jury determined the value at $10.7 million, and the landowners appealed.

Appellate Court Decision

The Appellate Court vacated the jury’s verdict and held that the trial court erred in refusing to allow a post-trial Kirby hearing; that the delay of eight years between filing of the action and payment of judgment constituted substantial delay entitling landowners to have just compensation issues addressed; that the landowners did not engage in deliberate obstruction of the condemnation action; and that the district could abandon the taking if it wished. The Illinois Attorney General filed a petition as an intervener-petitioner as a matter of right based on the Appellate Court’s declaration that section 7-121 of the Eminent Domain Act is unconstitutional.

H-9 Sierra Club v. Illinois Pollution Control Bd.

403 Ill. App. 3d 1012, 936 N.E.2d 670, 344 Ill. Dec. 141 (3d Dist. 2010) S. Ct. Docket No. 110882

Issue: Environmental Law

Whether a citizens group has standing to challenge an order of the Illinois Pollution Control Board involving enforcement of the Illinois Environmental Protection Act.

Synopsis

Peoria Disposal Company, a waste stabilization facility, filed a petition with the Illinois Pollution Control Board asking that residue resulting from the treatment of electric arc furnace dust (EAFD) be delisted as a hazardous substance for disposal purposes. The Illinois Pollution Control Board granted the petition, and a citizens group filed a petition for review. On appeal, the IEPA argued that the citizens group lacked standing to challenge the Board’s order because they did not fall within any of the groups identified in section 41(a) of the Illinois Environmental Protection Act. 415 ILCS 5/27(a). The citizens group argued that the Pollution Board failed to fully consider the factors set forth in section 27(a) of the Act when it granted the petition.

Appellate Court Decision

The Appellate Court split three ways with two of the three panel members agreeing to affirm the Pollution Board’s decision, but for different reasons. Justice Lytton found that the citizens group had standing to file its petition, and also found that the Board’s ruling was not against the manifest weight of the evidence. Justice Carter upheld the Board’s decision because the citizens groups did not have standing. Justice Wright agreed with Justice Lytton’s ruling that the citizens groups had standing, but dissented, believing that the Board’s ruling was against the manifest weight of the evidence.

Petersen v. Petersen

403 Ill. App. 3d 839, 932 N.E.2d 1184, 342 Ill. Dec. 723 (1st Dist. 2010) S. Ct. Docket No. 110984

Issue: Family Law

Whether an ex-husband should be required to pay retroactive college expenses.

Synopsis

The original divorce decree reserved the issue of the party’s obligation to contribute to education expenses for the children. Eight years later, the mother filed a petition asking for allocation of college expenses. The trial court ordered the ex-husband to pay 75 percent of all education expenses, past, present and future. He appealed, claiming the trial court erred in ordering him to pay expenses that pre-dated the filing of the petition for allocation of college expenses.

Appellate Court Decision

The Appellate Court held that the petition for allocation of college expenses, filed eight years after dissolution, was in the nature of a modification of child support under section 510 of the Marriage and Dissolution of Marriage Act 750 ILCS 5/510(a). Accordingly, the trial court erred when it ordered payment of college expenses that predated the notice of filing under the section 510(a) of the Act. The Appellate Court affirmed the trial court’s ruling allocating 75 percent of the expenses to the father.

Simpkins v. CSX Corp.

401 Ill. App. 3d 1109, 929 N.E.2d 1257, 341 Ill. Dec. 178 (5th Dist. 2010) S. Ct. Docket No. 110662

Issue: Asbestos

Whether an employer has a duty to prevent harm from take-home asbestos exposure if the injury is foreseeable.

Synopsis

Railroad worker's wife claimed she was exposed to asbestos fibers brought home on the work clothes of her husband while working for various employers, including the defendant’s predecessor, the B&O Railroad. The trial court granted the railroad’s motion to dismiss on the grounds that an employer has no duty to protect the family of its employee from the dangers of asbestos.

Appellate Court Decision

In a case of first impression in Illinois, the Appellate Court reversed, finding that the defendant railroad did have a duty to protect the families of its employees. Relying on two out-of-state decisions, the Appellate Court concluded that an employer has a duty to prevent harm from take-home asbestos exposure even in the absence of any special relationship if the injury is foreseeable. The decision lies in direct conflict with a decision of the Appellate Court, Second District, in Nelson v. Aurora Equipment Co., 391 Ill. App. 3d 1036, 909 N.E.2d 931, 330 Ill. Dec. 909 (2d Dist. 2009).

Bell v. Hutsell

402 Ill. App. 3d 654, 931 N.E.2d 299, 341 Ill. Dec. 691 (2d Dist. 2010) S. Ct. Docket No. 110724

Issue: Negligence – Social Host Liability

Whether parents, who had undertaken a duty to monitor their son’s party to prevent underage drinking on their premises, are liable for the death of an 18-year-old high school student who became intoxicated at the party and crashed his car after leaving the party.

H-11 Synopsis

Defendant’s son, an 18-year-old high school student, held a party. His parents said that no alcohol would be allowed and that they would be present to confirm that no alcohol was consumed. Nevertheless, partygoers consumed alcohol throughout the evening while the parents were present. Plaintiff’s son became intoxicated at the party and died in a car wreck. The trial court dismissed the common law claims against the parents for voluntary undertaking, holding that the issue of social host liability for consumption of alcohol had been preempted.

Appellate Court Decision

The Appellate Court reversed, finding that the claims based on voluntary undertaking should not have been dismissed. The defendants argued that the complaint failed because there is no social host liability in Illinois and the voluntary undertaking theory was merely an attempt to circumvent the rule against social host liability. The Appellate Court rejected that argument, finding that the claim for voluntary undertaking could be separated from defendant’s actions as a social host. The fact that defendants may have negligently failed to prevent the consumption of alcohol on the premises did not convert them into social hosts.

Snyder v. Heidelberger

403 Ill. App. 3d 974, 933 N.E.2d 1235, 342 Ill. Dec. 942 (2d Dist. 2010) S. Ct. Docket No. 111052

Issue: Limitations – Attorney Malpractice

Whether the six-year statute of limitations period, or the two-year limitations period applied where the plaintiff’s injury occurred after her husband’s death.

Synopsis

Plaintiff sued her attorney for malpractice in the drafting of a deed to real property that her late husband allegedly intended to convey to her as his joint tenant. In drafting the quitclaim deed, the attorney failed to realize that the husband merely held a beneficial interest in a land trust.

Accordingly, the quitclaim deed he prepared changing the legal title to a joint tenancy was meaningless. The trial court ruled that the claim was barred under the six-year statute of repose and dismissed the case.

Appellate Court Decision

Claims for legal malpractice must be filed no later than six years from the date on which the action or omission occurred. However, if the injury caused by the act or omission does not occur until the death of the person for whom professional services were rendered, the action may be commenced within two years after the date of death. The defendant attorney argued that the injury occurred when he failed to change the title into joint tenancy. Plaintiff argued that the injury did not occur until her husband died, and the property was inherited by her late husband’s son. The Appellate Court found that the complaint alleged two injuries, one when the attorney failed to presently transfer the initial interest in the property. The second injury occurred when the widow was deprived of the entire interest in the property following her

husbands’ death. The Appellate Court reversed, finding that the two-year limitation period applied.

General Motors Corp. v. Pappas

393 Ill. App. 3d 60, 911 N.E.2d 504, 331 Ill. Dec. 683 (1st Dist. 2009) S. Ct. Docket No. 108893

Oral Argument Date: Jan. 19, 2011 Issue: Taxation – Property Tax

These consolidated cases address the issue of the correct interest to be paid on property tax refunds pursuant to section 23-20 of the Property Tax Code after the issuance of a judgment and a notice of appeal has been filed. 35 ILCS 200/23-20.

Synopsis:

The Property Tax Code was amended, effective January 1, 2006, to change the interest rate on tax refunds from a flat 5 percent rate to a rate based on the consumer price index (CPI). In each of the cases, the trial court entered judgment orders granting plaintiffs 5 percent interest from the time the taxes were paid until January 1, 2006, and the lower rate based on the CPI for the time after January 1, 2006. The Treasurer filed these appeals arguing that the terms of the Code require payment of refunds made after January 1, 2006, at the lower interest rate.

Appellate Court Decision

The Appellate Court affirmed the trial court, holding that the 2006 amendment to the Property Tax Code required the Treasurer to pay 5 percent interest on the refunds from the date of the final payment through December 31, 2005 and to calculate interest according to the Consumer Price Index from that point forward through the date of the refund. The Appellate Court rejected the Treasurer’s argument that the trial court lacked jurisdiction to award interest after a notice of appeal was filed. That ruling lies in direct conflict with the Appellate Court’s decision in Sears Holding Corp. v. Pappas, 391 Ill. App. 3d 147, 908 N.E.2d 556, ___ Ill. Dec. ___ (1st Dist. 2009).

ILLINOIS SUPREME COURT PETITIONS FOR LEAVE TO APPEAL ALLOWED