People v. NL Industries, Inc.

SECOND DIVISION
June 2, 1998

1-97-3463

THE PEOPLE OF THE STATE OF ILLINOIS ) APPEAL FROM
AND THE ILLINOIS ENVIRONMENTAL ) THE CIRCUIT COURT
PROTECTION AGENCY, ) COOK COUNTY.
)
Plaintiffs-Appellants, )
)
v. ) No. 88 CH 11618
)
NL INDUSTRIES, INC., ARTRA GROUP, INC., )
JOHN HARVEY, PETER R. HARVEY, )
AMERICAN NATIONAL BANK AS TRUSTEE )
UNDER TRUST NUMBERS 48495 AND 55976, )
JOHN HECKENS, GOODWILL INDUSTRIES )
OF CHICAGO AND COOK COUNTY, ILLINOIS, )
LASALLE NATIONAL BANK AS TRUSTEE UNDER )
TRUST NUMBER 105679, M & T ENTERPRISES, )
INC., LAVON TARR, MARTIN S. BIEBER, )
RANDALL POLK, INDIVIDUALLY AND D/B/A )
WRIP WRECKING CO., COLE TAYLOR BANK )
DROVERS NO. 84141, )
)
Defendants-Appellees. ) THE HONORABLE,
) LESTER FOREMAN,
) JUDGE PRESIDING.
)

JUSTICE COUSINS delivered the opinion of the court:

Plaintiffs, the People of the State of Illinois and the
Illinois Environmental Protection Agency, appeal from an order of
the circuit court denying their motion to reinstate this civil
action and to lift a stay of discovery against 13 defendants for
alleged violations of the Environmental Protection Act (Ill. Rev.
Stat. 1987, ch. 1111/2, par. 1001 et seq. (now 415 ILCS 5/1 et
seq. (West 1994))). Plaintiffs' motion was brought after this
court's decision in People v. NL Industries, Inc., 284 Ill. App.
3d 1025, 673 N.E.2d 717 (1996), in which we remanded the case to
the trial court to allow plaintiffs to articulate their reasons
for the delay in moving for reinstatement. On appeal, plaintiffs
argue that the trial court abused its discretion by refusing to
reinstate this case on the docket.
BACKGROUND
This case began on December 27, 1988, with the filing of a
five-count complaint by plaintiffs, the People of the State of
Illinois and the Illinois Environmental Protection Agency
(collectively hereinafter the State), against 13 defendants: NL
Industries, Inc.; Artra Group, Inc.; John Harvey; Peter R.
Harvey; American National Bank, as trustee under trust numbers
48495 and 5597; John Heckens; Goodwill Industries of Chicago and
Cook County, Illinois; LaSalle National Bank, as trustee under
trust number 10567; M & T Enterprises, Inc.; Lavon Tarr; Martin
S. Bieber; Randall Polk, individually and d/b/a Wrip Wrecking
Co.; and Cole Taylor Bank Drovers No. 84141 The State sought
cost recovery from the defendants in the amount of $2,270,000 for
the pollution of an abandoned paint manufacturing facility on the
south side of Chicago. In its complaint, the State sought
compensation for the funds expended in cleaning up the facility,
punitive damages, fees and costs and the imposition of civil
fines against the defendants.
After the complaint had been filed, the defendants secured a
stay of discovery pending the resolution of certain motions to
dismiss which had been filed or were to be filed. Defendant
ARTRA Group, Inc. (ARTRA), filed a motion to dismiss contending
that the complaint should be dismissed due to the failure of the
State to exhaust its administrative remedies before the Pollution
Control Board. On April 7, 1989, the trial court granted ARTRA's
motion to dismiss the case. The State appealed and this court
affirmed the circuit court in People v. NL Industries, Inc., 218
Ill. App. 3d 300, 578 N.E.2d 237 (1991).
The State successfully sought leave to appeal to the Illinos
Supreme Court. On October 1, 1992, in People v. NL Industries,
152 Ill. 2d 82, 604 N.E.2d 349 (1992), the supreme court held
that the Pollution Control Board and the circuit court hold
concurrent jurisdiction to hear cost-recovery actions and
reversed the appellate and circuit courts. The supreme court
remanded the action to the circuit court for further proceedings.
The mandate of the supreme court was filed with the clerk of the
circuit court of Cook County on December 16, 1992.
On September 9, 1993, the State filed a motion to lift stay
of discovery. On October 20, 1993, the State filed a motion to
reinstate the case pursuant to Supreme Court Rule 369(c) (134
Ill. 2d R. 369(c)). On December 20, 1993, Judge Richard L. Curry
denied the motion to reinstate and dismissed the action with
prejudice. In his 17-page opinion and order, Judge Curry noted,
inter alia, that the State had failed to articulate any reason
for the delay in reinstating the case and had, instead, argued
that the right to reinstate under Supreme Court Rule 369(c) is
absolute and mandates redocketing without any showing of due
diligence.
The State appealed the dismissal. On February 14, 1996,
this court affirmed the denial of the State's motion to reinstate
the case. However, on November 13, 1996, a modified opinion was
issued. In People v. NL Industries, Inc., 284 Ill. App. 3d 1025,
673 N.E.2d 717 (1996), we rejected the State's argument that it
need not articulate a reason for its delay in reinstating the
action and pointed out that an affirmative duty is placed upon a
prevailing party on appeal to pursue its rights after the
reviewing court's mandate has issued. NL Industries, Inc., 284
Ill. App. 3d at 1028. Citing National Underground Construction
Co. v. E.A. Cox Co., 273 Ill. App. 3d 830, 652 N.E.2d 1108
(1995), we explained that a totality of the circumstances test
must be applied in the examination of the failure of a party
seeking reinstatement and that the prejudice to a party is
certainly part of such an examination. NL Industries, Inc., 284
Ill. App. 3d at 1028. Accordingly, the case was remanded to the
circuit court to "allow the State to articulate the reasons for
the delay in moving for reinstatement." On April 16, 1997, the
State presented its motion to reinstate the case on the docket
and to lift the stay of discovery.
On August 11, 1997, a hearing was held on the State's
motion, after which Judge Lester Foreman denied the State's
motion and dismissed the action with prejudice. The State
appeals from that order.
We affirm.
ANALYSIS
I
The State contends that the trial court abused its
discretion by refusing to reinstate its case where the delay was
explained and was reasonable. The State also argues that the
trial court applied the wrong standards in determining whether to
grant reinstatement. The State further argues that the trial
court erred in adopting the former trial court's reasoning in
toto. We disagree.
Supreme Court Rule 369(c) provides:
"When the reviewing court remands the case for a new
trial or hearing and the mandate is filed in the circuit
court, the case shall be reinstated therein upon 10 days'
notice to the adverse party." 134 Ill. 2d R. 369(c).
When a case is remanded to the trial court and this court's
mandate issues, a prevailing party must reinstate the cause
pursuant to Rule 369(c) within a reasonable time. National
Underground Construction Co. v. E.A. Cox Co., 273 Ill. App. 3d
830, 836, 652 N.E.2d 1108 (1995). In determining whether a party
has reinstated a case within a reasonable time, a trial court
should take into account the totality of the circumstances,
particularly any reason proffered for undue delay. National, 273
Ill. App. 3d at 836; O'Brien v. Meyer, 281 Ill. App. 3d 832, 839,
666 N.E.2d 726 (1996). We will review a trial court's
determination in these matters for an abuse of discretion.
National, 273 Ill. App. 3d at 836.
The record in the case sub judice reflects that, on
September 9, 1993, the State filed a motion to lift the stay of
discovery that had been entered at the case's inception. The
actual motion to reinstate the case was not filed until October
20, 1993. The State argues that the nine-month delay between the
filing of the supreme court's mandate to reinstate the case and
the State's first attempt to revive the case was caused by
"serious time constraints under which Plaintiffs' counsel labored
at the time, the need to set priorities and the desire not to
begin the active litigation of the case until counsel assigned to
it had sufficient time to do a diligent job." At the August 11,
1997, hearing before Judge Foreman, the State argued that, at the
time the supreme court's mandate was issued, those assistant
State's Attorneys assigned to the case already had full
calendars. Assistant State's Attorney Frank Parkerson, who was
lead counsel on the case, along with Assistant State's Attorney
Jennifer Whitfield, were busy working on an extensive murder case
that involved the criminal prosecution of three corporations and
four corporate officers. In an attempt to coordinate litigation
of this case with the other assistant State's Attorneys and their
case loads, the State decided, after researching the issue, that
there was no definite time limit within which the case had to be
refiled. The State maintained that no cases were found where a
delay in refiling of less than a year had ever resulted in a
denial of reinstatement. Thus, considering the case loads, time
constraints on other cases and other pressures under which
counsel were operating in 1993, the State decided to impose a
reasonable time standard upon itself in making a decision as to
when the case should be reinstated and that a reasonable time
should be between one year, preferably after the conclusion of
other matters. In sum, the State argues on appeal that it was
simply exercising justifiable case management prerogatives.
Defendants, on the other hand, argue that the State's
reasons were not justifiable. Defendants further argue that
deposition testimony of plaintiffs' counsel indicates that the
assistant State's Attorneys assigned to this case had the time to
attend to this litigation, but chose to work on other cases
instead.
In denying the State's motion the trial court stated in
pertinent part:
"I have come to the conclusion that the articulation by
the State's Attorney is insufficient to reinstate this
matter. What has happened here both in the papers that have
been filed and in the argument that I have heard that the
State's Attorney's Office was involved with other matters of
substance which [sic] unquestionably may have an obligation
to consider, but as a consequence of the involvement in
other matters; and therefore, seeing that reinstating this
matter in a timely fashion would have involved the State's
Attorney's Office in complications stemming from the
reinstatement, the State's Attorney's office made the
informed decision to withhold reinstating this case in what
I consider to be a timely fashion because of the problems
that would have been generated from a discovery standpoint
if in fact the matter had been timely reinstated. *** [I]n
my opinion, that is not a sufficient reason or a sufficient
explanation for the conduct of the State's Attorney's Office
***. I unequivocally adopt in toto the reasoning expressed
by Judge Curry's opinion in this matter. *** I think Judge
Curry has expressed it far, far superior to what my ability
would be; and for that reason, I adopt the language which he
expressed in his opinion.
I believe that I have not heard a sufficient reason,
explanation, for the purpose of reinstating this matter.
The State's Attorney's Office could have very easily filed
the motion and then come before the court and asked for a
delay. It could have explained to the Court at that time
what other pending and competing matters existed and could
have asked for a delay in discovery. That wasn't done.
In my opinion, this is not the way litigation is to be
handled. I should not be confronted at this time with a
case that was filed in 1988 irrespective of the fact that
this matter did in fact involve Appellate considerations.
***
I was impugned [sic] here with the obligation to
consider the articulated reasons of the State's Attorney for
its delay. In my opinion those reasons are unacceptable.
They do not have substance; they are not a reasonable
explanation of the conduct of the State's Attorney's Office
of the size of the one that we're dealing with at the time
of this matter."
We cannot say that the trial court erred in denying the State's
motion to reinstate.
The State argues that its self-imposed time limit of one
year seemed reasonable at the time based upon the then-existing
case law. The State argues that a one-year delay was mentioned
with approval in National Underground, 273 Ill. App. 3d 830, 652 N.E.2d 1108. This assertion is incorrect. In National, the
plaintiff filed its motion to reinstate the case almost two years
after the appellate court's mandate reversing summary judgment in
favor of the defendant. The appellate court did not interpret
Rule 369(c) as imposing a one-year time limit. Rather, the
appellate court merely noted, in dicta, that, under section 88 of
the former Civil Practice Act (Ill. Rev. Stat. 1965, ch. 110,
par. 88), the party in an appeal had one year from the date of a
decision of the appellate court to file the mandate in the
circuit court. National, 273 Ill. App. 3d at 836. The current
law, however, provides that when a case is remanded to the trial
court and this court's mandate issues, a prevailing party must
reinstate the cause pursuant to Rule 369(c) within a reasonable
time. National, 273 Ill. App. 3d at 836.
Here, looking at the totality of the circumstances and the
facts, the State's proffered reasons for the delay are
unacceptable despite the fact that the State moved to reinstate
the case before the expiration of one year. As we stated in
National, there is "no reason why under Rule 369(c) *** a party
should have unlimited time to assert its rights simply because
Rule 369(c) does not contain an express time limitation."
National, 273 Ill. App. 3d at 835. Furthermore, to interpret
Rule 369(c) as providing parties an ever-open window to reinstate
a case would thwart the purpose of practice rules, which were
initially adopted to facilitate the orderly and expeditious
disposition of litigation. National, 273 Ill. App. 3d at 836.
Accordingly, we cannot say that the trial court erred in denying
the State's motion to reinstate the case.
Furthermore, we reject the State's argument that the trial
court abused its discretion in applying the wrong standard in
reviewing the State's arguments and by adopting Judge's Curry's
reasoning in toto. Our review of the record indicates that the
trial court reviewed the written and oral arguments of the
parties, including Goodwill's assertion that it would be
prejudiced by reinstatement of the case. The trial court then
conducted its own independent review of the State's proffered
reasons for the delay and specifically stated that it was
following the instructions given by this court. In our view, the
trial court denied the State's motion after thoroughly
considering the facts before it, in addition to considering Judge
Curry's reasoning.
For the foregoing reasons, the judgment of the circuit court
is affirmed.
Affirmed.
McNULTY, P.J., and RAKOWSKI, J., concur.