70608398v1 890522 66799
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED CITY OF YORKVILLE, A
MUNICIPAL CORPORATION,
C om pl ai n an t,
v.
HAMMAN FARMS,,
Respondents.
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PCB No. 08-96
(Enforcement-Land, Air, Water)
NOTICE OF FILING
TO: SEE ATTACHED SERVICE LIST
PLEASE TAKE NOTICE that o n July 28, 2009, we e lectro nically filed w it h t he Clerk of
the Illinois Pollution Control Board,
Respondent Hamman Farms
¶
Response to Yorkville
¶
s
Motion to Strike Respondent
¶
s Motion to Dismiss
, a copy of which is attached hereto and
hereby served upon you.
Dated:
July 28, 2009
Respectfully submitted,
On behalf o f HAMMAN FARMS
/s/Charles F. Helsten
Charles F. Helsten
One of Its Attorneys
Charles F. Helsten
Nicola Nelson
Hinshaw & Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
815-490-4900
Electronic Filing - Received, Clerk's Office, July 28, 2009
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70608398v1 890522 66799
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
UNITED CITY OF YORKVILLE, a municipal
corporation,
C om pl ai n an t,
v.
ILLINOIS ENVIRONMENTAL
PROTECTION AGENCY, and HAMMAN
FARMS,
Respondents.
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PCB No. 08-96
RESPONDENT HAMMAN FARMS
¶
RESPONSE TO YORKVILLE
¶
S
MOTION TO STRIKE RESPONDENT
¶
S MOTION TO DISMISS
NOW COMES the Respondent, HAMMAN FARMS, by and through its attorneys
HINSHAW & CULBERTSON LLP and MUELLER ANDERSON, P.C., and for its Response to
Yorkville¶s Motion to Strike the Responden¶s tMotion to Dismiss, states as follows:
INTRODUCTION
On April 2, 2009, the Board entered an Order denying Yorkville
¶s
motion for leave to file
an amended co mplaint because the proposed amended co mplaint failed to cure the deficiencies
that had been previously identified by the Board. The Board granted leave, however, for
Yorkville to try once again to cure t he deficiencies by filing another a mended co mplaint. T he
Board¶s Order of April 2, 2009 gave Yorkville until May 4, 2009 to file another amended
c om pl ai n t.
On May 1, 2009, counsel for Yorkville contacted counsel for Hamman Farms, indicat ing
that Yorkville faced problems in meeting the deadline set by the Board. As a professional
courtesy, attorneys for Hamman Farms agreed not to oppose a late filing of the new amended
complaint by Yorkville. Yorkville thereafter filed its new amended complaint on May 7, 2009.
Electronic Filing - Received, Clerk's Office, July 28, 2009
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70608398v1 890522 66799
The Board¶s Order of April 2, 2009, which had set a deadline for the filing of Yorkvill¶s e
new amended complaint, also set a date certain for Hamman Farms to answer that complaint:
July 6, 2009. On June 30, 2009, well in advance of that deadline to answer, Hamman Farms
answered the complaint with an Answer and Affirmative Defenses to Count IV , and a Motion to
Dismiss Counts I through III. Yorkville was served with H amman F¶
armAnsswer and Mot ion t o
Dismiss, via email on June 30, 2009.
By rule, Yorkville had until July 14, 2009 to file a response to the Motion to Dismiss . 35
Ill.Adm.Code 101.500(d). The rules further provide tha³[it ]f no response is filed, the part y will
be deemed to have waived object ion to the granting of the mot´
ion.(
Id
.) To date, Yorkville still
has not filed a br ief in response to Hamman F¶
armMots ion to Dismiss, and shou ld accordingl y
be deemed to have waived its objection to the motion, pursuant to Section 101.500(d).
On July 14 , 2009 , Yorkville filed a Motion to Strike the Motion to Dismiss , alleging that
Hamman Farms was unt imely in responding t o the amended complai1 annd
t, further asserting
that Hamman Farms shou ld be esto pped from maki³nng
ew arguments´ in responding to the new
complaint. Yorkvill¶es motion seeks, as alternative relief, an additional fourteen (14) days in
which to respond to Hamman Farms
¶
Motion to Dismiss, presumably requesting that the fourteen
days begin to run on the date when the Board rules on the Mot ion to Strike. In so doing,
Yorkville effect ively uses a Motion to Strike to seek a total o f 4 to 8 weeks, or more, in w hich to
prepare and file a response to the Motion to Dismiss.
As discussed below, because a Motion to Strike may only be emplo yed to strike a
pleading
, n ot a m oti on
, it cannot be used to strike the motion to dismiss, and is in fact a
1
The Board has the authority to set deadlines, as it did in this case, for the parties to perform
certain acts. The fact that the Board ordered Hamman Farms to answer the amended complaint
by July 6, 2009, and that Hamman Farms filed its Answer and Motion to Dismiss on June 30,
2009 clearly defeats Yorkville
¶s
assertion that the June 30, 2009 filing was untimely.
Electronic Filing - Received, Clerk's Office, July 28, 2009
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70608398v1 890522 66799
procedural nullity. It seems clear that Yorkvill¶s e real purpose in filing a motion to strike a
mot ion was to have one to two months, or, perhaps more, in which to respond to the Motion to
Dismiss. Inasmuch as Yorkvill¶es Motion to Strike a motion is procedurally impermissible, and
was filed for an improper purpose, the Board is urged to deny the motion to strike and the relief
sought therein. In addition, Hamman Farms requests that the Board find, in accordance with
Section 100.500(d), that by failing to file a response to Hamman Farms Motion to Dismiss,
Yorkville has waived its object ion to the mot ion.
ARGUMENT
1.
Hamman Farms
¶
Motion to Dismiss was Necessary to Preserve its Objection
to the Amended Complaint
³Where
an amendment is co mplete in itself and does not refer to o r adopt the prior
pleading, the ear lier pleading ceases to be a part of the re´ ancordd the prior pleading is in effect
then
³abandoned
and withdrawn.
´
Foxcroft Townhome Owners Ass'n v. Hoffman Rosner Corp
.,
96 Ill.2d 150, 154, 449 N.E.2d 125 (1983). Thus, when Yorkville filed its newest amended
complaint in May, all o f its previously tendered complaints we³abre andoned and wit hdrawn´.
Id
. Hamman Farms was then tasked wit h responding to the only operative complaint: the latest
amended co mplaint.
It is well settled that where a defendant (or in this case, a respondent) responds to a
complaint by simply filing an answer, it waives any defect in the pleading.
See Adcock v.
Brakegate, Ltd
., 164 Ill.2d 54, 60, 645 N.E.2d 888, 893, 206 Ill.Dec. 636, 641 (1994).
Accord ingly, it was incumbent upon Hamman Far ms t o preserve its object ions t o the deficiencies
of the newest a mended co mplai±
nt now t he only operative co mplai±
nt by filing a mot ion to
dismiss in order to avoid waiving its right to challenge the defects therein. Thus, Hamman
Electronic Filing - Received, Clerk's Office, July 28, 2009
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70608398v1 890522 66799
Farms had no choice but to move to dismiss the amended complaint, raising all of its arguments
in opposition thereto.
2.
The Doctrine of Estoppel Does Not Apply
Yorkville offers no authority to support its novel theory that Hamman Farms should be
³estopped´
from raising any new arguments concerning Counts I through III of the most recent
amended complaint. Notably, as discussed above, Yorkvi¶s lalemendment of its complaint acted
to extinguish the prior complaint, effectively removing it from the record. Hamman Farms,
therefore, has every right to raise any and all arguments in its response to the only operative
c om pl ai n t.
Yorkville¶s mot ion cites no authorit y and fails to identify what for³m esof
to ppel´ it
thinks shou ld be available to bar Hamman Farms fro m fully responding to t he new complaint,
leaving the Board and the respondent to
³guess´
what it is arguing. Although completely
unsupported arguments do not demand a response, Hamman Farms examines below the
recognized theories of estoppel, none of which apply under the facts in this case.
a.
Collateral Estoppel
If Yorkville seeks to invoke
³collateral
estoppel´
, its argument fails because for the
doctrine of collateral estoppel to apply³t, he issue decided in the prior adjudication must be
identical to the issue in the current action, the party against whom estoppel is being asserted must
have been a party in the prior action, and the prior adjudication must have resulted in a final
j ud gm en t on th e me.ri
Bahr
ts
v. Bartlett Fire Protection Dist.
, 383 Ill.App.3d 68, 76, 889 N.E.2d
760, 766-767, 321 Ill.Dec. 495 (Ill.App.Ct. 2008). Here, there was no final judgment on the
merits, therefore collateral esto ppel is inapplicable.
b.
Judicial Estoppel
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70608398v1 890522 66799
If Yorkville seeks to invoke
³judicial
estoppel´
, its argument similarly fails because for
judicial estoppel to apply, Yorkville would have to be able to show t³h(1)
at: the party being
estopped [had] taken two positions; (2) the two posit ions must be inco nsistent; (3) the posit ions
must have been taken in separate judicial or quasi-judicial proceedings; (4) the party must have
intended for the trier of fact to accept the truth of the facts alleged; and (5) the party must have
succeeded in asserting t he first posit ion and received so me benefit fro´
Pe
m
ople
it.
v. Carey
, 386
Ill.App.3d 254, 269, 898 N.E.2d 1127, 1141, 325 Ill.Dec. 848, 862 (Ill.App.Ct. 2008). Clearly,
again, this theor y does not apply inasmuch as,
inter alia
, Hamman Far ms has not taken
inconsistent posit ions in separate proceedings, and most notably, it did not receive a benefit fro m
asserting
³the
first position.
´
c.
Promissory Estoppel
To establish promissory estoppel, one must prove th³at (1) defendant made an
unambiguous promise to plaint iff, (2) plaint iff relied on such pro mise, (3) plaint iff's reliance was
expected and foreseeable by defendants, and (4) plaintiff relied on the promise to its detriment.
´
Newton Tractor Sales, Inc. v. Kubota Tractor Corp
., 233 Ill.2d 46, 51, 906 N.E.2d 520, 523-524,
329 Ill.Dec. 322, 325 - 326 (2009). Clearly, Yorkville has not relied to its detriment on promises
made by Hamman Farms, thus, promissory estoppel does not bar Hamman Farms
¶
from asserting
its defenses or arguments.
d.
Equitable Estoppel
Because the other forms of estoppel have been eliminated as inapplicable, only equitable
estoppel remains. As the Illinois Supreme Court has explained, however,
³[t]o
establish equitable
estoppel, the party claiming estoppel must demonstrate that: (1) the other person misrepresented
or concealed material facts; (2) the other person knew at the time he or she made the
Electronic Filing - Received, Clerk's Office, July 28, 2009
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70608398v1 890522 66799
representations that they were untrue; (3) the party claiming estoppel did not know that the
representations were untrue when they w ere made and when they were acted upon; (4) the ot her
person intended or reasonably expected that the party claiming estoppel would act upon the
representations; (5) the party claiming estoppel reasonably relied upon the representations in
good fait h to his or her detr iment; and (6) t he party claiming esto ppel would be prejudiced by his
or her reliance on the representations if the other person is permitt ed to deny the truth th´ereof.
Geddes v. Mill Creek Country Club, Inc
., 196 Ill.2d 302, 313-314, 751 N.E.2d 1150, 115, 256
I ll.Dec. 313, 320 (2001). Inasmuch as t his theory is who lly inapplicable to the facts at bar, wit h
not a single element applying, this theory, too, fails to provide the relief sought by Yorkville.
Accord ingly, there is no theory o f estoppel that would bar Hamman Far ms fro m raising
new arguments
±
or indeed, from re-asserting previously asserted arguments
±
as it must do to
preserve its objections to the new pleading and its rights on appeal. There is, accordingly, no
basis for the argument that Hamman Farms should
³bestoe
pped´ from raising addit io na l
arguments concerning the newest amended complaint.
3.
A Motion to Strike a Motion is a Procedural Nullity
A mot ion to strike may be used
³to
challenge the sufficiency o f any pleading filed w it h
the Board.´ 35 Ill. Adm.Code 101.506. A mot ion, however, is not a pleading. Rather, a pleading
³consists
of a party¶s for mal allegations of his claims or defenses´ a, nd a motion is
³an
application to the court for a ruling or an order in a pending case.
´
In re Marriage of Wolff
, 355
Ill.App.3d 403, 407, 822 N.E.2d 596 290 Ill.Dec. 1011, (Ill.App.Ct. 2005) (collecting cases
showing tha t a mot ion is not a pleadi
see
ng);
also KSAC Corp. v. Recycle Free, Inc
., 364
Ill.App.3d 593, 597, 846 N.E.2d 1021, 1025, 301 Ill.Dec. 418, 422 (Ill.App.Ct. 2006).
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70608398v1 890522 66799
Here, the document that Yorkvill¶es mot ion seeks to strike is, in fact, a motion (to
dismiss), not a pleading. Thus, the Motion to Strike is a procedural nullity.
4.
Yorkville
¶
s Motion to Strike was Filed for an Improper Purpose
As observed above, Yorkville presumably filed its frivolous Motion to Strike for the
improper purpose of obta ining an except ionally lo ng extension o f time in which t o respond to the
Motion to Dismiss. Granting the requested relief for this frivolously filed mot ion would reward
Yorkville¶s refusal to recognize and act in accordance with the Board¶s prescribed procedural
rules, including the rule concerning motions for extensions of t ime pursuant to 35 Ill. Adm.Code
101.522.
WHEREFORE, Defendant, HAMMAN FARMS, prays that this Board enter an order
finding the Motion t o Strike is a procedural nullit y, denying t he re lief requested in the Mot ion to
Strike, and, finding that Yorkville has waived its o bject ion to Hamman
¶
FaMr motsion to
Dismiss by failing to file a response, and granting such other and further relief as the Board
deems appropriate.
Dated:
7/28/09
HAMMAN FARMS
By: /s/ Charles F. Helsten
One of Their Attorneys
Charles F. Helsten
Nicola Nelson
Hinshaw & Culbertson LLP
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
Phone: 815-490-4900
Fax: 815-490-4901
George Mueller
Mueller Anderson , P.C.
609 Etna Road
Ottawa, IL 61350
815/431-1500
Electronic Filing - Received, Clerk's Office, July 28, 2009
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70608398v1 890522 66799
AFFIDAVIT OF SERVICE
The undersigned, pursuant to the provisio ns o f Section 1-109 o f t he Illino is Code of Civil
Procedure, hereby under penalt y of perjury under the laws o f the United States of America,
certifies that on July 28, 2009, she caused to be served a copy of the foregoing upon:
Mr. John T. Therriault, Assistant Clerk
Illinois Pollution Control Board
100 W. Randolph, Suite 11-500
Chicago, IL 60601
(via electronic filing)
Thomas G. Gardiner
Michelle M. LaGrotta
GARDINER KOCH & WEISBERG
53 W. Jackson Blvd., Ste. 950
Chicago, IL 60604
via email to:
tgardiner@gkw-law.com
mlagrotta@gkw-law.com
Bradley P. Halloran
Hearing Officer
Illinois Pollution Control Board
James R. Thompson Center, Suite 11-500
100 w. Randolph Street
Chicago, IL 60601
(via email: hallorab@ipcb.state.il.us)
Via electronic filing and/or e-mail delivery.
/s/ Nicola Nelson___________________
N
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PCB No. 08-96
Charles F. Helsten
Nico la A. Nelson
HINSHAW & CULBERTSON
100 Park Avenue
P.O. Box 1389
Rockford, IL 61105-1389
(815) 490-4900
Electronic Filing - Received, Clerk's Office, July 28, 2009
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