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06/01/88 Eugene Mines, v. Olin Corporation


June 1, 1988

EUGENE MINES, PLAINTIFF

v.

OLIN CORPORATION, DEFENDANT (DAVY MCKEE CORPORATION, THIRD-PARTY PLAINTIFF-APPELLANT; MURER ELECTRIC, INC., THIRD-PARTY DEFENDANT-APPELLEE)

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

524 N.E.2d 1203, 171 Ill. App. 3d 246, 121 Ill. Dec. 155 1988.IL.858

Appeal from the Circuit Court of Cook County; the Hon. Willard J. Lassers, Judge, presiding.

APPELLATE Judges:

JUSTICE McNAMARA delivered the opinion of the court. WHITE, P.J., and RIZZI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Third-party plaintiff, Davy McKee Corp., filed a complaint against third-party defendant, Murer Electric, Inc., seeking indemnity and contribution for an injury incurred by a Murer employee, Eugene Mines. After McKee obtained a default judgment against Murer, the trial court subsequently granted the motion to quash service and dismiss the third-party complaint against Murer. McKee appeals from this order, contending that the trial court erred in granting a law firm leave to appear amicus curiae and subsequently granting the motion to quash service and dismiss the third-party complaint against Murer.

In April 1981, Mines filed a complaint against McKee and others for personal injuries resulting from an accident sustained while employed by Murer at the Olin Chemical plant. McKee was responsible for a storm water treatment project on the Olin site. An air reduction project was also in progress at the site.

In an effort to find out about Mines' injury, McKee served a subpoena on William Murer on April 6, 1982, requesting payroll records for Mines and copies of other contracts for work done on either the storm water treatment facility or the air reduction project for Olin. McKee received these documents on November 2, 1982. The records indicated that Mines was injured on the storm water treatment project.

On July 20, 1984, McKee filed a third-party complaint against Murer. Brian Murer, former president of Murer, was served with an alias summons on December 18, 1984. No appearance was filed on behalf of Murer. On March 4, 1985, McKee obtained a default judgment against Murer.

On January 30, 1987, the law firm of McKenna, Storer, Rowe, White & Farrug was granted leave to file its appearance amicus curiae. Thereafter, the McKenna firm brought a motion to quash the summons and dismiss the third-party complaint against Murer arguing that Murer did not have capacity to be sued by reason of section 94 of the Business Corporation Act (Ill. Rev. Stat. 1981, ch. 32, par. 157.94). This act limited to two years the time within which a corporation could be sued after its dissolution. (Ill. Rev. Stat. 1981, ch. 32, par. 157.94.) According to the motion, Murer dissolved as a corporation on December 1, 1980, and therefore McKenna argued that the third-party complaint filed 3 1/2 years after Murer's dissolution was untimely.

The trial court granted McKenna's motion to quash service and dismiss the third-party complaint on August 14, 1987. The trial court denied McKee's motion for reconsideration on September 21, 1987.

McKee's first argument on appeal is that the trial court erred in granting the McKenna firm leave to file an appearance amicus curiae and then allowing it to file a motion to quash service and dismiss the third-party complaint against Murer.

Historically, an amicus curiae is an impartial individual who suggests the interpretation and status of the law, gives information concerning it, and whose function is to advise in order that Justice may be done. (Leigh v. Engle (N.D. Ill. 1982), 535 F. Supp. 418.) By definition, an amicus curiae is not a party to the action, but a friend of the court. As such, the sole function of an amicus is to advise or make suggestions to the court. Fiorito v. Jones (1978), 72 Ill. 2d 73, 377 N.E.2d 1019, citing Bee Chemical Co. v. Service Coatings, Inc. (1969), 116 Ill. App. 2d 217, 253 N.E.2d 512.

In Leigh v. Engle, the trial court denied leave to file a memorandum amicus curiae by the Secretary of Labor in a case involving the Employee Retirement Act. The court denied leave after finding that the memorandum was in reality proffered in favor of the petitioner. The court in Leigh noted that the function of an amicus is to advise in order that Justice may be done, rather than to advocate a point of view so that a cause may be won by one party or another. (Leigh, 535 F. Supp. at 420.) The Leigh court found that the amicus memorandum injected an element of unfairness into the proceedings. The case did not disclose any point of law in regard to which the court was doubtful or mistaken, or concerning which it was in danger of going wrong.

Similarly, in Hale v. First National Bank (1978), 57 Ill. App. 3d 310, 372 N.E.2d 959, the court denied an amicus appearance by the City of Prospect Heights in a suit by property owners for administrative review of a decision of the county zoning board of appeals. In the course of the appeal, the city, as amicus, moved for summary reversal of the trial court's order and for remandment of the cause with directions to enter judgment in favor of the plaintiffs. The court held that the city had exceeded the permissible scope of an amicus, as a friend of the court whose sole function is to advise and make suggestions to the court. There, the amicus sought relief even beyond that sought by the plaintiffs and posited an argument to which certain property owners had no opportunity to respond. Thus, the court held the amicus appearance to be irregular and inappropriate.

The present case is similar to the Leigh case. It is clear that the McKenna firm intended to advocate the position of the now dissolved Murer. The attorney from McKenna admitted that the firm was hired by the insurance company for Murer, and the carrier's interest in having the third-party complaint dismissed is obvious. We believe that the firm's appearance as amicus curiae was an attempt to represent and advocate the position of Murer in the disguise of an amicus. Under these circumstances, we cannot say that the appearance of the McKenna firm was as an impartial party to the action. We do not agree that the motion to quash and dismiss was an attempt to instruct the court on the status or an interpretation of the law or a matter of law in regard to which the court is doubtful or mistaken. Rather, McKenna is arguing a factual matter, the dissolution of Murer, in an attempt to have the complaint against Murer dismissed. Such action on behalf of a party to the lawsuit cannot be allowed under the guise of an amicus curiae.

The amicus ' attempt to distinguish Leigh on the basis that in the present case Murer was not already represented by counsel is not persuasive. Leigh discussed the bounds of permissible amicus action and we believe the action of the McKenna firm is outside these bounds.

We acknowledge, as stated in the Leigh case, that to a certain degree, amicus practice has moved from friendship to partisanship. "The amicus is treated as a potential litigant in future cases, as an ally of one of the parties, or as the representative of an interest not otherwise represented." (Leigh v. Engle, 535 F. Supp. at 422, citing Krislov, The Amicus Curiae Brief: From Friendship to Advocacy, 72 Yale L.J. 694 (1963).) Notably, the Leigh court explained that although this shift in traditional amicus curiae practice may be useful in a reviewing court where, usually, only issues of law are resolved, it is not proper in a trial court. Leigh, 535 F. Supp. at 422.

Even recognizing that an amicus appearance is often an interested party advocating one interpretation of the law over another, we do not believe that was the intention of the McKenna firm here. The McKenna firm was not a potential litigant in a future case, an ally of one of the parties, or the representative of an interest not otherwise represented. The McKenna firm appeared on behalf of Murer and by filing a motion to quash and dismiss, McKenna went beyond the permissible scope of an amicus party.

Based on our holding regarding the amicus appearance of the McKenna firm, we need not address the additional contentions of the parties in the present case.

For the reasons stated, the judgment of the circuit court of Cook County quashing the summons and dismissing the third-party complaint is reversed.

Judgment reversed.

CASE RESOLUTION

Judgment reversed.

19880601

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