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People v. NL Industries Inc.

June 02, 1998

THE PEOPLE OF THE STATE OF ILLINOIS AND THE ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, PLAINTIFFS-APPELLANTS,
v.
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 opinion of the court was delivered by: Justice Cousins

APPEAL FROM THE CIRCUIT COURT COOK COUNTY.

No. 88 CH 11618

THE HONORABLE, LESTER FOREMAN, JUDGE PRESIDING.

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.

ANALYS ...


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