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Commonwealth Edison Company v. Mark Munizzo

March 26, 2013


Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Honorable Susan T. O'Leary, Judge, Presiding. Circuit No. 10-SC-11862

The opinion of the court was delivered by: Justice Schmidt

JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices Holdridge and Lytton concurred in the judgment with opinion.


¶ 1 In this case, we must initially decide an issue of first impression: whether the filing of a motion for leave to file a petition for Illinois Supreme Court Rule 137 (eff. Jan. 4, 2013) sanctions with the proposed petition attached tolls the 30-day period for filing a notice of appeal following a final judgment in a small claims case. Plaintiff-counterdefendant, Commonwealth Edison Company (Com Ed), brought this small claims action, alleging defendant-counterplaintiff, Mark Munizzo, was negligent and violated the Illinois Underground Utility Facilities Damage Prevention Act (the Act) (220 ILCS 50/1 et seq. (West 2010)) after a utility line became damaged during excavation of defendant's property. Munizzo counterclaimed against Com Ed, alleging negligence and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (the Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2010)). Prior to trial, the circuit court granted Com Ed's motion in limine barring any discussion of the Consumer Fraud Act. Following a bench trial, the circuit court of Will County ruled against Com Ed on its claims and against Munizzo on his counterclaims. Munizzo filed a motion for leave to file a petition for sanctions, which the trial court found untimely and without merit. Munizzo appeals, claiming: (1) the trial court erred in ruling his motion for sanctions was untimely and, in the alternative, the trial court erred in ruling the motion for sanctions was without merit; and (2) the trial court erred in granting Com Ed's motion in limine,which effectively dismissed Munizzo's claim under the Consumer Fraud Act. Com Ed counters that we have no jurisdiction to entertain this appeal.


¶ 3 Mark Munizzo purchased property in Frankfort, Illinois, which he planned to convert into an Italian gelateria. This dispute arises from excavation work which took place on that property. During the excavation, a power line was damaged, causing a fuse within one of Com Ed's transformers to blow and resulting in an electrical outage to the neighborhood. Com Ed repaired the damage, then brought this suit against Munizzo to recover $7,528.81 in damages. Munizzo counterclaimed, alleging Com Ed violated the Consumer Fraud Act (815 ILCS 505/2 (West 2010)) and further that Com Ed negligently "marked the location of underground facilities" on plaintiff's property.

¶ 4 Prior to trial, Com Ed filed a motion in limine to bar arguments alluding to consumer fraud. The motion claims Munizzo is not a "consumer" within the meaning of the Consumer Fraud Act. 815 ILCS 505/1(e) (West 2010). The motion further argues that the Public Utilities Act (220 ILCS 5/10-101 et seq. (West 2010)) mandates any action seeking to resolve claims of excess charges by Com Ed be initiated in the Illinois Commerce Commission. The trial court granted Com Ed's motion.

¶ 5 Evidence indicated that prior to excavating, Munizzo contacted the Joint Utility Locating Information for Excavators (JULIE), a statutorily created, not-for-profit corporation that acts as a message-handling notification service for underground facility owners and takes information about planned excavations. JULIE then distributes the information to facility owners. After being notified by JULIE, Com Ed sent a representative to the property. The representative marked the property with red spray paint and red flags to delineate the approximate location of Com Ed's underground facilities.

¶ 6 Munizzo testified that he did not read the description of an excavator's obligations under the Act before excavation and was unaware of the meaning of the terms "tolerance zone" or "approximate location" as defined by the Act. 220 ILCS 50/2.7, 2.8 (West 2010). Munizzo stated that the only portion of the Act he was "familiar with" was what "they tell you about."

Munizzo noted he was informed to stay clear of "the 18 inches on either side of a marked line." Munizzo noted that he undertook the excavation work himself along with "buddies of [his] who were helping [him]." Munizzo noted one of his friends specialized in excavating around transformers; this friend never suggested asking Com Ed to turn the power to the transformer off prior to excavation.

¶ 7 Munizzo and his friends began excavation by digging a trench between the transformer and the building on the property. The workers used a dull screwdriver to loosen the dirt and a trowel to remove the dirt. They then removed the loose dirt from the trench within six to seven feet of the transformer. Munizzo noted the workers also used a shovel to scoop dirt out of the trench, but claimed that the shovel was not used for digging near the transformer.

¶ 8 During excavation, one of Munizzo's workers unearthed an underground electric line. As workers dug near the transformer, they heard a "pop" which they later learned was caused by damage to an underground power line. The damage caused a short circuit and an electrical outage to businesses and houses in the immediate area.

¶ 9 After the outage, Munizzo called JULIE to report the incident. JULIE recorded the phone call. During the conversation, the JULIE representative asked Munizzo if he uncovered a marked line. He answered in the affirmative, noting that he had, in fact, "uncovered a marked line." During his trial testimony, he claimed he "was referring to the ground wire" and not a "hot wire." He acknowledged that he never used the term "ground wire" while on the phone with the JULIE representative following the outage. He did not use the term "ground wire" as he "had no idea what this wire was" when he was on the phone. Munizzo further testified at trial that prior to excavation, he did not know whether power flowed from east or west to the transformer. Munizzo could not identify in which direction the power flowed. Munizzo stated that Com Ed sent a "troubleman" out to the site after his call. Munizzo claimed the troubleman stated, "well, this is obviously mismarked" and that "you are lucky somebody didn't get smoked."

¶ 10 Com Ed repaired the damage later that day. Afterwards, Munizzo received a bill from Com Ed and "was dumbfounded by the number" so he requested an itemized "breakdown of the costs." He claimed to have not seen the itemized breakdown until the first day of trial.

¶ 11 After the incident, Com Ed's liability representative, Diane Harris, conducted an investigation. She reviewed photographs of the scene as well as Munizzo's call in which he indicated he damaged a "marked line." She noted that one of the markings indicated the presence of a transformer. The locations of transformers are marked with an "H" and a photo of the area indicated to Harris that "part of the H appears to be chopped off." Based on the results of Ms. Harris's investigation, Com Ed issued an invoice to Munizzo for the costs of repairing the damaged caused to Com Ed's facilities. Munizzo did not pay the amount claimed.

¶ 12 Witness Steven Partain testified that he was one of Munizzo's friends who helped during the excavation. He has 30 years of construction experience, including "a lot of masonry experience, concrete experience, a lot of framing, trim work." He noted that damage to Com Ed's line occurred approximately four feet from the transformer.

¶ 13 Ultimately, on December 13, 2011, the trial court entered judgment against Com Ed on its claim and against Munizzo on his counterclaim, finding that neither party had met its burden of proof. Twenty-nine days later, on January 11, 2012, Munizzo filed a motion for leave to file a motion for sanctions, attaching his motion for sanctions. The motion for leave to file a motion for sanctions acknowledges that Illinois Supreme Court Rule 287(b) (eff. Aug. 1, 1992) requires litigants to obtain leave of court prior to filing motions in small claims cases and that any "hearing to obtain such leave will extend past Supreme Court Rule 137's filing deadline of 30 days after the entry of final judgment."

ΒΆ 14 Nevertheless, Munizzo claimed good cause existed under Illinois Supreme Court Rule 183 to extend the time for filing his motion for sanctions. The motion for sanctions, and memorandum in support thereof, claims Com Ed and its counsel violated Illinois Supreme Court Rule 137 (eff. Jan. 4, 2013). In these documents, Munizzo argues that "undisputed trial testimony showed not only that Com Ed failed to properly mark the excavation site, but also ...

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