Price v. Philip Morris, Inc. , 2014 IL App (5th) 130017 ( 2014 )

NOTICE
2014 IL App (5th) 130017
Decision filed 04/29/14,
corrected 05/07/14. The text of NO. 5-13-0017
this decision may be changed
or corrected prior to the filing of
a Petition for Rehearing or the IN THE
disposition of the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
SHARON PRICE and MICHAEL FRUTH, ) Appeal from the
Individually and on Behalf of All Others Similarly
) Circuit Court of
Situated, ) Madison County.
)
Plaintiffs-Appellants, )
)
v. ) No. 00-L-112
)
PHILIP MORRIS, INCORPORATED, ) Honorable
) Dennis R. Ruth,
Defendant-Appellee. ) Judge, presiding.
________________________________________________________________________
JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
Justices Stewart and Schwarm1 concurred in the judgment and opinion.
OPINION
¶1 The plaintiffs appeal an order denying their petition for relief from judgment (735
ILCS 5/2-1401 (West 2006)). The petition was filed under an unusual set of procedural
circumstances. The plaintiffs filed a lawsuit alleging that the defendant's use of the terms
"light" and "low tar" in advertising its cigarettes constituted fraud. The plaintiffs
1
Justice Wexstten was originally assigned to participate in this case. Justice
Schwarm was substituted on the panel subsequent to Justice Wexstten's retirement and
has read the briefs and listened to the tape of oral argument.
1
prevailed at trial; however, the judgment was reversed on appeal on the basis of a
statutory provision barring consumer fraud actions where the challenged conduct was
specifically authorized by federal regulations (see 815 ILCS 505/10b(1) (West 2000)).
Price v. Philip Morris, Inc., No. 5-09-0089 (Feb. 24, 2011) (unpublished order under
Supreme Court Rule 23). The matter was remanded to the trial court with directions to
dismiss the complaint. The plaintiffs subsequently filed a section 2-1401 of the Code of
Civil Procedure (735 ILCS 5/2-1401 (West 2006)) petition for relief from judgment,
alleging that (1) evidence unavailable to the plaintiffs at trial showed that the Federal
Trade Commission never authorized use of the terms "light" and "low tar" by the
defendant, and (2) had the plaintiffs been able to present this evidence at trial, the result
on appeal would have been different. In ruling on the petition, the trial court found that
the plaintiffs (1) had a meritorious claim, and (2) acted with due diligence both in
attempting to present that claim at trial and in filing the section 2-1401 petition as soon as
possible. However, the court further determined that it was "equally likely" that the
supreme court would have reversed on other grounds had it ruled differently on the
question of section 10b(1). In this appeal, the plaintiffs argue that the court
impermissibly exceeded the scope of section 2-1401 review but ruled correctly on all
other issues. We reverse.
¶2 The plaintiffs, Sharon Price and Michael Fruth, filed a class action law suit
alleging that the defendant, Philip Morris, Inc., violated the Illinois Consumer Fraud and
Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 to 12 (West
2000)) by advertising its cigarettes as "light" or "low tar." The defendant raised 27
2
affirmative defenses, including an exclusion found in section 10b(1) of the Consumer
Fraud Act. That statute provides that the Consumer Fraud Act is inapplicable to claims
involving conduct that has been "specifically authorized" by any federal regulatory body.
815 ILCS 505/10b(1) (West 2000).
¶3 The defendant argued that section 10b(1) applied in this case because the Federal
Trade Commission (FTC) specifically authorized use of the terms "light" and "low tar" in
consent decrees entered in enforcement actions involving other cigarette manufacturers.
In particular, the defendant pointed to a 1971 consent decree entered in an enforcement
action against American Brands and a 1995 consent decree involving the American
Tobacco Company. Both consent decrees permitted the manufacturers to use the terms in
their advertising with certain conditions and limitations. At issue in this case was
whether these consent decrees could be deemed regulatory activity. The defendant
presented the testimony of an expert witness who stated that cigarette manufacturers
relied on consent decrees to tell them what claims they could make in their advertising.
The trial court rejected the defendant's contention, finding that "no regulatory body has
ever required (or even specifically approved) the use of these terms by Philip Morris."
¶4 On March 21, 2003, the court entered a $10.1 billion judgment in favor of the
plaintiffs. On December 15, 2005, the Supreme Court of Illinois reversed that judgment,
finding that section 10b(1) of the Consumer Fraud Act barred the plaintiffs' action. Price
v. Philip Morris, Inc., 219 Ill. 2d 182, 258, 848 N.E.2d 1, 46 (2005) (Price I). The
supreme court found that Philip Morris's actions were specifically authorized by the FTC
through a process of "informal regulatory activity," including the use of consent decrees.
3
Price I, 219 Ill. 2d at 258, 848 N.E.2d at 46. The court thus found section 10b(1)
applicable, reversed the judgment, and remanded the matter to the trial court with
directions to dismiss the plaintiffs' complaint. Price I, 219 Ill. 2d at 274, 848 N.E.2d at
55.
¶5 The plaintiffs filed a petition for rehearing, which the Illinois Supreme Court
denied on May 20, 2006. They then filed a petition for a writ of certiorari with the
United States Supreme Court. On November 27, 2006, the Court denied their petition
and declined to hear the appeal. The mandate of the Illinois Supreme Court issued on
December 5, 2006. Pursuant to that mandate, the trial court entered an order dismissing
the plaintiffs' action with prejudice on December 18, 2006.
¶6 A key component of our Illinois Supreme Court's holding was its finding that the
FTC itself intended its consent decrees "to provide guidance to the entire cigarette
industry." Price I, 219 Ill. 2d at 258, 848 N.E.2d at 46. Subsequently, two statements
issued by the FTC cast doubt on the factual accuracy of this finding. In June 2008, the
FTC filed an amicus brief in an unrelated case before the United States Supreme Court.
That brief indicated that the FTC never intended to authorize the use of these terms.
Altria Group, Inc. v. Good, 555 U.S. 70, 87 (2008) (emphasizing that the federal
government in its amicus brief "disavows any policy authorizing the use of 'light' and
'low tar' descriptors"). The Supreme Court issued its decision in Altria Group on
December 15, 2008.
¶7 Meanwhile, on December 8, 2008, the FTC issued a rescission of guidance. In so
doing, the FTC rescinded a 1966 guidance concerning representations of tar and nicotine
4
content that cigarette manufacturers could make in advertising and cigarette packaging.
Rescission of FTC Guidance Concerning the Cambridge Filter Method, 73 Fed. Reg.
74,500 (Dec. 8, 2008) (hereinafter, Rescission of FTC Guidance). The 1966 guidance
"did not require companies to state the tar and nicotine yields of their cigarettes"; it
merely "set forth the type of substantiation" that would be "adequate" to comply with
FTC regulations if companies chose to make such representations. (Emphasis in
original.) Rescission of FTC Guidance, 73 Fed. Reg. at 74,501. In addition, the 1966
guidance prohibited manufacturers from making "collateral representations" about any
reduction in the health hazards associated with smoking. Rescission of FTC Guidance,
73 Fed. Reg. at 74,501. Most significantly for purposes of this appeal, the 1966 guidance
did not address the use of descriptors such as "light" and "low tar." In the 2008 rescission
of guidance, the FTC specifically clarified this point, stating that the agency "has neither
defined those terms, nor provided guidance or authorization as to the use of descriptors."
Rescission of FTC Guidance, 73 Fed. Reg. at 74,504.
¶8 On December 18, 2008, the plaintiffs filed their petition for relief from judgment.
The trial court granted the defendant's motion to dismiss, finding that the petition was not
timely filed within two years of the Illinois Supreme Court's decision (see 735 ILCS 5/2-
1401(c) (West 2006)). Price v. Philip Morris, Inc., No. 5-09-0089, order at 4 (Feb. 24,
2011) (unpublished order under Supreme Court Rule 23) (Price II). This court reversed
that ruling, finding that the statutory time limit began to run when the trial court
dismissed the plaintiffs' law suit. Price II, No. 5-09-0089, order at 10. We remanded the
5
matter to the trial court for further proceedings so the court could consider the merits of
the plaintiffs' petition. Price II, No. 5-09-0089, order at 11.
¶9 On remand, the plaintiffs filed an amended petition for relief from judgment.
They alleged that during the original trial in this matter, they were unable to present
evidence of the FTC's stated position with respect to the use of descriptors such as "light"
and "low tar." The plaintiffs further alleged that, had they been able to present this
evidence, the supreme court most likely would have ruled differently on the defendant's
section 10b(1) defense.
¶ 10 After considering the documentary evidence and arguments presented by both
parties, the trial court entered a detailed written order in which it made the following
findings: First, the court found that the plaintiffs were diligent in their efforts to present
their claim at trial, including evidence of the FTC's position regarding use of the terms
"light" and "low tar." In reaching this conclusion, the court emphasized that (1) FTC
commissioners declined the plaintiffs' request to file an amicus brief, and (2) the
plaintiffs could not legally compel FTC testimony in this state court litigation (see United
States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951)). The court then noted that the
defendant did not contend that the plaintiffs failed to exercise due diligence in filing their
section 2-1401 petition as early as possible.
¶ 11 Next, the trial court found that the plaintiffs demonstrated that they had a
meritorious claim in the underlying litigation. The court framed the question before it as
"whether it is more probably true than not that, had the FTC position been presented in
the record on appeal, the Illinois Supreme Court would not have ruled in Defendant's
6
favor on its affirmative defense that Plaintiffs' claim was exempt pursuant to Section
10b(1) of the Consumer Fraud Act." In answering this question in the affirmative, the
court noted that the defendant acknowledged in a motion raising the section 10b(1)
defense that resolution of this question " 'revolves around a single fact: whether the
matters about which plaintiffs complain *** are subject to federal regulation and
control.' " The court then found that "The FTC in its brief in Altria Group answered that
factual question [by] stating [that] it neither required nor authorized" the defendant's use
of the "light" and "low tar" descriptors.
¶ 12 Finally, the trial court considered whether a different ruling on the question of the
section 10b(1) exemption would have been outcome-determinative before the Illinois
Supreme Court. This inquiry was based on the fact that the supreme court declined to
consider other issues raised by the defendant in its initial appeal. See Price I, 219 Ill. 2d
at 271, 848 N.E.2d at 53. In dicta in the opinion of the court, Justice Garman expressed
"grave reservations" about two of those issues–the propriety of class certification and the
calculation of damages. Price I, 219 Ill. 2d at 271, 848 N.E.2d at 53. In a special
concurrence, Justice Karmeier, joined by Justice Fitzgerald, concluded that the plaintiffs'
consumer fraud claim failed because the "plaintiffs failed to establish that they sustained
actual damages." Price I, 219 Ill. 2d at 275, 848 N.E.2d at 55 (Karmeier, J., specially
concurring, joined by Fitzgerald, J.). Justices Kilbride and Freeman each filed dissents in
which they rejected both of these grounds for reversal. Price I, 219 Ill. 2d at 285-328,
848 N.E.2d at 60-84 (Freeman, J., dissenting); Price I, 219 Ill. 2d at 328-37, 848 N.E.2d
at 84-89 (Kilbride, J., dissenting).
7
¶ 13 In ruling on the petition for relief from judgment, the trial court pointed to these
statements and opined that it was "equally as likely that the Illinois Supreme Court would
find for Defendant on the damages issue." (Emphasis in original.) The trial court
reiterated that the plaintiffs had the burden of proving that "it is more probably true that
they would prevail," and explained that they failed to meet this burden in the face of the
court's finding that it was equally likely that the defendant would have prevailed had the
supreme court ruled differently on the section 10b(1) exemption. The trial court thus
denied the plaintiffs' section 2-1401 petition. This appeal followed.
¶ 14 A petition for relief from judgment allows a party to bring to the attention of the
trial court factual matters that would have prevented the court from entering the judgment
had those matters been presented to the court prior to entry of the judgment. Juszczyk v.
Flores, 334 Ill. App. 3d 122, 126, 777 N.E.2d 454, 458 (2002). Although a section 2-
1401 petition is generally not an appropriate avenue for a litigant to seek relief from
errors of law (Klose v. Mende, 378 Ill. App. 3d 942, 951, 882 N.E.2d 703, 712 (2008)),
the statute does not expressly preclude such relief (People v. Lawton, 212 Ill. 2d 285,
297, 818 N.E.2d 326, 334 (2004)).
¶ 15 To prevail, the petitioner must demonstrate by a preponderance of the evidence
that (1) a meritorious claim or defense exists, (2) the petitioner exercised due diligence in
attempting to present that claim or defense at trial in the original litigation, and (3) the
petitioner exercised due diligence in filing the petition as early as possible. Juszczyk, 334
Ill. App. 3d at 126-27, 777 N.E.2d at 458. Our review is de novo where, as here, the trial
court rules on a section 2-1401 petition without an evidentiary hearing. S.I. Securities v.
8
Powless, 403 Ill. App. 3d 426, 439-40, 934 N.E.2d 1, 11-12 (2010) (citing People v.
Vincent, 226 Ill. 2d 1, 15-17 & 17 n.5, 871 N.E.2d 17, 27-28 & 28 n.5 (2007)).
¶ 16 As previously discussed, the defendant did not argue before the trial court that the
plaintiffs failed to exercise due diligence in bringing their petition as early as possible.
The defendant likewise does not raise this argument on appeal. Thus, we need not
address this question. The defendant did argue, however, that the plaintiffs (1) did not
exercise due diligence in attempting to bring their claim in the original trial in this matter,
and (2) failed to demonstrate the existence of a meritorious claim. The defendant
continues to raise these arguments on appeal. As we discussed earlier, the trial court
ruled in the plaintiffs' favor on both of these points. On appeal, the plaintiffs argue that
(1) these rulings were correct, but (2) the trial court erred in exceeding the scope of
section 2-1401 review by finding that the supreme court would have reversed the
judgment on other grounds. In addition, the plaintiffs argue that this court should
reinstate the $10.1 billion judgment if we reverse, while the defendant contends that only
the supreme court has the authority to reinstate the original judgment. We consider these
arguments in turn.
¶ 17 The plaintiffs first argue that the trial court correctly found that they exercised due
diligence in attempting to present their claim to the trial court in the original trial in this
matter. We note that the plaintiffs actually did present the claim at trial. That is, they
argued to the trial court that the FTC never authorized the use of the terms "light" and
"low tar" in cigarette advertising by the cigarette industry as a whole or by the defendant
in particular. However, they were not able to present the evidence of the FTC's stated
9
position that it never authorized use of the terms. The plaintiffs contend that they acted
diligently under the circumstances.
¶ 18 In support of its argument to the contrary, the defendant points out that the
plaintiffs admitted that they did not attempt to involve the FTC in the litigation until they
filed a petition for rehearing with the Illinois Supreme Court. As such, the defendant
contends, the plaintiffs did not do everything reasonably possible to obtain evidence of
the FTC's stated position during the original litigation in this matter. We agree with the
plaintiffs.
¶ 19 There is no dispute that the plaintiffs first attempted to involve the FTC in this
litigation in January 2006, after the Illinois Supreme Court reversed the decision below.
At that time, they retained David Medine, a former FTC attorney. Medine stated in an
affidavit that he met with FTC commissioners, who declined his request to file an amicus
brief in this matter. According to Medine, the commissioners believed that they needed
to make "a unanimous statement" regarding the FTC position on the use of the "light" and
"low tar" descriptors, and they did not believe they could come to an agreement as to the
precise wording of that statement before the filing deadline.
¶ 20 The defendant argues that because the plaintiffs did not take this step sooner, they
did not act diligently in attempting to present the FTC's own statement of its position in
the original litigation in this matter. We find this argument to be without merit. What
constitutes due diligence depends on all of the particular circumstances of the case.
Hirsch v. Optima, Inc., 397 Ill. App. 3d 102, 113, 920 N.E.2d 547, 558 (2009).
10
¶ 21 Under the facts and circumstances of this case, it defies logic to suggest that due
diligence requires litigants in a state court proceeding to seek the input of a federal
agency. David Medine noted in his affidavit that he approached the commissioners to
request their input in the plaintiffs' petition for rehearing before the Illinois Supreme
Court and/or their petition for a writ of certiorari to the United States Supreme Court.
He stated that he attempted to persuade the commissioners that their input would help
resolve the issues in a way that would be beneficial to the FTC. As noted previously,
they declined Medine's request due to time constraints. It is unclear from his affidavit
when he made this request. We note, however, that Medine's argument to the
commissioners would likely be far less persuasive in the context of state court
proceedings than in the context of an appeal to the United States Supreme Court. This is
because a definitive statement from the FTC regarding its position would have far less
reach if made in a state court proceeding. We find that the trial court correctly ruled that
the plaintiffs exercised due diligence under the circumstances.
¶ 22 The plaintiffs next contend that the trial court correctly found that they met their
burden of demonstrating that they had a meritorious claim or defense. They contend that
the supreme court would have ruled differently on the question of the section 10b(1)
exemption had they been able to present evidence that the FTC itself denied ever
authorizing the defendant's use of the relevant descriptors. The defendant, by contrast,
argues that section 2-1401 does not provide an avenue of relief for the plaintiffs because
the evidence at issue did not exist at the time of trial.
11
¶ 23 In response, the plaintiffs contend that, while the evidence at issue did not exist at
the time of the original trial, the factual matter they needed it to prove did. That is,
neither the FTC amicus brief filed in Altria Group nor the 2008 rescission of guidance
had been written when this case was originally tried; however, those pieces of evidence
related to a factual matter that did exist at that time–the FTC's position on the use of the
descriptors "light" and "low tar" in cigarette advertising before the plaintiffs filed their
complaint. The plaintiffs thus argue that the evidence at issue was properly before the
court in proceedings on a petition for relief from judgment. We agree with the plaintiffs.
¶ 24 The defendant bases its argument to the contrary on People v. Haynes, 192 Ill. 2d
437, 737 N.E.2d 169 (2000). At issue there was a trial court's finding that a criminal
defendant was fit to stand trial. The defendant's section 2-1401 petition alleged that had
he been able to present additional evidence of his mental illness at his fitness hearing, the
trial court would not have found him fit to stand trial and, as a result, he would not have
been convicted of murder and sentenced to death. Haynes, 192 Ill. 2d at 461, 737 N.E.2d
at 183. The additional evidence consisted of (1) the affidavit of a psychiatrist who treated
the defendant in prison and diagnosed him as suffering from a mental illness that caused
delusional thinking, and (2) the affidavit of a neuropharmacologist who opined that the
defendant's delusional thinking could be controlled with medication at a dosage that was
higher than he was receiving at the time of the fitness hearing. Haynes, 192 Ill. 2d at
461-62, 737 N.E.2d at 183.
¶ 25 In finding that this evidence did not provide a basis for section 2-1401 relief, the
court stated that as "a general rule," relief is not available on the basis of matters " 'which
12
arise subsequent' " to the challenged judgment. (Emphasis added.) Haynes, 192 Ill. 2d at
463, 737 N.E.2d at 183 (quoting Russell v. Klein, 58 Ill. 2d 220, 225, 317 N.E.2d 556,
559 (1974)). As the defendant points out, the court did note that the evidence at issue–the
affidavits and proffered testimony of the two experts–"did not exist at the time of [the]
defendant's fitness hearing" and, as such, "could not have been presented to the trial
court" at that time. Haynes, 192 Ill. 2d at 463, 737 N.E.2d at 184. However, the court
found it more significant that the psychiatrist "gives no opinion as to [the] defendant's
fitness for trial" during the relevant time frame, and that both experts based their opinions
on factors that arose after the defendant's conviction and sentencing. Haynes, 192 Ill. 2d
at 463, 737 N.E.2d at 184. In other words, the Haynes defendant was not entitled to relief
from judgment because he was attempting to present evidence related to facts and
circumstances that developed after he was found fit to stand trial. Here, as previously
discussed, the amicus brief in Altria Group and the rescission of guidance related to a
factual matter that existed prior to the original trial. We find the Haynes case
distinguishable on this basis.
¶ 26 A far more analogous scenario occurred in Department of Conservation v.
Cipriani, 202 Ill. App. 3d 986, 561 N.E.2d 739 (1990). There, the Department of
Conservation initiated proceedings to acquire property owned by the defendants via
eminent domain. Cipriani, 202 Ill. App. 3d at 988, 561 N.E.2d at 740. A key disputed
issue in the original trial was the value of the defendants' property. Cipriani, 202 Ill.
App. 3d at 989, 561 N.E.2d at 741. Witnesses for the Department of Conservation relied
on flood maps created by the Federal Emergency Management Agency (FEMA) for a
13
flood insurance survey. Those maps showed that the defendants' property was in a flood
plain and, as such, no one could build on it. This, the witnesses opined, adversely
impacted the value of the defendants' property. Cipriani, 202 Ill. App. 3d at 988, 561
N.E.2d at 740. The defendants offered the testimony of an expert witness who opined
that the FEMA flood maps were wrong. Cipriani, 202 Ill. App. 3d at 988-89, 561 N.E.2d
at 740. However, the jury agreed with the Department of Conservation and awarded the
defendants compensation in an amount that was "significantly" lower than the amount
they sought as the reasonable value of their property. Cipriani, 202 Ill. App. 3d at 989,
561 N.E.2d at 741.
¶ 27 Subsequently, FEMA issued a "letter of map revision." The letter explained that
the flood maps and study at issue in the original eminent domain proceedings failed to
exclude runoff from a nearby landfill. Cipriani, 202 Ill. App. 3d at 989, 561 N.E.2d at
741. As such, the letter explained, the maps and study did not accurately " 'reflect the
conditions that existed at the time of the study.' " Cipriani, 202 Ill. App. 3d at 989, 561
N.E.2d at 741. The defendants filed a section 2-1401 petition, contending that the letter
of map revision demonstrated that the evidence relied upon at trial to determine the value
of their property was not accurate. Cipriani, 202 Ill. App. 3d at 989, 561 N.E.2d at 741.
The trial court dismissed the petition without findings. Cipriani, 202 Ill. App. 3d at 990,
561 N.E.2d at 741.
¶ 28 On appeal, the Department of Conservation argued, much as the defendant argues
here, that the letter of map revision could not provide a proper basis for section 2-1401
relief because it was issued several years after the judgment was entered. Cipriani, 202
14
Ill. App. 3d at 991, 561 N.E.2d at 742. In rejecting this argument, the Cipriani court
noted that the rule cited by the Department was only a general rule. Cipriani, 202 Ill.
App. 3d at 991-92, 561 N.E.2d at 742. Moreover, the court went on to explain that while
the letter of map revision did not exist at the time of the original trial, it was crucial
evidence related to the condition and value of the defendants' property at the relevant
time. Cipriani, 202 Ill. App. 3d at 992, 561 N.E.2d at 742-43. Similarly, in the instant
case, the amicus brief in Altria Group and the rescission of guidance related to the FTC
policy concerning descriptors such as "light" and "low tar" during the relevant time
period.
¶ 29 The defendant further contends that the evidence showed that the FTC changed its
position. We disagree. It is true that the rescission of guidance represented a change in
the FTC's policy regarding a somewhat related matter–that is, the FTC no longer
endorsed a method of testing tar and nicotine yields called the "Cambridge Filter
Method." Rescission of FTC Guidance, 73 Fed. Reg. at 74,503 (indicating that
advertisers "should no longer use *** terms or phrases that state or imply the
Commission's approval or endorsement of the Cambridge Filter method"). However, the
FTC specifically declined to change its position regarding the use of descriptors such as
"light" and "low tar." Rescission of FTC Guidance, 73 Fed. Reg. at 74,504. As noted
previously, the FTC explicitly stated that it had never authorized or defined those terms.
Rescission of FTC Guidance, 73 Fed. Reg. at 74,504. Moreover, after declining "the
invitation to initiate a proceeding that would prohibit all use of descriptors" such as those
at issue in this case, the FTC went on to state that "any continued use of descriptors is
15
subject to the FTC Act's proscription against deceptive acts and practices." Rescission of
FTC Guidance, 73 Fed. Reg. at 74,504.
¶ 30 Finally, the plaintiffs argue that the court erred by exceeding the scope of section
2-1401 review. We agree.
¶ 31 In support of their position, the plaintiffs cite to Paul v. Gerald Adelman &
Associates, Ltd., 223 Ill. 2d 85, 858 N.E.2d 1 (2006). There, the supreme court rejected
an argument that the trial court erred in refusing to consider issues that were not resolved
by the trial court when it rendered the original judgment. The defendant argues that Paul
is not analogous to the instant case because it involved a dismissal for want of
prosecution where the original judgment did not include any rulings on the merits. The
defendant points us to Doctor's Associates, Inc. v. Duree, 319 Ill. App. 3d 1032, 745
N.E.2d 1270 (2001), and People v. Haynes, arguing that those cases are more analogous
to the case before us. In both of those cases, appellate courts found denials of section 2-
1401 petitions to be appropriate where the courts found that the unavailable evidence
would not have changed the outcome of the original actions. We note that, due to the
unique procedural history of this case, it is difficult to find cases that are precisely
analogous to the matter at hand. We find both cases cited by the defendant to be
distinguishable. While we do not find the Paul case, cited by the plaintiffs, to be
precisely analogous to the case before us, we do find it relevant and instructive.
¶ 32 Haynes, as previously discussed, involved a petition for relief from judgment in a
criminal case where the defendant alleged he was unfit to stand trial. The court held a
fitness hearing, at which five different expert witnesses testified that the defendant
16
suffered from a mental illness, as a result of which he exhibited delusional thinking.
Haynes, 192 Ill. 2d at 463-64, 737 N.E.2d at 184. The first of those experts did not offer
an opinion on the defendant's fitness to stand trial. Haynes, 192 Ill. 2d at 450, 737
N.E.2d at 177. The second concluded that the defendant's delusions rendered him
unwilling–though not necessarily unable–to cooperate with defense counsel in his own
defense. Haynes, 192 Ill. 2d at 450, 737 N.E.2d at 177. The third defense expert testified
that he did not feel qualified to offer an opinion regarding the defendant's fitness to stand
trial. Haynes, 192 Ill. 2d at 451, 737 N.E.2d at 177-78.
¶ 33 The defendant's fourth expert concluded that the defendant was able to understand
the nature of the charges, but was unable to assist counsel in his own defense. Haynes,
192 Ill. 2d at 452-53, 737 N.E.2d at 178. The final defense expert likewise testified that
the defendant was unable to cooperate with counsel and therefore not fit to stand trial.
Haynes, 192 Ill. 2d at 455, 737 N.E.2d at 179. The court found the defendant fit to stand
trial (Haynes, 192 Ill. 2d at 456, 737 N.E.2d at 180), and he was subsequently convicted
of murder and sentenced to death (Haynes, 192 Ill. 2d at 457, 737 N.E.2d at 180-81).
¶ 34 As discussed earlier, the defendant later filed a petition for relief from judgment
on the basis of two expert opinions rendered subsequent to his conviction and sentence.
Haynes, 192 Ill. 2d at 461-62, 737 N.E.2d at 183. As we also discussed previously, the
court found that this evidence was not the proper basis for a section 2-1401 petition
because it related to matters that arose subsequent to the judgment. Haynes, 192 Ill. 2d at
463, 737 N.E.2d at 184. In dicta, the Haynes court noted that the defendant also "failed
to establish that this evidence would have changed the outcome of the fitness hearing."
17
Haynes, 192 Ill. 2d at 463, 737 N.E.2d at 184. The court pointed to the testimony of the
five expert witnesses and explained that it was unlikely that the testimony of an
additional psychiatrist regarding his "similar findings would have altered the outcome of
the proceedings." Haynes, 192 Ill. 2d at 464, 737 N.E.2d at 184. Contrary to the
defendant's argument here, the Haynes court did not consider a wholly unresolved issue.
As such, we find no support there for the defendant's position here.
¶ 35 The underlying litigation involved in Duree was a contract action filed in a Kansas
state court. The plaintiff, a franchisor of Subway sandwich shops, sued two of its
franchisees to recover funds owed under the franchise agreement. Duree, 319 Ill. App.
3d at 1036, 745 N.E.2d at 1275. The franchisees were represented by David Duree, an
Illinois attorney. Duree filed several counterclaims, including a claim that the plaintiff
fraudulently induced the franchisees to purchase their Subway franchise. Duree, 319 Ill.
App. 3d at 1036, 745 N.E.2d at 1275. In support of this claim, Duree hired an accountant
who prepared an amended tax return for the defendants' store. The amended return,
which showed an operating loss, was based on bank records for the defendants' shop
rather than the more accurate figures contained in their weekly sales reports. Duree, 319
Ill. App. 3d at 1036-37, 745 N.E.2d at 1275.
¶ 36 The Kansas trial court granted summary judgment in favor of the plaintiff on the
counterclaim. Duree, 319 Ill. App. 3d at 1037, 745 N.E.2d at 1275. The plaintiff then
filed a motion for sanctions against Duree, alleging that he filed the counterclaim in bad
faith without any basis in fact. Duree, 319 Ill. App. 3d at 1037, 745 N.E.2d at 1275-76.
The trial court granted that motion. In a detailed written order, the trial judge found that
18
the amended tax return prepared by Duree's accountant "was deliberately falsified and
manufactured for the sole purpose of supporting the counterclaim." Duree, 319 Ill. App.
3d at 1037, 745 N.E.2d at 1276. She also highlighted "numerous [additional] gaps and
deficiencies" in the evidence Duree presented in support of the counterclaim. Duree, 319
Ill. App. 3d at 1038, 745 N.E.2d at 1277 (citing Subway Restaurants, Inc. v. Kessler, 970
P.2d 526, 534 (Kan. 1998)). The court further found that Duree violated Kansas court
rules by denying uncontroverted facts with no basis in the record to do so and by
attempting "to divert the court's attention from the true facts of the case by attempting to
make the court angry at [the plaintiff] and its attorneys." Duree, 319 Ill. App. 3d at 1039,
745 N.E.2d at 1277 (citing Kessler, 970 P.2d at 535).
¶ 37 Duree appealed the order imposing sanctions. Duree, 319 Ill. App. 3d at 1038,
745 N.E.2d at 1276. The Kansas Supreme Court upheld that order, relying heavily on the
findings of fact included in both the trial court's sanctions order and the summary
judgment order. Duree, 319 Ill. App. 3d at 1038-39, 745 N.E.2d at 1276-77. The
plaintiff then filed a petition to enroll the Kansas judgment in Illinois, which the Cook
County circuit court granted over Duree's objection. Duree, 319 Ill. App. 3d at 1039, 745
N.E.2d at 1277. Duree filed a petition for relief from judgment. Duree, 319 Ill. App. 3d
at 1047, 745 N.E.2d at 1283.
¶ 38 On appeal, Duree argued that he was entitled to relief from the Kansas judgment
imposing sanctions pursuant to section 2-1401. In support of this contention, he relied on
a decision of the Missouri State Board of Accountancy, which found that the accountant
did not violate any professional rules in preparing the amended tax return at issue in the
19
counterclaim. Duree, 319 Ill. App. 3d at 1047, 745 N.E.2d at 1283. Duree argued that
this decision, issued after the Kansas Supreme Court affirmed the sanctions order, would
have precluded the Kansas trial court from imposing sanctions because its decision "was
based on the finding that he manufactured the amended tax return." Duree, 319 Ill. App.
3d at 1047, 745 N.E.2d at 1283.
¶ 39 The First District rejected this argument, emphasizing that the Kansas trial judge's
decision "did not rest solely upon the finding that the amended tax return had been
deliberately falsified." Duree, 319 Ill. App. 3d at 1047, 745 N.E.2d at 1283-84. The
court went on to explain that the Kansas Supreme Court opinion pointed to other grounds
that supported the trial court decision before concluding that had the Missouri State
Board of Accountancy decision been available to the Kansas trial judge, it "would not
have precluded her decision" to impose sanctions. Duree, 319 Ill. App. 3d at 1048, 745
N.E.2d at 1284.
¶ 40 According to the defendant here, the Duree decision required the First District to
decide an issue that was not decided in the Kansas litigation. In support of this
contention, the defendant points to a statement in the Kansas trial court's sanctions order
noting that the amended tax return was " 'at the heart of' " the motion for sanctions. See
Kessler, 970 P.2d at 536. The defendant argues that, "Nevertheless, the First District
considered the other grounds that were listed (but not relied upon) in the Kansas Supreme
Court's decision." As such, the defendant claims, "the First District considered an
unresolved issue–whether the other evidence was sufficient to justify the imposition of
20
sanctions." We believe this argument mischaracterizes the decisions of both the Kansas
Supreme Court and the First District.
¶ 41 We first note that nowhere in either of these opinions does either court state that
the amended tax return was the sole basis supporting the imposition of sanctions. As
previously discussed, the Kansas Supreme Court relied heavily on the extensive findings
of fact contained in the trial court's orders granting summary judgment and imposing
sanctions. In finding that Duree had filed the counterclaim with no basis in fact, the
Kansas Supreme Court pointed to the trial court's finding that after five years of
discovery, the franchisees were unable to present any evidence supporting their claim that
they were fraudulently induced to purchase the Subway shop. They provided no
evidence that any of the allegedly false statements made by the plaintiff's representations
were, in fact, false. Kessler, 970 P.2d at 534.
¶ 42 In finding that Duree filed the counterclaim in bad faith, the Kansas Supreme
Court noted that Duree denied nearly all of the numerous factual allegations in the
plaintiff's summary judgment motion despite the complete lack of any evidence in the
voluminous record that contradicted those allegations. In doing so, the court explained,
Duree violated court rules. Kessler, 970 P.2d at 535.
¶ 43 The court did find the amended tax return significant. As the court explained, the
fact that Duree hired an accountant to file the return was powerful evidence that he knew
the counterclaim was baseless. Kessler, 970 P.2d at 535. However, as discussed, it was
one of numerous items that supported the trial judge's findings, not the sole basis. We are
21
thus not persuaded by the defendant's contention that the First District resolved an
"undecided question" in concluding that section 2-1401 relief was not appropriate.
¶ 44 As the foregoing discussion demonstrates, both the dicta in Haynes and the
decision in Duree focused on whether the evidence would have determined the outcome
of issues that were actually decided–the Haynes defendant's fitness to stand trial and the
propriety of sanctions in Duree. Here, by contrast, the court explicitly found that the
plaintiffs had a meritorious claim in that the supreme court would have ruled differently
on the defendant's affirmative defense had the plaintiffs been able to present evidence of
the FTC's own stated position at trial. It follows from this that, as such, the supreme
court would not have directed the trial court to enter an order dismissing the plaintiffs'
complaint pursuant to section 10b(1), which is the judgment at issue in these proceedings.
For this reason, we find no support for the defendant's position in either Haynes or Duree.
¶ 45 We next consider Paul, the case cited by the plaintiffs. There, the plaintiff was a
trustee for the retirement plans of her medical practice. In her capacity as trustee, she
filed two lawsuits against various defendants, alleging fraud, negligence, breach of
contract, and breach of fiduciary duty. Paul, 223 Ill. 2d at 89-90, 858 N.E.2d at 4. While
the cases were pending, she filed for bankruptcy. Paul, 223 Ill. 2d at 90, 858 N.E.2d at 4.
The trial court therefore stayed both cases pending the outcome of the bankruptcy
proceedings. Three years later, the court held a status hearing on the two suits. Because
the plaintiff did not appear, the court dismissed both suits for want of prosecution. Paul,
223 Ill. 2d at 91, 858 N.E.2d at 5.
22
¶ 46 Fifteen months later, the bankruptcy court entered an order finding that the claims
in both cases were " 'properly claimed as exempt' " and thus were abandoned back to the
plaintiff from the bankruptcy estate. Paul, 223 Ill. 2d at 91, 858 N.E.2d at 5. Six months
after that, the plaintiff filed petitions for relief from the judgments dismissing her suits for
wont of prosecution. Paul, 223 Ill. 2d at 91, 858 N.E.2d at 5. She alleged that the
bankruptcy trustee did not allow her to pursue the claims on her own and also refused to
pursue them on behalf of the bankruptcy estate. Paul, 223 Ill. 2d at 92, 858 N.E.2d at 5.
Some of the defendants argued that the plaintiff did not establish the existence of a
meritorious claim because she did not suffer damages, she lacked standing, and her
claims were preempted by federal law. Paul, 223 Ill. 2d at 93, 858 N.E.2d at 6. The trial
court rejected these arguments and granted the plaintiff's petitions. Paul, 223 Ill. 2d at
93-94, 858 N.E.2d at 6.
¶ 47 On appeal, the defendants once again argued that the plaintiff failed to establish
that she had a meritorious claim based on the issues of damages, standing, and
preemption. Paul, 223 Ill. 2d at 106-07, 858 N.E.2d at 13. In rejecting this argument, the
supreme court held:
"Issues of standing, damages, preemption, and the like all concern the
merits of the Adelman and Mann cases. In ruling on plaintiff's section 2-1401
petitions, however, it was not the trial court's responsibility to determine the merits
of the underlying causes of action. [Citation.] The central facts which plaintiff
was required to plead and prove in connection with her petitions are not those facts
which would establish her entitlement to damages in the underlying actions, but
23
those facts which would establish her entitlement to have the [dismissal for wont
of prosecution] orders vacated. [Citations.]" Paul, 223 Ill. 2d at 107, 858 N.E.2d
at 14.
¶ 48 The court further explained that "issues of federal preemption and plaintiff's ability
to establish damages both devolve into fact questions more appropriate for resolution in
the trial court." Paul, 223 Ill. 2d at 108, 858 N.E.2d at 14. This observation illustrates
both the similarities and the differences between Paul and the case before us. In Paul,
the plaintiff's actions were dismissed before she had an opportunity to present evidence to
support her claims and before the trial court made substantive rulings on any issues. By
contrast, the plaintiffs here had the opportunity to present evidence on all issues,
including the question of damages, and those issues were resolved by the trial court after
a full trial.
¶ 49 The fact that the plaintiffs had the opportunity to fully litigate their claims at the
trial court level does make this case quite different from the scenario presented in Paul in
some respects. In other respects, however, the cases are similar. Most significantly, the
trial court in this case dismissed the plaintiffs' lawsuit after it was directed to do so by the
supreme court in an opinion that did not reach the merits of the underlying claim,
including the question of damages. As noted, the trial court decided those issues in favor
of the plaintiffs. Whether that decision was correct is a question more appropriately
answered by the supreme court than the trial court.
¶ 50 This is so for two reasons. First, that is the course the litigation would have taken
had the supreme court not directed the court to dismiss the action pursuant to section
24
10b(1). Moreover, the trial court's analysis of what the supreme court would have
decided had it addressed the damage issue is, as the plaintiffs contend, inherently
speculative. The defendant argues, however, that the trial court's determination of
whether the FTC's explicit statements regarding its approach to descriptors would likely
have changed the outcome is equally speculative. We disagree.
¶ 51 It is important to note that there is a key distinction here between the question
actually decided by the supreme court and those left unresolved. The question of the
applicability of the section 10b(1) was decided by the supreme court in a lengthy opinion
in which the court provided a detailed rationale for that decision. Therefore, we know the
basis of its decision on that question. When considering the plaintiffs' section 2-1401
petition, it was thus possible for the trial court to consider how the analysis the court
actually performed would likely be changed by the evidence of the FTC's own statements
regarding its lack of regulation of the descriptors.
¶ 52 More specifically, in analyzing the defendant's section 10b(1) claim, the supreme
court first noted that part of the defendant's argument was its contention that the "FTC
itself considers [consent decrees] to be regulatory activity." Price I, 219 Ill. 2d at 238,
848 N.E.2d at 35. The court then explained that resolution of the question depended
upon an examination of "the affirmative acts or expressions of authorization" by the FTC.
Price I, 219 Ill. 2d at 241, 848 N.E.2d at 36.
¶ 53 In accepting the defendant's argument, the court looked to comments in various
FTC documents noting that the majority of cigarette manufacturers were in compliance
with the terms of a consent decree in an enforcement action that involved six
25
manufacturers and referring to resolution of enforcement actions as part of its
" 'regulatory activity.' " Price I, 219 Ill. 2d at 258, 848 N.E.2d at 46. In addition, the
court found that the defendant's characterization of these documents was consistent with
the testimony of its expert witness, who testified "that the FTC uses consent orders to
provide guidance to the entire cigarette industry." Price I, 219 Ill. 2d at 258, 848 N.E.2d
at 46.
¶ 54 The court acknowledged that the consent decrees involving other companies did
not provide express authority for the defendant to use the relevant descriptors. Price I,
219 Ill. 2d at 272, 848 N.E.2d at 53. However, the court found that published orders
provided implicit authority. Price I, 219 Ill. 2d at 272, 848 N.E.2d at 53-54. The court
concluded that the defendant was exempt from liability under the Consumer Fraud Act
because it was "specifically authorized to use the disputed terms without fear of the FTC
challenging them as deceptive or unfair." Price I, 219 Ill. 2d at 273, 848 N.E.2d at 54.
¶ 55 It is easy to see how this analysis would have been changed by the amicus brief in
Altria Group and the 2008 rescission of guidance, both of which contained direct
statements that the FTC never intended to authorize use of the terms. In addition, the
rescission of guidance specifically stated that, although use of the terms was not
prohibited, it was subject to the requirement that it not be deceptive.
¶ 56 In contrast, the supreme court did not analyze, much less resolve, the question of
whether the plaintiffs offered sufficient proof of the damages they alleged. After
concluding that the case should have been dismissed pursuant to section 10b(1), the court
noted, "Several of the other issues raised in this appeal are of great importance and
26
deserving of consideration by this court in the proper case." Price I, 219 Ill. 2d at 268,
848 N.E.2d at 51. The court went on to discuss several reasons it questioned whether
class certification was appropriate, although the court did not resolve any of these
questions. Price I, 219 Ill. 2d at 268-71, 848 N.E.2d at 51-53. The court then noted that,
in addition to these concerns, it had "grave reservations about the novel approach to the
calculation of damages that was offered by the plaintiffs and accepted by the circuit
court." Price I, 219 Ill. 2d at 271, 848 N.E.2d at 53. This is all the court said about the
issue of damages. We note that it is not clear from this statement whether the court
disagreed with the calculation of the amount of damages awarded or the finding that the
plaintiffs proved they sustained damages at all. See Price I, 219 Ill. 2d at 326, 848
N.E.2d at 83 (Freeman, J., dissenting, joined by Kilbride, J.) (discussing a possible reason
"the majority of the court does not endorse the position advanced by the special
concurrence"). In addition, we reiterate the fact that two justices specifically rejected the
notion that the plaintiffs failed to prove damages. Thus, contrary to the defendant's
assertion, the trial court's discussion of what the supreme court would have decided had it
addressed those issues is inherently speculative in a way its discussion of the impact of
the new information on the issue it actually did decide is not.
¶ 57 We conclude that the trial court exceeded the scope of section 2-1401 review
when it attempted to predict how the supreme court would rule on the question of
damages. For these reasons, the order denying the petition for relief from judgment must
be reversed.
27
¶ 58 Lastly, we must address the parties' arguments concerning the proper disposition
of this case in light of our decision to reverse the trial court's order. The defendant argues
that only the supreme court has the authority to reinstate the verdict against it (see People
v. Brown, 171 Ill. App. 3d 500, 503-04, 525 N.E.2d 1228, 1230 (1988) (explaining that
an appeals court is bound by the precedents of the supreme court because "where the
supreme court has declared the law on any point, it alone can overrule and modify its
previous opinion"), while the plaintiffs argue that reinstating the verdict is a "common
sense solution" that will return the proceedings "as close as they possibly can be
[returned] to the status quo ante." They explain that this is so because it leaves the
plaintiffs with a judgment in their favor, while leaving the defendant with the right to
appeal that judgment.
¶ 59 As the plaintiffs point out, the unique procedural history of this case leaves us with
little guidance in resolving this question. We find, however, that the effect of vacating
the dismissal order would be to reinstate the verdict. Vacating the dismissal order has the
effect of reinstating the proceedings at the stage they were at prior to entry of that order.
Because the supreme court never reached the merits of the underlying claims, the only
ruling it reversed was the trial court's decision to deny the defendant's motion for
summary judgment on the basis of section 10b(1) of the Consumer Fraud Act. Thus,
vacating the dismissal order will reinstate the proceedings with the verdict intact.
¶ 60 In its argument to the contrary, the defendant points to the language the supreme
court used in reversing the judgment. The court stated, "We reverse the judgment of the
circuit court and remand with instructions to dismiss pursuant to section 10b(1) of the
28
Consumer Fraud Act." Price I, 219 Ill. 2d at 274, 848 N.E.2d at 55. The defendant also
points to the decision in which this court considered the question of when the two-year
time limit in section 2-1401 began to run. As the defendant points out, we found it
significant that the supreme court chose to remand the matter to the trial court with
instructions to dismiss rather than dismissing the matter outright. See Price II, No. 5-09-
0089, order at 10 (noting that "the plaintiffs' action was not effectively dismissed until the
trial court dismissed the case" (citing PSL Realty Co. v. Granite Investment Co., 86 Ill. 2d
291, 304-05, 427 N.E.2d 563, 569 (1981))). The defendant argues that this distinction is
significant here also. The defendant argues that while the trial court can grant relief from
its own order dismissing the petition, it cannot grant relief from the supreme court's order
reversing the judgment. The flaw in this argument is that the only ruling the supreme
court actually reversed was the trial court's ruling on the defendant's section 10b(1)
defense. Although it is true that the court may well have reversed the judgment on other
grounds, it would not have done so without considering the merits of those issues. We
find that granting relief from judgment has the effect of reinstating the proceedings with
the verdict intact.
¶ 61 For the foregoing reasons, we reverse the judgment of the trial court denying the
plaintiffs' petition for relief from judgment.
¶ 62 Reversed.
29
2014 IL App (5th) 130017
NO. 5-13-0017
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_____________________________________________________________________________________
SHARON PRICE and MICHAEL FRUTH, ) Appeal from the
Individually and on Behalf of All Others Similarly
) Circuit Court of
Situated, ) Madison County.
)
Plaintiffs-Appellants, )
)
v. ) No. 00-L-112
)
PHILIP MORRIS, INCORPORATED, ) Honorable
) Dennis R. Ruth,
Defendant-Appellee. ) Judge, presiding.
_____________________________________________________________________________________
Opinion Filed: April 29, 2014
_____________________________________________________________________________________
Justices: Honorable Melissa A. Chapman, J.
Honorable Bruce D. Stewart, J., and
Honorable S. Gene Schwarm, J.,
Concur
_____________________________________________________________________________________
Attorneys Stephen M. Tillery, Robert L. King, KOREIN TILLERY LLC, One U.S. Bank
for Plaza, 505 North 7th Street, Suite 3600, St. Louis, MO 63101-1625; George A.
Appellants Zelcs, Maximilian C. Gibbons, Matthew C. Davies, KOREIN TILLERY LLC,
205 North Michigan Avenue, Suite 1940, Chicago, IL 60601; Joseph A. Power,
Jr., Power Rogers & Smith, P.C., Three First National Plaza, 70 West Madison
Street, 55th Floor, Chicago, IL 60602; Nina Hunter Fields, Richardson, Patrick,
Westbrook & Brickman, LLC, 1017 Chuck Dawley Blvd., P.O. Box 1007, Mt.
Pleasant, SC 29465; Michael J. Brickman, Richardson, Patrick, Westbrook &
Brickman, LLC, 174 East Bay Street, P.O. Box 879, Charleston, SC 29401
_____________________________________________________________________________________
Attorneys George C. Lombardi, WINSTON & STRAWN LLP, 35 West Wacker Drive,
for Chicago, IL 60601-9703; Larry Hepler, HEPLERBROOM, LLC, 130 North
Appellee Main Street, P.O. Box 510, Edwardsville, IL 62025-0510; Michele Odorizzi,
MAYER BROWN LLP, 71 South Wacker Drive, Chicago, IL 60606-4637;
Kevin M. Forde, KEVIN M. FORDE LTD., 111 West Washington Street, Suite
1100, Chicago, IL 60602
____________________________________________________________________________________