Enbridge Pipeline (Illinois), LLC v. Hoke

2019 IL App (4th) 150544-B FILED
January 28, 2019
NOS. 4-15-0544; 4-15-0545 cons. Carla Bender
4th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
ENBRIDGE PIPELINE (ILLINOIS), LLC,
) Appeal from the
n/k/a Illinois Extension Pipeline
) Circuit Court of
Company, LLC,
) De Witt County
Plaintiff-Appellee, )
v. (No. 4-15-0544) ) No. 14ED3
EDWARD HOKE; SONNA H. HOKE; NON­ )
RECORD CLAIMANTS; and UNKNOWN )
OWNERS, )
Defendants )
)
(Thomas J. Pliura, Appellant). )
____________________________________________ )
ENBRIDGE PIPELINE (ILLINOIS), LLC,
)
n/k/a Illinois Extension Pipeline
Company, LLC,
) No. 14ED4
Plaintiff-Appellee, )
v. (No. 4-15-0545) )
PMC FARMS, LLC; CHARLES MURPHY, Tenant; )
NON-RECORD CLAIMANTS; and UNKNOWN )
OWNERS, )
Defendants The Honorable
)
Hugh Finson,
(Thomas J. Pliura, Appellant). ) Judge Presiding
)
JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
Presiding Justice Holder White and Justice Turner concurred in the judgment and
opinion.
OPINION
¶1 In the summer of 2014, Enbridge Pipeline (Illinois), LLC, now known as the
Illinois Extension Pipeline Company, LLC (IEPC), brought an easement condemnation action
against (1) Edward Hoke and Sonna H. Hoke and (2) PMC Farms, LLC, and its tenant, Charles
Murphy (collectively, landowners). See Enbridge Pipeline (Illinois), LLC v. Hoke, 2017 IL App
(4th) 150544, ¶ 2, 80 N.E.3d 807. Landowners subsequently filed traverse motions. Id. (A
traverse motion is filed to oppose the condemnation of private property and challenges (1) the
rebuttable presumption of public use and public necessity and (2) the presumption that the
condemner negotiated in good-faith. See id. ¶ 134.) Ultimately, the trial court denied
landowners’ traverse motions, and landowners appealed. Id. ¶ 2
¶2 In July 2017, this court vacated the trial court’s ruling and remanded the
proceeding for the trial court to consider “only two matters on remand, which are landowners’
claims challenging (1) the rebuttable presumptions of public use and public necessity and (2) the
[Illinois Commerce] Commission’s determination as to good-faith negotiations[.]” Id. ¶ 134.
This court retained jurisdiction to review the trial court’s ruling on remand. Id. ¶ 146; Ill. S. Ct.
R. 615(b) (eff. Jan. 1, 1967).
¶3 In January 2018, Thomas J. Pliura, the attorney representing landowners, filed a
memorandum entitled “Evidence Landowners Seek To Present To Rebut The ‘Good-Faith
Negotiation’ Presumption” (memorandum) in support of landowners’ traverse motions. In this
memorandum, Pliura argued that, based on the totality of the circumstances, IEPC did not
negotiate in good faith. One of the factors which Pliura cited was that IEPC gave landowners
only a 10-day time frame in which to respond to the final offer. In May 2018, after conducting a
hearing on the matter, the trial court denied landowners’ traverse motions.
¶4 Also in May 2018, IEPC filed a motion for sanctions against Pliura pursuant to
Illinois Supreme Court Rule 137 (eff. Jan. 1, 2018). In July 2018, the trial court sanctioned
Pliura, concluding that his memorandum “was not objectively reasonable and was filed solely to
harass, to cause unnecessary delay, and/or to needlessly increase the cost of litigation.”
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¶5 Pliura appeals, arguing that (1) the trial court lacked jurisdiction to sanction him,
(2) IEPC’s motion for sanctions was procedurally insufficient, (3) the trial court was required to
conduct an evidentiary hearing before imposing sanctions, and (4) the trial court abused its
discretion by sanctioning him. We disagree with Pliura and conclude that (1) the trial court had
jurisdiction, (2) Pliura forfeited his argument that the motion for sanctions was procedurally
insufficient, (3) Pliura forfeited his argument regarding the need for an evidentiary hearing, and
(4) the trial court did not abuse its discretion by sanctioning him.
¶6 Also in this appeal, IEPC (1) suggests that this court should sanction Pliura
pursuant to Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994) and (2) requests oral argument
pursuant to Illinois Supreme Court Rule 352(a) (eff. July 1, 2018). We decline both IEPC’s
suggestion and request.
¶7 I. BACKGROUND
¶8 A. The First Appeal
¶9 In the summer of 2014, IEPC brought an easement condemnation action against
landowners. See Hoke, 2017 IL App (4th) 150544, ¶ 28. Landowners subsequently filed traverse
motions, arguing that IEPC’s condemnation suit should be dismissed. Id. ¶¶ 29-31. Ultimately,
the trial court denied landowners’ traverse motions. Id. ¶ 41. Landowners appealed, arguing that
the trial court erred by denying them the ability to conduct discovery. Id. ¶ 122. In July 2017,
this court concluded that “landowners were entitled to present relevant evidence to rebut these
specific presumptions and to refute the good-faith finding.” Id. ¶ 133. This court remanded the
case back to the trial court to consider “only two matters on remand, which are landowners’
claims challenging (1) the rebuttable presumptions of public use and public necessity and (2) the
[Illinois Commerce] Commission’s determination as to good-faith negotiations[.]” Id. ¶ 134. We
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further concluded that “[c]onsistent with the limited nature of a traverse motion as well as our
limited remand, we direct the trial court to assume control of the discovery proceedings in the
instant case[.]” Id. ¶ 136. This court retained jurisdiction to review the trial court’s ruling on
remand. Id. ¶ 146; Ill. S. Ct. R. 615(b) (eff. Jan. 1, 1967).
¶ 10 B. Pliura’s Memorandum
¶ 11 In January 2018, Pliura filed his memorandum in support of the traverse motions
in which he argued that, based on the totality of the circumstances, IEPC did not negotiate in
good faith. One of these factors was “[t]he 10 day timeframe, from the date of the offers mailing,
[IEPC] gave to the landowners to respond to the offers.” Another factor was the “failure by
[IEPC] to base their offers to the landowners on an appraisal[.]”
¶ 12 In April 2018, IEPC filed a response to Pliura’s memorandum in which it argued
that it had negotiated in good faith. In that response, IEPC also noted that it had previously
informed landowners that it had based its final offer to landowners on a professional market
analysis of current property values and provided landowners a “compensation worksheet”
showing how it determined the final offer. IEPC also argued that it (1) was not required to
provide more than 10 days to accept the final offer and (2) Pliura’s memorandum was contrary to
existing law and not supported by the evidence.
¶ 13 In May 2018, the trial court conducted a traverse hearing. After hearing argument
from both sides, the court concluded that landowners failed to rebut (1) the presumption of
public use and public necessity and (2) the presumption that the condemnor negotiated in good
faith. Accordingly, the trial court denied landowners’ traverse motions.
¶ 14 C. The Motion for Sanctions
¶ 15 Also in May 2018, citing Pliura’s memorandum, IEPC filed a motion for
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sanctions pursuant to Illinois Supreme Court Rule 137 (eff. Jan. 1, 2018), in which IEPC asserted
that (1) Pliura knowingly made legal arguments that are contrary to binding precedent and
(2) there was no good-faith basis in fact to support Pliura’s arguments. Pliura filed a response in
which he (1) rejected IEPC’s assertions and (2) alleged that IEPC had filed its motion for
sanctions for an improper purpose. Later that month, the trial court conducted a hearing on
IEPC’s motion for sanctions. After hearing argument from both sides, the trial court granted
IEPC’s motion because it concluded that Pliura’s motion “raised issues that have no basis in law.
Some of the issues he raises have no basis in fact.” In June 2018, IEPC filed a “Verified
Accounting of Fees and Expenses” and requested the trial court to order Pliura to pay $162,465
in attorney fees, as well as $56,246.25 in additional fines.
¶ 16 D. The Trial Court’s Order
¶ 17 In July 2018, the trial court sanctioned Pliura in the amount of $61,516.10 and
further ordered that Pliura could not bill his clients for this amount. The court concluded that
Pliura’s memorandum “was not objectively reasonable and was filed solely to harass, to cause
unnecessary delay, and/or to needlessly increase the cost of litigation.” The court explained that
one of the reasons why it sanctioned Pliura was because his 10-day argument had been
previously rejected in Enbridge Energy, Ltd. Partnership v. Fry, 2017 IL App (3d) 150765, ¶ 48,
79 N.E.3d 246, and in Forest Preserve District v. First National Bank of Franklin Park, 2011 IL
110759, ¶ 68, 961 N.E.2d 775.
¶ 18 Later in July 2018, Pliura filed a motion to reconsider in which he argued that
(1) the trial court did not have jurisdiction to sanction him and (2) IEPC’s Rule 137 motion for
sanctions was procedurally insufficient. In August 2018, the parties tried to schedule a hearing
on the motion to reconsider, but the trial court declined this request, concluding that it was
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without jurisdiction because the circuit clerk had already certified the record and returned it to
the appellate court.
¶ 19 This appeal followed.
¶ 20 II. ANALYSIS
¶ 21 Pliura appeals, arguing that (1) the trial court lacked jurisdiction to sanction him,
(2) IEPC’s motion for sanctions was procedurally insufficient, (3) the trial court was required to
conduct an evidentiary hearing before imposing sanctions, and (4) the trial court abused its
discretion by sanctioning him. We disagree with Pliura and conclude that (1) the trial court had
jurisdiction, (2) Pliura forfeited his argument that the motion for sanctions was procedurally
insufficient, (3) Pliura forfeited his argument regarding the need for an evidentiary hearing, and
(4) the trial court did not abuse its discretion by sanctioning him.
¶ 22 Also in this appeal, IEPC (1) suggests that this court should sanction Pliura
pursuant to Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994) and (2) requests oral argument
pursuant to Illinois Supreme Court Rule 352(a) (eff. July 1, 2018). We decline both IEPC’s
suggestion and request.
¶ 23 A. The Trial Court’s Jurisdiction
¶ 24 Pliura first argues that the trial court did not have subject-matter jurisdiction to
sanction him on remand. We disagree.
¶ 25 1. The Applicable Law
¶ 26 Jurisdiction is commonly understood as consisting of two elements: personal
jurisdiction and subject-matter jurisdiction. People v. Castleberry, 2015 IL 116916, ¶ 12, 43
N.E.3d 932. Personal jurisdiction refers to the court’s power to bring a person into its
adjudicative process. Id. Subject-matter jurisdiction “refers to the power of a court to hear and
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determine cases of the general class to which the proceeding in question belongs.” Belleville
Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 334, 770 N.E.2d 177, 184
(2002). With the sole exception of the trial court’s power to review administrative actions, which
is conferred by statute, the trial court’s subject-matter jurisdiction is conferred entirely by the
Illinois Constitution, which provides that the trial court’s jurisdiction extends to all “justiciable
matters except when the Supreme Court has original and exclusive jurisdiction[.]” Id.; Ill. Const.
1970, art. VI, § 9. A matter is justiciable when it presents “a controversy appropriate for review
by the court, in that it is definite and concrete, as opposed to hypothetical or moot[.]” Belleville
Toyota, Inc., 199 Ill. 2d at 335. As long as a matter brought before the trial court is justiciable
and does not fall within the original and exclusive jurisdiction of the supreme court, the trial
court has subject-matter jurisdiction. In re Marriage of Armstrong, 2016 IL App (2d) 150815,
¶ 17, 68 N.E.3d 1039. Whether the trial court had jurisdiction is a question of law reviewed
de novo. McCormick v. Robertson, 2014 IL App (4th) 140208, ¶ 15, 15 N.E.3d 968.
¶ 27 Illinois Supreme Court Rule 137(a) (eff. Jan. 1, 2018) provides as follows:
“Every pleading, motion and other document of a party represented by an attorney
shall be signed by at least one attorney of record in his individual name, whose
address shall be stated. *** The signature of an attorney or party constitutes a
certificate by him that he has read the pleading, motion or other document; that to
the best of his knowledge, information, and belief formed after reasonable inquiry
it is well grounded in fact and is warranted by existing law or a good-faith
argument for the extension, modification, or reversal of existing law, and that it is
not interposed for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation. *** If a pleading,
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motion, or other document is signed in violation of this rule, the court, upon
motion or upon its own initiative, may impose upon the person who signed it, a
represented party, or both, an appropriate sanction, which may include an order to
pay to the other party or parties the amount of reasonable expenses incurred
because of the filing of the pleading, motion or other document, including a
reasonable attorney fee.”
¶ 28 The timely filing of a notice of appeal transfers jurisdiction from the trial court to
the appellate court. General Motors Corp. v. Pappas, 242 Ill. 2d 163, 173, 950 N.E.2d 1136,
1142 (2011). Once the notice of appeal is filed, the appellate court’s jurisdiction attaches
immediately, and the cause of action is then beyond the jurisdiction of the trial court. Id.
However, the trial court retains jurisdiction after the notice of appeal is filed to determine matters
which are collateral or incidental to the judgment. Id. at 173-74. For example, “a trial court has
jurisdiction over a motion for sanctions notwithstanding a previously filed notice of appeal.”
Physicians Insurance Exchange v. Jennings, 316 Ill. App. 3d 443, 454, 736 N.E.2d 179, 188
(2000); see also American National Bank & Trust Co. of Chicago v. Bus, 212 Ill. App. 3d 133,
137, 569 N.E.2d 1377, 1380 (1991) (“[T]he plaintiffs’ appeal from the summary judgment order
did not deprive the circuit court of jurisdiction to consider the section 2-611 motion [for
sanctions].”).
¶ 29 Under Illinois Supreme Court Rule 615(b) (eff. Jan. 1, 1967), the appellate court
may remand a matter to the trial court for a limited purpose while retaining jurisdiction of a case.
People v. Garrett, 139 Ill. 2d 189, 195, 564 N.E.2d 784, 787 (1990). When a matter is remanded,
the trial court can conduct only those proceedings which conform to the appellate court’s
instructions. People ex rel. Department of Transportation v. Firstar Illinois, 365 Ill. App. 3d
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936, 939, 851 N.E.2d 682, 685 (2006). Whether the trial court violated the appellate court’s
instructions is a question of law reviewed de novo. Id.
¶ 30 The interpretation of supreme court rules are governed by the same principles that
govern the interpretation of statutes. People v. Santiago, 236 Ill. 2d 417, 428, 925 N.E.2d 1122,
1128 (2010). A court’s goal is to ascertain and give effect to the intention of the drafters of the
rule. People v. Tousignant, 2014 IL 115329, ¶ 8, 5 N.E.3d 176. The most reliable indicator of
that intent is the language of the rule, which must be given its plain and ordinary meaning. Id.
Rules must be construed to avoid absurd results. In re C.P., 2018 IL App (4th) 180310, ¶ 18. The
interpretation of a supreme court rule is a question of law reviewed de novo. People v. Brindley,
2017 IL App (5th) 160189, ¶ 15, 82 N.E.3d 856.
¶ 31 2. This Case
¶ 32 On landowners’ first appeal, this court gave the following instructions for remand:
“Based on the aforementioned discussion of the proper scope of a traverse
hearing, the trial court should consider only two matters on remand, which are
landowners’ claims challenging (1) the rebuttable presumptions of public use and
public necessity and (2) the Commission’s determination as to good-faith
negotiations, as generally set forth in *** landowners’ July 2014 traverse
motion.” Hoke, 2017 IL App (4th) 150544, ¶ 134.
¶ 33 Based on this court’s remand instructions, Pliura argues that the trial court did not
have subject-matter jurisdiction to impose sanctions. See id. Instead, he argues the trial court
could rule only on “landowners’ claims challenging (1) the rebuttable presumptions of public use
and public necessity and (2) the Commission’s determination as to good-faith negotiations[.]” Id.
This jurisdictional argument has no merit. Jennings, 316 Ill. App. 3d at 454 (“[A] trial court has
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jurisdiction over a motion for sanctions notwithstanding a previously filed notice of appeal.”).
¶ 34 We also emphatically reject this argument because Rule 137 always applies to all
matters properly before the trial court. Upon our remand in this case, the trial court had authority
to rule on certain designated landowners’ claims and to receive pleadings from the parties
regarding those claims. As with every pleading, motion, or other document filed in the trial court,
the pleadings the parties filed in the trial court in this case upon remand needed to comply with
all the requirements of Rule 137.
¶ 35 Our remand instructions did not alter the trial court’s authority to sanction Pliura.
Rule 137 applies to any document signed by counsel and submitted to the trial court. We
emphasize that although we limited the scope of remand pursuant to Rule 615(b), that limitation
did not affect the trial court’s inherent authority under Rule 137. To conclude otherwise would
strip the trial court of its authority to prevent the filing of frivolous pleadings, motions, or
documents—which would be an absurd result. Accordingly, we reject Pliura’s argument.
¶ 36 B. Procedural Requirements
¶ 37 Next, Pliura argues that IEPC’s motion for sanctions was procedurally insufficient
because it failed to comply with the pleading requirements in the Illinois Code of Civil
Procedure (Code) (735 ILCS 5/2-603 (West 2016)). Pliura claims that IEPC’s alleged failure to
comply with the Code made it “virtually impossible for [him] to respond to each allegation or
claim. It [made] it nearly impossible to do anything other than generally deny the conclusory
allegations.” We conclude that this argument is both forfeited and without merit.
¶ 38 Forfeiture applies when an issue is not raised in a timely manner. Palm v. 2800
Lake Shore Drive Condominium Ass’n, 2013 IL 110505, ¶ 26, 988 N.E.2d 75. Issues not raised
before the trial court are deemed forfeited and may not be raised for the first time on appeal.
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In re Ronald J., 2017 IL App (4th) 160855, ¶ 22, 74 N.E.3d 1178. Likewise, an argument made
for the first time in a motion to reconsider is forfeited on appeal. People v. Ross, 2017 IL App
(4th) 170121, ¶ 32, 92 N.E.3d 999; Vantage Hospitality Group, Inc. v. Q Ill Development, LLC,
2016 IL App (4th) 160271, ¶¶ 46-47, 71 N.E.3d 1.
¶ 39 After IEPC filed its motion for sanctions, Pliura filed a 17-page response, but in
that response, Pliura never argued that IEPC’s motion failed to comply with the Code. Instead,
Pliura raised this issue for the first time in his motion to reconsider. Accordingly, this issue is
forfeited. See Vantage Hospitality Group, Inc., 2016 IL App (4th) 160271, ¶ 47.
¶ 40 Alternatively, the law is clear that a motion for sanctions under Rule 137 is not a
pleading. In In re Marriage of Nesbitt, 377 Ill. App. 3d 649, 660, 879 N.E.2d 445, 455 (2007),
the First District concluded that “Sections 2-619 and 2-615 of the Code apply only to pleadings.
735 ILCS 5/2-619, 2-615 (West 2004); [Citations.]. A motion for Rule 137 sanctions is not a
pleading and, thus, is not capable of being stricken under either section.” Accordingly, we deem
Pliura’s argument as additionally without merit.
¶ 41 C. Evidentiary Hearing
¶ 42 Pliura filed a supplemental brief in this court in which he argued that the trial
court erred by sanctioning him under Rule 137 because it did not conduct an evidentiary hearing.
We conclude that this argument is forfeited.
¶ 43 Illinois Supreme Court Rule 341(h) (eff. Nov. 1, 2017) governs the contents of an
appellate brief. Rule 341(h)(7) requires that an argument “contain the contentions of the
appellant and the reasons therefor, with citation of the authorities and the pages of the record
relied on.” Id. “The failure to provide proper citations to the record is a violation of Rule
341(h)(7), the consequence of which is the forfeiture of the argument.” Hall v. Naper Gold
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Hospitality LLC, 2012 IL App (2d) 111151, ¶ 12, 969 N.E.2d 930. “Mere contentions, without
argument or citation to authority, do not merit consideration on appeal.” Id.
¶ 44 Pliura’s supplemental brief lacks adequate citation to the record. Further, based on
the record in this case, it appears that Pliura did not object to the proceedings or request that an
evidentiary hearing be conducted. This court “will not search the record for purposes of finding
error *** when an appellant has made no good-faith effort to comply with the supreme court
rules governing the contents of briefs.” In re Estate of Parker, 2011 IL App (1st) 102871, ¶ 47,
957 N.E.2d 454. Accordingly, this argument is forfeited.
¶ 45 D. The Trial Court’s Sanctions
¶ 46 Last, Pliura argues that the trial court abused its discretion by sanctioning him
pursuant to Rule 137. We disagree.
¶ 47 1. The Applicable Law on Rule 137 Sanctions
¶ 48 Illinois Supreme Court Rule 137 (eff. Jan. 1, 2018) authorizes the trial court to
impose sanctions against a party or its attorney when a motion or pleading is “not well grounded
in fact, not supported by existing law, or lacks a good-faith basis for modification, reversal, or
extension of the law, or is interposed for any improper purpose.” Whitmer v. Munson, 335 Ill.
App. 3d 501, 513-14, 781 N.E.2d 618, 628 (2002). The attorney’s conduct must be judged by an
objective standard. Deutsche Bank National Trust Co. v. Ivicic, 2015 IL App (2d) 140970, ¶ 24,
46 N.E.3d 395. Because Rule 137 is penal in nature, it must be strictly construed. Id. “The
purpose of Rule 137 is to prevent the filing of false and frivolous lawsuits.” Yunker v. Farmers
Automobile Management Corp., 404 Ill. App. 3d 816, 824, 935 N.E.2d 630, 637 (2010). “The
rule is not intended to penalize litigants and their attorneys because they were zealous but
unsuccessful in pursuing an action.” Id.
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¶ 49 The appellate court will reverse the trial court’s imposition of Rule 137 sanctions
only if the trial court abused its discretion. Mohica v. Cvejin, 2013 IL App (1st) 111695, ¶ 47,
990 N.E.2d 720. “[W]e utilize this deferential standard, in part, because the conduct at issue
occurred before the trial judge, who is then in the best position to determine whether the conduct
warranted penal sanctions[.]” Id. ¶ 78 (Gordon, J., specially concurring). A trial court abuses its
discretion when no reasonable person would agree with its decision. Lake Environmental, Inc. v.
Arnold, 2015 IL 118110, ¶ 16, 39 N.E.3d 992. A reviewing court may affirm the trial court’s
imposition of sanctions for any reason provided in the record. Id. Further, “a litigant cannot
expect to avoid all sanctions under Rule 137 merely because the pleading was not entirely
frivolous.” Walsh v. Capital Engineering & Manufacturing Co., 312 Ill. App. 3d 910, 919, 728
N.E.2d 575, 582 (2000).
¶ 50 2. The Applicable Law on Negotiations in Good Faith
¶ 51 In Forest Preserve District, 2011 IL 110759, ¶ 68, the Illinois Supreme Court
wrote the following regarding good-faith negotiations:
“Defendants make two additional arguments related to good faith. They
argue that the District’s lack of good faith is shown by its failure to attach an
appraisal to its offer letters and by setting a limit of 10 days for negotiations. ***
No Illinois court has ever held that including ‘the basis for computing’ the amount
of compensation means that the condemning authority must actually tender its
own appraisal to the landowner. *** Similarly, we conclude that a condemning
body is not legally constrained to provide more than 10 days for negotiations in
order to satisfy the good-faith requirement.”
¶ 52 In Fry, 2017 IL App (3d) 150765, ¶¶ 48-50, an appeal in which Pliura was the
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attorney of record, the Third District concluded as follows:
“Evidence that an offer was made by the condemning authority based upon the
advice of an experienced appraisal consultant is generally sufficient to establish a
good-faith attempt to agree. Forest Preserve District v. First National Bank of
Franklin Park, 2011 IL 110759, ¶ 63. To satisfy the good-faith negotiation
prerequisite, however, the condemning authority is not required to tender its own
appraisals to the landowner. Id. ¶ 68. In addition, the condemning authority is not
required to provide more than 10 days for negotiations in order to satisfy the
good-faith requirement. Id.
***
*** As noted above, and contrary to the landowners’ assertion here,
Enbridge was not required to tender its land market survey to the landowners
during negotiations to satisfy the good-faith requirement. See Forest Preserve
District, 2011 IL 110759, ¶ 68. Under the circumstances of the present case, the
trial court did not err in the manner in which it conducted the proceedings on the
traverse motion, in finding that Enbridge had made a good faith offer of just
compensation, or in ultimately denying the traverse motion.”
¶ 53 3. This Case
¶ 54 Before the trial court in this case, Pliura argued that, based on the totality of the
circumstances, IEPC did not negotiate in good faith. One of the factors which Pliura cited was
“[t]he 10 day timeframe, from the date of the offers mailing, Enbridge gave to the landowners to
respond to the offers.” However, the Illinois Supreme Court had already concluded that “a
condemning body is not legally constrained to provide more than 10 days for negotiations in
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order to satisfy the good-faith requirement.” Forest Preserve District, 2011 IL 110759, ¶ 68.
Likewise, in a case where Pliura was the attorney of record, the Third District concluded that
“the condemning authority is not required to provide more than 10 days for negotiations in order
to satisfy the good-faith requirement.” Fry, 2017 IL App (3d) 150765, ¶ 48. Both of these
decisions were cited by the trial court in its decision to impose sanctions against Pliura under
Rule 137. Based upon the above-quoted language from those cases, we conclude that the trial
court’s sanction was not an abuse of discretion.
¶ 55 On appeal, Pliura contends that “[t]he point of emphasis here is NOT that
landowners were given only ten days to respond, but instead that [IEPC] failed to inform the
landowners how it determined fair market value.” This assertion is contradicted by the record. In
previous written exchanges between IEPC and landowners, as well as in argument before the
Commission (at which Pliura appeared and represented landowners), IEPC explained that it
based its offers on a land market study. Furthermore, in its final offer to landowners, IEPC
included a “compensation worksheet” showing how it determined the final offer.
¶ 56 E. Rule 375 Sanctions
¶ 57 IEPC suggests that we sua sponte sanction Pliura pursuant to Rule 375(b). (We
note that IEPC in this appeal has not formally requested this court to impose sanctions under
Rule 375(b) but merely—and indirectly—suggests that action.) We decline to do so.
¶ 58 Rule 375(b) empowers a reviewing court to sanction an attorney sua sponte if it
determines that an appeal is frivolous or not taken in good faith. Garlick v. Bloomingdale
Township, 2018 IL App (2d) 171013, ¶ 59. An appeal is frivolous when (1) it is not reasonably
well-grounded in fact; (2) it is not warranted by existing law; (3) it is not a good-faith argument
for the extension, modification, or reversal of existing law; or (4) a reasonable attorney would
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not have brought the appeal. Goldberg v. Michael, 328 Ill. App. 3d 593, 600, 766 N.E.2d 246,
252 (2002). An appeal is not taken in good faith when the primary purpose of the appeal is to
delay, harass, or cause needless expense. Id. at 600-01. This is an objective test. Bloomingdale
Township, 2018 IL App (2d) 171013, ¶ 59.
¶ 59 If a reviewing court initiates the sanction proceedings (which the posture of this
case would require this court to do, given that IEPC only suggests but does not request that
action), the reviewing court shall require the attorney “to show cause why such a sanction should
not be imposed before imposing the sanction.” (Emphasis added.) Ill. S. Ct. R. 375(b) (eff. Feb.
1, 1994). When a sanction is imposed, the reviewing court will set forth the reasons and basis for
the sanction in its opinion or in a separate written order. Id. However, the imposition of Rule
375(b) sanctions “is left entirely to the discretion of the reviewing court.” Parkway Bank & Trust
Co. v. Korzen, 2013 IL App (1st) 130380, ¶ 87, 2 N.E.3d 1052.
¶ 60 Although we believe that a case could be made that Pliura’s arguments are
frivolous within the meaning of Rule 375(b), we have concluded in the exercise of our discretion
not to pursue this matter. This pipeline litigation has gone on long enough. Requiring Pliura to
file a motion to show cause why sanctions should not be imposed will only further delay the
outcome of this case. Further, affirming the trial court’s imposition of sanctions should serve as a
sufficient deterrent both for Pliura and the profession. See Fred C. Zacharias, The Purposes of
Lawyer Discipline, 45 Wm. & Mary L. Rev. 675, 696-97 (2003). Accordingly, in the exercise of
our discretion, this court declines to pursue possible sanctions against Pliura under Rule 375(b).
¶ 61 F. Oral Argument
¶ 62 Last, IEPC has requested oral argument pursuant to Illinois Supreme Court Rule
352(a) (eff. July 1, 2018). We decline this request.
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¶ 63 1. The Applicable Law
¶ 64 Oral argument often serves a useful function in the adjudication of appeals
because it “provides the litigant with a better opportunity to inform the judges of the litigant’s
position” because “cold, printed words convey little in regard to the sense of urgency under
which a party may be operating.” Myron H. Bright, The Power of the Spoken Word: In Defense
of Oral Argument, 72 Iowa L. Rev. 35, 37 (1986). Furthermore, oral argument may develop “a
new issue overlooked or not adequately briefed” and “provides an important forum for an
interchange of ideas between counsel and the judges, and between the judges themselves.”
Stanley Mosk, In Defense of Oral Argument, 1 J. App. Prac. & Process 25, 27 (1999).
¶ 65 Based on these policy concerns and the decline in the number of oral arguments,
the Illinois Supreme Court recently modified Rule 352(a). The prior version of the rule stated
that the appellate court “may dispose of any case without oral argument if no substantial question
is presented, but this power should be exercised sparingly.” Ill. S. Ct. R. 352(a) (eff. July 1,
2017). However, following a May 2018 amendment, Rule 352(a) now reads as follows:
“After the briefs have been filed, the [appellate] court may dispose of any
case without oral argument if no substantial question is presented, but this power
shall be exercised sparingly and only upon the entry of a written order stating
with specificity why such power is being exercised in the affected case.
Notwithstanding the foregoing, oral argument shall be held in any case in which
at least one member of the panel assigned to the case requests it.” (Emphasis
added.) Ill. S. Ct. R. 352(a) (eff. July 1, 2018).
¶ 66 When interpreting a supreme court rule, our goal is to ascertain and give effect to
the intention of the drafters. Tousignant, 2014 IL 115329, ¶ 8. The plain language of the rule is
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the most reliable indicator of that intent. Id. The interpretation of a supreme court rule is a
question of law reviewed de novo. Brindley, 2017 IL App (5th) 160189, ¶ 15.
¶ 67 Rule 352(a) does not define “substantial question” or give further guidance on
when to deny oral argument. See Ill. S. Ct. R. 352(a) (eff. July 1, 2018). However, the Federal
Rules of Appellate Procedure provide that a reviewing court may deny oral argument if (1) the
appeal is frivolous, (2) the dispositive issue or issues have been authoritatively decided, or
(3) the court would not be significantly aided by oral argument because the facts and legal
arguments are adequately presented in the briefs and the record. Fed. R. App. P. 34(a)(2). We
find these factors to be highly persuasive when determining whether a “substantial question” is
present under Illinois Supreme Court Rule 352(a).
¶ 68 2. This Case
¶ 69 We note that the Fourth District Appellate Court has always been very receptive
to requests for oral argument and rarely declines them. Further, Rule 352(a) requires that we
“sparingly” deny requests for oral argument. Ill. S. Ct. R. 352(a) (eff. July 1, 2018). However,
under the unique facts of this case, we decline the request for oral argument. See id.
¶ 70 First, many issues Pliura raised on appeal are meritless and do not warrant oral
argument. See Fed. R. App. P. 34(a)(2)(A). Second, the law governing the primary issue in this
case—whether the trial court abused its discretion when sanctioning Pliura—is straightforward
and settled. See Fed. R. App. P. 34(a)(2)(B). Last, although the overall procedural history of this
case is complex, this court would not benefit from oral argument because the facts and legal
arguments of this case are adequately presented in the briefs and the record. See Fed. R. App. P.
34(a)(2)(C). Because this case does not present a substantial question, oral argument would
unnecessarily delay this case and increase the costs of litigation. Thus, we find this case
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appropriate for the sparing exercise of our power to dispose of a case without oral argument.
¶ 71 III. CONCLUSION
¶ 72 For the reasons stated, we affirm the trial court’s judgment. We thank the trial
court for its well-reasoned written order, which we found quite helpful.
¶ 73 Affirmed.
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