Marsh v. Sandstone North, LLC

2020 IL App (4th) 190314 FILED
September 9, 2020
Carla Bender
NO. 4-19-0314
4th District Appellate
Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
ALVIN F. MARSH; BEVERLY MARSH; MARSH ) Appeal from the
ENTERPRISES, d/b/a Sand Burr Farms; ALVIN F. ) Circuit Court of
MARSH TRUST; HENRY LIKES; MAXINE LIKES; ) Scott County
GARY WESTERMEYER; TERESA ) No. 10L3
WESTERMEYER; FRED BARNETT; ROBERTA )
BARNETT; JIMMIE GREGORY; and MARCELLA )
GREGORY, )
Plaintiffs-Appellants and )
Cross-Appellees, )
v. )
SANDSTONE NORTH, LLC; SANDSTONE SOUTH, )
LLC; HOLLIS SHAFER; GENESIS PORK, LLC; and )
ILLINI PORK, LLC, ) Honorable
Defendants-Appellees and ) David R. Cherry,
Cross-Appellants. ) Judge Presiding.
______________________________________________________________________________
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Steigmann and Justice Holder White concurred in the judgment
and opinion.
OPINION
¶1 Plaintiffs—Alvin F. and Beverly Marsh, Marsh Enterprises, d/b/a Sand Burr Farms,
Alvin F. Marsh Trust, Henry and Maxine Likes, Gary and Teresa Westermeyer, Fred and Roberta
Barnett, and Jimmie and Marcella Gregory—brought a “private temporary nuisance action”
against defendants—Sandstone North, LLC, Sandstone South LLC, Hollis Shafer, Genesis Pork,
LLC, and Illini Pork, LLC—alleging defendants’ hog farming operations created foul and
obnoxious odors that interfered with plaintiffs’ use and enjoyment of their neighboring properties.
On May 24, 2016, a jury returned a verdict in favor of defendants. Plaintiffs appeal, arguing the
trial court erred by (1) denying their motion for a new trial based on “juror misconduct,”
(2) declining to instruct the jury pursuant to Illinois Pattern Jury Instructions, Civil, No. 5.01
(approved Dec. 8, 2011) (hereinafter IPI Civil No. 5.01), and (3) instructing the jury using three
non-IPI instructions submitted by defendants. Defendants cross-appeal, arguing the court erred by
denying their request for reasonable attorney fees made pursuant to section 4.5 of the Farm
Nuisance Suit Act (Act) (740 ILCS 70/4.5 (West 2014)). We reverse the court’s denial of
defendants’ motion for reasonable attorney fees and remand with directions that the court grant
the motion and enter an appropriate fee award. We otherwise affirm the court’s judgment.
¶1 I. BACKGROUND
¶2 Plaintiffs reside on and/or own property near defendants’ hog farming operations
in Scott County, Illinois. In June 2010, they initiated the underlying cause of action against
defendants and, in August 2011, filed a second amended complaint. Plaintiffs identified the case
as “a private temporary nuisance action” and alleged that “[o]ffensive and noxious odors
frequently emanate[d] from [d]efendants’ swine facilities,” impairing their “ability to use and
enjoy their property” and causing “substantial damage to [their] quality of life.”
¶3 In their second amended complaint, plaintiffs alleged defendants raised
approximately 7500 hogs at their Scott County facilities. They maintained that defendants’ ”swine
factories [were] negligently and grossly mismanaged,” in that defendants “intentionally
disregard[ed] their duties and responsibilities” with respect to the handling and storage of animal
waste and the disposal of dead hogs. They also alleged that defendants’ “swine factories” were
negligently constructed.
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¶4 On March 24, 2014, a jury trial began in the matter. However, the trial court
declared a mistrial after finding that “activists” had passed out literature on concentrated animal
feeding operations in the courtroom after proceedings had commenced. On May 2, 2016, a second
jury trial began. On May 24, 2016, the jury returned a verdict in favor of defendants.
¶5 On December 9, 2016, plaintiffs filed a motion for judgment notwithstanding the
verdict or, in the alternative, a new trial. Relevant to this appeal, they sought a new trial on the
following grounds: (1) the trial court erred by instructing the jury with several nonpattern
instructions proposed by defendants, which they argued were confusing, misleading, or presented
incorrect statements of law (instructions 12, 13, 17, and 19); (2) the court erred by denying their
request for an adverse-inference instruction based on IPI Civil No. 5.01 because defendants
“undertook a massive cleanup effort of [their] facilities” prior to a site visit by plaintiffs’ experts;
and (3) juror misconduct. As to the last claim, plaintiffs asserted that posttrial Facebook postings
by juror Kelly Howard demonstrated that she “was biased” against plaintiffs and had “pre-judged
the case.” On April 22, 2019, the court denied plaintiffs’ motion.
¶6 The record also reflects that on June 16, 2016, defendants filed a motion for costs,
expenses, and reasonable attorney fees they incurred in successfully defending plaintiffs’ claims
against them pursuant to section 4.5 of the Act. 740 ILCS 70/4.5 (West 2014). On May 6, 2019,
the trial court entered an order denying the motion. In setting forth its ruling, the court made the
following findings:
“1. The *** Act in its Purpose clause declares ‘When nonagricultural land
uses extend into agricultural areas, farms often become the subject of nuisance
suits.’ The case at bar does not pit non-agricultural interests against agricultural
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interests. The record reflects that all of the parties in this action, both Plaintiffs and
Defendants, are all farmers engaged in agricultural pursuits. As such, this fact
situation does not come within the protection of the *** Act for the [d]efendants.
2. The suit by the Plaintiffs was to recover damages suffered as a result of
the alleged negligent operation of an agricultural pursuit. The Jury returned a
verdict in favor of the Defendants, finding that the Defendants were not negligent
in the operation of their facility.
3. Section 3 of the said *** Act specifically acknowledges the exemption
of application of the [A]ct to actions alleging negligent or improper operation of
any farm.
4. The Defendant[s] having prevailed in *** such a negligence action
cannot avail themselves of Section 4.5 of the said *** Act when that [A]ct does not
apply to the issues that were submitted to the trier of fact.”
¶7 This appeal and cross-appeal followed.
¶8 II. ANALYSIS
¶9 On appeal, plaintiffs argue they are entitled to a new trial based upon juror
misconduct and the trial court’s failure to properly instruct the jury. Defendants cross-appeal,
asserting the court erred by denying their motion for costs, expenses, and reasonable attorney fees
associated with defending themselves in the underlying litigation brought pursuant to section 4.5
of the Act. We note amicus curiae briefs in support of defendants’ cross-appeal have been filed by
both the Illinois Agricultural Association, a/k/a the Illinois Farm Bureau, and the Illinois Pork
Producers Association. On review, we address each appeal and argument in turn.
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¶ 10 A. Plaintiffs’ Appeal
¶ 11 1. Juror Misconduct
¶ 12 On appeal, plaintiffs first argue they are entitled to a new trial based on “juror
misconduct.” Specifically, they assert that juror Howard’s posttrial Facebook posts showed she
lied during voir dire and was biased against them.
¶ 13 The record shows that during voir dire, Howard stated that she did not know
anything about the case but was familiar with “the names” of two plaintiffs—Henry and Maxine
Likes. She denied that knowing those plaintiffs’ names would influence her and asserted she could
be a fair and impartial juror. As a juror, she would base her decision on the evidence and not on
sympathy for either side or bias or prejudice for or against any party. Howard represented that she
would listen carefully to the evidence before making a decision and follow the written instructions
provided by the judge. She denied having any concerns about “anything in [her] life” if she had to
spend two or three weeks as a juror. Further, Howard reported that she grew up on a farm. She
also acknowledged having a Facebook account but denied posting any “personal stuff” on
Facebook, explaining as follows: “I like [to] post birthday wishes to my friends. I mean, I look at
pictures. I don’t post stuff on there.”
¶ 14 In their posttrial motion, plaintiffs raised the issue of juror misconduct by Howard
and attached to their motion copies of Facebook postings Howard purportedly made after the trial.
According to plaintiffs, Howard’s initial posting stated as follows:
“SOME PEOPLE AMAZE ME!!!! For the last 3 weeks (22 days to be
exact) I along with 13 other people had to put our lives on hold—missing vacations
graduations and work as well as not being able to read the newspaper or listen to
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local news to do our civic duty of being a juror for a trial of hog s*** and odor from
a hog business in rural Scott County that supposedly affected the lives of 10 people
that lived in the vicinity of the business. Seriously[,] like the owner of that business
had control over the way the wind blew or how hot the weather got. The trial
concluded today and not to the liking of the 10 people that filed the suit. The more
money some people have the more they think they can do whatever they want to
ruin other people. Not the outcome in this case. Thinking they should not have put
a person on this jury that was raised on a farm in the country (just my opinion
though). Rant over.”
Plaintiffs also pointed out that after another individual commented “[w]ow” in response to
Howard’s post, Howard responded to the individual, stating the following: “That’s what I said for
three weeks ***. It is unbelievable what some people will do these days.”
¶ 15 Plaintiffs argue the Facebook posts show Howard displayed sympathy for farmers,
had knowledge about plaintiffs’ wealth or income beyond what was shown at trial, and discussed
the case while the trial was ongoing. They claim her postings establish that she made untrue
statements during voir dire, including that she (1) had no concerns about the effect of a two to
three week trial on her life, (2) could be fair and impartial, (3) had no relationship with the
plaintiffs and was not influenced by knowing their names, (4) would listen to the evidence before
making a decision, and (5) did not post “personal stuff” on Facebook.
¶ 16 Defendants contend the trial court did not abuse its discretion by denying plaintiffs’
motion for a new trial based on Howard’s alleged posttrial statements. They argue that the
purported Facebook posts cannot be “considered” because they were not authenticated and because
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they were inadmissible hearsay. In the alternative, they argue the posts did not demonstrate that
Howard testified falsely during voir dire or that she was biased.
¶ 17 Initially, we agree with plaintiffs’ assertion that defendants have forfeited any
challenge to the trial court’s consideration of the Facebook posts by not raising those issues in the
proceedings below. Issues not raised with the trial court are forfeited on review. 1010 Lake Shore
Ass’n v. Deutsche Bank National Trust Co., 2015 IL 118372, ¶ 14, 43 N.E.3d 1005. In this
instance, defendants did not object to the trial court’s consideration of the Facebook posts on either
authentication or hearsay grounds. Instead, in both their written response to plaintiffs’ posttrial
motion and argument before the court, defendants implicitly acknowledged Howard as the author
of the Facebook posts and presented argument that invited the court’s consideration of those posts.
Accordingly, defendants’ authentication and hearsay challenges to the posts have been forfeited.
We decline to consider those challenges and address the merits of plaintiffs’ “juror misconduct”
claim.
¶ 18 “The purpose of voir dire is to assure the selection of an impartial panel of jurors
who are free from bias or prejudice.” Kingston v. Turner, 115 Ill. 2d 445, 464, 505 N.E.2d 320,
328 (1987). “The standard for juror impartiality is whether the juror had such fixed opinions that
he could not judge impartially.” In re Commitment of Curtner, 2012 IL App (4th) 110820, ¶ 20,
972 N.E.2d 351. “Mere suspicion of bias or impartiality is not evidence and does not disqualify a
juror.” Roach v. Springfield Clinic, 157 Ill. 2d 29, 48, 623 N.E.2d 246, 255 (1993).
¶ 19 Further, “[a] motion for a new trial based on a juror’s false testimony during
voir dire should be denied unless the movant establishes both that the juror answered falsely and
that prejudice resulted.” Diaz v. Kelley, 275 Ill. App. 3d 1058, 1064, 657 N.E.2d 657, 662 (1995)
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(citing Pekelder v. Edgewater Automotive Co., 68 Ill. 2d 136, 368 N.E.2d 900 (1977)). We review
the trial court’s denial of such a motion for an abuse of discretion. Crowley v. Watson, 2016 IL
App (1st) 142847, ¶ 63, 51 N.E.3d 69.
¶ 20 Here, we find the Facebook posts identified by plaintiffs failed to reflect either that
Howard was a biased juror or that she answered falsely during voir dire. Clearly, Howard
expressed strong opinions about the case in the Facebook posts. However, it is undisputed that the
posts were not made until after the jury had reached its verdict and the trial was concluded.
Contrary to plaintiffs’ assertions, the posts do not reflect that Howard held pretrial bias in favor of
farmers, that her statements about plaintiffs’ wealth were based on anything more than impressions
she formed from her observations at trial, or an admission that she discussed the case while the
trial was ongoing. Instead of showing that Howard held fixed opinions inconsistent with
impartiality while fulfilling her responsibilities as a juror, the posts indicate—as defendants
argue—that Howard was expressing her “post-verdict assessment or analysis of the trial.”
¶ 21 On appeal, plaintiffs additionally point to statements the trial court made about
Howard outside of the jury’s presence and during the trial, arguing they support a finding that
Howard “may have infected the jury.” Specifically, the record shows that on the last day of the
trial and prior to closing arguments, the court and the parties conferred outside the presence of the
jury and the court made the following statements:
“There is always somebody when you walk in a room, they walk in a room
and focus has to be on them. Always. And they have to create or preserve, find
something that allows them to step into the center of attention. And we have several
people on the jury like that. Kelly Howard is one of those and she is toned down a
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lot. Greg Lewis is the other one. He stopped me in the parking lot, said I got to talk
to you, tell the bailiff. So, he told the bailiff and I had him write it out. And this is
nothing but this is just him placing himself in the center of attention.
Okay. I don’t see any problems but I wanted to advise you.”
In context, the court’s statements reflect that it was addressing an issue with a different juror that
had been brought to its attention, not Howard. There is no indication from the record that, during
the trial, Howard was improperly commenting about the case to the other jurors or otherwise.
¶ 22 Given the circumstances presented, the record does not support plaintiffs’ claims
that Howard lied during voir dire or that they were prejudiced in any manner. As a result, the trial
court did not abuse its discretion by denying their motion for a new trial based on Howard’s alleged
“juror misconduct.”
¶ 23 2. IPI Civil No. 5.01
¶ 24 Plaintiffs next argue that the trial court erred by denying their request to give the
jury an “adverse-inference instruction” based on IPI Civil No. 5.01. They argue the instruction was
warranted due to evidence that defendants “cleaned up” their property—in particular, bones on
their property—prior to a site visit by plaintiffs’ experts. They contend defendants’ actions in
cleaning up were relevant because the presence of bones could have supported their claims that
defendants “left the dead animals out to fully decay,” contributing to the foul odors plaintiffs were
exposed to as defendants’ neighbors. Plaintiffs further complain that the court erred by failing to
articulate a reason for denying the requested instruction.
¶ 25 IPI Civil No. 5.01, also referred to as the “missing-evidence instruction,” is given
to “advise the jury that, if a party fails to offer evidence that is within its power to produce, the
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jury may infer that this evidence would be adverse to that party.” Simmons v. Garces, 198 Ill. 2d
541, 573, 763 N.E.2d 720, 740 (2002). The instruction states as follows:
“If a party to this case has failed [to offer evidence] [to produce a witness]
within his power to produce, you may infer that the [evidence] [testimony of the
witness] would be adverse to that party if you believe each of the following
elements:
1. The [evidence] [witness] was under the control of the party and
could have been produced by the exercise of reasonable diligence.
2. The [evidence] [witness] was not equally available to an adverse
party.
3. A reasonably prudent person under the same or similar
circumstances would have [offered the evidence] [produced the
witness] if he believed [it to be] [the testimony would be] favorable
to him.
4. No reasonable excuse for the failure has been shown.” IPI Civil
No. 5.01.
To warrant giving the instruction, there must be “some foundation evidence” presented as to each
of the four listed elements. Wetherell v. Matson, 52 Ill. App. 3d 314, 318, 367 N.E.2d 472, 475
(1977).
¶ 26 Additionally, “[b]efore giving the instruction, the trial court must first determine
whether, in all likelihood, the party would have produced the witness under the facts and
circumstances of the case unless the testimony would be unfavorable.” Wilkerson v. Pittsburgh
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Corning Corp., 276 Ill. App. 3d 1023, 1029, 659 N.E.2d 979, 983 (1995). If evidence “would be
merely cumulative of facts already established, the instruction is not warranted.” Id. “The decision
whether to use the instruction or permit the argument is reserved to the sound discretion of the
court.” Schaffner v. Chicago & North Western Transportation Co., 129 Ill. 2d 1, 22, 541 N.E.2d
643, 651 (1989).
¶ 27 Here, at trial, Brian Bradshaw testified he was an owner and manager of the
defendants’ hog farming operations. He acknowledged that just prior to the time that plaintiffs’
experts were scheduled to view defendants’ properties and facilities in March 2013, defendants
“cleaned up because [they] knew [they] were having company coming.” During the cleanup, they
“took down some trees” and “harrowed” areas around buildings. Bradshaw testified he met with
employees and told them to “haul the trash off” and “mow the grass.” He further testified as
follows:
“Q. You told [your employees] to pick up bones before the visit?
A. I don’t think we did much of that *** but, yeah, we might have picked
up some bones.
Q. All right. And you told the employees to pick them up when they found
them, didn’t you?
A. Absolutely, yeah.
Q. All right. And you agree that bones were found all over the South
Sandstone site?
A. I do. I don’t think them are all ours, but I do agree, yes.”
¶ 28 As stated, plaintiffs argue on appeal both that the trial court erred in refusing to give
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an adverse-inference instruction based on IPI Civil No. 5.01 and that it erroneously failed to state
the basis for its refusal. We note plaintiffs failed to raise the latter claim with the trial court and,
therefore, have forfeited it for purposes of review. 1010 Lake Shore Ass’n, 2015 IL 118372, ¶ 14.
¶ 29 However, even disregarding plaintiffs’ forfeiture, we disagree with their assertion
that the bases for the trial court’s decision as to IPI Civil No. 5.01 are not reflected in the record.
During the jury instruction conference, the parties presented argument regarding the propriety of
giving IPI Civil No. 5.01, and ultimately, the court rejected the instruction. In addressing the issue,
the court commented as follows: “[T]he jury saw numerous, hundreds of bones laying around the
premises. What [sic] 20 extra bones around the grounds makes a difference?” Further, it stated as
follows:
“I think the testimony of *** Bradshaw that he cleaned up when company was
coming was a very good explanation and not giving him more credibility to him
than he should have, but I think that was a sincere comment that he made in
describing what he did it [sic] and when he did it. Implication that you would like
to make is he is covering up some evidence of something, I think [that] went away
when he claimed credit for those bones near the building which I don’t think I
would have done because some of those bones appeared to be dried and bleached
and maybe not his bones but bones that were there *** as a result of digging the
foundations. I think I would have left that alone[,] but he didn’t. So[,] I think the
jury can draw the inference they want to.”
¶ 30 Thus, contrary to plaintiffs’ arguments on appeal, the record does reflect the trial
court’s rationale for denying an adverse-inference instruction. In particular, the court’s comments
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indicate it rejected the instruction on the basis that the “missing evidence,” i.e., the bones cleaned
up by defendants, was cumulative of other evidence of bones on defendants’ properties and
because the court determined it was not likely that the cleanup was done to hide unfavorable
evidence. See Wilkerson, 276 Ill. App. 3d at 1029 (“Before giving the instruction, the trial court
must first determine whether, in all likelihood, the party would have produced the witness under
the facts and circumstances of the case unless the testimony would be unfavorable.”). Ultimately,
these were appropriate considerations for the court and warranted not giving the instruction.
Plaintiffs’ arguments on appeal fail to establish an abuse of discretion by the court with respect to
either its determination that the missing evidence was cumulative or that the cleanup was not done
to hide unfavorable evidence. Moreover, we question whether circumstances such as those
presented here, where a defendant in a nuisance lawsuit “cleans up” its premises prior to the
opposing party’s inspection, several years prior to trial, could constitute “missing evidence”
warranting the court’s giving of IPI Civil No. 5.01.
¶ 31 Additionally, assuming arguendo that an adverse-inference instruction based on IPI
Civil No. 5.01 was warranted, we find no prejudice to plaintiffs resulted from the failure to give
that instruction. “On appeal, a reviewing court will reverse and grant a new trial based on a trial
judge’s error in instructing the jury only when the error resulted in prejudice to the appealing
party.” Wilkerson, 276 Ill. App. 3d at 1030. In Simmons, 198 Ill. 2d at 574, the supreme court
found no unfair prejudice to the plaintiffs from the trial court’s failure to give an instruction based
on IPI Civil No. 5.01 where the court “nevertheless allowed [the] plaintiffs to argue whatever
inferences they felt the jury should draw from [the] defendant’s failure to produce” evidence. The
same circumstances are presented by this case, as the record shows the court permitted plaintiffs
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to argue to the jury that adverse inferences should be drawn from defendants’ challenged actions.
Accordingly, plaintiffs did not suffer unfair prejudice and reversal for a new trial is unwarranted.
¶ 32 3. Nonpattern Jury Instructions
¶ 33 Plaintiffs finally argue that the trial court erred by accepting three nonpattern jury
instructions submitted by defendants. They assert the instructions were long, confusing, and
misleading. Plaintiffs also assert that two of the instructions contained inaccurate statements of the
law.
¶ 34 “The function of jury instructions is to convey to the jury the correct principles of
law applicable to the submitted evidence and, as a result, jury instructions must state the law fairly
and distinctly and must not mislead the jury or prejudice a party.” (Emphasis omitted.) Dillon v.
Evanston Hospital, 199 Ill. 2d 483, 507, 771 N.E.2d 357, 372 (2002). Illinois Supreme Court Rule
239(a) (eff. Apr. 8, 2013) provides that when a trial court determines a jury should be instructed
on a subject in a civil case, applicable pattern jury instructions should be used. However, where
pattern instructions do “not accurately state the law, the court may instruct the jury pursuant to a
nonpattern instruction.” Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d
260, 273, 775 N.E.2d 964, 972 (2002); see also Dillon, 199 Ill. 2d at 505 (stating that “where ***
pattern instructions are inadequate,” additional instruction with nonpattern instructions is
appropriate). Nonpattern instructions given to a jury “should be simple, brief, impartial, and free
from argument.” Ill. S. Ct. R. 239(a) (eff. Apr. 8, 2013).
¶ 35 “Generally, a trial court’s decision to grant or deny an instruction is reviewed for
abuse of discretion.” Studt v. Sherman Health Systems, 2011 IL 108182, ¶ 13, 951 N.E.2d 1131.
“ ‘The standard for determining an abuse of discretion is whether, taken as a whole, the instructions
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are sufficiently clear so as not to mislead and whether they fairly and correctly state the law.’ ” Id.(quoting Dillon, 199 Ill. 2d at 505). “When the question is whether the applicable law was
conveyed accurately, however, the issue is a question of law, and our standard of review is
de novo.” Id.¶ 36 “A reviewing court ordinarily will not reverse a trial court for giving faulty
instructions unless they clearly misled the jury and resulted in prejudice to the appellant.” Schultz,
201 Ill. 2d at 274. Further, “[a] party forfeits the right to challenge a jury instruction that was given
at trial unless it makes a timely and specific objection to the instruction and tenders an alternative,
remedial instruction to the trial court.” Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516, 557, 901
N.E.2d 329, 353 (2008).
¶ 37 a. Defendants’ Proposed Instruction No. 3
¶ 38 Plaintiffs first challenge defendants’ proposed jury instruction No. 3 on the basis
that it was “neither simple nor brief” and, instead, was confusing and misleading. That instruction,
as modified and given to the jury as Instruction No. 12, provided as follows:
“Plaintiffs have alleged that one or more of the Defendants’ actions have
created a nuisance that is both ‘private’ and ‘temporary.’ A private nuisance is an
invasion of another’s interest in the use and enjoyment of his or her land. This
invasion must be:
1.) Substantial,
2.) And either Intentional or Negligent,
3.) And unreasonable.
If you find that that [sic] one or more of the Defendants have created a
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private nuisance, you must determine whether it is one that is temporary in nature.
A private nuisance is temporary if it meets the three criteria above and is also:
1.) Occasional, Intermittent, or recurrent,
2.) Or remediable, removable, or abatable,
3.) Or caused by the negligent construction of a legal enterprise or the
negligent manner of its operation.
If the invasion alleged by each of the Plaintiffs does not meet these
requirements, those Plaintiffs have not proven the existence of a private temporary
nuisance and your verdict will be for the Defendants as to that Plaintiff.”
¶ 39 Initially, defendants argue plaintiffs “waived” any objection to the challenged
instruction by conceding during the jury instruction conference that it accurately stated the law.
See Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2013 IL 110505, ¶ 26, 988 N.E.2d 75(“Waiver is the intentional relinquishment or abandonment of a known right.” (Internal quotation
marks omitted.)). We disagree.
¶ 40 The record shows plaintiffs’ counsel raised objections to defendants’ proposed
instruction No. 3 on the bases that it did not accurately state nuisance law and because it was not
“simple.” Plaintiffs also submitted proposed alternative instructions of their own and argued in
their posttrial motion that the above instruction was confusing and misleading. Under these
circumstances, we decline to find waiver as to plaintiffs’ claim that the proposed instruction was
confusing and misleading—the only challenge to defendants’ proposed instruction No. 3 that they
raise on appeal.
¶ 41 Nevertheless, although we do not find waiver, we do find that plaintiffs have
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presented a deficient argument in challenging this nonpattern instruction on appeal. We note that
the “Argument” section of an appellant’s brief must “contain the contentions of the appellant and
the reasons therefor, with citation of the authorities and the pages of the record relied on.” Ill. S.
Ct. R. 341(h)(7) (eff. May 25, 2018). “A conclusory assertion, without supporting analysis, is not
enough.” Wolfe v. Menard, Inc., 364 Ill. App. 3d 338, 348, 846 N.E.2d 605, 613 (2006). Further,
“[p]oints not argued are forfeited.” Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018).
¶ 42 In this instance, plaintiffs’ argument is conclusory and unsupported by developed
legal analysis. Plaintiffs simply conclude that the challenged nonpattern instruction was confusing
and misleading and provide virtually no explanation for their conclusions. In their brief, plaintiffs
set forth no viable alternative to the challenged instruction, fail to identify either the objectionable
language of the challenged instruction or the proposed alternatives they submitted to the trial court,
and cite no legal authority relative to the issue of a private and temporary nuisance.
¶ 43 Further, the only potential basis plaintiffs provided for their conclusory statements
that the challenged instruction was misleading was that one juror, Gregory Lewis, expressed
confusion after the trial, in that he “thought [p]laintiffs had to prove the invasion was
‘continuous.’ ” However, plaintiffs provide no legal authority to support the argument that the
posttrial statements of a juror can be used to establish that the trial court erred in instructing the
jury. In fact, as defendants’ point out, case authority indicates otherwise. See Chalmers v. City of
Chicago, 88 Ill. 2d 532, 539, 431 N.E.2d 361, 365 (1982) (stating “the testimony or affidavits of
jurors cannot be used to show that the jury misunderstood the instructions or the law”).
¶ 44 Given the deficiencies in plaintiffs’ argument on appeal, we find they have forfeited
their challenge to any instruction given to the jury based on defendants’ proposed jury instruction
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No. 3. We decline to consider their claims that the challenged instruction was misleading or
confusing.
¶ 45 b. Defendants’ Proposed Instruction No. 4
¶ 46 Plaintiffs next challenge defendants’ proposed jury instruction No. 4, arguing it
contained inaccurate statements of the law and was argumentative. That proposed instruction was
given to the jury as Instruction No. 13 and provided as follows:
“When I use the expression ‘substantial invasion,’ the invasion must be
severe enough to constitute a material annoyance to a reasonable person of ordinary
sensibilities. This means that the invasion by odor, flies and/or dust must be enough
to offend a reasonable person, rather than a person who is abnormally sensitive.”
¶ 47 On appeal, plaintiffs argue that the above instruction is legally inaccurate because
it references “a person who is abnormally sensitive.” They cite case authority for the proposition
that the correct “standard for determining if particular conduct constitutes a nuisance is the
conduct’s effect on a reasonable person.” In re Chicago Flood Litigation, 176 Ill. 2d 179, 204, 680
N.E.2d 265, 277 (1997) (citing Belmar Drive-In Theatre Co. v. Illinois State Toll Highway
Comm’n, 34 Ill. 2d 544, 547, 216 N.E.2d 788, 791 (1966)).
¶ 48 However, as defendants note, the same cases plaintiffs cite reference a plaintiff’s
use of his land as being “abnormally sensitive” to a defendant’s interference, providing as follows:
“[I]n deciding whether a particular annoyance is sufficient to constitute a nuisance
the criterion is ‘its effect upon an ordinarily reasonable man,— that is, a normal
person of ordinary habits and sensibilities, ***.’ [Citations.] As stated ***, ‘the
injury must be something more than *** a question of mere delicacy or
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fastidiousness arising from elegant and dainty habits of life ***.’ The same doctrine
*** has been applied by American and English courts where the use to which a
plaintiff puts his land is abnormally sensitive to the type of interference caused by
the defendant ***.” (Emphasis added.) Belmar, 34 Ill. 2d at 547.
Citing the above language in Belmar, this court has held that “[i]n determining whether a particular
annoyance constitutes a nuisance, the court is to consider the effect of the annoyance on an
ordinary, reasonable person, rather than the effect on a person who is abnormally sensitive.”
(Emphasis added.) Kolstad v. Rankin, 179 Ill. App. 3d 1022, 1032-33, 534 N.E.2d 1373, 1380
(1989); see also Woods v. Khan, 95 Ill. App. 3d 1087, 1090, 420 N.E.2d 1028, 1030 (1981) (stating
that complaining homeowners in a nuisance action “cannot be found to be unduly sensitive”).
Thus, contrary to plaintiffs’ assertions on appeal, relevant case authority does contain references
to an “abnormally sensitive” plaintiff or use of a plaintiff’s land. As a result, their assertion that
the challenged instruction misstates the law by using such language is without merit.
¶ 49 Next, plaintiffs additionally assert the “abnormally sensitive” person language in
the challenged instruction was argumentative. However, again, their brief contains only a
conclusory statement of error with no legal analysis of the issue. Accordingly, we find this
argument forfeited and decline to consider it.
¶ 50 Finally, as stated, plaintiffs also claim that the above instruction is legally
inaccurate because it defines a “substantial invasion” by using the phrase “material annoyance.”
Plaintiffs claim the phrase “material annoyance” does not appear in any of the “leading cases” and
that none of those cases provide a definition of what constitutes a “substantial invasion.” Critically,
however, plaintiffs fail to cite any of the “leading” nuisance cases to which they refer. As expressed
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above, an appellant’s brief must “contain the contentions of the appellant and the reasons therefor,
with citation of the authorities and the pages of the record relied on.” (Emphasis added.) Ill. S. Ct.
R. 341(h)(7) (eff. May 25, 2018). Plaintiffs’ failure to cite legal authority to support their claim
results in forfeiture of the issue on review. See Ford v. Round Barn True Value, Inc., 377 Ill. App.
3d 1109, 1115, 883 N.E.2d 20, 25 (2007) (holding a plaintiff forfeited arguments on appeal “by
failing to cite authority as required by Supreme Court Rule 341(h)(7)”).
¶ 51 Additionally, even if we were to ignore plaintiffs’ forfeiture, we would find their
claim to be without merit. It has been held that “[a] private nuisance is a substantial invasion of
another’s interest in the use and enjoyment of his or her land.” Chicago Flood Litigation, 176 Ill.
2d at 204. Further, case authority establishes that “[a] substantial and intentional invasion must be
severe enough to constitute a material annoyance to the adjoining landowners and be foreseen as
to its consequences by the offending landowner.” (Emphasis added.) Woods, 95 Ill. App. 3d at
1089-90; see also Belmar, 34 Ill. 2d at 547 (“[T]o constitute a nuisance, the act, structure or device
complained about must cause some injury *** and must work some material annoyance,
inconvenience or other injury to the person or property of another.” (Emphasis added.)); Kolstad,
179 Ill. App. 3d at 1032 (“Any unreasonable, unwarranted, or unlawful use of one’s property such
that another’s use and enjoyment of his property is invaded by a material annoyance,
inconvenience, discomfort, or hurt is a nuisance.” (Emphasis added.)); Statler v. Catalano, 167 Ill.
App. 3d 397, 403, 521 N.E.2d 565, 570 (1988) (finding evidence used to prove that the defendants’
actions caused plaintiffs’ annoyance and extreme discomfort was relevant because it “relate[d] to
the element of material annoyance of plaintiffs and *** to the use and enjoyment of plaintiffs’
home” (emphasis added)); Great Atlantic & Pacific Tea Co. v. La Salle National Bank, 77 Ill. App.
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3d 478, 485, 395 N.E.2d 1193, 1198 (1979) (stating a private nuisance “is an individual wrong
arising from an unreasonable, unwarranted or unlawful use of one’s property producing such
material annoyance, inconvenience, discomfort, or hurt that the law will presume a consequent
damage” (emphasis added)).
¶ 52 c. Defendants’ Proposed Instruction No. 7
¶ 53 In their final jury instruction challenge, plaintiffs argue the trial court erred by
instructing the jury consistent with defendants’ proposed instruction No. 7 on the basis that it also
contains an inaccurate statement of the law. The instruction as given to the jury stated as follows:
“When I use the expression, ‘unreasonable invasion,’ I mean that the extent
of the harm sustained by Plaintiffs outweighs the benefits of Defendants’ businesses
and outweighs the suitability of the location of that business.
The determination of whether the extent of harm outweighs the benefit of
the Defendants’ businesses and suitability of the location for raising hogs includes,
as well as your own life experiences, the balancing and consideration of the
following questions:
(1) Are/were Defendants *** engaged in a useful enterprise?
(2) Is this area of rural Scott County well suited for confined hog farming?
(3) Which came first, Defendants’ operations or Plaintiffs?
(4) Can the facilities be operated in a different manner such that odor, flies,
and/or dust can be reduced?
(5) Is modification of the facilities practical?”
¶ 54 On appeal, plaintiffs argue the third factor listed above “is a completely inaccurate
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statement of law” because section 3 of the Act (740 ILCS 70/3 (West 2014)) makes “coming to
the nuisance” an absolute bar to a nuisance lawsuit rather than simply a factor for consideration.
Defendants initially respond by asserting that plaintiffs forfeited this specific argument for
purposes of appeal by failing to raise it with the trial court. However, a review of the record refutes
defendants’ forfeiture argument.
¶ 55 At trial, plaintiffs’ counsel objected to defendants’ proposed instruction and argued
that “which came first [the] hog farming or Plaintiffs” was “not something that [the jurors] balance
***.” Plaintiffs’ counsel also argued that the trial court had already ruled that “regarding the ***
Act” and its applicability, “Plaintiffs were there before the Defendants were there.” The court then
commented on the evidence, stating as follows:
“THE COURT: What the jury heard was these, each of these Plaintiffs
talking about where they live and how long they have been there and what their
situation was, their families.
***
THE COURT: And then this Defendant comes in[ ]to existence and they
built this operation. The jury can make, *** no matter what I say, they can make a
determination as to who was there first. I don’t have to stand up and tell them they
were there first.”
Defendants’ counsel responded by arguing that the third factor was supported by case authority
but, nevertheless, offered to “take it out” if plaintiffs’ counsel was “offended by number [three].”
Following further argument, the court stated: “Strike number [three]. We will allow it.”
¶ 56 Next, in their posttrial motion, plaintiffs objected to the above instruction, in part,
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because “question three *** of the test was ordered to be removed by the [trial court] during the
jury instruction conference, but that question was still given.” (Emphasis in original.) When
arguing plaintiffs’ posttrial motion to the court, plaintiffs’ counsel again maintained the instruction
did not accurately state the law because section 3 of the Act made “coming to the nuisance” an
absolute bar to a nuisance action and “not a factor to be considered.” Thus, we find the record
clearly shows plaintiffs raised their claim of error to the challenged instruction with the court and,
as a result, the issue has not been forfeited by plaintiffs.
¶ 57 Although not discussed at length by either party on appeal, the record also reflects
that the trial court agreed with plaintiffs’ argument on the proposed instruction and struck the
objected-to language before accepting the instruction. The court’s handwritten notes on the
proposed instruction further support such a finding, stating the instruction would be “[g]iven w/out
[three].” Despite this determination by the court, the parties agree on appeal that the instruction
was given to the jury with the third factor included. Therefore, we consider whether reversible
error occurred in the giving of that portion of the instruction.
¶ 58 As stated, “[a] reviewing court ordinarily will not reverse a trial court for giving
faulty instructions unless they clearly misled the jury and resulted in prejudice to the appellant.”
Schultz, 201 Ill. 2d at 274. In this instance, assuming arguendo the challenged instruction was
faulty because it instructed the jury to consider and balance with other factors whether defendants’
operations or plaintiffs “came first” when determining the existence of an unreasonable invasion,
plaintiffs have failed to establish any prejudice. Not only do plaintiffs’ arguments on appeal fall
far short of even claiming prejudice from the instruction, the record also reflects that the jury could
only have weighed the challenged factor in plaintiffs’ favor when determining the
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unreasonableness of the invasion. As the trial court commented during the jury instruction
conference, the evidence at trial showed plaintiffs “came first,” before defendants’ operations were
established. Even in opening statements, defendants acknowledged that the various plaintiffs
owned and resided on their properties years before defendants began their hog farming operations
in 2007. Given these circumstances, we find no prejudice and no reversible error.
¶ 59 B. Defendants’ Cross-Appeal
¶ 60 On cross-appeal, defendants argue the trial court erred by denying their motion for
reasonable attorney fees pursuant to section 4.5 of the Act (740 ILCS 70/4.5 (West 2014)).
Specifically, they argue the court erroneously found the Act did not apply because (1) the parties’
lawsuit did “not pit non-agricultural interests against agricultural interests” and (2) defendants
“prevailed in *** a negligence action” rather than a nuisance action.
¶ 61 Plaintiffs respond by arguing the trial court correctly denied defendants’ motion for
attorney fees pursuant to section 4.5 of the Act. Alternatively, they argue section 4.5 is
unconstitutional.
¶ 62 1. Application of Section 4.5 of the Act
¶ 63 Defendants’ claim involves an issue of statutory interpretation that is subject to
de novo review. Vance v. Joyner, 2019 IL App (4th) 190136, ¶ 52, 146 N.E.3d 285. Additionally,
review of such issues is guided by the following legal principles:
“When interpreting a statute, the court’s primary objective is to ascertain
and give effect to the intent of the legislature. [Citation.] The most reliable indicator
of legislative intent is the language of the statute itself, which must be given its
plain and ordinary meaning. [Citation.] We consider the statute in its entirety,
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keeping in mind the subject it addresses and the apparent intent of the legislature in
enacting it. [Citation.] Words and phrases should not be construed in isolation but
must be interpreted in light of other relevant provisions of the statute. [Citation.]
No part of a statute should be rendered meaningless or superfluous. [Citation.]
Clear and unambiguous language will be applied as written. [Citation.] In addition,
specific statutory provisions will control over general provisions on the same
subject. [Citation.] *** Moreover, courts will presume that the legislature did not
intend to enact a statute that leads to absurdity, inconvenience, or injustice.
[Citation.]” Van Dyke v. White, 2019 IL 121452, ¶ 46, 131 N.E.3d 511.
¶ 64 The Act, which was enacted by the legislature in 1981, “is a ‘right-to-farm’ law.”
Toftoy v. Rosenwinkel, 2012 IL 113569, ¶ 15, 983 N.E.2d 463. With some variation, “such laws
exist in all 50 states.” Id. Section 1 of the Act sets forth its purpose, stating as follows:
“It is the declared policy of the state to conserve and protect and encourage the
development and improvement of its agricultural land for the production of food
and other agricultural products. When nonagricultural land uses extend into
agricultural areas, farms often become the subject of nuisance suits. As a result,
farms are sometimes forced to cease operations. Many others are discouraged from
making investments in farm improvements. It is the purpose of this Act to reduce
the loss to the State of its agricultural resources by limiting the circumstances under
which farming operations may be deemed to be a nuisance.” 740 ILCS 70/1 (West
2014).
Section 2 of the Act defines the term “farm,” as “any parcel of land used for the growing and
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harvesting of crops; for the feeding, breeding and management of livestock; for dairying or for any
other agricultural or horticultural use or combination thereof.” Id. § 2.
¶ 65 “Section 3 of the Act bars certain nuisance lawsuits.” Toftoy, 2012 IL 113569, ¶ 20.
That section states as follows:
“No farm or any of its appurtenances shall be or become a private or public nuisance
because of any changed conditions in the surrounding area occurring after the farm
has been in operation for more than one year, when such farm was not a nuisance
at the time it began operation, provided, that the provisions of this Section shall not
apply whenever a nuisance results from the negligent or improper operation of any
farm or its appurtenances.” 740 ILCS 70/3 (West 2014).
“At common law, a plaintiff who came to the nuisance would not be barred from pursuing a
nuisance action, but the fact that the land was acquired or improved after the nuisance generating
activity began would be a factor in determining whether the nuisance was actionable.” Toftoy,
2012 IL 113569, ¶ 18. However, “section 3 codifies, and makes a bar to suit, the entirety of the
coming to the nuisance doctrine.” Id. ¶ 21; see also Guth v. Tazewell County, 698 F.3d 580, 584
(7th Cir. 2012) (stating section 3 of the Act “insulat[es] farmers against nuisance suits after a farm
has been in operation for a year—but with exceptions”). “By reducing the incidence of nuisance
suits, section 3 of the Act is intended to reduce the cost of farming and help prevent the loss of
farmland.” Toftoy, 2012 IL 113569, ¶ 15.
¶ 66 Finally, relevant to this appeal is the fee-shifting provision of section 4.5 of the Act
(740 ILCS 70/4.5 (West 2014)). That section states as follows:
“In any nuisance action in which a farming operation is alleged to be a nuisance, a
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prevailing defendant shall recover the aggregate amount of costs and expenses
determined by the court to have been reasonably incurred in the defense of the
nuisance action, together with a reasonable amount for attorney fees. For the
purposes of this Section, a prevailing defendant is a defendant in a lawsuit in whose
favor a final court order or judgment is rendered.” Id.¶ 67 In this instance, we agree with defendants that the plain language of the Act,
specifically section 4.5, applies to the present case and that the trial court erred in determining
otherwise. As indicated above, section 4.5 is applicable in “any nuisance action” where a defendant
farming operation is alleged to be a nuisance and then prevails in the action. There is no dispute
that defendants’ hog farming operation constituted a “farming operation” under the Act. Instead,
the first basis for the court’s denial of attorney fees was its finding that the parties’ fact situation
did not come within the protection of the Act because “the case at bar [did] not pit
non[ ]agricultural interests against agricultural interests.”
¶ 68 As argued by defendants, we find no requirement in the Act’s plain language that
requires the plaintiffs in a nuisance suit against a farming operation to have purely nonagricultural
interests for the Act to apply. Although the purpose section of the Act generally references the
extension of nonagricultural land uses into agricultural areas as a precipitating factor of nuisance
suits, the clear and explicit “purpose” was identified as “reduc[ing] the loss to the State of its
agricultural resources by limiting the circumstances under which farming operations may be
deemed to be a nuisance.” Id. § 1; see Toftoy, 2012 IL 113569, ¶¶ 15-19 (broadly interpreting
section 3 of the Act and holding it was “intended to reduce the cost of farming and help prevent
the loss of farmland”). The legislature’s clearly stated purpose focuses on those individuals and
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entities against whom the nuisance action is brought, rather than those bringing the suit, and the
trial court’s interpretation of the Act would do little to further its stated purpose. Moreover, section
4.5 itself uses very broad language, applying to “any nuisance action” against a farming operation.
There exists no exclusion in section 4.5, or any other provision of the Act, for nuisance actions
brought by plaintiffs who themselves have “agricultural interests.” See Zink v. Khwaja, 2000 WI
App 58, ¶¶ 14-16, 233 Wis. 2d 691, 608 N.W.2d 394 (rejecting the same argument regarding a
“farmer-plaintiff exception” in the context of a similar statute).
¶ 69 As a second basis for denying defendants’ motion for attorney fees, the trial court
found that section 3 of the Act contained an “exemption of application of the [A]ct to actions
alleging negligent or improper operation of any farm.” It then characterized defendants as having
prevailed in a negligence action and, thus, being unable to avail themselves of section 4.5’s fee-
shifting provisions. Again, we disagree with the court’s interpretation.
¶ 70 As discussed, section 4.5 applies “[i]n any nuisance action in which a farming
operation is alleged to be a nuisance” and the farming operation defendant then prevails. (Emphasis
added.) 740 ILCS 70/4.5 (West 2014). Here, although plaintiffs raised claims of negligence against
defendants, those claims were brought within the context of a “nuisance action.” See Chicago
Flood Litigation, 176 Ill. 2d at 204 (A “private nuisance is a substantial invasion of another’s
interest” and requires an invasion that must be “substantial, either intentional or negligent, and
unreasonable.” (Emphasis added.)). The record reflects plaintiffs defined and argued their action
as one sounding in nuisance. The jury was instructed on applicable nuisance law. Further, even on
appeal, plaintiffs identify the underlying action as arising from “complaints of negligence and
nuisance.”
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¶ 71 Further, as stated, section 3 of the Act insulates a defendant farming operation from
nuisance suits, but contains an exception for when the nuisance is alleged to have resulted from
“the negligent or improper operation of any farm or its appurtenances.” 740 ILCS 70/3 (West
2014). By its own terms, the negligence exception in section 3 applies to only that section and its
complete bar of nuisance actions, not the entire Act. See id. (stating “the provisions of this Section
shall not apply whenever a nuisance results from the negligent or improper operation of any farm
or its appurtenances”).
¶ 72 On appeal, plaintiffs argue that because the fee-shifting provisions of section 4.5
are in derogation of the common law rule that parties to litigation bear their own fees and costs,
this court may not liberally interpret the phrase “nuisance action” as it is used in section 4.5. See
State ex rel. Schad, Diamond & Shedden, P.C. v. My Pillow, Inc., 2018 IL 122487, ¶ 18, 115
N.E.3d 923 (“Because they are in derogation of the common law, statutes *** that allow for fee
awards must be strictly construed.”). They assert that “[t]he meaning of ‘nuisance action’ cannot
also mean negligence action without construing the term beyond its narrow meaning and
introducing ambiguity.”
¶ 73 We disagree and find plaintiffs ignore critical language in the case authority they
rely upon. Specifically, plaintiffs cite the supreme court’s decision in Adams v. Northern Illinois
Gas Co., 211 Ill. 2d 32, 69, 809 N.E.2d 1248, 1271 (2004), for the following propositions of law:
“[A] court cannot construe a statute in derogation of the common law beyond what
the words of the statute expresses or beyond what is necessarily implied from what
is expressed. In construing statutes in derogation of the common law, a court will
not presume that an innovation thereon was intended further than the innovation
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which the statute specifies or clearly implies. [Citations.] Illinois courts have
limited all manner of statutes in derogation of the common law to their express
language, in order to effect the least—rather than the most—change in the common
law.” (Emphases added.)
In this case, limiting section 4.5 to its express language, it broadly applies to any nuisance action
without exclusion. We can imagine no broader interpretation of this language than what is already
contained within the plain and explicit language of the statute itself. In other words, the statutory
language of section 4.5 gives “nuisance action” a broad application and not the narrow one
advocated by plaintiffs.
¶ 74 Here, the trial court read exceptions into the Act that are not present in its plain and
unambiguous language. Applying the plain language of the Act, we find section 4.5 applies to the
present case, in that plaintiffs brought a nuisance action against defendants, who operated a hog
farming operation, alleging it to be a nuisance. Defendants prevailed in the action and are,
therefore, entitled to “recover the aggregate amount of costs and expenses determined by the court
to have been reasonably incurred in the defense of the nuisance action, together with a reasonable
amount for attorney fees.” 740 ILCS 70/4.5 (West 2014).
¶ 75 2. Constitutionality of Section 4.5 of the Act
¶ 76 On appeal, plaintiffs argue that defendants’ interpretation of section 4.5 of the Act
is unconstitutional. Specifically, they contend that section 4.5, as interpreted by defendants,
violates the Illinois Constitution’s protection against special legislation (Ill. Const. 1970, art. IV,
§ 13) and its equal protection clause (Ill. Const. 1970, art. I, § 12). They claim their interests in the
use and enjoyment of their properties are a fundamental right, requiring a strict-scrutiny analysis
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of section 4.5. Finally, plaintiffs contend defendants’ interpretation of section 4.5 runs afoul of the
separation of powers clause (Ill. Const. 1970, art. II, § 1).
¶ 77 a. Standard of Review
¶ 78 “The constitutionality of a statute is a question of law subject to de novo review.”
Piccioli v. Board of Trustees of Teachers’ Retirement System, 2019 IL 122905, ¶ 17, 137 N.E.3d
745. “Statutes carry a strong presumption of constitutionality” and “[i]t is this court’s duty to
uphold the constitutionality of a statute if reasonably possible.” Id. The party alleging the
unconstitutionality of a statute “bear[s] the burden of establishing the statute’s constitutional
infirmity.” Id.¶ 79 b. Timeliness of Notice
¶ 80 Initially, defendants argue that this court need not reach plaintiffs’ constitutionality
claims because plaintiffs failed to give timely notice of those claims to the Illinois Attorney
General pursuant to Illinois Supreme Court Rule 19 (eff. Sept. 1, 2006). Specifically, defendants
assert they filed affirmative defenses in September 2011 and December 2013, which put plaintiffs
on notice of their intention to claim an entitlement to attorney fees pursuant to section 4.5.
Defendants further argue that because plaintiffs did not notify the Attorney General of their
constitutional arguments until June 2016, they have waived those arguments.
¶ 81 Illinois Supreme Court Rule 19(a) (eff. Sept. 1, 2006) requires parties that challenge
the constitutionality of a statute to provide notice of their challenge to the Attorney General. “The
notice shall be served at the time of suit, answer or counterclaim, if the challenge is raised at that
level, or promptly after the constitutional *** question arises as a result of a circuit or reviewing
court ruling or judgment.” Ill. S. Ct. R. 19(b) (eff. Sept. 1, 2006). A party’s failure to comply with
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Rule 19 “results in waiver of the constitutional issue.” Villareal v. Peebles, 299 Ill. App. 3d 556,
560, 701 N.E.2d 145, 148 (1998).
¶ 82 Further, the determination of whether there was prompt notification, turns on “when
the constitutional question arose.” Id. “To have standing to challenge the constitutionality of a
statute, one must have sustained or be in immediate danger of sustaining a direct injury as a result
of enforcement of the challenged statute.” (Emphasis in original.) Id. (citing Messenger v. Edgar,
157 Ill. 2d 162, 623 N.E.2d 310, 314 (1993)).
¶ 83 Here, although defendants raised the possibility of a section 4.5 claim for fees and
costs early in the parties’ litigation, plaintiffs were not in “immediate danger” of sustaining an
injury as a result of the enforcement of section 4.5 until defendants prevailed in the underlying
litigation on May 24, 2016, and after defendants filed their motion for attorney fees on June 10,
2016. Plaintiffs’ notice of a claim of unconstitutionality was given shortly following those events.
Accordingly, we find it was “promptly” given within the meaning of Rule 19.
¶ 84 c. Special Legislation Clause
¶ 85 The special legislation clause of the Illinois Constitution provides as follows:
“The General Assembly shall pass no special or local law when a general
law is or can be made applicable. Whether a general law is or can be made
applicable shall be a matter for judicial determination.” Ill. Const. 1970, art. IV,
§ 13.
The clause “prohibits the General Assembly from conferring a special benefit or privilege upon
one person or group and excluding others that are similarly situated.” (Internal quotation marks
omitted.) Piccioli, 2019 IL 122905, ¶ 18. To determine whether a law constitutes special
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legislation, a court must determine (1) “whether the statutory classification at issue discriminates
in favor of a select group and against a similarly situated group” and (2) “if the classification does
so discriminate, *** whether the classification is arbitrary.” Id.¶ 86 First, “laws will not be regarded as improper special legislation merely because
they affect only one class of entities and not another.” Big Sky Excavating, Inc. v. Illinois Bell
Telephone Co., 217 Ill. 2d 221, 236, 840 N.E.2d 1174, 1183 (2005). Instead, to contravene the
special legislation clause, “the statute must confer on a person, entity, or class of persons or entities
a special benefit or exclusive privilege that is denied to others who are similarly situated.” Id.¶ 87 Here, plaintiffs have failed to meet their burden of establishing that section 4.5 of
the Act discriminates in favor of a select group and against a similarly situated group. On appeal,
they argue that “similarly situated [p]laintiffs with actions against farms are arbitrarily categorized
differently,” in that plaintiffs who bring unsuccessful negligence or trespass suits against a farm
are treated differently from plaintiffs who bring unsuccessful nuisance suits. However, as stated,
it is not enough that a law affects only one class of individuals and not another, and the proper
consideration is whether a class of persons is receiving a special benefit or privilege to the arbitrary
exclusion of similarly situated individuals. In this instance, plaintiffs focus on the wrong group for
comparison.
¶ 88 Section 4.5 of the Act clearly confers a benefit to defendant farmers or farming
operations that successfully defend a nuisance action by permitting them to obtain an award of
attorney fees. The appropriate inquiry, then, is whether individuals or entities who are similarly
situated to prevailing defendant farmers or farming operations in a nuisance suit—the class
receiving the benefit—are being arbitrarily excluded. Here, plaintiffs have failed to identify any
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similarly situated group comparable to the subject class, an omission that is fatal to their
constitutional claim. See Austin Highlands Development Co. v. Midwest Insurance Agency, Inc.,
2020 IL App (1st) 191125, ¶ 29 (finding the party challenging a statute as unconstitutional special
legislation failed to meet their burden and “[c]ritically” failed to identify “a comparable group that
does not receive the alleged special protection”).
¶ 89 Second, assuming arguendo that plaintiffs presented a sufficient argument to
establish that section 4.5 discriminates in favor of a select group and against a similarly situated
group, they have also failed to meet the remainder of their burden for establishing unconstitutional
special legislation—that the discriminatory classification is arbitrary. “Whether a classification is
arbitrary is generally determined under the same standards that are applicable to an equal
protection challenge.” Piccioli, 2019 IL 122905, ¶ 20. Accordingly, “[w]here *** a statute does
not affect fundamental rights, we use the rational basis test to assess its constitutionality.” Id.“Under this test, we ask whether the statutory classification is rationally related to a legitimate
state interest.” Id. Conversely, “if the statute infringes upon a fundamental right, then the statute
must withstand strict scrutiny and will only survive if it is necessary to promote a compelling state
interest and narrowly tailored to effectuate that state interest.” Hope Clinic for Women, Ltd. v.
Flores, 2013 IL 112673, ¶ 81, 991 N.E.2d 745.
¶ 90 Plaintiffs argue “that the enjoyment of property is a fundamental right” and section
4.5 of the Act violates their rights to the “use and enjoyment of their property.” They contend
section 4.5 “impinges on the exertion of the right to use and enjoy property because it serves to
discourage even meritorious suits seeking remedy for interference with the right to use and enjoy
property.” Accordingly, they contend a strict scrutiny analysis applies. We disagree.
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¶ 91 Although plaintiffs strongly assert that they have a fundamental right to the use and
enjoyment of their property, they cite no case authority wherein such a fundamental right was
found and strict scrutiny was applied. Ultimately, we do not find that relevant case authority
supports their position. See Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 308-09, 891 N.E.2d
839, 847 (2008) (holding that although “the privilege to use one’s property in his own way and for
his own purposes is both a liberty and a property right,” the property rights alleged to be infringed
by the enactment of zoning code amendments were not fundamental rights and strict scrutiny was
inapplicable); Petterson v. City of Naperville, 9 Ill. 2d 233, 247, 137 N.E.2d 371, 379 (1956) (“The
privilege of the individual to use his property as he pleases is subject always to a legitimate exercise
of the police power under which new burdens may be imposed upon property and new restrictions
placed upon its use when the public welfare demands.”); Beeding v. Miller, 167 Ill. App. 3d 128,
141, 520 N.E.2d 1058, 1067 (1988) (“[A] property owner’s right to use his property as he chooses
is subordinate to the State’s right to regulate that use for the protection of the general welfare.”).
¶ 92 Additionally, we find the Illinois case authority relied upon by defendants speaks
to the circumstances presented here. In Shachter v. City of Chicago, 2011 IL App (1st) 103582,
¶ 97, 962 N.E.2d 586, the First District rejected the plaintiffs’ contention that strict scrutiny applied
to his constitutional claim that a weed ordinance interfered with his right to use his property.
Plaintiffs dismiss this case on the basis that it involved the exercise of the State’s police powers.
However, “police power” refers to “the attribute of sovereignty in every government by which it
may protect lives, health, morals and general welfare.” Sherman-Reynolds, Inc. v. Mahin, 47 Ill.
2d 323, 326, 265 N.E.2d 640, 642 (1970). “The police power relates not merely to the public health
and to public physical safety, but also to public financial safety.” (Internal quotation marks
- 35 -
omitted.) Id.; Zelney v. Murphy, 387 Ill. 492, 499, 56 N.E.2d 754, 758 (1944) (“Legislation under
the police power of the State is not confined to public health, safety or morality, but may extend
to matters in the interest of the public welfare or convenience.”). Plaintiffs present no explanation
or argument on appeal as to why section 4.5 of the Act would fall outside of the bounds of the
State’s “police power” and the legislature’s ability to enact regulations in the interest of the public
welfare. This omission is particularly apparent in light of “the declared policy of the state to
conserve and protect and encourage the development and improvement of its agricultural land for
the production of food and other agricultural products.” 740 ILCS 70/1 (West 2014).
¶ 93 Further, in Marks v. Vanderventer, 2015 IL 116226, ¶ 1, 39 N.E.3d 915, the
supreme court considered the constitutionality of a $10 surcharge that was collected “for the
recordation of any real estate-related document in a county.” In doing so, it rejected the plaintiffs’
contention “that the statutory surcharge implicate[d] a fundamental right because property interests
[were] involved.” Id. ¶ 26. The court noted the plaintiffs cited no case authority to support their
assertion and that “the case law [was] to the contrary.” Id. In particular, it cited Estate of Cowser
v. Commissioner of Internal Revenue, 736 F.2d 1168, 1173 n.3 (7th Cir. 1984), for the proposition
that “[m]any laws have indirect but nonetheless potentially significant effects on property” and
“[s]uch indirect effects do not subject them to strict scrutiny.” (Internal quotation marks omitted.)
Marks, 2015 IL 116226, ¶ 26. Accordingly, the court applied “rational basis review.” Id.¶ 94 As discussed, section 4.5 of the Act is a fee-shifting statute. It requires that
plaintiffs, whose nuisance claims against a farm or farming operation have been unsuccessful, pay
the prevailing defendant’s reasonable litigation costs and expenses. To the extent section 4.5 has
any effect on a nuisance plaintiff’s use and enjoyment of his property, the effects are indirect. We
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decline to apply a strict scrutiny analysis in this case.
¶ 95 In applying the rational basis test, we consider “whether the statutory classification
is rationally related to a legitimate state interest.” Piccioli, 2019 IL 122905, ¶ 20. In the Act, the
legislature declared that it was state policy “to conserve and protect and encourage the
development and improvement of its agricultural land for the production of food and other
agricultural products” and that the purpose of the act was “to reduce the loss to the State of its
agricultural resources by limiting the circumstances under which farming operations may be
deemed to be a nuisance.” 740 ILCS 70/1 (West 2014). Plaintiffs do not dispute that these are
legitimate state interests.
¶ 96 Further, we find section 4.5 is rationally related to the asserted state interests by
creating a disincentive for the filing of nuisance lawsuits that are without merit or which have a
low probability of success. In particular, legislative history relevant to the passage of section 4.5
as an amendment to the Act reflects the following:
“This Amendment *** provides that the prevailing defendant in a farm nuisance
action shall be awarded reasonable attorney fees, costs and expenses. The Farm
Nuisance Suit Act was enacted by this General Assembly *** in 1981. This has
served the agricultural community very well. I think that this Amendment is
necessary so that we can do away with frivolous law suits [sic] that do hinder
agriculture, especially those that are involved in the livestock industry.” (Emphasis
added.) See 89th Ill. Gen. Assem., House Proceedings, April 25, 1995, at 3
(statements of Representative Lawfer).
Section 4.5 has the arguable effect of reducing nuisance lawsuits and, thereby, reducing costs to
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farmers in defending such litigation and assisting with the conservation of Illinois’s agricultural
resources. See Toftoy, 2012 IL 113569, ¶ 15 (equating reductions in the incidence of nuisance suits
with reductions in the cost of farming and preventing the loss of farmland). Accordingly, we find
section 4.5 is not arbitrary and does not violate the special legislation clause of the Illinois
Constitution.
¶ 97 d. Equal Protection Clause
¶ 98 In their notice of a claim of unconstitutionality to the Illinois Attorney General,
plaintiffs also alleged section 4.5 of the Act is unconstitutional on equal protection grounds.
¶ 99 “When evaluating equal protection claims, this court uses the same standards for
both the United States and Illinois Constitutions.” In re Destiny P., 2017 IL 120796, ¶ 14, 102
N.E.3d 149. “The equal protection clause guarantees that similarly situated individuals will be
treated in a similar fashion unless the government can demonstrate an appropriate reason to treat
them differently.” Id. As stated above, the same standards apply when evaluating a constitutional
challenge to a statute based on claims that it is impermissible special legislation and that it violates
the equal protection clause. Piccioli, 2019 IL 122905, ¶ 20. Consequently, to the extent plaintiffs
argue on appeal that section 4.5 of the Act violates the equal protection clause, their challenge
must fail for the same reasons they have failed to establish a violation of the special legislation
clause.
¶ 100 e. Separation of Powers
¶ 101 Finally, plaintiffs argue the fee-shifting provisions of section 4.5 of the Act violate
the separation of powers clause of the Illinois Constitution. That clause provides: “The legislative,
executive and judicial branches are separate. No branch shall exercise powers properly belonging
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to another.” Ill. Const. 1970, art. II, § 1.
¶ 102 “[T]he purpose of the [separation of powers] provision is to ensure that the whole
power of two or more branches of government shall not reside in the same hands.” In re Derrico
G., 2014 IL 114463, ¶ 75, 15 N.E.3d 457. It “was not designed to achieve a complete divorce
among the three branches of our system of government; nor does it prescribe a division of
governmental powers into rigid, mutually exclusive compartments.” Id. ¶ 76. The three branches
of government have “shared or overlapping powers.” (Internal quotation marks omitted.) Id.
Judicial powers have been construed as including “the adjudication and application of law
[citation] and the procedural administration of the courts.” People v. Bainter, 126 Ill. 2d 292, 303,
533 N.E.2d 1066, 1070 (1989). “The legislature, in turn, is vested with the power to enact laws.”
Id. However, it may not “enact laws that unduly infringe upon the inherent powers of the
judiciary.” Id.¶ 103 Plaintiffs argue that the fee-shifting requirement of section 4.5 “strips the courts of
discretion in an area that is normally reserved for the judiciary and not the legislature.” However,
as noted by defendants, fee-shifting provisions like the one in section 4.5 are not unique.
Significantly, plaintiffs cite no authority that such provisions impermissibly encroach on the power
of the judiciary. Further, we note the supreme court has held that “Illinois follows the ‘American
rule,’ which prohibits prevailing parties from recovering their attorney fees from the losing party,
absent express statutory or contractual provisions.” (Emphasis added.) Sandholm v. Kuecker, 2012
IL 111443, ¶ 64, 962 N.E.2d 418; see also Michigan Avenue National Bank v. County of Cook,
191 Ill. 2d 493, 519, 732 N.E.2d 528, 543 (2000) (“[T]he legislature has the inherent authority to
repeal or change the common law and may do away with all or part of it.”). Such authority
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explicitly contemplates the challenged legislative action in this case.
¶ 104 As stated, statutes carry a strong presumption of constitutionality. In this case,
plaintiffs have not carried their burden of establishing that section 4.5 is constitutionally infirm.
¶ 105 III. CONCLUSION
¶ 106 For the reasons stated, we reverse the trial court’s denial of defendants’ motion for
reasonable attorney fees pursuant to section 4.5 of the Act and remand with directions that the
court grant the motion and enter an appropriate fee award. We otherwise affirm the court’s
judgment.
¶ 107 Affirmed in part and reversed in part.
¶ 108 Cause remanded with directions.
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No. 4-19-0314
Cite as: Marsh v. Sandstone North, LLC, 2020 IL App (4th) 190314Decision Under Review: Appeal from the Circuit Court of Scott County, No. 10-L-3; the
Hon. David R. Cherry, Judge, presiding.
Attorneys Ralph Davis, of Peoria, for appellants.
for
Appellant:
Attorneys Stephen R. Kaufmann, Jennifer M. Martin, and Charles N. Insler,
for of HeplerBroom, LLC, of Springfield, and Eldon L. McAfee and
Appellee: Julia L. Vyskocil, of Brick Gentry, P.C., of West Des Moines,
Iowa, for appellees.
Amicus Curiae: Claire A. Manning and Anthony D. Schuering, of Brown, Hay &
Stephens, LLP, of Springfield, for amicus curiae Illinois Pork
Producers Association.
Laura A. Harmon and Garrett W. Thalgott, of Illinois
Agricultural Association, of Bloomington, amicus curiae.
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