Downtown Disposal Service v. City of Chicago

SUPREME COURT CASES

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State: Illinois

Court: 1st District Appellate

Docket No: 1-10-0598 Rel

Case Date: 02/03/2011

Preview:FOURTH DIVISION February 3, 2011 No. 1-10-0598 DOWNTOWN DISPOSAL SERVICES, INC., Plaintiff-Appellant, ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County

v. THE CITY OF CHICAGO, a Municipal Corporation, THE DEPARTMENT OF ADMINISTRATIVE HEARINGS and THE DEPARTMENT OF TRANSPORTATION, Defendants-Appellees.

Nos. 08M1450748, 08M1450749 08M1450750 & 08M1450751

Honorable James M. McGing Judge Presiding.

JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Gallagher and Justice Pucinski concurred in the judgment and opinion. OPINION The City of Chicago (the City) Department of Administrative Hearings (DOAH) entered four default judgments against Downtown Disposal Services, Inc. (DD), a corporation, for certain ordinance violations issued by the City's Department of Transportation (DOT). DD subsequently moved to set aside the default judgments, alleging that the City did not properly notify DD of the hearings regarding the violations. After the DOAH denied the motions, DD's president Peter Van Tholen filed in the trial court pro se complaints for review under the Administrative Review Law (the Act) (735 ILCS 5/3-101 et seq. (West 2008)). An attorney appeared on DD's behalf approximately six months after the complaints were filed. Shortly thereafter, the City moved to dismiss the complaints on the basis that Van Tholen was not a licensed attorney and, thus, was unauthorized to file complaints on behalf of a corporation. The trial court granted the City's

1-10-0598 motion and denied DD's motion to amend the complaints to include the signature of its attorney. On appeal, DD contends that its constitutional rights for due process and equal process were violated because it did not receive notice of the DOAH proceedings and its complaints were unfairly dismissed on the basis that they were not signed and filed by an attorney. We reverse the trial court's decision and remand to the trial court for further proceedings. BACKGROUND As a threshold matter, we note that several items are absent from the record. See Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984) (the appellant carries the burden of presenting a sufficiently complete record on appeal). Nonetheless, the parties' arguments on appeal indicate they apparently do not dispute that the proceedings as to the four ordinance violations ensued in a substantially similar and parallel manner before the DOAH and the trial court. Accordingly, when considering the entire record regarding the four violations together, we are sufficiently able to ascertain the nature of the absent items to resolve this appeal. The record shows that between December 2007 and March 2008, the DOT issued DD four administrative notices for violating City ordinances pertaining to dumpsters and that the four notices, all of which were mailed to the same address, required DD to appear at hearings on February 4, 2008, March 5, 2008, and April 30, 2008. When DD failed to appear at any of the hearings, the DOAH entered default judgments, each requiring DD to pay $40 in administrative costs and $1,500 in penalties. On August 18, 2008, Van Tholen filed four motions to set aside the default judgments, alleging that he did not receive notice of the hearings. At a consolidated hearing regarding the four motions on September 19, 2008, Van Tholen

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1-10-0598 essentially represented that for the previous five years, DD had made several attempts to change the address on file with the City, but that the City had not made the change in its records. Following Van Tholen's testimony, the administrative law officer denied DD relief, finding that the City had sent notification to the address on file for DD and that DD had not provided any documentation showing that DD had changed that address before the notifications were mailed. Following the administrative law officer's determination, the following colloquy ensued: "ADMINISTRATIVE LAW OFFICER HARRIS: However, you do have a right to appeal the decision - MR. VAN THOLEN: I will. ADMINISTRATIVE LAW OFFICER HARRIS: -- to the Circuit Court. That's fine, sir. You have a right to appeal the decision to the Circuit Court within 35 days of today's date, and you would do that in Room 602 of the Daley Center." Van Tholen signed and filed four fill-in-the-blank pro se complaints for administrative review on October 16, 2008. Attorney Richard D. Boonstra filed an appearance in all four cases approximately six months later in April 2009. On July 29, 2009, the City moved to dismiss DD's complaints pursuant to section 2619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2008)). The City argued that dismissal was required because DD was a corporation and its complaint was impermissibly filed by Van Tholen, who was not a licensed attorney. Specifically, the City argued that a corporation must appear by counsel at all legal proceedings, including the filing of pleadings with the court, and that any action filed by a corporation without an attorney is null and void,

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1-10-0598 even where all subsequent appearances are made by a licensed attorney. The City also argued that the purpose of this strict rule is to discourage frivolous litigation, which may negatively affect a represented party, but did not argue that the litigation at hand was frivolous or had negatively impacted the City. Attached to the motions were DD's complaints and summons, the default judgment orders, and copies of a report indicating that DD was a corporation and its registered agent was Boonstra. The City also attached search results from the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois' website which indicated that Van Tholen was not a licensed attorney. On September 23, 2009, DD, through Boonstra, filed motions for leave to file amended complaints, alleging, in pertinent part, that the lack of an attorney's signature was a technical, rather than substantive, defect which DD sought to correct by filing an amended complaint signed by its attorney. On October 9, 2009, DD filed four responses to the City's motion to dismiss, which raised substantially the same arguments but also argued that the application of the nullity rule was not automatic and should not be applied where, as here, no legal expertise was required to complete a fill-in-the-blank form. In addition, DD argued that the failure of the form complaint to state that an attorney's signature is necessary where the complainant is a corporation violated its right to due process and that it was unfair for the City to inform DD of its right to pursue administrative review without informing DD that it needed an attorney to do so. DD further argued it was unfair for "corporate plaintiffs to be lured into filing the complaint only to have it summarily dismissed." On the same day, the City responded to DD's motions for leave to amend its complaints

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1-10-0598 and raised essentially the same arguments as it did in its motions to dismiss. The City also argued that DD could not cure the defects resulting from the signing and filing of DD's complaints by Van Tholen after the 35-day statute of limitations had passed (735 ILCS 5/3-103 (West 2008)). Approximately three months later, DD moved for summary judgment, arguing, in pertinent part, that the City was a municipal corporation, that the individual who signed the citations was not an attorney and therefore, the underlying action filed by the City was void ab initio. At a hearing on January 29, 2010, the cases were consolidated and the City raised substantially the same arguments, contending that the pro se complaints were void ab initio, notwithstanding that they were fill-in-the-blank forms. The City acknowledged that on occasion, the pro se filing of a complaint had been excused, but not in the case of a corporate party. The City also argued that incorporating a business comes with both benefits and responsibilities, including appearing through an attorney. DD argued, in pertinent part, that it would be unfair to find that the completion of this form complaint was the unauthorized practice of law and to foreclose DD relief on that basis. DD argued that if the court decided to apply the nullity rule, it had to go further back to when the City filed the four citations through a layperson. Following arguments, the court granted the City's motions to dismiss and denied DD's motions to amend the complaint and motions for summary judgment as moot. The trial court found that "this is a troubling issue for the Court" and stated that in administrative review cases, the trial court was "confronted with nonattorneys filing pleadings" on a daily basis but was left to follow First District case law. After noting that the appellate court had previously found that filling in a form was the unauthorized practice of law, the trial court stated as follows:

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1-10-0598 "If you review the Complaint that's filed in the Administrative Review cases, it is just that. It is a prepared form. It is handed to anyone who walks into the Clerk's office. They merely have to fill in names and fill in the date that the Findings and Decision was entered against them, and it has form language as to why they are appealing the matter and it initiates this process." The trial court stated that it was compelled to follow decisions of the First District Appellate Court and that it was not in the position to create new law but believed that certain issues may need to be revisited by that court. The trial court stated as follows: "The actual issue in this case as to the filing of this form, is it the unauthorized practice of law? And then there is [sic] other considerations, such as here where the refiling of an action is not available to the party that it would be time barred by dismissal of the pending action, is that too severe an action to impose? Coupled with the clearly erroneous legal instructions which are being given by the administrative law officers at the City of Chicago Department of Administrative Hearings, where they inform nonattorneys who appear before them representing corporations that you, quotation marks, `You have the right to appeal this,' and they direct these people to the 6th Floor of Daley Center to file an appeal in these matters." The trial court further questioned whether a nonattorney representing a corporate entity before the administrative hearings in the City might not also be engaged in the unauthorized practice of

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1-10-0598 law on behalf of a corporation but found that the issue of the City filing a violation by a layperson was a separate issue that would only have been reached had the trial court proceeded to administrative review. The trial court, referring to either the question of what constitutes the practice of law or what is the result of the unauthorized practice of law, stated he hoped that the First District would revisit "this issue" and that "perhaps the law in this matter would change, but as a trial judge I am not in a position to be creating new law, but to follow clearly delineated Appellate law." On February 26, 2010, DD filed a notice of appeal in all four cases. DD appealed from the order granting the City's motion to dismiss, denying DD's motion to amend and denying DD's motion for summary judgment. ADMINISTRATIVE REVIEW On appeal, DD first asserts that it was denied due process because it was not properly served with notice of the proceedings before the DOAH. We find this issue is not properly before us. The Illinois Administrative Review Law applies to final decisions by the DOAH. Silver Fox Limousine v. City of Chicago, 306 Ill. App. 3d 103, 108 (1999); see also 735 ILCS 5/3-101 et seq. (West 2008). It is well settled that in administrative cases, our role is to review the administrative agency's decision, rather than the trial court's determination. Marconi v. Chicago Heights Police Pension Board , 225 Ill. 2d 497, 531 (2006). This rule is generally applied, however, to review of an agency's resolution of a claim on its merits. See, e.g., id. at 531-43. In addition, a litigant generally may not seek judicial relief from an administrative action unless the party has exhausted all available administrative remedies. Arvia v. Madigan, 209 Ill. 2d 520, 531 (2004). Under the Act, "[e]very action to review a final administrative decision shall be

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1-10-0598 commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected by the decision." 735 ILCS 5/3-103 (West 2008). Here, DD was required to properly commence an action for administrative review in the trial court as a necessary step prior to seeking review in this court of the DOAH's allegedly erroneous judgment, which found that DD had not shown that notice was improper. The trial court found, however, that DD had not properly brought suit in that court, and as a result, it dismissed DD's complaint without considering its claim that notice of the DOAH proceedings was improper. For this court to decide an issue not considered by the trial court would permit DD to skip a necessary step in the administrative review process and render the trial court's role in administrative review meaningless. Cf. Gardziella v. City of Chicago, 337 Ill. App. 3d 181, 182-85 (2003) (where the plaintiff properly filed a complaint for administrative review asserting notice of administrative proceedings was improper and the trial court rejected the assertion, the appellate court considered the issue). Although defendant correctly states that we generally review the decision of the agency rather than the trial court, this rule presupposes that the appellant has properly exhausted all available remedies so that the challenge to the agency's decision is properly before the court. Accordingly, the only issue before us is whether the trial court correctly dismissed DD's complaint pursuant to section 2-619 because Van Tholen's conduct in the trial court rendered DD's complaint a nullity, thereby defeating its claims (735 ILCS 5/2-619(a)(9) (West 2008)), or whether the court erred in applying the nullity rule so that this cause must be reversed and

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1-10-0598 remanded for further proceedings. See City of Chicago v. Pooh Bah Enterprises, Inc., 224 Ill. 2d 390, 449 (2006) (where the trial court did not reach all issues raised in the administrative review proceedings before it, remand was appropriate so that the trial court, rather than the reviewing court, could first address the remaining issues). We review dismissal of a complaint pursuant to section 2-619 de novo. Howard v. Chicago Transit Authority, 402 Ill. App. 3d 455, 458 (2010).

FORFEITURE First, DD asserts that the City has forfeited the right to seek application of the nullity rule based on Van Tholen's unauthorized practice of law because the City failed to raise this issue before the DOAH. See Cook County Board of Review v. Property Tax Appeal Board , 395 Ill. App. 3d 776, 786 (2009) (arguments not made before an administrative agency are forfeited). DD has not brought to our attention any case addressing this specific forfeiture argument. In response, the City argues that it cannot have forfeited this argument because the DOAH's rules and regulations permit an authorized representative to appear on behalf of a party at DOAH proceedings. See Department of Administrative Hearings Rules and Regulations

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