People v. Leavell

SUPREME COURT CASES

Laws-info.com » Cases » Illinois » 4th District Appellate » 2009 » People v. Leavell

People v. Leavell

State: Illinois

Court: 4th District Appellate

Docket No: 4-08-0019 Rel

Case Date: 02/18/2009

Preview:Filed 2/18/09

NO. 4-08-0019 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS ex ) Appeal from rel. LISA MADIGAN, Attorney General of ) Circuit Court of the State of Illinois, ) Sangamon County Plaintiff-Appellant, ) No. 07CH707 v. ) EVA LOVENE LEAVELL, d/b/a L&L SUPPLY ) Honorable COMPANY, ) Leslie J. Graves, Defendant-Appellee. ) Judge Presiding. _________________________________________________________________ JUSTICE TURNER delivered the opinion of the court: In September 2007, the State filed a two-count complaint against defendant, Eva Lovene Leavell, doing business as L&L Supply Company, alleging multiple violations of the Illinois Oil and Gas Act (Oil Act) (225 ILCS 725/1 through 28.1 (West 2006)) and seeking injunctive relief, as well as civil penalties. That same month, defendant filed a motion for change of venue or, in the alternative, to transfer on the basis of forum non conveniens. In October 2007, the State filed a response, conAfter a December 2007 hearing, the

testing defendant's motion.

trial court granted defendant's motion and transferred the case to White County. In January 2008, the State petitioned this court for leave to appeal pursuant to Supreme Court Rules 306(a)(2) and 306(a)(4) (210 Ill. 2d Rs. 306(a)(2), (a)(4)). We denied the By

petition, and the State appealed to the supreme court.

supervisory order, the supreme court directed us to grant the State's petition and to hear the appeal on its merits. People ex

rel. Madigan v. Leavell, 228 Ill. 2d 552, 886 N.E.2d 1027 (2008) (nonprecedential supervisory order on denial of petition for leave to appeal). judgment. I. BACKGROUND The State's September 2007 complaint set forth the Department of Natural Resources (Department) previously issued defendant permits authorizing her to operate oil production and injection wells in accordance with the terms of the permits. Count I of the complaint specifically asserted defendant violated the Department's orders by failing to repair or plug wells, which the Department later plugged or repaired after the issuance of a final administrative decision. In September 2003, the Department We have done so and affirm the trial court's

sent defendant a letter demanding reimbursement of the funds it expended in plugging or repairing her wells plus statutory interest. The State listed nine wells for which it still sought In addition to

reimbursement for work the Department had done.

reimbursement plus interest, the State sought (1) a finding defendant violated the Oil Act by failing to comply with a final administrative decision to plug or repair wells, (2) the imposition of civil penalties, (3) a preliminary injunction for defendant to cease operation under current permits until the Depart- 2 -

ment has been reimbursed, (4) a permanent injunction for defendant to cease and desist from further violations, and (5) costs of the suit. Count II alleged the Department issued a final administrative decision in April 2002, finding defendant's wells to be abandoned for nonpayment of fees. Defendant had yet to plug the

abandoned wells that were the subject of the April 2002 decision. The State again sought (1) a violation finding, (2) civil penalties, and (3) preliminary and permanent injunctions. In its complaint, the State also indicted venue was appropriate in Sangamon County based on the Department's issuance of final administrative decisions to defendant there. In her September 2007 venue motion, defendant asserted the subject of the State's current suit had been the subject of five or more cases filed in White County, Illinois. Defendant

also noted (1) she did not reside in Sangamon County and (2) none of the wells that were the subject of the lawsuit were on property located in Sangamon County. Further, defendant resided and

did business in White County, and the wells and witnesses were located in White County or near it. As to venue, defendant

contended Sangamon County was not a proper venue under either prong of the venue statute contained in section 2-101 of the Code of Civil Procedure (Procedure Code) (735 ILCS 5/2-101 (West 2006)). With respect to forum non conveniens, defendant ad- 3 -

dressed both private and public interests.

As to private inter-

ests, defendant noted that, to view the premises at issue, a trip between 160 and 205 miles from Springfield to White or Crawford County would be required, but it would be a short drive from White County. Defendant also reiterated the facts that she, the

likely witnesses, and the wells at issue were located in or near White County. Regarding public interests, defendant noted

Sangamon County circuit court was "much more congested" than the White County circuit court. Defendant also contended the people

of White County had "much more interest" in this case than the people of Sangamon County. Defendant attached to her motion maps showing the distance between Springfield and Carmi, Illinois (203.65 miles), and Springfield and Robinson, Illinois (163.49 miles). She also

presented the 2005 annual report of the Illinois courts, showing the caseloads of the various circuits in Illinois. Defendant

further submitted affidavits by her and her son, Stanley Leavell, in support of her following contentions: (1) Sangamon County was

not near her residence, her place of business, her witnesses, and the property at issue and (2) a trial in Sangamon County would be inconvenient. The State responded Sangamon County was a proper place of venue under section 11 of the Oil Act (225 ILCS 725/11 (West 2006)) since the Department issued final administrative decisions - 4 -

against defendant in Sangamon County.

It contended the specific

venue statute contained in the Oil Act was controlling over the general venue statute contained in the Procedure Code. As to forum non conveniens, the State asserted the plaintiff's choice of forum should be given deference and noted the Department was located in Sangamon County. It also asked the

circuit court to take notice of the fact the Department brought all of its oil-and-gas cases in Sangamon County and cited two recent cases. The State also contended defendant failed to prove

the private- and public-interest factors strongly favor transfer. According to the State, the relative ease of access to sources of proof favored Sangamon County because the nature of proof was documentary rather than testimonial and a view of the premises would not be appropriate in this action. Moreover, the State

urged the congestion of court dockets should be afforded minimal weight. At the December 2007 hearing, the parties neither presented evidence nor asked the trial court to take judicial notice of anything. After hearing the parties' arguments, the

court granted the motion, stating "[t]here is absolutely no reason that I see that this matter should be in Springfield." The court then transferred the matter to "Dwight [sic] County, along with the rest of the cases involving these two parties." II. ANALYSIS - 5 -

A. Motion Taken With the Case In August 2008, defendant filed a motion to strike pages 4 through 65 of the appendix to the State's brief. Defen-

dant asserts those pages were not presented to the circuit court and thus she never had an opportunity to submit exhibits and documents in opposition. ing: The contested pages include the follow-

(1) Department administrative decisions and violation

notices regarding the wells at issue, (2) docket sheets for circuit court cases in White County, (3) a map showing the drive between Carmi and Robinson, (4) an excerpt from the 2006 annual report of the Illinois courts, and (5) a table of contents for the supporting record on appeal. In the alternative, defendant

seeks leave to submit new evidence of her own. The State responds, asserting this court (1) should deem the appendix materials a supplement to the record under Supreme Court Rule 366 (155 Ill. 2d R. 366(a)(3)) or (2) take judicial notice of them (see Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 177-78, 797 N.E.2d 687, 696-97 (2003) (mileage between two locations); IFC Credit Corp. v. Rieker Shoe Corp., 378 Ill. App. 3d 77, 81, 881 N.E.2d 382, 386 (2007) (documents in the public records of other courts); Hermesdorf v. Wu, 372 Ill. App. 3d 842, 850, 867 N.E.2d 34, 41 (2007) (written decisions contained in the record of an administrative tribunal)). The

State notes the documents are offered as background information - 6 -

and are not directed at the merits of its arguments.

However, in

its brief, the State does cite to some of the materials in its argument section. While this court may take judicial notice of some of the items contained in the State's appendix, we decline to do so. Contrary to the State's assertion the material is simply background information, the material is evidence in support of its position that the State failed to bring to the trial court's attention. That fact is demonstrated by the State's occasional

citation to the material in the argument section of its brief. The State should have presented this evidence to the trial court in opposition to defendant's motion. We decline to allow the Thus, we strike pages

State to relitigate the matter on appeal.

4 through 65 of the State's appendix, except for page 54, which contains the table of contents for the supporting record. That

page was required by Supreme Court Rule 342(a) (210 Ill. 2d R. 342(a)). Accordingly, defendant's motion to strike is granted in

part and denied in part. B. Venue The State first argues Sangamon County was a proper venue for its enforcement action against defendant. Where the

facts are undisputed surrounding the matter of venue, the issue becomes one of law, which we review de novo. Boxdorfer v.

DaimlerChrysler Corp., 339 Ill. App. 3d 335, 339, 790 N.E.2d 391, - 7 -

394 (2003).

Moreover, the venue question in this case involves O'Casek v.

statutory construction, which we also review de novo.

Children's Home & Aid Society of Illinois, 229 Ill. 2d 421, 440, 892 N.E.2d 994, 1007 (2008). Section 2-101 of the Procedure Code (735 ILCS 5/2-101 (West 2006)) contains a venue provision that provides, in pertinent part, the following: "Except as otherwise provided in this [a]ct, every action must be commenced (1) in the county of residence of any defendant *** or (2) in the county in which the transaction or some part thereof occurred out of which the cause of action arose." While the drafting of the Procedure Code brought together many separate venue provisions, "not all statutory provisions governing venue were incorporated into the [Procedure] Code." Nichols, Illinois Civil Practice

Download People v. Leavell.pdf