Downtown Disposal Services, Inc. v. City of Chicago
943 N.E.2d 185
Ill. App. Ct.2011Background
- DOT issued four administrative notices to DD for dumpster-ordnance violations and set hearings for Feb 4, Mar 5, and Apr 30, 2008; DD failed to appear and DOAH entered four default judgments.
- DD’s president Van Tholen filed four motions to set aside the defaults on Aug 18, 2008, alleging lack of notice; DOAH denied relief.
- Van Tholen filed four pro se Administrative Review Law complaints in Oct 2008; attorney Boonstra appeared for DD in Apr 2009.
- City moved to dismiss under 735 ILCS 5/2-619(a)(9) arguing DD lacked an attorney-signature on filings; DD sought to amend complaints to be signed by counsel.
- Trial court granted the City’s dismissal motions, denied DD’s amendments and summary judgment; DD appealed claiming due process/equal protection violations.
- Appellate court reversed, holding the nullity rule is not automatic under Applebaum and that DD should be allowed to amend and proceed; remanded for reinstatement of complaints.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the nullity rule was properly applied | DD argues the rule should not be automatic here. | City asserts automatic nullity for lay representation by a corporation's filing. | Not automatic; remand to reinstate and allow amendments. |
| Whether DD exhausted administrative remedies before challenging notice | DD exhausted by filing in trial court after DOAH decision. | DD failed to exhaust by proper channel due to nullity | Question framed for remand; dismissal reversed. |
| Whether the trial court could consider new evidence about party status | New evidence on corporate status is permitted on review of agency decision. | Section 3-110 bars new evidence. | Rule 3-110 not controlling here; review de novo on proper record. |
| Whether the City forfeited the void-ability argument by not raising it at DOAH | City should not be barred from raising nullity. | DOAH rules permitted authorized representatives; no forfeiture. | Not forfeited; analysis of nullity appropriate on appeal. |
| Whether the constitutional challenges to the nullity rule were properly preserved | DD preserved constitutional issues by referencing due process/equal protection. | DD failed to serve Attorney General; issues forfeited. | Constitutional questions not reached; ruling on nullity proper to remand. |
Key Cases Cited
- Applebaum v. Rush University Medical Center, 231 Ill. 2d 429 (2008) (nullity rule is not automatic; discretionary under Applebaum)
- Sperry v. Illinois, 214 Ill. 2d 371 (2005) (purpose of nullity rule to protect public and court integrity)
- Pratt-Holdampf v. Trinity Medical Center, 338 Ill. App. 3d 1079 (2003) (timely amended complaint permitted where nullity not appropriate)
- Tonsul v. Housing Authority, 115 Ill. App. 3d 739 (1983) (strict nullity for lay representation; void judgments)
- Janiczek v. Dover Management Co., 134 Ill. App. 3d 543 (1985) (application of nullity rule to corporate representation by layperson)
- Siakpere v. City of Chicago, 374 Ill. App. 3d 1079 (2007) (automatic nullity discussed in context of corporate filing)
- Paddock v. Department of Employment Security, 184 Ill. App. 3d 945 (1989) (allowing amended complaint; not always applying nullity)
- Berg v. Mid-America Industrial, Inc., 293 Ill. App. 3d 731 (1997) (corporation represented by agent; treated under nullity doctrine)