2020 IL App (4th) 190314
Ill. App. Ct.2020Background:
- Neighbors (Marsh and others) sued Sandstone North/South, Genesis Pork, Illini Pork and Hollis Shafer for private temporary nuisance alleging offensive hog-farm odors and negligent/ grossly negligent operation; jury verdict for defendants (May 24, 2016).
- Plaintiffs moved for JNOV or a new trial, arguing juror misconduct (posttrial Facebook posts by juror Kelly Howard), trial-court refusal to give IPI Civil No. 5.01 (missing-evidence/adverse-inference) after defendants allegedly cleaned bones before expert site visits, and errors in several nonpattern jury instructions.
- Defendants moved under § 4.5 of the Farm Nuisance Suit Act for costs and reasonable attorney fees; the trial court denied fees, concluding the Act did not apply because plaintiffs were farmers and because negligence claims fell within §3’s exception.
- The trial court denied plaintiffs’ posttrial motions (no new trial; no JNOV). Plaintiffs appealed the jury/instruction rulings; defendants cross-appealed denial of fees and argued §4.5 applies and is constitutional.
- The appellate court affirmed the judgment on the jury verdict and instruction issues, reversed the denial of §4.5 fees, held §4.5 applied to this nuisance action, rejected plaintiffs’ constitutional challenges, and remanded with directions to award fees.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Juror misconduct (Facebook posts) | Howard lied in voir dire and was biased; posts show prejudice | Posts unauthenticated/hearsay and merely post-verdict commentary, not evidence of pretrial bias | No abuse of discretion in denying new trial; posts did not show false voir dire answers or prejudice |
| IPI Civil No. 5.01 (missing-evidence) | Defendants cleaned bones before expert visit; jury should get adverse-inference instruction | Cleanup was explained and evidence of bones was cumulative; instruction discretionary | Denial affirmed: court reasonably found missing evidence cumulative and cleanup not a concealment; no prejudice |
| Nonpattern jury instructions (3 instructions) | Instructions were confusing, misleading, or misstated law | Instructions were proper, supported by authority, and any errors were harmless or forfeited | Challenged instruction errors were forfeited or without merit; no reversible prejudice |
| §4.5 Farm Nuisance Suit Act — entitlement to fees | §4.5 shouldn't apply because plaintiffs are farmers or because negligence claims trigger §3 exception | §4.5 applies to any nuisance action against a farming operation and fee-shifting is proper | Reversed trial court: §4.5 applies; prevailing defendants entitled to costs and reasonable attorney fees; remanded to award fees |
| Constitutionality of §4.5 (special legislation, equal protection, separation of powers) | §4.5 discriminates, burdens property-rights (strict scrutiny), and usurps judicial power | §4.5 serves legitimate agricultural/public-welfare interests; rational-basis review applies; fee-shifting statutes permissible | §4.5 upheld: plaintiffs failed to show constitutional infirmity; rational basis satisfied; no separation-of-powers violation |
Key Cases Cited
- Simmons v. Garces, 198 Ill. 2d 541, 763 N.E.2d 720 (explains IPI No. 5.01/missing-evidence instruction principles)
- Wilkerson v. Pittsburgh Corning Corp., 276 Ill. App. 3d 1023, 659 N.E.2d 979 (trial court must find party likely would have produced evidence absent unfavorable result)
- Schaffner v. Chicago & North Western Transportation Co., 129 Ill. 2d 1, 541 N.E.2d 643 (discretion to give missing-evidence instruction)
- Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 775 N.E.2d 964 (nonpattern instructions allowed when pattern instructions inadequate; instructions must not mislead)
- Toftoy v. Rosenwinkel, 983 N.E.2d 463 (Ill.) (describes scope and purpose of Farm Nuisance Suit Act and coming-to-the-nuisance bar)
- In re Chicago Flood Litigation, 176 Ill. 2d 179, 680 N.E.2d 265 (defines private nuisance elements)
- Sandholm v. Kuecker, 962 N.E.2d 418 (Ill.) (confirms American rule and that statutes may provide for statutory fee-shifting)
- 1010 Lake Shore Ass’n v. Deutsche Bank Nat’l Trust Co., 43 N.E.3d 1005 (Ill.) (forfeiture principle: issues not raised below are forfeited on appeal)