People v. Fiorini, Nos. 69756

• Court: Supreme Court of Illinois
• Writing for the Court: FREEMAN
• Citation: 158 Ill.Dec. 499,574 N.E.2d 612,143 Ill.2d 318
• Docket Number: 69760,Nos. 69756
• Decision Date: 30 May 1991
• Parties: , 158 Ill.Dec. 499 The PEOPLE of the State of Illinois v. Geno FIORINI, d/b/a Cook's Trailer Court et al. (Geno Fiorini, d/b/a Cook's Trailer Court, et al., Appellees; The City of Ottawa et al., Appellants).

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574 N.E.2d 612 143 Ill.2d 318, 158 Ill.Dec. 499 The PEOPLE of the State of Illinois
v.
Geno FIORINI, d/b/a Cook's Trailer Court et al. (Geno
Fiorini, d/b/a Cook's Trailer Court, et al.,
Appellees; The City of Ottawa et al.,
Appellants). Nos. 69756, 69760. Supreme Court of Illinois. May 30, 1991.

Page 613

[143 Ill.2d 325] [158 Ill.Dec. 500] Heyl, Royster, Voelker & Allen, Rockford (Douglas J. Pomatto and Richard K. Hunsaker, of counsel), for appellant Zion Lutheran Church.

John A. Hayner, Ottawa, for appellant City of Ottawa.

Gerald M. Hunter, Oglesby, for appellees.

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[158 Ill.Dec. 501] Justice FREEMAN delivered the opinion of the court:

Third-party defendants, the city of Ottawa; Zion Lutheran Church, Member of Missouri Synod (Zion); and Richard Thompson and Glen Thompson (Thompsons), appeal[143 Ill.2d 326] from the appellate court's decision which reversed the trial court's dismissal of the third-party complaint (192 Ill.App.3d 396, 139 Ill.Dec. 344, 548 N.E.2d 729). The third-party complaint alleges that third-party defendants are liable for, among other things, injunctive relief and cleanup costs pursuant to section 21 of the Illinois Environmental Protection Act (the Act) (Ill.Rev.Stat.1985, ch. 111 1/2, par. 1021) for a waste dump site located just west of Ottawa in La Salle County, Illinois. The site contains a ravine and bluff, and overlooks a farmer's field. The site allegedly was improperly used for the dumping of demolition debris, including tires, wood, appliances, scrap metal and steel drums. The third-party complaint alleges that third-party defendants improperly generated, transported, or otherwise arranged for the dumping of the demolition debris on defendants' property.

The underlying action, filed by the Illinois Attorney General on August 13, 1986, seeks injunctive relief and the assessment of statutory penalties against defendants/third-party plaintiffs, Geno Fiorini, d/b/a Cook's Trailer Court, and Bernardine Fiorini (Fiorinis). The State's complaint alleges that the Fiorinis, as owners and operators of the dump site, caused or allowed waste to be deposited in violation of the Environmental Protection Act (Ill.Rev.Stat.1985, ch. 111 1/2, par. 1001 et seq.), the waste disposal regulations of the Illinois Pollution Control Board (35 Ill.Adm.Code §§ 201.141, 807.101 et seq. (1985)), and the Illinois public nuisance act (Ill.Rev.Stat.1985, ch. 100 1/2, par. 26 et seq.).

The three third-party defendants/appellants filed motions to dismiss the counts of the third-party complaint drawn against them. The trial court granted the motions on November 23, 1987, and December 4, 1987, holding that contribution was not available to defendants. The appellate court reversed, holding in part that the Environmental[143 Ill.2d 327] Protection Act failed to preclude the filing of third-party complaints.

On appeal to this court, third-party defendants contend that: (1) the third-party complaint is barred since defendants failed to exhaust administrative remedies prior to filing the third-party complaint; (2) third-party injunctive relief is not available to a party against whom injunctive relief is sought; (3) the third-party complaint improperly seeks to usurp the prosecutorial discretion of the Illinois Attorney General; (4) the third-party complaint fails to allege facts sufficient to invoke the trial court's equitable jurisdiction; (5) no right of contribution exists where the underlying complaint alleges intentional conduct by defendants/third-party plaintiffs; (6) the appellate court erroneously held that section 2-406(b) of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2-406(b)) provides defendants with standing to bring the third-party complaint; (7) section 2-406 of the Code of Civil Procedure does not allow for the proportioning of injunctive relief among potentially culpable parties; (8) assuming that a right of contribution exists in an action brought under the Act, nevertheless, third-party defendants Zion and Thompsons, as off-site generators, are not within a class of persons from whom defendants/third-party plaintiffs can seek relief under the Act; (9) allowing third-party complaints from actions brought under the Act would undermine the regulatory and punitive effect of the Act and insulate the named defendants/third-party plaintiffs from liability under the Act; (10) site clean-up costs are punitive in nature and therefore not recoverable through a third-party action under the Act; and (11) allowing third-party actions in causes filed pursuant to the Act would frustrate the legislative intent of the Act to provide for private causes of action for third-party violations, and thus circumvent the [143 Ill.2d 328] Illinois Constitution's provision regarding a healthful environment (Ill. Const.1970, art. XI, § 2).

Defendants/third-party plaintiffs respond by asserting, among other things, that the recent amendment to section 45 of

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[158 Ill.Dec. 502] the Act (Pub.Act 86-1362, eff. Jan. 1, 1991 (amending Ill.Rev.Stat.1989, ch. 111 1/2, par. 1045)) indicates the legislative intent to allow for the filings of third-party complaints from suits brought under the Act.

For the reasons stated below, we affirm the appellate court's holding as modified by this opinion, and remand this matter for further proceedings before the trial court.

Initially, we briefly review the allegations of the underlying action. Count I of the State's four-count complaint alleges that defendants violated sections 21(a), (d) (the complaint quotes the language of subsection (d), and then mislabels the quoted language as subsection "(b)" of the Act) and (e) of title V of the Act (Ill.Rev.Stat.1985, ch. 111 1/2, pars. 1021(a), (d), (e)), regarding land pollution and refuse disposal; and sections 807.201 and 807.202(a) of the waste disposal regulations of the Pollution Control Board (35 Ill.Adm.Code §§ 807.201, 807.202(a) (1985)). Count I alleges that defendants, among other things, caused or allowed the open dumping of waste; conducted a waste-storage or waste-treatment operation without a permit; and improperly disposed, treated, or stored waste.

Count II alleges that on April 20, 1986, a fire burned at the disposal site, causing harm to nearby residents, in violation of section 9(a) of title II of the Act (Ill.Rev.Stat.1985, ch. 111 1/2, par. 1009(a)) and section 201.141 of the air pollution regulations of the Pollution Control Board (35 Ill.Adm.Code § 201.141 (1985)). Count III alleges that the open dumping, storage and burning of wastes constituted a public nuisance under the Illinois [143 Ill.2d 329] public nuisance act (Ill.Rev.Stat.1985, ch. 100 1/2, par. 26 et seq.). Count IV alleges that the conditions at the site and the effect on nearby residents constituted a common law public nuisance.

The complaint seeks an injunction which would, among other things, restrain defendants from burning or disposing of any waste at the site, direct defendants to complete remedial actions necessary to eliminate contamination at the site, and require defendants to restrict public access to the site. The complaint also seeks assessment of civil penalties and the costs of the suit.

On June 9, 1987, defendants, with leave of court, filed their responsive pleading, which they entitled a "counterclaim." The allegations of their responsive pleading are the subject of the instant appeal. The pleading is drawn in six counts and asserts claims against appellants, the city of Ottawa, Zion, and the Thompsons; and additionally names the United States of America, Housing and Urban Development Agency; the Catholic Diocese of Peoria; and trustees of Ottawa Elementary School District Number 141. Only counts I, IV, and V of the pleading, drawn against the city of Ottawa, Zion, and the Thompsons, are pertinent to the instant appeal. The three other named parties did not join in the motions to dismiss filed by appellants, and are not parties to the instant appeal.

Although defendants' pleading is entitled a "counterclaim," we find that the pleading constitutes a third-party complaint. The distinction is an important one, since the standards for analyzing a third-party complaint differ in significant respects from those applicable to a counterclaim. A counterclaim is an action brought by a named party against another existing party to the action, and is governed by section 2-608 of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2-608). By contrast, a third-party complaint is an [143 Ill.2d 330] action brought by an existing party against one or more new parties, none of whom were parties to the original suit. (Ill.Rev.Stat.1985, ch. 110, par. 2-406.) In the instant case, none of the parties named in defendants' responsive pleading was a party to plaintiffs' original action. Summons was necessary and was issued on each of the parties named in the responsive pleading. In accord with section 2-406 of the Code (Ill.Rev.Stat.1985, ch. 110, par. 2-406), defendants' pleading thus must be considered as a third-party complaint, rather than a counterclaim.

The pertinent counts of the third-party complaint all allege violations of section 21 of the Environmental Protection Act (Ill.Rev.Stat.1985, ch. 111 1/2, par. 1021). Section 21 is the only section of the Act cited in these counts. The specific conduct alleged

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[158 Ill.Dec. 503] against each of the third-party defendants is as follows. Count I alleges that the city of Ottawa, as a municipal corporation, "caused or allowed" demolition matter from the former Ottawa police and fire station as well as another building located in the city of Ottawa "to be deposited or placed upon" the subject dump site. Count IV alleges that Zion was the owner of real estate containing a parish house in the city of Ottawa, and that Zion "caused the said parish house to be demolished and * * * has allowed the debris from said...