Technology Solutions v. NORTHROP GRUMMAN

• Decision Date: 31 March 2005
• Docket Number: No. 1-02-0368.,1-02-0368.
• Citation: 356 Ill. App.3d 380,292 Ill.Dec. 784,826 N.E.2d 1220
• Parties: TECHNOLOGY SOLUTIONS COMPANY, Plaintiff-Appellant and Cross-Appellee, v. NORTHROP GRUMMAN CORPORATION, Defendant-Appellee and Cross-Appellant.
• Court: United States Appellate Court of Illinois

826 N.E.2d 1220

356 Ill. App.3d 380

292 Ill.Dec. 784

TECHNOLOGY SOLUTIONS COMPANY, Plaintiff-Appellant and Cross-Appellee, v. NORTHROP GRUMMAN CORPORATION, Defendant-Appellee and Cross-Appellant.

No. 1-02-0368.

Appellate Court of Illinois, First District, Second Division.

March 31, 2005.

Rehearings Denied April 28, 2005.

Grippo & Elden (Gary M. Elden, Marc S. Lauerman, Ayson T. Todd, of counsel), Chicago, for Appellant.

Wildman, Harrold, Allen & Dixon (Michael Dockterman, Lisa Simmons, Chung-Han Lee, of counsel), Chicago, for Appellee.

Presiding Justice BURKE delivered the opinion of the court:

Plaintiff Technology Solutions Company appeals from entry of a final judgment and verdict partially in plaintiff's favor, following a jury trial, on plaintiff's breach of oral contract claims against defendant Northrop Grumman Corporation, in which the circuit trial court granted in part and denied in part plaintiff's request for prejudgment interest. On appeal, plaintiff contends that the trial court erred in denying its request for mandatory prejudgment interest because the amount of its damages was certain. Plaintiff also contends that the trial court erred in granting it discretionary interest only from June 21, 1997, rather than from June 21, 1993, the date it filed its lawsuit. Defendant has filed a cross-appeal and contends that the trial court erred in denying its motion for judgment notwithstanding the verdict (JNOV) with respect to three of plaintiff's claims on the basis that plaintiff failed to present evidence of oral agreements, the claims were barred by the parol evidence rule, and one of the claims was barred by the statute of limitations. Defendant also contends that it was entitled to JNOV on the damage verdict because plaintiff failed to present sufficient evidence of damages. Defendant further contends that the trial court made numerous evidentiary errors during the trial, including: (1) barring evidence of another lawsuit filed against plaintiff to impeach plaintiff's witnesses; (2) barring evidence of a Securities and Exchange Commission (SEC) inquiry against plaintiff; (3) admitting evidence of defendant's course of dealing; (4) admitting two documents as business records because they were prepared in anticipation of litigation, not in the regular course of business; (5) admitting another document because it was legally incompetent; and (6) admitting evidence in violation of the parol evidence rule. For the reasons set forth below in the nonpublished portion of this opinion, we affirm.

[Editor's Note: Text omitted pursuant to Supreme Court Rule 23.]

ANALYSIS

Before addressing the merits of the parties' arguments, we are compelled to comment on both plaintiff and defendant's attorneys' violations of supreme court rules, particularly Supreme Court Rule 341. (188 Ill.2d R. 341). As attorneys for large prestigious law firms, both should be well aware of the rules and strive to follow them to the letter. However, this is not, and has not been, the case here. This court is dismayed by counsels' conduct and, because of this, we are making this portion of our decision an opinion to not only guide other attorneys, but warn counsels that this court will not further tolerate such disrespect and disregard for court rules and decorum.

Defense counsel has filed two motions to strike plaintiff's briefs, or portions thereof, that we have taken with the case. For the reasons discussed below, these motions are denied. However, our denial in no way condones counsels' flagrant and extensive abuses here. The magnitude of such violations would easily warrant this court striking all of the briefs and dismissing the appeals in their entirety. LaGrange Memorial Hospital v. St. Paul Insurance Co., 317 Ill.App.3d 863, 876, 251 Ill.Dec. 191, 740 N.E.2d 21 (2000).

Defendant filed a motion to strike plaintiff's statement of facts as violative of Supreme Court Rule 341(a) (188 Ill.2d R. 341(a)). Defendant maintains that plaintiff's statement of facts contains legal discussion and argument, it includes facts not relevant to plaintiff's appeal, which are also conclusory, argumentative, and false, and those facts included that are relevant to its appeal are "riddled with improper argument," are conclusory, are conjecture, and are unsupported by the record. Defendant argues that the Illinois Appellate Court has repeatedly reaffirmed the importance of Rule 341 and, because plaintiff has blatantly violated this rule, we should strike plaintiff's statement of facts in its entirety.

We agree with defendant that portions of plaintiff's statement of facts contain improper argument. However, while defendant is seeking to use Rule 341 as a weapon against plaintiff, it, too, has blatantly violated that rule. Its statement of facts is also "riddled with improper argument" as well as misstatements of fact. Thus, both plaintiff and defendant's statement of facts violate Rule 341.

Additionally, in defendant's brief, counsel makes substantive arguments in its footnotes (see discussion below) and plaintiff's counsel then responds to these. Plaintiff's counsel, too, makes substantive arguments in its footnotes and defendant's counsel thereafter continues this conduct in defendant's reply brief. Substantive arguments may not be made in footnotes and responses made thereto are likewise improper. Lundy v. Farmers Group, Inc., 322 Ill.App.3d 214, 218, 255 Ill.Dec. 733, 750 N.E.2d 314 (2001). In addition, defense counsel makes numerous misstatements of the facts and of the evidence in defendant's brief, as detailed by plaintiff in its reply. We highlight only two. First, defense counsel argues that plaintiff's witnesses, including Thomas, lied to the SEC. Clearly, this is an erroneous statement since there is no evidence in the record that any of plaintiff's employees, particularly Thomas, were interviewed by the SEC. In addition, defense counsel argues that plaintiff's counsel made certain arguments to the jury with respect to the SEC inquiry. However, as plaintiff notes, these arguments were made to the trial court, outside the presence of the jury.

We further note that both parties have used an excessive number of footnotes in violation of supreme court rules. Rule 341(1) provides that "[f]ootnotes, if any, shall be used sparingly." 188 Ill.2d R. 341(a). Rule 344(b) also discourages the use of footnotes in briefs. 155 Ill.2d R. 344(b). Plaintiff's 42-page opening brief contains 18 single-spaced footnotes and its 124-page reply brief contains 73 single-spaced footnotes. Defendant's 93-page opening brief contains 53 single-spaced footnotes and its 27-page reply brief contains 21 footnotes. This is a total of 165 footnotes, 91 attributable to plaintiff and 74 to defendant! This cannot be characterized as a "sparingly" use of footnotes. In addition, much of the information contained in these footnotes is "substantive material that should have been presented in the body of the briefs." Lundy, 322 Ill.App.3d at 218, 255 Ill.Dec. 733, 750 N.E.2d 314. In fact, a majority of the footnotes in defendant's reply brief contain substantive arguments. Defendant has even raised contentions of trial court error in the footnotes and asks this court for relief. See fns. 30, 31, and 32. Clearly, this is improper. Moreover, had defendant's 21 footnotes been incorporated into the body of its 27-page reply brief, that brief clearly would have exceeded the page limitation set forth in Rule 341(a). 188 Ill.2d R. 341(a). Accordingly, defendant's attorney's conduct in filing defendant's motion to strike plaintiff's brief in this regard is disingenuous. Defendant's motion to file a reply brief in excess of the page limitation was denied by this court. Thereafter, defendant filed its 27-page reply brief with 21 footnotes. Clearly, counsel was seeking to avoid this court's ruling, as well as the page limitation of Rule 341(a) through the use of footnotes. We note that defense counsel employed the same tactics before the trial court. Specifically, despite a...