The Madison County Record Nov. 24, 2015, 7:28am


SPRINGFIELD – Court orders that dismiss civil actions should count as final judgments if plaintiffs ignore deadlines to amend, the Illinois Association of Defense Trial Counsel argues at the Illinois Supreme Court.

“An order which grants a plaintiff leave to amend where the plaintiff chooses not to amend within the specified time is no different than an order which does not grant leave to amend,” Ann Barron of Edwardsville wrote for the association on Nov. 17.

“Here, substance, not form, should control,” she wrote.

She urged the Justices to reverse a Fourth District appellate court decision that revived a fraud suit against Prairie Farms milk cooperative.

Fourth District judges blamed Prairie Farms for failing to obtain final judgment.

“We note although nearly five years elapsed between the plaintiffs were given leave to file an amended complaint and their voluntary dismissal, defendant did not take any steps to put a definitive end to the case by filing a motion to dismiss the fraud counts with prejudice,” they wrote.

Plaintiffs Michael Richter and Denise Richter filed the original complaint in 2006, in Madison County circuit court.

Their lawyer, David Antognoli of Edwardsville, claimed Prairie Farms wrongfully terminated a marketing contract the parties had executed in 1980.

The Richters’ suit alleged that Prairie Farms terminated their membership in the cooperative and offered them $15 per share for stock they owned.

Antognoli wrote that the Richters rejected the offer.

He sought shareholder remedies under the Business Corporation Act, and he filed fraud counts under state consumer law and common law.

Prairie Farms moved to dismiss all three counts for failure to state claims on which a court could grant relief.

Circuit judge Dan Stack allowed the shareholder count, dismissed the fraud counts without prejudice, and gave the Richters 30 days to amend the complaint.

They asked for an extension 28 days later, and Stack granted 120 more days.

They did not amend the complaint.

Stack retired, and Circuit Judge Dave Hylla took the case.

Antognoli withdrew from the action in 2011, and Todd Sivia of Edwardsville entered his appearance.

In 2012, Sivia asked Hylla for an extension of time to disclose experts and comply with discovery requests.

Hylla gave Sivia 30 days, and on the 31st day Silvia moved for two more weeks.

Hylla denied the motion at a hearing, and Sivia moved to voluntarily dismiss the complaint without prejudice.

Hylla wrote an order on the spot, granting the motion.

The Richters filed their action again 364 days later, dropping the consumer fraud counts and adding claims of misrepresentation and breach of fiduciary duty.

Former chief judge Ann Callis assigned it to Circuit Judge Andy Matoesian.

Prairie Farms moved for transfer to Macoupin County, and Matoesian granted it.

At the courthouse in Carlinville, Prairie Farms moved to dismiss the case.

Prairie Farms argued that dismissal of the fraud claims in the first action constituted a final adjudication on the merits.

It argued that a five year statute of limitations ran out and that the Richters failed to state a cause of action.

At a hearing on June 2, 2014, Circuit Judge Patrick Londrigan granted the motion.

He did not elaborate, beyond writing that he reviewed the prior Madison County case including all docket entries.

Fourth District appellate judges in Springfield reversed him this June, finding that Stack’s order was not a final judgment.

“Rather, the court’s order left the suit pending for further proceedings,” Justice Carol Pope wrote.

“We further note, although the circuit court set a deadline for plaintiffs to file their amended complaint, it was within he court’s discretion to extend that deadline, even well after the original deadline,” Pope wrote.

“For all we know, the court might even have allowed plaintiffs more time to amend had plaintiffs sought leave to do so.”

They held that the Richters had a right to refile within a year even if the statute of limitations had run out.

Prairie Farms petitioned the Supreme Court for review, with support from the defense counsel association.

Barron wrote that dismissal of the first case was based on infirmity in the case.

She wrote that dismissal for failure to state a claim is adjudication on the merits.

“Once the time for leave to amend expired, the dismissal order became final,” she wrote.

“Prairie Farms should not be penalized for plaintiffs’ failure to act.”

Sivia’s associate, Paul Marks of Edwardsville, also represents the Richters.

Donald Schoemaker and Andrew Tessman, of Greensfelder, Hemker and Gale in Belleville, represent Prairie Farms.

Organizations in this Story

Illinois Third Judicial Circuit Court
155 N Main St
Edwardsville, IL 62025

Madison County Government
157 N Main St
Edwardsville, IL 62025

Greensfelder
12 Wolf Creek Dr
Belleville, IL 62226

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