Snow Plower’s Quantum Meruit Claim Fails; Dissent Takes Rule 23 Publishing Standards to Task – IL 1st Dist.

In Snow & Ice, Inc. v. MPR Management, 2017 IL App (1st) 151706-U, a snow removal company brought breach of contract and quantum meruit claims against a property manager and several property owners for unpaid services.

The majority affirmed dismissal of the plaintiff’s claims and in dissent, Judge Hyman gives a scathing critique of Rule 23, which provides standards for publishing (or not) opinions, including the rule’s penchant for quiet minority voices on an appeals court.

Plaintiff sued to recover about $90K for snow removal services it supplied to nine separate properties managed by the property manager defendant.  After nonsuiting the management company, the plaintiff proceeded against the property owners on breach of contract and quantum meruit claims.

The trial court granted the nine property owners’ motion to dismiss on the basis there was no privity of contract between plaintiff and the owners.  The court dismissed the quantum meruit suit because an express contract between the plaintiff and property manager governed the parties’ relationship and a quantum meruit claim can’t co-exist with a breach of express contract action.

Affirming the Section 2-615 dismissal of the breach of contract claims, the appeals court rejected the plaintiff’s claim that the management company contracted with plaintiff on behalf of the property owner defendants.  In Illinois, agency is a question of fact, but the plaintiff still must plead facts which, if proved, could establish an agency relationship.

A conclusory allegation of a principal-agent relationship between property manager and owners is not sufficient to survive a motion to dismiss.  Since the plaintiff only alleged the bare conclusion that the property owners were responsible for the management company’s contract, the First District affirmed dismissal of plaintiff’s breach of contract claims.

The Court also affirmed the dismissal of the plaintiff’s quantum meruit claims against the owners.  A quantum meruit plaintiff must plead (1) that it performed a service to defendant’s benefit, (2) it did not perform the service gratuitously, (3) defendant accepted the service, and (4) no contract existed to prescribe payment for the service.  Quantum meruit is based on an implied promise by a recipient of services or goods to pay for something of value which it received.  (¶¶ 17-18).

Since the properties involved in the lawsuit were commercial (meaning, either vacant or leased), the Court refused to infer that the owners wanted the property plowed.  It noted that if the property was vacant, plaintiff would have to plead facts to show that the owner wanted plaintiff to clear snow from his/her property.  If leased, the plaintiff needed facts tending to show that the owner/lessor (as opposed to the tenant) implicitly agreed to pay for the plaintiff’s plowing services.  As plaintiff’s complaint was bereft of facts sufficient to establish the owners knew of and impliedly agreed to pay plaintiff for its services, the quantum meruit claim failed.

If leased, the plaintiff needed facts tending to show that the owner/lessor (as opposed to the tenant) implicitly agreed to pay for the plaintiff’s plowing services.  As plaintiff’s complaint was bereft of facts sufficient to establish the owners knew of and impliedly agreed to pay plaintiff for its services, the quantum meruit claim failed.

In dissent, Judge Hyman agreed that the plaintiff’s breach of contract claim was properly dismissed but found that the plaintiff did plead enough facts to sustain a quantum meruit claim.  Hyman’s dissent’s true value, though, lies in its in-depth criticism of Illinois Supreme Court Rule 23’s publication guidelines.

Rule 23 provides for an opinion’s publication only where a majority of the panel deems a decision one that “establishes a new rule of law or modifies, explains, or criticizes an existing rule of law” or “resolves, creates, or avoids an apparent conflict of authority within the Appellate Court.” Sup. Ct. R. 23(a).

Hyman’s thesis is that these standards are too arbitrary and the Rule should be changed so that just one justice, instead of a majority of the panel, is all that’s needed to have a decision published.  Hyman then espouses the benefits of dissents and special concurrences; they perform the valuable functions of clarifying, questioning and developing the law.

In its current configuration, Rule 23 arbitrarily allows a majority of judges to squelch lone dissenters and effectively silence criticism.  Judge Hyman advocates for Illinois to follow multiple other courts’ lead and adopt a “one justice” rule (a single judge’s request warrants publication).  By implementing the one justice rule, minority voices on an appeals panel won’t so easily be squelched and will foster legal discourse and allow the competing views to “hone legal theory,

By implementing the one justice rule, minority voices on an appeals panel won’t so easily be squelched and will foster legal discourse and allow the competing views to “hone legal theory, concept and rule.”

 

 

‘Domicile’ vs. ‘Residence’ vs. ‘Citizenship’ in Federal Court Jurisdiction – More Semantic Hairsplitting?

Strabala v. Zhang, 318 F.R.D. 81 (Ill. N.D. 2016), featured here for its detailed discussion of e-mail evidence, provides an equally thorough analysis of the differences between residence and domicile in the Federal court jurisdiction calculus.

In the Federal litigation scheme, the party asserting Federal court jurisdiction bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.

The plaintiff here alleged that the Northern District had original jurisdiction based on 28 U.S.C. § 1332(a)(2) – the diversity of citizenship statute that vests Federal courts with jurisdiction over claims between “citizens of a State and citizens or subjects of a foreign state.”

The defendants were unquestionably Chinese citizens – a foreign state under Section 1332.  The plaintiff’s citizenship, though, was unclear.  While plaintiff claimed he was a citizen of Illinois, the defendants disputed this; they pointed to the plaintiff’s home in China as proof that he wasn’t really an Illinois citizen and so was stateless.  A “stateless” citizen can’t invoke Federal court diversity jurisdiction.

Though colloquially used interchangeably, under Federal law, the terms citizenship and residence have important differences.  Citizenship equals domicile, not residence.  The term residence denotes where a person lives while domicile carries both a physical and mental dimension.

Domicile is “the place where that individual has a true, fixed home and principal establishment” and the place where the person intends to eventually return.  A person can have multiple residences but only one domicile.

Objective factors a court considers to determine domicile include “current residence, voting registration and voting practices, location of personal and real property, location of financial accounts, membership in unions and other associations, place of employment, driver’s license and automobile registration, and tax payments.”  But no lone citizenship/domicile factor is conclusive; each case turns on its own facts.

Applying these factors, the Court noted that since plaintiff was based in Illinois from the late 1980s through 2006 (when plaintiff moved first to Houston, TX then to Shanghai), the Court required defendants to show that plaintiff not only currently lived outside of Illinois but also had no intention of returning to Illinois.

The Court credited the plaintiff’s declaration (sworn statement) of intent to keep an Illinois domicile.  Other factors weighing in favor of finding subject matter jurisdiction included (1) plaintiff and his wife never sold there Chicago condominium or removed furniture from it when they moved to Houston in 2006, (2) for several months they lived in corporate housing provided by plaintiff’s Houston employer (an architecture firm), (3) plaintiff’s wife divided her time equally between Chicago and Houston while plaintiff spent about 50% of his time in Shanghai, 40% in Houston and 10% in Chicago.

The plaintiff’s Texas drivers’ license and Houston condo purchase weren’t enough to tilt the citizenship question to the defendants (who, again, argued that the plaintiff wasn’t an Illinois citizen) since the plaintiff swore under oath that he intended to keep an Illinois domicile and defendant had no facts to refute this.

Rejecting the defendants’ argument that plaintiff’s domicile was Shanghai, the Court focused on the following facts: (1) plaintiff lived in a furnished hotel with a lease of one year or less and owned no real property or car in Shanghai, (2) plaintiff’s Chinese work permit had to be renewed annually; and (3) plaintiff’s wife spent six months out of the year in Chicago.

Other pro-Illinois domicile factors cited by the Court included the plaintiff’s testimony (via declaration) that he has had a landline telephone number with a Chicago area code for over two decades and plaintiff’s LinkedIn profile that listed his employment locations as Shanghai, Seoul, and Chicago.

Afterwords:

For Federal subject matter jurisdiction based on diversity of citizenship to attach, the plaintiff must be a citizen of a State (as opposed to a foreign country).  This case provides an exhaustive application of the various factors a court considers when deciding the site of a Federal plaintiff’s domicile in a complex fact pattern and emphasizes the differences between residence and domicile.

 

 

Indirect Evidence of E-mail Authenticity Not Enough in Architect’s Defamation Suit – IL ND (Part I of II)

An Illinois Federal court recently expanded on the reach of some common business torts, the grounds to vacate a default judgment, and the evidentiary vagaries of e-mail.

Strabala v. Zhang, 318 F.R.D. 81 (Ill. N.D. 2016), pits an architect against his former partners in a defamation and tortious interference suit based on accusations of unethical conduct and the diversion of partnership assets to foreign businesses.

The plaintiff alleged that two of the defendants e-mailed different businesses and plaintiff’s professional associates and falsely accused him of forging signatures, illegally using copyrighted software and misrepresenting his accomplishments and “tax fraud.”

After a default judgment entered against them, the former partners moved to vacate the judgment and separately moved to dismiss the plaintiff’s suit for lack of subject matter and personal jurisdiction and defective service of process.  The court vacated the default judgment and partially granted the defendants’ motion to dismiss.  Some highlights of the court’s opinion:

Federal Rules 55 and 60 respectively allows a court to set aside a default order for good cause and a default judgment.  A judgment entered by a court that lacks subject matter jurisdiction over a case or personal jurisdiction over a defendant is void and must be set aside.  See FRCP 60(b)(4).  This furthers the law’s established policy of having cases decided on their merits instead of on technicalities.

A party seeking to vacate an entry of default prior to the entry of final judgment must show: (1) good cause for the default; (2) quick action to correct it; and (3) a meritorious defense to the complaint.  The court found that the defendants satisfied the three-prong standard to vacate the default.

E-mail Evidence: Foundational Rules

The defendants sought to offer two emails into evidence – one sent by the plaintiff, the other received by him.  To lay a foundation for documentary evidence, the proponent (here the defendants) must submit evidence “sufficient to support a finding that the item is what the proponent claims it is.”  FRE 901(a).  The foundational standard is lenient. The proponent must only make a prima facie showing of genuineness; it is up to the court or jury to decide whether the evidence is truly authentic.

Here, the defendants failed to lay a foundation for the e-mails.  First, the plaintiff – variously, author and recipient of the e-mails – testified that he believed the e-mails may have been altered and did not concede the e-mails’ authenticity.

Next, the Court rejected Defendants’ argument that the e-mails were self-authenticating under FRE 902(7) – the rule governing inscriptions, signs, tags, or labels that indicate business origin, ownership, or control.

The court found that plaintiff’s electronic e-mail signature and a company letterhead logo were not “trade inscriptions” within the meaning of Rule 902(7) citing to a Seventh Circuit case holding that a trade inscription on the cover of an owner’s manual does not authenticate the contents of the manual.

Plaintiff presented evidence in his affidavit (declaration) rebutting the presumptive authenticity of the e-mails by calling into question whether he signed one e-mail electronically and by stating that the e-mails were on his personal laptop’s hard drive, a device plaintiff claimed the defendants stole from him.  The court held that if the e-mails did originate from plaintiff’s stolen laptop, the evidence would be inadmissible.

Q: So what kind of evidence would have satisfied the court?

A: Direct proof of authenticity.

Q: What would qualify as “direct proof”?

A: Testimony by Plaintiff or the other sender or someone who witnessed the sending of the emails who could attest that the questioned e-mails are the actual, unchanged emails sent by the authors.

The court noted that indirect evidence of authenticity could also work.  Indirect evidence typically involves testimony from “someone who personally retrieved the e-mail from the computer to which the e-mail was allegedly sent” together with other circumstantial evidence such as the e-mail address in the header and the substance of the email itself.

Here, the court found the defendants’ indirect evidence was too flimsy. It noted that the defendants were interested parties and accused of theft (plaintiff claimed they stole his laptop).  The court also held that the defendants’ self-serving testimony that they didn’t alter the e-mails wasn’t enough to establish their authenticity especially in light of plaintiff’s claims that the defendants stole his laptop and that the e-mails appeared to have been changed.

In the end, the court granted the plaintiff’s motion to strike the two e-mail exhibits to the defendants’ motion to dismiss.

Take-aways:

Given the rampantness of e-mail, this case is instructive for litigators since most cases will involve at least some e-mail evidence.  The case also underscores that while the standard for evidence authenticity is low, it still has some teeth.

Here, the plaintiff’s belief that the emails offered against him were doctored coupled with the fact that the e-mails’ source was stolen property (a laptop), was enough to create a question as to whether the e-mails were authentic.

The next post summarizes the Court’s exhaustive analysis of subject matter and personal jurisdiction under the Illinois long-arm statue and Federal due process standards.