Litigation Strategy

The Second District recently issued an opinion in the case Wickman v. Illinois Property Tax Review Board ("PTAB"). The issue was whether Wickman's property tax appeal was timely filed. Wickman mailed his appeal at 4:45 pm on the 30th day after the assessment issued, but the PTAB did not receive it until the 31st day, one day late. They refused to consider his appeal.

I won't get into the specifics of that case, but at the beginning of that opinion, the court quickly dealt an interesting issue of appellate strategy.

"At the outset, we note that the PTAB has filed a motion to strike an exhibit attached to Wickman's reply brief. The exhibit consists of photographs of a United States mailbox labeled to indicate that mail is collected at 4:45 p.m. The PTAB also moves to strike references to the exhibit from Wickman's reply brief. We ordered the motion taken with the case. The photographs are not part of the record on appeal. Attachments to briefs not included in the record on appeal are not properly before the appellate court, and they cannot be used to supplement the record. Accordingly, we grant the PTAB's motion."

Pretty cool. I don't know what weight those photographs would have carried with the court, but it was quick thinking nonetheless for the PTAB's lawyers to move to strike them.

That situation was very similar to a move that won the MD Electrical case for me before the Illinois Supreme Court. I usually try to avoid shameless self-promotion in this blog, but the circumstances were just too similar between that case and my own.

Loyal readers will recall that my case was dismissed by the trial court. We appealed and won. My opponent then filed a Petition for Leave to Appeal to the Illinois Supreme Court. PLAs are very similar to appellate briefs; in fact, Supreme court rules give petitioners the right to stand on their petition in lieu of filing an additional brief. Well in this case, my opponent decided to file an additional brief.

When I received their brief, I found a new argument which I had not seen before. It had never been raised in the case before and I was sure that I did not see it in the PLA. It was especially shocking because I knew I could not overcome this new argument. My case was one for quantum meruit. Defendants cited cases in their brief which held that subcontractors could not recover under quantum meruit because they had no contractual privity with the homeowners. These cases held that a mechanics lien is the only remedy available to an aggrieved subcontractor. Upon further review, they were right, and the lien time lines had long since passed.

However, I hit the library. I found a case that said "if a party fails to raise in issue in its petition for leave to appeal, it may be deemed a forfeiture of that issue." I made that argument in my reply brief and the Supreme Court bought it. They held that "the quantum meruit issue presented to this court [in defendant's brief] is not properly presented by the record in this case and is therefore forfeited."

I then prevailed on the sole remaining issue relating to the Home Repair and Remodeling Act.

In conclusion, always think about framing the issues and evidence before the court. Don't assume that all evidence offered by the other side is admissible and don't assume that the issues presented by the other side are the true issues of the case.