847.698.9600847.698.9623 / 9624 Faxwww.dimontelaw.com

You work hard, respect your neighbor, pay your taxes and do your best to provide for your family. Local government normally does not interfere in your personal life. However, what do you do if local government comes to your home, to your life, and imposes its authority on you absent you bringing yourself to its attention?This is exactly what happened to a family living in Glenview. In 2011, a family residing in Glenview came to Di Monte & Lizak because all efforts to reach a reasonable agreement with the Village failed. The clients moved into their home in 2007. The home was constructed in 1987. Mom and Dad were employed and were raising 2 young children. In 2009, a Village engineer rang the doorbell asking if he could look into the clients’ backyard. He was granted access. Later, the clients received a notice from the Village citing them for a zoning violation. The notice alleged that the clients’ backyard elevation was approximately one foot higher than the elevation specified on the subdivision plat of survey. During the three years that the clients lived in their house, they performed no work which altered the elevation of their backyard. However, the Village demanded that they remove 24 cubic yards of soil from the backyard to decrease the elevation and come into compliance. What did this mean? The clients’ backyard was 25 feet wide and 75 feet long. The Village was demanding that the clients remove a swath of earth that was one foot deep, 20 feet wide and 50 feet long. The clients were perplexed. They performed no work to change the elevation of the backyard, and the Village raised no issue about the backyard when the clients were buying the house. The Village’s demand would render the backyard unusable, jeopardize the life of several large trees, and impair the resale value of the home. Prior to engaging Di Monte & Lizak, the clients employed an engineering firm to

Spring 2013Volume 20 – Number 4

When Local Government Wants To Play In Your Backyard

continued on page 2

By David Arena

DI MONTE & LIZAK, LLC

My name is Derek Samz and I am the new editor of the quarterly D&L newsletter. I have been an attorney with D&L for six years. My areas of practice focus on bankruptcy litigation, commercial litigation and related debtor-creditor relations issues. I want to highlight a few changes that you may have already noticed in this issue. But first, I would like to recognize the hard work and commitment of the

outgoing newsletter editor, Adam Poteracki. Adam served as the editor for a number of years, and always put out a great product.The first change I would like to highlight is that the newsletter contains Quick Response (QR) codes for each of the attorneys that publish an article. The QR codes can be scanned by a number of apps available for your mobile device, and will direct you to the article author’s biography on the D&L website. There you can obtain more information about the attorney and review other articles the attorney has authored. The second change is that you can now submit comments or suggestions to D&L via a dedicated newsletter E-mail address. Feel free to send in questions regarding the articles, or topics you would like to see covered in future newsletters. The E-mail address is newsletter@dimontelaw.com It will be reprinted on the back cover of each issue going forward.Please enjoy this issue of the newsletter. dsamz@dimontelaw.com

Upgrades to The D&L NewsletterBy Derek Samz

Di Monte & Lizak is pleased to announce that Richard Laubenstein received an Award for Excellence in Pro Bono Service by the United States District Court and the Chicago Chapter of the Federal Bar Association. The Rules of the U.S. District Court for the Northern District of Illinois provide that members of the trial bar must

be willing to accept appointment by the court to assist in the representation of people who cannot afford to hire an attorney. On June 15, 2009, Richard was appointed to represent an individual who claimed that his civil rights had been violated by officers of the Chicago Police Department. Extensive work was done to ascertain the nature of the individuals claim, amending his complaint and conducting depositions, here in Chicago and downstate near Springfield. The matter resulted in a three day jury trial which concluded on August 15, 2012. The plaintiff told Richard how grateful he was for the legal services that were provided to him, saying that “this was the first time in my life I ever felt like someone was on my side.” The award was presented to Richard on May 23, 2013 by Chief Judge James F. Holderman of the United States District Court.

rlaubenstein@dimontelaw.com

Richard Laubenstein Receives Award for Excellence in Pro Bono Service

Julia Jensen Smolka - Park Ridge Chamber of CommerceOn April 2, 2013, Julia Jensen Smolka spoke at a small business roundtable discussion hosted by the Park Ridge Chamber of Commerce. Among the topics Ms. Smolka discussed were the pros and cons of forming a corporation or an LLC, commercial lease negotiations and pitfalls small business owners should be

aware of subjecting them to personal liability for business debt, such as for leases, credit cards, vendor debt, employee claims and tax liabilities.

jsmolka@dimontelaw.com

DI MONTE & LIZAK, LLC

Martha Stewart Fights the Law - Round ???By: Margherita Albarello and Lin Hanson

When Local Government Want To Play In Your Backyardcontinued from front page

The legal profession seems to be recovering from its economic woes. Perhaps we (lawyers) should thank Martha Stewart for her continuing stimulus to the law business. She’s at it again with another big one.

I think we all remember Martha Stewart, the lady who did actual jail time for insider trading in IMClone stock. Warned by her broker that the founders of the company were selling their shares in the company, Martha dumped her entire

holding before the news of the FDA action turning down a new cancer drug, Erbitux reached the public. She and the broker then compounded the matter by inventing a false story that the decision to sell if the stock fell below $60 a share was made long before the event of sale. As a result of her conduct, Martha was sentenced to 5 months imprisonment followed by 5 more months of home confinement.

Time and Martha marched on, however, and when she emerged from prison, she struck a deal with Kmart (Sears Holding) to handle her Martha Stewart Everyday line of household items, saving her company from a decline caused by the adverse publicity in the insider trading case and subsequent imprisonment. Of course when that deal

appeared to sour, Martha was quick to move on, signing a new deal with Home Depot. In a parting shot Martha allegedly commented about Kmart, “Have you been in a Kmart lately? It is not the nicest place to shop.”

Well, the Home Depot deal didn’t work out either, so Martha signed a deal with Macy’s to handle Martha Stewart Living Omnimedia home goods, giving Macy’s the “exclusive” right to sell Martha’s products in the cookware, home decor, bedding and bath textiles lines, under an agreement that runs until 2018. Macy’s has made the Martha Stewart line its number one line. Sales growth in that line last year was 8%, double the rate of growth at Macy’s as a whole.

There is an exception to Macy’s “exclusive” right to sell the Martha Stewart lines. The contract provides that Martha may also sell her own lines from stores which she owns herself. Can you see what’s coming next?

Without warning, Martha has signed a new agreement with J.C. Penney company under which Penney’s will be opening “Martha Stewart boutiques” in 700 of its stores, and the boutiques will be selling the disputed lines of household products. Martha and Penney’s have justified this on the theory that the boutique operations are, in effect, Martha’s own stores.

It comes as no surprise that Macy’s has elected to sue both Martha Stewart Living Omnimedia and J.C. Penney Co. claiming Martha has breached her contract of exclusivity with Macy’s and Penney’s has induced her to do it. The cases are pending,

and have been consolidated for trial in the Supreme Court of New York. (New York calls its trial court the Supreme Court).

Rulings in this case should be of interest to our business owner clients as well as clients who are thinking about going into business. In contract law there is a concept of “good faith and fair dealing” which requires that parties conduct themselves in regard to each other with good faith. The issue of interpretation of the “exclusive” provision in the contract is to be decided. If Martha and Penney’s prevail, it is possible that Macy’s will receive some sort of damage award, and how the court computes damages will be interesting. If the Court decides to stop the Martha Stewart Boutique concept in its tracks, will Martha open up to liability to Penney stores?

In the latest round, first Macy’s then Penney’s seemed to score points. First Macy’s received a court order restraining Penney’s from selling Martha Stewart brand soft goods, then Penney’s sought and received some relief in the appeals court, which allows them to sell Martha Stewart soft goods so long as they do not bear the Martha Stewart name. The battle rages on.

We’ll keep an eye on the case and report further. Meanwhile if you have questions, please feel free to submit them and we’ll deal with your questions in future issues. You can email us with questions or comments at:

Malbarello@dimontelaw.com Lhanson@dkehq.org

develop multiple alternatives to address the stormwater detention requirements apparently driving the Village’s demands. The Village rejected all efforts to compromise.

At trial, we were able to establish that the subdivision was developed in 1988. The original plan was that the surface of the backyards of the clients’ property and adjacent properties would satisfy stormwater detention requirements. Within several years of development, the Village determined that the original plan was insufficient, and the Village required the developer to install a stormwater sewer system in the backyards. This work apparently altered the elevation of the clients’ backyard. However there was no conclusive evidence of this because the Village did not obtain as-built elevations prepared after the sewer system was installed. The as-built elevations would

have set the benchmark elevation by which to measure the clients’ existing elevation.

At trial, we were able to establish that the Village had no benchmark from which to measure the elevation on the clients’ backyard at the time they purchased the property and the Village had no evidence that the clients altered the elevation. The zoning ordinance in general mandated that “no person shall alter the elevation”. Ultimately, the court agreed with our arguments that absent proof that the clients took affirmative steps to change the elevation of their backyard, the clients were not liable for the nonconformance. In the end, the Village’s demands were denied and our clients were not required to perform any corrective work.

So, what is the lesson to be learned here? Local government is a necessary part of our

lives. For the most part, municipal employees operate in good faith for the benefit of its citizens. However, municipal employees are not vested with absolute authority. They are people like you and me – and sometimes they get it wrong. If you are having trouble dealing with your municipality, DiMonte & Lizak is experienced with municipal law and working to negotiating a settlement that avoids the expense, time and stress associated with litigation. However, if litigation is necessary, we are fully capable of advocating for our client’s rights at trial.

darena@dimontelaw.com

Case Snapshot: A Story From The Litigation TrenchesBy: Jordan A Finfer

Epilogue of the Case Snapshot By: Chester A. Lizak

The following is a tale of a condominium association’s unjust practices and an owner’s path to justice. In September of 2011 a condominium owner came to DiMonte & Lizak seeking assistance with

resolving a dispute with her condominium association. The association was refusing to recognize responsibility for defects in the common elements which caused flooding and the development of mold in the owner’s unit. When the owner came to our office she had already made numerous requests upon the association to address the water infiltration and mold in her unit; her requests had fallen on deaf ears. Without any means to compel the association to act on her behalf, the owner took measures into her own hands and made the necessary repairs to remediate the mold in her unit and to prevent future water infiltration. The owner came to DiMonte & Lizak and asked us to assist her in recouping the costs she had incurred due to the association’s failure to assume its responsibilities.

DiMonte & Lizak agreed to assist the owner. We reviewed the condominium association’s by-laws and determined that the association had a duty to act. We issued

a demand letter to the association seeking reimbursement for the costs the owner had incurred. Our request was simple, pay the owner for the costs she incurred because of your failure to adhere to your association’s responsibilities. The association denied our request claiming it was unconvinced it had a duty to act, despite the overwhelming evidence supporting our position.

The owner and DiMonte & Lizak decided to escalate the matter and filed a law suit against the association. The law suit, like the demand letter, set forth the clear logic of our position, and sought to recover the owner’s damages, plus punitive damages, and attorney fees. The basis for the punitive damages and attorney fees was the association’s egregious and baseless denial of the owner’s request. From the beginning of this matter it was clear that the association failed to act because it believed it could use its position of strength to exploit its members.

A year after filing the lawsuit the matter was ready for a bench trial. All along the association stuck to its position that it did not have to act. After two days of trial, the flaws in the association’s position were exposed through the use of fact witness testimony, expert reports, and the owner’s paid invoices. At the conclusion of our

case in chief we asked for damages in the amount of the repairs, punitive damages in an amount two and a half times the amount of the repair damages, and attorney fees as punitive damages relying upon recent case law. After a short deliberation, the Judge awarded the owner everything we asked for.

In the end, and over two and a half years after the association’s initial offense, the owner obtained just retribution in an amount 7 times greater than the damages sought in the initial demand letter. The result was righteous, and for the association a tough lesson in understanding the obligations born from their own by-laws.

jfinfer@dimontelaw.com

The foregoing result achieved by Jordan Finfer is truly a remarkable litigation achievement.

It is the kind of result that most clients expect when they are involved in a dispute and are convinced

of the righteousness of their position. The client wants you to secure an award for the full amount of their damages, the amount of their attorneys fees, and punitive damages.

It is highly unlikely that they will achieve such a result for the following reasons:

1. In most cases there are two sides to every story - the prevailing party usually does not get one hundred percent of what he or she asks for;

2. Illinois follows the “American Rule” that disallows claims for attorneys fees except in cases where a statute or contract specifically provides for attorneys fees;

3. Punitive damages are usually awarded only in cases of wilful and wanton conduct.

SUMMARY

It is highly unlikely that your claim will result in a litigation trifecta i.e., an award for the full amount of damages, attorneys fees and punitive damages. If you have a chance to settle your claim on a reasonable basis, do so.

If Jordan ever achieves another litigation trifecta we will add the letters “S.L.” to his name. (Super Litigator)

clizak@dimontelaw.com

DI MONTE & LIZAK, LLC216 Higgins RoadPark Ridge, IL 60068

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DI MONTE & LIZAK, LLC

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Martha Stewart Fights the Law -Round ??? See page 2

Case Snapshot: A Story From the Litigation Trenches

Epilogue See page 3

What’s Inside...When Local Government Wants To Play In Your Backyard

A Refresh to The D&L Newsletter

Richard Laubenstein Receives Award for Excellence in Pro Bono Service

Julia Jensen Smolka - Park Ridge Chamber of Commerce

See front page