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Schnack v. Crumley

OPINION FILED FEBRUARY 4, 1982.

ANDREW C. SCHNACK, III, PLAINTIFF-APPELLEE,

v.

DAVID CRUMLEY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Adams County; the Hon. HAROLD L. MADSEN, Judge, presiding.

JUSTICE LONDRIGAN DELIVERED THE OPINION OF THE COURT:

Defendant appeals the trial court's denial of his motions for costs under section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 41), which were filed in the trial court after this court reversed, without remand, a previous judgment against defendant for legal fees which plaintiff sought as a result of services rendered. A motion to dismiss the appeal for lack of jurisdiction, filed by plaintiff, was ordered taken with the case.

The parties are well aware of the underlying facts surrounding this litigation and they need not be restated in detail here. The question before this court is one of procedure and concerns the ability of a trial court to entertain a motion for section 41 costs on behalf of a litigant who has obtained a reversal, without remand, of the underlying judgment on appeal.

The operative facts indicate that defendant's claim for section 41 costs arose for the first time in defendant's prayer for relief in his third post-trial motion filed after judgment was entered against him after a trial on the original complaint. An examination of the three post-trial motions, two of which were filed more than 30 days after judgment was rendered against defendant, reveals that defendant raised a number of legal and factual issues which defendant claimed supported judgment in his favor or a new trial. Nowhere, however, in any of these motions are any facts or allegations presented which specifically delineated those portions of the pleadings or testimony upon which defendant relied to support his claim for section 41 costs. Following a hearing on all three motions, the trial court, without differentiating between the various claims, denied all of the post-trial motions in their entirety.

On direct appeal, defendant again presented to this court various legal and factual questions concerning the propriety of the judgment entered against him in the trial court. Defendant, however, never briefed nor specifically argued the question of the propriety of the denial of section 41 costs, though in his prayer for relief to this court defendant again asked that section 41 costs be granted.

On August 13, 1980, this court entered a Rule 23 order in Schnack v. Crumley (1980), 86 Ill. App.3d 1200 (Rule 23 order). In that order, we reversed the judgment of the trial court because the complaint failed to state a cause of action since the record did not demonstrate that plaintiff had been assigned the claim against defendant from a partnership of which plaintiff had earlier been a member and to which defendant might have otherwise owed the fee in question. Since that holding was dispositive of the case, this court chose not to express an opinion upon defendant's other major contention, that being that the judgment should be reversed because plaintiff undertook employment that was adverse to defendant's interests. No petition for rehearing was filed from that order.

In due course, the mandate from this court issued reversing, without remand to the trial court. Thereafter, defendant filed an entirely new motion for costs under section 41 which the trial court ultimately dismissed for lack of jurisdiction.

• 1 Defendant's first contention, that the mandate filed in the trial court upon reversal of the prior cause, was sufficient, in and of itself, to award him costs under section 41, is without merit. The language of the mandate to the effect that "appellant recover costs of and from said appellee" applies only to costs generated by the appeal and has nothing to do with any claim for section 41 costs.

• 2 Defendant's next contention is that his motion for section 41 costs, filed within 30 days of the filing of the mandate in the trial court is timely under section 41. That argument is based upon language of section 41 which states that motions for costs under the statute must be made "within 30 days of the judgment or dismissal." Defendant contends that "judgment" was not rendered until the mandate was filed. We do not agree.

Section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 41) states:

"Untrue statements. Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney's fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.

The State of Illinois or any agency thereof shall be subject to the provisions of this Section in the same manner as any other party.

Where the litigation involves review of a determination of an administrative agency, the court shall include in its award for expenses an amount to compensate a party for costs actually incurred by that party in contesting on the administrative level an allegation or denial made by the State without reasonable cause and found to be untrue."

In interpreting section 41, courts> have uniformly held that section 41 motions are timely only if filed within 30 days of the underlying judgment. (People ex rel. Henderson v. Redfern (1968), 104 Ill. App.2d 132, 243 N.E.2d 252.) The remedy in this provision is clearly limited to matters before the trial court, primarily in connection with pleadings, and requires that relief be sought at the trial level. (Henderson.) A motion for section 41 fees which is first addressed to a trial court after a mandate issues from the direct appeal is not timely ...


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