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Hise v. Hull

OPINION FILED JULY 26, 1983.

RICHARD B. HISE, PLAINTIFF-APPELLANT,

v.

A. LEWIS HULL ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Macon County; the Hon. James A. Hendrian, Judge, presiding.

JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Attorney fees.

Under section 2-611 of the Code of Civil Procedure.

The trial judge dismissed Hise's complaint for failure to state a cause of action. Hise filed an amended complaint. Again, the trial judge dismissed the amended complaint, but reserved for future hearing the defendants' motion for section 2-611 attorney fees. Hise appealed to this court.

We must dismiss his appeal.

The pertinent facts follow:

Richard Hise's wife, Patricia, filed for a legal separation. She retained the law firm of Hull, Campbell, Robinson & Gibson (the law firm) to represent her. After a hearing, the trial judge entered a judgment of legal separation and a decree of partition, ordering certain real property owned by Patricia to be sold and the proceeds used to pay marital debts.

The property was sold. The proceeds — $8,245.87 — were placed in the law firm's trust account. Patricia then terminated the law firm's services. The firm acknowledged the termination and informed Patricia that she owed them $1,219.70 in legal fees. Patricia failed to pay the fees and the firm mailed Richard Hise's attorney a check for $7,026.17 — the amount representing the difference between the monies held in the trust account and the fees Patricia owed the firm. Richard Hise's attorney never cashed the check.

Five months later, the trial court entered a modified judgment incorrectly stating that Patricia's land "has been sold and the net proceeds of said sale, after the payment of expenses thereof, in the amount of $8,245.87 are presently being held in the trust account of Attorney Michael I. Campbell by agreement of the parties, and for the use and benefit of the parties, subject to the order of the Court as to the use and distribution of said proceeds."

Next, Hise filed a complaint against the law firm. He alleged that the firm had breached its fiduciary duty to him by retaining the $1,219.70 in legal fees. Arguing that a fiduciary relationship never existed between Hise and the law firm for Patricia, the firm moved to dismiss his complaint. Judge Hendrian allowed the firm's motion and granted Hise leave to file an amended complaint.

Hise then filed an amended complaint which — for all practical purposes — simply restated the allegations in his original complaint. The law firm moved to dismiss the amended complaint and also asked the court to assess section 2-611 attorney fees and expenses (Ill. Rev. Stat. 1981, ch. 110, par. 2-611, formerly Ill. Rev. Stat. 1979, ch. 110, par. 41) against Hise because the amended complaint contained false statements. Finding that Hise's amended complaint failed to state a cause of action, Judge Hendrian dismissed the amended complaint but reserved for future hearing the law firm's motion for section 2-611 attorney fees. (Judge Hendrian did not find in the order that there was no just reason for delaying enforcement or appeal of the order.)

• 1 We must dismiss this appeal because Judge Hendrian's order was not a final judgment as to all of the claims in the action — he reserved ruling on the law firm's claim for section 2-611 attorney fees. Without a Supreme Court Rule 304(a) finding — that there is no just reason for delaying enforcement or appeal — a judgment that does not dispose of all the claims in an action is not an appealable order.

SUPREME COURT RULE 304(a)

Supreme Court Rule 304(a) (87 Ill.2d R. ...


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