Appeal from the Circuit Court of Cook County; the Hon. John F.
Hechinger, Judge, presiding.
PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Plaintiff was granted 21 days to file his brief in response to defendant's motion to dismiss. Five weeks after his brief was due, plaintiff sought leave to file his response instanter, and such leave was granted by the trial court.
Defendant brought a motion for attorney fees based on plaintiff's untimely filing, asserting as the statutory bases for his motion Supreme Court Rules 218 and 219(c) (73 Ill.2d Rules 218, 219(c)) and section 5-118 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 5-118).
The trial court granted defendant's motion and awarded defendant $1,387.50, finding in its order that plaintiff was in violation of sections 2-611 and 5-118 (Ill. Rev. Stat. 1981, ch. 110, pars. 2-611, 5-118) of the Code.
On appeal, plaintiff asserts that these rules and code sections do not support the award of attorney fees, in light of his particular conduct, and that the court's award of fees was therefore an abuse of a discretion.
We reverse the decision of the trial court.
In April 1982, plaintiff, Alfred M. Sanelli, filed a class action suit against his land trustee and secured creditor, defendant Glenview State Bank (Glenview), alleging that Glenview had breached its fiduciary duty by purchasing the trust property for its own benefit at a public sale, a practice held unlawful by the Illinois Supreme Court in Home Federal v. Zarkin (1982), 89 Ill.2d 232, 432 N.E.2d 841.
In August 1982, while the class action was pending in the trial court, the legislature enacted Public Act 82-891 (Ill. Rev. Stat. 1983, ch. 148, pars. 81 through 84), legitimatizing the practice specifically struck down in Zarkin, and, essentially, nullifying the decision. Section 4 of Public Act 82-891 is a retroactivity provision, making the new act applicable to all security interests in a beneficial interest in land trusts, "whether arising before, on, or after" the effective date of the Act. (Ill. Rev. Stat. 1983, ch. 148, par. 84.) Based on this newly enacted statute and the effect of the retroactivity provision, defendant moved to dismiss the class action.
Following a hearing held on August 27, 1982, the trial court issued an order allowing plaintiff 21 days to file a response to defendant's motion to dismiss, allowing defendant 14 days thereafter to reply, and setting a hearing for October 26, 1982, on count E only, the court alleging that the action was barred by Public Act 82-891.
Plaintiff's counsel, who also represented the Zarkins, learned that Devon Bank, the land trustee in Zarkin, would be filing and briefing a motion to dismiss also based on the enactment of Public Act 82-891. Because plaintiff's counsel "wished only to research and write on the issue of the statute in one exercise," he decided to wait for the Zarkin motion before filing his own brief. Consequently, on October 22, 1982, three weeks after the Zarkin motion was filed and five weeks after his brief was due, plaintiff's counsel sought leave to file his response. The trial court granted plaintiff's motion to file his response instanter and reset the hearing date.
In November 1982, to protest plaintiff's late filing of his response, defendant filed a motion for attorney fees under Supreme Court Rule 219(c) (73 Ill.2d R. 219(c)), which empowers the court to order sanctions for refusal to comply with orders relating to discovery and pretrial conferences.
In December 1982, the trial court, based upon its application of the recently enacted Public Act 82-891, granted defendant's motion to dismiss, leaving the motion for attorney fees still pending in the trial court. Plaintiff appealed the trial court's order directly to the supreme court, presenting as the sole issue for consideration the constitutionality of the retroactivity provision of Public Act 82-891. The supreme court allowed the appeal, found the provision to be invalid, and reversed and remanded with orders to reinstate the complaint. Sanelli v. Glenview State Bank (No. 57935, filed April 30, 1984), ___ Ill.2d ___.
In January 1983, defendant filed an amended motion for attorney fees that incorporated the original motion, sought additional fees, and relied on section 5-118 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 5-118) in addition to Rule 219(c). In June 1983, the trial court granted defendant's amended motion, directing plaintiff to pay $1,387.50 to defendant Glenview State Bank. The trial court found that plaintiff, by his untimely response to the defendant's motion to dismiss, had violated Code of Civil Procedure section 5-118 and section 2-611 (Ill. ...