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Navarro v. Edgar

OPINION FILED JUNE 16, 1986.

ROBERT J. NAVARRO, PLAINTIFF-APPELLEE,

v.

JIM EDGAR, SECRETARY OF STATE, ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Joseph Wosik, Judge, presiding.

JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Defendants Jim Edgar, Secretary of State, and H. Liberman, hearing officer, appeal from the trial court's order of May 14, 1985, granting attorney fees and costs to be assessed against them pursuant to section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-611).

As a result of his involvement in a traffic collision, plaintiff, Robert Navarro, was served with a notice of suspension of his driver's license and driving privileges. Plaintiff requested a hearing, which was set for November 28, 1984. At that time, plaintiff claims that his counsel appeared on his behalf and that the hearing officer present refused to convene the hearing in the presence of counsel and his court reporter, and that thereafter, the Secretary of State, without just cause or sufficient evidence, issued the decision of its hearing officer suspending plaintiff's license and registration privileges. On November 29, 1984, the administrative hearing department of the Secretary of State issued its order of suspension effective December 19, 1984.

On December 6, 1984, plaintiff filed a complaint for administrative review in the circuit court seeking a temporary restraining order and also seeking to enjoin permanently defendants from suspending his license and privileges and for the assessment of costs of the administrative review action, transcript of proceedings and attorney fees. That same day, the trial court entered its order providing that the order of suspension be vacated and the matter remanded to the Secretary of State to hold a hearing de novo within 45 days of the court's order. The order also provided that the suit be dismissed subject to the provisions of its order and that hearing on costs and attorney fees be reserved for further hearing.

On December 11, 1984, plaintiff filed a motion to assess attorney fees and costs against defendants pursuant to section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-611). In it, plaintiff alleged that he had prevailed in his administrative review action and that defendants had made an untrue allegation at the administrative level, as a result of which plaintiff was required to expend attorney fees and costs. The complained-of allegation consisted of the following phrase which appeared as part of the standard form order of suspension issued by the Secretary of State's office: "Evidence, testimony and exhibits having been offered into evidence and received, arguments of counsel having been heard and proper record of proceedings having been made and preserved * * *." Plaintiff subsequently filed a supplemental motion to assess fees, in which he alleged that he was alternatively entitled to fees and costs pursuant to the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1983, ch. 127, par. 1014.1(b)).

A hearing on plaintiff's motion was held on May 13, 1985, at which time the trial court denied defendants leave to file their answer to the complaint in administrative review. At the conclusion of the hearing, the court granted plaintiff's attorney fees in the amount of $2,576.94 plus costs.

On appeal, defendants claim that the circuit court abused its discretion in awarding plaintiff costs and fees under section 2-611, because that section provides no basis for such an award where the alleged untrue statement is neither an allegation or a denial and is not contained within a pleading. Alternatively, defendants claim that even if section 2-611 were applicable to the instant case, plaintiff failed to establish a prima facie case under the statute. We need not reach this contention, however, because we agree with defendants' argument that the statute was not meant to apply to the instant situation and, accordingly, we reverse the judgment of the trial court.

• 1 It is well settled that in the absence of a statute or contractual agreement, attorney fees and other ordinary expenses resulting from the burden of litigation may not be awarded to the successful party, and an established corollary is that the recovery of such costs, resting entirely upon statutory provision, must be strictly construed. Dulin, Thienpont, Potthast & Snyder, Ltd. v. Packaging Personified, Inc. (1980), 89 Ill. App.3d 647, 650, 411 N.E.2d 1173.

Section 2-611 vests the court with the power to assess costs and fees in certain situations. The section provides:

"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." (Emphasis added.) Ill. Rev. Stat. 1983, ch. 110, par. 2-611.

The section, which is penal in nature, allows for sanctions against those litigants who file false pleadings thereby placing an unnecessary onus upon their opponents to expend additional monies to defend or refute the frivolous allegation or denial. Perlis v. Exchange National Bank (1967), 87 Ill. App.2d 369, 231 N.E.2d 681, appeal denied (1968), 37 Ill.2d 627.

• 2 The statement complained of in the instant case is neither an allegation nor a denial within the ambit of the statute; rather, it is merely a form order which is required to be filed by the Secretary of State as part ...


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