Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

04/10/87 In Re Marriage of Philip N. Collins

April 10, 1987

IN RE MARRIAGE OF PHILIP N. COLLINS, PETITIONER-APPELLEE,


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

and BARBARA N. COLLINS, Respondent-Appellee (Gregory

A. Adamski et al., Appellants)

506 N.E.2d 1000, 154 Ill. App. 3d 655, 107 Ill. Dec. 109 1987.IL.483

Appeal from the Circuit Court of Kane County; the Hon. Michael Colwell, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. LINDBERG, P.J., and WOODWARD, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

This is an appeal by the law firm of Carponelli, Krug and Adamski from a judgment denying its petition for attorney fees.

The firm of Carponelli, Krug and Adamski (law firm) represented Barbara N. Collins for a period of time in dissolution of marriage proceedings; however, during the course of the proceedings, it withdrew as her counsel, and she proceeded with new representation. On January 16, 1986, the law firm filed its petition for the recovery of attorney fees against the husband or wife pursuant to section 508 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 508). An amended petition, with an attached summary of time spent working on the case, was filed on February 19, 1986, and on that same date, the trial court denied the petition. On March 10, 1986, the law firm filed what it termed a renewed petition or motion for reconsideration. Attached to the petition was a summary of the time expended and photocopies of time slips which reflected work performed for Barbara N. Collins. This petition was never served on Barbara or Philip Collins and the law firm again filed the same document and attached summary and photocopies on May 16, 1986. On June 18, 1986, the trial court denied the law firm's motion, and it appeals. The law firm advances no argument that the trial court should have treated the motion as an amended pleading or that the court's failure to allow amendment was an abuse of discretion. As the law firm treats the motion solely as one for reconsideration, we will view the court's action as a denial of a motion for reconsideration.

We must first determine whether the law firm's motion for reconsideration of its petition for fees and costs was timely filed. Generally, a post-trial motion must be filed within 30 days of the entry of judgment. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1202(c).) Here, the trial court denied the law firm's request for attorney fees on February 19, 1986. Within 30 days of that denial, the law firm filed a motion in the nature of a motion for reconsideration, although requested by the law firm to be alternatively treated as a renewed petition, with new evidence consisting of photocopies of time slips attached. However, the law firm conceded that the other parties were never served with a copy of the original motion and it was subsequently refiled. Supreme Court Rule 104(b) (87 Ill. 2d R. 104(b)) requires that written motions "be filed with the clerk with a certificate of counsel or other proof that copies have been served on all parties who have appeared and who have not theretofore been found by the court to be in default for failure to plead." Supreme Court Rule 104(d) provides:

"Failure to deliver or serve copies as required by this rule does not in any way impair the jurisdiction of the court over the person of any party, but the aggrieved party may obtain a copy from the clerk and the court shall order the offending party to reimburse the aggrieved party for the expense thereof." 87 Ill. 2d R. 104(d).

In City of Chicago v. Exchange National Bank (1971), 133 Ill. App. 2d 370, 374, 273 N.E.2d 484, 486, aff'd on other grounds (1972), 51 Ill. 2d 543, 283 N.E.2d 878, the court held that a failure to serve the nonmoving party with a copy of the motion within the applicable time period did not result in the motion's being invalid. As long as the motion was filed within the allowable time period, it was timely filed. (See also Kollath v. Chicago Title & Trust Co. (1974), 24 Ill. App. 3d 353, 357-58, 321 N.E.2d 344, 348, rev'd on other grounds (1975), 62 Ill. 2d 8, 338 N.E.2d 188 (a failure to serve a nonmoving party entitled to notice with a copy of a motion does not render an order based on that motion void). But see Wilson v. Moore (1973), 13 Ill. App. 3d 632, 633, 301 N.E.2d 39, 40 (award of attorney fees entered on a motion not served on the other party held to be void); Vlahakis v. Parker (1971), 3 Ill. App. 3d 126, 278 N.E.2d 523 (abstract of opinion) (motion made within 30-day period as required but not served until a few days later was not timely filed).) This court, in Maras v. Bertholdt (1984), 126 Ill. App. 3d 876, 881, 467 N.E.2d 599, 603, held that a failure to serve a party entitled to notice with a copy of an order which was adopted by the court resulted in a void order.

Here, the law firm refiled the same motion for reconsideration and then properly served all parties, on a date after the 30-day time period had expired. We consider that pursuant to Supreme Court Rule 104(d) (87 Ill. 2d R. 104(d)), where, as here, the nonmoving parties were present for the hearing on the motion and suffered no prejudice due to the law firm's failure to serve them originally with the motion within the appropriate time period, that the court had jurisdiction to rule on the order after refiling. This is in contrast to a situation where, as in Maras v. Bertholdt (1984), 126 Ill. App. 3d 876, 467 N.E.2d 599, the court entered an order without notice to and without the presence of the other party.

The law firm, in requesting the trial court to reconsider its prior order, attached time slips to its motion for reconsideration. If evidence offered for the first time in a post-trial motion could have been produced at an earlier time, it is not an abuse of discretion for the court to deny its introduction into evidence. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.