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06/08/88 Charles Ignarski Et Al., v. John Heublein

June 8, 1988

CHARLES IGNARSKI ET AL., PLAINTIFFS

v.

JOHN HEUBLEIN, D/B/A KENTUCKY FRIED CHICKEN, DEFENDANT-APPELLEE (BENJAMIN & SHAPIRO, LTD., APPELLANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

525 N.E.2d 995, 171 Ill. App. 3d 830, 121 Ill. Dec. 688 1988.IL.897

Appeal from the Circuit Court of Cook County; the Hon. Odas Nicholson, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. WHITE, P.J., and McNAMARA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Appellant, the law firm of Benjamin & Shapiro, Ltd., appeals from an order and judgment of the circuit court of Cook County awarding defendant, John Heublein, attorney fees against appellant and from an order denying a motion to reconsider that order and judgment.

On December 6, 1985, plaintiffs, Charles and Charlotte Ignarski, filed a personal injury action against defendant Heublein, d/b/a Kentucky Fried Chicken, by and through the law firm of Norbut & Associates, Ltd. (Norbut). The complaint alleged that defendant had negligently failed to keep the premises in a safe condition for its customers, including plaintiff Charles, as a result of which he had been attacked and injured by third parties. On January 21, 1986, Norbut caused an alias summons to issue against defendant directing that he be served at 4646 S. Cicero, Chicago, Illinois. The return of service indicated that service was attempted on February 11, that the writ was not served and, as "Additional Remarks," that defendant "sold business to R. J. Reynolds Corp., phone No. 502-456-8300, per: Tim Marks."

Subsequently, appellant substituted as plaintiffs' attorney and caused a second alias summons to issue on July 24, 1986. The return of service indicated that defendant was personally served by leaving a copy of the summons and complaint with him on August 15, 1986. Thereafter, defendant asserts, his attorney contacted appellant on August 26, 1986, advised it that the wrong person had been served and requested that service upon defendant be quashed. Supportive of this assertion is a letter attached as an exhibit to an affidavit of defendant's counsel. This letter, dated August 26, 1986, is addressed to Mr. Fred Benjamin, Benjamin & Shapiro, Ltd. It states that defendant never was connected with or operated any Kentucky Fried Chicken store. It also reflects the enclosure of a stipulation and agreed order to quash the service upon defendant and states that if not entered with the court by September 2, 1986, defendant's counsel would seek whatever remedies defendant may be entitled to against appellant, Norbut and plaintiffs.

On September 17, 1986, defendant's counsel entered defendant's general appearance and filed motions for summary judgment and attorney fees and costs under section 2-611 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-611). The trial court granted the motion for summary judgment on November 26, 1986. On February 20, 1987, the trial court granted defendant's motion for attorney fees and entered judgment in equal amounts of $536.66 against appellant, Norbut and plaintiffs. The trial court denied plaintiffs' and appellant's motion to reconsider on August 27, 1987.

Preliminarily, we address, sua sponte, appellant's standing to appeal from the judgment entered against it although it was not a party to the lawsuit which gave rise to that judgment. In brief, we believe that appellant's right to prosecute the instant appeal is well established. To bring an appeal, a nonparty must have an interest which is direct, substantial, and immediate, one which would be prejudiced by the judgment or benefited by its reversal. A nonparty is prejudiced in the legal sense when a legal right is invaded or a pecuniary interest is directly affected. Finally, the nonparty's interest must appear in the record or be alleged in the points relied on for reversal. (Metropolitan Sanitary District ex rel. O'Keeffe v. Ingram Corp. (1980), 85 Ill. App. 3d 859, 865, 407 N.E.2d 627 (and cases cited therein).) It is evident that the judgment entered against appellant directly affected a pecuniary interest and that this interest appears in the record on appeal. As such, we believe that appellant has standing to prosecute the instant appeal.

Because section 2 -- 611 is penal in nature, it must be strictly construed and each of its requirements must be proved by the moving party. A trial court's award of fees thereunder is discretionary and may not be disturbed absent a clear abuse of its discretion. In re Eatherton (1983), 119 Ill. App. 3d 174, 177-78, 456 N.E.2d 327 (and cases cited therein).

We must also acknowledge the inherent difficulty in deciding this appeal caused by the recent amendment of section 2-611 which became effective one day before the entry of summary judgment in defendant's favor. (Pub. Act 84-1431, eff. Nov. 25, 1986 (amended Ill. Rev. Stat. 1985, ch. 110, par. 2-611).) In view of that amendment, appellant argues that: (1) under the prior version of section 2-611, the trial court had no authority to assess attorney fees against it; (2) since it did assess fees and costs against it, the trial court either exceeded the statutory authority granted under the former version of section 2-611 or applied the amended version thereof; (3) if it did the latter, it had no authority to do so because the amended version of section 2-611 cannot be applied retroactively; and (4) regardless of which version of section 2-611 was applicable to defendant's motion the court abused its discretion in assessing fees and costs against appellant because its conduct was reasonable under the circumstances. As we agree with appellant's first, second and third points, albeit not for the reasons stated in support thereof by appellant, we need not determine the reasonableness of its conduct.

Prior to November 25, 1986, section 2 -- 611 provided, inter alia :

"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 ...


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