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11/23/88 David A. Mucklow, v. John Marshall Law School

November 23, 1988

DAVID A. MUCKLOW, PLAINTIFF-APPELLANT

v.

JOHN MARSHALL LAW SCHOOL ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

531 N.E.2d 941, 176 Ill. App. 3d 886, 126 Ill. Dec. 314 1988.IL.1697

Appeal from the Circuit Court of Cook County; the Hon. Myron Gomberg, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Plaintiff David Mucklow appeals from the trial court's award of judgment on the pleadings in favor of defendants John Marshall Law School (Law School) and Charles Padden in plaintiff's action based on breach of contract and tort. On appeal, plaintiff contends the trial court erred in granting judgment on the pleadings and committed further error by entering section 2-611 sanctions against plaintiff. (Ill. Rev. Stat. 1987, ch. 110, par. 2-611.) Plaintiff has suggested the death of Padden, and the appeal proceeds only against the Law School.

On September 16, 1986, plaintiff, a 1986 graduate of John Marshall Law School, filed an eight-count complaint against defendants. Count I was an action alleging breach of contract and count II alleged breach of confidence. These counts claimed that Padden, then a professor at the Law School, wrongfully intercepted the student teacher evaluation written by plaintiff, in which plaintiff made detailed critical comments about Padden. Plaintiff alleged that Padden identified the author of the anonymous evaluation through handwriting sample comparison, and retaliated against plaintiff by giving him a grade of "D."

Count III of the complaint, for invasion of privacy, alleged that Padden, without proper authorization and by falsely misrepresenting his basis to gain access, accessed plaintiff's student record book. Plaintiff asserted that his record book was personally identifiable information within his personal zone of privacy and that the improper and unauthorized intrusion caused mental anguish.

Count IV, directed against the Law School, alleged negligent control of information within the Federal Educational Records and Privacy Act (20 U.S.C.A. § 1232g (1986)). Count V alleged that the Law School committed wilful and wanton misconduct because despite being on notice of Padden's previous misconduct, it retained him in his position as a professor. Count VI alleged intentional infliction of emotional distress. Count VII alleged that Padden interfered with business expectancies of plaintiff in regards to his employment with another professor with the intent of causing emotional distress. Count VIII sought permanent injunctive relief to protect plaintiff's transcripts and alumni privileges in the Law School's future dealings with plaintiff.

The Law School filed both a motion for judgment on the pleadings and a motion for summary judgment. It asked for sanctions for pleadings not founded in fact or warranted by law under section 2-611 of the Code of Civil Procedure in both motions. (Ill. Rev. Stat. 1987, ch. 110, par. 2-611.) On March 23, 1987, the trial court granted judgment on the pleadings in favor of defendants and dismissed the case. At the time of the ruling, counsel for the Law School stated that it was also seeking sanctions. The trial court requested that defendants present a motion for sanctions, set a briefing schedule, and schedule a hearing.

On April 22, 1987, the Law School presented a motion for sanctions. Plaintiff filed a response and on May 19, 1987, the trial court entered a sanction judgment against plaintiff, ordering him to pay $12,637.75 in fees and costs.

Prior to reaching the merits of plaintiff's appeal, we must address the Law School's contention that this appeal must be dismissed because plaintiff's appeal from the dismissal of his complaint is not timely. Judgment on the pleadings was entered in favor of defendants on March 23, 1987. On the thirtieth day following that judgment, the Law School filed a motion for imposition of sanctions against plaintiff. That motion was granted on May 19, 1987, and plaintiff filed a motion for reconsideration limited to the judgment for sanctions. The trial court denied the motion for reconsideration on September 9, 1987, and on October 1, 1987, plaintiff filed a notice of appeal of both the dismissal of the complaint and the sanctions order. The Law School has filed a cross-appeal of the trial court's denial of its plea for additional sanctions.

The Law School contends that plaintiff was required to appeal the dismissal within 30 days of the dismissal order because it was a final appealable order pursuant to Rule 301 when entered. (107 Ill. 2d R. 301.) Plaintiff urges that the Law School's plea for sanctions constituted a separate claim in the case and, thus, without a Rule 304(a) finding (107 Ill. 2d R. 304(a)) that there was no reason to delay enforcement or appeal of the March 23 dismissal order, that order was not final and appealable. Thus, plaintiff asserts that appeal of the dismissal of the complaint, within 30 days after his motion for reconsideration of the sanctions order was denied, was timely.

In Hise v. Hull (1983), 116 Ill. App. 3d 681, 452 N.E.2d 372, the trial court dismissed the plaintiff's complaint for failure to state a cause of action, but reserved for future hearing the defendant's motion for section 2 -- 611 attorney fees. This court dismissed the appeal finding that the demand for section 2 -- 611 attorney fees is a "claim" as that term is used in Rule 304(a) and, therefore, without a Rule 304(a) finding that there is no just reason ...


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