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01/23/89 Mari E. Herman, v. Loretta Fitzgerald

January 23, 1989

MARI E. HERMAN, PLAINTIFF-APPELLEE

v.

LORETTA FITZGERALD, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

533 N.E.2d 1144, 178 Ill. App. 3d 865, 128 Ill. Dec. 56 1989.IL.58

Appeal from the Circuit Court of Du Page County; the Hon. Robert E. Byrne, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. NASH and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

The defendant, Loretta Fitzgerald, appeals the trial court's order which dismissed her petition for attorney fees pursuant to section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-611) (hereinafter section 2-611) as untimely filed. On appeal, the defendant contends that there is no statutory deadline for the filing of section 2-611 petitions; alternatively, she submits that because she mailed notice of her petition to the plaintiff within 30 days of the trial court's judgment, any time limit which might apply to such petition was satisfied. We do not agree with either of the defendant's contentions and therefore affirm the trial court's order. The pertinent facts are set out below.

The plaintiff, Mari E. Herman, filed a small claims complaint against the defendant on September 22, 1986, in the circuit court of Du Page County, alleging that the defendant had violated the terms of a lease and had caused damage to the leased property. The plaintiff sought $2,500 in relief. The defendant was served on October 24, 1986, and appeared through counsel on November 17, 1986. The plaintiff obtained her own lawyer, who appeared on April 13, 1987. On this date, the plaintiff sought and was granted leave to file an amended complaint which set forth the original allegations, as well as a claim that the defendant had intentionally given her a bad check in violation of the deceptive practices act (Ill. Rev. Stat. 1987, ch. 38, par. 17-1(a)).

On August 19, 1987, the defendant was granted leave to file a motion to strike. She filed such a motion on the ground that the amended complaint was not signed by the plaintiff's attorney as required by section 2 -- 611. (We note that the amended complaint contained in the record that was filed in the office of the clerk of the circuit court is date stamped April 13, 1987, and bears the signature of Sue Mueller, an associate of the plaintiff's attorney.)

Ultimately, the matter was tried before Judge Robert E. Byrne on October 27, 1987. The court issued a bench decision for the plaintiff in the amount of $369.36 plus costs. On December 10, 1987, 44 days later, the defendant filed a petition seeking attorney fees and costs pursuant to section 2 -- 611, claiming that portion of the plaintiff's amended complaint alleging violations of the deceptive practices act was false and without basis in law. The plaintiff moved to dismiss this petition. The court dismissed the petition as not timely filed on March 17, 1988. The defendant timely appeals from this dismissal.

The issue presented on appeal is whether a petition seeking sanctions pursuant to section 2 -- 611, as amended, must be filed within 30 days following the entry of a judgment. We believe this is a case of first impression in Illinois.

Section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-611) has provided the spring board for a myriad of petitions filed by defendants and plaintiffs alike seeking the sanctions it allows for false and improper pleadings. The decisions considering the scope of section 2-611, and its interpretations since its most recent amendment (Pub. Act 84-1431, art. 2, § 1, eff. November 25, 1986), are legion. Yet this court has been unable to locate a single decision addressing the issue presented in the instant appeal.

Section 2 -- 611 provides in pertinent part:

"Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record . . .. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. . . . If a pleading, motion, or other paper is signed in violation of this Section, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to ...


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