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02/24/89 Cynthia Palmisano, v. Jack Connell

February 24, 1989

CYNTHIA PALMISANO, PLAINTIFF-APPELLANT

v.

JACK CONNELL, EX'R OF THE ESTATE OF ELLEN C. HANNON, DEFENDANT-APPELLEE



Before addressing the merits of this case, we must first discuss whether plaintiff has properly invoked our appellate jurisdiction. Defendant contends that plaintiff has failed to file her notice of appeal within 30 days after the entry of the order disposing of plaintiff's last pending post-trial motion. (See 107 Ill. 2d R. 303(a).) On October 20, 1987, the trial court dismissed plaintiff's complaint, and on November 18, 1987, plaintiff filed a motion to vacate the October 20 order. Plaintiff's motion to vacate was denied on November 30, 1987. Defendant asserts that although plaintiff filed numerous other motions, the November 30 judgment disposed of plaintiff's initial claim and commenced the 30-day period for filing an appeal.

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

534 N.E.2d 1243, 179 Ill. App. 3d 1089, 128 Ill. Dec. 638 1989.IL.246

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. UNVERZAGT, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Plaintiff, Cynthia Palmisano, appeals from an order which dismissed her contract action for unpaid medical bills against defendant, Jack Connell, as executor of the estate of Ellen Hannon. Plaintiff raises three issues for review: (1) whether her petition for change of venue sufficiently alleged that the trial Judge was prejudiced against her or her attorney; (2) whether the trial court erred by granting defendant's motion to dismiss; and (3) whether the trial court abused its discretion in awarding attorney fees pursuant to section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-611).

On July 13, 1987, plaintiff filed a small claims complaint which alleged that defendant, as executor of Hannon's estate, owed her $976.85 for medical services rendered to Hannon. Pursuant to section 2-619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2-619), defendant filed a motion to dismiss plaintiff's complaint which alleged that he was neither the executor nor administrator of Hannon's estate and therefore not liable for its debts.

In plaintiff's reply to defendant's section 2 -- 619 motion, she alleged that on April 30, 1987, Medicare advised her attorney and husband, Michael Palmisano, that Hannon's claim had been processed and a check was issued to Hannon's estate. On that same day, Michael wrote a letter to Carolyn Connell, Hannon's daughter, which stated that the balance due on Hannon's medical bill was $1,841.37. Plaintiff's reply further alleged that on May 9, 1987, Michael telephoned Carolyn to inquire about payment of Hannon's medical bill. Carolyn told Michael that her husband, defendant, was taking care of processing the bills for Hannon. Subsequent to that telephone conversation, plaintiff received three checks from Hannon's estate which reduced the balance due on plaintiff's bill to $976.85. Each check which plaintiff received was endorsed as follows: "Pay to the Order of Cynthia Palmisano, M.D., Estate of Ellen C. Hannon by John Connell [defendant]."

Plaintiff asserted that defendant was liable for Hannon's medical bills under the theory that he was a " de facto " administrator or that he was acting as an agent with apparent authority. The copy of the reply in the record on appeal was neither signed nor verified by plaintiff or her attorney. In his response to plaintiff's reply, defendant asserted that because he was not appointed executor or administrator of Hannon's estate, he could not be sued as a representative of the estate.

On October 20, 1987, plaintiff presented a petition for change of venue pursuant to section 2-1001(a)(2) of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2-1001(a)(2)). The trial court denied plaintiff's petition for change of venue and granted defendant's motion to dismiss plaintiff's complaint. The trial court gave defendant leave to file a motion for attorney fees pursuant to section 2-611 and costs pursuant to section 5-118 of the Code (Ill. Rev. Stat. 1987, ch. 110, pars. 2-611, 5-118), which defendant filed on October 29.

On November 18, 1987, plaintiff filed a motion to vacate the trial court's October 20 order. Plaintiff's motion to vacate challenged only that part of the trial court's order which denied her motion for change of venue. In denying plaintiff's motion to vacate, the trial court stated that plaintiff's petition for change of venue failed to comply with the requirements of section 2 -- 1001 because it failed to allege prejudice.

On January 14, 1988, plaintiff filed several motions. Plaintiff filed her second petition for change of venue which alleged that the trial Judge had engaged in a pattern of prejudice against her and her attorney. Plaintiff filed a motion to vacate the dismissal of her complaint which incorporated by reference the arguments presented in her response to defendant's section 2 -- 611 motion. In plaintiff's response to defendant's section 2 -- 611 motion, she alleged that her attorney made a reasonable inquiry as to who was responsible for administering Hannon's estate. Plaintiff further alleged that her theories of recovery were warranted by a good-faith argument for the extension or modification of existing law. At this point, plaintiff raised a third theory of liability in support of her cause of action called "executor de son tort." Under that theory, plaintiff asserted that defendant could be held liable for any unauthorized intermeddling in Hannon's estate. Plaintiff also filed her own motion for attorney fees pursuant to section 2 -- 611.

On February 2, 1988, the trial court denied plaintiff's January 14 motions. The trial court then conducted an evidentiary hearing on defendant's section 2 -- 611 motion for attorney fees. The trial court granted defendant's section 2 -- 611 motion and assessed attorney fees and costs against plaintiff in the amount of $1,296.10.

On March 2, 1988, plaintiff filed her third motion for change of venue and a motion to vacate the trial court's February 2 order. In her motion to vacate, plaintiff sought reversal of the court's imposition of attorney fees pursuant to section 2-611. Plaintiff alleged that her attorney was not under a duty to inquire with the clerk of the probate court as to whether letters of administration had been issued or whether Hannon's will had been probated. Plaintiff averred that her March 2 motion to vacate ...


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