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03/23/89 Ferne Kilpatrick Et Al., v. First Church of the

March 23, 1989





538 N.E.2d 136, 182 Ill. App. 3d 461, 130 Ill. Dec. 925 1989.IL.388

Appeal from the Circuit Court of Woodford County; the Hon. Richard M. Baner, Judge, presiding.


JUSTICE LUND delivered the opinion of the court. KNECHT and GREEN, JJ., concur.


On January 11, 1985, in the circuit court of Woodford County, plaintiffs Ferne and Raymond Kilpatrick filed a personal injury complaint against defendant First Church of the Nazarene. On February 24, 1987, after six days of trial and upon completion of the evidentiary phase of the proceeding, the court granted defendant's motion for a mistrial based on the conduct of plaintiffs' counsel, James Walker. On December 16, 1987, the court entered judgment for defendant and against plaintiffs in the amount of $228 for costs incurred with the deposition and trial testimony of defense counsel: $76 for deposing defendant's counsel and $152 relating to the offer of proof. Judgment was also entered against Walker and for defendant in the amount of $7,120.90 for attorney fees and costs incurred in the mistrial. Plaintiffs and Walker appeal the imposition of the judgments.

We first address the propriety of entering judgment against attorney Walker for defendant's fees and costs. This award was based upon the trial court's finding that Walker presented "improper and/or prejudicial information to the jury and otherwise into the record." As a result of Walker's conduct, the trial court granted a mistrial.

Plaintiffs' counsel is not fresh into the trenches of the practice of law and has, on several occasions, proved his considerable ability before this court. Nevertheless, in the instant case, Walker's conduct indicated a conscious attempt to damage the trial proceedings. His conduct in the jury trial of referring to repairs made after the accident was a violation of court order. He made these comments prior to defense counsel's remarks concerning repairs and, thus, it was not defense counsel who initially "opened the door" to post-accident repairs. Even after the trial court subsequently barred further reference to repairs, Walker continued to make blatant references to the repairs. In addition, Walker called as a witness an adjustor for defendant's insurer and, despite the trial court's admonitions, asked questions and received answers which would lead an average juror to believe the witness was representing an insurance company. Additionally, contemptuous conduct toward the trial Judge occurred partially in front of the jury and was further justification for a mistrial.

At the close of all the evidence, defendant moved for a mistrial, alleging Walker's repeated intentional violations of the court orders irreparably prejudiced defendant in the eyes of the jury. Plaintiffs also moved for a mistrial on other grounds. The court granted defendant's motion. The trial court did not make a finding that Walker intentionally caused the mistrial.

It is clear that in the absence of statutory authority, or an agreement between the parties, a successful party to a lawsuit is not entitled to attorney fees or costs of litigation. (Ritter v. Ritter (1943), 381 Ill. 549, 553, 46 N.E.2d 41, 43; see also Meyer v. Marshall (1976), 62 Ill. 2d 435, 442, 343 N.E.2d 479, 483.) Walker refers us to In re Marriage of Spizzo (1988), 168 Ill. App. 3d 487, 492, 522 N.E.2d 808, 811, which states:

"It has also been held that causing a mistrial does not give rise to liability for attorney fees, absent an agreement between the parties or statutory authority."

Two cases are cited as support. (Central Illinois Public Service Co. v. Westervelt (1976), 35 Ill. App. 3d 777, 782, 342 N.E.2d 463, 468, aff'd (1977), 67 Ill. 2d 207, 367 N.E.2d 661, cert. denied (1978), 434 U.S. 1070, 98 S. Ct. 1252, 55 L. Ed. 2d 772; Kerns v. Engelke (1979), 76 Ill. 2d 154, 166-67, 390 N.E.2d 859, 865.) However, the facts in those cases do not include findings of intentionally causing a mistrial. Westervelt involved a mistrial, but there was no indication of deliberate impropriety on the part of the attorneys involved. Kerns involved an award of attorney fees for an indemnity counterclaim. The award was struck down by the supreme court.

Harvey v. Carponelli (1983), 117 Ill. App. 3d 448, 453 N.E.2d 820, appeal denied (1983), 96 Ill. 2d 560, cert. denied (1984), 466 U.S. 951, 80 L. Ed. 2d 539, 104 S. Ct. 2153, is contrary to most opinions and involved a legal malpractice case. In Harvey, the court held deliberate and premeditated conduct resulting in a mistrial was sufficient justification for an award of attorney fees. In so holding, the court stated:

"[When] one's wrongful conduct forces another into litigation with third parties, he is liable for all of the costs of that litigation including attorney fees. [Citation.]

. . . We find that the award of attorney fees and costs merely compensated defendants for ordinary losses resulting from plaintiff's conduct. (Sorenson [ v. Fio Rito (1980), 90 Ill. App. 3d 368, 413 N.E.2d ...

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