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07/28/89 David W. Beno, v. Raymond L. Mcnew

July 28, 1989

DAVID W. BENO, PLAINTIFF-APPELLEE

v.

RAYMOND L. MCNEW, DEFENDANT-APPELLANT (LA SALLE NATIONAL NO. 2-89-0015



Before reaching the merits of this appeal, we must first address plaintiff's motion to strike certain portions of McNew's appellate brief. Plaintiff asserts that McNew's brief contains numerous references to facts that are not part of the record on appeal. McNew responds that plaintiff's motion to strike is neither authorized by the supreme court rules "nor appropriate in appellate practice." We ordered plaintiff's motion taken with the case. On that same date, we entered an order requiring McNew to file an amended statement of facts with appropriate citations to the record. McNew subsequently filed a "Revised Statement of Facts" in compliance with our order. Thereafter, plaintiff filed his appellee's brief and did not challenge the accuracy of the facts set forth in McNew's revised statement of facts. Given McNew's subsequent compliance with our order compelling him to file a revised statement of facts with appropriate citations to the record, we deny plaintiff's motion to strike. However, additional commentary is necessary to correct certain misconceptions McNew fosters about appellate practice.

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

542 N.E.2d 533, 186 Ill. App. 3d 359, 134 Ill. Dec. 354 1989.IL.1179

Appeal from the Circuit Court of Kane County; the Hon. Michael O'Brien, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. UNVERZAGT, P.J., and NASH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Defendant, Raymond L. McNew, appeals from an order of the circuit court of Kane County denying his motion for attorney fees and costs pursuant to section 2-611 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2-611). Defendant contends that the trial court abused its discretion when it denied his motion for attorney fees and costs without conducting an evidentiary hearing. We reverse and remand this cause for further proceedings.

On July 30, 1985, plaintiff, David W. Beno, an investigator with the United States Environmental Protection Agency, was inspecting property allegedly being used as an "unauthorized landfill." Plaintiff was injured when he fell on various materials deposited on property belonging to defendant, J.S. Reimer, Inc. On June 1, 1987, plaintiff brought this action seeking damages for his personal injuries against J.S. Reimer, Inc., and four other defendants who owned property adjacent to the "landfill." Count IV of plaintiff's complaint was directed against defendant McNew and alleged that McNew owned a portion of the property on which the "landfill" was located. Plaintiff's complaint against McNew further alleged that McNew breached a duty to exercise care in the operation, control, and maintenance of the property. McNew filed a motion to strike and dismiss count IV of plaintiff's complaint for failure to state a cause of action. McNew's motion alleged that plaintiff's complaint failed to specify the location of his injury and that, as a matter of law, McNew had no obligation or duty to maintain the "landfill" since he was only obligated to a duty of care with respect to property he owned or operated. McNew did not schedule this motion for a hearing.

On December 2, 1987, plaintiff and his counsel, together with all of the defendants and their attorneys except McNew and his counsel, met at the "landfill" site to ascertain where plaintiff's injury took place. Subsequently, on December 30, 1987, plaintiff filed a response to admit facts stating:

"Based upon the inspection of the premises on December 2, 1987, it is Plaintiffs [ sic ] belief that the fall that occurred on July 30, 1985, occurred on the property owned by J.S. Reimer, Inc."

On January 6, 1988, plaintiff filed an amended complaint. Count IV of plaintiff's amended complaint was again directed against McNew and realleged that McNew owned a portion of the property on which the "landfill" was located and breached a duty of care in the maintenance of that property. McNew subsequently filed a motion to strike and dismiss count IV of the amended complaint on the basis that McNew did not have a duty to maintain property belonging to another. McNew did not schedule this motion for a hearing. On August 8, 1988, plaintiff voluntarily dismissed McNew as a party defendant in this action.

On August 19, 1988, McNew filed a motion for attorney fees and costs pursuant to section 2-611 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2-611). McNew's motion alleged that both the original complaint and count IV of the amended complaint were replete with untrue averments of fact and Conclusions of law. Specifically, McNew alleged that in the two years prior to filing the initial complaint, and prior to filing the amended complaint, plaintiff had not ascertained the location of his fall but nonetheless pleaded that McNew owned a portion of the "landfill" and was obligated to maintain that property in a safe condition. McNew further alleged that he did not have any maintenance responsibility for the Reimer property on which plaintiff sustained his injuries. McNew stated that he incurred attorney fees of $2,300 based on 23 hours of work at $100 per hour. McNew further sought compensation for his personal expenses which he valued at $50 per hour multiplied by 50 hours.

On September 21, 1988, plaintiff filed a response to McNew's motion for attorney fees alleging that McNew failed to meet the burden of proof imposed by section 2--611. Plaintiff stated that at the time of his fall there were no markings on the property to delineate ownership and there was a question as to whether the adjoining property owners had placed materials in the "landfill" which created the dangerous condition that caused plaintiff's injuries. Plaintiff's response also charged that McNew's attorney accumulated the attorney fees in this action by failing to notice his motions to dismiss plaintiff's complaint and amended complaint and by failing to participate in the onsite conference with plaintiff and the other parties. In addition, plaintiff alleged that McNew's motion for attorney fees was insufficient in that it failed to substantiate his claim for attorney fees with any documentation. Plaintiff also argued that there was no basis in Illinois law allowing McNew to recover an award of fees for his own time.

The trial court subsequently entered an order granting McNew leave to file a reply to plaintiff's response to his motion for attorney fees and costs and further setting McNew's motion for "presentation of evidence and argument" on October 18, 1988. McNew's reply alleged that plaintiff's action was baseless in law and further alleged that plaintiff knew that he was on the Reimer property at the time of his fall based on documents plaintiff prepared shortly after the incident. With respect to his claim for personal expenses, McNew argued that section 2--611 provides for the payment of attorney fees as part of all "reasonable expenses incurred" from an improper pleading and therefore entitles him to his personal expenses in ...


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