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08/17/89 the People Ex Rel. Pamela v. Joshua Herrendorf

August 17, 1989

THE PEOPLE EX REL. PAMELA WEST, PETITIONER-APPELLEE

v.

JOSHUA HERRENDORF, RESPONDENT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

543 N.E.2d 824, 187 Ill. App. 3d 777, 135 Ill. Dec. 256 1989.IL.1264

Appeal from the Circuit Court of Cook County; the Hon. James J. Meehan, Judge, presiding.

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. JIGANTI, P.J., concurs. JUSTICE McMORROW, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

This is an appeal from an order of the circuit court of Cook County denying the motion of respondent, Joshua Herrendorf, for sanctions against petitioner, Pamela West, and her counsel, the State's Attorney, pursuant to section 2-611 of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-611). The sole issue presented for review is whether the trial court erred in denying Herrendorf's motion for the imposition of sanctions and costs pursuant to section 2-611 of the Code.

We affirm.

On February 1, 1985, West signed a complaint naming Herrendorf as the father of her child, Lauren L. West. Lauren was born July 4, 1983. The complaint was filed by the State's Attorney on June 10, 1985. Herrendorf was served by alias summons on February 27, 1986.

In response to interrogatories filed by Herrendorf on April 28, 1986, West also named Anthony Lazzaroni as a person with whom she had had sexual relations within 60 days of the date of conception. West stated that the date of conception was September 1979. The date was later amended to September 1982 in West's supplemental interrogatories.

On February 10, 1987, West filed a "Motion to Compel Blood Tests" to which Herrendorf objected. The court ordered that he take the blood tests. On that same day the State's Attorney was granted leave to file an amended complaint alleging that Anthony Lazzaroni or Glen Udell could be the father of the child. Separate suits, however, had to be filed against these two defendants as the clerk of the court's record system could not accommodate multiple defendants.

West filed supplemental responses to interrogatories on March 9, 1987, in which she stated that she had had sexual intercourse with Udell on either October 3 or 10, and with Lazzaroni on October 18 and 19, 1982.

At West's deposition, she testified that the reason she could not name Lazzaroni or Udell in the initial complaint was because personnel from the Illinois Department of Public Aid and someone from the State's Attorney's office advised her that she could not name three individuals as potential fathers in a paternity suit. West also testified that she believed Herrendorf was the father of her child because she felt that she had conceived on September 19, 1982.

On March 11, 1987, the suit against Herrendorf was voluntarily dismissed after he was excluded as a potential father by the blood test. Udell was also scientifically excluded as a possible father. The suit against Lazzaroni is still pending as his blood test resulted in a paternity index.

On March 7, 1987, Herrendorf filed a motion for costs, pursuant to section 2-611. Herrendorf alleged that West pleaded statements which she and the State's Attorney knew or reasonably should have known were untrue. West alleged that Herrendorf was the father which she knew or reasonably should have known was untrue. Herrendorf also argued that the amended section 2-611 (Ill. Rev. Stat. 1987, ch. 110, par. 2-611) should apply retroactively to West's complaint which would allow the imposition of sanctions against both West and the State's Attorney. The trial court denied Herrendorf's motion for sanctions. In so holding, the trial court also refused to apply the amended section retroactively. It is from this decision that Herrendorf appeals.

Section 2 -- 611 provided, in pertinent part, as follows:

"Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney's fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal." (Ill. Rev. Stat. 1985, ch. 110, par. 2-611.)

In November 1986, the section was amended, rendering its scope broader than the prior version. (Mucklow v. John Marshall Law School (1988), 176 Ill. App. 3d 886, 897.) The amended section reaches every document filed with the court and requires the motions or pleadings be supported by "reasonable inquiry." (Ill. Rev. Stat. 1987, ch. 110, par. 2-611.) It also provides for the imposition of sanctions against the attorney whose signature appears on the pleadings or motions as well as the party being represented.

Herrendorf first contends that the amended section should be applied retroactively to the complaint filed on June 10, 1985, naming him as the father of the child. Application of the amendment would permit sanctions against the State's Attorney as well as West. We do not believe that the amended section should be applied retroactively.

The Illinois Supreme Court in Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, stated the general rule with respect to the retroactive application of statutes:

"When a change of law merely affects the remedy or law of procedure, all rights of action will be enforceable under the new procedure . . . without regard to whether or not the action has been instituted, unless there is a saving clause as to existing litigation. [Citations.] Changes in procedure or existing remedies will not be applied retrospectively, however, where a vested, ...


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