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08/29/89 Bernard Allen Fried Et Al. v. Henry Barad

August 29, 1989

BERNARD ALLEN FRIED ET AL., PLAINTIFFS AND INTERVENING, DEFENDANTS

v.

HENRY BARAD, DEFENDANT AND INTERVENING DEFENDANT-APPELLANT (RUDY MARTINEZ, INTERVENING PLAINTIFF-APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

543 N.E.2d 1018, 187 Ill. App. 3d 1024, 135 Ill. Dec. 450 1989.IL.1325

Appeal from the Circuit Court of Cook County; the Hon. Albert Green, Judge, presiding.

APPELLATE Judges:

JUSTICE DiVITO delivered the opinion of the court. BILANDIC, P.J., and HARTMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DIVITO

Intervening defendant-appellant, Henry Barad, appeals the circuit court's assessment against him of attorney fees. The issues in this appeal relate to the adequacy of the petition for fees and the adequacy of the hearing granting them.

A partition suit seeking partnership dissolution and accounting was brought by Bernard Allen Fried and Howard Weitzman, who are not parties to this appeal, against Barad. Fried, Weitzman and Barad had been partners and co-title holders of certain real estate. Rudy Martinez entered that suit as intervening plaintiff against all three of the partners who were named as intervening defendants. Martinez, the lessee of the real estate which was the subject matter of the underlying suit, sought specific performance upon a purchase option contained in the lease which had been entered into on March 28, 1983.

Barad, who had purchased the property at the sheriff's sale of partnership assets pursuant to the partition suit, refused to transfer the property to Martinez when Martinez exercised his purchase option under the lease agreement on June 19, 1985. Barad's verified answer to Martinez's complaint for specific performance denied the existence of the lease and option and alleged that Martinez's lease was invalid because it was not executed by the owner or titleholder or anyone with authority to act. At the hearing, Barad testified that he never agreed to the lease and option with Martinez. On November 21, 1986, after the hearing, the circuit court determined that Martinez had a valid option. The court found that Barad's testimony was "totally incredible, unbelievable, and an outright lie" and that Barad had in fact personally signed the lease which contained the option agreement. Barad was ordered to convey the property to Martinez in accordance with the terms of the option.

A notice of appeal of that order was filed by Barad on December 6, 1986. This court ultimately affirmed the judgment of the circuit court in Fried v. Barad (1988), 175 Ill. App. 3d 382, 530 N.E.2d 93. Within 30 days of the judgment, on December 19, 1986, Martinez filed a petition pursuant to section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-611), for expenses and reasonable attorney fees caused by Barad's false pleadings and testimony. After the denial of the original petition and pursuant to the court's leave to refile, an amended petition was filed which included time summaries and affidavits from Martinez's attorney limited to time spent attempting to prove that Barad had agreed to the lease, and not including time allocated to the specific performance argument. Barad answered the petition on September 9, 1987. The hearing on the amended petition was held on September 29, 1987.

At the hearing, utilizing testimony from the prior trial, Martinez's attorney established that Barad falsely pleaded and falsely testified before the circuit court with no reasonable cause. Barad's attorney did not deny the falsity of the pleadings, but averred that the false testimony was reasonably caused by Barad's advanced age. Barad's attorney was afforded an opportunity to cross-examine Martinez's attorney concerning the truth and reasonableness of the time statements. After arguments by both attorneys, the court, which had heard this matter since the underlying proceeding was initiated, reduced the number of hours and the hourly rate computed by Martinez's attorney. The requested amount of $15,012.50 was reduced to an award of $8,500. The court found this to be a classic case where section 2 -- 611 sanctions should apply. It is from this order that Barad appeals.

Barad initially argued that the circuit court had no jurisdiction to award fees after the filing of the notice of appeal and pending the outcome of the appeal. At oral argument, Barad waived this argument. We are therefore left to decide the issues of the adequacy of the petition for attorney fees filed by Martinez and the adequacy of the hearing for those fees. I

Barad contends that the petition for fees and costs did not provide adequate information for the circuit court to render its judgment. Barad argues that the time summary which is part of the petition for attorney fees and which sets forth Martinez's attorney's time, contained no detailed information concerning the nature and actual time expended, the identity of who performed the service, the relation to the untrue pleadings, and whether they were required services.

After an examination of the record and the applicable law, we are not persuaded by Barad's arguments. Section 2 -- 611 of the Illinois Code of Civil Procedure, which provides for attorney fees and costs to be paid by the party opponent, in pertinent part, states:

"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 ...


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