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10/03/89 Scott Dunaway Et Al., v. Ashland Oil

October 3, 1989

MOTHER AND NEXT FRIEND, AND BARBARA DUNAWAY, INDIV., PLAINTIFFS-APPELLANTS

v.

ASHLAND OIL, INC., ET AL., DEFENDANTS (LONG, RABIN & YOUNG, LTD., APPELLANTS; DOUGLAS C. LAMBERT ET AL., DEFENDANTS-APPELLEES)



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

SCOTT DUNAWAY et al., Minors, by Barbara Dunaway, their

544 N.E.2d 1313, 189 Ill. App. 3d 106, 136 Ill. Dec. 538 1989.IL.1595

Appeal from the Circuit Court of Clinton County; the Hon. E.C. Eberspacher, Judge, presiding.

APPELLATE Judges:

JUSTICE CHAPMAN delivered the opinion of the court. RARICK and HOWERTON, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CHAPMAN

Plaintiffs brought a multicount complaint against multiple defendants seeking recovery for personal injury, loss of consortium, and expenses, arising out of an explosion which occurred in Centralia, Illinois. On March 6, 1987, summary judgment was granted in favor of the defendants, Douglas and Judy Lambert. On April 1, 1987, the Lamberts filed a motion for attorney fees and costs pursuant to section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-611), against both the plaintiffs and their attorneys. Subsequently, plaintiffs filed a response to defendants' motion and moved that attorney fees be assessed against the defendants under section 2-611. The circuit court denied plaintiffs' motion for section 2-611 sanctions and granted defendants' motion for section 2-611 sanctions against plaintiffs' attorneys. On appeal plaintiffs challenge the court's order as to both section 2-611 rulings. The defendants have filed a motion to dismiss plaintiffs' appeal.

Defendants' motion to dismiss raises the issue of this court's jurisdiction of this appeal. Defendants cite the recent second district case of Sherman Hospital v. Wingren (1988), 169 Ill. App. 3d 161, 523 N.E.2d 220, in support of their argument that since the trial court imposed section 2-611 sanctions only on plaintiffs' attorneys and not on plaintiffs themselves and that since the ruling did not prejudice any right of the plaintiffs and a reversal of the ruling would not benefit plaintiffs in any manner, plaintiffs lack standing to appeal the imposition of sanctions against their attorneys. Defendants concede that plaintiffs' attorneys would be entitled to raise the section 2-611 issue for appeal, but argue that since they failed to do so the appeal should be dismissed.

In Sherman, section 2-611 sanctions were imposed against defendants' attorneys at trial, and the defendants sought review of the trial court's imposition of a sanction. The appellate court refused to reach the merits of the issue, holding that defendants were not entitled to raise the issue of sanctions entered against their attorneys only. The court reasoned that the imposition of sanctions in that case did not prejudice any right of defendants nor would a reversal of the ruling benefit defendants in any way.

We decline to adopt the ruling of the Sherman court in the case at bar and agree instead with the ruling in Ignarski v. Heublein (1988), 171 Ill. App. 3d 830, 525 N.E.2d 995. In that case attorney fees were assessed against a law firm representing a plaintiff in a personal injury action. The law firm's standing to appeal the judgment entered against it was questioned. In finding that the law firm had standing, the court held that although the firm was a nonparty to the lawsuit which gave rise to the judgment, it was evident that the judgment directly affected a pecuniary interest and that interest appears in the record on appeal. The court reasoned that a nonparty is prejudiced or aggrieved in the legal sense when a legal right has been invaded or a pecuniary interest has been directly affected. (Ignarski, 171 Ill. App. 3d at 833, 525 N.E.2d at 997.) The nonparty's interest must appear in the record or be alleged in the points relied on for reversal. Metropolitan Sanitary District ex rel. O'Keeffe v. Ingram Corp. (1980), 85 Ill. App. 3d 859, 865, 407 N.E.2d 627, 631, quoting Almon v. American Carloading Corp. (1942), 380 Ill. 524, 530, 44 N.E.2d 592, 595.

In the instant case it is undeniable that plaintiffs' counsel has a direct pecuniary interest in this appeal. Sanctions under section 2--611 of the Code of Civil Procedure were assessed against plaintiffs' counsel, and the trial court specifically enjoined plaintiffs' attorneys from seeking or accepting reimbursement from the plaintiffs for the sanctions. It is clear that the judgment entered against counsel directly affected a pecuniary interest and this interest appears in the record on appeal. We find, therefore, that counsel for the plaintiffs do have standing to prosecute the instant appeal.

We next address the issue of whether failure to join plaintiffs' counsel as party appellants to this appeal precludes this court from deciding the merits. Whenever a party has been omitted whose presence is so indispensable to a decision of the case upon its merits that a final decree cannot be made without materially affecting his interests, the court should not proceed to a decision on the merits. (Hobbs v. Pinnell (1959), 17 Ill. 2d 535, 536, 162 N.E.2d 361, 362.) The requirement of "joinder" of necessary parties is absolute and inflexible and applies to trial courts as well as to appellate courts, which have a duty to enforce this principle of law sua sponte as soon as it is brought to their attention. (Glickauf v. Moss (1974), 23 Ill. App. 3d 679, 683, 320 N.E.2d 132, 136.) Section 2-407 of the Code of Civil Procedure provides:

"§ 2-407. Non-joinder and misjoinder of parties-Change of parties. No action shall be dismissed for misjoinder of parties, or dismissed for non-joinder of necessary parties without first affording reasonable opportunity to add them as parties. New parties may be added and parties misjoined may be dropped by order of the court, at any stage of the cause, before or after judgment, as the ends of Justice may require on terms which the court may fix." (Ill. Rev. Stat. 1987, ch. 110, par. 2-407.)

It would be inappropriate for us to dismiss this appeal simply because plaintiffs' counsel were not joined as indispensable parties, since failure to join an indispensable party does not deprive a court of its jurisdiction over parties that are properly before it. Moenning v. ...


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