Appeal from the Circuit Court of Du Page County. No. 90-L-816. Honorable Robert K. Kilander, Judge, Presiding.
The Honorable Justice Bowman delivered the opinion of the court: Doyle and Colwell, JJ., concur.
The opinion of the court was delivered by: Bowman
JUSTICE BOWMAN delivered the opinion of the court:
Defendant's counsel, the law firm of Moss & Hillison, appeals from an order (1) assessing against it a sanction of $5,000 in attorney fees pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137); and (2) finding its notice to plaintiff of a petition for substitution of judges improper under section 2-1001(b) of the Code of Civil Procedure (735 ILCS 5/2-1001(b)). We affirm.
The following procedural history and summary of facts is taken from the record. The instant action originated when plaintiff, Mary Bretting, formerly known as Mary Koch, filed suit against defendant, Jorge Carmona, for injuries allegedly arising from a December 7, 1989, automobile accident. Plaintiff's complaint alleged her car was struck from behind by a second automobile while she was stopped near an intersection. According to the complaint, the second automobile was itself struck from the rear by a pickup truck driven by defendant.
The law firm of Moss & Hillison entered an appearance and jury demand on defendant's behalf. The answer, signed by attorney John D. Moss, of Moss & Hillison, admitted contact between defendant's truck and the automobile in front of him, but denied all allegations of defendant's negligence.
The case proceeded to trial. In her case in chief, plaintiff presented her own testimony as well as that of her treating physician, the driver of the second automobile, and a police officer who responded to the scene. Although defendant himself did not appear for trial, Moss & Hillison continued to defend the claim in his absence. Defendant's case in chief consisted of calling plaintiff to testify as an adverse witness.
At the close of all the evidence, the trial court directed a verdict for plaintiff on the issue of defendant's negligence. The issues of proximate cause and damages were submitted to the jury, which, on March 30, 1992, returned a verdict for plaintiff in the amount of $4,663.95. On April 22, 1992, plaintiff moved for a new trial on the issue of damages only, arguing that defense counsel's conduct at trial was so improper that it deprived her of a fair trial. In an order dated August 12, 1992, Judge Robert Kilander granted the motion, finding that "this conduct on the part of Defense counsel was done in a calculated and intentional manner designed to deny the Plaintiff a fair trial." In addition, the August 12, 1992, order found that the answer filed by Moss & Hillison denying defendant's negligence was in violation of Supreme Court Rule 137 because it was not based upon a reasonable inquiry and was not well grounded in fact.
A hearing to determine attorney fees and costs was held on September 15, 1992, at which John D. Moss appeared on behalf of Moss & Hillison. Moss argued that the August 12, 1992, order did not indicate an evidentiary hearing would be held on the propriety of Rule 137 sanctions. The trial court conceded that the order as written was unclear and stated: "I'll give you a couple of weeks if you wish to make a presentation, and we'll set it for subsequent hearing." The written order entered by the trial court on September 15, 1992, directed Moss & Hillison to file a response to plaintiff's affidavit for fees and costs by September 29, 1992, and set a hearing date of November 3, 1992.
On September 16, 1992, Moss & Hillison filed a petition for substitution of judge (at that time termed a petition for change of venue), in which it argued it was entitled to a hearing on the sanctions issue. The petition did not address the merits of sanctions under Rule 137 or include facts indicating whether John Moss had conducted a reasonable investigation prior to filing the answer. The record does not contain any other documents filed within the two-week time frame set by the September 15, 1992, order and there is no indication in the record that a hearing was held as scheduled on November 3, 1992. The next order entered, dated December 1, 1992, shows Moss & Hillison attempted to present their substitution of judge petition, but the court refused to hear it due to improper notice to plaintiff and the court. The substitution of judge petition was ultimately heard and denied on January 7, 1993, by another judge sitting in Judge Kilander's absence.
The case proceeded to a retrial on damages only and, on April 6, 1993, the jury returned a verdict for plaintiff for $12,446.34. On July 1, 1993, the court entered an order setting a hearing date on plaintiff's motion for fees and costs and directing Moss & Hillison to "file any response thereto." Moss & Hillison filed a response, attaching the previously denied petition for substitution of judge and an unsigned document entitled "Motion to Reconsider," which urged reconsideration of the August 12, 1992, order. Although labeled as an exhibit, this motion to reconsider does not appear anywhere previously in the record.
On August 18, 1993, the court held a hearing at which Moss & Hillison argued they had never been given an opportunity to respond to the merits of the sanctions award. The court continued the matter until September 1, 1993, so that it could review the file and determine whether Moss & Hillison had indeed been given a prior opportunity to argue the merits of the sanctions issue and, if so, whether they had waived their right to do so again.
At the September 1, 1993, hearing, the court recapitulated the chronology of the Rule 137 sanctions issue in this case. The court stated that during the September 15, 1992, hearing it had invited Moss & Hillison to file an opposition to the sanctions if it so desired. According to the court, Moss & Hillison had failed to do so, leading the court to reserve the issue of sanctions until after the retrial. The court further stated that Moss & Hillison had been given a second opportunity to file an opposition to the sanctions award on July 1, 1993, and that they had again failed to do so. The court concluded:
"I find that you have waived your right to object to the position presented, that being that you had--you did not undertake proper investigation pursuant to Rule 137."
Also at the September 1, 1993, hearing, Moss & Hillison presented to the court a third petition for substitution of judge. This petition had been sent by facsimile to plaintiff's counsel at approximately 8:30 a.m. the previous morning. The trial court found this notice to be improper under section 2-1001(b) of the Code of Civil Procedure (735 ILCS 5/2-1001(b) (West Supp. 1993)) and declined to consider the petition. The trial court ordered attorney fees assessed against Moss & Hillison in the amount of $5,000 and this appeal followed.
On appeal, Moss & Hillison contends (1) the trial court's order imposing sanctions lacked the specificity required by Supreme Court Rule 137; (2) the trial court's finding that Moss & Hillison waived their right to a hearing on the propriety of the sanctions was erroneous; (3) the trial court abused its discretion in imposing the sanctions; and (4) the trial court abused its discretion in ...