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05/02/95 PORTIA S. NAGEL v. GERALD DENNEN & COMPANY

May 2, 1995

PORTIA S. NAGEL, PLAINTIFF-APPELLANT,
v.
GERALD DENNEN & COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable James G. Smith, Judge Presiding.

The Honorable Justice McCORMICK delivered the opinion of the court: Hartman and DiVITO, JJ., concur.

The opinion of the court was delivered by: Mccormick

JUSTICE McCORMICK delivered the opinion of the court:

Plaintiff, pro se, brought an action against defendant for unpaid wages, vacation time and commissions in the circuit court of Cook County pursuant to the Illinois Wage Payment and Collection Act (Ill. Rev. Stat. 1991, ch. 48, par. 39m-11, now 820 ILCS 115/11 (West 1992)). Defendant subsequently presented, without notice to plaintiff, an "Emergency Motion." At the ex parte hearing on the motion, the trial court dismissed plaintiff's second amended complaint with prejudice and, on a later date, awarded defendant attorney fees and costs. Plaintiff's motion to reconsider was denied. On appeal, plaintiff contends that the trial court: (1) erred in hearing defendant's motion ex parte in the absence of notice to plaintiff; (2) erred in dismissing plaintiff's second amended complaint with prejudice; and (3) abused its discretion in awarding attorney fees and costs to defendant. We reverse the judgment of the trial court.

In March 1990, plaintiff, an accountant, terminated her employment with defendant after defendant requested she sign a non-competition agreement as a condition to receiving a raise. In September 1990, plaintiff filed a claim for wages with the Illinois Department of Labor (Department). On April 22, 1991, the Department held a hearing on the claim. Defendant failed to appear at the hearing and the Department issued a "Wage Payment Demand" in favor of plaintiff and against defendant for $4,018.11. Subsequently, defendant informed the Department that it had not received notice of the hearing and received a stay of the enforcement of the "Wage Payment Demand," pending the outcome of a hearing rescheduled for October 2, 1991.

In the interim, on August 26, 1991, plaintiff filed a pro se action in the circuit court alleging that she was due $5,842.69 in unpaid wages and commissions from defendant. Defendant moved to dismiss plaintiff's complaint pursuant to section 2-619(9) of the Illinois Code of Civil Procedure (Code). (Ill. Rev. Stat. (1991) ch. 110, par. 2-619(9), now 735 ILCS 5/2-619(9) (West 1992).) Defendant contended that plaintiff's action improperly sought to enforce the wage payment demand, notwithstanding that the Department had stayed enforcement. Defendant also requested attorney fees pursuant to Supreme Court Rule 137. (134 Ill. 2d R. 137.) The trial court struck plaintiff's complaint with leave to amend and denied defendant's request for attorney fees.

Plaintiff filed an amended complaint, pro se, on November 19, 1991. Defendant moved to strike this complaint under section 2-615 of the Code based on plaintiff's failure to state a cause of action. (Ill. Rev. Stat. 1991, ch. 110, par. 2-615, now 735 ILCS 5/2-615 (West 1992).) The trial court granted the motion to strike, without prejudice, and gave plaintiff 21 days to file a second amended complaint.

Plaintiff filed a second amended complaint, pro se, on February 21, 1992. Defendant moved for summary judgment or, alternatively, requested that the trial court dismiss plaintiff's complaint with prejudice pursuant to section 2-619(7) of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 2-619(7), now 735 ILCS 5/2-619(7) (West 1992)), contending in part that the claim was barred by the Statute of Frauds. The trial court denied the motion and ordered defendant to answer or otherwise plead.

On September 8, 1992, defendant presented an "emergency" motion seeking dismissal of the second amended complaint, a finding of fraud, Rule 137 sanctions and to compel disclosure. Defendant contended that the pro se plaintiff received improper assistance from an attorney in the preparation of pleadings. The trial court heard defendant's "emergency" motion ex parte, without notice to plaintiff. The trial court dismissed plaintiff's second amended complaint with prejudice and granted defendant the right to an award of attorney fees and costs. On April 1, 1993, the trial court awarded defendant attorney fees and costs in the amount of $12,534.40. This appeal followed.

We first observe that there is no written notice of defendant's "emergency" motion in the record. Nor is any there any reference to a written notice of motion in the report of proceedings held on September 8, 1992. The only references to notice of the motion are representations by the parties in their briefs. Defendant represents that on September 7, 1992, its counsel attempted to fax a copy of the "emergency" motion to plaintiff's home and that plaintiff's fax machine purportedly ran out of paper and could not accept the entire transmission. Defendant's counsel also stated that she telephoned plaintiff about the motion and the difficulty in completing the fax transmission and spoke with a person who identified herself as plaintiff's daughter. Plaintiff represents that September 7, 1992, was the labor day holiday, that she was out of town on that date and that defendant had been informed that she would be out of town until September 12.

The circuit court of Cook County rules provide generally that a written notice of motion must be mailed five court days preceding the date of hearing on the motion, to effectuate service by mail, or, for personal service, two court days prior to the date of the hearing. (Cook County Cir. Ct. Rules 2.1(c)(i).) "Emergency motions and motions which by law may be made ex parte may, in the discretion of the court, be heard without giving prior notice and without calling the motion for hearing." (Cook County Cir. Ct. Rule 2.2.) The circuit court rules do not define the word "emergency." However, Illinois courts give undefined terms their ordinary and popularly understood meanings. ( Opyt's Amoco v. Village of South Holland (1992), 149 Ill. 2d 265, 277, 595 N.E.2d 1060, 172 Ill. Dec. 390.) "Emergency" has been defined as:

"A sudden unexpected happening; an unforeseen occurrence or condition; perplexing contingency or complication of circumstances; a sudden or unexpected occasion for action; exigency; pressing necessity. Emergency is an unforeseen combination of circumstances that calls for immediate action without time for full deliberation." Black's Law Dictionary 522-23 (6th ed. 1990); see also, Opyt's Amoco, 149 Ill. 2d at 277-78.

In the case at bar, plaintiff argues that Rule 2.2 of the circuit court of Cook County, providing for emergency motions, is inapplicable because no emergency existed. The parties have not cited to, nor has our research revealed, cases addressing the issues of what fact situation, under Rule 2.2., constitutes an emergency, whether some notice should have been given and, if notice was given, whether it was adequate in view of the stated facts proffered in support of the emergency motion. However, we find instructive those cases involving the issuance of a temporary restraining order or injunction.

It is well settled that "a temporary restraining order may be obtained without notice to an adverse party only if it 'clearly appears from specific facts shown by affidavit or *** complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing held thereon.'" Hirschauer v. Chicago Sun-Times (1989), 192 Ill. App. 3d 193, 201, 548 N.E.2d 630, 139 Ill. Dec. 245, appeal dismissed (1990), 131 Ill. 2d 559, 553 N.E.2d 396 (temporary restraining order precluding the defendant newspaper from ceasing to sell papers to the plaintiff distributor was improperly issued without notice to the defendant in the absence of a showing of irreparable harm to the plaintiff before notice could have been given); see also American Warehousing Services, Inc. v. Weitzman (1988), 169 Ill. App. 3d 708, 715, 533 N.E.2d 366, 127 Ill. Dec. 494 (a 30-minute telephone notice to the defendant prior to a hearing on the plaintiff's request for a temporary restraining order was adequate where the plaintiff was faced with imminent disruption of its business operations and the defendant had an opportunity to notify his attorney and request his appearance at the hearing on the motion).

"Injunctive relief, without notice, is an extraordinary remedy appropriate only under the most extreme and urgent circumstances. *** The critical inquiry in all cases is whether, during the period it takes to give notice, the opponent will take such measures as to destroy the substance of the litigation or otherwise obstruct the court from dealing effectively with the issues, and whether proper notice might have averted litigation by immediately testing the validity of the injunctive relief." Hirschauer, 192 Ill. App. 3d at 201;see also Streamwood Home Builders, Inc. v. Brolin (1960), 25 Ill. App. 2d 39, 47-48, 165 N.E.2d 531 (an injunction issued without notice to the defendants was not improper where the defendants were individuals, rather than an organized group, not reachable at any central location, had no known attorney, notice at the time given would have been futile, and the plaintiff would suffer irreparable injury as a result of the defendants' threatened, repeated conduct of preventing the plaintiff's sale of homes by parading around the sales area, invading the plaintiff's office and model homes, and by interrupting conversations between salesmen and prospective purchasers) and Sangamo Electric Co. v. United Automobile, Aerospace and Agricultural Implement Workers of America International Union (1976), 42 Ill. App. 3d 563, 564, 356 N.E.2d 389, 1 Ill. Dec. 263 (critical question to be asked in determining whether to issue an injunction was, in the minutes or hours necessary for the defendant to appear, would the defendant do that which would seriously affect the issues in dispute and, where no facts were alleged that events on a picket line would be much changed in the few hours it would take to informally notify the defendants of the plaintiff's request for an injunction, issuance of an injunction without notice to the defendants was improper).

In those situations involving a temporary restraining order or an injunction, the requirement, that the moving party demonstrate that it will suffer irreparable harm before notice can be given and a hearing held on the merits, comports with the ordinary meaning of "emergency." It is also clear that even in emergency situations, "some notice, however informal, is greatly to be preferred to none at all." Skarpinski v. Veterans of Foreign Wars (1951), 343 Ill. App. 271, 275, 98 N.E.2d 858; see also ...


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