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09/17/96 HERITAGE PULLMAN BANK & TRUST COMPANY v.

September 17, 1996

HERITAGE PULLMAN BANK & TRUST COMPANY, AN ILLINOIS CORPORATION, NOT INDIVIDUALLY BUT AS T/U/T/N 5096, DATED OCTOBER 3, 1957, PLAINTIFF-APPELLEE,
v.
EVELYN RAFACZ CARR; AND MELANIE DENDOR, AS EXECUTOR OF THE ESTATE OF WALTER RAFACZ, DECEASED, DEFENDANTS-APPELLANTS, V. NORMAN J. BARRY, AS EXECUTOR UNDER LAST WILL & TESTAMENT OF EDWARD A. RAFACZ; AND NORMAN J. BARRY, AS EXECUTOR UNDER LAST WILL & TESTAMENT OF HENRY RAFACZ, DEFENDANTS / CROSS-PLAINTIFFS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Thomas P. Durkin, Judge Presiding.

Released for Publication October 22, 1996.

Presiding Justice Hartman delivered the opinion of the court: DiVITO and Burke, JJ., concur.

The opinion of the court was delivered by: Hartman

PRESIDING JUSTICE HARTMAN delivered the opinion of the court:

This is the second appeal involving these parties. See Heritage Pullman Bank & Trust Co. v. Carr, 254 Ill. App. 3d 676, 627 N.E.2d 160, 194 Ill. Dec. 44 (1993) (Carr). Relevant to the present appeal, in Carr, we affirmed the circuit court's (1) award of fees and costs to Heritage Pullman Bank & Trust Co. (Trustee) in accordance with a trust agreement, (2) determination that defendant Evelyn Carr (Carr) took a groundless position in asserting that unanimous consent was required under the terms of the trust and should be charged with the Trustee's fees and costs, and (3) finding that Norman J. Barry, as executor of the Estates of Edward and Henry Rafacz (collectively the Estates), did not take a groundless position and, therefore, should prevail on their cross-claims against Carr. We remanded Carr "to the circuit court for a petition and evidentiary hearing on the Trustee's request for fees accruing since January 2, 1990." 254 Ill. App. 3d at 685.

Following our remand, the circuit court granted the Estates' section 2-611 petition for sanctions, which alleged that Carr had needlessly prolonged the litigation by pursuing her groundless claim, and awarded fees and costs in the amount of $98,755.50. Ill. Rev. Stat. 1987, ch. 110, par. 2-611. Carr again appeals, contending the circuit court erred in (1) denying her motion to strike and dismiss the Estates' section 2-611 petition for sanctions, (2) not holding an evidentiary hearing as to whether Carr violated section 2-611, (3) granting the Estates' section 2-611 petition for sanctions, (4) refusing Carr a hearing as to the reasonableness of the Estates' fees, (5) denying her motion for leave to file a third-party complaint, and (6) applying section 2-611 instead of Supreme Court Rule 137 (Rule 137). 134 Ill. 2d R. 137.

Prior to the initial appeal, the parties entered into a settlement resolving their underlying dispute. The Trustee thereafter petitioned the court for its expenses. The Estates cross-claimed against Carr, asserting "she should pay the Trustee's expenses because she took a groundless position causing the litigation." 254 Ill. App. 3d at 678. The Estates neither admitted nor denied the Trustee was entitled to fees but asserted Carr was liable. At the time, the Trustee's fees were $9,969.60. The court granted the Trustee's petition for fees on October 21, 1987, but did not rule on the Estates' cross-claim. The Trustee subsequently filed a supplement to its petition for fees.

On March 14, 1988, Carr responded to the Trustee's petition for fees, contending the Trustee was not entitled to fees because a control sheet generated by the Trustee "confused" her in that it indicated that unanimous consent of the beneficiaries was required. Based on this claim, the circuit court vacated its October 21, 1987, order granting the Trustee fees and set the matter for trial. Following trial, the court determined the Trustee properly filed suit and Carr failed to demonstrate that unanimity was required under the terms of the trust. The court also found in favor of the Trustee as against all beneficiaries, and in favor of the Estates as against Carr. These findings were affirmed on direct appeal. Carr, 254 Ill. App. 3d at 678.

Prior to the initial appeal, the Estates filed a section 2-611 petition for sanctions against Carr because she had asserted a groundless claim of "confusion." On October 16, 1991, the circuit court continued all petitions for fees and sanctions until this court had ruled on Carr's direct appeal.

Following the disposition in Carr, the Estates filed a second amended section 2-611 petition for sanctions (petition for sanctions), asserting Carr had failed to make a reasonable inquiry into the facts to support her claim of "confusion" and requesting fees from March 14, 1988, to December 31, 1993. Attached to the petition for sanctions were the affidavits and billing records of the Estates' attorneys. Carr moved to strike and dismiss the Estates' petition for sanctions, which was denied by the circuit court. Carr thereafter filed a response to the petition for sanctions, contesting a violation of section 2-611, and moved for leave to file a third-party complaint, which was denied by the court as dilatory, barred by laches, "in violation of the time limits provided by Supreme Court Rules and an abuse of process."

At the hearing on the Estates' petition for sanctions, the circuit court initially permitted Carr to argue "in support of the position that this is a hearing for something other than the reasonableness of fees." Carr's counsel unsuccessfully asserted the court should hold an evidentiary hearing to determine whether or not Carr assumed a groundless position in the underlying litigation. The court noted that the matter had been decided by the appellate court and there was "no question that there is a 2-611 violation." The court then entered judgment for the Estates in the amount of $98,755.50, the amount claimed in the Estates' petition for sanctions and unrebutted by Carr. Carr appeals.

I

Carr initially contends the circuit court erred in denying her section 2-615 motion to strike and dismiss the Estates' petition for sanctions because the Estates failed (1) to specify which fees were incurred by reason of Carr's groundless claim, and (2) to plead an essential element of section 2-611.

No action should be dismissed on a motion pursuant to section 2-615 for failure to state a cause of action unless it clearly appears that no set of facts can be proved under the pleadings which will entitle plaintiff to relief. Fulton-Carroll Center, Inc. v. Industrial Council of Northwest Chicago, Inc., 256 Ill. App. 3d 821, 824, 628 N.E.2d 1121, 195 Ill. Dec. 657 (1993). When deciding a motion to dismiss, all well-pleaded facts in the complaint will be regarded as true and all reasonable inferences will be considered correct. Krasinski v. United Parcel Service, Inc., 124 Ill. 2d 483, 485-86, 530 N.E.2d 468, 125 Ill. Dec. 310 (1988). The complaint is deficient when it fails to allege the facts necessary for plaintiff to recover. People ex rel. Fahner v. Carriage Way West, Inc., 88 Ill. 2d 300, 308, 430 N.E.2d 1005, 58 Ill. Dec. 754 (1981). The grant or denial of a section 2-615 motion is within the sound discretion of the circuit court. Evers v. Edward Hospital Ass'n, 247 Ill. App. 3d 717, 724, 617 N.E.2d 1211, 187 Ill. Dec. 490 (1993).

A section 2-611 motion for attorneys' fees must meet minimum requirements of specificity so that a responding party has an opportunity to challenge and defend against the allegations made and so that fees and costs may be apportioned fairly. Brandel Realty Co. v. Olson, 159 Ill. App. 3d 230, 235, 512 N.E.2d 85, 111 Ill. Dec. 181 (1987). A 2-611 petition must state specifically which statements were falsely made and what fees were incurred as a result of such statements. Laurence v. Flashner Medical Partnership, 206 Ill. App. 3d 777, 787, 565 N.E.2d 146, 151 Ill. Dec. 875 (1990). The movant bears the burden of proving entitlement to fees and costs. Johnson v. La Grange State Bank, 73 Ill. 2d 342, 366-67, 383 N.E.2d 185, 22 Ill. Dec. 709 (1978). A circuit court's decision to grant or deny a motion for sanctions will not be overturned unless it can be shown that the court abused its discretion. Pole Realty Co. v. Sorrells, 84 Ill. 2d 178, 184-85, 417 N.E.2d 1297, 49 Ill. Dec. 283 (1981).

Carr maintains the Estates' petition for sanctions fails to specify the attorneys' fees incurred as a result of her false statements because the Estates merely included every hour of work since March 14, 1988, without ...


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