Brubakken v. Morrison

608 N.E.2d 471, 240 Ill. App. 3d 680, 181 Ill. Dec. 398, 1992 Ill. App. LEXIS 2144
CourtAppellate Court of Illinois
DecidedDecember 30, 1992
Docket1-90-1670
StatusPublished
Cited by20 cases

This text of 608 N.E.2d 471 (Brubakken v. Morrison) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brubakken v. Morrison, 608 N.E.2d 471, 240 Ill. App. 3d 680, 181 Ill. Dec. 398, 1992 Ill. App. LEXIS 2144 (Ill. Ct. App. 1992).

Opinion

JUSTICE RIZZI

delivered the opinion of the court:

Plaintiffs, David Brubakken, Ph.D., and the Savin Corporation, brought separate causes of action against defendant Helen Morrison, M.D., to recover upon two promissory notes in which defendant was a co-signer. A default judgment was entered in favor of plaintiff Brubakken and against defendant in the amount of $7,701.78; and a default judgment was entered in favor of plaintiff Savin and against defendant in the amount of $3,592.69. Defendant entered into stipulation agreements with plaintiffs for payment of the judgments. After making payments to plaintiffs totaling at least $7,200, defendant was unable to abide by the stipulation agreements due to the pending birth of a child. Defendant sent plaintiffs a letter seeking to have the stipulation agreements modified. Plaintiffs did not respond to defendant’s request and filed a motion seeking to have defendant held in civil contempt based on her failure to abide by the stipulation agreements. Plaintiffs were represented by the law firm of Carmel, Baker & Marcus, Ltd.

The trial court entered an order denying plaintiffs’ motion for contempt, but ruled that attorney Blair C. Greene from the law firm of Carmel, Baker & Marcus, Ltd., engaged in sanctionable conduct pursuant to amended section 2 — 611 of the Code of Civil Procedure, as amended by Public Act 84 — 1431, effective November 25, 1986 (amended section 2 — 611), when he attempted to collect amounts from defendant in excess of the Brubakken judgment and failed to inform the court of a letter written by defendant to plaintiffs seeking to have the stipulation agreements modified. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611.) Amended section 2 — 611 was repealed and replaced by Supreme Court Rule 137, which became effective August 1, 1989. (134 Ill. 2d R. 137.) Following hearings on defendant’s fee petition, the trial court imposed sanctions against Greene and Carmel, Baker & Marcus, Ltd., jointly and severally, in the amount of $6,686.70.

On appeal, plaintiffs contend that (1) the trial court erred when it imposed sanctions for conduct that amounted to an honest mistake; (2) the trial court erred when it imposed sanctions for activities that occurred prior to the effective date of amended section 2 — 611; (3) the trial court erred when it imposed sanctions for activities that occurred before another trial judge; (4) the trial court erred when it imposed sanctions where defendant’s fee petition lacked sufficient detail upon which to base an award; (5) the trial court erred when it imposed sanctions where no evidence was proffered showing that defendant had actually paid attorney fees for defending against the sanctionable conduct; (6) Carmel, Baker & Marcus, Ltd., was denied due process of law when the trial court modified its previous order sua sponte to make the law firm jointly and severally liable for the conduct of its associate; (7) the trial court erred when it imposed sanctions against Carmel, Baker & Marcus, Ltd., after it discharged Greene from any personal liability arising from his conduct in this matter; and (8) the trial court erred when it ruled that defendant paid $6,782 in partial satisfaction of the Brubakken judgment where the record reveals payments of a lesser amount. We affirm in part, reverse in part and remand.

Plaintiffs first argue that the trial court erred when it imposed sanctions for conduct that amounted to an honest mistake. We disagree. Amended section 2 — 611 provides for the imposition of attorney fees and costs when an attorney files frivolous pleadings, motions or papers, or makes untrue statements to the court. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611; Klairmont v. Elmhurst Radiologists (1990), 200 Ill. App. 3d 638, 644-45, 558 N.E.2d 328, 332.) The purpose of this statute is to prevent abuse of the judicial process by sanctioning a party who makes unsupported assertions of fact or law or brings vexatious litigation predicated upon false statements. (A & A Acoustics, Inc. v. Valinsky (1990), 202 Ill. App. 3d 516, 522, 559 N.E.2d 1180, 1184.) A trial court’s finding of sanctionable conduct will not be disturbed absent an abuse of discretion. Professional Therapy Services, Inc. v. Signature Corp. (1992), 223 Ill. App. 3d 902, 917, 585 N.E.2d 1291, 1301.

The trial court first sanctioned Greene for attempting to collect amounts from defendant in excess of the Brubakken judgment. On July 15, 1987, Greene filed a motion for a nunc pro tunc order to increase the amount of the judgment entered in favor of Brubakken from $7,701.78 to $11,701.78. This motion was denied. Thereafter, Greene attempted to collect $15,970.10 from defendant for the Brubakken judgment, a sum $8,268.32 in excess of the Brubakken judgment. Greene argues that his attempt to collect an amount in excess of judgment was an honest mistake. Greene claims that he mistakenly merged the Brubakken and Savin judgments when he attempted to collect $15,970.10 for the $7,701.78 Brubakken judgment. After reviewing the record in its entirety, we cannot say that the trial court abused its discretion when it ruled that Greene’s attempt to collect amounts from defendant in excess of judgment was a violation of the statute.

Greene was also sanctioned for failing to inform the trial court of a letter written by defendant to plaintiffs seeking to have the stipulation agreements modified due to the pending birth of a child. Greene does not deny the facts. Greene, however, contends that the statute only permits the trial court to sanction an attorney for filing a false pleading, motion or paper, and not for the passive conduct for which he was sanctioned.

Plainly, amended section 2 — 611 was intended to apply to all untrue statements given without reasonable cause to the court, whether active or passive, written or oral. Thus, in the present case, Greene’s failure to disclose the existence of defendant’s letter to plaintiffs in his motions for contempt or at any appearance before the trial court in connection with these motions is conduct within the purview of the statute. Accordingly, the trial court did not abuse its discretion when it ruled that Greene’s failure to inform the trial court of defendant’s letter to plaintiffs was a violation of amended section 2— 611.

Plaintiffs next argue that the trial court erred when it imposed sanctions for conduct that occurred prior to the effective date of amended section 2 — 611. Amended section 2 — 611 expands the scope of its predecessor by, inter alia, permitting the trial court to sanction attorneys as well as parties for violations of the statute. Amended section 2 — 611, however, does not apply retroactively to violations that occurred prior to November 25, 1986. (In re Marriage of Fahy (1991), 208 Ill. App. 3d 677, 687, 567 N.E.2d 552, 558.) We, therefore, must determine whether Greene’s sanctionable conduct occurred after November 25,1986.

On September 16, 1986, Greene filed a motion seeking to have defendant held in civil contempt for failing to abide by the stipulation agreements.

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Cite This Page — Counsel Stack

Bluebook (online)
608 N.E.2d 471, 240 Ill. App. 3d 680, 181 Ill. Dec. 398, 1992 Ill. App. LEXIS 2144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brubakken-v-morrison-illappct-1992.