Caruso v. Murphy

542 N.E.2d 375, 185 Ill. App. 3d 739, 134 Ill. Dec. 196, 1989 Ill. App. LEXIS 917
CourtAppellate Court of Illinois
DecidedJune 22, 1989
DocketNo. 1-87-3819
StatusPublished
Cited by3 cases

This text of 542 N.E.2d 375 (Caruso v. Murphy) 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
Caruso v. Murphy, 542 N.E.2d 375, 185 Ill. App. 3d 739, 134 Ill. Dec. 196, 1989 Ill. App. LEXIS 917 (Ill. Ct. App. 1989).

Opinion

JUSTICE LINN

delivered the opinion of the court:

The circuit court of Cook County awarded attorney fees and costs to petitioner, Frank Caruso, under section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611). The court entered the order against respondent, Elizabeth Murphy, now known as Elizabeth Smeja, and Elizabeth’s attorney, Walter Hess. Elizabeth appeals, contending: (1) the present version of section 2 — 611 was not in effect at the time the parties filed their pleadings, and (2) the trial court abused its discretion in making the award.

We affirm the order of the trial court in all respects.

Background

The record shows that on June 19, 1985, Frank petitioned the trial court for custody of Yvonne. (See Ill. Rev. Stat. 1985, ch. 40, par. 601.) Frank alleged, inter alia, that Yvonne was born on October 4, 1984, that he was her father, and that it would be in Yvonne’s best interests for her to be placed in his custody. Elizabeth filed her response to Frank’s custody petition on December 3, 1985. Elizabeth alleged, inter alia, that Frank was not Elizabeth’s father.

On January 8, 1986, the trial court ordered that Frank, Elizabeth, and Yvonne be administered the necessary blood tests to determine Frank’s paternity. On January 22, 1987, the court held a contested trial on the issue of paternity. On February 5, 1987, the trial court entered an order declaring Frank to be Yvonne’s natural father.

In addition to its paternity order, the trial court also granted Frank leave to file a petition for sanctions pursuant to section 2 — 611. Frank charged Elizabeth with contesting his paternity despite the following pertinent facts: (1) Frank was in the hospital delivery room with Elizabeth, with her consent, when Yvonne was bom; (2) Frank is named as Yvonne’s father on her birth certificate, the truth of which Elizabeth certified; (3) blood tests were sent to Hess, Elizabeth’s attorney, around March 7, 1986, showing a 99.99% probability that Frank was Yvonne’s father; (4) Frank and Elizabeth lived together during the time of Yvonne’s conception; and (5) only Elizabeth could have obtained a court order, via a paternity action, requiring blood testing of a man outside of the present lawsuit, and that she never brought such an action by the time of the paternity trial.

Frank additionally alleged that Elizabeth delayed the paternity trial twice, once to locate a man for blood testing, and the second continuance for obtaining the blood tests; at the paternity trial, Elizabeth submitted no evidence of any other blood test, her sole evidence was her uncorroborated testimony that she and Frank did not have intimate relations during the time of Yvonne’s conception; and the trial court found this testimony unworthy of belief.

On February 18, 1987, Elizabeth filed a “Third Party Complaint for Paternity,” in which she named the above-mentioned man as Yvonne’s father. Elizabeth filed her response to Frank’s petition for sanctions on March 27, 1987. She again claimed that Frank was not Yvonne’s father. Elizabeth’s pertinent allegations included: Yvonne’s birth certificate did not name Frank as the father when Elizabeth signed it, but Frank later agreed to have his name entered as the father; the paternity test assumed that Frank and Elizabeth had intimate relations, which they did not; and assuming intimate relations had occurred, the probability of Frank’s paternity would not be 99.99%, but rather only 99%.

Elizabeth also alleged that the man who she claimed to be Yvonne’s father admitted his paternity and was initially willing to undergo testing. However, the man was outside of Illinois for most of 1986; she had spoken with him in November 1986, but could not obtain an address for service of process. Further, she did all that she could do to bring in this man, which accounted for the continuances of the paternity hearing.

Elizabeth further alleged that, under Illinois law, she had an absolute right to a paternity trial, regardless of the results of the paternity test. Additionally, the trial court was neither fair nor impartial. Rather, the court prejudged the case, intimidated and berated Elizabeth, and generally acted on Frank’s behalf. Elizabeth also alleged that section 2 — 611, as amended, which required Hess’ signature, became effective long after Elizabeth had filed her response to Frank’s custody petition.

On April 1, 1987, the trial court held a hearing on Frank’s petition for sanctions. The trial court first repeated its finding, which it made at the paternity trial, that Elizabeth’s uncorroborated testimony was unworthy of belief. The court next found that Hess failed to make a reasonable investigation to determine whether Elizabeth’s pleading was well grounded in fact. Pursuant to section 2 — 611, the trial court awarded Frank $1,100 in attorney fees and $56 in costs. The court assessed the award against both Elizabeth and Hess. Elizabeth appeals.

Opinion

Prior to its recent amendment, section 2 — 611 of the Code of Civil Procedure subjected a party to sanctions for pleading allegations and denials made without reasonable cause and found to be untrue. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611.) However, section 2 — 611, as amended effective November 25, 1986, requires an attorney to sign pleadings and other papers filed with the court. By his signature, the attorney certifies that he has made a reasonable inquiry into its basis and believes that it is well grounded in fact, warranted by existing law, and is being made in good faith. Ill. Rev. Stat. 1987, ch. 110, par. 2-611.

Section 2 — 611, as it now reads, is intended to prevent counsel from making assertions of fact or law without support. We have interpreted the section as imposing an obligation on an attorney not to file frivolous pleadings. Pleadings and other papers filed in violation of section 2 — 611 subject the party, the party’s attorney, or both, to an appropriate sanction. That sanction may include an order to pay the other party’s attorney fees and costs. People v. King (1988), 170 Ill. App. 3d 409, 413-14, 524 N.E.2d 723, 726.

I

We first address Elizabeth’s contention that the amended section 2 — 611 does not apply to this case. Elizabeth notes that the amended provision became effective on November 25, 1986. Thus, it was not in effect at the time she filed her response to Frank’s custody petition. She argues that Hess was not required to sign, nor did he sign, her pleading.

Frank notes, however, that the amended provision was effective on the date of the paternity trial, January 22, 1987. He claims that immediately prior to trial, the court requested each attorney to sign his or her pleading, and that each attorney did so. Hess denies that he signed Elizabeth’s pleading.

The appellate record does not contain a record of the paternity trial. At oral argument in this court, Hess was questioned as to why he failed to incorporate the paternity trial record into the record on appeal, since the issue of his signature was important to the case. He responded that the paternity trial was not at issue, but rather the hearing on sanctions.

This statement is error.

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Related

LeCrone v. Leckrone
580 N.E.2d 1233 (Appellate Court of Illinois, 1991)
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576 N.E.2d 552 (Appellate Court of Illinois, 1991)
In Re Custody of Caruso
542 N.E.2d 375 (Appellate Court of Illinois, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
542 N.E.2d 375, 185 Ill. App. 3d 739, 134 Ill. Dec. 196, 1989 Ill. App. LEXIS 917, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caruso-v-murphy-illappct-1989.