Marriage of Pitulla, In re

Decision Date08 August 1990
Docket NumberNos. 1-88-3129,1-89-0553,s. 1-88-3129
Citation559 N.E.2d 819,147 Ill.Dec. 479,202 Ill.App.3d 103
Parties, 147 Ill.Dec. 479 In re the MARRIAGE OF PITULLA (Joanne Pitulla, Appellant and Cross-Appellee; Rinella & Rinella, Ltd., Appellees and Cross-Appellants). Joanne PITULLA et al., Appellants, v. David NOVOSELSKY et al., Appellees.
CourtUnited States Appellate Court of Illinois

Justice FREEMAN delivered the opinion of the court:

This consolidated appeal arose as a result of the trial court's determination and award of attorney fees.

Joanne Pitulla (Petitioner) retained the law firm of Rinella & Rinella, Ltd. to represent her in her dissolution of marriage. Petitioner paid Rinella a $1,500 retainer. There was no written retainer agreement. Pursuant to a term in the marital settlement agreement, Pitulla was to pay Rinella an additional $8,500 in fees upon completion of the case. Following the prove-up, Rinella advised petitioner that he would enter the judgment of dissolution upon receipt of the $8,500. Petitioner paid the additional fees. Prior to and after prove-up in the dissolution proceeding, petitioner requested an itemization of fees from Rinella, however, he produced none.

Petitioner filed a 2-1401 petition to vacate the fee award portion of the dissolution judgment. In response, Rinella filed a motion to strike and dismiss. The motion to dismiss was granted, and petitioner appealed. On appeal, this court reversed and remanded the case for an evidentiary hearing to determine the merits of petitioner's 2-1401 petition and the reasonableness of Rinella's attorney fees. In re Marriage of Pitulla (1986), 141 Ill.App.3d 956, 96 Ill.Dec. 276, 491 N.E.2d 90.

On remand, the circuit court held an evidentiary hearing on the issue of fees. In addition to other evidence, Rinella produced a two-page, handwritten time sheet for the period of May 1981 through August 1981, and a typewritten compilation, prepared from handwritten time records, which listed a total of 41 hours. Testimony revealed that the typewritten compilation of fees had been prepared in response to an Attorney Registration and Disciplinary Commission Complaint. The typewritten compilation was filed in this case, along with Rinella's fee petition, on March 16, 1987.

The trial court found that Rinella's $10,000 fee was unreasonable and, in a memorandum order, ordered that the fee be reduced to $3,733. Petitioner filed an appeal of the court's order. No stay of enforcement of the judgment was filed.

Subsequent to the filing of the appeal, petitioner filed a petition for a rule to show cause why Rinella should not be held in contempt for failing to comply with the trial court's memorandum order.

Prior to the hearing on the petition, Rinella's attorney telephoned petitioner's attorney and offered payment of the refund. Subsequently, petitioner's attorney contacted Rinella's attorney to discuss whether the acceptance of the refund would moot the appeal. Rinella responded in the affirmative and, according to Rinella, petitioner then declined the offer of the refund.

At the hearing, Rinella offered to refund the excess portion of the fee. Petitioner's attorney stated that he did not accept the tender of the refund; he did not have authority to accept it. By agreement of the parties, the hearing was continued.

Subsequently, Rinella filed a 2-611 petition seeking sanctions and attorney fees for having to respond to petitioner's petition for rule to show cause. On January 31, the hearing on the petition was continued and Rinella's motion for sanctions was heard. In opposition to the motion for sanctions petitioner stated that there had been no tender because there was no check presented at the earlier hearing, and further, the check presented at this hearing was insufficient in that it did not include post-judgment interest.

The court stated that there had been a tender on December 19, but that petitioner had refused acceptance because of a lack of authority. The court further stated that the issue of statutory interest had not been raised, but would apply. The court then dismissed the rule to show cause, and after a hearing on costs and the time expended in defending against the rule, the court granted Rinella $400 in sanctions. Petitioner filed a second appeal.

We have consolidated the two appeals. By both appeals, petitioner raises the following contentions: (1) the evidence does not support the fee awarded; (2) Rinella made false statements of fact in several pleadings; (3) the court erred in imposing sanctions against her regarding her motion to refund and/or segregate funds; (4) the court erred in denying her interest accrued on the refund; (5) the court erred in imposing sanctions against her for pursuing the rule to show cause; and (6) the court erred in refusing to reimburse her for the fees she incurred to enforce the refund order.

Rinella cross-appeals, contending that (1) the appeal of the amount of the refund should be dismissed; (2) the court improperly reduced the amount of fees to which he was entitled; and, (3) the trial court erred in barring testimony of his expert witnesses. Finally, Rinella asks this court to impose sanctions upon petitioner for filing the second appeal.

SATISFACTION AND RELEASE OF JUDGMENT

We first address Rinella's contention that the appeal of the amount of fees should be dismissed. He first argues that under the Code of Civil Procedure, once petitioner signed the release and satisfaction of the judgment, she was barred from appealing the amount of that judgment. We disagree.

Rinella relies on Section 12-183(h) of the Code of Civil Procedure, which provides in pertinent part:

"(h) Upon filing of a release or satisfaction in full satisfaction of judgment, signed by the party in whose favor the judgment was entered or his or her attorney, the court shall vacate the judgment, and dismiss the action." Ill.Rev.Stat.1987, ch. 110, par. 12-183(h).

Rinella has cited to no cases wherein this portion of the statute has been construed, and our research has revealed none. Therefore, in order to resolve this issue we find it necessary to apply the rules of statutory construction.

In construing a statute, all of its sections are to be construed together in light of the general purpose and plan, the evil intended to be remedied, and the objects to be attained. (Anthony v. Butler (1988), 166 Ill.App.3d 575, 579, 117 Ill.Dec. 26, 519 N.E.2d 1193; Kennedy Bros., Inc. v. Property Tax Appeal Bd. (1987), 158 Ill.App.3d 154, 160, 110 Ill.Dec. 244, 510 N.E.2d 1275.) Proper interpretation of the statute cannot be based only on its language, but must also include the consequences of construing it one way as opposed to another. (Mulligan v. Joliet Regional Port Dist. (1988), 123 Ill.2d 303, 313, 123 Ill.Dec. 489, 527 N.E.2d 1264; Grove School v. Department of Public Health (1987), 160 Ill.App.3d 937, 112 Ill.Dec. 364, 513 N.E.2d 973.) The court must be mindful that the legislature, in passing legislation, did not intend absurdity, inconvenience, or injustice. Donnelly v. Edgar (1987), 117 Ill.2d 59, 66, 109 Ill.Dec. 176, 509 N.E.2d 1015.

We do not read this statute as precluding the judgment creditor's right to an appeal. We believe that the purpose of section 12-183 is two-fold: (1) to serve as proof of payment of the judgment, barring any further attempt by the judgment creditor to enforce the judgment and, (2) to stop the accrual of post-judgment interest. Once a satisfaction of judgment has been filed in the trial court, the statute places a limitation on that court's jurisdiction to conduct further proceedings on the issue, but does not bar an appeal.

Our belief that this statute does not bar an appeal is strengthened by our reading of section 12-183(b) of the statute. (Ill.Rev.Stat.1987, ch. 110, par. 12-183(b).) Pursuant to 12-183(b), if a judgment creditor refuses or fails to release a judgment The effect of this section of the statute is to compel the entry of satisfaction of judgment. (See Peoples v. Carborundum Co. 123 Ill.App.3d 39, 78 Ill.Dec. 710, 462 N.E.2d 829.) Were we to apply Rinella's interpretation of the statute, a judgment debtor, pursuant to section 12-183(b), merely by petitioning the court to enter a satisfaction, could divest the creditor of any right to an appeal. It would be unfair for the legislature to, in the first place, compel the entry of a satisfaction and then, as a result of the compelled satisfaction, deny the right to appeal. We do not believe this to have been the legislature's intent.

[147 Ill.Dec. 486] the judgment debtor may petition the court, tender to the court all sums due, and the court shall then enter an order satisfying the judgment and releasing all liens based thereon.

Here, Rinella insisted that petitioner execute a satisfaction of judgment. Petitioner stated that she did not believe that Rinella was entitled to any fees; however, she acknowledged that the court could order her to sign a release and satisfaction of the judgment. While the appropriate action would have been for petitioner not to have accepted the check and for Rinella to have then deposited the check with the court, it is clear from this record that by executing the satisfaction of judgment, petitioner did not intend to abandon her right to appeal. We decline, based on section 12-183, to dismiss it.

RELEASE OF ERRORS

The second theory upon which Rinella bases his argument for dismissal is the doctrine of release of errors. In Illinois, a litigant cannot attack a decree if, by reason of enjoying the benefits of the decree, the opposing party would be placed at a distinct disadvantage upon reversal. (Lemon v. Lemon (1958), 14 Ill.2d 15, 150 N.E.2d 608; Boylan v. Boylan (1...

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