Marsh v. Evangelical Covenant Church of Hinsdale

• Decision Date: 18 October 1990
• Docket Number: No. 68293,68293
• Parties: , 150 Ill.Dec. 572 Thomas MARSH et al., Appellants, v. The EVANGELICAL COVENANT CHURCH OF HINSDALE, Appellee.
• Court: Illinois Supreme Court

Page 459

563 N.E.2d 459

138 Ill.2d 458, 150 Ill.Dec. 572

Thomas MARSH et al., Appellants, v. The EVANGELICAL COVENANT CHURCH OF HINSDALE, Appellee.

No. 68293.

Supreme Court of Illinois.

Oct. 18, 1990.

Rehearing Denied Nov. 30, 1990.

Bruce C. Davidson, Chicago, for appellants.

Richard W. Hymes, Jr., Hinsdale, for appellee.

Thomas P. Sullivan, Robert C. Keck, Jr., William A. Von Hoene, Jr., and Steven J. Durham, of Jenner & Block, Chicago, for amici curiae James and Florence Pollack.

Justice WARD delivered the opinion of the court:

The plaintiffs, Thomas Marsh and others, brought an action in the circuit court of Du Page County to enjoin the defendant church from violating a Village of Hinsdale zoning ordinance. A bench trial was held and the plaintiffs were denied any relief. On July 27, 1988, the trial court entered a judgment in the defendant's favor and against the plaintiffs. Twenty-nine days later, on August 25, 1988, the plaintiffs filed a notice of appeal. That same day, the defendant filed a motion for attorney fees as sanctions pursuant to section 2-611 of the Civil Practice Law (Ill.Rev.Stat.1987, ch. 110, par. 2-611.) The plaintiffs did not withdraw their notice of appeal and the appeal proceeded simultaneously with the section 2-611 motion. On November 2, 1988, the trial court denied the defendant's section 2-611 motion.

On January 5, 1989, the defendant filed a motion to dismiss the plaintiffs' appeal. The defendant claimed that the plaintiffs' notice of appeal was premature and that the appellate court therefore lacked jurisdiction to address the merits of the appeal. The appellate court dismissed the appeal and denied the plaintiffs' petition for reconsideration. This court granted the plaintiffs' petition for leave to appeal (107 Ill.2d R. 315(a)).

The issue raised in this appeal is whether the plaintiffs' appeal was properly dismissed as untimely. Supreme Court Rule 303 governs the timing of appeals from final judgments of the circuit court. (107 Ill.2d R. 303.) Subsection (a)(1) of that rule states that a notice of appeal must be filed within 30 days after entry of the final judgment appealed from, or "if a timely post-trial motion directed against the judgment is filed, * * * within 30 days after the entry of the order disposing of the last pending post-trial motion." (107 Ill.2d R. 303(a)(1).) Subsection (a)(2) of Rule 303 states that a notice of appeal filed before entry of an order disposing of the last pending post-trial motion has no effect and must be withdrawn by the party who filed it. This is so whether the post-trial motion was filed before or after the notice of appeal. A new notice of appeal must be filed within 30 days after entry of the order disposing of the last pending post-trial motion. 107 Ill.2d R. 303(a)(2).

The defendant argues that its section 2-611 motion for attorney fees was a post-trial motion, which extended the time for filing a notice of appeal from the judgment. It claims that the 30-day period for filing a notice of appeal did not begin to run until November 2, 1988, the day the circuit court disposed of the section 2-611 motion, and that the plaintiffs' notice of appeal, filed on August 25, 1988, was premature. The defendant maintains that the plaintiffs' failure to file another notice of appeal within 30 days of the trial court's November 2, 1988, order left the appellate court without jurisdiction to hear the merits of the case.

The plaintiffs, on the other hand, argue that the defendant's section 2-611 motion for fees was not a post-trial motion and did not extend the time for filing a notice of appeal. They claim that the 30-day period for filing a timely notice of appeal began to run on July 27, 1988, the day the circuit court entered judgment on the original claim. The plaintiffs argue that the August 25, 1988, notice of appeal therefore was timely and that the appellate court improperly dismissed his appeal.

We first consider whether the defendant's section 2-611 motion for attorney fees qualifies as a post-trial motion. Section 2-611 requires that an attorney sign pleadings and other papers filed with the court. The attorney's signature constitutes a certificate by him that he has read the document, has made a reasonable inquiry into its bases and believes it is well grounded in fact, warranted by existing law and made in good faith. If a paper is signed in violation of section 2-611, the statute authorizes the court to impose sanctions, including reasonable attorney fees, upon the person who signed it, the represented party, or both. Ill.Rev.Stat.1987, ch. 110, par. 2-611.

Section 2-1203 of the Civil Practice Law authorizes the filing of post-trial motions. (Ill.Rev.Stat.1987, ch. 110, par. 2-1203.) That section states:

"In all cases tried without a jury, any party may, within 30 days after entry of the judgment * * * file a motion for a rehearing, or a retrial, or a modification of the judgment or to vacate the judgment or for other relief." Ill.Rev.Stat.1987, ch. 110, par. 2-1203(a).

For a motion to qualify as a "post-trial motion," one or more of the types of relief specified in section 2-1203 must be specifically requested. (Fultz v. Haugan (1971), 49 Ill.2d 131, 305 N.E.2d 873.) A section 2-611 motion for attorney fees certainly does not seek a rehearing, retrial or vacation of the judgment. Moreover, this court has held that the "other relief" specified in section 2-1203 must be similar in nature to the other forms of relief enumerated in the section. (Fultz v. Haugan (1971), 49 Ill.2d 131, 305 N.E.2d 873 (motion to file an amended complaint does not qualify as a motion for "other relief"); see also In re Petition of Kildeer to Annex Certain Property (1987), 162 Ill.App.3d 262, 113 Ill.Dec. 108, 514 N.E.2d 1020 (motion for a stay pending appeal is not a post-trial motion).) The defendant's section 2-611 motion did not request the court to grant any relief from the July 27, 1988, order.

Even if we were to construe the defendant's section 2-611 motion for attorney fees as a motion to modify the judgment, it was not a post-trial motion within the meaning of Supreme Court Rule 303(a), because it was not a post-trial motion "directed against the judgment." (107 Ill.2d R. 303(a).) The defendant here moved for attorney fees under section 2-611 after judgment was entered on the plaintiffs' complaint. Although the motion related to allegations and denials made by the plaintiffs, it did not attack the original judgment entered in the defendant's favor. The question of whether section 2-611 sanctions were appropriate required an independent determination, entirely distinct from judgment previously entered. Withall v. Capitol Federal Savings of America (1987), 164 Ill.App.3d 851, 115 Ill.Dec. 803, 518 N.E.2d 328.

The facts in this case are distinguishable from those in Benet Realty Corp. v. Lisle Savings & Loan Association (1988), 175 Ill.App.3d 227, 124 Ill.Dec. 737, 175 Ill.App.3d 227. In Benet, the plaintiff sued the defendant for breach of a loan agreement. The defendant brought a counterclaim against the plaintiff, seeking attorney fees under a provision of the mortgage agreement which specified that the plaintiff was responsible for paying any attorney fees the defendant incurred to enforce the agreement. The trial court's judgment found the defendant in breach of the agreement and denied the defendant's counterclaim for attorney fees. The defendant filed a motion within 30 days of the judgment, requesting the court to modify the judgment to allow him attorney fees under the provisions of the mortgage agreement. This motion directly attacked the trial court's final judgment and was properly characterized as a section 2-1203 post-trial motion (Ill.Rev.Stat.1987, ch. 110, par. 2-1203). Benet Realty Corp., 175 Ill.App.3d at 233, 124 Ill.Dec. 737, 529 N.E.2d 718.

This case is also distinguishable from Hernandez v. Fahner (1985), 135 Ill.App.3d 372, 90 Ill.Dec. 204, 481 N.E.2d 1004. In that case, the plaintiffs brought an action alleging that the Attorney General exceeded his authority in requiring claimants under the Crime Victims Compensation Act to establish citizenship or legal alien status before they could recover. The plaintiffs also sought attorney fees under the Illinois Administrative Procedure Act (Ill.Rev.Stat.1981, ch. 127, par. 1014.1(b)). The trial court's order found, inter alia, that the plaintiffs were not entitled to attorney fees. The plaintiffs filed a timely post-trial motion requesting the trial court to vacate that portion of its order denying them fees. That motion attacked the trial court's order and was properly considered a post-trial motion. Hernandez, 135 Ill.App.3d at 377, 90 Ill.Dec. 204, 481 N.E.2d 1004.

In this case, unlike Benet and Hernandez, the defendant moved for attorney fees under section 2-611 after the trial court entered judgment in the defendant's favor. The motion was not directed against that judgment. (Fultz v. Haugan (1971), 49 Ill.2d 131, 305 N.E.2d 873 (a motion to file an amended complaint is not "directed against the judgment"); see also In re Petition of Kildeer to Annex Certain Property (1987), 162 Ill.App.3d 262, 113 Ill.Dec. 108, 514 N.E.2d 1020 (motion for a stay pending appeal is not directed against the judgment).) Thus, even if we were to construe the defendant's section 2-611 motion as one seeking modification of the judgment or "other relief," it was not a post-trial motion within the meaning of Supreme Court Rule 303(a), because it was not "directed against the judgment."

Our conclusion that the section 2-611 motion at issue was not a post-trial motion does not answer the question of whether the plaintiffs' appeal was properly dismissed. We must determine what effect the filing of a section 2-611 motion for attorney fees has on the appealability of the underlying judgment.

Supreme Court Rule 304(a) governs the timing of appeals from final orders not...