Sims v. Atkins

• Decision Date: 07 September 2021
• Docket Number: Appeal No. 3-19-0456
• Citation: 2021 IL App (3d) 190456,194 N.E.3d 19,456 Ill.Dec. 900
• Parties: Johnnie SIMS, Plaintiff-Appellant, v. William ATKINS, David Buss, Dustin Johnson, and Ann Marie Yeagle, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

2021 IL App (3d) 190456

194 N.E.3d 19

456 Ill.Dec. 900

Johnnie SIMS, Plaintiff-Appellant,

v.William ATKINS, David Buss, Dustin Johnson, and Ann Marie Yeagle, Defendants-Appellees.

Appeal No. 3-19-0456

Appellate Court of Illinois, Third District.

Filed September 7, 2021

Johnnie Sims, of Peoria, appellant pro se.

William W.P. Atkins, of Johnson, Bunce & Noble, P.C., of Peoria, for appellee William Atkins.

Chrissie Peterson and Michael Toren, of Peoria, for appellee David Buss.

Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Janon Fabiano, Assistant Attorney General, of counsel), for other appellees.

JUSTICE LYTTON delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Johnnie Sims filed a civil complaint against defendants, alleging wrongdoing at or before his December 13, 2016, criminal trial. Attached to plaintiff's complaint was an application to sue as a poor person. The trial court denied plaintiff's application and ordered him to pay filing fees. When plaintiff failed to do so, the trial court entered an order dismissing his complaint. Plaintiff appeals, arguing that the trial court improperly denied his application to sue as a poor person. We reverse and remand.

¶ 2 I. BACKGROUND

¶ 3 In November 2015, plaintiff was charged with possession of a weapon by a felon ( 720 ILCS 5/24-1.1 (West 2014) ). On or about December 1, 2015, plaintiff retained defendant William Atkins to represent him in his criminal case. Plaintiff's criminal trial commenced on December 13, 2016. At the conclusion of the trial, plaintiff was found guilty and the trial court sentenced him to seven years in prison.

¶ 4 On December 28, 2018, plaintiff filed a five-count complaint against defendants. In count I, plaintiff alleged that Atkins committed constructive fraud by requiring him to pay $5500 for an expert witness. Plaintiff alleged that he paid $2000 to Atkins in January 2016 and $3500 to Atkins in March 2016 for an expert witness to testify at his criminal trial, but no expert testified. In count II, plaintiff alleged breach of fiduciary duty against Atkins for agreeing to a stipulation with the State regarding the expected testimony of Peoria police officer David Buss. In count III, plaintiff alleged that Buss concealed physical evidence at plaintiff's criminal trial. In count IV, plaintiff alleged that Dustin Johnson, a forensic scientist, committed perjury at plaintiff's criminal trial. Finally, in count V, plaintiff alleged that Ann Marie Yeagle, a forensic scientist, committed perjury at plaintiff's criminal trial. Plaintiff sought return of the $5500 he paid to Atkins, as well as lost income of $375,000 and $191,625 for pain and suffering.

¶ 5 Attached to plaintiff's complaint was an "Application to Sue or Defend as a Poor Person" completed by plaintiff. In the application, plaintiff alleged that he was a poor person and unable to pay the costs, fees, and expenses of his civil action. He alleged that he was not currently employed due to his imprisonment at Taylorville Correctional Center but stated he receives $15 per month for work he performs there. He denied receiving any other income or support and denied owning any real estate, motor vehicles, bank accounts, or other property of value. He stated that his total income for the preceding year was $200 and that he expected his income in the future to be $200 per year. Attached to the application were statements showing the balance of plaintiff's prison trust fund from June 2018 to November 2018. As of November 27, 2018, plaintiff had no funds available. The Taylorville Correctional Center account supervisor issued a certificate on November 29, 2018, stating that plaintiff had no funds in his prison trust account.

¶ 6 On January 16, 2019, the trial court issued an order denying plaintiff's application to sue as a poor person, stating that plaintiff did not qualify for a fee waiver because "[p]er allegations in the complaint, plaintiff has access to funds." The trial court ordered plaintiff to pay all applicable fees, costs, or charges by January 31, 2019. Between late February and early March 2019, defendants filed motions to dismiss plaintiff's complaint.

¶ 7 On March 7, 2019, the trial court entered an order stating: "Plaintiff has not paid filing fees. No further correspondence will be accepted by the Circuit Clerk's office until fees are paid." On March 25, 2019, plaintiff filed a motion to reconsider the trial court's order denying his application to sue as a poor person or, alternatively, defer all costs and fees until the conclusion of his case. On June 21, 2019, the trial court entered an order dismissing plaintiff's case for failing to appear and failing to pay court fees.

¶ 8 II. ANALYSIS

¶ 9 The waiver of court-imposed charges for self-represented litigants in Illinois is governed by section 5-105 of the Code of Civil Procedure (Code) ( 735 ILCS 5/5-105 (West 2020) ) and Illinois Supreme Court Rule 298 (eff. July 1, 2019). In re Marriage of Main , 2020 IL App (2d) 200131, ¶ 21, 447 Ill.Dec. 854, 175 N.E.3d 222. To qualify for a waiver of court costs, fees, and charges, a litigant must submit an application that is "sufficient to allow a court to determine whether an applicant qualifies for full or partial waiver of assessments pursuant to 735 ILCS 5/5-105, and shall include information regarding the applicant's household composition, receipt of need-based public benefits, income, expenses, and nonexempt assets." Ill. S. Ct. R. 298(a)(1) (eff. July 1, 2019); 735 ILCS 5/5-105(c) (West 2020). An application must contain details showing that the applicant does not possess the means of prosecuting or defending a suit and fully paying the costs thereof. See Tracy v. Bible , 181 Ill. 331, 333, 54 N.E. 960 (1899). The court may enter a ruling based on the application itself or hold a hearing at which the court may order the applicant to produce copies in support of the application. Ill. S. Ct. R. 298(b) (eff. July 1, 2019). If the opposing party does not contest the contents of an application or challenge the applicant's credibility, the court should accept the information contained in the application as true. See People v. Djurdjulov , 2017 IL App (1st) 142258, ¶¶ 49-50, 416 Ill.Dec. 854, 86 N.E.3d 1139.

¶ 10 "If the court finds that the applicant is an indigent person, the court shall grant the applicant a full fees, costs, and charges waiver entitling him or her to sue or defend the action without payment of any of the fees, costs, and charges." 735 ILCS 5/5-105(b)(1) (West 2020). Section 5-105(a)(2) of the Code defines an " ‘[i]ndigent person’ " as one who meets one or more of the following criteria:

"(i) He or she is receiving assistance under one or more of the following means-based governmental public benefits programs: Supplemental Security Income (SSI), Aid to the Aged, Blind and Disabled (AABD), Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), General Assistance, Transitional Assistance, or State Children and Family Assistance.

(ii) His or her available personal income is 125% or less of the current poverty level, unless the applicant's assets that are not exempt under Part 9 or 10 of Article XII of this Code are of a nature and value that the court determines that the applicant is able to pay the fees, costs, and charges.

(iii) He or she is, in the discretion of the court, unable to proceed in an action without payment of fees, costs, and charges and whose payment of those fees, costs, and charges would result in substantial hardship to the person or his or her family.

(iv) He or she is an indigent person pursuant to Section 5–105.5 of this Code." Id. § 5-105(a)(2).

Section 5-105.5 of the Code defines an " ‘[i]ndigent person’ " as "a person whose income is 125% or less of the current official federal poverty income guidelines or who is otherwise eligible to receive civil legal services under the eligibility guidelines of the civil legal services provider or court-sponsored pro bono program." Id. § 5-105.5(a). " ‘Poverty level’ means the current poverty level as established by the United States Department of Health and Human Services." Id. § 5-105(a)(3).

¶ 11 "If the court determines that the conditions for a full assessment waiver under 735 ILCS 5/5-105(b)(1) are satisfied, it shall enter an order permitting the applicant to sue or defend without payment of assessments, costs or charges." Ill. S. Ct. R. 298(b) (eff. July 1, 2019). If the court denies an application, "the court shall enter an order to that effect specifying the reasons for the denial." Id. The requirement that a court specify its reasons for denying an application is "designed to protect a party's right to meaningful appellate review of a trial court's denial of his or her application to sue or defend as an indigent person." Walsh v. Will County Adult Detention Facility , 2015 IL App (3d) 140246, ¶ 11, 391 Ill.Dec. 741, 31 N.E.3d 417.

¶ 12 The current provisions of section 5-105 of the Code and Rule 298 are relatively new. Section 5-105 was materially and substantially changed by the legislature in 1999, and Rule 298 was amended in 2003. See Pub. Act 91-621, § 5 (eff. Aug. 19, 1999); Ill. S. Ct. R. 298, (eff. Nov. 1, 2003).

¶ 13 Prior to the legislature's 1999 revisions, section 5-105 of the Code provided:

"If any court shall, before or after the commencement of an action, be satisfied that the plaintiff or defendant is a poor person, and unable to prosecute or defend the action and pay the costs and expenses thereof, the court may, in its discretion , permit him or her to commence and prosecute the action, or defend the action, as a poor person, and thereupon such person shall have all the necessary processes, appearances and proceedings, as in other civil cases, without fees or charges." (Emphasis added.) 735 ILCS 5/5-105 (West 1998).

Based on the above language, for more than 150 years, Illinois courts held that the...