{
  "id": 3519302,
  "name": "RICHARD B. HISE, Plaintiff-Appellant, v. A. LEWIS HULL et al., Defendants-Appellees",
  "name_abbreviation": "Hise v. Hull",
  "decision_date": "1983-07-26",
  "docket_number": "No. 4\u201482\u20140726",
  "first_page": "681",
  "last_page": "685",
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      "cite": "116 Ill. App. 3d 681"
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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    {
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    {
      "cite": "13 Ill. 2d 200",
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  "analysis": {
    "cardinality": 450,
    "char_count": 9074,
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  "last_updated": "2023-07-14T17:34:21.721217+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "RICHARD B. HISE, Plaintiff-Appellant, v. A. LEWIS HULL et al., Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "JUSTICE MILLS\ndelivered the opinion of the court:\nAttorney fees.\nUnder section 2 \u2014 611 of the Code of Civil Procedure.\nThe trial judge dismissed Hise\u2019s complaint for failure to state a cause of action. Hise filed an amended complaint. Again, the trial judge dismissed the amended complaint, but reserved for future hearing the defendants\u2019 motion for section 2 \u2014 611 attorney fees. Hise appealed to this court.\nWe must dismiss his appeal.\nThe pertinent facts follow:\nRichard Hise\u2019s wife, Patricia, filed for a legal separation. She retained the law firm of Hull, Campbell, Robinson & Gibson (the law firm) to represent her. After a hearing, the trial judge entered a judgment of legal separation and a decree of partition, ordering certain real property owned by Patricia to be sold and the proceeds used to pay marital debts.\nThe property was sold. The proceeds \u2014 $8,245.87\u2014were placed in the law firm\u2019s trust account. Patricia then terminated the law firm\u2019s services. The firm acknowledged the termination and informed Patricia that she owed them $1,219.70 in legal fees. Patricia failed to pay the fees and the firm mailed Richard Hise\u2019s attorney a check for $7,026.17 \u2014 the amount representing the difference between the monies held in the trust account and the fees Patricia owed the firm. Richard Hise\u2019s attorney never cashed the check.\nFive months later, the trial court entered a modified judgment incorrectly stating that Patricia\u2019s land \u201chas been sold and the net proceeds of said sale, after the payment of expenses thereof, in the amount of $8,245.87 are presently being held in the trust account of Attorney Michael I. Campbell by agreement of the parties, and for the use and benefit of the parties, subject to the order of the Court as to the use and distribution of said proceeds.\u201d\nNext, Hise filed a complaint against the law firm. He alleged that the firm had breached its fiduciary duty to him by retaining the $1,219.70 in legal fees. Arguing that a fiduciary relationship never existed between Hise and the law firm for Patricia, the firm moved to dismiss his complaint. Judge Hendrian allowed the firm\u2019s motion and granted Hise leave to file an amended complaint.\nHise then filed an amended complaint which \u2014 for all practical purposes \u2014 simply restated the allegations in his original complaint. The law firm moved to dismiss the amended complaint and also asked the court to assess section 2\u2014611 attorney fees and expenses (Ill. Rev. Stat. 1981, ch. 110, par. 2\u2014611, formerly Ill. Rev. Stat. 1979, ch. 110, par. 41) against Hise because the amended complaint contained false statements. Finding that Hise\u2019s amended complaint failed to state a cause of action, Judge Hendrian dismissed the amended complaint but reserved for future hearing the law firm\u2019s motion for section 2 \u2014 611 attorney fees. (Judge Hendrian did not find in the order that there was no just reason for delaying enforcement or appeal of the order.)\nWe must dismiss this appeal because Judge Hendrian\u2019s order was not a final judgment as to all of the claims in the action\u2014he reserved ruling on the law firm\u2019s claim for section 2 \u2014 611 attorney fees. Without a Supreme Court Rule 304(a) finding \u2014 that there is no just reason for delaying enforcement or appeal \u2014 a judgment that does not dispose of all the claims in an action is not an appealable order.\nSupreme Court Rule 304(a)\nSupreme Court Rule 304(a) (87 Ill. 2d R. 304(a)) states:\n\u201cIf multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. *** In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.\u201d\nThe Supreme Court of Illinois (in dealing with section 50(2) of the Civil Practice Act (Ill. Rev. Stat. 1957, ch. 110, par. 50(2)), predecessor to Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a))), stated in Ariola v. Nigro (1958), 13 Ill. 2d 200, 206, 148 N.E.2d 787, 791:\n\u201cThe language of section 50(2), as well as the comments of the committee which drafted it, indicate that a flexible and reasonable meaning was intended for the \u2018claims\u2019 to which the section refers. The section itself speaks in terms of a final judgment or decree that adjudicates less than \u2018all the claims or rights and liabilities;\u2019 (emphasis supplied,) and upon two occasions the advisory committee comments that its provisions are to take effect when there is a final judgment adjudicating fewer than \u2018all the matters involved.\u2019 (Smith-Hurd Anno. Stat., Perm. Ed. chap. 110, sec. 50(2), Joint Committee Comments.)\u201d\nSection 2 \u2014 611 Attorney Fees\nSection 2\u2014611 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2\u2014611, formerly Ill. Rev. Stat. 1979, ch. 110, par. 41) provides:\n\u201cAllegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney\u2019s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.\u201d\nThe law firm\u2019s demand for section 2\u2014611 attorney fees is a \u201cclaim\u201d as that term is used in Rule 304(a). The attorney fees claim meets all of the criteria for a Rule 304(a) claim outlined by the court in Ariola: It is a matter involved in the action, it is a possible right of the law firm, and it is a possible liability for Hise. Consequently, when the trial court reserved its ruling on the section 2\u2014611 claim without making a Rule 304(a) finding, the order disposing of the initial claim was not appealable because it did not dispose of all the claims in the action.\nErgo, we must dismiss the appeal.\nOur holding here does not necessarily mean that every section 2 \u2014 611 claim will prevent the judgment disposing of the initial claim from being appealable without a Rule 304(a) finding by the trial court. A section 2 \u2014 611 claim may be brought as a separate action anytime within 30 days after the judgment disposing of the initial claim. The trial court\u2019s failure to rule on a section 2 \u2014 611 claim brought after disposition of the initial claim will not prevent the order disposing of the initial claim from being appealable without a Rule 304(a) finding. Where, however, the section 2 \u2014 611 claim is brought as a part of the responsive pleading \u2014 for example in a motion to dismiss or in a motion for summary judgment or in an answer \u2014 it becomes part of the same action and must be disposed of by the judgment, or a Rule 304(a) finding must be entered before the trial court\u2019s order is appeal-able.\nIn the case at bench, if the law firm had filed its claim for section 2 \u2014 611 fees after the trial court had dismissed Hise\u2019s amended complaint, the fact that the claim was unresolved would not have prevented the trial court\u2019s order dismissing the amended complaint from being an appealable order without a Rule 304(a) finding. Instead, the law firm, by asserting the section 2 \u2014 611 claim in its motion to dismiss, chose to bring the claim as part of Hise\u2019s action and therefore a Rule 304(a) ruling was necessary.\nThis situation is analogous to that which occurs when a trial court\u2019s order leaves unresolved a defendant\u2019s counterclaim. When a defendant has a claim against a plaintiff, he may bring it either as a counterclaim in the plaintiff\u2019s action or he may bring it as a separate action. If he brings a separate action, the resolution or lack of resolution of his claim has no effect on the appealability of the order disposing of the plaintiff\u2019s original claim. If, however, the defendant chooses to raise his claim as a counterclaim, it must be resolved by the trial court or a Rule 304(a) finding must be entered before the order disposing of the plaintiff\u2019s claim is appealable. See Chicago Miniature Lamp Works, Inc. v. D\u2019Amico (1979), 78 Ill. App. 3d 269, 397 N.E.2d 138; Bell v. Home Federal Savings & Loan Association (1976), 38 Ill. App. 3d 652, 348 N.E.2d 527.\nOne final note. Our holding today is limited to the effect of an unresolved section 2 \u2014 611 claim for attorney fees on the appealability of an order disposing of all other claims in the case. The issue of whether other types of claims for attorney fees must be resolved before an order is appealable is not before us, and we have expressly avoided that issue herein.\nAppeal dismissed.\nWEBBER, RJ., and GREEN, J., concur.",
        "type": "majority",
        "author": "JUSTICE MILLS"
      }
    ],
    "attorneys": [
      "Stone and Stone Law Offices, of Sullivan (Paul L. Stone, of counsel), for appellant.",
      "No appearance for appellees."
    ],
    "corrections": "",
    "head_matter": "RICHARD B. HISE, Plaintiff-Appellant, v. A. LEWIS HULL et al., Defendants-Appellees.\nFourth District\nNo. 4\u201482\u20140726\nOpinion filed July 26, 1983.\nStone and Stone Law Offices, of Sullivan (Paul L. Stone, of counsel), for appellant.\nNo appearance for appellees."
  },
  "file_name": "0681-01",
  "first_page_order": 703,
  "last_page_order": 707
}