{
  "id": 2613322,
  "name": "LOWELL KOUSINS et al., on behalf of themselves and all other persons similarly situated, Plaintiffs-Appellants, v. JACK ANDERSON, County Collector and County Treasurer of Lake County, et al., Defendants-Appellees",
  "name_abbreviation": "Kousins v. Anderson",
  "decision_date": "1989-04-12",
  "docket_number": "No. 2\u201488\u20140764",
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  "last_updated": "2023-07-14T16:06:12.370658+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "LOWELL KOUSINS et al., on behalf of themselves and all other persons similarly situated, Plaintiffs-Appellants, v. JACK ANDERSON, County Collector and County Treasurer of Lake County, et al., Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nPlaintiffs appeal from the order of the circuit court of Lake County dismissing their amended complaint with prejudice. The trial court held that plaintiffs had an adequate remedy at law and therefore the court lacked jurisdiction in. equity to hear plaintiffs\u2019 claims. Appeal dismissed.\nThe named plaintiffs, Lowell and Carol Kousins, reside in Lake County, Illinois. Plaintiffs\u2019 real estate taxes for the year 1984 were $3,856.98. This tax liability was to be paid in two equal installments of $1,928.49. The first installment was due on June 2, 1985, and the second installment due on September 3, 1985. Plaintiffs made their first installment payment on July 12,1985.\nOn or about July 21, 1985, plaintiffs received notice that they were being charged a penalty of $57.85 because their payment was delinquent. This penalty was calculated as lx!z% per month on the unpaid installment, or $28.92 for June and July. Plaintiffs paid the $57.85 penalty on July 21,1985.\nPlaintiffs filed a complaint on March 28, 1988, and an amended class action complaint on April 13, 1988. Plaintiffs contended, inter alia, that any penalty imposed after the date of payment is unauthorized. Plaintiffs sought injunctive and declaratory relief. Defendants filed a motion to dismiss.\nOn June 22, 1988, the court granted defendants\u2019 motion to dismiss with prejudice. The court found that the Revenue Act of 1939 provided plaintiffs with an adequate remedy at law by which they could contest the charge. (111. Rev. Stat. 1987, ch. 120, par. 716.) Also, the court found that, while sitting as a court of equity, it did not have jurisdiction to rule on plaintiffs\u2019 claims.\nOn June 29, 1988, defendants filed a motion for attorney fees and costs pursuant to section 2 \u2014 611 of the Illinois Code of Civil Procedure (III. Rev. Stat. 1987, ch. 110, par. 2 \u2014 611). On July 11, 1988, plaintiffs filed a motion to dismiss defendants\u2019 motion and their own motion for attorney fees and costs pursuant to section 2 \u2014 611. On July 13, 1988, plaintiffs filed a notice of appeal. Plaintiffs appeal from the June 22, 1988, order dismissing their complaint with prejudice.\nBefore addressing the merits of this case, we must first determine if this court has jurisdiction to hear this appeal since there are pending section 2 \u2014 611 motions and there is no finding pursuant to Rule 304(a) by the trial court. 107 111. 2d R. 304(a).\nSupreme Court Rule 304(a) provides in pertinent part:\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.\u201d (107 Ill. 2d R. 304(a).)\nSection 2 \u2014 611 of the Illinois Code of Civil Procedure provides in pertinent part:\n\u201cAll proceedings under this Section shall be within, and part of the civil action in which the pleading, motion or other paper referred to herein has been filed, and no violation or alleged violation of this Section shall give rise to a separate cause of action, or another cause of action within the civil action in question, by, on behalf of or against any party to the civil action in question, and by, on behalf of or against any attorney or insurance company involved in the civil action in question.\u201d (111. Rev. Stat. 1987, ch. 110, par. 2-611.)\nThe above language was added to section 2 \u2014 611 when the section was amended by Public Act 84 \u2014 1431, effective November 25,1986.\nPrior to the amendment, in Hise v. Hull (1983), 116 Ill. App. 3d 681, the court dismissed an appeal from an order granting a motion to dismiss. A request for section 2 \u2014 611 sanctions was included in the motion and had not been ruled upon prior to the filing of a notice of appeal. The court held that in the absence of a Rule 304(a) finding, it was not an appealable order because it did not dispose of all pending claims. (Hise, 116 Ill. App. 3d at 684.) The court stated, however, that had the section 2 \u2014 611 claim not been included in the motion to dismiss and been timely filed after the judgment was entered, the pending section 2 \u2014 611 claim would not prevent an appeal from the decision on the initial claim absent a Rule 304(a) finding. (Hise, 116 Ill. App. 3d at 684.) This decision was affirmed in Withall v. Capitol Federal Savings of America (1987), 164 Ill. App. 3d 851 (court held that section 2 \u2014 611 claims could be brought as separate actions and would not affect the appealability of the disposition of the underlying claims).) Both Hise and Withall were decided prior to the amending of section 2 \u2014 611.\nThis court has recently had the opportunity to interpret section 2 \u2014 611 as amended. In Palmisano v. Connell (1989), 179 Ill. App. 3d 1089, we held \u201cthat if a section 2 \u2014 611 claim is timely filed, no appeal may be taken from the underlying judgment absent a Rule 304(a) finding until the section 2 \u2014 611 claim is resolved.\u201d (Palmisano, 179 Ill. App. 3d at 1095.) \u201cIt is clear *** that section 2 \u2014 611 claims must now be considered part of the civil action which gave rise to the claim and cannot be considered separate actions.\u201d Palmisano, 179 Ill. App. 3d at 1095; see also Herman v. Fitzgerald (1989), 178 Ill. App. 3d 865, 869.\nIn the case at bar, the motions for sanctions pursuant to section 2 \u2014 611 were timely filed and must be considered part of the underlying claim. Absent a resolution of the section 2 \u2014 611 claims, or the requisite Rule 304(a) finding that there is no just reason to delay enforcement or appeal from the order dismissing the complaint, our jurisdiction is not invoked.\nFor the above-stated reasons we must dismiss the instant appeal.\nAppeal dismissed.\nUNVERZAGT, P.J., and DUNN, J., concur.",
        "type": "majority",
        "author": "JUSTICE McLAREN"
      }
    ],
    "attorneys": [
      "Larry D. Drury, of Larry D. Drury, Ltd., of Chicago, for appellants.",
      "Fred L. Foreman, State\u2019s Attorney, of Waukegan (Helen S. Rozenberg and Joseph E. Kolar, Assistant State\u2019s Attorneys, of counsel), for appellees."
    ],
    "corrections": "",
    "head_matter": "LOWELL KOUSINS et al., on behalf of themselves and all other persons similarly situated, Plaintiffs-Appellants, v. JACK ANDERSON, County Collector and County Treasurer of Lake County, et al., Defendants-Appellees.\nSecond District\nNo. 2\u201488\u20140764\nOpinion filed April 12, 1989.\nRehearing denied April 21, 1989.\nLarry D. Drury, of Larry D. Drury, Ltd., of Chicago, for appellants.\nFred L. Foreman, State\u2019s Attorney, of Waukegan (Helen S. Rozenberg and Joseph E. Kolar, Assistant State\u2019s Attorneys, of counsel), for appellees."
  },
  "file_name": "0827-01",
  "first_page_order": 849,
  "last_page_order": 851
}