{ "id": 2528547, "name": "JOHN E. LEWY, as Ex'r of the Estate of Stanley B. Lewy, Deceased, Plaintiff, v. KOECKRITZ INTERNATIONAL, INC., Defendant-Appellee (Paul E. Freehling et al., Appellants)", "name_abbreviation": "Lewy v. Koeckritz International, Inc.", "decision_date": "1991-02-21", "docket_number": "No. 1\u201490\u20141127", "first_page": "330", "last_page": "337", "citations": [ { "type": "official", "cite": "211 Ill. App. 3d 330" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "775 F.2d 535", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 41945 ], "opinion_index": 0, "case_paths": [ "/f2d/775/0535-01" ] }, { "cite": "532 N.E.2d 595", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "600" } ], "opinion_index": 0 }, { "cite": "177 Ill. App. 3d 615", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3621787 ], "pin_cites": [ { "page": "623" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/177/0615-01" ] }, { "cite": "360 N.E.2d 458", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "460-61" } ], "opinion_index": 0 }, { "cite": "45 Ill. App. 3d 1053", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2894762 ], "pin_cites": [ { "page": "1057" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/1053-01" ] }, { "cite": "326 N.E.2d 556", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "559" } ], "opinion_index": 0 }, { "cite": "27 Ill. App. 3d 495", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2863491 ], "pin_cites": [ { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/27/0495-01" ] }, { "cite": "446 N.E.2d 1224", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "pin_cites": [ { "page": "1228" } ], "opinion_index": 0 }, { "cite": "113 Ill. App. 3d 157", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3625946 ], "year": 1975, "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0157-01" ] }, { "cite": "398 N.E.2d 126", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "129" } ], "opinion_index": 0 }, { "cite": "78 Ill. App. 3d 1123", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5602393 ], "pin_cites": [ { "page": "1127" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/78/1123-01" ] }, { "cite": "117 F.R.D. 121", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 7855811 ], "opinion_index": 0, "case_paths": [ "/frd/117/0121-01" ] }, { "cite": "511 N.E.2d 831", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "835-36" } ], "opinion_index": 0 }, { "cite": "158 Ill. App. 3d 218", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3577601 ], "year": 1987, "pin_cites": [ { "page": "224" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/158/0218-01" ] }, { "cite": "530 N.E.2d 1041", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1045" } ], "opinion_index": 0 }, { "cite": "176 Ill. App. 3d 64", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3587476 ], "pin_cites": [ { "page": "71" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/176/0064-01" ] }, { "cite": "529 N.E.2d 1086", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "1090" }, { "page": "1090" } ], "opinion_index": 0 }, { "cite": "175 Ill. App. 3d 574", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3553948 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "580" }, { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/175/0574-01" ] }, { "cite": "547 N.E.2d 762", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "765" } ], "opinion_index": 0 }, { "cite": "191 Ill. App. 3d 347", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2513550 ], "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/191/0347-01" ] }, { "cite": "542 N.E.2d 375", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "377" }, { "page": "378" } ], "opinion_index": 0 }, { "cite": "185 Ill. App. 3d 739", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2648652 ], "weight": 2, "pin_cites": [ { "page": "743" }, { "page": "744" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/185/0739-01" ] }, { "cite": "340 N.E.2d 678", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "34 Ill. App. 3d 922", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2959315 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/34/0922-01" ] } ], "analysis": { "cardinality": 753, "char_count": 16260, "ocr_confidence": 0.733, "pagerank": { "raw": 4.586746236605302e-07, "percentile": 0.9255186306228664 }, "sha256": "b5d08d69bebac3b23972131759ce79d461792e1ef51286cb609fb612be852104", "simhash": "1:f369bda4fc4f3e96", "word_count": 2727 }, "last_updated": "2023-07-14T14:56:54.383547+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOHN E. LEWY, as Ex\u2019r of the Estate of Stanley B. Lewy, Deceased, Plaintiff, v. KOECKRITZ INTERNATIONAL, INC., Defendant-Appellee (Paul E. Freehling et al., Appellants)." ], "opinions": [ { "text": "JUSTICE LINN\ndelivered the opinion of the court:\nThe circuit court of Cook County awarded attorney fees and costs to defendant, Koeckritz International, Inc., under Illinois Supreme Court Rule 137 (134 Ill. 2d R. 137). The court entered the amended order against attorneys Paul Freehling and Cynthia Johnson, who represented plaintiff John Lewy, as executor of the estate of Stanley Lewy Freehling and Johnson appeal, contending that the trial court exceeded its discretion in making the award.\nWe reverse the order of the trial court.\nBackground\nThe record contains the following uncontested facts. On December 7, 1987, plaintiff brought an action against defendant for breach of contract. Defendant filed its answer on March 17, 1988. During pretrial discovery plaintiff sought from defendant certain sales records that pertained to the dispute. Defendant was delinquent in producing the documents. On June 5, 1989, Judge Myron Gomberg awarded plaintiff $6,062 in attorney fees as a discovery sanction pursuant to Supreme Court Rule 219(c). See 107 Ill. 2d R. 219(c).\nDefendant, however, was delinquent also in paying the discovery sanction. As a result, on July 19, 1989, plaintiff filed a motion in which he sought a judgment on the merits. Plaintiff observed that the \u201clesser sanctions available under [Supreme Court Rule] 219(c) have already been entered against defendant once and had no effect on the defendant\u2019s conduct.\u201d Based on Supreme Court Rule 219(c) and cases such as 612 North Michigan Avenue Building Corp. v. Factsystem, Inc. (1975), 34 Ill. App. 3d 922, 340 N.E.2d 678, plaintiff sought \u201can order striking defendant\u2019s answer and entering judgment in favor of the plaintiff as well as the entry of an order directing defendant to pay all of plaintiff\u2019s attorneys\u2019 fees and costs incurred in connection with this motion.\u201d\nOn July 28, 1989, a hearing was held before Judge Edwin Berman on plaintiff\u2019s motion. (Judge Thomas Quinn had assumed Judge Gomberg\u2019s call, and Judge Berman heard Judge Quinn\u2019s motions that day.) Johnson appeared on behalf of plaintiff and Cynthia Manestar appeared on behalf of defendant. The record shows in pertinent part:\n\u201cMS. MANESTAR: Your Honor, pardon my interruption; I don\u2019t know that we \u2014 she\u2019s going to the merits.\n* * *\nMS. JOHNSON: The order we\u2019re here on is an order for sanctions that was entered on June 5th granting us $6,000 in fees.\nThose fees have not been paid. We made two demands for payment. I cannot imagine what their [defendant\u2019s] failure to respond is. Either they pay the fees, or they should be defaulted.\nTHE COURT: Did you [plaintiff] ask for default?\nMS. JOHNSON: Yes, I did, your Honor.\nI\u2019d be happy to, if you wanted, to [draw] an order setting a date certain for payment of fees, and, in the alternative, a default judgment entered at that time.\nTHE COURT: Was there a judgment entered against you [defendant]?\nMS. MANE STAR: Against the client, yes it was.\nTHE COURT: Against the client, not against the attorneys?\nMS. JOHNSON: That\u2019s correct, your Honor.\nTHE COURT: How can the lawyer force the client to pay. All you can do is get a judgment, execute a judgment.\nMS. JOHNSON: Well, I\u2019m not asking that the judgment be entered against the attorneys. *** We\u2019re asking the defendant to either pay these by a date certain or have default judgment entered against him.\n* * *\nTHE COURT: Is this motion to get the $6,000, is that what it\u2019s all about?\nMS. MANE STAR: That is all it is.\nTHE COURT: That\u2019s all?\nMS. MANE STAR: Twenty one days?\nTHE COURT: Twenty one days to pay. Or you can come in for the judgment. That\u2019s been heard already; evidently [Judge Gomberg] granted judgment.\nMS. JOHNSON: That\u2019s correct.\nTHE COURT: You have to get your relief from Judge Gomberg, not from me. All I\u2019m dealing with is an order to pay $6,000. *** Twenty one days to pay or convert it to a judgment.\u201d\nDefendant\u2019s attorney drafted an order that provided in pertinent part:\n\u201c1. Defendant, KOECKRITZ INTERNATIONAL, INC. is ordered to pay the sanctions in the amount of $6,062.00 imposed against it by order dated June 5, 1989 within 21 days from the date hereof (August 18,1989).\n2. If said sanctions are not paid on or before August 18, 1989 default judgment will be entered against Defendant KOECKRITZ INTERNATIONAL, INC.\u201d\nDefendant failed to pay the $6,062. On August 24, 1989, plaintiff appeared before Judge Quinn and asked for a default judgment. Attorneys Freehling and Johnson advised Judge Quinn that the term \u201cdefault judgment\u201d contained in the July 28 order referred to a judgment on the merits and not only on the award of attorney fees. After reviewing the order, Judge Quinn entered a default judgment against defendant on the merits.\nThe next day, August 25, 1989, defendant filed a \u201cMotion For Clarification Or Reconsideration\u201d of the July 28 order. Defendant interpreted the order to provide that plaintiff \u201cwould have rights to enforce a judgment for the $6,062.00, but was not entitled to a default judgment on the merits of the underlying case.\u201d\nOn September 8, 1989, Judge Berman granted defendant\u2019s motion for clarification or reconsideration of the July 28 order. He found that the term \u201cdefault judgment\u201d in his July 28 order referred only to a judgment on the sanctions award and not on the case in chief. Judge Berman also granted defendant leave to petition for attorney fees under Supreme Court Rule 137 (134 Ill. 2d R. 137). On September 18, 1989, defendant filed a petition for attorney fees and costs. Defendant alleged that Freehling and Johnson misinformed Judge Quinn as to the scope and extent of the July 28 order, despite Judge Berman\u2019s clear ruling that the July 28 order went only to the sanctions award.\nOn October 18, 1989, the trial court held a hearing on defendant\u2019s petition for Rule 137 sanctions. Judge Berman found that he \u201cclearly stated\u201d what his July 28 order encompassed. He stated: \u201cI\u2019m sure it [the July 28 order] was explained to counsel. I know I explained it to her, or whoever appeared.\u201d He further found that the meaning of the order \u201cwas clear from the court reporter\u2019s record.\u201d Judge Berman subsequently stated: \u201cI explicitly said I\u2019m only dealing with the sanction order. You\u2019ll have to go to Judge Gomberg for further relief.\u201d When Johnson noted that plaintiff asked for a judgment on the merits, Judge Berman responded as follows:\n\u201cI know. I denied it, and again, I\u2019m very happy there was a court reporter here. I said in clear language that all I was dealing with was the 6,000 and nothing else dealing with the case and reduced that to a judgment of 21 days, if he [defendant] didn\u2019t pay it. That\u2019s all I did, and if you\u2019ve used my order as a basis to get a complete default against them before Judge Quinn saying I had granted this, you clearly were in error.\u201d\nOn April 16, 1990, Judge Berman entered an amended order, where he found that Johnson \u201cdeliberately\u201d used the July 28, 1989, order, \u201cwhich related only to the $6,062.00 sanctions *** to obtain a prove-up for a default judgment on the merits of the case itself. Ms. Johnson did so, after being instructed in open court, that my ruling on her motion for a default judgment applied only to the $6,062.00 sanctions award.\u201d Judge Berman awarded defendant $2,483.27 in attorney fees and costs. The court assessed the award against Freehling and Johnson jointly and severally. Freehling and Johnson appeal.\nOpinion\nSupreme Court Rule 137, which superseded amended section 2\u2014611 of the Code of Civil Procedure, requires an attorney to sign pleadings and other papers filed with the court. By his signature, the attorney certifies that he has made a reasonable inquiry into the basis of the pleading or other paper, and believes that it is well grounded in fact, warranted by existing law or a good-faith argument for a change in existing law, and is being made in good faith. Pleadings and other papers filed in violation of Rule 137 may subject the party, the party\u2019s attorney, or both, to an appropriate sanction. That sanction may include an order to pay the other party\u2019s attorney fees and costs. 134 Ill. 2d R. 137, superseding Ill. Rev. Stat. 1989, ch. 110, par. 2\u2014611.\nRule 137 is intended to prevent counsel from making assertions of fact or law without support (In re Custody of Caruso (1989), 185 Ill. App. 3d 739, 743, 542 N.E.2d 375, 377), whether the assertions be written or oral. (Modern Mailing Systems, Inc. v. McDaniels (1989), 191 Ill. App. 3d 347, 351, 547 N.E.2d 762, 765.) The test is what was reasonable under the circumstances. In evaluating the conduct of an attorney or party who signs a document or makes a motion, a court must determine what was reasonable to believe at that time rather than engage in hindsight. (Washington v. Allstate Insurance Co. (1988), 175 Ill. App. 3d 574, 580, 529 N.E.2d 1086, 1090.) Since Rule 137 is penal in nature, a court must strictly construe its provisions. Diamond Mortgage Corn. v. Armstrong (1988), 176 Ill. App. 3d 64, 71, 530 N.E.2d 1041, 1045.\nFurther, Rule 137 and its predecessor provision are almost identical to Rule 11 of the Federal Rules of Civil Procedure. Thus, Illinois courts may seek, guidance in the Federal courts\u2019 interpretation of Rule 11. (Frisch Contracting Service Co. v. Personnel Protection, Inc. (1987), 158 Ill. App. 3d 218, 224, 511 N.E.2d 831, 835-36.) Rule 11 sanctions have been imposed against an attorney who purposely misrepresented a judge\u2019s order to another judge. Taylor v. Wagner (N.D. Ill. 1987), 117 F.R.D. 121.\nAlso, a court of review will disturb a trial court\u2019s imposition of sanctions only where the court exceeded its discretion. (Caruso, 185 Ill. App. 3d at 744, 542 N.E.2d at 378.) A trial court exceeds its discretion only where no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the trial court\u2019s actions, then a reviewing court cannot say that the trial court exceeded its discretion. In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126, 129.\nFreehling and Johnson claim that the trial court exceeded its discretion in imposing Rule 137 sanctions against them. They contend that they misunderstood Judge Berman\u2019s July 28, 1989, order and that Rule 137 does not authorize sanctions for misunderstandings.\nWe agree. After closely examining the entire record, we conclude that Freehling and Johnson could reasonably have interpreted Judge Berman\u2019s July 28, 1989, order to refer to the merits of the case and not only to the discovery sanction of $6,062. Thus, they had a reasonable basis for seeking a default judgment on the merits before Judge Quinn on August 24, 1989.\nInitially, we note that the July 28 order, by itself, clearly can be interpreted to mean either a default judgment on the discovery sanction alone, or a default judgment on the merits of the case. However, a court must interpret an order within the context of the motions that accompany it. Inter-Insurance Exchange of the Chicago Motor Club v. State Farm Insurance Co. (1983), 113 Ill. App. 3d 157, 163, 446 N.E.2d 1224, 1228; Ferracuti v. Ferracuti (1975), 27 Ill. App. 3d 495, 498, 326 N.E.2d 556, 559.\nIn this case, the record clearly shows that plaintiff sought, as a discovery sanction, a default judgment on the merits of the case. This, in itself, was quite reasonable. Judge Gomberg ordered defendant to pay $6,062 in attorney fees as a discovery sanction. The order terminated the litigation on the issue, i.e., it finally determined, fixed, and disposed of the parties\u2019 rights as to the issue. The trial court had only to proceed with the execution of the judgment. (See Oak Brook Bank v. Citation Cycle Co. (1977), 45 Ill. App. 3d 1053, 1057, 360 N.E.2d 458, 460-61.) However, not only was defendant delinquent in producing the sought-after documents, which resulted in the discovery sanction, but defendant was even delinquent in paying the sanction. So, plaintiff next sought a more severe sanction-default judgment on the merits of the case. See 107 Ill. 2d R. 219(c); 612 North Michigan Avenue Building Corp. v. Factsystem, Inc. (1975), 34 Ill. App. 3d 922, 340 N.E.2d 678.\nThe misunderstanding occurred at the July 28, 1989, hearing on plaintiff\u2019s motion. We earlier quoted at length from the report of proceedings. Initially, it is quite clear that the trial judge never specifically and explicitly denied plaintiff\u2019s motion. It is also clear that the trial judge used the terms \u201cjudgment,\u201d or \u201cfinal judgment,\u201d which could describe either of two very different results, without identifying which result he contemplated. For example, Johnson asked that \u201cdefendant either pay these [fees] by a date certain or have default judgment entered against him.\u201d The trial judge responded, \u201c[W]ell, give him [defendant] twenty one days to pay the fees, or this will be converted to a judgment.\u201d Judgment as to the sanctions award alone, or judgment on the merits? It is not clear from the transcript.\nIndeed, the trial judge himself subsequently expressed confusion as to the exact scope of the hearing. He twice asked defendant\u2019s attorney if plaintiff\u2019s motion \u201cto get the $6,000, is that what it\u2019s all about?\u201d Defendant\u2019s attorney answered: \u201cThat is all it is.\u201d The trial judge later ruled: \u201cTwenty one days to pay. *** [0]r you can come in for the judgment. That\u2019s been heard already; evidently [Judge Gomberg] granted judgment. *** You have to get your relief from Judge Gomberg, not from me. All I\u2019m dealing with is an order to pay $6,000.\u201d This is quite true. However, what would occur if defendant did not pay? Would plaintiff receive a judgment on the sanction, which he essentially already had, or a judgment on the merits, which he sought? Again, it is not clear from the transcript. The trial judge\u2019s next-to-last words were: \u201cTwenty one days to pay or convert it to a judgment.\u201d \u201cIt\u201d no doubt refers to the July 28 order. However, does \u201cjudgment\u201d refer to the sanction or the merits of the case? The ambiguity remains.\nThe trial judge made several findings at subsequent hearings and in his April 16, 1990, amended order assessing Rule 137 sanctions against Freehling and Johnson. He vigorously expressed his interpretation of what occurred at the July 28, 1989, hearing and, consequently, the meaning of the July 28 order. Of course, the trial judge\u2019s interpretation of the hearing and resulting order is equally as reasonable as that of Freehling and Johnson. However, Freehling and Johnson appeared before Judge Quinn on August 24, 1989, prior to the trial judge\u2019s interpretive rulings. In other words, the trial judge\u2019s subsequent guidance came too late. Whether a document or motion is reasonable must be determined by an objective standard based on the circumstances that existed when the document or motion was presented to the trial court. Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 623, 532 N.E.2d 595, 600; Washington, 175 Ill. App. 3d at 580, 529 N.E.2d at 1090.\nIn the present case, it is clear from the record that when Freehling and Johnson appeared before Judge Quinn on August 24, 1989, they had a reasonable basis to seek a default judgment on the merits of the case. Thus, we hold that their motion should not have subjected them to Rule 137 sanctions. We note that the United States Court of Appeals for the Third Circuit followed this reasoning and reached this result in a case that presented the same issue with very similar facts. (Eavenson, Auchmuty & Greenwald v. Holtzman (3d Cir. 1985), 775 F.2d 535.) Accordingly, we reverse the trial court\u2019s imposition of Rule 137 sanctions against Freehling and Johnson.\nFor the foregoing reasons, the amended order of the circuit court of Cook County, dated April 16,1990, is reversed.\nReversed.\nMcMORROW and JOHNSON, JJ., concur.", "type": "majority", "author": "JUSTICE LINN" } ], "attorneys": [ "Pope, Ballard, Shepard & Fowle, Ltd., of Chicago (Patricia T. Bergeson, of counsel), for appellants.", "Ashcraft & Ashcraft, Ltd., of Chicago (Timothy J. McGonegle and Cynthia A. Manestar, of counsel), for appellee." ], "corrections": "", "head_matter": "JOHN E. LEWY, as Ex\u2019r of the Estate of Stanley B. Lewy, Deceased, Plaintiff, v. KOECKRITZ INTERNATIONAL, INC., Defendant-Appellee (Paul E. Freehling et al., Appellants).\nFirst District (4th Division)\nNo. 1\u201490\u20141127\nOpinion filed February 21, 1991.\nPope, Ballard, Shepard & Fowle, Ltd., of Chicago (Patricia T. Bergeson, of counsel), for appellants.\nAshcraft & Ashcraft, Ltd., of Chicago (Timothy J. McGonegle and Cynthia A. Manestar, of counsel), for appellee." }, "file_name": "0330-01", "first_page_order": 352, "last_page_order": 359 }