{ "id": 5784950, "name": "CHICAGO CITY BANK AND TRUST COMPANY, as Successor Trustee, Plaintiff-Appellee, v. JOHN ALBERT PICK, Defendant-Appellant (Gertrude Pick Lesman, Defendant-Appellee)", "name_abbreviation": "Chicago City Bank & Trust Co. v. Pick", "decision_date": "1992-09-04", "docket_number": "No. 1-90-2767", "first_page": "252", "last_page": "258", "citations": [ { "type": "official", "cite": "235 Ill. App. 3d 252" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "530 N.E.2d 635", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "175 Ill. App. 3d 926", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3553484 ], "pin_cites": [ { "page": "929-30" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/175/0926-01" ] }, { "cite": "122 N.E. 55", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "286 Ill. 564", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4934365 ], "weight": 2, "pin_cites": [ { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/ill/286/0564-01" ] }, { "cite": "487 N.E.2d 711", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1919, "opinion_index": 0 }, { "cite": "139 Ill. App. 3d 806", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3568415 ], "weight": 2, "year": 1919, "pin_cites": [ { "page": "813" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0806-01" ] }, { "cite": "569 N.E.2d 167", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "210 Ill. App. 3d 464", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2535418 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/210/0464-01" ] }, { "cite": "535 N.E.2d 876", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "127 Ill. 2d 61", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5564596 ], "pin_cites": [ { "page": "77" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/127/0061-01" ] }, { "cite": "560 N.E.2d 379", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "202 Ill. App. 3d 848", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2587495 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/202/0848-01" ] }, { "cite": "557 N.E.2d 643", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "199 Ill. App. 3d 395", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2467583 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/199/0395-01" ] }, { "cite": "332 N.E.2d 759", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "30 Ill. App. 3d 378", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2620784 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/30/0378-01" ] }, { "cite": "366 N.E.2d 237", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "51 Ill. App. 3d 350", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3382885 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0350-01" ] }, { "cite": "245 N.E.2d 894", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "106 Ill. App. 2d 453", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1598182 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/106/0453-01" ] }, { "cite": "384 N.E.2d 52", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. App. 3d 469", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3316234 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0469-01" ] }, { "cite": "367 N.E.2d 88", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "52 Ill. App. 3d 66", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3390345 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/52/0066-01" ] }, { "cite": "542 N.E.2d 824", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "186 Ill. App. 3d 697", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2655601 ], "weight": 4, "pin_cites": [ { "page": "702-03" }, { "page": "704" }, { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/186/0697-01" ] } ], "analysis": { "cardinality": 733, "char_count": 15167, "ocr_confidence": 0.782, "pagerank": { "raw": 6.605085434253971e-08, "percentile": 0.4036329917304059 }, "sha256": "9fa8e0ceebada547a78e45dddee8630baebb49c0b1e1f02dfb982350e4f1573f", "simhash": "1:ad705d07eb5b15c1", "word_count": 2534 }, "last_updated": "2023-07-14T17:52:21.957372+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CHICAGO CITY BANK AND TRUST COMPANY, as Successor Trustee, Plaintiff-Appellee, v. JOHN ALBERT PICK, Defendant-Appellant (Gertrude Pick Lesman, Defendant-Appellee)." ], "opinions": [ { "text": "JUSTICE RAKOWSKI\ndelivered the opinion of the court:\nDefendant-appellant John A. Pick appeals the trial court\u2019s orders of June 6 and May 3, 1990, which granted attorney fees to defendant-appellee Gertrude Pick Lesman (Gertrude) (June 6, 1990, order), and approved a final accounting of a trust which formed the basis for the underlying litigation while at the same time denying appellant\u2019s motion to have the accounting approval hearing continued (May 3, 1990, order). While we affirm the final accounting of the trust, we reverse the trial court\u2019s imposition of attorney fees against appellant.\nThe facts which underlie the case sub judice are to be found in our division\u2019s prior case, Chicago City Bank & Trust Co. v. Lesman (1989), 186 Ill. App. 3d 697, 542 N.E.2d 824 (Lesman I). There, the court held that appellant\u2019s counterclaim failed to state a cause of action against appellee Chicago City Bank & Trust Co. (Chicago City Bank) for breach of fiduciary duty and an accounting in connection with the management and distribution of a trust established by Albert Pick, Sr. (appellant\u2019s grandfather). (186 Ill. App. 3d at 702-03.) (Les-man I also held that Chicago City Bank was entitled to an award of attorney fees under the trust agreement. (186 Ill. App. 3d at 704).) Both appellant and Gertrude are remainder beneficiaries of that trust.\nUpon remand, on May 3, 1990, Gertrude filed a motion for attorney fees pursuant to section 2 \u2014 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 611). That motion requested attorney fees and costs, given that certain of Chicago City Bank\u2019s costs in defending the counterclaim were taken from the trust. The motion alleged that appellant\u2019s counterclaim was, inter alia, without reasonable cause, filed in bad faith, and wholly failed to state a cause of action.\nAt the hearing on May 3, 1990, in addition to receiving Gertrude\u2019s motion for fees (which was continued in order for appellant to respond), the trial court also, on Chicago City Bank\u2019s behest, approved the fourth and final accounting of the trust. A few days prior to the May 3, 1990, hearing, appellant sent a motion to the court and letters to counsel requesting a continuance of the May 3, 1990, hearing. The motion and supporting documents (including appellant\u2019s affidavit and a letter from a physician) established that appellant, who lived in Florida, needed a continuance because his wife was pregnant (past her due date, in fact), and he was needed at home to care for his wife and five other children. The court nonetheless approved the final accounting and set the matter of fees over for 30 days, allowing appellant to respond.\nAt the June 6, 1990, hearing, the court granted Gertrude\u2019s motion for attorney fees, entering judgment against appellant in the amount of $3,387.50 on the fee petition, and a further amount of $1,974.34, which the court apparently adjudged to be the loss of Gertrude\u2019s share of the trust occasioned by the filing of claimant\u2019s counterclaim, after the amount appellant was entitled to under the trust (but which appellant refused) was subtracted. The trial court noted in the record that he heard Gertrude\u2019s fee petition pursuant to Supreme Court Rule 137.134 Ill. 2d R. 137.\nAppellant has framed the first issue we address as follows: Whether the trial court \u201cerred in not allowing the appellant\u2019s continuance, approving the final accounting of [Chicago City Bank], without requiring the trustee to give enough information so that appellant, as a beneficiary, could approve of or formulate an objection, or in allowing a rehearing of the accounting hearing.\u201d\nIn arguing this issue, appellant relies on some law which pertains to his rights, as a beneficiary, to an accounting. These contentions were refuted in Lesman I, and therefore we do not address them. We do address, however, the matter of the trial court\u2019s denial of appellant\u2019s motion for a continuance. Section 2 \u2014 1007 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 1007) provides: \u201cOn good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment.\u201d Illinois Supreme Court Rule 183 (134 Ill. 2d R. 183) states:\n\u201cThis court, for good cause shown on motion after notice to the opposite party, may extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time.\u201d\nA trial judge has broad discretion in allowing or denying a motion for continuance. (See Bullistron v. Augustana Hospital (1977), 52 Ill. App. 3d 66, 367 N.E.2d 88.) In argument below, counsel for Chicago City Bank and the trial judge both stated that \u201call\u201d appellant said was that \u201chis wife is pregnant.\u201d To the contrary, appellant established by unchallenged evidence that his wife was well overdue, that she would be \u201con disability\u201d for weeks after the birth, which was expected any time, and that five other children needed care. In point of fact, appellant\u2019s wife did give birth on the day of the final accounting. Appellant, representing himself, was an out-of-State resident (Florida).\nA court may not disallow a motion for a continuance if to do so would defeat the ends of justice. (See Krych v. Birnbaum (1978), 66 Ill. App. 3d 469, 384 N.E.2d 52.) If, for instance, an attorney who has prepared for trial has become ill and unable to proceed, the court should grant a continuance. (Nowaczyk v. Welch (1969), 106 Ill. App. 2d 453, 245 N.E.2d 894.) Further, the absence of a party due to illness may serve as a valid reason for granting a continuance if the motion is supported by competent evidence. (See Needy v. Sparks (1977), 51 Ill. App. 3d 350, 366 N.E.2d 237.) Here, the evidence of appellant\u2019s need for a continuance was neither challenged nor controverted.\nNotwithstanding the above, the failure to grant the continuance does not require reversal. Lacking from appellant\u2019s arguments to either this court or the trial court are any grounds upon which we can infer that appellant was prejudiced by his inability to be present at the final accounting. No one disputes that appellant had standing to object at the final accounting. (See In re Estate of Provus (1975), 30 Ill. App. 3d 378, 332 N.E.2d 759, cited by appellant; Lesman, 186 Ill. App. 3d at 703.) However, appellant claims only that Chicago City Bank\u2019s accounting had no middle (information as to how the trust was administered, presumably balance sheets and the like). Appellant points to no alleged errors in the method in which the trust was administered, no alleged incidences of fraudulent or negligent administration of the trust, or any other reason to dispute the fourth and final accounting. The record discloses that Chicago City Bank\u2019s accounting of the administration of the trust since the third accounting included a thorough listing of the receipts and disbursements of the trust. Appellant has failed to establish any prejudice to him, as he has never made a sufficient challenge to the accounting on a basis which he could have asserted below, either before, at, or after the final accounting.\nGiven that appellant had notice of the final accounting hearing, had received the pleadings pertaining thereto, and had the opportunity to file and argue a motion for rehearing, we reject appellant\u2019s brief argument that his due process rights were violated. We therefore hold that the ends of justice were not defeated by the trial court\u2019s refusal to grant appellant\u2019s motion for a continuance.\nNext, we address whether the trial court erred in imposing sanctions against appellant. Appellant raises a number of questions with regard to the propriety of the sanction award, including: whether the trial court sufficiently identified specific false statements; whether the motion was untimely when it was brought more than 30 days after the allegedly offensive pleading was dismissed; whether, if fees were to be awarded, they were only awardable pursuant to the trust agreement; and whether appellant\u2019s conduct was sanctionable. Due to the dispositive nature of this last issue, we need not address the others which appellant raises.\nInitially, we note the inapplicability of Illinois Supreme Court Rule 137 (134 Ill. 2d R. 137) to this case. Rule 137 applies to offensive pleadings filed on or after its effective date, August 1, 1989. Thus, a motion for sanctions relating to a pleading filed prior to that date is properly analyzed under section 2 \u2014 611 of the Code of Civil Procedure. See People ex rel. Village of Buffalo Grove v. Village of Long Grove (1990), 199 Ill. App. 3d 395, 557 N.E.2d 643.\nSection 2 \u2014 611 requires that an attorney or a pro se party sign every pleading, motion or other paper filed with the court. This signature constitutes a certificate that the attorney or pro se party has read the document, has made a reasonable inquiry into its basis, and believes that it is well grounded in fact, warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and the paper is not interposed for any improper purpose, such as harassment or delay. (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 611.) If a pleading, motion or other paper is signed in violation of section 2 \u2014 611, the court \u201cupon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney\u2019s fee.\u201d Ill. Rev. Stat. 1987, ch. 110, par. 2-611.\nIn the case sub judice, Gertrude\u2019s section 2 \u2014 611 motion was directed to the counterclaim appellant filed in 1987, which was dismissed in December of 1987. It was Chicago City Bank, not Gertrude, which brought the motion pursuant to section 2 \u2014 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 \u2014 615). A review of Lesman I reveals that the dismissal was upheld based upon appellant\u2019s failure to provide sufficient facts to state a cause of action (i.e., that regular accountings had not been made or that appellant was denied access to records). Lesman I did not, as Gertrude contended below and contends on appeal, state that appellant\u2019s pleadings were false. Rather, the affirmance in Lesman I was predicated upon internal contradictions in appellant\u2019s pleading and the failure to state facts sufficient to constitute a cause of action. Given that it was a section 2 \u2014 615 motion, no evidence was before the court, other than appellant\u2019s own counterclaim and exhibits, establishing the falsity of appellant\u2019s pleading. At oral argument, Gertrude\u2019s counsel was not able to point to any part of the counterclaim which is assailed as false.\nEven if the case sub judice could be said to have involved falsity of factual allegations, a motion for attorney fees will not be granted where the movant merely establishes that the facts ultimately are adverse to the pleadings as set forth in the trial court. (Couri v. Korn (1990), 202 Ill. App. 3d 848, 560 N.E.2d 379.) Here, as indicated, no facts to show a lack of reasonable cause on the part of appellant are indicated in the record or specifically argued by Gertrude. It is, after all, Gertrude\u2019s burden to prove that appellant made untrue allegations without reasonable cause. (See In re Estate of Wernick (1989), 127 Ill. 2d 61, 77, 535 N.E.2d 876.) While the granting or denying of a section 2 \u2014 611 motion is within the sound discretion of the trial court (Jackson v. Pellerano (1991), 210 Ill. App. 3d 464, 569 N.E.2d 167), we hold that the record does not support an award of fees under section 2 \u2014 611 in the instant case.\nGertrude presents an alternative argument to section 2 \u2014 611 in support of the trial court\u2019s imposition of fees against plaintiff personally, namely: the imposition of fees was proper under Webbe v. First National Bank & Trust Co. (1985), 139 Ill. App. 3d 806, 487 N.E.2d 711, and Patterson v. Northern Trust Co. (1919), 286 Ill. 564, 122 N.E. 55. Gertrude\u2019s reliance on these cases is misplaced. Both Patterson and Webbe involved the issue of the trustee\u2019s fees in defending the action, not the fees of another beneficiary brought under section 2\u2014 611. As the trustee\u2019s fees in this matter have already been litigated in Lesman I, they are not at issue in this case. Moreover, Patterson and Webbe dictate that in order for fees to be awardable out of a beneficiary\u2019s share of the trust, so as not to prejudice other beneficiaries, the plaintiff\u2019s action must be groundless and vexatious. In fact, the cases Gertrude cites work against her position, as the court in Webbe stated: \u201cAn attorney fee cannot be charged personally against a defeated plaintiff suing a trustee as beneficiary, absent statutory authority.\u201d 139 Ill. App. 3d at 813, citing Patterson, 286 Ill. at 568.\nIn the case sub judice, we have held that the granting of Gertrude\u2019s section 2 \u2014 611 motion is not supported by the record, which leaves no statutory provision upon which to base a personal charge of fees against appellant. Finally, we note that appellant below steadfastly refused to take his authorized share as a remainder beneficiary under the trust. He has not appealed that issue and therefore has waived his right to his share under the trust. Thus, the extent of appellant\u2019s share of the trust remained in the trust and has been distributed to Gertrude and the other beneficiaries. This is the extent to which fees may be charged to appellant under Patterson and Webbe in the first instance. Gertrude has cited no authority which compels a different result merely because appellant\u2019s share under the trust did not cover the entirety of Chicago City Bank\u2019s fees.\nAccordingly, while the judgment of the circuit court approving the fourth and final accounting is affirmed, we reverse the award of fees levied under section 2 \u2014 611 against appellant.\nAffirmed in part, and reversed in part.\nEGAN, P.J., and McNAMARA, J., concur.\n1. Because appellant filed his motion for a rehearing outside of the 30 days after the approval of the final accounting, Chicago City Bank is correct in pointing out that appellant would have been limited to showing \u201cfraud, accident, or mistake.\u201d (See In re Estate of Moore (1988), 175 Ill. App. 3d 926, 929-30, 530 N.E.2d 635.) However, as indicated, appellant did not below, and has not on appeal, established any grounds upon which the final accounting can be challenged.", "type": "majority", "author": "JUSTICE RAKOWSKI" } ], "attorneys": [ "John Albert Pick, of Lake Worth, Florida, appellant pro se.", "Baker & McKenzie, of Chicago, for appellee Chicago City Bank and Trust Company.", "Paul E. Hamer, of Northbrook, for appellee Gertrude Pick Lesman." ], "corrections": "", "head_matter": "CHICAGO CITY BANK AND TRUST COMPANY, as Successor Trustee, Plaintiff-Appellee, v. JOHN ALBERT PICK, Defendant-Appellant (Gertrude Pick Lesman, Defendant-Appellee).\nFirst District (6th Division)\nNo. 1\u201490\u20142767\nOpinion filed September 4, 1992.\nRehearing denied October 23, 1992.\nJohn Albert Pick, of Lake Worth, Florida, appellant pro se.\nBaker & McKenzie, of Chicago, for appellee Chicago City Bank and Trust Company.\nPaul E. Hamer, of Northbrook, for appellee Gertrude Pick Lesman." }, "file_name": "0252-01", "first_page_order": 272, "last_page_order": 278 }